The ACAS Code is quite clear: only a union representative or a workplace colleague can accompany an employee.
We know that these two categories are often impractical, particularly for a senior employee. Many employers allow such senior staff to have an external companion attend but not a spouse, HR manager or lawyer. It is important that internal hearings do not become over-emotional or court room battles. The ACAS Guide to the Code recognises that employers might choose to widen the categories.
In the case of Stevens v University of Birmingham, the High Court considered a case where a professor was employed under dual contracts with both the University of Birmingham and the local NHS foundation trust. The trust's disciplinary procedure allowed him to be accompanied by a representative from his medical defence organisation, the MPS. Indeed, the doctors’ union, the BMA, often lets doctors be accompanied by the MPS.
Allegations were made against Professor Stevens relating to clinical trials but only the University initiated a disciplinary process. Professor Steven’s request to be accompanied by a representative from the MPS was refused by the University as it did not form part of its disciplinary policy. This was despite the fact there was no colleague at the University who could accompany Professor Stevens. The High Court held that it was an inequality of arms not to permit Professor Stevens to be accompanied by the MPS when the University’s investigating officer was allowed support and the witnesses were allowed companions of their choice. The MPS had virtually the same status for these matters as a union and the allegations against Professor Stevens were potentially career-ending. The High Court held that the University’s refusal had breached the implied term of mutual trust and confidence.
The Stevens decision, in finding that there was a breach of contract, is exceptional. It does though mark what we perceive as a trend for tribunals being sympathetic to broader requests for accompaniment in cases that involve career threatening allegations. Also, where an employee is facing serious charges and cannot practically be accompanied by a union representative or colleague, a failure to allow a reasonable request for an external companion could well be a factor in the fairness of the dismissal.