The claimant worked as the practice manager in a dental surgery. It was alleged that she had deliberately failed to record an employee's sickness absence properly and she was suspended and called to a disciplinary hearing set for two weeks later. She asked to be accompanied by a colleague (who was the principal dentist and used to own the practice) but was refused permission. After the hearing had started, her colleague tried to enter the room but was prevented from doing so and the hearing "ended in disarray". The claimant was then told that if she did not attend a rearranged hearing, she would not be paid. Shortly after, she went off sick and did not return before resigning by letter. She claimed constructive unfair dismissal at the Tribunal and won on the basis that a combination of four issues constituted a breach of the employer's implied duty of trust and confidence:

  • the refusal to allow the claimant to be accompanied by her colleague  
  • the absence of any investigatory interview before the hearing  
  • telling the claimant she would not be paid if she did not attend the hearing  
  • failing to disclose to the claimant an overtime sheet which was relied on in the investigation.

The EAT dismissed the employer's appeal. The first argument was that in a constructive dismissal case relying on a breach of the implied term of trust and confidence, the employer must be found to have intended to act in such a way towards the employee. This was based on the 2011 Court of Appeal case of Tullett Prebon, where employees did not have grounds for claiming constructive dismissal because the employer's intention in trying to deter them from leaving to join a rival firm was to preserve rather than destroy trust and confidence. The EAT decided that Tullett Prebon had not changed the law – it is still the case that the employer's intention is assessed objectively from all the circumstances.

A key aspect of the employer's breach was the refusal to allow the claimant her chosen companion, apparently because one of the directors was under the mistaken impression that the employee should be accompanied by someone who would be neutral, rather than supporting their position. In fact, as we saw from the Toal v GB Oils Ltd case a couple of months ago, strictly the choice of companion does not even need to be "reasonable". Clearly this is an area employers need to be very wary of (even though, in this case, it appears that the colleague was self-employed and not a "worker" and therefore did not qualify as a companion).

On the issue of the lack of an investigatory meeting with the employee, it is worth noting that the ACAS Code on disciplinary procedures does say that "in some cases" the obligation to carry out a reasonable investigation will require the holding of an investigatory meeting with the employee before proceeding to a disciplinary hearing. In this case the Tribunal clearly thought this was one of those cases, given the employee's length of satisfactory service and the serious nature of the allegations against her.