Refusal to allow employee to be accompanied by his companion of choice was a breach of trust and confidence

In the case of Stevens v University of Birmingham the High Court has held that the University’s refusal to allow Professor Stevens to be accompanied…

In the case of Stevens v University of Birmingham the High Court has held that the University’s refusal to allow Professor Stevens to be accompanied at an investigation meeting by his medical defence union representative amounted to a breach of the duty of trust and confidence.

The facts

Professor Stevens was employed by the University in a clinical academic role. His contract of employment with the University was dependent on him also being engaged by the Heart of England NHS Foundation Trust (HEFT) on an honorary appointment contract under which he undertook clinical duties as a consultant. Practically his time was split between the two roles and there was flexibility in terms of the time spent on each.

As part of his duties Professor Stevens was responsible for five clinical trials four of which were jointly sponsored by the University and HEFT although each had different roles in relation to them. Concerns about the trials were reported to the regulator (following issues having been raised by Professor Stevens himself to both the University and HEFT) and following an inspection of three of the trials by the regulator the University suspended Professor Stephens initially from duties associated with research and subsequently from all duties pending an investigation.

Under the University’s disciplinary procedure Professor Stevens was entitled to be accompanied at the investigation meeting by an employee of the University or a trade union representative. Professor Stevens was not a member of a trade union although he was a member of the Medical Protection Society (MPS), a medical defence organisation.

Professor Stevens wanted to be accompanied at the investigation meeting by an MPS representative. The University refused relying on its disciplinary procedure which had been agreed following protracted trade union negotiations. Its position was that any departure from the agreed procedure would upset the union and “open the floodgates” to similar requests by other employees. Professor Stevens argued this was unfair as he was not a member of a trade union and his MPS representative was in any event akin to a trade union representative. In terms of a colleague accompanying him, his position was that there was no one suitable as it was not appropriate for someone who had been involved in the trials to accompany him and his clinical duties meant he spent considerable time away from the University so he had no friends or close relationships at work outside of his laboratory colleagues.

Had HEFT been responsible for the investigation under its policy Professor Stevens would have been permitted to be accompanied by his MPS representative.

The High Court was asked to consider whether Professor Stevens had a contractual right to be accompanied by his MPS representative or if in refusing his request, the University had breached the duty of trust and confidence that must exist between employee and employer.

The Judge did not accept that it was implicit that Professor Stevens could be accompanied by his MPS representative or that the University should have adopted the more generous HEFT policy (or a hybrid of the two). However the Court did find that in refusing the allow him to be accompanied by his MPS representative the University had breached the implied duty of trust and confidence and gave a declaration to that effect. The Court found it would be ‘patently unfair’ to expect Professor Stevens to attend the meeting unaccompanied given one of the potential outcomes was disciplinary action which in view of the nature of the allegations and involvement of the regulator could result in both the loss of his employment and career.

What does this mean for me?

Most employers limit an employee’s companion for the purposes of disciplinary procedures to either a colleague or trade union representative. This is consistent with the requirements of the ACAS Code of Practice on Discipline and Grievance (although the accompanying guidance suggests that employers should consider a wider category of companion). When you are faced with an employee who has a cogent explanation for why it is not possible for them to be accompanied by a colleague or trade union representative, this Judgment confirms that you need to consider and most likely allow the employee to be accompanied by someone else especially where the outcome of the disciplinary procedure may be loss of employment or loss of career. It will especially be something you need to consider for very senior employees and those who work remotely who are less likely to have an appropriate colleague to accompany them.

Comment

Interestingly the High Court did not categorise the University’s breach of trust and confidence as having destroyed the relationship of trust and confidence which would normally have entitled Professor Stevens to treat his employment as at an end. The Judge’s finding was that this had been damaged. This may be an argument that is pursued in future cases and an employee who is refused their companion of choice may seek to rely on that refusal in a claim for constructive dismissal if they resign as a consequence.

In the vast majority of workplaces, employees who are not trade union members will have a suitable colleague who can accompany them. Employers should therefore be reassured that extending the scope of the companion is only likely to be required for those who genuinely work remotely or whose role or the allegations against them mean it would not be appropriate for a colleague to accompany them. It is unlikely that this Judgment will ‘open the floodgates’ to employees being able to bring who they like to investigation and disciplinary meetings.

 

If you would like to discuss a particular disciplinary process or have any questions about this Judgment, please speak to your usual contact in the Weightmans employment, pensions and immigration team, or get in touch with Claire Hollins (claire.hollins@weightmans.com)

 

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