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Refusing Companion Breaches Trust and Confidence

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16th December 2015

In Stevens v University of Birmingham [2015] IRLR 899 the High Court has decided that the employer had breached the implied term of trust and confidence by refusing to allow a clinical academic to be accompanied by a representative of the Medical Protection Society (“MPS”) at a meeting to investigate misconduct allegations against him, on the ground that his employment contract specified that he could only be accompanied by either a trade union representative or another member of staff.

The case is striking on many levels:

• It provides an important new application of implied term of trust and confidence, albeit there will be arguments about how far the case is confined to its facts.
• It extends the examples of areas where employment related injunctions might be used: it arose because Professor Stevens sought an injunction forcing the University to allow him to be accompanied by the person of his choice.
• The judge recognised that the fact an employee will have enhanced rights to representation at a disciplinary hearing is not an answer where the employer has failed to provide a “level playing field” in terms of representation at the investigation stage.
• An express provision in the employer’s contractual procedure providing for a certain level of assistance (either a trade union representative or another member of staff) did not preclude the employer being more generous to the employee and did not preclude a breach of the trust and confidence term for refusing to grant the request.

The facts

The Professor led a research programme involving clinical trials. He was on the academic staff but had an honorary appointment with the NHS Foundation Trust under which he did his clinical duties and his trials were jointly sponsored by the Trust and the University. The allegations of misconduct against him involved breaches of good clinical practice in the trials and he was invited to an investigation meeting. He had already been receiving assistance in relation to the allegations from a Dr Palmer of the MPS, who was an expert on clinical matters. However, the University refused his request to be accompanied by Dr Palmer at the investigation as their disciplinary procedure (which was found to be contractual) referred only to a Trade Union representative and a work colleague. Professor Stevens contended that neither was of any use to him as he was not a member of a Union, he could not be accompanied by anyone in his team as they were involved in the trials and he did not know anyone else at the University.

Under the Trust’s procedure, he would have been entitled to be accompanied at the investigation by a member of the MPS, which was the leading medical defence union. However, that did not apply in this case as it was the University not the Trust who had decided to launch the investigation.

The decision

The Judge, Mrs Justice Andrews, began by construing the terms of the University’s procedure to establish that it was contractual and then to establish the extent of his contractual right. She rejected Professor Stevens’ primary argument that he had an express contractual right to the terms of the Trust’s procedure as he worked for both the Trust and the University and she also rejected an implied term that the two procedures were “melded” or that an employee who was a member of a medical defence organisation could be accompanied by someone in that organisation in lieu of a union rep. She then said that whilst the express rights were limited, there was nothing on the face of the procedure which precluded the implication of a term or the investigator exercising his discretion in a way which added to the minimum levels of protection laid down in the procedure:

“The fact that someone has a contractual entitlement to insist that X or Y accompanies him does not, as a matter of language or logic, preclude the investigator from allowing him to be accompanied by Z.”

The Judge said she had no hesitation in finding that the University’s behaviour in refusing his request to be accompanied was such as to seriously damage the relationship of trust and confidence. Some of the factors she took into account in deciding this were as follows:

1. The contracting parties had clearly envisaged that the companion accompanying the employee was not there merely to provide moral support but to act as a counterweight in terms of basic procedural fairness (ie the same rule which an external HR consultant was permitted to fulfil for the employer) (para 73).
2. He would not be there as an advocate but to help the employee give a full and clear account of everything of relevance. He could not do so if he did not have a grasp of the technical issues (para 74).
3. If the employee was disabled, there would clearly be an implied right to have someone effective to help present their case, aside from any duty which would be owed under the Equality Act (para 83).
4. The ability to have legal representation at a later stage of the process does not “cure” any unfairness at the investigatory stage, which was a crucial part of the process. Both parties must be aiming to put the investigator in the best possible position to provide a comprehensive and balanced report to the decision maker (para 91-93).
5. Here the investigator was given technical assistance from a senior member of staff and an externally appointed HR adviser at the meeting. Other witnesses from the department were also offered their own HR support in their interviews. That created a perception that the University had an advantage over the employee (para 93).
6. It was a matter outside Professor Stevens’ control that it was the University rather than the Trust who decided to bring these proceedings against him (para 98).

Analysis

The injunction was applied for only at the investigation stage. The decision that he had, in effect, a contractual right to more than was laid down in the employer’s contractual procedure is surprising, particularly as the Judge rejected the suggestion that the employee was being penalised for not being a member of a union, which was his choice. However, it should be emphasised that the decision was not made on the basis that there was a positive implied term that he had this extra right. Rather, the ratio was that in the particular circumstances outlined above, including the technical nature of the issue being dealt with, the refusal of the Professor’s request for specific assistance at the hearing was destructive of trust and confidence and without reasonable or adequate cause.

It would certainly not be right to assume that the failure to permit enhanced rights at the investigation stage will breach the implied term (even in the very rare cases where an application for an injunction is feasible). However, the case is likely to have real significance as it provides an argument which any employee can raise to challenge the notion that s/he has no right to any more accompaniment than the procedure specifies in a given case. Employee representatives are now likely to contend that the employer’s duty might go further.

The other significance of the case is that it adds to the line of recent cases in which injunctions have been granted to restrain or ordain particular steps in a disciplinary process, where the consequences are likely to spell the end of the employee’s career. Such injunctions are normally applied for at the point just before a decision to dismiss is taken. The early stage at which injunctive relief was applied for in this case is a novel approach.

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