Unjustified refusal to allow employee to be accompanied was a breach of mutual trust and confidence

Stevens v University of Birmingham | High Court | 2015

When investigating misconduct allegations all employers must follow a fair procedure. One aspect of acting fairly involves the employee being accompanied by a trade union official or fellow work colleague at a disciplinary hearing; this being a well known basic statutory right which the employer has little scope to restrict (see The right to be accompanied in disciplinary proceedings). The statutory right may also be enhanced within the terms of an employer’s disciplinary procedures. This High Court case illustrates how an employer’s unjustified and unfair refusal to allow an employee to be accompanied by his chosen companion was a breach of the implied term of trust and confidence.

The employee, Professor Stevens, holds a senior academic post at the University of Birmingham and as part of his role he also has linked employment with a NHS trust in relation to his research work at the University.

Genuine and serious concerns about some of Professor Stevens’ work have arisen and the University has started a disciplinary investigation into these. Professor Stevens has been invited to a disciplinary investigatory meeting the outcome of which will be used in part to decide if he should face formal disciplinary allegations at a disciplinary hearing. There is no dispute that the concerns are serious and must be investigated.

Professor Stevens is not a member of a trade union and he does not have a fellow work colleague who would be suitable to ask to accompany him to the disciplinary investigatory meeting. Therefore he asked if his advisor from the Medical Defence Council could accompany him. Professor Stevens explained that his advisor was an expert in the matters that formed part of the issues under investigation and without his assistance there would not be equality of arms between the parties.

The University refused this request arguing that Professor Stevens did not have a statutory or contractual right to be accompanied by his chosen companion because he was neither a trade union official nor a fellow work colleague.

Professor Stevens applied to the High Court for a declaration that the University was acting unfairly and should be forced to allow him to be accompanied by his chosen companion.

The High Court held that Professor Stevens did not have any statutory or express or implied contractual right to be accompanied by his chosen companion. However, the judge held that the University’s refusal to let the chosen companion attend the investigatory meeting was a breach of the implied term of mutual trust and confidence and issued the requested declaration.

The reasons given by the High Court illustrate how employers must take care to ensure any decisions or actions they take during a disciplinary procedure must be justified and fair or they risk their actions being a breach of trust and confidence:

• The University’s Investigating Officer was being assisted by another senior academic who was also an expert in the relevant issues. This was felt necessary by the University because of the complex subject matter under investigation. The High Court held that if the University needed expert assistance it was fair to allow the employee to have the same assistance.
• Professor Stevens had valid reasons for not being able to ask a fellow work colleague to be his companion and he was therefore being denied any choice of companion at the time when the investigation was at a critical stage and the outcome would be significantly influenced by what Professor Stevens said at the investigatory meeting.
• The High Court said that it would have been “patently unfair” to make Professor Stevens attend the investigatory meeting alone. He could be disadvantaged especially given the Investigatory Officer would be assisted by his own expert and would also have at the meeting an external HR consultant.
• The judge said that the companion would be unlikely to be able to help Professor Stevens if he did not have “a grasp of the technical issues or understand the practical demands” of the research work carried out by Professor Stevens.
• Witnesses had been allowed their own choice of companions when being interviewed as part of the investigation and had therefore been treated more favourably than Professor Stevens.
• Given Professor Stevens’ dual employment he had the benefit of two disciplinary procedures, one from the University and the other from the NHS employer. He had no control over which procedure would be followed about issues that concerned both employers. It was the University’s procedure that was being followed but what was clear, however, is that under the NHS procedure Professor Stevens would have been allowed to use his choice of companion. The High Court held this was an arbitrary factor that made the process unfair.
• The University could not justify its refusal not to let Professor Stevens be accompanied by his choice of companion. This made the decision unfair.
• The court explained that there is an “overarching obligation of trust and confidence” that may supplement and complement, rather than contradict, an express term of a contract of employment or the provision of a disciplinary procedure, especially if the disciplinary concerns or allegations are serious with potentially serious consequences for the employee concerned.

The High Court judge said, “I have no hesitation in finding that the University’s behaviour in refusing his request to be accompanied … is such as to seriously damage the relationship of trust and confidence” between the parties. The judge stressed, “there is no reasonable and proper cause for the University’s objectively unfair conduct” and the refusal was a breach of the overriding and implied term of trust and confidence.