Is the refusal of an employee’s choice of companion in an investigation meeting a breach of contract?
In a recent case decided by the High Court the question of the right to be accompanied was once again before the Courts. There have been several cases lately regarding this right of employees and its application.
Right to be accompanied
Workers and employees have the right to be accompanied at a disciplinary hearing by a trade union representative or work colleague. This is set out in Section 10 Employment Relations Act 1999.
This right to be accompanied does not apply to being accompanied at an investigatory meeting.
The distinction between the two is if a decision is going to be made at the meeting about giving the employee a warning, or some other sanction or dismissing the employee. If this is the case then the right to be accompanied would be triggered.
Some employers will state in their contracts or procedures that employees have the right to be accompanied at other meetings or by a person other than a trade union representative or work colleague. In this case if it is a contractual obligation the employer would be required to comply with such a request.
Mutual Trust and Confidence
Through case law the principle of the implied term of ‘mutual trust and confidence’ has developed which applies to the employment relationship and is a duty on both employer and employee.
This means that every contract of employment is subject to an implied term (by operation of law) that an employer must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of mutual trust and confidence between itself and the employee
In the event that an employer breaches the implied duty of trust and confidence an employee can resign and claim constructive unfair dismissal.
The employee in this case, Professor Stevens, is a highly distinguished clinical academic. In 2004 he was appointed to the Chair of Medicine (Diabetes and Metabolism) at Birmingham University. His contract of employment with the University was expressly dependent upon his having and retaining an honorary appointment contract with the Heart of England NHS Foundation Trust (‘the ‘NHS Trust’).
In accordance with his appointment with the NHS Trust Professor Stevens also undertook clinical duties as a consultant.
Professor Stevens was not paid by the NHS Trust instead the NHS Trust provided funds to the University to pay his salary.
Part of Professor Stevens role was to carry out research activities, and he had been the Chief Investigator responsible for the scientific and overall conduct of five randomised controlled clinical trials of investigational medical products.
The Medicines and Healthcare Products Regulatory Agency (‘MHRA’), an executive agency of the Department of Health, is responsible for ensuring that clinical trials are carried out in accordance with accepted standards, and for safeguarding patient interests.
In December 2013 Professor Stevens raised concerns about breaches in protocols and he brought these to the attention of the University and the NHS Trust in the lead up to an inspection by MHRA
Following the MHRA inspection various breaches were found and reported and as a result the University suspended Professor Stevens from any duties associated with research with effect from 20 December 2013.
An internal investigation was undertaken and a report completed which led to further allegations of misconduct being added to those that had already been made against Professor Stevens. As a result he was suspended from all his duties at the University on 11 July 2014.
The University subsequently wrote to Professor Stevens inviting him to an investigation meeting where he would have the “opportunity to make a statement which will form part of the evidence to be submitted to a disciplinary panel, should it be found that there is a case to answer”. The letter also told Professor Stevens that if he wished, he could be accompanied at the investigation meeting by a trade union representative or an employee of the University.
Professor Stevens was not a member of a trade union, but he was a member of the Medical Protection Society, a leading medical defence organisation.
Professor Stevens therefore requested to be accompanied at the investigation meeting by a representative from the Medical Protection Society, Dr Palmer. He argued that Dr Palmer attending would be the same as a Trade Union representative attending. He also argued that because of his role he had no colleagues whom he could trust to call upon to accompany him at the meeting. Despite this the University refused to allow Dr Palmer to be present and would not use their discretion to allow a change to the rules.
Consequently Professor Stevens made a claim to the High Court for a determination as to whether he had a contractual entitlement to be accompanied by Dr Palmer. In deciding this the Court had to look at whether the University’s refusal was a breach of the overriding contractual obligation of trust and confidence.
The High Court analysed the terms of Professors Stevens employment with the University and NHS Trust and decided that it was the University’s disciplinary procedure which applied to his employment.
In the University procedure there was no right to be accompanied other than by a trade union rep or work colleague, whereas the terms of the NHS Trust disciplinary would have allowed some other companion.
Although the NHS Trust terms did not apply contractually they were important in the High Court’s ultimate decision making.
The High Court decided that as the University’s terms applied there was no express or implied requirement to agree.
After deciding that there was no right to another companion the Court went on to examine if the refusal in the circumstances was a breach of the implied term of trust and confidence. In making the decision the Court considered the following factors:
• The investigation was an important stage in the process which required due care and fairness;
• The allegations against Professor Stevens were serious and possibly career ending;
• It was important to have assistance from someone with experience and knowledge so as to fully support Professor Stevens;
• The employer had the benefit of external and technical support in the investigation process;
• In the absence of allowing Dr Palmer to accompany him Professor Stevens would have had no-one to attend with him;
• Witnesses had been allowed their choice of companion in the process;
• Had the NHS Trust policy applied he would have his choice of companion.
Therefore considering all of these factors the Court decided that the University’s refusal was a breach of trust and confidence.
Points to note
What is interesting about this case is that the High Court did not go as far as to say that the University’s breach was sufficiently serious to bring the employment to an end, only that it seriously damaged relations.
This is interesting as there is previous case law which sets out that any breach of the implied duty of trust and confidence is a fundamental breach which will repudiate the contract.
Another point to note is the University’s unwavering stance on this issue. It would certainly have been easier for them to concede and allow Professor Stevens to be accompanied, and arguably would have made no difference to their investigation and disciplinary decision. The University however stated that there reason for refusal to bend was that the policy had been negotiated with the Union previously and they did not want to deviate from what was agreed and secondly that they did not wish to set a precedent. Both of these arguments were however rejected by the Court.
What action do you need to take?
- Check your disciplinary policy and procedure to see what it states about the right to be accompanied.
- Check that your disciplinary policy and procedure is not contractual.
- Treat every employee situation on the facts, and if an employee asks to be accompanied by someone other than a trade union representative or work colleague consider the request seriously.
- Wherever possible use your discretion and common sense in dealing with disciplinary issues.
- If you find yourself in this situation or require assistance with a disciplinary or investigation such as this contact me for a free initial discussion – 01983 89700, 023 8098 2006 or email [email protected]
Stevens v University of Birmingham – High Court
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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.