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The Right to be Accompanied and the Obligation of Trust and Confidence

The High Court has held, in the case of Stevens v University of Birmingham, that an employer’s refusal to allow a representative of a professional defence organisation to accompany an employee to an investigative meeting was unfair, and a breach of the implied term of trust and confidence.

Professor Stevens was employed by the University of Birmingham as Chair of Medicine (Diabetes and Metabolism). His contract of employment was dependent upon him maintaining an honorary appointment contract with the Heart of England NHS Foundation Trust (HEFT), resulting in Professor Stevens being subject to two contracts of employment – one with the University and one with HEFT. Following investigations into allegations of misconduct in relation to clinical trials overseen by Professor Stevens on behalf of the University and HEFT, he was suspended from his employment at the University.  Professor Stevens was invited to an investigation meeting, to which he could be accompanied, but the University refused to allow his choice of companion, Dr Palmer – a Medical Protection Society representative, to attend.  Dr Palmer had been supporting Professor Stevens since the initial allegations had been made and had a familiarity with clinical trials. However, the University objected to Dr Palmer attending as he was neither a trade union representative nor a member of staff at the University.

When reviewing the University’s refusal, the High Court had to consider whether Professor Stevens had a contractual right enabling him to be accompanied by Dr Palmer or, if not, whether the refusal to allow Dr Palmer to attend amounted to a breach of the implied term of mutual trust and confidence.   The judge concluded that whilst no contractual right existed, the refusal to allow Dr Palmer to attend seriously damaged the relationship of trust and confidence between employer and employee, and was therefore a breach of the implied term.

In reaching her decision, the judge considered the serious consequences of the allegations against Professor Stevens and the suitability of Dr Palmer as a companion. The judge noted that as a result of the University’s refusal, Professor Stevens was in effect being denied a choice of companion because he was not a trade union member and he did not have regular contact with other members of staff at the University.  Furthermore, Dr Palmer had relevant knowledge and expertise, had been involved in the proceedings from the outset and occupied a role similar to that of a trade union representative which made him well placed for the role of companion.  A further key point highlighted by the judge was the fact that had the clinical (as opposed to the academic) organisation initiated the proceedings then Professor Stevens’ choice of companion would have been permitted.

This is an example to employers of where it would be appropriate to consider exercising the employer’s discretion to allow a companion who is not a trade union member or fellow work colleague to attend investigative or disciplinary meetings.  This is explained in the recently revised non-statutory guidance issued by ACAS to accompany its Code of Conduct on Disciplinary and Grievance Procedures.

For more information please contact Martin Sinclair or Nicola Gray or call 01224 632464.

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