We look at an unusual High Court decision on the right to be accompanied. The case of Stevens v University of Birmingham [2015] EWHC 2300 concerned whether a refusal to allow an employee to be accompanied to an investigation meeting by a companion who was neither an employee nor a trade union representative was a breach of the implied duty of trust and confidence.

Background

Workers have a statutory right to be accompanied to disciplinary and grievance hearings by a fellow worker or a trade union representative.

Technically, this right only applies if a worker makes a 'reasonable request' and only applies to a formal disciplinary hearing; it does not apply to meetings that take place as part of an investigation to decide whether formal disciplinary proceedings are necessary. However, most employers do allow workers to be accompanied at investigation meetings, often restricting the right to fellow workers and excluding union representatives from those meetings.

Employers are used to dealing with requests from workers to be accompanied by someone other than a fellow worker or union representative at all stages of an investigation or disciplinary process. Workers often ask to be accompanied by a family member or sometimes, in disability cases, a support worker. Our experience is that employers consider such requests on a case-by-case basis and will often allow workers some leeway in their choice of companion, whether as a reasonable adjustment or for the simple expediency of actually getting the employee concerned to attend a meeting. That said, employers will often be justified in refusing requests to be accompanied by, say, a legal representative and it has generally been seen as low risk to refuse requests to be accompanied by someone who is not covered by a worker's statutory right.

This decision casts some doubt on the above and shows that, at least in certain specific circumstances, an employer may risk breaching the duty of mutual trust and confidence by not allowing an employee to be accompanied by his chosen individual at an investigation meeting, even if that individual is not a fellow worker or union representative.

Facts

Professor Stevens has two separate but linked contracts. One is an employment contract with the University of Birmingham (the University). It is a condition of that contract that he also holds an 'honorary appointment contract' with the Heart of England NHS Foundation Trust (HEFT) to undertake clinical duties as a consultant. He is paid by the University but HEFT pays the University money to cover part of his salary.

In December 2013/January 2014, allegations came to light of failures of good clinical practice relating to clinical trials for which Professor Stevens was responsible. This resulted in a disciplinary investigation into his activities (controlled by the University), which commenced in February 2014.  

The specific issue raised in the High Court proceedings related to a letter from an external HR consultant to Professor Stevens dated 16 February 2014, which invited him to an investigation meeting. The letter stated that the meeting was not a disciplinary hearing. The letter gave Professor Stevens the opportunity of being accompanied to the meeting by a trade union representative or a member of staff.

However, Professor Stevens was not a member of a union and did not wish to be accompanied by a member of staff. Instead he wished to be accompanied by a member of the Medical Protection Society (MPS), a medical defence organisation, who had been advising him on his situation. He had a contractual requirement under his HEFT contract to maintain medical defence membership, although not with any specific organisation. Additionally, even if Professor Stevens had been a member of the British Medical Association (which would typically have been his union), it had an informal agreement with the MPS that the MPS would deal with professional conduct issues where someone was a member of both organisations. This meant that the union could not help him even if he was a member.

The University declined Professor Stevens' request to be accompanied by a member of the MPS and that led to High Court proceedings.

High Court proceedings

Professor Stevens alleged that the University's refusal was a breach of an express term in his contract or, alternatively, a breach of the implied term of mutual trust and confidence.  He sought a declaration of his rights.

Professor Stevens was subject to 'Clinical Academic Conditions', which stated that he was subject to the University's disciplinary procedure.  However, where disciplinary matters related to duties carried out under his honorary contract with HEFT, he was said to be subject to the procedure referred to in that contract.  His honorary contract with HEFT did not actually refer to a disciplinary procedure but the High Court accepted that this must mean his duties in that role were subject to HEFT's disciplinary procedure.

Under the University's disciplinary procedure, Professor Stevens' right to be accompanied at an investigation meeting reflected the statutory right at a disciplinary hearing (ie he could be accompanied by a fellow worker or trade union representative). Interestingly, at a formal disciplinary hearing he was given wider rights including legal representation.

Had the HEFT procedure been used he would have been entitled to be accompanied by a member of a medical defence organisation at the investigation meeting, which would have meant he could be accompanied by his chosen companion from the MPS.  

High Court decision

The High Court found that, taking into account the wording of the University's disciplinary procedure and the fact that it was collectively agreed, important aspects of the University's procedure including the right to be accompanied by a member of staff or trade union representative were contractual. However, the procedure did not give Professor Stevens a right to be accompanied to a meeting by the MPS.

The Court then considered whether the implied duty of trust and confidence required the University to allow Professor Stevens to be accompanied by a member of the MPS who fell outside of his express contractual rights. One factor the judge appears to have considered was that witnesses who were interviewed during the investigation were given a wider right to be accompanied. 

The judge concluded that the language of the section of the University's disciplinary procedure was about entitlement to be accompanied, not about who someone was permitted to be accompanied by. The procedure did not therefore place any express limits on a companion and gave the University discretion to allow a wider category of companion.   

The judge concluded that, in the circumstances of this case, it would be patently unfair not to allow Professor Stevens to be accompanied by a member of the MPS and that such a refusal did therefore amount to a breach of the implied duty of trust and confidence. In reaching this decision, the judge was influenced by the fact that the investigating officer was to be accompanied at the investigation meeting by an HR consultant and another member of staff to provide him with technical assistance. There was therefore a significant imbalance in not allowing Professor Stevens to receive similar support. She was also influenced by the potentially serious impact on Professor Stevens' professional career that the investigation could have and by the fact that professional defence organisations play a similar role to trade unions.

Additionally, the judge referred to the fact that Professor Stevens could have been accompanied by the MPS had HEFT initiated the disciplinary investigation and followed its procedure.  Accordingly, the Court made a declaration that the University would breach trust and confidence if it continued to refuse to allow Professor Stevens to be accompanied by the MPS.

Comment

It is clear from this decision that, in certain special cases, it could be a breach of the implied duty of trust and confidence not to allow an employee to be accompanied by his chosen companion, even where that person falls outside the employee's legal right to be accompanied. This is likely to apply where there are unusual employment or contractual arrangements or where the consequences of a disciplinary investigation could be particularly serious.

The good news for employers is that the judge commented that, "in many cases", a right to be accompanied by a fellow worker or union representative will be "perfectly fair". In simple disciplinary cases (such as performance management or theft by an employee), employers should still therefore be able to refuse requests for wider accompaniment. Additionally, this may be less likely to be an issue in grievance investigations, which will not usually have the same serious consequences for an employee's career as disciplinary investigations.  However, employers might want to consider the following practical guidance:

  • If they are concerned about requests for wider accompaniment, include specific restrictions in disciplinary procedures;
  • Avoid a situation where special treatment is given to witnesses that is not afforded to the employee under investigation (which can often be a temptation in bullying and harassment cases involving reluctant witnesses); and
  •  Be very careful of situations in which an investigating manager is given technical support that is not provided to the employee under investigation.

This decision will need to be considered on its facts but demonstrates the risk that, in some unusual circumstances, employees may have a wider choice of companion than is granted by their statutory or contractual rights.