The High Court has found that an employer breached the implied duty of trust and confidence in an employees' contract of employment by not allowing flexibility regarding the companion that he could bring to an investigation meeting relating to possible misconduct (Stevens v University of Birmingham (2015) EWHC).
Under section 10 of the Employment Relations Act 1999, workers and employees are permitted to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing. Whilst there is no statutory right to be accompanied at investigatory meetings, such a right may be provided for within a contractual disciplinary procedure.
It is established law that a contract of employment is subject to an implied term that an employer must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between itself and the employee.
The claimant was engaged under two contracts:
- a contract of employment with the University of Birmingham as Chair of Medicine (an academic post); and
- a contract with the Heart of England NHS Trust to work in a clinical role as a consultant, specialising in the management of diabetes.
The claimant was involved with five clinical trials in respect of patients with diabetes. The Heart of England NHS Trust was responsible for ensuring compliance with Good Clinical Practice in respect of two of those trials. For the third trial, the University of Birmingham was responsible for ensuring Good Clinical Practice was complied with. Good Clinical Practice is an international quality standard that must be met for clinical trials involving human subjects.
In December 2013, the relevant medical body responsible for ensuring clinical trials are carried out in accordance with accepted standards found that there had been number of breaches of Good Clinical Practice in the trials that the claimant was running. The University suspended the claimant from his duties and invited him to attend an investigation meeting.
The claimant wished to be accompanied to that meeting by an Medical Protection Agency representative (MPS), who had been supporting him since the initial allegations of misconduct. The MPS is a medical defence organisation who assists their members in matters of professional conduct.
The claimant's right to be accompanied
- The terms and conditions of the claimant's contract of employment with the University stated that "an individual only has the right to be accompanied by a staff member or a trade union representative at an investigation meeting".
- The claimant's contract of employment with the Heart of England NHS Trust was silent on disciplinary procedure. However, the Trust had a disciplinary procedure which set out a much broader category of permitted companions than his contract with the University. For example, the disciplinary procedure provided that: "individuals are allowed to be accompanied by: (a) a person who is legally qualified, (b) a friend who is a member of staff, or (c) a member of a professional organisation such as the Medical Protection Society."
The claimant deemed his MPS representative to be the most suitable companion because:
- He was medically qualified and had the necessary technical expertise to understand and contribute to an investigation meeting, as he was very familiar with clinical trials;
- He had supported the claimant since the first allegations were made in early 2013;
- He was a member of the MPS, a medical defence organisation which the claimant was encouraged to maintain membership of under his contract of employment with the Heart of England NHS Trust;
- If the University refused to allow the claimant to be bring his MPS representative as a companion, he would be forced to be unaccompanied at the investigation meeting, which would be unfair.
The High Court held that refusing the claimant's request to be accompanied by a member of the MPS, who understood the technical issues surrounding the clinical trial and had been involved in supporting him when the allegations were first made, was a breach of the implied term of trust and confidence inherent in the contract of employment between the claimant and the University.
The High Court made a declaration to this effect, in the expectation that the University would allow the claimant to be accompanied by his MPS representative at the investigation meeting.
The key reasons for the High Court's finding were:
- The claimant worked off-site a lot and, therefore, did not have any appropriate contacts that he could invite to attend the disciplinary hearing as his companion, as he had little contact with many of the staff.
- The staff who knew him worked on the clinical trials with him and would be called as witnesses in the investigation, therefore, they were not appropriate companions.
- The claimant was not a member of a trade union and, therefore, had no union representative to accompany him. The claimant's MPS representative was the best substitute for a trade union representative.
- That the disciplinary procedures referred to under the claimant's contract of employment with the Heart of England NHS Trust would have allowed the claimant to be accompanied by his MPS representative at the disciplinary hearing.
- Importantly, the claimant did not have an appropriate alternative to call to an investigation meeting as which serious allegations of misconduct, which could lead to him losing both his job at the University and his registration as a doctor, would be explored.
On this basis, the High Court held that the University should have allowed the claimant to bring his MPS representative as a companion, even though he wasn't a prescribed companion under his contract of employment with the University. It held that it was "patently unfair", and a clear breach of the implied duty of trust and confidence, for the claimant to attend the meeting alone.
The case is unusual as it deals with a breach of the implied duty of trust and confidence in circumstances where the employment relationship was ongoing. Here, the High Court found that the University's actions had damaged, rather than destroyed, the implied term of trust and confidence, as the claimant wanted the opportunity to attend the investigation meeting and defend the allegations.
Employers should be aware of this decision when considering whether or not an employee should be allowed to bring their choice of companion to an investigation meeting. The decision illustrates that employers should exercise care when deciding whether to allow an employee to bring their choice of companion to an investigation meeting, and should look at all of the facts of the case to assess whether refusing an employee to be accompanied might be a breach of the implied term of trust and confidence. This is particularly the case where an employee's choice of companions are quite limited and / or where the allegations have potentially serious consequences.