Refusal to Allow Employee's Choice of Companion in Disciplinary Investigation was Breach of Implied Term of Trust and Confidence

Stevens v University of Birmingham [2015] EWHC 2300

Background

Section 10 of the Employment Relations Act 1999 sets out the right for workers and employees to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing. There is no statutory right to be accompanied at investigatory meetings, but a contractual disciplinary procedure may provide such a right. There has been some limited support for the idea that an employee should be allowed to be accompanied by a person who does not fall under the statutory definition, if the employee would otherwise not have a companion at all.

Facts

The Claimant, a clinical academic, was employed by the University of Birmingham in the role of Chair of Medicine. His time was split between academic and clinical duties, and one of his responsibilities was as Chief Investigator, which involved overseeing the conduct of five clinical trials.

Following inspections by the regulatory body and an internal investigation by the university into allegations of misconduct in relation to the trials, the Claimant was suspended from his duties at the university. He was invited to an investigation meeting and told that he could be represented by a Trade Union representative or another employee of the university.

The Claimant had one contract with the university, and another with the Heart of England NHS Foundation Trust ('HEFT'), under which he undertook clinical duties. The contract with the university set out an employee's right to be accompanied by a staff member or trade union representative at an investigatory meeting. The contract with HEFT did not expressly refer to its disciplinary procedure, but the procedure itself set out the categories of companion allowed, and included a representative of a defence organisation.

The Claimant was a member of the Medical Protection Society (MPS), which is a medical defence organisation. He wished to be accompanied by an MPS representative who had been supporting him since the initial allegations of misconduct.

The university refused to allow the MPS representative to attend as a companion, on the basis that he was not a member of staff or a trade union representative. The Claimant's position was that he had no friends within the university, as he had very little contact with university staff. The only staff members he knew well were those that worked with him on the clinical trials, but they would be called as witnesses in the investigation, and therefore precluded any of them from accompanying him. The Claimant contended that the MPS representative was equivalent to a trade union representative and, without him, he would have to attend the investigation meeting alone, which would be unfair.

The Claimant sought a declaration from the High Court that he was permitted to be accompanied at the investigatory meeting by an MPS representative.

Judgment

The High Court held that there was no contractual right, either express or implied, requiring the university to allow the Claimant to be represented by an individual from MPS. However, the university's refusal to allow Dr Palmer to attend the investigation meeting was a breach of the implied term of mutual trust and confidence. The court issued a declaration to this effect.

The investigation was a critical stage of disciplinary proceedings and, in this case, the seriousness of the allegations could result in disciplinary action which could potentially end the Claimant's career. In these circumstances, it was extremely important for the Claimant to have as much assistance as possible at this stage, and a companion with the right experience and knowledge could provide this support. The university had allowed the investigating officer external and technical support, but was denying the employee any support whatsoever, which created 'an inequality of arms'.

As the Claimant was not a member of a trade union, and had provided a cogent explanation for why he could not approach another member of staff, he was effectively being denied any choice of companion.

The court could not find any justification for the university's unfair treatment of the Claimant. Therefore, the refusal to let an MPS representative attend the meeting was a breach of the implied term of trust and confidence.

Tips for Employers

This case is unusual in that it considers the breach of the implied term of trust and confidence where the breach was not found to bring the employment relationship to an end.

Earlier this year, ACAS amended its non-statutory guidance to make it clear that employers can allow workers to be accompanied by companions who are not trade union representatives or work colleagues. It did not amend the Code as it did not wish to create a burden on employers, but clearly employers will always be in a position to exercise their discretion when deciding whom to allow as a companion. Employers should be aware of the potential seriousness of allowing employees to attend hearings unaccompanied, particularly where the stakes are high and the matters under discussion are complex or technical.

National Minimum Wage and Travel Time: Care Agency to be Sued

The fourth largest home-care services company in Britain is being sued for allegedly failing to pay the National Minimum Wage, by refusing to include, in pay calculations, staff travel time between home visits. This is the first time a major care provider has been sued for its failure to cover travelling between appointments.

An individual worked for the home-care services company, looking after elderly, disabled or inform patients in their homes. Despite the fact that travelling between appointments was an integral part of her job in rural Devon, she was only reimbursed for her petrol and not paid for her time. She reported the issue to HMRC, which is still investigating, and subsequently issued proceedings in the Bristol Employment Tribunal.

This case is a reminder of the importance of correctly calculating the minimum wage, particularly in respect of job roles which are peripatetic in nature. Please contact our editorial team if you need further advice regarding this.