In this case the High Court looked at whether an employer's refusal to allow an employee to be accompanied by a representative of a professional defence organisation at an investigation meeting was a breach of mutual trust and confidence.
The claimant was subject to two contracts, in an academic role with a university and in a clinical role with an NHS Foundation Trust. Allegations of misconduct were made against him which related to the conduct of clinical trials which were governed by both contracts. He wished to be accompanied at an investigatory meeting by a representative of the Medical Protection Society. However, the university's disciplinary procedure only allowed him to have a staff member or a trade union representative as his companion. The High Court found that while there was no express or implied term permitting him to be accompanied by his choice of companion the university had seriously damaged the implied term of trust and confidence by its intransigent approach. An important consideration for the court was the fact that the claimant would have been allowed his choice of companion under the Trust's disciplinary procedure, had it initiated disciplinary proceedings rather than the university. However, the claimant had no control over which organisation chose to take the lead in the proceedings and strict adherence to the university's disciplinary procedure would have denied the claimant the opportunity to be accompanied at all. Furthermore the investigating officer was allowed both external and technical support, but the claimant was effectively told he would have to attend the meeting alone which was patently unfair. The court held that the express terms were modified by the overriding obligation of trust and confidence which the university had seriously damaged but not destroyed.
What this means for employers
Unfortunately for employers, the principle that the duty of trust and confidence may require, in some circumstances, that an employee is accompanied by someone who is not a trade union representative or a fellow employee has now been set. While employers should still push back on these requests, as the facts in this case are unusual outside of clinical academics, there may be some circumstances, particularly where an employer itself is relying on additional technical assistance, where an employee might be able to argue that it would be unfair not to let them be accompanied by someone suitably qualified. Employers should also remember that where there are two interlinked contracts both organisations need to address their minds as to how issues, such as discipline or grievances, will be managed and ideally ensure there is consistency between the contracts on these matters. It was noted in this case that the inter-relationship between the University and the NHS Trust procedures for an honorary consultant/academic were not well defined.