The right to be accompanied at a disciplinary hearing resurfaced earlier this year in the High Court.

The High Court has held that an employer breached its implied duty of trust and confidence towards an employee who was not allowed to be accompanied at a disciplinary investigation by his choice of companion.  But don’t despair, the right has not been widened significantly.

‘The Claimant, Professor Stevens, is a highly distinguished clinical academic. In 2004 he was appointed to the Chair of Medicine (Diabetes and Metabolism) at Birmingham University. His contract of employment as one of the University’s 241 clinical academic staff is expressly dependent upon his having and retaining an honorary appointment contract with the Heart of England NHS Foundation Trust (“HEFT”) under which he undertakes clinical duties as a consultant. Professor Stevens receives no remuneration from HEFT under his contract with them, but HEFT provides the University with the funds from which to pay his salary.’

‘Professor Stevens has a job whose main duties are split between academic duties and clinical duties and gives an indicative split of his time between them, which is stated to be “flexible”. One of his listed academic duties and responsibilities is to “lead and co-ordinate a programme of research into the aetiology and management of diabetic neuropathy, foot complications and heart disease complicating diabetes.” His listed clinical duties include leading the multidisciplinary diabetic foot service and multidisciplinary diabetic neuropathy service across HEFT. That is to say, he has a role that includes highly technical and skilled research.’

‘Professor Stevens was the subject to a number of allegations of misconduct that largely relate to an alleged lack of oversight of the team of researchers, inappropriate delegation, a failure to keep proper records or samples of tests, and other matters pertaining to the way in which the trials were conducted or documented. There were no allegations that patients were put at risk or inappropriately treated, though one allegation is that Professor Stevens “failed to ensure that medication was prescribed following proper checks and assessments by health professionals and in accordance with HEFT policies for prescribing”. That said, the University had no choice but to take these matters seriously.’

The university’s disciplinary procedure allows Professor Stevens to be accompanied at any investigatory meetings by an employee of the university or a trade union representative. Although Professor Stevens is not a member of a trade union, he is a member of the Medical Protection Society (MPS), a medical defence organisation.

‘Professor Stevens has explained in his evidence that he has no friends who are employees of the University who would be suitable to accompany him to the meeting. His responsibilities mean that he spends a lot of time away from the University campus, and he has no regular contact or meetings with University employees other than members of his own laboratory. He plainly could not bring with him any member of staff who was involved in the trials that are the subject of the investigations and might be called as a witness. He says that if he is unable to bring Dr Palmer with him, he will be compelled to attend the meeting unaccompanied, and that this would be unfair.’

“On the face of it, Professor Stevens’ request to be accompanied by Dr Palmer appears perfectly reasonable, and the University’s intransigence on the subject seems extraordinary. However, Mr Sutton QC, who appeared on behalf of the University, explained that there is a concern that what the University contends would be a departure from the terms of the contract of employment between itself and Professor Stevens, and in particular a departure from the “Disciplinary Procedure” in the Ordinances agreed back in 2008 between the University and its approved Union, the UCU (formerly the AUT) after four years of hard negotiations, would open the floodgates to similar requests. Put simply, the University does not want to create a precedent.”

However, the High Court concluded that the university’s refusal to allow Dr Palmer to act as a companion seriously damaged the relationship of trust and confidence between the employer and employee and was “patently unfair”.

In coming to this conclusion, the High Court stressed the following:

  • The investigatory meeting is a crucial stage in the disciplinary process.
  • The university enlisted the support of an external HR consultant to attend the investigatory meeting on its behalf, but was forcing Professor Stevens to go into the meeting without any similar support.
  • The allegations are very serious and have potentially serious ramifications for Professor Stevens.
  • The MPS serves a similar function to a union, and has similar know-how and experience.
  • Professor Stevens has a cogent explanation as to why there is nobody in his own department he can approach and, even if he does ask someone from another department, such as the law faculty, to act as companion, that person would not have the necessary technical know-how that Dr Palmer has.
  • Professor Stevens has no influence over whether it is the university or HEFT that takes the lead in the investigation. If HEFT’s disciplinary procedure applies, Professor Stevens’ choice of companion would have been accepted.
  • The university’s justification for its stance is not sufficient to allow it to treat Professor Stevens unfairly. It is difficult to accept that the union would ever object to an employer conferring more favourable treatment on its employees than it has agreed with the union, as long as this does not result in union members being treated less favourably than non-union members.

The High Court concluded that “there is no reasonable and proper cause for the university’s objectively unfair conduct”. It granted Professor Stevens a declaration that the university’s behaviour is a breach of the implied contractual term that the employer should do nothing to damage seriously the relationship of mutual trust and confidence without good and sufficient reason.

Observation

A useful example of the practical operation of the implied term is United Bank v Akhtar [1989] IRLR 507. The case concerned a mobility clause which provided that “the bank may from time to time require an employee to be transferred temporarily or permanently to any place of business which the bank may have in the UK“. The bank sought to rely on that clause to move Mr Akhtar from Leeds to Birmingham at less than a week’s notice, and refused his request that the transfer be postponed for three months because of certain personal difficulties relating to his wife’s health and the sale of his house. Mr Akhtar’s further request to be allowed 24 days’ leave to sort out his affairs before commencing work in Birmingham received no response. His claim for constructive dismissal was upheld.

Knox J, who delivered the judgment of the Employment Appeal Tribunal (“EAT”) dismissing the bank’s appeal, identified the key issue as “whether the bank was in repudiatory breach of contract as a matter of common law in the way in which it sought to exercise its powers under [the mobility clause]”. At [37] he referred to the earlier judgment of Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347 in which he explained that:

to constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the [Tribunal’s function] is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is that the employee cannot be expected to put up with it.

Citation:[2015] EWHC 2300 (QB)    

 

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