Right to be accompanied in investigatory meetings
Solicitor, Veale Wasbrough Vizards
The High Court has held that a university's refusal to allow an employee to be accompanied by a representative of a professional defence organisation at an investigation meeting was unfair and breached the implied term of trust and confidence.
In Stevens v University of Birmingham, Mr Stevens was employed by the University of Birmingham as a clinical academic. His job involved both academic and clinical duties, including overseeing the conduct of five clinical trials.
Following an external inspection by a regulatory body and an internal investigation into allegations of misconduct relating to the trials, Mr Stevens was suspended. Mr Steven's employment was governed under two contacts, one in relation to his academic role with the university and the other in relation to his clinical role with the NHS Foundation Trust. The alleged misconduct related to both contracts, but the university took the lead in the disciplinary proceedings.
The contract with the university permitted an employee to be accompanied by a staff member or trade union representative at an investigatory meeting. The contract with the trust did not refer to its disciplinary procedure, but within the Trust's disciplinary procedure there was a right to be accompanied by a companion which included a representative of a defence organisation. Mr Stevens wished to be accompanied by a representative of the Medical Protection Society (MPS), given he was not a trade union member nor was he close to any colleagues save to the colleagues that would be called as witnesses. The university refused this request.
Mr Stevens sought a declaration from the High Court that he was allowed to be accompanied at the investigatory meeting by a MPS representative. The High Court found that there was no contractual right to be accompanied by a MPS representative. However it found that the university's refusal to allow Mr Stevens his choice of companion was a breach of the implied term of mutual trust and confidence. The court focused on the seriousness of the allegations and that effectively by refusing Mr Stevens' companion request, the university had blocked Mr Stevens from being accompanied. It was found to be "patently unfair" to make Mr Stevens attend the meeting alone. It was also noted that Mr Stevens would have been allowed his companion choice had the Trust initiated the proceedings and that Mr Stevens had no control over which organisation led the investigation. As such, the High Court found that the university's refusal to allow Mr Stevens to be accompanied by his choice of companion damaged the relationship of trust and confidence between the parties.
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This case is slightly unusual as it concerned the interpretation of an employee's contractual (as opposed to statutory) right to be accompanied to a disciplinary meeting. It is also fact specific, with the court noting in particular the potential that, if proven, the disciplinary allegations could have ended Mr Stevens' career.
The case is nonetheless a useful reminder for employers to consider requests by employees to be accompanied very carefully. Employees have a statutory right to be accompanied at a disciplinary hearing by a colleague or trade union representative, but there may be times when it is appropriate to consider agreeing to an employee's request to be accompanied by someone falling outside of these categories. Indeed ACAS has now amended its non-statutory guidance to make clear that employers can allow employees to be accompanied by companions other than trade union representatives or work colleagues. It should however be stressed that each case will depend on its facts and if in doubt, it is advisable to obtain clear and early legal advice.