21 August 2015 #Employment
In the recent case of Stevens v University of Birmingham, the High Court has held that the University of Birmingham breached the implied term of trust and confidence by not allowing one of its Professors to be accompanied to a disciplinary investigation meeting by a companion of his choice (Stevens v University of Birmingham  EWHC 2300).
Professor Stevens, who was facing allegations of misconduct, asked to be accompanied at an investigation meeting by Doctor Palmer, a representative from the Medical Protection Society (a medical defence organisation of which the Professor was a member). Whilst there’s no statutory right to be accompanied at investigation meetings the University’s disciplinary policy allowed this provided the companion was a trade union representative or colleague. The Professor’s choice of companion was rejected by the University as Doctor Palmer did not fall within these categories.
The High Court found that the University’s refusal was a breach of the implied term of trust and confidence. Of particular relevance was the fact that the Professor was subject to two contracts, one with the University and one with the Trust. Each organisation had its own disciplinary procedure and had the Trust instigated proceedings instead of the University (which it could have done) Doctor Palmer would have been allowed to attend.
In addition, the allegations against the Professor were potentially career-ending, the Professor had given sound reasons for wishing to widen his choice of companion and other witnesses were granted flexibility. The Tribunal rejected arguments from the University that allowing a departure from the written procedure could upset the union and set a precedent for others.
The implication of the case is that, whilst the statutory right to be accompanied at disciplinary hearings refers only to trade union representatives or work colleagues, employers should be mindful that the contractual implied duty of trust and confidence could require the employer to allow an employee in disciplinary or grievance hearings to be accompanied by other persons, in certain circumstances, depending on the wording of the disciplinary or grievance policy.
For example, as here, an employee may require external assistance from a professional body in dealing with complex allegations where work colleagues are not able/willing to assist. Where an employee has very good reasons for asking for external representation and the employer refuses without any or good reason, the implied duty of trust and confidence may become relevant. Hence, it is advisable to give reasons for declining a request to be accompanied by someone who is neither a work colleague or union representative.
In this case, Professor Stevens felt unable to ask colleagues to accompany him to the meeting as he had only a few friends at work and they were all being called as witnesses in the investigation.
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 itself.
For more detail on how Forbury People can help your business in dealing with disciplinary or grievance procedures contact Graham Coleshill at GColeshill@clarkslegal.com.