The High Court has delivered an important judgment on handling requests to be accompanied at investigatory meetings in Stevens v University of Birmingham (2015).
Professor Stevens is the Chair of Medicine at Birmingham University. The role includes both clinical and academic duties, and he holds an honorary contract as a consultant with Heart of England NHS Foundation Trust (‘HEFT’).
Professor Stevens was responsible for a number of clinical trials, jointly sponsored by both the University and HEFT. These trials were subject to inspection by the Medicines and Healthcare Products Regulatory Agency (‘MHRA’), and in the run up to one such inspection, Professor Stevens identified and reported a number of potential breaches of Good Clinical Practice. The MHRA inspection also reported a number of breaches.
Professor Stevens was subsequently invited to an ‘investigation meeting’ by the University as part of a disciplinary investigation into alleged misconduct. He was told that further information in relation the allegations would be put to him and he could make a statement, which would form part of the evidence submitted to the disciplinary panel, if the case proceeded. Under the University’s disciplinary procedure, he had a contractual right to be accompanied by a fellow employee of the University or a trade union representative at that stage but he could only be legally represented at a later disciplinary hearing.
The problem for Professor Stevens was that he was not a member of his trade union, the BMA. Due to his clinical duties he knew no one at the University he could ask to accompany him, other than members of his own laboratory who might be called as witnesses. The University refused to allow his MPS representative to accompany him, so he brought proceedings in the High Court seeking a declaration about his permitted companion.
The High Court Decision
The High Court held that he was contractually entitled to be accompanied by his MPS representative at the investigatory meeting, and that the University’s refusal was a breach of the implied duty of trust and confidence. The High Court noted that:
- it was outside Professor Stevens’ control as to which body lead the investigation. If it had been HEFT, he was entitled to be accompanied by a defence organisation (such as the MPS), a friend, partner or spouse; and
- during the investigation process, the University allowed witnesses to be accompanied by someone outside that limited category (such as a HR representative).
The High Court held that it was ‘patently unfair’ not to allow the MPS representative to attend, effectively forcing the Professor to attend alone. The court declared that the University’s refusal amounted to a breach of contract, in particular the overriding obligation of trust and confidence.
The right to be accompanied, as set out in the ACAS Code of Practice, is the minimum protection afforded to employees and it is often extended by a contractual right, as was the case here. Whilst the High Court held that the contract did not give the Professor an express right to be accompanied by his defence organisation, the ruling that the refusal to allow a reasonable request may be a breach of contract may have far-reaching consequences. Where an employer breaches the implied duty of trust and confidence, an employee is entitled to resign and bring a claim for constructive dismissal.
Employers therefore need to be careful when considering requests to be accompanied, particularly where there could be significant consequences for the employee’s career as a result of disciplinary proceedings. In this case, the Professor was in an unusual situation as his working arrangements meant that he had few colleagues to choose from, and those he could were likely to be involved as witnesses. Whilst the facts of are reasonably unique there could be an analogous situation for senior/executive employees who are under investigation on account of legitimate confidentiality/reputational concerns limiting appropriate internal companions.
This case does not guarantee a clinical member of staff the right to be accompanied by their defence organisation or legal representative during an investigation process but it does mean that employers will need to give even more careful consideration to companion requests.