Refusal to Allow Employee’s Choice of Companion Breached Implied Term of Trust and Confidence


4 mins

Posted on 25 Aug 2015

An employer breached the implied term of trust and confidence when it refused to allow an employee to be accompanied to a disciplinary investigation meeting by a companion who fell outside the categories permitted by its disciplinary procedure.

Speedread

An employer breached the implied term of trust and confidence when it refused to allow an employee to be accompanied to a disciplinary investigation meeting by a companion who fell outside the categories permitted by its disciplinary procedure. As he was not a trade union member and had a good reason why he could not be accompanied by a staff member, he was effectively being denied any choice of companion. 

Employers should consider allowing an employee to be accompanied by someone falling outside specified categories in certain circumstances. As well as breaching the implied term of trust and confidence, failure to do so could render any subsequent dismissal unfair.

Facts

In Stevens v University of Birmingham, Professor Stevens was employed by the University as Chair of Medicine. Following an inspection by a regulatory body, the University started an investigation into allegations of misconduct in connection with clinical trials he was overseeing. 

Under the University’s disciplinary procedure, Professor Stevens had the right to be accompanied at an investigatory meeting by a staff member or trade union representative. Professor Stevens was a member of the Medical Protection Society (MPS), a medical defence organisation. He asked to be accompanied by a representative of the MPS, Dr Palmer. The University refused as Dr Palmer was not a member of staff or a trade union representative. 

Professor Stevens applied to the High Court for a declaration that he was entitled to be accompanied by Dr Palmer. 

Decision

The High Court ruled that Professor Stevens had no contractual right to be accompanied by Dr Palmer. However, the University had acted in breach of the implied term of trust and confidence by not allowing him to be accompanied by Dr Palmer. 

The seriousness of the allegations could result in disciplinary action potentially ending Professor Stevens’s career. It was important that he should have assistance from someone with the right experience and knowledge. As Professor Stevens was not a trade union member and the only staff he knew well at the University would be witnesses in the investigation, he was effectively being denied any choice of companion. 

Dr Palmer was in a similar position to a trade union representative and as he had assisted Professor Stevens up to this point, he was best placed to accompany him to the investigation meeting. It would be patently unfair for Professor Stevens to attend the meeting alone. 

The Court rejected the employer’s argument that making an exception for Professor Stevens would lead to requests from other employees for similar treatment. There was no justification for the University’s unfair treatment of Professor Stevens and the refusal to allow Dr Palmer to accompany him breached the implied term of trust and confidence. 

Implications

Although this case turned to an extent on its somewhat unusual facts, it does open up the possibility that employees who are denied their choice of companion might be able to argue successfully that their employer has acted in breach of the implied term of trust and confidence, entitling them to resign and claim constructive unfair dismissal. 

Employees have the statutory right to be accompanied by a colleague or trade union representative at disciplinary and grievance hearings (although not at investigation meetings). Likewise, disciplinary and grievance policies may provide for the right to be accompanied by particular categories of representative. However, there may be cases where there is no one suitable in those categories who can accompany an employee or where the employee needs external assistance from a professional body in order to deal with complex allegations. In such cases, employers should consider allowing an employee to be accompanied by someone falling outside the specified categories. As well as breaching the implied term of trust and confidence, failure to do so could render any subsequent dismissal unfair. 

If in doubt, employers should seek legal advice.

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