Article published by People Management Daily and HR-inform
In the recent case of Stevens v University of Birmingham, the High Court had to decide whether the implied term of trust and confidence was so important that it outweighed an employer’s duty to comply with its own disciplinary procedure. This involved the court having to consider the potentially serious consequences for the employee, in relation to both his reputation and career, if his employer refused to allow him to be accompanied by his chosen companion at an investigatory meeting into allegations of misconduct.
Under the Employment Relations Act 1999 (section 10), employers are obliged to allow their staff to be accompanied by a trade union representative or work colleague at a disciplinary hearing. This is endorsed by the Acas code on disciplinary and grievance procedures. Employers are also required to act in accordance with the mutual duty of ‘trust and confidence’ implied into all employment contracts (this has the purpose of encouraging employers and employees to treat each other with trust and respect). The significance of this implied term is demonstrated by the fact that the courts have frequently held that any breach of it will inevitably bring the employment contract to an end.
Stevens was employed by the University of Birmingham as the chair of medicine, an academic post that was dependent on him also having an honorary contract with an NHS Foundation Trust. He divided his time between his clinical and academic duties, one of which included overseeing clinical trials that were jointly sponsored by the university and the trust. He was subject to the disciplinary procedures of both these organisations.
Stevens was invited to an investigatory meeting by the university, following allegations of misconduct in relation to the trials. An express term in the university’s disciplinary procedure allowed him to be accompanied by a trade union representative or staff member, in line with the legislation. However, the NHS trust’s procedure also allowed him to be accompanied by a representative from his medical defence organisation, the Medical Protection Society.
On the basis that he was not a trade union member and had no suitable colleagues to accompany him from the university, Stevens asked to be supported by his MPS representative, in accordance with the trust’s procedure. The university would not agree to this, even though this refusal would result in him having to attend the meeting alone. Stevens asked for a declaration from the High Court that he was permitted to be accompanied by a person who did not meet the criteria set out in the university’s disciplinary policy.
The court held that although Stevens had no contractual right to bring an MPS representative into the investigatory meeting under the university procedure, the university’s refusal to allow him to bring his chosen representative was patently unfair and amounted to a breach of the overriding contractual term of trust and confidence. The judge made a declaration to this effect. However, the High Court held that the university’s breach of trust and confidence was not serious enough to end the employment relationship.
The case serves as an important warning to employers that they need to exercise any ‘discretions’ (power to make decisions based on opinion) in an employment contract carefully, in order to maintain minimum standards of fairness. In fact, the need to keep within express contractual terms will be outweighed by the overriding obligation to act in accordance with the implied term of trust and confidence. When it comes to a particular set of circumstances, employers should always consider the overall fairness of the procedure they are adopting, particularly where a failure to do so could have significant consequences for the employee concerned and his or her career.
This case also marks a departure from the established position that any breach of the implied term of trust and confidence will be so fundamental that it will immediately bring an employment contract to an end.
This was first published in the PM Daily and HR-inform in August 2015.
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