22 November 2015
The choice of representative at a disciplinary investigation
Under Section 10 of the Employment Relations Act 1999, when a worker is required or invited to attend a disciplinary or grievance hearing, they have a statutory right to be accompanied by any companion they choose, provided that person is from one of the three categories listed – either an individual employed by a trade union, an unpaid official certified by the union or a fellow worker.
In Stevens v University of Birmingham, the High Court found that, given the particular facts of the case, it would be unfair for the university to insist on adhering to the literal terms of the employment contract of a highly distinguished clinical academic, thus denying him the right to be accompanied by the representative of his choice at an investigation that was potentially the precursor to disciplinary action.
Professor Stevens had been suspended by the university from any duties associated with research whilst it carried out an internal disciplinary investigation into allegations of misconduct with regard to the conduct of five clinical trials involving patients with diabetes. This led to further allegations of misconduct being made, in consequence of which he was suspended from all his duties at the university.
A formal investigation into the matter was arranged and Professor Stevens was told that, if he wished, he could be accompanied at the meeting by a trade union representative or an employee of the university, as specified in his employment contract. Professor Stevens felt that there was no fellow employee who would be suitable to accompany him and he is not a member of a trade union. He is, however, a member of the Medical Protection Society (MPS), a leading medical defence organisation. He wished to be accompanied at the investigation meeting by an MPS representative who had been supporting him ever since the initial allegations were made, otherwise he would have to attend the meeting unaccompanied.
Birmingham University refused his request on the ground that to do so would be a departure from the terms of his employment contract and the university's disciplinary procedure, and would set a precedent that 'could open the floodgates to similar requests' in the future.
Professor Stevens sought a declaration from the High Court that he was entitled to be accompanied by the representative of his choice.
In the Court's view, given the individual facts of the case, were the university to refuse his request to be accompanied by his chosen representative, it would be a breach of the 'implied and overarching contractual term' that the employer should do nothing to seriously damage the relationship of mutual trust and confidence that exists between employer and employee without good and sufficient reason.
Accordingly, the Court granted a declaration to that effect.