In Stevens v University of Birmingham, Professor Stevens (S) employment depended upon him having an honorary appointment with the Heart of England NHS Foundation Trust (HEFT). Part of S’s responsibilities with HEFT was conducting a clinical trial, ensuring compliance with Good Clinical Practice (GCP). An inspection revealed various breaches of GCP. S was suspended and he asked to be accompanied by Dr Palmer (P) at the investigation as P had been supporting him and is familiar with clinical trials. The University rejected S’s request on the basis that the relevant disciplinary procedure, which had been agreed with the union, only allowed S to bring along another member of staff or a union representative as a companion, and P was neither. S argued that he has no friends who are University employees who would be suitable and could not bring any member of staff involved in the trial who might be called as a witness. Therefore, if he could not bring P, he would be compelled to attend the meeting unaccompanied; that would be unfair and as such, was a breach of trust and confidence.

The High Court held that there was no express or implied contractual right requiring the University to allow P to attend as a representative. However, on the facts of this particular case, it would be clearly unfair for the University to deny S the accompaniment of P at the investigatory meeting. The seriousness of the allegations could result in disciplinary action which could be career-ending and it was extremely important for S to have a companion with the right experience and knowledge to provide support. There was no justification for the University’s actions and its behaviour was a breach of the implied contractual term that the employer should do nothing to seriously damage the relationship of mutual trust and confidence without good and sufficient reason. The Court would therefore grant a declaration to this effect and anticipated that the University would abide by its terms.

This case is unique in the sense that the reliance on showing a breach of the implied term of trust and confidence is not in circumstances to support a claim of constructive dismissal, but where it is being used to try and force an employer to adopt a particular course of action during employment. It demonstrates how far employees are prepared to go when the stakes are high and when the consequences of a disciplinary process could be potentially career-ending. The case also shows that there may be times when an employer will have to consider departing from normal procedure, not only to show a ‘seen to be fair’ approach, but also when there is a need for the employee who is the subject of a hearing to have a representative who can bring added technical expertise to the proceedings.

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.