Stevens v University of Birmingham

An employer’s implied obligation of mutual trust and confidence qualifies the exercise of express contractual rights. Conduct permitted by disciplinary rules may breach that obligation where it seriously damages the employment relationship and lacks reasonable and proper cause.

Procedural safeguards in a disciplinary procedure may be contractual where expressed as enforceable rights. A specified list of companions does not necessarily prevent an investigator from permitting another person to attend. Whether refusal is lawful depends on the circumstances, including the seriousness of the allegations, the practical availability of meaningful assistance, and any inequality of procedural support. A general concern about precedent or collective relations is not, without more, reasonable and proper cause for objectively unfair treatment.

Professor Stevens was a clinical academic employed by the University of Birmingham and also held an honorary consultant contract with Heart of England NHS Foundation Trust. His employment and clinical roles overlapped in relation to clinical trials.

The University investigated alleged research-governance and good-clinical-practice breaches under its disciplinary Ordinance. The applicable provision gave him a contractual right to be accompanied at an investigatory meeting by a member of University staff or a trade union representative. He sought to bring Dr Palmer, a representative of the Medical Protection Society, who had supported him throughout the investigation. The University refused.

The issues were whether the University was contractually required to apply the Trust’s procedure, whether Dr Palmer fell within an implied additional category of companion, and whether refusal to permit his attendance breached the implied obligation of trust and confidence.

1. Outcome. The court granted a declaration that, in the particular circumstances, the University’s refusal to allow Dr Palmer to accompany Professor Stevens to the investigatory meeting breached the implied and overarching term of mutual trust and confidence.
2. Clause C50 did not require the University to apply the Trust’s disciplinary procedure, or the more favourable parts of it. The clause contemplated separate disciplinary regimes and did not establish that one procedure prevailed in cases of overlap.
3. Under ordinary contractual principles, the relevant provisions of the University’s Ordinance were contractual. Paragraph 3.21.35 used mandatory language and conferred specific rights concerning information about allegations, nominated witnesses, documents, accompaniment, progress and outcome.
4. The express right to be accompanied by a member of staff or trade union representative did not itself create an implied general right to an equivalent professional-defence representative. The proposed term was vague, would apply across the board, and could not properly be inferred from the collective agreement.
5. Nevertheless, the investigator retained a discretion to permit another companion. The companion’s function was to safeguard procedural fairness and assist the employee to give a full and sufficiently clear account, rather than to act as an advocate. The companion might therefore need suitable technical knowledge.
6. The implied obligation of trust and confidence operates independently of, and in addition to, express terms. The test is whether the employer’s conduct, viewed objectively, is likely seriously to damage the relationship, and whether there is reasonable and proper cause for it. The investigation was serious, Professor Stevens had no practical choice of a suitable staff companion, the University had its own external and technical support, and Dr Palmer had already assisted him. These circumstances created an objective inequality of arms and made refusal conspicuously unfair.
7. The University’s concern about setting a precedent or upsetting the recognised union did not constitute reasonable and proper cause. The court therefore found a breach. An injunction was not granted because the court expected the University to comply with the declaration.