Posted by Gemma Ospedale, Partner
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Refusal of choice of representative a breach of contract
In Stephens v University of Birmingham the High Court has ruled that it was a breach of the implied term of trust and confidence by the employer in refusing the employee the right to be accompanied by a representative of their choice for the purposes of attending an investigatory meeting which could lead to disciplinary action.
Allegations were made against the Claimant with regard to his role in some clinical trials which resulted in the university scheduling a meeting to investigate these charges. The university’s procedures expressly allowed only for a union representative or a university employee to attend the meeting as a representative but Professor Stephens wanted someone from the Medical Protection Society to represent him. This person was neither a union representative nor an employee. The university therefore refused. Professor Stephens consequently brought proceedings claiming breach of contract which were upheld. The Court considered that the university’s refusal to allow the Claimant to be accompanied by the companion of his choice was “conspicuously unfair” and as such was likely to damage the relationship of trust and confidence for no good reason. The role of companion was described as “to act as a counterweight in terms of basic procedural fairness, i.e. to fulfil the same supporting role for the employee as the external HR consultant (and technical adviser, if there is one) are presumably intended to fill for the employer… he or she is there to see fair play…”.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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