In Stephens –v- University of Birmingham the High Court had to make a decision as to whether denying an employee a choice of representative at a disciplinary hearing other than a union representative or a colleague would be sufficient to breach the implied term of trust and confidence.
Mr Stephens was an academic at the University when allegations were raised against him relating to his role as Chief Investigator of clinical trials of patients suffering from diabetes. During the investigation he was supported by a representative from the Medical Protection Society. The matter was then escalated to a disciplinary investigation. He was not a member of a union nor did he have a colleague employed by the University that would be suitable to accompany him to the investigative meeting. He therefore requested that he should continue to be represented by Dr Palmer of the Medical Protection Society who had assisted him up to that point. The University refused.
The Court held that the University had breached the implied term of trust and confidence for 4 different reasons including the seriousness of the allegations, that the Medical Protection Society served a similar function to a union and Mr Stephens had been permitted the assistance of Dr Palmer up to that point.
This is a clear example of where companies need to seriously consider requests to have alternative representatives at and during a disciplinary process. It should be remembered that the offer of a trade union representative or a colleague is statutory minimum requirement.