Stevens v University of Birmingham [2015] EWHC 2300 (QB)

Case No HQ15X02256[2015] EWHC 2300 (QB)IN THE HIG H COURT OF JUSTICEQUEEN'S BENCH DIVISIONFVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2015
Before
The Honourable Mrs Justice Andrews DBE
Between
MARTIN JOHN STEVENSClaimantUNIVERSITY OF BIRMINGHAMDefendant
Jeremy Hyam (instructed by RadcliffesLeBrasseur) for ClaimantMark Sutton QC (instructed by Mills & Reeve LLP) for DefendantHearing Hearing dates: 21-22 July 2015
Judgment
[1]The Claimant, Professor Stevens, is a highly distinguished clinical academic. In 2004 he was appointed to the Chair of Medicine (Diabetes and Metabolism) at Birmingham University. His contract of employment as one of the University’s 241 clinical academic staff is expressly dependent upon his having and retaining an honorary appointment contract with the Heart of England NHS Foundation Trust (“HEFT”) under which he undertakes clinical duties as a consultant. 120 other clinical academic staff are employed at consultant level by the University, out of a total of 6320 academic staff. Professor Stevens receives no remuneration from HEFT under his contract with them, but HEFT provides the University with the funds from which to pay his salary.[2]Professor Stevens has a job plan which sets out his main academic duties and responsibilities and his main clinical duties and responsibilities, and gives an indicative split of his time between them, which is stated to be “flexible”. One of his listed academic duties and responsibilities is to “lead and co-ordinate a programme of research into the aetiology and management of diabetic neuropathy, foot complications and heart disease complicating diabetes.” His listed clinical duties include leading the multidisciplinary diabetic foot service and multidisciplinary diabetic neuropathy service across HEFT.[3]As part of his research activities, Professor Stevens has been the Chief Investigator (“CI”) responsible for the scientific and overall conduct of five randomised controlled clinical trials of investigational medical products (“the trials”). All the patients taking part in the trials were already receiving NHS treatment at Heartlands Hospital. Such trials are experiments undertaken to compare alternative interventions on patients with a defined medical condition – in this case, diabetes. They involve screening for suitable patients, confirming their eligibility, randomly allocating them to one or other intervention, following them through a defined timeframe, and assessing and comparing their outcomes. Since the allocation of a drug to a particular patient is made on a random basis, any observed differences in outcomes can be confidently attributed to the difference in interventions, rather than to pre-existing differences between the groups. For this reason, trials of this type are regarded as the “gold standard” method of evaluating the impact of interventions on patient health.[4]Professor Stevens has given a description of each of the five trials in paragraphs 23-34 of his first witness statement, which it is unnecessary for me to reproduce in this judgment. The University does not accept that his description is comprehensive or entirely accurate, but it agrees that it conveys a sufficient impression of the background facts for present purposes. All but one of the trials are jointly sponsored by HEFT and the University; the remaining trial is sponsored by the University alone. It is the sponsor’s responsibility to be satisfied that the study meets the standards set out in the regulations and that arrangements are put in place and maintained throughout for management, monitoring and reporting on the trial. Where there are co-sponsors, they may agree to divide certain defined sponsor responsibilities between them, and that is what HEFT and the University did.[5]The roles of the University and HEFT differed in relation to each of the trials. For example, in respect of two of the five trials, HEFT was responsible for provision of the CI, for the study protocol, and for ensuring compliance with Good Clinical Practice (“GCP”); in the third trial those responsibilities all fell to the University. The evidence before me in respect of the remaining two trials is unclear as to where those responsibilities lay. In all of the trials the University was responsible for the registration and administration of the study. The University was generally responsible for pharmacovigilence (the process of monitoring the safety of all medicinal products used as part of a clinical trial), while HEFT was generally responsible for provision of a pharmacy service for, and the sourcing and supply of, the study drugs.[6]The Medicines and Healthcare Products Regulatory Agency (“MHRA”), an executive agency of the Department of Health, is responsible for ensuring that clinical trials are carried out in accordance with accepted standards, and for safeguarding patient interests. The MHRA is entitled to carry out inspections, including visits to the premises at which a trial is being carried out, and reviews of documentation, including records held at the site of the trial or at the sponsor’s premises.[7]In December 2013 concerns that there had been breaches of GCP were initially raised by Professor Stevens himself and drawn to HEFT’s and the University’s attention in the course of preparing for an MHRA inspection of HEFT as sponsor involving a review of Trial E (one of the trials in which HEFT was responsible for ensuring compliance with GCP). This prompted the University to offer support and advice. Professor Stevens liaised with Ms Wilma van Riel, an employee of the University from the College of Medical and Dental Sciences, in preparation for the inspection, and with a view to addressing the problems that had been identified and ensuring that they did not recur.[8]Following the MHRA inspection of trial E and two of the other trials, Trials P and V, in which various breaches of GCP were found and reported, the University suspended Professor Stevens from any duties associated with research with effect from 20 December 2013, whilst it carried out an internal disciplinary investigation into allegations of misconduct. At that stage, the suspension was partial and Professor Stevens was still able to engage in clinical activities and to carry out his teaching responsibilities.[9]At around the same time, the Pro-Vice Chancellor of the University and Head of the College of Medical and Dental Sciences, Professor Jenkinson, commissioned an internal “Management Review” by a Professor Deeks (a Professor of Bio-Statistics) in respect of the research activities of the team working under Professor Stevens in all five trials, in order to determine whether there appeared to be prima facie evidence of any breach of the University’s Code of Practice for Research (“the Code”) sufficient to warrant any disciplinary action against them, or what was mischaracterised in Professor Deeks’ report as an “extension of the existing disciplinary action” against Professor Stevens. There is, as yet, no such disciplinary action. The whole purpose of a disciplinary investigation is to determine whether or not any disciplinary action should be taken, and if so, at what level.[10]In February 2014, an email was sent to the General Medical Council (“GMC”) by Professor David Adams which, on its face, purported to be from both the University and HEFT, informing the GMC that they had each decided to suspend Professor Stevens from his research activities and that the matters were currently the subject of internal investigation by both the University and HEFT. In fact, it is the University that has been responsible for any investigation from a disciplinary perspective.[11]Professor Deeks’ report, completed in June 2014, did lead to further allegations of misconduct being added to those that had already been made against Professor Stevens, in consequence of which he was suspended from all his duties at the University on 11 July 2014.[12]There are 28 separate alleged breaches of the Code listed in total under the five trials. Professor Deeks has very fairly stated in the introduction to his report that unlike trials E, P and V, where there have been MHRA inspections, the judgments for trials R and T are those of only one assessor, and should be treated with a greater degree of caution until others have confirmed the assessments. At the time when these proceedings commenced, Professor Stevens had not seen copies of the MHRA reports, and therefore he did not know what they said about the conduct of the three trials to which they related.[13]For present purposes it is unnecessary to go into any detail about the nature of the allegations of misconduct, but they largely relate to an alleged lack of oversight of the team, inappropriate delegation, a failure to keep proper records or samples of tests, and other matters pertaining to the way in which the trials were conducted or documented. I have seen no allegations that patients were put at risk or inappropriately treated, though one allegation is that Professor Stevens “failed to ensure that medication was prescribed following proper checks and assessments by health professionals and in accordance with HEFT policies for prescribing”.[14]The University had no choice but to take these matters seriously. As Mrs Carolyn Pike, the University’s Director of Legal Services, explains in her witness statement, findings (and consequential reports to the MHRA) of widespread serious breaches of the Code could have significant ramifications for the University, including restrictions being placed on existing clinical trials, and current (or even historic) research being declared invalid or unreliable. No-one has suggested that the situation did not warrant formal investigation. However, because the investigation is potentially the precursor to disciplinary action, and that action could lead to sanctions including dismissal, not to mention the possibility of a GMC investigation which might lead to the loss of Professor Stevens’ registration, it is vitally important that it be carried out fairly.[15]In a letter to Professor Stevens dated 16 February 2014 from a Ms Jane Capewell, an external HR consultant not employed by the University, he was informed that Professor Derek Alderson would be undertaking the role of Investigating Officer, supported by Ms Wilma van Riel, QA Manager, on behalf of the College of Medical and Dental Sciences, and by Ms Capewell herself. The letter informed Professor Stevens that the investigator wished to hold an “investigation meeting” with him as soon as possible, and that its purposes would be to provide him with further information with regard to the allegations of misconduct against him and “to give you an opportunity to make a statement which will form part of the evidence to be submitted to a disciplinary panel, should it be found that there is a case to answer”. The letter emphasised that the meeting was not a disciplinary hearing, but asked Professor Stevens not to discuss the allegations with any potential witnesses whilst the investigation was ongoing.[16]Subsequent queries raised by Professor Stevens as to the role to be played in the investigation by Ms van Riel (who is a potential witness because she had been involved in assisting Professor Stevens in dealing with the breaches of good practice that he had reported prior to and during the first MHRA inspection) led to Ms Capewell describing her as a “technical adviser” to Professor Alderson on the basis that this is “a complex technical matter”. Ms Capewell said that in that capacity Professor Alderson may invite Ms van Riel to attend some or all of the investigation meetings as he believes necessary and appropriate.[17]The letter also told Professor Stevens that if he wished, he could be accompanied at the investigation meeting by a trade union representative or an employee of the University. Professor Stevens is not a member of a trade union, but he is a member of the Medical Protection Society (“MPS”), a leading medical defence organization. Membership of such an organization is no longer a compulsory requirement of his contract with HEFT, but Clause 3 of that contract expressly advises him to maintain medical defence membership.[18]Even if Professor Stevens had been a member of the British Medical Association (“BMA”), which is the doctors’ trade union, they would not have sent anyone to accompany him to the meeting if he had requested them to. The reason for this is that there is an informal arrangement or understanding between the BMA and the MPS that if the doctor concerned is a member of both organizations, the MPS assists with professional conduct issues such as these. The same arrangement naturally applies if the doctor concerned belongs to the MPS but not the BMA, as is the case with Professor Stevens.[19]The reason for these proceedings is that Professor Stevens wishes to be accompanied to the investigation meeting by Dr Roger Palmer, an MPS representative who has been supporting him ever since the initial allegations were made in December 2013. Dr Palmer was previously employed as a Fellow of the Medical Research Council, and has considerable familiarity with clinical trials. He has an LLM degree in Medical Law and Ethics, but no professional legal qualification. Professor Stevens’ position is that Dr Palmer is equivalent to, and would be fulfilling the same role as, a trade union representative. The University has refused to allow Dr Palmer to be present. Its position is that Professor Stevens is only allowed to bring along another member of staff or a union representative, and Dr Palmer is neither. The University is unwilling to move from that stance.[20]Professor Stevens has explained in his evidence that he has no friends who are employees of the University who would be suitable to accompany him to the meeting. His clinical responsibilities mean that he spends a lot of time away from the University campus, and he has no regular contact or meetings with University employees other than members of his own laboratory. He plainly could not bring with him any member of staff who was involved in the trials that are the subject of the investigations and might be called as a witness. He says that if he is unable to bring Dr Palmer with him, he will be compelled to attend the meeting unaccompanied, and that this would be unfair.[21]On the face of it, Professor Stevens’ request to be accompanied by Dr Palmer appears perfectly reasonable, and the University’s intransigence on the subject seems extraordinary. However, Mr Sutton QC, who appeared on behalf of the University, explained that there is a concern that what the University contends would be a departure from the terms of the contract of employment between itself and Professor Stevens, and in particular a departure from the “Disciplinary Procedure” in the Ordinances agreed back in 2008 between the University and its approved Union, the UCU (formerly the AUT) after four years of hard negotiations, would open the floodgates to similar requests. Put simply, the University does not want to create a precedent.[22]It is in these unhappy circumstances that I have to decide whether Professor Stevens does or does not have a contractual entitlement to be accompanied by Dr Palmer, and whether the University’s refusal to accede to his request in these circumstances is a breach of the overriding contractual obligation of trust and confidence that governs the relationship between employer and employee.

THE OBLIGATION OF TRUST AND CONFIDENCE

[23]It is by now well-established that a contract of employment is subject to an implied term (by operation of law) that an employer must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of mutual trust and confidence between itself and the employee: see e.g. Malik and Mahmud v BCCI [1998] AC 20, Gogay v Hertfordshire County Council [2000] IRLR 703; Bristol City Council v Deadman [2007] IRLR 888; and, more recently, The Leeds Dental Team Ltd v Rose [2014] ICR 94, an egregious example of an employer’s breach of the implied duty to maintain trust and confidence, in the way in which it handled a disciplinary process.[24]The implied obligation of trust and confidence was described by Lord Steyn in his dissenting speech in Johnson v Unisys Ltd [2003] 1 AC 518 at [24] as an “overarching obligation implied by law as an incident of the contract of employment.” Although the remaining members of the House of Lords decided that the obligation did not extend to the exercise of a power of dismissal, they did not dispute its existence or disagree with Lord Steyn’s formulation. At [36] Lord Hoffmann described the term of trust and confidence as “the most far reaching” of the terms that the common law implies in a contract of employment. He went on to say at [37] that although such an implied term could supplement the express terms of the contract, it could not contradict them. In Eastwood v Magnox Electric Plc [2005] 1 AC 503 Lord Nicholls said at [11] that the term means, in short, that an employer must treat his employees fairly.[25]A useful example of the practical operation of the implied term is United Bank v Akhtar [1989] IRLR 507. The case concerned a mobility clause which provided that “the bank may from time to time require an employee to be transferred temporarily or permanently to any place of business which the bank may have in the UK”. The bank sought to rely on that clause to move Mr Akhtar from Leeds to Birmingham at less than a week’s notice, and refused his request that the transfer be postponed for three months because of certain personal difficulties relating to his wife’s health and the sale of his house. Mr Akhtar’s further request to be allowed 24 days’ leave to sort out his affairs before commencing work in Birmingham received no response. His claim for constructive dismissal was upheld.[26]Knox J, who delivered the judgment of the Employment Appeal Tribunal (“EAT”) dismissing the bank’s appeal, identified the key issue as “whether the bank was in repudiatory breach of contract as a matter of common law in the way in which it sought to exercise its powers under [the mobility clause]”. At [37] he referred to the earlier judgment of Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347 in which he explained that: to constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is that the employee cannot be expected to put up with it.”[27]Knox J went on to say at [50] that it was “inherent in what fell from Mr Justice Browne-Wilkinson that there may well be conduct which is either calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, which a literal interpretation of the written words of the contract might appear to justify, and it is in this sense that we consider that in the field of employment law it is proper to imply an over-riding obligation in the terms used by Mr Justice Browne-Wilkinson, which is independent of, and in addition to, the literal interpretation of the actions which are permitted to the employer under the terms of the contract.”[28]It is important not to confuse this implied term with a different implied term that arises as a matter of law specifically in the context of the exercise of a contractual discretion, for example, the discretion to award a bonus to the employee. It is an implied term that such a discretion will be exercised in good faith and not arbitrarily, capriciously or irrationally: see e.g. Horkulak v Cantor Fitzgerald International [2004] EWCA Civ 1287, [2005] ICR 402. In an earlier passage in United Bank v Akhtar the EAT decided the case on the basis of a breach of that implied term as well, see the judgment at [44] to [48].[29]The same principles come into play when the employer has agreed to consider a request by the employee that he should waive his strict contractual rights: Kulkarni v Milton Keynes Hospital NHS Foundation Trust and another [2009] EWCA Civ 789, [2010] ICR 101 per Smith LJ at [74].

THE RELEVANT CONTRACTUAL TERMS

[30]The letter to Professor Stevens from the University offering him appointment to the Chair is dated 10th February 2004. It states that the appointment is held in accordance with the attached terms and conditions for clinical academic staff. The letter asked Professor Stevens to send a written confirmation of his acceptance of the appointment to a named individual. The attachments to the letter did not include the disciplinary procedures, but they included the Terms and Conditions (Academic) and the Terms and Conditions (Clinical). The Conditions of Employment governing Clinical Academic Teaching and Research Staff (“Clinical Academic Conditions”) contain, at Clause C4, a provision that: “All appointments and conditions of employment are subject to the Ordinances and Regulations of the University”.[31]Clause C13 provides that clinical academic staff are also required to undertake clinical duties in accordance with an honorary appointment contract issued to them by an NHS Trust or Authority on the recommendation of the University. Their contract of employment as a member of the University’s clinical academic staff is dependent upon their having and retaining such an honorary contract. Clause C14 provides that such clinical academic staff will agree their duties in an annual integrated job planning process conducted jointly with the University and the Trust. Clause C17 provides that they are required to participate in an annual appraisal process conducted jointly by the University and the Trust, which may contribute to periodic re-accreditation with the GMC (or GDC in the case of a dentist). Clause C18 states that members of clinical academic staff are required to comply with the University’s current arrangements for research governance, as amended from time to time.[32]Clause C50 of the Clinical Academic Conditions deals with disciplinary matters. It provides as follows:
“Members of clinical academic staff are subject to the disciplinary procedure as amended from time to time. The current version is set out at [there is then a link to a website] or available from the Office of the Director of Human Resources. In respect of duties carried out under the honorary consultant contract, a member of staff of the University is subject to the disciplinary procedure referred to in the Trust’s honorary contract. While the Trust’s disciplinary procedure is being applied, at which the University will have observer status, a member of the University’s staff may not have access to the University’s grievance procedure in respect of the matter which is being dealt with under the Trust’s disciplinary procedure. Rights of appeal against a disciplinary penalty applied by one organisation will be confined solely to the appeal procedure of the organisation which issued the disciplinary penalty in question, and individual employees may not appeal to the other organisation about that decision. Following a disciplinary hearing, and any appeal, in the Trust, the University will consider what action, if any, it should take in respect of the member of staff concerned.”
[33]As Mr Sutton candidly accepted, this is not a particularly fine example of draftsmanship. It is silent on many aspects of the inter-relationship between the two disciplinary processes to which a clinical academic may be subject. For example, there is no provision dealing with the status of any findings made in one set of disciplinary proceedings if the other employer subsequently invokes its own disciplinary process. There is nothing, on the face of it, to stop disciplinary proceedings being brought by employer B after the allegations have been fully investigated by employer A and found to be without substance.[34]As Mr Sutton pointed out, no disciplinary procedure is expressly referred to in the Honorary Consultancy Agreement between HEFT and Professor Stevens. On a literal interpretation, the third sentence of Clause C50 would have no practical effect. That cannot possibly be right – the paragraph must be given a workable interpretation to reflect the parties’ objective intentions. By necessary implication, therefore, it must be interpreted as referring to the investigative and disciplinary procedure that would be applied by HEFT if it were to take such action against Professor Stevens under the honorary consultant contract.[35]In Chhabra v West London Mental Health NHS Trust [2014] ICR 194, at [1] Lord Hodge explained how, by the Directions on Disciplinary Procedures 2005 issued pursuant to powers under s.17 of the National Health Service Act 1977, the Secretary of State for Health directed all NHS bodies in England and Wales to implement the full version of a framework policy agreed between the BMA and the Department of Health in a document entitled “Maintaining High Professional Standards in the Modern NHS” (“MHPS”). Mrs Pike’s evidence is that the Directions do not apply to NHS Foundation Trusts and that it is her understanding that MHPS only has the status of “advice” for an entity such as HEFT.[36]In answer to that, Professor Stevens has exhibited to his second witness statement HEFT’s published disciplinary procedure from November 2011, and a further version approved in September 2014. Confusingly, the HEFT document is also entitled “Maintaining High Professional Standards”. It expressly provides that where there is a conflict or lack of clarity, the national guidance in MHPS will take precedence over HEFT’s procedure.[37]Paragraph C50 of the Clinical Academic Conditions appears to envisage (without necessarily mandating it) that HEFT would take the lead in any investigation of, or disciplinary action in respect of, any matters falling within the ambit of the honorary consultancy. That would certainly encompass, but is not necessarily limited to, matters of a purely clinical nature. Although not referred to in the Paragraph itself, it might reasonably be assumed that, at the other end of the spectrum, matters of a purely academic nature (for example, an alleged lack of proper supervision of a PhD candidate, or a persistent failure to turn up for lectures) would be dealt with by the University under its disciplinary procedures. The problem in the present case is that in his role as CI of these clinical trials, Professor Stevens was acting in a dual capacity, and his behaviour was governed by both contracts.[38]Mr Sutton contended that it was consistent with Paragraph C50 and the demarcation of clinical and academic responsibilities in Professor Stevens’ job plan that the University should take the lead in disciplinary investigations pertaining to research projects even if they involve clinical trials taking place at a hospital for which HEFT is responsible. I do not accept that Paragraph C50 draws a clear demarcation line between those matters in which HEFT is to take the lead in disciplinary matters and those in which the University is to do so. However, I agree with Mr Sutton that there was nothing to preclude the University from instituting the disciplinary investigation and taking the lead in this particular case.[39]The relevant Ordinance setting out the University disciplinary procedure referred to in Clause C50 (“the Ordinance”) provides, by Clause 3.21.3, that:
“the procedures set out in this Ordinance apply to a member of clinical Academic Staff… on the same basis as to any member of Staff, apart from a circumstance in which the honorary clinical contract has been withdrawn…. Disciplinary action may be taken under this Ordinance against a member of clinical Academic Staff in respect of misconduct or unsatisfactory or inadequate performance arising in connection with that member of Staff’s clinical work as if the work or activities were performed in or for the University.”
Theoretically, at least, this raises the spectre of double jeopardy for someone who has been cleared of professional misconduct by the relevant NHS Trust, as indeed does Clause C50 itself. However, as Mr Sutton pointed out, the University needs to have the power to discipline, and if need be terminate the employment of someone who has been found guilty of serious professional misconduct by another professional body, if the circumstances would justify taking such steps. This is one area in which the overarching duty of trust and confidence might come into play in an appropriate case, so as to preclude an employer from acting oppressively.[40]The relevant investigation into Professor Stevens’ involvement in the trials is apparently being carried out under Part V of the Ordinance which is entitled “Procedure for Dealing with Serious Issues”. This provides, in paragraph 3.21.34, that unless the Vice Chancellor (or in his or her absence the Vice-Principal) determines that, on the basis of the allegation itself, the allegation should be dismissed as being trivial or without substance or should be dealt with under the Disciplinary Warning Procedure under Part III, the Vice Chancellor or Vice-Principal shall nominate a person to conduct “such investigations as may be considered appropriate” and to prepare a report of that investigation.[41]In this case, the nominated investigator is Professor Alderson. There is no suggestion that he is an inappropriate person to conduct the investigation. Unlike the procedure under Part III, there is no mention under Part V of the involvement of, or of any support being given to the nominated investigator by anyone from Human Resources (internal or external), let alone for “technical advice” to be given by a member of University staff. Nevertheless the powers of the investigator are couched in wide terms, and there is nothing that expressly prohibits him from having such assistance.[42]Unlike Part III, the purpose of the investigation is not expressly referred to. However it is to be inferred that the purpose is to enable the Vice Chancellor or Vice-Principal, on receipt of the investigation report, to make a properly informed decision as to which of the various courses of action listed under paragraph 3.21.36 should be taken.[43]The key paragraph is 3.21.35 which provides as follows:
“Before any investigation referred to in paragraph 34 above the member of Staff shall be given in writing full information about the allegation to enable him/her to respond. S/he shall have the right to nominate individuals to be interviewed as part of the investigation, and the right to submit any documents which may be relevant for the consideration of the person specified in paragraph 34 above. At any meeting with the member of Staff during the course of the investigation, s/he shall have the right to be accompanied by a member of Staff or a trade union representative of his or her choice. The member of Staff shall be kept informed of progress of the investigation and, in writing, of its outcome.”
[44]Paragraph 3.21.36 makes it clear that the decision about what, if any action to take in response to the report of the investigation lies with the Vice Chancellor or Vice-Principal rather than with the investigator. If, in consequence of a report following such investigation, the Vice Chancellor or Vice-Principal determines that the allegation should be dealt with by a Disciplinary Panel, there are detailed provisions about the composition of the Panel and how the hearing is to be conducted. For example, under paragraph 3.21.37, if the member of Staff is a clinical academic, then a representative of an NHS or other relevant body may be appointed to the Panel, which can then consist of more than 3 but no more than 5 members. This demonstrates that the position of clinical academics was not overlooked when the Ordinance was agreed.[45]Paragraph 3.21.40 provides that the member of Staff may be represented at the Panel Hearing by another person, who may be legally qualified, and accompanied by a friend who shall be a member of staff and who shall take no part in the proceedings. Paragraph 3.21.40(b) entitles the representative to speak on the member of staff’s behalf, but precludes the representative from answering questions relating to the issues in dispute on behalf of the member of staff, unless the person chairing the Panel permits him to. This partly reflects the statutory minimum requirements for disciplinary hearings under s.10 of the Employment Relations Act 1999, but enhances them in two respects, by permitting the additional silent companion, and by giving the employee a free choice of representative, including a barrister or solicitor or a member of a professional defence association such as the MPS.[46]Under the disciplinary procedures in HEFT’s policy documents, Professor Stevens would have been entitled to be accompanied by Professor Palmer to any equivalent interview (as well as to any subsequent disciplinary hearing). Paragraph 4.15 of the policy states that where there is such an investigation “the practitioner must also be afforded the opportunity to put their view of events to the case investigator and given the opportunity to be accompanied.”[47]Paragraph 4.16 provides:
“At any stage of this process – or subsequent disciplinary action – the practitioner may be accompanied in any interview or hearing by a companion. In addition to statutory rights under the Employment Act 1999, [sic] the companion may be another employee of the NHS body, an official or representative of the British Medical Association, other recognised trade union … or a defence organisation, or a friend, partner or spouse. The companion may be legally qualified but he or she will not be acting in a legal capacity.”
The proviso in the last sentence has been held by the Court of Appeal to be “devoid of meaning” as regards disciplinary hearings, because once a lawyer has been admitted as a representative, they would be entitled to use all their professional skills in the practitioner’s service: Kulkarni v Milton Keynes NHS Foundation Trust [2009] EWCA Civ 789 [2010] ICR 101.[48]Thus, Professor Stevens would appear to have different procedural rights and safeguards, depending on which of his two employers decides to take the lead in investigating the allegations against him. It is understandable that he regards this situation as unsatisfactory.[49]In 2000, the then Secretary of State for Education commissioned a report from Sir Brian Follett and Michael Paulson-Ellis to review the appraisal, disciplinary and reporting arrangements for joint appointments between the NHS and universities. The Follett Report, published in September 2001, made a number of recommendations including, at paragraph 62, a recommendation pertaining to clinical research. It describes this as a good example of a situation where both parties (i.e. the university and the NHS Trust) are inextricably involved:
“The prime responsibility for the quality of research being undertaken and its progression lies with the university but the NHS Research Governance guidelines mean that the NHS body must be involved throughout the process. Should difficulties arise in this area of an individual’s job, as indicated for example by the annual appraisal process, then both must be involved in correcting the situation and if necessary in any disciplinary proceedings.”
[50]Regrettably, this is one recommendation of the Follett report that the University of Birmingham has not taken up (although it has adopted some of the others, including a system of joint appraisals). There is no provision for a joint disciplinary process to be undertaken if matters of concern arise in respect of clinical trials forming part of a research project.[51]On behalf of Professor Stevens, Mr Hyam submitted that it cannot have been objectively intended that a clinical academic in his situation should be placed at a procedural disadvantage at the investigation stage if it were decided that the University should take the lead in investigating the matter instead of HEFT, given that this was a situation in which both employers were inextricably involved, and Professor Stevens has no control over that decision. Whilst that might seem to be a sensible approach, the fact remains that the University and HEFT have chosen not to adopt a unified disciplinary procedure as recommended by Follett, and therefore in my judgment they cannot be treated as if they had.

THE EXPRESS TERM ARGUMENT

[52]Mr Hyam submitted that the phrase “in respect of duties carried out under the honorary consultant contract, a member of Staff of the University is subject to the disciplinary procedure referred to in the Trust’s honorary contract” in Clause C50 of the Clinical Academic Contract should be interpreted as meaning that where a significant proportion of the duties under investigation arise under the honorary consultant contract, as they did here, the Trust’s disciplinary procedure must be used in preference to that of the University. I would be unable to accept that submission even if the MHPS disciplinary procedure had been expressly referred to in HEFT’s contract with Professor Stevens. It is not the natural meaning of the phrase, especially when considered in the context of the paragraph as a whole. The natural (and intended) meaning is that where his duties fall under both contracts of employment, the consultant is subject to the Trust’s disciplinary process as well as the University’s.[53]Clause C50 emphasises that the two disciplinary regimes are separate (and subject to their own grievance and appeals procedures, with no cross-over between them). Moreover, as I have already illustrated, the Ordinance itself contains express provisions addressing the position of clinical academics. Despite Clause C50, the University has expressly retained a right to invoke its own disciplinary procedures in matters of clinical practice. A clinical academic may be subject to the University’s disciplinary procedure in matters concerning clinical practice outside the University campus (and even outside his NHS consultancy – for example if he had a private practice in Harley Street). Those provisions mean that the Trust’s procedure cannot prevail in cases of overlap or where the allegations relate solely to clinical matters. Objectively, it cannot have been the parties’ intention that one set of disciplinary rules should trump the other.[54]It follows that not only must I reject the express term argument, but that there is no room either for the implication of any term melding the procedures or, as Mr Hyam at one point submitted, a term that the elements of either procedure which are the most favourable to the clinical academic under investigation should be adopted. However, this does not mean that the fact that Professor Stevens would be permitted to take Professor Palmer with him to an equivalent investigatory meeting initiated by HEFT is an irrelevant consideration. On the contrary, it is an important part of the factual matrix.[55]Having determined that there is no contractual obligation on the University to adopt HEFT’s procedure in these circumstances, the Court next has to determine the rights and obligations of the University and Professor Stevens in respect of the application of the University’s disciplinary procedure set out in the Ordinance.

WHAT IS THE STATUS OF PARAGRAPH 3.21.35 OF THE ORDINANCE?

[56]The first matter that I have to consider is whether the provisions of the Ordinance, or at least the provisions of Paragraph 3.21.35, are terms of Professor Stevens’ contract of employment, or whether, instead, there is an implied term that the University will follow the disciplinary procedure set out in the Ordinance unless there is a good reason for departing from it.[57]Provisions of a collective agreement to which a contract of employment is said to be “subject”, or which are referred to as governing the relationship between employer and employee, can range from matters of policy and aspiration to hard-edged contractual rights. The leading case on determining whether any part of a collective agreement has been incorporated into an individual contract of employment is Alexander v Standard Telephones & Cables Ltd (No.2) [1991] IRLR 286. Hobhouse J held at [31] that the court must ascertain the contractual intention of the employer and employee on normal contractual principles. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of the document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term.[58]In Bristol City Council v Deadman [2007] EWCA Civ 822 [2007] IRLR 888 the key issue in the Court of Appeal was whether the employer council’s “procedure for stopping harassment in the workplace” was incorporated into the contract of employment. The relevant clause stated that “rules and local agreements made by the city council directly affecting other terms and conditions of your employment currently include…” followed by a list of 22 different provisions. Some of these were couched in language appropriate to contractual terms; others, such as the “integrated equalities policy” were not.[59]Lord Justice Moore-Bick, who delivered the judgment of the court, drew a distinction between these two types of provision at [17]. A document like the equalities policy, which did not naturally lend itself into incorporation into the contracts of the employees, was properly to be understood as illustrating the manner in which the council expected to conduct its relationship with its employees, both in complying with its over-arching contractual obligation not to undermine the mutual relationship of trust and confidence, and in observing its duty of care towards them. The procedure for stopping harassment in the workplace was different, because although some parts of it contained little more than statements of policy, other parts were of a more detailed and formal nature and were capable of being incorporated into contracts of employment.[60]Moore-Bick LJ said that where an employer has published and implemented, with the concurrence of employees’ representatives, formal procedures providing for the manner in which complaints are to be investigated, it will usually become a term of the contract of employment that these procedures will be followed unless and until withdrawn by agreement. It was therefore a term of Mr Deadman’s contract of employment that his employer would follow its published procedure in the investigation of any complaints of harassment made against him. There was no separate contractual obligation to investigate such complaints sensitively.[61]There appear to be some similarities between the procedure in that case and the Ordinance, in that they each contain a mixture of policy, guidance, and rights or obligations. However in Bristol City Council v Deadman, there were no express words of incorporation; instead it was recorded that the various policies and procedures “directly affected” the terms and conditions of the individual contracts of employment. Had there been an express incorporation clause, there would have been no need for the Court of Appeal to decide the matter on the basis of an implied term that the collectively agreed procedures would be followed. In this case, there are express words of incorporation and the guidance in Alexander is therefore applicable. The Court must look at the Ordinance and determine which, if any of its terms are “apt for incorporation”.[62]In Lakshmi v Mid-Cheshire Hospitals NHS Trust [2008] EWHC 878, the relevant NHS Trust had brought into effect a disciplinary policy known as “HR2” in order to implement MHPS. There was an issue as to whether Clauses 3.7 and 3.9 of HR2 were terms of a doctor’s contract of employment. Her letter of appointment had stated that she “will be subject to the Trust’s normal disciplinary procedure and rules” - language which is very similar to the words used in the first sentence of Clause C50. The court, following Hobhouse J’s guidance in Alexander, decided that the breadth of HR2 and the language that it used was inconsistent with it being regarded as a contractual document, and that it was purely guidance. Nevertheless, it was a term of the contract that the Trust would comply with HR2, unless it could establish a good reason not to.[63]Mr Hyam submitted that the Court should take the same approach to the Ordinance, which, like HR2, contains a mixture of different provisions ranging from those couched in the language of policy and aspiration (e.g. paragraph 3.21.4, or the description of the purpose of an investigation under Part III in paragraph 3.21.13) or guidance (e.g. the examples of gross misconduct given in paragraph 3.21.12) to those using the language of contractual terms. He contended that the Ordinance as a whole is not incorporated into the contract of employment, but that there is an implied term that the University will comply with it unless there is a good reason not to.[64]Mr Sutton submitted that on the Alexander test, various aspects of paragraph 3.21.35 could be identified as conferring express contractual rights upon the employee or mandatory obligations upon the employer, namely: i) The right to be given in writing full information about the allegation before the investigation, to enable him/her to respond; ii) the right to nominate individuals to be interviewed as part of the investigation; iii) the right to submit any documents which may be relevant for the consideration of the investigator; iv) the right to be accompanied at any investigatory hearing by a member of staff or a trade union representative of his or her choice; v) The obligation on the part of the employer to keep the member of staff concerned informed of progress of the investigation, and vi) The obligation to notify him or her, in writing, of its outcome. All these, he submitted, are plainly terms of the contract which the employee is entitled to enforce.[65]It may be that some of the more nebulous aspects of the Ordinance would be regarded as policy or guidance that the University is bound to follow unless there is a good reason not to; but taken as a whole I cannot characterise the Ordinance as just guidance. I am reinforced in that view by the fact that it was the subject of a collective agreement. Moreover, given that these specific provisions of the Ordinance are expressed as conferring “rights” upon the member of Staff concerned, or expressed in mandatory language (by which I mean “shall do” something as opposed to “shall aim/endeavour to do” it) it is difficult to reach the conclusion that, on ordinary principles of construction, the contracting parties did not intend them to be binding and enforceable contractual terms. For that reason, I prefer Mr Sutton’s analysis.[66]It is therefore Professor Stevens’ contractual right to be accompanied to any investigatory meeting by another member of university staff or by a trade union representative of his choice. Neither the University nor Professor Alderson would be entitled to stop such a person from attending, for example on the basis that the chosen staff member is a QC specialising in employment law, or the union representative comes from a union other than the UCU. That begs the question whether those two categories are exhaustive.[67]The specific rights that I have identified in Paragraph 3.21.35 are to be contrasted with aspects of the investigation that are not expressly addressed in the Ordinance. It appears that the decision as to what investigations are to be carried out is a matter for the discretion of the investigator – the phrase used in paragraph 3.21.34 is “such investigations as may be considered appropriate”. So too is the manner in which the investigations are to be conducted. There is no express obligation to hold a meeting with the person under investigation – he just has a right to be accompanied to any such meeting. However the overarching obligation of trust and confidence may require such a meeting to be held, because of the serious nature of the investigation and the potentially serious consequences for the person concerned. That is a good illustration of how a term implied by law into the contract of employment supplements and complements, rather than contradicts, its express terms.[68]Nothing is said about how any interviews with nominated (or other) witnesses are to be conducted. The evidence before me is that when witnesses employed by HEFT were interviewed, they were allowed to be accompanied by persons outside the two categories specified in paragraph 3.21.35, such as an HR person from HEFT. Mrs Pike says that this was simply a courtesy intended to encourage them to co-operate with the investigation, as the University has no power of compulsion over them. Whatever the reasons, the consequences are that in what is said by the University to be a fact-finding exercise, witnesses other than the person under investigation (who may be exposed to disciplinary investigation or action themselves in future, if they were members of Professor Stevens’ team) have been afforded a free choice of companion when they attended an investigatory interview, whereas he has not.[69]There is nothing in the procedure about submitting a questionnaire to the person under investigation, although questionnaires have been sent to and completed by Professor Stevens (with the assistance of Dr Palmer). Dr Palmer was also permitted to attend Professor Stevens’ inspection and review of the Trial Master File documents in January 2015.[70]The “rights” that are conferred upon the person under investigation by Paragraph 3.21.35 have one common characteristic. They are all concerned with ensuring that the investigation adheres to minimum standards of procedural fairness. The employee is entitled to know in advance the allegations he is facing, so that he can address them and collate evidence to support his defence. He is entitled to provide documents to the investigator which support his account of events; he is entitled to require the investigator to interview certain witnesses; he is entitled to be accompanied at an investigatory meeting; and he is entitled to be informed about the progress and outcome of the investigation.[71]That being so, in my judgment there is nothing on the face of paragraph 3.21.35 that would either preclude the implication of a term, or the exercise of a discretion by the investigator (who is after all the person in charge of the process) which adds to those minimum levels of protection. The language of paragraph 3.21.35 is that of entitlement, not permission.[72]Mr Sutton submitted that although there was an appreciable margin of discretion in how he conducted the investigation, the investigator would have no power to vary the express terms of paragraph 3.21.35 by permitting someone outside the two specified categories of companion to attend the investigation meeting. I disagree. He would not be varying anything. The fact that someone has a contractual entitlement to insist that X or Y accompanies him, does not, as a matter of language or logic, preclude the investigator from allowing him to be accompanied by Z. However, unless there is an implied term mandating Z’s presence, or a refusal would fall outside the margins of discretion afforded to a reasonable investigator taking into account all the relevant factors, the employee could not insist on being accompanied by Z.[73]What did the contracting parties envisage would be the role played by the person accompanying the employee to the meeting? It seems to me that the Court cannot properly ascertain what their objective intentions were without considering that question. Mr Sutton submitted that the role of the companion was a matter for the discretion of the investigator. I cannot accept that submission, which would lead to an undesirable lack of consistency, with some companions being unable to speak, and others acting as advocates. It seems obvious, given the character of the rights afforded by paragraph 3.21.35, that the parties intended that the person concerned would not be there merely to afford moral support, but 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 fulfil for the employer.[74]The companion is not there to act as an advocate. This much is clear from the clearly defined role of the “representative” at the stage of the disciplinary hearing. He or she is there to see fair play (e.g. in terms of ensuring that the notes of the interview and any statement taken from the employee for potential use in future disciplinary proceedings are accurate and comprehensive) and to help the employee to give a full and sufficiently clear account of everything of relevance so as to enable the investigator to be properly informed, and to understand the employee’s response to the allegations.[75]Therefore in a case such as this, the companion is unlikely to be much use if he does not have a grasp of the technical issues or understand the practical demands of research of this nature. The University plainly believes that Professor Alderson, eminent scientist though he is, needs to have recourse to a technical adviser (though it is most unfortunate that it picked someone who is likely to be an important witness). One might therefore reasonably assume that the person accompanying Professor Stevens should have sufficient knowledge of research trials of this type to be able to afford him meaningful assistance.[76]The University’s interpretation of the right to choose a companion in Paragraph 3.21.35 involves implicitly adding the word “only”. However it was common ground that the two categories expressly referred to cannot be exhaustive, because the paragraph does not cater for the situation in which the person under investigation suffers from a disability. Suppose, for example, that he is profoundly deaf. He can lip-read very well, but because of the importance of the meeting he is anxious to be supported by someone who can sign, so that he does not misunderstand any of the questions or miss any vital nuances in them. If there was no proficient signer among the University staff, and if he is not a member of a trade union, or the union could not provide a signer, then it is obvious that he would have to be allowed to be accompanied by a companion who could sign.[77]Mr Sutton submitted that the University would be obliged to make reasonable adjustments to cater for the needs of any person under a disability because the Equality Act 2010 mandates it. Whilst that is of course true, even in the absence of such legislation, or prior to its enactment, it seems to me to be beyond argument that there would be an implied term to the effect that the employee concerned would have the right to be accompanied by a companion who would give him the assistance that he required, even if that companion was not a member of staff or a union representative. The difficulty lies in reconciling that implied term with the effect of a collective agreement.[78]The University places great weight on the fact that the Ordinance is the product of a collective agreement, and that prior to that agreement the individual concerned had no right to be accompanied to the meeting by anyone. His only rights were those conferred on him by the Employment Relations Act 1999 in respect of representation at any subsequent disciplinary hearing. That statute entitles an employee to be accompanied at a disciplinary hearing by a trade union representative or another of the employer’s workers. Therefore, when it was introduced, at the union’s behest, Paragraph 3.21.35 conferred an additional right on the employee to be accompanied at an investigatory meeting by a person drawn from precisely the same categories as those in the statute. The intention cannot have been to exclude lawyers, since there is nothing to prevent the employee from choosing someone within those categories who is legally qualified.[79]Mr Sutton submitted that this right was non-discriminatory because everyone could choose a fellow member of staff to accompany them; union members were simply being given the additional right to choose a union representative, who could be external, and from any union (it must be borne in mind that in most organisations the representative of the recognized union will be a member of staff). Of course that submission does not recognise the practical realities, namely, that whilst a fellow employee might wish to avoid becoming involved for all kinds of reasons, the union representative would probably have little choice but to attend - unless of course the union had an arrangement with a defence organization along the lines of the arrangement between the BMA and the MPS.[80]Mr Sutton reminded the Court of the well-known passage in Waite LJ’s judgment in Ali v Christian Salvesen Food Services Ltd [1997] ICR 25 at 31B-D, in which he pointed out that it is in the nature of a collective agreement that it should be concise and clear, and therefore one would not expect the parties to attempt to cover every possible contingency. He said that:
“should there be any topic left uncovered by an agreement of that kind, the natural inference, in my judgment, is not that there has been an omission so obvious as to require judicial correction, but rather that the topic was omitted advisedly from the terms of the agreement on the ground that it was seen as too controversial or too complicated to justify any variation of the main terms of the agreement to take account of it.”
[81]Those considerations make it difficult for a party to establish that a term should be implied as a matter of fact into a collective agreement, on the basis of the principles so elegantly re-cast by Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988. That does not mean that the “natural inference” referred to by Waite LJ can never be displaced. The question which the Court has to answer is whether, bearing those matters in mind, the provision sought to be implied into the contract would spell out in express words what the contract, read against the relevant background, would reasonably be understood to mean.[82]Moreover, the points made by Waite LJ have no application to a term which is implied as a matter of law, such as the overriding term of trust and confidence. The distinction between the two types of implied term was succinctly explained by Baroness Hale JSC in Geys v Societe Generale [2012] UKSC 63, [2013] 1 AC 523 at [55]-[56]. The term of trust and confidence is implied by law as a necessary incident of the relationship, unless the parties have expressly excluded it. Although Mr Sutton at one point suggested that the Court could infer that there had been an exclusion or modification of that term if there appeared to be a conflict between it and the express provisions of the Ordinance, I prefer to resolve any such apparent conflict in accordance with Lord Hope’s suggested approach in Geys at [24], namely, to do my best to reconcile them, if that can be achieved conscientiously and fairly.[83]Returning to the hypothetical scenario of the person under a disability, it seems to me that the implied term that he could choose a companion outside the two named categories who would provide him with the necessary assistance could be implied either as a matter of fact or as a matter of law (quite apart from the obligations imposed on the employer by statute). Despite Waite LJ’s dictum, it could be legitimately inferred that the parties intended, consistently with the purpose of the procedural safeguards in paragraph 3.21.35, that such a person should not be put at a disadvantage. Likewise it could be argued that to deny him such a companion would be a breach by the employer of the obligation of trust and confidence. Both routes would lead to the same conclusion.[84]Mr Hyam submitted that it is possible to imply a term into paragraph 3.21.35 so that it reads:
“At any meeting with the member of Staff during the course of the investigation, s/he shall have the right to be accompanied by a member of Staff or a trade union (or equivalent) representative of his or her choice.”
Mr Sutton submitted that this would amount to re-writing the contract, which is something that the Court is not allowed to do, even if it would produce a fairer or more reasonable term.[85]The introduction of the words “or equivalent” would involve adding a new category of companion to those expressly referred to, and it would apply across the board in every case, regardless of whether or not the employee was a member of the UCU or any trade union. One major problem with the suggested implied term is that the words “or equivalent” are vague and liable to create uncertainty. Mr Hyam contended that the contracting parties plainly intended to permit accompaniment by someone discharging the role of a union representative; but anyone could discharge that role, unless in the special circumstances of the case, the companion required special attributes or specialist knowledge in order to fulfil it. If that is really what the parties had intended, they would have produced a clause similar to that in the HEFT policy.[86]It cannot be said that the parties to the collective agreement failed to turn their minds to the special position of clinical academics. They have made specific provision for the composition of any disciplinary panel in cases involving them. They have also drawn a distinction between “representation” at formal, adversarial disciplinary hearings, and “accompaniment” at the inquisitorial stage of the process.[87]I am unable to conclude that it can legitimately be inferred on AG (Belize) v Belize Telecom principles that the parties had an unexpressed intention that any employee who belongs to a professional defence organization could be accompanied to such a meeting by a member of that organization in lieu of a union representative, especially since the parties have expressly provided for him to choose from a wider pool of persons to represent him at the stage of the disciplinary hearing. This is precisely the kind of scenario in which Waite LJ’s dictum strikes a resonant chord. The presence of a person from a defence organization is a topic which may well have proved controversial, if not with the union, then with the University. Nor can I accept Mr Hyam’s submission that Professor Stevens is being penalised for not being a member of a union. Employees who are not members of a union are not left to fend for themselves, since they still have the ability to bring a member of staff with them. Therefore I agree with Mr Sutton that I cannot imply that term.[88]However, that is not the end of the argument because the University is bound by the overriding obligation of trust and confidence. United Bank v Akhtar is an illustration of how an employer’s right to rely upon the express terms of the contract was modified by that overriding obligation, as well as by terms that were implied in fact, and by the independent obligation not to exercise a contractual discretion capriciously. The EAT reached its conclusion by several distinct legal routes, of which the obligation of trust and confidence was one. The case is authority for the proposition that the overriding obligation of trust and confidence is independent of, and in addition to the express terms and that it may qualify behaviour which might otherwise appear to be justified because it falls within the literal interpretation of those express terms.[89]Mr Sutton submitted that United Bank v Akhtar was distinguishable because it concerned a contractual discretion. However, it is clear that the passage at [50] of Knox LJ’s judgment which I have quoted in paragraph 27 above is not limited to cases of that nature. It is true that the situation with which the EAT was directly concerned involved the exercise of express contractual rights by the employer in a manner that was held to be objectionable. Yet the mischief that the EAT was addressing was the reliance by the employer upon the express provisions of the contract to justify acts or omissions which would seriously undermine the relationship of mutual trust and confidence. Instead of finding that the obligation of trust and confidence yielded to the express terms of the contract permitting such behaviour, the EAT decided that the express terms had to be applied in a way that was consistent with the overriding obligation of trust and confidence.[90]The question, therefore, is whether the University’s insistence that Dr Palmer should not be allowed to accompany Professor Stevens to the meeting in the particular circumstances of this case is a breach of the implied term of trust and confidence. The test has been described as “a severe one. The conduct must be such as to destroy or seriously damage the relationship” see Gogay v Hertfordshire County Council [2000] IRLR 703 per Hale LJ at [55].[91]Mr Sutton submitted that the refusal by the University to allow Dr Palmer to attend the meeting is insufficiently serious to constitute a breach of the term of trust and confidence, and that any perceived unfairness at this stage is adequately compensated by the right to legal representation if the matter proceeds to a disciplinary hearing. I disagree with the latter point – the investigatory meeting does not inexorably precede disciplinary action and it should not be assumed that it will. The presence of an appropriate assistant at the investigatory meeting could make all the difference between Professor Anderson’s report containing information that would or might lead the Vice Chancellor to decide to take no further action or to proceed under Part III, and containing information that would lead him to decide to convene a disciplinary hearing under Part V. Therefore the ability to have legal representation at a later stage does not “cure” any unfairness at the investigatory stage.[92]I have no hesitation in finding that the University’s behaviour in refusing his request to be accompanied by Professor Palmer is such as to seriously damage the relationship of trust and confidence between the University and Professor Stevens. It would be patently unfair not to allow Professor Palmer to attend, and the suggestion made at one point that he might sit quietly outside so that Professor Stevens could leave the room to consult him from time to time was obviously unworkable. Indeed that suggestion serves to illustrate just how unattractive the University’s stance is.[93]The investigatory interview is a crucial stage in the process. Both parties must be assumed to be aiming to get to the truth and to put the investigator in the best possible position to provide a comprehensive and balanced report to the decision maker. I appreciate that the process is not, as yet, adversarial. In many cases the provisions of paragraph 3.31.35 might be regarded as perfectly fair. Yet in this case, the perception has been created that the University has an advantage over Professor Stevens because it has enlisted the support of an external HR consultant, who will attend, and it has provided Professor Alderson with the technical assistance of a senior member of staff, chosen by the University, who may also possibly attend, whereas it is forcing him to go into the meeting without any support of that nature. That objective perception of an inequality of arms is not helped by the fact that Ms van Riel was the very person to whom Professor Stevens reported certain of the breaches of the Code before the first of the MHRA inspections, and with whom he was working to address them.[94]The allegations that are being investigated by Professor Alderson are extremely serious, and they potentially have serious ramifications for Professor Stevens personally and professionally. The more serious the matter, the more thorough the investigation that is required. The ACAS Guide emphasises the importance of keeping an open mind and looking for evidence which supports the employee’s case as well as evidence against. I am sure that this is what Professor Alderson has set out to do.[95]The person best placed to provide the evidence in support of the employee’s case is usually the employee himself, but he may not always appreciate the significance of a particular piece of information. A union representative is likely to be experienced in safeguarding the interests of members in these circumstances, and should be able to help the employee to identify the significant features, and ensure that they are mentioned. Professor Stevens cannot avail himself of such assistance because he is not a member of a union, and even if he were a member of the BMA, he would be no better off. Professional defence organizations serve a similar function to unions in this particular situation, and have similar know-how and experience, which explains the agreed division of responsibilities between the BMA and the MPS.[96]Professor Stevens has had the assistance of Dr Palmer thus far, which makes it even more remarkable that he should be denied it at the interview, when it is probably of most value to him. Other witnesses have been treated more favourably by the University in terms of their choice of companion at interview. It matters not that the University has good reasons for trying to maintain their goodwill and co-operation. Professor Stevens is not being afforded the same treatment, and at this stage he is just as much a witness of fact as they are.[97]I accept that this is a large University, and in theory Professor Stevens could approach another member of staff, and ask them to accompany him. However, the reality is that the “choice” given to him by paragraph 3.21.35 is not even a choice of only one category of companion. It is no choice at all. He has given a cogent (and unchallenged) explanation why there is nobody in his own department that he could approach, and why he does not know anyone else well enough to ask them. Even if someone from another department, such as the law faculty, agreed to come, they would not have the technical know-how that Dr Palmer has, and which the University must accept is necessary, otherwise they would not have provided Professor Alderson with Ms van Riel to assist him. Thus paragraph 3.21.35 does not afford Professor Stevens with the envisaged minimum procedural safeguards in practice, and the University is well aware of that. It would be patently unfair to force him to attend the interview alone.[98]It is also pertinent, when considering fairness, to bear in mind that it was a matter outside Professor Stevens’ control that the University took the lead in the investigation which related to clinical trials for which the University and HEFT each had a share of responsibility. If it had been HEFT that took the lead, as it could well have been, Dr Palmer would have been allowed to accompany Professor Stevens to any investigatory meeting. Although the University is entitled to investigate the matter first, and its procedures are separate from HEFT’s, an employer slavishly adhering to its contractual terms so as to produce the result that Professor Stevens’ choice of companion at the investigatory meeting must necessarily depend upon the fortuity of which of his two employers decides to initiate the investigation – a matter over which he has no influence - hardly strikes one as the epitome of fair dealing. This point may not suffice in and of itself to castigate the University’s behaviour as something which seriously undermines the relationship of trust and confidence, but it provides additional support for my conclusion that it does so in the particular factual circumstances of this case.[99]The next question is whether there is “reasonable and proper cause” for the employer’s conduct; that means that there has to be some countervailing justification for behaving in a way that would seriously undermine the relationship of trust and confidence. The fact that the behaviour is permitted by the contract is no answer, because the obligation of trust and confidence qualifies the express terms. Such behaviour would rarely be justified except on grounds of public policy, and in my judgment there is no justification for the unfairness in this particular case.[100]The University says that it does not wish to depart from the collective agreement, as it might upset the UCU. That would not be a sufficient justification, even if the cause for concern was likely to materialise, which I doubt. Whilst I could understand that a union might well get upset if the employer reneged on its promises, e.g. if it bypassed the investigation altogether and proceeded straight to a disciplinary hearing, I find it difficult to accept that it would ever object to an employer agreeing to confer what might be regarded as more favourable treatment on its employees than it had agreed with the union - at least so long as this did not result in union members being treated less favourably than non-union members.[101]I would find it astonishing if the UCU was in the least concerned about the creation of a level playing field for members of the BMA or non-union members or an expansion of the categories of companion to an investigatory meeting in this or any other case. Dr Palmer’s evidence is that he is unaware of any other university in the country refusing to allow an MPS representative to be present at such investigatory meetings; if that is so, their presence cannot be a matter of concern for the UCU, which must represent many of the academic staff employed by other universities.[102]The University is also apparently concerned that an “ad hoc” departure from the rules would create a perception of favouritism which would be inimical to good staff relations and possibly lead to other instances of special pleading. That does not justify treating Professor Stevens unfairly. If the “tip of the iceberg” argument were correct, then the University would never countenance any departure from the procedure and would be setting its mind resolutely against consideration of any circumstances, however compelling, that would justify such a departure. It may well be that there are other situations in which fairness would dictate that the University should permit a representative of a defence organization to attend the investigatory meeting. Why should the possibility of having to adhere to the duty of trust and confidence on other occasions be regarded as a good reason for refusing to do so in this particular case? Logically it cannot be a justification.[103]There is no reasonable and proper cause for the University’s objectively unfair conduct, which is serious enough to undermine the relationship, and thus the refusal to allow Dr Palmer to accompany Professor Stevens to the meeting is a breach of the overriding term of trust and confidence.

DISCRETION

[104]It is therefore unnecessary for me to go on to consider in any detail the further and alternative ground of challenge raised by Mr Hyam to the University’s purported exercise of its discretion to waive adherence to the literal requirements of paragraph 3.21.35. Whilst there is some force in the criticism that the University has failed to take into account all the relevant factors that it should have done before making up its mind, some of those factors (such as the difficulties for Professor Stevens in finding an appropriate member of staff to accompany him) have not been fully articulated until recently.[105]Matters are further complicated by the fact that in my judgment there is a separate and distinct layer of discretion under the agreed procedure that thus far has been ignored – although the request to allow Dr Palmer to attend was very properly directed to Professor Alderson. As I have already said, the person with the discretion under the agreed investigation procedure to permit anyone to attend the meeting, besides someone that Professor Stevens has the contractual right to insist must attend, is the investigator. The nominated investigator, Professor Alderson, has a free rein over the investigation and over matters of procedure subject only to ensuring that the rights enshrined in paragraph 3.21.35 are respected. He has never exercised that discretion, which plainly exists despite Mr Sutton’s valiant attempt to persuade me otherwise.[106]It is understandable why Professor Alderson did not wish to get involved in the dispute and passed the request to the University to deal with, and I intend no criticism of him for doing so. Nevertheless, the decision was really a matter for him. The University would not have been entitled to interfere either with the decision-making process or with the decision, any more than Professor Stevens would. Had I not concluded that there was a breach of the term of trust and confidence I would have directed that the matter be left to Professor Alderson to determine, but (no doubt to his relief) that will not be necessary.

CONCLUSION

[107]For the reasons set out above, the express terms of Clause C50 of the Clinical Academic Conditions do not oblige the University to apply HEFT’s disciplinary policy or those parts of it which would give Professor Stevens more favourable protection than its own disciplinary policy. Nor is it permissible to imply a term into the contract or read paragraph 3.21.35 as implicitly providing that the employee under investigation should be permitted to be accompanied by a Trade Union “or equivalent” representative of his choice.[108]However, on the facts of this particular case, it would be conspicuously unfair for the University to insist on adherence to the literal terms of that paragraph so as to deny Professor Stevens the accompaniment of Dr Palmer at the investigatory meeting, and that behaviour is 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 without good and sufficient reason. I am prepared to grant a declaration to that effect, but I shall assume that it will be unnecessary for me to grant an injunction, as I have no reason to suppose that the University would fail to abide by the terms of the declaration.

Cited in 15 later judgments

and 6 more of the most senior