His duties included leading and co-ordinating a programme of research into the aetiology and management of diabetic neuropathy, foot complications and heart disease complicating diabetes. In addition he led the multidisciplinary diabetic foot service and diabetic neuropathy service across the Heart of England NHS Foundation Trust (HEFT), the organisation from which the University received funds to pay his salary.
Professor Stevens carried out clinical trials for HEFT and the University, in accordance with Good Clinical Practice (GCP). In December 2013 he was himself concerned that there had been breaches of GCP and he reported this. An inspection was carried out and established multiple breaches with the result that Professor Stevens was suspended from any duties associated with research with effect from 20 December 2013. At about the same time the University’s Pro-Vice Chancellor commissioned a management review to determine whether or not any disciplinary action was warranted.
In February 2014 the matter was referred to the General Medical Council, ostensibly on behalf of both HEFT and the University but in fact only on behalf of the University since HEFT was not involved in the disciplinary process.
Following the completion of the management review Professor Stevens was suspended from all duties in July 2014. There were 28 alleged breaches of the University’s Code of Practice for Research, although no allegations that patients were put at risk or inappropriately treated.
Arrangements were made for an “investigation meeting” and Professor Stevens was told that he could be accompanied by a trade union representative or an employee of the University. Professor Stevens was not in a union but was a member of the Medical Protection Society, a medical defence organisation. Professor Stevens wished to be accompanied by Dr Roger Palmer, an MPS representative who had been supporting him since the initial allegations were made in December 2013. The University refused on the basis that Dr Palmer was neither a member of staff nor a union representative. He maintained that he had no friends who were employees and would be suitable to accompany him other than members of staff involved in the trials who might therefore be called as witnesses.
The University contended that it was concerned that by allowing Dr Palmer to accompany Professor Stevens there would be a departure from the terms of the contract of employment and, in particular, the disciplinary procedures agreed between the University and its approved Union in 2008. It did not wish to create a precedent.
Accordingly the matter which had to be determined by Mrs Justice Andrews, sitting in the High Court, was whether Professor Stevens did or did not have a contractual entitlement to be accompanied by Dr Palmer.
All contracts of employment incorporate an implied term that an employer must not, without reasonable and proper cause, conduct itself in a manner that it likely to destroy or seriously damage the relationship of mutual trust and confidence between itself and the employee. Having considered the law and the applicable documents including, in particular, the agreement reached with the Union in 2008 Mrs Justice Andrews concluded that the overriding obligation of trust and confidence required the University to allow Professor Stevens to be accompanied by his chosen representative.
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.
She rejected the suggestion that any perceived injustice could be cured by allowing the choice of representative at any subsequent disciplinary meeting, bearing in mind that this was an investigation meeting. The allegations being investigated were extremely serious and could have serious ramifications for professor Stevens personally and professionally. It was also relevant that Professor Stevens had had the assistance of Dr Palmer throughout “which makes it even more remarkable that he should be denied it at the interview, when it is probably of most value to him”.
As for the question of whether the University had “reasonable and proper cause” for its stance, based on its unwillingness to depart from the collective agreement, that was not a sufficient justification. It was noted that Dr Palmer was unaware of any other university in the country that refused MPS representation at investigatory meetings. Accordingly Mrs Justice Andrews made a declaration that Professor Stevens was entitled to be accompanied at the investigatory meeting by Dr Palmer. It was felt that an injunction was unnecessary since there was no reason to assume that the University would not comply with the declaration.
The case is a useful reminder that sticking rigidly to “the rules” is not always the best course of action for an employer. Although the University could point to specific requirements and limitations that was not enough and the duty of trust and confidence required the wider consideration of overall fairness.