Case Note on Stevens V University of Birmingham[1]

The manner in which disciplinary investigations are conducted is of significant importance to employer and employees alike. For an employee it is critical that a disciplinary investigation is conducted fairly and objectively as experience tells us it may be next to impossible to overturn findings of fact at a later stage (whether before a statutory tribunal, a full disciplinary hearing or a Court of Law). For an employer it is imperative that their procedures are robust and that decisions made can survive subsequent scrutiny.

An important procedural issue that can arise during disciplinary investigations is the employee’s entitlement to be accompanied/represented at the investigation. Generally speaking, representation in an investigation can be easily accommodated. What is often at issue, however, is the nature of such representation and in particular whether it includes legal representation or representation of an employee's choice The issue is generally provided for in the employee’s contract of employment, the company handbook/code of conduct, collective agreements and/or in practice and the Courts will often be reluctant to interfere with what are essentially the agreed rules of the workplace.

S.I.146 of 2000[2] is important in this context as it contains general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice in giving effect to such procedures. The principles and procedures of the Code constitute the Code of Practice for the purposes of the Industrial Relations Act 1990 and are deemed to apply unless alternative agreed procedures exist in the workplace, which conform to its general provisions for dealing with disciplinary issues.  While the Code outlines the principles of fair procedures for employers and employees generally, it is of particular relevance to situations of individual representation. Significantly for present purposes, the expression “employee representative” includes “a colleague of the employee’s choice and a registered Trade Union but not any other person or body unconnected with the enterprise”. So while the Code of Practice provides for an entitlement to representation in disciplinary procedures, it makes no reference to this being legal representation or a representative of choice.

In Burns v Hartigan[3] the Supreme Court found on the facts before them that legal representation was not necessary as the matters at issue were factual and connected with the day to day running of the prison and could easily be defended without a lawyer. They held that there was no automatic entitlement to legal representation at a disciplinary hearing and that, unless provided for in the contract of employment, legal representation at a disciplinary hearing should be the exception rather than the rule.  However, the Court found that legal representation may be appropriate in exceptional cases irrespective of the wording of any rule, code or contract. The Court suggested that the kind of factors that might be relevant for consideration as to whether legal representation was required included:

(i) The seriousness of the charge and the potential penalty.
(ii) Whether any points of law are likely to arise.
(iii) The capacity of an employee to present his own case.
(iv) Any procedural difficulty.
(v) The need for reasonable speed in making the adjudication, (that being an important consideration), and,
(vi) The need for fairness between the parties and in particular whether from the accused’s point of view, legal representation was necessary given the facts of the case.

In O’Halloran v Dunnes Stores[4] the claimant was dismissed for breaches of the respondent’s policies and in particular for serving family members and alleged abuse of the company policy on the use of her privilege card. The plaintiff claimed the respondent had breached her right to fair procedures as she was not allowed to have her Trade Union Official attend at the disciplinary meetings with her as provided for in the SI 46/2000 Code of Practice. She was entitled under the Company policy to bring a colleague of her choice. The EAT dismissed the plaintiff’s claim on a number of grounds and held that the respondent had a Disciplinary Policy in place (which the claimant had signed up for)  which was in general conformity with  the  guidelines in the SI 46/2000 Code, which also defined “employee representative" as including a "colleague of her choice". No reference was made to the fact that the Code also makes provision for a trade union representative.

In Fanning v Commissioner of An Garda Síochána[5] Mr. Justice Hedigan in the High Court observed that, when assessing the role of natural justice and fair procedures in disciplinary procedures, “the disciplinary policy in question was clearly a guide and not a piece of disciplinary legislation” and that “the subject matter of the within proceedings is not a criminal trial but an internal enquiry.  Such enquiries may proceed on a less formal basis and the Court should look at the enquiry in the round in assessing whether fair procedures were followed”.


Right to be Accompanied – Stevens v University of Birmingham

These principles and the right to be accompanied at a disciplinary investigation meeting were considered recently in a  decision of the English High Court in Martin John Stevens v University of Birmingham:[6]

In this case the Claimant, Professor Stevens, was a distinguished clinical academic in the United Kingdom who held a Contract of Employment with both the University of Birmingham and the Heart of England NHS Foundation Trust (which enjoyed the admirable initials “HEFT”).  Professor Stevens was a consultant who was charged with leading and coordinating a programme of research into complicated diabetic conditions. The case involved his role in supervising and conducting five controlled clinical trials of medical products which were jointly supervised by HEFT and by the University.  In December 2013 Professor Stevens had himself raised concerns that there had been breaches of good clinical practice in relation to one of the trials. This prompted the University to offer support and advice and the Professor liaised with an employee of the University in preparation for a regulatory agency’s investigation. Following the agency’s inspection of some of the trials, various breaches of good clinical practice were reported and the University suspended Professor Stevens from any duties associated with research, whilst it carried out an internal disciplinary investigation into allegations of misconduct.

Around the same time the Pro-Vice Chancellor of the University commissioned an internal management review 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 sufficient to warrant any disciplinary action being taken against him.

The allegations of misconduct that were alleged related to an alleged lack of oversight of the team, inappropriate delegation, failure to keep proper records or samples, and other matters pertaining to the way in which the trials were conducted or documented.

The issue at the heart of the case concerned a standoff that had occurred between Professor Stevens and the University as to his asserted entitlement to be accompanied to an investigation meeting by a Dr. Palmer who was a Medical Protection Society (MPS) representative who had been supporting the Professor ever since the initial allegations had been made in December 2013. Dr. Palmer had considerable familiarity with clinical trials and an LLM degree in medical law and ethics, but no professional legal qualification. The plaintiff’s position was that Dr. Palmer was equivalent to, and would be fulfilling the same role as, a Trade Union representative. The University refused to allow Dr. Palmer be present at the investigation meeting. Its position was that Professor Stevens was only allowed to bring along another member of staff or a Union representative, and Dr. Palmer was neither. The University was unwilling to move from that stance.

The plaintiff explained in his evidence that he had no friends who are employees of the University who would be suitable to accompany him to the meeting. He had no regular contact or meetings with University employees other than members of his own laboratory. He clearly could not bring with him any member of staff who was involved in the trials that were the subject of the investigations and might be called as a witness. He maintained that if he was unable to bring Dr. Palmer with him, he would be compelled to attend the meeting unaccompanied, and that this would be unfair. The University’s position was that they had a concern that what the University contended would be a departure from the terms of the Contract of Employment between itself and Professor Stevens and would effectively open the floodgates to similar requests. Put simply, the University didn’t want to create a precedent. The issue for the Court was whether Professor Stevens did or did 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 was a breach of the overriding contractual obligation of trust and confidence that governs the relationship between employer and employee.

The Court considered in detail the various documents setting out the terms of the plaintiff’s conditions of employment. These included the conditions of employment governing clinical academic teaching and research staff in the University. Having examined these documents in great detail, Andrews J. considered the important question whether the University’s insistence that Dr. Palmer should not be allowed to accompany Professor Stevens to the meeting amounted to a breach of the implied term of trust and confidence. She noted that 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 Herefortshire County Council[7].

The University submitted that the refusal by the University to allow Dr. Palmer attend the meeting was insufficiently serious to constitute a breach of the term of trust and confidence and that any perceived unfairness at this investigative stage is adequately compensated by the right to legal representation if the matter proceeds to a disciplinary hearing. Andrews J. expressly rejected this submission, holding that the investigatory meeting does not inexorably proceed to 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 the investigator’s report containing information that would or might lead to a decision to take no further action or to proceed to convene a disciplinary hearing. Therefore, the Court concluded, the ability to have legal representation at a later stage does not “cure” any unfairness at the investigatory stage.

Andrews J. concluded that on the facts she had no hesitation in finding that the University’s behaviour in refusing the plaintiff’s request to be accompanied by his chosen companion was such as to seriously damage the relationship of trust and confidence between the University and the plaintiff. 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.

Whilst the Stevens case is no more than a persuasive authority – being a decision of the High Court in England - the  observations of Andrews J. at paragraphs 93-98 are of particular interest and may well be of some assistance in an Irish context (For ease of reference they are attached as Appendix A.)

The Stevens’ case is of interest because the Court expressly found that the express terms of the plaintiff’s clinical academic conditions as set out in the employment documentation did not oblige the responding University to apply the NHS Foundation Trust’s Disciplinary Policy or those parts of it which would have given Professor Stevens a more favorable protection than its own disciplinary policy. Nor was it permissible to apply a term into the contract as implicitly providing that the employee under investigation should be permitted to be accompanied by a Trade Union “or equivalent” representative of his choice. Nonetheless, on the facts of the particular case, and applying general principles of fair procedures law, the Court concluded that it would be conspicuously unfair for the University to insist on adherence to the literal terms of the Disciplinary Code so as to deny Professor Stevens the accompaniment of his chosen companion at the investigatory meeting, and that behavior amounted to 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. On that basis, the Court granted a declaration in favour of the plaintiff.

As with any precedent, the Stevens’ decision needs to be viewed in the context of its own particular facts. That said it is interesting that the English Court took into account the following factors in particular:

• The investigatory interview is a crucial stage of the process and both parties should be focused on putting the investigator in the best possible position to provide a comprehensive and balanced report to the decision maker.
• The Court applied an “equality of arms” approach when assessing whether it would be fair to allow a situation where the University had provided both HR support and technical assistance to the investigator whereas similar supports were not available to the employee.
• The Court was influenced by the fact that the allegations being investigated were extremely serious and had potentially significant ramifications for the plaintiff both professionally and personally. The more serious the matter, the more thorough the investigation that is required.
• The Court observed that other witnesses at the investigation stage were entitled to have a choice of companion at interview. It was remarkable therefore that in these circumstances Professor Stevens should be denied similar entitlements at interview when it was probably of most value to him.
•  The Court held that although the University was entitled to investigate the matter first and apply its own procedures, which were separate and distinct from those of the Hospital Trust, the fact that the plaintiff’s choice of companion at the investigatory meeting depended on the fatuity of which of his employers decided to initiate the investigation first “hardly strikes one as the epitome of fair dealing”.
• The Court expressly rejected as sufficient justification the rationale that to depart from the express terms of the first employer’s contract would be likely to upset the relevant Trade Union. The Court found that as long as Union members were not treated less favorably than non-union members the Union would be unlikely to be concerned about the creation of a level playing field for all employees.

In the criminal law field, here the Supreme Court held that an arrested person is entitled to legal advice prior to the commencement of any Garda interrogation. In DPP v Gormley and White[8] the Supreme Court quashed an attempted rape conviction on grounds that suspects who requested a lawyer cannot be questioned by Gardaí until they get that legal advice.

Clearly, there are different considerations in play in a criminal case, not least the constitutional right to legal aid. Nonetheless, one might imagine a submission being made in an appropriate case e.g. a disciplinary investigation involving allegations of child pornography, that constitutional developments such as this on the criminal side might be invoked by an employee facing a disciplinary investigation who is seeking to have his or her solicitor present in the investigation meeting to give “on the shoulder” advice.  Only time will tell whether such a submission might succeed. The Judgment of Andrews J. in the Stevens’ case emphasises once again that context is everything and that the facts of each individual enquiry will govern the extent to which natural justice entitlements apply to the investigative stage of the process.

Appendix 1:

Martin John Stevens v University of Birmingham, (2015) Ewhc 2300 (QB), Unreported, High Court (Andrews J) 31st July 2015

Extract of Judgment of Andrews J:

“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 behavior 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.”