Stevens V University of Birmingham (2016) 4 All ER 258

258 All England Law Reports [2016] 4 All ER
a
Stevens v University of Birmingham
[2015] EWHC 2300 (QB)
b
QUEEN’S BENCH DIVISION
ANDREWS J
21, 22, 31 JULY 2015
c
Employment – Contract of service – Implied term of trust and confidence –
Disciplinary procedure – Right to be accompanied at investigation meeting – University
refusing accompaniment by representative of medical defence organisation – Whether
refusal in breach of overriding contractual obligation of trust and confidence governing
relationship between employer and employee.
d
The claimant was a clinical academic and chair of medicine at the defendant
university. His contract of employment with the university was dependent
upon his having and retaining an honorary appointment contract with an NHS
Foundation Trust (‘HEFT’) under which he also undertook clinical duties.
As part of his research activities, the claimant was responsible for the overall e
conduct of five clinical trials. The university and HEFT jointly sponsored most
of the trials and each had various responsibilities in relation to them: HEFT
was responsible for ensuring compliance with Good Clinical Practice (‘GCP’)
in two of the trials, and the university was responsible in the third trial.
Following an inspection by the Medicines and Healthcare Products Regulatory
Agency (‘MHRA’), which reported various breaches of GCP, the university f
suspended the claimant from duties whilst it carried out an internal disciplinary
investigation. It also commissioned an internal management review.
The university requested that the claimant attend an investigation meeting.
Clause C50 of the university’s clinical academic conditions of employment
provided that clinical academic staff were ‘subject to the [university] g
disciplinary procedure’ but that in respect of duties carried out under the
honorary contract they were ‘subject to the disciplinary procedure referred to
in the Trust’s honorary contract’. The university terms and conditions were
also stated to be subject to the university ordinances, cl 3.21.35 of which
provided that at an investigation meeting the claimant ‘shall have the right to
be accompanied by a member of Staff or a trade union representative of his or h
her choice’. The claimant was not a member of a trade union, but he was a
member of a leading medical defence organisation (‘MPS’) and sought to be
accompanied at the investigation meeting by P, an MPS representative.
The university refused, on the basis that P was neither a member of staff nor a
union representative. In his role on the clinical trials the claimant was acting in
a dual capacity, and his behaviour was governed by both contracts of j
employment. The disciplinary procedures in HEFT’s policy documents were
wider than those of the university and allowed for accompaniment by a
representative from a defence organisation. The claimant commenced
proceedings. The principal issues for the court were whether the claimant had
a contractual entitlement to be accompanied by P and whether the university’s
QBD Stevens v University of Birmingham 259
a refusal to accede to his request was a breach of the overriding contractual

obligation of trust and confidence that governed the relationship between
employer and employee.
Held – The express terms of cl C50 of the clinical academic conditions did not
b oblige the university to apply HEFT’s disciplinary policy or those parts of it
which gave the claimant a more favourable protection than its own disciplinary
policy. Nor was it permissible to imply a term into the contract or read
para 3.21.35 of the ordinance as implicitly providing that the employee under
investigation should be permitted to be accompanied by a trade union ‘or
equivalent’ representative of his choice. However, it was well established that a
c contract of employment was subject to an implied term that an employer
could 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, and that overriding obligation of
trust and confidence was independent of and in addition to the express terms
and might qualify behaviour which otherwise appeared to be justified because
d it fell within the literal interpretation of those express terms. In all the
circumstances of the instant case, it would be conspicuously unfair for the
university to insist on adherence to the literal terms of para 3.21.35 so as to
deny the claimant the accompaniment of P at the investigatory meeting. The
university’s behaviour seriously undermined the relationship of trust and
confidence and there was no reasonable and proper cause for its objectively
e unfair conduct. The behaviour was 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
and a declaration would be granted accordingly (see [23], [52]–[55], [65], [66],
[70]–[72], [81], [82], [87]–[99], [103] [107], [108], below); United Bank Ltd v Akhtar
f [1989] IRLR 507 applied.
Notes
For duty to treat employee with respect: implied term of trust and respect, see
39 Halsbury’s Laws (5th edn) (2014) para 48.
g
Cases referred to
A-G of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 2 All ER 1127, [2009]
1 WLR 1988.
Alexander v Standard Telephones and Cables Ltd (No 2), Wall v Standard Telephones
h and Cables Ltd (No 2) [1991] IRLR 286.
Ali v Christian Salvesen Food Services Ltd [1997] 1 All ER 721, [1997] ICR 25,
[1997] IRLR 17, CA.
Deadman v Bristol City Council [2007] EWCA Civ 822, [2007] IRLR 888.
Eastwood v Magnox Electric plc, McCabe v Cornwall CC [2004] UKHL 35, [2004]
j 3 All ER 991, [2005] 1 AC 503, [2004] 3 WLR 322.
Gogay v Hertfordshire CC [2000] IRLR 703, CA.
Horkulak v Cantor Fitzgerald International [2004] EWCA Civ 1287, [2004] IRLR
942, [2005] ICR 402.
Johnson v Unisys Ltd [2001] UKHL 13, [2001] 2 All ER 801, [2003] 1 AC 518,
[2001] 2 WLR 1076.
Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789, a
[2009] IRLR 829, [2010] ICR 101.
Lakshmi v Mid-Cheshire Hospitals NHS Trust [2008] EWHC 878 (QB), [2008]
IRLR 956.
Mahmud v BCCI SA (in liq), Malik v BCCI SA (in liq) [1997] 3 All ER 1, [1998] AC
20, [1997] 3 WLR 95, HL.
Rose v Leeds Dental Team Ltd (2013) UKEAT/0016/13, [2014] IRLR 8, [2014] ICR b
94.
Société Générale v Geys [2012] UKSC 63, [2013] 1 All ER 1061, [2013] 1 AC 523,
[2013] 2 WLR 50.
United Bank Ltd v Akhtar [1989] IRLR 507, EAT.
West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, [2014] 1 All ER c
943, [2014] ICR 194, [2014] IRLR 227.
Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347, [1981] ICR
666, EAT; affd [1982] IRLR 413, [1982] ICR 693, CA.
Claim d
The claimant, Martin John Stevens, brought proceedings against the defendant,
the University of Birmingham, in respect of their refusal to allow him to be
accompanied at an investigation meeting by Dr Roger Palmer, a representative
of a medical defence organisation. The facts are set out in the judgment.
e
Jeremy Hyam (instructed by RadcliffesLeBrasseur) for the claimant.
Mark Sutton QC (instructed by Mills & Reeve LLP) for the defendant.
Judgment was reserved.
f
31 July 2015. The following judgment was delivered.
ANDREWS J.
[1] The claimant, Professor Stevens, is a highly distinguished clinical
academic. In 2004 he was appointed to the Chair of Medicine (Diabetes and g
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 6,320 academic staff. h
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’. j
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.
QBD Stevens v University of Birmingham (Andrews J) 261
a [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
b 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
c 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
paras 23–34 of his first witness statement, which it is unnecessary for me to
d 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
e 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
f 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.
g 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
h 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
j 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 a

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 b
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, c
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 d
Deeks’s 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 e-mail was sent to the General Medical Council
e
(‘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. f
[11] Professor Deeks’s 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 g
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 h
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 j
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’.
a [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.
b 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’s registration, it is vitally important that it be carried
c out fairly.
[15] In a letter to Professor Stevens dated 16 February 2014 from a Ms Jane
Capewell, an external human resources 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
d 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
e 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
f 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
g 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
h longer a compulsory requirement of his contract with HEFT, but cl 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
j 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 a
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’s 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 b
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 c
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 d
to attend the meeting unaccompanied, and that this would be unfair.
[21] On the face of it, Professor Stevens’s 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 e
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 f
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. g
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 h
seriously damage the relationship of mutual trust and confidence between
itself and the employee: see eg Mahmud v BCCI SA (in liq), Malik v BCCI SA (in
liq) [1997] 3 All ER 1, [1998] AC 20, Gogay v Hertfordshire CC [2000] IRLR 703;
Deadman v Bristol City Council [2007] EWCA Civ 822, [2007] IRLR 888; and,
more recently, Rose v Leeds Dental Team Ltd (2013) UKEAT/0016/13, [2014]
IRLR 8, [2014] ICR 94, an egregious example of an employer’s breach of the j
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 [2001] UKHL 13,
[2001] 2 All ER 801, [2003] 1 AC 518 (at [24]) as an ‘overarching obligation
a 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
b 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,
McCabe v Cornwall CC [2004] UKHL 35, [2004] 3 All ER 991, [2005] 1 AC 503
(at [11]) Lord Nicholls of Birkenhead said that the term means, in short, that an
employer must treat his employees fairly.
c [25] A useful example of the practical operation of the implied term is United
Bank Ltd 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
d 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
e 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 para 37 he referred to the earlier judgment of
Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR
347, [1981] ICR 666 in which he explained that—
f
‘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.’
g
[27] Knox J went on to say at para 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
h 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.’
j
[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 eg Horkulak v Cantor
Fitzgerald International [2004] EWCA Civ 1287, [2004] IRLR 942, [2005] ICR 402. a
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 paras 44–48.
[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 [2009] EWCA Civ
789, [2009] IRLR 829, [2010] ICR 101 (at [74]) per Smith LJ. b
THE RELEVANT CONTRACTUAL TERMS

[30] The letter to Professor Stevens from the University offering him
appointment to the chair is dated 10 February 2004. It states that the c
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 d
Conditions (Clinical). The Conditions of Employment governing Clinical
Academic Teaching and Research Staff (Clinical Academic Conditions) contain,
at cl 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 e
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 f
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.
g
[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 h
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 j
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
a 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
b 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.
c [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 cl 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
d 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 West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, [2014]
1 All ER 943, [2014] ICR 194 (at [1]) Lord Hodge explained how, by the
Directions on Disciplinary Procedures 2005 issued pursuant to powers under
e 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
f 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
g 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
h 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
j 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 para C50 and the
demarcation of clinical and academic responsibilities in Professor Stevens’s 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 para C50 draws a
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 b
referred to in cl C50 (‘the Ordinance’) provides, by cl 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 c
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.’
d
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 cl 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 e
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’s involvement in the
trials is apparently being carried out under Pt V of the Ordinance which is f
entitled ‘Procedure for Dealing with Serious Issues’. This provides, in
para 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 Pt III, the
Vice Chancellor or Vice-Principal shall nominate a person to conduct ‘such g
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 Pt III, there is no mention under Pt V of the h
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 Pt III, the purpose of the investigation is not expressly referred to. j
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
para 3.21.36 should be taken.
[43] The key paragraph is 3.21.35 which provides as follows:
a ‘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
b 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
c 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
d panel and how the hearing is to be conducted. For example, under para 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 three but no more than five members. This demonstrates that
the position of clinical academics was not overlooked when the Ordinance was
agreed.
e [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
f 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.
g
[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
h 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
j 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 a
‘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 Hospital
NHS Foundation Trust [2009] IRLR 829, [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 b
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 c
NHS and universities. The Follett Report, published in September 2001, made a
number of recommendations including, at para 62, a recommendation
pertaining to clinical research. It describes this as a good example of a situation
where both parties (ie the university and the NHS Trust) are inextricably
involved:
d
‘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 e
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 f
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 g
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.
h
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 cl C50 of the Clinical Academic Contract should be interpreted as j
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
a 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
b between them). Moreover, as I have already illustrated, the Ordinance itself
contains express provisions addressing the position of clinical academics.
Despite cl 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
c 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.
d [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 Dr Palmer with him to an
e 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
f 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
g
Ordinance, or at least the provisions of para 3.21.35, are terms of Professor
Stevens’s 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
h 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 and
Cables Ltd (No 2), Wall v Standard Telephones and Cables Ltd (No 2) [1991] IRLR
286. Hobhouse J held at para 31 that the court must ascertain the contractual
j 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 Deadman v Bristol City Council [2007] EWCA Civ 822, [2007] IRLR 888 a
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 b
contractual terms; others, such as the ‘integrated equalities policy’ were not.
[59] Moore-Bick LJ, 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 c
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 d
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 e
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 f
and the Ordinance, in that they each contain a mixture of policy, guidance, and
rights or obligations. However in Deadman v Bristol City Council, 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 g
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 (QB), h
[2008] IRLR 956, 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 cll 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 cl C50. The court, following j
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.
a [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
(eg para 3.21.4, or the description of the purpose of an investigation under
Pt III in para 3.21.13) or guidance (eg the examples of gross misconduct given
in para 3.21.12) to those using the language of contractual terms. He
b 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
para 3.21.35 could be identified as conferring express contractual rights upon
c 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
d 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
e (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
f 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,
g 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’s 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
h 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 para 3.21.35 are to be
contrasted with aspects of the investigation that are not expressly addressed in
j 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
para 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 a

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 b
employed by HEFT were interviewed, they were allowed to be accompanied
by persons outside the two categories specified in para 3.21.35, such as a
human resources 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, c
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’s 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 d
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’s inspection and review of the
trial master file documents in January 2015.
[70] The ‘rights’ that are conferred upon the person under investigation by
para 3.21.35 have one common characteristic. They are all concerned with e
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 f
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
para 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 g
language of para 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 para 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 h
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. j
[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
a 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 para 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, ie to fulfil the same supporting role for the employee as the external
b human resources 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 (eg in terms of ensuring
c 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.
d [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
e 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
para 3.21.35 involves implicitly adding the word ‘only’. However it was
common ground that the two categories expressly referred to cannot be
f 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
g 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
h 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
j 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 a

hearing by a trade union representative or another of the employer’s workers.
Therefore, when it was introduced, at the union’s behest, para 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 b
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 c
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 d
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] 1 All ER 721 at 726,
[1997] ICR 25 at 31, 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. e
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 f
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 A-G of Belize v Belize g
Telecom Ltd [2009] UKPC 10, [2009] 2 All ER 1127, [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 h
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 Société Générale v Geys [2012]
UKSC 63, [2013] 1 All ER 1061, [2013] 1 AC 523 (at [55]–[56]). The term of trust j
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
a 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
b
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 para 3.21.35, that
such a person should not be put at a disadvantage. Likewise it could be argued
c 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 para 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
d 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
e 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
f 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
g 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.
h [87] I am unable to conclude that it can legitimately be inferred on A-G of
Belize v Belize Telecom Ltd 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
j 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 a
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 b
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 c
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 para 50 of Knox LJ’s judgment which I have quoted in para [27],
above is not limited to cases of that nature. It is true that the situation with d
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 e
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 f
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 CC [2000] IRLR 703 at [55] per Hale LJ.
[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 g
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 h
Anderson’s report containing information that would or might lead the
Vice Chancellor to decide to take no further action or to proceed under Pt III,
and containing information that would lead him to decide to convene a
disciplinary hearing under Pt V. Therefore the ability to have legal
representation at a later stage does not ‘cure’ any unfairness at the
investigatory stage. j
[92] I have no hesitation in finding that the University’s behaviour in refusing
his request to be accompanied by Dr 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 Dr Palmer to attend, and the
suggestion made at one point that he might sit quietly outside so that Professor
a 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
b the decision maker. I appreciate that the process is not, as yet, adversarial.
In many cases the provisions of para 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 human resources consultant, who will attend, and it has provided
c 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
d 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
e 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
f 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
g 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
h 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.
j However, the reality is that the ‘choice’ given to him by para 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, a
otherwise they would not have provided Professor Alderson with Ms van Riel
to assist him. Thus para 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 b
a matter outside Professor Stevens’s 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 c
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’s 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 d
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 e
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. f
[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, eg if it bypassed the investigation altogether g
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 h
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 j
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
a 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.
b 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
c 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
d 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 para 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
e 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
f 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
para 3.21.35 are respected. He has never exercised that discretion, which plainly
g
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
h 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.
j CONCLUSION
[107] For the reasons set out above, the express terms of cl 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 para 3.21.35 as implicitly
providing that the employee under investigation should be permitted to be a

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 b
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. c
Order accordingly.
Wendy Herring Barrister.

Stevens V University of Birmingham (2016) 4 All ER 258

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258 All England Law Reports [2016] 4 All ER

a refusal to accede to his request was a breach of the overriding contractual

Dental Sciences, in preparation for the inspection, and with a view to a

THE OBLIGATION OF TRUST AND CONFIDENCE

a implied by law as an incident of the contract of employment’. Although the

THE RELEVANT CONTRACTUAL TERMS

‘Members of clinical academic staff are subject to the disciplinary

a organisation about that decision. Following a disciplinary hearing, and any

‘the procedures set out in this Ordinance apply to a member of clinical

a ‘Before any investigation referred to in paragraph 34 above the member

‘At any stage of this process—or subsequent disciplinary action—the

WHAT IS THE STATUS OF PARAGRAPH 3.21.35 OF THE ORDINANCE?

overarching obligation of trust and confidence may require such a meeting to a

a submission, which would lead to an undesirable lack of consistency, with some

hearing. That statute entitles an employee to be accompanied at a disciplinary a

a conflict in accordance with Lord Hope’s suggested approach in Geys at [24],

providing that the employee under investigation should be permitted to be a

Wendy Herring Barrister.

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