Yes, on the facts, held the High Court in Stevens v University of Birmingham.
The Claimant academic at the Defendant University was the subject of allegations regarding his role as Chief Investigator to clinical trials of patients suffering with diabetes. He was later invited to a disciplinary investigation. His employment contract entitled him to the statutory minimum choice of representation (trade union representative or colleague).
However, he was not a member of a union, nor did he have colleagues employed by the University suitable to accompany him. He had, however, from the date of the allegations been assisted via the Medical Protection Society ('MPS') by a representative, Dr Palmer.
The court held that the University was breaching the implied term of trust and confidence by failing to permit Dr Palmer to represent him due to (a) the objective perception of inequality of arms in the circumstances, (b) the seriousness of the allegations, (c) that the MPS served a similar function to a union and (d) the Claimant had been permitted the assistance of Dr Palmer to that point. The court went on to grant a declaration to that effect.
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