Disciplinary hearings
A detailed examination of what constitutes a fair disciplinary hearing.
"... where disciplinary proceedings may possibly be held, but where further investigation is thought to be necessary, the appropriate course for an employer is to suspend the employee on full pay and, if so desired, to require that employee to remain away from work. After due investigation and before reaching a final decision, a disciplinary hearing is obviously necessary ..."
(per Mr Justice Wood, giving the judgment of the EAT in Clark v Civil Aviation Authority)
Failure to follow a fair dismissal procedure will, in the great majority of cases, make the dismissal unfair, and the focus of this Guidance Note - the disciplinary hearing - is an integral part of a fair dismissal procedure in cases of alleged misconduct.
The function of a disciplinary hearing is to try fairly the allegations against the employee, to decide whether or not they have been made out and, if and to the extent that they have, to decide what should be done about it (Slater v Leicestershire Health Authority). There is, however, a valid and important distinction between the process of investigating and ascertaining the facts and the process, consequent on what the facts reveal, of deciding whether or not dismissal is the appropriate penalty (Budgen & Co v Thomas).
Where it is decided to dismiss the employee, and he or she complains of unfair dismissal to an employment tribunal, the employer must show the reason for the dismissal and that this relates to the employee's conduct. Where the employer has done that, s.98(4) of the Employment Rights Act 1996 (the ERA) provides:
"... the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a)depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b)shall be determined in accordance with equity and the substantial merits of the case."
In this article, we look first at how the way in which a disciplinary hearing is conducted can make a subsequent dismissal unfair. We go on to analyse the three main elements that make up a fair disciplinary hearing.
PROCEDURAL FAIRNESS
In Spink v Express Foods Group Ltd, the EAT said: "Circumstances will inevitably vary ... However, fairness surely requires in general terms that someone accused [of misconduct] should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence, and to adduce his own evidence and argue his case. How each such disciplinary hearing is handled will lie very much in the hands of management, there may be more than one hearing, there may be adjournments for one reason or another and outside the basic and fundamental principles of fairness to which we have alluded, there may be many variations."
In other words, it is impossible to say that in every case any particular form of procedure has to be followed. There may be cases in which cross-examination is wholly unnecessary, and even other methods of achieving natural justice (see below) may not be wholly appropriate or required by a situation where an employer is considering an incident that has happened in the course of everyday work (Bentley Engineering Co Ltd v Mistry). However, although the procedure may vary from one situation to another, the industrial members of the EAT in Clark v Civil Aviation Authority suggested a broad approach on the lines set out in the box below.
Where there has been a procedural defect, the question that will always remain to be answered by the employment tribunal is: did the employer's procedure constitute a fair process? That question does not alter simply because the defect was a matter of policy, as the motivation of the employer in adopting the policy that led to the defect is not a relevant subject of inquiry. The defect has to be judged by its results rather than by the reason for its adoption.
In other words, the defect has to be analysed in the context of what occurred; and it may be that the analysis will produce the conclusion that the defect was so serious that the procedure was unfair. In that event, there will necessarily have been an unfair dismissal. The other possibility is that, although the defect did not produce a procedure that was intrinsically unfair, the results of the procedure taken overall were unfair. Where that happens, the tribunal will also be bound to conclude that the dismissal was unfair (Fuller v Lloyds Bank plc).
In Whitbread & Co plc v Mills, the EAT said that, although the question posed by s.98(4) of the ERA must be considered as a single question, the employment tribunal is bound in its deliberations to ask itself a number of subsidiary questions which will probably include: did the employer deal fairly with the employee during the disciplinary hearing? Not every formality of legal or quasi-legal process is required. Each set of circumstances must be examined to see whether or not an act or omission has brought about an unfair hearing.
If an employer has failed to take the appropriate procedural steps in any particular case, the one question that the employment tribunal is not permitted to ask in applying the reasonableness test under s.98(4) is the hypothetical question whether or not it would have made any difference to the outcome if those steps had been taken. But it is quite a different matter if the tribunal is able to conclude that the employer itself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case, the reasonableness test may be satisfied ( Polkey v AE Dayton Services Ltd).
In Pritchett and another v J McIntyre Ltd, two employees suspected of dishonesty were summarily dismissed without any interview or other opportunity of knowing specifically the misconduct with which they were charged. They complained of unfair dismissal to an employment tribunal, which decided that the dismissals were fair. It thought that the employer had evidence so clear and overwhelming, so utterly damning, that a reasonable employer in the same circumstances would have been entitled to assume that there could be no sensible possibility of an explanation or mitigating circumstances being advanced at an interview, if one were to be allowed. The employees appealed to the EAT.
The EAT held that the tribunal's decision was perverse, and granted a declaration that the dismissals were unfair. It offended reason to say that any reasonable employer could have said to itself that it would be pointless to offer the employees a chance of being heard before they were dismissed. If the employer had put the allegations of misconduct to the employees and invited an answer from them, perhaps they could have persuaded it to pin-point the case against them better. They might even have been able to provide alibis. Even if they did not succeed in throwing off the employer's suspicions of their guilt, they might at least have asked for leniency on some particular ground.
In Ellis v Hammond and Hammond (t/a Hammond & Sons), by contrast, an employment tribunal decided that the lack of a disciplinary hearing before an employee was dismissed for persistent bad behaviour did not make the dismissal unfair. The tribunal thought that "a disciplinary hearing would have been a futile exercise in this case and it was legitimately dispensed with", and the EAT thought it a reasonable inference that the tribunal was saying that the futility must have been apparent to the employer at the time of dismissal. The tribunal was not being "wise after the event". The EAT also held that the tribunal's decision was not perverse. The circumstances were exceptional, and the employer had shown what many would regard as a quite exceptional degree of latitude.
The incident that led to the employee's dismissal was the latest example of bad behaviour for which she had already received three written warnings. On the day in question, she swore at her supervisor who had asked her to work harder. She then provoked a fellow vegetable picker to lose her temper by throwing parsnips at her leg, and afterwards made out that she had been threatened by her. The incident was reported to her employer, who decided to warn her yet again. But this time he did so in front of her co-workers. This enraged her, and she accused him of employing the other picker only to get at her. She added that she would see him in court and then left. She never returned to work, and did not contact her employer to explain her absence before he dismissed her.
Agreed procedures
In determining whether a dismissal for misconduct allegedly in breach of an agreed procedure was fair or unfair, the employment tribunal must consider whether or not there was in fact a breach of the procedure and whether or not it was contractual. For it might be the view that a reasonable employer could be expected to comply with the full requirements of its own disciplinary procedure (Stoker v Lancashire County Council).
Employers ought to follow agreed procedures, but an employer's failure to observe its own contractually enforceable disciplinary procedure does not inevitably make a dismissal in breach of the procedure unfair. In determining whether or not it did, the employment tribunal must consider whether or not the employee was thereby denied the opportunity of showing that the real reason for his or her dismissal was not sufficient (Westminster City Council v Cabaj).
The fact that the procedure is not contractual is not likely to have a significant effect, according to the EAT in Stevens v Rank Xerox Ltd, because "the employee's right to fairness cannot be contingent on the adoption of a procedure." He or she cannot be more likely to succeed if the employer had provided him or her with a procedure and then not followed it than if there was no agreed procedure at all. Furthermore, said the EAT, employers should only depart from their own agreed or normal procedures "where the circumstances reasonably justify it".
Natural justice
Fairness and natural justice have a great deal in common. As the EAT put it in Clark: "The practice at disciplinary hearings will follow the rules of natural justice, which are really matters of fairness and common sense." However, according to the Court of Appeal in Slater, the rules of natural justice in this field do not form an independent ground on which a decision to dismiss may be attacked, although a breach of natural justice will clearly be an important matter when an employment tribunal considers the question posed by s.98(4) of the ERA.
Recently, in Welsh v Post Office, the EAT held that there is no special weight to be attached to a procedural defect being a breach of natural justice, although some breaches of natural justice may not be "curable" by an appeal (see Appeals against dismissal and the EAT's subsequent decision in Adivihalli v Export Credits Guarantee Department that whether or not an appeal "cured" an earlier procedural defect does not depend on whether the appeal process fell into the category of a rehearing or of a review of what had already occurred).
In Khanum v Mid-Glamorgan Area Health Authority, the EAT said how nearly a disciplinary hearing must approach to the full-blown procedure of a court in order to comply with the rules of natural justice is a matter of degree. But the EAT went on to hold that natural justice did not require anything more of a disciplinary hearing than that the employee should know the nature of the accusations made against him or her; that he or she should be given an opportunity to state his or her case; and that those conducting the hearing should act in good faith.
Subsequently, in Louies v Coventry Hood & Seating Co Ltd, the EAT held that the issue of natural justice "goes rather beyond" those three requirements, which we shall now examine in turn.
KNOWLEDGE OF ACCUSATION
In Bentley Engineering Co Ltd v Mistry, the EAT said: "... natural justice does require not merely that a man shall have a chance to state his own case in detail; he must know in one way or another sufficiently what is being said against him. If he does not know sufficiently what is being said against him, he cannot properly put forward his own case. It may be, according to the facts, that what is said against him can be communicated to him in writing, or it may be that it is sufficient if he hears what the other protagonist is saying, or it may be that, in an appropriate case, for matters which have been said by others to be put orally in sufficient detail is an adequate satisfaction of the requirements of natural justice ... it is all a question of degree."
Subsequently, in A v D, the EAT said natural justice requires an employee accused of misconduct to be placed in the position of knowing precisely of what he or she is accused and the detailed evidence whereby it would be substantiated.
Similarly, fairness in the ordinary way requires that an employee charged with misconduct meriting dismissal should be given at least an opportunity of knowing precisely what the charge against him or her is and an opportunity of answering it (Pritchett). To take a specific example, where an accusation is made of a particularly devious fraud; where the employee accused has given long and satisfactory service, and has recently been promoted because of such service; where the scheme alleged required for its success the involvement of other employees as innocent pawns; and where from the outset of any enquiry the employee has maintained his or her innocence, it behoves an employer to show considerable care to ensure that the whole of the evidence which is to be taken into account by the employer should be made available to the employee (Post Office v Singh).
Advance warning
It will normally be procedurally unfair to call an employee to what turns out to be a disciplinary hearing without warning him or her in advance of the nature of the hearing or of the nature of the charge that he or she will have to meet (in particular, whether or not the alleged misconduct is so serious that the employee's job is on the line). The employee should also be advised of any rights he or she may have under the employer's disciplinary procedure (para. 11 of the revised ACAS Code of Practice Disciplinary practice and procedures in employment), including the right to be accompanied (see below).
In Sartor v P & O European Ferries (Felixstowe) Ltd, a stewardess employed by P & O on its ships was requested on 16 August 1988 to attend a disciplinary hearing on 19 August. She was not given any information at that time as to the subject matter of the hearing. But she did know before the hearing that it concerned ship's stores, and that it arose out of a search carried out by two customs officers on 27 July. On that day, she was leaving the docks, driving her own car, with four passengers. The customs officers had asked each of the occupants to identify his or her luggage, which was searched. But no dutiable goods were found, and the vehicle was allowed to proceed.
At the hearing on 19 August, which was before the master of the ship on which the stewardess was serving, he asked her if she knew why she had been summoned to attend and she replied that she did not. The master then read out the statement of one of the customs officers that she had, on 27 July, handed him a shopping bag containing a catering-size pack of tea bags. The master asked her what she could tell him about the tea bags, and she replied that she knew nothing about them. He then said that he had reasonable grounds to believe that she had been in possession of the tea bags and that they had been removed from the ship. Accordingly, she was dismissed for theft or possession of stolen property. She complained of unfair dismissal to an employment tribunal.
The tribunal decided that the stewardess's dismissal was fair, and the EAT dismissed her appeal against that decision. But the Court of Appeal held that, whether or not she had a contractual right to be informed of the nature of her offence, as a matter of natural justice she ought to have been told the terms of the charge against her in sufficient time before the disciplinary hearing for her properly to prepare her defence. She was treated unfairly by not being given such advance notice. It was suggested that she could have asked the master for an adjournment to prepare her defence, but the fact was that a person in her position suddenly meeting a serious charge may not be aware of her rights.
In the view of the EAT in A v D, it was a serious procedural mistake to allow in at a disciplinary hearing evidence against a teacher given by one of his pupils to a police officer, when the teacher had no advance notice of it. The disciplinary sub-committee of the school's board of governors found the charges that relied on what the pupil had told the police officer in an interview to be proved, and one of these to amount to gross misconduct. In those circumstances, it would be "flying in the face of logic" to hold that the police officer's evidence (which was based on notes she made of the interview) was unimportant and did not affect the minds of the sub-committee members, who decided to dismiss the teacher.
The EAT added: "If that evidence was to be let in without adequate steps being taken, such as advance disclosure, to ensure that [the teacher] had a reasonable opportunity to assess it and to decide how best he might respond to it, how can it be said that the procedures, and therefore the dismissal, were fair?" The EAT concluded that the unfairness inherent in the procedure at the disciplinary hearing was "of fundamental importance". Throughout the hearing, the teacher had to contend with damaging evidence about which he would have had no more than a general idea in advance. In the EAT's judgment, such a fundamental flaw in the procedure made the dismissal unfair.
Witness statements
In Batty and others v British Steel plc, the EAT said: "As a matter of practice it will ordinarily be desirable that the employer does reveal the contents of [witness] statements which he obtains to the affected employee. If he does not do so, he runs the risk of a finding by the [employment] tribunal that the dismissal is unfair on the grounds of a procedural irregularity."
Further, in Louies, Mr Justice Wood, giving the judgment of the EAT, said: "It does seem to me that it must be a very rare case indeed for the procedures to be fair where statements which have been given in writing by witnesses and upon which in essence the employer is going to rely almost entirely - and that is this case - that an employee should not have a sight of them or that he should not be told very clearly exactly what is in them or possibly have them read to him. One understands that there may be delicate situations ... However, where the essence of the case, the main substance of the case, is contained in two statements which this employee asks to see and which he is refused without reason and upon which substantial reliance is placed, then prima facie to me it seems to be unfair."
However, in Batty, the EAT also said: "It should be understood that Louies lays down no statement of principle applicable in every case where the employer declines to provide copies of statements taken during the course of investigation to the employee being disciplined or his representative. Were that to be its effect it would place an unjustified gloss on the statutory test contained in [s.98(4) of the ERA]."
In Louies, the contents of the two statements were the substance of the case against the employee. Natural justice required that he should have the opportunity to refute them. In Batty, the essence of the case against the employees was that they had been party to falsifying shift records with a view to financial gain. Their supervisors' unsigned statements, which they had asked to see but were refused, were not central to that allegation, and they were aware that the supervisors did not support their case. In the EAT's view, the reasoning in Louies could be distinguished on the facts of Batty.
In Mistry, the real issue was who or what had provoked a fight which resulted in the dismissal of only one of the protagonists. At the latter's disciplinary hearing, he did not have either the written statement of the other protagonist or those of the witnesses to the fight. Nor did he have the opportunity of listening to the other protagonist or of asking him questions. Consequently, he really did not have an opportunity of knowing in sufficient detail what was being said against him on the issue that really mattered. It was for that reason, the EAT thought, that the employment tribunal had decided that his dismissal was unfair, and the EAT found it quite impossible to say that, on the facts of the case, that decision was perverse.
By contrast, in Vauxhall Motors Ltd v Ghafoor, the EAT held that an employment tribunal had applied too high a test in finding that an employee accused of having punched a fellow employee in the face did not see or hear what was being said against him. It was sufficient that, at the disciplinary hearing, statements made by the witnesses were read over to him.
In Fuller v Lloyds Bank plc, the witness statements on the basis of which an employer reached its decision to dismiss an employee, for allegedly smashing a glass in another employee's face at a Christmas party, were not disclosed to the employee in pursuance of the employer's policy of not disclosing witness statements. However, that procedural defect was not such as to make the employer's procedure intrinsically unfair so as to require the dismissal not to stand as fair. The allegation was a simple one and the employee knew exactly what was being alleged. Further, the overall process whereby the employee was dismissed was not unfair.
By contrast, in Post Office v Singh, the EAT held that an employment tribunal had correctly concluded that a reasonable employer would have made the witness statements available to the employee. At least one alleged conversation (which, if true, was damaging) and a number of inferences were put to him without him having any opportunity to consider the background contained in the statements from which those allegations were taken. Far less did he have an opportunity of testing the claims.
In A v D (see above ), the EAT held that the employment tribunal would have misdirected itself in law if it had applied Fuller to the facts of the case. According to the EAT, "the circumstances where failure to disclose [witness statements] would not be unfair are closely circumscribed."
Video evidence
In London Borough of Camden v Edwards, the EAT did not think it appropriate to lay down guidelines as to the use of videos by local authorities or other employers. It did consider, however, that there was some force in the criticisms directed by an employment tribunal at the council. The tribunal concluded that the council had acted unreasonably in failing to explain to an employee that there were circumstances in which his representative could view the video evidence that was such an essential element in the decision to dismiss him. Without having had the advantage of seeing the video, the employee's representative had little scope for a successful cross-examination of witnesses who had seen the video and given evidence as to their belief that the employee's accuser was telling the truth.
It seemed to the EAT to be important, particularly where video evidence and the assessment of that evidence is likely to form a major part of the decision to dismiss an employee, that the employee should know of his or her rights or potential rights in relation to the video, to give him or her a proper opportunity of challenging the expert evidence. The EAT considered Khanum, which was helpful but distinguishable on its facts. It said: "The law must move with the times to take into account factors such as the importance of video evidence."
Other evidence
In Fuller, the EAT acknowledged that it is normally desirable for the material on which a disciplinary investigation is founded, and on which any penalties may be based, to be made available to the person being disciplined.
In British Railways Board v Hammett, for example, it seemed to the EAT that a booking clerk dismissed by British Rail for fraudulently filling in vouchers should have been allowed to see a report from a handwriting expert on which the decision to dismiss him was essentially based. The report was the central link to identify the employee with the alleged fraud. It was vital. It was also open to comment from the employee or further enquiry, since the expert could not completely exclude the possibility that someone else filled in at least one of the vouchers. Furthermore, the report was not confidential, in the sense that it was going to disclose anything embarrassing to the employer.
In Ugrinic v Godfrey Davis (London) Ltd, the EAT took the view that it is important that any documents relating to a disciplinary hearing should be provided to the employee accused of misconduct in good time before the hearing, so that he or she can consider, and if possible agree, them. Ideally, the employee should also be present at any reconstruction of the incident giving rise to the charges against him or her, in order to satisfy himself or herself that the reconstruction is accurate.
Outside interference
In A v D (see above ), the decision as to what evidence should be disclosed to the teacher in advance was, in effect, taken out of his employer's hands since the police refused to hand over the video recording of the interview, a transcript of it or the police officer's notes. However, the EAT said the employer had the option not to rely on the police officer's evidence if the teacher could not be provided with a copy of her witness statement a reasonable time in advance of the hearing, as required by the employer's disciplinary procedure.
In PACT v Clark, an employer acted on the advice of the child protection unit of a local authority's social services department not to disclose to an employee allegations of "inappropriate touching" made against her by two young women in her care. However, the EAT saw no grounds for disturbing an employment tribunal's decision that such non-disclosure made the employee's subsequent dismissal unfair. The advice should not have overridden everything else. However sensitive the case, something had to be done to protect the employee's interests.
CHANCE TO EXPLAIN
The absence of an opportunity of self-defence can never make a dismissal automatically unfair (Pritchett). But an employer having prima facie grounds to dismiss an employee for misconduct will, according to Lord Bridge in Polkey, "normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation" (our emphasis). Lord Bridge added that the employer will "in the great majority of [misconduct] cases not act reasonably" unless and until it has taken those necessary procedural steps.
In a passage from its decision in Sillifant v Powell Duffryn Timber Ltd which was subsequently adopted by the House of Lords in Polkey, the EAT said: "... in the case of a failure to give an opportunity to explain, except in the rare case where a reasonable employer could properly take the view on the facts known to him at the time of dismissal that no explanation or mitigation could alter his decision to dismiss [see above], an [employment] tribunal would be likely to hold that the lack of 'equity' inherent in the failure would render the dismissal unfair. But there may be cases where the offence is so heinous and the facts so manifestly clear that a reasonable employer could, on the facts known to him at the time of dismissal, take the view that whatever explanation the employee advanced it could make no difference ..."
In McLaren v National Coal Board, Sir John Donaldson, giving the judgment of the Court of Appeal, said there may be no cause for an employer to ask an employee to explain his or her alleged misconduct if there is no possibility of the employee giving any explanation, or if the misconduct is plainly admitted. But the Court could not support an employment tribunal's decision that, although normally it would have been a fatal flaw not to ask an employee convicted of assault for his version of events before dismissing him, in the exceptional circumstances of the miners' strike it was not.
The Court of Appeal held: "No amount of industrial warfare, and no amount of heat, can of itself ever justify failing to give an employee an opportunity of giving an explanation of his conduct ... acceptable reasons for dismissing may change in a varying industrial situation, but the standards of fairness never change. They are immutable but are applied in a different situation."
According to the EAT in Meiszner v Hart Timber Preservation Ltd, giving an employee accused of misconduct an opportunity to answer the allegations made against him or her is "virtually an absolute right". There may, however, be "very extreme cases where it is impracticable and therefore unnecessary to give the employee a hearing or where the facts speak for themselves so loudly that there can be no possible point in having a hearing". In Sharma v British Gas Corporation, for example, the EAT upheld an employment tribunal's decision that the dismissal of an employee for persistently refusing to attend a disciplinary hearing without legal representation, to which she had no right, was fair.
In Pritchett (see above ), the EAT said that the employment tribunal, properly applying reason as reason is industrially understood, would have allowed itself to be influenced by the sort of reflections that were approved by the High Court in John v Rees. That was a case of alleged breach of natural justice, but the EAT thought that the following remarks from the High Court's judgment were apposite to a context of fairness of dismissal: "... the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."
Similarly, in Costello v Post Office, the EAT said: "It is of great importance that employees should be given a fair opportunity to comment upon any material evidence against them, and that would include a fair opportunity to comment upon any change in the evidence upon which the employer is proposing to proceed, even if the change is not necessarily one which, of itself, would exonerate the employee. It has been repeatedly pointed out that the importance of the principles of natural justice arises precisely because cases which appear open and shut may be capable of explanation or answer."
Nature of opportunity
In Clarke v Trimoco Motor Group Ltd and another, the EAT held that an employment tribunal had been wrong to equate the availability of a grievance procedure with affording an employee an opportunity of defending himself against a serious charge of dishonesty. The EAT considered that there is significance in the requirement of natural justice to give an opportunity to explain. The possibility of an employee using a grievance procedure did not, in the EAT's view, constitute the giving of such an opportunity. The two seemed to the EAT to be significantly different in kind. One requires a step by the employer, the other a step by the employee.
Similarly, in Qualcast (Wolverhampton) Ltd v Ross, the EAT said that the availability of an appeals procedure does not dispense with the obligation on management to invite an explanation in cases where dismissal for misconduct is contemplated. The presence of the appeals procedure is a mitigation of the ill consequences which follow from a lack of consultation in a case where consultation is required, but it does not amount to a justification for dispensing with the ordinary procedure of inviting an explanation.
An employee charged with misconduct must have an opportunity to defend or explain himself or herself to the person or persons who will take the decision whether or not to dismiss him or her (Budgen & Co v Thomas). Further, as a matter of normal practice, it is the duty of an employer to give an employee suspected of dishonesty an opportunity to explain at a time when it cannot be suggested that he or she is not completely himself or herself (Tesco Group of Companies (Holdings) Ltd v Hill).
Similarly, it is unlikely that an employee who is not sufficiently fluent in English, or who is deaf or has a speech impediment, will have a proper opportunity to explain without an interpreter. And in Read v Phoenix Preservation Ltd, the EAT held that, if two police officers who were present during a disciplinary hearing were there conducting a criminal inquiry and had administered a caution to the employee, it was impossible to say that he had every opportunity to put matters forward in his own defence. Nor should the police officers have been at the hearing without the employee's consent or foreknowledge.
In Compair Holman Ltd v Evans, the EAT held that an employment tribunal had been entitled to conclude that it was unreasonable for management to rush through a disciplinary hearing within a few hours of challenging the employee about his conduct. He had been signed off work for four months, but his employer had acquired strong prima facie evidence that he was regularly serving behind the bar of a pub during this period. Armed with this evidence, the employee's line manager and the company's operations director went to the pub one lunchtime and found the employee behind the bar "acting in a proprietorial manner". They put it to him that he had been cheating the company by pretending to be sick, and drawing sick pay, whilst working as a barman, and required him to attend a disciplinary hearing back at the office in two hours' time.
When challenged at the pub, the employee said he had been "filling in" for his wife who, as his line manager knew, ran the pub. He also knew that the employee lived there with his wife. At the disciplinary hearing, the employee declined to be represented. He was very agitated because his wife had an appointment, and he lost his temper. He considered that he had been spied on, and demanded to be told at once what the company's decision was. The operations director told him that he had defrauded the company by claiming sick pay whilst working in the pub, and dismissed him there and then. The employment tribunal found that the time that he was given to prepare for the disciplinary hearing was unreasonably short, and that the two managers allowed his conduct at the hearing to pressure them into rushing it through.
Calling witnesses
It must always be a question of fact for an employment tribunal to assess whether or not the calling and/or interviewing of a particular witness at a disciplinary hearing is crucial to the fairness of the proceedings (Watkins v BOC Transhield). In Watkins, the EAT held that there was ample evidence provided by the employee's own account which justified an employment tribunal's conclusion that the calling of two particular witnesses was not essential for a fair hearing.
In Yellow Pages Sales Ltd v Rejuwa, by contrast, it was conceded that a disciplinary hearing of allegations of sexual harassment against a manager was flawed because the person who chaired it, and who decided to dismiss the manager, never met, let alone interviewed, the two women making the allegations. He simply relied on the assessment of the person who had taken statements from them. It was obvious, however, that the essential issue at stake in the hearing was the credibility of the women as opposed to that of the manager, who denied the allegations.
The EAT gave the following guidance in National Welsh Omnibus Services Ltd v Jones: "A decision whether or not to call a witness - whether or not a complainant - may well depend upon the state of the evidence in the light of the investigation so far; the lack of relevant circumstantial detail in a statement; an attack on credibility; the suggestion of an improper motive in the witness; the reaction and attitude of the employee [to the witness's statement] and the presence or absence of a request from the employee or his trade union representative. Other factors may well arise with further experience."
Recently, in Catanach v London Borough of Lambeth, the EAT expressed concern about an employee's right to have witnesses called to support their statements tendered in evidence before a disciplinary hearing. The EAT was of the view that an employer must have good reasons for refusing to produce or to secure the attendance of a witness the employee has asked for. It is not always an answer for the employer to say that it does not see the relevance of having the witness present at a hearing. It may well be the case that the employee wishes legitimately to make use of that witness to adduce extra evidence over and above that which is contained in his or her statement, and the employee is deprived of that opportunity if the witness is not produced to give evidence.
The EAT added that a good reason for not producing a witness might be that the employer believes the employee intends to cause embarrassment by questioning him or her, or that the employee is seeking to delay the proceedings. Another good reason might be that the witness could not conceivably be relevant, or it might be the case that he or she is just not available. On all occasions when the matter has to be considered, according to the EAT, the yardstick that must be applied is whether or not a refusal to produce a witness is likely to cause unfairness in the proceedings.
Cross-examining witnesses
In some circumstances, it may amount to a breach of natural justice to refuse an employee accused of misconduct the opportunity of cross-examining a witness who has given evidence against him or her at the disciplinary hearing. Furthermore, there would be a procedural shortcoming which was sufficiently serious to justify a conclusion that the result of a disciplinary hearing could, without more, be regarded as unfair if the employer did not have any regard for the differences between conflicting evidence on which its decision to dismiss was essentially based (Robert Bosch Ltd v Morgan).
In Garrett v Lloyd's of London, the EAT held that provisions of an employer's disciplinary procedure gave an employee charged with misconduct an absolute right to require that relevant witnesses be called to give oral evidence at the disciplinary hearing so that he or she could question them. But they did not impose a duty on management to call such witnesses. The provisions in question read: "... (b) Evidence is then produced by line management. (c) The employee and colleague should be allowed to question any relevant witnesses ..."
The EAT also held that, by informing the employee of exactly what was in the signed statements made by three relevant witnesses, management did "produce" evidence at the disciplinary hearing. The word "produced" is of wide import and, in the context of a disciplinary hearing, evidence can be said to be produced when it is referred to and accurately summarised by management.
In Stevens v Rank Xerox Ltd, in breach of a contractual disciplinary procedure, an employee was denied the opportunity of listening to and questioning the woman alleging that he had sexually harassed her. An employment tribunal decided that that was not of itself sufficient to make his subsequent dismissal unfair, having regard to the fact that the woman was interviewed in his representative's presence and management went through what she had said with him line by line. The EAT held that the tribunal had been entitled to arrive at its decision on the facts of the particular case. It added that there may be cases where a witness is understandably reluctant to give evidence at any disciplinary hearing because of the nature of the allegations, for example of bullying or sexual harassment.
ABSENCE OF BIAS
In the judgment of the EAT in British Railways Board v Powell, the reference in Khanum to acting in "good faith" can be interpreted as including "that anyone who appears before [a disciplinary tribunal] is entitled to a fair hearing before an unbiased tribunal which approaches the evidence with an open mind".
In Powell, the manager who conducted a disciplinary hearing concerning allegations of fraud against a chief steward employed by British Rail had already accepted what his co-accused, a junior steward, had told her - namely, that he had been acting on the chief steward's instructions. She also knew that there was no corroborative evidence which could persuade her to prefer what the chief steward had to say. She had, therefore, approached the hearing with a closed mind. Closed in this sense - that she had concluded that the junior steward was telling the truth and had in effect reached a stage where she was, for practical purposes, not prepared to be moved from that conclusion.
The EAT added: "... there is a world of difference between a [disciplinary] tribunal which says at an interim stage - 'well this evidence is very cogent and persuasive and at the moment carries great weight with us: we shall wait to see whether there is going to be any evidence to lead us to reject it, but it seems unlikely that there could be' - and a [disciplinary] tribunal which expresses as it were a concluded view when only half of the evidence has been heard."
The EAT went on to hold that an employment tribunal had been entitled to find that the manager had closed her mind to the possibility that the junior steward's account might not be true. It followed that the chief steward was entitled to say that he did not receive a fair hearing before an unbiased tribunal; and a breach of natural justice of that sort, according to the EAT, fundamentally undermines the fairness and integrity of the disciplinary proceedings. Accordingly, the chief steward's dismissal for fraud was unfair.
Similarly, an employment tribunal's finding of fact that the person who decided to dismiss an employee accused of misconduct had made up his or her mind to do so before the disciplinary hearing entitles the tribunal to conclude that the dismissal was unfair (see, for example, Willetts v Quicks Group plc).
However, there can be nothing wrong in those who conduct the hearing seeking advice and guidance from more senior management, including those who may have to hear an appeal, provided that when the consultation is over it is abundantly clear that they are then in a position to listen and to enquire, and ultimately to make up their own minds on the evidence before them at the disciplinary hearing (Willetts).
Composition of panel
It was the experience of the EAT in Catanach that local authorities, which are large organisations, not infrequently select a person to present the case against an employee at a disciplinary hearing who is the superior of somebody sitting on the disciplinary panel. When this happens, it necessarily causes questions to be asked about the possible undue influence the presenting officer might exert upon his or her subordinate. Such a person should not be selected as the presenting officer where there is the possibility that such a criticism might reasonably be made. In Rejuwa, the EAT found it difficult to conceive of any instance where one member of a disciplinary tribunal displaces another after proceedings have commenced and it can be said that the proceedings were fair.
It is impossible to lay down as a matter of law all those occasions when natural justice has been breached, but in Moyes v Hylton Castle Working Men's Social Club & Institute Ltd the EAT was firmly of the view "that any reasonable observer must conclude that justice did not appear to be done, nor was it done". Two of a club's officials, who had observed an incident in which the club steward was alleged to have sexually harassed for a second time a barmaid employed by the club, sat on both the sub-committee that investigated the allegations and the full committee that decided to dismiss the steward. That being a fundamental breach of natural justice, the EAT was bound to say that the dismissal itself was unfair.
The EAT added: "There will inevitably be cases in industrial relations where a witness to an incident will be the person who has to make the decision to dismiss ... But in the instant case it was entirely unnecessary for [the two officials] to be both witness and judge. It was impossible for them to disassociate their role as witness from that of judge, and, indeed, it put the other members of the sub-committee and the full committee into an impossible position ... It would have been quite impossible for [the two officials], in the light of what they had seen on the second occasion, not to have believed what was alleged on the first occasion, and, indeed, not to have tried to persuade other members of the [full] committee to their view."
In Slater, the Court of Appeal accepted that, as a general rule, any person who conducts a disciplinary hearing must be seen to be impartial. But the Court held that an employment tribunal had been right to decide that a staff nurse's dismissal was fair notwithstanding that the manager who investigated an allegation against him ill-advisedly also conducted the disciplinary hearing.
The allegation against the staff nurse was that he had slapped a patient twice, while he claimed that he had merely restrained the patient. In the course of investigating the allegation, the manager saw a red mark on the patient's body and concluded that this was more consistent with a slap than being restrained. However, in the Court of Appeal's view, that was not sufficient to disqualify him from conducting the disciplinary hearing, at which the principal question was the relative credibility of the staff nurse and the probationer who made the allegation against him.
In Sartor (see above ), moreover, Lord Justice Purchas said: "To the extent that each stage was an internal enquiry between employer and employee, there is nothing strange in the employer making his own enquiries and then reaching the decision whether he should or should not dismiss the employee."
Against that, in Molnlycke Ltd v Hulatt, the EAT said: "... it must always be a question for the [employment] tribunal to decide if the degree of involvement of an investigator and, in particular, whether the conclusions which the investigator has reached in advance, as a result of his investigations and his beliefs, goes so deep as to render such a person unfit to carry out the disciplinary hearing on the basis that he is not approaching the matter with an open mind."
More recently, in Oxfordshire County Council v Clarke, the EAT said: "There is in relation to the investigatory and the disciplinary stages of a dismissal, as in a number of other aspects of disciplinary proceedings in the employment context, a whole spectrum of possibilities. At one extreme would be a rigid adherence to the separation which obtains for instance in the sphere of criminal law where the police are the investigatory agency, the Crown Prosecution Service is the prosecuting agency and the judge and jury are the tribunal of decision, and a rigid separation is maintained between those three stages. Nobody suggests that an employer is required to maintain that kind of rigid distinction."
"At the other extreme," according to the EAT, "is perhaps such a case as where an employer through the agency of a single manager, or the proprietor of the business, embarks upon a consideration of the employee's conduct and carries on a process which at no stage whatsoever can be said to disentangle investigation, allegation and decision. If there is such a melange as that then we think that nobody would defend that as being a fair and just procedure."
The EAT continued: "In between there is a very wide spectrum and ... one of the things to be taken into account in considering how far what happened in a particular case was fair and reasonable is the size of the employer's undertaking. It may be quite impossible in the case of a small employer for any rigid demarcation of functions by managers to be maintained, and what is required in such a case may be quite different from what should be done by a large employer."
The EAT concluded: "Where along that spectrum the line is to be drawn between a degree of informality and mixture of processes which does not prevent the process as a whole from being fair and reasonable, on the one hand, and cases where it has become such that there is unfairness or unreasonableness, is essentially a matter for the [employment] tribunal, and we can interfere and should interfere only where we are persuaded that the tribunal has misdirected itself in law."
Any failure by an employer to allow an employee charged with misconduct to be accompanied at a disciplinary hearing by a trade union representative or, if the employer does not recognise any trade union, by a fellow employee of the employee's choice can of itself make the employee's subsequent dismissal unfair (see, for example, Willetts v Quicks Group plc). It makes no difference whether or not the employee had a right to be accompanied under the employer's disciplinary procedure. However, where the employee is accompanied by a fellow employee, the latter may act simply as a companion and note-taker, and possibly as an adviser, but not as an advocate (Ugrinic v Godfrey Davis (London) Ltd).
Clause 11 of the Government's recently published Employment Relations Bill gives to a worker (a) who is required or invited by his or her employer to attend a disciplinary hearing held in the course of an existing disciplinary procedure, and (b) who reasonably requests to be accompanied at the hearing, a statutory right to be accompanied by a trade union official or co-worker of their choice. The latter will be allowed to confer with the worker during the hearing, and to address those conducting the hearing (but not to answer questions on the worker's behalf). If he or she is a co-worker, the employer must allow him or her to take paid time off work.
The worker may propose a later time for the hearing if his or her chosen companion will be unavailable at the time proposed by the employer, and the employer must postpone the hearing to the time proposed by the worker if that is both reasonable and within five working days of the day on which the worker was informed of the time proposed by the employer.
The Bill also provides that a worker may complain to an employment tribunal that his or her employer has failed, or threatened to fail, either to allow him or her to be accompanied at the hearing or to postpone it. Where such a complaint is successful, the tribunal must order the employer to pay the worker up to two weeks' pay (clause 12). A worker may also complain to an employment tribunal that his or her employer has subjected him or her to a detriment on the ground that he or she sought to exercise his or her right to be accompanied or sought to accompany another worker; and a worker's dismissal will be automatically unfair if either of those grounds is the sole or main reason for it (clause 13).
Disciplinary hearings: main points to note
The procedure adopted during a disciplinary hearing may vary from one situation to another, because every case must depend on its own facts, but, in Clark v Civil Aviation Authority, the industrial members of the EAT suggested a broad approach on the following lines:
See also section 5 of the ACAS advisory handbook Discipline at work, which does not, however, have the same status as the ACAS Code of Practice. It is purely advisory.
ACAS Code of Practice
Paragraph 10 of the revised ACAS Code of Practice Disciplinary practice and procedures in employment states:
"Disciplinary procedures should:
...
(f)provide for individuals to be informed of the complaints against them and to be given an opportunity to state their case before decisions are reached;
(g)give individuals the right to be accompanied by a trade union representative or by a fellow employee of their choice;
..."
Section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that the Code of Practice is admissible as evidence in any proceedings before an employment tribunal, "and any provision of the Code which appears to the tribunal ... to be relevant to any question arising in the proceedings shall be taken into account in determining that question" (emphasis added).
It does not follow that non-compliance with the Code necessarily makes a dismissal unfair, but a failure to follow a procedure prescribed in the Code may lead an employment tribunal to the conclusion that a dismissal was unfair, which, if that procedure had been followed, would have been held to have been fair (W Devis & Sons Ltd v Atkins).
Representation
The concept of natural justice does not include the automatic right of an employee accused of misconduct to be present throughout a disciplinary hearing, provided that the interests of the employee are safeguarded by his or her duly accredited representatives (Pirelli General Cable Works Ltd v Murray). The manner of the employee's representation, in so far as it is not the subject of an agreed procedure, should, as far as possible, be at the election of the employee, and the employer cannot be criticised for failing to interfere in that selection (Vauxhall Motors Ltd v Ghafoor).
Where representation is provided for in the employer's disciplinary procedure, the employer's refusal to allow the employee to be represented in accordance with that procedure will, if such representation can be arranged and serious criminal misconduct is alleged, make the employee's dismissal for such misconduct unfair (Rank Xerox (UK) Ltd v Goodchild and others). However, in the absence of clear words, there is in general no right to legal (or, indeed, other outside) representation at a disciplinary hearing. It would need clear words to show that such a departure from normal practice was to be an employee's right (Sharma v British Gas Corporation).
Re-publishing accusations
In Friend v Civil Aviation Authority, Lord Justice Hirst said: "Inevitably [disciplinary proceedings] are launched as a result of some kind of accusation or complaint against an employee, and their essential purpose is to decide whether that accusation is true or false, for which purpose the accusation or complaint must inevitably be re-published to the disciplinary tribunal ... It necessarily follows that an employee who accepts a disciplinary code ... as part of his contract of employment consents to the re-publication of the accusation or complaint as part of that process, otherwise there is no way in which, for his own protection as well as for the protection of the interests of his employer, the truth or falsity of the accusation or complaint can be fairly established."
In A v D (see above ), the principal if not the only reason for the teacher's dismissal was a letter he had written to his pupil, who was then aged 13, in which he stated that he had touched, held and kissed her. He complained that the letter was used without his or the girl's permission, but the EAT saw no impropriety in this. It was satisfied that "no privilege attaches to personal correspondence of this nature where it is relevant to legitimate proceedings"; and the letter's relevance to the issues in this case was not in question.
CASE LIST
A v D 16.4.96 EAT 1034/94
Adivihalli v Export Credits Guarantee Department 13.5.98 EAT 917/97
Batty and others v British Steel plc 1.8.96 EAT 635/95
Bentley Engineering Co Ltd v Mistry [1978] IRLR 436
British Railways Board v Hammett 5.7.90 EAT 139/89
British Railways Board v Powell 8.9.92 EAT 416/91
Budgen & Co v Thomas [1976] IRLR 174
Catanach v London Borough of Lambeth 15.1.97 EAT 117/95
Clark v Civil Aviation Authority [1991] IRLR 412
Clarke v Trimoco Motor Group Ltd and another [1993] IRLR 148
Compair Holman Ltd v Evans 26.2.97 EAT 832/96
Costello v Post Office 23.11.93 (S)EAT 497/93
Devis (W) & Sons Ltd v Atkins [1977] IRLR 314
Ellis v Hammond and Hammond (t/a Hammond & Sons) 23.7.96 EAT 1257/95
Friend v Civil Aviation Authority 29.1.98 Court of Appeal
Fuller v Lloyds Bank plc [1991] IRLR 336
Garrett v Lloyd's of London 5.3.98 EAT 583/97
John v Rees [1970] Ch 345
Khanum v Mid-Glamorgan Area Health Authority [1978] IRLR 215
London Borough of Camden v Edwards 18.3.96 EAT 328/95
Louies v Coventry Hood & Seating Co Ltd [1990] IRLR 324
McLaren v National Coal Board [1988] IRLR 215
Meiszner v Hart Timber Preservation Ltd 19.8.98 EAT 691/97
Molnlycke Ltd v Hulatt 14.5.96 EAT 485/95
Moyes v Hylton Castle Working Men's Social Club & Institute Ltd [1986] IRLR 482
National Welsh Omnibus Services Ltd v Jones 26.4.89 EAT 39/88
Oxfordshire County Council v Clarke 23.9.96 EAT 1279/95
PACT v Clark 1.3.96 EAT 705/95
Pirelli General Cable Works Ltd v Murray [1979] IRLR 190
Polkey v A E Dayton Services Ltd [1987] IRLR 503
Post Office v Singh 27.4.93 EAT 398/91
Pritchett and another v J McIntyre Ltd [1986] IRLR 97
Qualcast (Wolverhampton) Ltd v Ross [1979] IRLR 98
Rank Xerox (UK) Ltd v Goodchild and others [1979] IRLR 185
Read v Phoenix Preservation Ltd [1985] IRLR 93
Robert Bosch Ltd v Morgan 5.1.98 EAT 299/97
Sartor v P & O European Ferries (Felixstowe) Ltd [1992] IRLR 271
Sharma v British Gas Corporation 27.7.83 EAT 495/82
Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91
Slater v Leicestershire Health Authority [1989] IRLR 16
Spink v Express Foods Group Ltd [1990] IRLR 320
Stevens v Rank Xerox Ltd 15.6.95 EAT 1000/93
Stoker v Lancashire County Council [1992] IRLR 75
Tesco Group of Companies (Holdings) Ltd v Hill [1977] IRLR 63
Ugrinic v Godfrey Davis (London) Ltd 29.9.95 EAT 953/94
Vauxhall Motors Ltd v Ghafoor [1993] ICR 376
Watkins v BOC Transhield 13.1.98 EAT 99/97
Welsh v Post Office 1.5.98 EAT 1139/97
Westminster City Council v Cabaj [1996] IRLR 399
Whitbread & Co plc v Mills [1988] IRLR 501
Willetts v Quicks Group plc 20.8.92 EAT 305/90
Yellow Pages Sales Ltd v Rejuwa 19.3.98 EAT 743/97
