Adopting
a fair procedure in disciplinary situations is crucial. Lawyers often talk
about “natural justice” in disciplinary procedures, but what does this actually
mean?
The
basic principles
There
are two basic principles of natural justice. First, every employee should have
the opportunity to freely state their case when facing disciplinary action.
Second, as recently described in the General Pinochet case, “no-one should be a
judge in his own cause or act as a judge where there is a real possibility of partiality”.
The Acas Code on Disciplinary and Grievance Procedures also states that the
opportunity to appeal against a disciplinary decision is essential to natural
justice.
In
practice, this means that employers should not pre-judge disciplinary issues and
not make decisions until the issues have been fully discussed with the employee
or worker concerned and the individual has had full opportunity to explain
their position. This is why individuals are usually given advance notification
of disciplinary hearings, together with an outline of the issues which will be
discussed, as it allows them to prepare their case. They should also be
informed of their right to appeal and how appeals will be dealt with by a
(preferably senior) individual not previously involved in the disciplinary
procedure.
The
lengths to which employers may have to go to avoid being seen as “judges in
their own cause” have just been highlighted by the recently reported case of R
v Chief Constable of Merseyside Police Ex-Parte Bennion, 2000, IRLR 821. This
was a High Court case which involved a chief constable conducting a disciplinary hearing against an officer
who had an unresolved sex discrimination complaint against Merseyside police.
As the chief constable had a statutory responsibility for the sex
discrimination complaint, even though he was not personally involved, the High
Court thought that there was cause for concern about his impartiality. They
said that if there is any doubt about an employer’s partiality, the applicant
should be favoured.
Practical
issues
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
This
now means that if an employee has an outstanding grievance or an unresolved
claim against the employer the most senior executives may not be able to hear
any disciplinary hearings or disciplinary appeal hearings.
Otherwise,
their partiality may be questioned and employment tribunals may find the
procedures defective. This does look odd in the context of the private sector,
as it seems to come into conflict with the accountability of senior management.
Nevertheless, it highlights the need for caution in disciplinary action where
the individual has an existing grievance.
