Watson v University of Strathclyde
The claimant was employed as a publications officer by the University of Strathclyde. Mr Taylor was the director of marketing and communications and Dr West was the secretary to the University.
Dr West was a member of the committee that appointed Mr Taylor. In 2005, Mr Taylor was convicted of a breach of the peace. He offered to resign but Dr West and the principal decided that that was not necessary.
Dr West made a statement to the effect that the conviction was a personal matter and did not impact on Mr Taylor’s professional life or continued employment. No risk assessment was carried out, but Dr West monitored Mr Taylor’s conduct between conviction and sentencing.
Prior to this incident, the claimant had a history of concern about Mr Taylor’s behaviour, which she considered violent and aggressive. This was heightened by the conviction.
Difficulties in their relationship continued and the claimant went on sick leave and subsequently presented a grievance alleging inappropriate behaviour and autocratic management. There was an investigation and the grievance was not upheld.
The claimant was critical of the investigation, as it was her understanding that Dr West would make the decision and she considered that he had a conflict of interest due to his public support for Mr Taylor.
She was offered an appeal to a panel that included Dr West. The claimant refused to attend due to Dr West’s involvement. The appeal panel (without Dr West) concluded that there was no conflict of interest and subsequently (with Dr West) rejected the appeal. The claimant resigned and brought a claim of constructive dismissal.
The employment tribunal concluded that the inclusion of Dr West in the appeal panel was not a fundamental breach of contract as the University’s conclusion that there was no actual conflict of interest was reasonable. The tribunal did not consider apparent bias.
The claimant appealed to the EAT. The EAT considered that, for there to be a fair hearing, it must be free not only from actual bias but from apparent bias, and that this applied equally to any hearing that forms part of a grievance process.
The EAT held that any reasonable employer would have had regard to the claimant’s concern that there was bias, which was not without foundation, and could have concluded only that it would not be fair to her to include Dr West in the appeal panel.
The appeal panel should have considered whether or not, viewed objectively, the nature and basis of the claimant’s perceptions of bias were such as to preclude a fair hearing. The EAT upheld the appeal, held that the claimant was unfairly dismissed and remitted the case to the tribunal to determine remedy.
It is obvious that a person who is the subject of a grievance should not be involved in the investigation or hearing of that grievance. However, employers may also need to consider the position of other members of staff who are very closely associated with the subject of the grievance. For example, it may not be appropriate for a member of staff who has acted as a “mentor” to another employee to hear a grievance regarding that employee.
The EAT in this case was not suggesting that an employer setting up a grievance appeal panel is routinely required to consider specifically whether or not there is “apparent bias” in the panel, but any reasonable employer is required to have regard to the need to afford an employee a fair hearing of their grievance throughout, including at the appeal stage. It was key in this case that the claimant had raised an allegation of bias, although in other cases the issue of apparent bias may arise without any allegation of bias.
Nick Jew, partner, DLA Piper
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