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Is legal representation at disciplinary hearings allowed?

Until recently, unless the employee's contract provided otherwise, it was accepted that representation at disciplinary proceedings was confined under statute to a work colleague or trade union official. This has been challenged in a few recent cases as being contary to an employee's right to a fair trial under Article 6 of the European Convention on Human Rights where the High Court and Court or Appeal have held that employees should be allowed legal representation at their disciplinary hearing where the result of their dismissal would be a referral to a regulatory body which could make an order preventing them from continuing to work in their profession. This made the dismissal particularly serious as it could mean the loss of the employee's career. We now have a decision from the Supreme Court (the hightest court in the UK) clarifying when legal representation is permissible. 

In R (on the application of G) v Governors or X School and Y City Council [2011] IRLR 756, the Supreme Court (SC) decided that there was only a right to legal representation where the disciplinary proceedings will have a substantial effect or influence on the decision of another body which can prevent the employee from practising their profession. 

G, a teaching assistant at the school, was accused of having kissed and had sexual contact with a 15 year old boy undertaking work experience at the school. G's request for legal representation at his disciplinary hearing before the governors and his subsequent appeal was refused. G was dismissed. G applied for judicial review arguing that the refusal to allow him legal representation breached his right to a fair hearing under Article 6 of the European Convention on Human Rights. 

His dismissal for the conduct in question meant that there was a mandatory referral initially to the Secretary of State but then due to changes in the law, to the Independent Safeguarding Authority (ISA) to decide whether G should be placed on a list barring him from doing any work involving children. Under the regime operated by the Secretary of State, the Secretary of State relied on the findings of the disciplinary hearing when making his decision. The ISA regime was different. G had the right to legal representation in the ISA proceedings and the ISA caseworkers had to make an independent decision on whether an individual should be included on the barred list. They had to make their own findings without necessarily relying on those found in the disciplinary proceedings. In practice the ISA did not hold oral hearings but there was no statutory reason why it could not do so. The individual had a right of appeal to the Upper Tribunal on a question of law.  

The SC decided that given these factors the ISA's decision was sufficiently independent of the governors' decision to mean that the governors' decision did not have a substantial influence or effect on the ISA's decision whether or not to place G on the barred list. Therefore, G had no right to legal representation at his disciplinary hearing. His right to be accompanied at his disciplinary and appeal hearing was restricted to a work colleague or accredited trade union official.

Article 1 - 

is it a disciplinary matter when working relationships between employees break down?

It is important to know this because if the employee brings an unfair dismissal claim, it is for the employer to prove that the dismissal was for one of six reasons recognised by the Employment Rights Act 1996. If the employer cannot prove the reason, the employee wins. As the case below demonstrates, it is also important to know the reason for dismissal to decide whether contractual procedures apply.

In Ezsias v North Glamorgan NHS Trust [2011] IRLR 550, the Employment Appeal Tribunal (EAT) said that where the dismissal is because the employee caused the breakdown, the dismissal is for conduct. However, where the dismissal is because relationships have broken down, the potentially fair reason for dismissal is some other substantial reason (SOSR), not conduct. Some other substantial reason is defined by the Employment Rights Act as some other substantial reason of a kind such as to justify dismissing the employee from the position which the employee held.

E was an oral and maxillofacial surgeon employed by the Trust. There were two disciplinary procedures incorporated into his contract. Where there were allegations of professional conduct or competence he would be entitled to external investigation both as to whether there was a case to be answered and as to the substantive allegations. Where the allegations related to personal misconduct he would be entitled to an internal investigation and hearing under the Trust's own disciplinary procedure.

From an early stage in his employment E expressed concerns about the clinical standards in the department. Following complaints by his colleagues who were the subject of E's concerns, an internal enquiry found that E's correspondence and complaints against colleagues were "excessively frequent, unacceptably detailed and unrelenting to an extreme degree." E continued to make complaints and nine senior members of the department signed a petition expressing concerns about the lack of progress in resolving the issues with E and claiming there was a total breakdown in trust and confidence between E and the department which was having a significant impact on patient care. The petitioners told senior management of the Trust that they felt the Trust had bent over backwards to be fair to E and their own welfare was being overlooked and raised a formal grievance.

The Trust suspended E and asked an external HR consultant, J, to investigate. J reported that there had been an irretrievable breakdown in working relations between E and his colleagues, the cause of which was mainly due to E. The Trust dismissed E on the grounds of an irretrievable breakdown in the relationships. 

E brought claims for unfair dismissal and whistleblowing. E said that the Trust had breached his contract by failing to follow the contractual disciplinary procedure applicable to a case of misconduct. Either the allegation related to professional misconduct, in which case external investigations should have been commenced or if it related to personal misconduct, the Trust's disciplinary procedure should have been followed. The issue was whether the contractual disciplinary procedures applied at all. 

The tribunal dismissed his claims and this was upheld by the EAT. The EAT said that the disciplinary procedures applied only to issues of conduct or competence. This case related to allegations of a breakdown in working relationships, even though E's behaviour was the major cause of this. The dismissal was therefore for SOSR. There was an important distinction between dismissing an employee for his conduct in causing the breakdown in relationships - which was disciplinary - and dismissing the employee for the fact that the relationships had broken down - which was SOSR. The tribunal had been alive to this distinction and had found that the dismissal was for the latter. So, the disciplinary procedures did not apply.

Article 2 -   

be careful what you say about former employees in e-mails to their new employers

As McKie v Swindon College [2011] IRLR 575; 2011 EWHC shows. 

From 1995-2002 M worked for Swindon College. He moved to work for Bath College and received an excellent reference. He left in 2007 and, in 2008, started a new job with Bath University as director of studies in the life-long learning division. The University oversaw degree courses at some colleges including Swindon. 

A couple of weeks after starting his new job the HR director at Swindon e-mailed the University stating, "...we would be unable to accept Mr McKie on our premises or delivering to our students. The reason for this is that we had very real safeguarding concerns for our students and there were serious staff relationship problems during his employment at this college. No formal action was taken against him because he had left our employment before this was instigated. I understand that similar issues arose at the City of Bath College." 

Following receipt of this e-mail the University summarily dismissed M as he could not perform his duties if Swindon refused to allow him on its premises. The University also stated that Swindon must have been very serious about the matter to have written the e-mail.  

M brought proceedings for negligent misstatement (this is negligent wording). The evidence from Swindon's current and former employees, some of whom were in quite senior positions, who had known M was that he was well-regarded and a highly respected member of staff. No complaints had been made about him and there were no complaints on his file. The HR director, who did not know M, said that two of its employees had told him that M should not be admitted for "safeguarding reasons". Swindon did not challenge this evidence. 

The issue was whether they could be liable in respect of a statement made about a former employee who stopped working for them 6 years ago. The High Court held that Swindon was liable in negligence to M. There was no evidence to support what had been written in the e-mail and sending it flouted elementary standards of due diligence, fairness and natural justice. Swindon were in breach of their duty of care. 

Learning point - if you are going to make disparaging comments about a former (or current) employee check your facts first.

Article 3 - 

can a tribunal decide that a disciplinary warning was invalid if the employee does not appeal against it?

Yes, according the Employment Appeal Tribunal in Davies v Sandwell Metropolitan Borough Council 2011 IDS Brief 926 EAT. 

D, a science teacher at one of the Council's schools, received a verbal warning in September 2004. Following complaints about her behaviour in October she was suspended. At the disciplinary hearing to decide whether she should be given a final written warning, D produced new evidence which undermined the credibility of the complainant including proof that two of the students who had complained about her were not in class on the relevant day. 

The disciplinary panel refused to consider this evidence as she had not produced it 7 days in advance. They issued D with a final written warning. D returned to work in March 2005. She appealed against the warning and was offered an appeal and told that she could adduce the fresh evidence. However, following discussion with her Trade Union representative regarding the risk of an increased sanction should her appeal be unsuccessful, she withdrew her appeal. 

Following further complaints about her in March 2006, she was called to a further disciplinary hearing and dismissed. The tribunal found that out of the five complaints which had led to D's dismissal, two were unfounded, two were serious incidents of misconduct and one was less serious misconduct. The Council's case was that any one of these five incidents when coupled with the previous final written warning would give a reasonable employer sufficient grounds to dismiss. 

The tribunal had misgivings about the written warning in view of D's new evidence but decided the employer was entitled to rely on it given that D had been offered a complete rehearing at which she could adduce the new evidence but had decided not to appeal. The tribunal accordingly found the Council had acted within the range of reasonable responses and she had been fairly dismissed. 

D's case eventually reached the Court of Appeal (CA) which directed the Employment Appeal Tribunal (EAT) to consider whether the tribunal had erred in failing to consider the validity of the final written warning. The EAT, having reviewed the authorities, concluded that if the final written warning was invalid it did not become valid simply because there was no appeal against it. On the facts here, given the procedural defects in the final written warning hearing it was a nullity and so D's failure to appeal against it was irrelevant. 

The EAT said that where, as here, the failure to appeal does not involve any explicit or implicit acceptance that the allegations are true there was an even greater need to look behind the warning. The EAT remitted the case to the tribunal to decide whether the dismissal was fair taking into account the procedural defects at the disciplinary hearing regardless of their being no appeal.

Learning point - don't get hung up on time limits in policies when refusing to hear evidence that will help the employee

Article 4 -
people who could have an axe to grind should not sit on grievance appeals

This is what happened in Watson v University of Strathclyde [2011] IRLR 458 EAT and the result was a successful constructive dismissal claim.

Adam Taylor was appointed to the post of director of marketing and communications at Strathclyde University in about July 2004. Dr West, the secretary of the University, was on his appointment panel. Sally Watson (SW) had been employed by the University since December 1985 as a publications officer in the marketing and communications department. AT became SW's line manager. He upset her in various ways. These included conducting her appraisal in a cursory way, speaking to her at a team meeting in a way which she found unprofessional and intimidating, and undermining her over the publication of the university diary for which she was responsible. SW thought AT was violent and aggressive. 

AT was later found discharging an air gun in a park at 3.00am in the morning and was convicted or a breach of the peace. He was fined £750. AT went to see Dr West and offered to resign. The Principal of the University discussed the matter with Dr West and decided not to accept his offer. An agreed statement for the press said that the university regarded the conviction as a personal matter which did not affect AT's professional life. 

SW's relationship with AT continued to be difficult. She raised a grievance complaining that since AT's appointment there had been a change in management style. He was autocratic and his behaviour inappropriate. SW referred also to AT's conviction and his behaviour at and around that time. The result was a breakdown in trust and confidence. SW's grievance was rejected and she appealed. 

Dr West was going to be one of the appeal panel members. SW complained about this as she believed Dr West's decision and his relationship with AT were core issues in her grievance. The other two members of the appeal panel met in SW's absence to consider her objections and decided that there was no conflict of interest and no reason for Dr West not to be on the panel. The appeal panel reconvened with Dr West on it and rejected SW's appeal. When they notified SW of their decision they did not reply to her complaints about Dr West being on it. SW resigned and brought a constructive dismissal claim. The last straw for her was Dr West's appointment to her appeal panel. 

Learning point - the appearance of bias is just as important as actual bias when deciding who should sit on disciplinary and grievance hearings and appeals.

Article 5 -
can an employer lawfully access personal e-mails sent from an employee's home computer?

Sometimes, according to the decision of the Sheffield Employment Tribunal in Gosden v Lifeline Project Ltd 2011 IDS Brief 926. 

G, an employee of LP Ltd, a charity that assisted drug users, was assigned to work at Moorland prison. HMPS was one of LP's largest clients. Following complaints from the Governor of Moorland in March 2007 about his attendance and lack of responsiveness to change G was suspended and invited to attend a disciplinary meeting. He was given a written warning and transferred to Lindholme prison as HMPS did not want him to return to Moorland. 

On a  Saturday evening in October 2008, G e-mailed Y, an employee of HMPS and a former colleague of his at Moorland, from his home computer. The title of the e-mail was "The British are way ahead of us". The e-mail stated that it was a sin for an Islamic male to see a woman other than his wife naked and called on all British women to walk naked through the streets in order to help weed out any neighbourhood terrorists. G ended his e-mail, "It is your duty to pass this on." Y forwarded the e-mail to a colleague at Moorland and it therefore entered HMPS's computer system. The prison service investigated it. 

The Governor of Lindholme told LP that it was excluding G because he had sent an e-mail which breached its policy on diversity and professional standard. G's exclusion was later extended to all prisons in Yorkshire and Humberside. LP suspended G and, following an investigation, dismissed him for gross misconduct for damaging LP's reputation with HMPS by breaching its equal opportunities policies. 

G claimed unfair dismissal. One of his arguments was that he had not personally misused HMPS' e-mail system and he was not responsible for Y sending it on to a Moorland employee. His was a private e-mail and HMPS should not have accessed it. It was breach of his right to privacy under Article 8 of the European Convention on Human Rights. The tribunal dismissed G's claim. LP's decision to dismiss G was within the band of reasonable responses. The tribunal said that the Human Rights Act which incorporated the Convention did not have direct application to G's case as LP was not a public authority but considering privacy more broadly in the context of the tribunal's statutory duty under the Human Rights Act to give effect so far as possible to Convention rights, had G's e-mail to Y been private correspondence only, privacy might have attached to it. But G had sent it with the express instruction that it be passed on by recipients. It was not therefore a confidential communication.

Learning point - if you want to access employees' e-mails lawfully, you should have an acceptable use policy which includes telling employees you will do this.