The importance of natural justice in employee disciplinary hearings

Must an employee be given the opportunity to make representations on any significant issue prior to him being dismissed? Yes.

The importance of natural justice in disciplinary hearings is well known. The case of John-Charles v NHS Business Services Authority has reiterated the importance of that principle. An employer is permitted to take account of an existing warning in deciding to dismiss an employee for a later act of misconduct. However, the employer acted unreasonably in failing to inform the employee of the new concerns of the dismissing officer that should have given him an opportunity to make representations on the new point.

This means that, as a decision-maker, it is important to note that an employee must have a full opportunity to present their case on all relevant points for a dismissal to be fair. Therefore the importance of the employee being made aware of something that is a significant issue in a disciplinary hearing cannot be understated.

What were the facts?

The employee worked as a network engineer. He was issued with a first written warning on 28 January 2013. However, before the warning was imposed, an incident occurred which breached the employer’s IT policy. These matters were investigated and at the end of February 2013 the employee was informed he would be subjected to a formal disciplinary hearing on 7 March.

At the disciplinary hearing the disciplining officer decided not to issue the sanction at that stage as she was uncertain of which sanction to impose. Prior to making up her mind the disciplining manager found out about the warning that was imposed on 28 January 2013 and partly in light of that decided that the appropriate sanction should be dismissal.

What did the EAT decide?

The Employment Appeal Tribunal (EAT) determined that because the earlier warning issued on 28 January 2013 influenced the disciplining officer and was therefore deemed to be a significant issue. The EAT held that the employee was entitled to be given the opportunity to respond and make representations on this point. As he was not given that opportunity his dismissal was deemed to be unfair.

What is the key learning point?

The case reminds disciplining officers how important it is to keep employees who are being disciplined informed of any changes in the case against them. Therefore it is important that the employee has had an opportunity to make representations/statements to the disciplining officer before a decision is made about all relevant issues.

Furthermore if the hearing has finished and something becomes relevant which was previously not realised or not thought to be important then it is vital that the hearing is reconvened and the employee be given an opportunity to respond to it. Failure to do so could render the disciplinary sanction unfair.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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