Uncategorized

Procedural (In)justice

Mr Kiani was employed by a government department. In March 2008 he was suspended from duty and in June 2008 his security clearance, which was necessary for him to perform his job was withdrawn. In July 2010 Mr Kiani was dismissed, although no reasons were given for his dismissal.

Such lack of transparency has all the makings of a successful unfair dismissal claim which is precisely what Mr Kiani lodged, together with a discrimination claim. The Respondent contended that the reason for Mr Kiani’s dismissal was for reasons of national security and applied for closed proceedings whereby the ET would be heard in the absence of the claimant and the claimant’s rep, with a special advocate representing (who is no allowed to take any instructions from the claimant), and no disclosure of the case documents or the ‘gist’ of the documents being disclosed to the claimant. In short, the adversarial process was to be conducted with one party in the proceedings being blindfolded throughout. This is not exactly what I think is meant by the maxim “Justice is Blind”.

Unfortunately Mr Kiani is one of a number of individuals faced with the invidious position of being dismissed for something and not being able to be given the opportunity to put the employer right on why their position from their perspective is wrong and then being denied that same opportunity to put those arguments before a Tribunal themselves. I have referred before to the comments of Megarry J in John v Rees [1970] Ch 345 that

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start”Those who take this view do not, I think, do themselves justice.

As every body who has anything with the law well knows, 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.

There can be no doubt that in cases like Mr Kiani’s the employment law system has been engineered to deny the claimant themselves from being having the opportunity to explain why in their view the concerns of an employer were without basis. The sad thing is that it is the employment tribunal system with its system of closed hearings, non-disclosure and representatives who are not allowed to actually represent claimants that is now institutionally adopting views that Megarry J expressed as ones that “do not, I think, do themselves justice.”

For a good write up of the legal issues in this case (Kiani v The Secretary of State for the Home Department [2015] EWCA Civ 776) and how it develops previous caselaw see the post over on the UK Human Rights Blog.

And finally, by way of practical reference the issues in this case are, fortunately, not ones reps will frequently come across but may be seen by some civil service and national infrastructure unions. If you come across a these issues then they need to be escalated to senior full time officers of the union without delay.

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