If you are a trade union representative one of the go to arguments you will often employ is that the employer is acting contrary to natural justice. Natural Justice can be summarised as comprising of two components:
- That a person accused of wrongdoing will be told what exactly they are accused of, given the chance to provide a defence, reasonable time to prepare, be provided access to the evidence against them before a decision on whether they are responsible for the misconduct is made.
- That the investigation and misconduct will be taken by persons who are impartial and have not been previously involved in any investigations.
That, broadly stated, is all that natural justice requires.
Natural justice has recently hit the headlines in the context of Alex Salmond, the former SNP leader, and his Judicial Review against the Scottish Government.
A year ago, in the wake of the #metoo movement two sexual harassment complaints were made against Mr Salmond regarding his time in government. The government, quite properly, launched an investigation into the allegations. The Permanent Secretary Leslie Evans (head of the Civil Service for the Scottish Government) appointed an HR investigator to investigate the allegations. However that HR Officer had already had some involvement in the concerns and had spoken to the complainants about the matters some time earlier.
The Court found this was a very serious procedural error, that amounted to a breach against Alex Salmond’s natural justice rights, specifically the right of accused to be subject to an impartial investigation without the appearance of bias. Instead, having been investigated by an party with previous knowledge and involvement of the matter at hand the court took the view that this was a fundamental error and, in so doing, the results of the investigation could not stand. In making the judgement the court did not find Alex Salmond had not engaged in sexual harassment but that any investigation that had been undertaken could not stand because of bias.
The court, in my view were right to do so in recognition of the rule of law and the need for fair processes to be scrupulously applied to all. If there was a view that a quick investigation could resolve the matter then the Scottish Government made a serious error because, as the Guardian notes, this error has caused harm to the government’s reputation and should further complainants contemplate coming forward they may now be dissuaded from doing so. The judgement of the court recognises that its requirement to apply the rule of law would make it prejudicial to allow a procedural unfair investigations to stand and to dissuade the investigators from pursuing arbitrary investigations in the future.
What then does this mean for employment investigations? One would think, that the Employment Tribunal would take a similar approach, especially given the centrality of rule of law considerations in the Supreme Court’s recent consideration of employment justice in R v Unison (the ET fees case); such a view is false, however. In fact, the court of Appeal have expressly stated that the principles of natural justice do not form a basis a decision that an employee was unfairly dismissed. In Slater v Leicestershire Health Authority  IRLR 16 it was determined that:
[Counsel] for the appellant relies principally on the general principle that a person who holds an inquiry must be seen to be impartial, that justice must not only be done but be seen to be done, and that if an observer with full knowledge of the facts would conclude that the hearing might not be impartial that is enough. . . I accept both the general rule and the exceptions [the example given was a one man firm]. The rules of natural justice in this field do not in my view form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the [Tribunal] consider the question raised in s[98(4)] of the Act.’
I think this is wrong. Why should the remedy in public law whereby a serious procedurally unfair investigation results in that investigation being quashed not have a similar counterpoint in employment law, for example that any dismissal will be unfair. Similar public policy arguments would apply such that such a remedy would encourage employers to invest appropriate due diligence in misconduct investigations so as to prevent errors and also dissuade employers from pursuing arbitrary investigations for certain staff (it is a rare trade union victimisation case, for example, that will not involve an employer pursuing overblown or trumped up disciplinary accusations against them in order to rid themselves of a troublesome (aka effective) union rep).
Instead, the employment law rather than adopting the rule of law approach seen above has required an additional requirement, as Slater itself set out in the excerpt above. Not only must there be a serious procedural breach of justice but the employment tribunal must consider whether this breach amounts or contributes to a separate breach of section 98(4) Employment Rights Act 1996, namely that the conduct of the employer was outside the range of reasonable responses.
One obvious counter-argument is that the requirements of natural justice in an employment context are summarised in the ACAS Code of Practice on Disciplinary and Grievance Procedures and a failure to follow these may give rise to a successful unfair dismissal claim. This is true, and many, if not most, serious procedural breaches of natural justice will be found to be unfair dismissals. This is not adequate in my view. First, unfair dismissal is only an option for a segment – and ever decreasing segment – of the UK workforce, being those who are employees and also those with two years continuous service. Second, there is no necessary correlation that breaches of natural justice will result in an unfair dismissal
The recent decision in Hargreaves v Manchester Grammar School is a case in point. A teacher was accused of misconduct, and the school investigated this and obtained numerous witness statements. Three of this gave evidence that persons present had witnessed nothing untoward but the employer did not disclose these the the teacher. The teacher was in due course dismissed.
Natural Justice would require that evidence against an alleged wrongdoer should be disclosed, but so should evidence that is potentially exculpatory. In Hargreaves the teacher understandably complained that the employer had kept evidence from him that could point his innocence from the accusation and that this was a serious breach of natural justice. However, despite the employer’s deliberate decision to exclude evidence from Mr Hargreaves, and thereby depriving him of the opportunity to make submissions to the decision maker on the basis of these statements the Employment Appeal Tribunal affirmed the Employment Tribunal’s decision that because the decision was not outside the range of reasonable responses the employer’s investigation was fair.
And so we are left with the position that an employer has deprived an employee under suspicion of wrongdoing the opportunity to make focused submissions to the employer on how the evidence the employer had gathered pointed towards his innocence on the basis that the employer decided it would not assist the employee based on their understanding of the employee’s case. And, having done so, the employer can point to the EAT’s decision as vindication of the employer’s (mis)conduct.
It probably is true that had the employee had sight of the statements the outcome would have been the same but that is not the point. The issue is, like the decision in Alex Salmond’s case investigations should appear to be and appear to be impartial, they should not endorse an investigator’s decision to tie an accused employee’s hands and prevent the opportunity of presenting as effective a defence as possible. Unfortunately, unfair dismissal law in departing from rule of law approach does not do this and so offers inadequate incentive to employers to be irreproachable in their conduct of investigations. If one were to ask Leslie Evans I doubt she would express the same view in respect to administrative law.