Tuesday, 12 March 2013

That's more like it....

For some time I have been concerned about Employment Tribunals requiring employers to provide disciplinary processes which are more akin to judicial proceedings.  I have faced one Tribunal demanding to know why the person who heard the internal appeal was not "independent and impartial" and seemed not to understand that an internal appeal is 'internal' and must always be conducted by a partial and biased member of management.  The Tribunal seemed astounded by such a notion.  The Baby P social workers were disciplined once with a warning and then again with dismissal.  They claimed that res judicata and abuse of the process prohibited being disciplined twice for the same matter.  The Court of Appeal has properly rejected any attempt to import judicial concepts into employment disciplinary proceedings (Christou and another v LB of Haringey) Lord Justice Elias (for P of the EAT):

  1. In the employment context the disciplinary power is conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the procedures is not to allow a body independent of the parties to determine a dispute between them. Typically it is to enable the employer to inform himself whether the employee has acted in breach of contract or in some other inappropriate way and if so, to determine how that should affect future relations between them. It is true that sometimes (but by no means always) the procedures will have been contractually agreed, but that does not in my judgment alter their basic function or purpose. The employer has a duty to act fairly and procedures are designed to achieve that objective. The degree of formality of these procedures will vary enormously from employer to employer. But even where they provide panoply of safeguards of a kind typically found in adjudicative bodies, as is sometimes the case in the public sector in particular, that does not alter their basic function. It is far removed from the process of litigation or adjudication, which is in essence where this doctrine bites.
Quite right too - will be citing this next time a Tribunal gets confused between their role and the role of the employer.....

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