NATURAL JUSTICE (in Employment) written by Craig Longstaff 2012
Disclaimer This article does not substitute effective legal advice; it is merely to help empower those being mistreated by employers to gain a basic understanding of their legal rights, so they can re-energize themselves, regain control, and claw the power back.
www.acas.org.uk (Acas Code of Practice – Discipline and Grievance)
- Some legal principles are “natural” or self-evident and do not require a statutory basis – an implied obligation to observe / adhere to the principles and practice of Natural Justice
WHAT IS NATURAL JUSTICE?
- Common law “Duty to act fairly” – the minimum standards of fair decision-making
- Duty of respect
WHEN DOES IT APPLY IN EMPLOYMENT?
- Decisions that will have a direct impact on / adversely affect the rights, interests or legitimate expectations of the individual/s concerned
- The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by Natural Justice
WHO DOES IT APPLY TO IN EMPLOYMENT?
- Those that carry out acts of a more administrative and specific nature e. decision-makers where a final decision will affect a person’s rights, interests and/or legitimate expectations
WHAT ARE THE BENEFITS OF NATURAL JUSTICE?
- Procedural fairness
- Fair decision is reached by an objective decision maker
- Protect the rights of individuals
- Maintain public confidence in the process
- Process is: fair, adequate, reasonable, proportionate, justified, consistent transparent, lawful
- Avoid complaints / allegations of procedural error, bias, prejudice, collusion, etc
- Avoid substantiated cases being lost on procedural grounds
CONSEQUENCES OF CONTRAVENING NATURAL JUSTICE
- “Ultra vires” – perpetrators and/or the case in question may be declared as having no effect if found in contravention of natural justice i.e.
- Perpetrators are acting “ultra vires”
- The case is “null and void” / “ultra vires”
- All of Acas’ Code of Practice 1 (Discipline and Grievance) – read, learn and enforce!!!
- Fair, adequate, reasonable, proportionate, justified, consistent transparent, lawful
- Innocent until proven otherwise
- Fully informed and aware of the allegations / particulars and supporting evidence
- Situation fully and carefully investigated
- Proper opportunity to consider, challenge or contradict any evidence
- Proper opportunity to present own case – present whole of case and heard
- Impartial decisions/actions made
- Right of Appeal – proper, impartial
- Three common law rules (details next page):
(1) The hearing rule – right to a fair hearing
(2) The bias rule – rule against bias
(3) The evidence rule
- The Hearing Rule – The right to a fair hearing:
- The right to be heard / hear the other side – “audi alteram partem”(Latin)
- In Europe: Article 6(1) of the European Convention on Human Rights
- (1) Proper notice of case against person (allegations / particulars) – person being complained against is advised of the allegations so not kept in ignorance:
- As soon as possible
- In as much detail as possible – should contain enough information to be able to understand both what it is they are alleged to have done wrong and the reasons why this is not acceptable (Acas)
- (2) Proper opportunity to consider, reply, challenge and/or contradict allegations / particulars and evidence
- (3) Proper notice of hearing / meeting (in advance):
- Time + place (practical to all parties)
- Who present AND right to be accompanied / represented
- Copies of any documents that will be produced at the meeting
- (4) Proper opportunity to be heard and present case:
- Prepare (in advance)
- Attend in person AND have representation / accompaniment
- Respond to allegations and case against:
- Challenge / contradict evidence
- Present own case / version of facts / evidence
- Call witnesses AND cross-examine their witnesses
- Present mitigation
- (5) Adjourn hearing / meeting if appropriate:
- Unlawful / inappropriate procedure and/or conduct
- Ill-health / effects
- Gather information / evidence and/or confirm facts (etc)
- (6) Right to representation by legally qualified person (legal representation):
- If gravity of allegations and/or potential outcomes / sanctions warrant e.g. dismissal / future employability – check case law
- Especially if accusers have sought legal advice – reciprocal rights
- (7) Provide decisions and sanctions:
- In writing AND within reasonable timescale
- WITH reasons / rationale, plans, expectations, timescales and consequences of non-compliance
- Right of appeal (unless final stage in process with 1 opportunity)
- The Bias Rule – Rule against bias
- No person may judge their own case – “nemo judex in parte sua” (Latin)
- No decision is valid if it was influenced
- No one ought to be judge in his or her case (includes where they have a vested interest / conflict of interest)
- Unbiased investigation, hearing, decision and sanction
- No pecuniary or proprietary interest in the outcome of the proceedings
- Investigators and decision-makers should be careful to avoid reasonable suspicion of, likelihood of, or appearance of bias
- Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation
- Must be able to show conducted a full enquiry into the circumstances involved before making decision as to breach and what sanction should be imposed
- No suggestion of irrevocably deciding the outcome prior to investigation, hearing, response, etc
- Must be able to prove that was perceived innocent until proven otherwise
- Investigators and decision-makers must act without bias in all procedures connected with the making of a decision
- Decision-maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before him or her without favouring one party over another
- The Evidence Rule
- Evidence (arguments, allegations, documents, photos, etc..) presented by one party must be disclosed to the other party, who may then subject it to scrutiny / cross-examination
- Reasoned judgement
- Decision must be based upon logical proof or evidence material
- Investigators and decision makers should not base their decisions on mere speculation or suspicion – should be able to clearly point to the evidence on which the inference or determination is based
Acas’s Core Principles of Reasonable Behaviour (Acas Code of Practice)
- Use procedures primarily to help and encourage employees to improve rather than just as a way of imposing a punishment.
- Inform the employee of the complaint against them, and provide them with an opportunity to state their case before decisions are reached.
- Allow employees to be accompanied at disciplinary meetings.
- Make sure that disciplinary action is not taken until the facts of the case have been established and that the action is reasonable in the circumstances.
- Never dismiss an employee for a first disciplinary offence, unless it is a case of gross misconduct.
- Give the employee a written explanation for any disciplinary action taken and make sure they know what improvement is expected.
- Give the employee an opportunity to appeal.
- Deal with issues as thoroughly and promptly as possible.
- Act consistently.