Campaign Against Unnecessary Suspensions & Exclusions in the NHS (CAUSE)

Natural justice (in employment)

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.

Information sources:

www.justice4you.org/natural%20_justice.php

http://en.wikipedia.org/wiki/Natural_justice

www.cricketeurope2.net/docs/ECC/TSOP2010/…/C110.pdf

http://www.businessdictionary.com/definition/natural-justice.html

www.acas.org.uk   (Acas Code of Practice – Discipline and Grievance)

BACKGROUND

  • 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”
  • PRINCIPLES
  • 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
  • Procedure
  • 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.