Apparent bias makes grievance appeal procedure unfair

PPMA WEBSITE EMPLOYMENT LAW UPDATE June 2011 (3)

  

Public sector employers will have clear policies and procedures relating to the handling of employee grievances, the stages which apply and the processes to be followed. These will include providing employees with a right to appeal against a grievance decision, ensuring compliance with the Acas Code of Practice on Disciplinary and Grievance Procedures and supporting guidance. The case of Watson v University of Strathclyde illustrates the importance of employers ensuring that employees are provided with a fair hearing at all stages of the grievance process, including any appeal, with proper consideration given to the membership of any panel to ensure objectivity and impartiality.

 

The employee in this case worked as a publications officer in the University’s Marketing and Communications Office. A new Director of Marketing and Communications was appointed and he became the employee’s line manager. The decision to make this appointment was made by an Appointing Committee of which the Secretary to the University was a member. The Secretary was considered to be a powerful figure within the University.

 

The employee became upset about the new Director’s conduct and behaviour, both towards her and more generally. She also felt that he had tried to undermine her in a matter concerning the publication of the University diary, for which she was responsible, the source of the problem appearing to be that the Secretary had indicated to the new Director that he was not happy with a particular aspect of this.

 

The Director was then convicted of a breach of the peace for discharging an air gun in a public park at 3am. The University declined to accept his offer to resign. Having discussed the matter with the Principal, the Secretary issued a press statement to the effect that the conviction was a personal matter and did not impact on the Director’s professional life or continued employment.

 

Difficulties in the relationship between the employee and the Director continued, culminating in her presenting a grievance about his alleged inappropriate behaviour and autocratic management, with a consequent breakdown in trust and confidence. The grievance was not upheld and she appealed against this decision. She was advised of the composition of the three member appeal panel, which included the Secretary to the University. She objected to the inclusion of the Secretary as she considered he had a conflict of interest in her case and stated she would not be attending the hearing. A number of his decisions and relationship with the Director were core issues in her grievance and she felt intimidated about the prospect of confronting him with these. Her objections were considered by the other two members of the appeal panel who concluded there was no conflict of interest. The Secretary joined the panel, which considered her appeal in her absence, and rejected it. She subsequently resigned and claimed unfair constructive dismissal.

 

Her claim was initially rejected by the Employment Tribunal but that decision has been overturned by the Employment Appeal Tribunal (EAT). The facts showed that the inclusion of the Secretary on the appeal panel rendered the procedure unfair. The appeal panel was tainted with apparent bias, entitling the employee to conclude that the University was in breach of the fundamental duty of trust and confidence by deciding to and persisting with the Secretary’s inclusion on it, despite her objections.

 

Referring to previous case law, the EAT found that the test to be applied was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the panel was biased. Although the EAT did not suggest that an employer setting up a grievance appeal panel is routinely required to consider whether or not there is “apparent bias” in the panel, any reasonable employer must have regard to the need to afford an employee a fair hearing throughout the process, including at the appeal stage.

 

The EAT found that, viewed objectively, the employee’s concerns were legitimate, and the University had failed to respond to them. Any reasonable employer would have removed the Secretary from the panel to allay her concerns and enable her to attend the hearing. The failure by the University to take the appropriate actions amounted to a breach of trust and confidence, justifying her resignation, and this constituted unfair constructive dismissal.