What is an email address?

Nearly all persons wanting to make an employment tribunal claim must first have received an Earl conciliation certificate from ACAS to enable them to lodge their claim. This applies even if a claimant does not wish to undertake conciliation.

Paragraph 9 of schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 detail when a certificate is ‘received’: 

9. – (1) Where ACAS issues an early conciliation certificate, it must send a copy to the prospective claimant and, if ACAS has had contact with the prospective respondent during the period for early conciliation, to the prospective respondent.

(2)  If the prospective claimant or prospective respondent has provided an email address to ACAS, ACAS must send the early conciliation certificate by email and in any other case must send the early conciliation certificate by post.

(3)  An early conciliation certificate will be deemed received—

(a)  if sent by email, on the day it is sent; or

(b)  if sent by post, on the day on which it would be delivered in the ordinary course of the post.

It follows therefore that if a claimant has provided ACAS an email address then ACAS must send the certificate to that email address and that the certificate will be deemed to be received by the claimant on the day that the email was sent. Certainty as to the date of reception is important because at the suspension of time limits that apply whilst ACAS early conciliation processes are ongoing cease to apply when the certificate is issued meaning that a claimant will have a fixed period of time to make an employment tribunal claim and, if they make a claim outside of that time limit they risk their claim being struck out as being out of time.

So far, so simple? Unfortunately, the recent case at the Employment Appeal Tribunal Galloway v Wood Group UK Ltd  shows that there is scope for confusion.

The relevant facts of the case are simple. The claimant wanted to make an employment tribunal claim (the nature of the claim is explicitly stated) and he submitted the required early notification form and gave the email address of his Unite Union rep. Or so he thought. The claimant actually made a typographical error and missed a “.” from the email address. In due course ACAS issued a certificate but the claimant was none the wiser of this fact, since the email was not delivered to his union rep.

In due course the lack of ACAS response was noted but by then the claim was out of time and the ET refused jurisdiction, it is this decision that was challenged at the EAT.

The issue before the EAT was limited to one issue what does the reference to “an email address” in Paragraph 9 of schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 actually mean?

If, as the employer submitted “the information supplied had the appearance of an email address then it should be treated as an email address for the purpose of regulation 9” was accepted then the claim was certainly out of time. If however, it was a requirement that the email address be valid email address then ACAS had failed to deliver the conciliation certificate which would mean it still needed to do this.

The EAT preferred the latter approach:

I have come to the view that the expression “an email address” means an actual email address and not, as here, an address that has never been set up or registered to any user or users.   Since the object of the Form is to enable communication, the intention must have been to solicit an email address that could be used to send the certificate. If so the phrase must mean an actual email address.  That is what the request on the form sought. I find it difficult to accept that Parliament intended the words “an email address” to include invalid addresses that could not be recognised as an email address by a server and forwarded.  It seems to me in that situation the sequence of characters supplied is no different in principle from a quotation from Shakespeare or a meaningless sequence of characters.  If a computer sever cannot recognise the data as an address then I do not consider that it can be “an email address” no matter how closely (or not) it resembles one. A quite different situation would present itself if a wrong email address was supplied. It could be argued that the hapless claimant would have to rely on the statutory dispensing powers (111(2) of the Employment Rights Act 1996) if that were to occur.

The judgement is a helpful one that means that where there is an incorrect email address provided to ACAS then if that is an email address to which correspondence could not be sent and received then the service of a conciliation certificate is not effective.

Cases Cited:

Galloway v Wood Group UK Ltd [2019] UKEAT 0017_18_1801

Unfair Dismissal because of Subject Access Request failure

The Data Protection Act 1998 allows any person to request a copy of the personal information an organisation holds on them, this includes a request from an employee to their employer. Making such a request is termed a ‘subject access request’. Once an employer receives such a request they must – subject to a few exemption the legislation – supply the information within 40 days of receiving the request. This right is due to be strengthened in May 2018 when The General Data Protection Regulation 2016/679 is implemented into UK law (which I hope to do a separate post on). 

Subject Access Requests can be a useful tool in an employee’s arsenal when they are undergoing formal disciplinary or grievance proceedings and it is one I often recommend an employee makes – sometimes the outcomes can reveal strong grounds of appeal. For example, in one case I have seen evidence of a senior manager has instructed a disciplinary investigator on what outcome  her investigation must reach before the investigation had even begun. In another a manager committed in writing to another manager that contrary to the stated reasons to the employee the actual reason he was not making reasonable adjustments for an employees disability was because he planned to dismiss her, he was just waiting for an opportunity to do so.

Needless to say having such information in one’s hands in the course of a disciplinary process can be advantageous. In the first case because of management delays an employee’s warning was overturned on appeal as the information was received before the appeal hearing while in the second a disability discrimination complaint before the ET was fairly quickly settled. One of the difficulties with subject access requests however is the time allowed to respond, by the time the 40 days have elapsed many disciplinary and appeal processes have run their course (under the GDPR things will be a little better as the response time is 30 days), meaning if there is a ‘smoking gun’ it will be useless except as material for a employment tribunal claim(if the employee has the right to make such a claim).

This brings us the unfair dismissal case of McWilliams v Citibank (2017) a first tier decision. The facts of the case can be briefly stated. Ms McWilliams had been an employee for many year, she regularly communicated with other traders, including outside of the company, and involved sharing confidential matters. Citibank initiated a disciplinary investigation against Ms McWilliams.

In order to prepare a defence Ms McWilliams, while suspended and therefore unable to access her own records, submitted a subject access request which the employer refused to provide because it was disproportionate. She then submitted a narrowed down request  explaining this was necessary for her disciplinary case. Citibank again did not supply the information (and Ms McWilliams complained to the ICO – the data protection regulator). The employer refused to adjourn the disciplinary hearing and Ms McWilliams was dismissed.

At the tribunal a finding of unfair dismissal was reached on the specific basis that the employer’s treatment of the subject access request – which was a request for disclosure of information to enable Ms McWilliams to answer the charges against her – and the convening of a disciplinary hearing without that disclosure made the dismissal process procedurally unfair.

At root it was not the fact that a subject access request had been refused that made the dismissal unfair per se, it was that the employer had deprived the employee of a realistic prospect of presenting a defence to the allegations against her (a defence that it was subsequently established was supported by the FCA – that the conduct was conduct alleged was condoned by senior managers). Therefore, this case certainly does not mean that if a subject access request is refused or not complied with at the date of a disciplinary hearing the proceedings are unfair (but that is not to say I would not at least raise the issue) but the case is a helpful one and where there is a direct relevance of the subject access request – in this case her suspension made this more crucial – this is an issue that employees can raise in the course of proceedings.

 

To Appeal or not to Appeal

When an employee is dismissed they face a decision whether they should appeal against their dismissal using internal appeal mechanisms or apply directly to an Employment Tribunal.

Naturally, when an employee has been dismissed and the employee feels that decision is wrong they will frequently want to exercise their right to appeal against that decision. That is understandable since the appeal is probably the last time the employee will have the chance of getting their job back, however slight that likelihood is.  Indeed, the ACAS Code of Practice (paragraph 26) recommends that employees should appeal: “Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision.”

The difficulty for employees however is that an appeal could harm a subsequent claim for unfair dismissal. The EAT in Adivihalli v Export Credits Guarantee Department made clear that a properly conducted employer’s appeal can correct errors in the preceding disciplinary hearing:

Where an Industrial Tribunal is considering a complaint of unfair dismissal and where an employee under his contract of employment has the right to appeal and exercises that right, in considering whether the employee has been fairly or unfairly dismissed, the Industrial Tribunal should have regard to the overall process of the termination of the contract of employment, or, in other words, the dismissal.

In some circumstances unfairness at the original dismissal stage may be corrected or cured as a result of what happens at the appellate process: that will depend on all the circumstances of the case. It will depend upon the nature of the unfairness at the first stage; the nature of the hearing of the appeal at the second stage; and the equity and substantial merits of the case. Whether or not an appeal cures a procedural defect is not a matter to be determined by reference to the precise category into which appeal process falls.

In short if an employees receives a decision to dismiss but there were significant errors (especially procedural errors) by the employer in how they came to that decision then the employee is faced with a difficult decision. Do they appeal the decision knowing that reinstatement is very unlikely but that the appeal could ‘remedy’ the errors in the earlier process and mean a successful legal challenge is much less likely or do they bypass an appeal (and risk a reduction for noncompliance with the ACAS Code notwithstanding potential Polkey adjustments) and pursue straight to an Employment Tribunal?

The recent case in Adeshina v St George’s University Hospitals NHS Foundation Trust highlights this dilemma. The claimant was accused of gross misconduct and, after a lengthy delay in the disciplinary process was dismissed. The claimant appealed that dismissal but the appeal procedure upheld the decision to dismiss. She then subsequently lodged an Employment Tribunal claim for unfair dismissal (along with other claims).

At the ET hearing and in the ET judgement the Respondent came in for significant criticism. It found that:

  • the decision maker had relied on information and evidence that had not been put to the claimant. The result of this was it found the decision maker could not “have held a reasonable belief in the Claimant’s misconduct” which is necessary for a fair dismissal
  • The decision maker did not make a reasoned finding for all aspects of the allegations against the complainant but nevertheless found those complaints proven without reasonable grounds for doing so.
  • In the dismissal the Respondent also relied on “other factors” which had not been put to the claimant.

The result was that there is no doubt that on the basis of the process the Respondent applied the claimant had been unfairly dismissed and, had the claimant not appealed the dismissal but instead lodged an Employment Tribunal claim her claim would have been successful with the possibility of a compensation award and even (albeit very unlikely) an order for reinstatement.

As it is however the claimant did appeal and the ET found that “the appeal process was fair and had the effect of curing the deficiencies at the dismissal stage.  Taken overall, the Claimant’s dismissal was fair.” The result therefore is that what would have been a successful ET claim was transformed (by seeking to resolve the matter through internal disciplinary procedures) into a losing case.

The case does raise the question as to whether it is always best for a dismissed employee to actually appeal a dismissal – normally this will be appropriate but in some cases it may not be in an employee’s interest to do so. Or to put it another way, sometimes you’re damned if you do, damned if you don’t.

Cases Referenced

Adeshina v St George’s University Hospitals NHS Foundation Trust [2015] UKEAT 0293_14_0105

Adivihalli v Export Credits Guarantee Department [1998] UKEAT 917_97_2703

Tribunal victory for Unite rep blacklisted by construction bosses ‘draws line in the sand’

blacklist-zebraReposted from the Unite website:

A Unite workplace rep, who was blacklisted by his employer Interserve Industrial Services because of his union activities while working at a power station at Runcorn, Cheshire, has won his employment tribunal (ET) case for unfair dismissal.

Unite, the country’s largest union, hailed this as ‘a great victory which draws a line in the sand’ for construction industry bosses who victimise union representatives.

John Kelly, a rigger/erector who worked for three years at the energy-from-waste power station being built at Runcorn, was awarded a total of £3,253.11 by the Liverpool tribunal for unfair dismissal (£2,003.11) and damages for injured feelings (£1,250).

The tribunal decided that as the work at Runcorn was coming to an end in July 2014, John Kelly – described as ‘a good worker with considerable experience’ –  was not offered work at the Capenhurst site, also in Cheshire, because he was a workplace representative and a member of Unite.

The judgement  stated that Unite regional officer Steve Benson was ‘a credible and believable witness’, while the construction manager, Trevor Collins, responsible for hiring new labour, had made Facebook entries to his friends, expressing his dislike for the ‘Liverpudlian elements’ in the workforce – a large percentage of whom were from Liverpool.

The judgement stated: “The tribunal did not find it credible that the claimant (John Kelly) had been considered for vacant positions by Trevor Collins.

“In short, Trevor Collins did not want the claimant (an employee representative for Unite and activist) working on the Capenhurst project under his management, he was motivated by the claimant’s membership of Unite and his known activities in that capacity.”

Unite assistant general secretary Gail Cartmail said: “Unite will not tolerate abuse by employers of our elected representatives. This successful employment tribunal decision shows Unite will not suffer in silence while employers try to stifle our voice on construction sites.

“This is a great victory which draws a line in the sand for construction industry employers who are tempted to victimise and blacklist our members for carrying out legitimate trade union activities.

“We welcome Labour’s pledge to outlaw the odious practice of blacklisting once and for all.

“Tomorrow (Tuesday 28 April) workers across the world mark International Workers’ Memorial Day when we remember the dead and fight for the living. Unite reps are workers frontline defence against hazardous working conditions and deserve to be applauded not victimised for their efforts”.

John Kelly said: “I feel very pleased that I took this company on with the help of Unite, as this shows that bad employers can be stood up to and be defeated. The main reason was to show other lads and shop stewards we are getting blacklisted and we should stand up for our rights.”

John Kelly was dismissed in April 2014, but subsequently found work with another company unconnected with this case.

Unite director of legal, affiliated services & membership Howard Beckett said: “This is a fine example of how Unite’s legal services fight – and is successful – on behalf of our 1.4 million members. It shows the strong benefits of belonging to a trade union to obtain representation. We would like to thank the efforts of EAD Solicitors in bringing John Kelly’s case to a successful conclusion.”

Read the full ET judgment [PDF]

Institutional Racism Lives On

PoliceIf UKIP are to be believed there is no longer a problem with racism in UK society, let alone in employment. On that basis the ‘we’re not racist but …’ UKIP are keen on the scrapping of race discrimination laws that provide some (marginal) legal protections for minority groups in the UK.

Over recent months the Police in the UK have appeared to be on a mission to prove UKIP wrong.

On the receiving end, there it is incontrovertible that the exercise of stop and search powers are disproportionately applied to BME citizens. This despite the recognition following the MacPherson Report that the Metropolitan Police were institutionally racist and the enactment of the Public Sector Equality Act.

A decade on and there have been attempts by the Conservative led government to scale back on these protections with the government encouraging public authorities that it should not complete equality impact assessments, removing the ability of Employment Tribunals to make recommendations to employers to eliminate future discrimination, and the attempted repeal of section 3 of the Equality Act 2006 against which PCS campaigned.

It was the racism of the Police revealed in the Stephen Lawrence case that provided such an impetus to the development of equality law. Over the last year we have seen that despite these advances there remain significant problems of racism within the Police; even within the way it treats its own employees there have been clear pockets of racism.

In a highly publicised judgement last September the former PC Carol Howard found the Met Police and racially discriminated against her and then proceeded to victimise her for challenging that behaviour. In their award of compensation the Tribunal also made the rare step of awarding aggravated damages which can be given only where an employer has acted “in a high-handed, malicious, insulting or oppressive way“. Predictably, in the aftermath there were claims that this was ‘an isolated instance’. Similar claims were made months later when PC Ricky Haruna won another tribunal for Racism of senior officers.

Less than a year later another Police force has again been found to discriminated against a PC on the ground of race. Ronnie Lungu is a PC in the Wiltshire Police Service – a Tribunal found last week that senior officers had intentionally downgraded internal appraisals to ensure he would not gain a promotion. The Tribunal found

The reduction in the scoring has the very significant effect in terms of making it appear reasonable that the one black applicant for promotion was scoring lower than the 19 white applicants and should therefore not be promoted … This behaviour is so extreme that the tribunal cannot think of any apparent motive other than one that is directly related to [the] claimant’s race.”

Bad_Egg
The ‘bad egg’ defense discriminatory employers invariably use just will not wash in the case of the Police.

In short, because Mr Lungu was black senior officers blocked his promotion and, as the tribunal also found, failed to take adequate action when colleagues had made racist remarks.

As the principal organ through which the rules of the land are upheld it is right that the public should expect the Police to perform their duties diligently irrespective of race. Over 20 years after the murder of the Stephen Lawrence and the  light the ensuing inquiry shone on the dark recesses of police prejudice it appears the institutional racism of the UK police lives on, at least when it concerns how our custodians of law and order treat its own black and minority ethnic employees.

As any trade union rep knows for every one employee willing to take a discrimination employment tribunal against their employer there are at least 10 who are too scared, and that is not inclusive of those put off by employment tribunal fees. These cases then, are just the tip of an iceberg.

And so, at the time that Conservatives desire cutting anti-discrimination safeguards in employment in the name of cutting red tape, and UKIP want to scrap race discrimination laws themselves the evidence in the Police service – the racism of which prompted these safeguards in the first place – strongly suggests that while there may have been improvements the work is a long, long way from completion. In parts at least, racism lives on in the UK’s police forces; the UK needs more safeguards and meaningful protections, not less.

Unite Union, Labour, and Zero Hour Contracts

milbandIt is certainly not a new tactic: when a politic party makes a proposal with which the other parties are not too enamored they adopt a guilt by association posture. And so it was last week, fresh from the Labour Party launching its Business manifesto cracking down on zero hour contracts, the Tory cheerleaders at the London Evening Standard targeted Unite (and by implication Miliband) on Thursday (on the eve of the leadership debates) for hypocrisy.

Unite the Union is the Labour Party’s largest financial backer which is the basis for the LES to run a story on Thursday that ‘Labour’s biggest union donor used zero hour contracts’. The background is what is assumed to be a Preliminary Hearing at the London South Tribunal for Martyn Reuby who is bringing an unfair dismissal claim against Unite the Union. Mr Reuby had delivered training for Unite at many local colleges; he contended that he was an employee of Unite, whilst Unite contended he was either self-employed or employed directly by the colleges. In order to make that claim Mr Reuby would need to establish he was an employee, hence the reason for the judgement which was not about whether he was on a zero hour contract but whether he was an employee.

In its judgement, which Unite have said it is appealing, the tribunal determined that Mr Reuby was employed on a series of short term contracts. It was Mr Reuby’s solicitor, not the tribunal, that suggested he was ‘effectively’ on a zero hour contract (the use of such an adverb usually in my experience has the same intellectual coherence as ‘I am not a racist, but …’ The Unite response to the LES’s story is pretty unambiguous: “Unite does not use zero-hours contracts and it is misleading to say so”.

On that basis the story is a pretty empty attack piece lacking in substance but of mud slinging. When the politics of employment law apocalypse fail, the next recourse is claims of hypocrisy. But here, it is not even Miliband being accused but a Labour Affiliate.

Still, while the charge of hypocrisy may be technically incorrect and represent some pretty petty political pointscoring the tribunal judgement does again bring into focus the tendency of some parts of the Union movement, when employing staff, to adopt some pretty shoddy employment practices. This is something I have picked up before. Here, even by their own admission, Unite have been procuring the services of a worker who even in the very best designation (the one Unite tried to argue) was a self employed worker who would preferred to have been an employee. In fact, however, the Tribunal’s judgement is that he was an employee in a succession of fixed term appointments – this is precisely the insecure type of employment which the union movement has criticised as being the basis of the ‘economic recovery’, workers with no security of employment. Whether or not the union succeeds in its EAT appeal the fact remains that in a duty core to the union (education) that is not going to diminish any time soon the union has chosen to deprive workers of secure employment. That is not a decision of the Labour party but a decision taken on behalf of the Unite executive.

It is right that questions about this conduct in union recruitment practices are asked. What is unfortunate however is that these question are being asked by right wing press barons (and here, unlike here, the term is appropriate) given the issues are raised by them as a matter of political opportunism and not the rank and file membership itself.

In Mr Reuby’s case Unite are defending the claim of unfair dismissal on the basis that he was not an employee. It is a defense that is certainly open to them to make legally, but the decision to pursue such a defense is morally questionable. A matter of days ago Unite published a review of Dave Smith and Phil Chamberlain’s Blacklisted (a review will follow here on Employment Writes soon).

Blacklisted tells the story of the scourge of blacklisting in the construction industry – there is a wealth of evidence that many construction companies sacked trade union representatives when they raised concerns or even when they first became known as a union activist. This affected many workers – when it became known that these companies had sacked their employees for raising concerns many of those affected, understandably, sought to lodge employment tribunal claims. One of the primary defense strategies these companies was to deny that the workers were employed but that they were ‘self employed’ or agency workers, if they are not an employee they do not have a legal remedy for unfair dismissal. It is the reason Dave Smith lost his recent Court of Appeal case of unfair dismissal. Following the outcome Dave Smith commented (and I entirely agree):

What is the point of employment law or the Human Rights Act? Even with mountains of documentary evidence and an admission from the company that they blacklisted me because I was a trade union member who had raised safety concerns, I still cannot win. This might be the law, but it is not justice.

The endemic use of agency workers, zero hours contracts, umbrella companies and bogus self-employment means that millions of workers are being treated as second class citizens.

The result of this tactic was that the overwhelming majority of those who submitted employment tribunal claims lost them because the courts found they were not employees because of their particular working arrangements. How disappointing then that Unite, who have made very positive moves in the anti-blacklisting campaigns and supported many of these claims have adopted the very same strategy and have sought to deprive workers of the right to legal remedy by contesting the fact that those who work for them on a continuous basis are in fact employees. This is especially the case since as a matter of policy (see 2014 Policy Conference motions) Unite are opposed to bogus self-employment. It may be that Mr Reuby’s claim is without merit and that Unite have not subjected him to any detriment for whistleblowing but the decision to seek to deny him a hearing is certainly questionable.

This is something members should be raising with their union executives with some earnestness with or without press coverage at election time.

Unfair Dismissal and the Myth of Red Tape

Unfair Dismissal: A Plethora of Red Tape?
Unfair Dismissal: A Plethora of Red Tape?

The Lancashire Telegraph is running a story on the unfair dismissal ruling of a former employee of Moorlands School in Clitheroe, Lancashire.

Along with two other members of school staff of Moorlands School, a private boarding school in Lancashire, the claimant was supervising a school trip at which a number of pupils got drunk. Depending on the exact circumstances, which are not reported, it does appear that dismissal for the teacher’s conduct was not excessive.The fact that the Tribunal did not award any compensation for the unfair dismissal – a Polkey deduction – suggests the the Tribunal agreed.

Nevertheless, Moorlands School were found to have unfairly dismissed the claimant, Deanna Hall, by adopting an unfair disciplinary process. According to the report one of the main errors of the disciplinary process was the school failed to adequately disclose all the evidence upon which the employer sought to rely to the claimant before the hearing.

In responding the the judgement Jonathan Harrison, the schools headteacher, went on the offensive and claimed that the problem was really one of excessive red tape:

Judge Howard did find that Mrs Hall was unfairly dismissed due to a lack of evidence being presented to Mrs Hall during the investigatory hearing. This was due to a slight Acas infringement. As employer it is becoming impossible to fully comply with every procedural aspect of Acas.

I think the first thing to say is you do not get unfair dismissal judgements for “slight” errors, Jonathan Harrison is simply being duplicitous.

As most readers will be aware the central question before an Employment Tribunal in assessing whether a dismissal is fair is whether the decision is within the ‘band of reasonable responses’. In British Leyland UK Ltd v Swift [1981] IRLR 91 Lord Denning explained this approach.

If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have reasonably have dismissed him, then the dismissal was fair. It must be remembered that in these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.
 In short, a dismissal is not made unfair because an employer made a ‘slight mistake’, it is made unfair because it is a decision no reasonable employer could have made. Even if a Tribunal considered the decision of an employer to be wrong and in the same circumstances they would not have dismissed an employee the dismissal is still likely to be fair, like the example given by Lord Dennning above.
And the same principle applies to the disciplinary investigation. The Court of Appeal in Sainsburys Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 made clear that the band of reasonable responses test applies to a disciplinary investigation as well. In order to be a fair dismissal an employer must follow a fair process on the fundamental areas. One of these fundamental principles is making sure employees accused are offered the opportunity to see and respond to any evidence against them. This is a fundamental principle of natural justice that is best enunciated by the comment of Megarry J in John v Rees [1970] Ch 345 that

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start”Those who take this view do not, I think, do themselves justice.

As every body who has anything with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

Nor are those with any knowledge of human nature who pause to think for a moment, likely to underestimate the feelings of resentment of those who find that a decision against them has been made with their being afforded any opportunity to influence the course of events.

It is precisely this principle that Moorlands School denied Deanna Hall, it denied her the chance to offer a defense to the undisclosed evidence. That is no slight thing and it would have taken a mere matter of minutes to do.
The simple fact is that if Jonathan Harrison really thinks the relatively simple standards of procedural fairness set out in the ACAS Code of Practice are beyond him he has absolutely no business running a school – he is clearly not up to the job. If he can’t run a fair disciplinary process such as showing an accused the evidence he will rely on to allow an employee an opportunity to explain then it beggars belief how he can cope with the much  more demanding, onerous and technical duties being a headteacher requires. The more likely scenario however is that the school screwed up the disciplinary process and made significant, not slight, mistakes in how the school ran the disciplinary process for Ms Hall. And, rather than face up to those errors and the unnecessary expense that has caused for the school, Mr Harrison is trying to shift the blame to the so-called overwhelming burden of red tape. It is an old, old strategy but hopefully one the school’s staff, pupils, governors and parents will see through.