Category Archives: Human Rights – Article 6

Salmond, Natural Justice, and Unfair Employer Misconduct Investigations

If you are a trade union representative one of the go to arguments you will often employ is that the employer is acting contrary to natural justice. Natural Justice can be summarised as comprising of two components: 

  • That a person accused of wrongdoing will be told what exactly they are accused of, given the chance to provide a defence,  reasonable time to prepare, be provided access to the evidence against them before a decision on whether they are responsible for the misconduct is made.
  • That the investigation and misconduct will be taken by persons who are impartial and have not been previously involved in any investigations.

That, broadly stated, is all that natural justice requires.

Natural justice has recently hit the headlines in the context of Alex Salmond, the former SNP leader, and his Judicial Review against the Scottish Government.

A year ago, in the wake of the #metoo movement two sexual harassment complaints were made against Mr Salmond regarding his time in government. The government, quite properly, launched an investigation into the allegations. The Permanent Secretary Leslie Evans (head of the Civil Service for the Scottish Government) appointed an HR investigator to investigate the allegations. However that HR Officer had already had some involvement in the concerns and had spoken to the complainants about the matters some time earlier. 

The Court found this was a very serious procedural error, that amounted to a breach against Alex Salmond’s natural justice rights, specifically the right of accused to be subject to an impartial investigation without the appearance of bias. Instead, having been investigated by an party with previous knowledge and involvement of the matter at hand the court took the view that this was a fundamental error and, in so doing, the results of the investigation could not stand. In making the judgement the court did not find Alex Salmond had not engaged in sexual harassment but that any investigation that had been undertaken could not stand because of bias. 

The court, in my view were right to do so in recognition of the rule of law and the need for fair processes to be scrupulously applied to all. If there was a view that a quick investigation could resolve the matter then the Scottish Government made a serious error because, as the Guardian notes, this error has caused harm to the government’s reputation and should further complainants contemplate coming forward they may now be dissuaded from doing so. The judgement of the court recognises that its requirement to apply the rule of law would make it prejudicial to allow a procedural unfair investigations to stand and to dissuade the investigators from pursuing arbitrary investigations in the future. 

What then does this mean for employment investigations? One would think, that the Employment Tribunal would take a similar approach, especially given the centrality of rule of law considerations in the Supreme Court’s recent consideration of employment justice in R v Unison (the ET fees case); such a view is false, however. In fact, the court of Appeal have expressly stated that the principles of natural justice do not form a basis for an appeal that an employee was unfairly dismissed. In Slater v Leicestershire Health Authority [1989] IRLR 16 it was determined that: 

[Counsel] for the appellant relies principally on the general principle that a person who holds an inquiry must be seen to be impartial, that justice must not only be done but be seen to be done, and that if an observer with full knowledge of the facts would conclude that the hearing might not be impartial that is enough. . . I accept both the general rule and the exceptions [the example given was a one man firm]. The rules of natural justice in this field do not in my view form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the [Tribunal] consider the question raised in s[98(4)] of the Act.’

I think this is wrong. Why should the remedy in public law whereby a serious procedurally unfair investigation results in that investigation being quashed not have a similar counterpoint in employment law, for example that any dismissal reliant on an unjust investigation will be unfair. Similar public policy arguments would apply such that such a remedy would encourage employers to invest appropriate due diligence in misconduct investigations so as to prevent errors and also dissuade employers from pursuing arbitrary investigations for certain staff (it is a rare trade union victimisation case, for example, that will not involve an employer pursuing overblown or trumped up disciplinary accusations against them in order to rid themselves of a troublesome (aka effective) union rep).

Instead,  the employment law rather than adopting the rule of law approach seen above has required an additional requirement, as Slater itself set out in the excerpt above. Not only must there be a serious procedural breach of justice but the employment tribunal must consider whether this breach amounts or contributes to a separate breach of section 98(4)  Employment Rights Act 1996, namely that the conduct of the employer was outside the range of reasonable responses.

One obvious counter-argument is that the requirements of natural justice in an employment context are summarised in the ACAS Code of Practice on Disciplinary and Grievance Procedures  and a failure to follow these may give rise to a successful unfair dismissal claim. This is true, and many, if not most, serious procedural breaches of natural justice will be found to be unfair dismissals. This is not adequate in my view. First, unfair dismissal is only an option for a segment – and ever decreasing segment – of the UK workforce, being those who are employees and also those with two years continuous service. Second, there is no necessary correlation that breaches of natural justice will result in an unfair dismissal

The recent decision in Hargreaves v Manchester Grammar School is a case in point. A teacher was accused of misconduct, and the school investigated this and obtained numerous witness statements. Three of this gave evidence that persons present had witnessed nothing untoward but the employer did not disclose these the the teacher. The teacher was in due course dismissed.

Natural Justice would require that evidence against an alleged wrongdoer should be disclosed, but so should evidence that is potentially exculpatory. In Hargreaves the teacher understandably complained that the employer had kept evidence from him that could point his innocence from the accusation and that this was a serious breach of natural justice. However, despite the employer’s deliberate decision to exclude evidence from Mr Hargreaves, and thereby depriving him of the opportunity to make submissions to the decision maker on the basis of these statements the Employment Appeal Tribunal   affirmed the Employment Tribunal’s decision that because the decision was not outside the range of reasonable responses the employer’s investigation was fair.

And so we are left with the position that an employer has deprived an employee under suspicion of wrongdoing the opportunity to make focused submissions to the employer on how the evidence the employer had gathered pointed towards his innocence on the basis that the employer decided it would not assist the employee based on their understanding of the employee’s case. And, having done so, the employer can point to the EAT’s decision as vindication of the employer’s (mis)conduct.

It probably is true that had the employee had sight of the statements the outcome would have been the same but that is not the point. The issue is, like the decision in Alex Salmond’s case investigations should appear to be and appear to be impartial, they should not endorse an investigator’s decision to tie an accused employee’s hands and prevent the opportunity of presenting as effective a defence as possible. Unfortunately, unfair dismissal law in departing from rule of law approach does not do this and so offers inadequate incentive to employers  to be irreproachable in their conduct of investigations. If one were to ask Leslie Evans I doubt she would express the same view in respect to administrative law.

Whistleblowing: not just and equitable

wbA scenario: Sarah, who is an employee, suspects that the company’s finance officer is ‘cooking the books’ by skimming company funds into his personal accounts having come across a printed document left on the printer in the office.  Concerned about this Sarah reports her concerns to the company’s HR director and explains that she thinks the finance officer who assures her she will investigate and handle the situation.

The following week the worker applies for a promotion opportunity in the company and on the 19th September is told her application is unsuccessful, the reason given is she is not a ‘good fit’ for the role and there were other better qualified candidates.

Unknown to Sarah the HR director and finance officer are good friends. Without investigation the HR director decided that there was no substance to allegation of theft because, being a friend, he knew that the finance officer was a person of impeccable character. And upon hearing that Sarah had applied for promotion and was about to be offered the role the HR Director directed the interviewing officer not to give Sarah because she was a troublemaker but to tell her she was simply not the best candidate for the job.

Then on 19 December (exactly 3 months after the unsuccessful application) at a Christmas company do the HR Director having had one too many drinks Michael, the HR Director’s PA, blurted out to Sarah that the reason she was not successful for the job was because she had made the complaint to the HR Director that the finance officer had defrauded the company and that the complaint had been brushed under the carpet and not been investigated.

Distraught, the one week later ater collecting her thoughts Sarah files an Employment Tribunal claim alleging that the rejection of the job was a detriment for whistleblowing.  After discovering her allegation had not been investigated Sarah also reports the alleged theft to the Police. Their investigation reveals the finance officer had been stealing from the company for many years and he is convicted and imprisoned for theft.


Sarah’s complaint to the Employment Tribunal would be a claim under section 47B of the Employment Rights Act 1996 (the ERA) which stipulates that a “worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.” On the facts as set out above Sarah would have a strong case that she was subjected to a detriment for having made a protected disclosure. However, section 48 of the of the ERA directs Employment Tribunals that they “shall not” consider a complaint unless the claim is submitted within three months of the “the date of the act or failure to act to which the complaint relates” (section 48(3)(a)). For Sarah that act complained about is the failure to promote her, and that happened on 19 September. Therefore, the three months would expire on 18 December.

There is clearly an unfairness here; soon after Sarah was aware of the claimed unlawful act she initiated proceedings but despite the clear evidence that she has acted quickly and was penalised for blowing the whistle on a serious matter she would appear not to have any legal redress for the wrong done to her.

It was this precise issue that was addressed by the Employment Appeal Tribunal in  McKinney v London Borough of Newham [2014] UKEAT 0501_13_0412. The claimant had submitted that the time limit for making a complaint detriment because of whistleblowing ran from the point he became aware of the detriment (in his case, when he received an outcome through the post), not the day the grievance outcome (the alleged detrimental treatment) was sent. Clearly, without any real enthusiasm, the EAT at paragraphs 6 and 7 found the effective date in which to submit a claim begins on the date the detriment takes place “whether or not he is aware that a detriment has been suffered”:

(6) It seems to me that the current state of the authorities is less than satisfactory.  Nevertheless, a clear thread is now emerging (see Mensah; Virdi; Garry; Warrior Square) which points towards the counter-intuitive position that time begins to run against the Claimant relying on a detriment, both under the Employment Rights Act and the Equality Act whether or not he is aware that a detriment has been suffered.  I agree that the wording of section 48(3) Employment Rights Act is focused on the employer’s action (or omission) and that a detriment may be suffered without the Claimant being aware of it.  For example, a difference in treatment which may be on the grounds of race (see Garry).  Indeed section 48(4)(b) provides that a deliberate failure to act shall be treated as done when it was decided on, not, I would add, when the Claimant learned of the omission.  That is consistent with the Mensah line of authorities in relation to the employer’s act.  Whilst the need for knowledge is reinforced by the Supreme Court in Barratt when considering the effective date of termination I accept that section 97(1)(b) Employment Rights Act raises a different question from section 48(3).  The Claimant is entitled to know that he is dismissed before the dismissal takes place.  He may suffer a detriment without that knowledge.

(7)           In these circumstances, and being unimpressed by Mr O’Dempsey’s public policy argument, I am driven, without enthusiasm, to accept Ms Balmer’s submissions as a matter of construction and authority.  The Employment Judge was right to treat time as running from the date of the Respondent’s grievance decision, 8 October.  By way of analogy, time runs for bringing an appeal to this Tribunal from the date the Employment Tribunal Judgment is sent to the parties, not when it is received by them.  Thus, the section 47B complaint was out of time.  The Employment Judge went on to consider the reasonable practicability escape clause and rejected it (paragraph 32); there is no extant appeal against that ruling.

On the basis of the legislation I think the EAT are right but it is clearly an unpalatable state of affairs that can lead to injustice and gives employers an opportunity to discriminate against whistleblowers and still evade legal scrutiny. I do not know if this decision is being appealed but it seems to me that in a case such as Sarah’s she has been deprived of her right of legal redress that potentially raises Article 6 ECHR issues (along similar lines to that advanced in Williams v Ministry of Defence [2012] UKEAT/0163/12/JOJ.

The clearest change that needs to be effected, it seems to me, is for section of 48 of the ERA to be amended so as to align itself with section 123(1) of the Equality Act 2010. Although the time limit provisions in the ERA are nearly identical to those in the EA 2010 an out of time claim may be allowed where it is just and equitable to do so, a provision the ERA omits. The Court of Appeal has accepted that whisteblowing protections are anti-discrimination laws (see Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330). Relying on the House of Lords’ finding that there is a public interest in discrimination cases being heard set out in Anyanwu and Another v. South Bank Student Union [2001] UKHL 14 LJ Kay commented that “in my judgment the same or a similar approach should generally inform whistleblowing cases” (paragraph 32). And so, were an out of time whistleblowing claim allowed to because it was “just and equitable” to do so then there would be a strong public policy reason to allow the claim to proceed. In short, Sarah would have a good chance of getting her day before the Tribunal.

The difficulty is that the construction of the right to lodge a claim in the ERA does not permit an Employment Judge to hear such a claim – that needs to change. If it doesn’t then whistleblowers will be deprived their right to challenge unscrupulous employers.

For reps wanting to understand whistleblowing law I recommend a visit to the Public Concern at Work website.