Cross Examining Witnesses in Disciplinary Hearings

Although unlikely to lack the theatrics of A Few Good Man in certain circumstances cross examination of witnesses may be an appropriate tactic.
Although likely to lack the theatrics of A Few Good Man in certain circumstances cross examination of witnesses may be an appropriate tactic.

In an Employment Tribunal hearing the cross examination of witnesses represents the majority of a disciplinary hearing. By contrast in a misconduct hearing of an employee the overwhelming majority of hearings will feature no cross examination of witnesses at all.

As was set out in R (Bonhoeffer) v General Medical Council in certain circumstances the refusal to allow an employee the right to cross examine would represent a denial of an employee’s right to a fair trial and amount to a breach of the their Article 6 ECHR rights. In practice though this is unlikely to apply to most disciplinary hearings and only where the right to practice their profession rather than just current job is at risk.

The ACAS Code of Practice on Disciplinary and Grievance Procedures does not give an expectation that an employee must be allowed to call and cross examine an employee but it does go someway to suggesting that this may be appropriate. Paragraph 12 suggests that an employer:

The employee should be allowed to set out their case and answer any allegations that have been made.The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this.

In my experience employees subject to misconduct proceedings do sometimes seize on the idea to cross examine an employee (usually an individual who who has made a grievance). I nearly always think this is a bad idea and thankfully have nearly always been successful in dissuading them. Many times the reason is simply some employees are incensed by what  has happening to them and the opportunity to vent some of that frustration seems an attractive one.

Other times the case against cross examination comes down to two issues. First, there is no independent verification and the allegation relies on one person’s word against another. In such cases I prefer to argue that in the circumstances (when an employee has a clean disciplinary record) and credibility has not been questioned in an investigation it is appropriate to give the benefit of the doubt following the advice in Salford Royal NHS Foundation Trust v Roldan (paragraph 73) that:

The second point raised by this appeal concerns the approach of employers to allegations of misconduct where, as in this case, the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved.

Second, there are cases where the credibility of the opposing side can be impugned with documentary evidence – which may or may not have been considered in the disciplinary investigation. In such circumstances I do not see what benefit it would be for the employee to cross examine the witness – the smoking gun is already in their hands and cross examining would only risk the value of the evidence being lessened by the opportunity to be explained.

However, employee representatives will want to know that if a cross examination is requested and an employee is refused, especially where the accusations or consequences are serious, then this may itself represent a ground for unfair dismissal (see TDG Chemicals Ltd v Benton). If nothing else, if you’re confident a request will be refused then asking for the right may itself give an employee a ground of appeal they would not otherwise have (but you risk having the request granted and then having no questions to ask).

Case References:

R (Bonhoeffer v General Medical Council [2011] EWHC 1585 (Admin)

TDG Chemical Ltd v Benton [2010] UKEAT 0166_10_1009

Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522

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.

Affirming Gross Misconduct

At the beginning of the mofirednth I posted What Will the Papers Say?, a piece on the High Court’ s decision in Williams v Leeds United Football Club [2015] EWHC 376 (QB).

Briefly, the claimant, then a Director for Leeds Utd FC, had sent pornographic images using the football club’s IT to three people: Dennis Wise, Gus Poyet and a LUFC administrative worker. Not one of the recipients made a complaint about the email and the football club had no knowledge of the misconduct.

A significant time later the football club gave notice to the claimant to terminate his contract which amounted to a year’s salary. However, after agreeing the termination but before payment was made the football club became aware of the earlier misconduct and launched disciplinary proceedings which resulted in the claimant’s dismissal.

Gross Misconduct is, at root, a matter of contract; it is conduct that is capable of destroying the relationship between the employer and employee. In the Williams case even though there was a delay in the employer discovering the misconduct when it did so it was open to the employer to respond by considering the contract terminated by the employee’s actions – even though there was a significant delay between the employee’s misconduct and the employer’s knowledge of the misconduct.

But what if LUFC had known about the misconduct previously but had declined to act? In Williams Lewis J covers this state of affairs by finding that in such a case LUFC would not be able to justify dismissal (paragraph 70):

Sixthly, Mr Barnett submitted that if the Club knew that the Claimant had forwarded the e-mails to Mr Wise, Ms Lamb and Mr Poyet prior to deciding to dismiss then the letter of 23 July 2013 affirmed the existence of the contract. I accept that if those who took the decision did know those facts prior to the decision to terminate the contract, then the letter of 23 July 2013 would amount to an affirmation of the contract of employment and that the Club could not thereafter rely on those facts as justifying dismissal.

In the same way that an employee when considering resigning from their employment and claiming constructive dismissal in response to a fundamental breach of contract must act quickly to avoid being seen to have affirmed the contract so an employer must likewise act quickly.

So, to amend the narrative somewhat, suppose Mr Williams still sent the emails but the following day reflected this was a big mistake and confessed the act to the LUFC Chief Executive. The Chief Executive is not happy and admonishes Mr Williams but decides to take no further action. In such a situation it would seem even if a new CEO is appointed LUFC is aware of the misconduct and, therefore, could not go on to pursue his dismissal on gross misconduct grounds as the breach of contract has been affirmed by the employer.

In my experience, this is not in fact an uncommon state of affairs. For example, it has not been an uncommon situation for an employee to do something wrong and then promptly tell their manager of this and for the manager to take no further action.

For employees and trade union reps this is a reminder of the basic principle that an employer as well as an employee may affirm conduct that is capable of repudiating the contract between them and it is one that it would pay to be alert do. In cases where an employee subject to disciplinary investigation readily admits to me (as their rep) that they did the misconduct they are accused of I often ask if they have ever told the employer this; it is surprising how many have.

In practice (and especially where documentary evidence is available) the very fact of prior notification is sufficient to see of the allegation, meaning there is no need to revert to more legal affirmation of contract arguments.

Strangely, and in my view wrongly, the Court of Appeal have in a case arising from the tragic Baby P case (Christou & Anor v London Borough of Haringey [2013] EWCA Civ 178) suggested the opposite and that where an employee has been investigated for an offense and been given a warning the employer can go back and ‘have a second bite’ and dismiss the employee for the same offense (and here, even if there was a difference of emphasis, it is clear the employer knew of all the relevant facts later relied upon). Clearly, in that case the fact that the employer did not dismiss in the first instance can be questioned but having made that decision seems to fly in the face of any concept of fair process. Thankfully, this type of situation will be exceptional but I certainly hope, in time, this case will be overturned.

What Will the Papers Say? Employment Law, Disrepute and the ‘Beautiful Game’

denniswiseIn recent mainstream media reports there has been a focus on the appalling racist chants of a group of a group of Chelsea fans; this story has an employment focus as at least one Chelsea fan, finance worker Josh Parsons, has now been suspended from his work in the aftermath of the incident. Time will tell what the outcome will be but it is certainly the case that an employee’s conduct outside of the workplace may justify dismissal if this would harm the reputation of the employer.

In fact, in another football related case, Post Office v Liddiard [2001] EWCA Civ 940, the Court of Appeal determined that it was fair for an employer to take into account negative press coverage in making a decision to dismiss. In Liddiard the claimant was a convicted football hooligan (convicted in France) following an England v Tunisia game in Marseilles. The claimant’s actions attracted press attention with even the Prime Minister making comments applying pressure on his employer (the Post Office) to dismiss the claimant.

But in recent weeks there has been a more important interesting football related case that involves the well-known former Chelsea player, and Leeds United manager Dennis Wise. Gwyn Williams was a Leeds United finance director who joined in 2006. In 2008, he sent obscene ‘joke’ emails to three colleagues: Dennis Wise, Gus Poyet and a LUFC receptionist. There was no complaint about the emails from any of the three recipients.

Under his contract Williams was entitled to 12 months notice of termination of contract and his employer gave this on 23 July 2013. However, after this notice had been given the employer became aware of the earlier emails and dismissed Williams for gross misconduct, meaning Leeds United could avoid paying the close to £250,000 in notice pay it would otherwise have been able liable to pay Williams.

Williams then lodged a claim for wrongful termination of his contract of employment in the High Court and losses arising from the which was close to a quarter of a million pounds (but interestingly, did not make a separate claim of unfair dismissal – which may have had a different outcome had he done so since the case would then not have been one of contract alone).

Applying Boston Deep Sea Fishing and Ice Company v Ansell [1888] 39 Ch.D. 339 as the Court of Appeal here did, I do not think there is any doubt that the decision on wrongful dismissal grounds was legally correct. Boston, a case I recall from my brief period studying contract law, sets out that a wronged party is entitled to treat a contract as having been repudiated even if they only become aware of the repudiatory actions a considerable time after the event so long so long.

A central feature of this case however was the employer’s defense that the claimant’s actions would bring the employer into disrepute and that this is what justified the termination. As I have said I think the caselaw is decisive in respect of the the wrongful dismissal case – even though subsequent conduct of Williams was good the employer was unaware of the breach and so could not be said to have affirmed the contract.

Nonetheless, the decision does make me a little uneasy. I’ll go out on a limb and say I am not convinced believe that the chance to use the breach as a ground to save Leeds United a couple of hundred thousand quid was not a substantial factor in why Leeds United dismissed Williams for an offense that took place five years previous. After all, Leeds United justified their dismissal on risk to public reputation when there had been no exposure or harm to their reputation but, as a result of their action, that precise reputational negative coverage ensued.

And here, perhaps, Williams would have been better served by making an unfair dismissal claim as well. In Refund Rentals Ltd v McDermott [1977] IRLR 59 set out that it will be only in the exceptional case that a dismissal for conduct that took place a significant time previously. Likewise, in a case where a trade union was the employer, Associated Society of Locomotive Engineers and Firemen v Brady [2006] IRLR 576 ET, a dismissal on misconduct grounds when the determining factor was the claimant’s belonging to a particular political faction of the union. Likewise, if Williams could show that the chance of saving the employer a significant sum then he may have had an arguable case for unfair dismissal, notwithstanding the wrongful dismissal claim.

 

Reference: Williams v Leeds United Football Club [2015] EWHC 376 (QB)

Brito-Babapulle, Mark II

Back in 2013 the EAT issued the the important decision in Brito-babapulle v Ealing Hospital NHS Trust [2013] UKEAT 0358_12_1406 which that found that the Employment Tribunal’s finding that “[o]nce gross misconduct is found, dismissal must always fall within the range of reasonable responses” was an error of law. Specifically, “the Tribunal misdirected itself as to whether it was simply sufficient to identify whether the conduct taken into consideration without regard to mitigation justified dismissal and by assuming, wrongly that to label conduct gross misconduct answered that question when it did not.”

However, the appeal in Brito-bapulle was on two points. In addition to the question of mitigation, which the EAT upheld there was also an appeal on whether a finding of fraud was open to the Respondent since the investigation had only alleged dishonesty. That appeal was lost and, on that ground, the claimant appealed to the Court of Appeal and judgement was delivered last month in Brito-Babapulle v Ealing Hospitals NHS Trust [2014] EWCA Civ 1626.

The Court of Appeal accepted it “is of course an elementary rule of natural justice and disciplinary proceedings that the individual concerned must know the case she has to meet” but, worryingly, did not seem to be concerned that a subsequent change of ‘label’ affected the case. Therefore, what was an alleged act of dishonesty had morphed in the dismissal letter to an act of fraud. Although not affirming the Respondent’s conduct it found a change of label to one which an employee had not been warned was being considered did not render a dismissal unfair.

That seems to be a regrettable finding – even if the basic narrative remains the same an allegation of dishonesty is one thing but an allegation of fraud – with its attendant implications of criminal conduct – seems another altogether. LJ Bean and fellow judges unfortunately found that such ambiguous terms and plain misrepresentation in what was a serious disciplinary process is ‘fair’.

Dismissal and Culpability

The central case dealing with the fairness of conduct dismissals is undoubtedly British Home Stores Ltd v Burchell [1978] UKEAT 108_78_2007. It was this case that is the source of the “Burchell Test”, here it is in the judgement itself:

What the tribunal has to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, … the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation in the matter as was reasonable in all the circumstances of the case

In short,

  • the employer must genuinely believe that the reason for the dismissal is the real reason (usually this means that there is a genuine belief that the employee did do the misconduct); and
  • the employer must have reasonable grounds for that belief; and
  • In order to reach the above two states of mind the employer must perform a reasonable investigation.

Although not making reference to Burchell a recent case, Burdett v Aviva Employment Services Ltd, asks whether an employee’s dismissal for a clear gross misconduct offence (e.g., violence at work or theft) when they admit that they did the alleged act is fair? Normally, this will be the case. If an employee admits doing an act that is an act of potential gross misconduct (e.g., punching a co-worker) then it will not be a surprise that most disciplinary processes will find that the alleged misconduct is proven! An investigation would nearly always be necessary but not usually an especially onerous one.

However, Burdett is a case I think has the potential to be of use to union reps, the EAT clearly affirmed that the finding by an employer that an employee has committed gross misconduct in these circumstances is not always fair (this is to be distinguished from the separate issue of whether dismissal for proven misconduct is fair).

An employer to meet the second bullet of the Burchell test above must not only be satisfied that an employee committed the act but that they had the intention to do so (or was negligent) – in other words, that they were culpable for the alleged misconduct. This reaffirms the instructions in Sandwell & West Birmingham Hospitals NHS Trust v. Westwood [2009] UKEAT 0032_09_1712 that Gross Misconduct “involves either deliberate wrongdoing or gross negligence”. In other words, to justify a finding of proven misconduct an employer must have reasonable grounds for believing the employee engaged in the misconduct but also that this misconduct wrongdoing was deliberate. In my experience it is a regular, albeit not frequent, suggestion that misconduct is not committed intentionally. A clear cut example would be a shopworker with Tourette’s syndrome who has a complex tic that results in her hitting out and, unintentionally, hitting a customer causing physical injury. There is no doubt that hitting a customer is gross misconduct but here, where if the defence of lack of intention is offered because of disability and there is evidence supporting this no reasonable employer could conclude that there was “deliberate wrongdoing”.

In Burdett the alleged misconduct was that in April 2011 the claimant sexually assaulted two female employees, threatened to assault a security guard who challenged the claimant’s conduct and, upon leaving the workplace, assaulted a member of the public. That the claimant did these acts was not disputed. However, Burdett suffered from a paranoid schizophrenic illness that was controlled by medicine. However, unfortunately he stopped taking that medicine. In his disciplinary process Burdett made clear that he did not dispute that he assaulted or threatened to assault his co-workers and a member of the public but submitted this was not intentional and a direct consequence of his disability (the claimant was in the immediate aftermath of the incident detained under the Mental Health Act).

In the disciplinary hearing the proven nature of the misconduct allegation was assumed, with the decision maker began the meeting with the following observations:

  • incidents such as those of 26 April 2011 would “normally result in dismissal for gross misconduct”
  • The decision maker’s role was now to determine the appropriate sanction”

In other word’s a proven case of misconduct was assumed. The Employment Tribunal found in favour of the Respondent as follows:

The ET found that the reason for the dismissal was gross misconduct. The Claimant had admitted the gross misconduct, as he had admitted the sexual assaults. He had also admitted a “serious error of judgment in discontinuing his medication without medical advice”. As the Claimant had “openly admitted his misconduct”, very little investigation had been called for; clearly the Respondent had reasonable grounds for its belief. Dismissal was within the range of reasonable responses available to the Respondent: “Quite clearly, any Respondent, given the nature of the misconduct, would have invoked a sanction of dismissal.” The ET thus found that the dismissal was “quite clearly fair”.

In doing so the EAT found the ET had erred

On the unusual facts of this case, the ET needed to do more than simply consider whether there were reasonable grounds for concluding that the Claimant had performed the act in question; it also had to ask whether there were reasonable grounds for concluding that he had done so wilfully or in a grossly negligent way.

This the ET failed to do and on that basis the EAT determined that the previous determination that the Respondent had fairly dismissed the claimant was unsafe.

What Burdett re-emphasises is that Gross misconduct must be conduct that is deliberate (or grossly negligent) and an employer must have a reasonable basis for belief (the second Burchell test requirement). Where there is an ostensible case that misconduct has taken place I think the lesson here is that reps should seek to ensure questions about culpability are raised during the investigation and disciplinary process so there can be no excuse for the employer failing to consider this. And, if they don’t, this may then be a ground of appeal.

Although I don’t think the relevance to of Burdett to the issue of culpability is limited to that of disability related alleged misconduct this is where the issue is, I think, most relevant. In my experience disability issues in disciplinary matters where they touch on culpability are frequently considered under a mitigation heading – this merely repeats the precise error the EAT criticised the ET and employer for in Burdett. That is not to say, per Sinclair v Wandsworth London Borough Council, that disability is a free pass on culpability grounds but Burdett does make clear that, at a minimum, there must be a reasonable examination of the issue [1].

[1] At paragraph 46 of Sinclair the EAT (referring to another EAT judgement) that “In short (see paragraphs 39 to 40 of the EAT judgment) the EAT found that the fact that the matters were said to have arisen as a result of the mental illness of the Claimant in that case was no excuse. With respect, we agree with that conclusion. It cannot be said that totally unacceptable conduct in an employment context (or in a criminal context) can be excused by reference to a background or underlying illness. The fact is that the employer has been faced with unacceptable conduct in the workplace.”