Implied term that a disciplinary process will be conducted fairly?

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24 February, 2022

Alice McKenna

Burn v Alder Hey Children's NHS Hospital saw a claim brought by an employee seeking an injunction preventing her employer moving forward with the disciplinary process she was subject to, until an issue of disclosure was dealt with. The claimant considered that a contractual right to see correspondence relating to a disciplinary procedure extended to all documentation relating to the investigation.
What was interesting were some observations made by two of the Court of Appeal's judges who stated that they had strong provisional views that it could be possible for the implied duty of trust and confidence to be implied into a disciplinary process. In particular, Underhill LJ made it clear that whilst there "may not on the orthodox view be a general duty on an employer to act fairly in all contexts, such a term is very readily implied in the context of disciplinary processes."

This would mean that it is an implied term and condition of employment that a disciplinary process is carried out fairly, however it is not clear how much further it would take matters. Although it is a legal principle that the implied duty of trust and confidence does not apply to the decision to dismiss, if the implied duty applies to the process that potentially leads to a dismissal, then we seem to be edging closer to a reanalysis of this point. The comments pave the way for the point to be argued in another case.

Any such development of the law could have far-reaching effects - for example the possibility of a new basis for seeking injunctive relief to halt disciplinary proceedings whilst these issues are resolved, or of another way for employees to raise issues and grievances which disrupt a disciplinary process.

Potentially, when a judge is faced with the prospect of an unfair dismissal claim in the future, where a fair procedure was not followed, it could be found that this amounts to a breach of a fundamental contractual term and therefore, strengthens such a claim. Moreover, in a successful claim, an employee may attempt to argue that the presence of such an implied term negates the impact for the Polkey principle, which is where damages for unfair dismissal claims are reduced on the basis that, had a fair procedure been followed, the employee would still have been dismissed.

Whilst the comments made are not binding at present, it is certainly something to be aware of when considering the fairness of a disciplinary process. Employment experts in the Housing team regularly review disciplinary policies, advise clients on disciplinary procedures, act as independent investigators and support with appeals so are on hand to provide advice.

For more information contact Alice McKenna in our Housing & Regeneration department via email or phone on 01254 222373. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Housing & Regeneration department here

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