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How to avoid bias in grievance hearings

DM
BY Donald MacKinnon
Employment Law & HR

This article has been updated from an older version, to reflect current current advice and best practice...

It would be obvious to most employers that a person against whom a grievance is raised should not be involved in investigating or adjudicating upon that grievance. However, oftentimes when an employee is perceived to the common denominator in ongoing issues clarity of thought and perhaps even standing up against someone in a position of authority can prove difficult.

Indeed, what can be missed by those managing a grievance situation because it is less obvious, is the position of other employees who may be (too) close to the subject of the complaint or who might in the past have expressed views about the case brought by the complainer.

That was the scenario in the case Watson v University of Strathclyde with ramifications for employers who conduct an unfair or apparently biased grievance process. Ms Watson was employed by the University in their marketing dept. Mr Taylor was the director of the dept. He had been appointed by a committee that included the secretary of the University, a Dr West. Ms Watson raised some concerns about Mr Taylor's behaviour which she felt was aggressive. These concerns were heightened after Mr Taylor was convicted of a breach of the peace outside work. Although Mr Taylor offered to resign, Dr West decided that this was not necessary and that his behaviour did not impact on his continued employment.

There were continued difficulties between Ms Watson and Dr West culminating in the former raising a grievance. Part of the grievance was a heightened concern in relation to Mr Taylor following his conviction. At first instance the grievance was not upheld. Ms Watson appealed. She objected to the formation of the appeal panel as it included Dr West. She refused to attend the appeal hearing due to Dr West's involvement. The appeal panel (without Dr West present) decided that there was no conflict of interest, and subsequently, with Mr West present, reject the appeal. Ms Watson resigned and claimed constructive dismissal.

At first instance the employment tribunal found for the University and decided that there was no constructive dismissal. On appeal, the EAT stated that it was not enough that the panel considered that there was no actual bias, they had to consider the fact that there was an apparent bias, given Dr West's previous comments. Ms Watson's concerns about the formation of the appeal panel were reasonable and the panel ought to have taken cognisance of those concerns and not allowed Dr West to play a role in the appeal hearing. The finding of a fair dismissal was overturned and a finding of unfair constructive dismissal substituted.

Therefore, this case serves as cautionary reminder to employers to choose their disciplinary chair-people, panel members and appeal managers carefully. Particularly where these officials have been previously involved or cited in proceedings with the employee before and thus for it to be easily argued that they cannot be completely impartial or neutral in their decision making.

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