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You are In: Home Page | About Thompsons | Information and Resources | LELR Issue 55

Issue 55 (February 2001)

Contents

Protecting the former employee
Illegal contracts and sex discrimination
Positively equal
Equal pay for doctor
Sick of not being paid
Interested chief can't sit
Entitlement to damages for "stress"

Interested chief can't sit

The role of Chief Executives and Chief Officers in internal disciplinary proceedings will come under increased scrutiny after the High Court's decision in the case of Bennion. Officers who "have an interest" in the outcome of disciplinary proceedings should not preside over them. In addition, following the Woolf reforms to the legal system, judicial review may be more readily available to challenge defects in disciplinary proceedings.

Mrs Bennion was a police officer. Disciplinary proceedings were started against her - she claimed because she had previously brought a complaint that she had been sexually discriminated against. She therefore lodged a Tribunal claim for sexual discrimination and victimisation, naming the Chief Constable as her employer as required in the police force. The case was stayed to await the outcome of the disciplinary proceedings. A new Chief Constable was then appointed and he upheld the disciplinary charges against Mrs Bennion. She claimed that the Chief Constable should not have heard her discipline case because of his interest in its outcome by virtue of his "inherited" role as respondent in the Tribunal proceedings.

The law recognises two key principles:

no one should be the "judge" of a dispute if they have an interest in the outcome of that dispute; and
no one should act as "judge" where "there is a real possibility of partiality".

The High Court gave a wide definition to the term "judge": it included the Chief Constable, and will certainly include Chief Executives and Officers hearing disciplinary proceedings. But did the Chief Constable (and would other Chief Officers and Executives) have a sufficient interest in the outcome of the proceedings so as to be disqualified from "judging", or is there "a real risk of partiality" if he or she does?
Much of the argument referred back to the House of Lords decision last year in the Pinochet extradition proceedings where one of the judges was a director of a subsidiary of Amnesty International. The High Court found that the Chief Constable did have a sufficient interest in the outcome of the disciplinary proceedings because he was not "merely involved in", but was actually the head of an organisation being sued by Mrs Bennion, and the outcome of the proceedings he had to "judge" could well impact upon Mrs Bennion's Tribunal proceedings.

Courts have often refused to hear these type of cases directing the claimants to the internal appeal procedure first. Helpfully, the High Court found that, under the new rules of procedure, the over-riding objective of the Court was to deal with cases "justly", taking into account factors such as expense, the importance of the case and the amount of money at stake. Applying this principle, the Court felt that it should decide the case rather than require Mrs Bennion to pursue an internal appeal first.

If an employee brings a case in a court or tribunal and is then subjected to disciplinary proceedings, then the Chief Executive or Officer should not decide the discipline case.

This should also apply to other senior officers. There may also be other circumstances in which a Chief Executive or Officer could have a sufficient "interest" in the outcome of the disciplinary proceedings without the member actually have issued proceedings.