Mistakes in disciplinary/grievance processes – what recourse is available?Posted in : Seamus Says - Employment Law Discussion on 3 May 2019
If a panel, either a grievance or a disciplinary panel, makes a mistake, which is discovered after the outcome letter has been sent to the employee, what recourse does the employee have to reconvene the panel to correct the mistake?
And this could be because they perhaps strayed outside of their terms of reference, or more importantly, if they come up with a decision which is contrary to law, and by implementing the decision would mean a breach of law.
Seamus: Well, the question itself is in two parts, and just taking the first part, really, where it asks if there is a mistake that has been made. So, often, whenever there's any outcome issued by an employer, the employee might not always agree with the outcome and the employee could classify it as being a mistake or that it's incorrect. And it would be the usual processes that would be open. We're unsure from the question whether this is a decision that has been issued after an appeal, but certainly usually after the first process, the outcome, there will be a right to appeal.
Scott: So if it's an appeal, in effect the employee would say to the appeal panel, "Look, there's been a procedural error here that has to be rectified". And there are loads of case law by how an appeal panel could rectify that: by reconvening, do the whole thing properly again, making sure that those changes are done.
But assuming that it is an appeal process or a final internal one here, there's been a mistake, the employee can't reconvene the panel. The employer reconvenes a panel. What else might they do, the employee, or what would their approach be.
If you've been through the appeal process and it's really come back to your contract of employment, it depends on the industry and on where you work. Sometimes within these contracts, there will be a final right of appeal to, for instance, the Labour Relations Agency's Independent Appeal Tribunal. There's a possibility to go there. Alternatively, you may wish to raise a grievance at this point, and the employer as per the Code of Practice from the Labour Relations Agency, is always obliged to take the grievance and to investigate.
It could be that even though you've been through a disciplinary process or even if it has been a grievance, ultimately you're going back with a final complaint. And it may be that you're sending the final complaint to the ultimate authority within the organisation, whether that's the MD or the chairperson, whoever it is.
There also could be recourse that, if your decision has come from one of the statutory bodies, whether it's the Labour Relations Agency's Independent Appeal Tribunal or if there's some sort of right of appeal to a regulator, for instance, you've always got the right to look at the possibility of a judicial review. The judicial review is based on the public authority's decision, so you need to be careful that you're covering your bases there, but it may be that you're looking at a request for judicial review.
Scott: I suppose the point here is if there has been a genuine mistake or somebody has made some kind of ultra vires decision, say outside the terms of reference or whatever authority the individual has, it's in the interest of the organisation to get the right decision, because ultimately, it could be appealed to the courts or tribunals. And the courts and tribunals are going to look pretty askance at an employer who says, "You know what? I'm going to ignore all this extra evidence that, I'm sorry, we didn't have".
It may, ultimately, in unfair dismissal, make little difference to the tribunal decision if it came to the tribunal because it's the decision of the employer at the time. But if somebody points out, "You can rectify this quite easily. Just give me another chance here", then it would be a silly employer who wouldn't at least look at that.
Seamus: Absolutely. And, you know, there are times where we can become a bit thran with our decisions, particularly whenever we believe that we're correct and we've done the right thing. But that doesn't necessarily always mean that it's lawful. So it's important to obtain advice in circumstances like this.
If I was advising a client and there was a standout problem in the process, I would be telling the employer either, "Look, take it back a stage, reconvene. Alternatively, look at setting up a new panel, or work around it in order to try and save the hassle and the costs of legal proceedings".
And it may be, you know, you can be very right there that the relationship has gone on at this point because the trust and confidence maybe from the employee's point of view has left because of the fact that there's been such a breach if they have acted outside of the remit. But ultimately, it would be best in those circumstances, where there is a breach of the process, that steps are taken by the imparts the sensible route and prudent route to try and rectify that before it would move into the legal arena.
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- Can we still dismiss an employee for an act of gross misconduct which took place several months ago?
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