The Worker’s Voice

: A Comparative Analysis of Natural Justice and Procedural Fairness in Disciplinary Hearings

Abstract

Workplace disciplinary proceedings are a potentially important aspect of working life for many workers and employees. If a worker is investigated for misconduct and subsequently given a formal warning, this could have a very significant impact should further allegations be made since the cumulative effect of a series of warnings could ultimately lead to dismissal. This study found that, in spite of the serious nature of disciplinary hearings – even those falling short of dismissal – other than the non-binding ACAS (Advisory, Conciliatory and Support Service) Code of Practice and the statutory guarantee as regards accompaniment to such hearings under s10 of the Employment Relations Act 1999, there is no general, unqualified right to be heard at such hearings. This was compounded by questions as to precisely what relief was available for a failure to hear a worker at such a hearing with the case of Edwards v Chesterfield Royal Hospital NHS Foundation Trust setting out that damages would not be available in such a case and that injunctive relief is the only remedy available. It was also confirmed that there exists an illogical division between certain classes of public sector worker and those in the private sector as regards the application of standards of natural justice and procedural fairness in such matters. Given that standards of fairness in employment matters, particularly as regards dismissal, are a relatively recent phenomena, and, moreover, that there has not been much treatment of this area within the academic literature, it was decided that a comparative study would be an effective way of determining whether, 1) such problems were recognised in what could be regarded as other comparable jurisdictions and 2) how other comparable jurisdictions seek to solve such problems. Using a rigorous and pioneering methodology, it was discovered that such problems are recognised across a range of comparable jurisdictions and that many jurisdictions dealt with this problem in legislative terms. This was more prevalent in Civil Law jurisdictions where a ‘rules-based’ approach was taken as opposed to an ‘accompaniment’ approach which was more prevalent in Common Law jurisdictions. The Republic of Ireland was an outlier in this regard having Civil Law style rules in force via statutory instrument. Whilst it was acknowledged that the domestic scene is not an unmitigated failure, on the basis of the evidence it is clear that there is a sizeable lacune in the law that can and should be amended by means more extensive than those presently in place. Although this has been the subject of unsuccessful legislative intervention in the past, this does not mean that improvements are not possible and just as citizens of other comparable jurisdictions appear to benefit from such rights, the lacunae should be eradicated at home. Resultantly, model instruments have been provided which it is hoped will be of use to legislators both domestically and internationally, along with further suggestions for research.

Date of Award	Jan 2024
Original language	English
Awarding Institution	Coventry University
Supervisor	Stephen Hardy (Supervisor), Lorenzo Pasculli (Supervisor), Tony Meacham (Supervisor) & Steve Foster (Supervisor)