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 EWHC 51 (QB), QB Division - Bella Webb, Lord Hendy QC
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The decision of a local authority's disciplinary panel that allegations of harassment against a former employee were substantiated showed no flaw in relation to the disciplinary process, the decision reached or the articulation of that decision. Whilst the panel hearing the employee's subsequent appeal had acted in breach of duty by attempting to conceal the real reason for its changed membership, that breach had not made a material contribution to any discrete or discernible deterioration in the employee's psychiatric condition or health.
The claimant (D) sought a declaration that the findings of the defendant local authority's disciplinary and appeal panels, made in the course of disciplinary proceedings against him, were reached in breach of contract. He also claimed damages for psychological injuries both in tort and contract.
D had worked for the local authority as a planning officer. He had been suspended pending an investigation into complaints made against him alleging harassment, intimidation and physical contact of an intimate nature involving another employee and that he had used inappropriate behaviour when dealing with other female members of staff. A two-step investigative process took place and then a series of disciplinary hearings before the local authority's disciplinary panel. D complained about one of the members of that panel and the way in which some witnesses had been interviewed. Those witnesses were interviewed again and the panel changed its membership. Two more hearings were held, the panel having changed again as one member took maternity leave. The panel found both allegations substantiated. D appealed against that decision. The appeal panel, consisting of three local councillors, was changed during the appeal process. The appeal was later dismissed. D never returned to work and took ill health retirement.
D contended, inter alia, that (1) the allegations suffered from a lack of clarity; (2) the first panel had exhibited unbalanced questioning of witnesses; (3) revised statements and the minutes of the first hearing were not available to the panel which resumed the second hearing, even though one its members was new to his case; (4) it was implicit in the disciplinary procedure that there would be no changes in the composition of the panel; (5) the panel had erred in relying on witnesses' written statements rather than oral evidence; (6) the panel's decision had not spelt out and identified the behaviour which it had deemed inappropriate; (7) the appeal process was unfair because the local authority had attempted to conceal the real reason for one member leaving the appeal panel, which was that she had had a public row with another councillor, thus requiring a new panel of three, as that amounted to secret manipulation of the panel.
HELD: (1) Given the nature of the whole procedure, which was laid down for a domestic lay tribunal and not a court of law, there was no force in the allegation of defective particularity (see para.58 of judgment). (2) Any unbalanced questioning of a leading kind at the first panel hearing had been dealt with fairly by constituting a new panel. Otherwise the tenor of the evidence was that the local authority's investigation had been conducted properly and fairly (para.59). (3) The relevant evidence had been provided to all panel members, including the new member, in advance of the third and final hearing (para.60). (4) The change between the second and third panels was caused by one member's maternity leave. There had to be occasions when a panel had to change which could be done within the overall obligation to act fairly. D had been given notice that the original member had to leave and had not objected at the time. The only alternative to changing would have been to restart the whole process in front of a fresh panel, which would not have been sensible given the length of time the matter had already taken (para.64). (5) There was no provision in the local authority's disciplinary procedure to suggest that all evidence had to be given orally and that no consideration could be given to written statements of evidence. That D had understood that practice was shown by the fact that he himself had drawn out points from the body of the written witness evidence which suited the defence case. The practice followed was fair (paras 66-68). (6) The panel's reasoning in its decision on the first allegation could not have been clearer. As to the second allegation, by the time of the panel's decision, there was no doubt that all parties had known what was being found. D had, accordingly, failed to establish any breach of duty either in relation to the disciplinary process, the decision reached or the articulation of that decision (paras 76, 78, 80). (7) The change to the appeal panel had been made not in an attempt to harm or prejudice D's case but to avoid political embarrassment. Nevertheless, the attempt to conceal that reason from D was a sufficiently serious breach of the duty to act fairly under the terms of the disciplinary procedure to constitute a breach of the implied contractual term of good faith. It was a lie told to D on an issue where he was entitled to be told the truth, and that was so even though he had no right to dictate or even have a say in the membership of the panel concerned (paras 96-97). (8) The court was not, however, satisfied that the legitimate criticisms of the local authority's conduct in relation to the appeal process probably caused or made a material contribution to any discrete or discernible deterioration in D's psychiatric condition or health. D had, accordingly, failed to discharge the burden of proving causation and it followed that his claims had to fail (paras 108-109).