Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: ‘Ultimately, an industrial tribunal has to answer the question whether the dismissal is fair, bearing in mind the wording of section 57(3) of the Employment Protection (Consolidation) Act 1978 and all the circumstances of the case including the equity and substantial merits. The issue is often posed in the form – has the employer, on the facts of the case as found by the Tribunal, and in all the circumstances, reached a decision which an employer could reasonably have reached? . . It follows that the fairness issue must be decided after the appeal process has been completed.’
As to the principles to be applied in deciding whether a hearing had been fair: ‘It would follow therefore that not every formality of legal or quasi-legal process is required during the disciplinary and appeal procedures. Each set of circumstances must be examined to see whether the act or omission has brought about an unfair hearing.
If it has, then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a rehearing de novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a rehearing and not a mere review. . . . This was not a rehearing in any sense of the word. It was simply a review of what had already occurred with further opportunity to making representations. It follows therefore, in our judgment, that the errors at the earlier hearing were not rectified.’
Citations:
[1988] ICR 776, [1988] IRLR 501
Statutes:
Employment Protection (Consolidation) Act 1978 57(3)
Jurisdiction:
England and Wales
Citing:
Cited – Calvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .
Cited by:
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Cited – Abbey National Plc v Fairbrother EAT 12-Jan-2007
EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 04 May 2022; Ref: scu.242341