Bias

The decision-maker must be sufficiently remote from the incident and people involved to be able to make an unbiased decision without prejudging the issues. For example, in Moyes v Hylton Castle Working Men’s Club [1986] IRLR 482, the EAT decided that a dismissal was unfair because two witnesses to the alleged misconduct also sat on the disciplinary panel.

While the Acas Code says that the person who hears the disciplinary should be different from the person who conducts the investigation, it acknowledges that this is not always possible with a small employer. Failure to ensure that the decision-maker is completely separate from the investigator will not always make the dismissal decision unfair. What matters is the overall fairness of the process (Fuller v London Borough of Brent [2011] EWCA Civ 267).

As with discrimination, any allegation of bias is best raised at the time. It may carry less weight if only raised on appeal or at a tribunal hearing, unless of course evidence of bias has come to light since the disciplinary hearing.