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No bias
[ch 7: pages 43-44]The decision-maker must be sufficiently remote from the relevant 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. Here is another example:
The dismissal of the office manager of a small charity was unfair because the panel was chaired by the charity‘s founder, who volunteered as chair despite having already lost faith in the manager concerned, who he believed was taking advantage of the charity and abusing his goodwill. This chair was unable to act impartially and to approach issues with an open mind, ruled the EAT. His fellow panel member was junior to him and not in a position to influence his thinking. The dismissal was unfair.
Ethnic Minorities Law Centre v Deol [2015] UKEATS/0022/14/SM
Acas recommends that the person who hears the disciplinary should be different from the person who conducts the investigation, although Acas 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).
Article 6 of the European Convention on Human Rights (the right to a fair and public hearing by an independent and impartial tribunal) does not apply to internal disciplinary hearings. An internal disciplinary panel is not required to be “independent”, although it must be ”impartial”.