Who is hearing the disciplinary? Is there any suggestion of bias?

The decision-maker at the hearing should be sufficiently remote from the relevant incident and people involved to be able to make an unbiased decision. In Moyes v Hylton Castle Working Men’s Club [1986] IRLR 482, the EAT decided that a disciplinary dismissal was unfair because the two witnesses to the alleged misconduct also sat on the disciplinary decision making panel.

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.

An employer’s failure to ensure that the decision-maker is completely separate from the investigator will not necessarily make the dismissal decision unfair. What matters is the overall fairness of the process. For example, in Fuller v London Borough of Brent [2011] EWCA Civ 267 although the tribunal felt “that it would have been wiser for the school to have appointed as investigator a more neutral party” than the Headteacher (who had made the original accusations against Mrs Fuller), it also described her speed and thoroughness in collecting witness evidence as “exemplary”, and concluded that viewed overall, the investigation was fair.