Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 321 (AAC)

Fecha: 06-Ago-2025

Mistake of law – procedural fairness

Mistake of law – procedural fairness

63.

He also submitted that there had been a mistake of law in relation to procedural unfairness. The DBS needed to oversee fairness in establishing facts in the investigation and disciplinary process; there should be no lapses in fair process and there should be adequate and proper provision of information to a person who is under investigation or is in a disciplinary environment. He made the following points:

MOO as an employee of PC at the relevant time, had been with the employer for a period under 2 years and so would not have the s.94 statutory right - not to be dismissed unfairly (s.108 Employment Rights Act 1996). By acting before the end of the qualifying period an employer can divest themselves without comeback or retribution, of new staff no longer required or considered problematic.

ii.

Even if MOO had not worked two years, an employer is duty bound to follow principle of fairness and reasonableness in the workplace under the non-statutory ACAS Grievance and Disciplinary Guidelines.

iii.

Determination of whether RR was hit by MOO is crucial in this case because so much hangs on that question. Yet the employer refused to interview RR when she had capacity. For that reason, the investigation could not be described as thorough.

iv.

In addition, the employer needed to avoid the same people featuring more than once in the disciplinary process. When the email about the incident was sent by either BB or MJL to EO on 5 February 2025, JH was copied in. Both JH and EO featured and conducted fact finding interviews of three staff excluding RR in March 2023. JH asked EO for any comments even though she was simply meant to take notes, not ask staff questions. JH also conducted an appeal meeting and made the final appeal decision. EO attended the police interview with RR. It was noted EO “filled in the gaps” when RR was interviewed by the police. There is therefore the possibility of bias due to EO and JH featuring multiple times in the adjudicatory process.

The DBS did not comment on the obvious anomaly that the incident occurred on 5 February 2023. MOO had had investigatory interviews; suspension, and summary dismissal by 1 March 2023. Only when she appealed were fact-finding interviews of three staff conducted. It is not clear when those interviews took place as the date on the front of the unsigned headed papers was 21 March 2023 but the date adjacent to EO’s name in each case was 27 March 2023, coincidentally the date of the internal appeal against dismissal.

64.

Mr Masemola submitted that there had been flaws in the fact-finding investigations and disciplinary process. There are reasons to doubt whether the Appellant deliberately struck the Service User or struck her at all. MOO was trained in safety procedures and would be averse to any physical struggle with RR knowing her behavioural patterns.