Hussain v Elonex Plc

In misconduct dismissals, fairness does not impose a universal requirement that an employee receive copies of witness statements obtained by the employer. The required procedure depends on the circumstances. The employee must know the substance of the allegation and have a fair opportunity to answer it. Non-disclosure may make the procedure unfair where the essence of the case is contained in undisclosed statements, substantial reliance is placed on them, and the employee is not otherwise informed of the case. Where the employee knows the allegation, can respond to the principal witness, and undisclosed material is favourable or neutral, the procedure may remain fair and reasonable.

Mr Hussain was dismissed for gross misconduct after an incident in which he allegedly headbutted a fellow employee. The employer obtained four witness statements but did not disclose them or refer to them at the disciplinary hearing. Mr Hussain and the other employee were both heard, and Mr Hussain was given an opportunity to answer the allegation.

The Industrial Tribunal, by a majority, found the dismissal fair and reasonable. The Employment Appeal Tribunal dismissed Mr Hussain’s appeal, holding that there was no error of law. The issue before the Court of Appeal was whether non-disclosure of the witness statements made the disciplinary procedure legally unfair.

1. Appeal dismissed. The Industrial Tribunal had been entitled to conclude that the investigation and disciplinary procedure were fair and reasonable.
2. Lord Justice Mummery held that there was no universal requirement of natural justice, or general principle of law, requiring an employee to receive copies of all witness statements obtained by an employer. In the absence of an agreed contractual code, the question is whether there was a fair and reasonable investigation of the alleged misconduct.
3. The authorities establish a more limited principle. A procedure may be unfair where the essence of the case is contained in undisclosed statements, the employer substantially relies on them, and the employee is not otherwise informed of the nature of the case. The employee must know sufficiently what is being said against him to enable him to put forward his case properly.
4. Those circumstances did not arise here. Mr Hussain knew the allegation, heard and answered Mr Gurden’s account, and was given a full opportunity to give his own version. The only potentially relevant undisclosed statement was favourable or neutral to him and had not been relied upon detrimentally.
5. Sir Christopher Staughton agreed with that reasoning. He added that disciplinary proceedings do not necessarily require the full procedural safeguards of litigation or arbitration, although fairness will ordinarily require the employee to know the charge. Lord Justice Evans agreed with both judgments. The appeal was dismissed with costs.

• Industrial Tribunal: By a majority, found that Mr Hussain had not been unfairly dismissed and unanimously rejected the race-discrimination complaint.
• Employment Appeal Tribunal: Dismissed the appeal, finding no error of law in the Industrial Tribunal’s conclusion that the procedure was reasonable.
• Court of Appeal (Civil Division): Dismissed the appeal with costs.