Watson v University Of Strathclyde

An employee is entitled to a fair grievance procedure, including a fair appeal hearing. Apparent bias may render the procedure unfair even where actual bias is not established. The relevant question is whether the circumstances would cause a fair-minded and informed observer, or a reasonable employer considering the employee’s concerns objectively, to regard the hearing as unfair. Where a panel member has materially supported the person whose conduct is under examination, the employer must address the concern and consider whether that member should be removed. Persisting with the member despite objectively justified concerns may breach the implied term of trust and confidence and entitle the employee to claim constructive unfair dismissal.

The claimant, a university publications officer, resigned after the University appointed its Secretary, Dr West, to an appeal panel hearing her grievance about the conduct of Mr Taylor, a senior colleague. Dr West had participated in Mr Taylor’s appointment, had jointly decided with the Principal not to accept Mr Taylor’s resignation following a firearm-related conviction, and had publicly supported his continued employment.

The Employment Tribunal dismissed the constructive unfair dismissal claim. It held that the University had reasonably concluded that Dr West had no actual conflict of interest, but it did not consider apparent bias. The claimant appealed, raising whether Dr West’s inclusion on the grievance appeal panel breached the implied obligation of trust and confidence.

1. Appeal upheld. The claimant was unfairly constructively dismissed. The case was remitted to the same Employment Tribunal to determine remedy.
2. The implied obligation of trust and confidence is concerned with conduct which, viewed objectively, is repudiatory in nature. The relevant assessment focuses on the impact of the employer’s conduct, objectively tested, rather than the employer’s intention. An employee may accept the contract as repudiated and resign where that obligation is fundamentally breached.
3. A grievance procedure must give the employee a reasonable opportunity to obtain redress and must comply with natural justice. That requires a fair hearing, including freedom from apparent as well as actual bias. The principles of apparent bias are therefore relevant to a grievance appeal, although an employer need not routinely apply the Porter v Magill test expressly.
4. The employer was required to consider the claimant’s perception of Dr West’s partiality and the objective circumstances supporting it. Those circumstances included Dr West’s role in appointing and supporting Mr Taylor, his public statement defending Mr Taylor’s continued employment, and his responsibility for monitoring Mr Taylor. The other panel members’ conclusion that there was no actual conflict did not resolve the separate question whether the appeal would appear fair.
5. A reasonable employer would not have included Dr West on the panel in the circumstances. In any event, after receiving the claimant’s detailed objection, it should have removed him or otherwise addressed the concern. The failure to take those steps breached trust and confidence and justified the claimant’s resignation.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s judgment registered on 11 February 2009, found that the claimant had been unfairly dismissed, and remitted the case to the same Employment Tribunal for determination of remedy.
• Employment Tribunal: dismissed the claimant’s claim that her resignation constituted unfair constructive dismissal.