Hendy v Ministry of Justice

Intervention in an employment disciplinary process is available where its continuation would constitute a breach of contract caused by serious procedural unfairness. The court should not micro-manage disciplinary proceedings or require an investigator to conduct a trial. Fairness requires sufficient inquiry to enable a reasonable assessment of credibility, but does not ordinarily require every detail of an employee’s case to be put to every witness. The seriousness of the consequences remains relevant, while allowing for the employment context and any later disciplinary appeal. Delay may independently justify refusing interim relief.

Robert Hendy, a Ministry of Justice employee suspended since 2011, sought an interim injunction preventing the Ministry from convening a disciplinary hearing concerning allegations of bullying, harassment and related misconduct.

An earlier disciplinary decision dismissing him had been overturned on appeal because the investigation had not sufficiently tested the credibility of complainants and witnesses. A further investigator was appointed. Mr Hendy alleged that the second investigation remained unfair because his rebuttal had not been fully put to the complainants. The central issues were whether the disciplinary policy had contractual effect, whether the investigation arguably breached contractual duties of fairness, and whether interim relief was justified.

1. Relief in principle. The court may restrain an employment disciplinary process where its continuation would itself constitute a breach of contract. The irregularity must be sufficiently serious to make continuation unfair in a way that cannot adequately be remedied within the disciplinary process. The court must not micro-manage employment disciplinary proceedings.
2. Contractual status of policy. The Ministry’s disciplinary policy was not incorporated into the contract of employment and did not create a collateral contract. Its express statement that it did not form part of the contract, its flexible character and its inclusion of general guidance pointed against contractual incorporation. The process was nevertheless to be operated fairly and in good faith.
3. Fair investigation. The investigation was a fact-finding exercise for the investigator, rather than a trial. Fairness required enough of Mr Hendy’s case to be put to the complainants and other witnesses to permit a reasonable assessment of credibility. There was no absolute obligation to put every detailed submission or every allegation to every witness. The extent of the inquiry depended on relevance, the allegations and the surrounding circumstances.
4. Although one complainant did not engage fully and not every matter was put to both complainants, the investigator had tested the central credibility issues, obtained further witness evidence and considered material favourable to Mr Hendy. The investigation was sufficiently fair. No serious question arose as to a breach of contract sufficiently serious to justify stopping the disciplinary process.
5. The remaining interim-relief factors also favoured refusal. The Employment Tribunal could consider procedural unfairness and award compensation. Mr Hendy had delayed for about three months after receiving the further investigation report and applied on the eve of the hearing. That delay was unreasonable and independently sufficient to defeat the application.
6. The application for an interim injunction or declaration was dismissed.

First-instance decision. No prior appellate decision in the same proceedings is stated in the judgment.