D'Silva v Manchester Metropolitan University & Ors

In assessing unfair dismissal, an Employment Tribunal must decide whether the disciplinary process was fair as a whole. A procedural defect at an early stage does not automatically make dismissal unfair. Its significance depends on the seriousness of the misconduct, the thoroughness and independence of subsequent stages, and all the circumstances.

The stricter rules of apparent bias applicable to judicial proceedings do not directly govern an internal disciplinary process. Actual bias is fundamental, but apparent bias is one factor in the overall fairness assessment. A disciplinary procedure which reserves the delegated power to dismiss to a human-resources director may nevertheless permit that director to consider the case with another senior officer, provided that the final dismissal decision remains the director's.

The claimant, a senior lecturer, was summarily dismissed after an earlier Employment Tribunal had found that he had made race-discrimination allegations in bad faith. The disciplinary hearing was chaired by the Director of Human Resources, Mrs Hemus, who had delegated authority to dismiss and was assisted by Professor Kelleher.

The Manchester Employment Tribunal, in a judgment promulgated on 15 March 2016, dismissed the claimant's unfair-dismissal and victimisation claims. It found that Mrs Hemus made the dismissal decision, that Professor Kelleher's role was advisory, and that procedural imperfections concerning the objection to Mrs Hemus did not make the overall process unfair.

The claimant appealed, alleging bias, an invalid joint exercise of delegated dismissal power, and perversity in the Tribunal's findings.

1. Appeal dismissed. The Employment Tribunal made findings open to it and committed no error of law or perversity in holding that the dismissal was fair.

2. The correct approach, following Taylor v OCS Group Ltd [2006] ICR 1602, was to apply the statutory fairness test to the substance of the entire disciplinary process. An early procedural defect required careful examination of later stages, but did not require the Tribunal to classify those stages as either a rehearing or a review. The seriousness of the alleged misconduct was relevant to the effect of any defect.

3. The Tribunal was entitled to treat the failure to communicate and discuss the claimant's objection to Mrs Hemus before the hearing as a procedural failing. It was also entitled to find that she acted with proper professional detachment and was not actually or apparently biased merely because she had been adversely mentioned in an earlier claim. In internal disciplinary proceedings, apparent bias is a factor in overall fairness; the strict judicial-law rules do not directly apply. This was consistent with Adeshina v St George's University Hospitals NHS Foundation Trust [2015] IRLR 707.

4. The two later stages gave full and independent consideration to the claimant's case. The Vice Chancellor received further evidence and representations, and the Governors' panel independently upheld dismissal. The underlying misconduct was extremely serious and was not a borderline case. The Tribunal could therefore conclude that the process as a whole was fair.

5. Paragraph 5.1 of the Staff Disciplinary Procedure reserved delegated authority to effect a dismissal to the Director of Human Resources. It did not prevent that director from sitting with another senior officer to consider the evidence, findings and appropriate sanction. Although Mrs Hemus and Professor Kelleher reached the same view, the Tribunal was entitled to find that the final decision to dismiss was Mrs Hemus's alone.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal's dismissal of the unfair-dismissal and victimisation claims was upheld.
• Manchester Employment Tribunal: judgment promulgated on 15 March 2016. It unanimously held that the claimant had been fairly dismissed for misconduct and dismissed his victimisation complaint.