Johnson McKenzie v First Greater Western Limited

An employer’s disciplinary process should ordinarily be allowed to run its course before the High Court intervenes. The court should avoid micro-management of internal procedures, particularly where the employee can raise procedural and evidential objections at the hearing, on appeal, or in subsequent Employment Tribunal proceedings.

There is no absolute rule preventing a disciplinary hearing in the employee’s absence because medical evidence establishes unfitness. The decision is for the disciplinary manager, who must consider all the circumstances and make reasonable adjustments. Interim relief remains available in an appropriate case, but serious procedural irregularity, inadequacy of alternative remedies and the balance of convenience must justify intervention.

The claimant, a long-serving employee of a train operating company, applied for an interim injunction restraining a disciplinary hearing pending substantive proceedings seeking similar relief.

He alleged failures of disclosure and investigation, apparent bias in the proposed chair, and that the hearing should be postponed because occupational health evidence stated that he was unfit to attend. The defendant relied on the contractual disciplinary procedure, the claimant’s appeal rights, the possibility of Employment Tribunal proceedings and the balance of convenience.

The central issues were whether the High Court should intervene before the disciplinary process had concluded and whether the proposed hearing could reasonably proceed, with adjustments, despite the claimant’s illness.

1. Application dismissed. The three-stage test in [1975] AC 396 applied. The claimant had not shown a sufficient basis for interim intervention.
2. Disciplinary procedures primarily facilitate the employer’s managerial function. They are not ordinarily an adjudication by an independent tribunal. Even where procedures are contractual and detailed, the court should respect the agreed process and avoid micro-management. The claimant’s disclosure and investigation complaints were matters for the disciplinary manager, subject to the broad contractual appeal process.
3. The claimant was entitled to a clear explanation of any connection between the proposed chair and relevant witnesses. However, the material before the court did not establish an appearance of impartiality sufficient to justify intervention. Any remaining complaint could be raised at the hearing or on appeal.
4. There was no absolute prohibition on holding a disciplinary hearing while an employee was medically unfit. In the absence of a specific contractual provision, the question was whether proceeding was reasonable in all the circumstances. Relevant considerations included the duration of the absence, the absence of a clear recovery date, the employer’s proposed adjustments and the employee’s opportunity to make written representations or appoint a representative. The initial decision belonged to the disciplinary manager and could be challenged on appeal.
5. Damages were an adequate alternative remedy. If dismissal followed, the claimant could challenge the outcome in the Employment Tribunal. The balance of convenience also favoured refusal, since the complainants were entitled to have the matter resolved as soon as practicable.
6. The criticism of another disciplinary process in First Great Western Limited v Moussa [2024] EAT 82 did not establish systemic unfairness or justify intervention. The application had to be decided on its own facts.