Disciplinary and Grievance Matters in UK Law

Section 1(1) of the 1996 Act provides that upon commencing employment, an employee shall be provided with "a written statement of particulars of employment". This includes, but is not limited to, the "terms and conditions" of employment concerning various matters, including "the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment" (section 1(4)(e)).

Consistently with these provisions, Mr Johnson was written a letter of engagement which stated his salary and summarised the terms and conditions of his employment, including the notice period. Apart from the statement that in the event of gross misconduct, the company could terminate his employment without notice, it made no reference to disciplinary matters.

In the employment context the disciplinary power is conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the procedures is not to allow a body independent of the parties to determine a dispute between them. Typically it is to enable the employer to inform himself whether the employee has acted in breach of contract or in some other inappropriate way and if so, to determine how that should affect future relations between them.

Thirdly, it is to my mind relevant that the allegations against the appellant raised issues which, at least to a degree, needed medical experience or expertise for their determination. I have in mind in particular the appellant's attempted explanation of how he confused the number of units of blood transfused. Despite Mr Douglas' attempts to persuade us to the contrary, it seems to me that some medical experience was required to give proper consideration to that proffered explanation.

The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal.

It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time.

In the light of these passages from the two earlier cases and bearing in mind that we are considering an exception to a general rule, I think that one must guard against granting judicial review in cases where there is an alternative appeal route, merely because it may be more effective and convenient to do so. In both the cases to which I have referred it is clear that the challenged decisions were in truth ones which had been made without jurisdiction or in consequence of an error of law.