Robert Hendy v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 23 July 2014 |
| Neutral Citation | [2014] EWHC 2535 (Ch) |
| Docket Number | Case No: HC14F01629 |
| Court | Chancery Division |
| Date | 23 July 2014 |
[2014] EWHC 2535 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mann
Case No: HC14F01629
Michael Paulin for the Claimant
Rachel Toney (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 16 th, 17 th & 19 th & 27 th June 2014
Introduction
This is an application for an injunction brought in an employment context and which seeks to restrain aspects of the conduct of a disciplinary process. In the application notice of the claimant the relief sought is described as "interim injunctive relief prohibiting the respondent/defendant from conducting an internal hearing into allegations made against the claimant until the claimant's claim be determined." The claim referred to is presumably that referred to in draft particulars of claim which have been provided but not served at the time of the hearing and which seek a restraint against proceeding with a formal disciplinary hearing at all, or proceeding with a formal disciplinary hearing on the basis of certain allegations of gross misconduct, or proceeding with a formal conduct disciplinary hearing on any basis until a fresh investigation has been conducted by an independent person to be agreed between the parties. Other claims have been outlined in correspondence, but what the application really boils down to, in my view, is an application for an injunction restraining the respondent employer from proceeding to a disciplinary hearing which it has indicated it intends to convene to consider conduct which an investigator has recommended be treated as gross misconduct on the part of the claimant employee. That is the form of application which I shall consider.
Mr Michael Paulin, appearing under the direct access rules, appeared for Mr Hendy. Ms Rachel Toney appeared for the MoJ.
The timescale of this matter is extremely unfortunate. As will appear, Mr Hendy has been suspended on full pay since December 2011 and has not carried out any of his duties as a lawyer in the Civil Appeals office and as a Master in the Court of Appeal since that date (2 1/2 years ago). The reasons for the delay are various, and it is not necessary for me to attribute any blame for it.
The employment and disciplinary procedures
The applicant, Mr Hendy, has been employed by the defendant (the MoJ) as a lawyer since 2002. In January 2007 he was appointed as Acting Senior Lawyer in the Civil Appeals Office and on 4th of August 2008 was appointed Deputy Master for the Court of Appeal. In December 2011 two female lawyers in the Court of Appeal office made written complaints about the conduct of Mr Hendy. Those complaints were investigated in a manner which the MoJ says was ultimately in accordance with the relevant procedures and the next step would be the convening of a disciplinary hearing. This application is made in advance of such a hearing in order to restrain it. I shall have to set out the facts in more detail in due course, but they need to be understood in the context of the specified disciplinary procedures.
The MoJ has a written procedure for dealing with disciplinary matters entitled "Discipline policy and guidance". The version that I saw bore the date January 2014, but I was assured by both sides that all relevant parts of that document were the same as the document which applied to Mr Hendy at the time of his suspension and the ensuing investigations. The document contains the following relevant passages.
The document starts with a "Policy statement" which says:
"Minor instances of misconduct will generally be addressed informally through normal day to day management action. The formal disciplinary process will be used for more serious misconduct or where the employee continues to repeat minor misconduct."
The document goes on:
"Discipline policy
PURPOSE
This policy and the related guidelines:
? Set out the disciplinary process for all to see.
? Show managers how to respond to misconduct in a way that resolves issues promptly, focuses on improvement and protects employee's rights.
? Shows employees how they can be expected to be treated if they become involved in a disciplinary process.
…
WHO DOES IT APPLY TO?
This policy applies to all permanent and fixed term employees …
This policy does not form part of your contract of employment. However, you are bound by the provisions of this policy which may be amended from time to time."
The document then goes on to deal with a definition of misconduct, giving examples of minor, serious and gross misconduct. At page 6 it states that the MoJ has a zero tolerance policy in relation to bullying and harassment (inter alia). Gross misconduct is expressed as being a breach that is so serious that it:
? "Destroys the relationship of trust, upon which the employment contract is based, and makes any further working relationship impossible;
? Risks MoJ's property (including reputation); or
? Risks MoJ's obligations to other parties…"
Page 7 deals with employee's "rights":
"Employees who are subject to disciplinary process have the right to:
? Be advised in writing that their conduct is the subject of a disciplinary investigation and the nature of the allegations against them.
? Reasonable written notice of the date and time of a disciplinary hearing with a copy of the investigation report with at least 5 working day's notice to prepare and respond to the allegations against them at the hearing.
? Be accompanied or represented at the disciplinary hearing.
? Be notified in writing of the outcome of the process.
? Appeal the outcome of the disciplinary hearing."
Page 8 contains the roles and responsibilities of Managers conducting a disciplinary process and of Investigation Officers. It puts certain obligations on a manager including an obligation to:
"Manage the process in a fair and transparent manner."
In the next column it provides for how "Investigation Officers" are to go about their tasks:
"Investigation Officers will:
? Identify and consider all relevant evidence.
…
? Produce an investigation report, which fairly and objectively accounts for all relevant evidence and justifies its recommendations.
? Produce a summary investigation report for the manager to pass to the employee."
It also specifies what employees "will" do:
"Employees subject to a discipline process will:
…
? Co-operate fully with the process and enable a speedy and fair resolution.
? Attend meetings when required
…
? Advise the investigating manager of any witnesses and/or evidence they would like considered during the process.
? Be available for meetings if suspended.
…
? Lodge any appeal within 15 working days of being informed in writing of the outcomes of the process."
Section 3 deals with process. It notes that:
"Each disciplinary process will be different due to variations in the form of the misconduct, its severity, the number of people involved, the employee's disciplinary history and mitigating factors. However, a disciplinary process normally follows these steps:
…
2. An investigation of the allegations either by the manager or by an investigation officer appointed by the manager.
3. A disciplinary hearing where the employee will have the right to respond to the allegations and to be represented or accompanied.
4. The manager making decisions and advising the employee."
The next page deals with the circumstances and mechanics of suspension; Page 12 gives certain rights to be accompanied or represented and the following pages deal with the possible outcomes of the process, including sanctions. Page 15 contains the following:
"The disciplinary process is a formal process designed to respond to breaches of the Conduct policy. Generally, managers should not depart from the process. However, in limited circumstances, and only in liaison with the HR Contact Centre and with the agreement of the employee, the following departures might be justified."
It then refers to departures required to meet disabilities and mental health matters.
Section 4 is headed "Manager's guidance" and provides precisely that. Amongst the guidance is guidance under the head: "Does there need to be an investigation?"; and "Who should do the investigation?". It goes on:
"The aim of the investigation is to make a justifiable recommendation about whether misconduct is likely to have occurred. So whoever conducts the investigation must make enough enquiries to ensure that they have all the available evidence and considered all relevant facts needed to make that recommendation."
Under the heading: "How do I collect evidence from witnesses?" The policy says:
"Witnesses are employees who have observed the alleged misconduct or relevant related behaviour. The person conducting the investigation will obtain statements from witnesses in a meeting or by request if the alleged misconduct is likely to be disputed or its extent is unclear."
Page 23 deals with the investigation report:
"WHAT IS THE INVESTIGATION REPORT?
It is a written report, the aim of which is to make a justifiable recommendation about whether the team member's behaviour constitutes a breach of the Conduct policy.
The report also gives the team member information necessary for them to understand the findings of the investigation.
The person conducting the investigation will complete the investigation report. The report will contain the following:
? … Evidence and witness statements considered during the investigation as attachments.
? … Conclusions drawn from the evidence and witness statements.
? Objective assessments about the relative strengths of inconsistent evidence.
? A recommendation about whether the team member has breached the conduct policy and why.
The above list is not exhaustive and the manager or the...
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