D’Silva v Manchester Metropolitan University & Others UKEAT/0328/16/RN
This is an appeal heard by the Employment Appeal Tribunal (EAT) on 18th May 2017.
Dr C D’Silva (the Claimant) was employed by the Respondent (Manchester Metropolitan University) as a Senior Lecturer within the Science and Engineering faculty from September 1993 until his dismissal. The Claimant was dismissed in 2011. The Claimant made complaints of unlawful race victimisation and unfair dismissal against his former employer and other senior employees. On 15th March 2016 the Employment Tribunal (ET) found that his dismissal was fair when considering the procedure followed by the Respondent.
The Claimant had previously made claims against the Respondent but was unsuccessful. On 30th December 2010 a Judgement from Employment Judge Sneath and lay members dismissed all claims including those of race discrimination. It stated that the allegations of unlawful race discrimination made in the hearing and at previous hearings had not been made in good faith.
On receipt of this judgement the Respondent’s Head of Employee Relations alerted Mrs Hemus (Respondent Head of HR). It was agreed that an investigation was necessary to determine that the complaints not made in good faith meant the Claimant’s conduct amounted to gross misconduct.
On 7th March 2011 the Claimant was invited to an investigation meeting by Professor Dunleavy. The Claimant was represented and he had the opportunity to make representations. He said he would appeal the Judgement from Employment Judge Sneath and disagreed with its conclusions.
Professor Dunleavy made the decision that the matter should proceed to a disciplinary panel which was in accordance with the Respondent’s disciplinary procedure that taken at face value, the available evidence spears to indicate that an act of gross misconduct has taken place.
The Claimant received a letter from Mrs Tracey (Deputy Head of Operational Services) on 23rd March 2011, inviting him to a disciplinary hearing setting out the allegation of “that you entered Tribunal claims against the University which were found to be false and brought in bad faith…”.
Before the disciplinary hearing took place and to be heard by Mrs Hemus; the Claimant submitted a letter on 24th March 2011 challenging the participation of Mrs Hemus. He alleged that she had a conflict of interest on the basis that she had “denied many of my grievances being heard by the Board of Governors”.
On 28th March 2011 Mrs Tracey wrote to the Claimant and rejected his complaints about Mrs Hemus. Mrs Hemus had asked for an investigation to take place but had not initiated the disciplinary hearing. It was in accordance with the disciplinary procedure for Mrs Hemus to participate as a member of the disciplinary panel.
The Claimant did not accept this in a letter on the 29th March 2011. Mrs Hemus has been the subject of a complaint at a previous Tribunal hearing brought by the Claimant. Mrs Tracey wrote to the Claimant stating his comments had been noted but not agreed. Mrs Tracey did not inform Mrs Hemus of the Claimant’s objection to her involvement in the disciplinary process.
On 31st March 2011 the disciplinary hearing took place. Mrs Hemus has the assistance of Professor Kelleher sitting with her on the disciplinary panel. The Tribunal found there was no provision in the Staff Disciplinary Procedure for a panel however it accepted this was the practice of the Respondent and Mrs Hemus confirmed it was her decision alone at the hearing.
There was no objection at the start of the meeting in relation to Mrs Henus being on the disciplinary panel. There were some issues raised some way through the hearing referring to Mrs Henus’s role in relation to the grievance dealt with by the Board of Governors. The concern of bias and to be against the principles of natural justice were raised.
The Claimant believed he should not be disciplined because of the findings of the Judgement by Employment Judge Sneath. He believed he had “legal immunity” and “automatic protection even if his claims were… malicious”. The Claimant explained he was pursuing appeals to the Employment Appeals Tribunal in respect of that Judgement.
On 8th April 2011 Mrs Hemus wrote to the Claimant confirming she played no part in the decision of the Board of Governors which had previously considered his grievance. She also explained that she did not accept her role in the process rendered her biased against the Claimant. The letter gave the decision that a summary dismissal was the appropriate penalty. The letter also informed the Claimant that because the Vice Chancellor had delegated his powers to Mrs Hemus, the Claimant had the right to make representations to the Vice Chancellor.
The Claimant exercised his right to make representations to the Vice Chancellor. He submitted further documents including several letters of commendation and a witness statement from his lawyer. During the hearing the Claimant raised an issue with the Senior Lecturer, Mr Okojie. Following the hearing the Vice Chancellor arranged to interview Mr Okojie.
The Vice Chancellor rejected the Claimant’s representations by letter on 31st May 2011. He concluded the decisions of the disciplinary panel were reasonable and he adopted them.
The Claimant then appeal to the Board of Governors. A panel of three Governors heard his appeal on 14th July 2011. He was notified of the outcome by letter on 26th July 2011. The panel found Mrs Hemus to be the proper person to take the disciplinary. The appeal was dismissed and that concluded the disciplinary process.
Following this decision, the Claimant failed to successfully appeal against the Judgement given by Employment Judge Sneath.
The Claimant’s appeal to the EAT was based on three substantive grounds which related to the role of the Respondents Director of HR (Mrs Hemus) and whether or not it was permissible for her to hear and determine the disciplinary misconduct allegation in the way that she did. The ET looked at how this may have had an impact on the fairness of the dismissal.
The grounds are as follows:
- Ground one challenges the finding as to the suitability of Mrs Hemus to conduct the disciplinary hearing as perverse and wrong given her alleged bias and contends that if she was an unsuitable person to have conducted the disciplinary hearing that vitiates the fairness of the dismissal and raises the possibility that the dismissal was an act of victimisation because Mrs Hemus was influenced by the Claimant’s protected acts.
- Ground two challenges the Tribunal’s decision that Mrs Hemus was the sole person responsible for the decision to dismiss the Claimant as wrong and unsupported by evidence. It contends that the evidence supported a conclusion that both she and Professor Kelleher took the joint decision to dismiss him.
- Ground three challenges the power of the Vice Chancellor, Professor Brooks, to sub-delegate dismissal of the Claimant to Mrs Hemus and Professor Kelleher on a joint basis. It contends that the power to sub-delegate was limited to sub-delegation to Mrs Hemus and challenges as perverse the Tribunal’s conclusion that Professor Kelleher’s role was advisory only.
The EAT focus during the appeal was limited to the conclusions reached by the ET that a fair process leading to a fair dismissal was adopted by the Respondent. The EAT decided to dismiss the appeal on the grounds the ET had adopted the correct approach in law (by reference to Taylor v OCS Group Ltd) in assessing the nature and effect of a procedural failing at the disciplinary hearing stage in the context of the disciplinary process as a whole and having regard to the seriousness of the misconduct. It made findings open to it as a matter of fact and law.