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Natural Justice

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Every Employer is bound by principles of substantive justification and procedural fairness underlying performance and disciplinary procedures. Substantive Justification looks at the allegation itself which must be legally capable of being grounds for undertaking disciplinary action. It must be identifiable as a breach of the disciplinary policy or some other breach, the facts or substance of which justifies starting disciplinary proceedings. The only way that the employer can conclude that the allegation justifies disciplinary proceedings is by conducting a full and fair investigation.

Procedural Fairness is also known as Natural Justice and covers every single aspect of the proceedings from the moment that the allegation is brought to the attention of management. The twin pillars of Natural Justice are;

  • The Rule against Bias (nemo iudex in causa sua)
  • The Right to a Fair Hearing (audi alteram partem)

 

In Ridge v Baldwin[1] the House of Lords stated;

There are … no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter under consideration and so forth. If it be said that this makes natural justice so vague as to be inapplicable, I would not agree. No one, I think, disputes that three features of natural justice stand out-
(1) the right to be heard by an unbiased tribunal;
(2) the right to have notice of charges of misconduct;
(3) the right to be heard in answer to those charges.

 

In R. v Sussex Justices Ex p. McCarthy[2] the Court said;

 … a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.

These long-standing principles of natural justice form part of the common law of procedural fairness

[1] [1964] AC 40 (UK HL).

[2] [1924] 1 KB 256 KBD (UK).

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