In Watson v University of Strathclyde, the EAT held that the inclusion of a particular member of staff on a panel to hear an appeal against a grievance amounted to a fundamental breach of contract, so that the employee who had brought the grievance was constructively dismissed.  The panel member in question was not personally involved in the grievance but was close to the subject of the grievance and had, in the past, expressed views about the subject of the complaint.

Ms Watson worked in the University's marketing department.  Mr Taylor, the department's director, had been appointed by a committee that included the secretary of the University, Dr West. Ms Watson raised concerns about Mr Taylor's behaviour, which she felt was aggressive. Mr Taylor was subsequently convicted of a breach of the peace outside work (in an incident not involving Ms Watson). Although Mr Taylor offered to resign, Dr West decided that this was not necessary and that his behaviour did not impact on his continued employment.  There were continued difficulties between Ms Watson and Mr Taylor culminating in the former raising a grievance. Part of the grievance was a heightened concern in relation to Mr Taylor following his conviction.   Ms Watson's grievance about Mr Taylor was not upheld and she appealed.  Dr West was one of three senior members of the University appointed to the appeal panel.  Ms Watson expressed her concerns to the University that Dr West should not be on the appeal panel, as he had a conflict of interest.  The other two panel members, without Dr West, considered these concerns and decided Dr West was not biased and could join the panel to determine Ms Watson's appeal.  Ms Watson's appeal was subsequently dismissed and Ms Watson resigned from employment, claiming constructive unfair dismissal on account of the University's decision to include Dr West on the appeal panel.

The EAT held that Ms Watson had been unfairly constructively dismissed.  The key question was whether the employee had a fair hearing of her grievance.  For there to be a fair hearing, it must be free not only from actual bias, but also any apparent bias.  A reasonable employer would have taken into account Ms Watson's perception that Dr West might be biased and the reasons for that perception (which were not without foundation) and concluded that it would not be fair to include him on the panel.  The appeal panel was therefore tainted with apparent bias, entitling Ms Watson to resign and claim constructive unfair dismissal.

Impact on employers

  • This case is a useful reminder that the rules of natural justice apply to grievance hearings and the hearing afforded to the employee must be a fair one.
  • The EAT clarified that it was not suggesting that an employer setting up a grievance appeal panel should routinely require to consider specifically whether or not there is "apparent bias" in the panel.  In this case the employee had raised an allegation of bias, which should not have been ignored.
  • In other circumstances the issue of apparent bias may arise without any allegations by the employee.  Employers should be alert to the potential for apparent bias, for example, where a  member of staff is known to be close to or may have mentored the employee who is the subject of a grievance or has expressed views that might lead the complainant to believe that they would not approach their grievance with an open mind.