Employment Law Question & Answer

Question : Employees

I work for a government body. A member of the public has made a complaint about me and the Chief Executive asked an audit firm to investigate.

They have produced a report and a letter to the complainant has been drafted. I have been asked to comment on the letter but have not been given right of reply to the investigative report.

Am I entitled to a right of reply?

Answer : Employees

I am asked to advise Mr. X, an adduced civil servant, in the employ of an unnamed government department.

Mr. X ( the petitioner ) has submitted in his enquiry that during the course of this employ, a member of the public lodged an official complaint against him.

No details regarding the nature of this complaint have been forthcoming with the petitioner's enquiry. The petitioner has revealed, however, that the nature of the complaint resulted in a senior executive seeking an independent audit of what must be taken as the petitioners area of responsibility within this government body.

The subsequent report, commissioned by the senior executive, has now been presumably completed. A draft response has been prepared, in the light of this report, in reply to the complainant's challenge. It is unclear whether the petitioner has had access to examine this report. It does appear, however, that senior management ( presumably ) wishes the petitioner to make a comment on the prepared draft response.

It is inferred from the petitioners enquiry that he feels this to be an unfair imposition without the opportunity to state his case and challenge the findings contained within this report.

Because of the nature of this enquiry, coming as it does from an employee of the Crown, it will be necessary to cite case law to illustrate.

The ability of the Crown to dismiss its servants at will has often led to the conclusion that civil service employees do not have contracts of employment. This view has been rejected by the Divisional Court in R v Lord Chancellors Dept, ex parte P Nangle [ 1991 ] IRLR 343. Here it was held that once the contracting parties had the intention to create legal relations a contract of employment between Crown and civil servant did exist. It is this ruling and the fact that civil servants are entitled to most statutory employment protection measures following the Employment Rights Act 1996 ( s.191 ) which shall form the nexus of this advice.

In the first instance it is crucial that the petitioner follow the civil service code of practice and bring his grievance to the attention of his immediate superior in his department. The petitioner should state his grievance orally and if necessary deliver a written submission requesting the opportunity to challenge the findings contained within the report.

Departments and agencies within the Civil Service are responsible for their own dismissal, disciplinary and grievance arrangements. They must comply with the statutory dispute resolution procedures for dealing with grievances as set out in the Employment Act 2002 and the Employment Act ( dispute resolution ) Regulations 2004.

Further, the Civil Service Management Code at 4.5.1 states that when dealing with employee grievances "the attention of departments and agencies is drawn to the following as a guide...the ACAS Code of Practice on Disciplinary and Grievance Procedures."

Section 9 of this guide states that when drawing up and applying disciplinary procedures, employers should have regard to the requirements of natural justice. This means employees should be informed of any allegation being made against them together with any supporting evidence and crucially, be given the opportunity to challenge the allegations and evidence before a decision is made.

Employees, it is further recommended, should also be given the right to appeal any decision taken.

It is clear from the Civil Services' own recommended code of practice that the petitioner does have the right to challenge the findings of a report commissioned following a complaint against him.

If, however, the right to challenge is refused in the first instance the petitioner then has recourse to the Civil Servant Appeals Board. This body began life as "in house" version of the Employment Tribunal available to other employees. It is now simply part of the internal appeals mechanism which civil servants can use before deciding when and whether to take a grievance to the more formal Employment Tribunal.

This body again closely mirrors the guidelines established by the ET whose own procedures state that an employee should always be given the opportunity to state his case ( Tesco [holdings] Ltd v Hill ) no matter what the circumstances are. He is entitled to plead that he did not do the alleged act, or that he did not intend the construction which has been put upon it, or that mitigating circumstances relative to his case should be taken into account ( Budgen & Co v Thomas ).

This theme is further echoed in Clarke v Trimco Motor Group (1993) where it was held that "an employee should have the opportunity to put his side of the case."

It would appear, therefore, that statute and both employment case law and the Civil Services' own Management Code suggest that the petitioner has the right to challenge the findings contained within a report, commissioned directly following a complaint directed at him by a member of the public.

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