The UK Ministry of Justice has been caught up in a two and a half year legal wrangle with senior Court of Appeal lawyer accused of bullying conduct.
Robert Hendy, a Master in the Civil Appeals office, has been suspended on full pay in excess of £65,000 since December 2011 when two female lawyers made complaints about him. His conduct was said to be bullying and undermining of colleagues. Hendy denies all the allegations against him.
His dispute about disciplinary procedures reached the High Court this week where Mr Justice Mann said: “There were also allegations of casual racism, alcohol misuse, absenteeism and neglect of his official duties, both managerial and substantial” – though these have since been dropped.
The High Court had heard that after compiling a 70-page report on the matter, an investigations officer appointed under the MoJ disciplinary procedure, Stephen McAllister, concluded there was enough evidence to prove the bullying and harassment allegations against Hendy and that they should be considered serious and that specific allegations of bullying particular people should be regarded as gross misconduct. He made comments about his power to sack people and “He [McAllister] found that Mr Hendy made a number of sexual innuendo remarks over time, meant in jest but having an adverse effect on the recipient.”
A racism claim was rejected and there was “no clear evidence to link the use of alcohol in the workplace and the performance of his official duties” and no case to answer on performance issues. The court heard that Hendy complained about these allegations ever having been brought up and said of all the complaints that they were trumped up and were effectively the result of a conspiracy between the two complainants.
A finding of gross misconduct was made against him in March 2013 and he was sent a letter summarily dismissing him but an appeal manager, Philip Copple, overturned the decision to sack him on the grounds that his defence had not been tested by putting his version of events to the complainants. He noted:
“I do not suggest it is necessary to shuttle back and forth repeatedly between the witnesses, putting any new fragment of evidence or nuance that emerges from one witness to all the others, before it is safe to draw a conclusion. But I do contend that in a case of potential gross misconduct, a sufficiency of enquiry does require that at some point in the disciplinary process, whether during an investigation or a hearing, that the alternative account of disputed events and other submissions of the person under investigation, which s/he claims are indicative of dishonesty in others, are put to those other witnesses to elicit and assess their responses. This did not happen in this case.”
He suggested that Hendy be allowed to put questions to the witnesses/complainants. Hendy was reinstated, though he remained suspended. A new investigating officer and determining officer were appointed to proceed with the disciplinary case. Hendy claimed the new process would be a rubberstamping of the earlier decision and hence sought a high court injunction to halt proceedings until a fresh investigation by an independent person agreed by both parties. However, Mr Justice Mann rejected Hendy’s application.
Hendy’s case and the law
Hendy’s claim is that the MoJ disciplinary procedure is contractual and hence should be adhered to. Hendy says this means there are “implied terms of the contract that the defendant [MoJ] should not conduct itself in a manner likely to destroy or damage the employment relationship”, operate the procedure fairly and transparently and according to the requirements of mutual trust and confidence implied into every contract of employment. In particular Hendy’s case should have been put to the complainants as suggested by the appeal manager, Copple. Copple’s recommendation had in effect become a contractual right in favour of Hendy (ie since not to follow his recommendation would breach the implied term of mutual trust and the obligation of good faith).
The MoJ denied that the procedure was part of Hendy’s contract of employment though it accepted there was an implied obligation to operate a fair process.
The law on whether disciplinary procedures are contractual is vexed. Procedures are not necessarily written into contracts but “the fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee” (Alexander v Standard Telephones & Cables Ltd (No 2),  IRLR 286, 292-3. This was a case in which a union “last in, first out” redundancy agreement was held not to have been incorporated into workers’ contracts of employment.
The MoJ procedures stated explicitly: “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.” That the employee is “bound” by the procedure suggests a contract but Mann said: “Looking at the document as a whole I do not consider that the terms of the policy itself have a contractual effect binding the employer to carry out particular acts under it.” Only the employee is “bound”, suggesting no bilateral obligation – and s/he is “bound” to do very little other than accept categories of misconduct. Acceptance of good faith and fairness “does not require the incorporation of terms into some sort of contract”.
Mann rejected the point about Copple’s recommendation becoming contractual but considered there was an arguable view that it should be followed because of the duty of fairness. However:
“It is not, in my view, arguable that each and every part of Mr Hendy’s case, including his reasoning on credibility, needs to be put to each and every relevant witness. It is not a mechanical process. What needs to be put is enough to enable a reasonable view to be reached. What qualifies for this purpose will be a matter for the reasonable judgment of the investigator, and then for the determining officer who has to consider what steps to take on the investigator’s report.”
In fact Mann considered the new investigating officer had made great efforts to do this though one complainant had been too upset to read new material from Hendy and seven matters were not put to the complainants. But “what was required was that he should do enough to be able to test the complainants’ credibility”. Mann concluded the investigating officer’s “procedures were sufficiently fair to prevent there being an arguable breach of contract in that respect”.
Hendy had failed to establish there was unfairness of sufficient seriousness to justify halting the whole proceedings. An outcome that might be the result of an unfair procedure could be challenged later at tribunal and damages sought. Injuncting the procedure would leave Hendy suspended on full salary for a further considerable time – money he would not be able to repay if he lost his disciplinary case. Such a financial loss to the MoJ should be weighed in the balance when considering injunction. Hendy’s application for injunction therefore failed.
Note: The case of Hendy v Ministry of Justice is here.
The Civil Appeals office
The Office supports the Court in making the best use of the judicial resource. To that end: It verifies whether this Court has jurisdiction; It ensures that all the papers necessary for determining the case are available and in good order; It ensures that there is compliance with all procedural steps; It manages the progress of each case from setting down to disposal; The Office draws up the constitutions of the Court, and under the Direction of the Master of the Rolls supervises the allocation of cases to those constitutions; The Office ensures that orders reflecting the decisions of the Court are properly drawn; and The Office provides assistance to the legal profession and to individual litigants.
The Civil Procedure Rules, Part 52.16 (2), provide that the Master and the Deputy Masters may exercise the jurisdiction of the Court insofar as it relates to: any matter incidental to any proceedings in the Court of Appeal; any other matter where there is no substantial dispute between the parties; and the dismissal of an appeal or application where a party has failed to comply with any order, rule or practice direction. In practice most of this business is handled on paper, although there are weekly ‘dismissal lists’ taken in open court by the Master or by the Deputies. Those orders are reviewable by the Court. Justice.gov.uk