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John Bowers QC on Employment Law: January Blog

The following commentary is the latest in a series of Employment Law blog posts by John Bowers QC.

Happy New Year to you all.

What is truly private?

An increasingly relevant issue is the extent to which private matters may be the subject of employer misconduct procedures. This came into particular focus in R (Chief Constable of Cleveland Constabulary) v Police Appeals Trust [2017] ICR 1212 where a police officer lied to fellow officers and members of the CPS about the cause of injuries which he had sustained when he was assaulted by the husband of a police sergeant with whom he was having an affair. The disciplinary panel rejected the officer’s contention that he was entitled to lie as a means to protect his right to respect for private life under Article 8. The Panel decided to dismiss without notice but the Police Appeals Tribunal (PAT) found the panel’s decision to be unfair and unreasonable. The panel had reached its conclusion on the basis that there was no such thing as “private on duty conduct”. The tribunal found this was not gross misconduct and he should receive only a final written warning. The Chief Constable sought judicial review. The Administrative Court found that when there was a lie personal mitigation should be less taken into account. A person’s private life did not necessarily end when the individual entered the workplace. The panel had been in error in saying there was no such thing as “private on duty conduct”. The PAT had been entitled to reach its own view. This is an interesting example of a borderline which is difficult to draw with confidence.

Cross examination

A recurring issue for Judges is ensuing fairness whilst not being over technical in requiring cross examination on every point especially when a party is representing him/herself. Browne v Dunn [1893] 6 R 67 HL is the principal source for the proposition stated in the 18th edition of Phipson on Evidence, at 12-12, that:

“[i]n general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point”. 

Phipson comments however that “the rule is not an inflexible one” and that failure to put a point to the witness “may be most appropriately remedied by the court permitting the recall of that witness to have the matter put to him”. In North Cumbria University Hospitals NHS Trust v Dr S M Saiger, UKEAT/0276/15/LA, 17 July 2017, (at paragraph 80ff) HHJ Hand QC was “inclined to treat the rule as one of evidence and practice rather than law” and this must be the just approach. 

Membership of unions

The reduction in membership of unions has been precipitate; in the 1970s about half of all workers joined a union. Now it is 21% dropping to 13% in the private sector and 6% amongst young workers in the private sector. The big question is whether the trend can be arrested and reversed. Some unions are campaigning for young workers and gaining recognition usually helps but it is hard to see any realistic prospect of the numbers returning to their previous level. There are however particular areas where unions are reaching that they have not before. I was intrigued by the article in the Times on 4 December 2017 “Stressed clergy put faith in the power of the unions” which stated that about 1500 priests, rabbis and imans had joined Unite an increase of 16% on the year before.

I conclude with the apposite words of Martin Luther King in “Beyond Vietnam” in  1967 where he said “We must rapidly begin the shift from a thing oriented society to a person oriented society”. Hear hear.

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