In 1430, French soldiers allied to the English throne took a young girl prisoner. Joan of Arc claimed divine visions supporting the French Charles VII against the English. Infamously, she was handed over to the English and subjected to a trial, convicted of witchcraft and burned at the stake. This historical example exemplifies a corrupt and prejudiced process, designed to achieve one result: a conviction and a painful death. Joan of Arc was denied the principles of natural justice.

Understanding Natural Justice

Natural justice aims to ensure individuals involved in legal, administrative, or disciplinary proceedings are treated fairly and have their rights protected. Natural justice (or “procedural fairness” as it could also be known), provides a framework to achieve these goals.

Evolution of Natural Justice

The concept of natural justice can be traced back to ancient civilizations, such as Greece and Rome. Over time, English courts have recognized the importance of procedural fairness, culminating in the emergence of fundamental principles like “audi alteram partem” (hear the other side). Today, these principles are enshrined in international human rights instruments, such as Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

The Rules of Natural Justice

  1. Right to be heard: Individuals have the right to know the allegations against them and be given a fair opportunity to present their case, respond to the allegations, challenge evidence, and call witnesses if necessary.
  2. Rule against bias: Decision-makers must be impartial and approach proceedings without personal or professional interests that could compromise their objectivity.
  3. Notice: Individuals must be provided with timely and adequate notice of the allegations and the details of the proceedings against them, allowing sufficient time to prepare a defense.
  4. Access to evidence: Individuals should have the right to access the evidence being relied upon, including documents, witness statements, and other relevant materials.
  5. Right to legal representation: In certain circumstances, individuals have the right to legal representation during proceedings, ensuring they receive legal advice, effectively prepare their defense, and protect their rights.
  6. Right to cross-examine witnesses: In adversarial proceedings, individuals may have the right to challenge the credibility and evidence presented by witnesses through cross-examination.
  7. Impartial decision-maker: Proceedings should be conducted by an impartial decision-maker who approaches the case objectively, devoid of personal interest or conflicts of interest.
  8. Reasoned decision: Decision-makers should provide clear and reasoned explanations for their decisions, referencing the evidence considered and addressing any concerns raised during the proceedings.

How do the rules of natural justice apply to HR?

Most internal company investigations or processes should follow, to some degree at least, the rules of natural justice. The degree to which they must be followed depends on various factors, including the employee’s length of service, the seriousness of allegations, and their seniority. Based on the principles of natural justice, here are some tips on dealing with procedural fairness in a company internal proceeding.

  1. Specifying the allegations correctly: It is important to set out any allegations in clear, simple English. Sometimes, in complex or contentious cases, it is prudent to have both “sides” agree on a list of allegations. Clear structured allegations allow for an objectively investigable process.
  2. A fair investigation: Investigations are normally undertaken by the employer, who generally has more resources and access to paid legal advice. The employer should really think about the investigation, ensuring that no obvious stones are left unturned. Evidence can take many forms, including documents, witness statements, or incontrovertible facts.
  3. Fair presentation of evidence: The evidence should be compiled into a “bundle,” ideally paginated for complex cases. The bundle should contain all the evidence so that the decision-maker is not placed in the awkward position of giving evidence themselves, which could compromise the process.
  4. Separation of investigation and hearing: Ideally, a competent person should be assigned the role of investigator, focusing solely on the investigation itself and not getting involved in any decision-making. However, in some cases, investigators may be asked to draw fair and reasonable conclusions based on the evidence.
  5. The employee’s fair opportunity to present their case: During the hearing, the employee must be given sufficient time and space to make reasonable and relevant representations.
  6. Impartiality: Decision-makers involved in the internal proceedings must be impartial and free from personal or professional interests that could compromise their objectivity. They should, if possible, remain completely clear of the investigation until the agreed-upon bundles are completed.
  7. Notice: Employees must be provided with timely and adequate notice of the hearing date. Adequate time should be given for employees to prepare their defense and gather relevant evidence.
  8. Access to evidence: Employees have the right to access the evidence relied upon in the proceedings. This includes the right to review relevant documents, witness statements, or any other materials considered during the proceedings. Access to evidence allows employees to effectively respond to the allegations and challenge any inaccuracies or inconsistencies.
  9. Right to a companion: Employees have the right to be accompanied by a companion, as outlined in the ACAS guidelines. The companion can be a fellow worker or a trade union representative who can provide support, take notes, and make representations on the employee’s behalf. While the companion cannot act as legal representation, their presence helps ensure a fair and balanced process.
  10. Reasoned decision: Decision-makers should provide clear and reasoned explanations for their decisions. This includes outlining the basis on which a decision was made, referencing the evidence considered, and addressing any specific concerns or issues raised during the proceedings. A reasoned decision allows employees to understand the rationale behind the outcome and assess the fairness of the process.
  11. The right to appeal: Any process can take a wrong turn or arrive at an incorrect conclusion. For that reason, UK courts consider it fair to provide employees with a second chance if they feel errors were made in the initial proceedings.

Natural justice in company internal proceedings: why is it so important?

Let’s face it, internal proceedings can be a stressful grind. They consume enormous amounts of energy, money, and time. However, regardless of how the process unfolds, the company has a clear objective: at the end of the process, it should be able to produce a documentary audit trail that proves the process was fair. If an employee takes the company to the employment tribunal following an internal process, the tribunal judge expects to see fairness in action. While not every “T” needs to be crossed or every “I” dotted, fundamental fairness is crucial. An understanding and appreciation of the importance of the rules of natural justice will help you achieve that.