Equality of Arms – Natural Justice
It is wholly unfair for those employees’ who cannot afford legal representation to represent themselves in circumstances where employers are able to retain a firm of solicitors. If proceedings are to be fair, just, and equitable, then there needs to be ‘equality of arms’. The fact remains, that the employee is ‘outgunned’ from the moment they lodge a grievance letter. The ‘battleground’ is uneven, the “equality of arms” suborned to whomever can buy the best weapons, men, armour and generals to lead the charge! This fact is not lost upon the employer!
I am speaking from my own experiences, when I say that the employer will likely abuse the power which it delegates. Therefore, don’t provide the employer that opportunity! FACT: A well written grievance letter gives the employer little wiggle room.
Human Rights Act 1998
Invoking Article 6 of the Human Rights Act does not apply in the grievance procedure to “ordinary employees”. However, in the case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust [IRLR 829] it was established that a “professional person” may have the right to be represented by solicitors at a disciplinary hearing. At least in the case of a public sector employer or a professional person, internal disciplinary proceedings must comply with Article 6 of the European Convention of Human Rights if they [might result] in a dismissal, which would [have the effect of preventing the person concerned] from being able to practise his or her profession again.
Again, in the case of R (On the application of G) v Governors of X School [IRLR 434] it was held that if the substance of a disciplinary matter could lead to the employee’s name being added to the POCA register of those deemed unsuitable to work with children, then the right of the employee to a fair trial under the Human Rights Act can give him the right to be represented by a solicitor at a disciplinary hearing.
Employees’ may also be unaware that legal aid cannot be obtained to represent them in a Tribunal (except in unusual circumstances). However, it should be said that employees’ may be eligible to obtain legal aid to help them establish their case, where the employee has been “dismissed”. This is the very purpose of this site. To aid employees’ in the knowledge of their employment rights, and make the battleground a more even playing field. Read on!
Grievance Procedure – Not Judicial
Despite the fact that the grievance procedure is not a ‘judicial procedure’ you want to make it clear in your grievance letter that you are invoking the “Equality of Arms” and “Rules of Natural Justice”. The onus is on the employer to act fairly and reasonably, to investigate the aggrieved employee’s grievances without bias or prejudice, and to [act] in [good faith]. An employer who acts “capriciously” runs the risk of the employee referring to the Employment Tribunal to obtain “effective remedy and redress” to their grievances. Given the fact there are 5,000 Employment Tribunal claims lodged weekly in the UK, it induces the opinion that not many employers observe the aforementioned.
In the case of Bracebridge Engineering Ltd v Darby  IRLR 3 EAT the Judge stated:
“A sham grievance investigation breaches the implied term that employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have……the right to obtain redress against a grievance is fundamental.”
The employee is not likely to have much (if any) knowledge of UK employment law, whereas the employer will undoubtedly have an Officer within its Human Resources Department who has received specialist training in employment matters, and whom will have access to professional legal advice. Whilst the possibility remains that you may involve your solicitor in the grievance procedure, it may be seen as heavy handed by a Judge, unless that is, the content of your grievance is of a very serious nature. In addition, the majority of us are not in a financial position to start coughing up three quid a minute (£180 average hourly rate, + VAT) to have a solicitor involved in what is a non judicial procedure. It will be seen as bringing a gun to a handfight.
So, how is the grievance procedure fair? It isn’t! The best thing the aggrieved employee can do is to educate themselves. Time and research are essential, before you embark on lodging your grievance letter. You want to make sure that the grievance you lodge, is a minefield for your employer to navigate, and anyskulduggery or legal chicanery will potentially result in it paying compensation to you!
The Equality of Arms
“The principle of equality of arms:- “One of the elements of the broader concept of a fair trial is the principle of equality of arms, which requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent.”
Natural justice is binding upon both public and private entities. The principles of natural justice were derived from the Romans, who believed that some legal principles were “natural” or self-evident and did not require a statutory basis. A person who makes a decision should be “unbiased” and act in “good faith”. He or she therefore cannot be one of the parties in the case, or have an interest in the outcome, viz: “No man is permitted to be judge in his own cause”
Good Faith Performance
The good faith performance covers all aspects of the employment contract, and includes both the employer and employee observing the “implied” and “expressed” terms of the employment contract. An example of this is when either the employee or employer prevents one side of the party performing the contract, or delaying the contract. “Good faith” requires moral or ethical standards in which the employee and employer deal with each other, such as the implied term of “mutual trust and confidence“. In the case of Morrow v Safeway Stores plc  IRLR 9 the EAT held that ‘conduct which amounts to a breach of the implied term of trust and confidence will mean, inevitably, that there has been a fundamental or repudiatory breach going necessarily to the [root of the contract]. This is significant in so far that employers who abuse the process of power during the grievance procedure (“No man is permitted to be judge in his own cause” ) will likely have destroyed, or seriously have damaged the implied term of “mutual trust and confidence” giving rise for the aggrieved employee to claim constructive dismissal.