I have a hearing. Do I need to attend?

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For Roger (IB3 at pp62-3)

If a manager accused a worker of stealing £50, and the worker refused to attend a disciplinary hearing, would the hearing go ahead? Yes. They might delay on an absence support by a doctor’s note, but if the worker continued not to attend ultimately the hearing would go ahead in the worker’s absence. How would the employer treat the worker’s absence? As an admission of guilt. They had a chance to prove themselves, they had not taken it. Their action speaks for itself.

If a worker accused a manager of harassing her, and the manager refused to attend a disciplinary hearing, would the hearing go ahead? Yes. How would the employer treat the manager’s absence? They would, in all likelihood, listen carefully to the reason for the absence (and probably more carefully than if a mere worker was absent). If it was sickness, for example, or stress, they might delay the hearing to accommodate the manager. There might not be quite so strong an insistence on the manager providing medical evidence. If the manager consistently refused to attend, the hearing would go ahead, and if those hearing the case believed the person making the complaint, they would treat the case as (for the employer’s purposes) proved, and take disciplinary action against the manager.

What if the manager had resigned in the interim? The employer would still need to make findings. After all, if the manager had harassed a more junior employee, during his work duties, and then relied on his seniority in the workplace to harass her a second or a third time, the employer would owe her a very significant apology. It would have had failed in its duties to her. And the employer would only know this for certain if it had decided whether her complaint was true or not.

In a trade union, if a member complained that another member had bullied her, would the hearing go ahead? Yes. How would the adjudicator treat the member’s absence? Either as an admission of guilt or neutrally, but it would not stop the adjudicator reaching a final decision in the case.

In a disciplinary body (e.g. the Nursing and Midwifery Council), if there was a complaint against a worker and the worker did not attend, would the hearing go ahead? Yes. Would it go ahead if the person concerned had resigned from their main employment? Yes. How would the adjudicators treat the member’s absence? Either as an admission of guilt or neutrally, but they would make a final decision.

At the Employment Tribunal would the hearing go ahead in the absence of one of the two parties? Yes. There are occasions on the Tribunal would adjourn, but essentially only if there was medical evidence or some other compelling reason to do so. How would the Tribunal treat the party’s absence? The Tribunal would look at the evidence before it and make a decision as to which version it found compelling. I have heard of cases where one party was present, another party absent, and the present party still lost. For example, because the case as they put it did not satisfy the requirements of legislation. But in the large majority of cases (99%), those present win. They have provided their evidence, the other side has not. All other things being equal, a detailed, believable case which is not resisted on any apparent basis should normally win.

In the family court system, would the hearing go ahead in the absence of one of the two parties? Yes, this happens all the time with allegations of rape, domestic violence, etc. The hearings tend to be very short, and in my experience the Judges treat the party’s absence as a clear admission that they have lied in making an allegation or did the rape, domestic violence, etc of which they are accused.

In the Magistrates’ Court, if a person was accused of harassment and did not attend court, what would happen? A warrant would be issued for their arrest. If they were still not in court on the second or third occasion, the trial would take place in their absence, and they would be convicted.

Would any of these decision-makers hold back and insist that they could not reach a final decision unless the person subject to the complaint chose to attend? No, not a single one of them would hold back; all would make the final decision.

Would any of them say that their decision was provisional? None of them would.

Would it make a difference to the employer, or the union, or the disciplinary body, or to the Tribunal or to a district judge if the complaint was very serious? Would they say natural justice holds us back from making a final decision? Would they say, we can only decide that the person has a “case to answer”?

None of these decision makers, informal (employer) or formal (courts) would limit themselves to a finding of “no case to answer”. If the case was serious, they might give the person who was subject to the complaint further opportunities to attend. But if the person had had opportunities, and did not attend, each would have to make a decision about what they believed had happened.

As an employer you can’t “half” sack somebody, as a professional body, you can’t decide that they are “half” unfit to do their job. If someone does not attend, a decision still has to be made. Justice and the authority of the manager, the union or the Judge, both depend on the decision-making actually making decisions.

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7 responses »

  1. Isn’t it also the case that a lot of these cases are resolved without being heard – or resolved *by* not being heard – just as 80% of criminal charges are resolved by a Guilty plea?

    A few years ago I brought an employment tribunal case against my then employer, almost by accident (I’d assumed that putting “I reserve the right to take my case to a tribunal” at the bottom of the letter to HR would work magic; they basically said “off you go, then”). A friend said that the employer wouldn’t let it go as far as the court (“they’ll settle at the door of the courtroom if they have to”), and he was right – they tried everything they could to challenge my claim, to get it suspended pending further investigation, to get the hearing deferred, to challenge the decision not to defer the hearing, and so on and on. Eventually I gave up – having found another job – and withdrew the claim; in effect I lost. But the case was a good one & the point of law was sound.

    There’s certainly something repugnant & un-law-like about an employer simply cutting short a hearing on a complaint by one employee against another, and then announcing to the world that justice has been done and we can all move on. But it might be worth looking at this not as a travesty of the law so much as a rather crude and amateur imitation of the law in practice.

    (Sorry if that sounds cynical and legal-realist. I’m actually a massive enthusiast for the rule of law; I’ve read Fuller and everything. But that tribunal just got me thinking about dropped cases, & how advantageous (for some) they can be.)

    • Yes, all those things happen: very roughly around 2/3 of ET cases settle. And yes, most criminal cases result in a guilty plea at the first hearing. (It’s probably more than 80% if you include motoring offences).

      But the fact that cases settle doesn’t mean that the “cases which don’t settle” are any less formal or serious or that there is any less effort putting into finding out what happened in them. Try sitting in a rape trial in the Old Bailey, or a complex final hearing in a resignation-following-sexual-harassment case at London Central ET. They are serious hearings, and the state contributes a lot of resource to making sure the process is seen to be fair.

      And it’s worth recalling the exact context in which the piece is being written: for a revolutionary party, which just had to consider whether or not to investigate a complaint of sexual harassment, and according to half the people on its central committee “the case wasn’t investigated at all” (because the person subject to the complaint refused to attend, see above), and according to the other half a process was followed which was perfect and beyond approach.

      The disparity, I’m suggesting, is an important one

      • Not being an SWP member, of course, I know nothing of this ‘Roger’ and ‘IB 3’ of which you speak. Ahem.

        I certainly wasn’t saying that cases that don’t settle are any less serious. The point I was making was that they’re the minority, & the normal workings of the law include an awful lot of cases that do settle – sometimes in conditions which look and feel like a victory for one side, and not necessarily the side that would have won the case if it had been tried. It’s true that the official line in this case – “we investigated, then the individual in question left so we stopped investigating, the case is now closed and everything’s fine” – is a travesty of procedural as well as natural justice. But I fear that a procedurally watertight settlement could have been just as bad. There was certainly nothing un-lawlike about the settlement in my ET case – “we challenged the allegations, the complainant withdrew the allegations, the case is now closed and everything’s fine”.

  2. I think in a process you need to have the discernment to grasp when settlement is appropriate. In life it works better with relationships that are over (eg a dismissed employee) than ones which are ongoing. A millionaire driver knocks over a cyclist by mistake on the road. It shouldn’t be difficult to settle. A couple divorce and will argue about where the kids will live. In reality they have an ongoing if dysfunctional emotional relationship. “Settling the issue” in a mature way just *will* usually be difficult.

    And this divide between ongoing and finished relationships isn’t always easy in practice to spot. EG worker takes employer to ET for discrimination. Worker has resigned so the parties agree a settlement which neither really approves off but both will accept as the “least bad that is acceptable to them”. And then the worker needs a reference letter. Now leaving aside the class dynamics for a second, and assuming virtue and integrity on both sides: the worker thinks settlement vindicated them, the employer thinks they are a liar who dragged the good name of a poor innocent manager through the mud, how are you going to get a reference letter which both worker and manager agree is fair and reasonable all around? (The best answer – if there is one – is through binding the reference in to the settlement agreement. But that only works if people raise the issue at the time, in settlement, not months afterwards, and references through settlement are normally so short as to be toxic in their own way).

    One of the odd learning experiences the CC pretends it has gone through is that they say they now recognise that it was a huge error on their part (this is in the early pages of IB3) to try to settle the original complaint in 2010. Of course, Alex and Charlie are still lying about how what W said in 2010, but that’s a point for another time.

    But if they were people who had lived outside the SWP, and had any real experience of the workplace, they would have known in 2010 it would be a disaster. If an employer says “my manager raped me”, very few employers would try to settle the question – it’s just too raw, too divisive. They would shove it off to the police, and if that didn’t work, do whatever they could to find out (or get someone else to find out) what happened.

    They wouldn’t stop the process on the manager leaving (because the complainant would still be working there), and they wouldn’t tell the people to meet and settle their differences.

    Some complaints are too raw, some issue are too divisive, so that where you expect people to work together afterwards, it isn’t a sensible – or a principled – answer to say “we will settle this by assuming the complaint is half true”.

    Rape isn’t like that, and rape between comrades in a revolutionary party definitely isn’t like that.

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