PEOPLE FOCUS - CIPD

LEGAL
PEOPLE FOCUS
NATURAL JUSTICE: A REFRESHER
Despite its importance, the concept of natural justice continues to be either
ignored or misunderstood by some employers, leading to adverse decisions at the
Employment Appeals Tribunal and in the High Court. In those circumstances, it is
hoped that this short summary of the notion of natural justice will prove to be of
assistance to those considering the issue for the first time.
What are the Principles of
Natural Justice?
The British Courts have traditionally taken
the view that certain decision-makers who
are acting in a quasi-judicial capacity are
required by the law to comply with what
are known as the principles of “natural
justice”. Since Ireland attained its
independence, our courts have continued
to cleave to this idea. In fact, since the
adoption of the constitution by the people
in 1937, the courts have acknowledged
these principles of natural justice as being
constitutionally reinforced. For that
reason, the same principles are often
referred to as the principles of
“constitutional justice” in Ireland.
There are effectively two core principles
of natural justice:
1. That a decision-maker must give the
subject of their decision a fair hearing
in advance of the decision being
made (audi alteram partem); and
2. That the decision-maker may not be
biased or prejudiced (nemo iudex in
causa sua) by, for example, earlier
involvement in the matter.
Each of these ideas is discussed in more
detail below.
When do the Principles of
Natural Justice Apply?
In very simple terms, the principles of
natural justice apply when a decisionmaker
is acting in a judicial or quasijudicial
capacity and making a decision
that may have a major impact on the life
of the person to whom the decision
relates. Obviously, the principles apply,
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for that reason, to judges making
decisions in courts or tribunals. They
have also, however, been deemed to
apply to others. Examples include:
• social welfare appeals officers
deciding on appeals against the
refusal of social welfare payments;
• school principals or others deciding
on whether or not a pupil should
be expelled;
• employers deciding whether or not to
dismiss employees; and
• investigators conducting
investigations into bullying or
harassment allegations.
Rule Against Bias
The rule against bias (nemo iudex in
causa sua) requires that the decisionmaker
must not be biased or prejudiced
against the subject of the decision
or against an outcome in favour
of that person. For that reason, it
is important to ensure that the
decision-maker:
• has not had any prior involvement
in the matter before being
assigned to investigate or make
a decision;
• has not been the subject
of any previous allegations
made by the person whose
case is being investigated
or heard;
• has had no prior knowledge
of the issue before being
charged with responsibility
to investigate or
determine the matter;
• has no family or other
close relationship with
any of the parties
involved.
The Employment Appeals
Tribunal has even gone so
far as to suggest that the decision-maker
is biased if they witnessed the incident
giving rise to the complaint so care
should also be taken in that regard.
Fair Hearing
The requirement that the individual about
whom allegations have been made be
given a fair hearing (audi alteram partem)
is of critical importance and will arise as
an issue or concern in every case to
which the principles of natural justice
apply. This requirement has a number
of applications:
1. The hearing itself should usually be
an oral hearing. In very limited
circumstances the hearing may be
based on written submissions only.