June 19th, 2017 by James Goudie KC

Section 125 of the Education Reform Act 1988 provides that any institution conducted by a higher education corporation shall be conducted in accordance with Articles of Government. The Articles must make provision with respect to specified matters.  They may make provision with respect to other matters.  These other matters include procedures for the appointment, promotion, suspension and dismissal of staff.

The Articles of Manchester Metropolitan University contain disciplinary procedures. They give the Vice Chancellor power to dismiss. They do however also enable him to delegate that power, but only to the Director of Human Resources.  She is not authorised to sub-delegate or to share the dismissal power.

The University as a matter of usual practice adopts a panel arrangement to consider dismissals. The Director chairs the panel. There is another member of the panel.  Is that lawful? Yes, if the decision to dismiss is that of the Director alone.

The exercise of the dismissal power is restricted to the person to whom it is delegated (the Vice Chancellor) or the person to whom it is lawfully sub-delegated (the Director). However, the ability of the Director to exercise that power in conjunction with another senior member of staff is not limited.  Such a person is not prevented from forming part of a disciplinary panel to consider the evidence and determine what allegations are proved and their seriousness and to reach conclusions about what sanction is appropriate.

However, if the joint view of both members of the disciplinary panel is that dismissal is the only appropriate sanction the only person who can effect such a decision, other than the Vice Chancellor, is the Director. Provided that is so, the input and advice from the other panel member does not render the process unlawful or unfair.

The above is one of the holdings of the President of the Employment Appeal Tribunal (Simler J) in D’Silva v Manchester Metropolitan University, UKEAT/0328/16/RN.


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