Procedural fairness? What does it mean in practice?
In a recent higher education case R (Hassan ) v University of Coventry (2016) it was held that in refusing to extend the deadline for a student to enrol on a university course, the university acted in a manner that was procedurally unfair by not giving the student the opportunity to respond to its assertion – that he had lied about the reason he had not enrolled on time.
While this is a university case, the general principle of procedural fairness is a general public law principle that will always be applicable to decision makers when considering exclusions, admissions or any other decision around access to education or services. It is also a very important principle in issues relating to employment and can also apply in situations where a person may be removed as a Governor.
While each situation will depend on its own facts, the general principles around procedural fairness can be summarised. Essentially when making a decision, the decision maker must make any decision in a fair way with an open mind – having an open mind is particularly important and it should be kept in mind that e-mail correspondence may be the subject of a subject access request so, as ever, be very careful about what is put in writing. A person must have the opportunity to:
(a) know the charges made against them
(b) have the opportunity to respond to any accusation and challenge any evidence
(c) where they apply, relevant policies must be followed.
In some instances there may be a right to be represented as well. If a person is disabled (or another protected characteristic applies), then it is particularly important that any duties under the Equality Act 2010 are carefully considered.
So it is important if a school is contemplating making a decision around access to education that they act in a procedurally fair way. It is also important that there is documentary evidence showing that the decision maker has carefully applied their mind to acting in a fair way and acting in accordance with policy.
Schools will often have concerns when making significant decisions and it can be appropriate to seek legal advice. However, by understanding the basic core principles around procedural fairness, a decision which is made fairly is unlikely to be successfully challenged at Court.
If you have any questions around procedural fairness or would like to discuss any issues around exclusions, admissions or any other situation, please contact Russell Holland on 01179 069323 or Russell.Holland@michelmores.com.