Aziz v Crown Prosecution Service: [2006] EWCA Civ 1136

CA: Ward, Smith and Richards LJJ: 31 July 2006

The claimant employee, an Asian solicitor with the Crown Prosecution Service who was of the Moslem faith, was suspended after a complaint was received alleging that she had made inappropriate and offensive comments during conversations with members of the staff at a magistrates' court, following terrorist attacks in the United States. One week later the suspension was lifted but she was transferred to a different office. A subsequent report exonerated her of any wrongdoing. An employment tribunal, upholding the claimant's complaint of race discrimination, found that, in commencing disciplinary proceedings against her and in suspending her from duty, the Crown Prosecution Service had acted in breach of its disciplinary code, in that before commencing proceedings it had failed to carry out appropriate preliminary inquiries or to make reasonable attempts to establish the facts of the alleged misconduct before deciding to suspend the claimant and it had also failed to ensure that the claimant received advice and representation from a trade union representative or a colleague of her choice. The tribunal further found that, because of the claimant's origins, the assumption had been made that the allegations against her had substance. An appeal by the Crown Prosecution Service was allowed by the Employment Appeal Tribunal on the ground that the employment tribunal had misconstrued the disciplinary code and so erred in finding that the Crown Prosecution Service had acted in breach of the code.

The employee appealed.

The Court of Appeal held:
While under its disciplinary code the Crown Prosecution Service was entitled to initiate formal disciplinary action against an employee if there was suspicion of serious or gross misconduct, such suspicion had to be based on reasonable grounds and action taken only after reasonable preliminary investigations had been made by a manager to establish whether misconduct had taken place. Moreover, fairness and good employment practice required that disciplinary proceedings should not be initiated unless suspicion of misconduct was based on reasonable grounds. A wholly hearsay and unparticularised account emanating from unnamed complainants and alleging unspecified offensive words could not be said to give rise to a reasonable suspicion of gross misconduct, and any consideration of fairness led to the conclusion that the claimant when summoned for interview with a view to suspension was entitled to be accompanied or represented. Accordingly, the employment tribunal's conclusions were entirely justified and their finding of racial discrimination would be reinstated.

The appeal was allowed.

Appearances: The employee in person; Adrian Lynch QC and Ijeoma Omambala (DLA Piper Rudnick Gray Cary UK LLP) for the employer.