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Does Your Disciplinary Process Provide For “Overall Fairness”?

Does Your Disciplinary Process Provide For “Overall Fairness”?

A recent case has highlighted the importance the court places on the overall fairness of a disciplinary system even where some ingredients of what would generally be considered important ingredients of a robust procedure, are missing.

In Christopher Cronin v The Greyhound Board of Great Britain Limited, a greyhound trainer, who was licensed under the Greyhound Board of Great Britain’s Rules of Racing, was found to be in breach of the Board’s disciplinary rules following a complaint that he had mistreated a litter of puppies. He was reprimanded by the Disciplinary Committee (“DC”), fined, and ordered to pay significant costs. Although the rules provided for a right of appeal to the Appeal Board, the trainer instead began proceedings in court and argued that the DC had acted contrary to the rules of procedural fairness because they had failed to give reasons.

The English Court of Appeal focused its attention on the ‘ultimate concern’, which was whether the system as a whole provided ‘overall fairness’. Whilst the court agreed with previous decisions concluding that there was no absolute rule that a defect at an original hearing could be cured by appeal proceedings, the Court was more interested in whether an overall fair result was achieved.

The Court concluded that:

  • the trainer had sufficient information to commence an appeal;
  • the trainer had mechanisms available to him under the process, to seek further information, (i.e. reasons); and
  • the overall structure of the Greyhound Board’s disciplinary process provided ‘overall fairness’.

A similar conclusion was reached in the Scottish courts in a case in which we acted for the Scottish Football Association . In this case the court rejected arguments of bias and procedural unfairness in a disciplinary process that led to the suspension of a semi-professional footballer. In this case the matter had been appealed, and the Appeals Tribunal had considered the overall process to have been fair. Although the footballer’s arguments were rejected, the judge nevertheless considered whether the process of the appeal would have cured any unfairness, and he had taken a similar approach to that adopted recently by the Court of Appeal. He tested the disciplinary process through the eyes of a “fair minded and informed observer” and concluded that “looking at the entirety of the process within the SFA, the petitioner had received a fair hearing.”

When drafting any disciplinary rules it is important to pay particular attention to building in overall procedural fairness to the rules. For example, you should:

  • Provide an overall structure of tribunals, including an appeal process and a process for dealing with fast track matters (if that is required), which provides ‘overall fairness’ and structure, tailored to the particular needs of the sport/professional body being regulated;
  • Ensure that functions are clearly defined and where appropriate separated; particularly to avoid any cross over between the function of investigating and pursuing a breach from that of independent decision making through tribunals (the absence of which will lead to an easy challenge); and
  • Build procedural fairness into the process, so that Tribunals require to follow processes which will keep them on the right side of the increasingly complex rules of natural justice.

The investment of resource into creating or fine tuning a disciplinary structure which meets the requirements of ‘overall fairness’ has never been more important. If a challenge ends up in the courts, the cost and risk will be significant. Investing in a sound structure now will likely provide the  the best opportunity to avoid the financial and reputational costs of a  challenge in the courts.

In a previous blog, we considered some of the ingredients of fair decision making. We intend to run a seminar on these issues at the beginning of next year, so look out for further details and we hope to see you there.

Richard Farndale