Legal

What can employers learn from the Owen Paterson scandal?

1 Dec 2021 By Raoul Parekh and Ben Smith

Raoul Parekh and Ben Smith explore the similarities – and differences – between the MP’s treatment and a usual employee disciplinary investigation

Former North Shropshire MP Owen Paterson has made headlines recently when he was found to have breached the Code of Conduct for MPs. The government’s defence of his actions led to a political scandal and arguably the loss of the Conservative party’s poll lead, but there are also useful lessons for employers and HR professionals.

The broad outline of the parliamentary process will be familiar: there was an investigation manager (the parliamentary commissioner for standards), an investigation, a disciplinary panel (the Commons Standards Committee), and a disciplinary sanction (a 30-day suspension from Parliament). 

Despite this, criticisms were made that the process was unfair, with some saying that he had been treated worse than an employee (MPs, of course, are not employees) and that principles of natural justice had been breached. But does that hold up to scrutiny? 

Not really. Comparing the parliamentary process with the Acas Code of Practice and other employment requirements, it’s clear that in many ways the parliamentary process was just as favourable – if not more favourable – than what an employee might expect. Here’s why:

Time for response

Owen Paterson was given a lengthy explanation of the allegations and had multiple opportunities over a significant period of time to respond to them and provide his evidence (including evidence from 17 witnesses). 

By contrast, generally an employee will first become aware of the allegations against them at an initial investigation meeting and would be expected to respond in the moment. An employee would not necessarily have the right to call their own witness evidence – the investigation manager would decide who they needed to speak to and what evidence was needed. 

Legal representation

Owen Paterson’s legal team actively participated throughout the commissioner’s investigation and were present at the committee hearing, making an opening statement on his behalf. 

By contrast, an employee attending an investigation meeting or a disciplinary hearing has no right to legal representation. While employees have a statutory right to be accompanied at a disciplinary hearing, (but not investigation meetings) this permits only a fellow worker or a trade union representative, not a lawyer. 

Intervention from above

The government initially attempted to pause the disciplinary process in order to change the process for investigating MPs. Needless to say, no normal employee can expect intervention from the board of directors to change the rules of engagement following the outcome of an independent process. 

Right of appeal

One area where the parliamentary process would not pass muster in employment is that there was no right of appeal. Employees are required to have a right of appeal against a formal disciplinary decision. 

However, the recommendation of the committee needed to be approved by a vote of the House of Commons, so there was another avenue for Owen Paterson to present his case (and opportunity to vote on it himself) – which employees would not have.  

Owen Paterson was unrepentant following the findings of the commissioner and the committee, saying in interviews he “wouldn’t hesitate to do it again”. Faced with an employee taking a similar position, many employers would consider this lack of reflection to be a further cause for concern and potentially to justify a harsher sanction. 

The key point for employers is that interfering with independent disciplinary processes – or changing the rules after the event – is generally a bad idea. Here, what would otherwise have been a minor story for a few days has spiralled into weeks of negative headlines. 

Doing the same in an employment context can lead to resentment among staff, a perception that wrongdoing is tolerated, and potentially unfair dismissal or discrimination claims if disciplinary procedures are not applied consistently. 

Raoul Parekh is a partner and Ben Smith an associate at GQ|Littler

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