Fair Procedures in Disciplinary Hearings

Disciplinary hearings and grievance procedure compliance is essential for employers and managers within employment law. It is important to ensure that the necessary procedures that is place, and that it has been issued to and signed off by all employees, in order to guarantee that you can correctly manage disciplinary issues in the workplace.

Current employment law legislation provides that all employees should have received and signed off on the company disciplinary and grievance procedure within 28 days of commencement of employment.

Having a formal procedure in place will remove any ambiguity or accusations of unfair treatment as, when correctly applied, a disciplinary and grievance procedure allows for all employees to receive the same treatment if a disciplinary issue arises.

Fair Procedures

Section 6 (7) of the Unfair Dismissal Act states that in determining whether the dismissal is fair or unfair it has regard to:

(A) The reasonableness or otherwise of the conduct of the employer in relation to the dismissal, and

(B) the extent, if any, of the compliance or failure in comply with the employer in relation to the employee to the disciplinary procedures or the provisions of the Code of Practice on Disciplinary and Grievance Procedures (Industrial Relations Act 1990) (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.

As the employers own disciplinary procedures may be more extensive than the procedures in the Code of Practice, it will be looked to first.

The Rules of Natural Justice for Disciplinary Hearings

Employers who commence disciplinary proceedings against their employees must follow the rules of natural justice. The employee must:

  • Be made fully aware of any formal allegation made against them
  • Be afforded the opportunity to reply to any formal allegation made against them
  • Be afforded the right to representation throughout the disciplinary process
  • Receive the right to a full and objective investigation of the allegation
  • Receive the right of appeal

Fair Procedures in Disciplinary Hearings Legal Case

Recently, the Employment Appeals Tribunal criticised Dunnes Stores for disregarding the rules of natural justice in the manner they conducted their disciplinary process as they did not provide a checkout operator with an appeal hearing despite her request for one, awarding her €26,000 for being unfairly dismissed. This highlights the importance of adhering to the rules of natural justice.

In another recent case an employee was awarded €1,500 for the unfair dismissal, and a further €2,663 in lieu of four weeks’ minimum notice.

The Tribunal found that the investigative and disciplinary processes in the case “were fundamentally flawed to the extent that the Tribunal considers and holds the claimant to have been unfairly dismissed.” The exclusion of the employee’s union representative and the denial to him of his representative of choice during the process was unfair and a fundamental breach of his contractual entitlements. The Tribunal could not disregard these fundamental flaws, particularly as the firm had the advice of an external consultant in employment procedures available to it.

Grievances During the Disciplinary Process

Often, during the course of an investigation or disciplinary process, an employee raises a grievance either in relation to the process itself or in relation to some other related or unrelated matter. In this scenario, the first step is for employers to look to their grievance and disciplinary procedure for guidance regarding the policy and custom and practice approach to this issue.

While the UK Code of Practice does not bind Irish employers, in the absence of any Irish legislative or case law guidance on the subject, t is helpful to look at the UK position for some guidance on best practice. The ACAS Code of Practice 2009 provides some guidance on what to do in a similar situation in Ireland. Section 46 states:

“Overlapping grievance and disciplinary cases…where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently”.

It is clear that there is no legal requirement to suspend a disciplinary process if a grievance has been raised.

However, where the grievance relates to the process of the disciplinary procedure, it could threaten the integrity of the disciplinary procedure. The employer should consider whether the disciplinary procedure should be suspended for a short period of time while the grievance is considered.

The 2009 ACAS Guide suggests that a grievance raised in respect of fair procedures may require an employer to consider suspending the disciplinary process where:

-The grievance raised relates to a conflict of interest which the manager conducting the disciplinary meeting allegedly has;
-The grievance alleges bias in the conduct of the disciplinary meeting;
-There is possible discrimination.

Applying the UK best practice guidelines to Ireland, the following is the general recommended course of action where an employee raises a grievance during the disciplinary procedure:

  • If the grievance relates to the subject matter of ongoing disciplinary proceedings, the employee could be advised that their complaint should be raised, and the issues could be investigated within the framework of that investigation, provided the grievance in no way relates to the process of the investigation. In such circumstances, the investigation report could make findings on both the grievance and the disciplinary procedures.
  • If the grievance relates to procedure used during the process, it may not be appropriate to suspend the disciplinary procedure pending a grievance investigation, due to the need to ensure that fair procedure is followed.
  •  If the grievance does not relate to the subject matter of the disciplinary proceedings, the employee should be informed that his grievance will be investigated in accordance with the employer’s grievance procedure. This can run parallel to the disciplinary procedure. The grievance procedure should be dealt with by a party who has no involvement with the disciplinary procedures. The employer can continue with the investigation, and proceed with a grievance process in parallel.

It is essential for an employer to carefully review the wording of policies in relation to grievance and disciplinary procedures to ensure that the wording in no way limits their ability to exercise discretion in a reasonable manner, e.g. a standstill clause which requires an employer to adjourn any disciplinary proceedings until the outcome of the grievance and, if necessary, the appeal from the grievance decision.

Employers often lose Unfair Dismissal cases because fair procedures and the rules of natural justice were not adhered to, usually because advice from experienced professionals was not obtained before the dismissal procedure was put in place.

NOTE: This article is for information purposes only; specific legal advice should be taken before relying on information in this article.

If you are an employer considering dismissing an employee, or if you are an employee and need assistance through a disciplinary process for disciplinary Hearing, we would be delighted to assist you; contact us at 021- 425184 or via our contact form.

HALPIN & Co. SOLICITORS | Practical Experience, Trusted Advice