Employment law update: Disciplinary procedure

Caroline McEnery, managing director of The HR Suite writes about the importance of having procedures in place which can save you from unfortunate consequences when an employee has to be dismissed  

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Ensuring that you, as an employer or manager, are compliant in terms of employment law and particularly in the area of disciplinary and grievance procedure is absolutely essential. It is very important to ensure that you not only have the necessary procedure in place but that it has been issued to and signed off by all employees in order to guarantee that you are in a position to correctly manage disciplinary issues in the workplace.

In line with current employment legislation, all employees should have received and signed off on the company disciplinary and grievance procedure within 28 days of commencement of employment.

Disciplinary issues can be very difficult to deal with especially in environments where employees and management work closely on a day to day basis such as in grocery retail. A disciplinary and grievance procedure will make it easier for the employer to manage the situation; it ensures that the employee is aware of the process and knows what to expect when involved in a disciplinary investigation. Having a formal procedure in place, which is issued to all staff members 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.

The rules of natural justice

The procedure you implement should follow the rules of natural justice – follow the procedures!

Employers who commence disciplinary proceedings against their employees must ensure that they follow the rules of natural justice. The rules of natural justice require:

• An employee is made fully aware of any formal allegation made against them
• They are afforded the opportunity to reply to any formal allegation made against them
• They are afforded the right to representation throughout the disciplinary process
• They receive the right to a full and objective investigation of the allegation
• They receive the right of appeal

Examples of unfair dismissal

The Employment Appeals Tribunal (EAT) frequently examines the importance of adopting fair procedures and the principles of natural justice prior to taking any action against an employee.

Recently, the Employment Appeals Tribunal (EAT) awarded a Dunnes Stores checkout operator €26,000 for being unfairly dismissed after claiming unused Value Club Card points by customers on her own card. The EAT criticised Dunnes Stores for disregarding the rules of natural justice in the manner as they did not provide her with an appeal hearing despite her request for one. This case highlights the importance of adhering to and following the rules of natural justice. Although implementing the disciplinary procedure can seem to be tedious and time consuming, it is clear that failure to follow the process is a costly decision that is easily avoidable. Indeed the majority of cases at third parties are lost due to a failure to follow procedures.

Another example of the cost of failing to use correct procedures can be seen in the case of a footwear company based in Co. Kildare which had summarily dismissed an employee who had set up a similar business in competition with his employer. The EAT confirmed that the employee had set up his own business which had a website advertising the services he provided.

The tribunal confirmed that it was satisfied that the employee’s behaviour provided grounds for his dismissal. However, it was equally satisfied that the company did not use any fair procedures in the manner with which the employee was dismissed. The tribunal confirmed that because of the summary nature of his dismissal, the employee was, in effect, unfairly dismissed by the company and the employee was awarded €3,000 in compensation.

In another recent case the EAT ruled that a worker who was involved in an incident where a banger exploded at work, injuring a number of colleagues, was unfairly dismissed. The employee in question was awarded €1,500 for the unfair dismissal and a further €2,663 in lieu of four weeks’ minimum notice.

The EAT stated that the employee admitted responsibility from the outset but claimed that there had been nothing wilful in his actions. The employee had not appreciated the potentially serious consequences of his actions which he appeared to categorise as “tomfoolery” which was, he alleged, an established culture in the workplace.

SIPTU represented the employee at the hearing and in its ruling, 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 tribunal states that it cannot disregard these fundamental flaws particularly in a situation where the firm had the advices of an external consultant in employment procedures available to it.

The tribunal stated that it believed that 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.

For advice on employment law or other HR related issues for employers, contact Una the head of the Employment Law Department or any of her team at The HR Suite on 066 7102887 to discuss your requirements.

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