Navigating disciplinary procedure

A failure to follow correct disciplinary procedures, as set out in law under the Industrial Relations Act, can prove costly for any employer. Caroline McEnery of The HR Suite outlines how to avoid the pitfalls and ensure all employees receive a fair hearing

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Advisor

Ensuring that you, as an employer or manager, are compliant in terms of employment law, particularly in the area of the disciplinary procedure, is absolutely essential.

The disciplinary procedure is designed to provide an objective and consistent process to address issues of misconduct, capability, competence or qualifications, or failure to meet company standards relating to behaviour or performance.

Management will normally adopt an approach involving coaching and advice in relation to minor infringements, and will try to find positive means of resolving problems so that the morale and potential of the individual will not be damaged. However, in certain situations it will be necessary for management to proceed with a formal disciplinary investigation.  Disciplinary hearings should always be carried out away from the immediate workplace and in a suitable private area.

Right to a fair hearing

In all cases of discipline, the employee will have the right to a fair hearing. The matter(s) will be fully and fairly investigated; they will be informed of the reason for the discipline and have a full right to reply. The company will always strive to be balanced, not to pre-judge and to apply discipline in a consistent and honest manner.

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.

A disciplinary and grievance procedure should make it easier for you, the employer, to manage the situation as it ensures that the process is standardised, employees are aware of the process, and know what to expect when involved in a disciplinary investigation.

Formal procedure

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.

Although implementing the disciplinary procedure can seem 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 brought before third parties are lost due to a failure to follow procedures.

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.

The employer’s own disciplinary procedures will first be looked at as these may be more extensive than the procedures outlined in the code of practice.

The rules of natural justice

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

It is our advice that prior to commencement of the disciplinary process, the managers of each stage should be put in place. This is helpful in establishing order to the disciplinary process prior to communicating with the employee.

For example, in some cases this may be the assistant manager acting as the investigation manager; store manager acting as the outcome manager; or the managing director acting as the appeal manager.

Note-takers can accompany the managers at each stage. There is no onus on the employee to have a separate note-taker at each stage. The reasoning behind this is that the note-taker is not involved in the meeting and is merely in attendance to provide a note-taking service.

Separation of process

The separation of process extends to the correspondence, which is also issued through the disciplinary process. The invitation to the disciplinary investigation meeting will be drafted by the investigation manager. This manager may also be involved in the suspension of the employee in cases of suspected gross misconduct. They will interview witnesses, finalise the investigation and draft a summary report, to be issued to both the employee and the outcome manager. The invitation to the disciplinary outcome meeting, where the employee has an opportunity to respond to the summary report and include any other comments, will be drafted by the outcome manager. The sanction will be issued by the outcome manager and will include the process of appeal and whom the employee can address their appeal to. The appeal meeting and the appeal decision will be attended by the appeal manager.

It is important to note that in smaller organisations, the separation of process must still be adhered to. Case law has indicated that the separation of process is crucial to ensuring fair procedures within any organisation, and no leeway is given to smaller organisations for failing to comply with this. In these circumstances, the smaller organisation is advised to ensure that the disciplinary policy includes a reference regarding the company reserving the right to avail of the services of an experienced third party in conducting all or part of the disciplinary process.

CONTACT THE HR SUITE: For advice on employment law or other HR-related issues for employers, contact the team at the HR Suite on 0667102887 or email info@thehrsuiteonline.com to discuss your requirements.

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