Many employers have lost what they believed were straightforward dismissal cases because they failed to follow fair procedures in reaching their decision.
- Principles of fair procedures
- Approach taken by The High Court
- Importance of a clear disciplinary policy
Time after time, Irish courts and tribunals have deemed the dismissal of employees who were guilty of misconduct, and even gross misconduct, to be unfair and have awarded compensation to such employees. Why? Because their employers have failed to follow fair procedures in reaching the decision to dismiss.
What many employers forget is that having a lawful reason to dismiss an employee is not enough. Before effecting a dismissal, it is vital that an employer follows a fair and reasonable procedure. Failure to do so can render the employer liable to pay large sums in compensation and/or to reinstate the employee, even where a valid reason existed for the dismissal. Worse still, arguably, is the prospect of an employee securing a High Court injunction to restrain a possibly unfair procedure.
But what does ‘fair procedures’ mean? An employee’s right to fair procedures stems from both the Irish constitution and the employee’s contract of employment. Unfortunately, the concept of fair procedures is not a static one and what is required will depend on the particular circumstances in any case. There is no ‘one size fits all’ procedure that can be adopted by employers when effecting a disciplinary process. The seriousness of what is at stake, for example, or the seniority of the employee may impact on the extent of the procedure required. At a very basic level, the principles of fair procedure include:
- The right of an accused employee to be informed of the allegations against him or her
- The right to be given an opportunity to answer those allegations and make submissions
- The right to avail of representation, and
- The right to a fair and impartial determination of the issues being investigated.
In considering the fairness of a disciplinary procedure, the starting point will be the relevant terms of an employer’s policy or handbook. If the terms are fair, it will usually be sufficient for an employer to show that it has complied with this procedure. The courts, in general, do not like to intervene in the course of a disciplinary process unless a clear case has been made that there is a serious risk of irreparable harm to the employee if the process is permitted to continue.
While underlining the importance of fair procedures, a recent High Court decision has highlighted that a practical approach will be adopted by the courts in their application. The courts have acknowledged that an employer conducting a disciplinary hearing cannot be held to the same standards as would apply in criminal proceedings. The courts have also recognised that the failure to conduct a perfect procedure will not necessarily render any disciplinary decision unfair as long as the process could reasonably be considered fair in the circumstances and any departure from procedure does not impact on the overall fairness of the result.
Inevitably, most employers will at some point face a challenge to their disciplinary procedures by a disgruntled employee who, rightly or wrongly, feels that they have been wronged. To mitigate against the impact of such challenges, employers should ensure that they have a clear and concise disciplinary policy that can be followed without ambiguity. Employers should also ensure that the policy has been circulated to all employees because, when issues arise, it often transpires that there is no evidence that an employee has received or been made aware of the employer’s policies. Employers should, as a matter of practice, ensure that they hold on file a signed acknowledgement from each employee that they have received and read the employer’s current disciplinary policy.
Experience shows that what are often highly emotive and personal disciplinary proceedings regularly throw up unforeseen issues, such as allegations of bullying, pre-judgment and so on, so it is advisable to take external, objective legal advice as soon as possible in the process. Many cases are lost from the outset due to poorly worded policies or allegations that are not framed in the appropriate manner.