Last year over 1,000 people brought claims to the Equality Tribunal, 85% of which related to alleged discrimination in the workplace. As Jennifer Clarke explains, the absence of fair procedures and non-adherence to the principles of natural justice can seriously affect the outcome of any claim against an employer.
Last year, the number of work-related discrimination cases brought before the Equality Tribunal rose by 28%. More than four out of ten cases were brought on the grounds of race. And claims of alleged age discrimination in the work place have doubled year on year.
Since the Equality Tribunal was established in 1999, the number of cases of alleged discrimination has grown annually from 102 in 2000 to 998 in 2008. In the last nine years, some 22,000 claims have been brought. Increasingly, employers are faced with complex and costly claims giving rise to a number of problems, including:
- The compensation that might be awarded,
- The legal costs incurred in defending a claim,
- The time involved in dealing with the claim,
- The damage to corporate reputation, and
- The possibility of similar claims emerging.
One cannot overstate the importance of employers complying with their obligations under the Employment Equality Acts 1998-2008 and the various associated codes of practice. Further, it is essential that employers are fully aware of the need to adhere to fair procedures when dealing with any grievance or complaint brought by an employee against a co-worker or a member of management.
Where an employer acts in an unfair manner, the dismissal itself will normally be held to be unfair even where substantial grounds exist to justify it. It is therefore essential that employers adhere to the principles of natural and constitutional justice and ensure that an employee is afforded the opportunity to defend himself and tell his side of the story.
The following are some of the procedural issues that should be considered by an employer before proceeding to dismiss an employee:
- Whether a fair warning was given: an employee should be put on notice of the complaint. For example, where the standard of an employee's work or behaviour falls below the standard the employer deems acceptable, the employee should be made aware of this.
- Whether a reasonable and full investigation was appropriate: where grievance procedures exist, they must be strictly followed. Where no procedures exist, employers should be aware of the ministerial-approved Industrial Relations Act, 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order, 2000 and comply with it.
- Whether the employer had reasonable grounds for believing that the allegations against the employee were true and accurate.
- Whether the employee was given notice of and the opportunity to respond to an allegation made against him and, in particular, the opportunity to cross- examine incriminating witnesses and have access to their written statements.
- Whether an employee ought to be allowed to be accompanied by a representative at a disciplinary hearing. It is normally a good idea for an employer to allow employee representation. As to whether the employer is obliged to inform the employee of the right to representation, in circumstances where allegations of wrongdoing are to be put to the claimant at a meeting, it would be prudent for the employer to advise the employee of his right to be accompanied by a representative.
The importance of following fair procedures cannot be overstated. There is substantial case law where substantial grounds existed to dismiss an employee but, because fair procedures were not followed, a significant award of compensation was made. The absence of fair procedures and non-adherence to the principles of natural justice can seriously affect the outcome of a claim against an employer.
Having regard to the level of compensation that may be awarded against an employer, it makes commercial sense to ensure that employers are fully aware of their duties and obligations to employees and thereby seek to minimise potential exposure to costly claims.