A recent case1 from the Employment Appeals Tribunal (the EAT) highlights the importance for employers of investigating any allegation of misconduct without undue delay. Failure to do so may result in the delay being held to amount to an unfair process. The case serves as a reminder of the paramount importance of fair procedures being afforded to employees.
The claimant in the case was a senior manager in the National Car Testing Centre. The respondent employer had a detailed Code of Ethics/Integrity Policy. Integrity was central to the values of the respondent's business. An example of the detail of the Code was that it was forbidden for an employee to test one's own vehicle or one belonging to family members. In March 2012 the claimant tested his own vehicle. He paid for this test and also alleged that he was never informed that testing his own vehicle would result in dismissal.
In June 2013 (approx.14 months after the incident) he was called to an investigative meeting. There was no explanation as to why the matter was being investigated over a year after it happened. In the intervening period the claimant continued to work and no further incidents arose. A disciplinary meeting followed in August 2013 on foot of which he was suspended with pay pending a final determination. In September he was informed that his employment was terminated.
The EAT had to determine whether the action of the claimant was of a seriousness to justify dismissal and whether the respondent had acted in a manner that was not arbitrary, unfair or irrational. It acknowledged that the incident had the potential to embarrass the respondent if it came to light and accordingly it was justified in taking the matter seriously. However, for over a year, the respondent remained either unaware or overlooked the incident. The EAT was of the view that this delay undermined the decision to dismiss the claimant and ultimately amounted to an unfair process. Taking account of the claimant's contribution to his dismissal, the EAT awarded €35,000 in compensation.
This case is a clear example of an employer being tripped up by a basic procedural flaw. Often when we refer to the right to fair procedures in the investigation and disciplinary context concepts such as the right to be informed of the charges against you; the right to be accompanied (as distinct from legally represented) to meetings; and the right to respond to any charges put to you, spring to mind. This case reminds employers of a basic component of fair procedures – that any misconduct should be investigated without undue delay. Failure to do so may make it difficult for an employer to remedy its hand in relation to any subsequent substantive action it takes.