The minefield of the dismissal process
by Guest Caroline Browne Managing Director of the (HRP Group)
In my professional life, I have reviewed countless cases were an employer has taken the view that a particular employee, who has been subject to dismissal from a company, for one issue or another, was subject to fair process and therefore should not have any reason to take a case. They are then taken by complete surprise when a Rights Commissioner (RC) or Employment Appeals Tribunal (EAT) letter arrives confirming that a case has been taken against them by the disgruntled employee.
On further investigation of the facts, in many cases, even in cases where dismissal is clearly warranted, it becomes clear that the correct procedure was not followed thereby, exposing the employer to potential sanction, usually in the form of monetary compensation which can be significant (up to two years remuneration) by the relevant authority not to mention to additional time and cost of defending such a case.
There is an onus on employers large and small (excuses that an employer is an SME and cannot be expected to understand or follow the requirements of the law, fall hallow on the ears of Tribunal members) to ensure they follow a clearly established disciplinary process and what is commonly referred to as the “principles of natural justice”.
Apart from cases of constructive dismissal, where an employee terminates their own contract of employment, due to what they believe to be the unreasonable conduct of their employer, all dismissals are presumed to be automatically unfair unless the employer can show substantial grounds to justify it. So, if an employee decides to bring a claim of unfair dismissal, the employer must not only prove that the dismissal was indeed a fair one, but in addition that fair procedures were fully and completely followed to reach the conclusion that dismissal is fair in such circumstances.
Therefore, I set out in this article, a number of key areas that employers should take into account if you are faced which such circumstances in your own workplace.
Firstly, as a general rule, an employee who decides they have been unfairly dismissed must have at least 12 months service to bring a claim. They should bring their claim within 6 months of the dismissal (in limited circumstances this can be extended to 12 months). Submitting a case under the current system (this is currently under review, but that is another article!), is a free and relatively easy procedure for an employee to initiate, so it is imperative to mitigate against such cases by ensuring that your processes stand up to such scrutiny.
There are a number of limited grounds on which a dismissal can be justified by the employer as fair dismissals.
- Competence: this means the ability of the employee to do their job. Continued failure to do their job as set out and expected can be grounds for potential dismissal. However, ensuring the employee is subject to a rigorous Performance improvement Plan (PIP) is essential to ensure that the employer has clearly set out expectations attached to the role and ensured that the employee is well aware of their shortcomings. The employee should also be given reasonable time to improve throughout the PIP process.Capability: This means reasons which may prevent an employee from reasonably carrying out their job such as persistent absenteeism, lateness, chronic illness or injury.
- Qualifications: including cases where the employee has falsified qualifications essential to carrying out their role.
- Redundancy: Where the employee is fairly selected for a valid redundancy.
- Conduct: From misconduct to gross misconduct. Examples include fighting in work, dishonesty or theft.
- Contract based: When fixed term contracts or specific purpose contracts come to a natural end.
- Some other substantial ground: such as contravention of the law. I have attended a number of Employment Appeals Tribunal cases which present good examples such as an employee being found to be fairly dismissed when they falsified their true nationality by providing their employer with a false passport stating they were an EU national and therefore entitled to work in this jurisdiction without a visa when this was not the case or a truck driver who was found to have been fairly dismissal as a consequence of losing their drivers license for a significant period and one interesting case where the employee was dismissed when it was discovered that they had been sent to prison for 12 months and they tried to hide this fact by saying there were on sick leave!
Stages in the process
In most disciplinary cases, the following procedure is used:
- The Investigation. During this phase someone will be assigned to gather the facts of the case and establish if there is merit in proceeding to a full disciplinary hearing. Once this information is gathered, the investigating party should pass their outcome onto whoever is going to handle the next stage in the process. The investigator should then bow out of the process at this stage and not get involved in the next stage to ensure complete fairness and separation of steps in the process.
- The Disciplinary: if it is decided that there is sufficient evidence based on the outcomes of the investigation, the disciplinary procedure should be initiated by another person from within the company who should oversee this process.
The sanctions that can come out of this stage include:
- An appropriate warning (verbal to final depending on the issue).
- Another outcome such as retraining.
- The Appeal: the employee should always be offered the right to appeal the outcome of the disciplinary procedure. The personal conducting the appeal should approach the case “with clean hands” so should have had no part in the case prior to the appeal process. In most cases, an appeal will be open to the employee for up to 5 days following the outcome of the disciplinary procedure after which time the window for appeal will be closed.
- Suspension: Depending on the circumstances of the case, it may be prudent to suspend the employee with full pay pending investigation/disciplinary outcome if it is felt important to remove the employee from the workplace for the duration of the process.
- Paperwork and notes: at each stage in the process, it is imperative that comprehensive notes are kept. In addition, letters setting out and confirming the process and outcomes should be sent to the employee to ensure full transparency and fairness. The notes should be written in the context and understanding that the employee may request to review them. Indeed, they may also be required as part of a defence in an EAT case down the line.
The Principles of Natural Justice
A further consideration is that any disciplinary procedure must comply with what are referred to as the “principles of natural justice” which are enshrined, but not specified, in the Irish constitution. In addition, the requirement for clear procedures are set out in part 3 of S.I. NO. 146 of 2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.
Along with the set disciplinary procedures, these principles should be the corner stone of any disciplinary process.
- The employee should be presented with full facts of the case against them. This is normally set out during the formal investigation/disciplinary procedures and there is an opportunity for the employee to review and understand them. They should also be set out in writing prior to the hearing to allow the employee to fully prepare for the meeting and to present their defence.
- The employee should be allowed a recognised support person (or trade union representative, in the case of unionised environments) to attend meetings with them throughout the process.
- They should be given the right of reply/to state their case and give their version of events for due consideration.
- The employer should only form a judgement after having considered all the facts and not rush into an outcome for example within minutes of hearing the employees’ case.
- The sanction must be appropriate to the charge. Consideration should be given to whether dismissal is an appropriate outcome? would a warning be sufficient? if so at what level? verbal to final written? what have we done in other previous similar cases? Does the employee have an otherwise “clean” record? Etc.
Importance of written disciplinary procedure
It is therefore essential that an employer has a formal disciplinary procedure in place (a copy of such should be given to the employee at the start of any process) in additional this can easily be found by the employee in their handbook or through an intranet HR system. All employees should receive this by law as part of their terms and conditions of employment upon commencement.
This procedure is your roadmap, as it sets out the key procedures that will be followed and ensures fairness and consistency in its application.
Even in cases where the grounds for fair dismissal, as set out above, are completely met, the employee must still be subject to “due process” which should be closely followed.
Having set out some of the major considerations employers need to take account of when faced with a potential dismissal in this article, finally it is important to note that it is essential that managers (or whoever may be responsible for initiating and overseeing such a process) are fully aware of and briefed on the company disciplinary procedures, along with some of the core principles I have set out in this article, to ensure you stay on the right side of any potential Tribunal claim and indeed perhaps ensuring you don’t end up there at all!
This article is original content and was written exclusively for CareerWise Recruitment by Caroline Browne Managing Director of the HRP Group, a leading Human Resources consultancy practice www.hrpgroup.ie.