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Disciplinary investigations are becoming a minefield for employers, particularly where dismissal is a real likelihood. To stand over any dismissal, an employer must have both: a good substantive reason for that dismissal and followed fair procedures in reaching the decision to dismiss Recent legal decisions confirm yet again that employers can incur legal liability where they have failed to follow fair procedures, even where the underlying incident is in principle a “dismissible” offence. If an employee has not been afforded due process there will be strong grounds for an unfair dismissal claim. A Code of Practice on Disciplinary Procedures has been published by the Labour Relations Commission and can be found at www.lrc.ie . That Code is a benchmark for employers. However every case is different and can have its own unique requirements and the Code may have to be adapted where appropriate. There are some general ground rules. While by no means exhaustive, following these will go a long way to ensuring fair procedures have been applied. Not observing any one of these rules could be enough to trip up the employer and leave it exposed to a dismissal claim. Take Your Time! One of the most common failings in any investigation is that the employer rushes its decision. The old adage “act in haste, repent at leisure” applies. In the aftermath of disciplinary incidents, the natural inclination can be to act quickly and decisively. However, taking decisions without following a patient, formal process can be fatal to defending any future claim. Employees should be given adequate notice of disciplinary meetings, which may often require a number of days. Furthermore, if an employee seeks more time to prepare their case either before or during a disciplinary meeting, this should generally be granted. Finally, on completion of the investigation, excessively quick deliberations should be avoided. Employers should reserve their decision in order to carefully consider all the evidence gathered. Allow Employee representation When commencing investigations, employees should be advised of their right to be represented during the process, particularly where there is a real risk of dismissal. Traditionally the option was to have a work colleague present. However current best practice is to also allow union officials or lawyers (at the employee’s cost) represent employees. This will stand to the employer in defending any future claim. This should be confirmed in writing at the beginning of the process. Attendance by union representatives/lawyers at a disciplinary meeting should not intimidate employers. The critical thing is that the employer remain in control of the process and, within reason, not allow the representative to dictate how matters proceed. Allow Employees to give their side of the story It is essential that the employee under investigation is provided with a full opportunity to present their version of events. Accordingly they must be provided with all the relevant information on the allegations against them in order to prepare their case. Copies of witness statements, complaints and sometimes reports should be provided to the employee. In cases where the investigation turns on the evidence of a witness/complainant, the employee under investigation may seek the right to face his accuser and question that person. This can occasionally lead to complications. In bullying and harassment investigations, for example, the employer will have to balance the rights of the accused against its duty to the person alleging harassment. In essence, an employer must seek the employee’s informed response to the allegations, consider that response carefully, and be seen to do so. Provide for an Appeal For anyone other than very small scale employers, an appeal procedure should exist. In particular, someone not previously involved in conducting the disciplinary procedure should be selected to hear any appeal by the employee from the initial disciplinary decision. This should be borne in mind by the employer when appointing the person to conduct the initial investigation. The appeal should be before at least an equivalent or ideally a higher level of management. Occasionally managers from related branches or elsewhere in the employer’s group may need to step in to handle appeals. Of course, for smaller scale employers it may be difficult to provide for an appeal, but where at all possible that option should be provided. Don’t prejudge! A disciplinary investigation should be conducted as a fact finding/information gathering exercise. An employer should be at pains to ensure that it says and does nothing during the investigation process to suggest it has already made its mind up. It is essential to maintain an open mind, both in reality and in terms of perception. The employee should be informed that no decision will be made until all the relevant information has been considered by the employer. Loose comments at meetings must be avoided and correspondence during the process should avoid suggesting that any predetermination has taken place. Employers can be tripped up by procedural requirements, but a measured approach as described above can go a long way to minimising risks.

 

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