Saturday 15 December 2018

How to I put the correct legal framework in place to deal with disciplinary problems?

Bosses invariably lose cases if fair procedures and natural justice rules are not adhered to
Bosses invariably lose cases if fair procedures and natural justice rules are not adhered to

Caroline McEnery

Q I have an issue with one of my employees and I want to ensure that disciplinary action is conducted fairly and in line with the legislation. How do I proceed?

A Ensuring that you, as an employer or manager, are compliant in terms of employment law, and particularly in that area of disciplinary and grievance procedure, is essential.

The disciplinary procedure policy

The disciplinary procedure is designed to provide an objective and consistent process to address issues of misconduct, capability, competence or qualifications, or failure to meet company standards relating to behaviour or performance; this is the last resort though.

Ideally, you will try to have coaching and mentoring chats with the employee and consider retraining, etc. However, if the disciplinary action still needs to proceed as a first step it is important to ensure that you have a disciplinary procedure in place and that it has been issued to and signed off by all employees.

Although implementing the disciplinary procedure can seem to be tedious and time consuming, failure to follow the process can be a costly decision. Indeed, the majority of cases are lost due to a failure to follow procedures.

Fair Procedures:

Section 6 (7) of the Unfair Dismissal Act states that in determining whether the dismissal is fair or unfair it has regard to, among other things, the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.

The employer's own disciplinary procedures will first be looked at as it may be more extensive than the procedures outlined in the code of practice.

The rules of natural justice

Employers who commence disciplinary proceedings against their employees must ensure that they follow the rules of natural justice and their own company procedure. The rules of natural justice require:

An employee is made fully aware of any formal allegation made against them;

  • They are afforded the opportunity to reply to any formal allegation made against them;
  • They are afforded the right to representation throughout the disciplinary process;
  • They receive the right to a full and objective investigation of the allegation;
  • They receive the right of appeal;

The right to receive a fair and impartial investigation - how do I implement it in my organisation?:

Prior to commencement of the disciplinary process the managers of each stage should be identified. The process will include an investigation manager, an outcome manager and an appeals manager.

Note-takers can accompany the managers at each stage. The note-taker is not involved in the meeting and is merely in attendance to provide a note-taking service and so the same note-taker can be used in all meetings. The separation of process extends to the correspondence which is issued through the disciplinary process also.

It is important to note that in smaller organisations the separation of process must still be adhered to. Case law has indicated this the separation of process is key to ensuring fair procedures within any organisations and no leeway is given to smaller organisations for failing to comply with this.

In these circumstances the smaller organisation is advised to ensure that the disciplinary policy includes a reference regarding the company reserving the right to avail of the services of a third party in conducting all or part of the disciplinary process.

Employers invariably lose unfair dismissal cases because fair procedures and the rules of natural justice were not adhered to.

Caroline McEnery, managing director of The HR Suite, is a member of the Low Pay Commission and is an adjudicator in the Work Place Relations Commission. She is also author of The Art of Asking the Right Questions

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