Dealing with a Dismissal During the Disciplinary Process

If you’re faced with dealing with a disciplinary but decide you want to dismiss the employee rather than see the process through to the end, you may want to think again. We explore the procedure and your responsibility to ensure fairness at every stage... The Code of Practice promotes best practice and sets out general guidelines on the application of a disciplinary procedure. Procedures are necessary to ensure fairness and consistency in a disciplinary. Although from employment to employment the handling of disciplinary issues will vary considerably depending on a wide variety of factors, it’s important that disciplinaries are handled in accordance with the principles of natural justice and fairness. A flaw in the procedure is a common error which contributes to the award in an Unfair Dismissal claim. A Case for Reference More often than not, employers want to dismiss during the disciplinary hearing because of the nature of the conduct or circumstances. Although it doesn’t seem irrational, this decision could flaw the procedure, as demonstrated in the recent case of A Cleaning Operative -v- A Facility Services Provider (ADJ-00003750) where it was held: “Finally and most seriously, I consider the Sector Director’s decision to dismiss the Complainant at the disciplinary hearing as confirmed in his evidence to be a fundamental procedural flaw and indicative of predetermination without taking any time to consider his responses or whether a lesser form of disciplinary action would be appropriate… I am satisfied that the Respondent has not discharged the onus of showing that the Complainant’s dismissal was fair.” Employee Rights Employees have a right to natural justice, which includes being given the opportunity to fully respond to any allegation, and the right to a fair and impartial determination of the issues concerned. However, this was clearly not the case in the hearing laid out above. If an employee is dismissed during the disciplinary hearing, it’s more than likely a breach of the employer’s own internal policy. Furthermore, the essential elements of a disciplinary procedure are detached. Dismissal during a disciplinary concludes the disciplinary as predetermined and conveys a minatory process for the employee. Employers should ensure they continue to apply the rules of natural justice at each stage of the disciplinary. If you have any questions regarding the issues in this article, please don’t hesitate to contact our 24 Hour Advice Service on 01 855 50 50