The majority of unfair dismissal cases are lost on not following the correct disciplinary procedure. As such, it is crucial that the whole disciplinary process is followed as per employee handbook or The Code of Practice for Disciplinary Procedures.
Investigation
When an issue that amounts to gross misconduct arises the investigation should be conducted as soon as reasonably possible. Delays to the process can weaken the safety of dismissing an employee and increase the risk of an unfair dismissal claim. The employee does not have to be formally invited to the investigation meeting and he/she is not entitled to representation once the meeting remains a fact finding meeting. As the investigation is a fact finding process, it is very important to ensure the correct questions are asked in the meeting. We should not advise the employee that: “This behaviour is gross misconduct”, “We are disappointed with you”, etc. If the investigation is conducted in the same manner of disciplinary it would be seen as a procedural flaw. Minutes of the meeting should be taken and signed.
Suspension
If you are dealing with a case of gross misconduct, the employee should be placed on suspension as soon as the allegation comes to light. Suspension on full pay is always advisable, and should not be used as a measure of punishing employee as per Bank of Ireland -v- Reilly [2015] IEHC 241, where one of the employees was placed on suspension and dismissed for act of gross misconduct whereas the other employee was not disciplined at all. A letter should be issued to the employee to confirm suspension.
It is important to remember that the person who held the investigation should not be the person who will hold the disciplinary or appeal. Moreover, the person who was taking minutes during any of the meetings, should not be a person conducting either disciplinary or appeal meeting.
Disciplinary
Employees are entitled to at least 24 hours’ notice of the disciplinary hearing in writing. It is important to clearly outline the allegation of gross misconduct and attach all supporting evidence that you intend to refer to in the hearing. Employees are entitled to bring a fellow employee or a trade union representative to the hearing for support. If you are posting the invite letter ensure to use both registered and ordinary post so that you have a record of the letter being sent.
While at the hearing, allegations should be discussed one at a time and detailed minutes should be taken and signed by all parties. No decision should be made at this meeting and no indication about possible outcome should be given.
After the disciplinary, the disciplinary officer should take time to review all information and consider the outcome. The outcome should be issued within a reasonable time frame after the hearing.
Employees have the right to appeal the outcome of the disciplinary, generally within 5 working days.
Following a fair disciplinary procedure will greatly reduce the risk of an Unfair Dismissal Claim.
If you have any queries in respect of the above article then please contact our 24 Hour Advice Service on 01 855 50 50.
