Employers

For Employers the whole area of Employment Law might well be described as an “obstacle course constructed on a minefield!”

For an Employer, the process of disciplining an Employee can be a personally distressful one and, for many Employers, represents completely unchartered waters.

So, how do you approach the Process of Dealing with a Disciplinary Issue in your workplace?

In short, the answer is carefully and respectfully. Remember that not only will your actions have potential legal consequences but they will also send a signal to other employees as to the type of Employer you are.

If you approach the employee concerned in a fair and respectful manner and keep your emotions in check even if it becomes challenging to do so, you will have done yourself and your business a considerable service.

No matter how you deal with the issue, however, you may still find your Decision challenged in a Legal Setting. With this in mind it is important that you follow a clear road map when dealing with a Disciplinary issue. Caselaw and Tribunal Decision in this area reflect that the following steps are appropriate:-

  • Ensure that the Employee has a copy of his Contract of Employment and of the Company’s Handbook/Disciplinary Rules and Procedures.
  • Make sure that the persons appointed to conduct the Investigation of the issue and the Disciplinary Meetings are fully familiar with the procedures.
  • It is imperative that a thorough Investigation is carried out before any Disciplinary Meeting.
  • Equally important is that there is complete independence between the Investigative and Disciplinary Processes. The person who conducts the Disciplinary Meetings should not have been involved in the Investigative Process.
  • The Employee should be advised in writing as to the reason for the Investigation and it should be made clear that there has been no prejudgment of the issue. The Employee is entitled to know precisely what is being investigated.
  • If the Investigation leads to an initial Disciplinary Meeting the issues to be addressed at the Disciplinary Meeting should be set out fully in writing for the Employee in advance of the Meeting giving the employee adequate notice and time to prepare. The Employee must understand that the meeting is a Disciplinary Meeting.
  • The Employee needs to know (in writing) the potential outcomes of the Disciplinary Meeting in advance.
  • Ensure that the Employee is informed in writing of the right to be accompanied to any Meetings in line with the Company’s Disciplinary Process. Unless provided for in the Disciplinary Process, the Employee is not entitled to be accompanied by a Union Representative or Legal Advisor, however, if Dismissal is a potential outcome it might be wise to allow the Employee to be so accompanied.
  • Before the Disciplinary Meeting, in good time, make sure the Employee is provided with all evidence and documents that will be relied upon at the meeting.
  • Clearly explain the Agenda for the Disciplinary Meeting to the Employee at the outset and invite imput from the Employee.
  • Have a competent note-taker present, ensure that detailed Minutes are kept and copies provided to the Employee subsequently. It is advisable to have the Employee sign a copy of the Minutes and retain for your file.
  • The Employee must be given a full opportunity to provide his or her side of the story, to challenge evidence and to put forward mitigating factors.
  • If any matters arise at the Disciplinary Meeting that require investigation or the Employee raises new issues, adjourn the Meeting and have these issues further investigated.
  • When it ultimately comes to the making of a DECISION, do not rush! Take time and give fair consideration to all that you have heard and read. Weigh up the information. If it is decided to apply a sanction, give due consideration to the potential sanctions and any mitigating factors. REMEMBER, the sanction must be proportionate to the wrongdoing.
  • Arrange a Meeting to deliver the Decision to the Employee. The Decision and reasoning must be provided in writing and the Employee must be informed of the Right to APPEAL and of the relevant procedures.
  • Make sure that any APPEAL is heard by an impartial personal who has not previously been involved in the process.

It is important to understand that, even if the Employee’s conduct may have warranted dismissal, flaws in arriving at the decision may render the decision unfair and entitle the Employee to re-instatement, re-engagement or compensation. The significance of procedure in arriving at a decision cannot be overstated.

HOW DO YOU HANDLE A CLAIM BY AN EMPLOYEE THAT HE OR SHE HAS BEEN WRONGFULLY OR UNFAIRLY DISMISSED?

An Employee whose job is lost in such circumstances will understandably be distressed. There will be those that accept the outcome and endeavour to move on and those who wish to challenge the Decision to dismiss. A Decision may be challenged on its merits and/or on procedural grounds.

Your first real intimation of a Claim is likely to be a written communication from the now ex-employee or from his or her Union Representative or Legal Representative. If you receive this what should you do?

ACCEPT that the matter is now contentious and very likely to end up before a Court, Tribunal or Adjudicator.

DON’T make the mistake of ignoring the communication or believing that the matter will simply go away. DO CONTACT CITADEL immediately for a FIRST CONSULTATION to address how best to approach the matter and prepare for the adversarial process.