Unfair dismissal claims made up 31% of all claims to the Employment Appeals Tribunal in 2012.
And of the cases which were won by employees against employers, roughly 80% were lost on the grounds of unfair procedures.
Many employers fail to understand that regardless of how bad the performance of the employee, regardless of the alleged misconduct or whatever other reason for the dismissal, if the employer fails to give the employee fair play and natural justice then the employee will win his case.
What is natural justice and fair procedures in this context?
In short, basic fair play.
This would include the right to respond to any allegations or complaints, the right to have a colleague or union representative accompany the employee to any disciplinary hearing, the right to appeal any sanction imposed, the right to have the sanction removed from the record after a reasonable period of time (generally 6 months).
Here is a step by step disciplinary procedure. This should help ensure that fair procedures and natural justice is afforded to the employee.
The average payout for a successful unfair dismissal in 2012 was over 18,000 euros. If the employer also considers the legal costs of defending employment related claims, ensuring fair procedures in disciplinary proceedings is essential.
Statutory instrument 146/2000 deals with grievance and disciplinary procedures, is short, and is well worth a read. And this post will also give you the basics of what you need to know about disciplinary procedures in the workplace.
However the key mistake you need to avoid is thinking that you can take shortcuts with the procedures to be adopted. Or thinking that “misconduct” or “gross misconduct” allows you to dismiss instantly.
Because there are difficulties in defining “gross misconduct” as shown by many of the decisions handed down by the Employment Appeals Tribunal or Rights Commissioner service.
For example the Dunnes Stores department manager who was dismissed for misconduct-she had set up a side business selling goods to colleagues-or the public transport employee who spat at a passenger in a dispute-both of these employees were held to have been unfairly dismissed.
A decent solicitor or barrister acting for the employee will always suggest that the sanction of dismissal was “disproportionate” to the misconduct complained of and will point to the otherwise good record of the employee.
And these arguments are regularly accepted by the Employment Appeals Tribunal leaving the employer with an expensive claim to pay out on, even where the employer is absolutely convinced that he was justified in terminating the employment.
The key takeaway for employers is this: you must afford fair procedures and natural justice in dealing with your employees and using your workplace disciplinary procedure.
If you don’t, you are likely to lose an unfair dismissals claim, no matter how justified you feel the dismissal was. And even if the employee quits because of the absence of fair procedures, (s)he may win a claim for constructive dismissal.