Disciplinary Procedures in the Workplace-3 Interesting High Court Decisions About Fair Procedures

fair procedures high court

Are you an employer or employee involved in a disciplinary procedure in the workplace?

If you are you need to be clear about the rules that should apply to such procedures, including at the investigatory stage and the ultimate disciplinary procedure where a sanction may be imposed.

The High Court has recently handed down three decisions in relation to internal investigations and disciplinary procedures in the workplace.

And, unfortunately, the principles that you would like to be crystal clear about in relation to carrying out a disciplinary procedure in the workplace are not entirely settled.

Let’s take a look at the three cases, all of which are dealt with in the High Court over a short period of time in the first part of 2017, and you will see what I mean.

The first case is Lyons v Longford Westmeath Education and Training Board . Mr. Lyons is a teacher with the Longford Westmeath Education and Training Board and certain allegations were levelled against him. The employer engaged the services of an external HR company who carried out an investigation into the allegations.

However, the HR company went further than merely carrying out an investigation-it also issued a report, presumably because they were requested to do so by the employer, and found against Mr. Lyons with respect to the bullying allegation made against him.

Mr. Lyons then brought an action in the High Court arguing that

  1. He should have been allowed legal representation during the investigation, and
  2. His legal representative should have been allowed to cross examine any witnesses.

The High Court held in his favour, which surprised many observers as it was generally understood that the full panoply of fair procedures and natural justice need not be afforded in the preliminary investigation stage of a disciplinary procedure, and it was sufficient if the employee had representation and could cross examine at the disciplinary hearing stage where dismissal was a possibility.

What distinguished this case from others, perhaps, is the fact that the investigation resulted in a report being issued and an adverse finding against Mr. Lyons. If the investigation simply investigated the allegations and decided whether there was a case to answer or not, and stopped there, then Mr. Lyons it may have been held by the High Court that he was not entitled to legal representation and to cross examine witnesses.

Justice Eager held, inter alia,

It is quite clear to this Court that the proceedings adopted by Graphite Recruitment HRM Ltd. is in breach of Article 40(3)(1) and (2) of the Constitution of Ireland by the refusal to allow legal representatives to appear on behalf of the applicant. The processes adopted by Graphite Recruitment HRM Ltd. failed to vindicate the good name of the applicant, in their refusal to hold an appropriate hearing, whereby the applicant through solicitor or counsel may have cross-examined the complainant..Equally, the complainant ought be entitled to then cross-examine the applicant.

 

And

The Court is clear that in circumstances where a complaint is made which could result in an individual’s dismissal, or where it impinges on the individual’s right to a good name, the individual is entitled to fair procedures, as outlined by the Supreme Court in the case law quoted above.

The second case worth looking at is E.G. v The Society of Actuaries in Ireland.

E.G. was an actuary and there was allegations against him of wrongdoing. The Society of Actuaries in Ireland, in responding to the complaints against E.G., set up an investigative committee who were to investigate the allegations and decide whether he had a case to answer, that is, whether there was prima facie evidence of wrongdoing.

The committee found there was prima facie evidence of wrongdoing and E.G. then sought an order from the High Court that he was entitled to natural justice and the finding of the committee should be set aside.

In this case the High Court decided that as the committee was only in the preliminary stages of a procedure involving an investigation, and did not have the power to make adverse findings against E.G., and the full panoply of fair procedures and natural justice was not necessary. It would only be in the formal disciplinary enquiry, where E.G. may have serious adverse findings made against him and sanctions imposed, that he would be entitled to legal representation and to cross examine witnesses.

The Court made a clear distinction between the preliminary investigation and the later formal disciplinary procedure.

The High Court relied on a High Court case, later upheld in the Supreme Court, involving the Law Society of Ireland, O’Sullivan v Law Society of Ireland [2009] IEHC 632.

 

Justice McDermott held:

In the courts view it was not necessary for the first named respondent to afford to the applicant the full panoply of natural justice rights in the course of any investigation into his conduct (outside of and/or in parallel with, any s. 8 or s. 9 process that may also have been underway) prior to their invocation of s. 17. They were of course, obliged to treat him fairly but they were entitled to adopt less formal and more abridged procedures than in circumstances where s. 17 had actually been invoked.”
85. The Supreme Court in dismissing an appeal against the judgment of Edwards J. [2012] IESC 21 was satisfied that the full panoply of natural justice rights does not inexorably apply at every phase of an investigative process. An appropriate standard of fair procedures must be applied at all stages of a tiered process. There may be situations in which a stronger degree of procedural protection may be required having regard to the decision to be taken at an investigative stage or its potential consequences.

 

And

A full oral hearing will be required before the Disciplinary Tribunal following the referral in the course of which the full panoply of rights will be available as set out in the Scheme as already described.

 

The third case was also, like Lyons above, in the education sector, N.M. v Limerick and Clare Education and Training Board.

The teacher in this case sought an injunction preventing the employer from carrying the disciplinary procedure to a conclusion. The Court considered whether the employee would have been entitled to cross examine witnesses at the investigation stage, even though this stage had already completed by the time the case came to the High Court.

Even though the investigation was tasked with making findings of fact the High Court found that because it could not make findings of fact which were final or binding, that is, the findings were only made as part of the investigation stage of the procedure.The Court held therefore, that the employee was not entitled to the full range of fair procedures/natural justice.

It also held that, therefore, that he was not entitled to cross examine witnesses and reiterated the principle arising from O’Sullivan v Law Society of Ireland [2009] IEHC 632 that the full range of fair procedures and natural justice is required at the disciplinary stage of the procedure, and not earlier in the investigation.

Conclusion

It remains to be seen whether the decision in the Lyons v Longford Westmeath Education and Training Board case is followed or not. From an employers perspective it seems to be a prudent course of action to ensure that the investigation that is carried out does not make final binding findings of fact and is strictly a fact finding exercise, and leaves final binding findings of fact to the disciplinary stage of the procedure.

The Range of Reasonable Responses in Unfair Dismissal Cases

unfair dismissal claims

If I am representing an employee in an unfair dismissal case I will nearly always argue that the sanction of dismissal was excessive and disproportionate.

That a reasonable employer would not have gone that far, and a lesser sanction would have been more appropriate.

The employer, or his representative will claim that the action was reasonable.

What is reasonable? What is excessive? Disproportionate?

Who decides? The employer? Or the decision making body such as WRC or Court?

Courts and decision making bodies in unfair dismissal cases, when assessing whether an employer’s response to penalising the employee in an employment law dispute, have long recognised that they will not substitute their judgment for that of the employer.

This means that once the employer’s sanction of the employee falls within a range of reasonable responses, the WRC or Court will not take on the role of employer in deciding what is appropriate in the circumstances. Instead, it will decide whether the employer’s response falls within a range of reasonableness in the circumstances.

What’s appropriate and reasonable in the circumstances will also vary widely, and what may be an appropriate penalty in one workplace may be disproportionate and excessive in another.

Let’s take a look at the principle of the range of reasonable responses, and how the decision making bodies come to an assessment of the employer’s decision.

The Employment Appeals Tribunal (EAT) have held,

“………the task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses”. (McGee v Peamount Hospital)

The decision making body will look at the circumstances of each case and decide whether the response of the employer falls within the band of reasonable responses. In doing so, the WRC or Court will look at things like

  • The gravity of the conduct leading to the dismissal
  • The size of the employer’s workforce and resources
  • The employee’s background and length of service
  • Any other relevant facts.

It is important to note that what may be reasonable for one employer may not be held to be reasonable in respect of another employer. This is because a large employer will have far more resources than a small outfit and will be able, perhaps, to consider a sanction short of dismissal, such as redeployment or other alternatives, which will not be open to the small guy.

In the UK Lord Denning, MR, stated in British Leyland UK limited v Swift (1981),

“the correct test is..was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, the dismissal was fair. It must be remembered that in all cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view”.

Conclusion

Unfair dismissal cases can be expensive for employers, and there is many factors which will be considered in deciding whether the dismissal was unfair or not. Two significant factors are the presence or absence of a fair procedure in deciding to terminate, and whether the decision to dismiss falls within the range of reasonable responses.

How Safe is Your Workplace Investigation From a Costly Outcome?

fair procedures

It happens the best of us, you know.

The botched workplace investigation

Do you worry about the disciplinary procedures in your workplace?

Have you been told about the eye watering, stomach churning awards when the inevitable unfair dismissal claim comes on for adjudication?

Let’s be honest.

A badly executed workplace investigation can prove to be a costly affair. It’s vital that it is carried out properly to prevent claims for unfair dismissal, and other causes of action.

Statutory Instrument 146/2000 gives us a statutory Code of Practice for Grievances and Disciplinary Procedures.

However, it sets out the broad principles which should be applied in a disciplinarily procedure.

But the mechanics of carrying out the investigation fairly have led to frequent challenges from the employee, claiming that they have not been afforded fair procedures or natural justice.

Basic fair play.

Such challenges have been the subject of consideration by the employment related fora, such as the Employment Appeals Tribunal, Labour Court and Workplace Relations Commission, and the Courts.

The High Court has adjudicated in many disputes surrounding employment related matters such as breach of contract, applications for injunctions, and the procedure which was used to dismiss an employee.

Let’s take a look at some of those High Court decisions and see what we can learn from them, shall we?
Let’s face it: if you are carrying out your investigation and/or disciplinary procedure in accordance with the findings of learned Judges of the High Court you are going to be on pretty solid ground.

Patrick J. Kelly v Minister for Agriculture, Fisheries and Food, Minister for Finance, The Government of Ireland, Ireland and Attorney General

This is a December, 2012 decision involving a harbour master in Killybegs who was dismissed from his position by his employer. Read the full decision here: [2012] IEHC 558 .

One of the interesting findings in this case by J Hedigan was that the the full range of fair procedures do not apply at the investigative stage.

There is no fixed model for fair procedures that is applicable to all circumstances. What is required in one instance may differ from another. In National Irish Bank and the Companies Act 1993, l.R. p. 145, Shanley J., subsequently upheld by the Supreme Court, dealt with an investigation by inspectors which was a two stage one. The first was an investigative stage, the second a hearing stage. In distinguishing in Re Haughey [1971] I.R. 217, Shanley J. at p. 168 held that at first stage, the inspectors could not be compelled to produce documents to the respondent nor was he entitled to any documents or to the facility of cross-examining any person at the initial stage.

“I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the inspector’s work. The procedures identified by the inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in Re Haughey.”

I gratefully adopt this dictum of the late Shanley J. It is fairness and justice which is to be sought in any investigative process and it is to the process as a whole that the Court must look to determine if those basic requirements were met. The requirement of fairness and justice will vary from case to case.He further found that there cannot be bias, either subjective or objective, where there is no adjudication.

He also found that the requirement of fairness will vary from case to case.

In summary, the rules of natural justice do not apply where it is a pure investigation and there are no findings arising from it. Nevertheless, it is still advisable to afford natural justice and fair procedures.

And if the investigator is allowed to make findings then the rules of natural justice should be applied.

This decision, and J. Hedigan’s findings, is encouraging from the perspective of a small employer with limited resources. It recognises that the circumstances of each case should be looked at when assessing the granting of fair procedures and natural justice.

EAMON O’BRIEN v AON   INSURANCE  MANAGERS  (DUBLIN) LIMITED

Read the full decision here: [2005] IEHC 3

J. Clarke found:

Even if there are infirmities in the methodology of the investigators (and I express no view on that issue) and even if those infirmities may have affected the contents of their report the fact remains that the recommendations of the report do not, in the words of Kearns J. in Morgan “amount to a sanction” and therefore Haughey rights do not arise.

Clarke’s reference in the extract above to the Morgan case is the case of Morgan v. Trinity College [2003] 3 IR 157, which is well worth a read in any consideration of the law as it applies to investigations and disciplinary procedures in the workplace.

Giblin v Irish Life & Permanent PLC [2010] IEHC 36

Read the full decision here: Giblin v Irish Life & Permanent PLC [2010] IEHC 36

J. Laffoy stated:

First, in conducting a process to determine whether the plaintiff should have a serious sanction, including the most serious sanction available, namely, dismissal, imposed on him, the defendant must act in accordance within the terms of the plaintiff’s contract of employment, including the implied term that the plaintiff, as employee, is entitled to the benefit of fair procedures (Glover v. B.L.N. [1973] I.R. 388). However, it is well recognised that what fair procedures demand depends on the terms of the plaintiff’s employment and the circumstances surrounding his proposed dismissal (Mooney v. An Post [1998] 4 I.R. 288).

It is not to be inferred from this decision that I consider that it is not appropriate for executives of the defendant who are involved in the human resources aspects of the defendant’s management to conduct the type of investigation which was conducted in relation to the plaintiff. Nor is it to be inferred that I am of the view that the person or persons who conduct the “thorough investigation” to be conducted under para. (iv) of the Disciplinary Procedures in all cases should not be the decision maker as to whether the conduct of the employee being investigated warrants a serious sanction such as dismissal. A one stage inquisitorial process may be appropriate in many cases.

It is worth noting that J. Laffoy considered that A one stage inquisitorial process may be appropriate in many cases.

Mooney v An Post [1998] 4 IR 288

In this case, J. Barrington held that the principle of “nemo iudex in causa sua” (nobody is a judge in his own cause) did not apply in all situations, especially employment situation where the employer judges the issue and is clearly an interested party.

“The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case. Indeed two of the best known precepts of natural and constitutional justice may not be applicable at all in certain circumstances. As the trial judge has pointed out the principle of nemo judex in sua cause seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party. Likewise it is difficult to apply, to a contract of employment, the principle of audi alteram partem which implies the existence of an independent judge who listens first to one side then the other.”

Nevertheless, if you are an employer you should try to ensure that the investigator and decision maker are different people and have quite distinct roles.

Tom Kelleher V An Post [2013] IEHC 328

This case is well worth a read in an consideration of disciplinary procedures/employment law in teh workplace. Read it here.

J. Peart stated:

But in any event, as has been made clear by Barrington J. in Mooney, the nemo judex rule cannot apply in all its glory to all situations in the area of employment law. It is inevitable that often during an internal or in-house investigation leading to a dismissal the decision-maker and some or all of the investigators will have some form of contact, and that there may be communication of some kind about the issues involved.

Conclusion

It seems to me from the cases above that the courts recognise that what are fair procedures will vary from case to case, depending on the circumstances of each case, the contract of employment, the disciplinary procedure in the workplace, and the resources of the employer.

It also appears to be the case that there is a distinct divide between the investigative stage of any procedure and the disciplinary procedure.

Any “infirmities” in the investigative procedure can be remedied at the disciplinary stage, assuming the employee is given fair procedures in the disciplinary hearing/procedure.

 

How to carry out a disciplinary procedure in the Irish workplace-online course-learn more.

Do You Make These Mistakes With Your Employment Disciplinary Procedures?

disciplinary-procedure

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.