Employment Law Procedures and Policies

Workplace Investigation and Disciplinary-the Danger of an Overemphasis on Looking for Imperfections in the Procedure

workplace disciplinary procedure

Dmitri was suspended from work for allegedly assaulting a colleague. Susan was suspended on pay while an investigation was being carried out into approximately half a dozen allegations of misconduct.

When they came to me for advice they were very much focused on the procedure adopted by the employer to date. Too focused, in my view.

Let me explain. They had done a bit of research online about disciplinary procedures in the workplace, the entitlement of the employee to fair procedures and natural justice, the importance of any investigation and disciplinary procedure being carried out fairly, and so on.

That’s fair enough.

But it is an easy mistake to get preoccupied with employment rights. These rights may stem from the constitution or statute or the contract of employment.

But remember the employer, too, has rights. And the right to investigate alleged wrongdoing in the workplace is one of them.

Now, Dmitri and Susan in their initial discussion with me were focused on seeking any imperfection or infirmity in how the employer had acted up to that point. I believe that was a mistake and they might have been better advised to address the substantive allegations against them.

But you must not ignore the substantive allegation against you and you must spend as much time addressing this as seeking imperfections in the procedure adopted by the employer.

Because they were so focused on finding imperfections in how the employer had acted in applying the procedure that they had overlooked the allegations against them.

Even though they have rights to fair procedures in respect of the application of the disciplinary procedure I do not believe perfection is required of the employer. Sure, it must be sound and fair and transparent and in accordance with the procedures set out in the workplace.

But the absence of perfection, or a small infirmity in the steps taken, may not be enough for an employee to ground a claim for unfair dismissal on the basis that the procedure lacked natural justice if the allegation is a serious one such as assaulting a colleague to telling a customer to stop “wrecking my head” and “do one”.


My advice is if you are facing serious allegations like Dmitri and Susan is not to get too preoccupied looking for flaws in the procedure adopted to the detriment of addressing the serious allegation against you.

Because employers, especially small ones with finite resources, will not be held to a level of perfection in enforcing discipline in the workplace.

Yes, you are entitled to fair procedures; yes, you are entitled to natural justice; yes, you are entitled to fair play.

Employment Law Procedures and Policies

Court of Appeal Clarifies the Legal Right to Representation in Disciplinary Proceedings in the Workplace

irish rail v barry mckelvey

A decision delivered by the Court of Appeal at the end of October 2018 throws further light on this question of the right to legal representation in the workplace during disciplinary hearings.

This issue was thrown into some degree of confusion by what appeared to be inconsistent High Court decisions in the cases of Lyons v Longford Westmeath Education and Training Board, E.G. v The Society of Actuaries in Ireland, and N.M. v Limerick and Clare Education and Training Board. (You can read about these 3 High Court decisions here).

Iarnród Éireann / Irish Rail v Barry McKelvey

In this case Mr. McKelvey, an Irish rail inspector was subjected to a disciplinary procedure in his workplace into an allegation of misuse of company issued fuel cards and alleged theft of fuel which led to “significant financial loss” for the employer. Mr. McKelvey was denied the right to legal representation at the disciplinary hearing. Mr. McKelvey went to the High Court about this issue and sought to have the disciplinary hearing halted.

The High Court decided that he was denied fair procedure and constitutional/natural justice by reason of this refusal by Iarnród Éireann, even though he had the assistance of an experienced trade union official.

The High Court halted the disciplinary proceeding against Mr. McKelvey as it held that he was entitled to legal representation. The High Court arrived at this decision due to a number of factors including:

  • The impact on his reputation and future employment prospects
  • The complexity of the case
  • The fact that issues of law would probably arise in the proceeding

The High Court decision to halt the disciplinary proceeding was appealed to the Court of Appeal by Irish Rail.

Court of Appeal

The Court of Appeal agreed with the High Court in identifying the factors that a Court should look at when deciding this issue.

It disagreed with the High Court’s decision in the case of Mr. McKelvey, however, and held that the High Court had misapplied the factors to the circumstances of the case.

The Court of Appeal overturned the decision of the High Court and held that legal representation should only be granted in the most exceptional of circumstances. It also held that natural justice and fair procedures could be applied without the need for a lawyer and the help of an experienced trade union representative was sufficient stating, inter alia,

“While it is true to say that Mr McKelvey faces a disciplinary inquiry which could lead to his dismissal and which has the further potential to impact on his future employment prospects and his reputation, in this regard he is no different to a very substantial percentage of employees facing allegations of misconduct in the workplace. In my view, the allegation of misconduct made against Mr McKelvey is a straightforward one and I am not satisfied that he has identified any factual or legal complexities that may arise that he should not be in position to deal with adequately with the assistance of [his trade union representative].”

The Court of Appeal also made the point that workplace disciplinary investigations and hearings should not be directly compared with investigations and hearings carried out by professional regulatory bodies such as the Medical Council or other professional regulatory bodies.

The Court of Appeal did not clarify definitively, however, the question of the right to cross examine witnesses in a disciplinary hearing as Irish Rail had allowed this as part of its procedure and the question did not have to be addressed in the Court of Appeal.

Nevertheless, it is advisable that this right is afforded to employees involved in a disciplinary hearing even though there appears remain a difference of opinion amongst lawyers on this point.

The Court of appeal also left the door open to reapply to Mr. McKelvey if a complex issue of law arose in the process.

You can read the full decision of this Court of Appeal case here: Iarnród Éireann/Irish Rail and Barry McKelvey.

Supreme Court Appeal

This case was appealed to the Supreme Court and the Supreme Court arrived at the same decision as the Court of Appeal, by way of a slightly different route, and decided that there was no entitlement to be legally represented at a disciplinary hearing about alleged misappropriation of property.

In summary the Supreme Court held

The applicant is entitled by contract to have a fellow employee assist him at the disciplinary hearing, or to be represented by a trade union official. By contract, no other or outside individual may represent him.

Read the full Supreme Court decision here (11th November 2019).

Unfair Dismissal

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”.


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.

Employment Law Procedures and Policies

Suspending an Employee on Pay Pending an Investigation-Vital Lessons from the High Court

suspension with pay

Suspension with full pay.

Not a problem for the employer?

Think again.

A High Court decision from April, 2015 provides helpful clarification about suspending an employee as a precautionary measure pending an investigation.

This would be the default position for many employers where there is an allegation against an employee and an investigation is to be carried out to look at the merits of the allegations.

The case of THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND AND JAMES REILLY took a close look at suspending the employee on full pay in this case.

Mr. Reilly was an assistant branch manager with the Bank of Ireland and an allegation arose about the breach of the Bank’s internet/email policy due to the sending of inappropriate/pornographic emails by some members of staff. Mr. Reilly’s branch manager informed him verbally that he was being put on paid suspension as “an issue had arisen in relation to emails”. He received no further information at the time of his suspension, and his branch manager was not aware of the detail of the allegations. He was simply delivering the message from his superiors at Head Office.

Suspension a “very serious matter”

The High Court recognised that suspending someone-even on full pay-is a very serious measure with potential reputational damage which may never be overcome, even if the employee is subsequently found to be not guilty of the allegations. It held that a suspension should only be imposed “after full consideration of the necessity for it pending a full investigation” of the issues.

The Court identified four circumstances where it would be justified:

  1. To prevent repetition of the conduct complained of;
  2. To prevent interference with evidence;
  3. To protect individuals at risk from such conduct; or   
  4. To protect the employer’s business and reputation.

In this case the Court held it was unnecessary to suspend Mr. Reilly as the bank had safeguarded the evidence, the allegations were so serious that it was improbable that Mr. Reilly would transgress again, and knowledge of the allegations was not widespread so there was no danger of reputational damage.

How does this affect you as an employer?

Here are 7 takeaways:

  1. Have a disciplinary procedure
  2. Ensure it provides for paid suspension pending the outcome of an investigation and disciplinary procedure
  3. Give the employee the opportunity, when being told of the reasons for the suspension,to explain or defend himself
  4. Even though the employee is not entitled to “the full panoply of fair procedures” he is entitled to “at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response.” This did not happen here as Mr. Reilly’s line manager was simply acting on instructions from Head Office and was not actually aware of the allegations.
  5. Write to the employee giving him an explanation as to why, in broad terms, he is being put on paid suspension
  6. Details of the allegations should be set out in the invitation to the investigation meeting letter
  7. Carry out the investigation, and if appropriate the disciplinary hearing, without delay.

“Justice delayed is justice denied”, and the longer the employee is out the greater danger of reputational damage.

The Fair Dismissal test

The Court also reaffirmed the view to be taken by Courts and decision makers in respect of a fair dismissal. The Court will not substitute its view for the view of the reasonable employer.

The Unfair Dismissals Act 1977 (as amended) states:

  • in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,…

This section makes it clear that the reasonableness of the conduct of the employer needs to be considered.

The Court agreed that the correct test is this:

‘was it reasonable for the employers 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, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.(British Leyland UK Ltd v. Swift [1981] IRLR 91, Lord Denning MR).

As Judge Linnane stated in her decision in Allied Irish Banks v. Purcell [2012] 23 ELR 189

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken

In conclusion, this case is well worth reading and drawing valuable lessons from for employers and Hr professionals because it is clear that the default position of suspending without pay, in all circumstances, in order to investigate allegations is inappropriate.

Read the full decision here: Bank of Ireland v James Reilly [2015] IEHC 241


Employment Law Books

How to Carry Out a Workplace Disciplinary Procedure-Kindle Book

how to carry out disciplinary procedure

This is only a short book. But it could save you a lot of money.

80% of  successful claims for unfair dismissal are won by employees because the employer has failed to afford fair dismissal procedures in carrying out the termination.

In plain English, they have botched the procedure.

This book addresses this costly failing.

Because it explains how the employer is to carry out a disciplinary procedure, and avoid the accusation of lack of fair procedures or natural justice.

And if you are an employee it will allow you to see whether you might have a claim for unfair dismissal, on the grounds of lack of fair procedures.

It sets out, in easy to follow steps, how to carry out a disciplinary procedure in the correct manner.

It also covers:
1. Introduction to disciplinary procedures in the workplace
2. Principles of the disciplinary procedure
3. The formal disciplinary procedure
4. Issuing warnings under the disciplinary procedure
5. Probationary employees

And the price is approximately the price of a cup of coffee, or less than the price of a pint of beer.

Get it now on Amazon here.