Recently the Employment Appeals Tribunal awarded €46,800 to a childcare worker who had alleged that she was unfairly dismissed from the crèche where she had been working. Under the Unfair Dismissals Acts 1977 to 2007 the Tribunal found that the dismissal was unfair.
At first glance there is nothing of particular note in that decision. But if we look a little closer it is possible to see why this case garnered so much publicity.
Firstly, in its determination, the Tribunal did not issue a clear ruling on whether or not the allegations made by the claimant were correct. It is common for the Tribunal to rule on which party’s version of events is correct – or at least to express an opinion on where the preponderance of evidence lies.
Secondly, the employer in question had a clear procedure in place and followed it. This was not at all a situation or an environment where the employer was being casual or unprofessional in how they approached the case. The employer did do a lot right. In particular :
- Within days of hearing of the allegation against the worker the owner met with worker and put the allegation to her.
- The owner carried out a formal investigation, during which the worker was suspended on full pay.
- A formal disciplinary meeting was held in advance of which the worker was provided with written statements.
- The worker was summarily dismissed on grounds of gross misconduct.
- After the worker was summarily dismissed the owner heard an appeal from the worker (but upheld the decision).
So what was the basis for the Tribunal’s ruling? The main reason was that the same parties, i.e., the owner, carried out the investigation stage, the disciplinary stage and in particular the appellate stage and thus breached the natural justice principle of nemo judex in causa sua (no man may be a judge in his own cause).
The basis for that principle is the need for there to be public confidence in the legal system. So the owner may well have thought that her procedures were fair. Even if the owner was honestly capable of hearing an appeal impartially, the more prudent course of action would have been to ensure that different people were responsible for the investigative, disciplinary and appellate stages.
So what lessons are there for employers to learn from this case?
One important lesson is that it is obviously not enough simply to have procedures in place, they have got to be the correct procedures. It is in the interest of all parties for the employer to have a written disciplinary policy in place and that the policy is regularly reviewed. Moreover, the policy should be used and should be seen to be used when cases arise.
There are supports in place to guide employers in the formulation of such policies. The Labour Relations Commission has published a helpful Code Of Practice on Grievance and Disciplinary Procedures that can serve as a guide. For example, the code of practice states that periodic reviews can ensure that a policy is consistent with “developments in employment legislation and case law”. Such a policy also needs to be mindful of the Unfair Dismissals Acts from 1977 to 2007. To help with that, the National Employment Rights Authority has written an explanatory booklet on the obligations and rights arising from those Acts. (Note though that the booklet only pertains to acts up to and including 2005).
However, employers should also note that having procedures in place that adhere to what is explicitly mentioned in the code of practice on Grievance and Disciplinary Procedures is necessary but not sufficient. For example, the code of practice fails to spell out that principle of nemo judex in causa sua. On the subject of appeals it simply stresses that an essential element of a procedure is that “an internal appeal mechanism is available”.
In summary, the area of grievances and disciplinary procedures is an extremely complex one. There are a number of potential pitfalls that employers need to be mindful of – just one of which has been starkly illuminated by this case. If this is an area where you suspect you may need some guidance or help, please get in touch with us and we can have a discussion to explore how we can help you
- Code Of Practice on Grievance and Disciplinary Procedures
- EAT’s Determination
- 1977 Unfair Dismissals Act