Employers are expected to jump through procedural hoops before dismissing employees for misconduct, writes solicitor ANNE O’CONNELL
It is extraordinary how many employers continue to have to pay awards due to procedural errors when dismissing an employee for misconduct. The principles of fair procedures and natural justice are broad concepts which have been refined by case law but which vary from situation to situation.
In claims for unfair dismissal involving misconduct, the Employment Appeals Tribunal expects employers to be meticulous in adhering to these concepts. This may be a tall order for employers, particularly where the employee’s conduct has damaged the relationship of trust and confidence between the employer and employee.
Theses are some questions that may be useful for employers to assist keeping in line with the concepts of fair procedures and natural justice:
— details of the allegations that are the subject of the disciplinary process
— name of individual conducting the disciplinary hearing together with name of note-taker — statement that disciplinary sanction, if any, may be up to and including dismissal — reminder to employee that he/she has the right to be accompanied/represented by a colleague or trade union representative (depending on the wording in the disciplinary policy) — request for the employee to name anybody he/she wishes to question — extending the employee’s suspension to facilitate the disciplinary process; — attachments of all the relevant documents together with the disciplinary policy.
Employers should also be mindful that employees may attempt to derail the process by either going on sick leave or submitting a grievance.
Broadly speaking as regards the former issue, the employee should be examined by the company doctor to determine whether he/she is fit to work and/or participate in a disciplinary process. A grievance, however, should be dealt with separately and should not delay or interfere with the disciplinary process.
Due to the potential reputational damage to employees dismissed for misconduct, employers are expected to jump through procedural hoops before dismissing employees for misconduct and are expected to demonstrate as such, bearing in mind that it is up to the employer to prove that the dismissal was fair.
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