Can an employer put themselves into a position whereby all claims against them for unfair dismissal are avoided ?.
No, as this is the entitlement of an employee.
An employer can though put steps in place which not only encourage an avoidance of unfair dismissals claims being taken in the first place, but that can also give employers confidence in their ability to defend unfair dismissals claims.
Scenario – Say an employee is charged with theft of company property, which the employer considers is an act that constitutes gross misconduct, and dismissal should take place.
If this situation arises which ultimately leads to a dismissal, an employer will go along way to successfully defending an unfair dismissal legal action, if they have followed a fair and transparent investigation and disciplinary process prior to the dismissal.
They must also show that the reason to dismiss was reasonable and the sanction ie dismissal was proportionate to the conduct of the employee.
Firstly, an employer should have written policies in place regarding investigations, the disciplinary and appeals process, and if an employer follows their own polices which are fair, this will go along way to show they had due regard to fair procedures and natural justice.
What can happen sometimes is that an employer considers that trust has irretrievably broken down due to the act of an employee which amounts to misconduct, and they want to be decisive.
Taking the right measured steps in response to a situation can make all the difference to successfully defending an unfair dismissals claim. If the employer decides to suspend the employee pending an investigation, this should be on full pay.
The employee should be afforded with a fair investigation procedure, disciplinary procedure and an appeals procedure.
An adjudication officer (decision maker at the Workplace Relations Commission) at a case inquiry will examine if the procedures adopted by the employer to assess were fairly applied, if due process and natural justice took place. The adjudication officer will also assess if the sanction ie the dismissal was appropriate and proportional to the conduct complained of, and whether the employers decision to dismiss was an objectively reasonable one.
Policies and Procedures
It is considerably helpful for an employer to have polices and procedures in place which have been activated and followed prior to a dismissal.
For example, if an employer has a Disciplinary Procedure, did this procedure define what acts were considered misconduct ? ie did it include theft of company property.
The employee should receive clear and detailed notification of the investigation in advance. The employee should be allowed to defend and answer any complaint, and informed of any investigation outcome. They should be given the investigation report. They should be given the CCTV footage, for example.
The Employers disciplinary procedure should set out the steps clearly.
The following is an example only of a non-exhaustive list of possible steps a disciplinary procedure could involve:
It could state, for example, that it requires:
- A full investigation takes place;
- That the employee may be suspended to facilitate the investigation of the particular case;
- That the employee will be advised of the complaints during the investigation;
- That the employee has the right to he accompanied at a disciplinary hearing
- That a disciplinary hearing will discuss the nature of the complaints;
- That the disciplinary hearing will afford the employee the opportunity to respond and discuss his/her case;
- That the employee will be notified of the outcome of the appeal;
- Indicate who will the appeal be conducted by etc.;
- That the appeal hearing will consider the grounds of appeal and outcome of appeal.
A considerable advantage of having written procedures is that they can be followed in a step-by-step process.
Appeal of Disciplinary Hearing
The employee should be afforded a right to appeal a disciplinary hearing finding, and afforded the opportunity to defend themselves and provide any mitigating circumstances.
Dismissal for Gross Misconduct
S.6(1) of the Unfair Dismissals Act 1977(as amended) states that:
The dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
However S.6(4) states that the dismissal of an employee will not be an unfair dismissal, it results from a number of situations, but the conduct of the employee is one of them.
The employer must show that the dismissal was as a result of the misconduct of the employee.
The employer should show that they gave the procedure (investigation/disciplinary procedure) to the employee within 28 days after entering into contract, and then that the followed the procedures prior to the dismissal. Following procedures will indicate to the Adjudication Offer that the employer acted reasonably in the circumstances.
If an employer follows policies and procedures in a step-by-step manner regarding the investigation and disciplinary stage, they will go along to helping themselves successfully defend an unfair dismissal claim.
An employer might consider the conduct of the employee amounts to misconduct and are concerned for their business, but the employee is also entitled to answer the charge, give reasons, and have a fair investigation hearing etc.
Disclaimer to this Unfair Dismissals Claim Article
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.