Fair procedures: An Analysis of Recent EAT Cases
In this Article, Deirdre Crowley looks at a number of recent dismissal rulings of the Employment Appeals Tribunal (the “EAT”), which reinforce the importance of employers complying with the general principles of natural justice and fair procedures when carrying out workplace investigations into grievance and disciplinary matters. Employers ignore observing fair procedures at your peril!
These recent cases before the EAT, summarised below, show that, notwithstanding the behaviour of the employees, an employer has an overarching obligation to ensure that fair procedures are followed in workplace processes. What is deemed to be fair procedures will depend on the particular circumstances of each case.
Recent EAT cases
In Claire Hayes –v- Patrick Kinsella t/a Kinsellas of Rocklands (UD 690/2012) the EAT awarded a retail employee €11,000 in compensation in respect of her dismissal. The EAT held that the investigative and disciplinary process undertaken by the employer in the run up to the dismissal fell short of ‘appropriate standards where an employee faces potential dismissal for criminal behaviour’. In this case there had been an allegation of theft against the employee. The EAT made a number of criticisms of the employer’s procedures, including the following:
- The employer failed to clearly separate the investigative and the disciplinary procedures;
- The employer failed to provide the employee with written details of the precise charges against her and the basis for these charges;
- A full statement was not taken from the employee and presented to the decision maker, who made the decision to dismiss the employee; and
- The employee was not offered the option of being accompanied to the meeting where the charges were initially put to her.
The EAT found that the employee was not provided with all of the evidence against her, nor was she given the appropriate opportunity to consider this evidence nor was she allowed adequate time to prepare her response to the allegations. All of these facts led to the conclusion that the employee was not afforded access to fair procedures in this matter.
In making their finding the EAT noted that the standard required in order to ensure the principles of natural justice and fair procedures are adhered to should be assessed on a case by case basis. The EAT noted that investigative and disciplinary procedures that might be sufficient in one instance may not be in another.
Bullying: Case where unsuccessful complainant successfully won an unfair dismissal claim
In Orchard House Limited –v- Triona Raymond (UD 410/2012) a childcare worker, who was dismissed for making unfounded allegations of bullying against her manager, won her unfair dismissals claim, as the EAT found that she was not afforded fair procedures by her employer. The EAT said that in failing to give the employee prior notice of the case against her, Orchard had failed to give her any opportunity to review the case against her, or to state her side of the case, and in doing so, the director of Orchard who carried out the investigation failed to follow Orchard’s own procedures, or any procedures. However the EAT also took into account the false bullying allegations which the employee made, noting that by her actions the employee had made a significant contribution to her dismissal and accordingly the EAT restricted its award of compensation to the employee to €10,000.
In this case the director of Orchard carried out an investigation into an allegation of bullying by the employee. This investigation led to confirmation by a number of witnesses that the employee had asked them to falsely state that the employee had been bullied by her manager. The investigation found that the alleged bullying had not occurred and that the employee’s actions in making such false allegations and in seeking to have people falsely state that they had witnessed the alleged bullying, amounted to gross misconduct. The director invited the employee to a meeting at which he summarily dismissed her for gross misconduct. The director did not give the employee prior notice of the meeting and did not provide her with copies of the interviews or of his report of the investigation. The director accepted at the hearing that he did not comply fully with Orchard’s own procedures on summary dismissal.
Interpersonal and Behavioural Issues
In the case of Philomena Farnan v KM Healthcare Enterprises (UD 847/2012) a care worker was awarded €30,000 for unfair dismissal. The employee was found guilty by the employer of gross misconduct consisting of (i) being abusive to staff members and (ii) exhibiting aggressive or abusive behaviour towards a staff member in the presence of a resident, and she was dismissed. The EAT held that the employer did not utilise fair procedures when it dismissed the care worker. There were a number of deficiencies in the process highlighted by the EAT, of which employers should take note:
- Impartiality is important when conducting a disciplinary process. In this case SD, the person carrying out the investigation had, in a previous employment, dismissed the employee. The EAT concluded that this alone made the procedure biased.
- The ruling also highlighted the importance of the investigation stage being purely concerned with finding of fact. In this case the investigator concluded that the employee was guilty of serious misconduct. The EAT stated that the investigation was a fact finding mission and should not have reached any conclusion.
- The EAT also pointed to the fact that the employer did not consider any other sanctions, such as suspension without pay, when making the decision to dismiss the employee. As can be seen from the McCrann case below, proportionally is important in any disciplinary or grievance process.
- The EAT also noted that a confidentiality clause was introduced which inhibited the employee from conducting her defence, thus denying her access to fair procedures.
Dismissal Sanction Criticised
In Michael McCrann v Marks and Spencer Ltd (UD 3/2013) the EAT awarded €13,000 in compensation to a retail employee who was dismissed for putting aside clothing which was on sale for later purchase by himself, in breach of company policy. The claimant argued that the sanction of dismissal was too severe and that other sanctions ought to have been considered. The EAT agreed and held that the sanction of dismissal was disproportionate to the alleged action of the claimant, was contrary to fairness and natural justice and that Marks and Spencer had acted unreasonably in deciding the dismiss the employee.
Pre Determined Dismissals
In Samirai v Staunton Sports t/a Elvery Sports (UD 418/2012) the EAT held that the dismissal of a sales advisor for poor customer service was procedurally unfair and it awarded her €10,000 in compensation. The EAT in coming to its decision pointed in particular to the fact that on the day of the employee’s final meeting with her employer, the employer took the decision to dismiss, prepared the letter of dismissal and gave it to the employee all within 10 minutes. This shows the importance of not pre-determining the outcome of a disciplinary process.
The above cases offer effective lessons to help employers ensure that the methods they use in carrying out workplace investigations adhere to the principles of natural justice and fair procedures. It is quite clear that having policies in place is not enough to offer an employer a defence, unless those policies are “living, breathing policies” whose terms could reasonably be regarded as mirroring the reality of the employment relationship. It is important that the employer retains some element of discretion to deal with the matters on a case by case basis in these policies given that, as noted by the EAT in the Hayes case, what is sufficient in one case may not be so in another.
For further information please contact Deirdre Crowley at firstname.lastname@example.org
This article is a general summary on the subject and is not intended to be a thorough review or a complete statement of the law. Specific legal advice should be sought on a case by case basis.