Disciplinary Dismissals

Angela Schettino writes:

Q. What are the current procedural requirements for a disciplinary which leads to dismissal?

You may have followed with interest some of the changes which have occurred from April 2012, in England, Scotland and Wales, after the much debated employment law reforms. Perhaps the most notable change has been the increase in the qualifying service for unfair dismissal claims from one to two years. Any employee who starts work in Great Britain on or after 6 April 2012 must now be employed for two years before they can claim unfair dismissal.

However, this reform did not take effect in Northern Ireland. The qualifying period for unfair dismissal claims in Northern Ireland remains at one year for all employees. In Northern Ireland DEL has already received responses on a discussion paper covering this proposal and a whole raft of reforms and the formal consultation process will be completed before any legislation to implement change is passed. As a result, it is unlikely that any of the reforms that came into force in Great Britain will be implemented in Northern Ireland in the short term.

Disciplinary Procedures 

Following the introduction of the new LRA code of practice in April last year, the discipline procedure has remained largely unchanged.

The code commences with the following;

“When dealing with disciplinary cases, employers need to be aware of both the law on unfair dismissal and the statutory minimum procedures contained in the Employment (NI) Order 2003 for dismissing or taking disciplinary action against an employee.”

Investigations

In all cases, any form of disciplinary hearing should be preceded by an investigation of the facts relating the case. Ideally, the investigation will be completed by an independent manager who will not go on to sit on any eventual disciplinary hearing panel arising from the same. The aim of the investigation is to assess whether there is a disciplinary case to answer.

If a disciplinary hearing were to follow, it should ideally be convened for a different date, giving ample notice and sending a letter outlining what the issues are as well as the right to be accompanied. The process for movement throughout disciplinary sanctions still remains the same in most cases, commencing with a verbal warning, first written, final warning and dismissal. More major or gross misconduct issues may warrant an immediate sanction of final written warning or summary dismissal. It is important that internal policies highlight what can be considered major or gross misconduct and that this policy is made available to all employees. The LRA code recommends that verbal warnings are “disregarded for disciplinary purposes” after 6 months and written warnings after 12 months.

The Three Step Disciplinary Procedure 

Most readers will be aware that the three steps remain as follows:

1. Write to the employee notifying him/her of the allegations against him/her and invite them to a meeting to discuss the matter.
2. Inform the employee of the basis of the allegation before holding the meeting to discuss this – at which the employee has the right to be accompanied by a colleague or trade union representative. Notify the employee of the decision.
3. Offer the employee the right of appeal.

It is worth noting that the three step minimum disciplinary process should be followed where any sanction is contemplated other than suspension on full pay or a warning.

The statutory minimum three step procedure will affect all formal disciplinary action. The minimum procedure is also relevant to capability issues, i.e. where you decide to deal with underperformance which ends up within the disciplinary process due to the fact that improvements have not been forthcoming due to conduct issues. As always, even when procedural correctness has been achieved, the key to any disciplinary is to act “reasonably”, dependent on the circumstances of each case.

The LRA code again emphasises that employers must follow the statutory minimum procedure if they are contemplating dismissal or some other disciplinary penalty.

In the event that a tribunal case is taken against an employer for unfair dismissal and the procedural steps have not been completed by the employer, the tribunal may find the dismissal automatically unfair and increase an award of compensation by up to 50%. In addition, if the employee has failed to follow the procedures i.e. attend meetings or failed to raise an appeal, their compensation may be reduced by up to 50%.

Gross Misconduct

Gross misconduct is conduct which may lead to instant dismissal and should be described by employers in their internal policies. The list of conduct is not pre-determined or exhaustive but must constitute conduct which could reasonably be construed as being in fundamental breach of the employment contract and often includes some of the following;

• Theft or misappropriation of Company property / funds.
• Fraud.
• Fighting, physically violent behaviour or dangerous horseplay.
• Gross insubordination.
• Obscene behaviour.
• Refusal to carry out a reasonable work instruction.
• Deliberate falsification of Company records or documentation.
• Falsification of information on an application form or CV.
• Failure to disclose a material fact or falsification of information a interview.
• Use of aggressive behaviour or bad language.
• Serious breach of safety/hygiene/security rules and thereby endangering one's own or another's physical well being or safety.
• Intoxication or use of alcohol or drugs during work time.
• Disclosing confidential information to a third party.
• Wilful damage to or gross neglect of an employer's, customers, visitor's or colleague's property/equipment.
• Unauthorised use of any property/equipment/ belonging to the employer, customers, residents, visitors, or other employees.
• Attempting to cover up or otherwise deceive the employer in relation to any other misconduct.
• Conduct not in keeping with the aims and purposes of the employer and which would bring the employer into disrepute.

Summary Dismissals

Summary dismissal is the dismissal of an employee without notice or pay in lieu of notice, usually because they have committed a clear act of gross misconduct.

You should investigate the circumstances of the misconduct before dismissing the employee, however, if the organisation sees no alternative but to instantly dismiss an employee, it must still follow statutory procedures.

Probationary Periods

If the dismissal occurs during a probationary period the statutory dismissal and disciplinary procedure should still be followed, unless there is an express term in the employment contract which states that the full procedure may not apply during a probationary period.