Discipline and grievance procedures

01 October 2015

Updated October 2015

Gives introductory guidance on discipline and grievance procedures. Covers the Labour Relation Commission (now Workplace Relations Commission) Code of Practice including the stages required in dealing with grievance and disciplinary matters and the sanctions allowed under the Code from an oral warning to dismissal, warnings. and disciplinary hearings.

The Labour Relations Commission (now Workplace Relations Commission) has published a Code of Practice on Grievance and Discipline Procedures (SI No 146 of 2000) which was given statutory footing in 2000. It is expected that this Code will be revised as part of the ongoing reform of the employment redress regime to take account of difficulties encountered by small business in complying with the Code as presently drafted.

The Code of Practice contains general guidance which should be followed by employers in implementing a grievance and disciplinary procedure in the workplace unless there are alternative agreed procedures in place in the workplace which conform to the general provisions of the Code.

The Code provides that all employers should have written specified or agreed procedures in place to deal with discipline or grievance matters which should be given to all employees at the start of their employment. It is usual that the grievance and disciplinary procedure would be incorporated into the employer's handbook.

The employer should ensure that management and supervisory personnel are familiar with the procedures and follow them when applicable.

Procedures

The Code of Practice highlights that good practice entails a number of stages in dealing with grievance and disciplinary matters. The first step is informing the immediate manager. In general, they should make every attempt to reach a resolution at this point. If the matter is not resolved, it should be referred to a more senior management official and, if necessary, to external parties. Employee representatives (a union representative or a colleague of the employee’s choice) may and should be permitted to assist employees with matters arising under the procedure.

Disciplinary and grievance procedures must be conducted in accordance with the provisions of natural justice and fair procedures including:

  • The grievances of the employee are fairly examined and processed.
  • The details of allegations or complaints against a particular employee are put to the employee concerned.
  • The employee concerned is given an opportunity to address the complaint or allegation made against them.
  • The employee concerned has the opportunity to avail of the right to be represented.
  • The employee concerned has the right to a fair and impartial determination of the issues involved.

Sanctions

Sanctions permitted under the Code of Practice range from an oral warning to dismissal and include ‘some other appropriate disciplinary action short of dismissal’. Suspension on full pay pending the outcome of an investigation into an alleged breach of discipline is also permitted under the Code. However, suspension without pay should not be resorted to unless the company has a contractual right to do so and may be deemed to be a prejudgement of the matter to be resolved.

The High Court in The Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241 recently issued important guidance on the thorny question of suspension. The Court noted that suspension is an extremely serious measure which (either paid or unpaid) can cause irreparable damage to an employee's reputation and standing. For these reasons, the Court noted that a holding suspension should not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. The Court helpfully outlined four instances where suspension will normally be justified, if it is necessary:

  • To prevent the repetition of the conduct complained of.
  • To prevent interference with evidence.
  • To protect persons at risk from such conduct.
  • To protect the business reputation of the employer where the conduct of the employee is known to those doing business with the employer.

The decision to suspend must be taken on its merits by reference to the employee in question and the investigation. It should not be used as a means of sending a message to employees.

In disciplinary and grievance matters, warnings should be given to employees in order to show that a fair procedure has been followed apart from in situations relating to fundamental breaches. There is no standard format for employee warnings. However, the warning should be clear as to the cause of the complaint and the consequences for the employee if they do not heed the warning. Warnings should only be in place for a specific period of time and should be removed from the employee's record after that time if there is no further cause for complaint.

A disciplinary hearing must be heard in accordance with the provisions of natural justice. That is to say, employees must be given the reasons for the disciplinary hearing and an opportunity to address any allegations made against them. The persons conducting the investigation must be impartial and the proceedings must be conducted fairly.

Further the employer is under an obligation, whatever the seriousness of the allegation, to:

  • Fully investigate the circumstances behind the allegations prior to the disciplinary hearing.
  • Offer the employee and their union/legal adviser the opportunity to defend the charge.
  • Create an environment of parity between the employee and their accusers.

The employee should be advised at the outset of a disciplinary hearing of the seriousness of the charge and the right to representation. There is no automatic right to legal representation. However, in certain circumstances, it may be advisable to allow the employee to have legal representation in disciplinary hearings. The Supreme Court decision of Burns and Hartigan v The Governor of Castlerea Prison [2009] IESC 33 is the most recent authority on the issue of legal representation at disciplinary hearings. It held that legal representation should be the exception rather than the rule.

Disciplinary procedures will not always result in a dismissal and any disciplinary action taken against the employee must be proportionate to the facts of the case. The employee should be given a period or periods in which to meet any improvement required by the employer and will also be entitled to any assistance they require in order to meet those standards.

This factsheet was written by A&L Goodbody, Solicitors, IFSC, North Wall Quay, Dublin 1.

© A&L Goodbody Solicitors. The material is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only.