|
| |
The concept of ‘fair procedures’ comes up in all areas of HR and Employment Law, from recruitment to absence, disciplinaries to redundancies. Most Tribunals will consider the procedures followed by an Organisation in their determinations, particularly in Unfair Dismissal or Redundancy cases.
What are fair procedures?
The challenge for Employers is that there is no one piece of legislation that spells out what ‘fair procedures’ are in a given situation. Guidance in this area comes from HR best practice, Codes of Practice and case law. In many cases it has been shown that the Tribunals find in favour of the Employee, based on a failure of the Employer to follow fair procedure, even in situations where the Employee contributed to their own dismissal.
Fair procedures in Disciplinary
In general terms, fair procedures in disciplinary situations means that the Employer will fairly investigate the issue, that their decision will be unbiased and will only be made following a fair hearing where the Employee had the right to respond to the allegation(s). If one or more of these steps are missing the Organisation runs the risk of a Tribunal finding that the sanction given, or the decision to dismiss, was unfair.
In a recent case in the Employment Appeals Tribunal an Employee was found to have been sleeping on the job and there was CCTV evidence to prove same. The Employee was awarded €10,000 as his Employer failed to follow fair procedures in that they did not provide him with the full allegation (the CCTV) or an impartial appeal.
Fair procedures in Redundancy
In redundancy situations fair procedures need to be considered in both the selection and exploration of alternatives. When setting out the criteria for selection, if the Organisation has an agreed selection procedure or one they have used in the past, they must have a specific reason if they wish to depart from this and/or the custom and practice.
One of the conditions looked at in determining whether a dismissal by redundancy is fair or not is whether the conduct of the Employer was reasonable. It is recommended that Employers have an ‘at risk’ meeting with the Employees prior to making the decision to dismiss due to redundancy. The purpose of these meetings is to inform the Employees that there is a possibility of redundancies and that the Organisation is looking at all alternatives to avoid redundancies. Employers should also give Employees an opportunity to explore other options that they may see as an alternative to redundancy.
A case taken in the Employment Appeals Tribunal resulted in awards of €43,000 being made to two Employees for unfair dismissal where their Employer failed to consider their proposals regarding alternatives to redundancies.
Conclusion
It is clear that there is a significant onus on Organisations to demonstrate the extent and fairness of the procedures they undertake in reaching a decision to dismiss an employee and the decision to dismiss should not be taken lightly by an Organisation. |
| |
|
| |
| |
| back to top >> |
| |
|
|
|
| These are intended as a general guide to the subject matter, it should not be used as a basis for decisions. For this purpose advice should be obtained which takes into account all the client's circumstances. Every effort has been made to ensure the accuracy of the information. In view of its purpose the reader will appreciate that we are unable to accept liability for any errors or omissions which may arise. |
|
|
