1. Introduction to Disciplinary

In this introduction to disciplinary we consider the legal requirements and provide an overview of the disciplinary procedure.  Every situation will be slightly different, so each case has to be considered based on its own particular circumstances and facts. 

 

Not every disciplinary situation will lead to dismissal, but it is important to act 'as if' it may, to ensure that the correct procedures are followed (and to avoid grievances or other internal issues that could arise from not following the correct procedure).

 

The disciplinary procedure is used to manage the following types of cases:

• Rule breaking and/or how someone acts or behaves.
• Where someone is not performing in their role. Often referred to as 'poor performance'
• Relating to ill-health, i.e. where someone not capable of performing their job role because of ill-health (generally referred to as capability)

You may have a disciplinary procedure and a separate capability procedure, or they may be combined in one procedure (see Disciplinary Procedure). 

 

Ill-heath will be dealt with under capability, and the general procedure set out in these guidance notes will be applicable when managing ill-health. However, in these cases it is appropriate to manage the process considering the welfare of the individual (and making the process and language more appropriate). Please see the section on Absence and medical capability for further guidance 

 

You should refer to your company disciplinary procedure when reading these notes.  

 

 

If an employer, having followed the disciplinary procedure, dismisses an employee, and the employee makes a claim to the Workplace Relations Commission (WRC) the employer will have to demonstrate the following:

This means that the ‘performance or conduct’ must be serious enough to justify dismissal either because it is a very serious matter that amounted to gross misconduct, or the employee has received a number of warnings on the same or a similar issue and there has been little or no improvement. 

 

It is extremely rare in cases of poor performance (or other capability areas) to go straight to the dismissal stage as you need to give the individual time to improve. If the matter of poor performance were so serious to consider dismissal as the first step, this would generally mean that it also falls within the sphere of misconduct or some other substantial reason.

 

The reasonableness of a decision to dismiss will also depend on the procedure followed (e.g. whether there was a full and fair investigation, did the employee have an opportunity to state their case) etc, and it should be noted that the majority of employment tribunals are lost because a fair procedure was not followed (i.e. the decision to dismiss may not have been wrong – but the way the employer went about it was!). 

 

It is therefore essential to follow a fair procedure and also to make sure that the procedure and steps you take are clearly documented, so this can be demonstrated to the WRC (i.e. showing letters written to the employee demonstrating each stage of the procedure was followed, documenting how you carried out the investigation, collecting written witness statements etc).  

 

A WRC hearing will review whether the company process was flawed or does not meet the required standards as outlined in their guidelines.   

 

All organisations that employ staff are legally required to have a written disciplinary (and grievance) procedure and need to communicate and make this available to employees.

 

(Note: If you have your own procedure, you should check to ensure that it covers all the elements that will make up a fair procedure and that any action you intend to take is in line with your procedure. You should also check whether or not your procedure is contractual. If it is, and you do not follow the full procedure, there could be a further claim for breach of contract. It is recommended that your procedure is NOT contractual for this reason. Please see the template Disciplinary Procedure for further guidance.

A fair disciplinary procedure provides an opportunity for the employer to clearly and formally state what is required and the consequences of non-compliance.  It also gives the employee an opportunity to state their version of events (or to provide any reasons they believe may contribute to their underperformance); or to present any mitigating circumstances. 

 

One of the key purposes of disciplinary action is to communicate and encourage the required standards of conduct and performance and, when successful, this is beneficial to both the employee and the employer.  

 

It is important to remember that the disciplinary procedure will not always lead to dismissal. The first objective is to help the employee achieve what is required. It will only be in serious cases or where the employee’s conduct or performance does not improve that dismissal may be considered.  

 

However, every time the disciplinary procedure is invoked, the employer should bear in mind that a full and fair procedure must be followed in order to ensure compliance with legal requirements and in order to be able to rely on any ‘warnings’ in the future.

 

Note: you cannot fairly discipline someone for something they knew nothing about! And it would be unfair to dismissal someone for gross misconduct if they were not aware that this could be a consequence of their action. Therefore, you need to document and communicate your 'codes of conduct' and any matters that may be considered to be gross misconduct. See Avoiding Disciplinary Action for further details, and the Policies and Procedures section for draft policy documents on codes of conduct/standards. You should also ensure that the list of gross misconduct in your policy is comprehensive. 

 

Generally, an employee has to have been continuously employed by a Company for more than 12 months before they are protected against unfair dismissal. This means that they cannot make a claim to the WRC for unfair dismissal if they have less than 12 months service. But there are important exceptions to this and employees with less than 12 months of employment may still make claims to the relevant bodies if the dismissal is for a reason related to health and safety, trade union membership, pregnancy, asserting a statutory right, for reasons associated with the nine grounds of discrimination (e.g. Age, Race, Religion, Disability, Gender, Marital Status, Sexual Orientation, Family status, Membership of the Travelling Community), Public Interest Disclosure (whistleblowing).

 

If a dismissal is found to be unfair by the WRC, an employee may be awarded in reinstatement, reengagement or compensation. The maximum compensation for unfair dismissal is currently up to 2 years payment. Where a dismissal was resulting from a protected disclosure up to 5 years payment maybe awarded. 

 

Any award will be judged on a number of factors, including loss of earnings, if the employee was partially to blame, etc. An employee also has a duty to try to mitigate their losses (i.e. find another job) and any compensation may be reduced if an employee contributed to the dismissal (contributory fault). In addition, an employee who successfully wins an unfair dismissal case will be awarded a basic award that is based on loss of earnings, future earnings, loss of pension. 

 

There are potentially also other costs associated with claims, such as legal advice, it can be costly to prepare and defend a claim hearing.

 

If an employee wishes to make a claim for unfair dismissal, they should do so within 6 months of the date of dismissal. This time limit may be extended to 12 months if there are reasonable circumstances which prevented the employee from bringing the compliant within the normal limit. Complaints to the WRC are referred for investigation to an adjudication officer. All decisions of an adjudication officer can be appealed to the Labour Court.