Is it just us, or do disciplinary hearings feel like a legal minefield? ⚖️💣

In this webinar we untangle the tricky business of fair procedures in disciplinary processes in the workplace, a topic that’s landed more than a few employers in hot water lately.

We ask (and answer) the questions on everyone’s mind:
•    What are fair procedures, really — and who decides what's “fair”?
•    Does every employee have a right to representation at disciplinary meetings? What about legal representation?
•    Do employees on probation have the same rights?
•    And when it comes to appeals are we talking full re-hearings or just looking at the specific grounds raised by the employee?

Sound confusing? You're not alone but we've got you covered!

The Workplace Relations Commission has been cracking down, with a wave of recent decisions going against employers, not because the dismissal wasn’t justified, but because the process wasn’t up to scratch.
The takeaway? Even if your reasons are solid, a poor process can cost you, big time. 
That’s why this session is a must for HR professionals, managers, and anyone involved in employee relations.

Laura McKee, Knowledge Partner at Legal Island is joined by expert legal speakers Patrick Barrett Barrister-at-Law and Roisin Boyle, Trade Union and Employment Lawyer at SIPTU. Together they explore:

1.    How to apply fair procedures in line with the Code of Practice (S.I. 146/2000)
2.    Real-life lessons from recent WRC case law
3.    Practical tips to help you stay compliant and avoid costly mistakes

🎁 Plus, get an exclusive preview of Legal Island’s new and improved Employment Law Hub —your go-to resource for staying confident and compliant.

 

Transcript:

Laura: Good morning, everyone. You are very welcome to today's webinar called "Getting Fair Procedures in the Disciplinary Process Right". My name is Laura McKee and I am part of the Knowledge Team here at Legal-Island. Today's speakers are Roisin Boyle. She is a trade union and employment lawyer from SIPTU. And Patrick Barrett, who is a Barrister at Law. So thank you both, Roisin and Patrick, for being here.

And what are we talking about today? Well, in today's webinar, Roisin and Patrick will be untangling the tricky business of fair procedures in disciplinary processes in the workplace. It's a topic that has landed a few employers in hot water lately before the courts.

So did you know that there has been a wave of WRC recent decisions going against employers, not because the dismissal of the employee itself wasn't justified, but because the actual process wasn't up to scratch?

The key takeaway of that is that even if your reasons for dismissal are solid, a poor process can cost you big time. So that's why today's webinar is very timely for HR professionals, managers, and anyone who's involved in a disciplinary process.

And today, we will explore how you apply fair procedures in line with a Code of Practice. We'll look at some real-life lessons from recent WRC case law and practical tips to stay compliant and to avoid costly mistakes.

So in addition to all of that, we at Legal-Island are delighted to also launch on today's webinar our newly designed Employment Law Hub. And this is built to better support HR professionals across Ireland.

I understand that we have quite a number of delegates on our webinar today that already are subscribers to our hub. And if you're not, then why don't you give it a try by signing up to our 14-day free trial?

So, over the past year, we've been working diligently behind the scenes on a full digital transformation of the Hub. And the result is that this resource is now more practical and user-friendly and tailored to meet all of your employment law needs.

I hope you will stay with us until the end of the webinar today and we will give you a brief tour of the new Hub so you can see the improvements for yourself. So make sure you stay with us for that. I'm also happy to answer any questions about the Hub you may have afterwards.

So back to the main topic today, we do have slides for both presentations, and you will receive a copy of those along with the recording of the webinar. If you have any questions throughout today's session, please do add them to the Q&A box and we will put them to the speakers.

So now I'd like to tell you a little bit about Roisin. Roisin studied law in NUI Galway and qualified as a solicitor in England and Wales in 2015. She returned to practise in Ireland in 2016 and she's worked both in private practice and in-house as a trade union and employment lawyer. Roisin currently works for Ireland's largest trade union, which is SIPTU, and she also regularly contributes articles to Legal-Island's Employment Law Hub.

And also, I want to say thanks always to our sponsors, MCS Group. MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to mcsgroup.jobs.

And before we begin, I would like to do a few quick polls, and it's all anonymous. You will now shortly see on your screen a poll, and it would be interesting to see some results.

So the first poll my colleague, Arnold, is going to share now. The poll is "Which workplace topics do you think we at Legal-Island should be talking about?" Is it personal injury claims for mental health, exit conversations, preparing for a WRC adjudication hearing, five Gen AI tools that HR must know, or the issue of contractors versus employees? So I'll give you a moment to complete that.

It looks like preparing for a WRC adjudication hearing is coming up quite high, followed by personal injury claims. So plenty of employment litigation happening.

We'll move on to the next poll, which is "Which topic is most relevant to your workplace?" Is it DEI, given the current climate? Is it investigations and note-taking, burnout or stress at work, flexible working, or hybrid and remote work? So I'll give you a minute to complete that.

Investigations and note-taking is coming out quite high. And just so you're aware, Legal-Island do have a separate event on investigations that's led by Michelle Halloran, HR consultant, so make sure you check that out. And burnout and stress at work are coming in second place. So very interesting to see the results there.

We'll move on to the last question, which is about AI. "How is your organisation currently approaching AI tools, for example, ChatGPT or Copilot, in relation to your HR or learning and development training needs?" So are you reducing your reliance on external training? Are you using it informally but hasn't replaced any formal training? Exploring AI but haven't integrated it yet into your HR? Restricting or prohibiting use of AI tools or you're not sure yet or it's just not applicable in your workplace?

So I'll just give you another few seconds on that and then we will be handing over to Roisin.

Great. Thank you so much for completing those polls. I am now delighted to hand over to Roisin who will outline fair procedures and disciplinary process.

Roisin: Hi, Laura.

Laura: Hi, Roisin.

Roisin: Hi.

Laura: No bother. I'm going to share your slides now. And off you go.

Roisin: Thank you. Yeah. I can't see those slides, Laura.

Laura: Let me just check with Arnold. I think he's probably working on them in the background. One moment. Bear with us. There we go now. Thanks, Arnold.

Roisin: Okay. Thanks. So, as Laura said, I'm going to do a presentation on "Getting Fair Procedures in the Disciplinary Process Right". That can be quite complicated, and there's been a lot of case law recently in the Workplace Relations Commission that led us to do this presentation.

Arnold, if you could move on to the next slide, please.

Since January 2025, I think there have been somewhere between 15 and 18 cases from the WRC in relation to fair procedures. They're mainly unfair dismissal cases, and it's the same common mistakes that seem to be coming up time and time again.

So, in this presentation, the aim really is to go through what does a fair procedure look like in practice. The obligation is well defined in the Unfair Dismissals Act 1977 and in SI 146. But really, I suppose, what that looks like in practice can often be quite different to the theory.

So, Arnold, if you could move on there to the next slide.

There are two steps in the Unfair Dismissals Act which an employer has to meet in order to defend any claim for an unfair dismissal accusation. The first is what are the substantial grounds that justify the sanction imposed, whether it's competence, conduct, redundancy, or a restriction under statute?

Really, from the case law that's come out since January, it's quite clear that most employers will have a substantial ground, and that's straightforward enough to demonstrate.

But where the employers are falling down is in the second part of the two-step test, which is was the decision reasonable and was it arrived at through a fair procedure throughout the investigation process and the disciplinary process?

So, we'll see as we go through the slides what that involves, but really that's quite nuanced, and each individual case has to be dealt with on its facts. The court is really focussing on that procedure more so than on the substantial grounds.

Arnold, if you could move on to the next. Thank you.

So Anthony Kerr, who is an employment law barrister, wrote in a paper that he did in 2011, "So clear indeed is the importance now placed on the procedural fairness that it seems in certain cases to eclipse the grievance or disciplinary issue giving rise to the instigation of the procedure in the first place. The entire case becomes an argument based on fair procedures and not on the allegation itself".

If you could move on to the next slide, Arnold.

"It is not surprising that employers with neither an understanding of abstract legal procedures, nor the inclination to study them, become frustrated with the proposition that they should take time and spend money on what might seem to be simply the long way round to an inevitable dismissal.

"But it is the very essence and purpose of these fair procedures to safeguard and ensure that shortcuts are not taken and that outcomes which might seem desirable in terms of time and money do not form the basis on which workers lose their jobs.

"So fair procedures are often based on nothing more than common sense and an employer should be able to stand over any procedure and have no fear of accountability".

I think those two quotes from Anthony Kerr make it quite clear the view of the courts, and that's been their view for a while. And we'll go through where the guidance for fair procedures comes from in the next few slides. But really, the focus will be on the practical tips that are needed in order to make sure that mistakes are not made because of time and money, and that ending up with a third-party claim is completely unavoidable if fair procedures can be followed locally.

So. the Unfair Dismissals Act points to an employer's local investigation and disciplinary policy first as guidance of what a fair procedure should look like. And then second, it points to the SI 146.

Arnold, if you want to move on to the next slide there.

Local policies should be in writing and they should be presented to employees when they start their employment in a format and language that is easily understood, and should be collectively agreed with the trade union that's involved in the workplace.

And they must comply with the principles set out in SI 146. So if they don't, SI 146 will take precedence, which is an important thing to note.

So, SI 146. The next two slides set out the principles that are set out in that Code of Practice. And I won't go into them in detail because I think everybody on the webinar is probably more than aware of them, and I think really it's what they look like in reality is what's more important.

Just to run through them quickly, the Code says that the procedures should be objectively rational and fair, and they should be reviewed and updated periodically, and they should contain various stages for escalation.

Different personnel should be utilised for different stages. The details and sources of the complaint are put to the employee in writing. Employees are allowed to fully correspond to the complaint. Employees are allowed to question any witnesses. And employees have a right to be represented by a colleague or a trade union rep.

There is a fair and impartial determination of the allegations. The allegations are fairly examined and processed. Attempts should be made to resolve the matter on an informal basis. Disciplinary sanctions should be progressive and proportionate. The sanctions should not apply indefinitely, and appeals mechanisms should be available.

So, what does a process look like in practice, then, if all of these principles are going to be applied? I've split it down into three stages. So you'll see there on this slide that this is Stage 1.

Really, these pointers, numbers 1 to 6, are coming from the case law, and so I won't get into each case in too much detail. And Patrick is going to pick a few examples of the case law. But these points have all been reconfirmed in the recent case law that's come from the WRC since January 2025.

The first thing is that when an employer gets a complaint, that complaint should be provided to the respondent or the accused employee, but it should be in writing and it should be signed and dated. And quite often, that doesn't happen because it will be a verbal complaint and then that verbal complaint is just passed on to the accused employee.

Whereas if it's signed, it means it's not anonymous. If it's dated, it means that everybody knows when the complaint was made and when the employer decided to act, so there is no dispute about the delay in the process. And also, it gives a lot more clarity to the employee who's been accused about what the allegation actually is and when this incident was meant to take place.

The second point in the first stage is that the respondent should be given time to consider this complaint and to seek advice.

Often in a workplace where people know each other and there are existing relationships there already, people will be called in and told about the allegation and there'll be an informal conversation at that time about what happened.

Whereas we would always advise our members that, really, they should take the complaint away and think about it and process it and seek advice before they respond, because anything that's said in that meeting, both by the employer and by the employee, can be relied upon later. So you should make sure that those conversations are formal.

The third point is it should be made clear what policy was breached and a copy provided. So this links back to the principle in the Code that there should be no ambiguity and that, really, for a fair procedure, everything should be clear.

So, the accused employee has a right to know what policy they're alleged to have breached, what exactly is the allegation, and the details of the allegation against them. If there's any evidence to that allegation, they should have a copy of that, whether it's CCTV or something else.

And also, what policy is going to be followed now throughout this investigation, whether it's an investigation policy, a bullying at work policy, a dignity at work policy, so they know what's coming down the road and what steps are ahead of them.

The next point in the case law was that an investigator should be appointed and should not be conflicted. And again, like Anthony Kerr says, while this looks like common sense, it's often something that's missed because the disciplinary policy and the investigation policy will sometimes say that an external investigator is required, but the employer may not realise that or may not have checked the policy recently and will appoint someone internally to investigate.

It's always good to double-check exactly what type of investigator is set out in the policy. Sometimes, even lists of people are already agreed.

And the investigator should draft an agreed terms of reference with the respondent's representative, and the terms of reference should make clear parameters of what is being investigated.

The purpose of those last two points, really, is that the terms of reference govern the investigation. What's in the terms of reference really is the Bible of what you can and can't do throughout the investigation. And if there's any dispute or anything later on at different stages of the process, it's always the terms of reference that are referred back to.

While the SI code is there, it's always good practice to put those principles into the terms of reference and make sure that all the parties involved are agreed on what the terms of reference say before the process starts, because then everybody's agreeing that it's a fair process from the very beginning.

If there's any deference from that process, you can easily bring it back on track by just referring back to the terms of reference if they were well drafted from the beginning.

Arnold, if you want to move on there, we can talk about Stage 2.

Once all of that is, I suppose, clarified and the accused employee is aware of the allegation and the terms of reference are agreed, then the process can officially start.

The first point in Stage 2 that's coming through from the case law is that the meetings should be held with the complainant and the witness first. So, again, maybe while this sounds obvious, what often happens is the investigator will contact and meet whoever is available first rather than in a specific order.

If the respondent is met first, or the accused employee, then they don't have access to all of the information that they're meant to be responding to because the complainant hasn't been interviewed and the witnesses haven't been interviewed yet. And often then the investigation can become quite disjointed.

We had one situation recently where the accused employee was met first, and because they brought up things in that meeting, they then essentially became the complainant to a certain extent and the person who'd made the original complaint was feeling quite attacked in their interview by the investigator.

So it's always best practice to meet the complainant first and then the witnesses and then the respondent. By the time you speak to the accused employee, all of the information and evidence is on the table and they can respond fully to everything.

The second point is that all evidence and minutes should be shared with the respondent in advance, which reinforces the point I just made.

The third is that the respondent is entitled to representation. So SI 146 states that it's representation from a work colleague or a trade union rep.

Maybe a good example of this is actually in the TV show "Adolescence", if anyone has seen it, where the boy is being interviewed in the police station. He has his dad with him and he has a solicitor with him. He answers all of the questions, and so the accused employee should be answering all of the questions that the employer is asking.

But the representative is there not in a support role, which is often what's argued, but in a representative role where they can step in if required to make sure that the questions are being asked in an appropriate way, or that there isn't a badgering going on, and that the accused employee understands the questions that are being asked and why they're being asked them.

But they're not there to speak on behalf of the employee. They're just there to represent, but equally, they're also not there just to support.

And the next point coming through from the case law is that the respondent has the right to cross-examine the complainant and the witnesses. This sometimes can be quite controversial, I suppose, because it can become quite antagonistic, and I think that can make employers very uncomfortable that they might be putting one of their staff through an antagonistic process. But there have been some practical examples come through on the case law.

One case that Anthony Kerr cites in that 2011 paper, the complainant had said that psychologically or psychiatrically she wasn't able to really respond to a cross-examination. And so in order to resolve that, there was an assessment done to see if she could actually sit through a cross-examination.

Another practical example that we often use is that it will be the trade union representative that does the cross-examination rather than the accused employee because they're a professional and they understand the nuance of that cross-examination and how it should be done.

And then there's an agreement or it's included in the terms of reference that that cross-examination would be done courteously and respectfully, and if there's anything that becomes overwhelming for the complainant or the other witnesses, a break is taken.

It's important to adhere to that principle in the SI and to put practical tips in place to make sure that it can be adhered to.

The last point, then, in Stage 2 is the draft report should be shared with the respondent and the other parties. Again, this sometimes isn't done because I think it can open up a floodgate of changes at the last minute or people think that they have another opportunity to put their response forward.

But it is best practice to do this, really, because there are often a lot of inaccuracies or flaws in the draft reports, especially when it's a large investigation. And it allows everybody one last chance just to make sure that everything is clarified.

That report, once it's finalised, can't be changed. And once it goes into the disciplinary stage or the appeal stage or even into a third-party claim, nobody is allowed to go back and start the process again. So they have to take that report as read.

If that report has inaccuracies that are unnecessary, then it leaves the employer open to an accusation of an unfair procedure that otherwise may have been okay. So simply agreeing that report at that stage before it's finalised can make a big difference going forward.

Arnold, if you want to move on to the next slide, which is Stage 3.

Stage 3, if the report finds against the respondent or the accused employee, then you're at the disciplinary stage. And as I was saying a few slides earlier, it's very important to make sure that you're following the fair procedure through the disciplinary stage as well as the investigation stage. You're not yet home and dry.

And so a separate unconflicted personnel should be appointed to hear the disciplinary stage. They must rely on the report provided to them, so it's vital that this report is correct, which we just discussed.

A proportional sanction must be applied. So context is important, and we'll see that in an example of the case law in the next slide where sometimes the accusations against employees can be so severe, and if the employee admits to what they're being accused of, then that's just taken as an open-and-shut case rather than why they maybe did what they did being considered. And then the sanction has been criticised by the WRC when a claim is taken to a third party because the sanction isn't technically proportional.

So, the next point is that the sanction should not be kept on the respondent's file indefinitely, which we see quite often in that they could have a final written warning for five years and then they're dismissed. That has been criticised by the WRC.

And the respondent should be provided with the right to appeal. The right to appeal is not a de novo hearing, it doesn't go back to scratch, but it allows the accused employee to raise any issues that they may feel had been unfair. And if that appeal is done correctly, that can also prevent a claim going into a third party as well.

Arnold, if you want to move on.

Just some of the cases that have come out since January, and Patrick will go into some of these in a lot more detail than I will. But just to confirm what I said, in the Roberta Girinelli v Genius Limited case, they focussed on the fact that she had a contractual obligation to do something. She actually got permission to do what she did, and then after she did it, she was told that it was against her contract. And that was found to be unfair because, again, that's a total lack of clarity.

Artur Marecki v Board of Management Scoil Padraig Naofa, there was no process followed. It was after a fraught meeting between him and his employer. He didn't apparently act very nicely and he was more or less summarily dismissed. And the court found that regardless of his behaviour, a process should have been followed.

Nkemka Patrick Okachi v Sodexo Ireland Limited, he was accused of doing something kind of . . . I think it was sexual harassment, so something that people don't feel comfortable with and certainly can't defend. And he admitted to what he was accused of doing, but there was no consideration for how this came about or exactly what happened. They just focussed on the fact that someone said he did something, he said he did it, and that was it. And so that procedure was found to be unfair.

Geraldine Baxter v Little Sisters of the Poor. It was a UK HR company, and while they did follow a procedure, the personnel involved were based in the UK and they followed the UK fair procedures rather than the Irish ones, and that was criticised.

Aine O'Driscoll v Sheenco Travel Limited refers specifically to SI 146 and the importance of following the principles in that.

Aidan Fitzgibbon v Autism Initiatives, I'll leave to Patrick. I think he's going to go into that in quite a lot of detail.

And Kate Brennan v TCD is just a reminder that fair procedures and natural justice and the principles set out in SI 146 should be followed at all times even if you have an employee during their probation. So if an employee has joined and they're struggling or they're not quite performing how you want them to, communication early is key and starting the process early is key and putting them on some performance improvement plan is what was found in Kate Brennan's.

By the time they informed her that her probation hadn't been passed or approved, she was already passed one year's service and brought an unfair dismissal claim because no process was followed.

Arnold, if you want to move on.

So, just the last two slides to round things up and just summarise in terms of things to avoid.

It's a fact-finding investigation, not a moral judgement, which is often very difficult sometimes with some of the accusations that can be made.

Keep an open mind despite what you hear. There's no determination until there's a determination.

Document, document, document. Ask for the complaints in writing. Keep your own notes. Provide minutes to the respondent.

Give advanced notice of meetings so everyone has time to prepare, but keep the investigation moving efficiently.

Apply proportionality based on the respondent's entire employment history. So how long have they worked there? Is this the first time they've ever really got in trouble?

And always be crystal clear, so no ambiguity whatsoever. There shouldn't be any unanswered questions.

And then the last slide is to remember to look at your own policies before you start. Ensure that your policies are compliant with SI 146. Don't focus on the severity of the allegation alone. Remember the second part of the test in the Unfair Dismissals Act. Engage in the nuance of the situation and the contextual background. So you're applying proportionality. Don't forget that fair procedures apply at every stage, investigation and disciplinary. And remember, if the investigation is flawed, it's often all considered flawed after that.

So, hopefully, that's helped clarify a few points.

Laura: Brilliant, Roisin. That was a very practical, excellent overview of fair procedures. And it's really useful, I think, for our delegates to hear from an employment lawyer who acts mainly for employees, an understanding from that perspective. So thank you so much for that.

Roisin: You're welcome.

Laura: And just to make everyone aware that Roisin's article on fair procedures is available free to everyone. It's on our Employment Law Hub. I think Arnold is going to drop the link into the chat box. You'll also get it in your post-webinar email, as well as Roisin's slides. I think her last two slides were particularly beneficial there in relation to top tips.

Just a reminder that you can still ask questions, so please go ahead and drop them into the Q&A box, and we can get to those after Patrick's session.

I'd now like to move on to Patrick to provide us with a case law discussion. So just to give you a bit of background, Patrick has a law degree from UCC, followed by a Master's in Business Law from UCC also, and accumulated a Barrister at Law degree from King's Inns in Dublin.

Patrick has extensive experience on the South West Circuit handling civil, family, and criminal law cases, as well as advising the citizens' advice service. He works as an employment law consultant and deals with workplace investigations and also bankruptcy procedures.

So he'll demonstrate some key WRC decisions where employers have failed to adhere to fair procedures in their process, and also give you some practical tips for employers to stay compliant and to avoid costly mistakes.

And finally, just a reminder that all of the cases that Patrick will discuss today are available for free for you on the Employment Law Hub. So make sure you do check those out.

Over to you, Patrick.

Patrick: Thank you, Laura. Thank you, Roisin, as well for your informative presentation. I have three slides and, hopefully, Arnold can pull those up as I indicate.

Thank you, anyway, for the opportunity to speak with you today on a matter that remains central to the working relationship between the employee and employer. And that's the application of fair procedures and what happens when they go wrong.

At best, a failure to follow fair procedures exposes the employer to legal and reputational risk. And at worst, it can be costly, it can affect morale, and it can even, arguably, lead to the reinstatement of somebody whose conduct may genuinely warrant dismissal in the first place. Always just mishandled.

So I'm going to speak about two matters, and there'll be a slight overlap with what Roisin spoke about in terms of the Code of Practice, and also the case law. I'm conscious of time and I'm also conscious that these cases are available on the Legal-Island Employment Hub, so I would encourage you to go in and read them in more depth.

As outlined by Roisin, the Code of Practice on grievance and disciplinary procedures that was introduced under the Statuary Instrument in 2000 is what the WRC and the Labour Court consistently rely on when it comes to assessing whether a dismissal was fair.

The Code itself outlines five core principles, and they're in the second part of the slide there. And these derive from the Constitution, under Article 40 of the Constitution. You have enumerated and unenumerated rights, which I'm not going to go into. This is not a discussion on the Constitution.

But you have a right to fair procedures. And so within that, you have the right to advance notice of an allegation, you have the right to respond, you have the right to representation. I'm going to talk about that at the very end. Right to impartiality, and then the right of appeal.

And these rights must be respected at every stage of the process, from the investigation at the very start, all the way up to the appeal stage. The law doesn't say that a dismissal can't happen, but what it does say is that the dismissal can't happen without fair process. Even if it is objectively justified, it can't be procedurally unfair.

It comes back to natural justice, the constitutional right to natural justice, and it's about treating employees with dignity and transparency and fairness.

If you could pull up the next slide, please.

I mentioned three cases, as not to overload you, and two of which Roisin mentioned.

The first one being O'Driscoll. Basically, Ms O'Driscoll had a history of performance issues. She received a verbal and then a written warning. And then in July 2024, she was dismissed abruptly. It was over the phone. There was no meeting, no written notice, no chance to respond, and no appeal. So manifestly unfair.

The employer later claimed that her mistakes amounted to gross misconduct. But without a disciplinary hearing, the WRC held that this was just procedurally unfair.

The award being €5,000. Now, that might not seem catastrophic. It depends on the size of the organisation, of course. But had they followed their own procedures, given a hearing, allowed the appeal, then they might have been justified in the dismissal from the very outset.

So in terms of tips from that case, you would be arguing, "Well, document all warnings". That's a given. Give clear written notice before a disciplinary action takes place. State the allegations and allow the employee to respond. And then provide a genuine opportunity to appeal by someone unbiased.

I think my slides have disappeared. They are on my screen, but anyway, I'll proceed on.

The second case being Fitzgibbon. And in the Fitzgibbon case, the case involved serious allegations where Mr Fitzgibbon was accused of making derogatory comments about service users. Mr Fitzgibbon claimed that the real reason for his dismissal was retaliation for a protected disclosure and union activity.

The employer said that they had conducted fair process, but the WRC disagreed. Why was that? Well, there was no formal investigation. Neither the complainant nor the accused was interviewed. And there was evidence of bias and unfair decision-making.

So even where there potentially was gross misconduct, the employer failed to uphold fair procedure. The award in that case being €12,500.

Lessons to be learned from that would be to always investigate before moving on to disciplinary actions. Identify the decision-makers who will be involved and keep them separate from the investigation. And also, maintain detailed records of the process throughout.

And then the third case there being Mr Gilmore. The employer, in that case, failed to actually attend the WRC initial hearing. He did show up to the second date, but he walked out mid-proceedings and stated he wouldn't be complying. He admitted that there was a breach of employment law, including failure to pay minimum wage and holiday pay. And most importantly, he dismissed Mr Gilmore without any procedure at all.

If I might just pause. Apologies about that. A colleague was in the hall with me.

So getting back to that, there was no notice, no investigation, no record, no defence. And unsurprisingly, the WRC ruled the dismissal unfair and awarded just over €10,000.

The takeaway from that being that a hands-off casual approach is a liability, and it's certainly not anything that displays leadership. So, again, takeaways being attend WRC hearings, which should be a given, keep up-to-date contact details for all employees, and never dismiss informally.

There are two other cases which if you have pens, you might take a note of, these being available on the Legal-Island Hub. They being Kate Brennan v Trinity College Dublin. And that involved the probation . . . she was a probationary employee and that even they are entitled to fair procedures.

And the case of Mark Mcgillycuddy v Avoca Handweavers. In that case, the employer failed to provide evidence or alternatives regarding the redundancy and he was awarded over €57,000.

The takeaway being process is paramount in this when you terminate an employee and whenever there is a disciplinary action, dismissal, or redundancy.

We'll go to the final slide there, please, Arnold, and I'm going to give a number of 10 practical tips in terms of safeguarding rights for both parties.

The first being to know your own policies. Ensure that all managers are familiar with the discipline and grievance processes throughout. This can be done by proper training, of course. Strictly follow these policies in practice because inconsistency weakens defence in any dispute.

Secondly, always provide written notice, not to be done on the telephone or verbally. Document it. Outline any allegations within the writing. Keep any supporting documents and details if relevant. Include the date, the time, the location of the meeting, if any occur, regarding giving the discussions around notice, and document the written notice. And specify that dismissal is a possible outcome.

Third, allow representation. I'm going to come back to that point in a second.

Fourth being impartiality is key. Of course, as I said, assign separate individuals to handle the investigation, the disciplinary, the hearing, the appeal stages. This ensures objectivity and removes any perception that there's a conflict of interest.

As I said ad nauseam, document everything. Keep detailed notes about meetings, warnings, correspondence, decisions, because if this goes to WRC, they'll want to see them.

Any appeals must be genuine. They can't just be a box-ticking exercise.

Make sure then, seven, to involve HR at an early stage just to ensure that there's compliance. Early involvement will help any procedural errors.

Prepare for the WRC. Make sure all your ducks are in a row regarding that, and early engagement with them will strengthen your position.

Don't shortcut due process. Even where the misconduct speaks for itself, let's say, make sure every procedural step is done without exception because the WRC will be evaluating this.

And then consider proportionality. Not every incident that occurs justifies dismissal, so it's best that you explore other sanctions.

To conclude, basically, on that, fair procedures are not just box-ticking exercise or legal technicality. They're fundamental to the good leadership and sound governance, whether you're managing performance issues or addressing misconduct or making difficult decisions about dismissal. How you go about it matters just as much as why they happened.

And the WRC cases, as I've touched upon, are within the Legal-Island Legal Hub and go into more detail on these. So I suggest you, when you have time, perhaps have a look and take away key points that are detailed within those.

I did say, lastly, that I'd touch upon representation just in case there's any sort of ambiguity regarding representation. And so under the SI code, you do have a right to representation, but the Code says that's limited to a work colleague or a trade union representative.

Now, there's no automatic right to bring a solicitor or a barrister. However, legal representation may be allowed in exceptional cases. This was put forward in the case called Burns v Governor of Castlerea Prison where the Supreme Court ultimately held that legal representation may be warranted in all cases regardless of what jurisdiction they fall in depending on the gravity of the case and the fairness involved.

They said that legal representation is not an automatic right in disciplinary hearings, but may be required where there are exceptional circumstances, particularly where justice demands it.

And the absence of a provision for legal representation within internal codes does not automatically bar it. There exists discretion. But if it's a serious matter with potentially serious consequences, then it should be seriously considered. So the default position being colleagues, union reps have a right, but do not discount having a solicitor or a barrister because that might ultimately come back to bite you.

Thank you.

Laura: Fantastic. Thank you so much, Patrick. And we'll invite Roisin back on as well.

So, that was really great to hear your perspective. I know you primarily will act for employers as well, so it's great to get those practical tips, especially around the representation because I know that comes up quite a lot.

We have quite a number of questions and we probably won't get through all of them, but let's start. The first question that's coming up for me is prior to issuing a verbal warning or, say, even a first written warning, is it acceptable to move to a disciplinary meeting followed by giving the relevant sanction, or do you always have to instigate an investigation? I suppose would every case require an investigation?

Patrick: I would say, by the very nature of a complaint . . . It seems to be inferring that there is a complaint made. If there is going to be an investigation, there would have to be an initiating complaint of some sort. So yes would be . . . You're going to a disciplinary meeting without investigating, which wouldn't be fair. So you'll need to document.

Laura: Document, yeah.

Roisin: And the only other really . . . If it was a performance issue, you would have a performance improvement plan, which is a different type of investigation where you're looking into what the employee is not achieving, and having conversations with them about why they're not achieving it and how they can achieve it, and giving them a few weeks or months.

And then if, at that stage, it's still not being achieved, you might move on to disciplinary. So there will always be some kind of process before disciplinary.

Laura: Great. Next question. When a respondent chooses to cross-examine the complainant, you say this can be done by their representative, but what if their representative . . . So, for example, it's the trade union representative. They have a legal background or qualification. Would that not be considered unfair?

Patrick: No. If they fall within the category . . . I mean, you can bring a colleague in who might have a law degree. If it so happens that your trade union rep has a law degree, no. They are in that position as a rep, so they have an automatic right.

The answer would be then the employer would be probably best place to bring in their own legal representation, but I suppose it has to be quid pro quo then. If you bring in a lawyer as an employer, you'd have to allow, if they wish, the employee to bring one in.

Laura: Yeah. And I suppose when you get lawyers involved that early, you can escalate matters a little bit as well. Within your experience, do you see that happening?

Patrick: Yeah, it goes from being perhaps . . .

Laura: Informal to very . . .

Patrick: I wouldn't say informal. I suppose it becomes more confrontational.

Laura: Yeah, that's the word. Could you provide some more information on terms of reference? So should they be drafted by the investigator or representative of the company and then provided to the investigator? Could you provide maybe some details around recommended areas that you include in terms of reference? I know, Roisin, you spoke about this a bit in your presentation.

Roisin: Maybe just as well before we move on and say to that last question, I think if there's trade union representatives that have a legal background or a law degree, they're not acting as solicitors or barristers. They're acting as trade union reps. So I think they'll just have the benefit maybe of the experience of cross-examination, but there's a line there where I think they're not going to be doing the same role as a legal representative.

So, in terms of the terms of reference, I suppose I would always argue that it should be the investigator that drafts them because they're meant to be independent from the employer.

If the investigator is meant to be independent from the employer and anyone else who might be involved in the process later on, then it should be the investigator that drafts them. And then once they're drafted, they should be approved or agreed with the other parties involved.

In terms of examples of what should be in them, I think it should be clear what the allegation is and what specifically the allegation is that they're investigating.

So, for example, we did an issue last week where someone's been accused of saying a specific thing in work, which if they said it is totally inappropriate. But now the investigation has become about what they wear to work. That's not in the terms of reference and that was never an allegation, so that is technically outside of the parameters.

I think it needs to be clear what exactly the allegations are and what is going to be investigated, and that is the fact-finding exercise. If there are going to be witnesses interviewed, they will be interviewed.

Referring back to the general principles that are in the SI is what I would use as the basic template for terms of reference.

Laura: Great. Thanks, Roisin. Another question. Do all witness statements need to be given to the accused after the investigation and before the disciplinary, even if all the employees involved are still working in close proximity? So they're entitled to it, aren't they? Yes.

Roisin: So, the witness statements should be given to the accused before the accused responds, because they need to know what they're responding to. Definitely before the disciplinary, because it should be before the report is finalised.

Yeah, it can cause issues, I suppose, in workplaces where people are close, or they're colleagues who are working side by side and people don't want to put their head above the parapet.

But again, that goes back to the terms of reference. It's important to have a confidentiality clause in the terms of reference. Make sure that everybody signs it. And if there's any unwanted conduct in the workplace around the investigation, then that should be dealt with swiftly. If there's intimidation of witnesses or bullying as a result of somebody coming forward, then that can be dealt with in a separate process.

Laura: Great. Thank you both so much. We do have lots of questions, but we are running out of time, so unfortunately, we will have to move on.

I think some of the key takeaways, for me, are to know your procedures really well and everyone to stick to them, and to document, document, document, as you said, Roisin and Patrick. You were saying it's not a box-ticking exercise. Fair procedures are a fundamental right, and this is where we're seeing employers not succeed in the WRC.

I'd just like to say thank you both so much for your very informative sessions and for answering those questions. And apologies that we didn't get to all of the questions today. This is clearly a very contentious issue for employers.

I'd love for you all to stay on. We are going to show a very quick video demonstrating the features of our newly improved Employment Law Hub. Don't forget to take advantage of our 14-day free trial to see first-hand how the Hub can benefit your business. And I will also be here after the video to answer any questions you may have.

Arnold, I will let you upload that now.

Video: I'm delighted to introduce you to the new Legal-Island Employment Law Hub, redesigned and ready to support HR professionals across Ireland like never before. I will now give you a short tour of just how practical this resource is.

If you work in HR, you know how quickly employment law in Ireland evolves. Staying on top of changes and understanding what they actually mean for your business can feel like a full-time job. That's exactly why the Employment Law Hub exists.

As a subscriber, you'll get instant access to trusted, up-to-date content written by leading legal and HR experts from across Ireland. It's a streamlined, searchable, and supportive space designed to save you time and give you confidence in your day-to-day decision-making.

So, let me show you around. We're now on the main page of the Employment Law Hub. From here, you can easily explore the key sections using the drop-down menu. You'll find Browse All, Topics A-Z, Articles, Webinars Podcasts, and Case Law.

Let's start with Browse All. This section shows you the very latest articles and case law uploaded to the Hub. You'll see handy filters down the left-hand side so you can quickly sort by Content Type, Series, Topics, Authors, and even the Legal Body for case law.

Next, we have the Topics A-Z section, so let's go there. We've identified 36 key employment law themes that come up again and again based on the real-world questions HR professionals are asking.

Let's say today you're focussed on disciplinary procedures. You can head straight into the Discipline topic. Here, you'll find over 52 results, everything from expert articles to case law all in one place.

And if you want to dig a little deeper, you can filter by a subtopic, such as Fair Procedures, and you'll get more than 130 tailored results. You can also filter by date and look at the most relevant or newest or older articles, etc.

Let's move on to the Article section. This is where you'll find fresh, relevant guidance on the hottest topics in employment law, such as the auto-enrolment pension scheme, gender pay gap reporting, pay transparency, artificial intelligence, and a lot more.

Each article is written to be concise, practical, and easy to understand. No legal jargon, just clear answers to the HR challenges you're dealing with today.

And don't miss our Friday Round Ups. They are a weekly newsletter landing in your inbox every Friday morning. We give you the key developments in HR and employment law that week. And it's just for our subscribers.

You'll also see that we feature exclusive expert-led series. For example, the leading employment law team at RDJ send us a monthly article called "How Do I Handle It?" Articles such as this one tackle real-life scenarios in a straightforward way.

Let's now take a look at our Webinars and Podcasts section. Here you will find recordings of all of our previous sessions, perfect if you couldn't attend live or just want to revisit something at your own pace.

And finally, let's talk about our most popular section, Case Law. Each week we upload at least two new case law reviews. These are summaries written by experienced employment law barristers. They cut through the complexity, no legalese, just clear insights into what happened in the case, why it matters, and practical guidance for employers.

Our Case Law section has case reviews from the Workplace Relations Commission, the Labour Court, and the higher civil courts.

So, that's a quick tour of our Employment Law Hub, your one-stop trusted resource for everything employment law in Ireland.

We'd love you to try it for yourself, so you can sign up to a free 14-day trial to see how it can support you in your work. Thanks for watching, and I hope to welcome you as a subscriber very soon.

Laura: Thanks, everyone, for sticking on to watch that video. If you've any questions, I'm happy to stay here for a few minutes and answer those. If not, have a lovely afternoon. Thanks again to Roisin and Patrick for sharing their insights into fair procedures. Thanks to Arnold in the background for all his tech support. And thank you to all the delegates for attending today and for all your questions. We hope to see you again shortly. Take care.

Sponsored by: