Since January 2025, there has been a large body of case law issued by the Workplace Relations Commission in relation to disciplinaries, dismissals and the requirement in these situations for an employer to adhere to fair procedures on behalf of the employee. This case law has been reported on by Patrick Barrett BL and can be found here

Despite the fact that the Unfair Dismissals Act was first introduced in the 1970’s and the SI Code of Practice that governs fair procedures was introduced in 2000, employers seem to be continuing to make the same common mistakes when investigating employees and implementing disciplinary sanctions against them.

The obligation on employers to carry out an investigation and disciplinary process that follows the principles of fair procedures and natural justice is well defined. This obligation is given a legislative footing under the Unfair Dismissals Act 1977 and further guidance is provided for in SI 146 2000 Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (“SI 146”).

The recent case law has reiterated the importance of this legal obligation and the principles of fair procedures and natural justice and has clarified what they mean in practice.

The Unfair Dismissals Act 1977

The Unfair Dismissals Act 1977 sets out a two-step test which employers must meet to successfully defend a claim that their decisions or actions have been unfair:

1. An employer must establish the substantial grounds that justify the sanction imposed, which can include but are not limited to; competence, conduct, redundancy or a restriction under statute; and
   
2. An employer must establish the reasonableness of their decision and their compliance with fair procedures throughout the investigation and disciplinary processes. 
   

To assist employers in understanding further what a fair process in the workplace entails the Act refers employers to:

• their own local investigation and disciplinary polices; and
• to SI 146
  

Fair Procedures and Natural Justice

Local investigation and disciplinary procedures should be in writing and presented to employees in a format and language that is easily understood. A copy of the procedure should be given to all employees at the commencement of employment. It is best practice to collectively agree the procedure with the trade union that represents the employees in that workplace.

Locally agreed procedures must also comply with the principles set out SI 146 and if they don’t, SI 146 will take precedent. SI 146 states that “Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed.”

The principles set out in SI 146 are as follows:

• That any procedures implemented in the workplace are objectively rational and fair
• That procedures are reviewed and updated periodically
• That there are several stages involved in any procedure so the matter can be escalated appropriately to the appropriate personnel
• That procedures include a right to representation on behalf of an employee either by a colleague or a trade union representative
• That incidences resulting in an investigation are fairly examined and processed
• That the details and sources of any incidences are put to the employee concerned in writing
• That the employee concerned is given the opportunity to fully respond to these incidences and is allowed to question any witnesses
• That there is a fair and impartial determination of the incidences concerned

SI 146 accepts that disciplinary action is appropriate where an employee fails to meet the satisfactory standards set out in the employee’s contract of employment however disciplinary sanctions should primarily be corrective and provide the employee with an opportunity to improve the situation.

As a result, the remainder of the principles state the following

• Attempts should be made to resolve the matter on an informal basis where possible
• The disciplinary sanction applied can range from a verbal warning to a dismissal and should be progressive and proportionate to the situation
• Sanctions should not be indefinitely applied and should be removed from employee’s files after a certain period of time
• There should be an appeals mechanism available

In Practice

The above referenced case law has also highlighted the common pitfalls carried out by employers when conducting disciplinary investigations and clarifies what actions should be avoided to ensure fair procedures and natural justice has been applied. 

These pitfalls can be summarised as follows:

• Allowing anonymous allegations
• Allowing verbal allegations
• Finding against an employee with no evidence of the allegations
• Appointing the same people to hear each stage of the procedure
• Skipping stages of the procedure
• Allowing a lack of clarity throughout the procedure
• Departing from the investigation and disciplinary policy
• Arriving at a finding that isn’t based in fact
• Allowing a lack of proportion in the sanction
• Making comments that indicate a predetermined view
• Not defining the length of time that the sanction will be valid
• Not allowing the cross examination of witnesses
• Taking too long to arrive at an outcome to the allegations
• Short notice being given for each meeting and to consider relevant documents

SIPTU

Website: https://www.siptu.ie/