How to avoid a claim for unfair dismissal

As an employer a claim for unfair dismissal can be very costly to you, in terms of time, money and stress. The use of policies and procedures in the workplace will help you avoid such claims.

Policies and procedures, along with the contract of employment, set out the parameters of the employee/employer relationship and used properly, the policies will: –

• minimise workplace conflict;
• safeguard your business against the risk of claims;
• provide you with a good defence in the event that a claim does arise.

One of the most important policies is a Disciplinary Policy.

Legal obligation to provide procedure for dismissal

As an employer, you have a legal obligation, within 28 days after an employee enters into a contract of employment, to give a notice in writing to the employee which sets out the procedure with will apply before and for the purposes of dismissing the employee. It is advisable to give every employee a copy of the company’s Disciplinary Policy with their written contract of employment.

What should be included in the Disciplinary Policy?

The Policy should include circumstances in which an employee can be subjected to disciplinary action. It should also include a definition of “gross misconduct” and set out a non exhaustive list of what constitutes gross misconduct e.g. theft, intoxication in the workplace etc.

You should use the Disciplinary Policy where the employee’s conduct, attendance or performance is of a concern or where, for example, a finding of bullying has been made against them following an investigation.

Steps in dealing with a disciplinary issue

Where disciplinary action is required, fair procedures must be followed. These include: –

• Details of allegations or complaints should be put to the employee;
• The basis for the disciplinary action must be clear;
• The employee should be given a reasonable notice period for a meeting;
• The employee should be given an opportunity to respond fully;
• Witnesses should be available;
• The employee should have the right to bring a representative;
• The employee has a right to a fair and impartial determination of the issues;
• The employee has a right of appeal.

Sanctions which can be imposed

The sanctions imposed are generally a series of escalating steps and must be proportionate to the employee’s conduct. These include: –

• An oral warning;
• A written warning;
• A final written warning;
• Suspension;
• Transfer to another task;
• Demotion;
• An appropriate disciplinary sanction other than dismissal;
• Dismissal

Dismissal is usually the last resort. Some cases of gross misconduct may warrant an immediate dismissal. However, fair procedures must still be followed to ensure that the dismissal was fair.

Avoid claims for unfair dismissal

If fair procedures are not followed, the dismissal could be rendered unfair, even in case of gross misconduct.

Claims for unfair dismissal are brought to the Workplace Relations Commission and can be costly for employers, both in terms of time and money.

If an employee succeeds in a claim for unfair dismissal an award of up to two years’ remuneration can be made. Once it is accepted that the employee was dismissed, the onus is on you, as an employer, to prove that the dismissal was fair.

Where you can show that you followed a robust Disciplinary Policy which was communicated to the employee and fair procedures were followed in dismissing the employee, you may prevent a claim arising in the first place or you will have a good defence in the event that a claim is brought by a former employee.

At Douglas Law Solicitors we provide expert advice to employers. We prepare contracts of employment and workplace policies and procedures (including Disciplinary Policies) tailored to suit the particular requirements of your business and we ensure that you are fully compliant with your obligations under employment legislation.

For further information, please contact us on 021 489 7256 or by email at aoife@douglaslawsolicitors.ie