Don’t be caught by your own policy - Do the right thing!

In most cases, it is not the breach of legislation that comes back to bite employers but their supposed actions or inactions. While the EU Directives and domestic legislations on employment law generally are clear in terms of their provisions, employers are often caught and forced to pay compensation to employees because they inadvertently ignore to adhere to their own policies and handbook documents or inconsistently apply them. Arguably, employers tend to focus on hard law –described in this article as core EU Directives, statutory provisions and instruments but pay little or no attention to their respective company policy/handbook documents. Surprisingly, some do not even have policy documents at all!

Examples of policies companies should include at least are as follows:

• Grievance and Disciplinary
• Dignity and Respect ( Anti Bullying & Harassment) 
• Social media/use of phone
• Sick leave
• Absence from work
• Staff Purchase/discount policy
• CCTV policy
• Alcohol policy

The consequences of not doing the right thing could for example result in an employer paying up to two years wages in cases of an unfair dismissal or other compensatory awards which may be made against an employer under various legislations . The secret to dealing effectively with investigation and disciplinary matters, is for employers to conduct thorough fair investigations into any raised issue(s); paying particular attention to company’s policy rules and regulations on any contentious issue(s). It is also essential that these rules and regulations are applied consistently, otherwise, an aggrieved employee could successfully bring a case before a Workplace Adjudicator or before the Courts. Decisions from case law tend to indicate that employers generally have to pay compensation for not adhering to their own policies, rather than failure to fulfil their obligations under law or statutory obligations.

Doing the Right Thing

Just this month, in (AD1697), the Labour Court upheld the decision of a Right Commissioner not to find in favour of the Appellant for an alleged bullying and harassment.

Both the Right Commissioner and the Labour Court found that the Respondent employer had “conducted a thorough and fair investigation into the complaints raised in accordance with the Dignity at Work Policy of the Company and in accordance with the Code of Practice S.I. No 17/2002 –Industrial Relations Act, 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order, 2002.”

The interesting thing reading the facts of the case - the employer in order to address her grievances was willing to: transfer the manager to another store, invited her to retract her resignation and resume employment, ready to facilitate a phase basis resumption to her duties.

According to the employer they were willing to “explore all avenues to restore the working relationship.”  The manager involved accepted that he should have handled the incident leading to the grievance in a more professional manner and was ready to tender an apology, even though the employer concluded following investigation and review of the incident that there was ‘insufficient evidence to suggest that she was subjected to bullying and harassment by the manager.

The employee who throughout the process engaged with the employer through her solicitor refused all offers made by the employer. Abiding by the company Dignity at Work Policy exemplified in this case how important it is to have policies in place and saved the Respondent employer from paying two years wages plus other awards which could have amounted to a significant compensation for the employee.

Not Doing the Right Thing

Inconsistently applying company policies, not having one in place or applying disciplinary measures inconsistently against employees on any issue can be very costly to an employer. Recent decisions of the Employment Equality Tribunal and High Court have all proved this position to be right.

Bank of Ireland v Reilly [2015] IEHC 241 and EAT decision of UDD163 - in both cases employers involved were found to have acted inconsistently in responding to allegation of ‘gross misconduct’ in which both employees were dismissed. The employee in the Bank of Ireland case was linked to alleged pornographic chain of emails while UDD163 employee was involved in an alleged unauthorised collection of waste for personal gain at the expense of his employer.

In the latter case, a compensatory award of €35, 000 was made for unfair dismissal whilst a reinstatement of employment was made in the former. 

In both cases initiators/participators of the alleged misconducts weren’t disciplined and sanctioned in the same manner with which the two employees involved in both cases were dealt with.

Doing the right thing sounds simple but it can be very complex and daunting for employers. So, completing an investigation or disciplinary process, having a clear and robust policy documents across board, following procedures consistently, giving the right sanction and allowing representation must all be weighed properly before one takes final decision to dismiss.

According to David Broughton, it will likely not be sufficient to simply produce a document signed by an employee acknowledging receipt of a particular handbook or policy. The policy must be robust and widely known and understood.

Beware, and be alert and consult an expert to guide you. At the HR suite, we pride ourselves on building long-term relationships with our clients and the services we provide is second to none. For comprehensive and clear policies for your company contact one of our HR Advisors on 0667102887.