Dismissals - Management and How to Minimise Risk for the Business

Posted in : Webinar Recordings on 28 June 2018
Caroline Reidy
The HR Suite
Issues covered:

In this webinar recording, Caroline McEnery discusses the practicalities of handling dismissals in the workplace and provides some takeaway tips and advice on how to minimise the risk for the business during this process.


Lynsey: Good afternoon, everyone. My name is Lynsey Rainey and I'm here with Caroline McEnery, who is Managing Director at the HR Suite. We're here live in very sunny, very warm Dublin at the National College of Ireland who are one of our webinar partners. And we are continuing our HR webinar series today with a 30-minute discussion on dismissals and how to minimise the risk to the business. We will focus on the main points that you will see on one of the slides coming up shortly. And, hopefully, we will get to answer a few questions that we've received in today or previous to today.

So there's a chat box on the top right of your screen as you're listening in. You can send us your questions and we will ask Caroline for her thoughts on those. We are just going to give things a few more moments while a few more listeners join us. So we are running this series of HR focused webinars in association with the HR Suite and we have got two more planned for the remainder of 2018. So you can look out for the information coming on those. Also, just to let you all know, the Legal-Island Annual Review of Employment Law 2018 conferences are now available for booking on our events page on our website.

Here you can see the whole program of the day. This program has lots and lots of great speakers and, as always, it's shaping up to be a day packed full of info and practical tips. And of course, if you have already booked your place, you will know that Caroline is doing a session on workplace investigations, which I'm sure it will be jam-packed with advice and top tips.

At the end of this webinar, you can complete a survey and let us know your thoughts. And there will also be a question asking what you'd like to hear in the next webinar. So if you have any thoughts on that, please let us know. We will then aim, through the webinar, to bring you some advice and tips.

For any new listeners today, you're very welcome. And don't forget that you can ask questions in the chat box. And please remember that we will not get to all of the questions, as we are only here for 30 minutes, but we will get to what we have time to cover.

So back to today, we're going to focus on our chosen topic of dismissals and the key six areas that you will see on the screen. So let's first start by welcoming Caroline McEnery from the HR Suite. Good afternoon, Caroline.

Caroline: Good afternoon, Lynsey. Delighted to be here.

Lynsey: Great. Caroline, just firstly, before we go into the presentation, tell us what you're going to cover in your session at the annual review in November.

Caroline: Really excited about the annual review. I suppose it is a brilliant opportunity for people to kind of catch up and get up to date in relation to all the topical areas that are happening in the area of HR and employment law. My session is going to be focusing on workplace investigations because as a practitioner and as an advisor, we're finding that a lot of companies find the challenge of dealing with workplace investigations getting more complex. I suppose my approach is very practical and the session will also be very practical. So I'm going to focus on best practice in relation to handling workplace investigations.

And as we handle the workplace investigations, what we need to think about, what are the typical problems you encounter? So, for example, what happens if somebody goes out on workplace stress or on absence leave, how you manage maybe difficult challenges during the workplace investigations. And then we're going to talk about fair process and we're going to talk about the investigation report. And I suppose there's a lot of case law now about the importance of fact-finding to be separated from the outcome, etc. So we're going to cover that entire area. So there's a lot of interest in the workplace investigations topic already and hopefully, that'll continue to be the case. And I look forward to meeting people to talk about workplace investigations on the day.

Lynsey: Yeah. I'm sure everyone will get some tips because we can all do with a refresher on that subject, can't we? So just moving back to today then, we're just going to start straight into it, then, on the policy.

Caroline: Brilliant. So I suppose employment law and HR, a lot of the time, comes back to the paper trail. And I suppose the really good foundation in any HR practice is to make sure we have good policies and procedures which lay the foundation. And we have the code of conduct, which is the S.I. 146, which is, I suppose, the best practice guideline in place in relation to how to draft your disciplinary and grievance policy.

It also, I suppose, is important that the disciplinary policy is reflective of your organization. I find sometimes that people get a copy of somebody else's disciplinary policy or procedure and adopt it for themselves. Yet, when they actually have to use their process, they're saying to me, "God, Caroline, I never anticipated that I would have to do X, Y, and Z". So it's important to make sure you're drafting your policy to suit your organization. Do it in-line with the S.I. 146 and also to make sure that if you ever need to, it's really important that you follow your own process and that any managers that are involved in doing investigations, make sure they refer back to that as the starting point.

The other thing about the policy, obviously, is it's no good if it's not communicated to all our employees. So the importance of making sure that we give each employee when they commence work . . . the guideline is that they should get the disciplinary procedure within the first 21 days of starting. However, for me, I suppose I always recommend that you're better off giving it to the employee, when you're giving them the job offer, before they commence employment, you're giving them their contract and their handbook, which will incorporate the disciplinary procedure at that stage and the grievance procedure. Because sometimes, you could have an issue with the employee and they're only there three weeks and they might not have received the policy. So it's important, if you can, I think it's just best practice to give it from the outset. There are no grey areas then and there are no kind of gaps along the way. And it's easier for most HR and departments when they give it at the outset, if there are any queries, etc., they can be resolved early.

The Policy

Lynsey: Okay, great. Great advice. And so the next point, then, management and ensuring that they understand and implement the policy correctly.

Caroline: I suppose a lot of the questions often come back to what, as a manager, do I need to do when I have to do an investigation. And I suppose any disciplinary that could result in dismissal is a very serious investigation and a very serious outcome and a very serious process overall. And I think it's very important that whoever is going to be conducting any element of that process, whether it's the invitation to the process or whether it's an element of the process itself, are very aware of the guidelines and the requirements, both from a legislative point of view and a best practice code of conduct point of view and also from a case law point of view.

For example, I suppose one of the very common flaws in a process is separation of process. So, for example, you might end up having a situation where the manager of the employee notices a problem. And the manager then often takes it upon themselves to say they'll do the investigation. And sometimes, the employee may object. If that happens, my advice would be to pause and consider the objection. Ideally, get somebody else to do the investigation as a result because you don't want the process to be flawed before you ever start. If that's not practical, let's have a further discussion and debate around it. But most of the time, that can be facilitated. But, often times, the manager becomes the judge, the jury, and the executioner. And remember, sometimes, it may only be a first written warning that the sanction turns out to be. But ultimately, later on down the road, that might be required to be built on. So if we don't have the right process every single time we do a disciplinary, then the process could be proven to be flawed overall.

So it's important that the manager that is tasked with the job of doing a disciplinary is clear on what is their terms of reference, what is their role and what is their scope. Because if you're not experienced at doing investigations, which are getting more complex, let's be honest, anybody who's listening in who does these regularly will definitely, I think, agree that investigations in relation to disciplinary, particularly in relation to dismissal, has gotten a lot more complex. And it's really important that we up-skill managers or practitioners who are required to take on the job of maybe doing the investigation or maybe delivering the outcome or maybe doing the appeal.

Because sometimes, a flaw that I often see, which is separation of process, the other one might be that people over-span the terms of reference that they've been given. So, for example, a manager who might be tasked with investigating the allegation, because it's only ever an allegation until it's proven, that they may overstep the mark. And rather than just doing a fact-finding investigation, that they overstep and actually it becomes an outcome as well as an investigation. And there are different obligations required, depending on where you're at. And particularly, I suppose, an overarching part of the rules of natural justice, which we'll cover in more detail shortly, is to make sure there is separation of process for fairness to be upheld.

Lynsey: And, of course, we covered workplace investigations in our last webinar. So if anyone is unsure about any of the processes involved in that, they can listen back to that and get more information on that. Just a wee, quick question that's come in there.

Q. What about having policies on internal intranet rather than issuing a paper handbook. Is this acceptable?

Caroline: For me, the important thing is to make sure that you can confirm the employee has acknowledged and read and understood the policy. So if that requires, for example, an employee to sign off or an employee to tick a box to confirm, that you have some element to require that they do that, I think it's very useful to have it on the intranet because then it's easily accessible to the employee when and if they need to refer to it. But I also feel that it's important to make sure that we've got a paper trail to confirm that it's been issued, it's been highlighted in terms of its importance and it is signed off.

And, to me, the best way of doing that is to issue it with the contract of employment at the commencement of the employment relationship. But obviously, we're in GDPR land at the moment, the dreaded word. And I suppose a lot of companies now that we're working with, we've done a lot of work on updating GDPR, updating policies and staff handbooks in line with the GDPR legislation. And in those scenarios, we're just updating policies. We're now issuing them and reminding people that we've updated specific sections in line with GDPR. I'm not as concerned about a sign-off because they're updates, but if it's a case you're issuing, especially the disciplinary, the grievance and the bullying and harassment ones, I think it's really important that there's clarity in relation to making sure that it was issued to the employee on this date, they acknowledged and they accepted it. Because if they don't, to me, we should be going back and saying, "Look, just have you initial with that", or whatever.

And remember the other thing there is the Dunnes Stores case, as we refer to it - Heffernan v Dunnes Stores (2010) - which was reminding us at an EAT case law example of the importance of not alone issuing the procedures to the employees but also to make sure that we're emphasising the importance of them. And in that case, the example was it was an employee who was using her rewards card for customer transactions and then her rewards card was obviously increasing and she was gaining from it.

And in that example, she had signed the policy in relation to that 11 years previously, I think it was, and the . . . she used the reason to say, "Look, I don't remember that. I don't think I was doing anything wrong". And the EAT made the point very clearly and it has been enforced subsequently in further cases that if something is really important and could result in gross misconduct up to and including dismissal, it's not enough to remind somebody when they start employment in relation to a matter. It's important to reinforce it. So doing toolbox talks or staff meetings or reminding people of key policies that are linked to disciplinary like honesty, company internal policies, etc. So a very good question, I think.

Rules of Natural Justice

Lynsey: Yep, great. Okay, thank you. So rules of natural justice, then. We'll touch a bit more on that.

Caroline: So I suppose the overarching element of any disciplinary or any process, really, as HR practitioners that we work on now is to make sure that we apply the rules of natural justice. And the reason for the rules of natural justice is to ensure that we act reasonably and fairly and consistently for any process that we're going to follow.

So the elements of what makes up the rules of natural justice start with the right to know the allegation. So it's really important that we clearly outline to the employee what is the allegation against them. And that has to be outlined to the person with any potential evidence that we're going to rely on at the outset. Obviously, as the investigation goes on, there may be further evidence. But you're outlining as much as you can at the outset what the allegations are, as clearly as you can. So they need to know the case against them.

The next rule of natural justice is the right to representation. And the S.I. 146 gives guidance around representation. But again, your company policy is also going to address that. And that's something we will touch on more at the Legal-Island forum when we talk more about workplace investigations. And we also referred to it in our workplace investigations webinar.

The next rule of natural justice is the right to reply. So the right to be heard and have your case heard. And again, sometimes, people will think that, "Look, there's an issue to do with absence", or there's an issue to do with theft or an issue to do with . . . and they would say, "Look, we've taken it as fact this person did this", or the person . . . they still have to have the right to have their case heard. And it's really important that no matter what the allegation is, and again, we're emphasising the word "allegation", that it's important that they have the opportunity to have their case heard.

We mentioned the right to separation already, which is based on the whole element of decision. And the final element, then, is the right to appeal. So for any decision that's issued, they have the right to appeal. And the idea of that is somebody would do the investigation, somebody would issue the outcome and somebody would facilitate the appeal so that not one person is the judge, jury, and executioner, that there is independence in relation to the stages to ensure fair process applies. And we know that, again, case law would guide us in relation to… O’Callaghan Tyres is one example where sometimes, you don't necessarily need to do the three stages that we outlined there, depending on the allegations, whether the employee contests them, etc. So again, the size of the organization.

But again, to me, once you outline at the outset in the investigation letter and you continue to do the documentation along the way, generally, the employee will object as you go along if they have objections. And that's why the invitation letters and the letters that you do along the way are so important and need to be so robust. Because in all of the rules of natural justice, the best way you have as an employer to protect yourself and show that you have followed the rules of natural justice is the paper trail. And the paper trail starts from the terms of reference, the invitation to the investigation, all the way through along the way. So it is important that you are very conscious along the way of that paper trail.

Lynsey: Okay. Just a couple of questions are coming in at the moment. Just some very interesting ones.

Q. So if an employee admits to misconduct, do we need to move to a full investigation or can we go move into disciplinary hearing?

Caroline: So that question is along the lines of the O’Callaghan Tyres case that I mentioned. So if they admit and you… again, I would go back and clarify that in writing and get the paper trail… exactly. To me, then, the investigation part is concluded on the basis that they have admitted. And I would go to outcome.

And I suppose one thing, when I'm answering these questions, you get a one-liner. Normally, when I'm answering these questions, if it's a client at the other end of the phone or I'm sitting with them, I'd probably end up asking them 10 questions before I actually give them an answer, primarily because every case turns on its own facts. So, in general terms, it would be a case that I would say that it could be a case that can go to outcome, without knowing the seriousness.

I think it's important when you're considering that as well, is to decide what is the potential punishment that might be the outcome, in terms of the sanction. Because if the sanction was going to be dismissal, I might say, "Okay. Let's again write to them, confirm what they've said and confirm that they understand the implications, etc". So again, I think the paper trail would be very important in that regard. And I suppose it would be remiss of me not to mention I've written a book called, "The Art of Asking the Right Questions", because, to me, it's all about you asking lots of questions in any of these and then recording those, etc. so that you've got the paper trail in place.

Ensuring Fairness

Lynsey: Okay. So we've covered the paper trail side of things. Ensuring fairness?

Caroline: So I suppose the key thing about fairness is it's got to be the perception of fairness as well as the reality of fairness. So oftentimes, for example, it might be a case that an employee will object to a specific investigator. Often, that might be a case that they might say, "Look, I don't want anyone internal doing this investigation. I want an external person doing it". And I'd always consider the size of the organization in that regard, how far removed the potential investigator that is being suggested is from the employee. And consider the actual discussion around that because fairness needs to be practically applied in perception as well as reality.

As HR practitioners and professionals, we know that we need to be objective. But if the employee has a strong view that because you're an HR person, you're going to side with the company and the manager who has the allegation against the employee, then no matter what we say, generally, we won't convince them that it's going to be fair. So sometimes, in that regard, you might say, "Look, because of the seriousness of the matter, we're better off in maybe getting an external person in to do the investigation". And to me, you want to make sure the process has as little flaws as possible.

And for me, the fairness is making sure that you start with did the person know that by doing whatever they did, this could result in this consequence? And that's why our policies need to be robust as we go along because we speak today a lot around the disciplinary procedure and the disciplinary policy, but company policies need to be robust enough to cover lots of eventualities. And I suppose I would strongly recommend that companies revisit their staff handbook on an annual basis.

Like, for example, I'll give you one example, which is Christmas parties or social events can often . . . I'd say there's no year yet that I've been in business that Christmas parties haven't caused some sort of dismissals. And again, making sure we've got a policy in place and, as well, we remind people in advance very nicely about the fact we want them to enjoy themselves, etc., however, to remind them of the conduct requirements, etc.

Lynsey: That it's an extension of the workplace.

Caroline: Absolutely. Absolutely. So the fairness piece, you need to be very clear about the fact that if we consider as a company this is gross misconduct, and every company will have a different requirement around that because, for example, in some companies, breach of confidentiality is completely and absolutely gross misconduct. In another company, it's not relevant to the same extent because of the nature of the business. However, it might still be an issue but of a lower sanction. So we need to make sure that not alone the disciplinary procedure and policy is that best practice standard, but that our overall handbook is.

And I suppose that element of reasonable-ness is hugely important. Again, where this often becomes an issue is in relation to health and safety breaches. Like we've often encountered issues where an employee will do something that the employee might say, "Listen, I know what I did was stupid, but I definitely didn't think it would result in my dismissal potentially". So again, to me, health and safety and making sure your policy around health and safety is robust enough and also the point we made, which is reinforcing the dos and don'ts.

And I suppose for me, you're balancing all the discussion we've had today with the fact that we're in full employment. It's an employee's market and we want to make sure that we're as proactive as we can with our talent management strategy. But to me, this is kind of making sure that the other side of the house around compliance is also very robust so you don't need to worry about it.

Lynsey: Okay. So I'm looking through some of the questions that have come in and one that I think everyone will have had experience of at some point.

Q. We have an employee who is on a final written warning for absence. He is now being investigated for refusal to follow a reasonable instruction and has since gone out again absent citing stress. Can we add this absence into the investigation as a term of reference, even though we have put the allegation to him already?

Caroline: I think you'd be better off in actually, rather than doing them combined, to do them separately because, obviously, it is another absence. So I think I would do them separately rather than add it on because you'd be doing it retrospectively and you could potentially just muddy the waters. That's one of the areas I've intended to cover at the forum for the annual review because people going out on work-related stress is very common. And for me, it's important that you balance the fact that we respect the person is out on work-related stress with the fact of making it clear to them that this isn't going away. Because I have had employees who will stay out for as long as they can stay out.

Lynsey: Because they think you'll forget about it and won't follow through with the process?

Caroline: Absolutely. And also because they accrue annual leave when they're out on sick leave. And some companies have very attractive sick pay schemes. And we need to make sure we're managing the employee while they're out. Now, to be honest, that's a whole new webinar, but it's definitely something that I'm going to cover at the annual review because it's so topical and it's one of those things. We're all dealing with workplace investigations in line with disciplinaries or grievances. And it's the challenges. We've enough to be thinking about to make sure we follow the rules of natural justice, we manage fairness, we manage reasonability, and then in the middle of all of that, we're managing the what-ifs. And to me, the common what-ifs are where we get really challenged to make a process that's already very complex even more complex.

Lynsey: Yep. And somebody sort of following on from that there:

Q. Can you combine warnings? i.e. employee on a first written warning for one issue and first written for another. Do you need to inform the employee in advance of the hearing that this could be a possibility?

Caroline: To me, if they're different topics, then basically they need to be kept separate. For example, if somebody has a verbal warning for being absent and they didn't follow the absence procedure and the same employee has a verbal warning to do with work performance, they're two separate matters so you need to treat them separately and stack them separately.

To be honest, what I would be doing then is I would bring the employee in and say, "We've an overall performance issue here", and start to deal with overall performance because if you've a couple of areas where an employee is resulting in disciplinary action, Houston, we have a problem. And that problem is overall performance and overall ability and conduct and capability, which we know are considered very acceptable in terms of rationale as to why we would invoke, obviously, a performance improvement plan if we think we can coach the employee. Which would ultimately lead to disciplinary if we can't.

Acting in a Timely Manner

Lynsey: And just . . . we are running out of time now, so acting in a timely manner?

Caroline: I suppose it's so important that we do that. Oftentimes, I hear people saying to me, "Oh, look, we couldn't do the investigation because such-and-such was on holidays. Such-and-such was out sick. The investigator wasn't available for a month". It's really important that the company take control of the investigation to make sure that it happens in a timely manner because if it's protracted and it's going on six months, 12 months, the employee may have grounds for saying, "I've been potentially suspended", which is a costly experience for the company, but also, they're saying, "Look, inferences are being drawn based on the length of time I've been out, etc.". And cost as well. So to me, making sure we're proactive . . . there will be issues in terms of delaying it for a week here and there, which will be normal holidays, etc. But when it becomes protracted, that's where it gets to be a concern.

And the second element to that is if the employee potentially is on paid suspension, from the outset, I would be making it clear to the employee of the requirement for them to be available to partake in the investigation at the company's request because we do experience challenges where the employee comes back and says, "Sorry, I'm not available that Wednesday. I'm doing something". And if the company is paying them, they need to be available to partake. And they can be doing something within reasonable efforts. Is that okay?

Lynsey: Yeah, okay. That's great. That's lots of info and refreshing people's memories on different bits and pieces. So that's great. Thanks very much, Caroline. We're actually out of time now. We haven't answered all the questions, but we will get back to you with how we're going to handle those. Maybe the First Tuesday Q&A or some of our other functions that we have available.

So just a quick couple of things to finish. Hopefully, you'll complete the survey or if you have any questions or . . . drop me any comments to lynsey@legal-island.com. And also in the survey, you'll see some information on our inaugural Irish HR Awards, which are taking place at the Aviva Stadium in December this year. Applications are open now and will close in September.

You can contact Caroline and her team at the HR Suite for further information. All the information is on the slide there in front of you. And you can discover the full range of HRM and CIPD courses that are facilitated here at the NCI. And the NCI also has courses started September 2018, which are funded by Springboard Plus. And we'll send you some more information on those as well. And tomorrow, we'll send you the link to the recording of the webinar. And there will be a full transcript available in the next two weeks. So keep an eye out for news on the remainder of the webinars through the rest of the year.

So very finally, thank you very much to Caroline for sharing her experience with us. Thanks to the NCI for hosting us, and thank you for listening. And Caroline and I will see you next time.

Caroline: Looking forward to it. Thanks a million.

Lynsey: Thank you. Thanks.

This article is correct at 28/06/2018

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Caroline Reidy
The HR Suite

The main content of this article was provided by Caroline Reidy. Contact telephone number is +353 66 710 2887 / +353 86 775 2064 or email info@thehrsuite.com

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