knowledge | 10 July 2019 |

High Court Considers the Extent of Fair Procedures in Disciplinary Procedure

Employers will be broadly familiar with their obligation to ensure that workplace investigative and disciplinary procedures are conducted in accordance with fair procedures. However, precisely what the nebulous concept of ‘fair procedures’ demands can, in the cut and thrust of ongoing matters, be difficult to discern.

It is helpful therefore that the High Court has recently considered the procedures adopted by an employer in the context of an application for judicial review. There are a number of comments made by McDermott J in the case of Annette Hughes –v- Irish Blood Transfusion Service [2019] IEHC 439 which should be of interest to employers.

Background details

The Applicant was the Assistant Director of Nursing in respect of whom complaints were raised by four subordinates concerning her behaviour and managerial style. The Applicant’s manager informed her of the complaints and she was directed not to speak to the staff individually but to indicate to them that she was made aware of the complaints, that issues would be addressed as they arose in the future, and she was allegedly told to apologise. She failed to comply with the particulars of this direction which resulted in an investigation under the disciplinary procedure.

The investigation report found that the Applicant failed to carry out a clear and unambiguous instruction and was inconsistent in the manner in which she engaged with the relevant staff members. At the subsequent disciplinary hearing, her conduct, characterised as deliberate and intentional insubordination, was found to amount to serious misconduct and to have ruptured the trust and confidence with her employer and to have destabilised the team. It was noted that the Applicant had not been truthful about the interactions and that she failed to acknowledge any wrongdoing. The Applicant was dismissed and her appeal was unsuccessful.

Judgment of the High Court

The Applicant sought to quash her dismissal on a number of grounds including the fairness of the procedures invoked. The Applicant claimed that the investigation considered an allegation of “failure to comply with an unambiguous instruction” which was later “retro-fitted” to an allegation of gross insubordination. She contended that she ought to have been informed of the seriousness of the allegations in advance. However, McDermott J found it was clear at all times that the investigation report would be considered by senior management and it was appropriate that after the investigation, the precise allegation was formulated of which notice was given to the applicant and a hearing was convened.

Following the issuance of the investigation report, the HR manager of the Respondent wrote to the Applicant, indicating that she had deliberately defied instruction with intent to cause damage and undermine the process and had eroded the trust between her and the complainants. The Respondent’s HR manager also communicated these views to the employee responsible for conducting the disciplinary hearing, and the Applicant contended that the HR manager had contaminated the process by adding significantly to the investigator’s findings of fact with comments rather than merely allegations requiring investigation. However, McDermott J held that, as senior management responsible for commissioning the investigation report, the HR manager was appropriate person to consider whether to invoke the disciplinary procedure. It was appropriate for him to draw certain inferences for the limited purpose of determining whether to proceed to disciplinary hearing and indeed his view did not bind the disciplinary.

A number of aspects of the applicant’s prior history of behaviour and staff relationships which were not subject to express investigation were relied upon in reaching the decision to dismiss the Applicant. However, McDermott J stated it would be most unusual, unrealistic and indeed unfair if the consideration of the appropriate sanction did not involve a consideration of mitigating or other factors relevant to carrying out the applicant’s functions and the nature of her relationship with her subordinates. There was no want of notice to the applicant and it was not necessary to subject this material to further investigation.

The Court was also satisfied that the appropriate forum for the Applicant’s concerns was the Employment Appeals Tribunal under the Unfair Dismissals statutory code. However, McDermott J held that, had the Court had jurisdiction to consider the case, the applicant’s acquiescence to the procedures adopted during the disciplinary process would have disentitled her to the relief claimed in the exercise of the court’s discretion.

While the Applicant maintained that her dismissal was manifestly disproportionate, McDermott J disagreed, noting the consequences for management and the disruption of the smooth administration of the IBTS’s services because of the applicant’s behaviour. He stated that the applicant’s unwillingness to accept that her behaviour was wrong was a relevant factor in considering the appropriate sanction.

Concluding remarks

While the comments of the High Court will be welcomed by employers, a note of caution should be sounded. The comments of McDermott J were made in the course of the supervisory jurisdiction of judicial review, and as such, the decision addresses the lawfulness of the decision-making process rather than the merits of the substantive decision. As such, the comments of the High Court should be distinguished from those which might be made, had the case been taken as an unfair dismissals claim, by an adjudication officer of the Workplace Relations Commission in the context of that distinct statutory code.

In any event, the decision of the High Court may not be the last word on the matter and the case may be appealed to the Court of Appeal.  

Contributed By: David McCauley

The Employment, Pensions and Incentives Group at McCann FitzGerald has significant experience of advising clients in relation to the adoption of fair procedures in the workplace. Your usual contact would be pleased to provide further information.

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

Key contacts