1. Introduction
The WRC Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000) sets the minimum procedural standards applicable to disciplinary action in the Irish workplace. Compliance with the Code is not, in itself, a guarantee of fair procedures, but non-compliance is a strong indicator that the procedural requirements of Section 6(7) of the Unfair Dismissals Acts 1977 to 2015 have not been met.
This article sets out the requirements of the Code, the case law on its application, and the practical steps that an employer should take to ensure that its disciplinary procedure is consistent with the Code.
2. Legislation and Case Law
The Code of Practice is issued under Section 42 of the Industrial Relations Act 1990. Section 42(4) provides that the Code shall be admissible in evidence in any proceedings before a court, the WRC, or the Labour Court.
The Code requires the employer to have a written grievance and disciplinary procedure that is made available to employees. The procedure must comply with the general principles of natural justice and fair procedures: details of the allegation will be put to the employee; the employee will be given an opportunity to respond; the employee will have the right to representation; the employer will consider the response carefully before any sanction is applied; and the employee will have a right of appeal.
The Code identifies a range of progressive sanctions: oral warning, written warning, final written warning, suspension, demotion, and dismissal. The principle of progressive discipline is that lesser sanctions should generally be applied before more serious sanctions.
The Code is reinforced by constitutional principles of fair procedures derived from In re Haughey [1971] IR 217 and applied to employment matters in cases including Mooney v An Post [1998] 4 IR 288 and Frizelle v New Ross Credit Union Ltd [1997] IEHC 137.
3. Decision
The decided cases consistently emphasise the importance of the Code of Practice and of constitutional fair procedures. Where an employer has applied a procedure consistent with the Code, the WRC and Labour Court will generally uphold the disciplinary action. Where the procedure has been deficient, the disciplinary action is likely to be found procedurally unfair.
Common procedural failings include: failure to specify the allegations in writing; failure to provide the employee with the relevant evidence in advance of the hearing; failure to afford the right of representation; the same person investigating, prosecuting and adjudicating; an inadequate or rushed investigation; a failure to consider the employee’s response on its merits; a foregone conclusion; and the absence of a meaningful right of appeal.
The right of representation is particularly important. The Code envisages representation by a colleague or trade union representative. The WRC has, in a series of recent decisions, considered the position where the employee seeks legal representation.
The right of appeal is fundamental. The appeal must be conducted by a person who was not involved in the underlying decision, must be conducted on the merits, and must result in a reasoned decision.
4. Takeaway
The WRC Code of Practice on Grievance and Disciplinary Procedures sets the minimum procedural standards applicable to disciplinary action. Compliance with the Code is necessary, though not sufficient, to satisfy the procedural requirements of the Unfair Dismissals Acts.
For employers, the practical advice is to ensure that the disciplinary procedure is documented, consistent with the Code, communicated to employees on commencement of employment, and applied consistently across the workforce.
Employers should pay particular attention to the separation of roles. The investigator, the prosecutor and the decision-maker should be separate individuals. Where the size of the organisation does not permit full separation, the procedure should be designed to minimise the risk of perceived bias.
For employees, the practical advice is to engage with the disciplinary procedure, to exercise the right of representation, to respond to allegations in writing and in detail, and to raise procedural concerns in real time.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
