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DISCIPLINARY PROCEDURE

IRELAND
DISCIPLINARY PROCEDURE

This is a procedure, normally (although now less so) negotiated between an employer and a recognised trade union (although it may be drawn up by an employer, with or without consultation with workplace representatives), setting out the steps which may be followed by management in the event of a breach of the disciplinary rules . Alleged shortcomings of performance (including both capability and competence, as set out in the Unfair Dismissals Act 1977 ) and conduct are grounds for disciplinary action, meaning that the disciplinary procedure may be initiated and that a sanction may follow if the case against the employee is found to have substance. It should be noted that minor instances of misconduct are normally dealt with informally - a "ticking-off" for an isolated incident of lateness, for example.

There is a requirement under section 14(1) of the Unfair Dismissals Act 1977 that within 13 weeks of commencing employment, employees must be given a copy of the procedure to be used for disciplining or dismissing them. Such procedures may be contained within a collective agreement (i.e. negotiated) or be established by custom and practice . Other than this, there is no formal guidance on what the procedure should contain: the Act is silent, and there is (as yet) no code of practice on the subject, although this is an area where the Labour Relations Commission may take action. What guidance does exist comes from decisions of the Employment Appeals Tribunal .

Disciplinary procedures, to be in keeping with the requirements of natural justice and (in cases of dismissal , employment law), normally contain a number of stages. Before initiating the procedure, the employer is expected to carry out an investigation, so that no action is taken against an employee without adequate information. The procedure, when initiated, should provide for the employee to be called to a disciplinary hearing, and to be represented at this hearing by a trade union or fellow employee. The disciplinary hearing falls into two stages: an investigative stage, where each side presents evidence and the facts are thus established; and a disciplinary stage where, after an adjournment, the manager gives the decision as to guilt or innocence and announces the sanction to be applied. It is common for the employee's representative to negotiate over the sanction and argue for leniency, sometimes quoting mitigating circumstances which the employer may be persuaded to take into account. Employees then have a right of appeal against the decision, which may be on grounds of procedure or fact. The appeal stage must be to a higher level of management, where this is appropriate.

Penalties or sanctions under the procedure range in severity from a first-stage warning (frequently called an "oral warning" despite the fact that it is given in writing following the disciplinary hearing) to dismissal. It would be usual to have at least three levels of warning before proceeding to dismissal, although in cases of misconduct it is usually accepted that management may go to whichever stage is deemed appropriate. When disciplining for complaints related to performance, it is conventional to commence with the least severe penalty. The Employment Appeals Tribunal has stated in a number of cases before it under the Unfair Dismissals Act 1977 that employees must be given time to improve their performance following a warning before the employer proceeds to the next stage of the procedure. The EAT also requires that penalties for breach of the disciplinary rules should be proportionate: in other words, no penalty should be so severe that it is out of proportion to the offence. Likewise, no-one should be dismissed for a first offence except in the case of gross misconduct .

Warnings will normally be removed from the employee's records after a specified period, provided that no further breach of disciplinary rules has occurred.

The importance of disciplinary procedures at EAT stage lies in the fact that, if procedural fairness has not been followed, the dismissal could be held to be unfair, regardless of the offence. This sort of outcome is very common in Ireland, particularly in the public sector, where procedures exist but tend not to be followed and in small firms in the private sector, where the existence of procedures is fairly rare.



Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.

Page last updated: 14 August, 2009