Worthingtons Solicitors

The importance of procedure – don’t get caught out!

A recent Decision of the Industrial Tribunal in Belfast serves as a useful reminder to employers about the procedures that should be followed when dismissing, or taking disciplinary action against, an employee.

In the case of Ciara Hambly v The Board of Governors of Enniskillen Royal Grammar School (8256/18IT), the Claimant was awarded the sum of £3,106.88 as compensation for an automatically unfair dismissal as a consequence of the employer’s failure to follow the statutory dismissal and disciplinary procedures set out in the Employment (Northern Ireland) Order 2003; more commonly referred to as the “three step procedure”.

Ms Hambly worked for the Respondent as a Modern Languages teacher and was simply informed by letter dated 29 May 2018, which she received the next day, that her employment was ending. The Tribunal determined that there was a significant failure to follow the relevant statutory procedures in this regard; in particular, there had been “no interview, no decision and no appeal”.  The case was heard by the Vice President of the Tribunals who commented in the Decision that the Respondent “…committed a serious procedural error.  It…failed to follow the statutory three step procedure which has been in place within this jurisdiction for some fifteen years.  It is extremely regrettable that the respondent failed to follow a widely known and obvious procedure.”

Those procedures can be summarised as follows:

Step 1: statement of grounds for action and invitation to a meeting

The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead it to contemplate dismissing or taking disciplinary action against the employee.  The letter must be sent to the employee, and the employee invited to a meeting to discuss being advised of his/her right to be accompanied by a work colleague or Trade Union Official.

Step 2: the meeting

A meeting should be held to discuss the potential disciplinary action.  By this stage, the employee should have been made aware (via the step 1 letter) the purpose of the meeting/the allegations, and had a reasonable opportunity to consider a response to that information.  The employee must take all reasonable steps to attend the meeting and should be provided with the outcome of the meeting in writing and advised of the right to appeal.

Step 3: the appeal

If the employee exercises the right to appeal, the employer must invite the employee to attend a further meeting, again advising the employee of his/her right to be accompanied.  As above, the employee must take all reasonable steps to attend the meeting and afterwards the employer must inform the employee of its final decision in writing.

In the Hambly case, the compensation awarded to the employee was ultimately limited, given the Tribunal’s finding that the Claimant’s employment would have ended in June 2018 in any event. However, an employer should always be conscious that any failure to follow the statutory procedures can be costly should a Tribunal claim result.  Upon determination that a dismissal has been automatically unfair, the Tribunal can award a minimum basic award of 4 weeks pay, unless it considers that would result in injustice to the employer, and any compensatory award due to the employee (e.g. lost wages) can be increased by between 10-50%. 

Of note, the procedures set out in the Employment (Northern Ireland) Order 2003, which are summarised above, are the minimum procedures that should be followed.  When considering dismissing or taking disciplinary action against an employee, employers should also consider their own internal procedures to ensure that these are also compiled with and take legal advice as/when appropriate.

Katie Buchanan is a solicitor in Worthingtons Solicitors in Belfast specialising in employment law and regularly provides ongoing advice and assistance to employers on a range of employment law matters, including disciplinary processes.  Katie can be contacted on 02890434015.

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