- Posted by Bernadette
- On September 13, 2011
- Disciplinary Process, Representation
A startling suggestion is contained in this EAT decision that an employee found incapable of performing their role could be given an alternative role rather than opting for dismissal.
Beo Solutions previously published a post on the Supreme Court decision Burns & Hartigan v Governor of Castlerea Prison. This decision looked in detail at when legal representation at disciplinary hearings might be appropriate. The subject has since come before the EAT and its Determination UD 1480/2009, published 20 September 2010 details the approach taken. Rather than clarifying the issues that employers should consider this determination in fact muddies the waters further since the role for the legal representative as perceived by the EAT is entirely unclear.
The case relates to a duty manager, Ms. Panagopoulou, in the West Cork Hotel. There appears to have been little or no dispute as to the facts. It was agreed that there were informal warnings, a formal verbal warning supported by a letter, a written warning, suspension with pay and finally a meeting leading to dismissal. It was also agreed that when the claimant arrived for what was to be the final meeting, in the company of her solicitor, the solicitor was refused access to the meeting.
The determination states that the employer was correct in reaching the conclusion that it did in relation to the claimant’s capacity to undertake her role and found that she was given an opportunity to improve her performance. It goes on to say that the procedure adopted by the respondent was “flawed, in that they prevented her legal representative attending the meeting which ultimately led to her dismissal”. In addition to this reason the EAT stated that the respondent failed to inform the claimant of her right of appeal. The EAT stated “It is difficult to say what representations might have been made by her Solicitor, however it is possible that a middle ground might have been achieved such as demotion or re-deployment which might have left the claimant in a better position than she was ultimately left in.” It was also thought that had the claimant had the opportunity to appeal this might have led to a resolution of the matter.
Beo Solutions agrees that the role a legal representative could have had in this case in terms of the Supreme Court decision is unclear. The EAT’s description of the legal representative’s role in the meeting appears to suggest that had the claimant’s Solicitor been allowed to attend s/he might have been able to argue for a mitigation of any potential penalty. This is curious of itself given the respondent’s detailed progress through the disciplinary process. It appears that the EAT’s conclusion was based solely on the seriousness of the claimant’s situation and the possible penalty arising which in turns appears to be on foot of the first of the six points in the Supreme Court decision. The award in this case was €3000 and this appears to take account of the EAT’s classification of the flaw(s) in the process as purely procedural.
The Tribunal normally restricts itself to assessing whether the various decisions reached by the employer, both in terms of performance and sanctions to be imposed, are within the range of reasonable conclusions that could be reached on the basis of the evidence of the case. In this case it was found that the conclusion was not just reasonable but correct in terms of the employee’s performance. The determination does not suggest that the penalty was disproportionate. However, twice in the determination it is suggested that a mitigation or resolution short of dismissal might have been found. Taking this further, is it hinted that a final written warning might or should have been issued rather than a dismissal? Alternatively, the suggestion of demotion or re-deployment suggests the necessity to provide, (or at least to consider the provision of), a different job to an employee when they prove incapable of undertaking the role for which they were employed. Could it be envisaged that an employer should give a different job to a person who, allegedly, thought that the disciplinary issues were ‘nit-picking’ and ‘trivial’ and who may take that approach to management regardless of the role they are in?
What can be learned from this?
Of course, this examination is based only on the information included in the Determination and these are not always a complete view of the facts. The level of representation in a disciplinary process, and whether it should be legal representation, is unlikely to be clarified in the short term. A refusal to allow legal representation, at least where the issues and consequences are serious, may well lead to a finding that the process was flawed. Employers should consider the issues mentioned in Burns & Hartigan and err on the side of caution. Finally, if legal representation is to be allowed, it would be useful to clarify the lawyer’s role and set any necessary parameters at the outset.