What The Hell Is Procedural Fairness?
How To Prevent Ending Up In Court Defending Personal Grievances That Could Be Avoided.
If you have to go through any disciplinary process with staff, woe betide if you get the procedure wrong. If you don’t give your employee adequate notice of the disciplinary meeting, fail to carry out a fair hearing, and then predetermine the outcome of the investigation before hearing what your employee has to say, you’re in big trouble and it’s going to cost you a lot of money.
You might like to file this Guide to Fair Process which will keep you on the right side of the tracks when you are investigating an employee’s actions for alleged misconduct or serious misconduct. Here’s what you need to do.
Notify your employee in writing of the specific allegation and of the likely consequences if the allegation of misconduct is established. Inform your employee in clear terms that:
1. They are required to attend an investigative meeting at a reasonable convenient time to them and their representative
2. This meeting is to investigate the employer’s allegations of misconduct or serious misconduct
3. They are entitled to and encouraged to seek support from a union or other representative or support person to attend the investigative meeting with them
4. That any explanation offered by the employee will be taken into account prior to any decision being made by the Employer as to what, if any, sanctions may be imposed
Employers must give the employee a real (not nominal) opportunity to refute the allegation or to explain or mitigate their conduct. This is because an The Employment Court ruled that an employer who has not inquired into the possibility of innocent explanations for apparently irregular misconduct cannot claim to have reached an honest belief that the employee is guilty of serious conduct justifying dismissal”.
5. This means that you have to carry out investigative meeting(s) that are fair, non-threatening and free from bias or predetermination
6. You have to provide evidence and any other information like witness statements that you intend to rely to support your final decision to the employee before you all meet.
7. You need to give your employee reasonable time to respond to the matter(s) raised by you.
8. After hearing their response, ideally you should adjourn the meeting to consider your position, responses of the employee and whether further enquiries need to be undertaken before making any decision about what sanctions, if any, should be imposed.
9. Sanctions might include counselling, verbal warning, first written warning, final written warning or dismissal.
10. Make sure you get some legal help even if its just to check you’re on the right track especially around the letters you need to write to your employee.