EMPLOYMENT – Employees must be given adequate notice of disciplinary hearings

An employee under investigation must be given reasonable notice of any disciplinary hearing if they are to be afforded their right to fair procedures under the Unfair Dismissals Act 1977.

The Employment Appeals Tribunal in the decision of Bermingham v Marks & Spencer Ireland UD 601/2011 considered whether fair procedures had been followed where an employee was given an hour’s notice prior to her employer’s investigation meeting.

In the case before them, the claimant was a duty manager of the employer’s store and had purchased a number of items from her employer while on duty before opening hours.
The employer dismissed her upon investigation for breaches of company policy which included shopping on company time and breaching till procedures. The claimant sought compensation on the basis that her employer had not followed fair procedures in dismissing her.

The Tribunal considered the nature and extent of the investigation carried out by the employer and concluded it was flawed for a number of reasons. In particular the employee had only been given one hour’s notice of the disciplinary hearing and had not been informed of all the allegations against her prior to the meeting.

The Tribunal also criticised the employer’s failure to ensure that the hearing was objective as the disciplinary hearing was conducted by a person with whom the claimant was known to have an acrimonious relationship.

Furthermore the Tribunal criticised the internal appeal conducted by the employer, where the investigator had ‘failed to carry out an independent and thorough investigation and merely rubber stamped the earlier investigation.’

The case further illustrates the necessity for employers to carry out comprehensive investigations and follow fair procedures before any dismissal can be deemed effective.
Failure to give an employee adequate notice of the hearing and failure to ensure that the hearing is conducted objectively may prove fatal to defending an unfair dismissal claim.