The recent Northern Ireland Tribunal Judgment in Jasinskas v Sebden Steel Service Centre Limited t/a Sebden Steel Ireland (case ref 1118/119IT) provides a useful illustration of common pitfalls which occur in disciplinary and dismissal procedures and also reminds us of the value of a meaningful and comprehensive appeal process.

The Claimant in this case was employed by the Respondent as a Production Operative.  On 20 September 2018 he was carrying out his duties making wooden pallets using a pneumatic nail gun when a nail “entered his left foot”.  Following an investigation by the Respondent the Claimant was invited to a disciplinary hearing alleging that he had operated a nail gun in a “careless and dangerous manner with complete disregard of your training and the safe working procedures for this activity”.  The Claimant was found to have committed an act of gross misconduct and was dismissed.

In its findings the Tribunal concluded that the Respondent’s investigation process had a number of defects which cumulatively rendered the investigation “not reasonable”.  The Tribunal’s criticisms included:

• The investigation manager sought advice from the Respondents Health and Safety manager who was neither a witness nor a member of the investigation panel;
• The Tribunal further commented that the Respondent’s investigation manager failed to take “a number of obvious steps” which included an examination of the nail gun, and examination of the pallet into which the Claimant had been inserting nails, and a failure to obtain a medical report which could have assisted in determining the mechanism of the Claimant’s injury;
• The Respondent’s investigation manager did not retain the original notes of his investigation interview with the Claimant; and
• The investigation manager relied on the wrong instruction manual and incorrectly concluded that the Claimant did not follow the safe working procedures for using the pneumatic nail gun.

The Tribunal also noted a number of defects which in its view rendered the disciplinary hearing unreasonable.  These included:

• The disciplinary chair “appears to have sought” the approval of the Respondent’s Health and Safety manager who was not involved in the process;
• The Respondent’s letter to the disciplinary meeting failed to provide the Claimant with statements of witnesses on which the Respondent intended to rely on. The Tribunal commented “reading portions of the statements and inviting comments, particularly to someone whose first language is not English and he was not accompanied, by his own choice, at the disciplinary meeting where the Claimant’s employment was at risk, was unnecessary, avoidable and a flawed way to conduct a disciplinary meeting”; and
• The Respondent’s termination letter was drafted with the involvement of other members of the Respondent’s management team “even though neither of them was part of the disciplinary hearing panel nor had attended the disciplinary meeting”.

However, in a somewhat surprising conclusion, given the totality of the defects in this disciplinary process, the Tribunal found that the Respondent’s appeal process “was carried out fairly and cured the earlier defects”.  In coming to this conclusion the Tribunal commented that the appeal manager afforded the Claimant an opportunity to raise or add to his grounds of appeal and furthermore gave him the opportunity to bring to the appeal hearing any paperwork or other evidence that he so wished.  The Tribunal noted that “there was therefore not any limit imposed on the matters that the Claimant could raise as part of his appeal”.

This case provides a useful illustration of pitfalls to avoid when conducting a disciplinary process. As set out in British Home Stores v Burchell (1980) ICR330 an employer who dismisses an employee on the grounds of misconduct should be able to demonstrate:

• That it has carried out as much investigation into the matter as was reasonable in the circumstances;
• That it entertained a genuine belief of guilt; and
• That it had reasonable grounds on which to sustain that belief.

In considering these steps a Tribunal will have regard to an employer’s disciplinary policy and procedures as well as the Labour Relations Agency Code of Practice on disciplinary and grievance procedures. The LRA code and natural justice require that an employee should know the case against them and should be provided with all documentation on which the employer intends to rely in coming to a decision on the allegations. The Tribunal was critical of this clear failure on the Respondent’s part and also criticised the influence of members of the Respondent’s management team who were not involved in either the investigation or disciplinary process.

Where errors have been identified in a dismissal process employers should take steps to rectify these within any appeal process in order to demonstrate that a fair process has been followed and that the appeal was not simply a rubber stamping of the disciplinary decision. The value of a thorough appeal process in this case cannot be understated and the fact that the Claimant was afforded a rehearing of the disciplinary allegations ultimately saved the Respondent from a finding of unfair dismissal.