Disciplinary Hearing

stevebaxter23

Hi all!

Can anyone recommend a good Employment Law Solicitor please? Preferably in the Lucan area although anywhere in Dublin is fine too! PM's welcome.

A close friend of mine has a disciplinary hearing in work with allegations of stealing made towards him, he denies this completely. He's been suspended and is waiting on a letter to outline exactly what's involved. Can anyone tell me in these cases is it a good idea to have a solicitor attend the hearing with him. He is extremely distressed right now and has never been through anything like this before. He is not in a union.

I've read on some other posts that sometimes these 'letters' will specifically request that solicitors do not accompany employees, only work colleages or union reps.

Why is this? I would have a thought an employee at such an important meeting is entitled to have with him or her somebody familiar with the procedure which would be either their TU official or solicitor. Even if the employer has no one else there, you can be sure that the employer has been fully advised and will be working off a script. Should he consult a solicitor now or wait for the letter? How long does the hearing usually take place after he receives the letter?

davo10

First thing to do is check employment contract, it will outline the disciplinary procedure including who can accompany your friend to the hearing. Some companies do not allow solicitors at the disciplinary hearing but your friend can have a solicitor at any appeal hearing. Just be aware that a solicitor will charge for the time taken to research the case plus a half/full day to attend hearing. This will be very expensive and pointless if he/she is then also paid to attend the appeal.

Your friend should have gotten a letter outlining the allegation plus any investigation/statements which are to be presented at the hearing. He/she should join a union and get a rep to attend or bring a colleague/friend/family member to take notes. Whatever the finding, he/she can appeal it but in the case of theft they must be confident they have reasonable evidence to make such an allegation. No one ever admits to stealing, denial of wrongdoing is always the default response and the distress can also be as a result of the realisation that they have been caught so wait for the evidence to be presented. Also, unfortunately the value of the item or lack thereof can lead some to think it is not really theft if the item is only worth a nominal amount.

Typically the hearing is within one week of notification of suspension.

stevebaxter23

Thanks for replying davo10. Okay got some answers from him...

His employment contract says "An individual has the right to request the presence of either an appropriate member of staff or a trade union representative".

There is no mention of a solicitor. He hasn't got the letter outlining the allegation yet. Are you saying there is no point in contacting a solicitor until he gets the letter? What kind of ballpark figure would a solicitor cost for taking this kind of thing on do you think?

He said he'd be calling The National Employment Rights Authority tomorrow for some advice.

davo10

stevebaxter23 wrote: »

Thanks for replying davo10. Okay got some answers from him...

His employment contract says "An individual has the right to request the presence of either an appropriate member of staff or a trade union representative".

There is no mention of a solicitor. He hasn't got the letter outlining the allegation yet. Are you saying there is no point in contacting a solicitor until he gets the letter? What kind of ballpark figure would a solicitor cost for taking this kind of thing on do you think?

He said he'd be calling The National Employment Rights Authority tomorrow for some advice.

Whatever the finding of the hearing, he can appeal, that is the time to contact a solicitor. Or if he is fired fir gross misconduct, then go to a solicitor. If they do not allow it at DH then there is no point at this early stage.

As for cost, a specialist employment solicitor could be pretty expensive I would imagine but the only way to find out is to contact one for a quotation. But as I said, you will be at least charged for a half day if not a full day of their time if you want him/her to attend the hearing.

You've got to wait for the letter, when the allegations are put forward along with the results of the investigation/statements of other staff members then your friend will have a decision to make regarding attendance/resignation/fighting the allegation. If theft is "proven" then dismissal is likely so your friend will have to decide whether to fight it all the way. Also a solicitor could check that all procedures were properly followed and if dismissed, provided he has been employed for more than one year, he will have access to the EAT

therecklessone

The Citizens Information website has a very good explanation of dismissal procedures which includes a link to the Labour Relations Comissions Code of Practice on Grievance and Disiplinary Procedures. In that document it states that an employee representative is either a colleague or a union official but "not any other person or body unconnected with the enterprise. "

http://www.lrc.ie/viewdoc.asp?DocID=88

It has always been my understanding that a solicitor is only of use to a person once they have taken an appeal outside of the company's internal disciplinary process, for example an appeal to a rights commissioner or the Labour Relations Commision.

It is a very good idea to contact NERA for advice.

?Cee?view

As the company is one which allows Union reps to attend disciplinary meetings, your friend could join the Union asap and benefit from their advice on the matter both at the meeting and generally.

stevebaxter23

Thanks for all of the advice here guys, I've passed it all on and it's very much appreciated!

He is only in the job 4 months. He has spoken to NERA and they advised him that when he was called to the DH he has the option to listen to what is said but does not have to respond immediately, so he can go and seek further advice if needed. This has put his mind at ease a lot!

He's decided to hold off in employing a solicitor until after the DH. At that stage, depending on the DH findings he will decide what to do next.

davo10

stevebaxter23 wrote: »

Thanks for all of the advice here guys, I've passed it all on and it's very much appreciated!

He is only in the job 4 months. He has spoken to NERA and they advised him that when he was called to the DH he has the option to listen to what is said but does not have to respond immediately, so he can go and seek further advice if needed. This has put his mind at ease a lot!

He's decided to hold off in employing a solicitor until after the DH. At that stage, depending on the DH findings he will decide what to do next.

He does not have to respond but the DH is his opportunity to respond to the allegations. If he says nothing then he will certainly receive a sanction up to and including dismissal. It will go to an independent appeal hearing where it will be noted that he did not refute the allegations. Also he will have to lay out his grounds for appeal. He will have to challenge the allegations in some way if he expects to prevent a sanction. To be honest, the DH is a courtesy by the employer as they could just let him go if he has only be there 4 months. He will not have access to EAT as he has not been there for at least 1 year.

stevebaxter23

Just off the phone to him there. I thought he was only working there for 4 months but he said he transferred into the company using the 'toopay' system and kept his years of service from a previous job. So he has over 10 years of service. Sorry this is what he said. I think I am repeating it correctly. Does this mean he has a better chance of an appeal?

Stheno

stevebaxter23 wrote: »

Just off the phone to him there. I thought he was only working there for 4 months but he said he transferred into the company using the 'toopay' system and kept his years of service from a previous job. So he has over 10 years of service. Sorry this is what he said. I think I am repeating it correctly. Does this mean he has a better chance of an appeal?

TUPE is what you mean
It does make a difference as he's there more than a year.
Not much in terms of the hearing/appeal tbh he'll still have to go through a disciplinary process.

MarkAnthony

Dont leave it until the hearing to get legal advice, do that in advance of the hearing. There is no need, and indeed it is advantageous not to, put the employer on notice that the employee has sought legal advice.

Ensure the solicitor is aware of the hearing date and time and it contactable by phone, don't be shy in requesting adjournments as necessary. Ideally record the hearing covertly. It's merely inadmissible (in most cases) rather than illegal, but will be useful to you solicitor if needed later.

Best of luck.

Jim2007

Theft is a criminal matter, it is not something for a disciplinary hearing to investigate. Your friend should insist that if the company has evidence of a criminal offence that it be reported to the Garda, otherwise the game is up! They should be aware that your friend has every intention to bring a case for defamation against the accusers once they are cleared by the Guards. That should bring a large doze of reality to the proceedings.

davo10

Jim2007 wrote: »

Theft is a criminal matter, it is not something for a disciplinary hearing to investigate. Your friend should insist that if the company has evidence of a criminal offence that it be reported to the Garda, otherwise the game is up! They should be aware that your friend has every intention to bring a case for defamation against the accusers once they are cleared by the Guards. That should bring a large doze of reality to the proceedings.

Employers are not required to report workplace theft to the gardai. Op has only been defamed if the company make public their accusation of theft, DH are private and confidential with the employee informed in writing of the allegations. And the "reality" is that the DH will continue.

?Cee?view

I've said it before. I'll say it again.

The guy should join the Union, now, before the hearing.

I say this from the perspective of acting for the Employer in these situations currently and before.

Mrs OBumble

davo10 wrote: »

Employers are not required to report workplace theft to the gardai. Op has only been defamed if the company make public their accusation of theft, DH are private and confidential with the employee informed in writing of the allegations. And the "reality" is that the DH will continue.

Indeed.

What's more the guards are often not overly interested in workplace theft.

And the standards that apply in a court-hearing vs a disciplinary one can be different. In a workplace, you can lose your job if the employer loses trust in you, even if it doesn't reach the standard of proof to convict in court.

MarkAnthony

Defamation will occur as soon as a third party is involved.

So If I as a manager think I see Bob stealing I call HR and say to them that I think Bob is stealing defamation has taken place. There's even case law to suggest that if I involved no-one, sent a letter to Bob and his wife opens it, defamation has taken place.

All that said there is a defence of qualified privilege that would almost certainly apply to HR but a company would be well advised to keep the number of people involved to an absolute minimum. Of course truth is a total defence.

That's an interesting aside, but of course a business will investigate alleged theft through the disciplinary process.

There's been a couple of these threads recently and all you're doing OP if you don't go and see a qualified solicitor is dancing around the subject. I see again the union membership issue has been brought up - yes in theory a good thing - although they don't like blowins and they are not legally trained.

For the sake of a couple of hundred quid it's well worth going in properly informed. If it gets to the stage of dismissal, a properly briefed solicitor will ensure a good reference, a standard non-disclosure agreement and ideally a payment to tide you over. Unless you're bang to rights guilty which only the person concerned knows at which poitn you're better off leaving quietly.

ofcork

Why do you say that about the union ive had a disciplinary 2 weeks ago,people have said to me to contact union I said ill wait and see,never had any dealings with the union prior to this.

MarkAnthony

ofcork wrote: »

Why do you say that about the union ive had a disciplinary 2 weeks ago,people have said to me to contact union I said ill wait and see,never had any dealings with the union prior to this.

Say what? That they are insufficient unless you work in a unionised environment or that they don't like blowins?

For a union to work, and I am pro-union when they act within the best interests of the employee while recognising a business is exactly that, it needs a committed and long term base. There's no point in engaging with people who are only getting involved because they're facing a disciplinary. I'd wager 85% of those would drop out as soon as the issue is resolved.

Maybe I'm wrong, maybe they're happy to have blowins here I can only speak from experience of the UK and growing up in a household that was very passionate about union membership with a father very active in same.

I encourage everyone to join a union where they can, leaving it until after the horse has bolted however... One is better off with a solicitor in those cases.

ofcork

Im in the union but never had reason to call them before so wondering whether I should or not.

MarkAnthony

ofcork wrote: »

Im in the union but never had reason to call them before so wondering whether I should or not.

Absolutely if you're already in! Dont be afraid to back up their recommendations with a good employment solicitor - they may recommend one - but for the day having the union rep in with you will be more than enough.

Dyr

?Cee?view wrote: »

I've said it before. I'll say it again.

The guy should join the Union, now, before the hearing.

I say this from the perspective of acting for the Employer in these situations currently and before.

unions, quite rightly, have a rule that you must be a member for a certain period before you are entitled to any of the benefits of memberships.Stops cases where people go running to them only when they need them. The local union rep may be willing to give advice or accompany them to the meetings that's as good as you'll get


There is no obligation on the employer to allow a solicitor any where near their disciplinary meetings. That does'nt mean you can't take advice on the process from a solicitor

You'll be given the specific charge in a letter, make damn sure that is what the process is about, establish what the charge is and work from there. Do not let them shift the goalposts. If something is not relevant to the charge do not let them use it.

Disregard the nonsense about you having prove you're trustworthy to your employer, it has nothing to do with a disciplinary process. They have to satisfy that the charge is valid and if they ride roughshod over you then they're exposed to an unfair dismissal case going in against them to a rights commissioner.

ofcork

How long do these things normally take,2 weeks since I had the meeting and nothing since.

MarkAnthony

Bambi wrote: »

There is no obligation on the employer to allow a solicitor any where near their disciplinary meetings

Generally correct, however if you're in a profession where if you are sacked, say for example a prison guard and you've no hope of continuing in that career there is case law to suggest that a solicitor will be allowed in any hearing that may lead to dismissal.

I'm completely splitting hairs of course but for the sake of pedantry and completeness...

MarkAnthony

ofcork wrote: »

How long do these things normally take,2 weeks since I had the meeting and nothing since.

Generally there would be an investigatory meeting* which is slightly less formal. You should then be presented with 'the case against you' and given time to prepare. Then you attend a formal disciplinary hearing. Realistically it shouldn't take more than 24 hours for a decision after the disciplinary hearing proper.

*No 'need' for this but it's good practice.

ofcork

I had the investigation meeting and the disciplinary a week later and nothing since.

MarkAnthony

ofcork wrote: »

I had the investigation meeting and the disciplinary a week later and nothing since.

The boat has sailed then to a certain extent, it will be worth engaging a solicitor and the union in the case of an appeal.

In the mean time get the union to give them a prod.

ofcork

Ok will do thanks for the advice grand being suspended with pay but the not knowing is a killer.

Dyr

If you were suspended with pay they probably told you that the allegation was considered gross misconduct (theft usually is) and that it carried the possibility of dismissal

You really should have started talking to the union and looking for advice at that stage.

ofcork

Im not the op mine is a bit different.

Jim2007

davo10 wrote: »

Employers are not required to report workplace theft to the gardai. Op has only been defamed if the company make public their accusation of theft, DH are private and confidential with the employee informed in writing of the allegations. And the "reality" is that the DH will continue.

Thank you, it is a while since I took tort, but this is not about the finer points of the law, it's about letting people know that their actions may have unpleasant consequences. It has been my experience the HR types become very careful about making acquisitions when there is a chance it will end up in court. It is amazing how quickly a false acquisition evaporates when anonymity is no longer possible.

As for defamation, well the third party making a false acquisition to an employer is in the frame.... As for the company, a private/confidential meeting, no such thing someone always opens their mouth - so I'd say a day in court and made PR at a minimum.

MarkAnthony

Jim2007 wrote: »

It is amazing how quickly a false acquisition evaporates when anonymity is no longer possible.

Freudian slip regarding theft and false acquisitions (sic) aside :pac:

This is a massive strength of the Irish system. Cross examination of witnesses normally makes HR crap themselves and prevent anonymous skullduggery. Of course if it's a rigorous fair hearing by an experienced HR professional there's no reason why cross examination doesn't benefit everyone.