There has been a recent case which has caused a massive change in Employment Law practice that all employers (and employees) should be aware of.
Richard Grogan has written an excellent article about this change for HR professionals and lawyers, (http://www.irishlegal.com/7476/richard-grogan-disciplinary-hearings-a-seismic-change-for-hrir-professionals-and-lawyers/) but it applies just as widely to all employers and employees. In a recent High Court Judgement, Mr Justice Egar has changed the way any disciplinary procedure should be approached.
In the past all employers have been aware (I hope) of the requirement to go into the disciplinary meeting with an open mind. If an employee’s job is at risk then they need to be told that clearly, and they need to be given a chance to hear the evidence against them, question any of that evidence and present their own side of the story. This basic requirement has been reinforced and greatly extended by the High Court case.
Justice Egar has now set out clearly what represents fair procedures in relation to disciplinary proceedings. The case has made it quite clear that an employer has to permit the employee cross examine any person who made a statement or provided evidence against them. The decision goes further and states:
• That they should be allowed to cross examine, by a Barrister (or Solicitor), their accuser or accusers;
• That they should be allowed to give rebuttal evidence;
• That they should be permitted to address, again by a Barrister (or Solicitor), their employer in their own defence.
In addition to normal fair procedures, these additional procedures are now a requirement of any disciplinary proceeding where the employee’s job is at risk. This is a huge shift from the usual practice in the past – where it was common for the employer to explicitly exclude Barristers or Solicitors from the procedure. Employers need to be aware of this obligation to provide the employee the right to question, and more importantly, the right to have a Barrister or Solicitor act on their behalf.