All employers will be aware that an employee faced with a serious sanction, such as dismissal, is entitled to the benefit of fair procedures. However, what fair procedures demand depends on the terms of the employment and the circumstances surrounding the proposed dismissal. A recent High Court case, Giblin v Irish Life and Permanent plc, has shed some light on the requirement of fair procedures during a disciplinary process.

Mr Giblin was manager of the College Green Branch of Permanent TSB and had been an employee of the bank for almost 30 years. In August 2009, an investigation was launched into various accounts in the bank. Giblin was suspended and an investigation team was established to determine if his actions amounted to serious misconduct and to decide upon the appropriate sanction.

There was considerable correspondence between Giblin and his legal team, on the one hand, and the investigation team and the bank's legal team, on the other. The queries raised by the investigation team were extensive, totalling 50 pages and 907 queries, covering a 32-month period.

After a lengthy response in writing, Giblin was asked to attend a meeting. He attended under protest, but did not answer any questions and was accused of non-cooperation by the bank. He subsequently issued an extensive written response (amounting to 30 pages).

Almost three months later, on 25 November, the bank wrote to Giblin's solicitors and set out specific allegations against him (340 in total) and informed him that a meeting had been fixed with the investigation team on 14 December. Giblin objected on the basis that an investigation could not be run parallel with a disciplinary hearing. His position was that once the allegations had been set out by the investigation team, it should be passed to a separate person, or persons, to determine whether the allegations were proved and to decide on the sanction.

The meeting went ahead and Giblin attended, but did not answer any questions. The bank asserted that Giblin had failed to cooperate, again, and gave him "one final chance" to respond to the allegations at a further meeting. Giblin was informed that, if he did not attend, a decision would be made in his absence. The meeting went ahead at 11am on 14 January 2010, but Giblin refused to attend. He and his representatives were informed by email at 12.28pm on the same day that the investigation team had determined that his behaviour amounted to serious misconduct and that he should be dismissed. Giblin was provided with the opportunity to appeal, but was informed that any appeal was not an appeal against the investigation team's findings of fact.

Giblin issued proceedings in the High Court, seeking an order restraining his dismissal, claiming that the procedures adopted by the bank were in breach of contract and in breach of fair procedures. Giving judgment in the case, Ms Justice Laffoy accepted that the bank was entitled to ensure that an investigation was not "stonewalled", but the evidence suggested that Giblin cooperated with the investigation in as timely a fashion as reasonably possible up until the issue of the propriety of the investigation team was raised.

The judge went on to criticise the manner in which the investigation was conducted, stating that the investigation team was "manifestly confused" about its role and function. She held that a one-stage inquisitorial process may be appropriate in many cases. However, in this case, there was a strong argument that because of the manner in which the entire process was conducted up to 14 January 2010, the investigation team should not have made the decision to dismiss. In any event, they should not have made the decision in the absence of Giblin and his representative, particularly in circumstances where Giblin's legal advisors were challenging their entitlement to do so and had not responded to the specific allegations of misconduct because of that challenge.

The investigation team should have addressed the procedural concerns raised by Giblin. In the judge's view, the speed with which the investigation team made their decision on 14 January was also strongly suggestive of pre-judgement on their part, given the volume and range of allegations made against Giblin. In relation to the appeal process, the judge held that, in purporting to limit the appeal to an appeal against sanction only, the investigation team attempted to deprive Giblin of his rights under the disciplinary procedure. The fact that the procedure provided that "an appeal shall not constitute a fresh hearing" did not mean that, in the event of an appeal, a decision that the employee was guilty of misconduct was not subject to review. Giblin had, therefore, established a strong case that he was not being afforded the type of appeal to which he was contractually entitled.

The judge ruled that the decision to dismiss was invalid and Giblin continued to be an employee of the bank. This left the bank in a very difficult situation. Not only had it a large bill to discharge, having been unsuccessful in defending the injunction proceedings, but it also had to come up with some valid means to deal with Giblin and his alleged misconduct.

• An employer's disciplinary procedure should set out, in very clear terms,
  the type of disciplinary process that is proposed. It should also clearly
  set out the type of appeal to which an employee is entitled.
  
  
• Not only must a disciplinary process be conducted in accordance with the disciplinary procedure, it must also comply with the general requirement
  of fair procedures.
  
  
• An employer should address any procedural issues raised by an employee
  before proceeding with a disciplinary hearing.
  
  
• Even if an employer is of the opinion that an employee is being obstructive,
  he or she should be given every opportunity to attend the disciplinary hearing
  and respond to the allegations. If the employee does not attend, the disciplinary hearing should still address the substance of the allegations and make a determination on the facts.
  
  
• Even if the disciplinary procedure provides that an appeal is not a "fresh hearing", there may be circumstances where the employee should be provided with a rehearing at appeal stage.

For more information please contact Emmet Whelan.