How ‘Fair’ does ‘Fair procedure’ have to be?

Minister for Jobs, Enterprise & Innovation, Richard Bruton is embarking on some much-needed reform of the employment rights bodies. A consultation period concluding on September 16th has been announced. (Details and more information can be accessed via the News Section of the Homepage on this site).

Outside the issue of structures (about which I intend to write more in due course) there is an aspect of this that may otherwise escape attention in a debate focused on reform of the institutions.

But it is as badly in need of attention as part of the package of reforms.

That is SI 146/2000; the statutory instrument which is the benchmark document for the operation of fair procedure at workplace level, or more accurately the interpretation of the procedures it promotes requires a fresh look.

Interestingly, I had this piece more or less concluded when I came across an article on the site of the American Bar Association entitled ‘How fair does justice have to be’? It concerns the duty on the prosecution to share information with the defence in criminal trials (known as ‘Brady material’, as a matter of interest, but no relation!). It is only relevant to this article insofar as I am asking the same question and relieved that it does not turn me into some sort of a fascist for daring to ask it!

At the outset I am concerned on the basis of my own experience and what I hear from colleagues about the apparent loss of dispute resolution skills in many workplace situations. The Pavlovian reach for the Procedures manual can be bad for workplace relations and more important for the speedy and fair resolution of disputes.

Even where the employment relationship has ended amicable and early resolution of disputes is desirable for all parties.

The CIPD reckons that HR managers with mediation skills are 80% more likely to resolve disputes than those without. I suspect that for ‘mediation’ one might substitute ‘negotiating’ skills.

While the broad principles of the SI and the Code of Practice are fine, and indeed very important my concern is its applicability in small business settings. The principles in the document appear to have been drafted by people who weren’t thinking about small or medium sized, owner managed businesses.

This is despite the fact that about 60% of all businesses employ 50 people or less. No data are collected for micro-businesses. But clearly many thousands of these employees are employed in retail, and other businesses with under 20 employees or smaller.

For example s 13 reads; ‘Procedures should set out clearly the different levels in the enterprise or organisation at which the various stages of the procedures will be applied’

This is a good idea for ‘enterprises or organisations’ that have ‘different levels’. And the overall tone and expectations of this document are those of large enterprises and government departments; business organisations with a hierarchy. Most small businesses only have one level!

It envisages a level of administration impractical in a small business. I once had a case where the employer collected the claimant in his car every morning at 6.30. Following an incident he gave him a good telling off one morning as they were on their way to work.

Should he; the operator of a small butcher shop have sat down when he got in to work at 6.45 am and made a record of that? Under the current dispensation it might be the difference between an expensive award against him or not.

The claimant may not even dispute that it happened but a good, especially legal representative will make an issue out of the lack of documentation as a matter of principle, rather than from the point of view of a real, substantive breach of the employees rights, or as a matter of evidence as to whether the warning was issued.

To expect the owner of a small business to match a well resourced HR department in a large company or state organisation in the administration of workplace discipline is simply unrealistic; even unfair, as we’re on the subject.

I do not argue for one second that there should be any diminution in the substantive rights to the full rigour of fair procedure of a person accused of something which may cost them their job

However, it may be that the calcification of the system with its investigations, delays, hearings, costs can result in unfairness to all parties through the prolongation of disputes unnecessarily.

The impact on human relations in the workplace in replacing the inter-personal dynamic with an obsession with disciplinary and other procedures is surely a bad thing if it turns the workplace into a quasi legal battleground.

Another issue is the requirement for an appeal layer which is impossible to implement in most small businesses in any meaningful way.

In thousands, perhaps in most small businesses there is insufficient daylight between the necessary decision maker and any other person who might hear an appeal.

In my opinion the idea that an independent third party (paid for by the business owner) might be appointed to hear the appeal is somewhere between ludicrous and dangerous.

This essentially takes what is still at that point an internal business decision out of the hands of the owner of the business.

In any case, strictly speaking such an adjudicator, paid for by the employer may not be viewed as independent taking into account the requirement for independence in arbitrators and recent decisions of the courts on such appointments. (Healy v Whitepark Developments, 2009 Unreported). (Private arbitration by a competent arbitrator is another matter, and I repeat my criticism of the mystifying exclusion of employment disputes from the Arbitration Act 2010, a really stupid decision).

Again I have had a recent painful experience where a person appointed to hear such an appeal did so without terms of reference, without holding a hearing, and without giving reasons for his findings. Neither the adjudicator, the company which suggested him, the employer or the employee (represented by a large Trade union) thought it necessary to challenge any of these deficits. A mess? Carnage!

Indeed the whole idea that ‘nemo iudex’; the principle underpinning fair procedure that no-one is a judge in his own cause can apply in any meaningful way in a small to medium sized business is somewhat fanciful (and has been recognised as being so by the High Court).

It is ludicrous to imagine that the owner of a small to medium sized business can rise to judicial levels of detachment in relation to issues in which s/he has a direct involvement and with employees s/he knows well. No amount of po-faced posturing about fair procedure will change this reality.

The Rights Commissioner service is hearing cases with a relatively short delay and offers the option of an appeal under the Industrial Relations Act which would remove the necessity for such pantomime at the level of the workplace. This might resolve the matter subject to it having the resources to cope (or by also amending the Arbitration Act to allow private arbitration in employment disputes).

Parties for example need clarity that the lack of an appeal layer in a small business may not be a breach of fair procedure.

The basic principles in the Code of Practice should not be changed (except that the option of mediation really needs to be put centre stage in view of the expected Mediation and Conciliation Bill in 2012). But at the very least the implementation of those principles in a small business setting needs to be clarified (what are ‘adequate records’ for example?) and we are unlikely to get a better opportunity than the forthcoming consultation process.

It can happen that an employer has done their very best to be fair within a general understanding of the term, and indeed has complied with a very high standard of procedural fairness but still ends up being tripped up because there is no documentation of a verbal warning!

In other words where a process has been in substantial compliance (whatever that may mean) with the requirements of fair procedure technical flaws should not render it unfair.

The problem is no-one knows with certainty (normally until it is too late) what the standard should be.  At the point you find out for sure you could be reaching for your cheque book and paying out a five-figure sum.

Is it this ‘juridification’ of workplace discipline issues that is destroying traditional dispute resolution skills practised for generations by old style personnel managers (as they were then) and workplace representatives.

It is likely that the current SI was based on discussions between the then ‘social partners’ who were scarcely very representative of small enterprises or cognisant of these issues. The high level of involvement of some solicitors and barristers in the system with limited knowledge of HR and workplace dispute resolution processes has compounded the problem.

Those who are representative of small business might now be invited to consider the preparation of a more relevant document that brings greater clarity for all parties involved as part of the Minister’s reform initiative.

There is no argument being made here that basic principles of fairness should be in any way compromised, or that peremptory action by bad employers should be rewarded.

But there should be explicit recognition that due regard should be had to the small business context, proximity of relationships etc. in assessing compliance with the SI where there has been an attempt in good faith to operate in a fair way.

Epilogue

I dedicate this article to the memory of  an old acquaintance.  A lonely, single, middle-aged, gentle person with a drink problem who happened, stupidly to call into his workplace while intoxicated, but did no more than that. He did nothing wrong.

He was, in accordance with the procedures suspended pending a disciplinary investigation by his award winning employer. At that point he consulted me. I advised him on June 28th to seek medical help immediately and we would deal with the disciplinary matters later.

He agreed to do so.

He was found dead, alone exactly four weeks later. He was buried on July 22nd

May he rest in peace.