HSE employees face new disciplinary codes

State sector employees must now operate under new disciplinary codes that provide greater opportunities for rewards, but also makes it easier to discipline poor performers and even dismiss them, McCann FitzGerald Solicitors has advised.

Speaking at a Legal Island Conference on the subject of HR matters for the State sector on 3 April, Terence McCrann, head of the employment group at McCann FitzGerald, said that the new disciplinary codes for the HSE will provide for more effective performance management.

‘The new codes, which are now in operation, give senior management a greater capacity and flexibility to reward and promote excellence on the one hand, but also the ability to sanction and discipline poor and/or bad performance on the other,’ he said.

Mr McCrann added that previous performance and disciplinary procedures for the State sector had been cumbersome, complex and protracted, but the new codes had introduced much-needed flexibility into the process, commenting: ‘In many past cases, the dismissal and/or removal of an official employed by a health board involved a very legalistic process. The result was that few, if any, health officials were ever removed or dismissed.

‘Now, under the modernisation programme for government, and in line with the measures agreed under a number of social partnership agreements, more straightforward, user-friendly and effective performance management and disciplinary codes have been introduced.’

Under the new disciplinary code in operation for employees of the Health Service Executive, the decision-maker when dealing with dismissal or action short of dismissal is the relevant national director. The national director of Primary, Community and Continuing Care may delegate authority to the appropriate assistant national director. The national director, National Hospitals Office, may delegate authority to a hospital network manager.

The code envisages a process of investigation into serious misconduct. Upon completion of the investigation, the investigation team will form its final conclusions based on the ‘balance of probabilities’ and submit a written report of its findings and recommendations to senior management.

However, no decision regarding disciplinary sanction can be decided until the decision-maker has held a disciplinary meeting with the employee.

An appeal against dismissal decisions will be heard by a three-person committee comprising persons selected from a nominated panel that has been agreed between the HSE and health service unions. Finally, should such an appeal be unsuccessful, the employee may make a final ‘mercy appeal’ to the Chief Executive Officer.

While all the new codes envisage employees having the right to be accompanied by a union representative or work colleague during the disciplinary process, it is considered likely that employees facing possible dismissal will look for legal representation.