I can dismiss an employee at any time before they have 12 months service-right?

There is a perception amongst many employers that once an employee is still on probation or has less than one years service that an employee who is dismissed has no recourse against the employer.  However an employee with less than one years’ service can bring a claim under the Industrial Relations Act, 1969 (as amended) alleging unfair dismissal. There is no service qualification under this Act. A claim under this Act may either be referred to a conciliation officer of the Labour Relations Commission or to a Rights Commissioner and subsequently on appeal to the Labour Court. However, it is worth noting that, in general, the compensation awarded by Rights Commissioners/the Labour Court under the Industrial Relations Acts tends to be lower than awards of the Employment Appeals Tribunal under the Unfair Dismissals Act and, strictly speaking, is not legally enforceable.

What about an employee on probation?

Contracts of employment that provide for a probationary period can be a very useful tool for employers. A new employee’s performance can be evaluated during the probationary period and, based on the strength of the performance, the employer can make a decision on the employee’s continued employment. 

It is important to note that the placing of a new employee on probation has no legal effect on the employment relationship and that a probationary period itself has no legal standing. A common misconception amongst many employers is that they are entitled to dismiss an employee who is on probation without affording that person the benefit of fair procedures and natural justice. That is not the case.

Unfair Dismissals Acts

The Unfair Dismissals Acts, 1977–2001 entitle employees covered under the Acts to bring a case to the Employment Appeals Tribunal (the “EAT”) in the event that they are unfairly dismissed. The EAT has jurisdiction, under those Acts, to award reinstatement, re-engagement or compensation (up to a maximum of two years’ remuneration). For an employee to be covered under the Unfair Dismissals Acts, he/she must have 12 months continuous service (except in the case of dismissal for pregnancy related matters or trade union membership activities, in which case a claim can be brought regardless of the length of service). This qualifying period lead many employers to believe that an employee with less than one years’ service has no entitlement to issue proceedings against his/her employer; however this is not entirely accurate.  An employer should also be aware that notice periods and accrued annual leave will be included in any calculation of 12 months service.

Other legislation

There is a perception amongst many employers that once an employee is still on probation or has less than one years service that an employee who is dismissed has no recourse against the employer.  However an employee with less than one years’ service can bring a claim under the Industrial Relations Act, 1969 (as amended) alleging unfair dismissal. There is no service qualification under this Act. A claim under this Act may either be referred to a conciliation officer of the Labour Relations Commission or to a Rights Commissioner and subsequently on appeal to the Labour Court. However, it is worth noting that, in general, the compensation awarded by Rights Commissioners/the Labour Court under the Industrial Relations Acts tends to be lower than awards of the Employment Appeals Tribunal under the Unfair Dismissals Act and, strictly speaking, is not legally enforceable.

Also whilst normally you must have at least 12 months’ continuous service with your employer in order to bring a claim for unfair dismissal. However there are important exceptions to this general rule. If you have less than 12 months’ continuous service you may bring a claim for unfair dismissal if you are dismissed for:

• Trade union membership or activity
• Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
• Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer’s Leave Act 2001. 

Alternatively, an employee (regardless of whether he/she is on probation) and who has been dismissed from his/her employment may issue proceedings at common law for wrongful dismissal/breach of contract in the civil courts (to include injunction proceedings). Again, there is no service requirement to bring such a claim.

Similarly, there is no service requirement for an employee to bring a claim under the Employment Equality Acts 1998–2004. Accordingly, in the event that an employee on probation believes that he/she was discriminated against on any of the nine grounds prohibited by those Acts, he/she may bring a claim of discrimination to the Equality Tribunal. Dismissal based on any of the following 9 grounds for discrimination: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community. So, for example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but you may be able make a complaint of discriminatory dismissal. The maximum award of compensation that may be awarded in such a case is two years remuneration.

A probation clause in the contract – a word of caution

The wording of clauses in contracts of employment may sometimes give rise to a possible construction that the probationary period is, in itself, a fixed term within the contract. For example, if a contract were to state that “The first six months of this contract shall be a probationary period” and the employee was dismissed after one month, this may give rise to a claim that the employee is entitled to be paid the balance of five months’ salary. (There has been a District Court finding to this effect). Accordingly, prudent employers should insert a clause in to the contract of employment to the effect that the employment may be terminated by providing a specific period of notice.

Conclusion

The dismissal of any employee should be handled with care. Employers should never assume that they can dismiss or demote an employee on probation without giving that person the benefit of fair procedures and, importantly, an opportunity to improve. Many of the cases brought under the Industrial Relations Acts emphasise the clear need for correct and fair procedures to be followed, even during the probationary period

How do you discipline an employee without being accused of bullying?

A common fear for employers nowadays is that employers who try and discipline their staff are worried that they will be accused of bullying if they do.  This is one area that receives a lot of coverage in the media in general and there are certainly large volumes of litigation and complaints made in courts and tribunals.  As with a lot of these types of issues it is not often clear for an employer as to how they can comply with their legal obligations and to avoid successful actions for bullying in the workplace.  However, recent developments have made some progress in clarifying these matters for employers and I thought it would be useful to go through some of these for you.

What is Bullying?

There is no one piece of legislation that deals directly with bullying but a good source of information as to what behaviour is defined as bullying is contained in the Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying that is published by the Health and Safety Authority.  The Code defines bullying as follows: -

“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise conducted by one or more persons against another or others at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work.  An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once-off incident, is not considered to be bullying.”

Any Examples?

The Code also sets out a comprehensive, but non-exhaustive list of the types of behaviours that are examples of bullying: 

• Exclusion
• Verbal abuse/insults
• Physical abuse
• Being treated less favourably than colleagues
• Intrusion-pestering, spying, stalking
• Menacing behaviour
• Intimidation
• Aggression
• Undermining Behaviour
• Excessive monitoring of work
• Humiliation
• Withholding work related information
• Repeatedly manipulating a persons job content or description
• Blame for things beyond a persons control

What can I do as an employer?

Also, and somewhat unusually the Code attempts to clarify what is not bullying at work. The definition states that bullying at work does not include reasonable and essential discipline arising from good management of the performance of an employee at work or actions taken which can be justified as regards the safety, health and welfare of employees.  The Code also gives an example of an employee who is continuously being told that their job performance is below the required targets and who therefore feel threatened and insecure in their work.  The Code confirms that this in itself does not indicate bullying and this is helpful to employers who feel that they might be accused of bullying where they are carrying out legitimate disciplinary or performance appraisals of an employee. 

It follows that by following the disciplinary procedure as set out in your handbook that you will significantly reduce the risk of having allegations of this nature made against you.  Where performance appraisals are concerned it would be useful to have an appraisal system in place so that the focus is on the employees performance and development rather than on issues that are not relevant to the appraisal but could be a source of contention that leads to clashes with the employee. 

In conclusion a lot of employers are concerned about this issue, particularly in the current climate.  Whilst the whole area is changing all the time the recent publication of the Code has given employers and employees alike a better idea of what type of behaviour is or isn’t acceptable and the difference between an employer carrying out reasonable and necessary action in terms of discipline and job performance of an employee and an employer who is bullying an employee. 

However, as with all matters between employers and employees you should ensure that you should be reasonable in dealing with your employees and, where you have a policy in place ensure that you keep to the terms of that policy to best protect yourself from the risk of litigation.

Is Big Brother Watching your staff or clients?-use of CCTV in the workplace

There are two main issues that arise in relation to the use of CCTV monitoring namely,

1. Data Protection and

2. how the information that is collected is used for disciplinary purposes

Data Protection 

 The Information Commissioner in the UK has issued a Code of Conduct that develops the Act in the context of employment practices. Whilst clearly the Code is not legally binding in Ireland it is likely to be used in this jurisdiction as a basis and it would be best practice to ensure that you comply as best it can with the Code.  Part of this Code deals with the issues that arise when an employer monitor its employees through opening or monitoring employees’ emails to recording the activities of employees by means of CCTV cameras.  Whilst most Internet and Email usage policies will comply with the Code businesses that use CCTV should include a similar policy relation to the use of CCTV.

What about monitoring? 

Monitoring in general should comply with the Code and must comply with the Data Protection Acts and the following matters should be considered: 

• Companies that retain data must register with the Data Protection Commissioner and the existence of CCTV should be included in said registration; 
• The organisation must decide the length of time they retain the information collected which should be reasonable; 
• The personnel who have access to the information must be limited and the information/data must be properly and securely stored, particularly when there is sensitive information contained in the data collected; 
• The equipment must be in good working condition.

Furthermore, where CCTV is used the following specific guidance is given:  

• Signs must be erected advising of the presence of CCTV;

 

• Where possible, any CCTV should be targeted at areas of particular risk and confined to areas where expectations of privacy are low;
•  
• The relevant company should inform employees that CCTV monitoring is being carried out and where and why it is being carried out (unless covert monitoring is justified which is dealt with below) 
• The Company must ensure that those employees that are inadvertently caught by the monitoring are made aware of its operation and purpose through adequate notices and other means. 

What about Covert Monitoring

Whilst covert monitoring itself is not subject to the DPA once it results in records/tapes/data being kept about an employee the DPA will apply.  Covert monitoring is only permitted under certain circumstances, for example if there are grounds for suspecting criminal activity or malpractice and informing an employee would prejudice its prevention or detection.  If any employer is considering covert monitoring the following guidance should be followed: 

• Any cover monitoring should be authorised by senior management; 
• Covert monitoring should only be used as part of a specific investigation and should cease once the investigation is complete; 
• Covert monitoring should not be used in areas where employees would genuinely and reasonably expect to be private; 
• Information that is obtained through covert monitoring should only be used if it relates to the prevention or detection of criminal activity or equivalent malpractice.  Any other information collected as a result of this monitoring should be disregarded. 

These guidelines should also be followed under the next heading –use of CCTV evidence in Human Resources.

Can I use CCTV evidence?

Whilst CCTV is primarily installed and used as a means to provide security for businesses and premises some employers use CCTV to monitor employee’s activities in the workplace. Consequently, whilst employers may have installed video surveillance as a security measure, it has now access to video footage that could be used as a means of gathering evidence to justify disciplining employees for misconduct. 

However, it goes without saying that, as with all disciplinary matters, caution must be exercised in using this information to justify disciplining and/or terminating an employee for misconduct or breach of procedures and policies e.g. Health and Safety.  A fair procedure must always be followed and a balance must be struck between the Company’s right to protect its business interests and the employee’s rights. 

It appears from cases appearing recently before the Employment Appeals Tribunal (EAT) that while the actual use of CCTV is not considered inappropriate; it is essential that fair procedures be adhered to in relation to the presentation of CCTV evidence to the employee and the manner in which the dismissal is carried out.  The EAT appears to have no difficulty with accepting such CCTV evidence in making its determinations in relation to unfair dismissals. 

Best practice in relation to the use of CCTV would be to inform all employees of any and all CCTV surveillance in the workplace. Often the installation of CCTV measure is taken as a security measure and employees are not informed that their conduct may be monitored.  Employers should have clear policies in place in relation to the monitoring of employees and ideally a clause should be inserted in the contract of employment or staff handbook, whereby the employee gives his or her clear consent to all types of monitoring (e-mail, Internet, business calls and CCTV) in the workplace.

Bumping and Redundancy-what should employers do?

With the ongoing economic downturn many employers are continuing to review staffing levels and a recent UK EAT decision, whilst it is not binding in this jurisdiction, highlights the importance of knowing the distinction between  pooling and  bumping when making staff redundant. In Fulcrum Pharma (Europe) Ltd v Bonassera the UK EAT held that a dismissal was unfair because the employer had failed to consider bumping the employee who was at risk of redundancy into a more junior role.       

What is “bumping”? 

Bumping is the process whereby potentially redundant employee A is given B’s job and B is dismissed instead. B’s dismissal still constitutes a redundancy for unfair dismissal and statutory redundancy payment purposes, even though there may be no cessation or diminution in the requirement for employees to do B’s work. If A and B do broadly similar jobs then this is usually the result of pooling them together and deciding A is the one to be retained. However, if their roles are materially different (and where there is otherwise no redundancy threat to B’s job) then this is bumping. The distinction is often easier to make in theory than in practice as this case shows.

A lot of employers are reluctant to consider bumping because of its obvious unfairness (in the nonstatutory sense) to the employee who is bumped. The selection process  for redundancy can be difficult at the best of times without introducing another complicating factor. Previous cases make it clear, however, that whilst employers are not obliged to bump, a failure to do so can in certain circumstances be fatal to the fairness of a dismissal. 

The facts of the case

Fulcrum had a small HR function, comprising an HR Manager, Mrs Bonassera, and under her an HR Executive, Mrs Carter. It decided that for financial reasons it no longer needed a HR Manager and accordingly put Mrs Bonassera at risk of redundancy. She argued that the HR Executive should also be included in a pool for selection, but the employer concluded that it should be Mrs Bonassera who was made redundant, as it was her role that was disappearing. So the argument was whether Mrs Bonassera’s job was part of a wider contraction in HR support, pointing to a pooling of both those within it, or a free-standing role without the need to consider others.

The EAT said that the employer had erred in determining that because the HR Manager’s role had to go the pool was inevitably just her, without any further consideration of this issue, in particular of whether the more junior HR Executive role should have been included in the pool for selection. On the face of it, it was the HR Manager role which was dispensed with, which pointed the finger of fate at Mrs Bonassera. However, if she would agree to do the HR Executive role at HR Executive money then there would be nothing between her and Mrs Carter in terms of cost and her greater experience might make her technically better in that role. In those circumstances they would have to be pooled. Fulcrum made two mistakes at the consultation phase.

1.  It did not ask whether Mrs Bonassera would be willing to do the HR Executive job as an alternative to her dismissal, so it could not say that she would not.
2. It had in fact prepared a consultation meeting “script” which included reference to asking her that question and a tacit recognition that pooling may be appropriate if she said yes.

 Even though there was debate about whether the HR Executive job should be subsumed upwards into Mrs Bonassera’s HR Manager role (i.e. allowing the HR Executive to be dismissed and Mrs Bonassera to retain her HR Manager salary), that script was not ultimately used and the point went unaired.

Was this fair? 

On the face of it some employers may feel this decision was a little harsh, but it has always been the case that employers are required to address their mind to the issue of the selection pool at the outset of a redundancy exercise. What this case makes clear is that employers should be wary of making assumptions – just because a role has been identified as redundant does not automatically mean that the employee who is currently performing that role is the person who should go. Although of course in the vast majority of situations this will be the case, that outcome should always be seen to be the product of some active thought on the part of the employer. It may be that having considered the matter an employer concludes that it would be inappropriate to have any other employees in the pool because, for example, the role is unique and/or there are no other employees doing work of a similar kind or who have interchangeable skills. Employers still have a fairly wide discretion when it comes to selecting a pool of potentially redundant employees – provided they can be seen to address their mind to the issue of who is in that pool it will be difficult for an employee to challenge the decision. If its reasoning is clear, even if objectively questionable, the employer’s decision should be fairly robust. The Employment Tribunal may not substitute its view for that of the employer. However, if the employer’s view is patently unreasonable (and an absence of any visible thought process will tend to this conclusion) then the Tribunals will feel themselves able to go behind that reasoning. 

Does this mean that employers always have to include more

junior staff in the pool for selection?

Not necessarily, but the EAT made it clear that this is an issue that should be addressed as part of a redundancy selection exercise, if only to discount it. The EAT confirmed that in determining whether a more junior employee should be included in a redundancy pool (with a view to bumping the other employee into his role) employers should be seen to consider a number of factors, including:

• how different the two jobs are;
•  the difference in remuneration between them;
• the relative length of service of the two employees;
• and the qualifications of the employee who is at risk of redundancy.

Consideration of bumping is likely to be appropriate when an employer is proposing to make a senior role redundant but retain a more junior role (as in Fulcrum), especially if the senior employee has longer service, better qualifications etc. In such circumstances it would be prudent to ask the more senior employee if he would be prepared to consider the more junior role at the reduced salary. In the vast majority of cases the employee will be unwilling to accept such a position and this will be the end of the matter. If the employee expresses an interest then the employer should give the matter further thought. As with all decisions around redundancy selection a record  should always be kept to demonstrate that bumping was considered, even if ultimately the employer decides against it. An employer might legitimately conclude, for example, that a senior employee forced by circumstance into a more junior job would be unhappy, resentful and likely to leave at the earliest opportunity. Alternatively, the potentially displaced junior employee might have money, family or health issues which would make his dismissal of greater adverse impact than usual. It might decide that bumping would create a cascade of uncertainty in the business as each displaced employee looks to bump out his subordinate in turn.

Any upside?

 Despite the many issues it creates, it is worth bearing in mind that bumping does not have to be a negative thing. It can be a useful tool for employers who wish to retain the skills and experience of an employee who would otherwise be made redundant even though at the expense of someone less valuable.

Dealing with minor misconduct!

 

The first step of a disciplinary procedure. 

A lot of cases that end up in front of a Rights Commissioner or the Unfair Appeals Tribunal have a number of similarities.  One of the common themes is where an employee’s work standards or attendance etc have slipped and, instead of dealing with it at an early stage, an employer waits until the situation has got out of hand and ends up dismissing or trying to discipline the employee that results in an allegation of constructive dismissal.  However, where an employer deals with issues as and when they arise there is a strong likelihood that the behaviour will improve and if not, that the any subsequent dismissal will be deemed to be fair.

What is the purpose of the disciplinary procedure? 

It is worth remembering that the objective of a disciplinary procedure is to allow the employee to improve their performance and conduct and is not a form of punishment. You should avoid invoking a disciplinary process with the sole purpose of dismissing an employee.  Unfortunately a lot of employers wait until a situation has got so bad that they see dismissal as the only outcome but if a problem is dealt with early and correctly it can often be resolved.  Furthermore an employer should always exhaust all efforts to allow the situation improve before resorting to a dismissal and all of the inherent risks associated with that decision.

“Prevention is better than cure” 

By taking the appropriate action early you are increasing the likelihood of resolving the problem and avoiding unnecessary confrontation.  This is even more relevant where you don’t follow you written policy in place as if the situation escalates or where there is a lack of “procedural fairness” it is almost a certainty that a tribunal or court would find against you as an employer for unfair dismissal. 

Where you have an issue with an employee and it is the first problem the first step should be an informal discussion.  Basically, it would just be a meeting between you and the employee in question (or with her manager if there is a manager) where you could just point out that there has been one or two situations that have arisen where the employees work and punctuality has not been up to the level you require and re-iterate what you expect of her in their role and how they should improve.  You might find out that there is something outside of the workplace that is causing the problems that might explain the change of behaviour.

This meeting should be held in private and you should make sure you have sufficient time to deal with the issues.  Reduce any chance of interruptions by either meeting out of the office or at a time when you are not too busy. 

Early intervention should pay off 

You should point out that this is merely a preliminary step but if the situation continues to deteriorate you will have no option but to take a more formal approach next time.  Of course the employee should be given an opportunity to put forward her own views or an explanation.  Ultimately you should agree the steps required to improve the situation including a timeframe for the situation to be monitored that should be reasonable and allow for an improvement to take place. 

Once you have agreed the steps required you should confirm your discussion in writing and ask the employee to agree so there is no ambiguity and agree to meet in say 2 weeks time to see if there have been improvements.  Hopefully, as in the majority of cases where early intervention is taken the problem usually resolves itself.

Remember: 

• Confront the situation as early as practicable-don’t wait until it gets so bad that you see no alternative but to fire the employee.
• Keep in mind the disciplinary process is intended to improve the behaviour not act as a punishment.
• Make sure the employee is given an opportunity to give an explanation-ask her if she feels she is happy with her performance.
• Try and agree the steps required and a suitable time frame for the employee’s behaviour to improve.
• Make sure you follow up on the agreed steps and meet to review the situation again within the agreed time frame.

It’s S(no)w excuse!-advice to employers on dealing with the severe weather

With the recent severe weather that is predicted to possibly continue or worsen over the next few days the following is a quick guide for employers about the impact of bad weather conditions.

Minimum working temperature

As the winter weather bites, what protection do you have to provide for your employees from the chill?

For workers who work inside, certain regulations set out the rules on workplace temperatures. The general rule is that the temperature in workplaces should be at least 16 degrees Celsius. However, there is no legal minimum outdoor working temperature so employers need to rely on thermal risk assessments.

In very cold weather, outdoor workers face two major health problems: hypothermia and frostbite. There is obviously an obligation on employers to ensure that all employees have sufficient protective clothing for cold weather and should be allowed sufficient breaks to enable employees to get hot drinks or to warm up in heated areas.

Paying staff who can’t get to work

Do you have to pay staff who are unable to get into work due to snow and difficult transport conditions?

Employees are obliged to attend the office unless they are sick, on holiday or on maternity leave etc. The onus is, therefore, on employees to come into work. Technically, this applies even in extreme weather conditions. Therefore, if the office is open and employees cannot make it into work because they are ‘snowed in’, one view is that you are entitled to treat their absence as unauthorised and are under no obligation to pay them.

However, if an employee’s normal mode of transport is out of action due to severe weather disruption, you may need to revise this view. First, you should encourage employees to explore alternative means of transport. However, employees should not feel pressured to risk their safety to get into the office so it may be sensible to consider whether employees could usefully work from home until the weather situation has improved.

If this is not a viable option, then the alternatives available are for you to advise employees that:

• § any time off work in these circumstances will be unpaid (ideally, you will have a contractual provision to support this); or
• § they will be paid but will be expected to make up the time at a later date; or
• § they can request to take the time off as paid annual leave or as unpaid time off (e.g. if schools close – see more about this below).

In practice, few contracts will state that employees who cannot get into work because of the weather will lose a day’s pay. Employees have statutory protection against an unauthorised deduction being made from their wages without their consent and deducting pay could potentially be challenged as unlawful under these provisions (although the employer could argue that there was no entitlement to pay as no work was done.)

You should therefore assess whether not paying employees would be in the best interests of your business. It may be that the financial burden to the business of paying staff in these circumstances is outweighed by the benefits that such a gesture would have on staff morale and productivity in the long run – especially if the snowfall is particularly heavy and it is impossible to get into the office.

Enforced holidays

Can you require an employee who cannot get into the office to take a day’s holiday?

-       This is not likely to be an option for many employers. Unless the employee’s employment contract contains an express right for the employer to direct when their holiday is taken, employers cannot force employees to take a day’s holiday without their consent. You should let your staff know who they need to contact to advise that they are unable to come into work and depending on whether you decide to continue paying them or not the employee should be advised that they can avoid loss of income by;

• Taking holiday entitlement for the day/s or shift/s lost

OR

• Taking time of in lieu for the day/s or shift/s lost

OR

• Where time off in lieu and holiday entitlement have already been taken, Associates may be able to agree with their Manager to take unpaid leave or work back time lost

 

School closures

If schools are closed or an employee’s child minder is unable to make it to work because of the severe weather and there is no one else available to look after the children at such short notice, what are the implications for employers?

If the school closure was announced first thing in the morning and alternative childcare arrangements cannot be made, this could be seen as constituting an emergency situation and employees may have to take the day off. Strictly speaking, the day would be unpaid but not all employers will take this approach and you may want to reconsider the situation along similar lines as where the employee cannot make it into work. It is also important for employers to adopt a consistent approach to the policy adopted for employees without children.

Working from home

If it is safe to travel, employees should come into work as usual. If employees are concerned that the conditions are not safe or if they are dependent on public transport systems that are badly affected, many employers take the view that employees should remain at home and do what work they can from there. This is becoming more feasible as many employees have Blackberrys or similar mobile devices and, if not, then they can access their work email and office applications remotely via a laptop, home PC or mobile phone.

However, even though they are at home, employees need to be clear that they must still work as far as possible (and not just watch TV). A home working policy could be helpful here making it clear that working from home is a privilege, not a right and that the employer will, if necessary, monitor output.

Falsely blaming the snow

What if an employee could have made it into work but chooses not to?

If you believe that an employee is using the weather conditions as an excuse for absence (or lateness), particularly if they live locally, this could be a disciplinary matter.

However, it is doubtful that most employers would want to devote time and resources to investigating the circumstances of each individual worker who is suspected of taking a ‘snowball’ day.

In a blatant or persistent case you may, of course, choose to investigate the matter in the usual way and take any necessary action in line with the company’s disciplinary policy. Alternatively, when the initial conditions that made travel to work impossible have subsided, you could let employees know by phone, email or text that any further time off will need to be taken as holiday. You may find that once this has been communicated, employees suddenly start finding ways to get in.

Closing the office

What if you are forced to close the office due to the severe weather conditions?

If you decide to temporarily close your business premises at short notice because of unforeseen circumstances, such as heavy snowfall, and there is no work available for your employees as a result, you cannot usually withhold pay.

If you do, employees could bring unauthorised deduction from wages claims to recover the pay owed. The only exception to this is if you have an ‘unpaid lay-off’ clause in your contracts of employment, or the employees expressly consent to being laid off without pay.

There are, however, complicated rules surrounding lay-off clauses, including rules about statutory guarantee payments, and you should take legal advice before proceeding.

Should employees who actually make it into work be rewarded?

Employees who have battled into work, often against the odds, may resent the fact that others made less effort, especially if, once they are in the office, they have to work extra hard to cover those who are absent. Ideally, the employees’ efforts should not go unnoticed – though days off in lieu or other financial rewards are unlikely.

However, employers should carefully observe weather warnings and let employees leave when appropriate to avoid any treacherous travel conditions on the way home. Never ask staff to disregard official weather and travel advice.

How to manage gross misconduct

What is misconduct?

Misconduct is behaviour that an employer deems inappropriate for an employee. It usually relates to an employee’s conduct during working hours and there are varying degrees of misconduct, ranging from minor misconduct to serious (gross) misconduct.

An employer may, in certain circumstances and after following appropriate disciplinary procedures, dismiss an employee because of the behaviour and in the Employment Appeals Tribunal  where an employer has followed a fiar proceudre they will have a good defence to a claim for unfair dismissal.

Employers should have a set of disciplinary rules and procedures which set out standards of conduct at work. Otherwise an employee may not know what is expected of him, also it may hamper an employer from taking steps to discipline (or punish) the employee. All employers should have a clear disciplinary procedure policy or provision in their contracts of employment or staff handbook explaining what will not be acceptable behaviour.

What is gross misconduct?

There is a general view that if an employee commits an act of gross misconduct an employer has the right to dismiss the employee without notice. However this does not necessairly mean that the employee can be dismissed on the spot; there is still an obligation for the employer to investigate allegations and carry out any dismissal in accordance with a fair procedure.

It is not possible to define all the areas which could constitute gross misconduct, however, they can include:

• fighting
• theft from the employer or colleagues
• fraud or falsifying work documents
• accessing and/or distributing pornographic emails or websites
• deliberately damaging company property
• serious bullying or harassment
• bringing the employer into serious disrepute
• serious infringement of health and safety rules
• serious failure to follow reasonable instructions.

As can be seen from the list above the common theme is that it must be an action that has a serious impact or consequence.

Employees should be made aware, either in their contract of employment or in disciplinary procedures what are the likely consequences if they break the guidelines the company has laid down in relation to their conduct, including dismissal.

Be Consistent

Employers must be consistent. If other employees have previously committed the same offence but have not been dismissed it may be difficult to justify dismissal on a subsequent occasion.

Employee’s rights

Generally speaking, if an employee has been with the employer for over a year they have unfair dismissal protection. Although employees have the right not to be dismissed for an unfair reason, the conduct of an employee is expressly stated to be a potentially fair reason to dismiss.

• Employees also have the right not to be discriminated against on the grounds as set out in the Equality Act namely, gender, family status, matital status, race, religion, disability, age sexual orientation or membership of the traveller community. This would include being singled out for a warning about their conduct or receiving harsher penalties than other employees would receive.
• Employees have the right not to be dismissed in breach of their contractual terms. For example, failure to follow a contractual procedure may result in a claim of breach of contract.
• Employees are entitled to be dismissed on notice (unless for gross misconduct). Failure to do so entitles the employee to claim damages for breach of contract. This type of claim is also called “wrongful dismissal”

What should an employer do if he suspects an employee of misconduct?

• The employer must investigate the matter fully (speak to witnesses, collect documentary evidence etc).
• The employer must also give the employee an opportunity to explain himself.
• The employee should sufficiently know what the case and evidence is against him before any hearing.
• Prior warning of the hearing date and that the disciplinary action is under consideration.
• Give the employee the opportunity to call witnesses.
• Inform the individual he has the right to be accompanied by a colleague (or a trade union official).
• Inform the employee he has the right of an appeal.

When will it be reasonable to dismiss for misconduct?

Even though an employer may have strong suspicions that an individual is guilty of misconduct, this may not be enough. Although an employer does not have to show an employee committed the offence “beyond all reasonable doubt”, there is a threshold that must be reached. In particular:

• The employer must believe that the employee is responsible for the conduct in question.
• The employer must have reasonable grounds for this belief.
• The employer must carry out as much of an investigation into the matter as is reasonable.

What if an employee is charged with a criminal offence?

• The employer does not have to wait for the outcome of Garda investigations or a criminal trial.
• The employer should hold its own investigation into the matter.
• The employee’s rights to have this matter investigated by his employer and to present his side of the story remain regardless of the fact that he is charged by the Gardai.

Out of office misconduct

Generally, employees will only be subject to the company’s disciplinary rules and procedures during their office hours or when they represent the company.

In certain circumstances an employee’s behaviour may be subject to the employer’s scrutiny if it is deemed to be likely to impact on the performance of his contract or the reputation of the employer. Out of office misconduct must be particularly serious to warrant disciplinary action and the behaviour should also relate to the employee’s ability (or perceived ability) to do his job.

Alternatives to redundancy?-10 options to consider

There are very few businesses that have not been faced with the prospect of having to make some of their staff redundant in the current economic downturn. However, many employers, with co-operation from their employees,  are looking for alternatives to redundancies in order to save those jobs at risk.

Where this is the case you should look at some alternatives to laying off staff such as: 

• Temporary pay cuts

You will have read a lot in the press recently of employers and employees agreeing to taking a temporary pay reductions. Whilst there is no typical or standard percentage a number of clients have agreed reductions from 5% to 15% across the board.

• Full Time to Part Time Status

There may be employees who are currently full time employees who would like to work part time. An employer can offer reduced working hours for anyone who is interested. While the reduction in hours is shared by all employees affected, the impact on one individual is obviously less severe than layoff.

• Shorter Workweeks

The idea here is that everyone works a shorter workweek to spread the work out.

• Voluntary Sabbaticals

Another option companies are offering is for employees to take unpaid or reduced salary leaves of absence.

Some companies offer a six-month to one-year voluntary sabbaticals to their employees to go off and do whatever they wish. They may pay a small percentage of the salary or provide the same benefits and let the employee keep his or her work phone number, laptop and e-mail. When the sabbatical is finished, the employee is entitled to return to their old jobs.  This might be an option for employers who have a number of employees from overseas who might want to return home for a period of time. And it is a way to cut costs without losing the valuable people the company spent so much time recruiting and training.

• Voluntary redundancy

An employer might consider offering an enhanced package to employees to take voluntarily redundancy.

• Redeploying staff instead of replacing staff that leave

Where an employee retires or is promoted or leaves the employment the employer might choose not to replace any of these people with a new employee. The employer should look at redeploy people or combining jobs, etc. to absorb the extra work.

• Job Sharing

Another option that employers offer is job sharing, where several employees fill one job, each working part time.

• Employee Becomes Contractor

In this case, the employee ceases being a full time employee but is re-engageded as a contractor after a period of time on a contract arrangement.  The employer would not be liable for PRSI or other benefits that the person was entitled to as an employee.

• Transferring/Retraining Employees

Moving workers from jobs to be downsized to other positions can mitigate the need for layoffs as well as tap the experience and expertise of the existing workforce.

• Offering Early Retirement

Another alternative is to offer employees incentives for early retirement. 

Whilst I am not suggesting that an employer must consider all of the above options they should look and consider all other reasonable options before making an employee redundant. 

What about staff who are on Maternity leave or out sick or on holidays?

 Remember where there are any proposals that impact on staff an employer should ensure that ALL employees are fully informed as to what is going on and being considered.

In summary in the current economic climate some businesses may have to consider making one or more staff redundant.  Whether the employer is bound by the obligation to consult or not it would be advisable to consider other options and discuss or offer them to your employees before moving to the final step of redundancy.

Top Ten Tips for a NERA Inspection

 

 The National Employment Rights Authority (“NERA”) have a total of 90 inspectors comprising 12 Inspector-Team Managers and 78 Inspectors.  

 

Inspectors have the following powers:

• To enter any premises at a reasonable time 
• To demand sight of records 
• To inspect records 
• To take copies of records 
• To interview and require information from any employee, manager or any other person.

You will get advance notice of an inspection and will receive an appointment letter with a proposed date and time.  The inspection takes place at your workplace and an inspector expects to see the following records for all employees, including part time employees and  employees on a fixed term contract:

1. Employer registration number with the Revenue Commissioners
2. Full Name, Address and PPS Number for each employee (full-time and part-time) 
3. Terms of employment for each employee-Under the Terms of Employment (Information) Act 1994 all your staff must issued written statements of employment 
4. Payroll details, including Gross to Net, Rate per hour, Overtime, Deductions, Shift and other Premiums and Allowances, Commissions and Bonuses, Service Charges 
5. Copies of Payslips and a job classification for all employees      

6.  Dates of commencement and termination of employment      

7. Hours of work for each employee including starting and finishing times, meal breaks and rest periods.       

8. A register of employees under 18 years of age
9. Details of board and/or lodgings that are provided to employees
10. All Holidays and Public Holidays received by each employee.

You should retain this checklist and use it to help you prepare for a NERA inspection.