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

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.