My Single Best Tip for Employers

small employer ireland

The first time I met Séamus he was a worried man. Séamus is a small employer, with just a handful of employees.

But he had to let one of them go recently because he just wasn’t working out. His attitude was disastrous and Séamus could not see how their relationship could be a happy one.

In fact, he could only see it ending badly.

And that’s exactly what happened on a wet Monday morning a few weeks before Séamus came to see me.

 

Are you an employer?

Are you concerned about the possibility of facing an costly claim for unfair dismissal?

Recently, I wrote an article, “My Single Best Tip for Employees”.

In this piece, I want to give you, as an employer, my best tip to protect yourself in relation to unfair dismissal claims, and how to ensure you are not stuck with an employee who is just not right for your organisation.

Let’s take a look, shall we?

My tip for employers is almost the exact opposite of my tip for employees.

Let me explain.

My tip for employees was to try to ensure that he got 12 months’ continuous employment under his belt, if at all possible. This was to ensure the employee could avail of the remedies provided by unfair dismissal legislation in Ireland, particularly the Unfair Dismissals act, 1977.

My tip for you as employer is to ensure this does not happen, unless you are absolutely satisfied that you are happy with the employee and they are right for your business.

The best way to do this is by a robust, comprehensive probation period clause in the contract of employment.

This clause should make a number of provisions, and I would recommend the following:

  1. The probation period would be for an initial 6 months, but you would have the right to extend it to 11 months, if needed. This gives you a full 11 months to ascertain whether the employee is right for you or not.
  2. The full rigours of the disciplinary procedure will not apply during the probation period; I would still recommend fair procedures and natural justice if you are going to terminate, but you would provide that the full disciplinary procedure need not be afforded during probation.
  3. The notice period during the probation period would be one week; if you do not spell this out you run the risk that whatever notice period stipulated in the contract will apply-this could be one month or three months and it would be strongly arguable, in the absence of the one week provision, that the employee is entitled to one or three months’ notice. Even if you did not require the employee to work the notice period, you would still be on the hook for payment of wages in lieu of notice.

It is widely accepted that an employee can be dismissed during the probation period. In fact, the purpose of the probation period is to allow the employer see if the employee is “the right fit” for the organisation.

It is critical, therefore, that you have as much time as possible to make that decision, but thtat you make it before the employee has 12 months’ continuous service and the protection of the Unfair Dismissals Act, 1977.

Bonus Tip #1 for Employers

If you are going to terminate an unsuitable employee don’t leave it too late-remember that the termination date is the date when notice expires, not when it is given.

If, for example, you have an employee working for 50 weeks and you give her a months’ notice of termination she will have the necessary period of continuous employment to bring an unfair dismissal claim.

Bonus Tip #2 for Employers

I would recommend that you always go through some form of fair procedure before terminating, even if the employee is on probation.

If the employee has over 12 months’ service you need to afford the full rigours of your disciplinary procedure before terminating the employment.

How Safe is Your Workplace Investigation From a Costly Outcome?

fair procedures

It happens the best of us, you know.

The botched workplace investigation

Do you worry about the disciplinary procedures in your workplace?

Have you been told about the eye watering, stomach churning awards when the inevitable unfair dismissal claim comes on for adjudication?

Let’s be honest.

A badly executed workplace investigation can prove to be a costly affair. It’s vital that it is carried out properly to prevent claims for unfair dismissal, and other causes of action.

Statutory Instrument 146/2000 gives us a statutory Code of Practice for Grievances and Disciplinary Procedures.

However, it sets out the broad principles which should be applied in a disciplinarily procedure.

But the mechanics of carrying out the investigation fairly have led to frequent challenges from the employee, claiming that they have not been afforded fair procedures or natural justice.

Basic fair play.

Such challenges have been the subject of consideration by the employment related fora, such as the Employment Appeals Tribunal, Labour Court and Workplace Relations Commission, and the Courts.

The High Court has adjudicated in many disputes surrounding employment related matters such as breach of contract, applications for injunctions, and the procedure which was used to dismiss an employee.

Let’s take a look at some of those High Court decisions and see what we can learn from them, shall we?
Let’s face it: if you are carrying out your investigation and/or disciplinary procedure in accordance with the findings of learned Judges of the High Court you are going to be on pretty solid ground.

Patrick J. Kelly v Minister for Agriculture, Fisheries and Food, Minister for Finance, The Government of Ireland, Ireland and Attorney General

This is a December, 2012 decision involving a harbour master in Killybegs who was dismissed from his position by his employer. Read the full decision here: [2012] IEHC 558 .

One of the interesting findings in this case by J Hedigan was that the the full range of fair procedures do not apply at the investigative stage.

There is no fixed model for fair procedures that is applicable to all circumstances. What is required in one instance may differ from another. In National Irish Bank and the Companies Act 1993, l.R. p. 145, Shanley J., subsequently upheld by the Supreme Court, dealt with an investigation by inspectors which was a two stage one. The first was an investigative stage, the second a hearing stage. In distinguishing in Re Haughey [1971] I.R. 217, Shanley J. at p. 168 held that at first stage, the inspectors could not be compelled to produce documents to the respondent nor was he entitled to any documents or to the facility of cross-examining any person at the initial stage.

“I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the inspector’s work. The procedures identified by the inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in Re Haughey.”

I gratefully adopt this dictum of the late Shanley J. It is fairness and justice which is to be sought in any investigative process and it is to the process as a whole that the Court must look to determine if those basic requirements were met. The requirement of fairness and justice will vary from case to case.He further found that there cannot be bias, either subjective or objective, where there is no adjudication.

He also found that the requirement of fairness will vary from case to case.

In summary, the rules of natural justice do not apply where it is a pure investigation and there are no findings arising from it. Nevertheless, it is still advisable to afford natural justice and fair procedures.

And if the investigator is allowed to make findings then the rules of natural justice should be applied.

This decision, and J. Hedigan’s findings, is encouraging from the perspective of a small employer with limited resources. It recognises that the circumstances of each case should be looked at when assessing the granting of fair procedures and natural justice.

EAMON O’BRIEN v AON   INSURANCE  MANAGERS  (DUBLIN) LIMITED

Read the full decision here: [2005] IEHC 3

J. Clarke found:

Even if there are infirmities in the methodology of the investigators (and I express no view on that issue) and even if those infirmities may have affected the contents of their report the fact remains that the recommendations of the report do not, in the words of Kearns J. in Morgan “amount to a sanction” and therefore Haughey rights do not arise.

Clarke’s reference in the extract above to the Morgan case is the case of Morgan v. Trinity College [2003] 3 IR 157, which is well worth a read in any consideration of the law as it applies to investigations and disciplinary procedures in the workplace.

Giblin v Irish Life & Permanent PLC [2010] IEHC 36

Read the full decision here: Giblin v Irish Life & Permanent PLC [2010] IEHC 36

J. Laffoy stated:

First, in conducting a process to determine whether the plaintiff should have a serious sanction, including the most serious sanction available, namely, dismissal, imposed on him, the defendant must act in accordance within the terms of the plaintiff’s contract of employment, including the implied term that the plaintiff, as employee, is entitled to the benefit of fair procedures (Glover v. B.L.N. [1973] I.R. 388). However, it is well recognised that what fair procedures demand depends on the terms of the plaintiff’s employment and the circumstances surrounding his proposed dismissal (Mooney v. An Post [1998] 4 I.R. 288).

It is not to be inferred from this decision that I consider that it is not appropriate for executives of the defendant who are involved in the human resources aspects of the defendant’s management to conduct the type of investigation which was conducted in relation to the plaintiff. Nor is it to be inferred that I am of the view that the person or persons who conduct the “thorough investigation” to be conducted under para. (iv) of the Disciplinary Procedures in all cases should not be the decision maker as to whether the conduct of the employee being investigated warrants a serious sanction such as dismissal. A one stage inquisitorial process may be appropriate in many cases.

It is worth noting that J. Laffoy considered that A one stage inquisitorial process may be appropriate in many cases.

Mooney v An Post [1998] 4 IR 288

In this case, J. Barrington held that the principle of “nemo iudex in causa sua” (nobody is a judge in his own cause) did not apply in all situations, especially employment situation where the employer judges the issue and is clearly an interested party.

“The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case. Indeed two of the best known precepts of natural and constitutional justice may not be applicable at all in certain circumstances. As the trial judge has pointed out the principle of nemo judex in sua cause seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party. Likewise it is difficult to apply, to a contract of employment, the principle of audi alteram partem which implies the existence of an independent judge who listens first to one side then the other.”

Nevertheless, if you are an employer you should try to ensure that the investigator and decision maker are different people and have quite distinct roles.

Tom Kelleher V An Post [2013] IEHC 328

This case is well worth a read in an consideration of disciplinary procedures/employment law in teh workplace. Read it here.

J. Peart stated:

But in any event, as has been made clear by Barrington J. in Mooney, the nemo judex rule cannot apply in all its glory to all situations in the area of employment law. It is inevitable that often during an internal or in-house investigation leading to a dismissal the decision-maker and some or all of the investigators will have some form of contact, and that there may be communication of some kind about the issues involved.

Conclusion

It seems to me from the cases above that the courts recognise that what are fair procedures will vary from case to case, depending on the circumstances of each case, the contract of employment, the disciplinary procedure in the workplace, and the resources of the employer.

It also appears to be the case that there is a distinct divide between the investigative stage of any procedure and the disciplinary procedure.

Any “infirmities” in the investigative procedure can be remedied at the disciplinary stage, assuming the employee is given fair procedures in the disciplinary hearing/procedure.

 

How to carry out a disciplinary procedure in the Irish workplace-online course-learn more.

How to Deal With Fraud in the Workplace from an Employment Law Perspective

Workplace-Fraud

My past life in retailing flashed before me recently.

Before I became a solicitor I spent about 20 years in retailing, developing, running and selling my own retail businesses. I came across a few instances of theft from me by employees, including one large one when a pound was a pound.

Recently, I was contacted by an employer who uncovered an employee dipping the till in a retail workplace. He was primarily concerned with how to deal with the situation, and whether he should contract an Garda Siochána.

Given the substantial sum of money involved I felt he had no choice but to get the Garda involved.

But that then leads to the question: when the employee is arrested and questioned how the employer should deal with the situation, from an employment law perspective.

Suspending the employee on full pay until the outcome of a criminal prosecution could be an expensive move, especially given the pace at which some criminal cases come before the Courts in Ireland.

Before I take a look at what I believe the employer should do in a situation like this it is worth looking at fraud in the workplace, and some of the issues which arise.

What is fraud?

Firstly, fraud is an intentional act of deceit with the objective of gaining an unlawful advantage. It is vital that the act is intentional for, otherwise, it may just be a case of incompetence, inadvertence, or negligence.

Fraud in the workplace can take many different forms depending on the workplace ranging from clocking in/out cheating to fiddling expenses to dipping the till or business stock/inventory to falsifying records to gain an advantage etc.

Once an employer uncovers what she considers to be fraudulent activity what should she do?

Generally, the employer should have two goals: removing the fraudulent employee from the workplace to minimise the financial damage, and gathering evidence.

I would advise the use of the disciplinary procedure in the workplace in the first instance.

If the employer can form a view on reasonable grounds that the employee was engaged in gross misconduct then this should be a summary dismissal situation, in accordance with the disciplinary procedure and policy in the workplace. This is why it is vital to have a disciplinary procedure in the staff handbook, or as an additional document to the contract of employment, and which all employees confirm receipt of.

Note that what is required in respect of gross misconduct is the forming of a view on reasonable grounds, not the criminal burden of proof standard of “beyond a reasonable doubt” nor the civil standard of “on the balance of probability”.

It is also worth considering reducing the allegations to the ones with the strongest, clearest evidence and acting on these “sample allegations”. This will allow the investigation and disciplinary procedure to progress rather than having to wait an interminable time to gather all the evidence in what may be a complex investigation involving a lot of documents and witnesses.

It is important for the employer not to rush to judgment and to gather some crucial documents prior to embarking on the disciplinary procedure. These documents would include the written contract of employment and the staff handbook, or at a minimum the disciplinary procedure. This type of problem in the workplace is difficult to deal with if there is no written contract of employment or disciplinary procedure.

Once the employee is faced with allegations of gross misconduct and/or fraud one of two things is likely to happen:

  1. He will go out sick or
  2. He will resign.

How the employer deals with these situations will depend on the circumstances, the value of the fraud, perhaps the need to take action to prevent copycat acts and set an example, and other considerations.

However, the employer can still choose to make a complaint to an Garda Siochána and have a criminal prosecution carried out. In addition, she can pursue a civil claim against the employee to recover the value of the fraudulent activity.

To circle back to the situation at the beginning of this article the High Court in a 2015 case involving an employee of an Post and an Post held that it was in order for the employer to proceed with the employment disciplinary procedure, unless it was “manifestly unfair”, even where the criminal prosecution against the employee had not been concluded.

In this case the employee had sought an injunction against the employer carrying out the disciplinary procedure until the criminal prosecution had finished.

In conclusion, if you are the victim of employee fraud in the workplace how you react will depend on the particular circumstances of the case, and how the employee reacts when confronted with the allegations.

You can, though, invoke your disciplinary procedure, afford fair procedures and deal with the employee before the conclusion of any criminal prosecution, provided there is no “manifest unfairness”. If the employee is on certified sick leave matters will be more complicated and it would be advisable to seek professional advice before taking any action.

 

Using CCTV and Data Protection-the Facts You Should Know

cctv-data-protection

Is CCTV being operated in your workplace?

Are you an employer who is considering introducing CCTV?

The Data Protection Commissioner has issued updated guidelines in December, 2015 in respect of the use of CCTV.

Because recognisable images captured by CCTV systems are considered to be “personal data”, as defined by the Data Protection Acts in Ireland, and are subject to the provisions of Data Protection legislation.

Justification of CCTV System

This means that a data controller must be able to justify use of a CCTV system. Sometimes this is easy, for example, using CCTV to keep an eye on a building for security reasons.

However, the use of CCTV to watch employees, students, or customers can be harder to justify.

But that is the first question to be answered: is the use of a CCTV system justified?

Proportionality

The second question to be looked at, assuming the system is justified, is what will the system be used for?

Is the use of CCTV proportionate?

If it is used to capture images of attempted burglars or other undesirables, there is no problem with the test of proportionality.

However, if it is used to monitor employees, showing that it is proportional can be more problematic, although not impossible, for example for health and safety reasons.

But whatever the reason, use of CCTV needs to be justified in the particular circumstances. This justification would generally arise from issues which have arisen prior to the installation.

Where will the cameras be located? What sort of images will be captured? The use of CCTV cameras in toilets, and other locations where you could reasonably expect privacy, will be difficult.

However, even where they can be justified in toilets they should never be used to capture images from urinals or cubicles.

Carry Out an Assessment

The Data Protection Commissioner’s office recommends that detailed assessments be carried out prior to the installation of cctv cameras. It also recommends the following steps:

  • A Risk Assessment
  • A Privacy Impact Assessment
  • A Specific Data Protection policy drawn up for use of the devices in a limited and defined set of circumstances only (this policy should include documented data retention and disposal policy for the footage)
  • Documentary evidence of previous incidents giving rise to security/health and safety concerns
  • Clear signage indicating image recording in operation.

Warning to Data Subject

Before any data is recorded the data subject must be warned.

This warning can generally be achieved by placing signs in prominent positions.

If it is obvious that the purpose of the data collection is security it will suffice that the sign states that CCTV is in operation and a contact number should be provided.

If the purpose is not obvious then the data subjects should be warned beforehand. This would be especially true if CCTV was being used to monitor staff conduct or performance, as this would not be an obvious purpose.

Written CCTV Policy

A written CCTV policy should be in place and it should contain

  1. The identity of the data controller
  2. The purpose of the data processing
  3. Any 3rd parties to whom it is made available
  4. How to make an access request
  5. The retention period of the CCTV
  6. The security arrangements for the CCTV

Data should not be kept for longer than necessary.

Longer than 1 month in the case of CCTV would be hard to justify.

Access to the data should be restricted to authorised personnel, and it should be stored in a safe place.

Supplying Images to an Garda Siochána

Supplying, as opposed to permitting viewing of, CCTV images to an Garda Siochana should be by written request which states that a criminal investigation is being carried out.

If a verbal request is acceded to, where there is a degree of urgency, a formal written request should be obtained afterwards.

Rights to Access Data

When a data subject requests CCTV images he should supply a time frame of the recording. This would refer to specific days and/or hours but a general request for all CCTV data held would not be acceptable.

Where images of parties other than the requesting data subject appear on the CCTV footage the onus lies on the data controller to pixelate or otherwise redact or darken out the images of those other parties before supplying a copy of the footage or stills from the footage to the requestor.

Alternatively, the data controller may seek the consent of those other parties whose images appear in the footage to release an unedited copy containing their images to the requester.

It would be unacceptable for the data controller to claim that he cannot pixelate images or provide copies for technical reasons, or that he cannot provide images to be viewed on the requester’s device.

If the data controller chooses to use this technology he needs to be able to comply with the data protection consequences.

Hidden Cameras

Generally, the use of hidden/covert surveillance is forbidden, except on a case by case basis to prevent or detect offences or crimes. Any covert surveillance should be specific, limited, and for a short period.

Security Companies

Security companies acting on behalf of clients are considered to be “data processors”.

Their clients are the data controllers. Data processors have specific obligations placed on them by the data protection acts, for example to prevent unauthorised access to the data and ensuring security of the data.

Also certain data processors must have an entry in the public register maintained by the Data Protection Commissioner. (See section 16 Data Protection act, 1988)

The processing of personal data kept by an individual and concerned solely with the management of his/her personal, family or household affairs or kept by an individual for recreational purposes is exempt from the provisions of the Acts.

However, this would not allow recording of a public space, and neighbour has a constitutional and common law right to privacy. They could enforce this right by taking a civil court action.

What to Do Now

  1. Carry out an assessment,
  2. draw up a written CCTV policy,
  3. obtain professional advice if you are unsure or unclear about your rights or obligations.

Suspending an Employee on Pay Pending an Investigation-Vital Lessons from the High Court

suspension with pay

Suspension with full pay.

Not a problem for the employer?

Think again.

A High Court decision from April, 2015 provides helpful clarification about suspending an employee as a precautionary measure pending an investigation.

This would be the default position for many employers where there is an allegation against an employee and an investigation is to be carried out to look at the merits of the allegations.

The case of THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND AND JAMES REILLY took a close look at suspending the employee on full pay in this case.

Mr. Reilly was an assistant branch manager with the Bank of Ireland and an allegation arose about the breach of the Bank’s internet/email policy due to the sending of inappropriate/pornographic emails by some members of staff. Mr. Reilly’s branch manager informed him verbally that he was being put on paid suspension as “an issue had arisen in relation to emails”. He received no further information at the time of his suspension, and his branch manager was not aware of the detail of the allegations. He was simply delivering the message from his superiors at Head Office.

Suspension a “very serious matter”

The High Court recognised that suspending someone-even on full pay-is a very serious measure with potential reputational damage which may never be overcome, even if the employee is subsequently found to be not guilty of the allegations. It held that a suspension should only be imposed “after full consideration of the necessity for it pending a full investigation” of the issues.

The Court identified four circumstances where it would be justified:

  1. To prevent repetition of the conduct complained of;
  2. To prevent interference with evidence;
  3. To protect individuals at risk from such conduct; or   
  4. To protect the employer’s business and reputation.

In this case the Court held it was unnecessary to suspend Mr. Reilly as the bank had safeguarded the evidence, the allegations were so serious that it was improbable that Mr. Reilly would transgress again, and knowledge of the allegations was not widespread so there was no danger of reputational damage.

How does this affect you as an employer?

Here are 7 takeaways:

  1. Have a disciplinary procedure
  2. Ensure it provides for paid suspension pending the outcome of an investigation and disciplinary procedure
  3. Give the employee the opportunity, when being told of the reasons for the suspension,to explain or defend himself
  4. Even though the employee is not entitled to “the full panoply of fair procedures” he is entitled to “at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response.” This did not happen here as Mr. Reilly’s line manager was simply acting on instructions from Head Office and was not actually aware of the allegations.
  5. Write to the employee giving him an explanation as to why, in broad terms, he is being put on paid suspension
  6. Details of the allegations should be set out in the invitation to the investigation meeting letter
  7. Carry out the investigation, and if appropriate the disciplinary hearing, without delay.

“Justice delayed is justice denied”, and the longer the employee is out the greater danger of reputational damage.

The Fair Dismissal test

The Court also reaffirmed the view to be taken by Courts and decision makers in respect of a fair dismissal. The Court will not substitute its view for the view of the reasonable employer.

The Unfair Dismissals Act 1977 (as amended) states:

  • in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,…

This section makes it clear that the reasonableness of the conduct of the employer needs to be considered.

The Court agreed that the correct test is this:

‘was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.(British Leyland UK Ltd v. Swift [1981] IRLR 91, Lord Denning MR).

As Judge Linnane stated in her decision in Allied Irish Banks v. Purcell [2012] 23 ELR 189

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken

In conclusion, this case is well worth reading and drawing valuable lessons from for employers and Hr professionals because it is clear that the default position of suspending without pay, in all circumstances, in order to investigate allegations is inappropriate.

Read the full decision here: Bank of Ireland v James Reilly [2015] IEHC 241