An Unfair Dismissal Cock Up That Will Inevitably Cost the Employer

A young man, worried about losing his job, contacted me this week.

unfair dismissal

He only has about 11 months service in the job and was concerned that the employer was getting ready to dismiss him before he had the necessary 12 months service for the protection of unfair dismissal legislation.

Let me explain.

In order to have the statutory protection of the Unfair Dismissals Acts an employee needs to have 12 months continuous service in the job.

This guy has been called to a “meeting” to discuss his performance. There has already been a series of these meetings with heavy hints that these probationary review meetings were leading to one inevitable conclusion~dismissal.

The employer has made it quite clear that any dismissal will be carried out just prior to 12 months service being acquired. And will have the comfort of knowing that the employee is not protected under the Unfair Dismissals Act.

There is only one (major) problem with this~when I looked at the contract of employment it provides for 6 weeks notice of termination of employment.

And most importantly it provides for 1 months notice during the probationary period.

The key point here is that a dismissal does not take place until the end of the notice period, not when notice is given.

So my contact will almost certainly have 12 months service.

And the protection of the Unfair Dismissals Acts.

The employer wouldn’t have had much difficulty here, if his contract of employment provided for, say, one week’s notice during probation. But it doesn’t.

And he inevitably will face either

  1. an unfair dismissal claim or
  2. without prejudice negotiations for a negotiated exit, if he really wants to get rid of the employee.

Anyway, the moral of the story is that little mistakes can cost big money.

And a well drafted contract of employment is worth every penny.

How to Deal with Intoxicants at Work-Do You Need an Intoxicants Policy?

intoxicants-at-work

There is no requirement for employees to undergo testing for intoxicants under existing legislation- the SAFETY, HEALTH AND WELFARE AT WORK ACT 2005.

Neither is there an obligation on employers to test employees for intoxicants.

Section 13 (1) (c) provides for the making of regulations for the testing of employees:

(c) if reasonably required by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed,

However no regulations have yet been made so this clause does not apply.

Intoxicants are defined in the SAFETY, HEALTH AND WELFARE AT WORK ACT 2005 as

“intoxicant” includes alcohol and drugs and any combination of drugs or of drugs and alcohol;

It is clear therefore that over the counter medicines and/or prescribed drugs are included.

The employer’s obligations under health and safety legislation are set out in section 8 of the Act and are covered here. If intoxication at work is identified as a hazard it must be addressed in the employer’s safety statement.

If the employer cannot have the employee tested, what action can he take?

If the employee’s behaviour presents a danger to himself or others the employer can remove the employee from the situation.

While there is no obligation on the employer to test for intoxicants to obtain evidence, testing may be a company policy. If this is the case then any testing would need to be carried out in accordance with recognised standards. It would also need to be included in the employment contract or collective agreement.

The key point for employers is that where an employee appears to be “under the weather” that he is removed from the workplace if the employer considers him to be a risk to himself or others.

Employees too have obligations in respect of intoxicants in the workplace; these would include the reporting of a colleague who appeared to be under the influence of an intoxicant and who is a danger to himself or others.

Employers must deal with the issue of intoxicants in the workplace sensitively. Whether for example you would act on the evidence/opinion of one person or not would depend on the potential risk and danger.

In conclusion, it may be prudent to have an “intoxicants policy” in your workplace. We have supplied such policies (and others) to employers. If your workplace would benefit from one we would be happy to supply one at a very competitive price.

Young Persons in Employment in Ireland-7 Important Facts

young-workers-ireland

The law concerning young workers in employment in Ireland is set out in the Protection of Young Persons (Employment) Act 1996.

The Act aims to protect the health of young workers and to ensure a young person’s education is not put at risk during the school year.

The Act provides:

  • Rest intervals and working hours limits
  • Minimum age limits for employment
  • Prohibits late night employment for young persons under the age of 18
  • Defines a child as a person under the age of 16 and a young person as someone between the age of 16 and 18
  • The records that employers must keep for young workers (those under the age of 18).

There are additional regulations made under the Act concerning the employment of young persons. The most important ones are:

Some important points concerning the employment of young persons:

  1. Employers must see a copy of the young person’s birth certificate or other evidence of his or her age before employing that person. If the young person is under 16, the employer must get the written permission of the person’s parent or guardian.

 

  1. Young people aged under 18 are only guaranteed up to 70% of the national minimum wage which is €6.06 per hour

 

  1. The maximum working week for young people aged 16 and 17 is 40 hours with a maximum of 8 hours a day. If a young person under 18 works for more than one employer, the combined daily or weekly hours of work cannot exceed the maximum number of hours allowed. Young persons are only permitted to work between 6am and 10pm. Any exceptions to this rule must be provided by regulation – see ‘Licensed premises’ statutory instruments above

 

  1. Employers cannot employ children aged under 16 in regular full-time jobs. Children aged 14 and 15 may be employed as follows:

-Doing light work during the school holidays – they must have at least 21 days off work during this time

-As part of an approved work experience or educational programme where the work is not harmful to their health, safety or development

5.  Children aged 15 may do 8 hours a week light work in school term time. The maximum working week for children outside school term time is 35 hours or up to 40 hours if they are on approved work experience.

6. Employers must give employees aged under 18 years a copy of the official summary of the Protection of Young Persons (Employment) Act, along with other details of their terms of employment within one month of taking up a job. Employers with employees under 18 must also display the official summary of the Act at a place in their workplace where it can be easily read.

7. Employers found guilty of an offence under the Act are liable on summary conviction to a fine of up to €1,904.61. Continuing breaches of the Act can attract a fine of up to €317.43 a day.

Fixed Term Contracts-The Facts You Should Know

fixed-term-contract

Fixed term employees are employed on the same type of contract-either a fixed term contract or a specified purpose contract.

A fixed term contract is one where the end date of the contract is known at the outset whereas a specified purpose contract is one which terminates on the occurrence of a specific event or cessation of a specific purpose.

The Employment Equality Acts apply to all employees, regardless of their length of service.

So fixed term employees are protected from indirect discrimination by virtue of their fixed term status.

The Protection of Employees (Fixed-Term work) act, 2003 offers significant protection to fixed term workers and the purpose of this legislation is

  1. to ensure that fixed term workers are no less favourable treatment than their comparable permanent counterparts and
  2. to prevent employers from abusing employees by employing them on a series of successive short fixed term contract.

Prior to this legislation fixed term employees were protected by the Unfair Dismissals Acts and the Employment Equality Acts.

A fixed term employee is defined in the Protection of Employees (Fixed-Term work) act, 2003 as:

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—
(a) employees in initial vocational training relationships or apprenticeship schemes, or
(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

 

However fixed term workers are excluded from the protection of the Unfair Dismissals Acts by virtue of the fact that the contract has come to an end (either by expiry of the term or the arrival of the specific purpose event) but only provided three conditions are met:

  1. The contract was in writing
  2. The contract states that the Unfair Dismissals act will not apply to a dismissal which occurs only as a result of the end of the contract arriving
  3. The contract was signed by both employee and employer.

It is worth noting that the Employment Appeals Tribunal (EAT) are quite strict on these conditions being met in order to avoid an unfair dismissal award being made against the employer.

The above exclusion does not apply to dismissal during the term of the fixed term contract, provided of course the employee has the necessary period of continuous service (1 year).

There is an anti-abuse provision in the Unfair Dismissals (Amendment) Act 1993  also which prevents the employer from giving the employee a series of fixed term contracts.

As an employee can also successfully claim for unfair dismissal if he/she has been employed on more than one fixed term contract and the gap between contracts is less than three months and the last contract was granted in an attempt to avoid liability under the Unfair Dismissals legislation.

Renewal of fixed term contracts

It has been held by the Labour Court that the non renewal of a fixed term contract will not, of itself, give rise to a claim of less favourable treatment under the act.

The Act also provides that where an employer proposes to renew a fixed term contract the employee shall be informed in writing, not later than the date of the renewal, of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration.

(See also contract of indefinite duration-are you entitled to one after successive contracts of employment?)

Successive fixed term contracts

Generally there is a limit of four years on the length of successive fixed term contracts with the same employer or associated employer.

However there is no limit on the duration of the 1st fixed term contract. This limitation of four years refers to “continuous employment”  in fixed term contracts and this definition has been well tested as to what is considered continuous and otherwise.

Section 9 deals with the definition of continuous employment within the context of the fixed term work act.

(Learn more about successive fixed term contracts and how the entitlement to a contract of indefinite duration can arise.)

Less favourable treatment and objective justification

Where an employee on a fixed term contract is treated less favourably than his permanent counterpart with respect to one term of his contract this can be objectively justified if

  1. It arises from a real need on behalf of the employer
  2. Is appropriate to achieve the objective
  3. Is necessary to achieve the objective.

Otherwise one of the main objectives of the legislation is to ensure that fixed term employees are given parity of treatment in respect of their conditions of employments as comparable permanent employees.

Section 5 of the Act defines what a comparable employee is:

5.—(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—
(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
(b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.
(2) The following are the conditions mentioned in subsection (1)
(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The Labour Court has held that a fixed term employee does not have an automatic right to have the contract renewed on its expiry and that the non renewal of a fixed term contract will not, of itself, constitute less favourable treatment within the meaning of section 6 of the Act.

Other obligations of employers re fixed term employees

Some other obligations of employers include

  • The employee must be notified in writing as soon as possible of the objective condition ending the contract. This may be arriving at a specific date or the occurrence of a specific event.
  • The employer must inform the employee of vacancies and training opportunities to avail of a permanent job should one arise.

Fixed term employees may make a complaint to a Rights Commissioner in the first instance should a breach of their rights occur; the next step would be and appeal to the Labour Court and then to the High Court (but only on a point of law). The time limit is 6 months or 12 months in exceptional circumstances.

Section 13 of the Act prohibits penalization of the employee by the employer for making a complaint.

Redundancy of fixed term workers

A fixed term employee may be redundant within the meaning of the Redundancy Payments Acts on the expiry and non renewal of his/her fixed term contract.

The 2 Tests for Constructive Dismissal

Constructive-Dismissal-Solicitors

The Employment Appeals Tribunal applied 2 common tests to all claims of constructive dismissal.

We now have the WRC adjudicating on these claims, but the same principles apply, and they emanate from a seminal decision from the Supreme Court in 2009, Berber (respondent) v Dunnes Stores Limited (appellant), [2009] 20 E.L.R. 61.

Constructive dismissal is where the employee quits and leaves the employment.

Constructive dismissal, as defined by the Unfair Dismissals Act 1977 is

“dismissal in relation to an employee means the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employee”.

The Employment Appeals Tribunal has held that an employee is only entitled to succeed in a constructive dismissal claim where

“An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.”

The relationship of trust and confidence between employer and employee is a 2 way one.  The Tribunal has held that

“….. an employer is entitled to expect his employee to behave in a manner which will preserve his employer’s reasonable trust and confidence in him so also must the employer behave”.

So the Tribunal has to decide in any constructive dismissal case whether

“the employer’s conduct amounted to undermining the relation of trust and confidence between the parties in such a way as to go to the root of the contract. “

The Contract Test

This “contract test” was summarised in the English case “Western Excavating Ltd. V Sharpe (1978)”:

” If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance”.

The Reasonableness Test

The reasonableness test asks whether an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to tolerate it any longer and justifies the employee leaving.

In Berber v Dunnes Stores  the Supreme Court held, in allowing the Dunnes Stores’ appeal and setting aside the judgment of the High Court:

In determining whether there has been a breach of the implied term of mutual trust and confidence in employment contracts:

  1. The test is objective.

  2. The test requires that the conduct of both the employer and the employee be considered

  3. The conduct of the parties as a whole and the cumulative effect must be looked at.

  4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

Breach of Contract-Implied Term of Trust and Confidence

The Supreme Court, in Berber v Dunnes Stores, held:

There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded.

The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant.

The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise (Malik v Bank of Credit and Commerce International S.A. [1997] I.C.R.606).

In Lewis v Motorworld Garages Limited [1986] I.C.R. 157 Glidewell J. summarised the law as follows:

  1. In order to prove that he has suffered constructive dismissal an employee who leaves his employment must prove that he did so as a result of a breach of contract by his employer, which shows that the employer no longer intends to be bound by an essential term of the contract: see Western Excavating (E.C.C.) Limited v Sharp [1978] I.C.R. 221.
  1. However, there are normally implied in a contract of employment mutual rights and obligations of trust and confidence. A breach of this implied term may justify the employee in leaving and claiming that he has been constructively dismissed: see Post Office v Roberts [1980] I.R.L.R. 347 and Woods v W.M. Car Services (Peterborough) Limited [1981] I.C.R. 666 at 670, per Browne-Wilkinson J.
  1. The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term. See Woods v W.M. Car Services (Peterborough) Limited [1981] I.C.R. 666. This is the ‘last straw’ situation.”

As to the “last straw” it was held in Omilaju v Waltham Forest London Borough Council [2005] I.C.R. 481 that the quality that a “last straw” had to possess was that it was an act in a series whose cumulative effect amounted to a breach of the implied term. The essential quality of that act was that, when taken in conjunction with the earlier acts on which an employee relied, it amounted to a breach of the implied term of trust and confidence.

As to whether conduct amounts to a repudiation of the contract the ordinary law of contract applies: the cumulative effect of the acts complained of must be such as to indicate that a party, in this case the employer, had repudiated its contract (Brown v Merchant Ferries Limited [1998] I.R.L.R. 682).

Circumstances which render it reasonable for an employee to terminate the contract of employment may constitute ‘constructive dismissal’ and may also justify resignation.

“Entitlement to terminate a contract by reason of the conduct of the employer is a perfectly familiar concept of the law of contract. Like much else it is easy to formulate but can be difficult to apply…The law of contract for this purpose is that where an employer so conducts himself as to show that he does not intend to be bound by the contract of employment the employee is entitled, at his option, either to treat the contract as at an end, and cease performing his part…The question of what is reasonable in the circumstances having regard to equity which has to be considered in cases of unfair dismissal, applies equally to the facts…It is the conduct of the employer which you must look at…But it is not the epithets which his conduct attracts, but whether you are entitled to treat your contract as at an end, and whether if you exercise your option to do so you have been ‘constructively dismissed.” Wetherall (Bond St. W1) v Lynn (E.A.T.) 1

The Employment Appeals tribunal, in deciding any constructive dismissal claim, will apply the tests set out above-the “reasonableness” test and the “contract” test- and decide each case on its particular facts.

One thing that the employee should do in all but the most exceptional circumstances is to firstly exhaust all internal avenues for dealing with his/her grievances, even if he/she believes it will be a futile exercise.