Are you an employee? Have you a problem or issue regarding your employment?
I receive a large number of queries from employees every day of every week and I notice the same sort of mistake being repeatedly made from employees at all levels of an organisation. These mistakes are understandable, but avoidable, and in this piece I will identify 3 such mistakes.
1.Failing to distinguish between a grievance and a breach of a legal entitlement
The rights of employees derive primarily from the constitution (Bunreacht na hÉireann), statutes on the statute book-for example, the Unfair Dismissals Act 1977-and the contract of employment between employer and employee.
If you cannot place your issue firmly and unequivocally into one of these 3 categories then the only route open to you may be to make a grievance internally in accordance with the grievance procedures in the workplace.
This may or may not produce a satisfactory outcome for you and there are other factors to consider, also. For example, your grievance may not be upheld and your relationship with the employer or a colleague may be degraded.
So, it is vitally important that you know whether you have a real remedy open to you or you may choose to fight a different battle on another day.
I have written articles about this topic previously, including this one: Have you a genuine employment case or merely a grievance? Answer these 4 questions
2. Mistaking occupational stress with actionable workplace stress
There is a gulf of difference between ordinary occupational stress and the type of stress that causes a psychiatric/psychological injury and leave the employer open to a negligence claim for damages arising from the injury.
The Courts have repeatedly held that occupational stress is normal and acceptable. Work is not play or recreation and there is bound to be a certain amount of stress involved. This is not enough to allow you bring a claim which might succeed and it can be easy for the employee to misunderstand this.
For example, I have had employees complaining to me about the stress arising from a workplace investigation or disciplinary process. I have to explain that I recognise it is certainly a stressful time but the employer has an obligation to investigate certain matters in the workplace-for example, allegations of bullying or sexual harassment or theft or gross misconduct in the workplace.
Sometimes, it is tempting to point out to an employee, “dude, you are accused of stealing €19,500 worth of stock/sexual harassment/bulling/discrimination/misconduct-of course the employer is going to investigate and, yes, of course it is stressful, but you cannot sue him for the stress”.
But no matter how tempting I have to calmly and patiently explain the difference between ordinary occupational stress and actionable stress that is so great that the employee’s mind has been overwhelmed and has suffered a breakdown.
Read more about Occupational Stress and Actionable Workplace Stress-the Crucial Difference here.
3. Believing the contract of employment can only be interpreted literally
It is undoubtedly true that the contract of employment can only be changed with the consent of both parties, including the employee. This does not mean, however, that certain work practices cannot be changed by the employer, and such changes may not be contractual changes.
Also, there are certain terms implied into every contract of employment, even though they may not be express terms set out in the contract document itself. Some employees fall into the mistake of interpreting their contract in an extremely literal way and refusing to adapt themselves to changing circumstances in the workplace. This can lead to difficulties and tensions between employer and employee.
The three mistakes I discuss above are easy ones to make, especially for any employee who does not have frequent interaction with the law in general or employment law in particular. This is why it is a good idea to get some professional advice before you embark on a dispute with your employer, and why clarity is such a vital prize to seek.
If you don’t you may be picking a battle that you cannot win, or you might win but lose the war, so to speak.