Author: Terry Gorry

Implied Terms of Employment in the Employment Contract-What You Should Know

implied term employment contract
Employment contract

When a contract of employment is being drawn up it is impossible to provide for every eventuality in the work relationship between employer and employee.

For this reason certain terms of employment will be implied into the contract, and together with the express terms set out in the contract, form the contract of employment.

What are they? When will an implied term arise? How will you know?

Firstly, it is not always clear cut as to whether a particular term is implied into a contract; but there are some fundamental terms that certainly are implied into every contract.

Let’s take a look at those, shall we?

And let’s also look at when this is likely to arise.

Conditions for Implied Terms

There are a number of tests which must be passed if you are to imply a term into an employment contract:

  • Custom and practice

If you are to rely on custom and practice to incorporate an implied term into a contract the customer should be “reasonable, notorious (well known), and certain.” This might arise, for example, where the employer pays an annual bonus for many years.

  • Business efficacy

This arises where a term is implied to give a contract efficacy-that is, to make sense of it and make it workable. This would occur where it is “obvious and necessary”, for example the obligation for a lorry driver having a driving licence.

  • Officious bystander test

This occurs where something is so obvious that it goes without saying, and a third party observer would agree that it was blatantly obvious

  • Conduct of the parties after the contract is made

The conduct of the parties after a contract has been made and employment has commenced can give rise to an implied term being incorporated into the contract. It would be necessary to show an intention by the parties to include it as a term.

  • Terms implied by statute

An example here would be if there is no notice period expressly stated in the contract it is implied that the statutory notice period will apply.

  • Terms implied by law

These would include the obligation on the employer’s part to provide work and on the employee’s part to follow reasonable direction and show good faith and loyalty to the employer.

Let’s take a look at some well accepted implied terms.

Common Implied Terms

  1. The mutual obligation to maintain trust and confidence in each other

Both employer and employee are obliged to conduct themselves in a way that can allow each party to have trust and confidence in the other party.

The employee will often, in a constructive dismissal case, point to the unreasonable conduct of the employer and claim that he could not be expected to continue to have trust and confidence in the employer.

The obligation works both ways and an employer who discovers an employee cannot be trusted with handling cash for example, no matter how small the amount, can reasonably claim that he cannot enjoy trust and confidence in the employee any longer.

2. The duty of loyalty

It is an implied term that the employee will faithfully serve the employer and will not act against the best interests of the employer.

3. Giving references

There is no obligation on the employer to give a reference, but where one is given there is an implied term in the contract that the reference is accurate and fair.

4. Grievance procedure

It is almost certainly the case that there is an implied term in the contract that the employer will deal with complaints or problems from employees fairly and in a timely manner. This is the case even where the employer does not have a grievance procedure or policy in the workplace.

2 Years’ Salary Awarded to Van Driver in Unfair Dismissal Case

the labour court

The maximum amount that can be awarded in an unfair dismissal case is 2 years’ remuneration (section 7, Unfair Dismissals Act, 1977).

I had never seen it awarded until this case, DHL Limited and Michael Coughlan, in which Mr. Coughlan was awarded €72,042.88 by way of compensation.

On the 28th July, 2017 the Labour Court handed down its decision in an appeal by the employer of the previous WRC adjudicator decision in the employee’s favour.

Background

The background to this case is an WRC adjudicator decision of 30th January, 2017 to decide that the employee should be reinstated in his job as a DHL driver.

Mr. Coughlan was employed as a van driver for 11 years until his summary dismissal in November, 2015.

Mr. Coughlan brought a claim for unfair dismissal to the WRC and the Adjudicator decided that the sanction imposed on Mr. Coughlan for an accident involving his vehicle was, “disproportionate having regard to all the circumstances.” She ordered reinstatement from September, 2016, when the WRC hearing was held.

Mr. Coughlan had previously accumulated written warnings, with a duration of 12 months each, for a couple of incidents involving his driving, but had no such incidents for 2 years prior to the incident in 19th October, 2015 which led to his dismissal. Mr. Coughlan, at the investigation meeting, admitted that he had misjudged the space available to him while passing another vehicle at the Cork Depot of the employer, and apologised. The damage to the van cost €2,500 to repair.

Following the disciplinary hearing the employer decided to dismiss Mr. Coughlan for gross misconduct involving the incident and damaging of company property. However, the employer’s letter advising him of his summary dismissal made reference to his previous driving problems, even though the last warning he had was expired for some time.

The employer, in its response to Mr. Coughlan’s appeal, relied on his previous record of driving incidents and written warnings, and gave evidence that DHL could not rely on the employee to drive the company vehicles safely and no other option, for example, redeployment, was open to the employer on this occasion.

The head of operations of the employer gave evidence that he felt it appropriate to take the previous driving record of Mr. Coughlan into account when hearing his appeal to the dismissal, notwithstanding that the previous warnings had expired.

Labour Court Findings

The Labour Court found that Mr. Coughlan was confronted with multiple accounts of misconduct at the disciplinary hearing, even though there was no reference to multiple allegations in the letter inviting him to the hearing. The letter only referred to his failure to protect and safeguard company property (the van).

The Labour Court also found that the employer’s decision to dismiss was motivated, partly, by what it saw as its duty of care to the public, and safety grounds; however, this was completely different from the subject matter contained in the letter inviting Mr. Coughlan to the disciplinary hearing as the letter stated he was being invited to meet the allegation of ‘failure to protect and safeguard company property’.

The Labour Court also found that the grounds for summary dismissal without notice are very restricted, as can be seen from established jurisprudence in relation to dismissal, and a reading of Section 8 of the Minimum Notice and Terms of Employment Act 1973, which requires very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer.

As the allegation against Mr. Coughlan was that he failed to protect and safeguard company property it was held that this could not constitute gross misconduct justifying summary dismissal, that is, without notice.

The Labour Court also found that the employer did not give due consideration to alternative sanctions short of dismissal, nor did it allow him to offer to pay for the damage to the vehicle.

Furthermore it found that the employer gave too much weight to the previous incidents concerning Mr. Coughlan’s driving, and noted that his previous written warnings had expired by the time of this incident.

The Labour Court, for the reasons set out above, decided Mr. Coughlan was unfairly dismissed.

It took into account Mr. Coughlan’s attempts to mitigate his loss by seeking new employment: He told the Court that in the period since October 2015 he has applied for some 23 or 24 jobs without success. He applied for various roles including that of courier, driver, general operative, cleaner and store person. The Respondent was called to a small number of interviews by named employers but no job offer ensued from any of them.

The Labour Court awarded him €72,042.88 by way of compensation, being the equivalent of 104 weeks’ remuneration, which it viewed was the employee’s financial loss to date attributable to the dismissal.

You can read the full case here.

The General Data Protection Regulation (GDPR) in Ireland-the Essentials

gdpr-data-protection

Have you heard about the GDPR (General Data Protection Regulation)?

Do you know the changes it will bring to data protection law in Ireland?

Do you know when it is to come into effect here?

These questions, and similar foundational ones, are what I am about to look at.

Ready?

Let’s go.

The “big bang” date for the this Regulation to come into effect in Ireland will be 25th May, 2018. As EU regulations have direct effect in Irish law, it will not require any act of transposition or formal introduction into Irish law.

The effect of the GDPR will be to replace the existing data protection framework in Ireland. If you are data controller, and you currently have obligations under data protection law, you will need to know what new obligations the GDPR will have for you and your organisation or business.

At its core it strengthens the rights of EU citizens to data privacy and central to this is the three principles of

  1. Security
  2. Accountability
  3. Transparency.

You will note that these are the principles inherent in the current data protection regime in Ireland, pursuant to the Data Protection Act 1988 and Data Protection (Amendment) Act, 2003. It will be a relief to discover that if you are in line with current legislation you will be broadly covered for the new regime.

However, there is some new elements being introduced by GDPR which you need to be aware of. The Office of the Data Protection Commissioner has suggested a 12 step approach to the new regime. Those 12 steps are:

1. Becoming aware

Key personnel need to be aware the law is changing in this area from 25th May, 2018.

2. Become accountable.

Gather up your existing personal data and review it under the following headings

  • Why are you holding it?
  • How did you obtain it?
  • Why was it gathered?
  • How long will you retain it?
  • How secure is it?
  • Do you share it with 3rd parties? If so, on what basis?

This will cover the accountability principle mentioned at number 2 above.

3. Communicate with staff and service users

This involves lettering your staff or service users know about the collection of their personal data.

Under GDPR new obligations include:

  • Providing information about the legal basis for processing the data
  • Retention periods
  • Complaint procedures
  • Their individual rights under GDPR
  • Whether the data will be subject to automated decision making.

4. Personal Privacy Rights

Generally, the rights afforded to individuals will be similar to what they currently enjoy eg to have inaccuracies corrected, to have data deleted, to object to direct marketing.

You will also need to consider how you will provide data electronically if requested by the data subject. You will need to consider,too, how long it will take to locate the data and who will make decisions about deletion of data.

5. How will access requests change

The GDPR will change the timescale for responding to data protection requests to one month so you need to review how you will deal with this faster timescale.

It will be less likely that you will be able to charge for such requests and the ground for refusal will need to be founded in well documented policies and procedures for refusal.

You will also need to provide additional information to data subjects such as information about the data retention periods and having inaccurate data amended.

6. The legal basis

You will have to explain your legal basis for processing personal data and data subjections will have stronger grounds for having their data deleted and the legal bases for processing data will be reduced significantly.

If customer consent is the only justification for processing data the data subject will be in a stronger position to request that it be deleted.

7. Customer consent as a ground to process data

Consent must be ‘freely given, specific, informed and unambiguous’ in relation to customer consent. The customer must not be duped or forced into giving the information. They must also know what exactly they are consenting to and requires a positive action of approval; it cannot be inferred be silence or a failure to take action eg tick a box to opt out.

Subjects also need to be told of their right to withdraw consent. You need to be able to show how consent was obtained, and have a record of it. Generally, where consent is relied upon, the data subject has stronger rights in relation to their personal data.

8. Processing children’s data

If you must gather children’s data you need to be careful about being able to verify the age of the child and obtain the consent of the guardian.

Special protections in respect of children’s data will be introduced, especially in relation to social media use and commercial internet services.

9. Reporting data breaches

You must ensure you have sound procedures in place to detect, report and investigate any data protection breach. The GDPR will introduce mandatory data breach reporting obligations to the Data Protection Commissioner.

Failure to report a breach will result in a fine in addition to the fine for the breach and breaches will typically have to be reported within 72 hours.

10. Data protection impact assessments (DPIA)

This involves the systematic consideration of how a particular initiative will impact on the privacy of individuals. This assessment may involve discussions with groups and stakeholders.

If this assessment leads the organiser to believe that the risks to personal data cannot be mitigated fully it may be necessary to contact the Data Protection Commissioner before starting the process of gathering data.

If a project requires a DPIA you will need to consider

  • Who carries it out?
  • Who needs to be involved?
  • Will it be run locally or centrally?

The whole thrust of the DPIA is to identify potential problems with an initiative involving the gathering of personal data and look at ways to mitigate those issues.

11. Data protection officers

Some organisations will need to designantt a DPO (data protection officer) under the GDPR regime. Such organisations would include public bodies, large organisations, and so forth but you need to consider whether you need a data protection office in your organisation.

He/she will need to be conversant with GDPR and its obligations. You may appoint an external advisor to this role, if there is nobody suitable or qualified in your organisation.

12. GDPR and international organisations

For organisations which have operations in many EU states you will be entitled to deal with one data protection authority, a Lead Supervisory Authority (LSA) as your single regulating body in the country where you are mainly established.

This will generally be determined as the country where the main administration of the organisation is carried out.

Conclusion

If you are currently in compliance with existing data protection legislation in Ireland you will be in good shape to deal with the new situation after 25th May, 2018. However, even though you will be playing a similar game it will be more akin to being in the Premier league than division 3 or 4.

Disciplinary Procedures in the Workplace-3 Interesting High Court Decisions About Fair Procedures

fair procedures high court

Are you an employer or employee involved in a disciplinary procedure in the workplace?

If you are you need to be clear about the rules that should apply to such procedures, including at the investigatory stage and the ultimate disciplinary procedure where a sanction may be imposed.

The High Court has recently handed down three decisions in relation to internal investigations and disciplinary procedures in the workplace.

And, unfortunately, the principles that you would like to be crystal clear about in relation to carrying out a disciplinary procedure in the workplace are not entirely settled.

Let’s take a look at the three cases, all of which are dealt with in the High Court over a short period of time in the first part of 2017, and you will see what I mean.

The first case is Lyons v Longford Westmeath Education and Training Board . Mr. Lyons is a teacher with the Longford Westmeath Education and Training Board and certain allegations were levelled against him. The employer engaged the services of an external HR company who carried out an investigation into the allegations.

However, the HR company went further than merely carrying out an investigation-it also issued a report, presumably because they were requested to do so by the employer, and found against Mr. Lyons with respect to the bullying allegation made against him.

Mr. Lyons then brought an action in the High Court arguing that

  1. He should have been allowed legal representation during the investigation, and
  2. His legal representative should have been allowed to cross examine any witnesses.

The High Court held in his favour, which surprised many observers as it was generally understood that the full panoply of fair procedures and natural justice need not be afforded in the preliminary investigation stage of a disciplinary procedure, and it was sufficient if the employee had representation and could cross examine at the disciplinary hearing stage where dismissal was a possibility.

What distinguished this case from others, perhaps, is the fact that the investigation resulted in a report being issued and an adverse finding against Mr. Lyons. If the investigation simply investigated the allegations and decided whether there was a case to answer or not, and stopped there, then Mr. Lyons it may have been held by the High Court that he was not entitled to legal representation and to cross examine witnesses.

Justice Eager held, inter alia,

It is quite clear to this Court that the proceedings adopted by Graphite Recruitment HRM Ltd. is in breach of Article 40(3)(1) and (2) of the Constitution of Ireland by the refusal to allow legal representatives to appear on behalf of the applicant. The processes adopted by Graphite Recruitment HRM Ltd. failed to vindicate the good name of the applicant, in their refusal to hold an appropriate hearing, whereby the applicant through solicitor or counsel may have cross-examined the complainant..Equally, the complainant ought be entitled to then cross-examine the applicant.

 

And

The Court is clear that in circumstances where a complaint is made which could result in an individual’s dismissal, or where it impinges on the individual’s right to a good name, the individual is entitled to fair procedures, as outlined by the Supreme Court in the case law quoted above.

The second case worth looking at is E.G. v The Society of Actuaries in Ireland.

E.G. was an actuary and there was allegations against him of wrongdoing. The Society of Actuaries in Ireland, in responding to the complaints against E.G., set up an investigative committee who were to investigate the allegations and decide whether he had a case to answer, that is, whether there was prima facie evidence of wrongdoing.

The committee found there was prima facie evidence of wrongdoing and E.G. then sought an order from the High Court that he was entitled to natural justice and the finding of the committee should be set aside.

In this case the High Court decided that as the committee was only in the preliminary stages of a procedure involving an investigation, and did not have the power to make adverse findings against E.G., and the full panoply of fair procedures and natural justice was not necessary. It would only be in the formal disciplinary enquiry, where E.G. may have serious adverse findings made against him and sanctions imposed, that he would be entitled to legal representation and to cross examine witnesses.

The Court made a clear distinction between the preliminary investigation and the later formal disciplinary procedure.

The High Court relied on a High Court case, later upheld in the Supreme Court, involving the Law Society of Ireland, O’Sullivan v Law Society of Ireland [2009] IEHC 632.

 

Justice McDermott held:

In the courts view it was not necessary for the first named respondent to afford to the applicant the full panoply of natural justice rights in the course of any investigation into his conduct (outside of and/or in parallel with, any s. 8 or s. 9 process that may also have been underway) prior to their invocation of s. 17. They were of course, obliged to treat him fairly but they were entitled to adopt less formal and more abridged procedures than in circumstances where s. 17 had actually been invoked.”
85. The Supreme Court in dismissing an appeal against the judgment of Edwards J. [2012] IESC 21 was satisfied that the full panoply of natural justice rights does not inexorably apply at every phase of an investigative process. An appropriate standard of fair procedures must be applied at all stages of a tiered process. There may be situations in which a stronger degree of procedural protection may be required having regard to the decision to be taken at an investigative stage or its potential consequences.

 

And

A full oral hearing will be required before the Disciplinary Tribunal following the referral in the course of which the full panoply of rights will be available as set out in the Scheme as already described.

 

The third case was also, like Lyons above, in the education sector, N.M. v Limerick and Clare Education and Training Board.

The teacher in this case sought an injunction preventing the employer from carrying the disciplinary procedure to a conclusion. The Court considered whether the employee would have been entitled to cross examine witnesses at the investigation stage, even though this stage had already completed by the time the case came to the High Court.

Even though the investigation was tasked with making findings of fact the High Court found that because it could not make findings of fact which were final or binding, that is, the findings were only made as part of the investigation stage of the procedure.The Court held therefore, that the employee was not entitled to the full range of fair procedures/natural justice.

It also held that, therefore, that he was not entitled to cross examine witnesses and reiterated the principle arising from O’Sullivan v Law Society of Ireland [2009] IEHC 632 that the full range of fair procedures and natural justice is required at the disciplinary stage of the procedure, and not earlier in the investigation.

Conclusion

It remains to be seen whether the decision in the Lyons v Longford Westmeath Education and Training Board case is followed or not. From an employers perspective it seems to be a prudent course of action to ensure that the investigation that is carried out does not make final binding findings of fact and is strictly a fact finding exercise, and leaves final binding findings of fact to the disciplinary stage of the procedure.

The 2 Big Problems With Claiming for Bullying in the Workplace

workplace bullying

Are you being bullied at work?

No, I mean really being bullied. As in repeated inappropriate behaviour which undermines your dignity as an employee.

Let me explain.

If I got a euro for every time an employee came to me and told me he/she was being bullied in work I would be a wealthy man.

But the vast majority of the time it what is described to me is not bullying, and will not fall within the legal definition of bullying.

For example, often, the employee will tell me she has been subjected to the disciplinary procedure in the workplace. There is two problems with claiming this is bullying:

  1. It is a one off situation, and not part of a repeated pattern of behaviour which undermines the employee’s dignity;
  2. Management is entitled to invoke the disciplinary procedure in the workplace, for obvious reasons.

So, being involved in a disciplinary procedure is not bullying, per se, although if it was part of a concerted campaign of inappropriate behaviour.

On other occasions, an employee will have an issue or complaint in relation to some aspect of their work, or terms and conditions of their employment. They will, correctly, invoke the grievance procedure in the workplace, but disagree with the outcome.

They simply will not accept the decision, as it was not what they wanted or expected. The disappointment is understandable, but bullying it is not.

Remember if you raise a complaint or grievance or bring a claim or legal proceedings there is a number of potential outcomes. One of these is that you will lose. You need to be ready for this, and ready to put it behind you and move on.

The legal definition of bullying was recently affirmed in the Supreme Court decision in the Ruffley v Board of Management of St. Anne’s School. Remember, we are talking about repeated, inappropriate behaviour which undermines the dignity of the employee.

What does this mean?

Firstly, the conduct complained of must be repeated. This probably means a period of at least 6 months. It is not possible to say, with any confidence, that a lesser period will not be considered bullying. But the point you must take from this is: the inappropriate conduct must not be a one off situation, or of short duration.

Secondly, the conduct complained of as bullying behaviour must undermine the dignity of the employee. What does this mean?

According to the Supreme Court decision the type of behaviour you must prove

must be outrageous, unacceptable, and exceeding all bounds tolerated by decent society.

This, clearly, is a pretty high hurdle to clear.

The Court also held that a certain degree of robustness is required of the employee in the workplace. Instruction, direction and even, on occasion, robust management, are all necessary in a workplace to ensure efficiency, that the work gets done, and health and safety in the workplace is maintained.

The treatment you endure at work may make you very annoyed, it may upset you from time to time, you may feel it is personal, you may feel it is bullying.

But from a legal perspective, proving bullying behaviour, according to Justice Charleton in the Supreme Court, must clear a high standard of proof:

“the test for bullying is of necessity to be set very high”.

The reason for this, I presume, is that for workplaces to function management must be able to manage and organise the affairs of the workplace safely, without facing frequent Court proceedings for perceived slights, give necessary direction and instruction, and, occasionally, robust management.

The Legal Redress for Bullying

There are two substantial types of claim (one more substantial than the other) you can bring arising from being a victim of bullying, assuming that you can prove that what you have experienced is bullying, as discussed above.

  1. A Claim in Civil Court

Your claim will be that a tort (civil wrong) has occurred.

You must prove that the employer has been negligent in failing to discharge his duty of care, discharging his duty to provide a safe place of work, that you have suffered a recognised psychiatric or psychological injury as a result of that negligence, and are entitled to recover damages. You would also claim that the employer is in breach of the contract of employment in failing to deal property and promptly with your complaints.

Going to Court is expensive and, in relation to costs, the winner takes all. (Elsewhere on my site I have set out what you need to prove to win your case in Court).

2. A Claim for Constructive Dismissal

This claim is brought to the WRC (Workplace Relations Commission) and involves you quitting your job and claiming that the bullying you have suffered in the workplace has not been dealt with by the employer, and you have had no real choice but to leave your job.

This claim does not have the cost implications of going to Court, but the redress you can be awarded is significantly less, too, as you cannot be awarded damages for pain and suffering.

You can only be awarded financial loss for your loss of employment. The amount of financial loos will depend on how quickly you get a new job.

Conclusion

You will see from the above that the two main options open to you if you are a victim of bullying in the workplace have inherent difficulties.

Going to Court is a high stakes endeavour with potentially high legal costs, a high burden of proof to prove bullying, and you must be able to prove you have suffered a recognised injury of a psychological or psychiatric nature.

Going to the WRC on a constructive dismissal claim will see you losing your job and only being able to recover your financial loss for being out of work between jobs.

The two big problems with commencing some type of claim or redress for bullying in the workplace are:

  1. Satisfying the legal proof required to prove bullying
  2. The difficulties associated with the avenues of redress open to you.

If you suffer from bullying you do not have to suffer in silence. There is action you can take to resolve the difficulty.

But it is probably useful that you are aware of the difficulties at the outset.