Employment Law Articles for Employers and HR Professionals

employment law articles

Are you an employer? Do you work in human resources?

I have written quite a lot of articles/blog posts on this site about employment law in Ireland.

The questions I receive from employers and people charged with the HR function in an organisation are completely different from those I receive from employees.

Much of the information on this site will be useful for both employers and employees. For example the extensive articles on unfair dismissal, redundancy, health and safety, and the contract of employment.

But on this page I want to focus on articles and blog posts that focus on the specific issues that employers and hr people contact me about. I hope you find them useful.

Client Stories That Make Me Love My Job

terry gorry client stories

Going to work when you love your job is not too difficult.

I don’t always love my job, but sometimes, thankfully, I do.

Séamus the fisherman

Séamus worked on a fishing boat. He suffered an injury on his knee (I think) a few years ago and went for an operation.

When he told his employer he was ready to go back to work there was a problem. His employer told him he couldn’t get insurance for him. What’s more, they had no work on shore for him either.

Séamus’s doctor said he was fine to work and produced a letter stating this. The company doctor also examined him and came to the same conclusion.

But the employer claimed he couldn’t get insurance, so just left Séamus on the sidelines, to “wither on the vine”, as it were.

Séamus brought a claim for redundancy to a Rights Commissioner but the employer won the case. Why?

Because the Rights Commissioner agreed with the employer’s argument that Séamus was still an employee, he just couldn’t get insurance.

A few years later the employer sold off its fishing rights and wound up the business. It paid redundancy to all its employees, save for one: Séamus.

Séamus came to me and we submitted a claim for redundancy. At this stage Séamus had not worked for the employer for a number of years and a liquidator was appointed to wind up the company.

We were confident about one thing, though; Séamus was still an employee. Why?

Because a Rights Commissioner had accepted that argument of the employer a few years before in avoiding a redundancy claim then.

And if Séamus was still an employee he was entitled to redundancy, provided he had the necessary service in the job, which he had.

We submitted a claim to the Employment Appeals Tribunal.

Séamus was awarded a little over €20,000 in redundancy by the Employment Appeals Tribunal earlier this year. As the employer is being wound up by a liquidator his payment will come from the Department of Social Protection under the Insolvency Payments Scheme. (The legislative basis for the Scheme is the Protection of Employees (Employers’ Insolvency) Acts, 1984 – 2004 and associated regulations.)

Kay

Kay was bullied in work. The circumstances were that she was the only female employee working in an office with a handful of male colleagues.

Her line manager, and another manger, shared an office with her and thought it was alright to have a laugh at Kay’s expense. Not the occasional laugh, but a consistent, repeated demeaning and denigration of Kay, and her personal mannerisms.

It got so bad that Kay suffered a type of breakdown one day when it all go too much for her. She thought about walking out in front of a bus on the way home.

When Kay came to me she was adamant she could not work there again, that she simply could not trust the two men who made her life a misery.

But she wanted some recognition of the hell they put her through.

We commenced personal injury proceedings against the employer.

There was no certainty that we would win the case, but Kay was adamant she wanted to let them know she had enough and they could not just be let away with it. Besides, she was also now having to give up her job, through no fault of her own.

The company eventually settled the claim by compensating her and Kay felt a great sense of vindication at her “victory”, apart altogether from the financial compensation which was not enormous.

But for Kay, and many people in similar circumstances, it is not about the money.

It’s about standing up and saying, “I count, I’m a human being”.

Svetlana

Svetlana worked in retailing, managing a shop. She was in the job for about 7 years or so, loved her job and never had a disciplinary issue.

One day she was called by a line manager and company accountant to a meeting. She was not told this was a disciplinary meeting, and the company always denied that it was.

However, she was pressurised by three company personnel at the meeting to sign a letter of resignation because she had “made mistakes”.

Constructive dismissal cases are hard to win, but this one looked like a strong candidate. The WRC agreed with us and awarded her 11 months’ salary for constructive dismissal.

Sinéad

Sinéad was a student working a summer job in a hotel. She worked in the bar but was badly treated by her supervisor who commented regularly about her weight and, one day, without warning, fired her. Unfortunately, Sinéad did not have the requisite 12 months’ service to be able to bring a claim under the unfair dismissals acts.

For this reason, the employer was not too concerned about the dismissal.

However, she was never given a written statement of her terms and conditions of employment, she wasn’t paid her entire holiday pay entitlement, and there was a question mark over whether she was given her breaks in accordance with the Organisation of Working Time Act, 1997.

We brought claims on her behalf under a number of headings to the WRC. The WRC recognised that this was a case that might be suitable for settlement by mediation.

We agreed, and so did the employer.

Sinéad received a settlement sum which wasn’t huge but for a young girl going to college, it was fine.

Besides, it was never about the money for her-it was about standing up for herself. For any young person, girl or boy, taking this step can be an important one and a good lesson for later on in life.

 

Stories like these make my job easier.

We don’t win all the cases we bring, naturally, but cases like the ones above make the wins all the sweeter.

Note: all the names above are fictional, although the stories are accurate.

How to Make an Employment Related Claim

unfair dismissal

Had enough?

Are you at breaking point?

Are you considering bringing a claim against your employer?

Are you unsure of the procedure and what to do?

Are you worried about legal costs?

By the end of this piece, I hope you will have a well informed grasp of what’s involved and what you need to consider.

The 1st thing you must do

Before deciding to bring a claim against your employer, there is one thing you must do.

You must raise your issue internally in your workplace. This will involve using the grievance procedure in use in your employment.

Because when you go to a Rights Commissioner hearing or an Employment Appeals Tribunal or any other venue, including Court, it will help your case enormously that you have tried to sort out the problem in the workplace.

You simply must give the employer the opportunity to put right what you say is wrong. Even if he doesn’t, and you know he won’t, it is strongly advisable to make your best efforts to sort out the problem.

Because later, if you do bring a claim, you will appear to have been the reasonable one and mainly concerned with having the difficulty sorted out, not making a claim.

Where can you bring your claim?

There are three types of venue to bring a claim:

  1. the specialist employment related forums such as the Rights Commissioner Service and the Employment Appeals Tribunal (this is set to change in October, 2015 with the Workplace Relations Act coming into law)
  2. Civil Court, for example the District Court, Circuit Court or High Court
  3. the Equality Tribunal.

The EAT and Rights Commissioner service can hear most employment related claims, and, for many claims you have a choice of which one to use.

The Rights Commissioner service is the bottom rung of the ladder and is probably the least intimidating place to bring a claim. One Rights Commissioner sitting alone at the head of a table hears the complaint with the parties sitting both sides of the table to present their case.

This service is designed to be informal and not at all intimidating.

The EAT hearing is a bit more formal with 3 people sitting to hear the complaint. The Chairperson will be a barrister or solicitor appointed to the Tribunal by Government; there will also be an employer representative from a body such as IBEC, and an employee representative from a trade union.

Civil Courts might be chosen in certain circumstances:

  • where you are bring a case for breach of contract or wrongful dismissal
  • where your claim is for a non physical personal injury such as stress (you would have brought this the Injuries Board in the first place but they tend not to deal with non physical injury cases and simply authorise you to bring your claim in Court by way of legal proceedings)
  • gender discrimination claims can go straight to the Circuit Court

The Equality Tribunal deals with all forms of discrimination in the workplace and they will be your 1st port of call if you are claiming that you have suffered discrimination in your job. Bear in mind that your discrimination must be on one of 9 grounds.

The 9 grounds are

  • Gender
  • Marital status
  • Family status
  • Sexual orientation
  • Religion
  • Age
  • Disability
  • Race/colour/nationality/ethnic or national origins
  • Membership of the travelling community.

The procedure and the 1 form you will need

The vast majority of employment related claims will start by the filling out of the Workplace Relations Complaint Form. You can access this form here on the Workplace Relations website.

The form can be filled in and submitted online. It will ask you for your details, the details of your employer, your complaint, what legislation you are claiming under and some other relevant details.

You should receive an acknowledgment of receipt of your complaint immediately once you have submitted the form. However you could be waiting 12-18 months for a hearing date.

It’s during this time that some efforts may be made to settle the dispute. This can occur by the Workplace Relations Early Resolutions service contacting the parties or by the parties themselves, perhaps through their solicitors, trying to settle the problem.

How much will it cost?

When you go to Court, the winner takes all.

By this I mean that if you win your case, the other side will almost certainly be ordered to pay your costs (as well as their own).

That’s not the case in employment cases at the EAT or Rights Commissioner service-each side pays their own costs.

So, how much will you have to pay? Well, it depends on how much time goes into preparing your case, how much time is spent at the hearing, whether counsel is instructed, and so on.

You should discuss this aspect of your case at the outset with your solicitor. He should be able to give you a good idea, but it will only be an estimate.

The difficulty in giving you exact figures lies the the huge difference between cases. For example, a half hour hearing with a Rights Commissioner over a very straightforward issue compared to a complex case involving counsel before the Employment Appeals Tribunal over a number of days will incur wildly different costs.

Enforcing decisions-what happens next?

If you are successful and win a positive decision, then the employer has 6 weeks within which to implement it. If he fails to do so you can make a complaint to another body in order to have your decision enforced.

A Rights Commissioner decision can be referred to the Labour Court for confirmation of the original decision. Once the Labour Court confirms it you can go to the Circuit Court for a Court Order which can be enforced against the employer.

An EAT decision can also be enforced through the Circuit Court with an order for payment being made.

How to decide what to do next

Deciding to bring a claim is a big decision.

It’s not easy, and the consequences of bringing one and losing, or winning, can be enormous.

You don’t have to suffer in silence though, or say nothing and stand idly by if your rights are being ignored or trampled upon. But you do have to be sure that you have a good chance of success and you do need to know whether there is, in fact, a breach of your rights.

Weigh up the pros and cons carefully. Don’t let your heart rule your head.

I know it’s difficult for you to be dispassionate about your problem, especially if going to work every day is a heavy chore. But you do need to have a good idea of the chances of success.

Friends and family mean well and don’t want to see you suffer.

So, before you do anything, get the best professional advice you can to give you a voice and ensure that your employment rights are upheld.

 

Did you find this piece useful? Please share it if you did.

 

Workplace Relations Bill 2014 Set to Deliver Massive Changes in Employment Law and Prosecution of Employment Claims

workplace-relations

The Workplace Relations Bill 2014, when enacted into law, will have a huge impact on how employment rights in Ireland will be protected.

It is expected to become law on 1st October, 2015.

The current confusing situation where you have five workplace relations bodies-the Labour Relations Commission (LRC), the National Employment Rights Authority (NERA), the Equality Tribunal, Employment Appeals Tribunal (EAT) and the Labour Court-will cease.

There will be two bodies for employers, employees, and legal professionals to deal with:
1. The Workplace Relations Commission which will deal with complaints of first instance and
2. The Labour Court which will deal with appeals.

This should be welcomed by employers, employees, representatives of both, and legal professionals as the current situation is confusing, complex and can lead to “forum shopping”. Currently a dispute with a given set of circumstances can lead to the need to bring the different complaints/issues in different fora.

Early Resolution/Mediation Agreements

The bill also provides for a legally binding early resolution or mediation facility. Participation is not obligatory and parties may opt to proceed straight to adjudication, but where it is undertaken it can lead to a legally binding pre-arbitration agreement that could prove less costly.

An important aspect of this mediation agreement is that if an employer offers a settlement but the employee rejects it, the offer cannot be used as an indication of culpability during a later hearing.

Adjudication sessions will be held in private before a single officer who will hear the claims against a broad spectrum of employment law considerations.

The costs involved for both employees and employers in dealing with different complaints arising from the one set of facts is expected to be a thing of the past.

It is hoped that the 2 new bodies will see a speeding up of claims and appeals and a reduction in the current long wait times.

The thrust of this legislation is to expedite claims where possible but clearly there must remain room for appeal: decisions by an adjudicator can be brought to the Labour Court (within 42 days) with full public hearings points of law to the High Court.

Costs cannot be awarded to either side in a dispute as is the situation at the moment. Legal representation is not mandatory but would probably be advisable.

UPDATE 2015

Workplace Relations Act, 2015

The Workplace Relations Act, 2015 was signed into law by the President in May, 2015 and is expected to come into force on 1st October, 2015 when the commencement order is signed by the Minister.

Read or download the Workplace Relations Act, 2015.

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.