Categories
Employment Claims Equality and Discrimination

Two Discrimination Cases-Different Responses from Employer, Similar Outcome for Employee

employment claims
Cross examination notes

I have been involved in two discrimination cases which have been finalised in the last few weeks. The outcomes of the cases, coincidentally, are similar and have culminated in compensation for both employees.

The first one involved a case of sexual harassment in the workplace and resulted in a compensation payment, tax free, of €30,000. You can read more about that case, including the full decision of the WRC, here.

The other case, one you will not read about because it has been settled before ever going to the Workplace Relations Commission, has been settled for a similar sum of money. It was a discrimination case, not sexual harassment, as defined by the Employment Equality Act 1998.

The amount of work involved for me in both cases differed wildly, however.

The sexual harassment case involved a great deal of time and work and involved three days at the WRC: the first day was for mediation, the second day for the hearing, and the third day was to complete the hearing. Evidence had to be taken from two witnesses, cross examination of at least three witnesses, and booklets and submissions had to be prepared and submitted.

The second case, by contrast, only involved the submission of the complaint to the Workplace Relations Commission; shortly after this the solicitor for the employer made contact and the case was settled.

Responding to claims-professional or amateur?

I categorise responding to employment claims in two ways: professional or amateur.

When you bring any legal case or employment claim it is impossible to know how the other side will react.

One response is a pragmatic approach and a realistic attempt to settle the case by the party who is in the weaker position and is at risk if the case goes to a full hearing.

The risk, if you are the employer, involves an award of compensation against you, legal costs of representation, time taken to prepare for the case, and reputational damage.

The other response is to substitute cool analysis of the facts and the law with an emotional response to ‘fight the case’ to the end. This does not make much sense, quite frankly, but it is an easy reaction to embrace.

And if you have the money and are fully aware of the risks and costs, knock yourself out, if you want to. But the ‘professional’ approach, using logic and evidence rather than emotions, might serve you better in the long run.

Now, the professional response may be to fight the case in all circumstances, in order to discourage claims against you generally or copycat claims. But you should make this decision rationally after assessing all the relevant factors rather than responding emotionally.

The employee, too, must weigh up the chance of success versus the associated costs of representation, the probability of winning, and the potential remedies that can be gained. (This blog post, How to Make a Decision to Bring an Employment Claim to WRC or Not, might be worth a read.)

Categories
Data Protection Employment Claims

The Use of Private Investigators By Employers-Caution Needed

Have you been tempted to engage the services of a private investigator to carry out surveillance on one of your employees?

Perhaps you are trying to gather evidence of breach of a restrictive covenant in the contract of employment? 

Or maybe you want to ascertain if an employee is working somewhere else or carrying on a business in breach of the contract of employment?

Restrictive covenants

Many contracts of employment contain restrictive covenants. The restrictive covenants aim to restrict the employee from doing certain things after she leaves the employment, typically 

  1. Restricting the employee from working in the industry for a certain period of time in a specified geographical area
  2. Restricting the employee from poaching staff from the old employer
  3. Restricting the employee from approaching old customers/clients with a view to moving them to the new employer, or the employee’s new business.

Whether the employer takes steps to enforce the restrictive covenant will depend on the circumstances, including the importance of the departing employee to the business and the potential damage he can cause if the covenants are not enforced.

The employer will have to weigh up the potential costs and benefits from attempting to take legal proceedings to enforce the post termination restrictions. Before commencing legal proceedings, however, the employer will need to be satisfied that a covenant is, or is in danger of, being breached.

This involves gathering evidence and the steps that the employer is entitled to take to gather the evidence.

Credit Suisse bank covert surveillance

The Credit Suisse bank was forced to apologise to a former employee, the head of wealth management, when it transpired that a covert surveillance operation was carried out due to the fear of the former employee poaching banking colleagues and clients. An independent inquiry was carried out to investigate the matter. This led to the resignation of the bank’s chief operation officer, who had gone on a solo run, and the finding of no evidence that the former employee was in breach of any restrictive covenant.

Private investigators in employment disputes

Private investigators would be frequently used in personal injury claims but not in restrictive covenant employment contract cases.

The question arises, however, as to the boundaries, having regard to privacy and data protection issues, of such operations.

In Ireland, in Sweeney v Ballinteer Community school, the principal of the school was criticised by the High Court for having a private investigator follow a teacher for four days in a dispute about bullying and harassment.

In fact, the High Court held that this surveillance of Ms Sweeney was itself ‘harassment of the plaintiff’ and could easily have tipped her into mental illness if she became aware, especially in a case which saw Mr Sweeney bring legal proceedings against the school on the grounds of bullying and harassment.

The operator of the Luas transport service, Transdev, used a private investigator to follow one of its drivers who was moonlighting as a taxi driver on his wife’s licence. The WRC decided that the decision to dismiss him for gross misconduct was reasonable.

The data protection commissioner has indicated that there must be a strong reason for surveillance before engaging the services of a private investigator.

Takeaway

If you are an employer and you believe a former employee is in breach of a restrictive covenant and you want to engage the services of a private investigator, tread carefully. You may have to justify the use of the investigator later on in any legal proceedings and you will need a sound justification having regard to the privacy and data protection rights of the employee.

Personal injury cases, however, have frequently featured the use of investigators engaged by the insurance company defending the claim and this is likely to continue.

Categories
Employment Claims

The Cost Effectiveness of Bringing Certain WRC Claims

Labour Court Appeals

I took a quick look through the latest decisions from the WRC this morning. There is a facility on the WorkplaceRelations.ie website which allows you to see the latest decisions and the week in question is from the 23rd September 2019 to 29th September 2019.

I only glanced at about 5 decisions but of those 5 two grabbed my attention.

Claim for €70

The first one was ADJ-00021926 which was a claim by a maintenance operative against a property maintenance company. This involved a claim under the Industrial Relations act 1969 for outstanding expenses of €70 due to the worker.

The employer did not attend the hearing and the WRC recommended that the employee be paid the €70 and a further €350 for the inconvenience of having to claim to the WRC.

The problem for the employee, however, is that as his claim was brought under the Industrial Relations Act 1969 the recommendation is not legally binding or enforceable.

The second case that took my attention was a claim for redundancy by a kitchen fitter against a kitchen provider (ADJ-00016292). The employee was successful in the case which was held over 2 days and was awarded €619.

Cost effectiveness

What struck me from both of these cases was the question of cost effectiveness for all parties: the employee, the employer, and the WRC.

In the first case involving the property maintenance company the claim at the outset was for €70 and it was brought under an act that can only result in an unenforceable recommendation; this may or may not be why the respondent did not show up.

The second case ended up, after 2 days, with an award of €619 but when you consider the cost incurred by employee, employer, and WRC over a 2 day hearing you would have to question the cost effectiveness of claims like these.

Perhaps if a claim was below a certain amount it could be dealt with without the need for a hearing; perhaps written submissions by both parties (they are supposed to send these into the WRC in any event) and a desk based decision by the Adjudicator.

I am not questioning the right of any complainant to submit a claim, regardless of the monetary value, and recognise that an employee may wish to bring a claim on a point of principle and to show that he/she was treated unfairly and/or unlawfully by the employer.

But a more cost effective method might be worth considering for claims below a certain monetary value which might be to the benefit of all parties.

Categories
Employment Claims

Is the WRC (Workplace Relations Commission) Biased Towards Employers?

Many visitors to my Facebook page about employment rights in Ireland have a dim view of the WRC (Workplace Relations Commission). Some of these disappointed complainants believe the WRC is useless and in favour of employers.

On this post, for example, you will see comments such as

‘WRC is crap of employers’ weapons’, 

‘A complete shower of pricks…

Told me i was off my head go home.’

‘The wrc weren’t much use to tesco staff.’

‘Biggest mistake anyone can make is to go to WRC – look up decisions and you will see patterns’

‘Kangaroo court at best’

‘The WRC are wortless’

‘They weren’t much use to me either absolutely wasted my time’

Is that the case? Can you, as an employee complainant, get a fair hearing and have a reasonable chance of success? Are the dice loaded against you?

Conspiracy theories can be hard to dispel and unsuccessful claimants to the WRC are understandably disappointed. They blame the system, or the WRC, or the government, or the employer, or the other side’s representative.

They often overlook their own case, however, and the way it was presented. And the facts underlying that case and whether they proved those facts.

Then there is the requirement to prove a breach of the law in respect of the claimant’s employment rights.

Sometimes, but rarely, cases are straightforward. Slam dunks.But they are rare enough, to be frank.

Most times, however, there is at least three sides to the story-the claimant’s, the employer’s, and the truth.

What these disappointed commenters fail to understand is their case was probably unsuccessful because the facts of their case meant they were unable to prove a breach of the law by their employer.

Their case did not fail because the WRC favours employers, it didn’t fail because of some conspiracy, it didn’t fail because the WRC is biased; it almost certainly failed because the complainant failed to

  1. Prove the facts
  2. Prove the law 

Essentially the facts of the case, or the facts that were proved, did not support the contention that the claim they were pursuing was proven.

It is the easiest thing in the world to blame the referee if you lose a match. It is human nature to believe the referee stitched you up and favoured the other team.

It is far more difficult to accept that you were not good enough on the day and the other team were deserving winners.

Similarly, it is easier to blame the WRC generally or the Adjudication Officer or some other target for the failure to prove the claim presented.

But that is not fair on the WRC or the Adjudication Officer who I have always found to be fair, professional, and knowledgeable about employment law.

Last week I wrote about a sexual harassment case at the WRC which attracted an award of €30,000-18 months salary- to the employee and a case of indirect harassment which saw an award of 12 months salary-€38,000- for the employee who lost her job because she was unable to accept moving from part time work to full time.

Conclusion

The truth of the matter about the WRC’s effectiveness for employees is inconvenient and less sensational than the allegation that there is a conspiracy to do down the employee and make sure her claim for breach of her employment right fails. 

The truth is if you present a decent case of breach of the law and prove the facts of your case you will win. And if you fail to do so your claim will fail.

This is the way it should be. You must prove the facts, and you must prove breach of an employment right. 

It’s as simple as that. 

And if you fail, don’t blame the ref. But my experience is that you will get a fair hearing. 

Here are the 2 recent cases to which I refer above and where employees were awarded €30,000 and €38,000:

  1. Indirect discrimination
  2. Sexual harassment
Categories
Employment Claims

Obsessions With Workplace Unfairness and Injustice-the Frustrations for Advisor and Employee

One of the saddest, most frustrating situations I encounter on a frequent basis has to do with obsession. I regularly meet employees who have what appears to be an obsession with a perceived injustice in the workplace.

The sense of grievance, the sense of being wronged and the injustice felt as a consequence can be all consuming and prevent the employee from getting over the issue, putting it in context, putting it behind them and moving on.

I must tell them that life is not fair sometimes, that the goalposts move, the rules change, and there are no guarantees.

But I simply cannot get through to them. They simply won’t accept this and cannot get over it.

And I accept that now, I accept that in many cases this obsession is bordering on mental illness and health.

I am certain that there is a medical term for what I am trying to describe.

This medical term might have a fancy name, might sound very serious but the fundamental fact is this: the obsession with a relatively minor matter in the overall context of a life or a career is unhealthy and exceedingly difficult to deal with.

Difficult for the employee and difficult for me as an employment law advisor trying to help with an employment problem.

I have little knowledge of psychiatric conditions or the best treatments for the various illnesses that overbear a person’s mind from time to time.

But I do know that a relentless, all consuming preoccupation with a ‘wrong’ that the employee has suffered is unhealthy and harmful.

So, what type of things am I referring to?

Let me give you a couple of examples.

An employee who is dismissed is understandably shocked taken aback.

Losing your job can have tremendously serious consequences such as loss of income, inability to pay a mortgage, inability to provide for one’s family, loss of status, loss of self esteem, and so forth. This is a significant life event that can leave long term psychological and emotional scarring.

I recognise and understand this.

This is not what I am talking about.

What I am referring to is the employee who has been correctly subjected to a disciplinary procedure and has received some sanction but simply cannot accept it. He becomes obsessive about the verbal or written warning placed on his file, but which almost certainly disappear off after 6 months and will not rest until it is removed and he gets an apology.

Or the girl who goes for a promotion in her workplace but is unsuccessful and a colleague and rival is appointed to the position instead. The colleague may have a perfectly valid claim to the position but my client cannot see this. She can only see the long hard hours she has put into her career and education, the late nights and overtime, the extra courses and qualifications.

And she simply cannot accept that on the day of the interview the colleague may have just done a better interview or clicked with the particular make up of the interview panel on that particular day.

I could give you countless examples of what most of us would see as relatively minor setbacks, and nothing more.

And yet the employee is looking to go to the WRC, to the Labour Court, to the Civil Courts, to Europe if necessary, to right the wrong.

Sometimes you just must accept that life isn’t fair, ‘stuff’ happens, and how you respond to setbacks and inequalities is entirely a choice you can make.

Conclusion

This is not a trivial matter and is one I encounter on a weekly basis. If you have a loved one who appears to suffer from this problem you need to know it is not unique.