I meet a large number of employees on a daily and weekly basis. The vast majority of them have something bothering them in connection with their job or workplace.
A small number are simply seeking clarification about an aspect of employment law or their contract of employment or something related.
But most of them have some issue that is eating them up and causing them stress and anxiety. Some issue which causes them confusion and uncertainty and maybe even damages their confidence and sense of self worth.
This may go so far as to have the employee questioning whether to stay in the job or move on or take some other course of action such as a career change.
Occasionally, however, I encounter a small number of employees who seem to have fallen in love with their grievance. They appear to have developed a highly attuned sense of being wronged.
These persons appear to be happier being in conflict with their employer, especially if they have actually been wronged as a consequence of the employer making some mistake in dealing with them, rather than sorting out the issue and moving on.
These employees, rather than being committed to a quick resolution of the problem that has arisen, want to prolong the situation and want to nurture their sense of being ill used. Some even want to watch the employer squirm and bend over backwards to accommodate them.
Fair enough. Human nature is human nature and we all, from time to time, take satisfaction from watching the other party abase themselves to try to make amends for some slight or wrong.
But this can be a dangerous game, one which can backfire. The long term relationship between employee and employer can be damaged beyond repair, especially if the employer has taken great steps to sort out the problem.
I only encounter this on an infrequent basis. But there appears to be a healthy number of individuals who would rather drag their grievance around with them like a clanking chain than arrive at a solution and move on to normal resumption of the employment relationship.
This is a mistake which should be guarded against. You need to pick your battles and ensure that you do not make the mistake of winning a battle and losing the war.
It is the long game you need to keep in the forefront of your mind, not some short term win which may carry hidden costs.
Are you concerned about the use of cameras in the workplace?
If you are a recent European Court of Human Rights decision
will disappoint and dismay you.
The case López Ribalda and others v Spain was
an appeal from decision of the lower Chamber that the Convention for the
Protection of Human Rights and Fundamental Freedoms had been breached.
Article 8 of the Convention provides for respect for the
person’s private and family life:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
In this Spanish case five workers had brought a case to
Europe that their right to privacy was breached when they discovered there was
hidden surveillance cameras in their shop.
The footage gathered by the covert cameras formed the basis
for the dismissal of the employees due to losses and theft in the business.
The European Court of Human Rights decided that the rights
of the workers were not breached and there was “weighty justification” for the
use of the hidden cameras.
The Court also stated that it was for individual states to
decide on laws, if any, covering the topic of video surveillance in the workplace.
The legal principles involving video surveillance in the workplace
The court said that the principles set out in the Barbulescu
v Romania case were the correct principles to apply when it came to video
surveillance. These principles involve 6 questions:
Has the employee been notified of the video
What is the extent of the monitoring?
Are there legitimate reasons for the cameras?
Are there less intrusive ways of achieving the employer’s
What are the consequences of monitoring the
Are there safeguards for the employee?
In the López Ribalda and others v Spain case the
monitoring of the employees was at an area of the shop where the general public
was being monitored-the checkout area-and it was not unreasonable to monitor
such an area where the employee’s expectation of privacy would not be the same as,
for example, in toilets or employee’s locker areas.
It was also noted that the surveillance only lasted 10 days
and ceased as soon as the objective was achieved-this was to identify which
employees were responsible for the theft and losses occurring.
It was accepted by the Spanish court, and the European court
of human rights, that it would have defeated the purpose of the surveillance if
the employees were advised about it in advance. Therefor the right of the employee
to be told must be counterbalanced by the legitimate objective of the employer
to find out who is responsible for theft.
The Court also decided that this right to be told was only
one factor when the decision had to be made about the proportionality of the
employer’s action was to be assessed.
The employee’s right to privacy in the workplace
is not absolute
The employer’s action must be viewed in the
light of the specific facts of the case and whether the steps taken by the
employer were in pursuit of a legitimate aim and were necessary and
The Supreme Court has confirmed the Court of Appeal decision
regarding the absence of a right of an employee to legal representation in a
workplace disciplinary investigation and hearing. This case involves an Iarnród
Eireann employee, Barry McKelvey, who faces a disciplinary hearing over
allegations of misappropriation of property in the workplace.
At the proposed disciplinary hearing arising from the
investigation into allegations of theft the employee, pursuant to his contract
of employment, is allowed representation by a work colleague or a trade union representative.
Mr McKelvey wished to be allowed legal representation and
the Court of Appeal had decided there was no such right (read
about that Court of Appeal case here). He appealed the decision to the
Supreme Court who agreed with the Court of Appeal, albet for different reasons.
Supreme Court November 2019
The supreme Court refers to section 14 Unfair Dismissals Act
1977 which states
14.—(1) An employer shall, not later than 28 days after
he enters into a contract of employment with an employee, give to the employee
a notice in writing setting out the procedure which the employer will observe
before and for the purpose of dismissing the employee.
(2) Where there is an alteration in the procedure
referred to in subsection (1) of this section, the employer concerned shall,
within 28 days after the alteration takes effect, give to any employee
concerned a notice in writing setting out the procedure as so altered.
(3) The reference in subsection (1) of this section to a
procedure is a reference to a procedure that has been agreed upon by or on
behalf of the employer concerned and by the employee concerned or a trade
union, or an excepted body under the Trade Union Acts, 1941 and 1971,
representing him or has been established by the custom and practice of the
employment concerned, and the references in subsection (2) of this section to
an alteration in the said procedure are references to an alteration that has
been agreed upon by the employer concerned or a person representing him and by
a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971,
representing the employee concerned.
(4) Where an employee is dismissed, the employer shall,
if so requested, furnish to the employee within 14 days of the request,
particulars in writing of the grounds for the dismissal, but in determining for
the purposes of this Act whether the dismissal was unfair there may be taken
into account any other grounds which are substantial grounds and which would
have justified the dismissal.
The Supreme Court went on to comment that
What should be involved, instead, is a search for the
truth with the employee enabled to make a contribution to that process by
stating whatever explanation is available to him or her. After all, while this
is not a two-stage process where rights are afforded at a second stage, as in
McNamee v Revenue Commissioners  IESC 33 and the cases therein cited,
once a complaint is validly made to the Workplace Relations Commission, the
burden of justifying dismissal is on the employer through the calling of
evidence, and the parties may there be legally represented.
The Supreme Court also observed that many contracts adopt
the Industrial Relations Act 1990 code of practice on grievance and
disciplinary procedures, as set out in SI 146 of 2000. These procedures do not
allow legal representation and the place to start, and end, an examination as
to what is allowed is the contract of employment.
The Court also pointed to the case of Mooney v An Post
 where the Court held
If the contract or the statute governing a person’s
employment contains a procedure whereby the employment may be terminated, it
usually will be sufficient for the employer to show that he has complied with
The Supreme Court notes that a difficulty may arise where
the contract is silent as to what procedures are to be used but suggests a
sensible approach would be to use the procedures set out by the Industrial
Relations Act 1990. In this case the contractual entitlement was to be
represented by a trade union official or a work colleague.
The Supreme Court went on to hold that the was not entitled
to an injunction preventing the disciplinary hearing from going ahead in the
absence of legal representation as it held,
A recent decision of the High Court may be of interest to
you as it involved a teacher commencing High Court legal proceedings as a
consequence of being asked to attend a disciplinary hearing.
The allegation against the teacher concerned her conduct
towards school staff including the school Principal. The procedures for the
suspension and dismissal of teachers provide for the Principal to deal with the
issue at Stage 1.
The teacher complained that as the allegation against her
concerned her conduct towards the Principal the Principal should not be
involved in the procedure. The Board of Management did not agree but eventually
it was decided that the Principal would step aside and an independent person
would be asked to deal with the stage 1 procedure.
So, the teacher went to the High Court seeking to prevent
the disciplinary procedure from going ahead on two broad grounds:
The Principal was biased and had prejudged the
The teacher also argued that the procedures did
not apply to her as they required the concurrence of the Minister for Finance
The Board of Management’s position was that they were merely
applying the well-established, negotiated procedures which were agreed between
teachers, unions, the Patrons and management bodies, and the Department of
The Board also took the view that this was a matter with
which the High Court should not involve itself as it was a minor matter which,
at worst, would result in a verbal warning which would disappear of the
teacher’s record after 6 months.
The Board also argued that section
24 of the Education Act, 1998 allows the Department of Education to
determine the terms and conditions of employment of teachers and a board of
management can suspend and dismiss teacher in accordance with the procedures
agreed between the Minister of Education, the boards of management, the patron
bodies, and the trade unions.
24.—(1) Subject to this section, a board may appoint such
and so many persons as teachers and other staff of a school as the board from
time to time thinks necessary for the performance of its powers and functions
under this Act.
(2) The numbers and qualifications of teachers and other
staff of a school, who are to be paid from monies provided by the Oireachtas,
shall be subject to the approval of the Minister, with the concurrence of the
Minister for Finance.
(3) A board shall appoint teachers and other staff, who
are to be paid from monies provided by the Oireachtas, and may suspend or
dismiss such teachers and staff, in accordance with procedures agreed from time
to time between the Minister, the patron, recognised school management
organisations and any recognised trade union and staff association representing
teachers or other staff as appropriate.
(4) Pending the agreement of procedures provided for in
subsection (3), the procedures applied in the appointment, suspension and
dismissal of teachers or other staff immediately before the commencement of this
section shall, after such commencement, continue to be applied.
(5) The terms and conditions of employment of teachers
and other staff of a school appointed by a board and who are to be paid from
monies provided by the Oireachtas shall be determined by the Minister, with the
concurrence of the Minister for Finance.
(6) Where all or part of the remuneration and
superannuation of teachers and other staff of a school is paid or is to be paid
from monies provided by the Oireachtas, such remuneration or superannuation
shall be determined from time to time by the Minister, with the concurrence of
the Minister for Finance.
(7) Where, at the commencement of this section the
employer of the teachers or other staff in a post-primary school is a person or
body of persons other than the board of the school, then subsections (1), (3)
and (5) shall apply as if the person who or the body which, at such
commencement and from time to time thereafter, is such employer, is substituted
for the board as therein referred to.
(8) Except in the case of an agreement as provided for in
subsection (3), nothing in this Act shall have the effect of altering, after
the commencement of this Act, the terms and conditions of teachers and other
staff of a school under which they were employed before such commencement.
(9) This section shall not apply to teachers or other
staff of a school which is established or maintained by a vocational education
The Judge in the High Court held that any perception or
allegation of bias or absence of fair procedures was adequately dealt with by
the appointment of an independent person to investigate.
He also held that the procedures agreed between unions and
boards of management formed part of the teacher’s contract of employment and were
applicable and in force until they were changed by the Department of Education
or were held to be invalid in legal proceedings.
Judge Binchy also noted that a verbal warning was a minor
penalty and, provided there was no problem with her conduct, would be gone off
her record after 6 months.
In conclusion the High Court held that the matter was of
such a minor nature that the procedures adopted by the Board of Management were
not amenable to judicial review and he refused the application.
Dmitri was suspended from work for allegedly assaulting a
colleague. Susan was suspended on pay while an investigation was being carried
out into approximately half a dozen allegations of misconduct.
When they came to me for advice they were very much focused
on the procedure adopted by the employer to date. Too focused, in my view.
Let me explain. They had done a bit of research online about
disciplinary procedures in the workplace, the entitlement of the employee to
fair procedures and natural justice, the importance of any investigation and
disciplinary procedure being carried out fairly, and so on.
That’s fair enough.
But it is an easy mistake to get preoccupied with employment
rights. These rights may stem from the constitution or statute or the contract
But remember the employer, too, has rights. And the right to
investigate alleged wrongdoing in the workplace is one of them.
Now, Dmitri and Susan in their initial discussion with me
were focused on seeking any imperfection or infirmity in how the employer had acted
up to that point. I believe that was a mistake and they might have been better advised
to address the substantive allegations against them.
But you must not ignore the substantive allegation against
you and you must spend as much time addressing this as seeking imperfections in
the procedure adopted by the employer.
Because they were so focused on finding imperfections in how
the employer had acted in applying the procedure that they had overlooked the
allegations against them.
Even though they have rights to fair procedures in respect
of the application of the disciplinary procedure I do not believe perfection is
required of the employer. Sure, it must be sound and fair and transparent and
in accordance with the procedures set out in the workplace.
But the absence of perfection, or a small infirmity in the
steps taken, may not be enough for an employee to ground a claim for unfair
dismissal on the basis that the procedure lacked natural justice if the allegation
is a serious one such as assaulting a colleague to telling a customer to stop “wrecking
my head” and “do one”.
My advice is if you are facing serious allegations like Dmitri
and Susan is not to get too preoccupied looking for flaws in the procedure
adopted to the detriment of addressing the serious allegation against you.
Because employers, especially small ones with finite
resources, will not be held to a level of perfection in enforcing discipline in
Yes, you are entitled to fair procedures; yes, you are
entitled to natural justice; yes, you are entitled to fair play.