As every employer will know, employee rights are a minefield that needs to be navigated carefully. One wrong step could result in very costly legal proceedings. Nowhere is this truer than in the case of unfair dismissal. In the last month alone numerous cases of unfair dismissal have been reported in the media, from the Dunnes Stores worker who sold alcohol to a minor to the customer services representative at Oxigen who was dismissed for using expletives in an open office.

Also remember in a unfair dismissal claim it is presumed the employee was unfairly dismissed unless the employer can prove otherwise!

So how do so many companies end up in this position? While every case is different, there are two points at which the majority of businesses fall down:

1.       Clearly outlining the disciplinary process in the contract of employment and staff handbook

2.       Poor implementation of the disciplinary investigation

1.       Your Contract of Employment and Staff Handbook

From the time that employment commences, each staff member should be provided with a contract, which they must sign, and staff handbook that clearly stipulate the terms and conditions of their employment. Amongst these terms and conditions are the disciplinary procedures adopted by the company for dealing with issues of performance, bullying, negligence, misconduct and so forth. The procedure serves as a guideline, not just for the employee but for the employer too, that can be implemented when necessary, ensuring that a fair, unbiased and systematic series of series of steps.

Here are some considerations when drafting your employment contract and staff handbook:

a.       How long a probation should I have?
b.      Will I pay employees on sick leave and if so for how long?
c.       Do I have a clear job description?
d.      Will my employees be working at different locations?
e.      Who will carry out disciplinary investigations?
f.        Do I need a CCTV policy?
g.       Do I need a social media policy?
h.      What are the employees statutory leave rights?
i.         Do employees need to keep some annual leave for Christmas or Easter

2.       Poor Disciplinary Investigation Process

While it is important to clearly state the disciplinary process in your staff handbook, it is equally important that it is implemented effectively. As part of the process, an employer should carry out a disciplinary investigation, even in cases of apparently ‘obvious guilt’ or where there is an admission of guilt. With this in mind, an investigation should always be carried out prior to any disciplinary action if an employer is to ensure it does not fall foul of the principles of fairness and natural justice established by case law.

Remember, as an employer you must be able to demonstrate that you genuinely believe that the employee is guilty and that this belief is based on reasonable grounds, after having carried out as much investigation into the matter as is reasonable in all the circumstances of the case. A flawed or incomplete investigation can undermine the entire disciplinary process, leading to claims of unfair dismissal, costly legal battles and hefty pay-outs that often cripple smaller businesses.

Below are some points, provided by UK based commercial law firm Hill Dickinson, that every person carrying out the investigation should consider before commencing:

1. What’s the problem? Clearly identify the allegation to be investigated.
2. Independence and impartiality - ensure the investigating officer is independent: they should not have any previous involvement in, or knowledge of, the matter.
   
3. Open mind - the investigating officer should keep an open mind. Their task is to look for evidence which weakens, as well as supports, the employee’s case; it is a fact finding exercise.
4. Swift investigation - ensure the investigation is commenced and concluded without unreasonable delay; it is important to establish the facts and put the allegations to the employee promptly before recollections fade.
   
5. Expectations - where significant delays in concluding the investigation are anticipated, this should be notified to the affected employee and where possible a timescale for completion given.
6. Preserving evidence - the investigating officer should consider what evidence or documentation they might require. Where evidence is likely to perish or be removed or destroyed this should be gathered as a priority.
   
7. Fair investigatory meeting - interview the ‘accused’ employee to establish his/ her version of events; give the employee advanced warning of the meeting and time to prepare. The employee should be made aware of the allegations against them, preferably in writing and be provided with any documentation that the investigating officer wants to speak to them about.
8. Representation - be aware that, although there is no statutory right for an employee to be accompanied at an investigatory meeting, the right may apply under the company disciplinary procedure or by reason of custom and practice.
   
9. Witnesses - interview witnesses, sometimes more than once if necessary. Employers need not interview all available witnesses once a fact has become clearly established.
10. Record keeping - if possible, have someone accompany the investigating officer to interviews so they can take a note of the interview allowing the investigating officer to focus on the questions. Ask the witnesses to read through the notes and confirm they are a true reflection of the conversation by signing and dating them.
    
11. Confidentiality - witnesses should be advised not to discuss the investigation with other employees or third parties and, where appropriate, be reminded of their legal duties of confidentiality.
12. Impartial reporting - after collating the evidence, including statements and relevant documents, the investigating officer should draft an investigation report setting out a summary of the evidence including any inconsistencies. They should not draw any conclusions: that is the role of the disciplinary panel.
    
13. Recommendations - depending on what the employer’s disciplinary policy says, it may be within the investigating officer’s remit to recommend whether the matter should proceed to a disciplinary hearing.

The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.

In recent years, it has become increasingly prevalent for businesses in Ireland to hire interns, often as a reliable and effective measure of accessing talent, without necessarily incurring costs and legalities often associated with recruiting a full time employee.

Under Irish law, there is no legal definition of an intern. Although internships are regulated in United Kingdom and United States, there has been no governmental legislation put in place in Ireland to ensure rights and obligations of both the business and hired intern.

Some fundamental concerns businesses face before offering an internship include whether or not the intern is deemed an employee of the business and if the said intern is entitled to be paid during their time at the company.

Below we look at important factors to consider before engaging interns:

Internship Agreement

Whilst there is no legal requirement to have an internship agreement, it is often a valuable way to clearly define duties and responsibilities of the business and the intern. It should be clearly stated which tasks will be undertaken by the intern, the duration of the internship, whether the intern is to be paid or offered expenses. It is also important to note in the agreement that the intern is not an employee of the business, however, should it come to it, employment tribunals will often overlook this point (see point below).

Is the Intern an Employee?

There can often be confusion as to whether an intern is deemed an employee of a company based on duties carried out. Generally, an intern will become involved in learning about the running of the business. Often, interns are given specific work to complete, however some may only shadow employees within the business.

It is imperative to recognise that, depending on the work carried out by an intern and the relationship established between the two parties, there may be a possibility for the intern to be considered an employee of the company by an employment tribunal or courts. In such circumstances, an intern would be entitled to the same legal protection and rights as established employees in the business. Such rights include annual leave, a cap on hours that can be worked, an entitlement to be paid minimum wage and minimum notice of dismissal.

When assessing whether the intern is an employee of the business, the below factors should be considered:

·         The level of control exercised by the business over the intern

·         The extent to which the intern is integrated into the business

·         If there is an obligation for the business to provide work, and in return the intern to perform such work.

Should Interns be Paid?

Depending on activities carried out, it could be required that a business has an obligation to pay interns, under a contract of employment, the current minimum wage of €8.65 per hour. A contract of employment under the National Minimum Wage Act 2000 is defined to include a “contract whereby an individual agrees with another person to do or perform personally any work or service”.

Businesses should be aware that if an intern is doing work of value for the company, and has a similar level of supervision and responsibility as the rest of the workforce, the intern has the right to be paid the national minimum wage. However, if an internship is purely educational or an intern is shadowing employees then the issue of payment is less likely to arise.

If the business wishes to hire an intern on an unpaid basis, it is advisable that the internship is short and educational, and that the intern does not replace a former employee.

In all circumstances an intern should be compensated for reasonable expenses incurred during the internship.

Induction Training

Training should be given to an intern to introduce them to relevant policies and procedures of the business. Although an intern is not an employee, it should be clearly explained that the intern is to comply with established policies and procedures within the company.

Most importantly, the business should be aware of the health and safety legislation and its obligations to interns. If taking on interns is a regular occurrence, it is advised that reference is made to interns in the company’s risk assessments and safety statements.

Protect Confidential Information

It is imperative to make interns aware of confidential information and the extent of their obligations to protect such information they may have access to. With the ever increasing online sharing of personal information, it is essential not to underestimate the value of addressing the protection of confidential information in the intern’s induction. A document should be signed by the intern confirming an understanding that sharing or using confidential information is inadmissible during the course of and beyond the termination of the internship

Protect Intellectual Property

Finally, the company should ensure that any intellectual property produced by an intern during the internship is protected and that the business asserts ownership over such property. It may be best to include a clause to this effect in the internship agreement or have the intern sign a more comprehensive agreement.

The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.

While it may not have received huge media attention, the Protected Disclosures Act, which came into effect last month, holds some major legal ramifications for businesses that many owners and CEOs may not be aware of.

In short the Act provides legal protection for workers who disclose wrongdoing is the public, private and non-profit sectors. It is far more robust than any legislation which preceded it, with the protections extend beyond the usual definition of employees to cover the likes of contractors, former employees, trainees and interns too. Another interesting aspect of the new legislation is that retrospective disclosures may also be made, meaning that a disclosure made before the date of the act (15th July 2014) may still be protected. It’s not yet clear how far back this cover will go.

Impact on Employers

 All businesses should have in place a clearly stated reporting policy and set of procedures (usually outlined in the staff handbook) that employees can follow if they believe any relevant wrongdoings have occurred or are occurring in connection with their employment. These businesses will need to review their existing policies to ensure they fulfil the requirements of the Protected Disclosures Act, while shoring up any gaps that may leave them exposed.

As an employer it is in your best interest to introduce these new policies and educate your staff on them. By encouraging workers to come to you with any information they believe to indicate relevant wrongdoings, you are creating an environment where staff feel comfortable to voice their concerns, while limiting the potential for such matters to become external and out of your control. Should workers feel that they cannot go to their employer to make a disclosure, they can go beyond the workplace if they can satisfy certain criteria. This may include the media, government ministers or legal advisors.

Penalties for Employers

If an employee is dismissed for making a protected disclosure, they can be awarded compensation of up to five years' remuneration for unfair dismissal. This is a significant leap from standard employment law awards, which are subject to a two year cap. Also, an employee who claims to have been dismissed or threatened with dismissal for having made a protected disclosure can apply to the Circuit Court to restrain the dismissal.

Developing and Implementing Your Whistleblowing Policy

While the intricacies of every business must be taken into account, here are six tips that apply to every business in developing and implementing their whistleblowing policy:

1.       It should provide a step by step guide for employees, stating clearly that whistleblowing concerns are distinguished from worker’s grievances, .

2.       It should provide examples of relevant disclosers (as outlined in the Act), illustrating the types of concerns workers may raise.

3.       It should state the various disclosure avenues available to employees, should they feel that unable to voice their concerns to management, and the various criteria the must meet in each circumstance.

4.       It should be clearly expressed that the organisation take malpractice very seriously and the identity and confidentiality of the whistleblower will be respected.

5.       Once the policy has been developed, employers should utilise whatever communications tools – intranet, newsletter, departmental meetings, etc. - they have available to inform employees and address any concerns they may have.

6.       Training should be provided to those responsible for receiving disclosures from workers.

The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.