Last year I wrote a blog highlighting some of the key issues employers should be aware of when it comes to incapacity dismissal and noted that, in 2015, sickness absence cost employers in Ireland a massive €490 million.
 
A recent case in Ireland - wherein the Labour Court overturned a €17,000 award by the Workplace Relations Commission (WRC) to a former employee of Dunnes Stores who was dismissed after a period of absence of three years – has prompted the need for a fresh look at the complicated legislation surrounding absenteeism.
 
Here at the HR Department, we would like to unpack some of the reasons why the Labour Court overturned the WRC award in this case. Hopefully this will provide some valuable tips and ensure employers and employees know where they stand when it comes to absenteeism.

So, here are three of the most important points to be taken from the Court ruling:
 
1. Employers are not obliged to ‘officially’ find out if someone is unable to work.

The court in this case ruled that if an employee is not fit to perform the duties they have been hired to perform, this can give rise to dismissal. While this may seem evident, what was important to note was that the court also ruled that it was not the role of the employer to establish if the employee could or couldn’t work.
 
Instead, as was the case here, the employer can simply believe the worker when they say they are unable to work.  In other words, an employer is not required to send an employee to an independent medical assessment if they believe the reason for incapacity is genuine.

2. Employees who are ill should, where possible, give an indication of when they may be back to work - otherwise they may face dismissal.

Should an employee be unable to work, it is imperative they try to indicate to the employer when they may be able to return to work. It is an employee’s duty to say when they might be able to work again and if they fail to do so, employers may have grounds to dismiss them. In this case, the court argued that the worker, despite having plenty of opportunities to do so, had not made it clear when she would be able to return to work, thus justifying her dismissal.
 
Clearly an employer can’t be expected to keep a position vacant indefinitely. Therefore, employees need to be diligent when it comes to keeping an employer up to date with their ongoing situation regarding their absence. Equally, returning to work after a long period of absence can be a tough and daunting task. Employers should consider ways in which they can help employees who are returning to work in order to make the process as smooth as possible. The key to avoiding problems here is both clarity and open lines of communication between employer and employee.

Finally, it is also worth noting that, under the Employment Equality Act, employers are obliged to make reasonable accommodations for staff with disabilities, and employees on long-term absenteeism could fall into this category.

3. Employers shouldn’t include maternity leave as a period of absence.
 
In this case, Dunnes Stores included the claimant’s maternity leave in its calculation of her three year period of absence – something which was criticised by the court. The critical point here, therefore, is that maternity leave, even during a prolonged period of absence, should not be considered ‘absenteeism.’ Also, with regard to maternity leave, employees should remember to apply in writing to your employer for maternity leave and give your employee 4 weeks notice before you wish to return to work. Clearly this needs to be a two-way street – employees need to inform their employers of maternity leave, and, in turn, employers must be astute enough not to include this as a regular period of absence.   

Absenteeism is a complex issue that can have the potential to lead to costly litigation if it is not dealt with effectively. This case goes to show how an employee’s continued absence, without specifying when they may be back to work, has the potential to lead to dismissal. The important thing to remember is that the more in touch an employer is with their employee (and vice-versa) the less likelihood there is of complications when it comes to absenteeism. It is beneficial for both employees and employers to be well versed in this area, not only to avoid complications, but also to harness a company culture and workplace environment that is as smooth, efficient and understanding as possible.
 
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Retirement age is not a topic many business owners spend much time mulling over. The general assumption amongst most is that it’s the same as the pension age (now 66 in Ireland). The rationale behind this is understandable. After all, who wants to work any longer than they have to?
 
With this in mind, Irish businesses for years have included retirement clauses in their employment contracts, stipulating the end of a worker’s employment when they reach that golden number.
 
However, new legislation, passed back in December is changing all that. The Equality (Miscellaneous Provisions) Act 2015, which came into effect in January, makes a number of amendments to employment equality legislation. Most notable among these are the changes to the compulsory retirement age.
 
The net result of this is that to include a compulsory retirement clause, an employer must be able to objectively justify it. Retirement clauses in existing employment contracts will, for all intents and purposes, become void unless they adhere to this requirement. And in situations where no compulsory retirement age is set, employees will be entitled to work-on until they see fit to retire. Failure to comply with the amendments could see business owners being brought before the employment equality tribunal and the labour court for unfair dismissal.
 
The fact that we’re living longer, the cost of living is higher, we have more debts and a creaking Government Pension Fund mean more and more people are choosing to work past their pension age. This new legislation can be seen as a coup for equality campaigners, as it's not forcing people to work longer, but giving them the option to do so if they wish.
 
However, while greater equality is something all business should strive towards, the ramifications of this amendment for business owners and employers are quite serious. In businesses with no compulsory retirement age, or those that cannot objectively justify it, such issues may include:
 
Succession Planning Challenges
Motivated, driven, younger employees may quickly find themselves hitting a promotional ceiling where they can go no further until more senior, older members of the workforce decide to step down from their position.
 
The lack of a clear career path within an organisation may result in a business’s top talent leaving and joining competitor companies, where their ambitions can be realised. For smaller businesses, this could have a hugely detrimental impact.
 
Inability to Attract Talent
Running parallel to the issue above, is the challenge is attracting talent. Young professionals may end up shirking smaller businesses, or those with an ageing staff, for fear of stalling their career progression.
 
Reduced Productivity
For many who decide to continue working past retirement age, it will be because of the passion they have for the job they do. However, there will also be those who hang on, doing the bare minimum, just so they can claim their pay-cheque at the end of the month. The drain this could have on productivity, not to mention employee morale, is something employers need to give serious consideration to.
 
3 Steps to Protecting Your Business from Challenges

1. Ensure that a specific retirement age is clearly stated in employment contracts and this this age has been set in agreement with employees.
2. Provide an objective justification with the specified retirement age. These justifications must achieve a legitimate aim and be reasonable and proportionate in their application. Some examples of objective justification may be on the grounds of health and safety, intergenerational fairness and dignity (where issues of ability and under-performance might otherwise be brought into question).
3. Stipulate in the clause that the employer reserves the right to review the compulsory retirement age depending on the changing needs of the business.

 
Finally, employers must fully consider the repercussions of retaining an employee past the specified age of retirement. While there is nothing in the legislation to prevent an employer from offering a fixed term contract, provided it is objectively justified, it sets a precedent for other employees to challenge the normal age of retirement in the future.
 
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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.

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.

Bullying in the workplace continues to be a major human resources issue in Ireland. For small to medium business owners discovering that a member of your staff is being bullied can be a major cause of stress and anxiety. More significantly, if it is not addressed in a timely and appropriate manner it can lead to damage to your business’s reputation, costly legal disputes and a loss of earnings.

Let’s set the scenario: A member of staff comes to you to complain that they are being bullied by a fellow employee and that they are considering leaving the business as a result of this behaviour. What do you do?

Firstly, there are two issues that you should be concerned about in this situation that are linked but should be dealt with separately;

1.       Properly investigating the bullying allegation

2.       Ensuring that if the staff member leaves that you don’t face an action for constructive dismissal.

Unless you have experience in these matters and are happy that you will be able to deal with the investigation, you should consider getting advice from a HR consultant before embarking on taking any action.  However, if you do decide to proceed on your own here is a seven step outline of the process you should go through:

1. Refer to your policy on bullying that you should have in your handbook or safety statement and should have been given to every staff member.  If you don’t have a policy you are already in a difficult situation as you will have to investigate the allegations without a written policy or procedure in place that could result in problems if you do find yourself defending a claim for constructive dismissal. 
2. Sit down with the staff member who is making the allegations and take a full and detailed statement from her under the following headings:

·                     Confirmation of who she is making the allegations against;

·                     Full details of the particular incidents she is complaining about and

·                     Whether there are any witnesses to the alleged incidents.

Difficult as it may be you should resist drawing any conclusions or committing yourself to any particular course of action before you have had a chance to talk to all those concerned. 

1. Depending on the seriousness of the bullying allegations and the state of mind of the staff member making the allegations you might also want to consider if it is appropriate to offer her time off, on full pay, whilst you are carrying out your investigation. You should then, if practical, put the allegations into some form of a statement for the employee to consider and sign. You should also assure her that she should remain on as an employee until the investigation is completed and a decision is made as to what action to take, if any.

1. Following this, talk to the person who has been accused of the bullying behaviour.  This is clearly going to be an awkward situation and it is not uncommon for the person to express disbelief and shock at the allegations.  Again it is important that you give as much information on the allegations so that the person has time to consider them and respond accordingly.  You should also make it clear that you are merely conducting an investigation into the allegations and that this is not a disciplinary process.  Again, if possible you should get the staff member to prepare some form of statement in response to the allegations.  As with giving the alleged victim an option of time off, you may also have to consider a suspension on full pay of the person accused of the bullying if you feel the situation is serious enough for that course of action. 

It is essential that you assure the staff member who has been accused of bullying in the workplace that the suspension option is only because the work circumstances mean that it would be difficult for the two individuals to work together and not part of a disciplinary sanction.

1. You should also take statements from any other members of staff or otherwise that either of the employees offer as witnesses.
2. Once you have completed the process of taking the statements you will then have to consider if there are grounds to take the next step which is a disciplinary investigation.  The difference with this investigation is that you are taking an action on a staff member under your disciplinary procedure.  Again, if you don’t have a written procedure in place you have to make sure that you carry out the investigation fairly and give all parties as much information as possible as to what is being alleged and an opportunity to answer any claim made against them.

1. Once the disciplinary investigation is completed, depending on the outcome of the investigation, you will then have to take the appropriate action against the staff member.  For example, if the allegations are found to be true and to be at the higher end of the scale you may have to consider a dismissal or a suspension.  For lesser offences you could issue a written or verbal warning on the clear understanding that if there is a re-occurrence that the possibility of dismissal is high.  This process will be a lot easier if you have in place a proper written procedure on how a disciplinary process will work, irrespective of the type of conduct by the staff member that requires action by the employer.

As I mentioned at the start, investigating and addressing the accusation of bullying in the workplace is one issue. As an employer it is important to ensure you minimise your exposure to claims of unfair dismissal. The best way to do this is to clearly demonstrate a fair and rational disciplinary procedure. It should clearly set out the basis for the disciplinary action and the range of penalties that can be imposed. It should also provide for some form of internal appeal mechanism.  This is another reason why an employer should consider having another senior member of staff or an outside person carry out the initial investigation as the employer can be the person to hear the appeal.  Any allegations should be clearly explained to the employee concerned and they should be given a chance to respond fully to these allegations.  An employee has the right to be represented, if they wish, and if appropriate all allegations should be set out in writing.

Following on from this if an employer can show that a fair process was followed then it would be more difficult for a disgruntled employee to resign from her job and then bring an action for constructive dismissal.  A lot of constructive dismissal claims, where an employee resigns but claims that they were left with no option, are grounded on the allegation that the investigative and/or the disciplinary procedures followed by the employer were flawed and did not follow the employers own policies or if there were no policies did not follow the rules of fairness and natural justice.

Given the relative size of a lot of small businesses the reality is that investigations into these types of allegations are difficult, particularly as both the accuser and the accused often work in close proximity to one another.  The employer can also find it difficult because they don’t want to have to take sides or be seen to make the wrong decision.  If you feel that you are unable to be objective you should consider getting another senior person unconnected with the situation to carry out the investigation or alternatively get someone from outside the business to do it who has some experience in these matters.  That way you will certainly be able to show that you took the allegations seriously and had a full and thorough investigation into the allegations.

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.