MHC lawyers warn firms on dismissal risks

Employment lawyers at Mason Hayes & Curran (MHC) say that they have seen an increase in the number and range of employees applying for injunctions after dismissals on grounds of misconduct.

At a webinar on navigating effective fair dismissals (29 February), attendees heard tips on how and when employers could deal with dismissals of employees on grounds of misconduct, performance, or capacity.

'Modest salaries'

MHC employment partner Kady O’Connell told the webinar that injunctions had previously been used mainly by staff in relatively senior and well-paid posts, but there had recently been an increase in the number taken by employees on “modest” salaries.

She also said that employers often did not realise that a lack of fair process could also expose them to claims at the Workplace Relations Commission (WRC).

Strong protections

Senior associate Jessica Bielenberg reminded employers that workers with more than one year’s service had strong protections under Irish legislation, and that all employees had constitutional protection, which was particularly relevant in conduct-related dismissal.

She said that employers should always follow a fair disciplinary process, and that adhering to the statutory code of practice on disciplinary grievance procedures was the standard against which they would be measured.

Under the code, any misconduct allegations must be put to the employee, who must also be given the opportunity to respond, and the opportunity to be represented at any hearing.

An employee should know exactly what the allegation against them was – and the source of the allegation.

‘No surprises’

Bielenberg added that the stages of any disciplinary process must be progressive – reaching the final stage only after verbal and written warnings.

She listed some of the mistakes that employers sometimes made during the process – including not following their own policies, delaying dealing with the issue, or allowing investigators to go beyond their role.

The MHC lawyer warned that a failure to provide an employee with all the relevant information could make the employee more likely to submit a data-access request, which could be expensive and time-consuming.

“No stage should come as a surprise to the employee,” she stated, adding that the outcome should never be pre-determined.

“It shouldn’t look like a tick-box exercise,” she warned.

O’Connell added that anything put in writing might need to be disclosed to the employee.

Performance

Associate Katie Doyle (small picture) told the webinar that it was “tricky” for employers to safely dismiss staff for under-performance.

She said that employers should manage such issues informally at first, then move to a more formal process – including performance-improvement plans (PIPs) that set targets for improvement.

The next stage of the process is an invitation to a disciplinary hearing, in accordance with fair procedures, followed by a first warning or sanction.

Doyle said that employers were often surprised at how lengthy the process, adding that it could take six to 12 months to go through the PIP stages before a dismissal could take place.

PIPs should be ‘measurable’

She told the event that employers often made mistakes by not addressing performance-related issues as the arose, or in a timely manner, while line managers could sometimes issue warnings or sanctions without going through the disciplinary process.

Doyle warned that employees needed to be made aware of the repercussions of failing a PIP, adding that the metrics of such plans must be “as objective and measurable as possible”. Subjective elements, such as accusations of having ‘a bad attitude’, should be avoided, she said.

Doyle told the webinar that employees could bring a claim to the WRC under unfair-dismissal legislation if they had at least 12 months’ service but added that staff with less service could also refer a trade dispute to the WRC for investigation.

She pointed out that the WRC could award compensation of up to two years’ remuneration and could order the reinstatement or re-engagement of an employee.

Incapacity

The webinar also covered dismissals on grounds of incapacity, disability, or fitness to work. The MHC team pointed out that the definition of ‘disability’ was “exceptionally broad” under Irish equality legislation.

The lawyers pointed to employers’ duty to ‘reasonably accommodate’ any employee with a disability, if this did not impose a ‘disproportionate burden’ on the firm.

Employers must show that they have considered and offered all reasonable accommodation, and that they have consulted the employee.

They must also give fair notice that action is being considered.

Occupational-health report

Bielenberg said that the WRC would want to see an up-to-date occupational-health report, as well as “thorough and comprehensive enquiries” by the employer to accommodate the employee.

She said that, in such cases, it was “premature” to consider dismissal for at least six months, although clear medical evidence that the employee was not able to return to work could change the timeline.

In cases involving disability or incapacity, employers faced the potential for claims under employment-equality legislation under nine grounds of discrimination.