EMPLOYMENT LAW ISSUES IN AN ECONOMIC DOWNTURN – CHALLENGES FOR EMPLOYERS
ITBA EXPO 2010
Maura Connolly,
Partner and Head of Employment Law Group
Eugene F. Collins
2 Employment Law Issues in an Economic Down Turn
INTRODUCTION
• Horseracing Ireland
– 2009 – 1,500 job losses
– 2010 – funding cutbacks
3 Employment Law Issues in an Economic Down Turn
INTRODUCTION
• Redundancies
– Individual/collective
– process
• Management of Employment
– Flexibility
• Pay cuts and contractual issues
• Short time working/Lay off
• Employee morale and communication
• Management of Performance
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UNFAIR DIMISSAL
• Dismissal process
• Genuine Redundancy
– Mr B –v- Mr M (1999)
• 2 years remuneration
• Transparency
– O’Kelly –v- Xsil Limited
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REDUNDANCY
• Employer ceases to carry on business for which
employee was employed
• Requirements of business have changed
• Employer requires fewer employees by requiring work
to be done by other employees
• Employer changes the way work is done – employee
not sufficiently qualified
• Employer reallocates work to another employee who is
more qualified or trained
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COLLECTIVE REDUNDANCY
• Consecutive 30 day period
• “establishment”
• Breaches – Offence and fine up to €250,000.00
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COLLECTIVE REDUNDANCY
(a) 5 persons from a work force of 21-49;
(b) 10 persons from a work force of 50 -99;
(c) 10% of a work force of 100-299;
(d) 30 persons from a work force of 300 or more.
• Statutory notice to the Minister for Enterprise Trade and
Employment
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COLLECTIVE REDUNDANCY
Consultation process
The possibility of avoiding the proposed redundancies;
•The possibility of reducing the number of employees
affected by redundancy;
•Mitigation action;
•Selection process;
•Supply the employees’ representatives with all relevant
information in writing.
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REDUNDANCY SELECTION
• Fair and objective criteria
• Skills, length of service, qualifications, conduct
• LIFO where all other criteria equal
• Transparent process
• Consider effect on the remaining employees
• Unfair Selection
– Mr P –v- Stud Farm (1999)
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RIGHT TO A REDUNDANCY PAYMENT
• Fixed term
• Successive temporary contracts
• 104 weeks
– www.entemp.ie
– Form RP50
– Minimum Notice
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STEPS IN A REDUNDANCY PROCESS
Redundancy decision
Collective
30 Days
Individual
Fair process
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STEPS IN A REDUNDANCY PROCESS
COLLECTIVE
Appoint employee Representatives
Consult with existing reps
Information and consultation process
Notice to employees
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STEPS IN A REDUNDANCY PROCESS
Individual
Information and consultation process
Notice to employees
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REDISTRIBUTION OF WORK
• Employee consultation
• Cooperation and acceptance of new responsibilities
• Terms of Employment (Information) Act 1994 – written
statement of terms of employment
• Title and Job description
• Revision of contract
William Donnelly – v- Lease Plan Management (2009)
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FLEXIBLE WORKING CLAUSES
• Change in work role or place of work
• Restrictive interpretation
• Place of Work – Terms of Employment (Information)
Act
• Refusal to relocate
• Employee –v- Stud Farm.
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CHANGE OF WORK LOCATION
• Redundancy Payments Acts 1967 to 2007
• Change of place of work
• Suitable alternative employment
McLoughlin –v- Alliance and Dublin Consumers Gas
company
• Constructive dismissal
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LONGER TERM IMPLICATIONS OF IMPOSED CONTRACTUAL CHANGES
• Fundamental contractual terms
• Pay cuts, pay freezes, deferred bonuses and
increments, changes to pension
• Transparency and communication
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PAY CUTS & OTHER MEASURES
IBEC – Q3/2009 statistics
• 56% of respondents have reduced pay roll by average
of 21%
• Pay freezes in 59% of respondents
• Recruitment freezes in 55%
• Retraining of existing staff likely in 3 months – 45%
• 55% have reduced numbers in 2009
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PAY CUTS & OTHER MEASURES
•Payment of Wages Act 1991
•Breach of contract in Civil Courts
Ulster Bank claim lodged by IBOA in Rights Commissioner
for 1/5 of staff – 82% signed new contracts
Tacit acceptance/Longer term grievance
Trust and transparency key issues
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LAY OFF/ SHORT TIME
• Contractual position
• Statutory position
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PERFORMANCE MANAGEMENT
• Continue to address performance and disciplinary
issues
• Motivation
• Address poor morale
• Opportunity to communicate grievance within workplace
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GRIEVANCE PROCESS – LRC CODE OF PRACTICE
That employee grievances are fairly examined and processed
• That details of any allegations or complaints are put to the
employee concerned
• That the employee concerned is given the opportunity to
respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail
of the right to be represented during the procedure
• That the employee concerned has the right to a fair and
impartial determination of the issues concerned, taking into
account any representations made by, or on behalf of, the
employee and any other relevant or appropriate evidence,
factors or circumstance.
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DISCIPLINARY ISSUES
• Due process
• Example P –v- Stud Farm (2008)
• Gross Misconduct
– WO’C –v- Stud Farm(1992)
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CONCLUSION
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