Dismissals – it’s complicated!
In our recent three-part webinar series, ‘Dismissals – It’s Complicated’, we provided our insights on what employers need to know when faced with the most common, and often tricky, dismissals in Ireland. In this briefing we outline our five key takeaways arising from each webinar, in addition to best practices when conducting an investigation meeting.
Probationary and performance dismissals
- Review contracts
Ensure that the probation clause in contracts of employment complies with the European Union (Transparent and Predictable Working Conditions) Regulations 2022. This sets a statutory limit of six months for probationary periods. On an exceptional basis, a probationary period may be up to 12 months where this would be in the interest of the employee.
- Evaluate
Have a system in place for evaluating and monitoring employees’ performance during probation and make certain that the employee is reviewed in advance of the expiry of the 6-month probation period. Also be conscious of, and ensure compliance with, the contractual notice period or payment in lieu of notice to avoid a claim for breach of contract/ wrongful dismissal.
- Don't wait
Address unsatisfactory performance as soon as it has been identified. Bring the underperformance to the employee’s attention as it arises and document every step with the employee. Where there is no improvement, consider appropriate next steps such as a performance improvement plan.
- Be prepared
Once the employee has the protection of the Unfair Dismissals Acts, performance related dismissals can be slow and time consuming.
- Exits
Do consider, where performance is an issue, whether a mutually agreed exit with the employee may be a more appropriate approach. It is important to remember any such conversations with the employee will not be “off the record” and ensure that you take legal advice before initiating any discussions.
Misconduct related dismissals
- Know your contracts and policies
One of the most important starting points in a misconduct related dismissal is to first address the nature of the allegation. Once this is established, it should guide you to the relevant company policy that this type of allegation should be investigated under. Therefore, employers should regularly review, know, and follow their policies and their employment contracts.
- Suspension: necessity
Employers should carefully consider the necessity for suspension and, if being implemented, ensure that appropriate fair procedures are afforded to the employee who is facing proposed suspension.
- Map
It is important at the early stages to map out who will participate at each stage of the process; that is the investigation, the disciplinary and finally, the appeal stages. It is crucial that there is separation between each stage and, ideally, that a manager of at least commensurate seniority handles each respective stage.
- Records
Employers should ensure that they have a good notetaker present at any meetings they have with an employee and ensure they have the capacity to take and produce an accurate (and typed) record of the meeting.
- Accuracy
Employers should ensure that their invitation and outcome letters are thorough and accurate. These documents are essential. For example, it is crucial to carefully consider investigation findings, to properly set out allegations in the invitation letter and to properly set out the basis for dismissal in your outcome letter. These documents will be crucial, and will be scrutinised, if there is a legal challenge to dismissal.
Redundancy
- Preparation
Redundancies can arise for a number of different reasons but employers should ensure at the outset that the proposed redundancy falls within the definition of redundancy outlined in the Redundancy Payments Acts (which is more nuanced than simply cost-cutting). Employers should remember that this alone doesn’t mean there has been a fair dismissal. You need a genuine redundancy and a fair process to amount to a fair dismissal on the grounds of redundancy.
- Collective process
Before starting a redundancy process, an employer should review the collective redundancy thresholds to ascertain if the number of proposed redundancies triggers the applicable collective threshold. If so, additional obligations arise, including:
(1) notification to the Minister for Enterprise Trade and Employment
(2) engagement and consultation with employee representatives and
(3) a mandatory 30-day consultation period during which an employer is prohibited from issuing any notice of termination
- Selection
Employers need to consider whether selection between employees is required and if so, what selection criteria will be applied. Considerable caution needs to be exercised when drafting selection criteria and scoring employees. While each process is individual, guidance can be taken from WRC and Labour Court case law on what criteria have been held to be fair or unfair in a redundancy process.
- Meaningful consultation
Carefully plan the consultation process, ensuring that a sufficient amount of time and number of meetings are allocated. All alternatives to redundancy should be explored as part of the consultation process and alternative roles should be identified, and if available, proposed to the employee as part of the consultation process.
- Tricky scenarios
Special consideration is required where employees who are impacted by the proposed redundancy are on sick leave, in receipt of income continuance or are on any type of statutory leave. Remember – even though employees on maternity leave are protected from dismissal, it does not mean that they should be excluded entirely from the redundancy process as to do so may result in complaints from them and indeed other impacted employees.
When it comes to allegations of misconduct, a workplace investigation is often a necessary but tricky exercise. At our misconduct related dismissals webinar, our panel of experts shared the best practices when conducting a workplace investigation, inclusive of the following:
- Understand your role. The purpose of the investigation and the investigation meeting is to establish what in fact occurred and to listen to the interviewee. It is not to 'catch them out'.
- Provide all relevant documentation in advance.
- Allow the interviewee to be accompanied to the meeting by a work colleague or trade union representative.
- Have a good notetaker present and ensure they have the capacity to take and produce an accurate (and typed) record of the meeting.
- At the outset of the meeting, remind the interviewee of their confidentiality obligations and confirm that they are in an appropriate, secure location (especially if the meeting is being held virtually).
- Ask open-ended questions
- Follow-up with minutes of the meeting and ask interviewee to confirm their accuracy.
For further information in relation to any of the above, please contact Aoife Clarke, Senior Associate; Emer Murphy, Senior Associate; Éinde O’Donnell, Senior Associate, Ciarán Lyng, Associate; Joe Mahon, Associate, Jason McMenamin, Associate, or any member of the Employment Practice Group.
Date published: 20 July 2023.