Irish Law and the Onus on Fair Procedures - Term Paper Example

Irish Law and the Onus on Fair Procedures Employees’ rights have been addressed by the Protection of Employment Act, 1977, the European Communities (Safeguarding of Employees Rights on Transfer of Undertakings) Regulations, 1980; Safety, Health and Welfare at Work Act, 1989; Transnational Information and Consultation of Employees Act, 1996; and the Organisation of Working Time Act, 1997. In Irish law there is a considerable body of legislation that addresses unfair dismissals, employment protection, and also stipulates the norms that are to govern grievances, discipline and issues that are disadvantageous to individual employees (Code of Practice: Grievance and Disciplinary Procedures). The Employment Equality Act 1998 to 2008 stipulates that it is against the law for any employer to indulge in discrimination, based on gender, marital status, sexual orientation, religion, age, disability, race; in all areas of employment. Moreover, employers are required to prevent any form of harassment of their employees. In the absence of such initiatives, the employer will be held liable for discrimination. Thus a wide range of issues have been specified, which render the employer liable to a much greater extent. The Equality Act of 2004 makes it mandatory for employers to ensure that disabled employees are provided with equal access to employment. Moreover, employers have to provide training to their disabled personnel (Goldrick). However, an employer should not be made to bear a disproportionate burden, on account of these initiatives. The employer must fulfil these requirements; and engenders structural adjustments, changes in the working hours and the allotment of work. This Act has made it very difficult for employers to abstain from accommodating the special needs of disabled employees. Section 2(1) of the 1998 Act, has defined disability as ‘the total or partial absence of a person’s bodily or mental functions including the absence of a part of a person’s body’. It has also been defined as malfunction due to physical deformity, illness or disease, which impairs proper judgment and the thinking process in individuals (Goldrick). This Act has served to encompass a wide range of physical and mental conditions, regarding the existing, as well as prospective employees. The Employment Equality Act 1998 provides equal employment opportunities to all citizens. There is a pressing need to fortify this legislation, so that it can adequately address the genuine needs of the disabled employees. It is to be stressed, that this legislative initiative was in response to the social directive issued by the European Union (Rory 2009). However, Ireland adopted a piecemeal approach to this issue, and introduced four amendments to this legislation, between the years 1998 to 2008. It also issued seven Statutory Instruments, which are collectively referred to as the Employment Equality Acts 1998-2008. There are other legislative initiatives, like the Pensions Act 1990-2004 Part VII, the Health and Safety and Welfare Act 2005 and the code of practice on the prevention of workplace bullying, which deal with the various issues in this area (Rory 2009). It has been contended that this legislation has imposed an enormous bureaucratic burden on employers. This legislation proved to be of greater benefit to the employees, in comparison to the employers. This has been highlighted in the instance of small and medium enterprises; which are required to maintain a weekly record at the workplace, regarding the number of hours worked by each employee per week. In addition, details will have to be provided to the inspecting authorities, in respect of the wages paid to the employees, when they work on holidays (Rory 2009). This initiative will definitely go against the interests of the employer. The following case law reveals that the Irish laws are chiefly concerned with protecting the interests of the employees. The Employment Equality Act of 1998, states at paragraph 16(3) (b) that the employer has to take reasonable measures to accommodate the needs of disabled employees. Subsection (c) permits an employer to circumvent the above stipulation, if the additional costs prove to be exorbitant. Section 34 (3) of this Act, specifies that there will be no unlawful discrimination if the costs were to increase excessively, in the event of disallowing such discrimination. Under such circumstances, discrimination will be permitted (Department of Economic and Social Affairs 2006). This is piece of legislation is unique, as it provides some relief to the employers. This relief is subjective and depends on the circumstances of each case. In addition, the Equality Act 2004, implements the provisions of the EU framework Directive. It simplifies the process of claiming compensation on grounds of disability. The 1998 Act had allowed employer discrimination against disabled employees; if the cost of the necessary adjustments were substantial. At that juncture, the new EU Directive came to the rescue of the Irish government. Since EU Directives take precedence over the Irish Constitution, the government could enact legislation that rescinded its earlier stance, in this matter. The new Act requires employers to accord the same treatment to all their employees, unless it imposes a disproportionate burden on the employers. Section 4 (a) (1) (b) permits claims by those associated with disabled persons (New equality law extends workers’ rights, 2004). This has considerably extended the liability of employers, and many employees who are carers of the disabled have filed discrimination suits against employers. As a consequence, the employers have to countenance claims by the associates of employees with disabilities. In Ireland, the notion of unfair dismissal was established by the Unfair Dismissal Act 1977. It deals with the claims of employees, who allege unfair dismissal, and an employee can seek a remedy, if he has been dismissed in an unfair manner by the employer (Unfair Dismissals Act 1977 (amended 1993), 2009). A successful claim, in respect of unfair dismissal will be awarded one of the following; compensation, present loss, future loss, pension loss, reinstatement and re engagement (Unfair dismissal, 2009). A complaint against unfair dismissal can be made to the Employment Appeals Tribunal, in form TIA, within a half year of the dismissal. This can be extended up to a year, in the presence of exceptional circumstances. In respect of dismissal that falls within the purview of employment equality legislation, the complaint is to be made to the Equality Tribunal (Victimisation at work in Ireland, 2009). The requirement for a year’s service, for preferring a claim of unfair dismissal is waived in instances involving dismissal for having claimed adoptive leave, maternity protection, carer’s leave legislation or parental leave. Dismissed part time and fixed time employees, whose duration of service is less than 1 year, can approach a Rights Commissioner (Victimisation at work in Ireland, 2009). This also applies, if the duration of service is greater than a year. The procedures that aim to address these issues have to be founded on the principles of natural justice. Some of these doctrines are a fair scrutiny of employee grievances; presenting the concerned employee with the particulars of the complaint against him; providing the employee with an opportunity to adequately respond to these complaints; and permitting the employee to be represented during the proceedings. In accordance, with these principles, the complaints have to be in writing, their source has to be provided to the concerned employee, or such employee should be permitted to question or confront a witness (Code of Practice: Grievance and Disciplinary Procedures). The objective, in general, should be to arrive at a rapprochement, betwixt the employee and his immediate superior, and to resolve the grievance of disciplinary issue. Whilst specifying the rules of the organisation, the consequences of violating rules, has to be clearly stipulated. This is of great importance, in respect of breach of discipline. The latter could consist of a preliminary oral caution, followed by a written warning, and a final warning in writing. Thereafter, there could be suspension without pay, transfer, demotion, very severe disciplinary action that falls short of dismissal, and finally dismissal (Code of Practice: Grievance and Disciplinary Procedures). Harassment is defined as unwanted conduct, in the Employment Equality Acts. Specifically, sexual harassment is described as unwanted conduct that is of a sexual nature. The outcome of such conduct is to engender an environment that is intimidating, violative of dignity, degrading or offensive. (Harassment at work in Ireland, 2009). The despicable of bullying at work is addressed by the Employment Equality Acts. A complaint against sexual harassment or bullying at work should be made within 6 months of such harassment. On providing a reasonable cause, this time limit can be extended to 1 year. A guardian, parent or some other person who acts on behalf of the complainant, can file a complaint, in lieu of the victim, if the latter’s disability precludes such activity (Harassment at work in Ireland, 2009). In Quigley v Complex Tooling and Moulding, the court held the employer liable for the stress caused to the plaintiff due to workplace bullying. In this case, Quigley was granted compensation to the tune of €75,000 for the mental stress suffered by him, at the workplace. This stress was occasioned by the deliberate breach of duty by the employer, according to which he was to prevent workplace bullying. There is considerable monitoring of employees’ online activity by their employers. A substantial number of incidents involving employees who had falsely reported sick, and had been discovered in their deception, have recently come to light. Popular social networking websites, like Facebook, are being monitored by employers, in order to apprehend employees who visit these websites, during office hours (Bosses using internet to monitor activities of staff, 2008). In Stone v Lancaster Chamber of Commerce, an employee was bullied out of her job, by a manager of the firm. Her claim of constructive dismissal was upheld by the tribunal, as it considered this to be manifestly unfair. Similarly, in Gilbert v Midland Bank, Gilbert had been subjected to sexual harassment by his female manager. This claim was upheld by the employment tribunal (Action to tackle bullying at work). Age discrimination is rampant in Ireland, and the case law of this nation, displays the entire gamut of employment relationships. Some of the areas covered by the case law are discriminatory advertising, as depicted in Equality Authority v Ryanair; access to employment as shown in O’Connor v Lidl Ireland; dismissal as demonstrated in A Firm of Solicitors v A Worker; vocational training as in Byrne v Fds; promotion as shown in Gillen v Department of Health; harassment as depicted in A Complainant v A Company, victimisation as in O’Byrne v The Department of Public Enterprise; mandatory retirement, which was demonstrated in Leahy v Limerick City Council; and severance package, as dealt with in Perry v Garda Commissioner. However, most of the cases were centred on issues relating to access to employment and promotion (Sargeant 2008: 108). In Ciara O’Brien v ComputerScope Limited the employer brought force to bear upon the complainant. The objective was to force the latter to withdraw her compliant regarding discrimination on the basis of gender and age. The Equality Officer declared that she had been treated adversely by the employer for demanding equal pay (Ciara O’Brien v ComputerScope Limited). Consequently, compensation to the tune of €10,000 was awarded to her, in this regard. The case of Traynor v Ryan dealt with whether a procedural lapse had been committed by the High Court, in its decision. The latter had upheld the defendant’s decision to refer the matter to a Minister of Health committee, with regard to the alleged professional misconduct of the plaintiff (Tottenham 2003: 101). In Traynor v Ryan, the plaintiff contended that the defendant’s decision was to be repealed; on the basis of two essential factors. First, four of the five letters of complaint, were couched in neutral language, which by no stretch of the imagination, could be construed to be complaints, in the context of the disciplinary proceedings. Since, the basis was the totality of the complaint, the fact that some of the letters were not in the nature of a complaint should serve to rescind the defendant’s decision. Second, the plaintiff’s right to fair procedure had been violated, as it was unwarranted for the defendant to conclude that she was guilty of misconduct, when the objective was to refer the matter (Tottenham 2003: 101). The High Court was unimpressed with the plaintiff’s argument and set aside her claim. In respect of the first contention, the court held that the hospital management had to perforce ensure the competence, capability and good conduct of consultants (Tottenham 2003: 101). Consequently, it was justified in investigating serious issues, even in the absence of any complaint. In respect of the second contention, the court held that the defendant did not enjoy the function of arriving at a finding of misconduct. This had been clarified in OFlynn v Mid-Western Health Board, wherein it was held that the task was merely to decide whether the complaint was fit to be referred to the committee. Albeit, the defendant had exceeded his brief, this could not prevent him from making a referral to the committee (Tottenham 2003: 101). The court opined that cases of this genre were attempts at procedural wrangling, which apparently, sought to delay proceedings. In Minnock v Irish Casing Company Ltd, an employee sought an interlocutory injunction from the court against a disciplinary investigation to be launched by his employer. In this case, the employer had refused to elaborate on the nature of the investigation to be conducted. Moreover, the court considered, whether natural justice had been violated, as the manner of conducting the investigation, made it apparent that the employer’s motive was to gather evidence that would prove to be detrimental to the employee (Compton & Dillon 2007: 81). In Redmond v Ryanair Ltd, the employee had not been provided with prior information, regarding the objective of the investigation; had been kept in the dark, Vis – a – Vis the further issues to addressed; had not been provided with the statement of the witnesses, until the time of her dismissal; and most inequitably, she had not been permitted to cross – examine any of the witnesses (Turner 2007: 26). In Mehigan v Dyflin Publications Ltd, dealt with the dismissal of an employee, whose computer contained electronic mails of a prurient nature. This was ruled against, as the employer had not specified any policy regarding the use of electronic mail (Mullan 2003: 21). In 58 Named Complainants v Goode Concrete Limited, the defendant, a construction company; had a workforce that hailed from different nations and whose members spoke different languages. 58 of these employees, from six different nations, initiated legal action against their employer on the grounds of racial discrimination. The Equality Tribunal confirmed these shortcomings and declared that the employer had indulged in racial discrimination; and imposed suitable penalties (Fagan & Hyde 2008). In addition, the Tribunal directed the employer to maintain a record of disciplinary meetings, and to train the managers to better understand the rules and provisions of the Employment Equality Acts 1998-2007. Accordingly, the company provided translations of the procedures and documentation to its employees. It also made arrangements for translators, while provide training on the provisions of the legislation (Fagan & Hyde 2008). This decision had a far reaching effect on Irish employers; and served to impose a significant additional burden, in respect of commercial entities that had hired foreign nationals. In Berber v Dunnes Stores it was established that an employer could accept, prima facie, that an employee was fit to work, if the latter had been so certified; unless, there was just cause to discount such certification. In the event of a breach of duty, the employee was to establish that it had caused him harm. Therefore, employers must prevent discrimination towards their employees in the course or terms of employment, in the context of the nine grounds mentioned in the equality legislations, including disability (Berberv Dunnes Stores Limited 2009). This places an onerous burden on employers. Reasonable accommodation is a legal intervention that benefits the disabled. This has been enjoined, in Ireland, via the Employment Equality Act 1998 and the Equal Status Act 2000. The provisions of the Employment Equality Act of 1998, compels employers to do all that is within reason to accommodate the needs of the disabled (Department of Economic and Social Affairs 2006). These laws impose a heavy burden on employers, who have to invest substantial amounts and resources. In British Sugar Plc v Kirker, a partially visually disabled chemist had been selected for redundancy. The managers had contended that there were certain tasks to be performed by the chemist that could prove to be dangerous to him, due to his poor eyesight. The employment tribunal declared this dismissal to be discriminatory. (Grant 2001: 89). Accordingly, the EAT had awarded £103,000 as compensation. In Maher v Irish Permanent Plc, Laffoy J held that an employee is entitled to natural justice. The employer had investigated allegations against the plaintiff; without providing him with a copy of the accusations against him. In addition, he had not been apprised of his right to have legal representation, during the hearing. Furthermore, the investigation was conducted in the absence of the accused, when the latter had failed to attend the proceedings. This was deemed to be a breach of natural justice, and the court set aside his dismissal. A similar refusal to reinstate to the same post had been made in Harte v Kelly (Maher v Irish Permanent plc). In effect, this decision, served the purpose of an injunction against the dismissal. In OMalley v Aravon School Ltd, the plaintiff was appointed as joint principal with her husband. Subsequently, in 1996, the plaintiff had been appointed the sole principal of the defendant school. Thereafter, the employer was dissatisfied with the manner in which the terms of the employment agreement were being implemented; and instructed her to attend a meeting, in that context. Subsequent to that meeting, her service was terminated. Interlocutory relief to suspend the dismissal was not granted, as the school’s Board of Governors had lost confidence in her performance (OMalley v Aravon School Ltd). It was held that a servant could not claim specific performance of an employment contract. As the school principal had lost the confidence and trust of the employers, it was not desirable to continue her appointment. In this case, the employers had provided her with a reasonable opportunity to explain her conduct, and after careful consideration, they had decided to terminate her position (Mallon & Bolger 1997). This decision serves as an important exception to the general rule of claiming specific performance. In Maher v Jabli, the plaintiff claimed damages for the alleged harm done to him by the management. He had been working as a shift manager, where the work pressure was enormous. After three months at this post, he had proceeded on sick leave. On rejoining duty, he had been shifted to a job that entailed much less stress. This job, in his opinion, was in effect a demotion, which caused him severe mental anguish. The court was required to consider two issues. First, the employee had been subjected to unreasonable stress at work. Second, the employee had been humiliated by the employer (Maher v Jabil). The court ruled that it was not reasonably foreseeable that these outcomes would have resulted from the decisions of the employer. In Waters v Commissioner of Police for the Metropolis, Lord Slynn stated that the employer had to supervise the acts of his employees. If the acts of an employee during the course of employment, cause physical harm and psychological stress to others, then the employer must take the necessary steps to prevent such acts. If an employee has knowledge about the harm, and if he does nothing to prevent it, then it would be tantamount to a breach of his duty towards that employee (Waters v Commissioner of Police for the Metropolis). This decision imposes a burden upon the employer to monitor the workplace behaviour of his employees, and to ensure that incidents of bullying, discrimination or sexual harassment do not transpire at that place. In McGrath v Trintech, Laffoy J had held that liability for injury was to be imposed, only after establishing that the employer could have anticipated the complained of injury, well in advance (McGrath v Trintech). The principal test to be employed was to determine whether the defendant had maintained norms that were inferior to those expected of a reasonable and prudent employer. The afore mentioned discussion reveals the fact that Irish employment law overemphasizes the concepts of natural justice, fair procedure and due process, resulting in a more burdensome responsibility on employers, in respect of their employees. The attempt by the Irish Supreme Court to mitigate the burden placed on the employers was obliterated by the European Union, via its Directive that ensured that employers could not circumvent liability for any sort of discrimination against their employees. Therefore, it can be surmised that the Irish Employment Laws, are partial to the employees. 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