employment law issues in an economic downturn – challenges for employers itba expo 2010 maura...

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


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


UNFAIR DIMISSAL

• Dismissal process

• Genuine Redundancy

– Mr B –v- Mr M (1999)

• 2 years remuneration

• Transparency

– O’Kelly –v- Xsil Limited


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


COLLECTIVE REDUNDANCY

• Consecutive 30 day period

• “establishment”

• Breaches – Offence and fine up to €250,000.00



(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



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.


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)


RIGHT TO A REDUNDANCY PAYMENT

• Fixed term

• Successive temporary contracts

• 104 weeks

– www.entemp.ie

– Form RP50

– Minimum Notice


STEPS IN A REDUNDANCY PROCESS

Redundancy decision

Collective

30 Days

Individual

Fair process



COLLECTIVE

Appoint employee Representatives

Consult with existing reps

Information and consultation process

Notice to employees



Individual

Information and consultation process

Notice to employees


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)


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.


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


LONGER TERM IMPLICATIONS OF IMPOSED CONTRACTUAL CHANGES

• Fundamental contractual terms

• Pay cuts, pay freezes, deferred bonuses and

increments, changes to pension

• Transparency and communication


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


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


LAY OFF/ SHORT TIME

• Contractual position

• Statutory position


PERFORMANCE MANAGEMENT

• Continue to address performance and disciplinary

issues

• Motivation

• Address poor morale

• Opportunity to communicate grievance within workplace


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.


DISCIPLINARY ISSUES

• Due process

• Example P –v- Stud Farm (2008)

• Gross Misconduct

– WO’C –v- Stud Farm(1992)


CONCLUSION

employment law issues in an economic downturn – challenges for employers itba expo 2010 maura...

Documents

employment law issues

employment slide

redundancy process collective

turn steps

turn redundancy selection

collins slide

trained slide

consultation process