by Patrick Walshe, Partner in the Employment and Pensions group at Philip Lee
Ireland has a working population of about 2.4 million people. Given the size of our workforce, it’s a positive sign that the statistics show that registered employment disputes in the Workplace Relations Commission every year measure in the low thousands.
For the most part, Irish employers and employees are able to work in relative harmony. That said, every employer will experience problems of a disciplinary nature at some point or another.
In a minority of cases, there is only one solution: the employer and the employee parting company. In many cases, the employee will take the initiative and resign. In others, however, the employer will have no option but to take steps to terminate the contract of employment.
It’s a problem that most employers will encounter sooner or later: how do I get rid of a problem employee? As everyone knows, the legal regime in Ireland is highly protective. Irish employees benefit from a number of statutory protections.
The most significant is the rule that, once an employee has more than 52 weeks of employment, their dismissal is automatically deemed unfair by law.
If an employer wants to dismiss an employee it is necessary to: a) identify an objective reason justifying the dismissal, and b) follow a fair procedure.
In practice, initiating disciplinary procedures, for misconduct or poor performance to give an example, can be time-consuming, stressful and something most employers wish to avoid.
That said, the only safe route to dismiss an employee is to follow a fair process. This, among other things, must give the employee the opportunity to improve.
Of necessity, any kind of performance management process is going to take time -most likely months. Faced with this, employers often ask if there is a way of truncating the process.
The answer is “maybe”. The only legally safe way to dismiss an employee is to follow the accepted procedural route. That said, an employer who does not want to embark upon a process has some options:
1. First of all, there is nothing to prevent an employer from sitting down with the employee and indicating that, if there is no improvement in performance, the employer will take the disciplinary route.
These conversations have to be handled carefully. There can be no suggestion that the employee is being sanctioned outside of a disciplinary process, for example.
There is nothing to prevent an employer, however, from indicating that the disciplinary route is next in the absence of improvement.
2. Sometimes these conversations can go in a direction favourable to the employer. There is no concept of “off the record” conversations with employees in Ireland.
An employer can’t come straight out and ask the employee to leave. Such a conversation could be cited by the employee in any future claim.
If the employee registers dissatisfaction with the relationship and asks if there is a severance package on the table, however, there is nothing to prevent an employer from engaging in a discussion about the employee leaving.
3. Another option is workplace mediation. If the employer and employee are at loggerheads, there is nothing to prevent an employer from proposing mediation.
This is a process whereby an independent third party attempts to bridge the gap and resolve the dispute.
Very often, an experienced mediator will realise early on in the process that there is no point trying to preserve this relationship and will try to gently point the parties in the direction of termination.
If agreement can be reached in the course of mediation, that will often be a good result.
4. Lastly, every employer has the nuclear option: to simply terminate and take the consequences. Needless to say, the nuclear option should be approached with great care.
An employee who is summarily terminated, without the employer following a process, will have an extremely strong claim in the Workplace Relations Commission.
In such a case, the employer is going to find it difficult to advance any kind of sustainable justification for the dismissal, because no process was followed.
In extreme cases, an employee may be able to secure a High Court injunction restraining their dismissal. Such applications are still relatively rare, however, and tend to be confined to high-level executives.
The nuclear option is one which may be palatable in circumstances where the relationship simply cannot continue any longer and the employer is prepared to pay the price of termination. It is, however, very much a last resort.
All told, while short cuts exist, the only safe option for an employer who wants to get rid of a problem employee is to follow the law.
Ensure there is a sound basis for the dismissal. Where appropriate, give the employee an opportunity to improve. In all cases, follow a fair procedure and don’t try to take short cuts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Originally published by Business Post, November 15th 2020.
About the author
Patrick Walshe is a partner in the employment and pensions group at Philip Lee.
Patrick’s experience in non-contentious employment law ranges from drafting contracts of employment and employment policies to advising on industrial relations disputes. He also advises employment law clients in relation to health and safety issues, transfers of undertakings, equality issues and independent contractor arrangements.
Patrick’s experience in contentious employment law runs from prosecuting and defending Employment Appeals Tribunal claims, participating in Labour Relations Commission conciliations to litigating cases in the courts. He also advises in relation to bullying and harassment claims, internal disciplinary investigations and unfair/wrongful dismissal claims.