The RDJ Employment Team recently held a series of employment law breakfast briefings across our offices in Cork, Galway and Dublin. Areas covered in these briefings were protected disclosures, retirement ages and misconduct dismissals and our Employment Team addressed the most pressing concerns for our clients on these issues and provided practical advice on how to navigate these complex and developing areas.
We have provided six key takeaways from the series below, based on questions posed to our team at the events.
Protected Disclosures (Amendment) Act 2022
Q. Given that the company's HR person may be involved in a grievance/disciplinary process and appeal process, is it best that the company's HR person not be the "designated impartial person", as provided for in the Protected Disclosures amending legislation, assigned to deal with the protected disclosures?
A. The Protected Disclosures (Amendment) Act 2022 (2the Act"), which becomes effective on 1st January 2023, indicates that the designated impartial person may be internal or external. It does not exclude specific individuals from holding that role. The Act also states that this person may also be the person who was the recipient of the protected disclosure. The statutory responsibilities of the impartial designated person under the Act are as follows: maintaining communication with any person makes a protected disclosure, carrying out an appropriate assessment of the alleged wrongdoing, taking action to address the relevant wrongdoing where there is prima facie evidence that a relevant wrongdoing has occurred and providing feedback to the person who made the disclosure within the timeframe set out in the Act.
There is no bar in the Act to a HR person taking on this role, However, given that the HR person may be required to be involved and/or assist in any other process which may be required to address the protected disclosure, such as an investigative and/or disciplinary process, it may be preferable to appoint a different person as a designated impartial person to allow HR to take up involvement in any required process as the matter unfolds.
Q. Does an employer need to deal with anonymous disclosures?
A. Section 7 of the Act states that there is no obligation on an employer to deal with anonymous disclosure 'but a person may, if he or she considers it appropriate to do so, follow up on the matter the subject of an anonymous report'. On a practical basis, it can be difficult to investigate anonymous complaints unless there is some form of documentation which can form the basis of an investigation, for example, financial reports. Having said that if the disclosure is sufficiently serious, the employer may decide to undertake an investigation or some form of HR or financial audit to assure themselves that there is no merit to the complaint. If these steps are taken, they should be documented in the event a dispute or claim arises in the future.
Even where an anonymous complaint is not going to be pursued, the employer should alert the respondent to the complaint to the existence of it, as the anonymous complaint may fall to be released to the respondent under a data subject access request. The RDJ Data and Cyber Security Team will be available to advise on any DSARs received and will be able to guide employers on what data should be released under any such request.
Q. If the terms of our life insurance policy require us to cease this benefit at a specific age, for example, on our retirement age of 65 years of age, is it acceptable to offer the employee a fixed term contract post the mandatory retirement age with no life insurance benefit?
A. It is common for life insurance schemes or pension schemes to have an eligibility criterion, which can include an age threshold. The benefit provided by the third party will no longer be available to the employee once they move outside the eligibility criterion. The employer should be able to rely on such an eligibility criterion as an objective justification for offering a fixed term contact without the particular benefit.
Q. If we allow certain employees to work past our mandatory age of retirement, will that set a precedent and causes difficulties when we try to enforce our mandatory retirement age?
A. If an employer allows employees to remain on beyond the mandatory retirement age which has been established and notified to employees, it can leave the employer open to challenge by other employees that there is, in fact, no mandatory age. It is extremely important that where an employer is met with a request from an employee to remain beyond the mandatory retirement age, any such request is dealt with in accordance with the WRC Code of Practice on Longer Working. Where the request is granted, the extension of employment should be facilitated only by way of a fixed term or specified purpose contract, for which there must be an objective justification. For example, if an employee was working on a specific project and held very particular skills and that project was due to conclude within a relatively short period, for example, 12 months, then the employee could be facilitated to remain on beyond the mandatory retirement age under a fixed term contract of employment for a 12-month period.
Q. Does an employer have to give an employee a reason when dismissing during the probationary period for misconduct?
A. If an employer dismisses an employee during probation for misconduct, there is a legal obligation to afford the employee fair procedures. That might involve a fact-finding investigation followed by a disciplinary procedure. The legal position is different when dismissing during probation for performance reasons. In that regard, the case of Donal O'Donovan v Over-C Technology Limited and Over-C Limited confirmed that there is no entitlement to fair procedures for dismissal by reason of performance during probation. See our Insight on this judgement and the significance of it here.
In circumstances where conduct and performance overlap, or where there is a dispute regarding the basis of the dismissal, the safest course of action can be to dismiss an employee without providing a reason on the basis that 'things simply did not work out'. It is open to an employer to dismiss an employee on notice during their probation period once this is clearly provided for in the contract of employment. If the employee has less than 12 months' continuous service, to include their notice period, they will not have the protection of the Unfair Dismissals Acts 1977 – 2015 and will be unable to take unfair dismissals claim unless they fall within one of the limited exceptions for the 12-month service requirement, for example, protected disclosures or pregnancy. However, it is still open to an employee to take a claim under industrial relations legislation (where any recommendation issued is non-binding in nature but open to publication) or the equality legislation where the employee does not have 12 months continuous service. Therefore, legal advice should be obtained before termination.
Q. As a sole trader or small business, how can you manage an investigation, disciplinary and appeal process where the legal advice is that these processes should all be separate and not managed by the same people? What aspects should you outsource?
A. In order to comply with fair procedures, a different person should be involved in each of the investigation, disciplinary and appeal processes. A small business can consider using external parties to deal with the different stages of the process, for example, their accountant or an external HR consultant. As the investigation stage is a key stage of the process, it is often valuable to have this stage completed a person experienced in this area such as a qualified HR consultant. Furthermore, the disciplinary stage should be managed by the business owner themselves, as this is the stage where a sanction is decided upon. The appeal of any sanction imposed could also be dealt with by an external party.
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.