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Employment Law
The most common areas of employment disputes in which our barristers are involved include: internal investigations, unfair dismissal, employment equality or discrimination, bullying or harassment at work and protected disclosures.
Internal Investigations
Internal employment investigations often need to be undertaken on an urgent basis, depending on the nature of the issues to be reviewed.
For employers
Our barristers can conduct independent investigations on behalf of employers, ensuring that fair procedures are adopted and that all parties can have confidence in the independence of the barrister conducting the investigation. Employers need to ensure that employees’ rights are observed in the context of any internal investigations. However, it is equally important that employers comply with their own internal procedures and natural justice and fair procedures.
Instructing an employment law barrister to conduct an internal investigation ensures that the highest level of professionalism is applied at the outset. A process which is fair and complies with all legal requirements is less likely to result in later legal action by an employee.
For employees
Internal investigations can be highly stressful for the employee involved. Obtaining the advices of a barrister at the outset can ensure that an employee puts their best case forward and raises the best possible defence. A barrister can advise whether the process proposed by an employer is fair and can help employees challenge an unfair process or allegation.
Unfair Dismissal
Unfair dismissal can occur where an employee has been dismissed unfairly, either because there was no good reason for the dismissal or because the process followed was unfair. An employer is required to justify a dismissal as on the basis that it was caused by:
- The capability, competence or qualifications of the employee
- The conduct of the employee
- The redundancy of the employee
- The employee being unable to work or continue to work in the position which s/he held without contravention (by employee or employer) of a duty or restriction imposed by or under any statute or instrument made under statute
The process leading to a dismissal must also comply with fair procedures, natural justice and a company’s own internal policies. When an employee’s work conditions are so intolerable that he/she must terminate his/her employment, this can give rise to a claim for constructive dismissal which is another form of unfair dismissal.
An employee’s dismissal will be found to be unfair if was due to:
- Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hour
- Religious or political opinions
- The employee having made a protected disclosure
- Race, colour, sexual orientation, age, or membership of the Traveller community
- Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
- Availing of rights under legislation to maternity leave, adoptive leave, carer’s leave, parental or force majeure leave
A person who is unfairly dismissed is entitled to bring a claim and awards of damages are calculated by reference to their pay. Our barristers can advise employees and employers as to whether a dismissal is likely to be found to be an unfair dismissal.
Equality & Discrimination at Work issues
The law protects all employees from discrimination at work on grounds of gender, ethnicity, nationality, disability or sexual orientation. Employers must ensure that the workplace is free from discrimination.
Equality and discrimination issues can arise in the conduct of employees towards each other, in company policies and decisions such as hiring or promotion. Employers are required to adopt ‘reasonable accommodation’ to enable disabled employees to carry out their roles.
Bullying and Harassment at Work
An employer has a duty to investigate all claims of bullying and harassment at work and must deal with all such claims using fair procedures in accordance with the employer’s grievance and disciplinary procedures. Our barristers can advise a person who has been subjected to bullying and harassment as to whether the employer has complied with their obligations and whether the conduct reaches the threshold for further action.
An individual or employer who has been the subject of an allegation of bullying can also obtain the services of a barrister to advise on whether the conduct complained of meets the threshold of bullying and harassment. Our barristers can advise on the appropriate response to allegations.
Employment Contracts and Terms of Employment
Our barristers can advise both employers and employees in relation to written terms of employment so as to prevent confusion as to rights and duties of both parties in their employment relationship. Barristers can draft new contracts, amend existing contracts or advise whether a proposed course of action is permitted by the existing contract. Contracts of employment frequently provide that an employer can make reasonable changes to the employees terms and conditions of employment. This can sometimes lead to conflict and a lack of clarity. A barrister who is experienced in contract interpretation can provide quick and clear advice on such issues.
Redundancy and re-organisations
Where employees are made redundant, they are entitled to be paid two weeks’ salary for every year of service plus one week’s pay on top of that sum. An employer may sometimes add to this on voluntary basis.
There are very strict rules for making someone redundant. Redundancy is designed to be about a role or position becoming redundant, not a person. It is designed to be an impersonal process and cannot be used to get rid of troublesome employees. Employers should seek advice before embarking on a redundancy process to avoid unnecessary claims for unfair selection for redundancy being made. If an employee has been selected unfairly for redundancy or a redundancy process has been flawed then a claim for unfair dismissal can arise.
Transfer of Undertakings
Where one company or business is taken over by or merged with another company, the employees of that company are usually entitled to have their rights, entitlements and accrued service carried forward in to the new company. This applies in specific circumstances which can sometimes be unclear. Our barristers can advise employees or employers who are involved in a business merger as to whether the transfer of undertakings rules apply and if so, what are the rights of the effected employees.
Restrictive covenants and confidentiality clauses
Most employment contracts now have clauses requiring employees to maintain confidentiality and preventing an employee from moving to a competitor within a specific geographical area and within a specific period of time. There is a significant case law on this area as there a quite a number of exceptions in respect of confidentiality and restrictive covenant clauses.
In certain circumstances, these clauses have been found to be unenforceable. Our barristers can advise employees and employers in the drafting and interpretation of these agreements. Our barristers can also assist in advising an employee as to whether a potential new employment opportunity is in conflict with a restrictive covenants or confidentiality clause.
This is a rapidly developing area. The Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 restricts the use of non-disclosure agreements (‘NDA’s’) seeking to prevent an employee from disclosing an allegation that they experienced discrimination, harassment, sexual harassment or victimisation.
Protected Disclosures
Irish law provides very strong protections for employees who make protected disclosures, i.e. reporting wrongdoing in the work place. The law prohibits penalisation or punishment of an employee for making a protected disclosure and also protects against dismissal for making a protected disclosure.
The maximum award for an employee who is dismissed for making a protected disclosure is double the award for an employee dismissed for other reasons. An employee who is dismissed can also make an application to Court to maintain their employment / pay until their case is determined.
Our barristers can advise an employee who has made a protected disclosure or employers who are responding to a protected disclosure.