Keeping employment disputes out of court should be the aim of all

Keeping employment disputes out of court should be the aim of all

Employers are advised to pay more attention to workplace investigations as a means of heading off trouble at the pass, writes Kyran Fitzgerald.

Industrial disputes make headline news, but increasingly, it is the lawmakers and judges charged with interpreting the law who are really making waves in the workplace.

Collective action has given way to the assertion of individual rights.

Employees increasingly have resort to the courts, or to the Workplace Relations Commission, which spends much of its time in determining personal disputes.

The EU is also driving much of the changes aimed at empowering people in the workplace while the European Court of Justice has further complicated matters by throwing down the gauntlet to the national authorities.

The world of work is itself changing rapidly. A new generation of so-called millennials — along with many older parents — are keen to secure flexible hours while at the same time reducing the scope for exploitation.

The legislature has responded with the enactment of a new law, the Employment Miscellaneous Provisions Act, aimed at protecting workers in precarious employment. The act became law in March and deals with issues such as “zero-hour” contracts.

Many employers in areas such as retailing, food delivery and tourism have adopted flexible working hours in response to the 24-hour consumer culture.

Flexible hours suit the needs of younger people, and those with caring responsibilities, but all too often, workers have been strung along.

The act provides for a minimum payment for people working less than one-quarter of their contracted hours.

Employers who penalise workers for asserting their rights will themselves face a range of sanctions.

The Government has also moved to introduce mandatory gender pay gap reporting and a Gender Gap Information Bill was published earlier this year.

Employers will be required to publish information on the mean and median gaps in hourly pay between the genders.

Last month, parents benefited from an extra two weeks’ paid parental leave with the enation of new legislation.

All of this adds to the administrative burden on businesses while delivering real relief to employees. Firms are already having to adapt to onerous new laws on employee data protection which were introduced 18 months ago at the behest of the EU.

Business group Ibec devoted its annual employment law conference earlier this year to the theme of equality and the new gender politics.

It is fair to say that many employers and managers are concerned at the extent to which the workplace has become a staging ground for social change.

At the annual Employment Bar Association conference, speakers highlighted further important developments.

One such area is in the field of injunctions where an employer or employee seeks a ruling from the court aimed at halting an event whether it be a dismissal or the onset of a strike.

As Peter Ward SC observed, there have been important decisions in the area of employment injunctions, notably involving Ryanair which, in August, secured an injunction restraining its Irish-based pilots from taking strike action.

Marguerite Bolger, another leading SC, examined the issue of restraints of trade as applied to the activities of former employees.

Such issues have grown in importance as information has become more powerful and the degree of knowledge attached to jobs grows in scale and complexity.

As Ms Bolger observed, the law for some time has recognised an employer’s right to rely on an express contractual restraint of trade clause. The restrictions often apply where an employee with detailed knowledge of the employer’s business seeks to work for a competitor.

The courts recognise there is a legitimate business interest to be protected while concluding that there are limits to the extent and duration of such restraints.

Ms Bolger cited an interesting decision of the current Chief Justice Frank Clarke made in 2012 in a case involving AIB.

There the judge concluded that the names of the bank clients were not confidential, but the details of commercial arrangements between them and the bank were.

Judge Clarke concluded that “an employee is entitled to bring that employee’s general skill with him wherever he may go. It is only information that goes beyond general skill and knowledge that cannot be used”.

Keeping arguments out of the courts and away from the Workplace Relations Commission is something that employers and employees alike should aim for. Employers are advised to pay much more attention to workplace investigations as a means of heading off deep trouble at the pass.

Sarah Daly is both a barrister and an accredited mediator. In her view, many in-company investigations are carried out in response to workplace grievances and complaints. They can be complex and challenging.

Several cases arising from workplace investigations have reached the courts in recent years which suggests that organisations are falling down when it comes to their complaints procedures.

In Ms Daly’s view, “when the parties are brought through a considered, thorough and comprehensive investigation process, both sides will be forced to understand matters from the others’ perspective. The complainant may realise that the ‘bullying’ manager was, in fact, simply providing unwelcome feedback as he/she was obliged to do”.

And she adds: “When a case does proceed to litigation, the completion of a robust investigation will greatly assist the parties in dealing with that litigation.”

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