Cases and Comment: Some Recent Employment Tribunal Decisions

Peninsula Team

November 25 2011

It is important for employers to keep abreast of the movements within the employment tribunals and the determinations that they are publishing as it will allow employers to exercise due caution when dealing with their own internal employee matters. In this regular piece we will review 3 recent publications, primarily in respect of unfair dismissal matters but also on other interesting cases including equality, payment related matters etc. This week we focus on two unfair dismissal claims where the employer did not attend for the hearing at Employment Appeals Tribunal and the folly associated with such a failure to attend. This is a somewhat common occurrence and is extremely risky from the employer’s perspective as the hearing will still go ahead on the basis of the employee’s evidence only. This coupled with a tribunal’s annoyance that the employer didn’t show up will no doubt end up in the employee winning an award that the employer will be legally obliged to pay. In addition we look at a case where an employer sought to introduce a pay reduction across the board but ran into complications when one of the employees objected to the pay cut. Employee -v- Employer (UD 2527/2009) This case concerned an employee who went on sick leave in September 2008.  The employee accepted that she did not hand in medical certificates for the period of her 11 month sickness absence but stated that the employer was aware that she was on sick leave.  During the period of her sickness leave the employee received no correspondence from the employer and was not made aware that her job was in jeopardy.  At the EAT hearing, the employee gave evidence that 2 cooks in the company and her supervisor indicated to her that there would always be a job for her. However, towards the end of August 2009, when she was fit to return to work the employee presented her employer with a fitness to return to work certificate only to be informed immediately that her job was no longer there.  The employer then took some weeks to send the employee her P45 and the date of cessation on the P45 was the 17th of September 2009. The Tribunal could only hear the case on foot of the employee’s evidence and accepted “the claimant’s evidence that she was dismissed and that the said dismissal was unfair.” However, interestingly, the tribunal found that that the employee contributed significantly to the circumstances giving rise to the dismissal and considered her 75% responsible due to the fact that she had not provided the employer with medical certificates during her 11 month absence. Ultimately, the Tribunal awarded the employee €8,190 under the Unfair Dismissals Acts, 1977 to 2007. However, had the employee made no mention of the lack of sick certs when preparing their tribunal submission then this 75% would not have been deducted and the employee could have won €32,760. This was the potential loss that this employer would have suffered simply because they didn’t turn up for the hearing. On the other hand, given that the EAT took such a dim view of the employee’s lack of sick certs and given that they only had the employee’s evidence to go on, there was a huge chance that this employer could have won this case had they presented their own version of events and therefore they could have avoided the €8,190 pay out and the negative press associated with a successful unfair dismissal claim. The above case highlights the importance of following procedures when an employee is out on sickness absence. Employers should pursue sick certs from employees and if they fail to provide them then this will likely count against the employee at tribunal. It is also important that employers are aware that when an employee is fit to return to work they are legally entitled to their position back.  If the employer subsequently finds that the employee’s position is no longer available then they should ensure to proceed with a redundancy consultation process with the employee upon their return to work. This case also highlights the tendency of the Tribunals to favour heavily in favour of the employee.  In this case the Tribunal officer clearly stated that the employee was 75% at fault for her dismissal but still awarded the employee a lump sum of €8,190, an award which could be very detrimental to an organisation. Employee -v- Employer (UD 391/2010) This case concerned an employee who was employed in the finance/accounts area.  The employee had 10 years’ experience ten years of experience and she had been the second of three employees taken on in the business. In August of 2009 the claimant received a text message from her manager asking her to meet him in the reception/lobby area of the building. During this impromptu informal meeting the manager told the claimant that she had been selected for redundancy with immediate effect. He went on to inform her that she could work until the end of September to bring her working time up to two years for a statutory redundancy payment and that after she received her redundancy payment she could come back and work a few hours if it was busy and that this situation would probably be more beneficial when she was on Social Welfare. The employee claimed at the EAT that she had enquired about the selection process and as to why she had been selected as another person had commenced employment with the company after her only to be informed by her manager that the reason for not letting the other person go was “because he needed a bit of muscle on the door”.  The employee also stated that she had asked at this stage if a three day week would be an option but this was rejected. The claimant stated that she was mortified by the situation and was told by her manager not to get upset in front of people in the lobby and as such she felt that she had no option but to take her redundancy cheque. The EAT went on to determine that “based on the claimant’s uncontested evidence the Tribunal is satisfied that the claimant was unfairly dismissed from her employment. No matrix was ever given to the claimant and no evidence of a selection process was produced. The Tribunal awards the claimant the sum of €34,500 as compensation under the Unfair Dismissals Acts, 1977 to 2007.” The above case highlights the substantial awards which can be awarded to employees if (a) the employer fails to follow the correct procedures and (b) the employer does not show up at tribunal to present their evidence.  A lot of the recent determinations from the EAT are showing that the tribunal are inclined to award substantial compensation to employees who have been made redundant in circumstances where the employer failed to engage in fair procedures through consultation with the employees and where they are unable to justify why that particular employee was selected for redundancy. All employers who are facing a redundancy situation need to ensure that they engage in a redundancy consultation process with the employee to explore alternatives before any redundancy is confirmed.  The employer needs to ensure that where there is more than one person carrying out the same or similar duties then there will be a need for a very detailed selection matrix which should be discussed with the employees again before any redundancy is confirmed. Peninsula would also advise that the suggestion of the need for extra muscle as a predominant reason behind selecting this female employee for redundancy would likely result in a successful claim of gender discrimination should this employee pursue a claim at the Equality Tribunal. Employee -v- Employer (PW 246/2009) In this case the employee was employed to collect bins and deliver skips for the respondent company.  Due to the economic downturn in 2009 the company had to reduce their prices twice which resulted in the price per bin being reduced from €100 to €65. As a result of the reduced prices and economic conditions, the employer wrote to all employees informing them that they would have to take a pay reduction of €100 per week and also the employees would have to work one Saturday per month for no extra wage.  All drivers in the company accepted this reduction save for the employee involved in this case who had the reduction forced upon him without his agreement. The employer argued that they implemented the reduction in wages across the board as an alternative to making any employee redundant. The Tribunal found that the decision by the employer to reduce wages by €100 per week was an unlawful deduction.  It was found that no negotiation or preliminary discussion took place prior to the employer notifying the employee that his wages would be reduced.  The Tribunal stated that the pay reduction was a unilateral decision made by the employer in the face of economic pressure. Accordingly, the Tribunal determined that the employer had unlawfully breached the Payment of Wages Act, 1991. The above case is a situation which many employers are facing as they struggle to ensure the long term survival of their company and in an attempt to do this many employers find that reducing employees’ wages is the best way forward. However, this case highlights the importance of negotiation and consultation with employees before enforcing any pay with the aim of securing employee agreement to any such pay reduction. If agreement is not secured then an employer will still be liable but the fact that consultation took place may reduce any award due to the employee.

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