EMPLOYMENT LAW ISSUES IN AN ECONOMIC DOWNTURN – CHALLENGES FOR EMPLOYERS ITBA EXPO 2010 Maura Connolly, Partner and Head of Employment Law Group Eugene F. Collins

2 Employment Law Issues in an Economic Down Turn INTRODUCTION Horseracing Ireland –2009 – 1,500 job losses –2010 – funding cutbacks

3 Employment Law Issues in an Economic Down Turn INTRODUCTION Redundancies –Individual/collective –process Management of Employment –Flexibility Pay cuts and contractual issues Short time working/Lay off Employee morale and communication Management of Performance

4 Employment Law Issues in an Economic Down Turn UNFAIR DIMISSAL Dismissal process Genuine Redundancy –Mr B –v- Mr M (1999) 2 years remuneration Transparency –O’Kelly –v- Xsil Limited

5 Employment Law Issues in an Economic Down Turn REDUNDANCY Employer ceases to carry on business for which employee was employed Requirements of business have changed Employer requires fewer employees by requiring work to be done by other employees Employer changes the way work is done – employee not sufficiently qualified Employer reallocates work to another employee who is more qualified or trained

6 Employment Law Issues in an Economic Down Turn COLLECTIVE REDUNDANCY Consecutive 30 day period “establishment” Breaches – Offence and fine up to €250,000.00

7 Employment Law Issues in an Economic Down Turn COLLECTIVE REDUNDANCY (a)5 persons from a work force of 21-49; (b)10 persons from a work force of ; (c)10% of a work force of ; (d)30 persons from a work force of 300 or more. Statutory notice to the Minister for Enterprise Trade and Employment

8 Employment Law Issues in an Economic Down Turn COLLECTIVE REDUNDANCY Consultation process The possibility of avoiding the proposed redundancies; The possibility of reducing the number of employees affected by redundancy; Mitigation action; Selection process; Supply the employees’ representatives with all relevant information in writing.

9 Employment Law Issues in an Economic Down Turn REDUNDANCY SELECTION Fair and objective criteria Skills, length of service, qualifications, conduct LIFO where all other criteria equal Transparent process Consider effect on the remaining employees Unfair Selection –Mr P –v- Stud Farm (1999)

10 Employment Law Issues in an Economic Down Turn RIGHT TO A REDUNDANCY PAYMENT Fixed term Successive temporary contracts 104 weeks – –Form RP50 –Minimum Notice

11 Employment Law Issues in an Economic Down Turn STEPS IN A REDUNDANCY PROCESS Redundancy decision Collective 30 Days Individual Fair process

12 Employment Law Issues in an Economic Down Turn STEPS IN A REDUNDANCY PROCESS COLLECTIVE Appoint employee Representatives Consult with existing reps Information and consultation process Notice to employees

13 Employment Law Issues in an Economic Down Turn STEPS IN A REDUNDANCY PROCESS Individual Information and consultation process Notice to employees

14 Employment Law Issues in an Economic Down Turn REDISTRIBUTION OF WORK Employee consultation Cooperation and acceptance of new responsibilities Terms of Employment (Information) Act 1994 – written statement of terms of employment Title and Job description Revision of contract William Donnelly – v- Lease Plan Management (2009)

15 Employment Law Issues in an Economic Down Turn FLEXIBLE WORKING CLAUSES Change in work role or place of work Restrictive interpretation Place of Work – Terms of Employment (Information) Act Refusal to relocate Employee –v- Stud Farm.

16 Employment Law Issues in an Economic Down Turn CHANGE OF WORK LOCATION Redundancy Payments Acts 1967 to 2007 Change of place of work Suitable alternative employment McLoughlin –v- Alliance and Dublin Consumers Gas company Constructive dismissal

17 Employment Law Issues in an Economic Down Turn LONGER TERM IMPLICATIONS OF IMPOSED CONTRACTUAL CHANGES Fundamental contractual terms Pay cuts, pay freezes, deferred bonuses and increments, changes to pension Transparency and communication

18 Employment Law Issues in an Economic Down Turn PAY CUTS & OTHER MEASURES IBEC – Q3/2009 statistics 56% of respondents have reduced pay roll by average of 21% Pay freezes in 59% of respondents Recruitment freezes in 55% Retraining of existing staff likely in 3 months – 45% 55% have reduced numbers in 2009

19 Employment Law Issues in an Economic Down Turn PAY CUTS & OTHER MEASURES Payment of Wages Act 1991 Breach of contract in Civil Courts Ulster Bank claim lodged by IBOA in Rights Commissioner for 1/5 of staff – 82% signed new contracts Tacit acceptance/Longer term grievance Trust and transparency key issues

20 Employment Law Issues in an Economic Down Turn LAY OFF/ SHORT TIME Contractual position Statutory position

21 Employment Law Issues in an Economic Down Turn PERFORMANCE MANAGEMENT Continue to address performance and disciplinary issues Motivation Address poor morale Opportunity to communicate grievance within workplace

22 Employment Law Issues in an Economic Down Turn GRIEVANCE PROCESS – LRC CODE OF PRACTICE That employee grievances are fairly examined and processed That details of any allegations or complaints are put to the employee concerned That the employee concerned is given the opportunity to respond fully to any such allegations or complaints That the employee concerned is given the opportunity to avail of the right to be represented during the procedure That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstance.

23 Employment Law Issues in an Economic Down Turn DISCIPLINARY ISSUES Due process Example P –v- Stud Farm (2008) Gross Misconduct –WO’C –v- Stud Farm(1992)

24 Employment Law Issues in an Economic Down Turn CONCLUSION

25 Employment Law Issues in an Economic Down Turn