Mar 23, 2021
 in 
Tips & Advice

Irish Employment Law Update: Volume 1, Issue 3

 By 
Richard Grogan
 • 
4 min read

This article will cover the following topics:

  1. Late Claims
  2. Redundancy: Selection
  3. Redundancy: 6 Steps to avoid an Unfair Dismissal Claim
  4. Redundancy Traps for the Unwary
  5. Uber to Pay Minimum Wage

1. Late Claims

An issue which is now constantly coming up is employees waiting until after a dismissal appeal or grievance over a breach of an employment right is dealt with before issuing a claim. They can then find that the time limit which is just 6 months has passed.

The WRC and Labour Court have been consistent in saying that using an appeal or internal grievance process does not stop the clock and is not except in exceptional circumstances a ground to get an extension of time.

There are numerous decisions on this arising every month in the WRC. We see them in cases coming to us. Just yesterday I had to tell an individual they were out of time.

Trying to explain that their use of the internal process, in good faith, had meant they were out of time was both difficult and upsetting for them as an excellent claim for breach of their rights could not now be brought.

There was nothing I could do. Extremely hard to have to give that message to anyone.

Where a person has a possible claim legal advice should be got early. Nothing to stop an employee using the internal process but issuing a claim to get it in on time if the internal process is not successful.

2. Selection for Redundancy

Where employers get this wrong then the employer effectively hands the employee an Unfair Dismissal Claim based on Unfair Selection.

So the way to do it right:

  1. LIFO (Last In First Out) is the oldest and safest model - however it is a blunt tool and is rarely used - where used it is 100% effective to defend a claim
  2. Selection on an other basis cannot be picking the best
  3. An employer has to look at the job or jobs going
  4. The criteria for selection has to be documented
  5. The selection criteria cannot be on any of the 9 protected grounds under Equality Legislation
  6. The selection has to be impersonal by which is meant it is the job or role not the selection of an individual or individuals
  7. The criteria must be able to be objectively justified
  8. The employee(s) at risk must be given the criteria and allowed challenge same

Redundancy selection is and in the medium term be a significant issue for both employers and employees. You will find a number of guides and reviews of cases on our website here.

3. Redundancy: 6 Steps to avoid an Unfair Dismissal Claim

There are the steps needed to avoid an Unfair Dismissal Award against an employer:

  1. The employee should be given an "at risk " letter.
  2. The employee should be given a written explanation as to why they are at risk, why their role is at risk, how that came about, what are the reasons for redundancy being considered, what alternatives were considered.
  3. The employee must be told no decision has been finally made.
  4. The employee must be given a hearing to put forward their arguments against them being made redundant or as to how the role can be maintained.
  5. The employee must be given a right of representation by a fellow employee or union official (even if unions are not recognised in the business)
  6. The employee must get an impartial hearing with a right of appeal.

If you need assistance, we can be contacted on info@grogansolicitors.ie

4. Redundancy Traps for the Unwary

While currently there is a bar on employees claiming redundancy there is none on employers making an employee redundant.

There are traps for employers. Making a pregnant woman or a woman on Maternity Leave redundant or even considering her for redundancy is contrary to the Employment Equality Act as set out by the European Court of Justice unless it is a Collective Redundancy, or the business is closing.

Secondly in selection for redundancy there has to be a clear selection criteria given to the employee and the employee must be given a fair opportunity to challenge any selection and put forward alternatives.

Both of these are situations where we are seeing employers failing to take account of the legal issues and then seeing claims to the WRC issue. Before an employer starts any redundancy process legal advice should be obtained to avoid what can be very expensive claims for the employer issuing.

5. Uber to Pay Minimum Wage

The announcement that Uber will pay drivers at least the minimum wage following the landmark decision in the UK will put pressure on the providers who populate the gig economy.

Former Uber drivers James Farrar and Yaseen Aslam pose in front of the Supreme Court on Friday (BBC)

The move by Uber was a smart move. Rather than facing the prospect of being regulated they moved to get ahead of any imposed regulation by bringing in the minimum wage themselves.

In Ireland today there will be delivery drivers in other organisations delivering food to many homes. They will not have the luxury of the Minimum Wage, or, paid holidays. They will not get the benefit of additional pay for working on a Public Holiday as any employee would be entitled to.

It is time that the Department of Enterprise, Trade and Employment looked to address the issue of the gig economy.

The “gig economy“ is a method of exploitation - just my opinion.

If you require further information please get in touch with Richard Grogan & Associates here.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.

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Disclaimer: Any views and/or opinions expressed in this post by individual authors or contributors are their personal views and/or opinions and do not necessarily reflect the views and/or opinions of Lawyered.

Published by
Richard Grogan
Solicitor

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