EMPLOYMENT LAW ISSUES IN AN ECONOMIC DOWNTURN – CHALLENGES FOR EMPLOYERS ITBA EXPO 2010

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

3. 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 Employment Law Issues in an Economic Down Turn

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

5. 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 Employment Law Issues in an Economic Down Turn

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

7. COLLECTIVE REDUNDANCY • 5 persons from a work force of 21-49; • 10 persons from a work force of 50 -99; • 10% of a work force of 100-299; • 30 persons from a work force of 300 or more. • Statutory notice to the Minister for Enterprise Trade and Employment Employment Law Issues in an Economic Down Turn

8. 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. Employment Law Issues in an Economic Down Turn

9. 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) Employment Law Issues in an Economic Down Turn

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

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

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

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

14. 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) Employment Law Issues in an Economic Down Turn

15. 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. Employment Law Issues in an Economic Down Turn

16. 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 Employment Law Issues in an Economic Down Turn

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

18. 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 Employment Law Issues in an Economic Down Turn

19. 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 Employment Law Issues in an Economic Down Turn

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

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

22. 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. Employment Law Issues in an Economic Down Turn

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

24. CONCLUSION Employment Law Issues in an Economic Down Turn

25. Employment Law Issues in an Economic Down Turn