Employers don’t make costly mistakes, seek expert advice

No matter how fervently employers may wish to bury their head in the sand, when issues like unfair dismissal, redundancy, harassment, discrimination and other employment law problems arise, they can’t. Such issues don’t simply disappear they have to be dealt with.

The best way to tackle employment law issues is to anticipate them and be as pro-active and as prepared as possible. As a mid-sized law firm Lavelle Solicitors is called upon to advise and represent employers and employees alike and Marc Fitzgibbon, Employment Law Partner with the practice, together with his specialist team, experience employment law problems from both the employer and employee perspectives.

This rounded experience is something Fitzgibbon believes adds to the Firm’s understanding of legal challenges that arise around employment.  “We experience the full range of issues and understand the thinking from both perspectives. It’s a definite advantage,” he said. 

Fitzgibbon noted, “Employment law is complex and many of our SME clients don’t have a dedicated HR function, and that’s often the beginning of the problem.  Larger employers that can afford to invest in qualified HR resources tend to incur far less employment law related problems. Even with larger staff numbers they experience a low level of contentious situations, because the correct policy and procedures are generally in place and applied.”

“The introduction of the Workplace Relations Commission may have brought about welcome changes in streamlining our employment law processes, however there are still as many as 50 different statutes, and a large body of case law which means that successfully managing employment law risks can be complex and confusing.”

Complicated though it may be, it is beholden on employers to ensure their business is compliant with Irish and EU employment law and they must ensure they correctly navigate the legislation, and precedent. To do so effectively, many require a helping hand from experts such as a law firm, HR expert or mediator.

Fitzgibbon said, “When seeking legal advice make sure to approach a firm with a solid track record and experience in employment law, preferably with a dedicated employment law team.

“Some employers opt to keep a legal expert or HR consultant on a retainer. We work on a retainer basis with some of our SME clients for whom we offer on-going services to ensure that they are kept up to speed on any changes to regulations or legislation. A retainer also ensures they have the peace of mind of knowing that we are at the end of the line to answer any of their questions,” he said.

“It’s all too common for employers to call us when it is too late. By calling to ask a simple question when the problem first arises they can save themselves a lot of time and money.”

Fitzgibbon advocates for a robust employment policy because prevention is better than cure.  “It is important for a company to have good interviewing procedures and a recruitment policy in place. Reference checking is critical to make sure you get the right fit for the job”.

“From an employee perspective they need to ensure that the employer has documentation in place in terms of policies and procedures, some of which are required by law, for example anti-bullying and harassment, grievance and disciplinary.  All employers are obliged to give employees written terms and agreements within two months of commencement.

The documentation should be streamlined, clear and not over complicated. If it looks complicated it could cause unnecessary problems. Managers should be trained and aware of what’s in the policies and employers should ensure that their employees have familiarised themselves with it.

While most employers have employment policy documentation in place they often fail to implement it. Others fail to review and update documentation, an exercise which should be completed frequently to take into account any legal changes. For example, the paternity leave changes introduced last year, where new fathers were given an entitlement to two weeks leave. It is likely that employers will have to review and change their contracts of employment to take account of the legislative changes that are expected with the introduction of the Abolition of Mandatory Retirement Age Bill.

Fitzgibbon urged employers to adhere to their own documentation in matters of performance management, disciplinary or redundancy procedures.

“I have seen cases where employers had a valid reason to dismiss, but because they didn’t follow their own procedures they ultimately lost the case.” If in doubt, it’s prudent to seek professional advice from a HR or legal expert. A little advice can go a long way.

Although it may seem obvious to advise against using employment policy templates sourced online, Fitzgibbon said you’d be surprised at how many companies do precisely that. “Employers should ensure that their employment policy and procedures are customised to their company’s individual size and resources in order to minimise risks.”

For more information on employment law matters contact Marc Fitzgibbon, Partner.

This articled originally appeared in the Sunday Business Posts' Employment Law Supplement on 23rd April 2017.