Monday, July 15, 2019
As published in The Sunday Business Post, Sunday 14th July 2019.
Moving jobs may be the only option when an employee is overlooked for promotion.
It can be a very frustrating experience for any ambitious employee to discover that promotion continues to evade them, no matter how hard they work or how much they dedicate themselves to their employer’s business. Many employees in this situation may become frustrated and come to the conclusion that there is no point banging their head against a brick wall any longer – the only option is to hand in their notice and move on to hopefully greener pastures.
That’s certainly one remedy – and it’s probably the most common one. However, for the cohort of workers who remain in their jobs, is there any alternative? Many employees in this situation will see a wilful refusal on the part of their employers to acknowledge their talents and dedication. They will wonder if there’s anything they can do to improve their situation. Many will ask themselves if there’s any remedy in employment law?
The answer depends on the circumstances. As a general principle, a private sector employer is under no obligation to promote someone (or increase their salary or any other form of remuneration up to and including bonuses). The employment contract the parties enter into at the outset of the relationship continues to govern the relationship unless there is an agreed variation – such as a promotion.
From that perspective, if one party (the employer) decides that it is happy with the status quo and doesn’t intend to change it, there is very little the other party can do in response. Putting it in simple terms, it takes two to tango – and if your employer doesn’t want to promote you, there is ordinarily very little you can do about it.
While employment law regulates the employer-employee relationship to a large extent, it will rarely interfere with core terms of the contract of employment. What this means is that if you’ve been hired to carry out a particular job, that’s the extent of your entitlements – you have no inherent right to be allowed to take on a different or more senior role.
While this is the general rule, employees in certain situations may have other options. For example, if you were told at the outset of employment that you would be eligible for promotion if you achieved certain targets. In this instance, where the targets have been met and promotion has not been forthcoming, at a minimum you will have justification to formally complain (perhaps by way of a grievance).
An employee in this situation may in certain circumstances be able to bring proceedings for breach of contract if it is equivocally the case that their employer guaranteed that, if they met a certain standard/achieved an agreed target, promotion would follow.
However, it would be quite rare for a contract of employment (or offer letter) to include an open-ended guarantee of this nature. Most of the time, an employer will be very cautious in offering inducements – and a prudent employer will make it clear that it will merely consider promotion (or use equally anodyne words) depending upon an employee’s performance in the job. Blank cheques, to put it another way, are very much the exception.
One area in which an employee may well have legitimate grounds for complaint is that of discrimination. Under Irish Employment Equality legislation, employers are prohibited from discriminating against employees on any of the protected grounds (including gender, race, age, religion, disability, sexuality, family/civil status, membership of the travelling community and others). Promotion is highlighted for particular attention – current equality legislation specifically forbids discrimination against an employee in relation to promotion.
A number of cases have been fought – and won – under this heading and it’s quite clear that an employer won’t be permitted to discriminate when promoting. The classic case is where a female employee is overlooked in favour of a male candidate for promotion, even though their skills and experience are extremely similar. In a case like this one, the Workplace Relations Commission will scrutinise the decision-making process, examining things like interview notes, marking systems (if there is one) and advertisements, where applicable. An employee who can argue that they were the subject of discrimination may be able to bring their claim home.
However, it’s worth noting that both of these situations are comparatively rare – and it’s likely that the majority of disappointed candidates for promotion won’t be able to bring themselves within the scope of either remedy.
For the most part, unfortunately, the classic route – handing in your notice and looking for better opportunities elsewhere – is the only viable option for an employee who thinks they deserve a promotion. That’s a fact of working life that’s unlikely to change.
For further information on this topic, please contact Patrick Walshe.