Monday, October 7, 2019
As published in The Sunday Business Post, October 6th 2019.
Like death and taxes, it’s a fact of life that people – including employers and employees – don’t always get along. Very often there is blame on both sides, but from time to time employees will find themselves in a position where despite their best efforts, their employer does not like them and would like to part company. In fact, sometimes employees discover that their employer is actively seeking a replacement.
So what can an employee do in this situation?
The first point an employee needs to remember is that there is nothing to prevent an employer from searching for a replacement – and even carrying out interviews. There are few employment law restrictions in this area – as long as the employer doesn’t act in a discriminatory manner, it has a pretty free hand. Putting it another way, there’s nothing to prevent an employer from looking for a replacement.
However that doesn’t mean an employee is without options. The second point an employee should consider is whether the process of replacing them is happening in isolation. Are they also the subject of any retrograde treatment at the hands of their employer? Have they been refused a bonus, or a promotion? Are they being treated in an out of hand manner – or even bullied or harassed in the workplace?
If an employee’s answer is “yes” to any of these questions, they have a remedy: they can initiate an immediate grievance and if that fails, they can either take legal advice or look to the WRC for assistance.
However, a clever employer will make sure that they act carefully around the employee they want to replace – and will certainly take no steps that would give the employee ammunition to bring a grievance or claim. In that situation, the employee is back at square one – they know their employer is actively taking steps to replace them, but the employer hasn’t done anything actionable.
Obviously the employee can take matters into their own hands and start looking for alternative employment themselves, and resign first. However, many employees may feel that it is unfair that they would be placed in this situation.
Alternatively, the employee certainly has the option of raising the matter directly with the employer, assuming of course that the employee learned about the plans to replace them legitimately (an employee who snoops in confidential files is in a different, and potentially dangerous, category). Not all difficult relationships are incapable of being salvaged – and if an employee (gently!) confronts their employer, it’s possible that a dialogue may start giving the parties an opportunity to find middle ground.
If that fails, there is nothing to prevent the employee from moving to formalise the situation – putting the employer on notice of their concerns and warning them that any attempt to remove them will be challenged. An employee in that situation isn’t necessarily making their position impregnable, but they are certainly making it more difficult for their employer to remove them without consequences.
Taking this step might also prompt the employer to ask the employee to name their price – which could in itself be a good thing. A prudent employee could set out a wish list – including a very satisfactory reference, for example, and other benefits.
An employee in this position can also take comfort from the fact that once they have 52 weeks of continuous service, they cannot be dismissed easily. If the employee has a good work record and the employer has no legitimate basis for concern about their performance, it is going to be very difficult to remove them for cause.
Of course, this does not mean that the employer cannot make use of the nuclear option – simply dismissing the employee and living with the consequences. An employee in that situation, however, may well be in a position to recover damages by taking an unfair dismissal claim. They will also know that since 2015, first–stage decisions of the Workplace Relations Commission are anonymous so there is less to be concerned about in terms of reputational damage in their industry.
Ultimately in this situation, however, the employer probably holds more of the cards. While employees in Ireland enjoy certain guaranteed rights, an employer who is prepared to pay out can probably always dispose of a claim. Therefore, the lesson to be learned for employees in this situation, ultimately, is that they probably can’t save their job. However, they may well be able to extract a level of compensation from their employer.
A prudent employee who learns of the prospects of being replaced on the grapevine could therefore adopt a two-track strategy: start looking for alternative employment but lay a careful paper trail to ensure that they receive some money for their trouble.
For further information on this topic, please contact Patrick Walshe.