Friday, August 10, 2018
As published in the Sunday Business Post, August 2018.
Employment disputes are a fact of life – people being people, tensions inevitably arise in the workplace and these can cause significant difficulties for employers and employees alike.
In any business, there will always be a (hopefully limited) cohort of individuals whom the employer will not be sad to see leave. Equally, however, there will usually be a pool of employees whom an employer emphatically does not want to lose – and when a dispute arises with one of those employees, it can be particularly tricky to handle.
It’s customary nowadays to say that every member of an organisation is invaluable and so on, but realistically there are always going to be employees who are more or less indispensable.
What happens when you fall out with one of them, or when they aren’t performing as well as they used to?
In that situation, the first question an employer needs to ask themselves is whether the relationship is capable of being salvaged – is there a particular problem or hurdle that can be overcome in order to resume normal service?
If an employer and, just as importantly, the employee concerned are able to find a way to mend their relationship, then it’s entirely possible that harmonious relations can be restored. There are a number of options available to an employer to try to find a solution in this scenario.
First of all, very simply, the employer can engage directly with the employee. As long as it’s made clear that the employer is not doing so under the auspices of the company’s disciplinary procedure, and as long as the employer chooses their words carefully, there’s nothing to prevent a direct intervention in an attempt to mend fences.
The employer needs to be careful to ensure that the conversation is taking place outside of the formal procedure – because once you trigger that procedure, the employee is automatically entitled to certain protections.
Direct interventions, ideally taking place in a neutral location, are best kept simple.
If a direct intervention doesn’t work, an employer also has the option of suggesting formal mediation to the employee. Mediation is a growth area in Irish employment law, and in disputes generally.
New legislation was enacted in 2017, for example, which makes it mandatory for solicitors to suggest mediation to their clients in most forms of dispute before legal proceedings are issued.
In the employment space, mediation can be an extremely potent tool to rebuild the relationship between employer and employee.
While there’s a cost involved, it should not be extortionate and a competent mediator may well be able to find sufficient common ground between the parties to allow them to resume working together as well as before. Even if it doesn’t immediately result in a solution, mediation can at least set the tone for further discussions.
At a minimum, a good mediator will be able to convince both parties to try to appreciate the other’s point of view. Of course, there will always be cases where either direct intervention or mediation simply doesn’t work.
As a last resort, an employer has the option of instigating disciplinary action against the employee.
Disciplinary action, as a result of decades of court decisions, is now tightly regulated and it’s critically important that an extremely high standard of fair procedures is observed by the employer.
On a regular basis, the Workplace Relations Commission strikes down disciplinary procedures because of inherent unfairness – common mistakes include biased decision-makers, failure to put the case against in full to the employee, refusing to allow the employee to be accompanied by a colleague or union representative, or refusing to offer an appeal.
Occasionally, formal procedures will work; sometimes an employee will learn a lesson from the disciplinary process. This is the employment law equivalent of a short, sharp shock.
Unfortunately, in practice it’s most likely that triggering disciplinary procedures merely signals the end of the relationship.
It’s quite common, for example, for an employee to resign halfway through the process – and that is one of the reasons why disciplinary action will typically be the last resort where an employer wants to bring a talented employee to task.
Trouble in the relationship with a talented employee doesn’t always mean that it’s the end of the line – a clever employer can intervene early, as discussed above, in an attempt to salvage the relationship.
However, the longer the problem is left to fester, the less likely a satisfactory solution can be achieved – and, certainly, an employer who presses the nuclear button (ie, disciplinary procedures) at the outset is most unlikely to be able to salvage anything from the relationship at all.
Any further questions or queries on this topic, please contact Patrick Walshe.