Retail News|March 2021|www.retailnews.ie|61
Employment Law dealing with matters at all stages of the employment relationship. It must also be remembered that there will be instances where the contracts and policies are drafted in a way requiring procedural fairness to be applied or other steps to be taken. Those documents could be key to any dispute. Further, there will be cases in which the concerns are not purely performance concerns and may entail some level of conduct concerns. That could be a game changer in terms of the procedures which must be applied. Takeaway for employers Employers should ensure that they have appropriately drafted probationary clauses in their contracts of employment and that managers have access to the necessary guidance when seeking to rely on such clauses and in effecting such dismissals. Employers may wish to reserve the right to abridge their procedures during probation and must always be cognisant of how a third party would view the process in the event of a challenge. While the Court of Appeal decision in O’Donovan is a welcome clarification for employers, it remains the case that various risks may still arise in the context of managing probation, both in respect of misconduct and performance issues. Employers should continue to approach these matters reasonably and
with appropriate care. Every performance management process must be assessed on its own particular circumstances, as well as the terms of the employment contract and the policies of the employer. The former employee in the O’Donovan case brought his challenge to the Courts at least in part because he had not yet accrued the protections under the Unfair Dismissals Acts. Many other employees will have accrued the requisite service to bring an Unfair Dismissal claim. They may benefit from the exceptions to the need to have accrued one year’s service. They may benefit from other statutory protections which do not require one year’s service, e.g. relating to unlawful discrimination and certain kinds of penalisation. No doubt the outcome of the O’Donovan case will be argued in all relevant fora as supporting the position of employers not having to apply fair procedures in a performance management scenario. However, it is likely that most employers will apply what they see as good employee relations and management practice, including so as to avoid a recommendation that they offer redress or change their internal processes. Anything resembling summary termination, without the necessary element of reasonableness, runs an increased risk of being challenged in some forum.
If you require any assistance in relation to any of the above matters, please contact Barry Reynolds or Jenny Wakely.
ABOUT THE AUTHORS:
FOR specific assistance and advice in respect of any of these or other employment law issues, please contact Barry Reynolds (breynolds@ dacbeachcroft.com) or Jenny Wakely (jwakely@dacbeachcroft.com) of DAC Beachcroft (https://www. dacbeachcroft.com/en/gb/locations/ dublin/) or one of their other specialist employment law solicitors. This article is for general information purposes only and does not comprise legal or professional advice. You should not rely on any of the material in this article without seeking appropriate legal advice. Twitter: @dacbeachcroft LinkedIn: DAC Beachcroft Dublin
There will be instances where the contracts and policies are drafted in a way requiring procedural fairness to be applied or other steps to be taken and those documents could be key to any dispute.
