Barry Reynolds and Jenny Wakely, specialists in employment law with DAC Beachcroft, examine the extent to which fair procedures are required during probation

Employment Law

Probation and fair procedures

Barry Reynolds and Jenny Wakely, specialists in employment law with DAC Beachcroft, examine the extent to which fair procedures are required during probation.

ONE of the primary purposes of the probationary period is to assess the performance and suitability of a new recruit. Dismissal during an employee’s probationary period is often regarded as relatively safe because an employee will not have accrued a year’s service, which, subject to limited exceptions, is a prerequisite for bringing an Unfair Dismissal claim. Dismissals, therefore, during probation, can for the most part be effected without running the risk of an Unfair Dismissal claim. However, employees can take other types of claims in respect of alleged mistreatment of their probationary periods. It may be that the Unfair Dismissal risk can be excluded but there remain instances in which an employer could be required to defend their approach, including to demonstrate that they applied adequate procedural fairness. In this piece, we examine the extent to which employees are entitled to fair procedures in the context of probation and the risks of not treating staff fairly or in accordance with the employment contract and the relevant policies. There are two fora in which these kinds of dismissals may be challenged. The less commonly availed of one is the High Court. The Workplace Relations Commission (“WRC”) and Labour Court are the more likely places where these issues are resolved. We firstly summarise the issues which have recently arisen in claims to the WRC and Labour Court.

Claims under the Industrial Relations legislation

Employees with less than one year’s service can bring a complaint to the WRC and ultimately the Labour Court under the Industrial Relations Acts. In this context, such complaints, broadly speaking, canvass whether or not the employee has been treated unfairly. They cannot result in legally binding awards and the outcome cannot be enforced in the same way as an Unfair Dismissal award would be. Rather, the outcome would be a recommendation. Such recommendations can be persuasive. Many employers correctly exercise caution in view of the potential adverse publicity and impact on employee relations in addition to the potential costs of meeting any such recommendations. One of the most striking examples of this kind of complaint was the October 2018 Labour Court decision in Beechside Company Limited T/A Park Hotel Kenmare v A Worker (LCR21798). It drew a lot of publicity, largely due to the substantial recommended award of €90,000. The complainant was a General Manager of the Hotel. He was dismissed during his probationary period and took a claim not for Unfair Dismissal, but rather under the Industrial Relations legislation. The Labour Court found that the hotel had failed to follow fair procedures prior to dismissing the manager. For example, it failed to warn him that his employment was in jeopardy; he was not provided with reasons for his dismissal; and he was not afforded an opportunity to reply. The Labour Court noted that:

“Where an employee is considered unsuitable for a permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.”

It is not an isolated case. It has been reiterated in subsequent decisions, including in a recent decision of the Workplace Relations Commission (“WRC”) in January 2021 in Restaurant Manager v Accommodations and Food Service (ADJ00026838). In that case, the complainant was dismissed by his employer with immediate effect following an ultimatum from the complainant’s fellow employees. He had seven months’ service. He appealed his dismissal, but his employer failed to respond to his appeal. The Adjudication Officer found that the

Employment Law

complainant had been unfairly dismissed and had been denied fair procedures and natural justice and, in so finding, it relied on the Labour Court decision in Beechside.

High court injunctions – a key legal development

Another potential avenue of redress for an employee who believes that he/she has not been afforded fair procedures or treated in accordance with the contractual commitments of an employer is to request the High Court to intervene by way of challenge to the legality of the dismissal and, among other things, to preserve the status quo of employment on an interim basis. There is no minimum service requirement to bring such a challenge. This avenue entails a much higher level of risk for the employee as there is a relatively complex legal analysis to overcome in order to obtain any remedy. Furthermore, temporary remedies such as preserving the status quo and keeping the employee in employment are both discretionary and exceptional. An employee who loses such a challenge could be fixed with an unpalatable level of legal costs. These claims, insofar as they concern challenges to dismissals during or on completion of the probationary period, have only rarely been sought. For the most part, the risk of any such challenge tends to arise, although not exclusively, in respect of very senior staff. A number of recent High Court decisions had suggested that where a probationer’s performance falls below the standard required, it must be treated in a manner similar to addressing misconduct. Where misconduct is alleged, fair procedures must be followed. However, do the same legal rights arise where the issue is not one of conduct but rather of performance? In a welcome development for employers, the Court of Appeal has now confirmed in O’Donovan v Over-C Technology Ltd & Another that fair procedures do not necessarily apply to performance-related dismissals ([2021] IECA 37). This is especially relevant when considering the management of probationary periods. From a legal rights perspective, a dismissal arising from concerns about substandard performance does not require fair procedures in order to be lawful.

“If an employer has a contractual right – in this case a clear express right – to dismiss an employee on notice without giving any reason, the court cannot imply a term that the dismissal may only take place if fair procedures have been afforded to the employee, save where the employee is dismissed for misconduct.”

What is the overall position on performance management and fair procedures?

It would appear that there are conflicting approaches in the WRC and Labour Court on the one hand and in the Courts on the other regarding performance management. It should be remembered that the Industrial Relations complaints to the former are not legal claims. An employer will be expected to be able to show reasonableness and some level of fairness in

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

Circle K celebrates the return of ‘Scratch and Win’ game

TO celebrate the return of its popular free online game Scratch and Win, Circle K rewarded with every single player with a guaranteed prize during the first 24 hours of the game on March 3. The prizes available then and every day of the campaign include free cups of Simply Great Coffee, 4c off fuel vouchers, Froster iced drinks, car washes, as well as a selection of snacks and items from Circle K’s delicious in-store food range. All people have to do is play Scratch and Win via the Circle K app or online at scratch.circlek. one/ie and scratch three matching products on a virtual card to win a prize. Once players win a prize, it can be redeemed instantly at any Circle K store across Ireland, excluding Circle K Express sites. Players can try their luck three times each day, with over 230,000 prizes available to win over the next two months. Once a day after every player’s three virtual cards are ‘scratched’, a bonus ‘slice ninja’ game, sponsored by Red Bull, gives them the chance to win one of five Red Bull hampers, which includes a coveted PlayStation 5 console. Throughout the duration of Scratch and Win, players have a chance of winning higher value prizes every Saturday. With prizes including iPads, Circle K hampers, gift vouchers and a year’s worth of free Simply Great Coffee available to win, these ‘Scratch Saturday’ prizes are sure to perk up players weekends and create a virtual scratching frenzy. If that wasn’t enough, the player of the Red Bull bonus game with the most points when the promotion finishes at the end of April will also win a €250 Circle K gift card. “During these challenging times, we understand the importance of a daily ‘pick me up’ and the joy of claiming a little win. With that in mind, we are very excited to announce the return of Scratch and Win for spring,” said Joanne D’Arcy, Director of Market Development at Circle K Ireland.

Texaco ‘Support for Sport’ recipients announced

THE 26 sports clubs chosen to receive funding have been announced under the Texaco Support for Sport initiative launched last September by Valero Energy (Ireland) Limited, the company that markets fuel in Ireland under the Texaco brand. Open to sports clubs across the country, irrespective of sporting discipline, size, membership, age, cultural appeal or gender, the initiative saw a fund of €130,000 being made available by Valero for distribution in equal amounts of €5,000 to successful applicants chosen on a county-by-county basis. Close on 400 clubs submitted applications under the scheme. Of the clubs that will now receive funding, €55,000 will go to five Gaelic football, four hurling, one camogie and one handball club. Five soccer clubs will share €25,000, with the next highest amount of €10,000 divided between two basketball clubs. Additional disbursements amounting to €40,000 go to athletics, boxing, climbing, cricket, diving, hockey, rugby and swimming clubs, all receiving €5,000 each. Overseeing the judging process was Texaco Support for Sport ambassador, acclaimed broadcaster and former Irish rugby international, Donncha O’Callaghan “As adjudicator, the most uplifting aspect of the process was the desire expressed by even the smallest niche clubs to build on their value to communities, to expand membership by attracting new players and by providing a safe setting for young people,” said Donncha. Congratulating winners on their success, James Twohig, Director of Ireland Operations, Valero Energy (Ireland) Limited, said, “A feature evident in almost all applications was the pressure felt by clubs in the current circumstances to expand their role within their local communities, with increased membership demands and the need for extra equipment and improved facilities. The purpose of our initiative is to help clubs to overcome these obstacles so that they can continue to remain active and at the very heart of their local communities. This is why we believe our initiative has been so warmly welcomed by sports clubs nationwide in its launch year.”

TAYTO LAUNCHES TWO LIMITED EDITION FLAVOURS

TAYTO has launched two new limited-edition flavours! Mr. Tayto is known to create wonderful taste combinations and has been spending lockdown in the kitchen developing more delicious flavoursome creations! This time the new flavours are inspired by New York Deli Sandwiches, for when the classic ham & cheese sambo just won’t hit the spot. Tayto Beef Brisket Flavour is the meatiest of all sandwiches; slow cooked beef with BBQ flavour, it doesn’t get any better than this! Tayto Philly Cheese Steak is a big flavour hit! You’ve got the steak flavour and all the cream cheese too. What more could you want??

CADBURY TWIRL ORANGE RETURNS

THE highly anticipated and adored Cadbury Twirl Orange bar has made its Irish comeback. Last year, the limited-edition bar was announced as the first-ever flavour innovation for Cadbury Twirl in Ireland, but the limited stock didn’t last long! With swirl of delicious Cadbury milk chocolate combined with a zesty orange flavour, the new flavour was a hot topic amongst chocolate fans and has been in high demand ever since. “We are very excited to welcome back the Cadbury Twirl Orange, especially after seeing all the recent enthusiasm and anticipation for the product’s return,” noted Tricia Burke, Cadbury Ireland Senior Brand Manager.

NEW KIND SALTED CARAMEL DARK CHOCOLATE FLAVOUR LAUNCHED

KIND has announced the launch of its newest flavour and best tasting bar yet, the Salted Caramel Dark Chocolate flavour. A combination of Kind’s two best sellers: Dark Chocolate Nuts & Sea Salt meets Caramel Almond Sea Salt. Smooth caramel, rich dark chocolate, full of nuts and a sprinkle of Brazilian sea salt will have consumers savouring every bite. It’s high in fibre, gluten free, contains 59% nuts and ingredients you can see and pronounce!

COCA-COLA PARTNERS WITH TYLER, THE CREATOR ON NEW CAMPAIGN

COCA-COLA Ireland has partnered with Tyler, The Creator, to launch its new campaign, Open That Coca-Cola, which celebrates the Coke experience, whether it’s enjoying a Coca-Cola Original Taste, Coca-Cola Zero Sugar or any of its flavour variants, by giving new drinkers a way to describe this beyond-words experience.

‘Open That Coca-Cola’ brings to life the first sip of CocaCola and the expressions used to convey the refreshing great taste and experience of upliftment, and enjoyment when drinking it, like Ahhhh! Oooh! Yeah! To encapsulate that undefinable feeling, Coca-Cola has partnered with Tyler, The Creator, who has created an exclusive music track featured in the campaign, which truly brings to life the iconicity of a Coca-Cola through a unique interpretation highlighting this indescribable experience and taste. The campaign is also brought to life in the form of an exciting dance – the ‘Coca-Cola Kick-Shuffle’, which expresses the uplifting experience of drinking a Coke through fun movements that anyone can try out and enjoy.

WALKERS DOUBLE MAX CRUNCH LAUNCHES IRISH CAMPAIGN

FROM home-schooling to remote working, home life is a little noisier nowadays. Walkers Double Max Crunch is partnering with Havas Dublin to promote a light-hearted escape from the noises that annoy with the ‘Crunch Louder’ campaign! With twice the crunch of a regular crisp, the almighty crunch of Walkers Double Max Crunch is the perfect way to drown out some of the more annoying sounds that define lockdown life. The 360 campaign uses OOH, shopper, digital and social channels to ensure the campaigns lands with a massive audience. “With the Crunch Louder campaign, we wanted to tap into the mindset of the country at the moment, and offer a light-hearted –and delicious solution to something we’re all experiencing,” said Liz Finlay, Walkers Max Crunch Brand Manager.

GM Marketing has announced the acquisition of Belfast based herbs & spice producer, Favourit Foods. Established in 1914, Favourit is Northern Ireland’s oldest manufacturer of herbs and spices, supplying the Irish retail and foodservice sectors for over 100 years with quality food ingredients. “We’re absolutely delighted to complete the acquisition of Favourit and welcome the team on-board,” said Gerard McAdorey, GM Marketing’s Managing Director. “The brand has so much heritage and history steeped in Belfast; it was an opportunity we couldn’t pass by. As a business, we are already supplying herbs & spices to market-leading retailers in Ireland, so this is a natural next step in the development of our business strategy and future growth plans.” Pictured are (l-r): Gerard McAdorey, Managing Director GM Marketing, and Sean McCrory, Favourit Foods.

KIND has announced Pieta as its new charity partner for 2021. On February 17, Kind launched its Exercise Kindness campaign to celebrate Random Acts of Kindness Day by donating €1 to Pieta for every person that follows Kind Snacks Ireland on Instagram. Kind is partnering with like-minded brands in March and April to create virtual events that raise money and awareness for Pieta and in May and September, the brand will be partnering with retailers nationwide to create an on-pack donation of 10c per bar going to Pieta. Through the course of the partnership, Kind hopes to raise €15,000 for Pieta, which will support 15 people through Pieta’s life-saving counselling services.

DONEGAL-based Muff Liquor Company has signed a significant deal with Primeline Sales and Marketing to expand the distribution of its award-winning premium Irish spirits range. The Muff Liquor Company uniquely produces potato-based spirits, with gin and vodka available under the brand, while a special limited-edition whiskey is also in development and will launch in time for the Christmas market. “This is a particularly welcome development during this current difficult period for many businesses,” said Laura Bonner, CEO. “We have put tremendous work into The Muff Liquor Company and into our product, and now it is important to adapt our business model and expand our markets and marketing approach in conjunction with Primeline.”

THE Creative Retail Awards live event will take place in London in October 2021, and organisers have extended the entry deadline to April 30, 2021, following an unprecedented number of companies requesting an extension to the submission deadline. If a project was previously entered into the postponed 2020 Awards, the entry has automatically been rolled over and entered into this year’s awards. This also means there is more time for companies to enter the prestigious Supplier of the Year Award. For more information, visit www.creativeretailawards.com.

IRISH Poitín’s Geographical Indication status is now recognised in the Japanese market, in a move that will offer Irish producers improved protection and potential to grow exports to the world’s third largest economy, with nominal GDP of $5.6 trillion. “Exports of Ireland’s GI spirits have grown significantly in recent years,” noted Vincent McGovern, Head of Drinks Ireland - Spirits. “Between 2018 and 2019, they grew by 5.95%, from 18.5m to 19.6m nine-litre cases.” IRISH Distillers has announced the appointment of Deirdre O’Carroll as Blender at Midleton Distillery, Co. Cork. In her new role, Deirdre will work with Master Blender Billy Leighton in Midleton Distillery, and will be responsible for the development of new and existing blends, marrying together specific and intricate flavours and aromas, ultimately creating a palette of tastes that make up Irish Distillers’ portfolio of Irish whiskeys.

IRISH workers working from home have put in 300m overtime hours since the start of the pandemic, with growing concern over increasing workforce burnout, according to new research from laya healthcare. Laya healthcare’s Resilience Rising: Shaping the Future of Work and Wellbeing research, one of the largest research studies among Irish employees and employers during Covid-19, reveals 43% workers are experiencing frequent stress. 65% of those working from home feel pressure to stay connected after normal hours, with an average of 22 hours put in of overtime per month by employees over the last year, worth €7 billion. “We are seeing worrying signs of deteriorating morale among employees, due in part to less social interaction with colleagues, the struggle to self-motivate, and having to be ‘always-on’,” noted Sinéad Proos (pictured), Head of Health and Wellbeing at laya healthcare.

A NEW book aimed at educating children about the Covid-19 pandemic has been launched by children’s stage school owner, wellknown performer and entrepreneur Alison Vard Miller. Entitled ‘The Naughty Little Germ’, Alison’s debut book explains the pandemic in a child-friendly way and is designed to act as a guide for parents and guardians to help explain the concept of Covid, germs and disease transmission to children. The Naughty Little Germ is available in most Dunnes Stores, Tesco and Circle K outlets nationwide and retails at €9.99.

PERFORMANCE nutrition brand Grenade has enlisted Ashley Banjo and Diversity in an explosive long-term partnership. In Diversity’s biggest partnership to-date, Ashley Banjo will direct a series of heart-stopping moments for Grenade, everything from exclusive dances, TikTok challenges, mini movies, product launches and adrenaline-fuelled races. Announcing the dance group’s partnership with the British company – known for its tieups with the armed forces, Ashley choreographed an epic militaryinspired performance at an undisclosed Air Force base in England.