Managing employees whose work is impacted by drinking outside work or who may even have turned up at work under the influence of alcohol and unfit to work, requires careful review and should not necessarily result in dismissal or disciplinary action being taken. A distinction needs to be drawn between social drinking and alcoholism to determine what action is approriate to take, as the Labour Court has upheld that alcoholism is a disability under the Employment Equality Acts, 1998 – 2004 and therefore, employers are required to provide “reasonable accomodation” in respect of an employee who has a drinking problem. Once a medical opinion has confirmed alcoholism, an appropriate rehabilitation program needs to be arranged and facilitated by the employer. The employee also should be clearly told that alcohol consumption that affects his/her performance and ability to carry out their duties is prohibited and that they will not be allowed to attend work if unfit. This is even more important if they are engaged in safety critical roles that may endanger not only themselves but colleagues and the public. If rehabilitation proves unsuccessful, an employer is then in a better position to review the longer term situation and whether employment can be maintained.

Following the publication of the recent batch of employment appeal tribunal decisions this week, I thought I would use the opportunity to review three constructive dismissal claims that were heard, two which were successful and one unsuccessful. In a constructive dismissal situation, an employee leaves their job because they believe that they can no longer remain in their position, due to the actions of their employer. Unlike in ordinary dismissal sitations, the onus is on the employee to prove that they had no choice but to take this action and resign.

The first successful case involved a Night Club Manager being awarded 4,000 after he resigned over non payment of a bonus, which was outlined in his contract of employment. He claimed that he was not made aware that payment was linked to reaching targets and that records had been altered to his disadvantage. The Tribunal was satisfied that the non payment of the bonus constituted a fundamental breach of his contract, which allowed him to successfully claim constructive dismissal.
In the second successful case, a former block laying apprentice successfully claimed constructive dismissal and was awarded 27,000 after his employer tried to persuade him to convert to a self employed arrangement, in a procedurally unfair and unprofessional manner,which made his work conditions impossible.

Finally, a garage foreman was unable to prove that he had no choice but to resign after he claimed his manager had cut his hours without notice, was abusive to him when the car wash wasn’t working and had failed to roster him for work after he walked out. The manager claimed that he did not raise his voice and that it was necessary to have the car wash reset a number of times. He had also discussed with the foreman why it was necessary to reduce his hours and could not roster him as he believed he wasnt coming back.

In respect of the first case involving the non payment of the bonus, it shoud be noted that the wording of the employment contract did not clearly link the payment of the bonus to meeting targets and therefore, the employer did not have the right not to make payment. In respect of all variable or performance related payments, it is critical that employers clearly document payment condititions at the outset. In the High Court Case of Finnegan v J&E Davy’s, the plaintiff was successful in claiming that he had not agreed to the unilaterally imposed deferment of significant bonus payments, which the Company were not willing to pay if he went to work for another stockbroker. There were no written agreemnt to support the practice.

As redundancy figures continue to increase dramatically day by day,temporary lay off and short time working may offer employers an alternative to redundancy and an option to reduce costs until such time as business conditions improve. Both situations involve implementing a reduced working pattern, which is believed not to be permanent. Lay Off involves a complete cessation of work for a temporary period of time, with no payment being received, whereas short time involves a reduction in working hours, to less than 50% of normal weekly hours or 50% of normal weekly pay.

However, it is important to know that employees may initiate a claim for redundancy if they have been laid off or put on short time (or a combination of both) for a consecutive period of 4 weeks or a broken period of 6 weeks within a 13 week period. In order to resist a redundancy claim of this nature, an employer must be able to provide 13 weeks normal work within 4 weeks of the redundancy claim.

Whilst there is no minimum notice required for lay off or short time, as much notice as possible should be given to employees.It is also important to communicate regularly with employees and to provide information on business conditions, so that a reduction in working hours does not come as a total surprise. Finally, employment contracts should also provide for the option to lay employees off or put them on short time.

As the tradtional Xmas party season approaches, it is not only the current recessionary times that employers need to consider when organising the Staff Xmas Party. A significant number of cases taken by employees under different pieces of employment legislation illustrate very clearly that employers need to be aware of and take responsibility for behaviour and problems that may arise at or as a result of work related social events, which are deemed to be an extension of the workplace. Otherwise, the cost of the Xmas party will be far in excess of what was budgeted, as the following recent cases illustrate:

An employee attending her Xmas Party during a period of maternity leave was awarded 25k for constructive dismissal after she was called a floozie and stay at home mum by her manager and was unable to return to work. In another case, a waitress who was asked to go home in a taxi with the General Manager and who was subsequently not taken back on after a period of lay off,was awarded 12k for sexual harassment and victimisation under the Employment Equality Acts.

The Employment Equality Acts are important in that they define workplace harassment and sexual harassment as well as the responsibilities of employers. In particular, that employers may be held responsible for the actions of customers and business contacts (Section 14A) and that anything done in the course of employment by an employee, will be regarded as done also by the employer, regardless of their lack of knowledge or approval (Section 15).

So, whilst its important to recognise the contribution of staff to the business (particularly during difficult times) and the good will and morale boost that can result from social events,employers would be well advised to take a number of precautionary measures to help protect themselves from potential claims:

1. Ensure there is a clear and well communicated bullying and harassment policy in place.

2. Remind all staff that failure to abide by normal standards of behaviour at work related social events will be dealt with under the company disciplinary policy.

3. Follow up on all complaints promptly and fairly. Managers with responsibility in this area should be trained and know how to handle a complaint.

4. Dont discuss pay, promotions and work issues. Leave them until back at work!

5. And finally, encourage moderate alcohol consumption and arrange transport home.

In a high profile case published earlier this year, a Company who provided mulled wine and a free bar until 2:00am at its Xmas Party had an award of over 150k made against it to a manager who had been dismissed for an alercation at the Party. The manner in which the matter was investigated and dealt with was held to be unfair and the tribunal believed the evidence of the dismissed employee, who had worked with the Company for over 30 years. The Tribunal also noted the lack of a contract of employment and personnel file for the dismissed employee, who was earning substantially less as a taxi driver since being dismissed. Hence, the maximum award of two years salary !

A hotel worker who claimed she had been discriminated against for not wearing a skirt at work in her waitressing role and who was subsequently victimised by having her shifts reduced, was awarded over Euro 8,000 by the Equality Tribunal recently.

Whilst it is acceptable for organisations to implement dress codes and standards of appearance appropriate to the business image they are projecting, it is important that the standards do not unnecessarily or unreasonably impose restrictions on one gender over another. Equally, requirements need to be clear and implemented consistently. This did not happen in the above case where the hotel’s policy was unclear and the waitress was initially given the option of wearing either trousers or skirts.

Indeed, employers need to be aware of direct or indirect discrimination occuring,under any of the nine different groups that are covered under existing equality legislation (age, disability, race, gender, sexual orientation, marital status, family status, religion or membership of the travelling community). For example, the recent publicity surrounding the Sikh Garda Recruit not being allowed to wear his turban whilst on duty or the Muslim teacher not allowed? to wear her veil whilst teaching illustrate the difficulities that can arise. And the case of the Dunnes Stores employee reinsated after being dismissed for not shaving off his beard highlights that it is not necessary that the same standards are applied to everyone but that equal treatment is afforded. In this case, female employees did not have to cover their hair up nor wear face masks and it was held that the requirement for a male employee to be clean shaven was not justified against the standards appplied to other employees.