Making Workplace Investigations Work

Peter Ward S.C.
There is considerable reluctance on the part of the courts to grant orders that would bring workplace investigations to an end. However, they are prepared to intervene if they find that there has been a clear breach of contract or fair procedures which would significantly prejudice an employee. This section of the seminar will highlight some important recent case law governing workplace investigations.
  • The importance of an explicit invocation of the grievance procedure by aggrieved employees: Elmes and Others V Vedants Lisheen Mining Ltd and Others
  • When might an individual who is to be made subject to a disciplinary process have a right to have an input into the composition of the investigation team?: Conway v Health Services Executive
  • How precisely will evidence be challenged? Does this include a right of cross examination? : O’Leary V An Post
  • Bias and Pre-judgment: Joyce V The Board of Management of Colaiste Iognaid 
Appeals in Disciplinary Procedures
  • “Substantial weight” to be attached to the recommendations of the disciplinary panel’s findings: Kelly V Board of Management of St. Josephs Schools
  • Will the courts intervene where, although an investigation report contains pre-judgment and findings arrived at in breach of fair procedures, issues of trust and confidence and reputational damage outweigh the shortcomings in the report? O’ Leary Darcy V Lisdoonvarna Failte Limited
  • Can a plaintiff succeed in restraining a disciplinary inquiry pending the outcome of a criminal investigation?: Rogers V An Post
  • When might a “holding suspension” be justified?
  • Might delay in the progress of an investigation result in the suspension ceasing to be a “holding suspension”? Does the balance tip towards a requirement of procedural fairness in these circumstances? Canavan v Commissioner of an Garda Síochana
  • Length of suspension: Kinsella V Ulster Bank
  • Will the mere invocation of a “holding suspension” immunise that suspension from judicial examination as to its nature, effect and potential prejudice to an employee? 
The General Data Protection Regulation: Implications for Employers and Employees

Catherine O’Flynn

The General Data Protection Regulation will come into full force on 25 May 2018. It is unquestionably the most ground breaking piece of EU legislation in the digital era. The changes introduced are fundamental and far- reaching. Not only does it apply to personal data of EU citizens stored in the EU, it also applies to personal data of EU citizens which is stored outside the EU. The Regulation significantly enhances employees’ rights as well as giving them greater control over their personal data. It also increases employer accountability for data privacy and compliance. Breach of the Regulation will have serious financial penalties for employers. Furthermore, disgruntled employees may now have a right of action against their employer for non – material damage.

Employee Consent

The Regulation makes it significantly more difficult for an employer to obtain a valid consent from an employee.
  • The conditions which must be fulfilled for a consent to operate
  • Is the burden of proof on employers to be able to demonstrate that a valid consent has been obtained?
  • Will consent now require a clear affirmative action by an employee?
  • The implications for employment contracts or other such documents which contain consents: Must the consent be separate and clear from the rest of the document?
  • Can entry into the employment contract be conditional on giving consent?
  • The right of withdrawal to be set out in the contract document
  • Does the Regulation effectively limit consent to what is essential for the performance of the contract of employment? 
Standards of Consent
  • “Unambiguous consent” for ordinary personal data and “explicit consent” for sensitive personal data
  • Can consent be inferred from silence or pre-ticked boxes or does it require a positive indication of agreement?
  • Review of existing consents to ensure that they are in compliance with the Regulation

Right of Access by the Data Subject: Implications in an Employment Law Context
  • Must an employer now provide an employee with an estimate of how long the personal information will be held or at least the basis on which the data will continue to be held?
  • Must employees be informed of their right to complain to the Data Protection Commissioner?
  • Has an employee a right to know where data about them from elsewhere has been sourced?
  • Is the supply of data electronically the default option?
Rectification and Erasure
  • Employees’ right to be informed of their right of rectification and erasure as well as the right to object to data processing
  • Should employers be prepared for “right to be forgotten” requests from employees in addition to standard access requests?
  • Is the right of erasure likely to come into play when an employee withdraws consent to their data being processed?
Liability, Remedies and Penalties
  • Mandatory reporting of data breaches, Developing policies and procedures for managing data breaches
  • Must high- risk breaches be reported to affected employees?
  • Judicial remedy for unlawful data processing by an employer : potential liability for employers and possible compensation for employees
  • Does Article 80 open up the possibility of not for profit organisations such as trade unions taking class actions for employees who suffer breach of rights under the Regulation seeking compensation from the Data Protection Commissioner and in turn the courts? 
The Protected Disclosures Act, 2014: The Effect on Employment Processes
Kevin Langford

The Protected Disclosures Act, 2014 has recently shown its teeth. It represents a new standard of international best practice for whistle-blowers in Ireland. Furthermore, it poses significant challenges for employers in respect of the new types of claims that may be brought. This section of the seminar will analyse the key features of the legislation and analyse its implications for solicitors whether acting for employers or employees.
  • Who is covered by the legislation? Are the protections available limited to employees or do they also extend to contractors, agency staff, former employees, trainees and interns?
  • What is a “protected disclosure”? Must the disclosure be made through a protected disclosure channel for the protection to apply?
  • What constitutes “relevant information” and “relevant wrongdoing”?
  • Does “relevant wrongdoing” include acts outside Ireland and acts prohibited under foreign law?
  • Are there implications for multi-national organisations who are subject to world-wide regulatory obligations?
  • “Relevant wrong-doing”: Must there be a connection between the worker’s duties and the disclosure? Is there a requirement that the wrongdoing be material or serious?
  • The stepped disclosure regime: What are the differing evidential burdens for disclosure to an employer or other responsible person, to a prescribed person, to a relevant minister, to a legal advisor or to third parties?
  • Is the presumption that a disclosure is a protected disclosure likely to make the defence of claims more difficult?
  • Is the worker’s motivation in making the disclosure relevant? 
The Specific Protections available to Whistle-blowers
  • Special Unfair Dismissals Protection: Does the usual length of service requirement apply? What increased level of compensation is payable? Can the amount of compensation payable be reduced for improper motive?
  • Protection against Penalisation: Is the practical effect of this to confer immunity from suspension or other disciplinary proceedings on a worker? Might it be necessary to hold an independent investigation?
  • Provision for a ”statutory injunction” by the Circuit Court: The parameters of the low threshold for the granting of interim relief
  • Is an employee entitled to receive remuneration and accrue service until his/ her claim for Unfair Dismissals is determined or settled? Is there any provision for clawback of amounts paid in the interim period where a tribunal ultimately finds that the decision was justified?
  • Other Protections available to whistle-blowers: Civil Liability immunity and Criminal Law immunity, qualified privilege under Defamation law and protection of identity. 
Other relevant issues
  • Prohibition against contracting out of the legislation: the possible impact on compromise agreements
  • Does the fact that there is no prohibition on or different treatment for anonymous disclosures raise fair procedure issues?
  • Drafting effective whistle-blowing policies and procedures and aligning them to existing policies. Is it advisable to make such policies applicable to third parties such as contractors or to have a parallel process for such persons? 
Where Next After Freshways: Are Unions back at the Table in Non-Unionised Workplaces?
Maura Connolly

Although employers are not required to engage with Trade Unions, attempts have been made by the legislature to encourage employers to engage in collective bargaining. The introduction of the Industrial Relations (Amendment) Act, 2015 was designed to address and indeed reverse the interpretation given to the term “collective bargaining” by the Supreme Court in Ryanair Limited V The Labour Court . Now, in certain circumstances, the Labour Court may make a binding determination in relation to employee pay and conditions in favour of a Trade Union whose members are employed in a non- unionised workplace.

Siptu V Freshways is the first recommendation of the Labour Court since the 2015 amendments came into effect. It is widely seen as having revitalised the court’s jurisdiction. This section of the seminar will address its implications and will be of importance to practitioners whether acting for employers or employees.

Jurisdiction Issues
  • What conditions must be fulfilled in order to invoke the court’s jurisdiction?
  • The new definition of “collective bargaining” in the 2015 Act
  • What must an employer prove to oust the court’s jurisdiction?
  • Must it be able to demonstrate that it is “the practice” of the employer to engage in “collective bargaining” with an ”excepted body”?
  • Can a once-off or ad hoc occurrence of collective bargaining amount to “a practice”?
  • What requirements must be met to be deemed an ”excepted body” under the legislation?
  • The consequences for an employee forum with elected or appointed members which does not negotiate solely in respect of its own members but on behalf of “the generality of those employed by the employer”
  • What are the implications for an employee forum which does not engage in negotiation but mere consultation?
  • The number of workers: the ”not insignificant” test 
The Appropriate Comparator
  • Consideration by the court of “the totality of remuneration and conditions of employment”: Does this new definition include non-contractual matters such as security of employment, training opportunities and fringe benefits?
  • Does the new criteria broaden the comparator net to include re-numeration in both unionised and non-unionised employments?
  • How relevant is the “general line of business “of the respective undertakings, their size and whether they are in competition with each other?
  • Has the court’s ability to ignore the wider economic circumstances been curtailed? 

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