EMPLOYMENT LAW NEWS

February 2009 Issue No: 15

As we kick off another year it is timely to remind you of the need to make sure that you have all your terms and conditions of employment in writing. You also need to make sure that all offers of employment are made by producing the written employment agreement to the prospective employee and telling them that they are entitled to seek independent advice of the terms on offer and that you will consider any issues that they may wish to raise arising from the offer. With the amendments to the Employment Relations Act comes an added obligation for employers which is, that the process above also applies to variations to employment.
TRIAL PERIOD
1st March 2009 onwards will bring some interesting arguments to the table with the enacting of the trial period, or what the unions have labeled “the fire at will bill”. This amendment to the Employment Relations Act 2000 allows employers that employ fewer than 20 staff to employ someone on a trial period of 90 days, during which time they may give notice of termination without giving reason and without the risk of the employee challenging the dismissal. The employment agreement must contain notice to the employee of the specifics of the trial period and the restriction of their rights
to challenge. Should the employer not comply with the requirements of this new legislation, the trial period may be deemed to be of no effect and the employee may have full access to claim the personal grievance remedies in the Act. The provision is only available to employers that have fewer than 20 employees at the time the agreement is entered into. In order to assess whether an employer is entitled to the protection the amendment provides for, a clear record must be available if that information is required. The Act does not provide for any mechanism for disclosure of information about employee numbers so it will be interesting to see how this area develops. Although the employee concerned will not be entitled to challenge the dismissal, all other personal grievance grounds remain available during the life of the agreement including access to the mediation service.
The big risk for employers is the provision that allows the employer to give notice (and it can be verbal notice) of termination within the 90 days even if the termination date falls outside the trial period. Our strong advice is that if notice of dismissal is going to be given, it should without exception, be in written form. To rely on verbal notice is to allow exposure to a dispute about whether dismissal was notified or not. The risk for an employer is that if the employee denied receiving verbal notice during the trial period and claims unjustified dismissal if the employment ended outside the notice period, then the burden would be on the employer to prove that dismissal had been notified. If the employer is unsuccessful in
persuading the Authority that it did dismiss during the trial period, the outcome will surely be that the dismissal occurred outside the trial period and will immediately fall foul of all the justification requirements that currently exist. Written notice of termination will be necessary to avoid such disputes reaching the Courts. If you would like your employment agreements updated or reported on, please feel free to contact us.
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On a separate note, we are pleased to advise of the added services we now provide:
• Computer analysis, employee monitoring. Keep your eyes on employees using email and internet.
• Data recovery, useful when staff leave employment and delete vital files.
• Email recovery, useful to see the traffic sent and received during employment, especially with confidential information. Our services also include -
• Restructuring / Redundancies
• Employment Advice
• Contract Negotiations
• Employment Agreements
• Disciplinary guidance
• Private Mediator
• General HR advice and best practice
Contact us to find out more about these services.