The Employment Law 2021 conference will assist you in navigating the complexities of the disciplinary process. It will provide you with a practical guide to the New Code of Practice on Workplace Bullying as well as alerting you to new legislation and case law. The overall emphasis will be on practicality and the conference is designed to highlight potential pitfalls and problems which can occur in day-to-day practice.
The New Code of Practice on Workplace Bullying
The new Code of Practice on Workplace Bullying replaces two pre-existing codes. It applies irrespective of whether employees are based at a fixed location, at home or are mobile workers. Furthermore, it specifically provides for digital and cyber bullying which is of particular importance in the context of remote working. While some of the principles in the code will be familiar, there are specific provisions which will have far-reaching implications for the manner in which bullying allegations are addressed. This section of the seminar will provide you with practical guidance on the relevant issues.
What guidance does the code provide in relation to what constitutes bullying?
How does the code clarify what behaviour does not constitute bullying?
Managing bullying at work: what the code says about the responsibilities of employers and employees.
When might preventative measures need to be included in an employer’s safety statement?
Is there an obligation on an employer to consult with staff (and the safety representative) in developing a robust anti-bullying policy?
What should an employer do if the complaint relates to a senior person in the organisation?
Resolving bullying: the key steps in the two-stage informal process
What might an employer do in a small organisation?
The formal process: is there an obligation to consult on the identity of the internal or external investigator?
The function of the investigation: to reach a determination on whether the behaviour complained of has occurred, or to decide whether bullying has occurred?
Is an employee who makes a bullying allegation entitled to details of any disciplinary action taken against the perpetrator?
The nature of the right of appeal within the formal process: Is it an appeal on the merits/de novo hearing or does it relate to the conduct of the investigation in terms of fair process and adherence to procedure?
The nature and extent of the employer’s obligation to keep and maintain records of complaints and investigations in line with GDPR and the Data Protection Act 2018
What action can the Health and Safety Authority take if it decides that an employer has failed to act reasonably in relation to the processing of a bullying complaint?
What should an employee do if internal procedures have been exhausted and the bullying matter remains unresolved: Section 13 of the Industrial Relations Act 1969
The Disciplinary Process
A myriad of legal issues arise for consideration in the disciplinary process. These are subject to challenge before the courts and employment law bodies on an ever-increasing basis. This session will address the main points of guidance for practitioners advising on a disciplinary process. It will identify key established principles and analyse recent developments in this area. Key topics will include:
Ensuring consistency and fair treatment of all employees having regard to Ruffley v Board of Management of St Annes School  IESC 33
What is the up-do-date legal position on the use of holding suspensions, given the impact of Bank of Ireland v Reilly  IEHC 241 in recent years?
What is the latest guidance concerning fair procedures in disciplinary processes?
What happens if the employee refuses to co-operate with the disciplinary proceedings?
How have the courts dealt with circumstances where cross-examination is not appropriate due to the vulnerability of the complainant?
The right to legal representation: the exception or the rule? The impact of the Supreme Court decision in Irish Rail v McKelvey (Supreme Court, 11 November 2019).
Developing case law in relation to the status and effect of final warnings: Is there a constitutional dimension to such warnings? Dillon v Board of Management of Catholic University School  IECA 292 and A Teacher v A School (ADJ-00009353, 9 July 2021)).
In what circumstances will an employer be prevented from embarking upon an investigation altogether? (Mason v ILTB Limited t/a Gillen Markets  IEHC 477)
Provision of the right of appeal: what considerations should be to the fore?
Legislative Update and Recent Case Law
This section of the seminar will analyse the practical implications of the following:
The Protected Disclosures (Amendment) Bill 2021: significant extension to protection for whistle-blowers
The Gender Pay Gap (Information) Act, 2019: narrowing the gap