First Tuesday Q&A

The claimant was dismissed by reason of gross misconduct and in particular.

We have an employee that suffers from age-related macular degeneration. Their performance at work has suffered since their diagnosis and it has now reached the point where they are not doing their job properly. Can we dismiss them?

Posted in: First Tuesday Q&A NI on 03/04/2017 This is a highly litigious issue and so specific legal advice should be obtained before taking any further steps in respect of the employee in question. By way of general guidance, however, it should be noted that, as well as showing that capability was the reason for dismissal, employers will also...
This article is listed under the following topics:
Dismissal Absence and Sickness Discrimination and Equality

Like many organisations we may have to reduce staffing costs. Is it lawful to terminate employees on fixed term contracts first or must they always be considered equally with full time permanent staff?

Posted in: First Tuesday Q&A NI on 02/09/2015 If an employee’s fixed-term contract expires, without renewal on the same terms as before, or is terminated as in a redundancy situation, the employee will have the same rights to unfair dismissal and redundancy protection as a permanent employee, subject to the usual qualification periods. The emp...
This article is listed under the following topics:
Dismissal Redundancy Contracts of Employment

What happens if a tribunal says an employee should be reinstated but the employer doesn’t do it/refuses to do so? Are there mechanisms to enforce the decision?

Posted in: First Tuesday Q&A NI on 02/12/2014 A reinstatement order is one of three remedies that a tribunal can award in a claim for unfair dismissal. The other two are: re-engagement and compensation. Reinstatement is where the employee is given his old job back on the same terms and conditions, and with no loss of continuity of employment. ...
This article is listed under the following topics:
Dismissal

Does dismissal for absences due to post-natal depression arising after maternity leave amount to sex and/or pregnancy and maternity discrimination?

Posted in: First Tuesday Q&A NI on 05/08/2014 Under Article 5A of the Sex Discrimination (Northern Ireland) Order 1976, pregnancy discrimination occurs where an employer treats an employee unfavourably because of her pregnancy or because of an illness she has suffered as a result of her pregnancy during the “protected period” i.e. from the beg...
This article is listed under the following topics:
Dismissal Absence and Sickness Discrimination and Equality Working Time

We recently had an employee whom we caught abusing our internet policy. We allowed him to resign rather than go through the disciplinary process, which we thought would inevitably lead to dismissal, given the seriousness of the wrong-doing and the strength of evidence. However, a HR colleague from another location said we have left our employer open to an unfair dismissal challenge. Could you please advise?

Posted in: First Tuesday Q&A NI on 05/08/2014 It is not uncommon for employees to resign in the face of potential dismissal and employers often prefer this option in order to avoid the time and expense of a dismissal leading to a dispute or litigation, which can of course happen regardless of whether the dismissal was fair. However, employers ...
This article is listed under the following topics:
Dismissal Discipline and Grievance Policies and Procedures

At what point can an employer justify “frustration of contract”?

Posted in: First Tuesday Q&A NI on 01/07/2014 A contract of employment may come to an end when an unforeseen event makes performance of the contract impossible or radically different from what the parties originally intended. The contract is then said to have been “frustrated”. When a contract is frustrated it ends automatically by operation o...
This article is listed under the following topics:
Dismissal Contracts of Employment

Can previous history be taken into account when dismissing someone for gross misconduct?

Posted in: First Tuesday Q&A NI on 01/04/2014 An employer may dismiss fairly for a first instance of gross misconduct. It is also possible to dismiss fairly where a less serious form of misconduct takes place, following previous warnings. In some cases it may be difficult to pinpoint whether behaviour amounts to gross misconduct and it will de...
This article is listed under the following topics:
Dismissal Discipline and Grievance

When, if ever, it is appropriate for an employer to argue frustration of contract? For example if an employee is given a prison sentence of 3 or more years for an offence that is no way connected with their employment can an employer claim frustration rather than have to go through the statutory dismissal procedure using "some other substantial reason" as the potential reason for dismissal?

Posted in: First Tuesday Q&A NI on 01/10/2013 Case law confirms that a custodial sentence imposed on an employee is capable of frustrating the contract of employment but whether it does or not depends on the circumstances of the case with the length of the term to be served by the employee being a significant factor to be considered. Tribunals...
This article is listed under the following topics:
Dismissal Discipline and Grievance Contracts of Employment

Can you dismiss an employee for breach of trust? How would a Tribunal see this?

Posted in: First Tuesday Q&A NI on 03/09/2013 Dismissing for breach of trust / trust and confidence is possible and falls into the category of dismissing for “some other substantial reason”. This type of dismissal should, however, be handled with caution as Tribunals are likely to look carefully at the surrounding circumstances to determine if...
This article is listed under the following topics:
Dismissal

An employee (on a permanent employment contract for past 2 years) has always worked on a 2 shift arrangement on Monday (7 hour shift) & Tuesday (7 hour shift) only each week since she commenced with the company. The company, in order to cover its shift requirements for a two week period, now wants the employee to a) increase the number of shifts and b) for the employee to work days other than Monday and Tuesday. It is known that the employee works for another company (non-competing) for some other days each week. There are other employees (both male and female) who work shift arrangements with the company and they generally work between 5 to 7 shifts per week and are available all days. The company wants to commence discussions with the employee to increase the number of shifts that she can undertake and also to be able to do additional shifts on days other than Monday and Tuesday. a) What approach would you recommend? b) What advice would you suggest if the employee refused to undertake the planned new arrangement? c) Can the company go as far as to terminate the employment contract if the employee refused to co-operate?

Posted in: First Tuesday Q&A NI on 02/07/2013 When an employer considers making changes to an employee’s terms and conditions of employment, from a legal and practical perspective, obtaining the consent of the employee is the simplest option for employers. This will obviously not be a problem if the change is to the employee’s benefit but clea...
This article is listed under the following topics:
Dismissal Contracts of Employment