Penalisation claims and Probation in Employment

Author: Barry Walsh

December 18, 2018

In a recent employment law update (click here) we looked at risks for employers with termination of employment during probation and the type of claims that an employee with less than twelve months’ service might contemplate.

A further recent example of a relevant Workplace Relations Commission (“WRC”) decision highlights again the various claims that can still be brought by employees who do not have sufficient service to bring an unfair dismissal claim.

This case involved a successful claim by an employee for “penalisation” under the Safety, Health and Welfare at Work Act 2005 (“the Act”). The employee had only been employed for approximately 7 months when she was dismissed and was awarded €20,000 as compensation. The award is enforceable but is open to appeal.

Under the Act, amongst other things, employers are prohibited from penalising an employee for making a complaint about their safety. Such “penalisation” can include various detrimental acts, including dismissal. An employee bringing such a claim does not need the usual twelve month service that is generally be required to bring an unfair dismissal claim.

To succeed in such a claim, an employee must effectively show that the penalisation (in this case, the dismissal) occurred wholly or mainly as a result of the employee raising a safety related concern.

As with all cases, the decision turns on its particular facts. The safety concern raised in this case was an allegation of bullying against the employer’s managing director. The bullying complaint, formalised the day before the dismissal, included allegations that the employee had a presentation cut short by the MD and had not received recognition for a particular project. The WRC finding was made notwithstanding that the employee had previously had her probation extended.

Awards, particularly of this size, under the Act are relatively rare. While the decision may be seen as surprising by some, the key point is that it underlines again for employers that there are various risks that arise with dismissal of employees with less than twelve months service.

As stated in our recent blog, employees with insufficient service to take a more conventional unfair dismissals route can nevertheless instead attempt to rely on a variety of statutory provisions (such as in this case) to challenge termination of employment. As well as the Safety, Health and Welfare at Work Act 2005, other examples include the Employment Equality legislation, whistle blowing claims (the Protected Disclosure Act) or indeed the non-enforceable Industrial Relations Acts route as arose in in the recent Park Hotel case, the subject of our previous blog.

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