Employer Resources Newsletter - May 2024

Adare (formerly Adare Human Resource Management) proudly unveils their new brand and announces a complimentary virtual event featuring Kieran Mulvey, Chairman at Adare. Adare’s recent publication of the HR Barometer report revealed that 74% of organisations in Ireland reported experiencing workplace conflict in 2023, representing a notable 5% increase from the previous year. The rise in grievances and disciplinary issues may indicate ongoing challenges related to managing employee expectations around hybrid and remote working in the post-pandemic era.

Digging into the figures, over half of the organisations surveyed cited ineffective line management as a leading cause of disputes, suggesting issues with clarity of instructions, workplace support, or fair treatment. Additionally, just over half identified a lack of effective performance management as a significant cause, highlighting the importance of how performance is monitored, feedback is given, and objectives are evaluated. Poor communication was the third most cited cause of conflict, leading to unclear expectations and misinterpretations among management and staff or coworkers.

To address these trends, organisations must focus on enhanced conflict resolution mechanisms, cultivating a collegial workplace culture, and ongoing training programs around conduct, grievances, and harassment. As Irish workplaces experience an increase in conflict, there's growing pressure on HR departments and people managers to resolve these scenarios. Failure to address conflicts can lead to negative outcomes such as low morale and high turnover.

To future-proof organisations against increasing conflict, several approaches should be considered:

1. Communication: Encourage open communication and early intervention through regular meetings, one-on-one discussions, and anonymous feedback systems.
2. Workplace Culture: Cultivate a respectful and empathetic environment to mitigate negative outcomes associated with conflicts.
3. Support for Line Managers: Equip line managers with the skills to provide clear instructions, support, and address concerns promptly, reducing the likelihood of issues escalating.
4. Support for HR Departments: Ensure HR has the clarity and support needed for effective early resolution practices, including investment in training and a confidential outlet for HR employees facing challenges.

Adare have, for over two decades, supported organisations in the nonprofit sector in the areas of conflict and dispute resolution. 

The rebrand reflects Adare’s continuous evolution and its commitment to meeting the changing needs of its clients in a rapidly transforming business landscape. "This rebrand isn't just about a new look. It's about reaffirming our dedication to innovation and excellence in best practice Human Resource management, and, most importantly, our commitment to quality service delivery to our clients," said Sarah Fagan, Managing Director, of Adare. "We are thrilled to initiate a new chapter for Adare, which builds on our strong foundations but also anticipates the future trends of industrial and employer relations. Irish Workplaces have undergone a transformative journey, reflecting the broader global narrative of change in the work environment.”

To mark this milestone and the launch of the Adare rebrand, Adare invites the Wheel members to join a special event titled "Beyond the Bargain: Reflections on Industrial Relations and Conflict Management" on May 8, 2024, at 10:30 AM.  This exclusive event will explore the current Employment and Industrial Relations landscape with our industry experts Kieran Mulvey and Tommy Cummins, facilitated by our Managing Director Sarah Fagan.

Join our webinar to get invaluable insights into the changing landscape of labour and industrial relations in Ireland.  Our experts delve into their wide experience of Employee and Industrial relations, looking at the past, present, and future sharing their decades of experience of coming to resolutions with positive business outcomes. Secure your spot today by registering here: https://www.adarehrm.ie/events-webinars/beyond-the-bargain-reflections-on-industrial-relations-and-conflict-management/

If you require advice, guidance, or training regarding conflicts and disputes in the workplace, please contact any of the Adare team at (01) 561 3594 or email info@adarehrm.ie for more information on how we can help and support your Organisation under our Partnership Programme.

Dismissal of Employee with Addiction Issues held to be Fair 

Background:

The Complainant commenced employment with the Respondent on 23rd February 1993 and held the role of Clinical Nurse Manager.  The Complainant was a permanent, full-time employee and received an average weekly payment of €1,105.79. The Complainant’s employment was terminated by the Respondent on the grounds of alleged gross misconduct on 18th June 2021.  The Complainant alleged that she had been unfairly dismissed and in particular, that her dismissal was outside the band of reasonable disciplinary sanctions available to the Respondent. Whilst the Complainant did admit to the wrong-doing alleged, she offered various mitigating factors and suggested conditions in respect of her return to work during the internal disciplinary process and submitted that the Respondent’s failure to properly consider this rendered her dismissal unfair. The Respondent denied this and submitted that the Complainant’s admitted wrongdoing clearly constituted gross misconduct and that the sanction of dismissal was the only reasonable response available to them.

Summary of the Complainant’s Case:

The Complainant agreed with the Respondent’s narrative of events, including the admission of the wrong-doing alleged. The Complainant submitted that following her initial suspension, she placed the Respondent on notice of her addiction issues by means of correspondence from her care counsellor.

The Complainant further submitted that in advance of the appeal hearing, she put forward the following mitigating factors; that she accepted responsibility for her actions, that she was attending a counsellor, that she completed a treatment programme for alcohol dependence, that she remained enrolled in a further two-year programme and that she continued to attend her GP in respect of ongoing care. In addition to the foregoing, the Complainant suggested the imposition of the following conditions on her return to work; the submission of ongoing evidence of her attendance at an alcohol dependency treatment centre, the submission of ongoing evidence of her attendance at AA meetings, the administration of random drug and alcohol testing and redeployment to a role where she would not be in contact with prescribed drugs. The Complainant submitted that no evidence of consideration of these mitigating circumstances and conditions was taken by the Respondent, with the matter simply being upheld on appeal.

The Complainant accepted that her misconduct would normally constitute gross misconduct. Nonetheless, she submitted that the mitigating factors she provided in addition to the suggested conditions for her staged return to employment rendered the sanction of dismissal outside the band of reasonable responses in the circumstances.

The Complainant described her mindset at the time of the misconduct in question and stated that she had sought help and endeavoured to work on the issues giving rise to the same in the intervening period. In this regard she stated that she was in the process of making amends in respect of these actions and that she sincerely wished to return to a nursing position in the future. The Complainant stated that she always held patient safety in the highest regard and that her actions did not serve to endanger the safety of any patients.

Summary of the Respondent’s Case:

On 21st January 2021, several irregularities concerning prescription medication were brought to the attention of the Respondent. On foot of the same, the Respondent commenced an internal fact-finding investigation. As part of this investigation process, the Complainant was interviewed and admitted to taking the medication in question. In addition to the foregoing, the Complainant admitted that she had taken a blank prescription form and completed this for certain medications. The Complainant presented this script, containing a forged doctor’s signature, to her local pharmacy for the purposes of illegally obtaining prescribed medications. The Complainant further admitted to this misconduct on a previous occasion.

Following these admissions, the Complainant was suspended from duty and invited to a further investigatory meeting. During this meeting the Complainant stated that she was extremely remorseful for the transgressions. She stated that she was under the care of her general practitioner but did not have any addiction issues. On 11th February, the Complainant attended the Respondent’s occupational health physician. The subsequent report outlined that the Complainant would be unable to engage with internal meeting for some time. The Complainant was subsequently deemed fit to attend such meetings on 31st March 2021. At this point, the Complainant disclosed that she had experienced addiction issues and that she was seeking ongoing assistance in relation to the same.

Following an internal investigation meeting the Complainant admitted to the following: taking two tablets of a prescribed medication from the hospital on 19th January 2021, removing a blank prescription from the ward on 9th January 2021, removing a blank prescription on 19th January 2021, forging a doctor’s signature on these scripts and using a patient’s personal data to assist with the attainment of prescription medication from a pharmacy. The Complainant further accepted that these were not isolated incidents, however she could not recall the exact dates and times of other transgressions. During a subsequent disciplinary meeting, the Complainant accepted that these matters constituted serious misconduct on her part.

By correspondence dated 17th June 2021, the Respondent stated that the Complainant’s admitted actions constituted gross misconduct. In circumstances whereby these actions had served to fundamentally breach the trust between employer and employee, the sanction of dismissal was to be applied. This correspondence also confirmed that the matter would be referred to an external regulatory body. Following an internal appeal of this matter, the sanction of dismissal was upheld, and the internal procedure finalised.

By submission, the Respondent stated that the conduct in question, and the wrong-doing associated with the same, was admitted by the Complainant at all times. They submitted that these actions were in breach of the Respondent’s own internal policy on the storage and handling of medicines, the Misuse of Drugs Act, the hospital’s code of conduct, the code of professional conduct for registered nurses and the Respondent’s own internal disciplinary policy. In this regard, the Respondent submitted that they place a significant amount of trust in their employees to act in a responsible manner. One of the primary responsibilities in this regard it is the correct and lawful maintenance and distribution of controlled medications. The Complainant’s misconduct in this regard, in addition to the admitted misuse of the personal data of a patient and a colleague, served to irrevocably breach this bond of trust. Having regard to the same, the Respondent submitted that the dismissal of the Complainant was clearly within the band of reasonable responses open to them.

The Respondent noted that they had taken the Complainant’s mitigation into consideration, however the gravity of the Complainant’s misconduct was such that the bond of trust was irrevocably broken. The Complainant was charged with the care of extremely vulnerable persons and the Respondent naturally has an enormous duty of care in respect of their wellbeing. In this regard they Respondent must have an absolute level of trust in their employees – the Complainant’s actions served to breach this trust fundamentally and irrevocably. In such circumstances the sanction of dismissal was the only appropriate outcome in these circumstances.

Findings and Conclusions:

In this case, both parties agreed that the Complainant illegally removed prescribed medications, intended for patient use, for her own use. They also agreed that the Complainant removed blank prescription scripts for the ward to which she was assigned and thereafter misused patient data and forged a consultant’s signature in order to obtain controlled medication. The Complainant further accepted that these were not isolated incidents. In addition to these facts not being in dispute, the Complainant accepted that these represented extremely serious misconduct on her part which would, in the normal course, constitute gross misconduct.

The Complainant’s case which was that the mitigating circumstances she presented, along with her suggested restrictive conditions on her return to employment placed the sanction of dismissal outside the band of reasonable responses available to the Respondent. She stated that the Respondent did not demonstrate evidence of taking these considerations into account in upholding the sanction of dismissal on appeal.

In relation to the proportionality of the sanction, the Respondent noted that they are charged with the well-being of persons who are at their most vulnerable state. They stated that consequently, they must implicitly trust their employees, particularly medical professionals, to act with the greatest of care and responsibility. The Complainant’s misconduct in this regard was multifaceted, however the cumulation was she fell far short of the standard expected of her as an employee or as a medical professional. In this regard, they submitted that the Complainant fundamentally and irrevocably breached the bond of trust necessary for her continued employment. On these grounds they submitted that her dismissal was fair.

The Adjudicator noted that it was evident that the Complainant’s admitted actions constitute gross misconduct. The Complainant immediately admitted to the same when questioned, apologised for the damage caused, sought to rectify the root cause of the issue that led to the misconduct and suggested various restrictive conditions on her possible return to work. In this regard, the Adjudicator noted that the Complainant did everything within her power to avoid the outcome of dismissal. Notwithstanding this, the Adjudicator noted that it was clear that none of these admissions or proposed conditions served to reduce the gravity of the Complainant’s misconduct. In this regard, the Respondent as a provider of health services, is burdened with a substantial duty of care to its patients and the wider public. A fundamental aspect of this duty of care is the control of prescribed medicines and patient data. The Complainant, by her own admission, misused the trust placed in her in respect of these matters. The Adjudicator highlighted that the Respondent was naturally entitled, if not obliged, to view any breach of this trust in the most serious of terms.

In this respect, the sanction proportionality test imposed by the Unfair Dismissals Act is to examine whether any reasonable employer would have dismissed the Complainant in these circumstances. Having consideration to the nature of the Complainant’s misconduct, coupled with the nature of her role and the Respondent’s duty of care, the Adjudicator found that the dismissal of the Complainant, even in contemplation of the mitigation factors presented, was within the bounds of reasonable responses available to the Respondent both in the first instance and on appeal.

Decision:

The Complainant was not unfairly dismissed within the definition of the Act.

Our Commentary:

A previous case in the Labour Court held that when dealing with an employee who has addiction issues, employers should provide an opportunity for them to seek professional treatment before considering dismissal. However, each case must be judged on its merits. Factors such as risk to safety, the level of responsibility the employee has and contact with the public are relevant factors in deciding whether or not the penalty of dismissal is within the range of reasonable responses an employer might take.

In this case, the Complainant immediately apologised for the damage caused by her actions, sought to rectify the root cause of the issue that led to the misconduct and suggested various restrictive conditions on her possible return to work. In this regard, the Adjudicator noted that the Complainant did everything within her power to avoid the outcome of dismissal. Notwithstanding this, having given consideration to the nature of the Complainant’s misconduct, coupled with the nature of her role and the Respondent’s duty of care, the Adjudicator found that the dismissal of the Complainant, even in contemplation of the mitigation factors presented, was fair.

The Impact of the AI Act on Employers and Workplace Practices

The transformative role of artificial intelligence (AI) and digital technologies in reshaping the workforce is profound. Recent IMF analysis suggests that AI could impact nearly 40 percent of global employment, underscoring the significant influence of these technologies. In this article Adare analyses The Artificial Intelligence (AI) Act that was passed by the European Parliament on 13th March 2024 and considers the impact of the regulation on organisations in Ireland and HR professionals need to prepare for upcoming legislation. 

What does the AI Act Establish?

The Regulation establishes a risk-based approach that categorises AI systems into four groups: prohibited, high-risk, limited-risk, and minimal-risk.

• Prohibited AI systems are those that violate fundamental rights or pose a clear threat to human rights, such as social scoring or mass surveillance.
• High-risk AI systems are those that have a significant impact on persons rights or lives e.g. as biometric identification, recruitment, health, education, justice. These systems will be subject to strict requirements, such as human oversight, data quality, transparency, accuracy, security, and conformity assessment.
• Limited-risk AI systems are those that involve some interaction with users, such as chatbots, online platforms, or video games. These systems will have to notify users that they are interacting with an AI system and provide an opt out facility.
• Minimal-risk AI systems are those that pose no or negligible risk, such as entertainment, spam filters, or smart appliances. These systems will be generally exempt from the regulation but will have to comply with existing laws and ethical principles.

When will the AI Act be enacted?

The Regulation is expected to be activated in May 2024 and will be fully applicable 2 years after its activation, with the following exceptions:

1. bans on prohibited practices, which will apply 6 months after the entry into force date;
2. requirements for codes of practice which will apply 9 months after the entry into force date;
3. implementation of general-purpose AI rules including governance which will apply 12 months after the entry into force date;
4. and obligations for high-risk systems which will apply 36 months after the entry into force date.

What is the jurisdiction of the AI Act?

The Regulation includes governance at EU and member state levels; it has established the European Artificial Intelligence Board comprised of representatives from the European Commission and the Member State supervisory authorities (not yet determined in Ireland), to provide guidance, promote cooperation, and monitor the application of the Regulation. 

What are the foreseen powers of the AI Act?

The Regulation empowers the Member State supervisory authorities to monitor compliance, carry out investigations, impose corrective measures and sanctions, and cooperate with other authorities across the EU. It also provides for a system of administrative fines, which can reach up to 6% of the annual worldwide turnover of the provider or user of an AI system, for the most serious infringements of the rules.

The regulation has significant implications for the development, deployment, and use of AI systems in and beyond the EU and will require organisations to be proactive in adapting and complying with the new legal landscape.

What are the potential impacts on Employers and HR practitioners of the AI Act?

The Artificial Intelligence (AI) Act could have a notable impact on employer obligations, introducing several protections and considerations in the workplace influenced by AI systems. Here are some examples of ways the AI Act could affect Employee rights:

1. Transparency and Disclosure: Employees will have the right to be informed when they are interacting with AI systems, particularly in contexts like recruitment, performance evaluations, and workplace monitoring. This transparency ensures that employees are aware of the role of AI in decisions that affect their professional lives.
2. Non-discrimination: AI systems in recruitment and HR processes, classified as high-risk, will be required to undergo assessments for bias and discrimination. This means that the AI tools used in these contexts must be designed and operated in ways that prevent discrimination, ensuring that all employees and job applicants are treated fairly regardless of their background.
3. Data Privacy: The Act emphasizes the protection of personal data, especially in the context of high-risk AI systems. Employees will benefit from enhanced data privacy protections, with AI systems required to implement robust measures to secure personal and sensitive information.
4. Decision-Making Rights: Employees will have certain rights regarding AI-influenced decisions. For high-risk AI applications, such as those affecting an individual's employment status or professional progression, there will likely be provisions for human oversight and the possibility for employees to challenge or seek explanation for AI-driven decisions, enhancing accountability.
5. Workplace Surveillance: The Act prohibits AI systems that enable indiscriminate or unjustified surveillance or monitoring of employees. This will limit the extent to which employers can use AI for surveillance purposes, protecting employees' privacy and personal dignity.
6. Professional Development and Adaptation: As AI systems evolve and become more integral to various job roles, employees may have rights or access to training to adapt to these changes, ensuring they are not disadvantaged by the integration of AI into their work environment.
7. Psychological Impact: The regulation of AI systems, especially those interacting directly with employees (like chatbots or performance management systems), will need to consider the psychological impact on employees, promoting a healthy and supportive work environment.

Overall, the AI Act aims to create a framework where AI can be used beneficially in the workplace while safeguarding employee rights and promoting fairness, transparency, and accountability. As the legislation is implemented and evolves, it will be crucial for employers to stay informed about their responsibilities under the Act.