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Legal recourse rarely best for those overlooked for workplace promotion

18 Jul 2019 / employment Print

Legal recourse rarely best for promotion woes – firm

A Philip Lee briefing note by Patrick Walshe has warned that legal recourse is rarely the best option for those who feel overlooked for workplace promotion.

It says that as a general principle, a private sector employer is under no obligation to promote someone or increase their salary or any other form of remuneration up to and including bonuses.  

The employment contract the parties enter into at the outset of the relationship continues to govern the relationship unless there is an agreed variation – such as a promotion.

From that perspective, if one party (the employer) decides that it is happy with the status quo and doesn’t intend to change it, there is very little the other party can do in response.  

While employment law regulates the employer-employee relationship to a large extent, it will rarely interfere with core terms of the contract of employment, the briefing note points out.

What this means is that if you’ve been hired to carry out a particular job, that’s the extent of your entitlements – you have no inherent right to be allowed to take on a different or more senior role.

While this is the general rule, employees in certain situations may have other options. For example, if a worker was told at the outset of employment that they would be eligible for promotion if certain targets were achieved. 

In this instance, where the targets have been met and promotion has not been forthcoming, at a minimum there will be justification to formally complain (perhaps by way of a grievance).

Promotion

An employee in this situation may in certain circumstances be able to bring proceedings for breach of contract if it is equivocally the case that their employer guaranteed that, if they met a certain standard/achieved an agreed target, promotion would follow.

However, it would be quite rare for a contract of employment (or offer letter) to include an open-ended guarantee of this nature. 

Most of the time, an employer will be very cautious in offering inducements – and a prudent employer will make it clear that it will merely consider promotion depending upon an employee’s performance in the job. 

Blank cheques, to put it another way, are very much the exception, Philip Lee points out in the memo.

Discrimination

Under Irish Employment Equality legislation, employers are prohibited from discriminating against employees on any of the protected grounds (including gender, race, age, religion, disability, sexuality, family/civil status, membership of the travelling community and others).  

Promotion is highlighted for particular attention – current equality legislation specifically forbids discrimination against an employee in relation to promotion.

A number of cases have been fought – and won – under this heading and it’s quite clear that an employer won’t be permitted to discriminate when promoting.

Rare

However, it’s worth noting that these situations are comparatively rare – and it’s likely that the majority of disappointed candidates for promotion won’t be able to bring themselves within the scope of this remedy.

For the most part, unfortunately, the classic route – handing in your notice and looking for better opportunities elsewhere – is the only viable option for an employee who thinks they deserve a promotion.  That’s a fact of working life that’s unlikely to change, according to Philip Lee.

 

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland