Irish Employment and Workplace Law Updates

Procedural Requirements of a Fair Redundancy Process

Tue, 02 Sep 2025 08:39:02 GMT

Introduction

The case of Donal Finnegan v Liffeyfield Limited t/a Bonnington Hotel (ADJ00055992) examines the circumstances under which a dismissal, on foot of redundancy, will be deemed to have been carried out in accordance with the procedural requirements of a fair redundancy process.

Mr Finnegan (the “Complainant”) brought a complaint under Section 8 of the Unfair Dismissal Act, 1997 against Liffeyfield Limited (the “Respondent”) to the Workplace Relations Commission (“WRC”), alleging that his dismissal was unfair. The Complainant cited a failure to follow fair procedures in effecting the redundancy.

Legislation and Case Law

Redundancy is defined by Section 7(2) of the Redundancy Payments Act 1967 (as amended) as follows:

“(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to-

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,…”

The applicable passages of Section 6 of the Unfair Dismissals Act 1977 (as amended) (hereinafter referred to as “the 1977 Act”) provide as follows:

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

...

and…

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so-

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,”

…

Subject to the generality of Section 6(1), Section 6(4)(c) of the 1977 Act provides that the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy. As observed by Charlton J. in the leading case of JVC Europe Ltd v. Ponisi [2012] E.L.R. 70:

“In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights.”

The legislation as interpreted by caselaw including that cited above requires the employer to:

(1) establish that a genuine redundancy situation existed and if so, that the dismissal resulted wholly or mainly from redundancy and

(2) conduct itself reasonably throughout including adherence to fair procedures. This includes a fair selection process and the taking of reasonable steps to identify alternative employment. Invariably, these requirements will be inextricably linked. Where an employer has no agreed redundancy selection policy, it is well-established in caselaw that the employer must act fairly and reasonably.

Where an employee has been dismissed and the dismissal is found to be an unfair dismissal the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal not exceeding 104 weeks remuneration.

The acts, omissions and conduct of both parties will be considered when calculating the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/remunerative loss which includes actual loss as well as estimated prospective loss.

Decision

Ultimately, the adjudication officer decided that the dismissal of the Complainant was unfair. Critically, the Respondent failed to produce evidence supporting the claim that the redundancy was necessitated by financial circumstances. The adjudication officer deemed the redundancy a “sham”, executed in a manner described as “ruthless and dishonest”. This conclusion was bolstered by the fact that the Respondent advertised similar roles shortly after the Complainant’s dismissal.

With respect to the shortcomings, the adjudication officer noted that the Respondent did not:

Engage in any meaningful consultation with the Complainant prior to the dismissal;
Apply a fair and objective selection process;
Consider suitable alternative employment;
Provide clear, timely and adequate communication regarding the redundancy; and/or
Demonstrate that the redundancy was genuine in that it failed to provide sufficient evidence that the role in question was no longer required.

With respect to the particular shortcomings, in the present case, the adjudication officer noted:

That the Complainant was not given adequate notice of a “redundancy meeting” held on 04 August 2024
That the Complainant was never told the purpose of the meeting in advance
That the Complainant was never advised of his rights to be accompanied or represented at the meeting
That the Complainant was not placed on notice that the Respondent was considering redundancies
That the Complainant was not informed that he was at risk of redundancy
That there was no consultation process
That there was no redundancy policy or clear process applied by the Respondent
That no consideration appears to have been given to possible alternatives to redundancy
That the Complainant was not afforded an opportunity to make representations or proposals to avoid redundancy
That the Complainant was not provided with any opportunity to appeal the decision to terminate his employment

Considering all of the foregoing, the adjudication officer awarded the Complainant compensation of €26,000, which took into account and allows for the payment of €8,002, already made by the Respondent.

( Click here for a PDF version of this article )

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

About Crushell & Co

Crushell & Co is a specialist firm advising on the application of law in the Irish workplace.

Our Dublin-based solicitors advise employers and employees on all aspects of workplace legal and regulatory matters, including employment law, employment immigration and workplace accidents and injuries.

We translate complex legal issues into practical legal options, adapting our tactics and strategy to meet specific client objectives.

Connect: @CrushellLaw or www.crushell.ie

Returning to Work after Maternity Leave – Employment Law Protections

Fri, 18 Jul 2025 14:55:24 GMT

Background

The case of A Marketing Manager v A Drinks Retail Company (ADJ-00051379) examines the circumstances under which discrimination will have occurred, following the return to work of an employee who has availed of maternity leave, when there have been significant changes to their terms and conditions of employment.

A Marketing Manager (the “Complainant”) brought a complaint under Section 7 of the Terms of Employment (Information) Act 1994 and Section 77 of the Employment Equality Act, 1998, against A Drinks Retail Company (the “Respondent”) to the Workplace Relations Commission (“WRC”), alleging a failure to notify her of changes in employment terms and gender discrimination upon returning from maternity leave. The dispute centred on the Respondent's proposal to move the Complainant to a new role of Portfolio Department Lead, which the Complainant viewed as a demotion.

Legislation and Case Law

Section 26 (1) of the Maternity Protection Act, 1994, notes that there is a general right to return to work on the expiry of protected leave:

“(1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work —

(a) with the employer with whom she was working immediately before the start of that period or, where during the employee's absence from work there was a change of ownership of the undertaking in which she (or he) was employed immediately before her (or his) absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,

(b) in the job which the employee held immediately before the start of that period, and

(c) under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period, [and (in either case) under terms or conditions –

(i) not less favourable than those that would have been applicable to the employee and

(ii) that incorporate any improvement to the terms or conditions of employment which the employee would have been entitled, if she (or he) had not been so absent from work.”

Section 4 (19) of Bolger, Bruton and Kimber, Employment Equality Law, 2nd Ed, 2022, states:

“Section 85 of the Employment Equality Act requires a Complainant to establish facts, from which it may be presumed that there has “been discrimination in relation to him or her”, following which it is for the Respondent to prove the contrary. A Complainant does have to establish the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination. If there is no evidence establishing some sort of link between a person’s gender and the less favourable treatment, then the Complainant will not succeed in shifting the burden of proof”. In the case of Rescon Limited V Scanlan, the Labour Court found that the Complainant “has produced no evidence to establish a nexus between his gender and the Respondent’s failure to offer him the disputed post, other than that a woman was appointed, and he was not. In the court’s view, a mere difference in gender under a difference in treatment (in the sense that the comparator was appointed, and the Complainant was not), could never in itself provide a sufficient evidential basis upon which to raise a presumption of discrimination”.

Section 4-50 of the above publication is further noted where the authors added that “less favourable treatment of pregnant employees, employees on maternity leave or employees recently returning from maternity leave, is surprisingly still commonplace, both in Irish and European Society, in spite of it being clearly outlawed for many years. Depending on the circumstances and, significantly, depending on the applicable law, such treatment may or may not be unlawful and, even where it is unlawful, there are degrees of how seriously it would be viewed and reprimanded by the law. In general, where an employee suffers significant damage in her employment as a result of pregnancy, her employer will be severely dealt with by law”.

The Complainant relied upon the Equality Tribunal (the “Tribunal”) decision in Julie O'Brien v Persian Properties trading as O'Callaghan Hotels (DEC-E2012-010), which addresses significant issues of gender and family status discrimination in the workplace. O'Brien, a senior executive, alleged harassment, discriminatory dismissal, and victimisation related to her pregnancies and maternity leave.

The Tribunal found that O'Callaghan Hotels harassed O'Brien on the grounds of gender and family status, particularly during her third pregnancy. The employer's attempts to terminate her employment while pregnant and on maternity leave were deemed discriminatory. The Tribunal emphasised the special protected period during pregnancy and maternity leave, citing EU case law.

Crucially, the Tribunal determined that O'Brien was victimised for asserting her rights under the Employment Equality Acts. This included the denial of full pay during her third maternity leave and the revocation of company benefits.

Decision

Ultimately, the Adjudication Officer decided that the new role constituted a demotion, despite the Respondent's claims of organisational necessity. The Adjudication Officer concluded that the change was presented as a fait accompli, with no real options provided to the Complainant. Importantly, there was no immediate business imperative for implementing the change upon the Complainant's return from maternity leave:

“I have concluded [that]:

• that the move to the new post constituted a demotion for the Complainant;

• that the Respondent had already decided that the Complainant would move to the new role upon her return from maternity leave and that there was no intention to provide her with options;

• that the change of role was, in fact, a fait accompli;

• that there was no business imperative or requirement to put the Complainant in that new role; and

• that there was no immediate imperative to make any change to the Complainant role upon her return from maternity leave.”

The Adjudication Officer determined that the Complainant had established a prima facie case of discrimination, shifting the burden of proof to the Respondent. The Respondent failed to adequately justify the treatment, leading to the conclusion that the Complainant was discriminated against on the ground of gender by not being returned to her position as required by the Maternity Protection Acts.

The Adjudication Officer determined that the Complainant should be awarded a years salary:

“Section 82 of the EEA provides that the maximum amount which may be ordered by way of compensation is two years’ remuneration. The EEA is derived from the following EU Directives: 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); and 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin. Therefore, the Von Colson Principles apply, and any award must provide a real deterrent against future infractions.

In deciding on an award of compensation in respect of this complaint, I noted that the Complainant was in receipt of basic salary was €68,113.55 plus bonuses and other contributions. In all the circumstances I direct the Respondent to pay the amount of €68,000 to the Complainant as compensation for the discrimination.”

Takeaway

The takeaway for employees considering bringing a complaint of discrimination, following a return from maternity leave, under Section 77 of the Employment Equality Act 1998, is to determine what significant changes have arisen, in respect of those terms, prior to and post maternity leave.

For employers, it will be necessary to demonstrate that an employee who availed of maternity leave, has not been discriminated against for doing so, that they are entitled to return to the same role they previously enjoyed prior to taking maternity leave, and that any changes are objectively justifiable (ideally in consultation with the employee prior to her return).

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

CCTV in the Disciplinary Process

RG343171 — Sun, 16 Feb 2025 08:31:18 GMT

Background

The case of Nkemka Patrick Okachi v Sodexo Ireland Limited ADJ-00045306 examines the circumstances under which an employer will be compelled to utilise CCTV footage as part of an investigation and disciplinary process.

Mr Okachi (the Complainant) brought a complaint under the Unfair Dismissals Act, 1977 against Sodexo Ireland Limited (the Respondent) to the Workplace Relations Commission (WRC), alleging that the termination of his employment for alleged sexual harassment was unfair, disproportionate and most importantly, fundamentally flawed, on account of the failure of the employer to utilise CCTV footage that was available, to either substantiate or refute the allegations that were made against him.

Legislation and Case Law

The complaint was grounded in Section 8 of the Unfair Dismissals Act, 1977.

The Unfair Dismissal Act 1977 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

“6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6 (4) provides: -

(b) the conduct of the employee,”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia, that:

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

McMahon J. in Khan v Health Service Executive 2009 E.L.R. 178, summarised the meaning and value of fair procedures as being:

“… at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good … What does [sic] fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant.”

An employee has the right to a fair and impartial determination of the issues being investigated as provided for in the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996), the employer’s own procedures, as well as case law.

Decision

Ultimately, the Adjudication Officer decided, having carefully considered the evidence in this case, that the Respondent did not follow fair procedure or its own policies in investigating this serious allegation of sexual harassment. The Complainant had repeatedly, throughout the course of the investigation and disciplinary process, appealed for the Respondent to scrutinise the CCTV footage pertaining to the alleged act of sexual harassment (an inappropriate hug of a female by the Complainant). The Respondent, throughout the investigation and disciplinary process, relied solely on the testimony provided, failing to substantiate evidence given by way of CCTV footage review.

The Adjudication Officer determined that:

“Throughout the disciplinary process, the Complainant consistently requested access to the CCTV footage, which was denied. While the Respondent claimed the footage was not relied upon, the evidence suggests otherwise. The only reference to physical contact came from Mr O’Neill’s account of the CCTV, which the investigators did not independently review. This further reliance on hearsay evidence is unacceptable.

Furthermore, the client’s refusal to provide the CCTV while simultaneously requesting updates on the outcome of the investigation is concerning. None of the individuals involved in the investigation identified the absence of the original complaint or lack of CCTV footage as a being wholly unfair to the Complainant, which raises serious questions about the objective fairness of the investigation.”

Takeaway

The takeaway for employees facing an investigation or disciplinary process, where CCTV footage is available, is to consider making a formal application for its use as part of that process.

For employers, where CCTV footage is available, it is important that it is considered, to ensure that a full, fair and impartial assessment of any complaints is reached before reaching a determination.

Further Information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Gross Misconduct, Position of Trust and Right to Appeal

Thu, 23 Jan 2025 10:23:14 GMT

Background

The case of Ioan Pop v City Break Apartments Limited (ADJ-00045335) examines the circumstances under which an employer will be deemed to have acted reasonably when terminating the employment of an employee for gross misconduct.

Mr. Pop (the Complainant) brought a complaint under S.8 of the Unfair Dismissals Act, 1997, against City Break Apartments Limited (the Respondent) to the Workplace Relations Commission (WRC), alleging his summary dismissal was unfair. Crushell & Co. Solicitors acted on behalf of the Respondent company.

During the course of the Complainant’s employment, a number of directors of the Respondent, had formed a close personal bond with him. The Complainant was given a significant degree of latitude, as to how and when he carried out his task. Furthermore, the directors of the Respondent had advanced personal loans to the Complainant to the value of approximately €40,000.00. There subsequently emerged allegations of misuse of company expenses with respect to claimed fuel allowances. It was submitted by the Respondent that given the unique trust that had been placed by the company in the employee, misuse of that trust and confidence constituted gross misconduct.

Having subsequently dismissed the Complainant, the Respondent offered him a right of appeal, which he declined to utilise. The Complainant later claimed that there were procedural flaws in the investigation and disciplinary process. However, on behalf of the Respondent, Crushell & Co argued that any such flaws could have been remedied by the Complainant lodging an appeal, but he failed to utilise this process.

Legislation and Case Law

In relation to the summary dismissal, we submitted that the applicable legal test is that of the “band of reasonable responses” test, as set out by Mr Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

We noted that having considered the matter and the testimony of the witnesses to be called, the decision to dismiss was within the range of reasonable responses of a reasonable employer. We further noted the case of Looney & Co. Limited -v- Looney (UD843/1984), we contending that any employer faced with similar circumstances to those that pertain to this case, would have acted in the same way.

Section 6 of the Act provides:

“6-(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all of the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal if it results wholly or mainly from one of more of the following:

…..

(b) the conduct of the employee.

In deciding if the dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant, but rather consider whether the Respondent acted reasonably in the matter of the dismissal.

The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that:

“It is not for the Tribunal to establish the guilt or innocence of the complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did .. to do so would substitute our mind and decision for that of the employer…our responsibility is to consider against the facts what a reasonable employer would have done in the same position.”

In deciding that the dismissal was fair, we noted that it was not for the adjudication officer to establish the guilt or innocence of the Complainant but rather to consider whether the Respondent acted reasonably in the matter of the dismissal.

Decision

Ultimately, the Adjudication Officer decided that the dismissal was not unfair, taking into account, in particular, the trust and confidence that had been placing in the Complainant and the failure to appeal the decision to dismiss him.

The Adjudication Officer determined that the special position the Complainant has with the directors of the company was of significance:

“The complainant was employed with the respondent over an extended period of time. The two parties had built up a relationship of trust to such an extent that the respondent gave the complainant loans of in excess of €40,000 in order to renovate his home. This relationship goes way beyond a normal employer-employee relationship. The complainant and one director in particular had developed a lasting friendship, and this director was prepared to vouch for the complainant when advancing various loans to him. The issue of a breach of trust arises in these unique circumstances.”

The Complainant was given a five-day timeframe within which to appeal. He sought to extend the timeframe, but it appears that he did not engage with the respondent to any degree thereafter. Although there was a suggestion that the Complainant may have lodged an appeal, the Adjudication Officer did not find that this was borne out by the evidence.

Although the adjudication officer alluded to their potentially being procedural flaws in investigation and disciplinary process, he noted that they could have been remedied through an appeal which the Complainant failed to utilise.

“In the circumstances where there may have been flaws in the initial investigation, if the complainant had appealed than any flaws could have been considered and perhaps rectified. The complainant had the complainant chose not to appeal.”

Takeaway

The evidence given by a number of witnesses indicated that the Respondent gave consideration to alternatives to dismissal but discounted them for various reasons, not least of which was a breach of trust, a unique level of trust, between the complainant and the directors.

In circumstances where there was a breach of trust to the degree outlined in evidence, when taken into account along with the high level of trust afforded to the complainant, the WRC found that the Respondent acted reasonably in the circumstances. Having regard to those circumstances, the WRC found that this dismissal was not unfair.

In any circumstance where there is a breach of trust and confidence, it is important for an employer to carry out an independent investigation, disciplinary process, an afford an employee an opportunity to appeal any decision, if they are to have a strong chance of defending a subsequent unfair dismissal claim before the WRC.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Redundancy, Retirement or Resignation

Wed, 22 Jan 2025 10:47:23 GMT

Background

The case of Denis McCallig v Bord Iascaigh Mhara (BIM) (ADJ00052727) examines the circumstances under which an employee will be considered to have been made redundant, retired, or alternatively resigned.

Mr. McCallig (the Complainant) brought a complaint under Section 39 of the Redundancy Payment Act, 1967, against Bord Iascaigh Mhara (BIM) (the Respondent) to the Workplace Relations Commission (WRC), alleging he was entitled to a redundancy payment on the decommissioning of the factory where he worked.

However, the Respondent argued that he was not entitled to a redundancy payment, as a role continued to exist for him, at that location. However, at that juncture, the Complainant had moved from the site location in Donegal, to Dublin, and never presented thereafter for work.

Legislation and Case Law

The complaint was primarily grounded in under the Redundancy Payment Act, 1967, there was significant case law submitted, as to what constituted a dismissal under the Unfair Dismissals Act, 1977.

Section 7(1) of the Redundancy Payment Act, 1967, provides that;

“An employee, if he is dismissed by his employer by reason of redundancy or is laid off…shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment…”

It was the Respondent’s position that the Complainant was not dismissed by redundancy, or any other reason, but that the Complainant voluntary resigned from his employment by reason of retirement in December 2023.

As outlined by the Labour Court in Millett v. Shinkwin, EED044:

It is also noted in the case of Tina Casey v Dunnes Stores [2003] 14 E.L.R. 313:

“For a dismissal to occur an employment contract must be deliberately, purposefully and knowingly terminated by either the employer or the employee or alternatively, the contract of employment must expire of itself or for some reason, whether or not that reason is fair, proper, reasonable and/or just. Termination is understood to mean ‘coming to an end’ and this import should be communicated to either party, directly or indirectly, or must be understood by virtue of the nature and extent of the circumstances of the case, or reasonably inferred therefrom.”

The Respondent relied on the similar case of Kieran O’Brien V Paul Boyd trading as John Dwyer Butchers ADJ-00043348, where the Adjudication Officer stated:

“The Complainant did resign from his position for reasons of his retirement and that he was not dismissed. Section 7 of the Redundancy Payments Act 1967 sets out that an employee shall be entitled to a Redundancy payment, if he is dismissed by his employer by reason of redundancy. I accept the Respondent submission that there was no dismissal in the ending of the Complainant's employment. I find that the Complainant retired (albeit reluctantly) from his position.”

Decision

Ultimately, the Adjudication Officer decided that the Complainant had resigned.

Section 15 of the Act covers an employee’s disentitlement to redundancy payment for refusal to accept alternative employment:

15.(1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if —

(a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

The Adjudication Officer determined that “… in essence, in order to qualify for a redundancy payment, the employee must be dismissed by his employer. The question to be answered in this case, therefore, is whether the Complainant was dismissed by reason of redundancy, or did he resign from his employment with the Respondent. As the Complainant does not allege that he was dismissed, the first criterion in section 7 of the Act, that a dismissal must have taken place, has not been discharged…. Based on the totality of the evidence, both oral and written, put before me, I am satisfied that no dismissal took place. As no dismissal took place, no redundancy could be said to have occurred. I find, therefore, that this complaint is not well founded.”

Takeaway

The takeaway for employees considering bringing a complaint under Redundancy Payment Act, 1967, is to determine whether they were in fact, made redundant. Very often, this issue can be in dispute. There are occasions when employers, attempt not to make an employee redundant, which, given particular circumstances and be challenged by the employee.

For employers, it will be necessary to demonstrate that, if they are not be held liable for a redundancy payment, that they did not make the employee redundant. Very often, disputes can arise as to whether suitable alternative employment was provided. This will be examined based on whether there was a diminution in terms and conditions of service, or other such subjective reason as to why the employee rejected any alternative employment proposal.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Remote Work Complaints Before the Workplace Relations Commission

Fri, 16 Aug 2024 16:54:54 GMT

Background

The case of Aline Karabko v TikTok Technology Ltd (ADJ-00051600) examines the obligations employers have, under Irish law, when a request for remote work is made by an employee.

As the law in Ireland currently stands, there is no right to remote work per se . This may be overcome when an individual has been guaranteed remote work in their contract of employment or remote work has been determined to constitute a reasonable accommodation in accordance with relevant employment legislation, where applicable. However, none of these exceptions applied in the present case.

Aline Karabko (the Complainant) brought a complaint under section 27 of the Work Life Balance and Miscellaneous Provisions Act 2023 against TikTok Technology Ltd (the Respondent) to the Workplace Relations Commission (WRC), arguing that her employer didn’t properly consider her remote working request.

Legislation and Case Law on Remote Work

Section 20(1) of the Act provides that “An employee may, in accordance with this Part, request approval from his or her employer for a remote working arrangement”.

The Respondent accepted that the Act confers a right to request remote work but, significantly, it does not confer any right to be granted a remote work arrangement.

Section 20(3) of the Act provides:

“A request for a remote working arrangement referred to in subsection (1) shall—

(a) be in writing and signed by the employee,

(b) specify the details of the remote working arrangement requested and the proposed date of commencement and, where applicable, expiration of the remote working arrangement,

(I) the reasons why he or she is requesting approval of the remote working arrangement (in this Part referred to as “the employee’s needs”),

(II) Details of the proposed remote working location, and

(III) information as may be specified in the code of practice on the suitability of the proposed remote working location,

and

(d) be submitted to his or her employer as soon as reasonably practicable but not later than 8 weeks before the proposed commencement of the remote working arrangement.

The Respondent accepts that the Complainant submitted a request to work remotely in accordance with section 20(3) of the Act.

Section 21 of the Act provides that:

“(1) An employer who receives a request for a remote working arrangement submitted in accordance with section 20 (3) shall—

(a) consider that request, having regard to—

(I) his or her needs,

(II) the employee’s needs, and

(III) the requirements of the code of practice, and

(b) as soon as reasonably practicable but, subject to subsection (2), not later than 4 weeks after receipt of the request—

(I) approve the request, which approval shall include an agreement prepared and signed by the employer and employee setting out—

(I) the details of the remote working arrangement, and

(II) the date of the commencement and the expiration, if any, of the remote working arrangement,

(II) provide a notice in writing informing the employee that the request has been refused and of the reasons for the refusal, or

(III) where subsection (2) applies, provide a notice in writing to the employee that the employer has extended the 4 week period under this subsection for a further period specified in the notice.

(2) Where an employer is having difficulty assessing the viability of the request for a remote working arrangement, the employer may extend the 4-week period referred to in subsection (1) by a further period not exceeding 8 weeks.”

The Respondent acknowledged receipt and issued an outcome in respect of the request in accordance with the timelines provided for under the Act. Full remote work was denied and reasons were given.

According to the Adjudication Officer, in reaching their decision, the Respondent fully considered the request:

“The Respondent rejected the Complainant’s assertion that her needs were disregarded, or that the Respondent did not consider her request objectively, fairly and in a reasonable manner. The Respondent engaged in an objective decision-making process and issued a reasoned outcome. The fact the Respondent did not agree with the Complainant’s proposition (i.e. that her needs (or preferences) outweigh the Respondent’s) does not mean the Respondent did not process the request in an objective, fair and reasonable manner.”

Furthermore, all that section 21 of the Act mandates is that an employer considers a request to work remotely “having regard to…the employee’s needs…”

It does not mandate an employer to decide that request in favour of an employee if, for example, their needs are clearly outlined and are compelling.

Therefore, once an employer has had regard to the employee’s needs, it has discharged its statutory obligations even if the employee concerned believes insufficient weight has been attributed to their needs (See: Cork County Council v Minister for Local Government, Planning and Others [2021] IEHC 683).

In deciding on its optimum hybrid working model, the Respondent had regard to a variety of factors including a desire to provide flexibility to employees while at the same time not compromising ways of working that it believes are essential to the development of its employees, their contribution to the Respondent’s business and ultimately the Respondent’s success. The Respondent had reasonably determined that in-person collaboration was essential, and this was best achieved with an organisation wide mandate to work from the office 3 days a week.

This policy was applied consistently across the Core Operations Team, with no employees in this department in Ireland being entitled to permanently work remotely more than two days per week, other than where permitted as a reasonable accommodation to an employee with a disability.

In terms of this claim, section 27 of the Act confirms that the merits of the employer’s decision “shall not” be assessed in a claim before the WRC or Labour Court. In this respect, section 27 provides:

“(6) In making a decision referred to in subsection (1), (2) or (3), an adjudication officer or the Labour Court, as the case may be, shall not assess the merits of—

(a) the decision of the employer reached following his or her consideration under section 21 (1)(a) of the employee’s request,

(b) the refusal by the employer under section 21 (1)(b)(ii) or the reasons for such refusal given under that provision,

(c) the decision of the employer to terminate, under section 22, a remote working arrangement or the grounds given by the employer under that section for such termination,

(d) the refusal by the employer under section 24 (3)(b)(ii) or the reasons for such refusal given under that provision, or

(e) the refusal by the employer under section 24 (4) or the alternative date proposed under that provision.

The Code of Practice also confirms the express limits on the role of the WRC and Labour Court in respect to claims brought under the Act as follows:

“Under the Act, neither an AO of the WRC nor the Labour Court have the legal power to assess the merits of any decision made by an employer in relation to [remote work]. This means that they cannot look behind the merits of the decision, they can only look at the process which led to the employer’s decision.”

Therefore, without prejudice to the Respondent’s position that its decision to refuse the request was made objectively, fairly and reasonably, it is clear that section 27 of the Act precludes the adjudication officer from considering the merits of the Respondent’s decision to decline the request or the reasons underpinning same. Therefore, provided the Respondent can show that it considered and responded to the Complainant’s request as required by section 21 of the Act, there is no basis for the Complainant’s claim.

Decision

Ultimately, the Adjudication Officer determined that the employer had fulfilled their statutory obligations to consider the remote working request, as well as provide a written explanation as to why it was being denied.

Although, there is a legal obligation on employers to consider a request for remote work this must be distinguished from a legal obligation to provide remote work on foot of a request.

Takeaway

The takeaway for employees considering making a remote working request, is to identify the need for remote work, the impact it may have on the business, and the capacity the employee has to carry out the functions required of them while at home. However, be cognisant that while you have the legal right to request remote work, there is no legal requirement for an employer to grant it.

For employers, when they receive a request for remote work is to ensure that any decision aligns with the company policy on remote work, the contractual entitlements of the employee concerned, as well as the needs of the business.

As far as is reasonably practicable, an employer should provide a reasonable justification for any refusal for remote work for part thereof.

Further Information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Force Majeure Leave and Parental Leave Rights

Fri, 09 Aug 2024 08:09:07 GMT

Background

The case of Dean Hart v Komfort Kare (ADJ00051923) examines the circumstances under which a request for time off, by a parent, from their employer, must be given due consideration.

Dean Hart (the Complainant) brought a complaint under Section 18 of the Parental Leave Act 1998 against Komfort Kare (the Respondent) to the Workplace Relations Commission (WRC), alleging that they denied him the right to take force majeure despite extenuating circumstances.

The Complainant informed his employer that his wife had miscarried and, on that basis, he was granted a day off per the company force majeure policy. However, when he requested a second day of force majeure leave, the Respondent was resistant to grant him any additional time off. In an email to the Respondent, the Complainant set out:

“My wife is still haemorrhaging heavily and passing clots and is unable to take care of our very active 3 year old bot who doesn’t start naionra until this coming term. Hence my application for force majeure statutory entitlement of 3 days.”

The Respondent replied later that morning:

“Please note ‘Force Majeure means urgent family reasons where, owing to an injury or to the illness of an immediate relative the presence in the same place is indispensable. As a gesture of good will The company will take your application into consideration if you furnish us with a letter from the maternity hospital which supports the issues you have outlined, including care instructions and support required, appointment dates. I look forward to hearing from you.”

The Complainant considered the above request invasive. He responded outlining the sequence of events and that there was ongoing requirement for him to be at home. Ultimately, he submitted a sick certificate the next day and he remained on sick leave since then.

Legislation and Case Law - Parental Leave Act

Section 13(1) of the Parental Leave Act, 1998, as amended, sets out:

13.—(1) An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.

(2) The persons referred to in subsection (1) are—

(a) a person of whom the employee is the parent or adoptive parent,

(b) the spouse of the employee or a person with whom the employee is living as husband or wife,

(d) a brother or sister of the employee,

(e) a parent or grandparent of the employee, and

(f) a person other than one specified in any of paragraphs (a) to (e), who resides with the employee in a relationship of domestic dependency.

In the case of Julie Murphy v Abtran (ADJ-00045486) the adjudication officer described force majeure as a legal term carries a meaning” that some important and critical event has taken place, thereby releasing a party directly affected from its legal obligations in particular matter that would otherwise have applied.”

In that case, Ms. Murphy argued that she could not attend work as her child had chickenpox.

A number of cases were cited in the decision of that case, including Mc Galey v Liebherr Container Cranes Ltd, at the High Court in 2001, which carried a commentary by Mc Crcaken J in rejecting a claim for parental leave.

“… However, the question of whether the Appellants presence was indispensable is one which must depend on the facts of the individual case “

It followed in Giles v Outhaus Group Country Manor Bricks in ADJ 27631, which drew on MJER v Skibal [2018] IESC 68

The concept of force majeure had to be understood as referring to abnormal and unforeseeable circumstances which were outside the control of the parties by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due cause.

The respondent submitted that the adjudicator pointed to the presence of “emergency “which gives rise to the absence.

In the the case of Ms. Murphy the illness was routine and common for which the complainant’s presence was not indispensable. Force majeure, it was argued, should not be recognised as a substitute for childcare. It was open to the complainant to organise a contingency.

Abtran offered unpaid or annual leave in support, which they believed was reasonable.

In respect of the request for a medical certificate, the law does not stipulate provision of a medical certificate but of course, if medical attention is a factor in the case, provision of medical evidence is bound to be helpful (per Dublin Bus v Brazil PL/2/2009).

By means of jurisprudence in this field, in the case of Carey v Penn Racquet Sports ltd 2001 3 IR at the High Court, Carroll J, Justice Mela Carroll remarked that the criteria of urgency and indispensability “should not be judged in hindsight.

This was a case involving a single mother and an eight-year-old child. Mother had taken days leave to look after a child who had woken with a rash on her legs.

Application for force majeure leave was denied as the GP did not deem the rash as serious.

Carroll J on appeal held.

“The matter should have been looked at from the plaintiff’s point of view at the time the decision was made not to go to work. Also, the plaintiff could not be assumed to have medical knowledge which she did not possess.”

In Quinn v Higgins Engineering Galway ltd [2000] 11ELR 102, the Employment Appeals Tribunal (EAT) grappled with an application for force majeure leave in the case of three ill children in 1999, where meningitis was suspected.

Meningitis was ruled out on the second day, but the EAT found that the complainant was “entitled to be alarmed by the illness and his concerns re meningitis was not unreasonable.”

Decision

Ultimately, the Adjudication Officer decided that the Complainant was entitled to take force majeure and that the failure of the Respondent to grant same was in breach of the Parental Leave Act, 1998.

The Adjudication Officer determined that, given the particular circumstances and a maximum award would not be appropriate.

“The Complainant is paid €35,000 per annum. The maximum award that can be made in this case is €13,425. While the above legislation gives me broad discretion as to what is just and equitable I would note that this legislation does not just cover entitlements to certain kinds of leave but protection from penalisation resulting from taking parental leave. I am of the view that the maximum 20 weeks should be reserved for those kinds of cases.

The Complainant has put forward the case that his prolonged sick leave is due to the refusal of the Respondent to accept his entitlement to force majeure leave. I do not think this is a conclusion I can reasonably come to without expert medical evidence. However, I do accept that the Respondent’s refusal of the Complainant’s reasonable request came at very difficult time for the Complainant and his family. Their approach clearly damaged the employment relationship and I am satisfied that it caused him significant upset.

In the circumstances I believe an award of €7000 is warranted.”

Takeaway

The takeaway for employees considering bringing a complaint under the Parental Leave Act, 1998 is to determine whether the circumstances leading to the application could be understood to be abnormal, exceptional or unforeseeable.

For employers, it will be necessary to consider the particular circumstances of each request, balancing the extenuating circumstances of the employee with the concurrent needs of the business.

It is also worth considering the exceptional reputational damage that can arise to an organisation if a complaint of a comparable nature is brought before the WRC and subsequently reported on. Although all requests for force majeure may not perfectly align with the legislative expectations and developed case law, a prudent employer may consider granting such leave, in any event. A failure to do so may cause irreparable harm to the relationship with the employee, as evidenced by this case wherein the employee remained on sick leave indefinitely.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Constructive Dismissal and Harassment in the Workplace

Wed, 31 Jul 2024 11:30:14 GMT

Background

The case of Care Worker v Costern Unlimited Company (ADJ00046268) examines the circumstances under which it will be deemed reasonable for an employee to resign and bring a claim of unfair dismissal by way of constructive dismissal on foot of a failure of their employer to properly investigate their complaints.

A Care Worker (the Complainant) brought a complaint under Section 77 of the Employment Equality Act, 1998 and Section 8 of the Unfair Dismissals Act, 1977 against Costern Unlimited Company (the Respondent) to the Workplace Relations Commission (WRC), alleging that she had been sexual harassed and the company had not taken adequate steps to protect her safety or address her concerns.

The Complainant alleged that she was subjected to sexual harassment by another work colleague. She alleged that she raised complaints with her supervisor about verbal and physical sexual harassment. She also reported that this colleague was in her view attending at work when she observed him to be intoxicated.

She alleged that despite these allegations the Respondent employer continued to schedule both on the same shifts. While they were not in the same work area they would meet. This left the Complainant in a state of distress, anxiety and fear for her personal safety. The Complainant alleged that arising from the Respondent employer’s failures, she had no alternative but to leave her employment and this amounted to a constructive dismissal.

The Respondent countered that they took the allegations of discrimination and a colleague being intoxicated as very serious allegations. They were investigated thoroughly having regard to both parties’ rights to natural justice. There simply was not enough evidence to support the allegations, they maintained.

The Respondent argued that it cound not be held vicariously liable for an employee’s conduct when it had carried out all reasonable steps to ensure that the workplace is free of harassment and where all employees know how to escalate any grievance.

Legislation and Case Law

The complaints were primarily grounded in Section 77 of the Employment Equality Act, 1998 and Section 8 of the Unfair Dismissals Act, 1977, wherein the complainant alleged that, on foot of breaches under the employment legislation, she had no other option but to resign.

Although this case primarily relates to a claim of sexual harassment, it could be relied upon by any employee who is alleging that their grievances are not being properly investigated, addressed or remedied by their employer.

A number of cases were cited by both parties.

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’ And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

The Adjudicaton Officer noted that in Murdoch and Hunt 2021 ‘Prima Facie’ is defined as:

“On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.”

The principle in discrimination litigation is that once a complainant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

The Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test.

However Sexual Harassment can be distinguished from other grounds.

The Employment Equality Act 1998 as amended defines harassment at section 14 A as:

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The Adjudication Officer noted in Employment Equality Law 2nd ed (Bolger, Bruton and Kimber) Round Hall Press the scope of harassment is defined and also under the Act what constitutes harassment, importantly it can be a single event.

“It is important to remember that the scope of harassment on a protected ground is an act which subjects a person to unwanted conduct on any of the protected discriminatory grounds, for example, sexual harassment, religious harassment or racial harassment. The Employment Equality Acts do not apply to a generalised bullying or harassment which has no link to the discriminatory grounds. In addition, the definition of bullying which has been accepted by the Supreme Court and High Court refers to “repeated inappropriate behaviour” and specifically excludes a single event. There is no similar requirement in the definition of harassment or sexual harassment in the Employment Equality Acts. Therefore, a single complaint of harassment or sexual harassment can breach the Acts.”

At Chapter 12.22 the authors state that sexual harassment is actionable per se and does not require to be specifically linked to a discriminatory ground and it does not require a comparator:

“In spite of contextualising harassment and sexual harassment as discrimination in the Directives, it is clear from the definitions of both that there is no requirement to locate a comparator to prove either harassment or sexual harassment. Indeed, it has been very significantly recognised by the High Court of England and Wales that harassment within European law is a free-standing ground of complaint, distinct from that of discrimination. Therefore, even if arguments were made that the perpetrator of the harassment would have behaved in the same manner towards a male employee as he did towards a female employee, such arguments would be irrelevant as there is no requirement to show less favourable treatment. This is tantamount to the recognition of harassment and sexual harassment being actionable per se, and broadens the circumstances in which harassment and sexual harassment can arise and establishes them as free-standing causes of action within European and Irish law. The express recognition of sexual harassment as a cause of action carries the potential to bring the hostile environment type of harassment beyond harassment on grounds of gender so as to protect female employees from degrading treatment within the workplace, such as being given the most menial of tasks.”

The Respondent carries the burden of proof once the Complainant has met the prima facie threshold of evidence. The Adjudication Officer determined that her compelling oral evidence at the hearing met that threshold so the burden shifted to the employer.

Decision

Ultimately, the Adjudication Officer decided that the Respondent did not take sufficient action to ensure the safety of the Complainant.

The Adjudication Officer determined that many of the actions relied upon by the Respondent appeared to post-date the incidients complained of:

“At its height the Respondent has produced comprehensive polices; however, they are post-dated the allegations being made by the Respondent. No training records have been produced. I have concluded that on the evidence the Respondent has not discharged that burden of proof that rests on them that they took reasonably practicable steps to prevent the harassment. I made this finding as no evidence has bee presented to show that at the alleged time of the alleged incidents the employer had comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action. No details of an induction training programme have been provided. No relevant training records have been produced and polices being relied on are post-dated the alleged incidents.”

In respect of the constructive dismissal claim, the Adjudication Officer determined that it was reasonable for the Complainant to resign as there was no evidence further action would be taken:

“Allowing for the effects of the harassment on the Complainant and the absence of proactive policies at the date of the resignation I find that the Complainant was in fact constructively dismissed. It was reasonable for to her assume that nothing would change and there was every likelihood of future incidents of inappropriate touching by a work colleague, with little consequence. In fact, there was no requirement to make a further grievance as it would give rise to the same outcome, with limited change and continuing anxiety that without corroboration she was helpless. I must determine on these objective grounds that the Complainant was constructively dismissed.”

Takeaway

The takeaway for employees considering bringing a complaint of constructive dismissal is to identify what breach of contract or legal obligation has arisen as a consequence of the actions or inactions of an employer and determine whether an appropriate opportunity has been provided to that employer to remedy the complaints before resigning.

For employers, it will be necessary to demonstrate that, if a grievance is raised by an employee, whether it relates to bullying, harassment or any other issue, that they took reasonable steps to enquire as to the nature and substance of the complaint as well as any remedial action that may be available to them.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Payment in Lieu of Notice during Probation

Thu, 06 Jun 2024 12:58:46 GMT

Background

The case of Eric Bentley v Carcharger EV Limited (ADJ00050468) examines the circumstances under which an employee will be entitled to a payment in lieu of notice if dismissed during their probationary period. This is a very interesting case, as it was brought under the payment of wages provisions, but decided upon under notice legislation.

Mr Bentley (the Complainant) brought a complaint under Section 6 of the Payment of Wages Act, 1991 against Carcharter EV Limited (the Respondent) to the Workplace Relations Commission (WRC), alleging that, although he did not successfully pass his probationary period, he was entitled, according to his contract of employment, to notice of thirty days. He claimed that the Respondent only paid him one week’s notice, arguing that the reason for this was that he was dismissed during the probationary period.

Legislation and Case Law

While this was a complaint under the Payment of Wages Act 1991, it should be noted that the entitlement to payment for notice is set out under the Minimum Notice and Terms of Employment Act 1973, as amended (the Act). Section 4 of the Act provides as follows:

4. Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

It is clear from the above, that in order to come within the protections of the Act, an employee is required to have thirteen weeks or more continuous service with an employer before filing a complaint under this legislation.

Decision

Ultimately, the Adjudication Officer decided that they did not have the jurisdiction to hear the complaint as the Complainant did not have sufficient service with the Respondent to come within the ambit of the Minimum Notice and Terms of Employment Act 1973.

The Adjudication Officer determined that:

“In this case, there is no dispute that the Complainant commenced his employment with the Respondent on 2 January 2024. There is also no dispute that, initially, the Complainant’s last date of employment was recorded as 29 February 2024 to include one week’s notice pay. However, the Complainant’s contract of employment provided a notice period of one month. Therefore, in accordance with the provisions of his contract of employment, the Complainant’s last day of employment was, in fact, 21 March 2024, to include one month’s notice pay. Accordingly, I find that the Complainant was employed by the Respondent for a period of 79 days or 11.29 weeks (79/7).”

Takeaway

This case raises certain questions as to the enforcement of a contractual provision that provided additional benefits to the employee, above the statutory requirements. Ordinarily, wages need to be ‘properly payable’ for a successful claim and if both parties expressly agreed that no minimum period would apply to an extended notice period, it is difficult to conceive why such a clause wouldn’t be enforced by the WRC.

The takeaway for employees considering bringing a complaint under the Payment of Wages Act, 1991, on foot of a payment in lieu of notice issue, is to consider whether they have the requisite service to bring such a claim and clarify the basis upon which any statutory or contractual payment is owed.

For employers, it will be necessary to demonstrate that they either made the requisite payment in lieu of notice or that such a payment was not legally due.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Discrimination Claims and the Burden of Proof

Wed, 05 Jun 2024 10:18:24 GMT

Background

The case of A Job Applicant v A Public Body (ADJ00049321) examines the burden of proof in discrimination claims, particularly when discrimination is being claimed at the interview stage.

A Job Applicant (the Complainant) brought a complaint under Section 77 of the Employment Equality Act, 1998 against A Public Body (the Respondent) to the Workplace Relations Commission (WRC), alleging that he was not offered a role for which he was eminently qualified, due his having a number of certain characteristics.

The Complainant alleged that because he was married, male with four children (one of whom had special needs) heterosexual, Roman Catholic, and forty-eight, he was not given a role as the head of legal services in the Respondent organisation. The Complainant argued that he was an experienced solicitor and journalist and that those selected for the roles advertised were less experienced and less qualified than he was.

He further noted that, while he was of Irish nationality, the fact that he previously lived in the United Kingdom with his wife who was a British national, was also a contributing factor.

The Respondent argued that there was a transparent scoring system for all roles using pre-defined criteria and that, in any event, they were unaware of his age, religion, sex, sexual orientation, race, nationality, marital status, parental status and the number of children the Applicant had.

Legislation and Case Law

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

When considering the primary facts adduced by the Complainant the Adjudication Officer noted that they must take into consideration the Respondent’s contrary evidence, when determining whether the burden of proof should shift to the Respondent. In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

“…. the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.

In Graham Anthony & Company Limited v Mary Margetts EDA 038 the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

Decision

Ultimately, the Adjudication Officer decided that the Complainant had not produced any evidence that could lead to a conclusion that he was discriminated against on any of the grounds cited.

The Adjudication Officer determined that:

“On the face of it the Complainant seems to suggest, that because he did not have access to information which the Respondent did not collect for the position of HEO, namely the protected grounds of the other candidates, then he could assume that he was discriminated on all the grounds cited, and that was the reason he did not receive the position. I do not accept this as a plausible argument… I am satisfied that the Complainant position was that of mere speculation and assertions . Simply put, without evidence, speculative claims cannot serve as the foundation for inferring discrimination, and I therefore find that the Complainant has not established a prima facie case of discrimination under section 85A of the Acts.”

Takeaway

The takeaway for employees considering bringing a complaint under Section 77 of the Employment Equality Act, 1998 is to determine what evidence they can use, beyond mere assumption, to substantiate a complaint of discrimination by their employer.

For employers, it will be necessary to demonstrate that there are objective reasons for the behaviour complained of by an employee when defending such a claim.

Burden of Proof in Constructive Dismissal Claims

Mon, 03 Jun 2024 13:56:35 GMT

Background

The case of Mark Lowry v JJ Fleming and Company Limited (ADJ00036677) examines the burden of proof issues that often arise in constructive dismissal claims. Uniquely, the employer offered no substantive evidence to support their case, yet won, highlighting the very difficult hurdles an employee often faces in bringing an unfair dismissal claim, following their resignation.

Mark Lowry (the Complainant) brought a complaint under Section 8 of the Unfair Dismissals Act, 1977 against JJ Fleming and Company Limited (the Respondent) to the Workplace Relations Commission (WRC), alleging that his workload was excessive, resulting in him having to work additional hours, that he was verbally abused by management and that, three days before Christmas 2019, informed that a replacement manager would be joining the company and that, if he wasn’t happy with this decision, he could resign.

What is unique about this case is that, at the outset of the hearing, the Respondent chose not to present any evidence in defence of the claim of constructive dismissal. It was submitted by the Respondent that the onus of proof was on the Complainant and that he failed to discharge the heavy burden of proof necessary. On that basis, it was held that the case should be dismissed.

Legislation and Case Law

Section 1 of the Unfair Dismissals Act 1969 outlines two scenarios where an employee’s resignation may be considered a constructive dismissal. First, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; in essence that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed (the ‘contract test’).

In the English Court of Appeal case of Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 165, which has been referred to frequently by the Labour Court and the Employment Appeals Tribunal (EAT) in this jurisdiction, it was held that to meet the ‘contract test’ an employer must be ‘guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract’.

Secondly, the Labour Court in the case of Waterford Senior Care Ltd & TabbUDD1938 (July 2019) stated that—

“the Act at Section 1 addresses the issue of reasonableness. It is settled law that the Court, in considering a complaint of constructive dismissal, must consider this issue either as an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, he is justified in leaving”

In further assessing the reasonableness test and the burden of proof, the EAT in McCormack v Dunnes Stores UD1421/2008 stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employers conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In the case of Duane v Masonry Fixed Services Ltd, heard in 2016, the EAT determined that:

“It is incumbent on an employee in a constructive dismissal scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve this. The claimant did not do so. He resigned before allowing the Respondent a reasonable opportunity to resolve his grievances.”

In the case of Jabczuga v Ryanair Ltd, the EAT states:

“The claimant in this case failed to fully engage with an exhaustive grievance procedure available to her. In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the Respondent and the Tribunal is satisfied that she did not act reasonably in so doing. Accordingly, this claim pursuant to the Unfair Dismissals Act 1977 to 2007 fails.”

The Courts have placed the burden of proof on the Complainant to show that his resignation was justified in all the circumstances.

Decision

Ultimately, the Adjudication Officer decided that “I cannot accept that the Respondent was guilty of conduct which “is a significant breach going to the root of the contract of employment” applying the test in Western Excavating (ECC) Ltd v Sharp.”

The Adjudication Officer, having heard the position of the Complainant, determined that he had failed to discharge the burden of proof, most importantly failing “to exhaust all internal procedures of make any formal attempt to resolve matters in accordance with the relevant procedure outlined in his signed contract of employment. The Respondent was not given a reasonable opportunity to address these issues.”

Takeaway

The takeaway for employees considering bringing a complaint of constructive dismissal is to determine whether they have formally exhausted the internal grievance procedure, prior to resigning.

For employers, it will be necessary to demonstrate that an employee failed to take advantage of the internal grievance procedures, as part of any defence of a constructive dismissal claim.

Can an employee withdraw a resignation?

Tue, 21 May 2024 11:35:46 GMT

Background

The case of Social Care Worker v Social Services Charity (ADJ -00039351) examines the circumstances under which an employer would be compelled to consider a rescinding of a resignation by an employee.

Social Care Worker (the Complainant) brought a complaint under Section 8 of the Unfair Dismissals Act 1977 against Social Services Charity (the Respondent) to the Workplace Relations Commission (WRC), alleging that she had been dismissed, despite having submitted a resignation letter.

The Complainant had lost her daughter suddenly two years ago previously and had heard of her daughters passing while at work. She was a long serving member of the organisation and very well qualified. She developed chronic chest respiratory difficulties and was suffering from a significant degree of stress and anxiety, which was certified by her doctor, when she tendered her resignation. Her doctor later provided written reports that she was not in a fit state of mind to make such a major employment decision.

Having tendered her resignation, she almost immediately wrote to her employer, noting that she was no longer progressing with her resignation, based on medical advice.

That request was not accepted by the respondent, who defended the decision, based on a policy, whereby, once a resignation has been put forward, it could not be withdrawn.

Legislation and Case Law

A number of cases were cited by both parties.

According to the Respondent, the common law rule regarding notice given by either party is that once notice is given it cannot unilaterally be withdrawn. A leading common law case is Riordan v War Office (1959) 1 WLR 1046 where Diplock J stated:

“this was sufficient notice given by the plaintiff terminating his employment… once given it could not be withdrawn save by mutual consent‟

The Respondent noted the UK case of Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156, it was held that if an employee resigns in the heat of the moment and special circumstances exist, then an employer should investigate the matter and ascertain the employee’s true intentions. “Special Circumstances” may include particular pressures on the employee or the employee’s personality. In this case, it was found that the employee had only resigned in the heat of the moment after considerable humiliation and provocation by his manager.

In Geraghty v Industrial Credit Corporation, the EAT concluded on the evidence that the respondent did not regard the claimant’s ‘resignation’ at the relevant time ‘as a real resignation’. The EAT has also given guidance on circumstances where an employee resigns but later communicates to his employer that he wishes to withdraw his resignation: Keane v Western Health Board. The claimant had resigned in Keane, apparently unaware of her employer’s grievance procedures. She attempted to invoke the procedures during the notice period. The respondent’s evidence was that it did not reconsider a letter of resignation as a matter of policy. The EAT held that the claimant, notwithstanding the grievance procedure, genuinely believed that the difficulties and stress she was experiencing presented her with no alternative other than to resign from her employment:

“The letter of resignation viewed against the background in which it was made could not be deemed a fully informed decision or notice by her to terminate her contract of employment. The Tribunal, accordingly, is of the opinion that the notice of resignation is tainted by reason of the confused state of her mind at the time it was tendered coupled with her obvious lack of appreciation of the grievance procedure.”

The facts of this case are all indicative of a resignation that was tainted by reason of her confused state of her mind. The Adjudication Officer also note at paragraph 22.25 the following observation in Redmond on Dismissal Law:

“If, therefore, an employee tries to withdraw a notice of resignation, an employer should ask itself whether special circumstances exist. If so, they may cast doubt on whether the resignation was really intended. The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.”

Decision

Ultimately, the Adjudication Officer decided that the complainant had been unfairly dismissed.

The Adjudication Officer determined that “The Employer should have met her and reconsidered their position based on the unique facts of this case. They failed to do so and stuck rigidly to a policy that has very little to do with human nature and vulnerability and how the stresses and strains that employees may experience can impede rational decision making. This is particularly so as this Charity operates in the mental health sphere. This is a very large organisation and the Complainant at the hearing stated that she now would prefer compensation on the basis that trust, and confidence has been breached, at a point she sought her job back.”

The takeaway for employers considering an application to rescind a resignation, is to decipher whether there are any complicating factors, that may have impeded the ability of the employee concerned to make a rational decision in respect of such matter. A failure to consider any extenuating circumstances, may result in an adjudicator officer determining that the decision to resign, was not made with the benefit mental or emotional cognition.

Reasonable Accommodation and Long Covid

Mon, 13 May 2024 15:53:00 GMT

Background

The case of Oisín Gourley v Mason Hayes & Curran LLP ADJ-00049048 examines the circumstances under which an employer will be compelled to consider what reasonable accommodations can be provided to an employee who is suffering from long covid.

Mr. Gourley (the Complainant) brought a complaint under section 77 of the Employment Equality Act, 1998 against Mason Hayes & Curran LLP (the Respondent) to the Workplace Relations Commission (WRC), alleging that his dismissal at the end of his probationary period, was unjust, as he had been suffering from long covid during his probationary period, which negatively impacted his ability to perform his tasks. The Complainant asserted that the Respondent made no attempts to provide him with a reasonable accommodation, or to assess his capacity, whatsoever.

Legislation and Case Law

The complaint was primarily grounded the Employment Equality Act, 1998.

A number of cases were cited by both parties.

In Burke v Turning Point Scotland, the Employment Tribunal determined that an employee could bring a claim for disability discrimination against his employer. The Tribunal held that Mr Burke’s long COVID, which included symptoms such as fatigue, headaches, an inability to concentrate and difficulty sleeping, qualified as a disability. This was despite a lack of medical evidence and that his condition had not yet lasted for 12 months or longer, as the Tribunal found that it was likely to last for 12 months.

Nano Nagle School v Daly [2019] IESC 63 is authority for the proposition that “reasonable accommodation” should be broadly defined: as per McMenamin J, at para 29:

Referring to Article 5, the Court held an employer was required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. It referred to Recital 20 in the preamble to the Directive which gave a non-exhaustive list of such measures, which may be “physical, organisational and/or educational.” It concluded that, in accordance with the second paragraph of Article 2 Convention on the Rights of Persons with Disabilities (CRPD), reasonable accommodation was to be understood as being necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Thus, it held: “It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’“.

The Labour Court determination in Humphreys v Westwood Fitness Club (LRC EED037) sets out the test for the minimum requirements when an employer is asked for reasonable accommodation:

“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Nano Nagle School v Daly [2019] IESC 63 is authority for the proposition that the Respondent should have sought to engage with the Complainant at various points in his employment when he put the Respondent on knowledge of his disabilities.

“I respectfully disagree with the Court of Appeal’s conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act.”

Considering the equivalent provisions under the English equality legislation and its requirement for “reasonable adjustments”, the EAT held in Noor v Foreign & Commonwealth Office [2011] UKEAT 0470_10_1402 At para 33:

"Firstly, [the employment judge whose decision was appealed] said that in order for an adjustment to be reasonable, section 18B(1)(a) says that it must show that taking that step would prevent the disadvantage. Section 18B(1)(a) does not say this. It is a statutory direction to take into account the extent to which the step under consideration would prevent the effect in relation to which the duty is imposed. Although the purpose of a reasonable adjustment is to prevent a disabled person from being at a substantial disadvantage, it is certainly not the law that an adjustment will only be reasonable if it is completely effective. See, for example, HM Prison Services v Beart [2002] EAT/650/01 at para 29."

In the case of Dominique v Toll Global Forwarding Ltd UKEAT/0308/13/LA) the EAT held that an employer failed in its duty to make reasonable adjustments when it did not adjust certain redundancy criteria that placed a disabled employee at a substantial disadvantage. This was despite the fact that making adjustments would have made no difference to the eventual decision to dismiss the employee at para 55:

"The originating application in this case complained of detriment or disadvantage more generally and of hurt feelings as a result of disadvantageous or detrimental treatment in addition to questions of dismissal. The duty to make reasonable adjustments therefore extended to avoiding unlawful discrimination by subjecting the Claimant to a non-adjusted criterion that placed him at a substantial disadvantage because of his disability and was therefore detrimental in addition to a duty to avoid dismissal. Had the Employment Tribunal recognised this, its findings indicate that it would have found a failure to comply with the reasonable adjustments duty on this basis. When it came to consider questions of justification of discriminatory treatment falling short of dismissal, that failure to comply with the reasonable adjustments duty ought to have been factored into the justification question but was not. In this limited respect, we accept that this Tribunal erred in law."

And in the case of Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10, where the EAT stated that there need not be a "good or real prospect" of a proposed adjustment removing a disabled employee's disadvantage for that adjustment to be reasonable. An adjustment might be reasonable, and therefore required, where there is "a prospect" that it will succeed at para 17:

“17. In fact, there was no need for the Tribunal to go as far as to find that there would have been a good or real prospect of Mr Foster being redeployed if he had been on the redeployment register between January and June 2008. It would have been sufficient for the Tribunal to find that there would have been just a prospect of that. That is the effect of what the Employment Appeal Tribunal (Judge McMullen QC presiding) held in Cumbria Probation Board v Collingwood (UKEAT/0079/08/JOJ) at [50]. That is not inconsistent with what the Employment Appeal Tribunal (Judge Peter Clark presiding) had previously said in Romec Ltd v Rudham (UKEAT/0069/07/DA) at [39]. The Employment Appeal Tribunal was saying that if there was a real prospect of an adjustment removing the disabled employee’s disadvantage, that would be sufficient to make the adjustment a reasonable one, but the Employment Appeal Tribunal was not saying that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one. When those propositions were put to Mr Boyd, he did not disagree with them.”

What Noor, Foster and Dominique say is that any adjustment (accommodation) can still be reasonable even if it would not ultimately prevent an employee being dismissed.

Decision

Ultimately, the Adjudication Officer decided that the Complainant was suffering from a disability in accordance with the Act.

The Adjudication Officer determined that the Respondent did not discriminate against the Complainant on the grounds of disability in respect of discriminatory dismissal, but did fail to provide him with a reasonable accommodation with his disability within the meaning of S16(3) of the Act. This complaint was deemed to be well founded, and the Adjudication Officer ordered the Respondent to pay the Complainant €5000 in compensation.

Furthermore, the Adjudication Officer ordered the Respondent to review its policy on reasonable accommodation and provide training on the policy to all of its employees in a staff management role.

Takeaway

The takeaway for employees considering bringing a complaint under section 77 of the Employment Equality Act, 1998, is to consider whether they are suffering from a disability in accordance with the Act, and if so, what is the source of the discrimination, or failure on the part of their employer.

For employers, it will be necessary to demonstrate that, they were in fact made aware of the employee suffering from a disability, and that they took reasonable steps to accommodate or assess how that disability, would impact the work of the employee concerned.

Claiming for Workplace Stress & Anxiety

Mon, 11 Mar 2024 15:48:18 GMT

Introduction

Workplace stress can lead to long-term psychological damage, resulting in employees resigning due to intolerable working conditions. In such cases, employees may file a complaint with the Workplace Relations Commission (WRC) for unfair constructive dismissal, which often falls short in compensating the total damages suffered. In cases of recognized psychiatric or psychological injuries, employees should file personal injuries claims alongside employment law proceedings.

Bringing a Claim for Workplace Stress & Anxiety

Psychological damage is difficult to measure and quantify, making it difficult for assessors to determine its impact. The Personal Injuries Guidelines were established by the Judicial Council in 2021 under the Judicial Council Act 2019 to identify appropriate levels of damages for different forms of personal injuries. The guidelines aim to enhance understanding of the evaluation and allocation of compensation for personal injuries to achieve more uniformity in awards.

Factors Considered for Workplace Stress & Anxiety Compensation

Trial judges should prioritize the principles of the Court's jurisdiction when awarding general damages, ensuring they are equitable and fair to both the claimant and defendant. Awards should be commensurate with the injuries sustained and consistent with awards typically granted in cases involving injuries of varying severity. Recovery is only allowed for identifiable psychological impairment in the absence of physical harm, and instances of anger, sorrow, sadness, disappointment, and humiliation do not warrant compensation.

Compensation for Workplace Stress & Anxiety Claims

There are four categories of psychiatric damage: severe psychiatric damage (€80,000-€170,000), serious psychiatric damage (€40,000-€80,000), moderate psychiatric damage (€15,000-€40,000), and minor psychiatric damage (€500-€15,000.

In severe cases, compensation may be between €80,000-170,000, while in moderate cases, compensation may be between €15,000-€40,000.

In minor cases, compensation may be between €500-€15,000.

Post-Traumatic Stress Disorder (PTSD) can be classified into four categories: severe PTSD, serious PTSD, moderate PTSD, and minor PTSD.

Severe PTSD can result in compensation of €60,000-€120,000, serious PTSD between €35,000-€80,000, moderate PTSD between €10,000-€35,000.

Minor PTSD can result in compensation of €500-€10,000, with symptoms resolving within two years.

These cases involve a reactive mental disease that occurs after experiencing or witnessing a terrible incident, leading to psychological trauma.

Conclusion

Each case is different and awards may vary. Please speak to one of our solicitors by emailing contact@crushell.ie.

Compensation for Stress at Work

Mon, 11 Mar 2024 15:40:46 GMT

Introduction

Very often, the stress an employee suffers in the workplace can be immense. Beyond the ordinary stress and anxiety that can be anticipated from any working environment, instances of bullying, harassment, intimidation, and coercion, can lead to long term psychological damage.

In many instances, employees resign their role on foot of the intolerable working conditions and bring a complaint before the Workplace Relations Commission (WRC), of unfair constructive dismissal.

In cases of constructive dismissal, the WRC is only permitted to award compensation, in respect of loss of earnings only. Very often, this falls far short in compensating the employee for the totality of the damages suffered.

In certain instances where the employee has suffered a recognised psychiatric or psychological injury, we advise that employee to file personal injuries claim in addition to any employment law proceedings.

Guidelines to Workplace Injury Claim Compensation

A difficulty with any psychological or psychiatric injury, is its visibility. It may be easier for an assessor to determine the impact a broken leg or rib may have on individual. However, psychological damage may be hard to measure, and therefore, difficult to quantify. For that reason, when an employee initially files a complaint against their employer, for the stress, anxiety, hurt and psychological damage suffered as a consequence of a toxic working environment, the Personal Injuries Resolution Board (PRIB) often declines jurisdiction to hear the case, given the complexity of these cases. In those circumstances, the PRIB issues a letter thereby permitting the employee to issue civil proceedings in respect of their injury against their employer.

The Personal Injuries Guidelines were established by the Judicial Council on 06 March 2021, under the Judicial Council Act 2019. The guidelines are based on a draft developed by the Personal Injuries Guidelines Committee, created under section 18 of the 2019 Act. The draft identified the appropriate levels of damages that might be given for different forms of personal injuries. It is often acknowledged that determining the amount of general damages awarded for pain and suffering is a rather artificial process. It is a challenging task that has historically caused judges to make significantly different awards of damages for similar injuries. This not only goes against the principle of equality before the law but also leads to unnecessary appeals, increased costs, and strains on the limited resources of the courts. The Guidelines aim to enhance comprehension of the concepts of the evaluation and allocation of compensation for personal injuries to achieve more uniformity in awards, despite each case having its own characteristics.

The Guidelines were prepared in accordance with the requirements outlined in section 90(3) of the 2019 Act. These requirements include considerations such as the amount of damages awarded for personal injuries by courts in the State and in relevant locations outside the State, principles established by the High Court, Court of Appeal, and Supreme Court for assessing damages, guidelines for classifying personal injuries, the importance of consistency in awarding damages for personal injuries, and other factors specified in the Committee's Report sent to the Board along with the draft Personal Injuries Guidelines on 06 December 2020.

When awarding general damages, trial judges should prioritise the principles that form the basis of the Court's jurisdiction. The principles necessitate that damages awarded be equitable and fair to both the claimant and defendant. Awards should be commensurate with the injuries sustained and should be consistent with awards typically granted in cases involving injuries of varying severity, as stated by Denham J. in M.N. v. S.M. [2005] IESC 17 and Clarke C.J. in Morrissey v. HSE [2020] IESC 6. The Guidelines specify that the most severe injuries will result in a general damages judgement of around €550,000.

Judges in all courts must realise that not every harm justifies receiving compensation. Recovery is only allowed for identifiable psychological impairment in the absence of physical harm (see to: Kelly v. Hennessy [1995] 3 I.R. 253). Instances of anger, sorrow, sadness, disappointment, and humiliation do not warrant compensation, as shown in cases such as Knowles v. Minister for Defence [2002] IEHC 39, O’Connor v. Lenihan [2005] IEHC 176, and Hegarty v. Mercy University Hospital [2011] IEHC 435.

If an employee experiences grief, they may be eligible for damages under Part IV of the Civil Liability Act 1961.

Factors influencing the amount of the award will include: (i) age; (ii) disruption of quality of life and education; (iii) effect on work; (iv) influence on interpersonal relationships; (v) whether medical help was sought; (vi) type, scope, and duration of treatment received and/or medication prescribed; (vii) probability of treatment success; (viii) outlook, including any future susceptibility; (ix) the scope and/or nature of any related physical injuries.

Psychiatric Damage at Work

There are four categories of psychiatric damage generally.

Severe Psychiatric Damage

In a scenario whereby an employee suffers severe psychiatric damage as a consequence of the actions or negligence of their employer, they may be entitled to compensation of between €80,000-€170,000. In these cases, the employee will have marked problems with respect to the interference between quality of life and education, as well as an impact on work and the prognosis will be very poor.

Serious Psychiatric Damage

In a scenario whereby an employee suffers serious psychiatric damage as a consequence of the actions or negligence of their employer, they may be entitled to compensation of between €40,000-€80,000. In these cases, the employee will have marked problems with respect to the interference between quality of life and education, as well as an impact on work and the prognosis will be more optimistic.

Moderate Psychiatric Damage

In a scenario whereby an employee suffers moderate psychiatric damage as a consequence of the actions or negligence of their employer, they may be entitled to compensation of between €15,000-€40,000. In these cases, the employee will have marked problems with respect to the interference between quality of life and education, as well as an impact on work and the prognosis will be good.

Minor Psychiatric Damage

In a scenario whereby an employee suffers minor psychiatric damage as a consequence of the actions or negligence of their employer, they may be entitled to compensation of between €500-€15,000. In these cases, the employee will have achieved a full recovery.

Post-Traumatic Stress Disorder (PTSD) at Work

There are four categories of PTSD, generally.

Severe PTSD

In a scenario whereby an employee suffers severe PTSD as a consequence of the actions or negligence of their employer, they may be entitled to compensation of between €60,000-€120,000. Such cases of PTSD will involve the injured party being prevented from working completely, and all aspects of life will be badly affected.

Serious PTSD

In a scenario whereby an employee suffers serious PTSD as a consequence of the actions or negligence of their employer, they may be entitled to compensation of between €35,000-€80,000. Such cases of PTSD will involve a prognosis that projects some recovery with professional help but is still likely to cause significant disability for the foreseeable future.

Moderate PTSD

In a scenario whereby an employee suffers severe PTSD as a consequence of the actions or negligence of their employer, they may be entitled to compensation of between €10,000-€35,000. Such cases of PTSD will involve the injured party being largely recovered and any continuing effects will not be largely debilitating.

Minor PTSD

In a scenario whereby an employee suffers severe PTSD as a consequence of the actions or negligence of their employer, they may be entitled to compensation of between €500-€10,000. Such cases of PTSD will involve the injured party’s symptoms being resolved in two years.

These cases have a particular diagnosis of a reactive mental disease that occurs after experiencing or witnessing a terrible incident, leading to psychological trauma. Symptoms may consist of disturbing recollections of the traumatic experience, nightmares, flashbacks, sleep difficulty, avoidance, mood instability, suicidal thoughts, and hyperarousal. Hyperarousal symptoms may impact fundamental systems including respiration, heart rate, and bowel and/or bladder regulation.

Compensation for Workplace Stress - Conclusion

Please email contact@crushell.ie for further information.

Right to Silence in Workplace Investigations?

Tue, 13 Feb 2024 09:16:51 GMT

Background

The case of Electricity Supply Board -v- Kieran Sharkey [2024] IEHC 65 examines whether an employee has a right to silence in the context of workplace investigations. The Electricity Supply Board (ESB) (the Plaintiff) brought a case against Mr Sharkey (the Defendant) alleging that his failure to answer certain questions, in the context of a workplace investigations that was also subject to parallel criminal proceedings, amounted to a repudiation of his contract of employment or, in the alternative, that the ESB was entitled to treat his contract of employment as having been terminated by him. In the alternative, the ESB sought an Order compelling Mr Sharkey to disclose certain information to it concerning that same workplace investigation subject matter.

It was the position of the Defendant that he had a constitutional right to silence and a privilege against self- incrimination.

In summary, ESB alleged that Mr Sharkey had or may have received payments of cash or otherwise from certain companies to instal electricity meters. ESB had separately reported these allegations to An Garda Siochana, who had carried out their own searches and investigation into this matter, involving numerous ESB employees.

ESB sought certain clarifications from Mr Sharkey, advising him that a failure to provide the requisite answers could result in the ESB construing his failure to provide those answers, to constitute a breach of contract and possibly an intention to terminate that contract of employment.

Solicitors for Mr Sharkey queried whether Mr Sharkey’s constitutionally enshrined right to silence in the context of a criminal investigation could not be overridden by any contractual obligation Mr Sharkey had on foot of his contract of employment to ESB.

Legislation and Case Law

ESB accepted that the Defendant was the subject of a criminal investigation. Moreover, it accepted that it may be obliged to provide An Garda Siochana with any information provided to it by the Defendant by reason of section 19 of the Criminal Justice Act 2011, which provides:

(1) A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in—

(a) preventing the commission by any other person of a relevant offence, or

(b) securing the apprehension, prosecution or conviction of any other person for a relevant offence,

and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.

There was an extensive analysis of the right to silence in general within the Irish constitution and case law as well as the right of an individual not to incriminate themselves.

The Court went on to consider whether constitutional were relevant within an employment context.

In Glover v BLN [1973] IR 388, the Supreme Court found that the constitutional guarantee of fair procedures found in Article 40.3 of the Constitution applied, at least in that case, in the employment context. Walsh J stated (at p. 425)

“This Court in In re Haughey held that that provision of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures.”

In a number of cases, the courts have treated the right to silence as an aspect of the fair procedures which must be afforded in the employment context, albeit the courts’ observations in these cases are clearly obiter. In Flynn v An Post [1987] IR 68, the Supreme Court found that an employee’s suspension had become invalid by reason of the passage of time. He had been suspended and sought a full hearing of the charge of misconduct alleged against him, notwithstanding that he faced criminal proceedings arising out of the same circumstances that had given rise to his suspension. Henchy J (in a dissenting judgment) stated that there was no hard and fast rule as to whether criminal or civil proceedings arising from the same alleged misconduct should go first and said (at p. 77) that “if the employee waives his rights as defendant-to-be in the criminal proceedings (including his right to silence) and opts to have the domestic proceedings heard first, his claim in that respect will be greatly enhanced by that waiver.”

It appears, therefore, that Henchy J proceeded on the assumption that there was a right to silence, in some form, capable of being exercised, or indeed, waived in the employment proceedings. McCarthy J, for the majority, was more circumspect (at p. 82):

“In the High Court it was held that the plaintiff's right to silence might be lost or he might be otherwise prejudiced in the criminal trial if the investigation had proceeded. Without expressing any view as to the nature of an alleged right to silence, in my judgment, if an accused in a criminal proceeding wishes to embark upon a course which may damage him in the manner suggested, it is no function of his employer, who is not the prosecutor (although the confusion of the two is understandable because of the D.P.P.'s choice of solicitor) to protect him from the consequences of such a course.”

He did, however, suggest that where there was acquiescence in delaying disciplinary proceedings, a court should, in such circumstances, lean towards “avoiding prejudice”.

In Mooney v An Post [1998] 4 IR 288, the entitlement of an employee to refuse to answer questions was directly engaged. The plaintiff had been the subject of disciplinary proceedings and criminal proceedings arising out of the same circumstances. In that case, no issue had been raised about the disciplinary proceedings being delayed pending the determination of the criminal proceedings. He was acquitted on the criminal charge and claimed a breach of fair procedures in the disciplinary proceedings which followed. The Supreme Court (Barrington J) commented that the employer was entitled to a candid response from the plaintiff when misgivings were put to him and rejected his claim that there had been a breach of fair procedures. Of relevance for present purposes, however, was Barrington J’s observation (at p. 300) that it “was of course the Plaintiff’s right to remain silent while the criminal proceedings were hanging over him.”

As with Flynn and Mooney, in H v Governor of a Prison and the Irish Prison Service [2023] IEHC 262, the High Court (Barr J) also seems to have proceeded on the assumption that an employee might be entitled to rely on the privilege against self-incrimination in disciplinary proceedings (see para. 60).

In Carroll v Law Society (No. 2) [2003] 1 IR 284, the High Court (McGuinness J) was asked to restrain a disciplinary hearing by the Law Society in circumstances where, it was argued, that the procedure proposed was unfair. One of the matters relied on by the applicant was that, although it was accepted that he could invoke the privilege against self-incrimination before the disciplinary committee, doing so might undermine his ability to defend himself in the disciplinary proceedings. McGuinness J identified this as a legitimate concern. Having referred to Rock and Heaney, she observed:

“These dicta emphasise the importance of the privilege and this, indeed, is acknowledged by the respondent in its submission that the applicant has the right to remain silent. However, the difficulty that arises in such a situation is not so much the question of the applicant’s right to silence as the question of the practical results of his either remaining silent or answering the questions put to him. If he is to deal properly with the allegations made against him at the inquiry it is probably in his interest to answer as fully as possible any question put to him. Silence may damage his case at the inquiry. On the other hand he understandably is concerned that information or evidence given by him in the context of the inquiry might later be used by the respondent in mounting a prosecution against him.”

Decision

The Plaintiff argued that the Defendant’s reliance on the privilege against self-incrimination was misconceived that the case law established that there was no entitlement to silence in the employment context (see Mooney and Kelly v Minister for Agriculture [2021] 2 IR 624, 696). ESB pointed out that the consequences for the Defendant if he refused to answer the questions put to him were grounded in private law, i.e. his contract of employment will be repudiated. Insofar as Mr Sharkey invoked his right to silence, ESB argued that it was premature for him to do so. It contended that the appropriate course was for him to invoke that right in any criminal trial in which it sought to rely on his answers to ESB’s questions.

The Defendant emphasised that he was arguing for a very limited form of protection. In particular, he did not contend that there was any privilege against self-incrimination in the context of disciplinary proceedings. The Defendant acknowledged that an employee cannot refuse to answer an employer’s question on the basis that the answer may tend to expose that employee to sanction. Rather he argued that his privilege against self-incrimination in the context of the criminal investigation entitled him, for the time being, to refuse to answer his employer’s questions. Any such entitlement would come to an end as soon as the criminal process also came to an end. He rejected the Plaintiff’s reliance on case law regarding the right to silence in the context of the employment relationship as being irrelevant, since the cases relied on do not concern situations where there was a concurrent criminal investigation.

The High Court concluded that the Defendant was entitled to refuse to comply with the directions issued to him by ESB on foot of their investigation process into the matters complained of, for now. The High Court went on to clarify that the entitlement to refuse to answer such questions would cease as soon as the criminal investigation into the subject matter came to an end or, in the alternative, when ESB could establish that it was in its interests in insisting on the performance by the Defendant of his contractual obligations or if the Plaintiff could establish that it was in its interests in insisting on the performance of the Defendant of his contractual obligations.

However, the key point made was that the entitlement to the employee’s right to silence would cease as soon as the criminal investigation into the relevant subject matter, came to an end.

Takeaway

The takeaway for employees is that any right to silence in the context of a workplace investigation and potential disciplinary process, may only arise in very limited circumstances. Those circumstances may arise whereby the subject matter under a workplace investigation is subject to parallel criminal proceedings.

The takeaway for employers is that an employee will not ordinarily have a right to silence in the context of a workplace investigation unless it can be shown that the answers provided may breach an employee’s right to avoid self-incrimination, particularly in the context of extraneous criminal proceedings.

Department of Justice Form 3 Appeal

Fri, 26 Jan 2024 06:49:36 GMT

The Form 3 is used when an individual wants to make a representation to the Minister for Justice and Equality pursuant to Section 3 of the Immigration Act, 1999. It is an appeal to a decision of the Minister for Justice in respect of an immigration application.

The completed form and supporting documents are ordinarily sent to the Repatriation Division, Irish National and Immigration Services, 13-14 Burgh Quay, Dublin 2, D02 XK70.

Applicants are encouraged to make the application by registered post.

Any information sent will be used to make a decision as to whether a Deportation Order should be made against an individual, or permission to remain in the State granted.

The information may be shared with the Garda National Immigration Bureau, Department of Foreign Affairs, Department of Employment & Social Protection, the Office of the Revenue Commissioners as well as Tusla.

In some instances, the information may be transferred to Interpol.

The applicant is required to provide the following information:

1. Surname.

2. Forename.

3. Current address.

4. ID / old application number.

5. Nationality.

6. Arrival date in the State.

7. PPS number.

8. Age.

9. Duration of residency in the State.

10. Family and domestic circumstances, to include full name and date of birth of all immediate family members currently residing in the State.

11. Nature of the connection with the State.

12. Employment record within the State.

13. Future employment prospects within the State.

14. References to character and conduct both within and outside of the State.

15. Any humanitarian considerations that should be considered.

16. Evidence of any representations previously made on behalf of the applicant to reside in the State.

17. Arguments as to why remaining in the State is in the common good and interest.

18. Any comments regarding issues of national security of public policy.

19. Reasons why an individual cannot return to their State.

It is important that the applicant declare that the information provided and any material attached documentation is true, accurate and up to date. This application will form the full extent of any submission made to the Minister for Justice and Equality for their consideration under Section 3 of the Immigration Act, 1999. Therefore, comprehensive and complete disclosure is required.

Agency Workers, Determining an Employer and Redundancy Payments

Wed, 03 Jan 2024 12:45:22 GMT

Background

The case of Amanda Craddock v Head–Hunt International Limited (ADJ00036831) examines the circumstances under which a redundancy payment would ordinarily be payable to an agency worker.

Ms Craddock (the Complainant) brought a complaint under Section 39 of the Redundancy Payments Act, 1967 against Head-Hunt International Limited (the Respondent) to the Workplace Relations Commission (WRC), alleging that, having been employed as a legal secretary from 13 March 2000 until 10 September 2021, she was entitled to a redundancy payment on the termination of her employment.

This case had initially been progressed by the late Mr Richard Grogan, with the file being passed to Crushell & Co. Solicitors following his passing. In addition to the redundancy payments claim, Mr Grogan had also filed complaints under Section 8 of the Unfair Dismissals Act, 1977 against the Department of Housing, Local Government & Heritage as well as the Department of the Environment, Climate & Communications, to ensure that Ms Craddock could avail of the requisite redress, should it be found that one of those governmental agencies was actually her employer.

Legislation and Case Law

The complaint was primarily grounded in Section 2 of the Redundancy Payments Acts, 1967, which describes the employer as;

"Employer” means in relation to an employee the person with whom the employee has entered into or for whom the employee works under (or where the contract of employment has ceased, entered into or worked under) a Contract of Employment, subject to the qualification that the person who under a Contract of Employment referred to in Paragraph (b) of the Definition of the Contract of Employment is liable to pay the wages of the individual concerned in respect of the worker services concerned shall be deemed to be the individual's employer".

Ms Craddock worked for the Mahon Tribunal in Dublin Castle. In 2020, Ms Craddock had been sent to an interview to the Mahon Tribunals Offices by Head-Hunt International, an employment agency.

Throughout the time of her employment with the Mahon Tribunal, the Complainant worked as a secretary reporting exclusively to personnel within the Mahon Tribunal and had no contact whatsoever with the Respondent other than to send her weekly timesheets to the Respondent and to deal with matters regarding her pay. The Respondent on receipt of the weekly time sheets sent them to a third-party Elite Accounting and Auditing located at Oakley Wood, Tullow Road, Ennis, Co Clare. Elite Accounting and Auditing provide payroll services and it was they who prepared the pay slips for the Complainant and made the transfer of her wages directly to her.

The Respondent generated invoices which it would send directly to the Mahon Tribunal for reimbursement of the monies owing to it by the Mahon Tribunal. The Respondent is a holder of an Employment Agency License but it has never conducted business as an Employment Agency.

The question in this case is whether an employment relationship existed and if so with whom did that relationship exist. The first point to make is that when conducting an analysis of any specific situation limited reliance should be placed on any contractual documentation between the parties themselves. In other words, any label that the parties themselves gives to an arrangement cannot determine the nature of the arrangement, rather that is a question of legal analysis of the factual reality of the relationship. The courts have in determining whether individuals are employees or independent contractors set out various tests including the control test, the entrepreneur test, and mutuality of obligation, and the Revenue Commissioners have published a code of practice to assist in establishing the work status of an individual as recently as July 2021.

What is relevant in this case is the position in relation to agency workers who until relevantly recently were regarded as employees of the agency and not the end user. There have however been a number of important decisions in the UK and Ireland which are relevant.

The English Court of Appeal in the case of Dacas v Brook Street Bureau (UK) limited 2004, concluded based on the facts in that case that had the Wandsworth Borough Council continued to be a party to the proceedings it would have been found to be the employer on the basis that;

There was no obligation on the agency to provide Ms. Dacas with work and she was under no obligation to accept work.
The fact that the agency renumerated MS Dacas did not mean that it was her employer.
Control of Ms. Dacas's day today activities had been exercised by the council. Accordingly, there was no contract of service between the agency and Ms. Dacas.
The Court found that the role of the agency (Brook Street) was not that of an employer of Ms. Dacas. Rather it was of any agency finding suitable work assignments for her and, so far as the Council was concerned performing the task of staff supplier and administrator of staff services. The Judge concluded that the only sensible finding was that Ms. Dacas had a contract of service with the Council rather than with the employment agency saying in particular.

"the result of the consideration will depend on the evidence in the case about the relationship between [workers] and the end user and how that fits into other triangular arrangements. In general, it would be surprising if, in a case like this, the end user did not have powers of control or direction over such a person in such a working environment".

The Respondent relied on the case of Diageo Global Supply v Mary Rooney EAT determination January 2004. In that case Ms. Rooney had worked part¬ time as a nurse at Diageo's Occupational Health Centre at the Guinness Brewery in Dublin since 1991. When she first became aware of a vacancy she applied to the appropriate person in Diageo, was interviewed by Diageo and offered the job. She agreed her hours of work, rate of pay and other particulars of her duties and benefits directly with Diageo.

She was however told at the outset that her wages would be paid through a licensed employment agency, Irish Recruitment Consultant, who throughout the continuance of her employment paid her wages and issued her with P60's. Notwithstanding this Ms. Rooney never met with any person representing IRC and never negotiated with them in relation to her conditions of employment. Ms. Rooney presented a claim to a Rights Commissioners on the basis that she was a Diageo employee and was being treated less favorably than comparable permanent Diageo employees. The matter came before the Labour Court on Appeal.

The Labour Court applied the principles set out Readymix Concrete (South East) Limited v Minister for Pensions and National Insurance and concluded that Ms. Rooney was an employee of Diageo. The Labour Court was satisfied that all the elements of an employee contract existed between Diageo and Ms. Rooney. There was an offer of employment made by Diageo, which was accepted by Ms. Rooney, there was valuable consideration, and there was mutuality of obligation in the sense that Diageo undertook to provide work and Ms. Rooney undertook to perform that work.

The Court also noted that Diageo "directed" Ms. Rooney in her employment at all material times. Increases in pay were negotiated and agreed with Diageo. Ms. Rooney was required by Diageo to be a member of a Trade Union and Diageo paid the Union contribution on her behalf. Diageo determined her hours of work. She worked exclusively at Diageo's Health Centre and had never been assigned to other locations during periods when Diageo did not require her services. In those circumstances, the Court was satisfied that Diageo exercised control over Ms. Rooney in the performance of her work to such a degree to make them her employer.

In a 2007, ruling by the Labour Court in the case of Enterprise Ireland v Irene McMahon, the issue was further re-examined. In this case Enterprise Ireland were appealing a ruling by the Equality Tribunal to the effect that it was the appropriate respondent in an Equality claim taken by Ms. McMahon who was the administrator of the UCD based National Agricultural and Veterinary Biotechnology Center (NAVBC). Before proceeding to a full hearing, the Labour Court had to decide whether the correct respondent in the initial action was Enterprise Ireland or UCD.

In the case of Brightwater Selection (Ireland) Limited v Minister of Social & Family Affairs 2010, the High Court re-examined the issue of agency workers. Gilligan J stated that the Chief Appeals Officer failed to establish if there was mutuality of obligation between the agency worker and the employment agency. The employment agency did not have the power to direct the manner in which the individual conducted her work.

Gilligan J stated however that it should be considered if there was a contract "sui generis" or indeed an alternative category of contract. The court referred to the imaginative approach that the English Court of Appeal has adopted in relation to agency workers in order to take into consideration the atypical nature of their employment. The court in Brightwater was clear that every case must be considered in light of its particular facts and that there is no one size fits all test.

Agency workers maybe involved in working arrangement in two distinct ways. Firstly, where any agency introduces an individual to the hirer business and the individual is then employed by that business. In that scenario, it is usually clear that the individual is the employee of the hirer and has a direct employment relationship with them and all of their rights and obligations that arise in the employment relationship apply as between the employee and the hirer.

The second scenario is where an agency assigns an agency worker to a hirer on a temporary basis. Under such an arrangement, the agency worker is generally neither an employee of the agency nor the hirer business. Rather the agency worker is engaged by an agency under a contract "sui generis", i.e., a unique type of contract. The key consideration in a series of British cases in determining whether an agency will be found to be an employer of an agency worker is that of control over the work of the individual. In other words, because the agency will lack control over the work of the individual and there will be insufficient mutuality of obligation between the agency worker and the agency such an individual is unlikely to be engaged as working under a contract sui generis.

Decision

Ultimately, the Adjudication Officer decided that in the instant case there is no doubt whatsoever that the Complainant was an employee of the Respondent but was under the control of the hirer:

“The complaint against this named respondent is well founded and I now order the respondent to pay the complainant her statutory redundancy payment within 42 days from the date of this decision.”

The Adjudication Officer determined that agency work was regulated by an EU Directive in 2008 (Directive 2008/104/EC on Temporary Agency Work). The Directive was given effect in Irish law by the Protection of Employees (Temporary Agency Work) Act 2012. The main purpose of both the Directive and the 2012 Act is to provide agency workers with an entitlement to the same basic working and employment conditions as directly employed employees of the hirer. The entitlement to equal treatment with directly employed employees of the hirer extends to conditions in relation to basic pay, shift premium, piece work, overtime, unsocial hours worked, and Sunday work. The definition of pay in the Act does not include occupational pension schemes, sick pay, bonuses maternity pay or benefit in kind.

For the purposes of the Act, a temporary agency worker is one who is employed by an agency and is assigned to work for another organisation (the hirer) and does so under the supervision and control of the hirer. In order to come within the scope of the Act the worker must be employed by the agency but managed on a day-to- day basis by the hirer.

Takeaway

The takeaway for employees considering bringing a complaint under Section 39 of the Redundancy Payments Act, 1967, if they are an agency worker, is to be in a position to correctly identify who is actually the employer. If in doubt, as Mr Grogan had done at the outset of this case, it would be prudent to name all possible employers to ensure a right of redress is not lost.

For employers, it will be necessary to demonstrate that they were not the requisite or proper employer or, in the alternative, that a redundancy payment was not owing or was in fact paid.

Frivolous and Vexatious - The Various Case of Leon O'Connor

Mon, 18 Dec 2023 15:14:51 GMT

Introduction

In this article, we consider what will be considered frivolous or vexatious, by the Workplace Relations Commission (WRC), when a complaint is presented to them. We do so by examining several claims initiated by Mr. Leon O’Connor against various companies, including: Private Equity Recruitment; Icon Clinical Research Limited; Centrus Corporate Finance Limited; National Treasury Management Agency; S & P Global Inc; The Governor and Company of the Bank of Ireland; Irish Life Group Services Limited; Electricity Supply Board ESB; Marsh & Mclennon Companies Inc; O'Dwyer Property Management Ltd; O'Dwyer Real Estate Management; Bank Of Montreal Europe P.L.C.;BMO Capital Markets; and SSE PLC SSE Airtricity Electricity.

Background

Mr. O'Connor alleged discrimination based on religious grounds and asserted a complaint for a breach of employment equality legislation against the Irish Government and a number of other entities.

The narrative statement in the complaint form included the following:

“My complaint for breach of employment equality legislation is noted against the Irish Government and affiliated worldwide international Governments who on religious grounds have pursued a highly personalised campaign against me due to my close association with the spiritual workings of the universe and the fact that a virus (COVID 19) emanated out of a valid legal case which I tried to bring before the Irish courts against my employer …”

The cumulative outcome was to dismiss the complaints as frivolous or vexatious. This article sheds light on the legislation and case law cited by the respondents to contest the claims made against them.

Case Law

Birmingham J., in Nowak v. Data Protection Commissioner [2012] IEHC 499, defined "frivolous" as not just foolish or silly but also as a complaint that is futile, misconceived, or incapable of achieving the desired outcome. The case of J. O’N -v- S McD & ors [2013] IEHC 135 further clarified that "frivolous" and "vexatious" are legal terms indicating that the plaintiff has no reasonable chance of succeeding, imposing a hardship on the defendant.

Birmingham J., in dismissing the plaintiff’s case, stated, "In my view, the plaintiff has no reasonable chance of succeeding against the first named defendant, and it would be oppressive to require the defendant to have to take on the burden of defending proceedings which are fundamentally misconceived."

The decision in Goode Concrete v. CRH plc [2012] IEHC 116 emphasised a crucial aspect of legal proceedings. Paragraph 36 underscored that a plaintiff's right of access to the courts is not absolute. Further, the court holds jurisdiction to prevent the abuse of this right, whether due to inordinate delay or if a case is deemed frivolous, vexatious, or bound to fail. This principle, articulated in the decision, aligns with the broader legal perspective that courts can intervene to dismiss cases in order to prevent injustice to a defendant, as established in the precedent set by Barry v Buckley [1981] IR 306. It underscored the dual responsibility of the court to ensure access to justice while safeguarding against the misuse of legal processes, maintaining a delicate balance in the pursuit of fairness and equity within the legal system.

The Adjudication Officer relied on various authorities, including John and Angela Tongans and Children -v- Clare County Council (DEC-S2008-039), Fitzgerald v Minister for Community, Equality and Gaeltacht Affairs [2011] IEHC 180, Fay -v- Tegral Pipes Limited & Ors [2005] 2 IR 261, Moylist Construction Ltd v Doheny [2016] IESC 9, and Kevin Tracey v. Irish Times Ltd. & Ors [2019] IESC 62.

Conclusion

The reference to the decision in A Complainant v A Newspaper (ADJ-00037564) provides valuable insight into the criteria for identifying potentially vexatious complaints. Drawing on the Canadian case of Re Lang Michener and Fabian, (1987) 37 D.L.R. (4th) 685, the Adjudication Officer delineated key factors indicative of vexatious proceedings.

These factors, though not exhaustive, include assessing whether the issues in dispute have already been determined by a court, determining the obvious lack of success or potential good from the action, evaluating if the litigation serves an improper purpose such as harassment or oppression rather than asserting legitimate legal rights, observing a pattern where issues are perpetually re-litigated and extended into subsequent actions, considering the failure to pay costs from prior unsuccessful proceedings, and scrutinising persistent unsuccessful appeals against judicial decisions.

Maximum Compensation for Penalisation Claim

Wed, 22 Nov 2023 18:14:03 GMT

Introduction

The case of A Worker v A Massage Therapy Business (ADJ-00043225) provides an interesting perspective on what factors must be considered when awarding compensation following a claim alleging penalisation under the Protected Disclosures Act, 2014.

In this case, the complainant disclosed to her employer, concerns that wrongdoing was being carried out and further that, her health and safety, and that of a colleague, had been, was being or was likely of being endangered.

The specific allegations were that she was being asked to perform sexual acts on clients, and that a failure to do so, resulted in her being given less hours to work, less pay, and generally being treated in a worse fashion, than those who acquiesced to such illegal requests. This complaint was upheld.

Compensation for Penalisation Claims under Irish Law

The Adjudication Officer noted the wide level of discretion that he had, in making an award, noting that the applicable provisions allow him to make compensation to such an amount, that he or she “considers just and equitable having regard to all the circumstances”.

The Protected Disclosures Act 2014 is in the nature of protective legislation. Schedule 2 of the Act makes provision for maximum awards of compensation of up to five year’s remuneration in the event of a breach, which is substantially higher than the award-jurisdiction conferred on an adjudicator by any other employment statute in the state.

The Adjudication Officer made the following comments, when considering an appropriate award:

“It is clear that the legislative intention behind the Protected Disclosures Act 2014 was to afford a very high degree of protection to persons making protected disclosures, which protection was in part expressed by the conferral on an adjudication officer of an extended compensation-award jurisdiction. Schedule 2 of the Act empowers an adjudicator to require an employer to pay such compensation as he/she “considers just and equitable having regard to all the circumstances”. That term is not defined in the Act.

Some guidance is available from the jurisprudence of the CJEU (formerly the ECJ) which has held that where a fundamental social right has been breached, national law must provide an effective, proportionate or dissuasive remedy. In Cementation Skanska (formerly Kvaerner Cementation) Ltd v Carroll, DWT0338, the Labour Court, considering the right to annual leave stated:

“The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law…In Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.”

He went on to note that:

“The Complainant is a non-EU National who came to Ireland to study. She worked for the Respondent to support herself and fund her education. Her first language is not English. The Complainant was an exceptionally vulnerable worker. As a result of her protected disclosure, she was subjected to a change in attitude towards her, marginalisation, cuts to her working hours together with harassment, intimidation and coercion. I am satisfied that in addition to financial hardship the Complainant suffered very significant emotional distress and humiliation at the hands of the Respondent following the making of the protected disclosure.

It was also contended on behalf of the Complainant that the Respondent continues to trade and to advertise for workers on social media “to work in a friendly environment working with ladies from Thailand, Brazil and Mexico”.

In the present most exceptional case, I find that the nature and extent of the penalisation were of such an egregious nature as to merit an award of compensation at the maximum level permitted by the Act (being 260 weeks @ €350 per week) to enable the breaches to be compensated fully and with due regard to the intentions of the legislature.”

Conclusion

This was the first case in Ireland, whereby a complainant was awarded the maximum compensation available. The Adjudication Officer took note of the wide discretion that he had to make an award, that the intention of the relevant provisions was to ensure awards provide a real deterrent to other employers from penalising employees who raise protected disclosures, and given the vulnerable position of the employee, the award of maximum compensation of five-year salary, was just and equitable, in all of these circumstances.

Discrimination and Dismissal during the Probationary Period

Tue, 07 Nov 2023 12:22:36 GMT

Introduction

The case of Anuaj Patwardhan v Black Shamrock Ltd (ADJ-00039205) serves as a reminder of the importance of maintaining detailed records during a probationary period, of employees whose performance may not be to standard, especially when dismissal may be contemplated.

In this case, Ms. Patwardhan (the Complainant) alleged that her employer, Black Shamrock Ltd (the Respondent), engaged in discriminatory treatment against her. The Complainant, a HR and Operations Manager, was dismissed during her probationary period, but claimed she was dismissed on the basis of religion and racial origin, which is in contravention of the Employment Equality Act, 1998.

Position of Complainant

Ms. Patwardhan claimed to be a highly qualified human resources manager who was terminated on the grounds of her religious convictions, ethnic heritage, and Indian descent. She claimed that throughout her employment with the organisation, she was not made aware of any negative performance concerns. As noted by her representative, the letter of dismissal made no mention of deficiencies in performance. A dispute emerged during the adjudication proceeding regarding a purported mid-probation meeting in which deficiencies in performance were detected. Performance, according to the Complainant, was never an issue, rather, it was "culture," which could only refer to her own "culture." During cross-examination, the Complainant admitted that she had disclosed her Indian heritage to the initial job interviewer, but that her religious beliefs had never been brought up.

Position of Respondent

The Respondent claimed that significant deficiencies were discovered in the capacity of the Complainant to perform fundamental responsibilities, such as payroll and recruitment processes. Two colleagues apparently tendered their resignations as a consequence of the deficiencies in her performance, that were identified during a midterm probation review. The HR office allegedly developed a noxious environment as a result of her actions.

Determination of the Adjudication Officer

The employer bears the burden of proof in an employment equality case to demonstrate the absence of discrimination once the employee has established a reasonable inference of potential discrimination. This is supported by the Labour Court's ruling in Southern Health Board v Mitchell, [2001] -ELR 201. The central issues in this case are whether the Complainant was subject to discrimination under Sections 2 and 6 of the Act, whether she was treated less favourably than another individual not affected by the discriminatory ground, and whether she was discriminated against.

The Complainant, who was of Indian descent, alluded to her religious beliefs without explicitly expressing them. The evidence put forth demonstrated that she fulfilled one of the criteria for discrimination, however, its inadmissibility stems from the absence of specificity regarding the religious grounds. Allegedly, her employment was terminated because her Indian heritage rendered her "incompatible with the employer's culture."

Initially, the Complainant bore the burden of proof, however, the religious premises put forth were not supported by any evidence or logical deductions. The primary topics of discussion were those addressed during the probationary review meeting, as well as additional accusations made by coworkers concerning the "toxic" environment within the workplace. Despite the fact that the oral testimony and detailed records of the meeting disclosed considerable discontent between the parties, there was no conclusive evidence that the racial origin of the complainant was a significant factor:

“ This was a Performance Probation Termination and from all the Oral and Written evidence it was conducted reasonably fairly.

The Adjudicator could not see any evidence of a Religious or an Ethnic origin basis in the decision. There is not enough or indeed any obvious evidence of a Discriminatory Dismissa l.”

Key Takeaways

For employers, it is important that any decision to terminate employment, even during the probation period, be made for objective, fair and reasonable reasons, and is documented and explained, as far as possible.

For employees, if bringing a claim of discrimination, it is critical that they have some evidence beyond mere speculation, to support such a charge.

Domino’s Pizza and the Rights of Workers

Thu, 26 Oct 2023 07:19:26 GMT

Introduction

In this article, we provide a summary of the Supreme Court decision of the Revenue Commissioners v Karshan (Midlands) Ltd T/A Domino’s Pizza, which serves as a useful reference when determining whether a worker is a contractor or an employee.

Background

This case related to the engagement of delivery drivers who were contracted by Karshan (Midlands) Ltd, operating under the trade name Domino's Pizza, between the years 2010 and 2011.

The drivers engaged in a dispute on their employment status for tax purposes, with Karshan asserting that they should be classified as independent contractors based on the "contracts for service" they had entered into.

Karshan lodged an appeal against a ruling made by a Tax Appeals Commissioner in 2018, which determined that the delivery drivers ought to be classified as employees under the Pay As You Earn (PAYE) scheme. The appeal was dismissed by the High Court; however, the Court of Appeal, with a majority of 2-1, reversed the aforementioned ruling.

Employee or contractor?

The Supreme Court emphasized the difference between a contract for service and a contract of service, with the former being between an employer-employee relationship and the latter being between an independent contractor and their client.

The court outlined five questions to determine whether a contract is a contract for service or contract of service:

whether the contract involves an exchange of remuneration for the work;
whether the agreement is written so that the worker is agreeing to provide their own services;
does the 'employer' have sufficient control over the worker to make the agreement capable of amounting to an employment agreement;
are the terms of the agreement consistent with an employment contract; and/or
whether any legal reasonings mean a court should adjust these requirements.

Giving the court’s decision, Mr Justice Brian Murray said central to the appeal was whether a requirement that the employer and worker owe each other certain “mutual obligations” was necessary to the establishment of the employment relationship.

Conclusion

The ruling has wide implications for Irish employers, as courts will now look to whether the employer had "close control" over an individual acting in the course of employment to establish an employment relationship.

This comes with more robust rights for workers under various employment legislation, including the Organisation of Working Time Act 1997, the Employment Law (Miscellaneous Provisions) Act 2018, and the Terms of Employment (Information) Act 1994.

European Law and the Workplace Relations Commission

Mon, 23 Oct 2023 08:44:49 GMT

Introduction

The competence of the Workplace Relations Commission (WRC) spans a wide range of workplace problems; however, it is crucial to acknowledge that certain matters, such as particular criminal cases or disagreements pertaining to constitutional or European Union law, may fall outside its scope. This assertion is valid even in cases when these issues bear significance for labour and employment legislation. In general, the Irish judicial system assumes the responsibility of addressing such circumstances within the appropriate court of law.

The Minister for Justice and Equality and The Commissioner of An Garda Síochána v WRC (C-378/17) involved a request for a preliminary ruling from the European Courts of Justice (ECJ) on whether a national body established by law in order to ensure enforcement of EU law in a particular area must be able to disapply a rule of national law that is contrary to EU law.

European Law in Ireland

The objective of EU legislation is to develop a comprehensive structure for ensuring equal treatment in the context of employment and occupation. This framework encompasses the prevention and elimination of discriminatory practises based on many factors, such as religion or belief, disability, age, and sexual orientation. It is imperative for Member States to provide the accessibility of legal and administrative procedures to individuals who perceive themselves as victims of unequal treatment, even in cases where the claimed discrimination took place in a terminated relationship.

According to Irish legislation, the administration of justice is to be carried out inside legally created courts, presided over by judges nominated in accordance with the provisions outlined in the Constitution. It is further stipulated that the High Court possesses complete original jurisdiction and authority to adjudicate upon all matters and inquiries, regardless of whether they pertain to legal or factual issues and encompassing both civil and criminal cases.

Ronald Boyle, along with two additional individuals, were deemed ineligible for participation in the recruitment process for new police officers within An Garda Síochána in Ireland on the basis of their age. The individuals lodged complaints with the Equality Tribunal, contending that the establishment of an upper age limit for recruitment is a kind of discriminatory practise. The Minister contended that the jurisdiction of the Equality Tribunal was deficient, as the action in question was under the purview of national legislation. Nevertheless, the Equality Tribunal continued with the examination of the complaints and duly deliberated on the jurisdictional matter raised by the Minister.

The judgement of the High Court to affirm the Minister's action was based on the determination that the Equality Tribunal did not possess the authority to issue a legally enforceable ruling that found national legislation to be inconsistent with European Union law. The Supreme Court of Ireland was approached by the Equality Tribunal, currently known as the WRC, to challenge its competence to invalidate elements of domestic legislation that it deems to be in conflict with European Union law. The examination conducted by the Supreme Court focused on the compliance of this division of jurisdiction with the principles of equivalence and effectiveness as established by the case-law of the Court of Justice.

European Union Law and the Workplace Relations Commission

The Supreme Court made the decision to suspend the ongoing legal proceedings and seek clarification on a specific matter through a preliminary ruling. The question to be referred was whether it is necessary to consider that the relevant statutory body, the WRC, had the authority to address a complaint regarding the violation of Union law by national legislation, and if the complaint is upheld, to override that legislation? This is in spite of the fact that according to national law, the authority to address challenges to the validity of legislation or to disapply legislation, on any grounds, is conferred upon a court established under the Constitution rather than the aforementioned statutory body.

Supremacy of EU Law

The ECJ has underscored the differentiation between the authority to invalidate a provision of national legislation that contradicts EU law and the authority to nullify such a provision, which entails rendering the provision invalid for all intents and purposes. The responsibility of selecting courts and institutions to assess the legitimacy of a national law and establishing the legal remedies and processes for challenging its legality lies with the Member States. Nevertheless, the idea of the primacy of EU law requires that national courts must fully enforce EU law, thereby refraining from independently applying any contradictory provisions of national law. Any provision within a domestic legal system, as well as any legislative, administrative, or judicial practise that could hinder the efficacy of EU law by limiting the authority to disregard national legislative provisions, which may impede the full implementation of directly applicable EU regulations, is inconsistent with the fundamental principles of EU law.

In the current scenario, the Irish legislative body made the decision to delegate the responsibility of enforcing adherence to Directive 2000/78 to the WRC. According to section 77(1) of the Equality Acts, individuals who believe they have experienced discrimination in violation of the Equality Acts have the right to seek compensation for the perceived injury they have endured by submitting their case to the WRC.

The concept of primacy of EU law mandates that the WRC is obligated to afford legal safeguards to individuals in accordance with EU law, and to guarantee its complete efficacy by disregarding any domestic laws that may conflict with it. The aforementioned principle holds significant importance in guaranteeing the implementation of non-discrimination measures within the realm of work and occupation. In the event that a governing authority, such as the WRC, is unable to identify a national law that contradicts Directive 2000/78 and subsequently opts to invalidate it, the efficacy of EU regulations pertaining to equality in employment and occupation would be diminished.

Conclusion

The unity and efficacy of EU legislation cannot be compromised by national laws, including constitutional measures. The principle of the primacy of EU law necessitates that entities take all requisite actions to guarantee the complete effectiveness of EU legislation, therefore invalidating any national provisions or legal precedents that conflict with EU law. This implies that entities should refrain from seeking or anticipating the nullification of these rules or legal precedents through legislative or constitutional mechanisms.

In summary, it is imperative to interpret EU law, specifically the principle of primacy of EU law, as prohibiting national legislation, such as the one under consideration in the primary proceedings. This legislation pertains to a national entity that is legally mandated to enforce EU law in a specific domain but lacks the authority to invalidate a national law that contradicts EU law.

Statutory v Company Sick Pay Schemes

Fri, 20 Oct 2023 10:04:20 GMT

Introduction

The Sick Leave Act 2022, in effect since 1 January 2023, grants employees in Ireland the right to statutory sick pay (SSP) for the first time. An employee who has completed 13 weeks of continuous service is entitled to up to three days per year, provided they provide their employer with a medical certificate stating they are unable to work. SSP is paid at a rate of 70% of an employee's pay, subject to a daily maximum of €110.

Statutory v Company Sick Leave Schemes

The Workplace Relations Commission (WRC) has recently issued a decision under the Act, which examined what factors should be considered when there is a conflict between the statutory and employer provisions (Katerina Leszczynska v Musgrave Operating Partners (ADJ-00044889)).

In this case, the WRC analysed the obligation to pay SSP and the circumstances in which an employer with a company sick pay scheme is exempt from the obligation to pay SSP. The complainant, a shop assistant at a Supervalu branch, claimed that she was entitled to SSP for the first three days of her absence. However, the respondent's sick pay scheme provided eight weeks fully paid sick leave, but the first three days were considered "waiting days" and not paid. The claimant argued that the terms of the respondent's scheme were less favourable to her than SSP.

More Favourable Sick Leave Scheme

Section 5 of the Act provides that employees are entitled to three statutory leave sick days. The first day of absence due to illness or injury is the first statutory sick leave day. Counsel for the respondent submitted that this provision must be read in the context of two subsequent sections in the Act. Section 8, entitled, “more favourable provision in contact of employment,” provides, at subsection (1) that,

(1) Nothing in this Act shall prevent the inclusion in a contract of employment of a provision that is -

(a) as favourable to an employee as, or

(b) more favourable to an employee than, an entitlement to statutory sick leave in accordance with this Act, and any such provision shall be in substitution for, and not in addition to, that entitlement.

Counsel for the respondent submitted that the use of the word “substitution” must be given a plain meaning, signifying an alternative or replacement sick pay scheme. The significance of this point is seen when analysing the further non-application provision at section 9 of the Act:

(1) The obligations under this Act shall not apply to an employer who provides his or her employees a sick leave scheme where the terms of the scheme confer, over the course of a reference period set out in the scheme, benefits that are, as a whole, more favourable to the employee than statutory sick leave.

(2) In determining, for the purposes of subsection (1), whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, the following matters shall be taken into consideration:

(a) the period of service of an employee that is required before sick leave is payable;

(b) the number of days that an employee is absent before sick leave is payable;

(d) the amount of sick leave that is payable;

(e) the reference period of the sick leave scheme.

To determine if the respondent’s sick leave scheme confers upon its employees benefits that are, “as a whole more favourable,” respondent counsel said that the following matters must be taken into consideration:

1. The period of service of an employee before sick leave is payable;

2. The number of days that an employee is required to be absent before sick leave is payable;

3. The length of time for which sick leave is payable;

4. The amount of sick leave payable;

5. The reference period of the sick pay scheme.

Each of these matters were addressed in turn, in the respondent’s submission.

Conclusion

The WRC found that the respondent's scheme provided benefits that were more favourable to the complainant than SSP, and as a result, the complainant's claim in respect of SSP was not successful. This case provides valuable insight into the WRC's consideration of the provisions of the Act dealing with a company sick pay scheme and whether it is more favourable to the employee than the SSP scheme. Further litigation before the WRC and Labour Court is inevitable, and employers should assess their company scheme on an ongoing basis as SSP increases over time.

The use of Stenographers in WRC Proceedings

Wed, 18 Oct 2023 14:42:11 GMT

Introduction

The use of stenographers in Workplace Relations Commission (WRC) proceedings is quite rare. However, the use of stenographers came under some public scrutiny recently on foot of a case brought by Ms Ammi Burke against her former employer, Arthur Cox LLP (Ammi Burke -v- Arthur Cox LLP ADJ00026883). Ms Burke had brought a claim of unfair dismissal against Arthur Cox initially arguing that how she was dismissed was devoid of any due process or fair procedure.

On foot of constant interruptions from family members of Ms Burke, proceedings were brought to a close by the Adjudication Officer, Mr Kevin Baneham.

Ms Burke later brought judicial review proceedings against the WRC, contesting how her complaint was managed. Ms Burke also complained about Arthur Cox’s hiring of a stenographer service which she described as a “private arrangement” and the Court's use of the transcripts from those proceedings, in her civil case.

In this article, we look at the use of stenographers in WRC and Labour Court proceedings.

History and Guidelines

Before the establishment of the WRC, there existed an Employment Appeals Tribunal (EAT). The EAT produced ‘Guidelines for Employees, Employers and Practitioners Appearing Before the Employment Appeals Tribunal’ which noted the use of stenographers.

The guidance set out that “stenographers can be used at EAT hearings. On the day of the hearing, the party using a stenographer should inform the Tribunal that they intend using a stenographer.”

In Jacek Przesmycki -v- Thomas Farrell & Sons (Garage) Limited T/A Tramore Service Station (UD1066/2012, MN688/2012) the EAT noted that “the Tribunal’s Notes are the Official record of the proceedings. Should the Respondent wish to have a verbatim record of the proceedings before the Tribunal he will be permitted to use the services of an Official stenographer.”

In Employee -v- Employer (UD1690/2011, MN1749/2011) the EAT noted that “the respondent engaged stenographer services for the interviews so the Tribunal has had every opportunity to know how the interview and disciplinary process went. The Tribunal notes that the claimant was not allowed legal representation though this fact is denied and this is seen by the Tribunal as having been unreasonably withheld in circumstances where gross misconduct which could lead to dismissal was what was being investigated.”

From this case, it is very clear that the WRC and Labour Court have inherent jurisdiction to review transcripts provided by an official stenographer before making a determination, according to the ordinary rules of evidence. It is also clear that, as effective successors to the EAT, they also have capacity to permit the use of stenographers at hearings.

In David Mahon -v- Noyeks Limited (MN549/2004), concerning the use of a stenographer, it was noted that “the Tribunal agreed to a stenographer being present at the hearing provided that both parties accept that the official record of the Tribunal was the one taken by the Secretary to the Tribunal. Both parties accepted these terms.”

Use of Stenographers before the Labour Court

The issue of whether a party to proceedings is permitted to record those proceedings was addressed by the Labour Court in Bord Gais Eireann T/a Brookfield Renewable (Irl) Holdings Ltd - And - Jaroslaw Obuszko (EDA1623) after the complainant requested authority to do so. The Labour Court denied that request, arguing that any electronic recording would be open to unauthorised editing but did offer the complainant the opportunity to avail of a stenographer but decided not to do so.

“The Complainant submitted a very large volume of material to the Court outlining details of grievances with the Respondent, dating back to 2008. Included in this was a CD which, the Complainant stated, contained recordings of various meeting with the Respondents representatives. This was returned to him as it was not accepted as a reliable form of evidence to the Court. The Complainant also sought permission to record the Court proceedings. This was denied as the Court is of the view that such recordings were open to editing. He was informed that he could have a stenographer present if he wished but he decided not to avail of that opportunity.”

Use of Stenographers before the WRC

In the ‘Consultation Paper on Remote Hearing and Written Submissions’ published by the WRC, it is noted that “the WRC does not currently record its hearings or permit any of the parties to do so save in those circumstances where a professional stenographer and/or recognised recording company have been permitted to record proceedings. Any solution developed in terms of remote hearings must comply with the statutory requirements and comply with the General Data Protection Regulations.”

A pressing case concerning the use of stenographers arose in Technical Records Assistant -v- An Airline (ADJ-00015400), wherein several complaints had been brought by a Hungarian national who worked as a technical records assistant with the respondent, arguing that she had been unfairly treated due to her gender and race. The respondent presented their case but decided to exit proceedings, having set out a number of preliminary matters. The respondent asked that their hired stenographer should be allowed to stay in the room and take notes in their absence. The Adjudication Officer noted that a party to such proceedings was entitled to avail of a stenographer. However, it was incumbent that the relevant party participate in those proceedings. This raises the question, of whether on foot of the Zalewski decision which noted that WRC proceedings are ordinarily to be public in nature, the extent to which members of the public, or any other interested parties, are permitted to take notes of or evidence WRC proceedings.

There was only one reference to a stenographer in the decision of Ammi Burke -v- Arthur Cox, which notes that a stenographer was permitted to attend. It was later suggested that a copy of the stenographer’s report would be made available to Ms Burke if she agreed to contribute to those stenography fees. However, if a party to proceedings wishes to introduce a stenographer’s report into proceedings, then the rules of the WRC require that, ordinarily, any documentation submitted by one party is automatically shared with the other, unless there are compelling reasons not to do so.

On that note, we highlight the reasoning set out in respect of the complainant’s query as to why a stenographer was present in Gary Powell v C&F Tooling Limited (ADJ-00028134) wherein it was noted in the final decision that “in response to the complainant’s query as to why a stenographer was present, the respondent submitted that the complainant is under oath/affirmation and because there is a personal injuries claim pending, the respondent requires a record and it would be for the judge deciding on the personal injuries claim to decide on admitting the transcript into evidence. The respondent submitted that a stenographer is permitted in the Labour Court and in response to a request by the complainant for a copy of the stenographer’s transcript, the respondent responded that the complainant could have a copy if they paid for same. The complainant submitted that as a copy of the transcript which would be sent to the adjudicator, and in line with normal procedures a copy of such correspondence would be issued to parties, the complainant would receive a copy in that manner. There was no objection from the respondent and the hearing then proceeded.”

Conclusion

It is clear that when and employer has utilized the services of a stenographer during an internal process, any transcripts produced, can be used in evidence before the WRC or the Labour Court.

It also appears to be permissible, for either party to those proceedings, to procure a stenographer for their records of the proceedings.

However, if those records or transcripts scripts are entered into evidence, ordinarily, the WCR or Labour Court should share that documentation with the other side.

Unfair Dismissal - Contribution of Employee to Dismissal

Mon, 16 Oct 2023 14:30:39 GMT

Introduction

While an employee may often win their claim of unfair dismissal, an Adjudication Officer may reduce the amount awarded on foot of the conduct of that employee.

In this article, we review a number of cases that involve employees who were successful in their claims of unfair dismissal, but who had their compensation reduced to reflect the fact that their own conduct had contributed to their dismissal.

Jacinta Doyle v River Island Clothing Co. (Ireland) Ltd (ADJ-00029939)

In this case the Adjudication Officer noted the refusal of the Complainant to engage in the appeals process. It was stated that: “In terms of a standard Unfair Dismissals case, this refusal is very detrimental to the complainant. There is extensive case law to support this point”.

The Adjudication Officer upheld the complaint under section 8 of the Unfair Dismissals Act,1977. However, only €1000 was awarded to the Complainant due to the fact that “the dismissal was unfair on procedural grounds but with a very significant Complainant counterweight”.

A PM/ Complainant v A Food Producer (ADJ-00023204)

In this case, despite finding that the Complainant had been unfairly dismissed, the Adjudication Officer noted that the Complainant’s conduct had contributed to the decision to dismiss him.

This conduct included the Complainant’s “attitude, his demeanour, his lack of trust in his employer – setting them up with recorded meetings, his repeated argumentative approach at meetings and his repeated references to wanting an offer to leave.” In the opinion of the Adjudication Officer, all of these actions had “undoubtedly contributed to his own downfall”.

As a result of this, the Adjudication Officer concluded that the compensation to be awarded to the Complainant should be reduced by 60%.

A Senior Receptionist v A Boutique Hotel (ADJ-00016679)

In this case, the Adjudication Officer found that the Complainant had been unfairly dismissed.

In considering the amount of compensation to be awarded, the Adjudication Officer noted section 7(1)(c) of the Unfair Dismissals Act,1977 which states that when considering the issue of compensation, an Adjudication Officer must consider what is “just and equitable having regard to all the circumstances”.

He also noted section 7(2)(f) which states that the complainant’s contribution to the situation must be taken into account.

The Adjudication Officer concluded that the actions of the Complainant in this case warranted a reduction of 25% in the amount of compensation to be awarded. It was held that the Complainant had contributed to his own dismissal by acting in an intimidatory manner towards a Ms. XF.

Motor Mechanic v A Transport Company (ADJ-00021420)

Similarly, in this case the Adjudication Officer concluded that the Complainant had been dismissed as a form of penalisation under the Safety, Health & Welfare at Work Act,2005.

However, they acknowledged that the employee had made a significant contribution to the situation. Therefore, the compensation to be awarded was reduced in order to reflect this.

Key Takeaways

What both employers and employees should take away from these cases is that while an employee may be found to be unfairly dismissed, the compensation awarded to them will be reduced to reflect the contribution that they have made to their own downfall.

Therefore, before employees decide to take a claim, they should consider to what extent their own actions contributed to the dismissal.

Reduction in Hours - Breach of Contract?

Fri, 29 Sep 2023 09:55:16 GMT

Introduction

In Gillian Dunne v Teroboc Operations Limited t/a Kinnitty Castle Hotel (ADJ-00041511), it was held that the reduction in hours of work, on foot of the particular requirements of the complainant, coupled with the operational requirements of the respondent, did not amount to a breach of the contract of employment.

The complainant commenced working for the respondent in October 2007. She was initially working in the kitchen. She requested a move to housekeeping as she had a back/shoulder injury. She worked 15 hours per week. The complainant set out that she had to leave her position due to the respondent giving her reduced hours or no hours.

Constructive Dismissal Law

Section 1 of the Unfair Dismissal Act defines constructive dismissal as follows: -

the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer

Section 6(1) of the Act states

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; in essence that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”.

In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”.

Secondly, the Act at Section 1 addresses the issue of reasonableness. It is settled law that in considering a complaint of constructive dismissal, I must consider this issue either as an alternative to the contract test or in combination with that test. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving.

In the within matter the complainant submitted that the reduction in her provided shifts was unfair and breach of her contract of employment.

Conclusion

The Adjudication Officer concluded:

“Overall, I accept that the Complainant's hours of work were reduced and this was linked to her request to move from the kitchen department to the housekeeping department together with her unavailability to work in the afternoons or at the weekends. Overall, in all the circumstances, I cannot find that the Respondent’s conduct was unreasonable to the degree that the Complainant could be justified as a result in terminating her employment by way of constructive dismissal nor was the Respondent’s conduct such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of the Complainant’s contract of employment.”

Suspension Without Pay as a Disciplinary Sanction

Fri, 29 Sep 2023 09:44:48 GMT

Introduction

In Joseph Kelly v KDK Scaffolding Limited (ADJ-00037787), it was held that the imposition of one day’s suspension without pay, without any authorisation provided for in the contract or company handbook, amounted to a breach of Section 5 of the Payment of Wages Act, 1991.

Background

The respondent admitted that the Complainant was not paid his wages for the 03 March 2022 however it submitted that it was a lawful deduction. The respondent’s representative made reference to S.I. No. 146/2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 and submitted that Section 10 provides that disciplinary action may include suspension without pay and Section 11 which provides that there may be instances where more serious action, including dismissal, is warranted at an earlier stage.

Reference was also made to the respondent’s disciplinary procedures. It was submitted that the respondent invoked fair procedures in accordance with its disciplinary procedure and that the complainant received a first written warning for what the respondent described as “numerous well founded allegations to which [the complainant] admitted to doing” and that the escalation of adding a one-day’s suspension without pay was to highlight the severity of the complainant’s conduct without providing a final written warning for four upheld allegations. However, there was no term or provision for unpaid suspension deductions from the wages of the complainant in his contract of employment.

Due to its brevity it is worth including the contents of the entirety of the respondent’s disciplinary procedure hereunder:

"D ismissal Procedures / Disciplinary Rules

The terms of the Redundancy Payments Acts, Minimum Notice and Terms of Employment Act 1973, Organisation of Working Time Act and the Unfair Dismissals Act 1977/1993 will be observed. In cases of unsatisfactory conduct or work performance, the following steps will be taken:

a) Verbal Warning

b) Written Warning

c) Final written warning and/or suspension without pay

d) Dismissal

Gross misconduct may lead to instant dismissal, without notice or written warnings.

Some Examples of Gross Misconduct :-

- theft or any other indictable offence

- falsification of records

- malicious damage

- physical violence

- provoking or threatening behaviour or instigating a fight

- contravention of safety regulations

- any other serious act of wilful misconduct

The company acknowledges the right of any employee to be accompanied by a trade union representative, shop steward or colleague. Representation by any other party is not permitted. The company also acknowledges the right of any employee to appeal against any disciplinary action taken against him/her.

No industrial action of any kind may be taken until such time as the disputes procedure has been exhausted and then only after the requirements of the Industrial Relations Act 1990 have been met. Failure to comply with this condition will be considered a serious breach of your contract of employment and may result in your dismissal. "

It is apparent from the foregoing, and in particular the steps at a), b), c) and d) above, that whilst the respondent’s disciplinary procedures provide for suspension without pay at step c), such a sanction is only prescribed to be in addition to or as an alternative to a final written warning.

The Adjudication Officer found that the only reference to suspension without pay was in the respondent’s disciplinary procedure however the said procedures do not provide for unpaid suspension deduction from wages where the suspension without pay arises in conjunction with a first written warning as arose in instant case.

Redress

Redress is provided for in Section 6(1) of the 1991 Act as follows:

6(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— (a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

The complainant was therefore entitled to compensation of €176.92 being the equivalent to 1 days wages.

Bringing a Claim under the Protection of Employees (Fixed Term Work) Act, 2003

Thu, 28 Sep 2023 09:52:59 GMT

Introduction

An interesting case was recently decided wherein the Workplace Relations Commission (WRC) found that an employee, Amy Farrell, could not bring a complaint against An Garda Siochana under Section 14 of the Protection of Employees (Fixed Term Work) Act, 2003 (see Amy Farrell v An Garda Síochána ADJ-00036366).

By way of background, Ms Farrell was employed as a cleaner with An Garda Siochana. Ms Farrell commenced employment in August 2016. During 2016 and 2017 she worked at Garda Headquarters and different stations providing relief cover. Since 2017 she had continuously worked at the same station doing the same work five days per week, working a total of 37 hours per week.

In 2018, Ms Farrell spoke to a member of management about getting a permanent contract of employment. She was advised that she had to be there four years before this could be considered. An Garda Siochana issued Ms Farrell a contract of indefinite duration in February 2023 which was subsequently withdrawn. An amended contract of indefinite duration was issued in March 2023. That amended contract was also later withdrawn by the respondent. A third contract of indefinite duration was issued in April 2023.

A hearing of the complaint was held on 09 May 2023.

Legislation and Case Law

Ms Farrell brough a complaint seeking adjudication by the Workplace Relations Commission under section 14 of the Protection of Employees (Fixed-Term Work) Act 2003.

Given the interaction between the parties on the matter, the Adjudication Officer noted that it was understandable how the complainant considered herself to be a fixed-term employee and the decision taken to refer this complaint under the 2003 Act. However, the Adjudication Officer explained to the parties at the hearing, that their jurisdiction derives from the 2003 Act and is not conferred by the agreement or acquiescence of the parties. Accordingly, the Adjudication Officer, before progressing the complaint, needed to satisfy themselves that the complainant was a fixed-term employee within the meaning of the 2003 Act at the material time of referral of the complaint or within the 6-month cognisable period because otherwise she would have no legal standing to bring a complaint under the 2003 Act.

Section 2 of the 2003 Act defines a fixed-term employee as:-

“… a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include –

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;”

This definition was considered by Laffoy J. in Nerney v Thomas Crosbie Holdings Ltd [2013] ELR 238. The plaintiff in that case was employed in 2004 pursuant to what was described as an executive contract. The contract was expressed to be for a period of four years and to continue for periods four years unless the defendant gave notice of an intention not to renew at least 6 months before the expiry of any four-year period. An issue for Laffoy J. to determine was whether the plaintiff was a fixed-term employee within the meaning of section 2 of the 2003 Act from the commencement of his employment with the defendant under the executive contract. In the following extract from the judgement, Laffoy J. explains the essential characteristic of fixed-term employment, namely that it be determined by an objective condition:-

“The application of the definition of fixed-term employee to the plaintiff as an employee of the defendant under the Executive Contract raises the question whether the end of the Executive Contract is determined by an objective condition. Having regard to the examples of “objective condition” set out in the definition, and also in s.8(1) of the Act of 2003, I understand “objective condition” to mean a condition which is identifiable by reference to the object, that is to say, the condition, without reference to the view or perception or intervention of either party to the contract. A contract, such as an Executive Contract, the term of which is expressed to be from the commencement date for a period of four years and continuing for further periods of four years unless determined by six months’ notice from the employer given at least six months before the expiration of any four year period cannot be said to be determined by an objective condition, because the intervention of the employer, which may or may not happen, and in this case did not happen over a period of eight years is necessary to give rise to and identify the determining event.”

The description of the complainant as a “relief cleaner” and the panel as a “relief panel” might reasonably be understood to mean that the complainant and panel were used to provide cover and replacement personnel for core or unavailable staff. Neither party was in a position to clarify at the hearing how the relief panel operated. The respondent did not avail of the opportunity given to submit post-hearing any information relating to the establishment and operation of the relevant relief panel, including information pertaining to the employment status of persons on the panel. The Adjudication Officer noted the lack of documentation and information provided to the complainant concerning her employment with the respondent from 2016 and the terms thereof, which was a further source of ambiguity.

In the circumstances, the Adjudication Officer found that the complainant was not a fixed-term employee within the statutory meaning of that term and accordingly lacked the legal standing to maintain this complaint under the 2003 Act. Accordingly, their decision was that this complaint was not well founded.

Conclusion

The Adjudication Officer noted that the description of the complainant, Ms Farrell, as “a relief cleaner” and the panel as a “relief panel” might reasonably be understood to mean that the complainant and the panel were used to provide cover and replacement personnel for core unavailable staff. Neither party was in a position to clarify to the adjudication office at the hearing how the relief panel operated. The respondent, An Garda Siochana, did not avail of the opportunity given to submit post hearing any information relating to the establishment and operation of the relief panel including information pertaining to the employment of status of persons on the panel. The Adjudication Officer noted the lack of documentation and information provided by An Garda Siochana to the complainant concerning her employment with that organisation from 2016 onwards. The sense of ambiguity on the part of the complainant was understandable. However, for a number of reasons, most notably the fact that a contract of indefinite duration had been issued to the complainant, meant that the complainant was not a fixed term employee within the statutory meaning of that term and, accordingly, lacked the legal standing to maintain a complaint under the 2003 Act. Accordingly, the Adjudication Officer found that the complaint was not well founded. This is a most unfortunate set of circumstances as the confusion around the employee’s status was obvious to all. There may have been the possibility that Ms Farrell could have brought a complaint under different legislation, including the Terms of Employment (Information) Act or a trade dispute under the Industrial Relations Act. However, one positive from this decision is that the WRC did consider Ms Farrell to have a contract of indefinite duration, therefore, any further attempts to unilaterally amend or terminate that agreement, would most likely be construed against that organisation.

Employment Law Claims in Ireland

Mon, 25 Sep 2023 12:34:42 GMT

Below we set-out a list of potential employment law complaints an employee can bring to the Workplace Relations Commission (WRC).

Agency Workers

Failure to provide Comparable Working Conditions (Part Time Employee).
Charged a work-seeking fee.
Not informed by the Employer of a vacant position with the Hirer.
Treated less favourably by the Employer in relation to access to facilities and amenities.

Discrimination, Equality & Equal Status

Discriminated against by employer, prospective employer, employment agency, vocational training or other bodies.
Failure to receive equal pay.
Discrimination by way of occupational pension.
Employment Agreement contains a provision which is discriminatory.
Discriminated against by a person, organisation or company which provides goods, services or facilities.

Fixed & Part Time Work

Treated less favourable than a comparable full time employee in respect of conditions of employment (Fixed Term).
Treated less favourably than a comparable full time employee in respect of conditions of employment (Part Time).
Employer failed to offer a written statement setting out objective grounds justifying the renewal of a fixed term contract and a failure to offer a contract of indefinite duration.
Employer has contravened the legal provisions in relation to a number of successive fixed term contracts.
Employer failed to inform fixed term employee of opportunities for a permanent employment.
Employer failed to provide employee representative information about fixed term work.

Hours of Work

Failure to get daily rest period.
Failure to get breaks.
Failure to get weekly rest period.
Required to work more than the maximum permitted number of hours.
Non receipt of paid holiday / annual leave entitlement.
Failure to receive public holiday entitlements.
Working excessive night hours.

Industrial Relations Act

Complaint in relation to disciplinary sanctions up to and including dismissal.
Bullying and harassment procedures.
Regularising acting up arrangements.
Dispute regarding allowances.
Investigation of trade dispute.

Minimum Notice

Failure to receive statutory minimum notice.
Did not receive all rights during notice period.
Did not receive contractual minimum notice.

Pay

Failure to receive national minimum rate of pay.
Not paid compensation for working Sunday.
Not provided payslip.
Errors on payslip.
Unlawful deduction of wages.
Employers paid less than amount owed.
Employers paid by a method other than legally prescribed.
Employer not keeping statutory records.
Non receipt of paid holiday / annual leave entitlement.
Non receipt of public holiday entitlement.
Non receipt of payment in lieu of notice of termination.
Non receipt of statement of average hourly rate of pay.
Non receipt of minimum rate of pay as set out in an Employment Regulation Order (ERO).
Non receipt of rate of pay set out in a Sectoral Employment Order (SEO).

Penalisation and Protected Disclosures

Penalised for refusing to cooperate with a breach of the protection of Young Person’s Employment Act, 1996.
Penalised for proposing to exercise or having exercised entitlement to parental or force majeure leave.
Penalised for invoking entitlement under the National Minimum Wage Act, 2000.
Penalised for having exercised or proposing to exercise entitlement to carer’s leave.
Penalised for having performed the functions of an employee representative.
Penalised for making a complaint under the Employment Permits Act.
Penalised for invoking entitlements under the Protection of Employees (Fixed Term Work) Act, 2003.
Penalised for reporting breaches of The Charities Act, 2009.
Penalised for reporting breaches of The Chemicals Act, 2008.
Penalised for reporting breaches of The Competitions Act, 2002 to 2010.
Penalised for reporting breaches of The Consumer Protection Act, 2007.
Penalised for reporting breaches of The Criminal Justice Act, 2011.
Penalised for reporting breaches of The Inland Fisheries Act, 2020.
Penalised for reporting breaches of The National Asset Management Agency Act, 2009.
Penalised for reporting breaches of The Prevention of Corruption (Amendment) Act, 2001.
Penalised for reporting breaches of The Protection of Personal Reporting Child Abuse Act, 1998.
Penalised for reporting breaches of The Property Services (Regulation) Act, 2011.
Penalised for making a protected disclosure of information under the Health Act 2004.
Penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act.
Penalised by my employer for invoking entitlements under the Protection of Employees (Part-Time Work) Act 2001 or for refusing to cooperate with a breach of that Act.
Penalised by my employer for making a report of an incident under European Communities (Occurrence Reporting in Civil Aviation) Regulations 2007.
Penalised by my employer for performing my functions in accordance with the European Communities (European Cooperate Society) (Employee Involvement) Regulations 2007.
Penalised by my employer for performing my functions in accordance with the European Communities (European Public Limited-Liability Company) (Employee Involvement) Regulations 2006.
Penalised or threatened with penalisation by my employer (an Employment Agency) for exercising rights under the Protection of Employment (Temporary Agency Workers) Act, 2012
Penalised or threatened with penalisation by an employer to whom I am hired out by an Employment Agency for exercising rights under the Protection of Employment (Temporary Agency Workers) Act, 2012.
Victimised for taking an action set out in Section 74 of the Employment Equality Acts.
Victimised by my employer for being or not being a member, or engaging or not engaging in activities on behalf, of a Trade Union or excepted body.
Penalised for making a protected disclosure of information under the Central Bank (Supervision and Enforcement) Act, 2013.
Penalised or threatened with penalisation by my employer for having made a protected disclosure under the Protected Disclosures Act, 2014.
Penalised or threatened with penalisation by an employment agency for exercising my rights under the Further Education and Training Act, 2013.
Penalised for invoking rights under the Industrial Relations (Amendment) Act, 2015.
Penalised or threatened with penalisation for having exercised or proposing to exercise my entitlement to paternity leave.
Penalised or threatened with penalisation for invoking or having given notice of an intention to exercise any rights under the Terms of Employment (Information) Act, 1994.
Penalised or threatened with penalisation having opposed or having given notice of an intention to oppose in good faith an action that is unlawful or giving notice of my intention of doing so under the Terms of Employment (Information) Act, 1994.
Penalised or threatened with penalisation for giving evidence in any proceedings or giving notice of my intention of doing so under the Terms of Employment (Information) Act, 1994.
Penalised or threatened with penalisation for invoking, my rights or giving notice of my intention of doing so under the Organisation of Working Time Act 1997.
Penalised or threatened with penalisation for opposing in good faith an action that is unlawful or giving notice of my intention of doing so under the Organisation of Working Time Act 1997.
Penalised or threaten with penalisation for giving evidence in any proceedings or giving notice of my intention of doing so under the Organisation of Working Time Act 1997.

Protection of Young Person at Work

Unlawful employment of a child.
Failure to grant the child rest periods / breaks.
The unlawful employment of a young person.
The double employment of a child or young person.
Failure to keep statutory records.
Failure to display the prescribed abstract of the Protection of Young Person’s Act, 1996.

Redundancy

Non receipt of redundancy payment.
Receipt of incorrect redundancy payment.
Non receipt of proof of employer’s inability to pay redundancy.
Failure to properly consult in relation to a proposed collective redundancy.
Failure to supply representative with relevant information relating to proposed collective redundancy.
Failure to employer to supply Minister with copy of the prescribed redundancy information.
Dissatisfaction with a decision of a deciding officer in relation to a redundancy lump sum.
Minister for Social Protection failed to make payment due to me under the Insolvency Payment Scheme.
Minister for Social Protection failed to make full payment due to me under the Insolvency Payment Scheme.

Special Leave

Not granted adoptive leave entitlements.
Not granted additional adoptive leave entitlements.
Not granted carer’s leave.
On expiration of carer’s leave, not allowed to return to work.
On expiration of carer’s leave, not offered suitable alternative employment.
Non receipt of parent leave entitlement.
Non receipt of force majeure leave.
On expiration of parental leave, not allowed to return to work.
On expiration of parental leave, not offered suitable alternative employment.
Non receipt of maternity leave entitlement.

Terms and Conditions of Employment

Non receipt of statement in writing of terms of employment.
Not notified in writing of a change to employment terms.
Failure of employer to keep statutory employment records.
Not notified of working hours regulations applying to the road transport sector.
Performance of mobile transport activities and failure of employer to provide records.
Non receipt of terms and conditions as laid down by an Employment Regulation Order (ERO).
Non receipt of terms and conditions as laid out by a Sectoral Employment Order (SEO).
Non receipt of statement of core terms in writing under the Terms of Employment (Information) Act, 1994.
Receipt of statement of core terms which deliberately contain false or misleading information.

Transfer of Undertaking

Transferee did not ensure that terms and conditions transferred from previous employer.
Transferor did not ensure that my terms and conditions transferred to my new employer.
Transferee did not observe the terms and conditions transferred from my previous employer.
Dismissed by transferor on the grounds of the transfer of the business or undertaker.
Dismissed by transferee on the grounds of the transfer of the business / undertaking.
Employee representation not preserved or arranged by transferee following the transfer of business.
Transferee did not inform employee representative of certain details of the transfer.
Transferor did not inform employee representative of certain details of the transfer.
Transferee did not consult in relation to the transfer.
Transferor did not consult in relation to the transfer.
Transferee did not advise in relation to the transfer.
Transferor did not advise in relation to the transfer.

Unfair Dismissals Act

Unfairly dismissed, with at least 12 months service.
Unfairly dismissed, does not have at least 12 months service.
Forced to leave job due to the conduct of employer or others at work (Constructive Dismissal), have at least 12 months service.
Forced to leave job due to the conduct of employer or others at work (Constructive Dismissal), does not have at least 12 months service.

Dismissal or Resignation?

Fri, 22 Sep 2023 09:01:38 GMT

Did a dismissal occur?

Very often, the fact of dismissal can be in dispute. An employer may claim the employee resigned and the employee claim they were fired. How does the Workplace Relations Commission or Labour Court determine the fact of dismissal?

There can be no absolute rules about is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.

In the case of Connemara Marbles Ltd. v. Anne Marie Lally UDD2028, the Labour Court noted in a case where dismissal was in dispute, following an intense verbal argument between the parties;

“It goes without saying that, in such circumstances, it would have been better if both parties had paused and taken stock. The circumstances, in which neither was prepared to do so, led inevitably to a strong and angry exchange of words. It was in that state of anger that Ms. Keating dismissed the Complainant. She may or may not have said that the Complainant was ‘fired’. The dispute about that word is irrelevant. Ms. Keating accepted in evidence, to her credit, that a director telling an employee to leave and not to come back would be interpreted by most employees as having the meaning that they were being dismissed.”

By contrast, in Tom Maher v. Eugene Walsh UD683/1983, an employer had told an employee to ‘fxxk back to where you were’ and the worker had replied ‘fair enough, I’ll do that’. The Employment Appeals Tribunal concluded that just because an employer speaks sharply to an employee is not sufficient reason for the employee to walk away and assume that he has been dismissed.

The contrast between these cases highlights the absolute necessity to examine the detailed facts of every such case in order to form an opinion as to whether or not there was a dismissal as no two cases in such situations are identical.

In Coalquay Leisure Ltd. t/a Gold Rush Casino v Lavinia Untea UDD1730, the Labour Court concluded in that case that the complainant had resigned in temper when her employer refused to pay her for a shift that she had not worked.

In Parkboro Developments Ltd T/A Park Engineering v Mariusz Witkowski UD/18/135, the Labour Court reasoned that:

"A sharp exchange of words in a workplace does not usually provide a basis for the sundering of an employment relationship. Obviously, in certain instances it may do so but a relatively trivial disagreement of the sort described does not come anywhere near justifying dismissal in the instant case, in the view of the Court. Indeed, the only aspect of this exchange that elevates it above what might be termed normal run of the mill workplace disagreements is the fact that the Respondent failed to direct the Complainant back to his work and, instead, led him to believe that he was being dismissed."

What the above case-law shows is that there is no single way to determine if someone resigned or whether they were dismissed. The determination will depend on the facts of the case, the exchanges between the parties and the behaviour of the parties after those exchanges.

TUPE - Changes to Terms and Conditions of Employment

Mon, 18 Sep 2023 14:40:32 GMT

Introduction

Ordinarily, when one business acquires another, inheriting those employees, the employees can look forward to certain protections preventing the “new” employer from unilaterally changing their terms and conditions of employment. A recent decision of the Workplace Relations Commission (WRC) examined the extent to which a “new” employer could, potentially, change the working terms and conditions of the employees of the acquired business.

Paddy Dandy (the Complainant) took a case against Rentokil Initial Limited (the Respondent) (ADJ00032580) with a number of other employees, contending that the changes in his pay frequency constituted a breach of the employer’s obligation not to make unilateral changes to working routines or practices that had been previously enjoyed under the “old” employer.

In 2015, the Complainant transferred to the Respondent in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (Statutory Instrument 131 / 2003) (TUPE). When he worked with his previous employer, he was paid weekly. At some point after the transfer, the Respondent changed his pay frequency to fortnightly.

On 15 December 2020, the Complainant and his colleagues were informed that, in January 2021, the Respondent intended to change their pay frequency to monthly. This was confirmed in a letter dated 23 December 2020. The Complainant and his colleagues objected to this change and a second meeting took place on 07 January 2021. No agreement was reached on the issue and, on 26 February 2021, the Respondent wrote to the Complainant to confirm that he would be paid monthly with effect from 17 March 2021. Since that date, the Complainant has been paid on the 17th day of each month.

On 01 April 2021, the Complainant and nine other employees submitted a complaint to the WRC.

The Law

The Complainant transferred to the Respondent more than five years prior to the filing of the WRC complaint, and he claimed that the protection of Regulation 4 of TUPE applied to these changes in his conditions of employment. Regulation 4 relates to the transfer of contractual entitlements. Sub-sections (1) and (2) provide that terms and conditions that existed on the date of the transfer would continue to apply following the transfer:

The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee: and

Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of the termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

No argument was made that there was a collective agreement between the transferor and the Complainant or his union, and the Complainant therefore argued that there was a breach of Regulation 4(1), concerning the obligation of a transferee to continue to observe the terms and conditions existing on the date of a transfer.

In summary, the Complainant and his colleagues argued that they enjoyed a right to be paid in the same manner they were usually paid prior to the transfer.

Decision and Conclusion

The Adjudication Officer noted that, aside from the time limit set out at Section 41(6) of the Workplace Relations Act, Regulation 10(6) of TUPE provides that a complaint must be presented within six months of the alleged contravention to which it relates, or within 12 months “as the rights commissioner may consider reasonable.”

The Adjudication Officer noted the findings of the Employment Appeals Tribunal (EAT) in the decisions in Morawska and others v DAA, which were considered to be clear regarding the requirement to submit a complaint concerning terms and conditions existing on the date of a transfer, within six or 12 months of the date of the transfer.

The Adjudication Officer noted the decision of the Labour Court in December 2018 in C H Marine Limited and Ciarán O’Connor . Mr O’Connor transferred to CH Marine on 20 January 2017 and he submitted a complaint to the WRC on 27 October 2017 concerning a breach of TUPE. The Labour Court determined that his complaint was submitted outside the six-month time frame set out at Regulation 10(6) and he was not granted an extension to 12 months.

The intention of TUPE is that terms and conditions that apply to employees on the date of a transfer are protected and must transfer to the new employer. A timeframe of six months (or 12 months) is available within which a complaint can be submitted regarding terms or conditions which have been changed arising from the transfer. The complaint had been submitted for adjudication more than five years after the Complainant transferred to the Respondent in 2015. It is not a complaint that arose from the transfer but is a change required by the employer in the course of efforts to introduce efficiencies in their payroll system. The Adjudication Officer therefore found that the time limit for submitting this complaint under TUPE had expired.

Interestingly, the decision went on to note that TUPE were not intended to prevent a transferee from any contemplation of changes to their employees’ terms and conditions in the future, as this would have a stifling effect on an employer’s ability to introduce efficiencies. Following a transfer, the Adjudication Officer noted that the normal rules of engagement apply where an employer seeking to amend contractual terms and conditions must consult with their employees and seek to implement the change by agreement. This was an ongoing and dynamic process, and terms and conditions of employment are not “frozen” on the date of the transfer. As a change to the frequency of pay without agreement is a significant and disruptive matter for employees, this complaint requires to be considered under different legislation.

The takeaway for employers is that, if they have acquired a business, they are not free to do as they please with the employees’ terms and conditions but will need to make any changes in accordance with generally accepted processes, practices and procedures. For employees who may be dissatisfied with any of those proposed changes, TUPE may not necessarily be the grounding legislation with which to bring a complaint to the WRC and other remedies, including the Industrial Relations and Terms of Employment legislation may be more appropriate.

Social Media and Irish Employment Law

Fri, 04 Aug 2023 18:02:30 GMT

Introduction

The case of Irene Glynn v Carlow Dental Centre (ADJ-00043734) addresses the issue of hate speech, social media and gross misconduct.

Irene Glynn (the Employee), was alleged to have made controversial remarks from her own social media account, which were brought to the attention of Carlow Dental Centre (the Employer), who decided to dismiss her. She then brought a claim of unfair dismissal to the Workplace Relations Commission (WRC).

This case serves as an important reminder to employers to ensure they have a social media policy in place if they wish to address the private postings of employees, should such postings become problematic.

Background

On Friday 6 January 2023 the Employer received a message to its Facebook page from a member of the public which read: “Hello just so you know memebers [sic] of your staff have very extreme views when it comes to refugees coming into Ireland”. It included a screenshot of a comment made on a Facebook site called “Irish Supporters of Ukraine” which read: “Ireland is on its knees, Irish working people can’t afford heating or food yet refugees think it’s a free for all, stay fight for your country our grand parents fought against the English do the same”.

The Employee was dismissed without notice on 9 January 2023, after receiving a text message from a management member requesting her to remove a comment she had posted on a Facebook page. The Employee claimed she was on sick leave and that her partner, Mr. X, had her phone broken. She was due to return to work the following day, but received an email stating she had been dismissed for gross misconduct.

The Employer argued that a member of the public, not a client, was triggered to check the Employee's private Facebook page, leading to the Employee's employment information and business page. The Employer argued that the line between private and professional had been crossed and did not want to risk any negative associations with the Employer business.

The Employer claimed to be a multicultural employer and had zero tolerance towards hate speech, racial remarks, or anything that could cause incitement towards minority groups in Ireland.

On 9 January 2023, a meeting was held between the business owners and a decision was made to dismiss the employee on the grounds of "serious and gross misconduct."

The Employer deemed the employee's posting on the Irish Supporters of Ukraine Facebook page as 'hate speech' under s 2(1) of the Prohibition of Incitement to Hatred Act 1989.

The Law

The Unfair Dismissal Acts 1977-2015 (the Acts) defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Section 6(1) of the Acts provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (b) the conduct of the employee . . . .”

Section 6(6) of the Acts provides:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

In Glover v. B.L.N. Ltd. [1973] I.R. 388 it was held that “[i]t is impossible to define the misconduct which justifies immediate dismissal... There is no fixed rule of law defining the degree of misconduct which justify dismissal... What is or is not misconduct must be decided in each case without the assistance of a definition or a general rule.

Similarly, all that one can say about serious misconduct is that it is misconduct which the court regards as being grave and deliberate. And the standards to be applied in deciding the matter are those of men and not of angels” (per Kenny J at page 405).

In Frizelle v New Ross Credit Union [1997] IEHC 137, Flood J stated that in cases of misconduct “the actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee”.

In Governor and Company of Bank of Ireland v James Reilly [2015] IEHC 241, Noonan J held that if a company has a zero-tolerance approach to certain conduct “its employees were entitled to some notice of this policy shift” (at [55]).

The Adjudication Officer cited a number of Irish and UK cases which have considered the dismissal of an employee for posting on social media platforms contentious or offensive material relating to their employer, colleagues or customers, and also postings unrelated to the employee’s employment (for example: Emma Kiernan v A Wear Limited, UD643/2007; O'Mahony v PJF Insurance, [2012] 23 E.L.R. 86; Crisp v Apple Retail (UK) Ltd, ET/1500 258/11); Preece v JD Wetherspoons Plc, ET/2104806/10; Teggart v TeleTech UK Ltd, NIIT/704/11; Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch); Trasler v B&Q Ltd; ET/1200504/2012; Game Retail Ltd v Laws UKEAT/0188/14; and Weeks v Everything Everywhere Ltd ET/2503016/2012).

The Adjudication Officer noted the examples of Irish cases and particularly UK cases, which established an employer’s right to take disciplinary action even where the post is on a private social media account. In the UK case of Game Retail Ltd the Employment Tribunal pointed out that cases are fact-sensitive, and that the usual “range of reasonable responses” test applies.

The importance of implementing a social media policy and impressing upon employees the importance of adhering to its terms was stressed in O'Leary v Eagle Star [2003] E.L.R. 223 it was held that: “[i]f an employee is to be dismissed for breaking the rules he should know or have an opportunity to know what they are. In a plethora of documents dealing with abuse of IT systems there was not a single document clearly outlining the consequences of departing from approved procedures.”

In Hennessy v Read & Write Shop Ltd (UD 192/1978) the Employment Appeals Tribunal (EAT) described ‘the test of reasonableness’ and applied it to: (i) the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the employee and (ii) the employer’s conclusion following such enquiry that the employee should be dismissed. In Noritake (Ireland) Ltd v Kenna (UD88/1983) the EAT posed three questions: (i) did the company believe that the employee mis-conducted himself as alleged? If so, (ii) did the company have reasonable grounds to sustain that belief? If so (iii) was the penalty of dismissal proportionate to the alleged misconduct?

In Pacelli v Irish Distillers Ltd (UD571/2001) the EAT held that “[i]t is a prerequisite to any dismissal to conduct an investigation and such an investigation should have regard to all the facts, issues and circumstances surrounding a case warranting serious chastisement or reprimand, such as dismissal.”

In White v Cadbury (Ireland) Ltd (UD 44/79) a decision was taken to dismiss without an investigation. The EAT held: “[t]he denial to the appellant of the opportunity to make or present his counter arguments prior to . . . [the] decision to dismiss him was, in our opinion, a breach of his fundamental right to be confronted with the evidence against him and to make counter-arguments, explanations, pleas etc as may be relevant. We are accordingly of the opinion that the denial of this fundamental right to the appellant had the inevitable result of rendering this dismissal an unfair dismissal . . . .”

In Dunne v Harrington (UD166/1979) the EAT stipulated that an employer may investigate either: “(a) personally in a fair and reasonable manner i.e. as fully as is reasonably possible, confronting the ‘suspected’ employee with ‘evidence’, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce ‘counter evidence’; or (b) he may rely on the reports of others”. However if the employer does the latter “. . . without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting ‘evidence’, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice viz that the other party (ie the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.”

In Gearon v Dunnes Stores Ltd (UD 367/88) the EAT held: “[t]he right to defend herself and have her arguments and submissions listened to and evaluated by the employer in relation to the threat to her employment is a right of the claimant and is not the gift of the employer or this Tribunal . . . the right is a fundamental one under natural and constitutional justice, it is not open to this Tribunal to forgive its breach”.

In The State (Gleeson) v. Minister for Defence and Attorney General [1976] I.R. 280, it was held that “it would be an affront to justice if the law held that a decision with such drastic consequences for the man involved . . . could be made behind his back”.

Having had no opportunity to defend her actions, before being terminated, the Adjudication Officer decided that the Employee was unfairly dismissed, and that the Employer should pay to the employee compensation of €8,552.31.

Conclusion

The key criterion in cases involving the social media and employment law cases, is whether the individual had a ‘reasonable expectation of privacy’ when engaging in the relevant activity. If there is a reasonable expectation of privacy because, for instance, the employer has reassured the employee that they can use their social media for private purposes, but then disciplining them for their social media usage, would violate the employee’s reasonable expectation of privacy, and hence their right to private life. If an employer has concerns as to the reputational consequences of employee social media use, it is important that the employer have a comprehensive social media policy in place, that addresses what disciplinary action could be taken, in the event of a breach.

This is an evolving space. Things are constantly changing, and employers need to be alive to that.

Compensation for GDPR Breach - Non-Material Damage

Sat, 15 Jul 2023 14:31:10 GMT

Compensation in Cases of GDPR Breaches - Introduction

This article will examine the issue of compensation in cases of data rights breaches, following the recent judgement of Circuit Court Judge John O’Connor ([2023] IECC 5). This case is of significance as it was the first to fully address the award of compensation, in Ireland, under national and European data protection and privacy laws.

The primary data protection law in Ireland is the Data Protection Act 2018 (the 2018 Act), which was enacted to align with the European Union's General Data Protection Regulation (GDPR). The GDPR is a comprehensive regulation that governs data protection and privacy across the European Union member states.

Section 177 of the 2018 Act and Article 82(1) of the GDPR stipulate that when an individual suffers material or non-material damages as a result of a violation of their data protection rights, they are permitted to seek compensation from the controller of the data for the injury that they have suffered.

Background to the Case

The plaintiff in this case was Arkadiusz Kaminski (the Plaintiff) and the defendant was Ballymaguire Foods Limited (the Defendant).

Ballymaguire Foods Limited is a huge company. Just last month it entered into a new five-year deal worth €70 million with Musgraves. However, they are no stranger to the courts. In December 2020, the Workplace Relations Commission ordered that an employee of the company be paid €8000 in compensation after his line manager called him “a lazy, fat, blind, old, drunken communist”.

The Plaintiff in the present case had been employed by the Defendant since 2005. By 2019, the Plaintiff was an Acting Supervisor of 20 employees.

In March 2019, a meeting was held between the Quality Control Manager and several other managers and supervisors. According to the Defendant, the purpose of this meeting was to address issues to do with poor food safety practices and to identify what actions could be taken to remedy these issues.

During this meeting, CCTV footage, showing poor food quality and safety practices, was shown to employees. One of these clips showed the Plaintiff and was used by the Defendant to demonstrate the issues with persons moving directly from the low care area of the factory, where unprepared food is maintained, to the high care area where prepared food is dealt with. While the Plaintiff was not named during this demonstration, it was acknowledged by both parties, that the Plaintiff could be identified from this footage.

It is worth noting that after the meeting, the CCTV footage was stored on a communal work computer, which was not password protected.

At trial, the Plaintiff’s counsel stated, “I put it to you: this was a black mark against my client: This was a black mark showing him being held up as somebody engaged in a serious food safety issue”.

The Plaintiff gave evidence noting the impact that this issue had had on him. He stated “In my opinion I was laughed at. I was more stressed because of it. I wasn’t so glad to go to work every morning. I felt humiliated and I felt I was being mocked. I had problems with my sleep”.

The Complainant had lodged a complaint with the Data Protection Commissioner. However, due to a severe backlog of complaints, the complaint was not given to a complaint handler. Eventually, the Plaintiff decided that he could not wait any longer and brought the matter before the Circuit Court.

What were the legal issues or questions to be addressed in this case?

Helpfully, Judge John O’Connor set out the key questions which needed to be addressed by the court. These were as follows:

Whether the Defendant’s use of the CCTV footage, in a demonstration of work practices, was a breach of the Plaintiff’s personal data such as to constitute unlawful processing under the Data Protection Act 2018 and the GDPR.
If the answer to question (1) was yes, then the question became whether or not the damage caused by the infringement on the Plaintiff’s personal data, was more than just a mere upset or displeasure.
Finally, if the answer to question (2) was yes, then the question to be considered was what (if any) compensation could be given for such damages and how it should be calculated.

The Law on GDPR Compensation

One of the key issues that Judge John O’Connor highlighted was that it is a “core principal” of both GDPR and the 2018 Act that individuals have clarity in relation to data protection policies.

In the present case, the policies were not in fact clear. The Plaintiff was Polish and yet the four policies on the matter were provided to him in English. Out of these four policies, only one mentioned the use of CCTV for training purposes.

Judge John O’Connor also noted the cases of Cormac Doolin v The Data Protection Commissioner and Our Lady’s Hospice and Care Services [2020] IEHC 90; 2022 IECA 117 and McVann v Data Protection Commissioner [2023] IECC 3. Both of these cases make it very clear that employers have an obligation to ensure that their employee privacy notices, and CCTV policies are obvious to employees.

The judge also highlighted that the Plaintiff’s implied consent to the use of his data for training purposes was “at best unclear”. The judge went on to note that consent is not the only basis by which the collecting of data is lawful. Article 6 of the GDPR clearly sets out other legal basis upon which data can be collected. However, the Defendant in this case did not initially plead a legal basis for the processing of the data. Eventually, the Defendant tried to claim that they had been operating on foot of a legitimate interest.

However, the Defendant failed in this argument. Judge John O’Connor placed significant emphasis on the fact that a legitimate interest assessment had not been carried out to identify what the legitimate interest was or to show if the processing was necessary to achieve it. Furthermore, even if a legitimate interest was present, it had not been “considered against the Plaintiff’s interests, rights and freedoms”.

On this basis the judge was satisfied that the Plaintiff’s rights under the GDPR had been violated, that he had suffered nonmaterial damage as a result of that violation and there was a causal link between the damage and the infringement.

Therefore, the matter turned to what damages should be awarded.

Non-Material Damages and GDPR Compensation

Non-material loss basically means a non-economic loss. In the context of data protection, non-material loss would refer to the pain and suffering, or inconvenience and anxiety, which is caused by a breach of your data protection rights.

At the time that it was enacted, one of the most controversial aspects of the GDPR was the fact that it contained the term ‘nonmaterial damage’ in Article 82(1). It has been said to be one of the most debated issues in the construction of EU data protection laws.

In a recent decision from the CJEU, UI Österreichische Post Case C-300/21, the issue was examined in detail.

In this case the CJEU ruled that the GDPR has to be construed as meaning that a mere violation of the provisions of the GDPR is not in and of itself enough to result in a right to compensation. Essentially, what this means, is that there is no automatic right to compensation once an infringement is proven.

The CJEU also concluded that the GDPR has to be interpreted as prohibiting a national rule which makes compensation for non-material damage subject to the condition that the damage suffered has reached a certain degree of seriousness. This is referred to in legal circles as being a ‘de minimis threshold’.

Finally, the CJEU held that the amount of damages payable under the right to compensation is to be determined by the national court applying the domestic rules of each member state, provided that the principles of equivalence and effectiveness of EU law are complied with.

Judge John O’Connor then went on to examine Irish case law on the matter. He referred to the decision of Collins v FBD Insurance plc [2013] IEHC 137 where it was held that there is no right to compensation for non-material damage. However, it is important to note that this case is of limited value in this context as it predates the enactment of the GDPR.

Having examined the case law, Judge John O’Connor outlined some of the relevant factors which are important in determining damages for non-material loss. He was eager to note that he was suggesting these factors “with some caution in the absence of clarification from the Oireachtas, the Superior Courts and the outstanding preliminary references pending before the CJEU”. These factors were as follows:

A “mere breach” or mere violation of the GDPR is not sufficient to warrant an award of compensation.
No minimum threshold of seriousness is required for a claim for non-material damage. However, compensation for non-material damage does not cover “mere upset”.
There must be a link between the infringement and the damages claimed.
If the damage is non-material, it must be genuine, not speculative.
Damages must be proved. Supporting evidence is strongly desirable.
Data protection policies should be clear and transparent, and accessible by all parties affected.
Employers should ensure privacy notices and CCTV policies are clear to employees.
Where a personal data breach occurs, it may be necessary to ascertain what steps the relevant parties took to minimise the risk of harm from the breach.
An apology, where appropriate, may be considered in the mitigation of damages. Delay in dealing with a data breach by either party is a relevant factor in assessing damages. A claim for legal costs may be affected by these factors.
Even where non-material damage can be proved and is not trivial, damages will probably be modest.

In consideration of these factors, a total of €2000 was awarded to the Plaintiff in this case.

Conclusion

The key significance of this decision is that while compensation for non-material loss can be given, damages awarded in these types of cases will generally be quite low. This is consistent with the newly enacted Courts and Civil Law (Miscellaneous Provisions) Act 2023 which gives the District Court jurisdiction to hear data protection claims. The fact that these claims can now be heard in the District Court will make it much easier for ordinary individuals to bring cases when their rights have been violated as the costs involved will be much lower.

Workplace Relations Commission Adjudication Procedures

Fri, 07 Jul 2023 12:31:37 GMT

Background to WRC Hearings

The Workplace Relations Commission (WRC) has established procedures for examining and investigating employment and equality complaints and disputes. These procedures take into account the Workplace Relations (Miscellaneous Provisions) Act 2021 and the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020. The WRC reserves the right to vary these procedures generally and in the circumstances of individual cases.

Raising a Complaint to the WRC

Complaints can be made or referred to the WRC when there is a breach of employment and/or equality legislation or an individual grievance under industrial relations. The Complaint Form should be filled out accurately, including the employer/respondent's name and address. The complainant must keep the WRC informed of their current email, physical address, and contact details.

Pre-complaint steps include notifying the respondent in advance of lodging the complaint form, completing preliminary steps, and submitting the information as part of the complaint. Time limits for referring a case to the WRC include six months for alleged contravention of legislation, with equivalent time limits under the Unfair Dismissals Act, Employment Equality Act, and the ESA. If a complaint is not referred within the time limit, an extension may be granted by an Adjudication Officer up to a maximum of 12 months. If a complainant seeks an extension, they must provide detailed reasoning and supporting documents. The WRC encourages parties to consent to the service of documents by electronic means, as it allows the WRC to work more efficiently.

Complaints or disputes may be dismissed if they are frivolous, misconceived, or vexatious. If a complaint is dismissed under the relevant provisions of the WRA 2015 and/or the EEA 1998, the complainant may appeal to the Labour Court. If a complaint is struck out under section 22 of the ESA 2000, the appeal lies to the Circuit Court.

Mediation at the WRC

Mediation is an alternative dispute resolution option, and parties are encouraged to engage in it. If one or both parties are unwilling to engage in early resolution or mediation, the complaint will be referred to an Adjudication Officer for hearing. The WRC Mediation Service determines suitable mediation methods.

Exchange of documents before WRC Hearings

Parties can consent to the service of documents by emailing pru@workplacerelations.ie quoting the CA and/or ADJ reference assigned to their case and giving their consent. When a case is referred to the WRC, all material received from one party will be copied to the other, so that both parties are fully aware of all the material received. Complaints and disputes are initially processed by the WRC offices in Carlow and sent forward to adjudication, mediation, or inspection, as appropriate. Where sent forward to adjudication, they are formally delegated by the Director General to an independent Adjudication Officer for hearing. If both parties consent, a case may be decided on the basis of written submissions only without a hearing being required.

Both sides must submit all documentation and documents no later than 15 working days in advance of a hearing. Documentary evidence, such as letters, emails, and evidence from meetings, contracts, or employee handbooks, is also required. Parties must provide a written statement of their case, including a chronology of events, a concise account of what happened, and relevant case law or piece of law. The case statement ensures that the adjudication hearing focuses on the issues relevant to the complaint or dispute at hand. The Workplace Relations Commission (WRC) has updated its procedures for hearings and investigations in the workplace.

WRC Hearing Dates

Remote hearings are allowed for all WRC cases, unless a party can demonstrate that holding a remote hearing would not be in the interests of justice or breach fair procedures. The WRC will contact parties with a time and date for the adjudication hearing and reasonable notice will be given. If a party wishes to raise an objection to their case, they must apply under the WRC's policy within 5 working days of the hearing notification letter on consent. If a party has special requirements, they should give as much notice as possible to be facilitated.

WRC Hearing Postponements

The WRC's postponement procedure consists of two distinct processes: Process 1 and Process 2. Process 1 concerns requests on consent made early, which meet certain criteria and are granted as matter of course. Process 2 concerns requests where there are "exceptional circumstances and substantial reasons." Parties are requested to consult the guidelines before making an application for postponement.

WRC Hearings - Private or Public?

All WRC hearings involving the administration of justice will be conducted in public unless the relevant Adjudication Officer decides that the proceedings should be conducted in private due to'special circumstances'. The Adjudication Officer will decide based on the facts of the case in accordance with the law and fair procedure. If the hearing is to proceed in public, members of the public may be admitted into the hearing. WRC case lists are published weekly to facilitate applications by parties at the hearing.

WRC Hearing Process

The responsibility of parties and their representatives is to ensure all relevant information has been sent to the WRC prior to the hearing and all witnesses are available on the day of the hearing. The Adjudication Officer can ask questions of each party and witnesses attending, and they will give each party the opportunity to give evidence, call witnesses, question the other party and witnesses, respond, and address legal points. Witnesses are allowed to attend hearings, but the decision depends on the circumstances and capacity of the hearing room. The Adjudication Officer will decide on appropriate procedures, fair procedures, and arrangements to support the effective and accurate giving of evidence. The Adjudication Officer may take evidence on oath or affirmation, explaining that swearing an oath or making an affirmation is a criminal offense punishable by imprisonment and/or fine.

Parties and witnesses should be prepared to refer to their own holy book if they wish to swear an oath. If they require assistance, they should email pru@workplacerelations.ie 10 days in advance.

Parties should treat each other, the Adjudication Officer, and WRC staff members with respect. If a party's behavior impacts the conduct of the case, the Adjudication Officer may terminate proceedings.

WRC Decisions

If a party is unhappy with a decision, they have a right of appeal. Harassment or defamation of Adjudication Officers or staff will not be tolerated.

Adjudication Officers can draw adverse inferences in certain circumstances, and the decision will be prepared and uploaded to the WRC website. Parties may appeal the decision in writing to the Labour Court within 42 days of the date of the decision, or the decision is legally binding and may be enforced through the District Court.

Suspension and Injunctions - The Case of Enoch Burke

Thu, 01 Jun 2023 12:17:24 GMT

Introduction

In this article, we review a recent decision of the High Court in the case of The Board of Management of Wilson's Hospital School -v- Burke ([2023] IECA 133). The decision is an interesting one as it addresses the topics of suspension, due process, fair procedure and the right of an employee to protest a decision, as well as the steps an employer can take to prevent any disruption by that employee.

Background

Wilson’s Hospital School is a co-educational boarding and day school in County Westmeath, Ireland. The Board of Management of the School sought a declaration that a decision on 22 August 2022 to put Enoch Burke, a teacher in the school, on paid administrative leave was lawful. The Board also sought an injunction restraining Enoch Burke from trespassing on school premises and damages for trespass. Enoch Burke attended the school in defiance of the Board's decision to suspend him. Enoch Burke was dismissed from his employment by the Board of Teaching Faculties on 19 January 2023 with effect from 21 April 2023.

He had availed of a right to appeal this decision. Suspension by a board of teaching faculties on full pay pending resolution of disciplinary proceedings was an interim measure. The Court expressed a provisional view that he was not entitled to trespass on school premises. The school principal and Board acted in accordance with their obligations under Enoch Burke's employment contract, and he had no right to enter the school premises. On the first day of trial, Enoch Burke was disorderly and in contempt of court.

His counterclaim was dismissed, and the primary issue presented for determination was whether the Board validly suspended Enoch Burke as a teacher at Wilson’s Hospital School on 22 August 2022. A second issue that arose was whether the Board was entitled to a permanent injunction restraining Enoch Burke from entering school premises. Enoch Burke's entry into school premises was trespassing, and the Board was entitled to the assistance of the law to enforce its right to exclude him. Evidence presented to the Court demonstrated that mutual trust and confidence between the Board and Enoch Burke had broken down due to his actions. Employees who have been dismissed, suspended or "locked out" by an employer are not entitled to "sit-in".

Breach of Contract

A judicial or quasi-judicial finding that an employee has been unfairly or wrongly dismissed, or suspended in breach of contract cannot, of itself, confer entitlement to re-enter the former workplace. The Industrial Relations Act 1990 does not give employees who have been suspended, locked out or dismissed a right to enter their workplace. This is because a contract of employment is not capable of being performed when an employer refuses to provide work for an employee. Courts will not force an unwilling employer to allow that employee to enter or remain on premises as part of a demand to continue to work there. Enoch Burke's right to enter the school premises was ancillary to his employment duties, and the Board had sufficient possession of the school premises and facilities to maintain an action for trespass.

Injunction to Restrain

The Board was entitled to damages for trespass and an injunction to restrain Enoch Burke from disrupting its possession of school property. This Court was assessing damages for trespass at €15,000. The Board was also entitled to a declaration that the decision on 22 August 2022 to put Enoch Burke on paid administrative leave was lawful. Procedures dealing with the suspension and dismissal of teachers are set out in Appendix 1 to Department of Education and Skills Circular 0049/2018. Failure by a principal or a board of management or disciplinary appeal panel to adhere to procedures laid down by or to be implied from the terms of the Circular may result in an irregular decision to suspend or dismiss or a finding that damages for breach of contract should be awarded.

The Circular set out the powers and functions of school principals, boards of management and appellate bodies in the contractual disciplinary process. It stated that a teacher may be placed on administrative leave with full pay pending an investigation, or pending the outcome of an investigation, a disciplinary hearing/meeting or the outcome of a disciplinary hearing/meeting. The school principal will engage in an informal process with a teacher to resolve matters prior to invoking any formal disciplinary steps. The board of management must consider the matter and seek the views of the teacher in writing on the report prepared by the principal. The most important details in this text are that the teacher should be given at least ten school days' written notice of a meeting and given an opportunity to respond.

If further disciplinary action is warranted, the board of management may avail of any of the following options: deferral of an increment, withdrawal of an increment or increments, demotion, other disciplinary action short of suspension or dismissal, suspension (for a limited period and/or for a specific purpose) with pay, suspension (for a limited period and/or for a specific purpose) without pay, or dismissal. The Circular contains a number of paragraphs under a heading “Gross Misconduct” which state that any or each of stages 1 to 3 of the disciplinary procedure may not apply, depending on the gravity of the alleged offence. Gross misconduct is a serious concern for the health and safety of students and/or staff of a school. If there is an allegation of serious misconduct, a teacher may be suspended on full pay pending an investigation and the conclusion of any appeal process. Suspension with pay may be imposed because it is appropriate that an employee does not work while an investigation or disciplinary process is taking place.

Decision to Suspend

The decision to suspend a teacher during an investigatory stage of disciplinary proceedings can be subject to judicial oversight. An allegation of serious misconduct may come from a parent, member of the Garda Sochána, or pupil. A board may consider whether suspension should be imposed before an investigation has commenced or before a detailed report has been received. A decision to suspend may be reviewed if there is a material change of circumstances. If a teacher requests a hearing or is given an opportunity to make submissions, a board must consider any such request or submissions.

A board must take a view on whether suspension is appropriate and for a valid reason. The disciplinary issue must be sufficiently serious to amount to gross misconduct, and the nature and seriousness of allegations must be taken into account. Enoch Burke objected to the proposed change of name and mode of reference to this pupil, complaining that it was an abuse of children and their constitutional rights. Niamh McShane responded with a request to make an appointment to see her if he was not willing to include this pupil in his classroom. Niamh McShane and John Galligan met with Enoch Burke to discuss his personal beliefs, the needs of the student, and the inclusive ethos of the school.

Religious Beliefs

Burke voiced opposition to transgenderism and stated that this was against his religious beliefs. Niamh McShane wrote to Burke by email on 27 May 2022, advising him that the welfare of students in the school was paramount and that the right of persons to be called by a name of their choosing in accordance with their preferred gender was a recognised right. Burke responded later that day with an email. Enoch Burke was suspended by the Board of Trustees after he interrupted a religious service in the school chapel on 21 June 2022. He asserted that the school principal had made a "demand" that staff accept what he termed "transgenderism" and that it was against his beliefs and the teaching of all Christian churches.

The Church of Ireland Bishop of Kilmore officiated the service, but Burke interrupted it and pupils who were due to make the presentation to the retired housemaster walked out of the chapel in protest. The presentation had to be rearranged on the school steps. Enoch Burke interrupted the school principal while she was socialising with guests on two occasions. The school principal reflected on the events and decided to invoke Stage 4 of the disciplinary process. This decision was made in good faith and was rational.

Gross Misconduct

It was consistent with the contractual purpose of provisions of the Circular which set out what could constitute gross misconduct by a teacher. The principal's report contained nothing which could invalidate any subsequent action by the Board. The school principal expressed her view that Enoch Burke's behaviour at the staff meeting and his public challenge to a reasonable instruction to staff may amount to gross misconduct. Niamh McShane handed a copy of her report to the chairman of the Board on 15 August 2022 and forwarded a copy to Enoch Burke. The Board decided to arrange a disciplinary hearing on 14 September 2022 and to place Enoch Burke on administrative leave until the hearing.

The Board had a duty to consider whether to suspend Enoch Burke pending conclusion of the process. The Board submitted that it had no obligation to give Enoch Burke a right to make representations prior to suspending him. The issue of whether the terms of the Circular envisage that a board of management can validly treat any actions by a teacher as capable of amounting to “gross misconduct” is an issue of construction of the employment contract. The Board acted properly in making its decisions on 15 August 2022 and the attendance of the school principal at the meeting did not affect the validity of these decisions. If the school principal had been a Board member, she would have been entitled to participate in proceedings relating to decisions at the meeting on 15 August 2022 affecting Enoch Burke.

Conclusion

The most important details in this text are that attendance by a school principal at a meeting which decides on a preliminary step of arranging another meeting to consider suspending a teacher should not be regarded as a contravention of the rule of natural justice which prohibits the presenter of the case against that teacher from involvement in disciplinary decision-making. Additionally, participants in these decision-making processes have a duty to cooperate with decision-makers and must present their cases without engaging in disruptive tactics. Finally, participants must respect and adhere to procedural rulings of those who preside. Enoch Burke was invited to make his case on why he should or should not be suspended, but instead refused to address the purpose of the hearing. He was aware of the serious concern about his future conduct and attempted to side-track the process into a discussion on the validity of the disciplinary process.

The Board was entitled to require that he confine himself to making submissions on why it would be inappropriate to suspend him, and he did not address the issue of why he should not be suspended. The employment contract does not envisage that the Court may usurp the power of the Board to make rational and justifiable decisions on procedural matters. The Board provided Enoch Burke with a reasonable opportunity to state his case, but he chose not to take advantage of it. The Board arrived at a consensus decision that Enoch Burke should be suspended due to concern that if he were permitted to teach, he would engage in a repeat of his behaviour. There was no evidence that any relevant matter was not duly considered or that any irrelevant matter was considered by the Board in arriving at this decision.

Sexual Harassment Claims before the WRC

Mon, 15 May 2023 11:38:41 GMT

Introduction to Sexual Harassment Law in Ireland

The Employment Equality Acts 1998 – 2015 make it abundantly clear that the harassment or sexual harassment of any employee is against the law.

In 2012, the Department of Justice, Equality and Law Reform published an updated Code of Practice on Sexual Harassment and Harassment. According to the Irish Human Rights and Equality Commission, the Code “seeks to promote the development and implementation of policies and procedures which establish working environments free of sexual harassment and harassment and in which the dignity of everyone is respected”.

Research conducted by the Dublin Rape Crisis Centre has revealed some alarming statistics in this area. Out of 940 people surveyed, 712 of them stated that they have experienced sexual harassment. Out of these 712, 421 or 59%, stated that sexual harassment had occurred in their place of work. Most said that this harassment had occurred at work-related events, meetings or conferences.

What is perhaps the most shocking is that only a mere 16.5% of victims decided to report what had happened to them.

When we think of sexual harassment, often we think of women. However, it is important to realise that men can be victims too. Statistics from the USA show that almost one in every five complaints made to the Equal Employment Opportunity Commission about sexual harassment in the workplace, come from men. Furthermore, the number of males who are reporting experiencing sexual harassment in the workplace is increasing year on year.

Sexual Harassment Law in Northern Ireland

There have been some very recent decisions in this area in Northern Ireland which are worth noting.

The first of these is an anonymised decision which the Chief Commissioner of the Equality Commissioner for Northern Ireland described as being a “shocking story” which highlighted “a toxic laddish culture that shows scant respect for female colleagues”. The Commission also stated that they had chosen to highlight this case because “it shows yet again how some employers are still failing to protect women from serious sexual harassment in their workplaces and failing to properly investigate complaints”.

This case arose because the woman in question had been in a meeting at work when a senior male manager told her to stand up and turn around. He then slapped her on the bottom with a ruler and told another male colleague “I’m sorry I had to”.

The woman submitted a formal grievance, which her employer chose not to acknowledge for 10 days. After some time, the employer did carry out an investigation.

The woman’s grievance was upheld. However, the letter containing this outcome was very critical of the woman. In it, she was accused of both acting and dressing in a very provocative manner. The complainant resigned.

The woman settled the case for £90,000.

Sexual Harassment and the Workplace Relations Commission (WRC)

Charlotte O’Brien v Deadline Direct Limited t/a Deadline Couriers (ADJ-00036160)

As recently as 20 April 2023, the WRC handed down a significant decision on sexual harassment in the workplace.

This case arose because while at work, a male colleague came up behind the complainant and tried to pull her trousers down. At the time, the complainant’s hands were full so she could not defend herself. The room was full of other male colleagues. None of these men made any attempt to assist the complainant or pull the perpetrator up on what he had done. To make matters worse, the perpetrator then proceeded to joke about and mimic what he had just done to other female workers. The complainant also gave evidence under oath that the man in question had been making comments about her weight and appearance for many months.

What is interesting about this case is how little the respondent did in response to the complainant’s complaint. As soon as the complainant left the room after the incident in question, she went and reported it to her day manager. This manager did nothing other than to tell her that he would report the incident to the CEO. The complainant was expected to return to her normal duties and continue to work alongside the perpetrator.

Furthermore, the complainant was not provided with copies of any of the company’s policies relating to discrimination, harassment or sexual harassment at work.

Even though the complainant had reported the incident on 27 May 2021, she was not interviewed about what had happened until 02 July 2021.

As a result of what had happened, the complainant was certified as unfit to work by her GP. The respondent paid her for the first few weeks but then stopped without notifying her. The respondent put significant pressure on the complainant to return to work although she was clearly not fit to do so.

As of the date that this case was heard, the respondent had failed to provide the complainant with any findings from the investigation. The complainant told the WRC that “the respondent had done nothing to address the culture in the workplace that allowed the harassment to occur and to be tolerated in the way that it was”.

The Adjudication Officer found that “the respondent has failed to rebut the prima facie case of discrimination established by the complainant given the failure to implement any protective or preventative measures before the sexual harassment and the wholly inadequate measures taken after the incident”. He continued to state that a proper investigation report could have £reversed some of the effects of the discriminatory treatment”.

In his decision, the Adjudication Officer referred to A Store v A Worker (EDA 0915). In discussing this case she stated that “even if an employer has a sexual harassment policy in place, it is incumbent on them to ensure that it properly understood by managers responsible for its implementation, which was not done in this case”.

In discussing redress, the Adjudication Officer noted the case of Von Colson and Kamann (ECR 1891) where it was made very clear that awards need to be “effective, proportionate and dissuasive”.

In an unusual move, the Adjudication Officer order that the respondent pay the complainant the maximum permissible award of two years salary which in this case amounted to €50,440.

We would argue that awarding this maximum compensation amount to the WRC sending a very powerful and important message that sexual harassment will not be tolerated in Irish workplaces.

Nadine Harty v Causeway Hospitality Ltd Greenway Manor Hotel (ADJ-00036502)

This is another recent case, involving sexual harassment, worth noting.

In this case, the complainant was subjected to persistent sexual harassment by a male colleague. This involved him grabbing her wrists, stroking her harm, grabbing her around the waist and on one occasion biting her on her shoulder. The man in question also whispered in her ear, blew on her neck and made extremely grotesque and inappropriate comments about underage girls.

Despite the complainant making numerous complaints about this, the Adjudication Offer stated that “they were not addressed in a substantial manner or at all, resulting in the complainant having to resign her employment”. They also noted that “I am satisfied that the respondent failed to put appropriate measures in place to stop this harassment and sexual harassment from occurring or to reverse its effects in that particular circumstance”.

The complainant was awarded €20,000 in compensation.

Sexual Harassment Cases and Settlement Agreements

If you settle your employment law case, it goes without saying that the settlement agreement will contain a non-disclosure clause. This is considered to be general practice, and neither side is likely to contest it. If they did, the settlement agreement would just fall through.

However, in recent years, there has been a debate about whether the use of non-disclosure agreements in sexual harassment cases is ethical.

In 2018, Theresa May described such agreements as being “unethical”. She went on to say, “it seems that our laws allow rich and powerful men to pretty much do whatever they want as long as they can pay to keep it quiet”.

The late Richard Grogan expressed similar sentiments about Irish employment law. He stated that “some organisations have been good at buying off claims, then leaving the person in situ because they were a senior executive”. He suggested that Irish law should be changed to allow for a non-disclosure of the settlement payment but not the subject matter in sexual harassment cases. However, as a practice we have also counselled sexual harassment victims who were concerned about the public nature of WRC proceedings. Our Principal Solicitor, Barry Crushell, was quoted in an Irish Governmental Report entitled ‘The Prevalence and Use of Non-Disclosure Agreements in discrimination and sexual harassment disputes’:

“NDAs were identified as a means by which signatories could prevent other employers from knowing that they had made a complaint and thereby avoid being labelled a ‘troublemaker’ and therefore blacklisted within their sector.”

The report was produced by the Research and Evaluation Unit in the Department of Children, Equality, Disability, Integration and Youth (DECDIY), in response to growing public awareness of the potentially unethical use of NDAs, and within the context of a review of Ireland’s Equality Acts. The report correctly identified that complainants were often junior staff or students, while alleged perpetrator are often more senior staff or other figures of authority. The status of an institution is ‘built around the reputation of its most important members’, therefore if a complaint of sexual harassment or discrimination is made against an individual whose reputation is ‘entangled’ with that of the institution, the institution may prioritise the preservation of the accused’s reputation in an effort to shield the organisation as a whole.

Takeaways For Employers and Employees

A study from Sweden has highlighted that often it is the victim, and not the perpetrator, who will suffer the career effects of making a complaint about sexual harassment. The study showed that it is very likely that when a woman reports sexual harassment in the workplace, she will then switch to a new workplace, which has more female colleagues, and where the pay is generally lower.

Employees

Employees should never be afraid to speak up if they have experienced sexual harassment in the workplace. They should take some comfort in the fact that even if their employer doesn’t help them, the WRC have shown that they will come down very hard on employers who do not deal properly with such a complaint.

Employees should note that it is of the upmost importance that they follow the company’s internal grievance procedures. This will benefit you greatly if you go on to bring a case to the WRC.

Employers

Employers should have an open-door policy and take every complaint of sexual harassment seriously. It is vital that such complaints are adequately investigated and there are proper consequences in place for inappropriate behaviour.

Preliminary Issues Before the Workplace Relations Commission

Thu, 11 May 2023 06:10:24 GMT

Introduction

When an individual files a complaint before the Workplace Relations Commission (WRC), they are required to ensure that the complaint conforms with certain procedural requirements. Ordinarily, the WRC expects that the correct respondent employer is named, the employee has cited the applicable legislation and that the complaint is filed in time.

For various reasons, an employee is required to ordinarily file a complaint within six months of the infringement arising. That time limit can be extended by a further six months, to twelve months, if exceptional circumstances arise.

However, even where preliminary issues, such as the late filing of a complaint are cited, very often, the substantive cases are heard, resulting in an Adjudication Officer inviting submissions, hearing witness statements, and drafting a detailed decision. This can be a time consuming and costly endeavour.

In the recent case of Kevin Stapleton -v- Acushla Limited (ADJ00037399), the respondent employer argued that the filing of the complaint was out of time and therefore the Adjudication Officer did not have the jurisdiction to hear the claim. They cited Section 41(8) of the Workplace Relations Act, 2015 which sets out that an Adjudication Officer can only entertain a complaint if submitted within six months or within twelve months where a reasonable cause has been afforded.

The established case law places an onus on the complainant to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. However, in many cases, that reason is afforded, and the case is heard. The respondent, in this instance, sought that the Adjudication Officer decide on the preliminary issue first before hearing the substantive case.

There is a body of case law which suggests an Adjudication Officer is precluded by law from holding a substantive hearing until a decision on the preliminary matter is in fact reached.

Case Law on Preliminary Issues before the WRC

In Mary Sheehy v Most Reverend James Moriarty UD1264/2008 the Tribunal held that ‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing’’ where ‘’the claims were not instituted within the time periods set out in the legislation’’.

Equally, in the case of Guerin v SR Technics Ireland Limited UD969/2009, the Employment Appeals Tribunal was asked to make a decision on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

In the case of Bus Eireann v SIPTU PTD8/2004 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’.

Equally in the case of Donal Gillespie and Donegal Meat Processors UD/20/135 the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be dealt with together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. In determining the issue of jurisdiction, the Court must confine itself to the nature of the termination without enquiring into the fairness or otherwise of the decision itself, having regard to submissions made on the preliminary issue by both parties, the documents referred to therein and the relevant statutory provisions. Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

Also, in Eddie Lyons and Servecentric Ltd UD/22/52 the Court found that “the within claim was out of time when it was presented to the WRC on 11 May 2021 and is accordingly statute barred the court determines that it has no jurisdiction to hear the substantive matter”.

Accordingly, the respondent asked that the Adjudication Officer make a determination on the issue of jurisdiction having regard to submissions made on the preliminary issue by both parties before proceeding further.

Conclusion of the Adjudication Officer

Having reviewed the circumstances as to why the complaint was filed outside of the applicable time limits, the Adjudication Officer determined that, having been provided with no reasonable explanation, she did not have the jurisdiction to investigate the complaint as it was out of time.

This decision should be welcome by all parties, both employers and employees, to WRC proceedings. WRC proceedings can be quite time consuming as well as financially draining on parties who have availed of legal representation. By affording the parties early confirmation on the preliminary issues, an Adjudication Officer can avoid an excessive amount of time being spent addressing a complaint which would be bound to fail on a technical reason, in any event.

Judicial Independence and Objective Bias

Wed, 22 Feb 2023 16:43:43 GMT

The Supreme Court has emphasised the significance of the Bangalore Principles of Judicial Conduct in assessing a claim of objective bias against a judge.

In O'Driscoll (a minor) v Hurley [2016] IESC 32 , the plaintiff appealed to the Court of Appeal arguing that the amount of damages awarded was inadequate. At the appeal hearing, the plaintiff applied to have one of the appeal judges, Ms Justice Irvine, recuse herself on the grounds of objective bias. She was said to have chaired and addressed a “private conference” run as a promotion by the firm of solicitors on record for the State Claims Agency.

The test for objective or perceived bias is whether a reasonable person would have a reasonable apprehension that there would not be a fair trial from an impartial judge. The court considered the Bangalore Principles as universal norms of universal application in relation to such issues as bias. The Bangalore Principles require that judges ensure that their conduct maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.

Paragraph 4.11 of the Bangalore Principles provides that judges may contribute to legal and professional education by delivering lectures, participating in conferences and seminars, judging student training hearings and acting as an examiner. Dunne J endorsed this commentary, noting that judges on their appointment do not stop developing their knowledge of the law and that the practice of law necessarily involves openness to the concept of lifelong learning.

The Supreme Court concluded that Ms Justice Irvine was acting appropriately in furthering the knowledge of those involved as to the work of the working group she chaired, given her particular knowledge and familiarity with the issues. The conference was "private" only in the sense that it was not open to the general public, but stakeholders on all sides of the issues were invited. The fact that the conference was hosted by the firm who acted for the defendants in the particular case did not affect this conclusion.

Paragraph 2.5 of the Bangalore Principles provides that:

“A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where:

the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;
the judge previously served as a lawyer or was a material witness in the matter in controversy; or
the judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy;

provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.”

The Supreme Court noted that applications to judges to recuse themselves have become commonplace, but that recusal out of excessive caution or deference based on insubstantial objections would be intolerable and risk profound injustice. Judges are entitled to participate in public discourse and should support legal education and development judiciously and apolitically. However, they must defend and assert their obligation to perform their functions when they are asked to recuse.

Types of Employment Permits in Ireland

Tue, 21 Feb 2023 18:25:30 GMT

What is the Critical Skills Employment Permit?

The Critical Skills Employment Permit replaces the Green Card type employment permit and is designed to attract highly skilled people into the labour market with the aim of encouraging them to take up permanent residence in the State.

Eligible occupations are deemed to be critically important to growing Ireland's economy, highly demanded and highly skilled, and in significant shortage of supply. Permit holders can apply for immediate family reunification from the Irish Naturalisation and Immigration Service and once their dependants/partners/spouses are resident in the State, they are eligible to seek any employment and apply to the Department of Enterprise, Trade and Employment for a Dependant/Partner/Spouse Employment Permit which is currently issued free of charge. Other general features of employment permits also apply, such as the full rigour of Irish Employment Rights law.

The Department of Enterprise, Trade and Employment examines a number of criteria when assessing eligibility, including a job offer from a bona-fide employer based and trading in Ireland and who is registered with the Revenue Commissioners and Companies Registration Office/Register of Friendly Societies. Eligibility is largely determined by the type of occupation, and proposed remuneration level, with a minimum annual remuneration of €32,000 for a restricted number of strategically important occupations and a relevant degree qualification or higher for a nurse or midwife. The prospective employee must have secured a 2-year job offer from the employer and possess the relevant qualifications, skills and experience required for the employment. An employment permit must be granted to companies with 50% or more EEA nationals at the time of application, but this restriction may be waived in respect of start-up companies within 2 years of their establishment. Compensation criteria include basic salary, annual remuneration excluding bonuses, health insurance payments made to a health insurer registered with the Health Insurance Authority on its Register of Health Benefits Undertakings under Section 14 Health Insurance Act, 1994 or what the Minister is satisfied is the equivalent.

An application for a Critical Skills Employment Permit can be made online on the Employment Permits Online System (EPOS). There is a User Guide available to guide the applicant through the process and details the documentary requirements for each employment permit type. Applications are processed in date order by Employer Type and applicants can keep track of their progress online. The processing fee for a Critical Skills Employment Permit is €1,000 and 90% of the fee will be refunded. The employer may not make any deductions from the remuneration of, or seek to recover from, the holder of the employment permit concerned any charge, fee or expense related to the application.

Following a successful application for an employment permit, and if visa required, an applicant should apply to their local Irish Embassy/Consulate for an entry Visa. All relevant and supporting documentation, including the original employment permit, must be available. Non-EEA nationals in possession of an employment permit must register with the Garda National Immigration Bureau to be lawfully resident in the State. Renewals are not required, but holders must apply for a support letter from the Department of Enterprise, Trade and Employment and present themselves for registration renewal with their existing Critical Skills Employment Permit or Green Card Employment Permit, passport, and their Garda Naturalisation Immigration Bureau card. If they comply with their previous immigration and employment permit conditions and are of good character, they will be issued with an immigration permission which allows them to reside and work in the State without the need for a further employment permit.

The Immigration permission granted by the Garda National Immigration Bureau will be for 2 years, renewable subject to meeting all relevant criteria. If not satisfied, applicants will be issued with a Stamp 1 by the Bureau and must hold an employment permit in order to work in the State. If an employee is made redundant while they are a Critical Skills or Green Card Employment Permit holder, they must notify the Employment Permits Section of the Department of Enterprise, Trade and Employment of the redundancy on the prescribed Notification of Redundancy Form within 4 weeks of the date of dismissal. A new Critical Skills Employment Permit will be issued in accordance with the remuneration requirement and for a job where there is a strategic skills shortage. If the non-EEA national cannot acquire another job within 6 months of being made redundant, they must contact the immigration authorities to establish their immigration status beyond that period.

What is the General Employment Permit?

The General Employment Permit replaces the old Work Permit Employment Permit and is the primary vehicle used by the State to attract 3rd country nationals for occupations experiencing a labour or skills shortage. It permits a broader range of occupations than the other classes of employment permit and may be obtained in respect of a 12-month contract of employment. It can be issued for an initial period of 2 years and can then be renewed for up to a further three years.

Criteria for eligibility include a job offer from a bona fide employer registered with the Revenue Commissioners and, if applicable, with the Companies Registration Office/Registry of Friendly Societies. The proposed employment is not in an excluded job category under the Ineligible List of Occupations for Employment Permits.

Minimum annual remuneration is €30,000 for an employment as a healthcare assistant, €27,000 for a non-EEA student who has graduated in the last 12 months, and €27,500 for an employment supported by an enterprise development agency. Employers must ensure that the employer is a genuine and legal employer, and the Department of Enterprise, Trade and Employment examines a number of criteria when assessing employers. Employment permits must be issued to employers that are registered with the Revenue Commissioners and with the Companies Registration Office/Registry of Friendly Societies, and which are currently trading in the State. The 50:50 rule is waived in certain circumstances, such as start-up companies and client companies of Enterprise Ireland or IDA Ireland. Renewals of employment permits will require the employer to have met 50:50, but a one-year employment permit may be provided in circumstances where the employer can demonstrate significant progress towards achieving 50%.

A Labour Market Needs Test is required in most cases. Employment permits cannot be issued in respect of employments, irrespective of remuneration, on the Ineligible List of Occupations for Employment Permits. To fulfil the Labour Market Needs Test, employers must advertise the position on DSP Employment Services/EURES employment network and in newspapers. The main criteria applied are minimum annual remuneration (generally above €30,000), the employment named is not in an excluded job category, and the prospective employee must possess the relevant qualifications, skills or experience. Spouses, dependants or partners of General Employment Permit holders are not eligible for a Dependant/Partner/Spouse Employment Permit.

The Employment Permits Act 2006 as amended states that a new employment permit cannot be considered if fewer than 12 months has elapsed since the permit holder first commenced employment in the State. However, if the following circumstances apply, the Department may permit a General Employment Permit holder to change employer: medical doctors on 6-month rotations; permit holder is made redundant; or circumstances that fundamentally change the employment relationship. Remuneration criteria include basic salary to achieve at least National Minimum Wage or a rate of pay fixed under or pursuant to any enactment, and health insurance payments made to a health insurer registered with the Health Insurance Authority on its Register of Health Benefits Undertakings under s14 Health Insurance Act, 1994. An application for any employment permit must be received at least 12 weeks before the proposed employment start date. There are up to three stages in the passage of an employment permit application: Application received (awaiting processing) is placed in the relevant processing queue depending on the Employer type.

Processing is where the application is considered by a decision maker, an official with decision making authority, and the processor will either grant or refuse it. Fee for a new General Employment Permit is €500 for 6 months or less duration or €1,000 for an employment permit from 6 months up to 24 months duration. If an application is unsuccessful, 90% of the fee will be refunded. If the employer is the applicant, they may not make any deductions from the remuneration of, or seek to recover from, the holder of the employment permit.

What is a Dependant/Partner/Spouse Employment Permit?

A dependant of a Critical Skills Employment Permit Holder or researcher on a Hosting Agreement is permitted to work in Ireland while they are resident here and accompanying the Critical Skills Permit Holder. They must have a job offer and apply for a Dependant/Partner/Spouse Employment Permit, which is free of charge and can be renewed after the initial period.

The Department of Enterprise, Trade and Employment will examine a number of criteria when assessing Employment Permit applications, and only certain categories of dependants can apply for this type of employment permit. The Department of Justice and Equality has determined that a dependant of a primary permit holder or researcher must have resided in the State on a continual basis, been working within the terms of their Employment Permit/Hosting Agreement, and have either a valid Critical Skills Employment Permit or permission to reside in the State under the Scheme for admission of Third Country Researchers to Ireland. To apply for a Dependant/Partner/Spouse Employment Permit, a letter is required from the employer confirming that the primary permit holder/researcher is still in employment with that employer, and their job title.

Employment permits are not provided for the following: non-EEA dependants/civil partners/spouses of Irish nationals, EU nationals, and non-EU nationals who hold other classes of Employment Permits. People in these categories should contact the Irish Naturalisation and Immigration Service to determine the status of the relationship and provide appropriate residency permission along with permission to be employed. The Immigration Service Delivery provides a letter outlining that a person may seek employment in the State without an employment permit or subject to the issuing of an employment permit.

A Dependant/Partner/Spouse Employment Permit application must be granted for a period of either the expiry of the employment permit of the primary permit holder or the immigration stamp of the researcher, or if they were the holder of a Green Card Employment Permit, Critical Skills Employment Permit or a Hosting Agreement.

The Dependant/Partner/Spouse Employment Permit does not affect the entitlement of a dependant, civil partner and spouse of the primary permit holder or researcher to apply for an employment permit in their own right. The Department of Business, Enterprise and Innovation examines a number of criteria when assessing employers, including that applications will only be accepted from employers that are registered with the Revenue Commissioners and where applicable, with the Companies Registration Office/Registry of Friendly Societies, and that an employer/employee relationship will exist in that the prospective employee will be employed, salaried and paid directly by the employer.

What is an Intra-Company Transfer Employment Permit?

The Intra-Company Transfer Employment Permit is designed to facilitate the transfer of senior management, key personnel or trainees who are non-EEA nationals from an overseas branch of a multinational corporation to its Irish branch.

The main attraction of this permit is that it facilitates the temporary injection of corporate or HQ personnel and also provides for such employees to stay on the foreign payroll.

Criteria for eligibility include senior management earning a minimum annual remuneration of €40,000, key personnel earning a minimum monthly salary of €20,000, and personnel undergoing a training programme earning a minimum yearly salary of €30,000. Senior Management refers to persons primarily having one of the following functions: management of the organisation, supervision or control over the work of other supervisory, professional or managerial employees, or management of an essential function. Key personnel refers to persons working within an organisation who possess specialist knowledge essential to the establishment's service, research equipment, techniques or management.

Personnel participating in a training programme refer to persons transferring for training purposes for a maximum of 12 months. Minimum periods of employment with foreign employer prior to transfer include 6 months, 1 month, or return to their country of origin. Section 12(1)(e) of the Employment Permits Act 2006 as amended states that a new Employment Permit cannot be considered if less than 12 months has elapsed since the permit holder first commenced employment in the State. Trainees on an Intra-Company Transfer Employment Permit can apply for a Critical Skills Employment Permit or a General Employment Permit during the 12-month period. Foreign employers and connected persons must be bona fide and be trading and engaged in substantive business operations in Ireland.

Proof may be requested of an applicant to show that it is trading. The foreign branch of the organisation must be engaged in substantive business operations in the foreign country in question, the connected person must be linked with the foreign employer, and the minimum annual remuneration threshold must be €40k (or €30k in the case of an Intra-Company Transfer trainee). Compensation components include basic salary, board and accommodation, health insurance payments, and the monetary value of board and accommodation directly provided by the connected person or foreign employer.

What is a Contract for Services Employment Permit?

The Contract for Services Employment Permit is designed for situations where a foreign undertaking has won a contract to provide services to an Irish entity on a contract for services basis and to facilitate the transfer of non-EEA employees to work on the Irish contract in Ireland. It is limited to positions required for the service of the contract and cannot be considered for any occupations listed in the Ineligible List of Occupations for Employment Permits or those contrary to the public interest. Applicants must have been working for a minimum of 6 months with the Contractor prior to transfer in order to support the contention that the Contractor was awarded the contract on the basis of the skills and service they could provide. At the cessation of the contract or when the permit expires, the permit holder must leave the State. Contract for Services Employment Permit holders may apply for an alternative employment permit, for example, a Critical Skills Employment Permit or a General Employment Permit.

The employer must be registered with the Revenue Commissioners as an employer, and at least 50% of the employees of the Contractor or the Relevant Person must be EEA nationals. Compensation criteria include basic salary, board and accommodation, and health insurance payments made to a health insurer registered with the Health Insurance Authority on its Register of Health Benefits Undertakings under Section 14 Health Insurance Act, 1994.

What is a Reactivation Employment Permit?

The Reactivation Employment Permit replaces a class of Employment Permit dealing applications routed through the Migrant Rights Centre of Ireland. It allows foreign nationals who entered the State on a valid Employment Permit but fell out of the system due to no fault of their own or who have been badly treated or exploited in the workplace to work legally again. Applicants must apply to the Immigration Service Delivery (ISD) and make an application for permission to be in the State for the purpose of making an application under this employment permit scheme. Applicants may be eligible for this type of employment permit if they are: a person who previously held an employment permit, a person who is the holder of a current Work Permit Employment Permit for a low skilled and low paid position, a Spousal/Dependant Employment Permit holder, or a Dependant/Partner/Spouse of current Green Card and Critical Skills Employment Permit holders and Researchers. The Reactivation Employment Permit Scheme is intended to facilitate people who have fallen out of the employment permits system and bring them back into legal immigration and employment.

It is available to holders of current Spousal/Dependant or new Dependant/Partner/Spouse Employment Permits whose circumstances have changed (for example, separation) and where the Minister for Justice and Equality is satisfied that they should be considered in the case. Applicants must be made redundant during the 6 months period preceding 1 October 2014 and have a period of 6 months from the date of their redundancy to seek the same employment for the same category of job, even if it is now ineligible. Those who continue to breach both immigration and employment permit legislation cannot be continuously facilitated under the scheme. The new Employment Permits (Amendment) Act 2014 provides a period of 6 months to seek the same employment for the same category of job, even if it is now ineligible, and to apply for a new Employment Permit. The main criteria applied for Reactivation Employment Permits are remuneration must be National Minimum Wage or higher, all occupations are permitted, and the foreign national must possess the relevant qualifications, skills or experience required for the employment.

Employers must be registered with the Revenue Commissioners and registered with the Companies Registration Office/Registry of Friendly Societies, and must ensure that an employer-employee relationship exists. The Reactivation Employment Permit (REP) is an exception to the 50:50 Rule for foreign nationals who previously entered the labour market legally on foot of an Employment Permit, are not currently in employment, have a genuine offer of employment in the State, and are holders of a temporary stamp 1. Applicants must make an application for this permission to the Irish Naturalisation and Immigration Service and stay with the initial employer for a period of 12 months. After 12 months, the permit holder may move employer provided that a new application is made.

WRC Postponement and Adjournment Applications

Tue, 21 Feb 2023 18:01:26 GMT

Introduction

On occasion, the parties on either side of the dispute may seek a postponement of the adjudication hearing, or an adjournment, for a variety of different reasons.

Postponements are requested prior to the scheduled hearing date. A request submitted on the day of the hearing is known as an "application for adjournment."

A request for adjournment must satisfy the "exceptional circumstances and substantial reasons" standard, and the petitioner must also explain why a request for delay was not filed in advance.

In some instances, a request for a postponement may be made with consent. Applications received by the WRC within five business days of the hearing notice letter and supported by the written approval of the opposing party are granted automatically.

When applications for a postponement are made to the WRC without the approval of the other party, the reasons for the application and any pertinent supporting material must be provided at the time of the application. These may include medical certificates, a death notification, proof of flight reservations, jury service papers, etc.

Case Law

In the recent case of Stephen Walsh -v- Pat the Baker (ADJ00037569), the complainant wrote to the Workplace Relations Commission (WRC) seeking an adjournment the day before the hearing but was informed that he had to seek an adjournment directly from the Adjudication Officer.

The complainant did not attend the hearing but sent an email on the morning of the hearing indicating that he would not be in attendance for a number of reasons. Firstly, he set out that he wished to respond in writing to the respondent’s submission which he claimed he only received two days before the hearing. Secondly, he was acting under the impression that the respondent was not going to attend, therefore, he cancelled is annual leave and would be working on the day in question. Thirdly, as he had only recently become aware that the respondent would have representation, he too wanted an opportunity to seek representation.

The respondent, as well as three witnesses, attended the hearing.

The Adjudication Officer afforded the complainant a customary 15 minute grace period to attend the hearing. When the complainant failed to arrive, the Adjudication Officer commenced the hearing, noting that the complainant had received copies of the respondent’s submission 10 months prior to the hearing and that his reference to receiving the documentation two days prior to the adjudication hearing, constituted a re-issue of the same documents. The Adjudication Officer further noted that the complainant was specifically advised by the staff of the WRC to present himself at the hearing to seek an adjournment. Finally, the Adjudication Officer noted that the complainant had known, for close to a year, that the respondent had representation.

As the complainant did not attend the hearing of these matters, the Adjudication Officer could not find in his favour in relation to any of the complaints he had put forward. Therefore, his complaint under Section 6 of the Payment of Wages Act, 1991, and Section 8 of the Unfair Dismissals Act, 1977, failed.

In the case of Ruth Callan -v- General Paints Limited (ADJ00031862), the complainant, at short notice, applied for the hearing to be postponed arising from both the client and counsel instructed to present the case being unable to attend the hearing. The complainant’s solicitor was advised to make an application at the scheduled hearing for a postponement or adjournment. The complainant was requested to submit relevant medical certificates and forward their written submissions in advance of the adjudication hearing to allow the WRC to make a determination as to whether there were sufficient grounds for an adjournment. In the absence of any evidence to ground the application for an adjournment based on an exceptional reason, the Adjudication Officer refused the application for an adjournment for lack of evidence to ground such a request.

The respondent was ready to present their case and to rebut the allegations made by the complainant. The complainant did not attend the hearing. As no evidence had been provided to explain the absence of the complainant, the Adjudication Officer found that the complainant had failed to make out her case and decided that the complainant was not unfairly dismissed and the complaints made under the Organisation of Working Time Act, 1997, were not well founded.

In the case of Ciaran Kelly -v- Securitas Security Services (Ireland) Limited (ADJ00033405), the respondent sought a postponement on the second day of the hearing of this case. Counsel for the complainant noted that they were not on notice of this request. IBEC, who were representing the respondent, informed the Adjudication Officer that the intended IBEC representative, for the second day, who had commenced the first hearing, was unavailable due to his being scheduled to attend a Labour Court hearing. As an application had not been made affording the parties sufficient time to consider such a request, the Adjudication Officer declined the request and proceeded with the hearing.

In A Complainant -v- A Named Counsel Official (ADJ00010570), there was no attendance on the day of the hearing by or on behalf of the complainant or their representatives. It subsequently emerged that the solicitor for the complainant, Ms Rosen, had, on the day before the intended adjudication hearing, contacted the WRC’s Postponement Unit and was advised that a request for a postponement was being refused. Ms Rosen was advised that any appeals must be made in person as per the WRC guidelines which, in this case, will be at the hearing date due to the late application. Ms Rosen had made an application for a postponement as she was scheduled to attend another matter at Ennis District Court on the same date of the scheduled adjudication hearing. The Adjudication Officer noted that, in arriving at her decision to progress with the hearing and making a determination, she had taken into consideration that the WRC has a clear procedure for postponements. It says the postponements will only be granted in exceptional circumstances and substantial reasons. Any application must also be accompanied by relevant supporting documentation within the requisite time frame.

Furthermore, the Adjudication Officer noted that the WRC procedures apply to all parties when a request for a postponement is made. The procedure is clearly laid out in the hearing notification letters and would have been well known to the pertinent legal representatives.

In Applicant -v- Government Minister (ADJ00035991), on the morning of the hearing, the complainant sent an email for the attention of the Adjudication Officer, the respondent and the Director General of the WRC. He noted that he would be unable to attend the scheduled adjudication hearing. Notwithstanding the fact that no medical certification was provided to support the request for an adjournment, as would be required under the typical postponement procedures followed by the WRC, together with the lateness of the request, following consultation with the Director of Services of the WRC, the adjournment request was granted in the circumstances.

In Alice Robinson -v- Drogheda Youth Development (ADJ00035820), the complainant, less than 24 hours prior to the scheduled hearing, emailed the WRC stating that she was unable to attend due to work commitments. On foot of the same email, she requested that the adjudication hearing be rescheduled to a later date. At this point, the complainant was provided with documentation regarding a formal request for a postponement, nevertheless, no such request was forthcoming. In circumstances whereby the request to postpone was received so close to the scheduled hearing and that the same was granted on somewhat abstract terms, the request was denied and the matter proceeded in the absence of the complainant.

Conclusion

In conclusion, consent is typically required to request a postponement. Applications submitted to the WRC within five business days following the hearing notice letter and accompanied by the written consent of the opposing party are automatically approved.

When applications for a postponement are made to the WRC without the consent of the other party, the reasons for the application and any relevant supporting materials must be provided at the time of application.

Any party may request an adjournment if the hearing proceeds. To be granted, the request must meet the "exceptional circumstances and substantial reasons" criteria, and the applicant must also provide an explanation for why a request for delay was not submitted in advance.

Exchange Agreement Employment Permit

Tue, 21 Feb 2023 17:55:16 GMT

Introduction

The Exchange Agreement Employment Permit replaces the old Exchange Agreement class of Work Permit Employment Permit and will also cater for employment permits for international reciprocal agreements. It is designed to facilitate the employment in the State of foreign nationals pursuant to prescribed agreements or other international agreements to which the State is a party. Exchange Agreement Employment Permits may be issued for differing periods up to a maximum of two years, depending on the type of exchange agreement. Employment Permits under this agreement can only be considered for a maximum period of 12 months and are non-renewable.

The IAESTE Network

IAESTE is a non-political, independent and non-governmental organisation representing academics, industrial and student interests. Ireland has been a member of the IAESTE network since 1962 and many hundreds of Irish students have gained both important work experience and cultural awareness through their participation on the programme. The IAESTE Programme works on a reciprocal basis, so that for every foreign trainee placed in a company in Ireland, an Irish student has the opportunity to take up a traineeship abroad. Employment permits under this agreement can only be considered for a maximum period of 12 months and are non-renewable. Awards are made through open competition to outstanding post-graduate students and post-doctoral scholars who demonstrate leadership qualities. The Vulcanus In Europe Programme (Ireland) is a unique venture established in 1987 by the European Commission and Japan's Ministry of Economic, Trade and Industry to invite Japanese participant students of engineering, science and technology to Europe for a year to gain work experience in major food companies.

Employer Requirements

Employers must be registered with the Revenue Commissioners and with the Companies Registration Office/Registry of Friendly Societies, and an employer-employee relationship must exist in that the prospective employee will be employed, salaried and paid directly by the employer. An application must be received at least 12 weeks before the proposed employment start date and can be made online on the Employment Permits Online System (EPOS). There are up to three stages in the passage of an employment permit application. Application received (awaiting processing) is placed in the relevant processing queue depending on the Employer type, and applicants can keep track of their progress online on the Online Status Update Enquiry facility. Processing stage is where the application is considered by an official with decision making authority.

Review of Application

Review is done by a separate and more senior official, and there is no processing fee for an Exchange Agreement Employment Permit. After successful application for an employment permit, an applicant should apply to their local Irish Embassy/Consulate for an entry visa. All relevant and supporting documentation must be available for inspection by an Immigration Officer. Entry to the State is always at the discretion of the Immigration Officer. Non-EEA nationals in possession of an employment permit must register with the Garda National Immigration Bureau to be lawfully resident in the State.

Residency Rights

Holders of Exchange Agreement Employment Permits do not accrue rights for long term residency purposes, but can change employers where a transfer of employment has taken place under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI No 131 of 2003). If the change of name is pursuant to a transfer of undertaking, the Department will issue a new permit to the permit holder/s and certified copy/ies to the new employer. Cancellation of Employment Permits is subject to Section 24(1) of the Employments Permits Act 2006, and must be returned to the Department of Enterprise, Trade and Employment within 4 weeks of termination or cessation.

Unfair Dismissal and Contested Dismissal

Thu, 16 Feb 2023 10:56:18 GMT

Introduction

A man who worked in the same garage for 51 years before being sacked was awarded €30,000 for unfair dismissal and many other employment law violations (see An Employee v. A Garage) (ADJ-00037740).

The employee testified before the Workplace Relations Commission (WRC) that he began his employment in July 1970. The WRC determined that he worked 68 hours per week and earned a flat €450.

Much of the case focused on whether or not a dismissal occurred, in accordance with the relevant legislation.

Background

The employee testified before the WRC that he began his employment in July 1970. The WRC determined that he worked 68 hours per week and earned a flat €450.

He stated that he "knew it was slave labour" but that he "was in a rut for 50 years" and "had no choice but to keep going"

The garage owners asserted that Mr. B was captured on CCTV collecting a cash payment for coal, forgetting to document the transaction, and placing the cash in his pocket, a claim that the employee refuted.

The WRC was also informed that 44,200 litres of gasoline had vanished from the garage, and the proprietors have stated that the situation is the subject of an ongoing criminal investigation.

Complaints under the Unfair Dismissals Act of 1977, the Organisation of Working Time Act of 1997, the Minimum Notice and Terms of Employment Act, and the Terms of Employment (Information) Act were upheld.

The WRC denied Mr. B's additional claim under the National Minimum Wage Act of 2000.

The Law

Section 1(a) of the Unfair Dismissals Acts 1977 – 2015 ("the Acts") defines termination as:

"(a) the termination by his employer of the employee's contract of employment with the employer, regardless of whether the employee was given prior notice of the termination."

A dismissal as defined by section 1(a) of the Acts must occur before a complainant can seek remedies under the Acts. When the fact of dismissal is in dispute, the burden of proof lies with the claimant. If that burden is met, the burden of proof shifts to the respondent to demonstrate that the termination was conducted fairly.

Section 6(1) of the Acts states that the dismissal of an employee is presumed to be unjust unless there were substantial grounds justifying the discharge, taking into account all the circumstances. In determining whether a dismissal is unfair, section 6(7) of the Acts permits consideration of: (a) the reasonableness or otherwise of the employer's conduct (whether by act or omission) in relation to the dismissal; and (b) the extent (if any) of the employer's compliance or failure to comply with a disciplinary procedure or with the provisions of any code of practice.

It is well-established that basic rules of fairness and natural justice generally apply to dismissal, including: the right of the employee to be informed of the issue; the right of the employee to representation; the right of the employee to a fair hearing; the right of the employee to state their case (which includes the right to be presented with the evidence and the opportunity to examine and refute the same); and the right of the employee to appeal the outcome. The Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) provides employers with a framework for addressing disciplinary issues in the workplace. Although the Code is not legally obligatory, the WRC might consider compliance with it.

On 17 December 2021, he had just returned from his evening tea break when he was brought to the office by one of the company's owners, Mr. K. Mrs. K, the other owner of the respondent's business, was also present. The complainant was informed that 44,200 litres of gas were missing, to which he responded that a leak must be to blame. Upon hearing this, he was informed, "You can f*** off now, you're fired, and you can walk up the road" The complaint remained silent and fled the location. He never returned. The meeting did not exceed three minutes. The complainant said he was not given the opportunity to defend himself.

In McHugh v The Sign and Graphic Centre Ltd t/a O’Reilly Signs (UD334/2008), the dismissal was contested. In this case, the claimant claimed his employer urged him to leave and never return. Whereas the respondent claimed that the employee said he had enough and departed, the employee reportedly stated that he had had enough and left. In concluding that the complainant had been wrongfully terminated on the date of the verbal interaction, the Employment Appeals Tribunal noted that there had been "no investigation of this matter of any kind" on the date of the dismissal.

The WRC is not responsible for determining the guilt or innocence of the complaint, but rather for evaluating the appropriateness of the employer's response to the alleged misconduct.

Section 7 of the Acts states that if an employee is dismissed and the dismissal is unfair, the employee is entitled to redress consisting of whichever of the following the Adjudication Officer deems appropriate having regard to all the circumstances: (a) re-instatement, (b) re-engagement, or (c) compensation (if the employee incurred any financial loss attributable to the dismissal), as is just and equitable having regard to all the circumstances.

Award

In light of the circumstances, the Adjudication Officer determined that monetary compensation was the appropriate remedy for the dismissal, and awarded the complainant €10,000.

The Acts' section 7(2)(c) provides:

"In determining the amount of compensation payable, consideration shall be given to —the measures (if any) taken by the employee to mitigate the loss or, as the case may be, his failure to take such measures."

Between December 2021 and June 2022, the plaintiff did not present any evidence of his attempts to alleviate his loss.

Takeaway

For both parties, the fact of a dismissal generally needs to be evidenced in writing.

Employers should ensure a dismissal is conducted in accordance with due process and fair procedure, allowing an employee to have his case independently evaluated and heard before a final decision to terminate is made. In addition, there should be an appeals mechanism for any decision to terminate an employee's employment.

The most important lesson for employees following a termination of employment is to take the necessary steps to seek other employment; otherwise, their remuneration may be decreased proportionally.

What is a 'sham' redundancy?

Fri, 10 Feb 2023 13:26:49 GMT

“Sham”

Noun: a thing that is not what it is purported to be.

Adjective: bogus; false.

Verb: falsely present something as the truth.

Introduction

Very recently, a number of cases have arisen before the Workplace Relations Commission (WRC) wherein accusations were made against employers that a redundancy was little more than a ‘sham’, designed to remove an employee from the workforce, under the pretence of change in operational or commercial requirements.

In Philip Hanley v PBR Restaurants Limited Fish Shack Café (ADJ-00031598), the Adjudication Officer (AO) described the process leading to the termination of an employee as “nothing more than a sham redundancy carried out in a ruthless and dishonest manner without a single thought for the personal damage the company inflicted on the complainant."

In Patrick Troy v Flynn Management & Contractors Limited (ADJ-00028488), counsel for the complainant argued that the selection of the complainant for redundancy was a sham and amounted to a procedural, “box-ticking” exercise in circumstances where the pre-determined selection process meant that nothing could have been done by the complainant to overturn his selection.

In Gerard Buston v Duggan Systems Limited (ADJ-00030023), the AO, finding on behalf of the employee, noted that “in the circumstances, I find that the redundancy of the Complainant was a sham redundancy and the Complainant was treated in an unreasonable manner. I find the Complainant was unfairly dismissed."

This office recently took a case on behalf of a Quantity Surveyor (the Complainant) against their former employer, a Contracting Firm (the Respondent). A complaint was made to the WRC under section 8 of the Unfair Dismissals Act, 1977. The AO found in favour of our client, noting that he had been subjected to a ‘sham redundancy’.

However, what does a ‘sham redundancy’ look like?

Background

The Complainant commenced employment with the Respondent on 01 January 2016. The Complainant was mainly involved in the restoration work undertaken by the company.

During 2020, the business began to struggle as a result of the Covid-19 pandemic.

In May 2020, the Complainant was diagnosed with cancer. The diagnosis and subsequent treatment were extremely traumatic for the Complainant and his partner. The Complainant married his partner during this time. When asked in cross examination where he had gone on honeymoon, the Complainant stated “I went to chemotherapy”.

The Complainant was certified as being unfit to work. However, during his cancer treatment, the Complainant asked if he could be given some work for his mental health. The Respondent gave him some work and made ex gratia payments to the Complainant. The Complainant also was paid for holidays which he had accrued over a few years due to his wife’s bipolar disorder.

On 26 May 2021, the Complainant received an email from the Respondent stating “I hope you can appreciate from 01 June 2021, no further payments will be made”.

In June 2021, the Respondent and the Complainant met for a coffee in order to discuss the Complainant’s future with the company. Both parties gave completely different evidence under oath as to what had happened at this meeting.

The Complainant gave evidence that it was clear from the email on 26 May 2021, that the Company no longer had any work for him. He stated that this had not come as a huge shock as he had notices that the restoration work which he was being asked to cost had dramatically increased.

The Complainant testified that at this meeting it was agreed that when the Complainant was fit to return to work, they would meet again to finalise his statutory redundancy. The Complainant was aware from inquiries that he had made, that he would be entitled to approximately €9000. The Complainant stated that “the dogs on the street knew he was being made redundant”.

The Respondent’s version of what happened at this meeting was completely different. He testified that he meeting had occurred at the request of the Complainant who had asked that be made redundant. The Respondent strongly contended that there was a position in the company for the Complainant, but that he had wanted to leave with a payment.

On 12 October 2021, the Respondent received a medical certificate stating that the Complainant would be fit to work for a period of one week. On foot of this medical certificate, the Complainant and the Respondent met again on 19 October 2021.

At this meeting, the Complainant was extremely taken aback to discover that in calculating his statutory redundancy, the Respondent had factored in the ex-gratia payments that he had received for work done during his cancer treatment. At this meeting, the Complainant was also told that if he wished to stay in the company, he would have to start bringing in more business in order to alleviate pressures on the company. This increase in work would have put significant pressure on the Complainant.

The Complainant came away from this meeting feeling as though the Respondent was trying to push him out of the company and was offering him approximately €5000 less than he was entitled to. The only other option given to the Complainant was to return to his role, the nature of which had fundamentally changed.

The Complainant rejected the offer of the €4000. As was pointed out by Cillian McGovern BL, counsel for the Complainant, how could you ever trust an employer who had given you a gift in your darkest hour and was now seeking it to hold it against you? The relationship of trust and confidence between employer and employee had been irrevocably broken down.

On foot of this, the Respondent asked the Complainant to provide them with a sick certificate and a date when he would be returning to work. The Complainant did not comply with this request and so a disciplinary process was commenced in December 2021.

The Complainant still failed to communicate with the Respondent and on 15 March 2022 he was dismissed for gross misconduct.

The Complainant strongly contended that this disciplinary process, as well as the original redundancy process, was a sham. The Respondent knew that the Complainant was not a salesperson. They also knew that he was recovering from cancer and was not able to be put under additional stress and pressure.

This office strongly argued before the WRC that the Respondent’s decision to factor in ex gratia payments, which had been given to the Complainant during a life threatening illness, into the statutory redundancy was absolutely deplorable.

Findings and Conclusions

AO Brian Dalton delivered this decision remarkably quickly.

He found that the Complainant’s evidence was more credible and consistent with the emails shown at the hearing. He found that discussions relating to redundancy had in fact taken place. In his decision, Brian Dalton stated:

“The payment was classed as a gift. The credibility of a Company that then takes that into account when calculating statutory redundancy is diminished. A gift cannot be described as so and then becomes reckonable in calculating statutory entitlements”.

He went on to comment that the employment of the Complainant was then terminated under the cloak of not engaging in a shambolic disciplinary process. Brian Dalton stated:

“The Complainant was presented with Hobson’s choice. It was a take it or leave it, which was take the €4000 or you take this role which you cannot succeed in. That is no choice. The actions of the company thereafter were poisoned as they were not genuine.”

The AO also placed significant weigh on the fact that the Complainant’s role had not in fact been eliminated. His work is contracted out when it is needed.

He quoted from the decision in AG Bracey Ltd v IIes where it was said that “the law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss”. The test as to whether or not an employee has in fact acted reasonable is determined on the basis of an objective test.

Brian Dalton stated that he had assessed the financial loss to be 9 months salary having regard to the time required to seek an alternative role and loss of statutory rights. However, he reduced this to 6 months salary due to the Complainant’s failure to engage with the company. On this basis €18,000 was awarded.

Takeaways

There are numerous lessons that both employees and employers can take away from this case.

Employers

If employers want to make somebody redundant, it must be genuine. You cannot simply dispose of an employee by way of redundancy because you no longer want to work with them. You must be able to show that their role is genuinely gone. In this case it is clear that the role of the complainant was not gone. It was contracted out by the employer on a need be basis.

We highlight the Employment Appeals Tribunal (EAT) case of John Edwards and Aerials and Electronics Ireland Ltd, UD236/85, where, by majority, the EAT concluded that the complainant had “raised major doubts “as to whether the redundancy was genuine. The EAT found they were faced with the following dilemma:

"We recognise that the function of a full time MD no longer exists, but we must direct our minds to the cause-and-effect relationship between redundancy and dismissal. The issue is whether he was dismissed because the employer had decided to re-organise the structure of the company, or whether a decision was taken to dismiss him for some other reason? In other words. Was the reorganisation a cause or a consequence? On balance, we are inclined to the latter view."

In this case, the EAT determined that they would need to examine the facts of a redundancy against the following test:

1 was there a genuine redundancy?

2 was selection fair?

3 was the manner in which the redundancy conducted fair and reasonable?

The EAT found an unfair dismissal on that occasion.

Recently, in the case of Tracey Ring v Student Facilities & Services (UCC) Designated Activity Company (DAC) T/A Unisalon (ADJ-00037197), the AO gave a very useful summary of expectations with respect to a proper redundancy process:

“An employer does not have a free hand to act as it pleases. An employer is bound to act within the requirements of the law, irrespective of the circumstances the employer is navigating. It is not in dispute that there was a global pandemic. However, there is a well-trodden path in respect of dismissing an employee lawfully, by reason of redundancy. Specifically, it requires the employee to be put on formal notice that his/her role is at risk of redundancy. It requires a genuine consultation process being entered into, with the employee, by the employer. Often, an employer will implement a selection matrix (and a points system) to determine which roles in the organisation are to be made redundant, in a bid to be as fair to employees as possible, as redundancy is ‘impersonal’ – it is the role and not the person that is being made redundant. A lawful redundancy process requires the genuine consideration of suitable alternative employment within the organisation, including any suggestions the employee brings to the table. It requires the employee to be afforded a right of appeal.”

Another takeaway for employers is that if you give employees a gift you cannot then use it against them. An ex-gratia payment is an ex-gratia payment. An employer is not entitled to give with one hand and then take it away with the other.

Finally, the WRC will not be fooled by a shambolic disciplinary process. AO’s are well trained in their field – it will not be easy to pull the wool over their eyes. If you are conducting a disciplinary process, you must do it properly. You cannot have decided the outcome before it has already begun.

Employees

This point applies to any employee who wishes to take a claim to the WRC for an employment law issue. The compensation awarded to you will be reduced if the AO finds that you have contributed to your own dismissal in any way. In this case, the compensation awarded to the Complainant was reduced by 3 months because he had failed to engage with the Respondent.

Therefore, a key takeaway for employees is to cooperate with every stage of the process even if you believe that your employer is acting in an unreasonable, or even a shambolic, way. It will stand to you later.

What is an Iaasac Wunder Order?

Tue, 29 Nov 2022 07:12:06 GMT

What is an Iaasac Wunder Order?

An Iasaac Wunder order is an order which can be issued by an Irish court, limiting the ability of a litigious individual to bring legal proceedings without leave from that court or a separate one. These orders can be issued for a specific or indefinite period of time.

Origins of Iaasac Wunder Order

The Iaasac Wunder order is named after the plaintiff in Wunder v Irish Hospitals Trust (Supreme Court, unreported). However, this type of order was actually first seen in Keaveney v Geraghty [1965] IR 551.

In Riordan v Ireland (No.5) [2001] 4 IR 465, the High Court stated that the Irish courts have an inherent jurisdiction to make these orders “where the court is satisfied that a person has habitually or persistently instituted vexatious or frivolous civil proceedings.”

In Ruth Moran v Watchtower Bible and Tract Society of Ireland [2019] IECA 90, the Court of Appeal endorsed this finding, and stated that Iaasac Wonder orders “preserve the subjects constitutional right of access to the courts and merely requires that it be exercised only where they can satisfy the President of the High Court that they ought to be permitted to bring the particular intended proceedings”.

Criteria for an Iaasac Wunder Order

In Burke v Judge Fulhan [2010] IEHC 448, the court set out the grounds which must be present before an Iaasac Wunder order can be granted. These are:

1. The Plaintiff is bringing proceedings which have already been determined;

2. It is obvious that the action cannot succeed;

3. The action was brought for an improper purpose including harassment;

4. The rolling forward of issues into subsequent actions;

5. The whole history of proceedings;

6. Failure to pay costs of previous actions;

7. Conduct of the parties

The case of Deirdre Morgan v The Labour Court and Others was ground-breaking because, for the first time, the High Court considered whether Iasaac Wunder relief could be extended to statutory tribunals such as the Workplace Relations Commission (WRC).

Prohibiting WRC or Labour Court Proceedings

On 15 June 2015, the Minister for Education decided to remove Deirdre Morgan from office.

Deirdre Morgan failed to challenge her removal from office until nearly a year later when, on 09 June 2016, she eventually lodged two complaints with the WRC against the Minister and the Education and Training Board. The Adjudication Officer dismissed both complaints on the grounds that they were out of time. These determinations were upheld by the Labour Court on appeal.

For the next six years, Deirdre Morgan persistently made complaints to the WRC and initiated court proceedings against the Minister and the Board in relation to their decision to remove her from office.

As a result, the Minister and the Board eventually decided to seek Iaasac Wunder orders, in order to prevent Deirdre Morgan from initiating any more proceedings against them in the courts or in any other forum, including the WRC, without first obtaining leave from the High Court to do so.

Granting an Iaasac Wunder Order

In his judgement, Ferriter J stated that the rationale for granting an Iaasac Wunder order is to “protect the integrity of the administration of justice by providing a filter to weed out the issue and prosecution of proceedings where such proceedings would amount to an abuse of process”. However, Ferriter J acknowledged that there was a lack of Irish case law addressing whether or not these orders could be granted in respect of proceedings being brought before statutory tribunals such as the WRC.

In determining whether or not such orders could be granted, Ferriter J examined case law from the UK. The UK have their own version of the Iaasac Wunder order, known as Civil Restraint Orders (CROs) which have been used to prevent proceedings being brought before English Employment Tribunals.

In his judgement, Ferriter J referred to the English case of Nursing and Midwifery Council v Harrold. In this case Hamblem J. had stated that “there is clearly a need for inferior courts to be protected from vexatious proceedings, just as there is for the High Court to be so protected”.

Furthermore, in Law Society of England and Wales v Sheikh, Jay J. commented that he was “entirely satisfied that the court has an inherent jurisdiction in this sort of case to impose its coercive or injunctive powers on a vexatious litigant if she persists, without reasonable cause, in litigation in an inferior tribunal”.

Prior Decisions of WRC and Labour Court

Ferriter J concluded that the High Court’s jurisdiction to make orders to stop the abuse of justice in statutory tribunals such as the WRC was “arguably on a stronger constitutional footing in light of the provisions of Articles 34 and 37 of the Constitution and the supervisory role of the High Court to ensure that proceedings of statutory tribunals are conduced in accordance with law”.

He also noted the “broad original jurisdiction” of the High Court to make sure that tribunal proceedings are carried out in a manner which is consistent with law. He concluded that the High Court could grant Iaasac Wunder orders to prevent claims being brought before the WRC in the absence of leave from the High Court.

Ferriter J continued to say that in the present case it was “manifestly appropriate” to grant an Iaasac Wunder order on the grounds that Deirdre Morgan had habitually and persistently instituted proceedings in the WRC and the courts in relation to her removal from office. She had continued to do this despite the fact that the issues in question had been the subject of numerous binding and conclusive prior decisions.

Ferriter J noted that Deirdre Morgan had “repeatedly engaged in the vexatious re-packaging of claims already determined against her. Indeed, she made clear to the Court during the hearing of the various matters before me that she intended to continue her campaign of proceedings.”

Takeaways

What employers can take away from this decision is that an Iaasac Wunder order may be available to them if an employee (present or former) persistently initiates proceedings against them in the WRC despite the fact that the issues in question have already been the subject of “binding and conclusive decisions”.

The Courts will not look favourably on a plaintiff who repeatedly initiates “manifestly vexatious claims” and places a significant strain on the Court’s time or resources.

Working Excessive Hours and Constructive Dismissal

Fri, 11 Nov 2022 11:44:04 GMT

Excessive Working Hours and Constructive Dismissal

Can an employee resign if they are working excessive hours? Can they then pursue a claim of unfair dismissal by way of constructive dismissal?

The case of Melissa Moran v C.H. Kane Ltd Supervalu (ADJ – 000316262) was decided on 08 June 2022. This case is interesting because it addressed the question of whether an employer can be liable under the Organisation of Working Time Act 1997, when an employee worked extra hours off their own accord and against instructions from the company not to do so.

Background

Melissa Moran (the Complainant) commenced employment with C.H. Ltd Supervalu (the Respondent) in February 2016 as a Sales Assistant. In October 2019, the Complainant was promoted and became a Trainee Assistant Manager.

Issues arose, and as a result, the Complainant resigned from her position. The Complainant then brought a claim to the WRC under the Unfair Dismissals Act, 1977 on the grounds of constructive dismissal.

The Complainant also raised a complaint under the Organisation of Working Time Act 1997 on the grounds that she had allegedly been required to work 50 hours every week over a six-day period.

The Respondent claimed that the Complainant was never required, or even asked, to work beyond her contracted hours of 45 hours a week. They further argued that the Complainant had been told on numerous occasions not to come into the store when she was not rostered.

Case Law and Legislation

The Adjudication Officer pointed to section 15(1) of the Organisation of Working Time Act 1977 which states that:

“An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours calculated over a period that does not exceed –

a) 4 months, or…”

The Adjudication Officer noted the case of Svoboda v IBM Ireland (DWT0818). In this case the Complainant had worked in excess of 48 hours a week despite the fact that her employer had told her not to do so. The Labour Court had noted that due to the genuine efforts of the employer to deal with the issue, the contravention of the Working Time Act was “technical and non-culpable in nature and that the Complainant was herself primarily responsible for what occurred”.

In Svoboda, the Labour Court also noted that section 15 of the Act imposes a form of strict liability on employers. What this means is that the Act does not stipulate that that an employer “may not knowingly permit an employee to work excessive hours”. They held that this interpretation of the section was consistent with the aim pursued by Directive 93/104/EC which was transposed into Irish law by the Organisation of Working Time Act 1997. Article 1 states that the objective of the Directive “is to lay down minimum safety and health requirements for the protection of those at work”.

The Svoboda case has been cited with approval in A Truck Driver v A Logistics Company (ADJ-00025784) and more recently in An Employee v An Employer (ADJ-00028485).

Decision

The Adjudication Officer concluded that the duty to comply with the Organization of Working Time Act 1997 is borne by the employer and not the employee. On this basis, they found that when an employee works more than 48 hours a week, the employer will be held liable. This liability remains even where the employee willingly worked excessive hours or failed to take breaks.

The Adjudication Officer distinguished this case from the Svoboda case on the grounds that while the Respondent had not required the Complainant to work more than 48 hours a week, they had failed to sufficiently monitor the attendance pattern in order to ensure that she did not do so.

The Complainant was awarded €3000 in compensation.

Takeaways

The big takeaway from this case for employers is that it is their duty to ensure that their employees do not work excessive hours. They can still be held liable under the Organisation of Working Time Act 1997 even when they have told an employee not to work more than their contracted hours.

It is insufficient for employers to say that they did not know that the employee was working excessive hours. In order to avoid liability, employers will have to show that they made bone fide efforts to stop the Complainant from working excessive hours.

Therefore, as said in Svoboda, employers should have “in place some system by which the employee’s hours of work can be monitored and appropriate corrective action taken if needed”.

Reasonable Accommodation in the Workplace

Fri, 07 Oct 2022 12:40:17 GMT

Introduction to Reasonable Accommodation in the Workplace

The recent case of Damien O’Sullivan v FG Wilson Engineering (Dublin) Limited (ADJ -00030123) examined the issue of discrimination on the grounds of disability, and how Covid-19 can impact what steps an employer needs to take when considering a reasonable accommodation.

Mr. O’Sullivan (the Complainant) argued that his employer, FG Wilson Engineering (Dublin) Limited (the Respondent) had failed to provide him with reasonable accommodation for his disability and had dismissed him on discriminatory grounds contrary to the Employment Equality Acts 1998-2015.

Background

The Complainant suffered from a disease known as Psoriatic Arthritis which is an auto immune illness which makes the Complainant extremely vulnerable to infections.

Understandably, when the Covid-19 pandemic hit, the Complainant became very concerned for his health. Due to the nature of his illness, the Complainant was terrified of going to work for fear that he would contract Covid. The Complainant was certified as unfit to work by his doctor.

On 22 May, the Complainant provided the Respondent with another certificate stating that the Complainant would be fit to return to work, provided that sufficient health and safety measures were implemented in the workplace.

When the Complainant informed the Respondent of this, the Service Manager emailed the Complainant, informing him that he was not able to fulfil the terms of his contract and as a result his employment was being terminated. The Complainant believed that he had been discriminated against on the grounds of his disability

The Respondent denied that they had discriminated against the Complainant. They stated that the inability of the Complainant to fulfil the terms of his contract meant that they had reluctantly terminated his employment.

Legislation and Case Law on Reasonable Accommodation

Counsel for the Complainant noted the case of An Executive Assistant v A University (ADJ – 00022851) where the Adjudication Officer had stated that the respondent “in not carrying out an individual assessment of the various options on working from home did not take appropriate measures to enable the complainant to continue to participate in employment. I find that the respondent did not fulfil its statutory duty to the complainant. The respondent failed to make reasonable accommodation for the complainant’s disability. The complainant was discriminated against on the grounds of her disability.”

Positive obligation on the employer to enable the employee to continue in employment

The Counsel for the Complainant also noted that section 16 of the Acts places a positive obligation on the employer to enable the Complainant to continue in employment. The Complainant argued that the Respondent did not seek any medical evidence as to how the Complainant’s disability could be mitigated. The Respondent did not attempt to accommodate the Complainant in any way.

The Adjudication Officer noted section 6(1) of the Employment Equality Acts which states that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection 2”.

Burden of proof in a discrimination claim

The Adjudication Officer commented that section 85A of the Employment Equality Acts sets out the burden of proof which a Complainant must meet when making a claim of discrimination. The Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. The Adjudication Officer made it clear that only if the Complainant succeeds in doing this does the burden shift to the Respondent to prove the contrary.

The Adjudication Officer then noted the case of Melbury Developments v Arturs Valpetters (EDA0917) where the Labour Court had stated that a Complainant must “first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that it be of sufficient significance to raise a presumption of discrimination.”

The Adjudication Officer also drew attention to the case of Hallinan v Moy Valley Resources (DEC-S2008-25) where the Equality Officer had stated that in order to establish a prima facie case of discrimination, the following would need to be established by the Complainant:

That they are covered by the protected ground
That the specific treatment has allegedly taken place
That the treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

Requirement to consider special treatment or facilities towards a reasonable accommodation

The Adjudication Officer noted section 16(3) of the Acts which requires the employer to consider what, if any, special treatment or facilities could render the employee fully capable. He then outlined section 16(4) which illustrates the type of accommodations which could be made by an employer. These measures are described as ‘appropriate measures’ and include things such as changes in work practices, premises, equipment, pattern of working time and distribution of tasks, or the provision of training or integration resources.

Consultation with employee

The Adjudication Officer then discussed the Supreme Court case of Nano Nagle v Marie Daly [2019] IESC 63. In this judgement, in relation to section 16, it was stated that:

“If a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer”. In this case, McMenamin J made it very clear that there is a requirement that employers engage in consultation or employ other necessary steps to establish if the job of the employee is capable of adaption so as to ensure compliance with section 16 of the Act.

Furthermore, the Adjudication Officer noted the decision of the Labour Court in Humphreys v Westwood Fitness Club DEE -7/2003 where the issue of consultation was examined. In this case it was stated that:

“The nature and extent of enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed to influence the employer’s decision”.

Decision

The Adjudication Officer accepted that the Complainant was covered under by the protected ground of disability pursuant to section 6(2)(g) of the Employment Equality Acts. The Adjudication Officer was satisfied on the facts that the Complainant had raised a prima facie case of discrimination on the grounds of disability. Therefore, the Adjudication Officer noted that in accordance with section 85A, the burden of proof had shifted to the Respondent.

The Adjudication Officer stated that an employer who has an employee who is unable to work or an employee who is seeking special measures designed to increase the safeguards against contracting Covid-19 is required to comply with section 16 of the Acts.

The Adjudication Officer found that the Respondent had made no effort to establish that safety measures were in place in the sites to which the Complainant would be assigned. He also noted that the Respondent chose not to engage with the Complainant’s own GP and chose not to enlist an independent medical practitioner to clarify how, and for what duration, his condition would compromise his ability to work as a service engineer. It was the opinion of the Adjudication Officer that there were a number of options which the Respondent could have explored which might have enabled them to facilitate the Complainant’s disability.

The Adjudication Officer noted that at no point was the Complainant informed that his job was in jeopardy. There was no history of employment issues prior to the Complainant going on sick leave. His dismissal was instant and came just hours after the Complainant had informed the Respondent that he was fit to return to work should safety measures be put in place.

The Adjudication Officer stated that in not carrying out an individual assessment of any options other than dismissal, the Respondent had not taken appropriate measures to enable the Complainant to participate in employment. It was held that the Respondent had failed to reasonably accommodate the Complainant and had discriminated against him on the grounds of disability.

The Adjudication Officer ordered that €41,076 be paid to the Complainant.

Takeaways

It is vital that employers note that they are required to reasonably accommodate employees who have a disability. The only exception to this will be where providing such reasonable accommodation would impose a disproportionate burden on the employer.

The Adjudication Officer repeatedly highlighted how the Respondent had failed to conduct an individual assessment and consult with the Complainant as to how they could accommodate him. As seen from the case law discussed above, it is absolutely vital that employer’s carry out individual assessments of and conduct consultations with the employee in question. The possibility of a vulnerable employee catching Covid-19 requires an employer to take additional measures to ensure the health, safety and welfare of their staff.

The key takeaway for employees who are considering taking cases such as this, is that you must be able to establish a prima facie case that discrimination has occurred. Only if you succeed in doing this, will the burden of proof shift to the employer.

How much compensation do you get for unfair dismissal in Ireland?

Fri, 07 Oct 2022 12:29:16 GMT

Introduction

The recent Workplace Relations Commission (WRC) case of A Sales Executive v A Software Company (ADJ-00027573) examined the issue of the calculation of compensation in unfair dismissals claims.

A Sales Executive (the Complainant) commenced employment with a Software Company (the Respondent) on 12 December 2016.

On 17 September 2019, the Complainant was dismissed for serious misconduct.

The Adjudication Officer held that the Complainant had been unfairly dismissed.

Section 7 of the Unfair Dismissals Act, 1977 clearly stipulates the redress available to individuals who have been found to be unfairly dismissed.

What does 'reinstatement' mean in the workplace?

Reinstatement essentially means that the employee will be given back the position which they held immediately prior to their dismissal with the same conditions of employment.

Re-instatement is not a particularly popular form of redress due to the fact that the relationship between the employer and the employee will generally have been severely damaged. After WRC proceedings have concluded, there is likely to be very little trust and confidence between the parties. Therefore, this is not a remedy that the WRC usually award as they do not want to force the parties back into a toxic relationship or environment.

However, it does happen. The case of Fionnan Martin v Denis Mahony Limited (ADJ-00030050) which was decided on 31 May 2022, was the first case this year when an order of reinstatement was made by the WRC.

In this case, the Complainant had actually sought an order of re-instatement. However, the Adjudication Officer refused to award this due to the fact that the Complainant had contributed to his dismissal and that the “working relationship between the parties had irretrievably broken down”.

What does 're-engagement' mean in the workplace?

An order of re-engagement will mean that the employee is either given back the position which they held immediately prior to their dismissal, or they are placed in another position which it has been deemed is reasonably suitable for them with terms and conditions which, having regard to all the circumstances, are reasonably suitable.

An example of one of the few cases where an order of re-engagement was made was the 2021 decision of Patient Service Representative v An Oxygen/Gas Supply Company (ADJ-00029366).

How much compensation do you get for unfair dismissal?

Section 7(1)(c) of the Unfair Dismissals Act 1977 stipulates that where an employee has been unfairly dismissed and has suffered financial loss, compensation not exceeding 104 weeks (2 years) remuneration, can be awarded. Compensation by far the most popular remedy awarded by the WRC.

If the Complainant has not suffered financial loss, then the WRC can only award them a total of 4 weeks pay where it is just and equitable to do so.

It is important to note that section 7(3) of the Act defines:

‘Financial Loss’ as including “any actual and any estimated perspective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1963, or in relation to superannuation” and;

‘Renumeration’ as including “allowances in the nature of pay and benefits in lieu of or in addition to pay”.

When calculating the amount of compensation to be awarded, section 7(2) of the 1977 Act states that the Adjudication Officer must consider the following:

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

In the present case, the Adjudication Officer noted that the Complainant had been out of work from the date of his dismissal, 17 September 2019, to 17 July 2021. The Adjudication Officer noted that the Complainant’s new job paid him much less and so his loss was ongoing. Interestingly, the Adjudication Officer accepted that the total losses of the Complainant were well in excess of 2 years renumeration. However, despite this, the Adjudication Officer stated that this was all that he was permitted to award.

Bonuses

The Adjudication Officer considered which, if any, of the Complainant’s bonus payments could be included in the calculation of the award.

In doing this, the Adjudication Officer considered the Regulations provided for by section 17 of the Unfair Dismissals Act. These Regulations differentiate between an employee whose renumeration does not fluctuate depending on the amount of work done by him (governed by Regulation 4) and an employee whose renumeration does so fluctuate (governed by Regulation 7).

In this instance, the Adjudication Officer found that Regulation 7 was applicable to the Complainant as he was paid commission.

Mitigation of Loss in Unfair Dismissal Claims

The Adjudication Officer also considered the Respondent’s contention that the Complainant should have secured alternative employment far earlier than 17 July 2021, due to the fact that the job market was very strong at the time and the Complainant had an abundance of experience.

In response to this, the Complainant had argued that due to the circumstances surrounding his dismissal, it had been next to impossible for him to secure employment.

In examining this issue, the Adjudication Officer examined the decision of the English Court of Appeal in London Underground v Edwards (No.2) [1998] IRLR 364 where it was held that expert tribunals (similar to the WRC), “do not sit in the blinkers and are entitled to make use of their own knowledge and experience in the industrial field”. This decision was applied by the Labour Court in Benedict McGowan and Ors v The Labour Court and Ors [2010] 21 ELR 277.

The Adjudication Officer noted that he had spent many years working as a Human Resources professional and based on this experience stated that given the circumstances, he was not at all surprised that the Complainant had took so long to find alternative employment.

The Adjudication Officer stated that after the appeal of his dismissal had failed, the Complainant had made significant efforts to mitigate his loss. However, the Adjudication Officer noted that prior to the appeal he had not made such efforts. In light of this, the Adjudication Officer awarded the Complainant 75% of the maximum compensation which could have been given.

Compensation in Unfair Dismissal Claims - Key Takeaways

An employee needs to be aware that if they have been unfairly dismissed and have suffered a financial loss as a result of this, the maximum amount that they can be awarded is 2 years salary. The WRC cannot go beyond this, no matter what the circumstances.

It is also important to note that in the context of compensation, only financial losses are considered. Understandably, many people will feel as though they should be compensated for the emotional suffering and distress that they have suffered as a result of the unfair dismissal. Such compensation cannot and will not be awarded by the WRC.

Employees should also know that they will likely not be awarded the full 2 years salary. As seen from the above case, issues such as the employees contribution to the dismissal and their efforts to mitigate their loss will be taken into account.

Mitigation of Loss - Unfair Dismissal

RG343171 — Mon, 05 Sep 2022 12:59:19 GMT

Introduction

Recently, the Workplace Relations Commission (WRC) addressed the issue of compensation payable to an employee, particularly in light of their efforts to mitigate their sustained loss (Michal Wrobel -v- Haccius Logistics Limited ADJ-00035911).

Facts

Mr Wrobel (the Complainant) lodged a complaint of Unfair Dismissal. He had been employed by Haccius Logistics Limited (the Respondent) from 4 July 2016 to 8 October 2021. The Complainant resigned from his position with effect from 1 November 2022.

Upon commencement of the adjudication in July 2022, the Complainant noted that he had been on sick leave since 20 June 2020 as a result of back pain. The Complainant had a history of difficulty regarding the allocation of machines and equipment between 2017-2020. In addition to this, the Complainant claimed that he had worked excessive hours, sometimes amounting to 55-63 hours per week. The Complainant sought compensation amounting to six weeks pay for the termination.

Interestingly in this case, the employer actually conceded that Mr Wrobel’s dismissal had been unfair and wished to move directly to the issue of compensation to be awarded.

The Respondent noted that the Complainant had been on sick leave for a considerable period between the date of the termination of employment and the hearing of the complaint. Furthermore, the Complainant’s attempts to find new employment had been severely hindered by his physical condition and his desire to work as a heavy machine operator. It was noted that within the period that Mr Wrobel was available to work, he had only applied for two positions.

Findings

The Adjudication Officer noted that it is well established that a Complainant must be able to demonstrate that upon their termination, they made every effort to mitigate their loss.

He noted section 7(2)(c) of the Unfair Dismissals Act 1977, which states that when determining the amount of compensation to be awarded, one must consider:

“the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”

The Adjudication Officer noted the case of Sheehan v Continental Administration Co Ltd (UD/858/1999) where the Employment Appeals Tribunal had stated that a Complainant who is unemployed is required to spend “a reasonable amount of time each weekday seeking work”. They also commented that merely posting adverts or informing agencies that you are available to work is insufficient.

The Adjudication Officer also drew attention to section 6(a) of the Unfair Dismissals (Amendment) Act 1993, which amended section 7 of the principal Act. This section stipulates that:

“if an employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding four weeks renumeration in respect of the employment from which he was dismissed calculated aforesaid) as is just and equitable having regard to all of the circumstances.”

In this instance, the Adjudication Officer found that the attempts made by the Complainant to secure alternative employment were entirely insufficient and demonstrated a failure on behalf of the Complainant to mitigate his loses. In light of this, the Complainant was only awarded four weeks’ pay, rather than the six weeks claimed.

Other Cases

There have been numerous other recent cases where the issue of mitigation of losses has been discussed in relation to the calculating of compensation.

In Daniel McLoughlin v North Dublin Inner City Homecare & Home Help Services Company Limited by Guarantee t/a North Dublin Home Care (ADJ – 00030296) it was noted that the Complainant had not applied for work in the four months after his employment had been terminated. The Complainant had not applied for work due to the fact that he did not believe there would be any suitable work for a vulnerable person like himself on a remote basis. The Complainant then did not search for work for a further four months due to a diagnosis of depression and anxiety.

The Adjudication Officer noted the case of Coad v Eurobase (UD1138/2013) where the Tribunal had stated that: “In calculating the level of compensation the Tribunal took into consideration the efforts of the Complainant to mitigate his losses”. Taking this into account, the Adjudication Officer stated that there is an active obligation on Complainant’s to mitigate their loss. It was found that the Complainant in this case had failed to do so and the Adjudication Officer reflected this is the compensation awarded to him.

The efforts of the Complainant to mitigate their loss was also discussed in Aisling Ryan v Pharmacy O’Riain Limited (ADJ -00029267). In this case, the Adjudication Officer noted the decision of the Labour Court in Philip Smith v Mark Leddy (UDD1974). In this case, the Labour Court had set out a test for proof of efforts to mitigate one’s loss. The test was that “the court expects to see that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”. If this test is not met, then the Labour Court made it very clear that this had to be reflected in the compensation awarded.

The Adjudication Officer found that the Complainant had failed to meet this test. He noted that she had only applied for 23 positions between 29 June 2020 and August 2021. He also noted that having been made redundant, she failed to apply for subsequent positions which had been advertised by the Respondent.

Conclusion

The above cases clearly demonstrate that when an employee brings a claim of unfair dismissal, they will typically be awarded loss of earnings for the period from the date of termination to the date of the hearing.

However, an employee must be able to demonstrate that they have made every reasonable effort, as far as is practicable, to secure alternative employment within this period. If an Adjudication Officer determines that insufficient efforts have been made, then the compensation they award will likely be lower than what would typically be given.

Defining Disability under Irish Employment Law

Fri, 12 Aug 2022 17:23:58 GMT

Defining Disability under Irish Employment Law

For an employee to prove a claim of discrimination, under Irish employment equality legislation, they must first demonstrate that they have a “disability” within the meaning of section 2 of the Employment Equality Act.

furthermore, they must demonstrate on medical evidence that they had a “disability” within the meaning of the Employment Equality Act and that the employer was on notice of same.

Defining a Disability under Irish Legislation

“Disability” is defined in the Employment Equality Act as:

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

Defining a Disability under Irish Case Law

In Waterford Senior Care Limited v Liam Tabb [Determination No. EDA 1926; ADE/19/5], the Labour Court highlighted the importance of determining at the outset of a disability discrimination claim whether a person had a "disability" within the meaning of the Employment Equality Act at the material time. The Court emphasised that the burden is on a person bringing a disability discrimination claim to prove on medical evidence that he has a disability. In finding that the Complainant did not have a disability, the Court held:

"There is a burden upon the Appellant to specify how any such condition conforms to the definition of disability within the meaning of the Act. It is not for the Court to speculate or draw upon its own interpretation of such terms. The Appellant, in not supplying any medical evidence which would allow the Court to consider the medically certified condition of the Appellant at the material time against the criteria set out in Section 2 of the Act, has left the Court with no basis for determining that any of the conditions specified by his medical practitioner amounted to a condition meeting the terms of the Act at Section 2. The Court concludes that it is not in a position to determine that the Appellant suffered from a disability within the meaning of the Act at the material time and consequently must find that the within appeal cannot succeed."

In the case of An Post v Stephens [DEC-E2018-005], the Labour Court addressed the law in relation to the duty to reasonably accommodate. The Labour Court stated that:

"In order to establish a prima facie case of discrimination, the onus is on the Complainant to prove that she had a disability at a time material to her claim or that one was imputed to her. The Court must decide whether the condition from which the Complainant suffered is a disability within the statutory meaning ascribed to that term. That is a mixed question of law and fact which turns on the true construction of paragraph (e) of the definition of disability contained at section 2 of the Act and the application of that definition to the facts as admitted or as found by the Court."

In Stephens, the Complainant alleged that she suffered from a condition of agoraphobia, but the Respondent confirmed that it had not been on notice of that condition at the material time. The Court concluded:

"Based on the uncontroverted medical evidence tendered in this case, the Court must find that the condition from which the Complainant alleged she suffered from does not amount to a disability within the statutory meaning. Therefore, the Court finds that the Complainant has not established a prima facie case and in circumstances where reasonable accommodation was in fact provided to her, the Court does not find that the Respondent was in breach of Section 16 of the Act. Accordingly, the claim herein must fail".

Notifying Employer of Disability

Similarly, in the case of Houses of The Oireachtas v Thomas Hickey [Determination No. EDA1918; ADE/19/6], the Labour Court found that the employee in that case did not suffer from a disability. In relying upon the CJEU cases of Chacon Navas v Eurest (C-13/05) and Ring v Dansk (C35/11), the Court found that no disability existed. At paras. 14 - 17 the Court held:

"No medical report was opened to the Court to establish clearly and unequivocally the extent and the duration of the Complainant’s illness or that that illness was a chronic illness within the meaning of paragraph (b) of the definition of “disability” for the purposes of the Act… Having regard to all of the foregoing, the Court finds that the Complainant has not established a prima facie case that he had a disability within the meaning of the Act. For that reason, the appeal succeeds and the decision of the Adjudication Officer is set aside in full."

An employee filing a complaint, citing a disability, is required to produce medical evidence to establish that she had a disability at the material time and the extent of any alleged disability.

Further, an employee is further put on full proof of their notification to their employer of a disability.

In A Worker v An Employer EDA 1927, the Labour Court stated that the Respondent was “not provided with any medical evidence that the Complainant had a disability” and that the Respondent “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”.

Takeaway

An employee, in pursuing a claim of disability discrimination under the Employment Equality Act, needs to ensure that they suffer a “disability” within the meaning of section 2 of the Employment Equality Act and that they have notified their employer of same.

Legal Rights of Workers in Ireland

Wed, 10 Aug 2022 07:42:49 GMT

Legal Rights of Workers – Introduction

Quite often, an employee will experience certain difficulties in the workplace, but despite the obvious stress and anxiety the actions or inactions of their employer may cause them, may not always have a sufficient legal complaint to bring forward. If an employee believes they are being mistreated, or their employment rights breached, it is critical that they identify the legal basis of any infringed right before commencing proceedings before the Workplace Relations Commission (WRC), the Labour Court or the Civil Courts.

Ordinarily, for the purposes of an employment dispute, it is necessary to exhaust the procedures of the WRC and the Labour Court before seeking the intervention of the Civil Courts. A recent decision of the High Court in Tomasz Pysz -v- Government of Ireland, Department of Foreign Affairs and Department of Labour [Record No. 2019/1444 P], clarifies those jurisdictional limits.

Workers Rights - Case Background

Mr Pysz previously brought a claim to the WRC pursuant to the Unfair Dismissals Act against the US Embassy arising from his alleged dismissal by the US Embassy on 07 July 2016. He also brought a claim pursuant to the Payment of Wages Act for unpaid wages during a period of sick leave from February to July 2016. The WRC Adjudication Officer issued a decision of 24 January 2018 that she did not have jurisdiction to hear the complaint, as she found the respondent embassy was covered by ‘the doctrine of restrictive state immunity’.

Mr Pysz apparently failed to lodge an appeal to the Labour Court within the requisite time frame specified therein, and was appealing the decision of the Labour Court not to hear his case in separate proceedings, through the High Court.

However, in these proceedings, Mr Pysz identified his claim as “negligence, failure of duty of care, violations of civil liberties, Freedom of Information Act, prohibition of Incitement to Hatred Act, the Lisbon Treaty, the Amsterdam Treaty and the European Constitution. Accomplice to modern-day slavery and human exploitation”.

Workers Rights in Ireland - Decision

The High Court noted that, in accordance with the Rules of the Superior Courts, an employee bringing litigation proceedings must define precisely the issue of law and facts upon which they rely in establishing a cause of action and giving rise to a claim they make. The underlying facts on which a claim is based and which constitute the cause of action must be clearly identified. A bald plea of negligence, breach of duty or other similar misdeed, will not be sufficient.

In this case, the employee made several allegations that he was badly treated by his former employer. None of those allegations, even if a court were to take them as facts that an employee could prove, could give rise to the employee having a cause of action against their employer.

Therefore, for the purposes of this application, except the employee’s assertion that he was experiencing serious difficulties in his employment and sought assistance from various government departments who declined or refused to assist him, the question is whether those facts could ever give rise to a cause of action.

The High Court noted that the State has put an extensive statutory framework of protective legislation in place to ensure that employees have access to an enforcement mechanism if they believe their employer is disregarding the rights and obligations arising from the employment relationship.

The High Court went on to note that the employment relationship is essentially a private relationship between employer and employee and, even though it is highly regulated by the law of the land, the relationship is not one to which the State is a party and therefore cannot give rise to a cause of action against the State, other than in exceptional circumstances.

Mr Pysz claimed that the State had failed in its duty of care to him as an employee. However, the High Court disagreed, noting that there were various other mechanisms available to him that, if clearly identified, he could have pursued.

The High Court characterised Mr Pysz’s cause of action as amounting to a vague claim which suffers from at least a little hyperbole. Concerning the State’s duty to an employee, the High Court noted that it is discharged by the State’s implementation of a vast range of protective employment law statutes which can be invoked by the employee within a legal framework.

On this basis, the High Court was satisfied that Mr Pyzs’s claim of negligence and a breach of duty of care, as set out in his preliminary summons, did not give rise to a cause of action whether at common law or pursuant to the unidentified international laws and treaties referred to in his Statement of Claim.

Legal Rights of Workers – Takeaway

Very often an employee can identify poor management or human resources practices. However, poor practices, processes and procedures, in and of themselves, will not automatically give rise to a legitimate right of claim against an employer.

In pursuing a claim against an employer, through the WRC, the most common causes of action include complaints relating to pay, hours of work, terms and conditions of employment, unfair dismissal, industrial relations issues, equality issues, penalisation, minimum notice and discrimination on the grounds of being a fixed term or part-time worker. It is important that any employee consults with a duly qualified and experienced employment law solicitor before progressing a claim, if in doubt of the underlying cause of action.

Irish Law on Unpaid Internships – Establishing an Employment Relationship

Sat, 02 Apr 2022 10:11:55 GMT

Introduction - Internships and the Law

A legal intern (Vladlena Soltan) recently brought a case against a law firm (Shannons Solicitors) alleging various infringements of her employment law rights. The claims brought against the law firm included a complaint seeking adjudication under Section 7 of the Terms of Employment (Information) Act, 1994 (TOEA), under Section 12 of the Minimum Notice and Terms of Employment Act, 1973 and Section 28(1) of the Organisation of Working Time Act, 1997 (Adjudication Ref. ADJ00030508).

The case is a useful reference point on the laws relating to internships, in general, in Ireland.

Background

Ms Soltan was self-represented at the Workplace Relations Commission. Ms Soltan alleged that no contract or employment or any written terms of conditions were provided to her. She was only provided with a verbal offer of employment. She was laid off due to covid 19 on 24 March 2020. Any efforts to return to work were unsuccessful. She was later informed that there was no further work for her and that her job was effectively terminated.

Ms Soltan alleged that there were no proper procedures with respect to the termination of her employment, no formal meetings to discuss the termination of her employment and no offer of appeal. In addition, holiday pay, both basic and public, was refused and wages for the moth of March, before she left the offices, were not paid.

The respondent law firm argued that there was no employment relationship. Shannons Solicitors argued that there was no contract of employment and terms and conditions of employment were never issued to Ms Soltan. They did concede that Ms Soltan was paid a small sum for her work in February and March, but this was more “in the nature of a stipend rather than a formal wage”. This amount was the amount the statutory legal limit required in respect of payment to an employee.

Ultimately, Shannon Solicitors argued that Ms Soltan was on a work experience placement despite no formal arrangements being in place for such a position.

Interestingly, the adjudication officer noted that, while it was unfortunate that all matters were only verbally discussed and that some confusion was inevitable, it was clear that Ms Soltan was on a work experience arrangement and did not have a regular job.

Ms Soltan appealed this decision to the Labour Court.

Appeal to the Labour Court

The Labour Court noted that the TOEA was an act to provide for the implementation of Directive No. 91/533/EEC of 14 October 1991of the Council of the European Communities on an Employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship.

In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the CJEU has made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. The Terms of Employment (Information) Act, 1994, is an act to provide for the implementation of a directive of the EU and consequently the jurisprudence of the CJEU has application in this case.

The TOEA at Section 7 (2)(d) in relevant part makes provision as follows:

7(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6 or 6C shall do one or more of the following, namely —

(d) in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment.

Internships and the Law - Defining a Contract of Employment

Section 1 of the TOEA in relevant part defines certain terms as follows:

‘contract of employment ’ means —

(a) a contract of service or apprenticeship, or

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of either the Employment Agency Act 1971 or the Protection of Employees (Temporary Agency Work) Act 2012 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and if express, whether it is oral or in writing;

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the F3 [ Local Government Act 2001 (as amended by the Local Government Reform Act 2014) ], a harbour authority, a health board or F4 [ an education and training board ] shall be deemed to be an employee employed by the authority F4 [ or board ], as the case may be;

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “ contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

Section 3 of the TOEA in relevant part provides as follows:

3.—(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) that the employee may, undersection 23of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee ’ s average hourly rate of pay for any pay reference period as provided in that section, ]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) or (1A) shall be signed and dated by or on behalf of the employer.

Application of Law to Present Case

The Labour Court noted that the parties were agreed that no written statement, as required by the TOEA at Section 3(1)(a) was ever provided to Ms Soltan.

It was noted by the Labour Court that it was common cause that Ms Soltan worked for 37.5 hours per week with Shannons Solicitors with effect from 10 February 2020.

According to Ms Soltan, she was working under a contract of service following an offer of employment made to her by the principal of the firm in a phone call in late January 2020. The principal alleged he could not recollect the phone conversation. In any event, he stated in evidence that no offer of employment was ever made to her at any time at all.

There was no dispute between the parties that the appellant carried out tasks and duties which she alleged she had carried out on behalf of Shannons Solicitors with effect from 10 February 2020.

Conclusion

In all the circumstances, the Labour Court concluded that the amount of the payment made to Ms Soltan in February 2020 was not a coincidence. It was an exact calculation of the wages which would have been due to her arising from a salary of €20,000 per annum. In those circumstances, the Labour Court concluded that the payment was, as Ms Soltan alleged, a salary payment arising from a contract of employment within the meaning of the TOEA.

The Labour Court was fortified in this conclusion by the fact that the accountant for Shannons Solicitors made statutory deductions and payments appropriate to an employer and employee when calculating the payments to be paid to Ms Soltan in both February and March 2020.

For these reasons, the Labour Court concluded that Ms Soltan was engaged by Shannons Solicitors under contract of employment within the meaning of the TOEA.

In respect of this TOEA complaint alone, Ms Soltan was awarded €1,538.45.

The takeaway, is that it is inconceivable how an individual, undertaking work outside of any formal academic or training arrangements, could not but be construed an employee for the purposes of various employment legislation, most notably the Terms of Employment (Information) Act, 1994.

Proving a Claim for Workplace Stress

RG343171 — Wed, 16 Feb 2022 06:12:00 GMT

Introduction - Workplace Stress, Employer Liability and Employee Claim

The case of Catherine (Tina) McCormack -v- Health Services Executive (HSE) ([2021 IECA272]), provides a useful reference point to the duty of care expected by an employer to an employee, and the responsibility of the employee to cite specific examples of incidents leading to that stress, if a personal injury claim in respect of that stress is to have any chance of success.

Background to Claim for Workplace Stress

Ms McCormack issued proceedings against the HSE claiming damages for personal injuries allegedly arising to her in the course of her work. In summary, Ms McCormack was employed as a health care worker by the HSE at a facility in Limerick. The facility was described as “a high support residence”. Ms McCormack claimed that from 2013 onwards, the HSE began to admit patients who were unsuitable to the facility owing to their violent and aggressive behaviour which constituted a danger to her health and safety as well as other patients.

Mr McCormack alluded to two particular incidents which she claimed had a long and lasting effect on her. Both related to the suicide or attempted suicide of patients under the care of the HSE at the facility.

Workplace Stress - Statement of Claim

Ms McCormack further noted that she had been continuously exposed to a risk of injury and did not feel safe at work. She noted that, in consequence of the foregoing, she was caused to sustain severe personal injuries, loss and damage. Ms McCormack claimed that the injuries, loss and damage she suffered were caused by the negligence and breach of duty, including a breach of statutory duty, of the defendant, the HSE, pointing to the following particular breaches of duty owed to her, names that the HSE:

Caused or permitted the HSE to admit persons unsuitable for the facility;
Failed to provide any or any adequate training for staff;
Failed to provided adequate staff;
Failed to provide or procure adequate supervision of patients;
Failed to have any or any adequate regard to an increase in incidents concerning patients, and/or failed to take corrective action or advise staff on foot of the escalation in incidents;
Failed to have any or any adequate regard to the risk of violence or aggression occurring;
Failed to provide staff with any or any adequate means or permission to restrain patients whose behaviour constituted a risk to themselves or to others;
Failed to conduct any or any adequate risk assessment of patients;
Failed to provide a safe system of work;
Failed to implement any or any adequate system for managing volatile patients;
Failed to manage or conduct a system of work such that the plaintiff would not be exposed to the risk of injury;
Failed to have any or any adequate regard to the safety of the plaintiff;
Caused, procured and/or permitted the plaintiff to be exposed to workplace stress in the course of her employment;
Failed to take any or any adequate measures to prevent or limit occasions of stress in the course of the plaintiff’s employment;
Caused, procured and/or permitted the plaintiff to work in an environment which constituted a hazard to her health and wellbeing;
Exposed the plaintiff to a risk of which it was aware or ought to have been aware;
Failed to comply with the provisions of the Safety, Health and Welfare at Work Act 2005 and/or regulations made and/or preserved thereunder.

Details of Workplace Stress

However, Ms McCormack was criticised for not providing any or sufficient details of incidents of violent of aggression at any time during the period in which she claimed to suffer these injuries. The court held that Ms McCormack was claiming, in effect, that she did not feel safe at work on account of an increase in the violent and aggressive behaviour of patients, she should have therefore provided additional particulars of such incidents in support to her application.

Takeaway

While it was generally accepted that one would not necessarily expect Ms McCormack to recall the dates and times of all incidents, the failure to provide any particulars of all of the events complained of save for the two cited, gave the impression that the incidents were of such an inconsequential nature that they could not be or would not be relied upon in court.

The takeaway for employees, is to have as many and as detailed as possible references, to the incidents that caused the excessive workplace stress, in your statement of claim, when issuing proceedings.

Dismissal for Gross Misconduct

Mon, 14 Feb 2022 09:19:58 GMT

Introduction

A recent case before the Workplace Relations Commission (WRC) (Paul Gary Dixon -v- DFS Normal Trading Limited ADJ-00030253) highlights a number of considerations to be kept in mind before an employee considers bringing a claim of unfair dismissal following their termination of employment for gross misconduct.

In summary, the complainant, Mr Dixon, was employed with the respondent, DFS Trading Limited, with effect from 13 March 2018. He initially commenced as a delivery driver but was subsequently working as an Acting Warehouse Supervisor, with effect from 02 July 2020. On 02 July 2020, at the company warehouse, an incident occurred between Mr Dixon and another employee. There was a verbal altercation between the parties with Mr Dixon allegedly rushing towards a colleague with clenched fists in a threatening manner.

It was claimed, on the part of the respondent company, that Mr Dixon may have assaulted his colleague were it not for the intervention of a manager who happened to have witnessed the incident.

Mr Dixon was later dismissed for gross misconduct but brought a claim before the WRC arguing that his dismissal was procedurally and substantially unfair.

Procedural elements to a Disciplinary Process

The company asserted that fair procedures were applied to the process leading to the dismissal of Mr Dixon.

Mr Dixon relied on the decision in Morgan v. Trinity College Dublin [2003] 3 I.R. 157, where it was held that a person suspended as a penalty or sanction was entitled to be afforded natural justice and fair procedure before a decision to suspend was taken. Mr Dixon argued that he did not believe he was afforded natural justice and fair procedures as he was the only staff member who was suspended after the incident took place and before a proper understanding of the fact could be established.

The company argued that:

At all times during the investigation disciplinary process, Mr Dixon was given prior notice of investigation and disciplinary meetings.

That Mr Dixon was made aware of the allegations against him at the outset of the process.

That, at all times during the investigation and disciplinary process, Mr Dixon was given the opportunity to answer the allegations made.

That at all times during the process, Mr Dixon was provided with the right and was accompanied in the disciplinary meetings by colleagues.

That Mr Dixon was given the right of appeal against the sanction of dismissal.

That the investigation was completed in a fair manner.

That Mr Dixon was aware of the company’s disciplinary and dismissal procedures and that that policy was followed by the company throughout the investigation and the disciplinary process.

Gross Misconduct and Unfair Dismissal

The WRC acknowledged that Mr Dixon was dismissed for gross misconduct following an altercation with a colleague. In summary, the WRC noted that he was denied fair procedure and natural justice and that, in any event, the sanction was excessive and disproportionate to what had occurred.

The WRC pointed to the relevant legislation, namely:

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Gross Misconduct and Procedural Issues

Mr Dixon outlined a number of procedural issues which he contended rendered the process unfair. The WRC pointed to a significant amount of case law with respect to procedural expectations in the context of investigation and disciplinary processes in the workplace.

The Supreme Court in Glover v BLN Limited(1973) IR 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. It is quite clear from the case law of the superior courts, that there is no fixed standard of natural justice which lays down how certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances. Furthermore, Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect, but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case. In that case, Keane J. stated that the two principles of natural justice, namely “audi alterem partem and nemo iudex in causa sua cannot be applied in a uniform fashion to every set of facts”. Therefore, while employers are required to afford natural justice and fair procedures to employees when carrying out disciplinary procedures, regard must be had for the particular circumstances of the case to ascertain what the requirements of natural justice and fair procedures demand in the particular circumstances. If the process followed by the employer, while not entirely faultless, is within the scope of what could be considered a reasonable response in the particular circumstances, then the employer's actions will be deemed to be acceptable.

Suspension and Gross Misconduct

The WRC noted that the suspension occurred after an initial investigation had taken place and, in light of the fact, recognised that the respondent company had concerns that a comparable incident may arise again.

In Bank of Ireland v Reilly [20145] IEHC 241, Noonan J found that -

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he was then) in Morgan v Trinity College Dublin [2003] 3 IR 157 there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.”

Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters.”

In light of the above, the WRC concluded that the company was reasonable in suspending Mr Dixon pending a final outcome.

Termination of Employment and Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

“Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.”

The WRC, in light of all of the circumstances of the complaint, the altercation that occurred and previous history, noted that Mr Dixon’s behaviour was “of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer”. Ultimately, the WRC agreed with the respondent company that the actions of Mr Dixon fell within the definition of gross misconduct.

Gross Misconduct and Band of Reasonableness

In relation to the Complainant’s summary dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

Having considered the matter, the WRC found that the decision to dismiss Mr Dixon was within the range of reasonable responses of a reasonable employer. The WRC noted that the respondent company had sought witness statements and established through its investigation process what had actually occurred and determined that the actions of Mr Dixon amounted to gross misconduct.

The WRC concluded noting Looney & Co. Limited -v- Looney (UD843/1984) that any employer faced with similar circumstances to those that pertain to this case, would have acted in the same way.

Conclusion

In conclusion and having considered all of the submissions of both parties and the evidence provided at the hearing of the complaint before the WRC, the WRC declared that the dismissal of Mr Dixon was both procedurally and substantially fair.

The WRC therefore decided that the complaint of Mr Dixon was not well founded.

Performance Appraisals - A Right to Rectification?

Thu, 10 Feb 2022 07:40:49 GMT

Introduction - Performance Appraisals and the Law

It would be exceptional for an individual to go through their professional career without, at some point, them receiving feedback from their employer, which they considered unwarranted or unjustified.

The vast majority of people who receive such criticism during their performance appraisal, while slightly perturbed, make no further enquiries or raise any additional issues. They simply put that aspect of their appraisal down to an oversight of their hard work, dedication and performance. Some decide to challenge those assumptions indirectly or formally inform their employer of the perceived error.

However, in exceptional circumstances, an employee may seek a legal recourse to challenge, what they perceive, to be an unfair appraisal.

Discretion in drafting a Performance Appraisal

The law in general gives employers a considerable degree of discretion when drafting the performance appraisals of their employees. Performance appraisals, by their very nature, are expected to highlight certain concerns the employer perceives in the competence, capability or output of their employees. So long as the criticisms do not veer into the realm of defamation, an employer is unlikely to face any legal challenge to a critical appraisal no matter how angry or emotional their employee feels about it.

A recent decision by the Office of the Information Commissioner (OIC) (MR Y -v- Defence Forces - OIC 114048/D5M8P9) illustrates the degree of discretion an employer is afforded when drafting a performance appraisal.

Rectification of Performance Appraisal

Articles 16 and 19 of the General Data Protection Regulation (GDPR) allows an employee to have their data rectified by their employer without undue delay if the data held by the employer on them is inaccurate. Furthermore, if the personal data held on an employee is incomplete, the employee has a right to have their data completed including by means of providing a supplementary addendum.

The right of rectification is restricted in certain circumstances under Section 60 of the Data Protection Act, 2018, which provides for restrictions that are necessary for important objectives of public interest and by Section 40 of that Act, which seeks to balance the right of rectification with the right of freedom of expression and information.

Similarly, Section 9 of the Freedom of Information Act, 2014 (FOI Act), provides for a right of amendment of incomplete, incorrect or misleading personal information in a record held by an FOI body.

An FOI body is usually a state or semi-state organisation that conforms to the definition in Section 6(1) of the FOI Act, 2004 unless they are specifically exempt in whole or in part either in Section 42 or in Schedule 1 of the FOI Act.

The Defence Forces of Ireland is a qualifying FOI body.

Application for Rectification of Performance Appraisal

The applicant was a member of the Defence Forces. On 18 December 2020, he applied to the Defence Forces, through the OIC, for the amendment of his performance appraisal for 2016. The applicant had used the internal Defence Forces processes to seek an amendment to his performance appraisal previously, to no avail.

On 06 October 2021, the applicant sought a review of the decision not to amend his performance appraisal by the OIC.

The OIC noted that the FOI Act is silent on the question of where the onus of proof lies in cases seeking rectification of incomplete, incorrect or misleading personal information in a record held by an FOI body.

The OIC considered that the absence of any express statement in the FOI Act places a burden of proof on the applicant as the party certain that the information is incomplete, incorrect or misleading. The OIC also noted that the FOI Act is also silent as to the standard of proof which should apply in such cases. The OIC went on to note that the Office takes the view that the standard of proof required in such cases is that of the balance of probability. It follows, therefore, that an applicant seeking to exercise the right of amendment under Section 9 of the FOI Act, must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading. Importantly, the OIC went on to note that the Office does not see its role arising from Section 9 of the FOI Act as being to conduct its own comprehensive enquiry as to the accuracy or completeness of the records held by a public body. Rather, it was noted that they must have regard to the evidence actually provided by the applicant and to any rebuttal evidence put forward by the FOI body and make a decision on that basis. Importantly, the OIC went on to note certain limitations with respect to the amendment of personal information:

“The Act is also silent as to the standard of proof which should apply in such cases. This Office takes the view that the standard of proof required in such cases is that of "the balance of probabilities". It follows, therefore, that an applicant seeking to exercise the right of amendment under section 9 must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading.

This Office does not see its role arising from section 9 as being to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, we must have regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the FOI body and make a decision on that basis.

In requiring an applicant to provide evidence that the information in a record is actually incomplete, incorrect or misleading, this Office is not making any prior judgement as to the accuracy of a record. The fact that an applicant fails to provide sufficient evidence to enable the Commissioner to conclude that the information in a record is incomplete, incorrect or misleading will cause the records to remain undisturbed, but this does not carry any judgement on the part of the Commissioner that the record is, in fact, complete, correct and not misleading.”

Performance Appraisal and Personal Data

Crucially, the OIC referred to the subjective element of performance appraisals noting its limited power and will to amend the credible expressions of others, particularly those of an employer to an employee in respect of an employment relationship.

“The definition of "personal information" includes "the views or opinions of another person about the individual". Thus, the right of amendment of personal information includes the right of amendment of opinions that are incorrect, in addition to the right of amendment of incomplete or misleading opinions. This Office takes the view, however, that section 9 does not permit the decision maker or the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 9 is made.

While this Office has not identified an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading", we would expect an applicant to satisfy us that the opinion is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely upon. However, we would not be justified in directing an FOI body to amend its records on the sole basis of contrary statements or opinions, however strongly held, by the person seeking the amendment. Thus, the applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.”

Conclusion

The OIC, having carried out a review under Section 22 (2) of the FOI Act, affirmed the decision of the Defence Forces to refuse the application for an amendment of the applicant’s appraisal form for 2016.

It was noted that Section 24 of the FOI Act sets out a detailed provision for an appeal to the High Court by a party to review or any other person affected by the decision.

In summary, such an appeal, normally on a point of law, must be initiated not later than 4 weeks after the decision was given to the person bringing the appeal.

Takeaway

Although this case relates to a member of the Defence Forces exercising a right under the FOI right, it does seem likely that a similar conclusion could be reached by the Office of the Data Protection Commission in respect of any employee seeking to exercise their right under GDPR to the rectification of their performance appraisal in line with the relevant sections of that regulation.

Settlement Agreement Payments

RG343171 — Tue, 08 Feb 2022 10:54:45 GMT

Settlement Agreement Resources:

Introduction to Settlement Agreement Payments

As specialist workplace solicitors, we file multiple employment law claims on behalf of employees and, conversely, defend various employment law claims on behalf of employers. By representing both employers and employees in employment law disputes, we have a unique perspective on the different motivating factors of both parties to a settlement agreement.

The world of work is an extremely personal one, and very often, when the trust and confidence between employer and employee breaks down, individuals can become very emotional, often motivated to score points, rather than resolve and settle any underlying dispute. A settlement agreement can be an efficient way of resolving that dispute.

What is a settlement agreement?

Settlement agreements go by a variety of names. There are often referred to as exit agreements, compromise agreements or severance agreements. However, whatever they are called, they provide a useful framework for parties to an employment dispute, to end and settle their issues in writing, without the need of often costly and protracted employment litigation proceedings.

Terms of a Settlement Agreement

There are a variety of factors that should be considered when drafting the terms of a settlement agreement. However, before either party comes to this point, the core question of how much an employee will be compensated, is usually first and foremost.

The question we are often asked is, what is considered just and reasonable compensation in a settlement agreement?

This is a very difficult question to answer, as each case is different, with different levels of employee remuneration, culpability, and competing interests. However, we do have a useful framework, when considering what is considered a reasonable settlement offer, in the context of agreement negotiations.

1. Potential claim

Our starting point for considering what is considered a just and equitable settlement compensation amount, is to review what actual or potential claims might an employee bring in respect of any employment litigation proceedings.

For a majority of employees, the Workplace Relations Commission (WRC) will be the forum of choice to litigate their employment dispute. However, for a minority of employees, the civil court may be the preferred, or an additional forum for their claim, depending on the circumstances.

In many instances, when filing complaints on behalf of employees, we file a complaint in the WRC in respect of any breaches of their employment law rights and also with the Personal Injuries Assessment Board (PIAB) in respect of any personal injuries, whether physical or psychological, suffered.

Having clarity and certainly on the potential claim an employee can bring, is the starting point for our deliberation on any settlement compensation amount.

2. Likely Compensation

Having clarified exactly what claims an employee may bring, we then examine how much an employee might be compensated under the respective legislation, if successful in bringing a claim. However, it is important that employees do not conflate maximum awards permissible under the relevant legislation, with an award they are likely to achieve.

For example, the maximum payment an employee can achieve under the Unfair Dismissals Act is, in general, two years’ salary. However, it would be wrong for every employee filing an unfair dismissal claim to consider themselves likely to achieve anything near that amount. Ordinarily, an employee will achieve, if successful, compensation for any loss of earnings suffered.

By having a realistic estimation of a potential award, we start to gain more clarity on what a settlement agreement amount may look like.

3. Chances of Success

Very rarely does an employee always have a guaranteed successful outcome before the WRC or any other forum, despite their insistence. Even the strongest of claims can be robustly defended, giving an employer a fighting chance of success of winning the case outright, or at least mitigating their loss.

For that reason, it would be wrong for any employee to consider their claim to be bulletproof.

However, if, having taken legal advice, an employee remains confident of their chances of pursuing a successful claim, their hand in negotiating a strong settlement amount is strengthened.

Having clarified what potential claims an employee can bring and their likely compensation range, we now have a more rational and informed basis for any settlement compensation amount.

Let’s take our example of the employee bringing an unfair dismissal claim. If that employee was dismissed without any due process or fair procedure, has been out of work for six months and has taken all the necessary steps to mitigate his/her loss, we could realistically propose that the settlement compensation amount, be close as reasonably practicable, to six months’ salary.

4. Cost of Proceedings

However, even with a seemly fool-proof case, and a strong likelihood of being awarded compensation, there will always be inevitable costs for the employee.

The first costs are obviously legal fees. The legal fees will vary, depending on the experience and expertise of the legal team instructed.

There may be urgent financial pressures for the employee, that he/she would prefer to have addressed immediately. The financial circumstances of the employee may put them under pressure to seek an early resolution of matters.

There are always emotional costs for the parties concerned. Litigation, of any kind, is a stressful process, which can take a physical and mental toll. Can a price be put on peace of mind?

There are also reputational costs to be considered by both parties. In the age of the internet, and now public proceedings at the WRC, will an employee be comfortable with their name being associated with a complaint against their employer or former employer. For the employer, will proceedings before the WRC expose a poor workplace culture?

Finally, there are also commercial costs. Ordinarily, for the employer, the time spent defending employment claims can be disruptive to the remaining workforce. It can also prove a distraction for senior management. In most instances, the value of the time spent, if calculated based on the number of hours spent by staff preparing to defend an employment law claim, will very often exceed the amount of compensation that the WRC could, or may award in any event. Is it worth paying a settlement compensation amount to divest a company of an unwelcome distraction?

Conclusion

In summary, while we can provide some guidance as to what parties may consider when determining an appropriate settlement compensation amount, as a private agreement, it is entirely at the discretion of those parties to reach a final agreed sum.

While money isn’t everything, it is important. Nonetheless, there are other factors to be considered in negotiating a settlement agreement, including the proposed termination date, the narrative surrounding departure, the narrative surrounding any dispute, non-derogatory clauses and whether or not the employee concerned will be given a reference, as applicable. In many instances, these individual considerations trump financial concerns for a minority of employees.

At Crushell & Co, we have extensive experience in advising parties on the negotiation and drafting of settlement agreements and severance payments. For more information on how we can assist you, please reach out using the contact details below.

Menopause, Work and Employment Equality Protections

Mon, 24 Jan 2022 06:05:43 GMT

Introduction

People Management recently reported that Members of the British Parliament Women and Equalities Committee, heard that many women who feel they have been discriminated against because they are going through the menopause have to find legal workarounds to argue their case, often having to rely on rules around disability discrimination ( please click here ).

A 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development (CIPD) found that three in five menopausal women- usually aged between 45 and 55- were negatively affected at work and that almost 900,000 women in the UK left their jobs over an undefined period of time because of menopausal symptoms. This could mean that women are leaving businesses “at the peak of their experience” which will “impact productivity”. Women in this age group are likely to be eligible for senior management roles, and so their exit can lessen diversity at executive levels. It can also contribute to the gender pay-gap and feed into a disparity in pensions.

In the UK, under the Equality Act 2010, menopause discrimination is largely covered under three protected characteristics: age, sex and disability discrimination. The Health and Safety at Work Act 1974 provides for safe working, which extends to the working conditions when experiencing menopausal symptoms.

However, what is the position with respect to menopause and legal rights, in Ireland?

Case Law on Menopause in Ireland

Menopause as a disability - McNally v Rotunda

In Ms Siobhan McNally v Rotunda Hospital (EDA2148), Ms McNally brought claims against her employer on grounds of gender and disability alleging victimisation, non-provision of training, failure to provide reasonable accommodation and harassment. On the disability grounds Ms. McNally stated that she suffered from stress and the effects of the menopause. The Rotunda Hospital accepted that Ms. McNally was retired on ill health grounds related to incapacity due to a disability. However, they argued that there was no basis for arguments made in respect of alleged discrimination due to alleged stress or alleged effects of menopause within the six months cognisable period.

Under the Employment Equality Acts

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future, or which is imputed to a person.

Under questioning from the Court, Ms. McNally asserted that the act of her employer in retiring her was an act of harassment within the meaning of the Acts. She said also that it amounted to a failure to afford her a reasonable accommodation in respect of an imputed disability that might have enabled her to remain in the employment. A final determination of the Labour Court awaits ( please click here ).

Menopause and age discrimination - Ann O'Kane v Health Service Executive West

In Ann O'Kane v Health Service Executive West (EDA084), Ms. O’Kane argued that the post she was required to eventual compete for was effectively her own post, which she had satisfactorily occupied for four years. On the appointment of the successful candidate, she argued, her original post was suppressed. Ms. O’Kane held that she was discriminated against on age grounds that the multiple references and questions to her going through menopause substantiated that belief.

While the “menopause” remarks were more or less admitted, nevertheless, given the context and timing of this remark, the Labour Court was not convinced that it represents any convincing evidence of discrimination on age grounds. The Labour Court construed the comments to be reasonable in the circumstances of two colleagues having a general discussion, rather than a career conversation.

The Labour Court accepted that the complainant’s age was not referred to at any stage of the process, finding that Ms. O’Kane had failed to establish primary facts from which inferences of discrimination could be drawn.

Conclusion

While the case law on menopause in Ireland is not so firmly developed to provide explicitly clear references for a deliberation, there are case comparators, from which claims for discrimination due to menopause, whether on the grounds of gender, disability or age, could be supported.

Pregnancy-related discrimination case-law from the European Court of Justice (ECJ) has been used to a considerable extent in hearings in Ireland. One of the key cases, Dekker v Stichting Vormingscentrum voor Jong Volwassenen (ECJ 177/88), states that discriminatory acts related to pregnancy are directly discriminatory on the gender ground and that a pregnant woman cannot be compared to either a sick man or a non-pregnant woman. The ECJ found that since pregnancy is a uniquely female condition, where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive (76/207/EEC), even though there is no male comparator. Cases of pregnancy-related discrimination taken under the Equality Employment Acts are generally taken on the gender ground but may also be taken on the family-status ground or on more than one ground.

It is therefore plausible that, where a woman experiences unfavourable treatment on grounds of menopause, such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive (76/207/EEC), even though there is no male comparator. Cases of menopause-related discrimination could be taken under the Equality Employment Acts on the gender ground but may also be taken on the family-status ground or on more than one ground.

For further information, please contact Crushell & Co at contact@crushell.ie .

Judicial Immunity and the Workplace Relations Commission

Thu, 23 Dec 2021 08:04:48 GMT

Introduction

Can a Judge be held accountable to the Workplace Relations Commission (WRC)? If an individual believes they have been discriminated against by a Judge under the Equal Status Act, 2000, can they refer the matter to the WRC for adjudication?

Interestingly, in A Complainant -V- An Officer of The Court (ADJ-00025566), the complainant referred a matter in accordance with Section 25 of the Equal Status Act, 2000, to the WRC for adjudication complaining that the treatment he received during court proceedings were biased and discriminatory due to the grounds of his race or ethnic origin.

The Adjudication Officer (AO) commenced their decision by noting that there are sufficient judicial remedies to parties where it determined that the conduct of a Judge of the Irish courts was not proper.

The AO went on to note that they were generally satisfied that those remedies do not include referring such a complaint to the WRC for adjudication, however, went on to clarify why, in law, that was the case.

However, the AO also clarified what a 'service' was for the purposes of an equality claim.

Equal Status Act

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

( a) access to and the use of any place,

( b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

( c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

( d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;”

Disposal of goods and provision of services is dealt with by Section 5 and section 5(1) of the Act reads,

“(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 22 deals with the dismissal of claims.

“22. (1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) Not later than 42 days after the Director of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

(4) No further appeal lies, other than an appeal to the High Court on a point of law.”

The AO therefore had to decide whether the exercise of judicial function came within the remit of “services” for the purposes of the Equal Status Act, 2000.

English and Welsh law determinations

The AO cited Judy Walsh’s book, The Equal Status Act 2000/2001, at page 42, where she states:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

The AO went on to note that the Irish case law supporting this proposition was also emphatic. The AO noted the decision in Dec-S2009 -087 Fogarty v Employment Appeals Tribunal where at paragraph 4.8 of the decision the Equality Officer found, “[T]hat the adjudication and decision making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi judicial decision making function which is not subject to the terms of the Equal Status Acts. Therefore I find that any aspect of this complaint which refers to the decision making function of the respondent is misconceived.”.

To the AO, this was a significant finding that supported the view that the complaint was not correctly put before the WRC for consideration. However, the AO went on to note a considerable amount of case law that dealt with the issue of judicial immunity.

Judicial Immunity and Case Law

In Kemmy v Ireland [2009] IEHC 178 the principle of judicial immunity and its purpose was addressed:

“This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.”

The AO the Supreme Court decision in Beatty v The Rent Tribunal & Another [2006] 2 IR 191 where the Court expressly considered whether statutory tribunals were entitled to enjoy immunity from suit and negligence similar to that provided to Judges. Mr. Justice Geoghegan’s majority judgment affirmed that the Rent Tribunal was immune from actions and negligence, where he said,

“even though the respondent is a Tribunal which essentially determines rent disputes as between private parties, it is a statutory body exercising statutory duties in the public interest. In the circumstances, I am quite satisfied that, provided it is purporting to act bona fide within its jurisdiction, it enjoys an immunity from an action in ordinary negligence....In this respect it is in no different position from Court whether such Court be traditionally categorised as superior or inferior”.

The Supreme Court also determined that the absolute immunity on the basis of judicial immunity, for statutory adjudicative bodies was a matter for the legislature who created the body. Therefore, this indicates that prima facie statutory adjudicative bodies enjoy immunity from suit on the basis of the principle of judicial immunity unless there is an express provision countervailing against this in any statutory provision.

The AO noted in Beatty, Mr. Justice Geoghegan suggested that the principle of judicial immunity was not absolute but equally “he had considerable doubt” that an action for misfeasance in public office would lie “in circumstances where the Court or Tribunal was acting within jurisdiction.”

Conclusion

The AO concluded by noting that the matters complained of related to the conduct of a Judge in court proceedings and its decision thereafter. They noted that such matters were not a service or facility available to the public and therefore did not constitute a service as defined under the Equal Status Act, 2000.

Therefore, the AO was satisfied that this claim under the Equal Status Act was misconceived and incorrectly based in law. It was therefore dismissed outright.

Working Without an Employment Permit in Ireland

Wed, 22 Dec 2021 09:38:03 GMT

Introduction

Very often, non-EU or EEA nationals will legally come to Ireland to undertake a short period of work or study. Many return to their home countries. Others seek and obtain permission to continue studying, working or residing in the State. However, for a small minority, for various reasons, their applications to remain in the State is denied, and they find themselves working on an undocumented basis.

An interesting case recently came before the Supreme Court of Ireland which examines a number of issues these undocumented workers face (Sobhy -v- The Chief Appeals Officer & Ors [2021] IESC 81).

Ms Sharda Sobhy was a national of Mauritius who arrived in Ireland in 2008 under a foreign student visa scheme. She resided in the State on a lawful basis until 2012.

She subsequently made a number of applications to remain in the State, however each of these applications were unsuccessful.

Notwithstanding her unsuccessful applications, she continued to live and work in the State on an undocumented basis. Despite being undocumented, she continued to pay PAYE and PRSI. She subsequently brought a challenge against the State on foot of her being denied maternity benefits under the Social Welfare Consolidation Act, 2005, despite having made the necessary contributions to that fund.

The Supreme Court had to determine whether an employee working on an undocumented basis, paying the relevant social welfare contributions, was entitled to the benefits of a State social welfare fund.

Employment Permits Act, 2003

Section 2(1) of the Act of 2003 requires that a foreign national who wishes to work in the State shall have the benefit of a work permit granted under its provisions:

“2.— (1) A foreign national shall not —

(a) enter the service of an employer in the State, or

(b) be in employment in the State,

except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.

Non-EU / EEA students are permitted to reside in the State on a stamp 2 permission and can typically work up to a maximum of 20 hours per week. Ms Sobhy did have the benefit of a student work permit from 2008 until 2012 but it expired and she continued to remain in the State without permission continuing her work uninterrupted.

However, the Supreme Court noted that an employer had an obligation not to hire an individual without them having sufficient credentials to work in the State.

Section 2(2) prohibits an employer from employing a non-national who does not have a work permit:

“(2) A person shall not employ a foreign national in the State except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.”

Section 2(3) provides that a foreign national who works without a permit, and a person who employs a foreign national without a permit, shall be guilty of an offence:

(3) A person who contravenes subsection (1) (2) or (2C) or fails to take the steps specified in subsection (2B) shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(b) if the offence is an offence consisting of a contravention of subsection (2) or (2C) or a failure to take the steps specified in subsection (2B), on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 10 years or both.

Section 2(3A) of the Act of 2003, inserted by the Employment Permits (Amendment) Act 2014, provides that in each case a defence of taking reasonable steps is open to a person charged with the offence, and before that amendment that defence was available only to a person employing a foreign national, and not to the person working without a permit.

The Supreme Court noted, and all parties accepted, that Ms Sobhy did not have a work permit for the relevant years in which she worked in the State post-2012 but did continue to make PAYE and PRSI contributions in the ordinary manner.

Immigration Act, 2004

Control of entry into, and the conditions for residence in, the State is primarily governed by the Immigration Act 2004 (“the Act of 2004”) and for the present purposes the provisions of s. 5 of the Act of 2004 govern entry into and residence in the State of non-EU and EEA nationals.

A person who wishes to obtain leave to be in the State must apply under s. 4 of the Act of 2004 for permission under s. 4(1) and the criteria applicable are set out in s. 4(3). One of the reasons for which an immigration officer is entitled to refuse entry into the State is that the non-national “intends to take up employment in the State, but is not in possession of a valid employment permit (within the meaning of the Employment Permits Act, 2003)”.

Ms. Sobhy did not have permission to be in the State during the relevant years.

Section 5 of the Act of 2004 provides that a non-national, other than a refugee or an asylum seeker, who is in the State without ministerial permission under s. 4 is “for all purposes” unlawfully present in the State:

“5.—(1) No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the Minister.

(2) A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the State.”

Maternity benefit is payable by reason of the provisions of s. 47(5) of the Act of 2005

“(5) Subject to this Chapter, maternity benefit shall be payable to—

(a) a woman, who is an employed contributor , for the period of maternity leave to which she is entitled under section 8 of the Maternity Protection Act 1994 (including any extension of that period by virtue of section 12 of that Act)” (emphasis added).

The phrase “ employed contributor ” was a key to the issue at the heart of this appeal.

The judgment in Foras Áiseanna Saothair v. Abbott (unreported, Supreme Court, Egan J., 23 May 1995) (“FÁS v. Abbott”) was cited, in that under the then relevant provisions of the Social Welfare legislation, a contract which was prohibited by statute could not be termed a “contract of service”, or contract of employment, under the Labour Services Act 1987 or the Social Welfare Consolidation Act 1981.

Exploitative Consequence of Statutory Illegality

The unfairness and potential exploitative consequence of statutory illegality in the enforcement of an employment contract, as set out in Hussein v. The Labour Court [2012] IEHC 364, [2012] 2 I.R. 704, was also highlighted.

The Supreme Court noted that the implication of the above legislation and case law was that there is afforded to employees some protection against employers exploiting their undocumented status by affording them redress to enforce their contractual rights before forums such as the Workplace Relations Commission, Labour Court and civil courts.

However, the Supreme Court noted that the State could not endorse a contract of employment that was founded upon an illegal basis.

“The essential element of a contract is missing, as it cannot be said that either the employer or the employee have chosen to enter into a contract with the State, and the entire social welfare code and the structure of payments, of contributions and benefits created thereby falls outside any contractual nexus but rather arises from the imposition of an obligation and the creation of a fund (the Social Insurance Fund provided by s. 9 of the Act of 2005) where payments are made at a level and subject to conditions and qualifications determined by legislation from time to time.

In a very broad sense there might exist a “contract” in the sense in which Rousseau used the expression “social contract”, but the concept of a contract at common law, or even a contract recognised by statute, is of one between parties who freely by the exchange of promises, or a mutuality of payments, agree that a certain state of affairs is binding upon each of them, and that each of them is entitled to enforce those agreed obligations and rights.

The element of mutual promises, whether supported by separate consideration or the mutuality of the promises, is missing.”

Conclusion

For that reason, the Supreme Court concluded that Ms Sobhy was not entitled to the benefit of maternity payments under the Social Welfare Consolidation Act, 2005.

The Supreme Court noted that the decision could perhaps unwittingly make it once again attractive for an employer to employ an undocumented worker as PAYE and PRSI may not need to be paid.

The Supreme Court further noted that the consequences of criminal prosecution may not be a sufficient deterrent for many employers hiring undocumented workers. It was therefore stated that further legislative clarity or intervention may be required.

Medical Practitioners - Contractors or Employees?

Fri, 10 Dec 2021 08:34:04 GMT

Introduction

A contract of service typically refers to the existence of a typical employer-employee relationship. A contract of service itself, is more commonly known as a contract of employment.

A contract of service refers to the provision of a service by one party to another, without the existence of an employer-employee relationship.

Under a contract for service, the person providing the service is typically self-employed.

Very often, members of the medical profession will prefer to have a contract for service to afford them flexibility in how, when, where and whom they provide their services.

However, what happens if a medical practitioner believes that the relationship is more akin to the typical employer-employee relationship, despite the existence of a contract for service? Will that medical practitioner be in a position to avail of certain provisions or rights afforded to ‘typical’ employees under the various employment legislation?

Determining Employment or Self-Employment

The case of Dr Sheila O’Meehan -v- HSE (UD/19/127), is useful in determining the criteria the Workplace Relations Commission and Labour Court will consider when examining whether a medical practitioner is an employee or a contractor.

In this case, Dr Sheila O’Meehan brought a case against the HSE under the Unfair Dismissals Act. Dr O’Meehan was an experienced general practitioner who worked on a part time basis for almost 3 years at an addiction clinic in Crumlin, Dublin. This clinic came within the remit of the HSE. Dr O’Meehan also occasionally provided GP assistance at clinics in other locations during that period.

The HSE contended that Dr O’Meehan was, at all material times, an independent contractor and not an employee. Therefore, they argued the Unfair Dismissals Act should not apply to her.

Burden of Proof in Determining Employment Status

In situations like this, the burden of proof is on the individual bringing the complaint to demonstrate that they are entitled to pursue a complaint under the relevant Act.

Dr O’Meehan told the Labour Court that she was a PAYE employee of a company called “Winton Medical Limited” which was established by a firm of accountants to facilitate payments to a number of locum general practitioners. Winton Medical Limited, in return, retained 5% of the general practitioner’s income.

When working for the HSE, Dr O’Meehan was paid €60 per hour.

Dr O’Meehan regularly worked between 8 and 24 hours per week for the HSE during the period in question.

Dr O’Meehan submitted copies of revenue documents showing her self-assessment balancing statements for the tax years between 2015 and 2018. It was accepted by Dr O’Meehan that she had never made an application to revenue or the Department of Social Protection, seeking a determination as to her employment status.

She also confirmed that she was not restricted from taking on other work in addition to the hours she worked for the HSE, during the period in question. She said she hadn’t done so because of the demanding nature of her work with the HSE.

It was later confirmed that Dr O’Meehan could take annual leave whenever she wished to do so. There was no need to give any notice to the HSE.

Assessing the Employment Relationship

Having regard to the evidence before it, the Labour Court found that Dr O’Meehan was neither engaged by the HSE on a contract of service nor as an agency worker at the material time, or at any time at all.

The Labour Court noted that, by her own evidence, Dr O’Meehan had knowingly structured her employment affairs with the intention of minimising her exposure to income tax and other statutory deductions.

Furthermore, the Labour Court noted that Dr O’Meehan was free to decline hours for which she had been rostered, she enjoyed full clinical autonomy and was not subject to supervision while conducting her clinics. There was no impediment preventing her from working elsewhere as a general practitioner, in addition to the hours she worked for the HSE.

Dr O’Meehan was also responsible for securing her own professional indemnity cover and could avail of leave whenever she wished to do so.

On that basis, the Labour Court determined that Dr O’Meehan was a contractor and not an employee.

Conclusion

The takeaway for medical practitioners is that, if they do not have a contract of employment, pay their own taxes, set their own hours, enjoy relative autonomy, and can substitute their services, it is less likely they will be construed as ‘employees’ for the purposes of the various employment provisions.

An 'Informed Decision' - Waiver of Employment Rights

Fri, 26 Nov 2021 06:31:43 GMT

Introduction

In a recent High Court case ( Health Service Executive -v- Laya Healthcare LTD [2021] IEHC 737 ), Laya insurance argued that, prior to any decision by a patient to opt to be treated as a private patient, the patient must be fully informed as to the consequences of abandoning the entitlement to be treated as a public patient.

Waiver of Employment Law Rights

Attention was drawn attention to the observations of Simons J. in Board of Management of Malahide Community School v. Conaty [2019] IEHC 486 where he stressed (in the context of a purported waiver of rights under the Unfair Dismissals Act, 1977) that such a waiver would have to be done on an informed basis if it was to be valid. At para. 73 of his judgment, Simons J. stated:-

“…The principle of “informed consent” as set out in the judgements in Hurley v. Royal Yacht Club and Sunday Newspapers Ltd. v. Kinsella (discussed above) apply by analogy. A person can only be said to have waived a statutory right if they do so on an informed basis. If one assumes for the moment that… it is competent for an employee to waive their right of permanent employment by entering into a fixed term contract under section 2(2)(b), it is nevertheless necessary that that waiver be given on the basis of informed consent. There is an implicit obligation on an employer to put an employee on notice that the entering into of a particular contract will entail the loss of statutory rights previously acquired by the employee. A bald statement in the contract to the effect that the Unfair Dismissals Act does not apply to dismissal consisting only of the expiry of the fixed term would not be sufficient…”

Informed Consent and Waiver of Rights

While Mr. Justice Denis McDonald accept that, as counsel for the HSE has stressed, the case law which had been cited by Laya and Irish Life in relation to this issue did not address a decision not to exercise or to waive a statutory right. In this context, Mr. Justice McDonald did not believe that reliance could be placed on the decision of Simons J. in the Conaty unfair dismissal case. In his view, the cases addressing waiver of rights under the Unfair Dismissals Act were sui generis (of their own facts) and could not be applied, by analogy, to the present case.

However, Mr. Justice McDonald did reaffirm that all of the case law shows that courts have been concerned, in a wide variety of situations, to make sure that decisions affecting rights are taken on an informed basis.

Review of Settlement Agreement - Payment of Fees

In an employment law context, the signing of a settlement agreement (often called a 'compromise agreement', 'exit agreement' or 'termination agreement') involves the waiver, by an employee, of their rights to bring certain claims against their employer. Such an agreement is most often proposed by an employer. Therefore, to ensure its enforceability, an employer should ensure that the employee obtains independent legal advice. Towards that end, we recommend that the employee is adequately appraised of the legal consequences of signing such an agreement.

An invoice from the advising solicitor, to the employer directly, for the advice given, will be a record that such advice has been given.

Appeal to Labour Court – Time Limits

Mon, 08 Nov 2021 08:26:11 GMT

Introduction – Appeal to Labour Court

If a party to proceedings at the Workplace Relations Commission is unhappy with the outcome, they may appeal that decision to the Labour Court.

The Rules of the Labour Court 2020 provide that:

“The Court hears appeals under all of the various employment law statutes where an individual worker complains of a breach of their statutory employment rights by their employer. Either or both parties may refer an appeal of an Adjudication Officer’s Decision in employment rights cases to the Labour Court within 42 days of the date of the Adjudication Officer’s Decision, using the Labour Court Employment Rights Appeal Form which is available at www.labourcourt.ie.”

Time Limit for Appeal to Labour Court

The time limit of 42 days starts from and includes the date of the Adjudication Officer’s Decision. For the avoidance of doubt, the date of the Adjudication Officer’s Decision is counted as day 1 of the 42 days.

Appeals sent by post can be given to the Court in the ordinary course of the Court’s business and the day of receipt will be recorded using a date stamp manually applied during the ordinary course of business on the day the appeal is received. Appeals submitted by email at appeals@labourcourt.ie can be made up to 12 midnight on the 42nd day and the date of receipt will be the date and time automatically recorded on the email system.

Where an appeal has not been received within the 42-day period, the appellant can apply to extend the time for bringing an appeal in accordance with Section 44(4) of the Workplace Relations Act, 2015. That application will require to be supported by any relevant argument as part of the written submission required to be made to the Court as part of the substantive appeal.

Extending the Time Limit – Exceptional Circumstances

An appellant, who fails to submit an appeal within the 42-day time period, may be challenged as to the validity of their appeal. In such circumstances, the appellant will need to show there were exceptional circumstances that prevented them from lodging an appeal within the 42 days.

It is settled law that in order to consider an appeal of this nature, the Labour Court must first be satisfied that exceptional circumstances were in existence during the period for the giving of an appeal notice to the Labour Court and the Labour Court must also be satisfied that the exceptional circumstances applying prevented the giving of a notice of an appeal to the Labour Court.

In Eire Continental Trading Company Ltd v Clonmel Foods Ltd (1955) IR170, the Supreme Court considered time limits allowable for the lodgement of an appeal contained within the Rules of the Superior Courts. The appellant in that case noted certain conditions raised by Mr Justice Lavery in his judgement, a judgement with which the Court agreed, which ought to be satisfied:

"1. The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

2. He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of Counsel or Solicitor as to the meaning of the relevant rule was not sufficient.

3. He must establish that an arguable ground of appeal existed."

In Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034), it was noted that:

“ The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.

The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered .”

Conclusion

The burden of proof in establishing the existence of exceptional circumstances rests with the appellant. To discharge that burden the appellant must present clear and cogent evidence to support the contention that exceptional circumstances within the meaning of Section 44(4) of the Workplace Relations Commission Act of 2015 exist and that those circumstances acted so as to prevent the appellant from lodging their appeal in time.

Inference of Discrimination – The Employment Equality Acts

Fri, 05 Nov 2021 08:03:47 GMT

Introduction

In ‘Hyde and Seek Glasnevin - And - Jade Byrne-Hoey’, the issue of an honest belief in the fact that one is being discriminated, on one of the protected grounds under the Employment Equality Acts, and the requirement to prove discrimination in progressing a claim, was examined.

Ms. Byrne-Hoey Hoey felt she was discriminated against on age grounds, in that she was younger than many of her colleagues and had been treated differently when she was given a warning for what was described as a ‘failure to follow a reasonable management instruction on 11 June 2019. Unprofessional behaviour in the workplace’ and she was told that her ‘behaviour in the office was unacceptable and unprofessional’.

Background

This was a cross-appeal by Ms. Byrne-Hoey, (the Employee) and Hyde and Seek Glasnevin Ltd (the Employer), of a Decision by an Adjudication Officer, under the Employment Equality Acts 1998-2015.

The Employee was employed by the Employer as a Childcare Assistant from April 2019 to June 2019.

The Employee lodged a complaint under the Employment Equality Acts with the Workplace Relations Commission, ‘WRC’, that she had been discriminated against contrary to the Employment Equality Acts.

An Adjudication Officer decided that the claim was well-founded and awarded compensation of €2000.

The Employer appealed the Decision. The Employee appealed the quantum awarded.

Employment Equality Acts and the Burden of Proof

S. 6(2)(f) of the Employment Equality Acts provides protection against less favourable treatment based on age.

S. 85A of the Employment Equality Acts states that the burden of proof rests with a complainant in the first instance and that it is only if an inference of discrimination can be drawn from the facts that the burden shifts to a respondent.

As was noted in Margetts v Graham Anthony Ltd, EDA038;

‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.’

In applying this consideration to the instant case, the Labour Court held that the complainant’s age was not sufficient, by itself, to give rise to a claim of discrimination.

As the Labour Court observed in Mitchell v. Southern Health Board (2001) 12 E.L.R. 201, it is only if primary facts are established to the satisfaction of the Labour Court and that they are regarded as of such significance to raise a presumption of discrimination that the burden shifts to the respondent.

In the instant case, no mention was ever made of age in any inter-action between the Employee and the Employer and, in the view of the Labour Court, nothing that was said or done could lead to an inference of different treatment due to an age difference.

Conclusion

Beyond expressing the belief that she was treated differently because of her age, the Employee put forward no arguments to suggest to the Labour Court that age was a factor in her treatment such that the Labour Court could accept that there was an inference of discrimination and that the requirements of s.85A of the Employment Equality Acts had been met.

An argument that the Employee was treated less favourably because she was a probationer and that probation is a proxy for age had even less conviction. At no stage did the Employer do or suggest anything that could give rise to such an inference.

Accordingly, the Labour Court determined that the Employee has not met the requirement to establish a prima facie case of discrimination, the Labour Court did not uphold the Employee’s appeal and did uphold the appeal of the Employer.

Breach of Trust and Confidence by Employee

Mon, 01 Nov 2021 08:51:38 GMT

Introduction

Irish employment case law recognises the value of trust and confidence being present by both parties in an employment relationship. Ordinarily, when the trust and confidence between an employer and employee has been irrevocably broken, the relationship is unsalvageable and may lead to a dismissal or resignation, as applicable.

Breach of Trust and Confidence by Employee - Case Law

In the case of A Worker -v- A Meat Processing Plant (ADJ-00016025), the employee brought a complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977. In summary, the employee was dismissed after 22 years of faultless service. However, it was discovered by her employer that, for the 18 months prior to being detected, the employee had been “clocking in” at 6 a.m. each morning on behalf of her brother, also an employee, who would not present himself at work until 30 minutes later.

An investigation and disciplinary process commenced on the detection of this practice. The employee was found guilty of gross misconduct and her employment was terminated. An appeal was submitted but ultimately rejected.

It had been suggested by the employee that the practice was not as serious as the employer was making it out to be. However, the employer rejected this argument, noting that to suggest the offence was not a serious one, was incorrect. The employer held that the practice was akin to theft and, the only reason why the employer did not describe it as such during the investigation and disciplinary process, was as an act of courtesy to the employee whose long term service had been highly valued until this point. The employer concluded that under the case law (Martin v Audio Video Centre Ltd UD 617/1991; Looney and Co. Ltd UD 843/1984 and Thompson v Power Supermarkets Ltd. UD531/1998) the Adjudicator in determining whether a dismissal is fair or otherwise, should not replace the Respondent’s decision with a decision that she might decide but rather she must have regard to whether the decision fell into a band of reasonable responses to misconduct. It is not relevant that the Complainant did not benefit from the misconduct personally and the monetary value of the fraud is also not relevant. Rather, the relevant consideration is whether trust and confidence had broken down as a result of the misconduct admitted by the Complainant and, if proven, a long unblemished service does not mend that.

The Adjudication Officer noted that this was a very regrettable occurrence given the, hereto, strong bond of trust and confidence between both employer and employee, in each other.

It was acknowledged that the employee had worked with her employer for the majority of her working life. She had never faced any performance or disciplinary issues. She had been promoted within the workplace and was relied upon by the employer to a significant extent. However, the Adjudication Officer noted that her role was to look at the offence in question and decide whether it reasonably came within the definition of misconduct, whether the investigation and disciplinary procedures adopted were fair and whether the response of the employer in dismissing the employee came within a band of reasonable responses to the supposed misconduct.

The Adjudication Officer found that the decision to dismiss the employee for gross misconduct was fair and reasonable under the circumstances. The Adjudication Officer noted that:

" The clocking in process relies on the honesty of employees. They are paid on the basis of a clocked in start time and a clocked-out finish time. To meddle with this with out sanction of the Respondent when the effect of doing so is to defraud the Respondent is a serious offence. It is dishonest and therefore goes to the heart of the bond of trust between employee and employer ."

Breach of Trust and Confidence by Employee - Dismissal

In essence, when there is an absolute break down in trust and confidence between employer and employee, it is most likely that the employment relationship will be terminated by either party. If the employer terminates the employment of the employee, the employee may be entitled to bring a claim of unfair dismissal. If the employee resigns citing the unreasonable behaviour of the employer or breach of contract, which goes to the heart of the employment relationship, the employee may be in a position to bring a claim of unfair dismissal by way of constructive dismissal.

For further information please contact Crushell & Co. Solicitors.

Best Employment Lawyer in Ireland Award

RG343171 — Mon, 01 Nov 2021 07:45:25 GMT

Best in Ireland - Employment Lawyer Award

Crushell & Co were delighted to received first place in the 'Best in Ireland - Employment Lawyers' Award.

Please see here .

Commentary

Grace Walsh, of the 'Best in Ireland' Group, had this to say about Crushell & Co solicitors:

"From legal disputes in the workplace regarding bullying to unfair dismissal and more, get expert advice from a specialist firm in employment: Crushell & Co.

Although it’s only been months since its inception, what’s noteworthy about Crushell & Co is that they focus solely on legal matters in the workplace. Located in Dublin, consultations with them can be made in person, via phone, or video call.

Their full spectrum of employment law services handles many of the most common legal conflicts both employers and employees may encounter. These include workplace injury, workplace defamation, and discrimination, to name a few.

They also offer advice on other legal matters such as contracts of employment, settlement agreements, Irish employment immigration law, and protected disclosures, among others.

Crushell & Co was founded by solicitor Barry Crushell who is a member of the American Bar Association. He is also qualified to practice law in Northern Ireland, England, and Wales."

Diplomatic Immunity and the Workplace Relations Commission

Wed, 20 Oct 2021 09:12:13 GMT

Introduction

The case of A Chauffer -v- An Embassy (ADJ00004364), examined the issue of whether the Workplace Relations Commission has jurisdiction to hear the complaints of employees of foreign embassies based in Ireland, should those embassies claim diplomatic immunity.

In this matter, the complainant was employed as a chauffer with the respondent embassy from 17 February 2014 until his employment was terminated on 31 May 2016.

The respondent embassy, by letter dated 27 June 2018, set out the refusal to submit to the jurisdiction of the Workplace Relations Commission.

Furthermore, the respondent embassy did not attend the scheduled hearing to present their case in relation to the issue of jurisdiction.

Notwithstanding, the Adjudication Officer proceeded to examine the jurisdiction of the Workplace Relations Commission in respect of this matter.

Legal Background - Diplomatic Immunity and Irish Employment Law

The principle of foreign state immunity is recognised in Article 29.3 of the Irish Constitution. Any deviation from that principle must be carefully considered.

There has been a changing trend in the case law.

In Government of Canada v. The Employment Appeals Tribunal and Brian Burke [1992] 2 I.R. 485 the jurisdiction of the Employment Appeals Tribunal (EAT) to hear the case of a dismissed chauffeur was challenged.

The Court upheld the jurisdiction of the EAT but the decision to terminate was, in due course, overturned in the Supreme Court.

The Court held, per McCarthy J. (adopting the dicta of Lord Wilberforce in Congreso del Partido [1983] A.C. 244 at 267) that it must decide;

‘whether the relevant acts upon which the claim is based should, in that context, be considered within an area of activity, trading or commercial, or otherwise of a private law character…or whether it should be considered as having been done outside that area, and within the sphere of government or sovereign activity’.

The Court held unanimously that a chauffeur fell within the restricted doctrine of immunity on the basis that any employee of a diplomatic mission falls;

‘within a bond with his employers that has the effect of involving him in the employing government’s public business….’

Per O’Flaherty J.

This was followed in Buthelezi v. Coy Dlamini and Thobeka Dlamini and The Republic of South Africa DEC-E2016-105 where three tests (similar to those set out by McCarthy J. above) were identified.

In Greene v. Government of United States of America [UD 289/2014, MN 106/201 the activities of a security guard were held to touch upon the actual business or policy of the US government.

Diplomatic Immunity, the EU and Irish Case Law

Turning to more recent cases, we note the decision in Asha Abdulahi Adan v Embassy of the Republic of Kenya (UD 2163/2011).

The complainant in that case was employed as a cleaner. In May 2011, she informed her employer that she was pregnant. Her employer subsequently asked her to lift a heavy item and she said she could not do so due to her pregnancy. On May 30th, 2011 the employer informed her employment would end the following day.

She was told that she would have to re-apply for her job and attend for interview, but she failed to be appointed.

The EAT noted that under the Unfair Dismissals Acts, 1997 to 2007, the burden of proof rested on the employer to either justify the dismissal or claim that the Tribunal had no jurisdiction to hear the case on the grounds of sovereign immunity.

The EAT reviewed the case law on sovereign immunity and referring to the Supreme Court decision in Government of Canada v Employment Appeals Tribunal accepted that the doctrine of absolute sovereign immunity no longer existed.

The European Court of Justice (CJEU) recently concluded that absolute sovereign immunity no longer applied across the EU (see: Ahmed Mahamdia v People’s Republic of Algeria (Case C-154/11) below).

Diplomatic Immunity and Irish Employment Law

In the present case, the Adjudication Officer examined in detail the laws governing diplomatic immunity, with particular reference to both Regulation No. 44/2001 of the European Union and the convention on jurisdictional immunities of states and their property, adopted by the United Nations General Assembly in December 2004.

The following was noted:

Regulation No 44/2001: This Regulation of the European Union was enacted to regulate certain differences between national rules governing jurisdiction and recognition of judgements across Member States.

Regulation 18 (2) provides as follows: Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State”.

Regulation 21 provides as follows: The provisions of this section may be departed from only by an agreement on jurisdiction: 1. which is entered into after the dispute has arisen, or 2. which allows the employee to bring proceedings in courts other than those indicated in this Section”.

The CJEU in Case C – 154/11 Ahmed Mahamdia v People’s Republic of Algeria has interpreted Regulation 18, as follows:

49. It should be recalled that the functions of an embassy, as stated in Article 3 of the Vienna Convention on Diplomatic Relations, consist essentially in representing the sending State, protecting the interests of the sending State, and promoting relations with the receiving state. In the exercise of those functions, the embassy, like any other public entity, can act ‘iure gestionis’ and acquire rights and obligations of a civil nature, in particular as a result of concluding private law contracts. That is the case where it concludes contracts of employment with persons who do not perform functions which fall within the exercise of public powers.

50. As regards the first criterion mentioned in paragraph 48 above, an embassy may be equated with a centre of operations which has the appearance of permancy and contributes to the identification and representation of the State from which it emanates.

51. As regards the second criterion mentioned in that paragraph, it is clear that the subject-matter of the dispute in the main proceedings, namely a dispute in the field of employment relations, has a sufficient link with the functioning of the embassy in question with respect to the management of it’s staff.

52. Consequently, as regards contracts of employment concluded by an embassy on behalf of the State, the embassy is an “establishment” within the meaning of Article 18 (2) of Regulation No 18 (2) 44/2011 where the functions of the employees with whom it concludes those contracts are connected with the management activity carried out by the embassy in the receiving State.

The CJEU went on to find in relation to Regulation 18 (2) that “an embassy of a third state situated in a Member State is an establishment within the meaning of that provision, in a dispute concerning a contract of employment concluded by an embassy on behalf of the sending State, where the functions carried out by the employee do not fall within the exercise of public powers. It is for the national court seised to determine the precise nature of the functions carried out by the employee”.

The CJEU went on to find at Paragraph 61 of it’s Decision as follows: “Article 21 of Regulation No 44/2001 restricts the conclusion by the Parties to a contract of employment of an agreement on jurisdiction. Such an agreement must thus be concluded after the dispute has arisen or, if it was concluded beforehand, must allow the employee to bring proceedings before courts other than those on which those rules confer jurisdiction”.

UN Convention

Article 11 – Contracts of employment –

Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed, in whole or in part, in the territory of that other State.

Paragraph 1 does not apply if:

(a) the employee has been recruited to perform particular functions in the exercise of governmental authority;

(b) the employee is;

(i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;

(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;

(iii) a member of the diplomatic staff of a permanent mission to an international organisation or of a special mission, or is recruited to represent a State at an international conference;

(iv) any other person enjoying diplomatic immunity;

(d) the subject matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the Head of State, the Head of Government or the Minister for Foreign Affairs of the Employer State, such a proceeding would interfere with the security interests of that State;

(e) the employee is a national of the employer state at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; and/or

(f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”

Application to Present Case

Having found that the Workplace Relations Commission did have adjudication to hear the complaints before them by the former embassy chauffer, the Adjudication Officer went on to note that the respondent embassy had breached fair procedure and natural justice in contravention of [insert case law].

The Adjudication Officer found the complaint of unfair dismissal was well founded, awarding compensation of 4 weeks’ wages.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Covert Surveillance of Employees

Thu, 07 Oct 2021 07:56:14 GMT

Hidden cameras in the workplace

An integral element of the employment relationship is the presence of trust and confidence between the employer and the employee. If that trust and confidence is irrevocably broken, either party may be compelled to terminate the relationship.

In the case of A Dental Technician -v- A Dental Practice (ADJ00012025), the employee, a dental technician, discovered that she was being recorded while at work by a hidden camera pointed at her desk. When she discovered the hidden camera, she was physically upset and went on sick leave. She subsequently brought her concerns to the attention of her employer who made light of the incident. That being the case, the employee resigned her role and brought a claim of unfair dismissal by way of constructive dismissal (complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977).

Resigning when discovering hidden camera

The question for the Adjudication Officer in this matter is whether it was fair and reasonable for the employee to terminate her employment on the discovery that she had been secretly recorded by her employers? The employee argued that her employer did not act reasonably in engaging in clandestine surveillance of her. She contended that the monitoring of employees addressed by the Data Protection Commission and Article 29 Working Party (WP55) which specifically requires the disclosure by an employer of any surveillance of employees.

The employee contended that the conduct of the employer in this regard is relevant in assessing the legitimacy of the deployment of any surveillance cameras. The fact that only one party knew the existence and operation of the camera, that it was facing the employee, that it was hidden and that the parties were in contact during the relevant period and yet the employer failed to disclose the existence of the camera, were circumstances justifying her terminating her own employment.

Unfair dismissal and covert surveillance

The employee held that Section 1 of the Unfair Dismissals Act, 1977, envisages two circumstances in which a resignation would be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and, in such circumstances, the employee would be entitled to resign their position. This is often referred to as the “contract test”. This requires that the employer be guilty of such conduct which goes to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the employment contract. The employee thereafter is entitled to consider themselves discharged from any further performance.

Reasons for installing hidden camera at work

In addition, there is a requirement on an employee to exhaust the internal grievance procedure, before terminating their employment. The employer argued that the surveillance camera was installed for the employee’s safety. The employer noted that he was nervous about this employee being on her own on the premises. However, the Adjudication Officer noted that this explanation did not sit easily with her and there had been a total absence of any reference to questions in relation to intruders or any strange occurrences. The Adjudication Officer noted that the camera was directly pointed on the employee and not at the entrance. If the purpose of the camera was to detect the comings and goings of people as the employer stated, why was it not trained on the entrance? The Adjudication Officer went on to note:

“The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated:

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

This reference to the employer’s conduct is understood to represent something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

As no adequate reason was supplied as to why the device, intended for the complainant’s protection needed to be concealed, I cannot accept that it was merely there to protect the complainant. I find that the employer’s actions, though a once off, were sufficiently damaging to the relationship of trust to which both parties are entitled. I consider the respondent’s actions in intending to operate a concealed surveillance system amounts to a breach of the implied term of trust and confidence. I find that there has been a fundamental or repudiatory breach going to the root of the contract, entitling the complainant to resign and claim constructive dismissal. I find that the complainant was justified in her resignation and it meets the tests set out in the above mentioned authorities.

In the circumstances, the decision not to use the grievance procedure does not undermine the complainant’s complaint.”

Conclusion

As a consequence of this breach of trust and confidence, the Adjudication Officer found that the employee was entitled to end the employment relationship. The employee was awarded compensation to the sum of €5,000.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Covid Vaccinations in the Irish Workplace

Tue, 28 Sep 2021 08:16:57 GMT

Vaccinations at work and the law

Ireland’s employment rights legislation protects all employees who are legally employed on a contract of service basis. Vaccination status does not reduce the established employment rights that are afforded to employees.

Where an individual believes they are being deprived of employment rights applicable to employees they may refer a complaint to the Workplace Relations Commission (WRC) where the matter can be dealt with by way of mediation or adjudication leading to a decision that is enforceable through the District Court. WRC inspectors can also be asked to investigate certain breaches.

Vaccinations at work - safety protocols

The Work Safely Protocol was recently updated to reflect information learned over the course of the COVID-19 pandemic. This revised Protocol incorporates current advice on the Public Health measures needed to reduce the spread of COVID-19 in the community and in workplaces and includes information on wearing of masks, ventilation of workplaces, vaccinations and antigen testing.

The Protocol is applicable to all sectors of the economy and sets out the minimum measures required in every workplace to prevent the spread of Covid-19 and to facilitate the re-opening of workplaces as well as the ongoing safe operation of those workplaces. All employers and employees need to continue to implement the measures set out in the Protocol. The updates Work Safely Protocol also offers some general guidance for employers around vaccinations in section D14 of the Protocol.

The decision to get a vaccination against COVID-19 is voluntary. If any employee decides not to avail of the offer of a vaccination, an employer must review their workplace safety and health risk assessment and decide whether the employee can carry out their work without vaccination, and what other protective measures might be needed.

Vaccinations at work - advice to employers

The Health and Safety Authority (HAS) can offer advice and guidance to employers on conducting risk assessments and the Workplace Contact Unit in the HAS can deal with complaints and queries from both employers and employees about the application of the Work Safely Protocol at their place of work. However, the Health and Safety Authority will not be able to offer advice on what work should be assigned to individual employees based on their vaccination status, an employer’s workplace health and safety risk assessment could consider an individual’s vaccine status, if this information has been supplied by the employee.

Fundamentally, the decision to get a vaccination is voluntary and there are no plans to make vaccinations mandatory. Employers will have to bear this in mind when undertaking risk assessments and the organisation of work activities. Communication between employers and employees is important to identify any potential problems.

Vaccinations at work - competing obligations

A balance exists between an employer’s legal obligation to protect the health of their employees and maintain a safe place of work and an employees’ right around privacy of their medical information. In this regard, in some circumstances, employers may be justified in requiring employees to inform them that they have been vaccinated. Implementation of such a stringent requirement in a workplace, would require a strong justification based on necessity, proportionality and on an assessment of risk.

This should take into consideration specific organisational factors such as the presence of vulnerable persons in the workplace, any reasons the employee might potentially have for not disclosing such information and any directions or guidance of the public health authorities.

Can an employer make an employee get a vaccination?

If an employee decided they do not wish to avail of the vaccination, an employer cannot compel them to do so. In this context, the employer must review their risk assessment and decide whether or not the employee can carry out their work without vaccination, and what other protective measures may be needed. There may be certain circumstances where it is deemed that, for their own safety, an unvaccinated person is not safe to perform certain tasks and, in such circumstances, the employer may have no option but to redeploy the worker. This decision would have to be agreed between the employer and the employee.

Conclusion

While the Health and Safety Authority cannot arbitrate on the particular role that an employee can be asked to undertake arising from a risk assessment, an employer can contact the Health and Safety Authority for advice on how best to carry out a risk assessment and comply with the Protocol. Separately, both employers and employees can access the services of the Workplace Relations Commission for advice on any work relations issue that might arise.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Unfair Dismissal - Compensation Considerations

Sun, 05 Sep 2021 09:38:24 GMT

Unfair Dismissal - Compensation

In most circumstances, when an individual brings a claim of unfair dismissal, if successful, they may be awarded loss of earnings from the termination date until they obtain new employment. In theory, a claim under the Unfair Dismissals Act can result in an award of up to 2 years’ salary, however these awards are quite rare.

However, the case of An Optical Assistant -v- Retail Optical Shop (ADJ00018205), highlights the considerations an Adjudication Officer will factor when deciding whether or not to award a higher compensation amount than the loss of earnings.

Background

The complainant employee commenced employment with the respondent company on 01 April 2014. On 15 November 2018, she received a solicitor’s letter, purportedly on behalf of the complainant, enclosing her P45. On the P45 document her end of employment date was given as 03 November 2018. The letter contained a detailed series of questions concerning her employment status, who her employer was, details of her contact of employment and other information that would have ordinarily been provided for previously under the Terms of Employment (Information) Act, 1994. The complainant employee was most perplexed as there had been no formal notice of termination of employment, no redundancy process or investigation or disciplinary process.

In response, the respondent company countered that, having recently acquired the shop from which the complainant employee purportedly worked, they discovered that a number of individuals on the payroll were not working at the store and therefore their employment was terminated.

One of the directors of the complainant company noted that this termination was part of a “tidying up” process and that the individual concerned was never an actual employee of the store in question.

Other Factors - Award of Compensation

The Adjudication Officer in this matter noted that this case was governed by the Unfair Dismissals Act, 1997 supported by SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures and the very considerable body of precedent law in these cases. The case law from the Employment Appeals Tribunal, the Labour Court and the higher courts emphasised the paramount role of the rules of natural justice in all cases. The Adjudication Officer noted that, from the evidence given, it was clear that the complainant had been an employee. However, she was a low ranking employee and had, in effect, to his view, become “collateral damage” in the main commercial dispute between certain directors. Proper procedures of formal investigation, meetings to consider her status and the opportunity of an appeal did not take place prior to any decision to dismiss the complainant employee. The issuing of the P45 constituted a dismissal.

Award of Compensation under Unfair Dismissals Act

The Adjudication Officer found that no rules of natural justice were observed. That being the case, the Adjudication Officer deemed that one year’s gross salary, being approximately €30,000, is an appropriate award given that proper procedure was not followed in any fashion whatsoever.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Date of Resignation - Immediate Effect or Notice Period?

Sun, 05 Sep 2021 09:28:38 GMT

Constructive Dismissal Termination Date

When pursuing a claim for unfair dismissal, the date of dismissal can often be seminal to whether a claim progresses or not. Ordinarily, a complainant employee has 6 months from the date of the termination of employment to bring a claim to the Workplace Relations Commission.

If a complainant employee fails to bring the complaint within 6 months, it can often be extremely difficult for them to prove that there were extenuating circumstances justifying the delay.

A dilemma that faces many individuals who intend to bring a claim of unfair dismissal by way of constructive dismissal, is whether or not they should resign with immediate effect or give their notice period.

In general, an employee will need to demonstrate that conditions were so intolerable, they had no other option but to resign, if they are to pursue a successful claim of unfair dismissal by way of constructive dismissal. That being the case, they’re working their notice period, can often be indicative of a “tolerable” working environment. In short, if an employee is planning to bring a claim of unfair dismissal by way of constructive dismissal, it will hamper their case if they work their notice period.

Termination Date – Case Law

However, a case recently came before the Workplace Relations Commission (A Care Worker -v- A Care Provider ADJ00011215), in which the complainant resigned in the following terms: “I hereby tender my resignation with [the company] with immediate effect. In line with my notice period, my last working day will be 17 April 2017”. This resignation letter was submitted on 05 April 2017. The question to be determined by the Adjudication Officer of the Workplace Relations Commission, was whether the date of dismissal was 05 April 2017 or 17 April 2017.

If it was 05 April 2017, the complaint was lodged outside the 6 month limitation period provided by Section 8 of the Unfair Dismissals Act. If the date of dismissal was held as 17 April 2017, then the complaint was made within 6 months.

The respondent referred to paras 21.72 to 21.79 of Redmond on Dismissal Law, 3rd edition. It referred to Stamp v McGrath UD 1243/1983 which held that the reference to “date of dismissal” in section 1(b) [i.e. the inclusion of a contractual or statutory notice period] applied only to a dismissal by an employer and not where an employee resigns. In Stamp v McGrath, the EAT held that the employee was not able to count their contractual notice to bring the claim within the six-month limitation period. The respondent submitted that Stamp v McGrath applied to all cases of constructive dismissal, i.e. with or without notice. A notice period should be discounted in a case of constructive dismissal.

The respondent further relied on McManus v St Vincent’s University Hospital UD 2270/2011 which held “time starts to run from the date of termination … and in this instance the time started to run at the date the resignation is tendered, as was always intended by the claimant, and not disclosed on the P45.” The respondent relied on ADJ-00002571. In reply, the complainant relied on the definition of ‘date of dismissal’ in section 1(a), stating that the statutory date of dismissal was the 17th April 2017.

In assessing the evidence in this instance, the Adjudication Officer noted that this is not a case where the employee ends the employment relationship on one date and seeks to rely on a contractual or statutory notice period to hold that there is a later date of dismissal (as arose in Stamp v McGrath).

In this case, the complainant resigned “with immediate effect” and states “her last working day will be the 17th April 2017.”

In Shinkwin v Millett EED044, the Labour Court held:

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.”

Termination Date - Unfair Dismissals Act

Section 1 of the Unfair Dismissals Act provides:

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973…”

Application

In respect of this preliminary matter, the Adjudication Officer decided that the date of dismissal was 17 April 2017 and the complaint was referred to the Workplace Relations Commission within the 6 month limitation period. By working her notice period and being paid accordingly, the termination date was 17 April 2017.

Based on the facts of this case, the Adjudication Officer awarded the complainant employee redress of €9,000.

There were many extenuating circumstances that gave rise to this successful claim of unfair dismissal by way of constructive dismissal. Most unusually, the complainant employee was successful in her claim despite serving her resignation letter and agreeing to work her notice period.

Further Information

For further information, please contact the author of this article, Barry Crushell .

What is Gross Misconduct under Irish Law?

Sun, 29 Aug 2021 08:27:31 GMT

Defining Gross Misconduct

The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes “gross misconduct” justifying summary dismissal.

In this regard, I note that the Employment Appeals Tribunal (EAT) held in the case of Desmond Brennan -v- Institute of Technology Carlow UD281/2000 that:

“Lawyers use the adjective “gross” in limited cases. “Gross negligence” means negligence of a very high degree, and quite different from ordinary negligence which can happen quite easily.

Similarly, “gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature. The word used in s.6(4)(b) of the Unfair Dismissals Act is “conduct”, which is a neutral word, by contrast with the word “misconduct” used in the Minimum Notice and Terms of Employment Act to justify dismissal without notice.

The use of these two words in related statutes suggest two different standards, and over the years the Irish Courts have often found that the nature of an employee's conduct was such as to justify dismissal, but not to justify summary dismissal.

The words “gross misconduct” must therefore mean something even more serious."

Gross Misconduct - Conduct Warranting Dismissal

This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

"Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so."

Gross Misconduct - Serious Breach of Trust and Confidence

Also see Moore v Knox Hotel and Resort Ltd, UD 27/2004, where the EAT stated that summary dismissal as a consequence of gross misconduct could be justified when the trust and confidence between the parties had been irrevocably broken:

"[The claimant's actions] destroyed the respondent's trust and confidence in the claimant and rendered the continuation of that employment relationship impossible, thereby justifying her […] dismissal”.

Justifying Dismissal for Gross Misconduct

As to whether there were substantial grounds for an employee’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

Further Information

For further information, please contact the author of this article, Barry Crushell .

Reinstatement under the Unfair Dismissals Act

Fri, 27 Aug 2021 06:58:07 GMT

Redress under the Unfair Dismissals Act

Ordinarily, when an individual makes a claim of unfair dismissal, they will be asked if they are seeking reinstatement, re-engagement or compensation. The vast majority of employees ordinarily seek just compensation. This is usually driven by a personal desire not to return to the same workplace.

However, there are occasions when employees do seek reinstatement or re-engagement. In many instances, this motivation is driven by a desire to resume employment with the former employer so as to avail of the ancillary benefit schemes that may have previously been on offer (e.g. pension scheme, health insurance scheme, life cover etc.).

However, given the often acrimonious circumstances that led to a dismissal, the Workplace Relations Commission tends not to recommend reinstatement or re-engagement, in the majority of cases. Compensation is usually considered the most appropriate form of redress.

In this article, we explain why.

Reinstatement under the Unfair Dismissals Act

The Unfair Dismissals Act, 1977 as amended describes reinstatement as follows at section 7(a):

7.— (1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following, the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal…”

In A Bus Driver -v- A Bus Service Provider (ADJ00023589), the complainant employee sought reinstatement as the appropriate form of redress. The Workplace Relations Commission determined that, having successfully pursued his claim of unfair dismissal, he should be compensated rather than reinstated.

The Adjudication Officer noted that:

“Having considered all the circumstances and evidence in this case I believe that the appropriate remedy in this case is reinstatement to the position he held on 13 August 2019.

Reinstatement means that Complainant should return to his original position with the Respondent and be treated in all respects as if he had not been dismissed.”

Appeal to Labour Court

The Workplace Relations Commission determined that the employee should be reinstated to his original position with the respondent company and be treated, in all respects, as if he had not been dismissed. The respondent employer, Bus Eireann, appealed this decision to the Labour Court, noting that reinstatement was not an appropriate remedy under the circumstances.

The Labour Court noted that reinstatement is generally granted where the employee is found not to have contributed to their dismissal. In this case, there were ongoing issues with the manner in which the complainant was conducting himself while carrying out his duties. It was the position of Bus Eireann that these issues were raised with the complainant employee and that he failed to address them satisfactorily. In those circumstances, the Labour Court accepted that the respondent’s position, that the trust and confidence between the parties was irrevocably broken, was accepted. The respondent noted that there were trust issues that would make his return to the workplace unviable and therefore neither reinstatement nor re-engagement were appropriate remedies.

That being the case, the Labour Court considered compensation to be the appropriate form of redress and, taking into account the loss being claimed on all other relevant factors, determined that the appropriate compensation was €5,000.

Conclusion

The takeaway for both employers and employees is that, while reinstatement or re-engagement is, in theory, an available remedy to a successful complainant, given the often acrimonious circumstances leading to the termination of employment, the Workplace Relations Commission and Labour Court will be very slow to recommend that an employee be returned to the workplace.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Constructive Dismissal v Resignation

Tue, 24 Aug 2021 07:42:19 GMT

Are all Resignations Constructive Dismissals?

The Unfair Dismissals Act envisages two situations whereby a termination of the employment relationship can occur. In the first situation, the employer ends the employment relationship. In general, an employer will be required to prove that the ending of the employment relationship was fair and reasonable which will usually result in them citing conduct, competence, capability or redundancy. The employment relationship can also be ended by the employee. This is normally effected by the employee handing in their notice. However, is there a legal difference between a resignation and constructive dismissal?

What is 'Constructive Dismissal'?

Constructive dismissal arises whereby, owing to a breach in the contract of employment or the unreasonable behaviour of the employer, the employee feels they have no other option but to resign. Simply put, in the eyes of the law, the decision by the employee to terminate the employment relationship was not one freely taken as the circumstances compelled them to take this drastic decision.

However, this is in contrast to a resignation, whereby the employee ends the employment relationship of their own free will, without any extenuating circumstances leading to that decision.

Irish Employment Law - Constructive Dismissal v Resignation

A case recently came before the Workplace Relations Commission (An Employee v An Employer (ADJ00019299) ) wherein an employee resigned and then later claimed he was constructively dismissed. He brought a claim of unfair dismissal by way of constructive dismissal, noting, at the adjudication, that he had raised certain issues with his employer in advance of that resignation.

However, it was noted that the issues raised were dealt with in an informal manner, the employee concerned was afforded the opportunity to raise a formal grievance which he declined.

Furthermore, when tendering his resignation letter, he made no reference to any extenuating or difficult circumstances compelling him to make this decision.

In addition, he remained in the employment of the company serving his notice period.

In these circumstances, the Adjudication Officer deemed that the working conditions were not so intolerable that the employee had no other option but to resign.

Burden of Proof for a Constructive Dismissal Claim

There is a difference between a resignation and constructive dismissal. This is well established in law. The complainant’s situation was an example of the former.

There is a “high bar” for employees in constructive dismissal cases - Katrina Burns v ACM Community Development Society Ltd – UD2166/2011.

There is abundant case law on the need to exhaust internal processes before taking the final step of resignation. To ground a claim for constructive dismissal the employer’s behaviour should be “so intolerable that it justifies the claimant’s resignation and constitutes something that represents a repudiation of the contract of employment. A contract of employment is like any contract in that a party to it may not simply walk away from it for no reason” – see A Care Worker v A Health Service Provider (2017) ADJ-00005216.

As pointed out in Dr Mary Redmond’s well known employment law text book, Dismissal Law in Ireland, Dr Redmond has stated that there is “something of a mirror image between constructive dismissal and ordinary dismissal….Just as an employer, for reasons of fairness and justice, must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve the grievance. Dr. Redmond concludes that it is “imperative” that an employee do so before resigning.

The Supreme Court has held that the conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ – decision of Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61.

Drafting a Resignation Letter for a Constructive Dismissal Claim

When an employee resigns in the normal manner, tendering a resignation letter that makes no reference to any extenuating circumstances, and serves their notice period, it will be very difficult for them to later bring a claim of unfair dismissal by way of constructive dismissal. An Adjudication Officer, in order to find for an employee claiming constructive dismissal, will need to see evidence that, at the time of resigning, the employee had no other option but to end the employment relationship as a consequence of their breach of the contract of employment or the unreasonable behaviour of the employer.

Before resigning, we always advise employees to seek legal advice to ensure that the manner in which that resignation takes place, is in accordance with the accepted standards for a subsequent claim of unfair dismissal by way of constructive dismissal, if such a resignation is prompted by the behaviour of the employer.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Is Mistreatment Discrimination?

Fri, 20 Aug 2021 10:52:00 GMT

When does mistreatment amount to discrimination?

A matter recently came before the Labour Court which examined the criteria necessary to prove a claim of discrimination. The complainant employee in this matter (Ms Violeta Cucovic -v- Centric Health Primary Care Limited EDA2125) contended she was discriminated against on grounds of her gender, civil status, religion, age and race. This matter had already been adjudicated on by the Workplace Relations Commission which did not find in her favour.

Allegations of discrimination

The complainant employee made a range of allegations during the course of the Labour Court hearing impugning the honesty and integrity of various named individuals she previously worked with. However, the Labour Court had to decide whether the mistreatment complained of arose specifically because of her having a different gender, civil status, religion, age or race to her named colleagues.

Discrimination and Irish case law

Section 85A of the Act provides for the allocation of the probative burden as between parties. Subsection (1) of that section provides: -

“(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The established test for deciding if the probative burden shifts by application of this subsection is that formulated by this Court in Southern Health Board v Mitchell [2001] E.L.R. 201. Here the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof.

The Court held: -

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

The Court later elaborated on the application of that test in Determination EDA0821, Cork City Council v McCarthy and commented as follows:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Mistreatment v discrimination

The respondent employer noted that a number of allegations had been made against their staff but, notwithstanding the accuracy of those allegations, went on to note that, even if the allegations the complainant cited were true, they could not be held to amount to behaviour which constituted discrimination within the meaning of the Employment Equality Acts on any of the protected grounds.

The Labour Court agreed and noted that no submission had been made by the complainant which detailed that the treatment of her was different to that treatment received by any named comparator of a different gender, civil status, religion, age or race. Although the Labour Court did concede that there may have been an acrimonious relationship between the complainant employee and a number of her colleagues, these differences did not arise specifically because of her gender, civil status, religion, age or race. That being the case, the Labour Court agreed with the Workplace Relations Commission that the complainant employee had failed to discharge the burden of proof resting upon her in accordance with Section 85(a) of the Employment Equality Act.

Conclusion

The takeaway for both employers and employees is that, although workplace disputes do exist, an employee will need to show very specific evidence that the mistreatment they are receiving from their employer or colleagues is because of one of their protected characteristics, if they are to be successful in raising a complaint under the Employment Equality Act.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Agency Workers and Constructive Dismissal

Tue, 17 Aug 2021 09:05:44 GMT

Introduction

A job for life is now the market exception. Previously, employees would join a company and expect to remain with that company benefitting from promotions and salary increases until their retirement. However, as society has changed, so have our methods of working. The gig economy has exploded and workers are now in a more precarious position than they ever were. A number of intermediary employment agencies have established themselves in order to source workers and provide their services to a third party. However, what happens when a worker subscribes to an employment agency and that agency fails to provide them with any work? Can they consider themselves to be constructively dismissed?

Agency Worker Rights

In A Warehouse Operative -v- An Agency Recruitment Company (ADJ00014942), the respondent company took on the worker on what was intended to be a full time basis, subsequently being subcontracted to a third party company. However, at a point in time, that third party company no longer had any work available for the complainant. The third party company therefore ended his employment with them. The complainant worker was not provided with any alternative work by the employment agency and therefore resigned.

Agency Worker and Unfair Dismissal

The complainant understood that his rights were protected by reason of Section 13 of the Unfair Dismissals Act of 1993 which states :-

“13.- Where, whether before on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third party (whether or not the third person is a party to the contract and whether or not the third party pays the wages or salary of the individual in respect of the work or service), then for the purposes of the Principal Act, as respects a dismissal occurring after such commencement-

The individual shall be deemed to be an employee employed by the third person under a Contract of Employment,
If the Contract was made before the commencement, it shall be deemed to have been made upon such commencement, and
Any redress under the Principal Act for Unfair Dismissal of the individual under the Contract shall be awarded against the third party.”

Agency Worker and Alternative Employment

The Adjudication Officer noted that there was no evidence to suggest that there was any active attempt by the employment agency to find alternative employment for the worker. The employment agency was described of washing their hands of their obligations to provide the worker with alternative employment by suggesting that the worker was difficult, stubborn and refusing to consider alternative options.

The Adjudication Officer noted:

“It appears to me that the limited email communication does not bear witness to any attempt by this Employer to perform it’s duty of care to the Employee. I note that the Contract of Employment allows for no liability attaching should it fail to offer opportunities but I do not accept that this is covered in this situation where the Complainant was just not fully engaged with by the employer one way or another .

In the circumstances, I accept that the Complainant lost trust in the Employer and I accept that the Employee was in all the circumstances entitled to consider the conduct of the Employer to be such that the Employee was entitled to terminate his employment and it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997). The Employment was terminated by the act of issuing a Workplace Relations Complaint Form on the 26th of May 2018. The Complainant was therefore Constructively dismissed.”

Redress to Agency Worker

That being the case, the Adjudication Officer made redress in the form of compensation for the remuneration loss for a 20-week period to allow for the obtaining of alternative employment in due course. In that respect, the Adjudication Officer awarded the complainant worker €8,120.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Protected Disclosures, Qualifying Disclosure and Service Requirements

Tue, 27 Jul 2021 07:29:27 GMT

Protection Disclosure and Service Requirement

Ordinarily, an employee needs at least 12 months’ service in order to bring a claim under the Unfair Dismissals Act (the Act). However, that service requirement can be negated if an employee can show that they were dismissed for their having raised a protected disclosure.

In A General Manager -v- A Golf Club (ADJ0017277), the general manager of a golf club claimed he had been unfairly dismissed having raised a protected disclosure. He had less than 12 months’ service.

The Adjudication Officer in this matter had to make a determination as to whether or not the so called “disclosures” amounted to protected disclosures for the purposes of the Act.

The Adjudication Officer pointed to the following relevant laws and provisions.

Section 6 of Unfair Dismissal Act

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(ba) the employee having made a protected disclosure,

The definition of what is a Protected Disclosure must rely on what is set out in the Protected Disclosures Act, 2014.

Section 5 of the Protected Disclosures Act

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 .

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer .

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

Making a ‘Protected Disclosure’

The complainant in this matter had raised a number of health and safety concerns in relation to the management of the golf club. These included electrical testing, legionella testing and fire safety concerns. The respondent golf club noted that these concerns had been raised by the general manager and others previously. There were no revelation, they claimed.

Conclusion

The Adjudication Officer found that, as part of his general duties, the complainant was required to report health and safety concerns to the management committee on an ongoing basis. Therefore, these revelations were part of his normal ambit of responsibility. That being the case, the Adjudication Officer found that the complainant had not made a protected disclosure worthy of the benefits of the Protected Disclosures Act.

As the complainant did not have the necessary 12 months’ service to bring a complaint under the Unfair Dismissals Act, the Adjudication Officer held that there was no other option but to find that the complaint was not well founded.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Failure to use Internal Grievance Procedure

Sat, 24 Jul 2021 09:04:04 GMT

Constructive Dismissal and Failure to use Internal Grievance Procedure

In relation to constructive dismissal the Adjudicator in A Maintenance Supervisor v A Charity (ADJ 00002881) set out a comprehensive review which is worth quoting.

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…”

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

The reasonableness test assesses the conduct of the employer and whether it:

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

Reasonableness - Failure to use Internal Grievance Procedure

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The Tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that:

“the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

Conclusion - Failure to use Internal Grievance Procedure

In summary therefore, a failure to use internal procedures prior to a resignation must be considered carefully by an Adjudicator in any consideration of a constructive dismissal.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Self-Employment under Irish Law

Fri, 23 Jul 2021 14:26:54 GMT

Self-employment Law Resources:

Employed or Self-employed? Determining Employment Status
Self-Employment under Irish Law
Worker or Self Employed – The Uber Judgment
Self-employment Law Solicitor

Legal Definition of 'Employee'

The legal definition of what constitutes an employee varies, depending on the piece of legislation being relied upon. Virtually all employment legislation refers to an employee as being somebody who works under a ‘Contract of Employment’. The Terms of Employment (Information) Act, 1994, Section 1, defines a Contract of Employment as:

“a contract of service of apprenticeship and any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971 and is acting in the course of that business to do or perform personally any work or service for a third party (whether or not the third person is a party to the contract)”.

A similar definition is provided for in the legislation on statutory notice periods, unfair dismissal, redundancy, working time, maternity protection, adoptive leave, carer’s leave, parental leave, protection of young workers, part time workers and transfer of undertakings. This definition certainly covers agency workers and apprentices but could be regarded as excluding, in totality, those who are self-employed and most casual workers.

A wider definition applies in two Acts relating to wages. Both the Payment of Wages Act, 1991 and the National Minimum Wage Act, 2000 apply to contracts where an individual has agreed with another person to do or perform personally any work or service for a third party whose status, by virtue of the contract, is not that of a client or customer or any profession or business undertaking carried on by the individual or that person or a third person.

A more expansive definition is also employed in the Employment Equality Act, 1998 which includes contracts whereby:

“an individual agrees with another person personally to execute any work or service for that person”.

The idea of personal services

At the core of the definition of a contract of employment is the requirement for the employee to personally execute the work. It is suggested that the boundary of labour law should be fixed by this requirement and that the work be performed personally as opposed to contracts that permit or expect the contractor to use substitutes or to employ others to do the work.

Equipment and materials

Generally, employers will be required to supply employees with the equipment and materials necessary to perform the work. In Tierney –v- An Post, the fact that the materials utilised were provided and maintained by the workers in question, was a significant factor in the court concluding that the workers did not meet the threshold of employee.

Intention of the parties

I n many contracts, the parties themselves may use particular labels, most commonly that one is an employee, an independent contractor or an employer. However the court will disregard such labels if they do not, in fact, correspond with reality. In Castleisland Cattle Breeding Society –v- Minister for Social and Family Affairs, the Supreme Court held that, notwithstanding the requirement to examine the terms of the written contract in determining whether a contract was one of service or for services, an appeals officer was bound to examine and have regard to what was the real arrangement on a day to day basis between the parties.

It is also worth noting that, in the case of Millen –v- Presbyterian Church in Ireland, it was determined that a minister of the Presbyterian church was not an employee within the meaning of the Terms of Employment Act, 1994, on account of being issued a P60. It was held that the issuing of such material, that may indicate an employment relationship, would not be determinative and that the working relationship would need to be examined in its totality.

What is a 'Worker?

These wider definitions give much rise to a practice whereby increasing, an individual performing work, is not categorised as an employee but is instead defined as a “worker”. The definition of worker or category of may include a group sometimes referred to as the dependent self-employed, self-employed individuals who most likely enter into contracts to perform work personally for a single entity who have a degree of dependents that is essentially the same as that of employees and who have no regular profession or business of their own. This concept of “worker” is formulated in the same terms as those that are used in the Payment of Wages Act, 1991.

What is a 'Worker' under European Law?

The European Court of Justice recently gave a preliminary ruling on a reference from the UK Employment Tribunal in the case of B v Yodel Delivery Network Limited regarding determination of worker status. The ECJ rules that the definition of worker status applied by the UK courts is not incompatible with EU law, specifically the working time directive. The ECJ held that the working time directive must be interpreted as precluding a person engaged by is putative employer under a services agreement which stipulates that he is a self-employed independent contractor from being classified as a worker where such person is afforded discretion to use sub-contractors or substitutes to perform the service which they are undertaking to provide, to accept or not accept the various tasks offered by their putative employer or unilaterally set the maximum number of those tasks to provide their services to any third party, including direct competitors of the putative employer, and to fix their own hours of work. The ECJ went on to say that the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person in return for which he or she receives a remuneration. The classification of an independent contractor under national law does not prevent that person being classified as an employee within the meaning of EU law if their independence is merely notional thereby disguising an employment relationship.

What is 'Self-Employed' under Irish Case Law?

The leading Irish authority in this area is the Supreme Court decision in Henry Denny & Sons –v- Minister for Social Welfare. Here a worker was hired as an in-house demonstrator, demonstrating and marketing the company’s products in supermarkets. In coming to a decision, Justice Keane referred to the English decision of Market Investigations –v- Minister of Social Security where he noted that the English courts asserted that there was no exhaustive list which could be compiled of considerations which are relevant in determining the question of whether a person is or is not on business on his or her own account and could not apply strict rules to be laid out as to the relative weight which the various considerations should carry. Justice Keane concluded that:

“while each case must be determined in light of its particular facts and circumstances, in general, a person would be regarded as providing his/her services under a contract of service and not as an independent contractor where he/she is performing those services for another person and not for himself/herself. A degree of control exercised over how the work is to be performed, although a factor to be taken account, is not decisive. The infirms that the person is engaged in his business or his/her own account can merely be more readily drawn where he/she provides the necessary premises or equipment or some other form of investment where he/she employs others to assist in the business and where the profit where he/she derives from the business is dependent on the efficiency with which it is conducted by him/her”.

A second informative case was that of Minister for Agriculture and Food –v- Barry. The court examined whether a mutuality of obligation existed between the parties. This approach stresses that, without the existence of reciprocal promises between the parties, the relationship lacks a genuine contractual character. However, the fact that the mutuality of obligation approach was an important filter, in its absence the court need not go further in examining the relationship, the existence of such an obligation could not be determinative of the issue. The court went on to say that there was no “one size fits all” test in circumstances where the facts before them were complicated. The court went on to note that determining whether an individual was a contractor or an employee could not be determined by testing the facts against some rigid formulaic way. However, appropriate inferences could be drawn from those facts leading to a particular conclusion.

A third determinative case is that of Ready Mixed Concrete Limited –v- Minister for Pensions and National Insurance. Judge McKenna adopted an open end approach to the question of determining employee status. According to Judge McKenna, a contract of service exists if three conditions are fulfilled. First, the worker agrees that in consideration of a wage or other remuneration, he/she will provide his/her own work and skill in the performance of some service to the putative employer. Secondly, the worker agrees, expressly or implicitly that, in the performance of that service, he/she will be the subject to the other’s control in a sufficient degree to make the other their master. Thirdly, the other provisions of the contract are consistent with its being a contract of service, that the worker must be obliged to provide his/her own work and skill. Freedom to do a job by one’s own hand or by another’s is inconsistent with a contract of service, though a limited allocation of power or delegation may not be. Under the Ready Mix Concrete approach, the degree of autonomy an individual has to perform the work for which they have been contracts, is determinative.

Given the last of precision with which the legislation has defined a contract of employment, it has fallen to the courts to flesh out this concept even further. The courts have developed a number of tests to use in deciding whether a contract of employment exists. However, while these tests provide a useful framework and are helpful as reference points, ultimately the courts have not been able to develop a particularly sound consensual distinction between employment and self-employment and cases tend to turn on their overall factual matrix. There are a number of tests worth noting.

Self-Employment under the 'Control Test'

One of the first tests developed by the courts focused on the extent to which, under the terms of the contract, the putative employer has control over the worker. In Yewens –v- Noakes, it was held that:

“a servant is a person subject to the command of his master as to the manner in which he shall do his work”.

In Roche –v- Kelly, Justice Walsh held that in a master/servant relationship, the master must have the right to tell the servant what to do and how to do it whether or not he exercises that right. Although the idea of a tight inspection and surveillance of worker that is implicit in the control test is somewhat anarchistic in contemporary employment matters, it is informative if not used as a standalone test.

Self-Employment under the 'Integration Test'

An alternative test looks at the extent to which a worker is employed as an integral part of the business of the putative employer. In the Sunday Tribune case, a freelance journalist who got commission in advance but was under no obligation to the newspaper to publish her work was held to be employed under a contract for services. By contrast, a staff journalist working 50 hours per week for the newspaper was an integral part of the newspaper and therefore had a contract of service. This case illustrates that the nature of the work itself is not always sufficient as both journalists did the same substantive work, but each had different employment status.

Self-Employment under the 'Economic Reality' or 'Enterprise Test'

This test essentially asked whether the worker has engaged him/herself to perform the services, performing them as a person in business on his/her own account. This looks at a range of factors and asks whether or not the worker is actually running a separate business. The test was first outlined in the English case of Market Investigations –v- Minister for Social Security where, according to Justice Cooke, the fundamental test to be applied is:

“Is the person who has engaged himself to perform these services performing them as a person in business on his own account? If the answer to that question is yes then the contract is a contract for services. If the answer is no then the contract is a contract of service”.

This approach was approved by Justice Barr in O’Coindealbhain –v- Mooney.

Self-Employment under the 'Opportunity and Risk Test'

The extent to which a person has the opportunity to benefit financially from the work over and above a salary or wage or conversely the extent of financial risk or loss will be important in determining if such a person is an employee. In Henry Denny & Sons –v- Minister for Social Welfare, the Supreme Court held that it is easier to infer that a person is engaged in business in his/her own account where the profit which he/she derived from the business was dependant on the efficiency with which it is conducted by him/her. Similarly, in Tierney –v- An Post, the Supreme Court held that, while the extent to which a postmaster could maximise the profit which they derive from carrying on the post office business was relatively modest, it was nevertheless the case that any expenditure in energy or commitment, which had the effect of increasing the volume of profit, would be determinative.

Revenue Definition of 'Self-Employed'

It is worth noting that Revenue see a legal difference between a contract of employment and a contract for service. According to Revenue, a contract of employment applies to an employee / employer relationship. A contract for service applies in the case of an independent or self-employed contractor. Revenue provide a list of factors to be considered when determining whether or not an individual is a self-employed contractor.

The first of this determining criterion is whether or not that individual owns their own business.

Secondly, Revenue examine whether or not an individual is exposed to financial risk.

Thirdly, Revenue will have due regard to the extent to which an individual has control over what, how, when and where the work is done and whether they do it personally.

Fourthly, Revenue will have due regard to whether or not the individuals concerned are free to hire other people, on their terms, to do the work which has been agreed on.

Fifthly, Revenue will have due regard to whether or not an individual can cost and agree a price for the job.

Other determining factors, considered by Revenue, is the extent to which the individuals concerned supply or provide for their own equipment which has to be determined in relation to this matter.

Conclusion

The various case law on this issue notes that there is no single determinative test that can be applied to determine whether or not an individual is an employee or a contractor. However there are a number of determining factors. The first of these is control. The second of these tests is integration. The third test is economic reality, often known as the enterprise test, which essentially asks if the worker has engaged him/herself to perform the services on their own account.

Furthermore, at the core definition of a contract of employment, is a requirement for the employee to personally execute the work.

Revenue appear to take a very narrow, rules based assessment, as to what constitutes an employee or an individual who is self-employed. This approach does not tally with the more comprehensive and expansive approach taken under the various case law on this matter.

TWSS – Employer Liability for Payment Shortfall

Wed, 14 Jul 2021 06:29:02 GMT

Introduction

The Temporary Wage Subsidy Scheme (TWSS) operated to enable employers who were negatively impacted by the Covid 19 pandemic to give significant supports directly to their employees. However, the Workplace Relations Commission recently found that there was an obligation on an employer to make good any shortfall that resulted in an employee being paid less than they usually would be paid.

Purpose of the Temporary Wage Subsidy Scheme

The TWSS operated from 26 March 2020 until 31 August 2020. The purpose of the TWSS was to enable employers who were negatively impacted by the Covid 19 pandemic to give significant supports directly to their employees and keep their employees on the payroll throughout the requisite period.

Shortfall in Payment under TWSS

However, a number of employees experienced a shortfall in payment due to the operation of the TWSS.

A question that has been asked is who is responsible for that shortfall?

In Mark Reeves -v- Lake Region Medical Limited (ADJ00030224), the employee raised a complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991.

Mr Reeves commenced employment with the company in February 2020 and was employed on a full time basis as a manufacturing operative. Following the introduction of the Covid 19 restrictions and the accompanying measures by the government, the company availed of the TWSS. The complaint raised before the WRC was one in relation to the calculation of the complainant’s average wage under that scheme. Mr Reeves alleged that a 2 week absence in February, because of illness, resulted in a payment under that scheme that was significantly less than his normal fortnightly wage.

TWSS and the Payment of Wages Act

The complaint submitted was to the effect that the respondent is in breach of the Payment of Wages Act, 1991 in that the respondent company paid the complainant less than the amount due to him.

Section 5(1) of the Act states:

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

(a) the deduction (or payment) is required or authorised to be made virtue of any statute or instrument made under statute,

(b) the deduction (or payment) is required or is authorised to be made by virtue of a term of the employee’s contract of employment including the contract before, and in force at the time of, the deduction or payment, or

Section 5(6) of the Act states:

Where –

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any deductions as aforesaid) are paid to the employee,

then, except as in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction by the employer from the wages of the employee.

The position of the respondent was that any shortfall in payment in this particular instance is covered by the provisions of Section 5(1)(a) of the Act as detailed above.

Payment of Wages and Operation of TWSS

Whilst the operation of the TWSS might have resulted in a shortfall of wages during the operation of that particular scheme, the obligation to pay an employee what that employee is contractually entitled to remains.

The provisions of Part 7 of the Emergency Measures in the Public Interest (Covid-19) Act, 2020, are in relation to the operation of the wage subsidy scheme and were designed to provide assistance to an employer to maintain employees in employment even though they were suffering a reduction in turnover. The guidelines published by the Revenue Commissioners set out the parameters of the scheme and the details of its implementation.

The Adjudication Officer, in this instance, accepted that in order to avail fully of the scheme and be eligible for receipt of the subsidy the respondent company had to apply those rules.

Section 1.6 of the Operational TWSS FAQ states:

“If the employer makes excessive additional gross payments, then either the subsidy value applicable to the employee and refundable to the employer will be reduced, or the employee may not be eligible for the subsidy scheme.”

Conflict with the Payment of Wages Act

The object of these rules is to ensure that the employer is eligible to receive the subsidy payment.

The Workplace Relations Commission did not, however, see anything in the provisions of the legislation setting up the scheme that authorises or requires a deduction to be made from the wages paid to an employee.

There is accordingly an onus on the employer to make good any shortfall in wages that occurs as a result of the operation of the TWSS.

The Workplace Relations Commission did not accept that the deduction from the complainant’s wages that occurred in the case before me was allowable under Section 5(1)(a) of the Payment of Wages Act, 1991.

The Adjudication Officer therefore found this complaint to be well founded and ordered the respondent company to the complainant the sum of €439.63.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Conflict of Interest - Restrictive Covenants

Sun, 04 Jul 2021 09:02:21 GMT

Can an employee be dismissed for starting another business?

An employee may be dismissed for starting a new business if the contract of employment with the existing employer specifically states that during the period employment, the employee will devote the whole of their time and attention to the business of the company and/or that they will not engage in any other activity which is likely to prejudice their ability to serve the company.

Conflict of interest

In A Restaurant Assistant Manager v A Restaurant (ADJ-00013091), the employee raised a complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977, after he was dismissed, apparently due to him exploring the option of opening a competing business.

His contract of employment stated:

“During the period of this contract, you will devote the whole of your time and attention to the business of the company and you undertake that during the period of this contract you will not engage in any other activity which is likely to prejudice your ability to serve the company, nor will you engage in any business activity which may cause a conflict of interest with the business of the company.”

He was working for an Indian restaurant and their was some evidence that he was exploring the option of setting-up his own, nearby.

Dismissal due to conflict of interest

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The respondent said that the complainant was dismissed because he was in negotiations to open an Indian restaurant that would be in competition with his own business. He considered this to be a breach of trust and a contravention of the complainant’s contract of employment which required him to not to “…engage in any business activity which may cause a conflict of interest with the business of the company.”

The questions to be decided are: was it reasonable for the respondent to dismiss the complainant and was the process that ended with his dismissal a fair process?

Conflict of interest, competing business and the law

The issue of a conflict of interest and an employee’s desire to set up their own business is explored at chapter 16.89 of “Redmond on Dismissal Law” by Desmond Ryan, (Bloomsbury, 2017).

A number of precedents are cited where the Employment Appeals Tribunal (EAT) has concluded that even where a restrictive clause is included in an employee’s contract, seeking to prevent them from setting up in business similar to their employer, “an employee cannot be dismissed for nurturing this intention.”

The author refers to the Employment Appeals Tribunal case of McDermott v Kemek Limited / Irish Industrial Explosives Limited, [1996] ELR 233 where the “general principles” relating to employees in these circumstances were set out:

It is perfectly legitimate for an employee to aspire to set up in business on his own account.
Such a person would consider it normal to work in the industry with which he was familiar. It would be contrary to public policy to prevent someone from setting up in competition with his employer.
However, an employee’s duty of fidelity continues so long as he remains in employment. There may be a point at which preparations to set up a new business might be incompatible with continuing to serve the existing employer.
If an employer believes that an employee’s actions in pursuit of his ambition have so become incompatible, he owes the same duty not to dismiss unfairly as he would in any other type of case.

Decision

In this case, the Adjudication Officer found that the actions of the employee, in exploring the possibility of setting-up his own business, was not a breach of his contract of employment and so awarded the employee €3,168, equivalent to 12 weeks’ pay.

Further Information

For further information, please contact the author of this article, Barry Crushell .

The Right to Cross Examine - Workplace Investigations

Fri, 02 Jul 2021 06:36:07 GMT

Does an employee have the right to cross-examine witnesses in a workplace investigation?

Generally, yes. To deny an employee the right to cross-examine a witness during a workplace investigation may amount to a breach of due process and fair procedure.

Failure to allow employee to cross examine witnesses

In Shop Assistant -v- Supermarket (ADJ-00026198), an employee alleged that the employer’s failure to allow her cross examine witnesses in an investigation and disciplinary process represented a breach of fair procedures.

In this regard, the employee sought to rely on the matter of Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272. Here, the High Court stated that:

"it is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence."

Benefit of fair procedures

Having regard to the same, it should also be noted that in the case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332 the High Court stated as follows:

"the authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action…The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result”.

The Court went on to state that:

"... in this case there was a large measure of consistency between the basic facts as asserted by the personal assistant and the plaintiff's account of what happened ... There was a conflict as to the demeanour of the plaintiff towards the personal assistant. The essential question is whether, given the refusal of the personal assistant to submit to being questioned at a disciplinary hearing by or on behalf of the plaintiff, the plaintiff was likely to be exposed to the risk of an unfair hearing or an unfair result.

The type of disciplinary process which was being implemented ... does not lend itself to the application of the principles of natural justice in the manner in which they would be applied if the plaintiff had been entitled to a hearing by an impartial tribunal, which was not the case.

On the specific arguments advanced by the plaintiff in this case, in my view, the plaintiff has not established that he was not afforded fair procedures by reason of the fact that there was no opportunity for him or his representative to question the personal assistant. The factual dispute which the investigation identified, in my view, did not indicate that it was necessary in the interest of fairness to afford such opportunity."

Hear direct evidence

Similarly, in Roger Martin –v- Coca Cola HBS Ireland Limited (ADJ00022037) it was submitted by the employee’s representative that the requirement for fair procedures and the right to cross examine and hear direct evidence were clearly set out in Gallagher v. Revenue Commissioners [1995] ELR 108. Given the serious consequences for the employee in this case, it was argued, the employer was obliged to act judicially and adopt procedures which were fair and reasonable.

The Adjudication Officer agreed, noting that:

"There was a considerable weight given by the complainant to the fact that he was not facilitated with cross examination. A right to fair procedures and natural justice in implied into contracts of employment. These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment. The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process. It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made. While this right may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters. Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer. In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures. In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

Entitlement to be told of right to cross-examine

It follows then that in addition to the right to cross examine his or her accuser there is a further entitlement to be told of this right. If an employee fails to ask for cross examination, they cannot be faulted for failing to ask.

In the recent Supreme Court case, Zalewski v. Adjudication Officer and WRC[2021] IESC 24 the Court was critical of the fact that there was not express provision for cross examination in the Workplace Relations Act, 2015 although it occurred in practice. It held that this was a fundamental aspect of constitutional fair procedures. The Court emphasised the benefits of cross-examination as a core part of fair procedures:

“As long ago as Re Haughey, these features of court proceedings, and in particular, the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination … was one of the rights without which no party ‘could hope to make any adequate defence of his good name.""

Further Information

For further information, please contact the author of this article, Barry Crushell .

Can you be fired for looking for another job?

Thu, 01 Jul 2021 11:06:29 GMT

Can an employee be fired for looking for another job?

In general, no. If an employee was fired for looking for another job, they may be entitled to bring a complaint to the Workplace Relations Commission under Section 8 the Unfair Dismissals Act, 1977.

Fired for looking for another job - case law

In the case of A Driver v A Driver Maintenance Company (ADJ00018286), the employee challenged the termination of his employment on foot of his employer discovering that he was seeking alternative employment.

The employee joined the company in May 2017 and worked without incident until July of 2018. On 02 July 2018, the employee was called into the office of the owner of the company. The owner of the company noted that he was aware the employee was looking for alternative work. He suggested that the employee 'must not be happy in his current role' and was therefore summarily dismissed. The employee was given no right of reply, no notice and was not allowed to appeal this decision.

Despite the existence of both a disciplinary and grievance policy, neither was invoked by the employer. Whilst the employee notified his union representatives, the employer refused to engage in any meaningful way. After some correspondence, the employee was eventually issued formal notification of termination of employment.

Fired for looking for another job - decision

The Workplace Relations Commission found that the employer, in dismissing the employee on account of him seeking alternative employment, had breached the provisions of the Unfair Dismissals Act. That being the case, the employee was awarded €10,560.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Date of Dismissal - Effective Immediately or Subject to Appeal?

Wed, 30 Jun 2021 07:57:08 GMT

Introduction – Date of Dismissal

An interesting case recently came before the Workplace Relations Commission which examines the effective date of dismissal for the purposes of the Unfair Dismissals Act, 1977 in circumstances where there is an appeal to that dismissal.

In A Caretaker v An Education Provider (ADJ00019732), the employee was dismissed on grounds of gross misconduct following a colleague’s allegation of sexual harassment. This incident arose following work drinks and the employee concerned was dismissed following an investigation and disciplinary process. The employer regarded his conduct as constituting gross misconduct, therefore warranting summary dismissal.

Date of Dismissal – Subject to Appeal?

The letter provided to the employee noted that his employment would be terminated “with immediate effect” but that should his appeal, if exercised and successful, would see his employment being “retrospectively reinstated”.

The employee was dismissed on 30 May 2018. The outcome of the appeal was given on 14 November 2018.

The employee argued that he should be permitted to lodge a complaint to the Workplace Relations Commission within six months of the outcome of the appeal, that being 14 November 2018. The respondent employer contested this proposition.

Date of Dismissal – Case Law

The Workplace Relations Commission noted that the Unfair Dismissals Act defines ‘dismissal’ as including “the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.”

The Act further provides that ‘date of dismissal’ means:

“(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires:

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973…”

In Devaney v DNT Distribution Company Limited (UD 412/1993), the Employment Appeals Tribunal considered what amounted to a dismissal. It held “... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

The complainant relied on Ryan v UPC Communications Ireland Ltd (UD13/2013). Here the Employment Appeals Tribunal determined “The Terms of Employment were silent on the implications and effectiveness of the dismissal once issued and that when an appeal was lodged that this did not act a stay on such dismissal, then in that event, the Tribunal believes this led to a lack of clarity and in consequence created ambiguity which resulted in the Claimant believing that her dismissal was stayed pending the outcome of the appeal. The Tribunal support her view.” In a judicial review of the EAT decision [2017] IEHC 567, the High Court refused to quash this preliminary decision as it was one within the jurisdiction of the EAT.

Desmond Ryan, BL in ‘Redmond on Dismissal Law’ 3rd edition [para 22.70] comments that the EAT decision in Ryan v UPC is “somewhat of an outlier authority distinguishable on its facts in light of the extremely lengthy delay on the part of the employer.”

Date of Dismissal – Decision

That being the case, the Adjudication Officer found that whether an appeal operates as a stay on a dismissal is a matter of construction of the relevant procedures and the correspondence arising from the dismissal. There are circumstances where the procedures are explicit that the sanction does not take effect until the conclusion of the appeal (see Wallace v Irish Aviation Authority [2012] IEHC 178). There are circumstances where there is ambiguity whether the appeal operates as a stay on a dismissal (as was held by the EAT in Ryan v UPC). While it is rare for a dismissal to be stayed pending an appeal, this is a matter of construction of the relevant procedures and correspondence.

It is possible to argue that there was some ambiguity in the procedure. It refers to the appeal being “a final decision” albeit in relation to warnings. It further states that a decision to dismissal “will stand” unless reversed on appeal. Despite these possibilities, the Adjudication Officer found that the policy and contemporaneous correspondence were sufficiently clear that the date of dismissal was the 30 May 2018, notwithstanding the right to appeal.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Perjury, Public and Published - The Workplace Relations (Miscellaneous Amendments) Bill 2021

Tue, 29 Jun 2021 14:05:59 GMT

Introduction

Following delivery of the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021, and the consequential orders made on foot thereof on 15 April 2021, a number of procedural changes are required to procedures at the Workplace Relations Commission (WRC). It was the unanimous decision of the Supreme Court that in the context of the Zalewski case, that an Adjudication Officer of the WRC was engaged in the administration of justice.

Legislative Changes

The Joint Committee on Enterprise, Trade and Employment met in May 2021 to discuss the matter, with Committee Cathaoirleach Deputy Maurice Quinlivan commenting:

“This [proposed] legislation would provide the necessary powers for the Workplace Relations Commission to continue to administer justice in accordance with the Constitution and follows a recent Supreme Court judgement in the ‘Zalewski’ case. Given the urgency of the matter, the Minister has asked that the normal requirement in relation to pre-legislative scrutiny be waived on this occasion. The Committee will consider this request and looks forward to discussing the Bill with the Department before making a recommendation on a PLS waiver to the Business Committee.”

Workplace Relations (Miscellaneous Provisions) Bill

The Workplace Relations (Miscellaneous Provisions) Bill 2021, is currently under consideration by the Oireachtas.

Some of the key proposals are as follows:

1 Administration of Oath

Section 41 of the Workplace Relations Act 2015 may be amended to —

“(12A) (a) An adjudication officer may require a person giving evidence in proceedings under this section to give such evidence on oath or affirmation and, for that purpose, cause to be administered an oath or affirmation to such person.

(b) A person who, in or for the purpose of proceedings under this section, gives a statement material in the proceedings while lawfully sworn as a witness that is false and that he or she knows to be false shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months, or both, or

(ii) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 10 years, or both.”

2 Proceedings in Public

There are a number of proposed amendments to ensure proceedings are conducted in public. For example:

Section 41 of the Workplace Relations Act 2015 may b e amended to —

“(13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.”

Section 8 of the Unfair Dismissals Act 1977 may be amended to —

(a) by the substitution of the following subsection for subsection (6):

“(6) Proceedings under this section before an adjudication officer shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.”

Section 39 of the Redundancy Payments Act 1967 may be amended to —

“Proceedings in relation to any matter referred to an adjudication officer under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of the employee or employer, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.”

3 Publication on Internet

Section 41 of the Workplace Relations Act 2015 may be amended to —

“(14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission .”

Review of the Changes

There is a commitment to undertake a review of operation of the proposed changes.

13. (1) The Minister shall—

(a) not later than 12 months after this section comes into operation, commence a review of the operation of the amendments to:

(i) the Act of 2015 effected by section 4(b) and (c);

(ii) the Redundancy Payments Act 1967 effected by section 7,

(iii) the Unfair Dismissals Act 1977 effected by section 9(a);

(iv) the Protection of Employees (Employers’ Insolvency) Act 1984 effected by section 10, in so far as it relates to the insertion, in section 9 of the said Act,

of subsections (4C) and (4D);

(v) the Employment Equality Act 1998 effected by section 11(a);

(vi) the Equal Status Act 2000 effected by section 12(a), and

(b) not later than 12 months after the commencement of the said review, make a report to each House of the Oireachtas of the findings made on the review and of 35 the conclusions drawn from the findings.

Note: article published 29 June 2021 and subject to change.

Resigning during an Investigation or Disciplinary Process

Mon, 28 Jun 2021 17:36:56 GMT

Disciplinary Process and Constructive Dismissal

Can an employee who has been placed on an investigation and disciplinary process resign due to the unfairness of that process and later bring a claim for unfair dismissal by way of constructive dismissal?

Ordinarily, in order to succeed in a claim for constructive dismissal, an employee will need to demonstrate that the behaviour of the employer was so unreasonable that they had no other option but to resign. In the context of an investigation and disciplinary process, this may require a complete absence of due process and fair procedure.

Other aggravating factors would also be taken into account by the Workplace Relations Commission.

Disciplinary Process and Constructive Dismissal - Case Law

In the case of a Security Officer -v- A Security Company (ADJ0015050), the employee brought a complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1997.

In essence, the employee contended that the decision of the company to suspend him on foot of complaints made by a female colleague against him was disproportionate when compared to the treatment other employees received when comparable complaints were made about them. The HR manager for the respondent company presented evidence to the Workplace Relations Commission that the company had put in place a number of safeguards to ensure that the investigation and subsequent disciplinary process, if warranted, would be in accordance with best practice.

That being the case, the respondent company held that the resignation of the employee was unwarranted and unnecessary.

Disciplinary Process and Constructive Dismissal - Unfair Dismissals Act

The Adjudication Officer pointed to the relevant case law when making her determination. She noted that the definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer…”

The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, and considering how the issue was addressed, was it reasonable for him, or was he entitled to terminate his employment?

Disciplinary Process and Reasonableness of Resignation

Considering the reasonableness of an employee’s decision to terminate his or her employment, in the case of McCormack v Dunnes’s Stores referred to in the respondent’s submission, the Tribunal concluded that:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his or her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.”

In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the chairman, Mr Haugh the addressed the entitlement of an employee to terminate his or her employment due to a contractual breach by the employer:

“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

Disciplinary Process and Resignation - Takeaways

The Adjudication Officer found that the employee had not demonstrated that the conduct of his employer was so unreasonable that he had to resign. Because of this finding, the Adjudication Officer decided that his complaint under the Unfair Dismissals Act was not well founded.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Pregnancy, Probation and Dismissal

Sat, 19 Jun 2021 09:48:05 GMT

Can an employer terminate the employment of a pregnant employee during her probationary period?

Yes, but an employer will need to prove that the dismissal was wholly unrelated to the pregnancy. Ordinarily, in order to bring a complaint seeking adjudication by the Workplace Relations Commission under the Unfair Dismissals Act, 1977, an employee will need to have at least 12 months’ service. However, Section 6 of the Unfair Dismissals Act provides that a dismissal shall be deemed to be unfair if it resulted wholly or mainly from the “employee’s pregnancy, attendance at antenatal classes, giving birth or breast feeding or any matters connected therewith.”

Dismissal during probationary period

In A Hairdresser -v- A Hair salon (ADJ0016046), the employee claimed that she was dismissed during her probationary period because of the inconvenience of her pregnancy to the respondent company. The respondent company refuted the claim and stated that the employee did not progress sufficiently during her six month probation period and was therefore let go.

Dismissal during probationary period – case law

The decision in McGuirk -v- Irish Garden Publisher Limited DEC-E-2007-031 is an authority for the principal that an employee’s poor work performance can give rise to the termination of the employment even where the employee is pregnant. The Adjudication Officer noted in that case that there was a history of poor performance, including the threat of termination, which the complainant was on notice of well in advance of the pregnancy being known to the employer.

In McGuirk the Equality Officer said: “It is well established ECJ jurisprudence that women who are pregnant are to be afforded special protection in employment and cannot be dismissed from the beginning of the pregnancy until the end of their maternity leave (the protected period) save in exceptional circumstances unrelated to their pregnancy. It is true that the Complainant’s dismissal took place during the protected period and it therefore falls to the Respondent to show that the termination of her employment was unconnected whatsoever with her pregnancy.”

Dismissal during probationary period – expectations

The Workplace Relations Commission acknowledged that the respondent’s position was that the dismissal of the complainant was solely due to her failure to meet professional expectations. There was a complete contrast in the party’s interpretation of her performance during the probation period. Notwithstanding that, the Adjudication Officer in this matter noted that, by virtue of the protections afforded to a pregnant employee, an employer must demonstrate that a dismissal during the probationary period is unconnected to the pregnancy. By the respondent company’s own admission, the complainant’s absence from work, on pregnancy related sick leave, was part of the problem. The Adjudication Officer therefore found, on the balance of probabilities, that, in the absence of any acknowledged or written performance reviews of the complainant’s performance and/or any other disciplinary processes for poor performance, it is difficult to see any justification for an abrupt dismissal. Accordingly, the Adjudication Officer found that the complainant’s dismissal resulted wholly or mainly from her pregnancy. That being the case, the claim of unfair dismissal was considered well founded and the complainant was awarded €6,000.

Dismissal during probationary period – the takeaway

The Pregnancy Directive 92/85/EEC prohibits dismissal of a pregnant worker unless “duly substantiated grounds for her dismissal” are provided in writing. This was not the case here, there were no issues or warnings raised and the basis of the respondent’s decision to dismiss was the inconvenience of her pregnancy.

The takeaway for employers in this matter is that they are entitled to terminate the employment of a pregnant employee during the probationary period but must have sufficient written evidence justifying such a decision.

No Compensation for Successful Unfair Dismissal Claim

Wed, 02 Jun 2021 07:08:21 GMT

Compensation for Unfair Dismissal Claim

Although an employee may bring their employer before the Workplace Relations Commission in respect of a complaint under the Unfair Dismissals Act, even if they are successful, an Adjudication Officer has, within their remit, the power to award a successful complainant no compensation depending on the circumstances.

In A Diver -V- A Limited Company (ADJ00018129), the Adjudication Officer in this matter, Ms Niamh O’Carroll Kelly BL, decided to award the complainant no compensation despite bringing a well founded case of unfair dismissal.

Counterclaim by Employer

In summary, the complainant was provided with approximately €10,000 worth of diver training. He was asked to undertake a very important and time sensitive task on behalf of the respondent company. When he arrived to undertake the task, he demanded more pay than had been agreed based on a previous rate he had been given in error. The manager and owner of the respondent company noted that the previous rate paid to him was an administrative error and was never agreed between the parties. He further noted that he had spent a considerable amount of money upskilling the complainant and now felt betrayed that the complainant was effectively trying to “blackmail” him as he knew the importance of this particular job, to the respondent company.

Summary Dismissal

The owner of the respondent company told the complainant “you’re finished”. The complainant contended that he was effectively dismissed from that moment. The owner of the respondent company later emailed the complainant to inform him that he was suspended pending an investigation and disciplinary process. He then invited the complainant to attend an investigatory meeting to discuss the issues before them. The complainant never attended the meeting arguing that he had already been dismissed and that there was no further issue to discuss.

He then submitted a claim seeking adjudication by the Workplace Relations Commission under the Unfair Dismissals Act.

Behaviour of the Employee

The Adjudication Officer in this matter found that there had been an absence of due process and fair procedure with respect to the manner in which the complainant was dismissed.

Notwithstanding this, she did agree with the respondent that the complainant was effectively trying to blackmail the company and therefore, despite finding that the complainant’s complaint was well founded, she decided to award him no compensation.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Employees on Loan - A Transfer of Obligations?

Wed, 26 May 2021 13:40:36 GMT

When an employee is on 'loan' to a company, who is responsible for that employee?

When an employee is on 'loan' or secondment to another company, the company with which the employee maintains a contract of employment is ultimately responsible to that employee for any infringement of their employment law rights. This does not mean that the company to whom the employee has been seconded has no liability whatsoever for any breaches of the employees' employment law rights. However, such liability will be dependent on the circumstances of the case.

Liability in Cases of Redundancy

In An Apprentice -v- A Construction Company (ADJ00029367), the complainant brought about a complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancies Payment Act, 1967.

The complainant had been employed by the respondent company from April 2017 as an apprentice. In December 2019, he was transferred to a different employer and the respondent, in due course, went into liquidation in February 2020. That being the case, the complainant sought a redundancy payment.

However, the respondent argued that the complainant employee was legally and formally transferred to the second employer. There was evidence of a transfer of employment and he was registered to his new employer with Solus.

Transfer of Employees

The Adjudication Officer noted that “the idea of employees, other than professional soccer players, being sent on loan to another employer is an unusual one. As noted above, the union representing the complainant said at the hearing that it was not uncommon for this to happen. Therefore, the critical question is whether the complainant’s contract of employment with the respondent was terminated by this transfer or not. Clearly the intentions of the parties are critical on that point.”

That being the case, the Adjudication Officer was tasked with deciphering what the relevant intentions of the parties were at the time of the transfer. The complainant had written to the director of the respondent which noted that there was some ambiguity as to whether he was on loan or a permanent employee of the company to whom he had been transferred. A director of the respondent company noted that “the intention is that you would be coming back in March when the project is complete.” He went on to say that “they have put you on their books for revenue so that all is above board. So, for now, you are employed by them.”

Employee on Loan - Intention of Parties

The Adjudication Officer noted that it was quite clear from both of these items of correspondence that the intention of both parties at the time the loan arrangement was made would be that the complainant would be returning to the original respondent company with effect from March 2020. However, that respondent company went into liquidation on 17 February 2020. The Adjudication Officer noted that neither the complainant nor the respondent was in any doubt that the complainant was and would continue to be an employee of the respondent. Therefore, the act which actually terminated his employment was the same for him as for his co-workers, namely the liquidation of the respondent company.

On that basis, the Workplace Relations Commission noted that the complainant was entitled to a redundancy payment based on his service with the respondent company between April 2017 and February 2020.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Part Time to Full Time

Tue, 25 May 2021 07:19:08 GMT

Can a part time employee be forced to work full time?

Ordinarily, no. A part time employee is usually entitled to remain a part time employee on the hours for which they were originally contracted. The contract of employment may contain a clause which refer to the amendment of working terms and conditions, but it would be most usual for an employer to be permitted to significantly change the working hours of an employee without their consultation and consent.

Part Time to Full Time - Changes under Irish Employment Law

An interesting case recently came before the Labour Court, on appeal from the Workplace Relations Commission, which examined some of the legal formalities to be completed when moving an employee from a part-time to a full-time position.

The complainant, Ms Mary Twohill, commenced employment with the respondent company, Windzor Pharma Ireland Limited, on 02 April 2018. The complainant’s contract noted that she would work 20 hours per week and that her salary would amount to €2,334 per month.

Approximately a hear later, on 23 May 2019, the complainant received a letter from the respondent company noting that they now required an individual to undertaker her role on a full-time basis.

The complainant protested but was ultimately dismissed on 30 June 2019.

The Workplace Relations Commission found that the complainant had been unfairly dismissed and awarded her €14,000 in compensation. The respondent company asserted that this award was not reasonable under the circumstances.

Part Time to Full Time - Mitigating Circumstances

The respondent company noted that they had made every possible attempt to retain the employee once the role had become a full-time position. They noted that the complainant was offered a full-time role or an alternative role on a commission only basis.

The respondent company also pointed out that the contract of employment clearly anticipated that the role may change to a full-time role as the company developed.

The Unfair Dismissals Act, at Section 1, notes that a dismissal in relation to an employee means “the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee”. Section 6 of the Unfair Dismissals Act notes that “in determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal was wholly or mainly from one or more of the matters specified in Sub-Section 4 of this Section or that there were other substantial grounds justifying the dismissal”.

Part Time to Full Time - Unfair Dismissal

The Labour Court held that there were not substantial grounds justifying the dismissal of the complainant in this instance.

The Labour Court noted that there was no substantial engagement with the complainant prior to the issuance of the letter, which noted that her role would be terminated.

The Labour Court noted that the contract of employment provided that “the company may require you to vary the pattern of your working hours if required on a temporary or permanent basis should the need of this post require this”. However, the Labour Court noted that, on plain reading of the contract of employment, it is clear that the changes relate to the pattern of working rather than the quantum of hours contractually required.

Furthermore, the Labour Court noted that, at no point was it argued by the respondent company that the part-time position was redundant.

Part Time to Full Time - Process and Procedure

Based on all of the evidence before it, the Labour Court concluded that the respondent company followed no discernible procedure in arriving at the decision to dismiss the complainant and furthermore offered the complainant no avenue of appeal of that decision. In those circumstances, the Labour Court concluded that the conduct of the respondent company in relation to the dismissal was unreasonable, thereby affirming the order of compensation made by the Workplace Relations Commission to the complainant.

Further Information

For further information, please contact the author of this article, Barry Crushell .

What's in a Name? TUPE and Changes to the Contract of Employment

Wed, 19 May 2021 07:33:09 GMT

What does TUPE mean?

TUPE is short for the Transfer of Undertakings (Protection of Employment) Regulations. A transfer can mean acquiring, buying, leasing, merging or selling. An undertaking is a business, company, charity, organisation or service. Protection means the protection of the employment rights. Employees are those individuals employed by the undertaking that has been acquired.

TUPE and a Change of Contract

An interesting case recently came before the Workplace Relations Commission which examined the expectation employees have when the employee was subject to a transfer of undertaking in the course of their employment. In this case (ADJ00028128), the employee was employed as a “ramp agent” with effect from March 2011. He alleged that his employer, the respondent, owed him certain contractual entitlements. In particular, the employee argued that his employer’s calculation of his accrued annual leave entitlements was incorrect and his normal hours of work had been reduced. The employee further submitted that he should have received a new contract for the transfer from one employer to another.

The employer countered that the complainant employee had received an agreed extensive contractual documentation at the outset of his employment, prior to the transfer. They submitted that those terms were compliant with the Terms of Employment (Information) Act, 1994.

TUPE and Section 3 of the Terms of Employment (Information) Act, 1994

The Adjudication Officer noted that Section 3 of the Terms of Employment (Information) Act, 1994, provides that an employee must receive written terms of employment, signed by the employer, shortly after the commencement of their employment. In this regard, the Workplace Relations Commission noted that the employee did receive extensive written terms of employment in advance of his original commencement date. The Workplace Relations Commission further noted that, when the employee was asked what aspects of those terms were deficient for the purposes of the Act, he stated that the employee did not adhere to the terms therein but failed to give specific examples.

TUPE and Section 5 of the Terms of Employment (Information) Act, 1994

Notwithstanding this failure, the Workplace Relations Commission noted that the employee was subject to a transfer of undertaking in the course of employment and did not receive a new contract from his “new employers”. In this regard, the Workplace Relations Commission noted that Section 5 of the Act provides that, when one of the terms of employment changes, an employee should be notified in writing of that change within one month.

That being the case, while a transfer of undertaking would not require the issuance of a new contract of employment as asserted by the employee, the Workplace Relations Commission recognised that the name of the employer should have changed.

No evidence was submitted to the Workplace Relations Commission demonstrating that this change was notified to the employee at the relevant time.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Reduction in Pay - Refusal to Work

Tue, 18 May 2021 07:03:15 GMT

Reduction in Pay - No Consent to Reduction

An interesting case came before the Workplace Relations Commission wherein an employee contended that his pay had been reduced unilaterally to which he objected and therefore felt justified to bring a claim under Section 6 of the Payment of Wages Act, 1991 (see: ADJ-00028573).

Covid-19 and Reduced Pay

Like many businesses impacted by the Covid-19 pandemic, the respondent employer sought to reduce the employee’s salary from €1,000 net per week to €1,000 gross per week, resulting in an actual reduction of €120 per week.

The respondent employer justified this reduction on account of the reduced revenue and workload the company was facing.

Requirement to Work - Payment of Wages Claim

The employee refused the wage reduction and never returned to work thereafter. He subsequently submitted a claim to the Workplace Relations Commission under the Payment of Wages Act, 1991. However, it was noted by the Adjudication Officer that, as the employee concerned never worked subsequent to the proposed wage cut, there was in fact no actual reduction in his salary.

Therefore, the Workplace Relations Commission found that no breach of the Payment of Wages Act, 1991 actually occurred.

Accordingly, the Workplace Relations Commission declared that the complaint was not well-founded.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Right to Legal Representation during a Disciplinary Process

Fri, 07 May 2021 08:57:39 GMT

Does an employee have a right to legal representation during a disciplinary process?

No. An employee does not have an automatic right to legal representation during a disciplinary process. However, that right may arise if there are multiple legal issues to be addressed, the facts are complex, there are complicated procedural processed and the employee is unable to adequately present their own defence.

That been said, there is nothing to preclude an employee from privately availing of the services of a solicitor to guide them through an investigation or disciplinary process.

The right to legal representation during the disciplinary process

A case recently came before the Workplace Relations Commission which examines the right of an employee to legal representation during an investigation and disciplinary process. This case involved a civil servant who was dismissed for purchasing and later selling contraband cigarettes from Poland, in Ireland. It was held that the sale of contraband cigarettes was contrary to the Finance Acts and that the employer’s rules were specific as to the standards of behaviour expected from employees in their personal affairs. The employee in question was subject to the civil service code of standards and behaviour as well as a code of ethics which provided that all staff must “act with integrity and honesty and within the law”.

The employer submitted that the sale of contraband cigarettes amounted to serious misconduct as defined in their disciplinary code and was therefore a fair basis for dismissal.

The employee brought about the complaint, in part, on the basis of procedural fairness in that he claimed he was denied access to his solicitor throughout the investigation and disciplinary process. At the outset, the employer argued that, in any event, there was no automatic entitlement to legal representation. The employer contended that their processes and procedures conformed with the Industrial Relations Act, 1990 as well as the code of practice of grievance and disciplinary procedures. It was generally acknowledged that the employee had availed of a solicitor’s assistance throughout the investigation and disciplinary process. However, his chosen solicitor was not available on the day of the appeal.

Caselaw on the right to legal representation during the disciplinary process

In Burns -v- Governor of Castlerea Prison, the Supreme Court held that there were a number of factors to consider when deciding whether or not legal representation at an investigation and disciplinary process is warranted including the question of whether there will be multiple legal issues, the capacity of an employee to present their own defence, the complexity of the facts to be presented as well as the complexity of the hearing procedure.

The employer contended that the mere fact that the subject matter of the hearing might lead to dismissal (or indeed that there may be parallel criminal proceedings) is not exceptional (larnród Eireann v McKelvey [2018] IECA 346). As quoted above, the Supreme Court has expressly said that the need for a lawyer may not be indicated by the seriousness of the charge where the transaction is a simple one (Burns). The Court said it was 'wholly undesirable' that lawyers be present at disciplinary hearings unless it was clear that the hearing would offend the principles of constitutional justice.

This was recently followed by the Court of Appeal in larnród Eireann v McKelvey [2018] IECA 346 at para 36. In McKelvey the Court said of the principles to be applied on the entitlement to legal representation:

"It is important, I believe, to conduct this exercise mindful of the guidance provided by Geoghegan J. in Burns to the effect that it is wholly undesirable to involve lawyers in workplace investigations unless it be established that there is something exceptional about the matters to be scrutinised such that it would be reasonable to conclude that the proposed hearing could not be a fair one absent legal representation." (ibid, at para 53).

Application of Irish caselaw to the current case

The Adjudication Officer ultimately decided that the decision to dismiss the employee, as a consequence of the investigation and disciplinary process, was not rendered unfair by a refusal to allow an employee legal representation in the conduct of that investigation or disciplinary process. The Workplace Relations Commission held that such a requirement to legal representation could only arise in exceptional circumstances involving issues of significant factual or legal complexity which could not be adequately addressed without the assistance of a lawyer. In this case, the Workplace Relations Commission noted that the employee had availed of trade union representation for a significant proportion of the process and later availed of legal assistance. However, his specific legal representative was not available to attend on the day of the scheduled appeal hearing.

It had been noted that he had access to other solicitors within the same firm.

Taking all of this into account, the Workplace Relations Commission held that the employee was not unfairly prejudiced as a consequence of his solicitor not attending the appeal hearing.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Contract of Services v Contract for Services

Fri, 07 May 2021 08:39:16 GMT

What is the difference between a contract of service and a contract for service?

In essence, a contract of service refers to the existence of an employer-employee relations. A contract of services is more commonly known as a contract of employment. A contract for service refers to the provision of a service by one party to another, without the existence of an employment relationship. Under a contract for service, the person providing the service is typically self-employed.

What is a contract of service?

A matter recently came before the Workplace Relations Commission on foot of a maintenance engineer bringing an unfair dismissal claim against a printing and packaging company. In short, the complainant claimed he was on a contract of services and was therefore an employee whereas the respondent argued that the complainant was on a contract for services and was therefore self-employed.

In short, the complainant began working with the respondent company as an apprentice in 1983. On completion of his apprenticeship, his employment was terminated. However, he subsequently established himself as a sole trader and approached the respondent company for maintenance work. This was agreed and the complainant spent the next 30 years working on the maintenance of the respondent company’s extensive equipment range.

The respondent company decided to install a full-time maintenance manager and therefore informed the complainant that his services were no longer required. On foot of this, the complainant initiated a complaint for unfair dismissal, arguing that the termination of his employment was grossly unfair and that he was afforded no natural justice.

When is a worker employed or self-employed?

The Workplace Relations Commission accepted that defining an individual as either employed or self-employed is often far from clear cut.

The Adjudication Officer noted that “the landscape of legal precedents is extensive here and all academic & legal commentators agree on one key point - that there is no definite rule of Universal Application.”

Ryan in Chapter 3 of Redmond on Dismissal Law Bloomsbury 3rd Edition 2017 Page 35 refers to the issue as being “exceedingly difficult” to answer and has been debated in “Courts for Centuries”.

A range of legal Tests are referred to “but none is determinative”. Accordingly, each case has to be seen “in the light of its own facts and unique context”. The case of Denny v the Minister for Social Welfare [1998] I IR 34 is a good example of a case that had multiple legal outings and examinations by Courts and Tribunals and reached as far as the Irish Supreme Court.

Nonetheless ,in considering carefully to how to assess the work relationship, Edwards J. in Minister for Agriculture and Food v Barry - Minister for Agriculture and Food v Barry [2009] 1 I.R. 215 stated that it is unhelpful to speak of a “control test”, an “integration test”, a “fundamental test”, an “essential test” or a “single composite test” because none of these approaches constitute a test to deliver a definitive result. He further stated:

“The important thing to remember, however, is that every case must be considered in the light of its particular facts and it is for the court or tribunal considering those facts to draw the appropriate inferences from them by applying the general principles which the courts have developed. That requires the exercise of judgment and analytical skills. In my view it is simply not possible to arrive at the correct result by ‘testing’ the facts of the case in some rigid formulaic way.”

Accordingly, cases must be seen in their own lights and a degree of reasonable common sense applied.

Application of self-employment tests to the present case

In this instance, taking a reasonable common sense approach, the Workplace Relations Commission established that, on foot of the hours worked as well as the invoicing and taxing arrangements, the complainant was self-employed.

The Workplace Relations Commission noted that the respondent company paid the complainant an annual sum that approached approximately €340,000. The Workplace Relations Commission held that this figure could never be construed as a wage or remuneration for a maintenance fitter. It noted that the complainant regularly supplied engineering parts and spares as requested, sourcing the parts and then applying a mark-up in price. Travel time was also charged by the complainant as well as VAT being applied to both labour costs as well as engineering part costs.

In conclusion, the Workplace Relations Commission, noting the example of Mr Justice Keane above, determined that the complainant was effectively managing his own business, possibly unwisely in the long term, as he saw fit. For that reason, the Workplace Relations Commission found that the complainant could not avail of the protections afforded under the Unfair Dismissals Act.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Dismissal due to Incapacity

Wed, 05 May 2021 07:36:00 GMT

Can an employee be dismissed due to their incapacity?

Yes, however, an employee can only be dismissed due to their incapacity once that incapacity was the primary reason for the dismissal, that incapacity was substantial relative to the work undertaken, that the employee received fair notice and that the employee was afforded an opportunity of being heard, prior to any final decision taken.

Dismissal due to incapacity

A matter recently came before the Workplace Relations Commission which examined the criteria to be assessed when an employer dismisses an employee on the basis that they are no longer fit to undertake the work originally intended.

In this case (A General Operative -v- A Food Processing Company - ADJ00016678), an employee suffered a work injury in November 2016 which caused him long term back pain. He was then absent from work for approximately 20 months which resulted in the eventual termination of his employment due to incapacity.

Justifying a dismissal due to incapacity

The Workplace Relations Commission set out the legal tests that must be satisfied when an employer cites incapacity as a justification for the dismissal of an employee.

The issue of the reasonableness of an employer’s response to the absence of an employee who is incapacitated is well set out in the case of Iceland Frozen Foods v Jones [1983] 1 ICR 17, in which it refers to the function of the tribunal’s adjudicator on assessment of the facts,

“to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

The role of the Workplace Relations Commission is to investigate the decision taken to dismiss and to decide whether substantial grounds contributed to this decision and whether the employer acted within the “band of reasonableness” of a reasonable employer. This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained in Union of Construction Allied Trades and Technicians v Brane [1981] IRLR 224 in the following terms: -

“It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances.”

Unfair dismissal and dismissal due to incapacity

The Adjudication Officer, in this case, noted that the employee had been absent due to his back injury for 20 months at the date of dismissal. It was further noted that the medical evidence put forward did not suggest any hope that the employee would ever return to the same role in the future.

In fact, the medical evidence was quite negative on the ability of the individual concerned to undertake manual work of this nature in the future.

The employee was not in a position to provide any contrary medical evidence to counteract that position.

That being the case, the Workplace Relations Commission was then required to ask whether the process leading up to the dismissal was fair. In this instance, it cited the high court case of Bolger v. Showerings (Ireland) Ltd [1990] ELR 184, which provides a useful synopsis of the requirement for a fair process following a decision by an employer to dismiss for incapacity. The Complainant’s claim of unfair dismissal was dismissed by the Employment Appeals Tribunal, but this decision was overturned by the Circuit Court. In the appeal to the High Court, finding in favour of the appellant (the employer at this stage) the judge stated:

“For the employer to show that the dismissal was fair, he must show that:

“(1) It was the ill health that was the reason for the dismissal;

“(2) That this was the substantial reason;

“(3) That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

“(4) That the employee was afforded an opportunity of being heard.”

Conclusion

Applying the Bolger criteria to this case, the Workplace Relations Commission noted that the employee was put on notice that the termination of his employment was his employment was being considered and that he was welcome to put forward any contrary medical evidence which may have counteracted the narrative that he was unfit to undertake his duties.

The employee concerned was unable to do so.

That being the case, the Workplace Relations Commission found the decision of the employer to dismiss the employee was reasonable and that the process was fair.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Dismissal and Absence from Work

Sat, 01 May 2021 08:48:41 GMT

Can an employee be dismissed for absenteeism?

Yes, however, an employer can only dismiss the employee concerned if the absenteeism is repeated, the employer has provided the employee with verbal and/or written warnings, afforded the employee the opportunity to improve their attendance record and undertook a disciplinary process in line with the company policies and procedures.

Case law on dismissal and absence from work

A matter recently came before the Labour Court on appeal by an employee, Mr Stephen Redmond, against the decision of the Workplace Relations Commission in his complaint against his former employer, Seetec Employment & Skills Ireland, under the Unfair Dismissals Act. Mr Redmond commenced employment with Seetec on 10 October 2016 and was subsequently dismissed on 17 June 2019.

In summary, Mr Redmond appealed the decision to dismiss him on the basis of repeated absenteeism, on the grounds that the processes and procedures leading to his dismissal were flawed.

Despite the acceptance by both parties and the Labour Court that the repeated absenteeism of Mr Redmond were not conducive to a positive working relationship, the Labour Court noted that the employer’s practice of issuing repeated final written warnings had the effect of creating uncertainty as to the significance of the disciplinary penalties invoked.

The Labour Court could find no basis in the written disciplinary policy of the employer for the repeated issuance of overlapping final written warnings to Mr Redmond.

Disciplinary process and absenteeism

The Labour Court found it self evident that a coherent application of the comprehensive written disciplinary policy of the employer required the execution of the disciplinary steps in the manner described in the policy. Therefore, a strict application of the employer’s own disciplinary policies and procedures was not followed.

That being the case, the Labour Court determined that the amount of redress which was just and equitable, having regard to all of the circumstances of the case, was €5,400.

Dismissal and absence from work – conclusion

The takeaway from this case is that an employer should strictly adhere to their own disciplinary policies and procedures if they intend to evoke same for the repeated absenteeism of an employee.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Employer Contacting Employee Out of Hours – The Right to Disconnect

Thu, 22 Apr 2021 07:44:10 GMT

Employer Contacting Employee Out of Hours – The Right to Disconnect

The Right to Disconnect refers to an employee’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails, telephone calls or other messages, outside normal working hours.

In brief, the Right to Disconnect has three main elements:

The right of an employee to not routinely perform work outside normal working hours.
The right to not be penalised for refusing to attend to work matters outside of normal working hours.
The duty to respect another person’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).

Below, we set out the legislative basis and recommendation of the Workplace Relations Commission Code of Practice for Employers and Employees on the Right to Disconnect .

The Organisation of Working Time Act, 1997

The OWTA 1997 has its genesis in protecting the safety, health and welfare of those at work. The Act does not explicitly refer to a ‘Right to Disconnect’, but states that employers cannot permit employees to work more than a maximum of 48 hours per week on average, except in very limited circumstances.

As such, employers have a legal responsibility to keep records of employees’ hours worked under the OWTA 1997. Employers must ensure that their employees receive specified breaks within the day, as well as their daily and weekly rest. Employees must also receive their statutory entitlement to annual leave and public holidays.

The duty to ensure compliance with the OWTA 1997 rests with the employer and not the employee. Employees have a responsibility to cooperate with any appropriate mechanism introduced by the employer for recording of working time.

The Safety, Health and Welfare at Work Act, 2005

The SHWWA 2005 makes further provision for the safety, health and welfare of persons at work. The Act sets out the responsibilities of employers, the self-employed, employees and various other parties in relation to safety and health at work. The Act also details the role and functions of the Health and Safety Authority, provides for a range of enforcement measures that may be applied and specifies penalties that may be applied for breach of occupational safety and health.

Under section 8(2)(b) of the SHWWA 2005 the employer’s duties extend to ‘managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk’.

Employees have an obligation under section 13(1)(a) and 13(1)(e) of the SHWWA 2005 to take reasonable care to protect their safety, health and welfare at work and ‘not engage in improper conduct or behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person’.

This includes an obligation to not work hours in excess of the legislation and, like the OTWA 1997, contains an obligation to cooperate with any appropriate mechanism introduced by an employer for the recording of working time.

Employment (Miscellaneous Provisions) Act, 2018

This legislation provides that employees must receive a written statement of their core terms of employment within 5 days of starting employment. One of the core terms must establish what hours of work the employer reasonably expects the employee to work in a normal working day and a normal working week.

In this regard, normal working hours are those as agreed in an employee’s terms and conditions of employment, as governed by the employee’s contract of employment and/ or applicable collective agreement and/or any applicable Sectoral Employment or Employment Regulation Order in force.

Terms of Employment (Information) Acts, 1994–2014

This legislation provides that employees must receive a written statement of the remaining terms of employment (a contract) within 2 months of starting employment. This statement must include any terms or conditions relating to hours of work (including overtime) and details of any collective agreements that may affect the employee’s terms of employment.

Employer Obligations - Right to Disconnect

Providing detailed information to employees on their working time, in accordance with the Terms of Employment Information Act, 1994 - 2014.
Ensuring that employees are informed of what their normal working hours are reasonably expected to be under the Employment (Miscellaneous Provisions) Act 2018.
Ensuring that employees take rest periods, in accordance with the OWTA 1997.
Ensuring a safe workplace, including reviewing their risk assessment and, where necessary their safety statement in line with the SHWWA 2005 and taking account of their obligations under section 8(2)(b) of the SHWWA 2005 which extends to ‘managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk’.
Not penalising an employee for acting in compliance with any relevant provision or performing any duty or exercising any right under section 27 of SHWWA 2005.

Employee Obligations - Right to Disconnect

Ensuring that they manage their own working time and section 13(1)(a) of the SHWWA places an obligation on an employee, while at work, to take reasonable care to protect their safety, health and welfare and the health and safety of co-workers.
Cooperating fully with any appropriate mechanism utilised by an employer to record working time including when working remotely.
Being mindful of their colleagues’, customers’/clients’ and all other people’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).
Notifying the employer in writing of any statutory rest period or break to which they are entitled to and were not able to avail of on a particular occasion and the reason for not availing of such rest period or break.
Being conscious of their work pattern and aware of their work-related wellbeing and taking remedial action if necessary.

Conclusion

If an informal process has not been successful in resolving the issue, then the formal company grievance procedure may be utilised. Where there is a collective agreement the parties should abide by those terms as it relates to raising grievances.

Notwithstanding that a specific contravention of the OWTA 1997 may be referred to the WRC at any point, if

the matter is addressed through the grievance procedure in the context of the Right to Disconnect and still remains unresolved on completion, the employee may refer it to the WRC under the appropriate legislation and citing this Code.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Identifying the Employer - Bringing a WRC Complaint

Wed, 21 Apr 2021 06:57:14 GMT

Introduction

Any employee is entitled to rely on the provisions of the Terms of Employment,(Information) Acts 1994 to 2014, further strengthened by the Employment (Miscellaneous Provisions) Act 2018 and to be furnished with basic information to include the name and address of their employer, method of calculating their pay, the number of hours that the employee is expected to work per normal working day/week.

When a dispute arises, despite not being provided with the relevant documentation, it is still critical that an employee bringing a claim before the Workplace Relations Commission (WRC), identifies their actual employer.

Background

The importance of correctly identifying one’s official employer when bringing a WRC complaint was again reaffirmed in the unfortunate case of Stephen Ng v Moanne Chow T/A Orchid Restaurant.

This was an appeal to the Labour Court by Mr. Ng (the complainant), under the Organisation of Working Time Act, 1997, against the decision by an Adjudication Officer, ‘AO’, that the WRC, did not have jurisdiction to hear his complaint against Ms. Chow (the Respondent), as she was not the correct respondent and no employment relationship existed between Mr. Ng and her (see: ADJ-00021634).

Mr. Ng commenced work as a senior waiter in January 2016. He was interviewed and employed by Ms. Chow, who was, it was argued, his employer at all times.

Mr. Ng never received a contract of employment or any formal/written terms and conditions. He never received any payment details. He was paid €360 per week plus tips and was required to work in excess of 48 hours per week, with no distinction between public holidays and normal workdays. He was rostered to work each Sunday, Tuesday, Wednesday, Thursday and Friday morning.

Mr. Ng was summarily dismissed on 8 February 2019. He did not receive a P45 or P60.

Arguments

Mr. Ng lodged complaints with the WRC under several Acts against Ms. Chow, who responded on 29 May 2019, from which response it is clear that she accepted she was Mr. Ng’s employer. On 2 September 2019, just two days before the scheduled date for the WRC hearing on 4 September 2019, a ‘new’ respondent, identifying herself as Mui Lai Chow, stated that she was an employee of the restaurant. At the WRC hearing, Mui Lai Chow contended that she was an employee and that the correct employer was a company called MCF Catering Ltd. She presented various items of documentation in support of this assertion, including information to show the incorporation of MCF catering Ltd on 14 May 2018, more than two years and four months after commencement of Mr. Ng’s employment.

Labour Court Determination

The Labour Court was most disturbed to find itself in the very unsatisfactory position that Mr. Ng is left in something of a limbo, allegedly by virtue of the claimed failure of his former employer to meet the most basic information requirements of employment law concerning his employment and that this alleged very failure, itself, required the Labour Court to have to engage in what Mr. Ng’s representative described with some accuracy as ‘private detective’ work to ascertain who exactly was the employer?

The very absence of written confirmation of an employment relationship being produced to the Labour Court was a problem in getting to the heart of determining who the employer might be. The Labour Court noted the irony that the absence of documentation required by law creates a difficulty for the Labour Court in examining complaints regarding alleged breaches of employment law.

On balance, and not without some reservation, the Labour Court determined that it had to accept that the balance of documentary evidence favoured Ms. Chow’s argument that she was not the employer.

Conclusion

Before deciding on the substantive issues of a complaint, the WRC must first decide whether or not the complainant has named the correct respondent for the purpose of the submitted complaints. That being the case, the employee must name the correct respondent before initiating proceedings.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Dismissal for Refusing to Wear a Facemask?

Mon, 12 Apr 2021 07:54:57 GMT

Introduction

A UK employment tribunal (ET) was recently tasked with considering whether the dismissal of a lorry driver for his refusal to wear a face mask when visiting a client site, was fair and reasonable.

In Kubilius -v- Kent Food (Case Number: 3201960/2020 V), the complainant, a lorry driver, noted that there was no law requiring him to wear a face mask while on duty and therefore he was not obliged to do so.

Visiting a Client Site

A dispute arose when the complainant was attending to his duties at a client site. The client decided in May 2021 to require all staff at their site to wear face masks to reduce the risk of coronavirus infection. It required the same from all visitors to the site who were issued with face masks at reception.

A manager for the respondent company received a complaint from a manager at the client site noting that:

‘ Unfortunately we had an incident with one of your bulk liquid drivers this morning. The driver was asked repeatedly to put his mask on by one of our managers. Every driver receives a mask when he enters site with instructions to wear the mask when on site. He refused, saying he was in his cab and he didn't have to.

As a consequence he has now been banned from site on the grounds of noncompliance with health and safety rules. The vehicle registration was […].

If you could let us know the name of the driver so that we can put it in our banned driver list .’

The complainant contested the charge noting that:

‘I didn't nothing wrong, I just stay in my cab and staff from Tates [client] came to me and start required to keep mask on my face but I don't must seat in my cab with mask, my cab is my home. When I leaving my cab I wear mask and first its not the law .’

The complainant continued his protestations further noting that:

‘ Wearing a face covering is optional and is not required by law including in the workplace .’

Disciplinary Proceedings

Disciplinary proceedings were issued against the complainant with the company concluding that the complainant should ultimately be dismissed. It was argued by the respondent company that the complainant’s refusal to comply with a legitimate health and safety instruction was a serious breach of their policies and procedures.

Furthermore, the company was aggravated by the complainant’s lack of remorse during the disciplinary hearing. The company regarded the complainant’s misconduct and lack of remorse as potentially being more important factors than his refusal to wear a face mask at the client site. The company concluded that the trust and confidence between the parties had been irrevocably broken and that there was a risk the complainant would fail to comply with reasonable instructions in the future, thereby endangering the company’s good relationship with other clients.

In correspondence to the complainant, the company noted:

‘ You were given every opportunity to explain and account for your actions. We discussed:

The events that took place on the day, how you arrived at T&L [client] and signed in and was provided with a mask and how you wore this mask to carry out your duties when being loaded and then when you were waiting for paperwork whilst sitting in your truck you did not have the mask on.

How you were gestured by a T&L employee to wear your mask, to which you refused then held a conversation with the T&L employee regarding wearing the mask. This led to another conversation with a T&L manager asking you to wear your mask.

How you felt your space was being invaded as you were in your truck and did not feel it was a requirement to have a mask on. You informed me about the government guidance on wearing masks and I explained to you regarding the rules that T&L have imposed during this pandemic period.

The need to follow the rules, set by T&L despite no amendment in the documentation to state the wearing of masks, however having being provided with a mask on arrival and being asked to wear the mask at the time of realisation that it was not worn.

…

I am satisfied a full investigation has been conducted and you have failed to provide me with any mitigating factors as to why you did not wear your mask when requested. I consider your actions to be Gross Misconduct and having considered all alternatives have decided to summarily dismiss you with effect from 16th June 2020 .’

Dismissal Requirements

Section 94 of the UK Employment Rights Act 1996 is comparable to the Irish Unfair Dismissals Act, providing that an employee may not be unreasonably dismissed by their employer.

In Turner v East Midlands Trains Ltd [2013] ICR 525, Elias LJ (at paras 16–17) held:

‘… the band of reasonable responses test does not simply apply to the question whether the sanction of dismissal was permissible; it bears upon all aspects of the dismissal process. This includes whether the procedures adopted by the employer were adequate: see Whitbread plc (trading as Whitbread Medway Inns) v Hall [2001] ICR 699; and whether the pre-dismissal investigation was fair and appropriate: see J Sainsbury plc v Hitt [2003] ICR 111.’

It is not for the tribunal to make its own assessment of the credibility of witnesses on the basis of evidence given before it (Linfood Cash and Carry Ltd v Thomson [1989] ICR 518). The relevant question is whether an employer, acting reasonably and fairly in the circumstances, could properly have accepted the facts and opinions which they did. The tribunal must have logical and substantial grounds for concluding that no reasonable employer could have assessed the credibility of the witnesses in the way in which the employer did.

In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the tribunal’s view, have been appropriate, but rather whether dismissal was within the band of reasonable responses. The fact that other employers might reasonably have been more lenient is irrelevant (British Leyland (UK) Ltd v Swift [1981] IRLR 91).

Legitimacy of the Dismissal

The ET had to consider several factors in assessing the legitimacy of the dismissal.

In the first instance, the ET held that the refusal of the complainant to wear a face mask, under the circumstances, did amount to misconduct. By initiating an investigation and disciplinary process providing the complainant with a written statement of the charges against him, providing him with copies of all the evidence against him and allowing the complainant to be accompanied at the disciplinary hearings by a friend, who could assist with the interpretation as needed, the ET held that due process and fair procedure had been followed in this instance. The complainant was also given a right to appeal the decision.

The final determination the ET had to make was whether the respondent company had acted reasonably in all of the circumstances in treating the alleged misconduct as a sufficient reason for dismissal. The ET held that the refusal of the complainant to wear a face mask, coupled with the potential negative impact an ongoing refusal would have with the client base of the company, constituted a legitimate reason for the dismissal of the complainant. The complainant’s continued insistence that he had done nothing wrong caused the company to reasonably lose confidence in the complainant’s future conduct. That being the case, the ET held that it was not feasible for the complainant to continue his contractual role with the company.

Conclusion

Although this is a UK decision, it may provide some insight into how similar cases could be decided before the Workplace Relations Commission or Labour Court.

It is important to note, in this instance, the driver did not cite any physical or psychological reasons as to why he could not wear a face mask. There may be reasons why some employees may be unable to wear a face mask due to an underlying health condition. In such instances, employers will be compelled to adopt an alternative approach, which may ultimately require them to consider offering relevant employee’s alternative roles or duties, if available.

The Covid-19 pandemic has had a profound impact on how we work. Many employers had to make difficult decisions about how employees could or should work when the pandemic emerged. They may have done so in good faith cognisant of the guidance and advice available at that time.

However, disputes will invariably arise between employers and employees on this issue, and it will be interesting to see the body of case law that will ultimately emerge from the Workplace Relations Commission and Labour Court in respect of this issue.

Professional Reputation and the Disciplinary Process

Wed, 31 Mar 2021 07:07:33 GMT

Reputation and the Law

The importance of one’s professional reputation has been consistently recognised by the Irish courts, the Labour Court and the Workplace Relations Commission (WRC).

In a recent case (A HGV Lorry Driver -v- A Furniture Company (ADJ-00026562)), the WRC reaffirmed that the reputational consequences of a disciplinary process on an employee, should not be underestimated by employers, thereby necessitating strict compliance with generally accepted concepts of due process and fair procedure.

Fairness and Objectivity

In the present case, the employee had raised a complaint seeking adjudication by the WRC under Section 13 of the Industrial Relations Act 1969, alleging that he was unfairly sanction as an expired warning was taken into consideration by his employer.

In Bord Gais Eireann -v- A Worker AD1377, the Labour Court set out its remit in relation to disputes regarding internal investigations brought under Section 13 of the Industrial Relations Act 1969 as follows:

“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

This also applies to the WRC whose function is not to substitute its views for those involved in the process but rather to establish if the procedures adopted by the employer conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

Reputational Consequences

In relation to the appeal in the present case, the employee’s input was not sought so as to provide any rationale for an increase in sanction from verbal to written warning. Other aspects of the process adopted gave rise to concern including the absence of notice including the usual safeguards in relation to the disciplinary meeting and delineation from the investigation process.

The WRC pointed to the decision of the Court of Appeal Judgement of Pierce Dillon -v- The Board of Management of Catholic University School (2018) IECA 292, noting “the potentially significant reputational implications for the good name and employment prospects of the applicant were recognised even though the final warning had expired.”

It was noted in Dillon that, by virtue of Article 40.3.2 and Article 40.3.1 respectively these are constitutionally protected rights and the courts are obliged in particular to ensure that the constitutional right to good name in both a professional and employment context is adequately vindicated (see also Corbally v. Medical Council ([2015] IESC 9); and ACC Loan Management Ltd. v. Barry ([2015] IECA 224)).

Further support for this proposition is also to be found in the judgment of Quirke J in De Roiste v Judge Advocate General [2005] 3 I.R. 494, which involved the involuntary discharge of a member of the Defence Forces, on suspicion of association with subversives:

"It is inescapable that the findings and conclusions resulting from the process had the capacity to affect the applicant's reputation and good name whether favourably or adversely. He enjoys the right to a reputation and a good name. That right is constitutionally protected.

I am satisfied that since the process undertaken directly concerned matters relating to the applicant's reputation and good name, its findings and outcome affected his constitutionally protected right to his reputation and good name. Accordingly, he had a legitimate, fundamental significant interest in the process and is entitled to seek the relief which he has sought in these proceedings."

Recommendation of the WRC

In the present case, Section 13 of the Industrial Relations Acts 1969 required that the WRC make a recommendation in relation to the dispute. Arising from the aforesaid, the WRC recommended that any documentation pertaining to the expired verbal and written warning be expunged from the employee’s employment file.

Correction of Personal File

In A Worker v A Local Authority (ADJ-00027533), the worker raised a number of grievances under section 13 of the Industrial Relations Act, 1969, which he claimed the employer did not address. These included a failure by the employer to investigate a bullying complaint that he made, a reduction in his overtime payments as well as a failure to make him aware of certain documents which were on his personnel file. The Adjudication Officer noted that since filing the complaints, the worker had been shown a copy of his personnel file, was fully aware of the contents of same and that any allegations made against him have been removed. That being the case the employer preempted a solution that would have been recommended by the Adjudication Officer.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Ex Gratia Payment or Contractual Entitlement?

Mon, 29 Mar 2021 08:49:32 GMT

Ex Gratia Payment or Contractual Entitlement?

Many employers will agree to make an ex-gratia payment to an employee to reflect a particular change in circumstances, reward good behavior or excellent performance. In some instances, that payment may be compensation for a detriment suffered.

For many employers, making an ex-gratia payment comes with significant concerns. In general, they are worried that the payment may be construed as a contractual entitlement or set a precedent for other employees.

This issue was recently debated in the Workplace Relations Commission case of A Storeman/Driver -v- An Employer (ADJ-00015110).

Background

In short, in order to facilitate a reasonable accommodation to a short-term incapacity, the employee was transferred to an alternative location. in recognition of the inconvenience caused by this transfer, he was paid a public transport allowance of €44 per week.

The employee claimed this became an essential feature of his contract of employment, whereas the employer counter argued that the payment was only ever a temporary arrangement, which would cease when the employee returned to his original location.

Reasoning of the WRC

Having carefully considered the parties submissions, the WRC found that the employer offered the employee a temporary position to facilitate his return to work on modified duties. The employee accepted this temporary move. The employer clearly outlined to the employee that “in addition due to the unique circumstances in this case (without precedent) will receive the fixed payment of 44 euros per week which is the public transport rate to travel to [Location B]”.

It was clear that this payment was offered as a gesture of goodwill and was not an entitlement. Neither the employee nor his representative questioned that at the time.

Having considered the submissions of both parties and for the reasons stated, the WRC did not recommend in favour of the employee.

Conclusion

The employer, in this instance, had copious correspondence which clearly indicated that there was never an intention to make the allowance afforded a permanent feature of the employment relationship. It was clearly articulated that this payment was made as a gesture of goodwill and would not set a precedent for the employee concerned or other employees.

Should an employer find themselves in a comparable situation, it is critical that the intention of the employer is clearly set out to the employee concerned, in order to avoid or defeat a similar claim.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Sleeping on the Job? A Right to be Paid?

Fri, 26 Mar 2021 09:14:59 GMT

Introduction

Many employees, by the very nature of their work, are required to sleep at their place of employment. Very often, these can be emergency or frontline workers who are required to be nearby, should a situation arise that requires their immediate attention. However, should they be paid for the time they are asleep?

The UK Supreme Court recently deliberated on this matter, finding that relevant employees should only be paid for the hours they are awake, attending to their duties.

Right to be Paid during 'Sleeping Hours'

Ms Tomlinson-Blake was a highly qualified care support worker who provided care to two vulnerable adults at their own home. When she worked at night, she was permitted to sleep but had to remain at her place of work. She had no duties to perform except to “keep a listening ear out” while asleep and to attend to emergencies, which were infrequent. For each night shift, she was paid an allowance plus one hour’s pay at the NMW rate. She brought proceedings to recover arrears of wages on the basis that she was entitled to be paid the NMW for each hour of her sleep-in shift. Her work was time work.

The employment tribunal (the “ET”) and, on appeal, the employment appeal tribunal (the “EAT”) found that Mrs Tomlinson-Blake was not merely available for work but actually working throughout her shift, even when asleep. Therefore each hour of her sleep-in shift had to be included in the NMW calculation.

Right to be Paid during 'Working Hours'

The UK Supreme Court concluded that the meaning of the sleep-in provisions in the National Minimum Wage Regulations 1999 and National Minimum Wage Regulations 2015 is that, if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the National Minimum Wage calculation for time work or salaried hours work unless the worker is awake for the purpose of working.

Conclusion

This case rested on certain very specific definitions contained within the UK legislation. Although not directly applicable to this jurisdiction, the case may be a useful reference for relevant parties in similar payment-of-wages disputes.

Further Information

For further information, please contact the author of this article, Barry Crushell .

Sexual Harassment under Irish Law - A Guide

Tue, 16 Mar 2021 15:39:54 GMT

What is ‘harassment’ under Irish Employment Law?

T he Labour Court in the case of Nail Zone Ltd v A Worker, Labour Court Determination EDA 1023, 10 November 2010, defined the law in relation to harassment as follows:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the complainant, it constitutes harassment for the purpose of the Acts.”

It is also worth citing the Department of Equality and Law Reform’s Code of Practice on Measures to Protect the Dignity of women and men at work (1994) on the point that the focus in this definition is upon how the conduct was regarded by the recipient rather than upon the motive or intention of the perpetrator.

Sexual Harassment and Irish Employment Equality Law

Section 14A of the Employment Equality Act, 1998, broadly defines sexual harassment as:

“any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

It is also worth noting the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012, which provides a non-exhaustive list of examples:

Physical conduct of a sexual nature

This may include unwanted physical contact such as unnecessarily touching, patting or pinching or brushing against another employee’s body, assault or coercive sexual intercourse.

Verbal conduct of a sexual nature

This includes unwelcome sexual advances, propositions or pressure for sexual activity, continued suggestions for social activity outside the work place after it has been made clear that such suggestions are unwelcome, unwanted or offensive flirtations, suggestive remarks, innuendos or lewd comments.

Non-verbal conduct of a sexual nature

This may include the display of pornographic or sexually suggestive pictures, objects, written materials, e-mails, text-messages or faxes. It may also include leering, whistling or making sexual gestures.

Code of Practice on Sexual Harassment and Harassment at Work

The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 S.I. No. 208 of 2012 sets out a Code of Practice on Sexual Harassment and Harassment at Work (Code of Pr actice). This Code of Practice is issued as a guideline for employers and employees. The provisions of the code are admissible in evidence in proceedings before an Adjudication Hearing of the Workplace Relations Commission.

The Code, amongst other things, sets out the scope of sexual harassment provisions: "The scope of the sexual harassment and harassment provisions extend beyond the workplace, for example to conferences and training that occur outside the workplace. It may extend to work-related social events.”

Harassment outside of the Workplace

Does harassment outside of work, by an employer or colleague, have any relevance?

It is worth examining the case of A Limited Company v One Female Employee (EE10/1998), where the Equality Officer concluded that “within the scope of employment” can include events outside of the workplace. In that case, the claimant was allegedly harassed by two colleagues during a residential company training programme in a hotel.

Burden of Proof in Sexual Harassment Cases

Ordinarily, the onus is on the employer to prove that no sexual harassment occurred.

There is significant case law in support of this position, the starting point would be the decision of the Labour Court in Southern Health Board v Mitchell (AEE/99/E) a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

Notwithstanding legal precedent, all cases rests on their own particular facts and evidence.

Defence to Claim of Sexual Harassment

Section 14A (2) of the Employment Equality Act, 1998 provides that it shall be a defence for an employer to show that it took such steps as are reasonably practicable to prevent sexual harassment occurring in the workplace and in circumstances where such harassment has occurred it took action to reverse its effect.

Employers are legally responsible for the sexual harassment and harassment of employees carried out by co-employees, clients, customers or other business contacts of the employer. It is a defence for the employer to prove that he/she took reasonably practicable steps to prevent:

— the employee from being harassed

— the employee from being treated differently in the workplace or in the course of employment and, if and so far as any such treatment has occurred, to reverse the effects of it.

In order to rely on this defence employers must show that they have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action, and also accessible effective complaints procedures. The measures taken to put the policies and procedures into practice will also be taken into account by courts and tribunals: employers will not be able to rely on an excellent policy if it has not been effectively implemented.

The Labour Court has consistently held that in order for an employer to avail of the first component of this defence it must show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the sexual harassment occurred and that the policy was effectively communicated to staff.

A Guide to Redundancy Law in Ireland

Tue, 16 Mar 2021 15:22:25 GMT

Redundancy Law Resources:

Introductio n to Irish Redundancy Law

For most employers citing redundancy, they will need to demonstrate that there have been significant changes in the direction of the business, closure of all or particular parts of the business, or significant changes in how the business operates.

Quite often, a business will justify the dismissal of employment by redundancy, by the justification that they intend to carry out the business, in a way and manner, for which the skill-set of the dismissed employee, is no longer required.

Another potential scenario is when businesses assert that they will carry on providing the same type of service or output, but will do so with a fewer number of employees.

Furthermore, a business may cite a change in working methods, as justification for the dismissal of an employee, by way of redundancy.

The Unfair Dismissals Act provides that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to -

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed ( or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

Selection Method for Redundancy due to Covid-19

In circumstances where redundancy is unavoidable, there is an onus on the employer to establish reasonable and objective criteria for selection and must apply such criteria fairly.

An employer is permitted to retain their best and most critical employees, in a revised and restructured organization. However, there must be some objective criteria, against which, employees are judged and appraised, for redundancy selection. The type of criteria usually utilized includes qualifications or training, educational qualifications, experience, client relationships, work rate, technical skills, quality of work and length of service.

In any potential claim, it would be expected that an employer would be able to provide some criteria, against which, the dismissed employee was measured, against those who eventually retained their roles.

In the case of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated;

“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as section 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned”. Redundancy, cannot, therefore be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”

Judge Charlton recited the specific legal requirements in effecting a legitimate redundancy, the first is Section 7(2) of the Redundancy Payments Act 1967, as amended by Section 4 of the 1971 Act, and by the Redundancy Payments Act 2003, wherein Section 5 (2) 1 requires that “(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly … “ five listed grounds.

Thus, highlighting the essential requirement of “impersonality” in effecting a fair dismissal on grounds of redundancy, noting later that in St. Leger v Frontline Distributors Ireland Ltd [1995] E.L.R 160, an EAT Chairman stated that “Impersonality runs throughout the five definitions in the Act.”

In this case, Judge Charelton remarked that “It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined” and that “a fair selection procedure may indicate an honest approach to redundancy by an employer”

Meaningful Engagement and Alternatives to Redundancy

An employer will need to have meaningfully engaged with the proposed employees selected for redundancy, to determine whether there are any alternatives to the redundancy. If an employee offers to work in another department, relocate, work in another position, take reduced hours and/or a reduction in salary, the employer will need to demonstrate that they took into consideration, the suggestions made. The employer may, during a Workplace Relations Commission hearing, be asked to explain, why the employee proposal was not sufficient or reasonable, in avoiding their redundancy.

In Jeffers v DDC Ireland Ltd. UD 169/2000, the EAT held that where a person was being made redundant, there was an onus on the employer “(i) to take reasonable steps to seek alternative employment within the company for the employee being made redundant, (ii) to know what positions, if any, are available on the relevant date, and (iii) to offer any such reasonable alternative positions to the employee whose position is becoming redundant.”

Similarly, in JVC Europe Limited the High Court noted:

“It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go should be examined. … Similarly, a fair selection procedure may indicate an honest approach to redundancy by an employer … Following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision. As with much else, an apparently fair procedure can be used as a cloak for deceptive conduct. It may be followed in form only so as to mask an ulterior motive or with no intention of fulfilling its purpose, even should the best of reasons for not proceeding to redundancy arise during its course.”

In Keogh v Mentroy Limited UD 209/2009, the EAT found in favour of the employee in circumstances where performance issues had been raised. In that case there was a downturn in business and the employer in that case only selected the manager’s role while other more junior roles were being filled:

“In light of these extraneous considerations it seems that the employer failed to take an overall view of the workplace with the objective of seeing what would be the fairest thing to all its employees. The Tribunal does not doubt that the claimant would have returned to the shopfloor on a lesser salary rather than be faced with unemployment. There were many options open to the employer including short time and layoff… The reasons given were not the reasons being relied upon. No consideration was given to alternative workplace arrangements where the claimant was eager to stay and the hours were required.”

Dismissing 'Difficult' Employees by way of Redundancy

In Daly v Hanson Industries Ltd UD 719/1986, it was noted that, when considering any redundancy defence raised by an employer, the defence may be tested in two ways:

(a) was the redundancy genuine, or did the dismissal take place under the cloak of redundancy?

(b) was there a cause and effect relationship between the redundancy and the dismissal?

In Engineer v Consulting Engineering Company ADJ00016780 the WRC found that the key characteristics of a redundancy process require “impersonality” and “change”. In that case, the WRC found the complainant had been unfairly dismissed following a redundancy process initiated only after complaints were raised by the employee in relation to the inappropriate behaviour of management.

The EAT was faced with a similar position in Capaldi v C-Step Shoes Ltd UD 806/1989 where it found in favour of the employee on the basis of the evidence before it that:

"...the Managing Director did threaten to let her go at his first interview with her. In our view he would have done so if he could but... instead, he contrived a redundancy so as to get rid of her."

Lay-Off due to Covid-19

Ordinarily, if an employee has been on lay-off for 4 weeks or more, or 6 weeks in the previous 13 weeks, they may be entitled to propose their intention to claim redundancy from their employer, who in turn, can confirm the redundancy or issue a counter-notice, within 7 days.

During lay off, an employee is still ‘employed’ by their employer and the essential terms of their contract of employment remain in force.

Calculating Redundancy Pay

Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service.

A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00.

Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. Redundancy payment is tax free.

An employee must be able to show a minimum two years (104 weeks) of service in the employment.

Responsibility to pay Statutory Redundancy rests with the employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).

In the event that an employer refuses to engage with an employee in this way it is open for the employee to bring an appropriate complaint before the WRC.

The employee must have made a claim for a redundancy payment from an employer by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended).

The time limit may be extended to 104 weeks where reasonable cause has given rise to the failure to apply and the WRC so finds.

Conclusion

If an employee believes that a genuine redundancy scenario does not exist, that they have been unfairly selected, or that the employer failed to meaningfully engage with them as to potential alternatives, they may be entitled to bring a claim for unfair dismissal before the Workplace Relations Commission.

A Guide to Contracts of Employment under Irish Law

Tue, 16 Mar 2021 14:57:37 GMT

Terms of Employment (Information) Act Resources:

Statement of Terms / Contract of Employment under Irish Employment Law

The below case is illustrative of how the issue of non-provision of a statement of terms / contract of employment, is dealt with under Irish employment law.

In A Bar Manager v A Public House ADJ-00026363 , the employee brought a complaint to the Workplace Relations Commission (WRC), asserting that he never received any document in writing setting out the details of his terms and conditions of employment. The WRC accepted that the employee never requested such a statement. The employer did not dispute this evidence.

It was apparent therefore, that no statement concerning his terms and conditions of employment was issued to the employee by the employer.

Why is a Statement of Terms / Contract of Employment necessary?

The employer in his case availed of the assistance of a human resources specialist and it was deemed unlikely that he was unaware of his legal responsibilities to this employee regarding his entitlement to a written statement setting out his terms and conditions of employment.

The effect of not providing such a statement means that the employment relationship is tarnished with uncertainty and it is difficult for the employee to assert his rights during, and at the termination of his employment.

When should an employee receive a Statement of Terms / Contract of Employment?

The WRC went on to note that Section 3 of the Terms of Employment (Information) Act was amended by the Employment (Miscellaneous Provisions) Act 2018, resulting in a new obligation on employers to provide a written statement of certain terms and conditions of employment within five days of an employee’s start date.

What should be included in a Statement of Terms / Contract of Employment?

Generally written up in the form of a contract, a statement of terms includes the following:

The name of the employer and the employee;
The address of the employer;
The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;
The job title or the nature of the work that the employee is required to carry out;
The date that the employee commences in the job;
If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;
The rate or method of calculation of the employee’s pay;
The frequency of pay;
Any terms or conditions relating to hours of work (including overtime);
Any conditions relating to paid leave (other than paid sick leave);
Any terms or conditions relating to –
Incapacity for work due to sickness or injury and paid sick leave;
pensions and pension schemes;
The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;
Details of any collective agreement which affects the employee’s terms and conditions of employment.

Redress for not receiving a Statement of Terms / Contract of Employment

The WRC referred to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919 , where Ms Hayes Kelly claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment must be considered to be more serious than issuing an imperfect statement, the WRC followed the authority of the Labour Court and made the maximum award of four weeks.

A Guide to Settlement Agreements under Irish Law

Tue, 16 Mar 2021 14:47:04 GMT

Settlement Agreement Resources:

What is a Settlement Agreement?

A settlement agreement is a contract between two parties, confirming that neither party, has any dispute with the other. There should be some financial incentives for an employee to sign a settlement agreement, which we will examine later.

Is a settlement agreement the same as a compromise agreement?

Settlement agreements often go by a variety of other names. They are sometimes referred to as ‘exit agreements’, ‘compromise agreements’, or ‘termination agreements’. However, their principal purpose remains the same, regardless of how they are described, to record the final and agreed terms between a departing employee and his or her employer.

Legal Impact of a Settlement Agreement

The main legal impact of a settlement agreement is that it will prevent an employee from bringing any future claim against the employer.

The consequences of such an agreement cannot be overstated, particularly if there is or was a dispute between the parties.

Although a settlement agreement, is often intended to finalize any employment law dispute between the parties, an employee may also be waiving any other right they have, to bring any legal claim, against their employer.

Very often, an employee may have multiple potential claims against their employer. Such claims could or may include claims for personal injury or defamation. Although the settlement agreement is intended to primarily relate to an employment dispute, an employee may be waiving all potential legal claims against their employer.

An employee really needs to consider, whether the terms of a settlement agreement, are so advantageous, that they are willing to lose those potential legal rights.

(Also see Compromise Agreements, the Workplace Relations Commission, and Independent Legal Advice )

Liability under a Settlement Agreement

A settlement agreement usually includes a clause, which alludes to the fact that the agreement is entered, by both parties, without any acceptance of liability, on either side.

What this means, is that, despite the potential or actual existence of a dispute between the parties, and the attribution of blame to either side, both parties decide, that for the purposes of the agreement, neither side shall attribute blame to the other, and that the agreement is being freely executed, by both parties, with their full consent and endorsement.

Why agree to a Settlement Agreement?

The execution of a settlement agreement often comes down to a simple risk assessment and cost-benefit analysis.

For the employer, he or she will be looking at the likelihood of a case being taken against them, the chances of success, and a calculation of a potential award if the claim is successful. To insulate themselves from that risk, they may offer more favourable terms to the departing employee, in return for their agreeing not to pursue any claim or litigation against the employer.

For the employee, he or she may have a legitimate claim against the employer, however, there is never any guarantee of success, when one initiates a workplace claim, particularly before the Workplace Relations Commission. Therefore, he or she may also undertake their own risk analysis and cost-benefit assessment, to determine their own likelihood of success, in bringing a claim, the potential costs involved, as well as the likelihood of an award.

Furthermore, both parties will be cognizant of the legal and reputational costs, in bringing or defending a workplace claim or litigation.

For that reason, a settlement agreement is commonly referred to as a ‘compromise agreement’, in that neither party gets exactly what they want, but both have certainty that they avoid often costly, lengthy, and reputationally damaging litigation.

Settlement Agreements and Redundancy

In circumstances where redundancy is unavoidable, there is an onus on the employer to establish reasonable and objective criteria for redundancy selection and must apply such criteria fairly. There should be some objective criteria, against which employees are judged and appraised for redundancy selection. Furthermore, an employer must take into account any of the alternative proposals suggested by an employee, to avoid redundancy.

Even a well intentioned employer may fall short of these exacting standards, leaving some room for a claim for unfair dismissal by a redundant employee. A settlement agreement protects an employer from such a claim, helps maintains goodwill with the departing employee and improves morale among retained staff.

It is important to note that the statutory payment owed to a redundant employee is independent of any additional financial incentive offered under the terms of a settlement agreement.

Can an employee ask for a Settlement Agreement?

In the vast majority of cases, a settlement agreement is proposed by an employer, to the departing employee, whose employment, for whatever reason, has been terminated by that employer.

Very often, an employer wishes to avoid potential disputes or negative publicity, and therefore suggests the execution of a settlement agreement. In return for a more lucrative parting financial arrangement, an employee agrees that he or she will not take any action against the employer, in the future.

If an employee wishes to avoid a potential dispute with their employer, it may be tempting to request a settlement agreement as a means of resolving any issues between them. However, an employee would be best served speaking to a solicitor in the first instance, to determine what potential actions they may have against their employer, the likelihood of success, the cost of any potential action and what, as an alternative, a negotiated settlement may look like.

A solicitor will have the benefit of being able to open a negotiation on a 'without prejudice' basis, which may address some of the confidentiality concerns an employee may have.

What should be contained in a Settlement Agreement?

A settlement agreement will contain reference to the identity of the parties, the termination of employment, the financial terms of the agreement, taxation of the payment, confidentiality clauses, non-disparagement clauses, return of company property clauses, a governing law clause and most importantly, confirmation that the employee has no further dispute with the employer.

There may be additional clauses relating to the on-going cooperation of the departing employee and the provision of a reference. As a private agreement, it is entirely at the discretion of the parties to agree whatever terms are relevant to their own circumstances.

What does ‘Without Prejudice’ and ‘Subject to Contract’ mean?

When a settlement agreement is often put before an employee, it is on the basis that, should the employee refuse to accept it, he or she will be precluded from relying on that proposal, in any form, in any future litigation.

By marking the document has being ‘without prejudice’ and ‘subject to contract’, an employer prevents the proposal from having any legal standing, until such time as it is executed by both parties, thereby affording both parties, an opportunity to freely negotiate the terms of the agreement, without fear that their respective positions, can be used against them, if any dispute between them, isn’t settled throughout the negotiation process.

Until such time as the agreement is signed by both the employer and employee, it has no legal standing.

(Also see Settlement Agreements - What does 'Without Prejudice' Mean? )

Financial Terms of a Settlement Agreement

The financial terms of a settlement agreement are something that is entirely negotiable between the parties. As a private agreement, there are no legal prerequisites, as to what the financial terms of a settlement agreement should be. However, it is important, that the agreement provides for remuneration, beyond which, the employee would ordinarily be entitled to.

There is no obligation on an employee to sign a settlement agreement, and should only do so, if the financial terms are favorable to them. It is therefore important, for both parties, to appreciate the consequences of the document they are signing. For the employee, it is crucial that they consider whether the compensation afforded, is commensurate with their proposed loss of legal rights.

Identity of the Parties

It may be taken for granted, but very often a settlement agreement incorrectly states the name of the parties to the agreement. In the vast majority of cases, where these issues arise, the name of the employer has been incorrectly stated.

Very often, an employer will have a variety of corporate forms, and it is critical, that the correct company, actually employing the employee, per their contract of employment, is listed as being party to the agreement.

If the employee has had a considerable amount of exposure to any of the affiliated companies of the employer, it may be useful to refer to those entities, to ensure that the right to a potential claim against those affiliates, is also precluded.

Termination of Employment under Settlement Agreement

Because a settlement agreement is marked without prejudice and subject to contract, it is very often, for the parties concerned, to determine what the public cause, of the termination of employment, will be. This can be of strategic advantage for both the employer and the employee.

An employee will be afforded an opportunity to present a plausible explanation for their departure, to any future employer, while an employer, maybe in a better position, to mitigate the potential internal reputational impact, the termination of the employee concerned, will have within the organization.

In some instances, control of the narrative, can often be more important to the departing employee, then any financial terms.

Furthermore, in addition to financial remuneration, the employee may seek a reference from their employer.

Non-Disparagement under a Settlement Agreement

When an employee is departing a company on negative terms, it is often the case that the employee concerned will vent to friends and family. There is also a risk that the employee will make negative statements about their employer online or on social media. That employee, may in turn, be concerned about what is being said about them, internally, when they depart the company.

A settlement agreement will nearly always include a non-disparagement clause, within which both parties agree not to say anything negative about the other, after the execution of the agreement.

Taxation of Settlement Agreement

Virtually all settlement agreements, have a provision, which notes that the final payment will be made in the most tax efficient manner possible. Ordinarily, this means that the final amount to be paid to the employee, will, under a settlement agreement, have more value, than if that same amount were paid through salary.

It is critical that any employee agreeing to a settlement agreement, obtain independent advice from an accountant, tax advisor, or Revenue, as to the financial implications of signing a settlement agreement. This is to ensure, that expectations as to the value of a potential settlement agreement amount, are grounded in reality.

Furthermore, before payment of the final sum, the employer should confirm, with the employee, any and all deductions, that will be made.

Independent Legal Advice

An employee will be deemed to have freely entered into a settlement agreement, if they have been fully informed of the consequences of executing such an agreement. Therefore, in most cases, a settlement agreement will include a clause where in, the employer will afford the employee, and opportunity to have the agreement independently assessed, by their own solicitor.

The employer will often make a contribution towards that independent legal advice. However, just because an employer is making that contribution, does not mean that the solicitor concerned, should be advocating the execution of the agreement. Independent legal advice, prior to the execution of a settlement or exit agreement, is designed to ensure that the employee concerned, is fully appraised, of the consequences of signing the agreement.

There are a number of questions that will be asked to determine whether informed consent was given.

(Also see Settlement Agreements and Independent Legal Advice )

Settlement Agreement and Informed Consent

The WRC will need to be satisfied that there was informed consent. Does the agreement advise the employee in writing to seek legal advice as to his/her rights and contain an acknowledgement that he/she had availed of such advice by signing the agreement?

Duress to sign a Settlement Agreement?

Is there evidence of oppression or undue pressure being brought to bear amounting to duress? Did the employee have an opportunity to consider his position and avail of appropriate advice before signing the agreement and it was open to him to reject the offer and pursue a complaint to the WRC instead.

Did Employer and Employee execute the Settlement Agreement?

Ultimately, did both parties act upon the agreement with the employee paying over the ex gratia sum and by the employee accepting same.

If each of these conditions are satisfied, the employee will be estopped from pursuing a complaint under and the WRC will not have jurisdiction to adjudicate on the substantive complaint.

Is a Solicitor's Signature or Stamp Required on a Settlement Agreement?

Not necessarily. Usually the evidence that an employee has obtained independent legal advice will be the invoicing of the employer, by the solicitor, directly.

A typical clause may note that ' the company shall pay the reasonable legal fees incurred by the employee in obtaining advice on the termination of their employment and the terms of this agreement, such fees shall be invoiced and addressed to the employee but marked as being payable by the company .'

Another sample clause would be to note who undertook the independent review of the settlement agreement, through language such as ' you confirm that you have had the opportunity to take independent legal advice from [insert solicitors name and firm here] in relation to the contents of this settlement agreement and the implications of the conditions contained in this settlement agreement. '

If the employee needs a witness to sign the agreement, a solicitor can indeed witness that signature. However, a specific request for the solicitor to sign or stamp the agreement, would be most unusual.

What happens if you don't accept a Settlement Agreement?

There is no obligation to accept a settlement agreement, and if you refuse to accept the terms offered, you will be able to pursue whatever potential claims you have against your employer, in the usual manner.

However, as with any dispute or litigation action, there will be no guarantee as to the outcome, and you may ultimately be awarded less than you were offered under the settlement agreement, even if your claim is successful.

In addition, you will be precluded from relying on the terms of the proposed settlement agreement in any subsequent dispute, if the agreement was marked 'without prejudice'.

Conclusion

The termination of one’s employment, for whatever reason, is a significant occurrence in anyone's professional life. It is very often a difficult and emotionally charged period.

Any employee considering executing a settlement agreement, needs clear and concise advice on the potential consequences of signing such an agreement. In order for them to be fully appraised, they need to know what their potential legal rights are. For that reason, we always advise, that employees obtain their independent legal advice, from a specialist employment solicitor, who is fully aware of all of the potential actions that an employee may take.

Employee should know what potential complaints they may be in a position to raise, the likelihood of success, the cost of bringing such a claim, and the potential awards. It is only through an understanding of what the alternatives to a settlement agreement are, that an employee can be considered to be fully informed as to the consequences of signing that agreement and waiving their employment rights.

Guide to Equality Law in Ireland

Tue, 16 Mar 2021 13:56:45 GMT

Employment Equality Law Resources:

Employment Equality Legislation

Section 85A of the Employment Equality Act provides as follows in relation to the burden of proof which a complainant must establish:

85A (1) Where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination

(b) victimisation

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85A as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

Providing a Claim of Discrimination in the Workplace

It has been the well-established practice of the Workplace Relations Commission and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that they were treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

The Labour Court also considered this matter in Determination No. EDA0821, Cork City Council v McCarthy as follows:

“At this initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary for her to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be reasonably drawn from those facts.”

In another case, EDA0823, Dyflin Publications Limited v Spasic, the Labour Court also considered how a corresponding provision in U.K. legislation would be considered in that jurisdiction and quoted from a Court of Appeal decision, Madarassy v Nomura International plc, (2007) IRLR246.

“Section 63A(2) does not expressly or impliedly prevent the tribunal from hearing, accepting or drawing inferences from evidence adduced by the respondents disputing or rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they are not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which the comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.”

The Labour Court then went on to state:

“What the passage quoted indicates is that the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the Court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”

Inferring Discrimination in the Workplace

In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the Labour Court stated in respect of the provisions under employment equality legislation, requiring proof of discrimination, that:

“This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”2.4 The College submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the College to rebut the inference of discrimination raised. The College submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

Summary - Bringing a Claim under the Employment Equality Acts

Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination.

It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the Respondent to prove the absence of discrimination.

The test for applying that provision is well settled in a line of decisions of the Workplace Relations Commission and the Labour Court as set out above and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination.

It is only if this initial burden is discharged and the Adjudication Officer of the Workplace Relations Commission is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent.

If the complainant does not discharge the initial probative burden required, their case cannot succeed.

Guide to Constructive Dismissal in Ireland

Tue, 16 Mar 2021 13:23:48 GMT

Constructive Dismissal Law Resources:

Constructive Dismissal Under Irish Employment Law

Section 1(b) of the Unfair Dismissals Act defines constructive dismissal as “ the termination by the employee of his/her contract of employment with his/her employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer ”.

The Unfair Dismissals Act envisages two circumstances in which a resignation may be considered a constructive dismissal.

(Also see A Guide to Unfair Dismissal in Ireland )

Contract Test

The first arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “ contract test ”. This requires that an employer be “ guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance ” as held in Western Excavating (ECC) Ltd. v Sharp .

(Also see Non Payment of Wages and Unfair Dismissal )

Reasonableness Test

There is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he/she is justified in leaving. The question for the Workplace Relations Commission to decide is whether, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for him/her to terminate their contract of employment.

By way of example, it was recently held that the covert monitoring of an employee without her consent was a significant breach of the trust and confidence between the parties, so much so that the employee was entitled to tender her resignation (see Employer Surveillance, Consent and Constructive Dismissal ).

The burden of proof, which is a very high one, lies on the employee. The employee must show that their resignation was not voluntary.

As is set out in Western Excavating ECC Limited –v- Sharp , the legal test to be applied is “an and / or test”.

The WRC must first look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract “ if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance ”.

If the WRC is not satisfied that the “contract” test has been proven, then it is obliged to consider the “reasonableness” test “the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”.

Proving a Claim for Constructive Dismissal

In a constructive dismissal claim, the burden of proof shifts to the person making the claim, the employee.

They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign.

The employee needs to demonstrate that they have no option but to resign.

In addition, there must have to be something 'wrong' with the employer’s conduct.

Breach of Trust and Confidence

In circumstances were the contract test has not been significantly advanced or satisfied, the WRC may look at the ‘reasonableness’ test and examine whether the employer conducted himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving.

The 'Bond of Trust' issue is best set out in the leading UK case of Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23, which confirmed the existence of the implied term of mutual trust and confidence in all contracts of employment.

Mr Malik and Mr Mahmud both worked for the Bank of Credit and Commerce International. BCCI went insolvent due to massive fraud, connection with terrorists, money-laundering, extortion and a raft of other criminal activity on a global scale. Malik and Mahmud had both lost their jobs and they sought employment elsewhere. They could not find jobs. They sued the company for their loss of job prospects, alleging that their failure to secure new jobs was due to the reputational damage they had suffered from working with BCCI.

Nobody, they said, wanted to hire people from a massive fraud operation like that at the company. This raised the question of what duty the company had owed to its employees that had been broken. Although there was no express term in their contracts, Malik and Mahmud argued there was an implied term in their employment contract that nothing would be done calculated to undermine mutual trust and confidence.

The House of Lords unanimously held that the term of mutual trust and confidence would be implied into the contract as a necessary incident of the employment relation. This was a term implied by law.

Constructive Dismissal and Irish Case Law

In Berber v Dunnes Stores Finnegan J stated:

“ The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is as such that the employee cannot be expected to put up with it ”.

In Murray v Rockavill Shellfish Ltd it was affirmed that:

“ It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning ”.

In UD142/1987 Beatty v Bayside Supermarkets it was noted that:

“ The Tribunal considers that it is reasonable to expect that procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster bank Ltd 474/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was not constructively dismissed ”.

Using Internal Grievance Procedures before Resignation

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd . (UD 474/1981) whereby the Employment Appeals Tribunal stated that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd it was noted that:

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases, it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair .”

It is well established that the employee is required to exhaust the company’s internal grievance procedures in an effort to resolve their grievance prior to resigning and initiating a claim for unfair dismissal.

In UD1350/2014 M Reid v Oracle EMEA Ltd it was stated that:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

In Tierney v DER Ireland Ltd it was stated that:

“... central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

However, in Office Administrator v A Manufacturer ADJ-00026208 , it was held that, in the absence of a clear grievance procedure, and given the breakdown in trust and confidence between the parties, there was no need to exhaust the grievance procedure:

" In the context of the issue involved the use of a grievance procedure was both pointless and also unclear if indeed there was one in existence, based on the contractual evidence of the employee.

Overall, I find that the Complainant, in the uncontested evidence provided, had significant grounds to resign, without invoking a grievance procedure, due to the Bond of Trust being irrevocably broken down between the parties and accordingly I find the Complainant to be unfairly dismissed ."

(Also see Unfair Dismissal, Constructive Dismissal and Raising a Complaint before Resignation )

Takeaway

Harkin v Guinness Storehouse Ltd provides a useful summary of constructive dismissal law in Ireland, wherein it was sated that there must be a breach of an essential term of the contract which goes to the root of the contract and it must be reasonable for the employee to resign because the employer has acted so unreasonably that the employee could not be fairly expected to put up with it any longer.

As set out in the above cases, for an employee to succeed in claiming constructive dismissal, they must establish that the conduct of the employer was such that they had no option but to resign their position.

A Guide to Protected Disclosures

Tue, 16 Mar 2021 09:05:53 GMT

Protected Disclosure Resources:

What is a “Protected Disclosure”?

“Protected disclosure” is defined as being a disclosure of relevant information made by a worker in accordance with Sections 6, 7, 8, 9 or 10 of the Protected Disclosures Act (the Act).

(Also see A Guide to Protected Disclosures under Irish Employment Law )

What is “Relevant Information”?

“Relevant information” is defined as information which:

in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings; and
it came to the attention of the worker in connection with the worker’s employment.

What is “Relevant Wrongdoings”?

“Relevant wrongdoings” are the following:

that an offence has been, is being or is likely to be committed;
that a person has failed, is failing or likely to fail to comply with any legal obligation, other than one rising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work;
that a miscarriage of justice has occurred, is occurring or is likely to occur;
that the health or safety of an individual has been, is being or is likely to be endangered;
that the environment has been, is being or is likely to be damaged;
that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or likely to occur;
that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement; or
that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

Protected Disclosures and Jurisdiction

The Act expressly provides that it is immaterial whether a relevant wrongdoing occurred within the State or elsewhere and it is also irrelevant whether the law applying to that alleged wrongdoing is that of the State or that of another country or territory.

Making a Protected Disclosure

The Act provides a disclosure process with the objective that disclosure should be, wherever possible, made internally within the workplace. The procedure is contained in Sections 6 to 9 inclusive.

Section 6 provides for a disclosure to be made to the worker’s employer.

Section 7 provides for disclosures to “ prescribed persons ” if the employee reasonably believes that the relevant wrongdoing falls within the matters in respect of which that person is prescribed under the Act and that the information disclosed and any allegations contained in it are substantially true.

Section 8 provides for the making of disclosures to a Minister by a worker employed in a public body and the relevant Minister is the Minister who has responsibility for that public body.

Section 9 provides for disclosures made by the worker in the course of obtaining legal advice. That legal advice may be sought from a barrister, solicitor or trade union official.

It is clear that in the circumstances the protected disclosure should be made as set out above, however Section 10 provides for disclosures other than in accordance with the above if:

the worker reasonably believes that the information disclosed and any allegation in it are substantially true;
the disclosure is not made for personal gain;
any one or more of the conditions in subsection 10(2) is met; and
in all the circumstances of the case it is reasonable for the worker to make the disclosure.

The conditions set out in subsection 10(2) are that:

at the time of making the disclosure the worker reasonable believes that he would be subjected to penalisation by this employer if he made a disclosure in accordance with Section 6, 7 or 8;
that, in a case where no relevant person is prescribed for the purposes the worker reasonably believes that it is likely that evidence relating to the relevant wrongdoing will be concealed or destroyed if he makes a disclosure under Section 6;
that the worker has previously made a disclosure of substantially the same information in accordance with Section 6, 7 or 8 or the relevant wrongdoing is of an exceptionally serious nature.

(Also see When is an ‘Act’ a Protected Disclosure? )

Protections after making a Protected Disclosure

Part III of the Act sets forth the protections afforded to persons who make disclosures.

Section 11 incorporates a num ber of significant amendments to the Unfair Dismissals Act insofar as the dismissal arises wholly or mainly from the making of a protected disclosure. In the first instance the qualifying service periods do not apply and secondly such a dismissal is of the “automatic unfair” type. Thirdly the maximum compensatory award is increased from two years' remuneration to five years' remuneration.

Section 11 of the Act provides that the award of compensation under the Unfair Dismissals Act may be reduced by up to 25% if the investigation of the relevant wrongdoing was not the sole or main motivation for making the disclosure.

The Act also provides significant protection for whistleblowers against penalisation.

“Penalisation” is widely defined in the Act and an employer is prohibited from carrying out any act or making an omission that affects a worker to the worker’s detriment including suspension, layoff or dismissal, demotion or loss of opportunity for promotion, transfer of duties or change of location of place of work or reduction in wages or a change in working hours.

Penalisation also includes the imposition of any disciplinary reprimand or other penalty or other unfair treatment, coercion, intimidation or harassment.

(Also see Unfair Dismissal and Penalisation )

Protected Disclosure and Defamation

The Act also provides that the making of a protected disclosure will give a defence of qualified privilege under the Defamation Act 2009 and also the worker making a protected disclosure will be immune for civil or criminal liability in respect of same. The immunity in respect of criminal liability will be limited to circumstances where the whistleblower reasonably believed that he was making a protected disclosure.

Redress for those who make a Protected Disclosure

Applications for redress for penalisation are made at first instance to the Workplace Relations Commission (WRC) and an Adjudications Officer may require the employer to take a specified course of action and require the employer to pay compensation up to a maximum of five years' remuneration if the Adjudicator makes a finding in favour of the employee.

That compensation may be reduced by up to 25% if the investigation of the relevant wrongdoing was not the sole or main motivation for the making of the original disclosure. An appeal lies to the Labour Court from a decision of the WRC under the penalisation clause.

Section 13 provides that persons, including workers, employees and third parties, may have a cause of action in tort against a person who causes detriment to them

A Guide to Unfair Dismissal in Ireland

Mon, 15 Mar 2021 12:10:31 GMT

Unfair Dismissal Law Resources:

Constructive Dismissal Law Resources:

Definition of Unfair Dismissal

Section 1 of the Unfair Dismissals Act

‘dismissal’ means……..

"(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,….."

(Also see A Guide to Unfair Dismissal in Ireland )

Justifying a Dismissal

A employer could give one of the following reasons to justify the dismissal:

the capability, competence or qualifications of the employee for performing work of the kind which he/she was employed by the employer to do; the conduct of the employee;
the redundancy of the employee;
the employee being unable to work or continue to work in the position which they held.

In relation to the grounds for the dismissal, case law shows that the employee does not have to be shown to have actually been incompetent or incapable, for example. It is sufficient that the employer show that, after a proper procedure, the employer honestly believed that they were incompetent or incapable.

When is a Dismissal Reasonable?

The applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

In his decision on this case, considering the issue of the response of a reasonable employer, Mr. Justice Noonan referred to the case of Allied Irish Banks -v- Purcell [2012] 23 ELR 189, where Ms. Justice Linnane quoted from the findings in British Leyland UK Ltd -v- Swift [1981] IRLR 91:

The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd -v- Swift. The Court found that there is a band of reasonableness within which one employer might reasonably dismiss an employee. Lord Denning MR stated:

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer would have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view”. “The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases, there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view."

In the judgement in the Circuit Court in Allied Irish Banks plc -v- Purcell Judge Linnane expressly approved the British Leyland test and she went on to state:

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken”.

(Also see Unfair Dismissals and Alternative Sanctions )

Dismissal following a Performance Improvement Plan

The employer should tell the employee before the dismissal the ways in which he/she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give an opportunity to improve.

There is an obligation on the employer, where the competence of an employee is in question, to update the employee of his or her performance before taking the decision to dismiss.

Lardner J. in the Labour Court in Bolger v. Showerings (Ireland) Limited set out the requirement that the employer should tell the employee before the dismissal the ways in which he is failing to perform the function of his job adequately; warn the employee of the possibility of dismissal on those grounds; and before dismissal, give the employee an opportunity to improve.

In An Employee -v- A Limited Company (Adjudication Reference: ADJ-00021794) it was determined that the employee concerned was given every opportunity to improve their performance but failed to do so. The Adjudicator noted that the employer did everything in their power to assess the dismissed employee:

"He was placed on a Performance Improvement Plan and was given every opportunity to improve his performance. I do not accept the complainant’s evidence that he was not given assistance or help in relation to improving his performance. To the contrary his Performance improvement Plan was very carefully management. He was at regular intervals given an opportunity to ask questions and seek assistance and had what was required of him explained in detail. As part of his PIP he was also required to attend two coaching sessions with his managed. He was given a copy of the disciplinary procedure and had that explained to him at every step of that procedure. He could not have been in any doubt that his employment was at risk if he did not improve his performance."

Dismissal due to Gross Misconduct

In cases where the dismissal relates to gross misconduct, the Workplace Relations Commission set out the appropriate test to be applied in such circumstances.

In O'Riordan versus Great Southern Hotels [UD1469-2003], the Employment Appeals Tribunal/Workplace Relations Commission stated as follows:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

A significant body of case law exists with regard to the issue of the separation of the investigation stage from the disciplinary decision-making process in the context of providing fair procedure, particularly in a process that results in the termination of an employee’s employment.

In Joseph Brennan Bakeries -v- Rogers (UDD1821), the Labour Court stated:

“The Court considers that the multiplicity of roles undertaken by TG [ the General Manager] in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw the procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that the within enterprise is of a nature which afforded the Respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by the selection of available management level personnel to carry out the different stages of the procedure.”

Date of Dismissal

The date of dismissal will be the date of the effective termination of employment or the date that the proper notice period would have expired. The effective date is important for the calculation of any length of service in terms of qualifying jurisdiction, the six months for the lodgement of the claim with the Workplace Relations Commission and also the calculation of an award for instance in relation to redundancy.

Appeal to a Dismissal

If there is an appeal to a dismissal, in general this will not operate to alter the date of dismissal unless it is specified to do so, therefore, a complaint to the Workplace Relations Commission can take place concurrently.

There is no obligation on an employer to provide an appeal process, and it is not set out in the Code of Practice SI 146 of 2000.

Bringing a Workplace Relations Commission Claim for Unfair Dismissal

The Workplace Relations Commission will examine whether the employee was told of the complaints and allegations that were forming the basis of the proposed dismissal; whether the employee was given an appropriate opportunity to respond to those allegations; whether the employer believed the truth of the allegations; whether there were reasonable grounds to support the belief by the employer and whether the dismissal was proportionate.

Redress for Unfair Dismissal

Three remedies are available following a successful claim of unfair dismissal: reinstatement of the employee in the position held immediately prior to the dismissal; reengagement of the employee in the position held immediately prior to the dismissal or in a different position which would be on reasonably suitable terms and condition; or payment of such compensation in respect of loss not exceeding 104 weeks remuneration where a financial loss is attributed to the dismissal.

The Unfair Dismissals Act provides that:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances

a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.

Compensation for Unfair Dismissal

The Unfair Dismissals Act provides that:

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid

Duty to Mitigate Loss following Dismissal

T he dismissed employee has a responsibility to find alternative employment as soon as is reasonable practicable, after the dismissal. This may be contested at an adjudication hearing.

Previous decisions on this issue at the Workplace Relations Commission note the decision of the Employment Appeals Tribunal in the case Sheehan v Continental Administration Co Ltd (UD858/1999) where it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

It is clear that there is a legal duty to mitigate financial loss by taking diligent steps to secure comparable alternative employment and case law shows that the standard required is a high one.

Naming Incorrect Parties to WRC Proceedings

Mon, 08 Mar 2021 09:39:37 GMT

Naming Wrong Employer

A recent case before the Workplace Relations Commission (A Lorry Driver -v- A Waste Management Company (ADJ-00024354)) examined the factors that will be reviewed when one party to the proceedings is wrongly named.

By way of background, the High Court In County Louth VEC -v- Equality Tribunal [2009] IEHC 370 outlined the circumstances in which proceedings before a statutory tribunal can be amended and held that: “If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

The Labour Court in Travelodge Management Limited -v- Sylvia Wach EDA1511 stated that: The ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary courts. That is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice.

And went on to say

“It could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

These cases were cited with approval in A Civil Engineer v A Concrete Manufacturing Company (ADJ-00027348).

Trading v Registered Name

In the present case, the employer submitted that the employee had referred the complaint against the trading name of the business (XXX YYY ZZZ) and contended that the correct identity of his employer was XXX YYY Limited. The employer submitted that the employee had therefore pursued the incorrect employer and was now statute barred in their claim.

The employee submitted that he was not aware of the correct name of the legal entity that employed him and that the trading name of the business (XXX YYY ZZZ) was included on all documentation and correspondence which he received from the employer. The employee contended that his employer was fully aware of this complaint at all material times and he sought leave to amend the name of the employer to that of the correct legal entity which had employed him.

Progress a Claim?

Therefore, the question the WRC was required to decide was whether or not it is legally permissible for that forum to accede to the employee’s application to substitute the correct respondent in this case. In considering this issue, the WRC took cognisance of the Labour Court case of Auto Depot Limited -v- Vasile Mateiu UDD1954. In this case the employee, Mr. Mateui, made an application in the course of proceedings before the Labour Court under the Unfair Dismissals Act to amend the name of the employer from “Auto Depot Tyres Ltd” to “Auto Depot Ltd”. The Labour Court allowed the request for the amendment and in doing so held that: “Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the employer’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’”.

Disproportionate Response?

The Labour Court, in this case, provided an extensive analysis of the jurisprudence and relevant authorities on this subject and set out a number of factors which it took into consideration in arriving at its decision on this matter. In particular, the WRC took cognisance of the following paragraphs from the decision:

“Having regard to the foregoing and relying in particular on the High Court decision in Capital Food Emporium, the Court is fully satisfied that the correct employer has been pursued by the Complainant. The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC from July 2017. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter. In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be) …. In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response” as envisaged in O’Higgins.

The Court is further satisfied that this approach is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: - “This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.”

Determining Factors

The WRC was satisfied that the general principles enunciated by the Labour Court in the Auto Depot Limited case could also be applied in the circumstance of the instant case. In considering this matter, the WRC took the following factors into consideration:

The employee named the trading name of his employer as the employer in these proceedings as opposed to the actual name of the limited company that employed him;
The employer was fully on notice and accepted these proceedings from the outset;
No issue regarding the issue concerning the incorrect employer was notified by the employee’s employer to either the employee or the WRC prior to the hearing date; and
The correct employer appeared at the hearing with its legal representatives.

Having regard to the foregoing, the WRC was satisfied that the correct employer had been pursued in relation to these complaints and that the misstatement by the employee of his employer’s name on the Complaint Referral Form constitutes a technical error.

Irish Employment Immigration Law

Sat, 06 Mar 2021 08:49:08 GMT

Critical Skills Employment Permit

Eligibility for the Critical Skills Permit

The Critical Skills Employment Permit is designed to attract highly skilled people into the Irish labour market.

Employee Requirements

Typically, permit holders will have skills that have been identified as being in short supply in Ireland.

Employer Requirements

The employer must be a bona-fide company trading in Ireland, registered with the Revenue Commissioners.

Application for the Critical Skills Permit

An application for the Critical Skills Permit must be made at least 12 weeks before the proposed employment.

Dependent/Partner/Spouse Employment Permit

Employment Permits for Dependants

A spouse, de facto partner or dependant may be permitted to work in Ireland when accompanied by an approved Critical Skills Employment Permit holder.

Criteria for Dependants

They must be recognised as a dependant/partner/spouse of a permit holder, live with the permit holder in Ireland and not be in full-time education.

Criteria for Dependant Employers

The employer must be a bona-fide company trading in Ireland, registered with the Revenue Commissioners.

Application for the Dependant

A dependant/partner/spouse of a permit holder must register with the Irish Naturalisation and Immigration Service.

Intra-Company Transfer Employment Permits

Eligibility for the Transfer Permit

The permit is designed to assist non-EEA senior managers, key personnel or trainees be transferred to Ireland from another international office.

Examples of 'Senior Management'

Someone who has supervision or control over the the organisation, department or sub-division, and has authority to exercise considerable discretion.

Examples of 'Key Personnel'

Someone who has specialist knowledge essential to the organisation, typically requiring a high degree of training, experience and/or professional affiliation.

Remuneration Requirements

Senior managers or key personnel permit holders are generally expected to earn above €40,000.

General Employment Permit

Eligibility for the General Permit

All occupations are eligible for the general employment permit unless specifically excluded under the 'Ineligible List of Occupations for Employment Permits'.

Employee Requirements

Typically, a qualifying role will pay above €30,000, not be listed as ineligible and the prospective employee shall have the the relevant skills or experience required.

Employer Requirements

The employer must be a bona-fide company trading in Ireland, registered with the Revenue Commissioners.

Application for the General Permit

An application for the general employment permit must be made at least 12 weeks before the proposed commencement of employment.

Contract for Services Employment Permit

Eligibility for the Contract Permit

The Contract for Services Permit operates to facilitate the transfer of non-EEA employees to work on a contract secured by a foreign company in Ireland.

Employee Requirements

Contract for Services permit holders will already be working with the Contractor, will be limited to work on the contracted services and not employed in an 'ineligible' listed occupation.

Contractor Requirements

The Contractor must be a bona-fide company registered with the Revenue Commissioners, have at least 50% of employees being EEA nationals and pay the remuneration threshold.

Application for the Contract Permit

An application for the Contract for Services Permit must be made at least 12 weeks before the proposed employment date and be made by the Contractor.

Reactivation Employment Permit

Purpose of the Reactivation Permit

The Reactivation Employment Permit is intended for no-EEA permit holders who have typically been made unemployed, experienced workplace exploitation or a change in circumstances.

Eligible Permit Candidates

Those who previously worked legally with an employment permit, want to change employer or whose dependant/partner/spouse employment permit whose circumstances have changed.

Non Eligible Permit Candidates

Those who never held an employment permit, hold a critical skills or general permits but have been made redundant, or certain persons who remained in Ireland on the expiration of their permit.

Application for the Reactivation Permit

An application for a temporary permit is made to the Irish Naturalisation and Immigration Service, and then a full application is made to the Department of Business, Enterprise, and Innovation.

Immigrant Investor Programme

Enterprise Investment

An investment of at least €1 million in a new or established Irish registered and headquartered business or businesses that supports the creation or maintenance of employment, over 3 years.

Investment Fund

An investment of at least €1 million in a fund, that may

involve multiple investors and a diverse portfolio, that supports the creation or maintenance of employment, over 3 years.

REIT Investment

A minimum investment of €2 million in any Irish Real Estate Investment Trust (REIT), listed on the Irish stock exchange. Investor is permitted to withdraw 50% of shares after 3 years.

Endowment

A single endowment of at least €500,000, or a €400,000 each by five donors, to a public project benefiting the arts, sports, health or education.

Start-up Entrepreneur Programme

Purpose of the Programme

The Start-up Entrepreneur Programme is designed to encourage innovative entrepreneurs to apply for permission to establish their business and reside in Ireland on a full time basis.

Qualifying for the Programme

An investor may make an application if they are of 'good character', have no criminal convictions, willing to invest €50,000 and

have an innovative business proposal.

Conditions of Approval

An investor must establish the business as applied, work on this business on a full time basis, have no other employment, not become a financial burden and not be convicted of a crime.

Application for Approval

An Independent Evaluation Committee consisting of senior public and civil servants is responsible for evaluating the suitability of any Start-up Entrepreneur Programme proposal.

Stamps, Permissions and Conditions

Stamp 0

Stamp 0 indicates permission to stay in Ireland for a temporary period subject to that person being fully financially self-sufficient.

Stamp 1

Stamp 1 indicates permission to work or operate a business in Ireland subject to securing a valid employment permit or permission from INIS.

Stamp 1A

Stamp 1A indicates permission to study accountancy as a trainee and be employed as a trainee accountant.

Stamp 1G

Stamp 1G is for a graduate now seeking employment in Ireland under the Third Level Graduate Programme.

Stamp 2

Stamp 2 indicates permission to study a full time course, not receive any benefits or use publicly funded services and work 20 hours per week.

Stamp 3

Stamp 3 indicates permission to stay in Ireland to volunteer, be a minister of religion

or join your non-EEA partner or family member.

Stamp 4

Stamp 4 indicates permission to stay in Ireland for a specified period, take up employment and establish or operate a business.

Stamp 5

Stamp 5 is placed in the passport of an individual who has completed 8 years (96 months) of legal residency in Ireland.

Unfair Dismissal and Penalisation for Raising Safety Concerns

Fri, 05 Mar 2021 15:52:33 GMT

Unfair Dismissal Law Resources:

Protected Disclosure Resources:

Introduction to Protected Disclosures and Safety Concerns

If an employee contends that during the course of their employment, their employer breached the terms of the Safety Health and Welfare at Work Act, 2005 and they were penalised for having raised a complaint in relation to health and safety issues in their workplace, that employee may bring a claim, and the matter may be referred for investigation to the Workplace Relations Commission (WRC), pursuant to the Safety, Health and Welfare at Work Act.

Irish Health and Safety Law and Penalisation

It is clear from the language of the Safety, Health and Welfare at Work Act, that in order to make out a complaint of penalisation it is necessary for an employee to establish that the detriment of which they complain of was imposed “for” having raised health and safety concerns.

Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the employee having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, up to and including dismissal, the commission of a protected act must be an operative cause in the sense that “but for” the employee having committed the protected act they would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.

Unfair Dismissal, Irish Employment Law & Health and Safety

It is noted that if an employee alleges that they have been dismissed because they raised health and safety concerns, the WRC or Labour Court will not be concerned with the fairness of the dismissal per se. Their sole function is to establish whether or not the dismissal was caused by the employee having committed an act protected by the health and safety legislation.

The relevant statutory provision of the Safety, Health and Welfare at Work Act is as follows: -

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,(b) demotion or loss of opportunity for promotion,(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,(d)imposition of any discipline, reprimand or other penalty (including a financial penalty), and(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated undersection 11or appointed undersection 18to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to insubsection (2)(a).

This Section is intended to protect employees who exercise any of the rights referred to at Subsection (3) from retaliatory conduct by their employer. In applying the provision, the WRC or Labour Court must be careful to recognise the distinction between a detriment which may be suffered by an employee as a result of an employer’s failure to fulfil a duty under the health and safety legislation and a detriment amounting to “penalisation”.

What is a Penalisation?

Subsection (1) of the Safety, Health and Welfare at Work Act defines penalisation in broad terms and can include a failure to act which results in a detriment to an employee in terms of their or their conditions of employment.

Crucially, however, what is rendered unlawful by Section 27(3) is acts or omissions of the type referred to at Subsection (2) directed at an employee for having committed an act protected by that Subsection.

Hence the decisive consideration is that of causation.

Burden of Proof in Penalisation Claim

The Safety, Health and Welfare at Work Act is silent on the question of how the burden of proof should be allocated as between the parties.

This question was considered by the Labour Court in Department of Justice Equality and Law Reform and Philip Kirwan (Determination HSD082) .

“The Court is of the view that Section 27 should be construed as providing that penalisation can arise where, after the commencement of the health and safety legislation, a employee is subjected to unfavourable treatment of the type referred to at subsection (2) of that Section in consequence of having made a complaint to their or their employer as regards any matter relating to safety, health or welfare at work notwithstanding that such complaint was made before the commencement of the Act.”

Here the Labour Court held as follows: -

“It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation[1942] A.C.154 where this rule of evidence was described by Maugham V.-C. as “an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons”.“

Later, in Fergal Brodigan T/A FB Groundworks and Juris Dubina (Determination (HSD0810)) the Labour Court qualified the statement made in the Kirwan case as follows: -

It is, however, settled law that in civil matters there is an exception to this rule known as the peculiar knowledge principle. This is a rule of evidence which provides that where it is shown that a particular fact in issue is peculiarly within a defendant’s knowledge the onus of proving that fact rests with the defendant (see Mahoney v Waterford, Limerick and Western Railway Co.[1900] 2.IR 273, per Palles C.B. )

Motives for Dismissal

In any relevant case, what is at issue is the motive or reason for the employee’s dismissal. That is to be found in the thought process of the decision makers at the time the decision to penalise or dismiss the employee was taken. That is something which is peculiarly within the knowledge of the employer. It would be palpably unfair to expect the employee to adduce direct evidence to show that the employer was influenced by their earlier complaints in deciding to dismiss them.

Conversely, it is perfectly reasonable to require the employer to establish that the reasons for the dismissal were unrelated to their complaints under the health and safety legislation.

Having regard to these considerations, it seems to the Labour Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in these penalisation cases.

Thus, the employee must establish, on the balance of probabilities, that they made complaints concerning health and safety. It is then necessary for them to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that their complaints were an operative consideration leading to their dismissal.

If those two limbs of the test are satisfied it is for the employer to satisfy the WRC or Labour Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the employee’s dismissal.

Failure of Duty v Penalisation

The WRC and/or Labour Court is not concerned as to whether the employer breached its health and safety obligations. What is critical is that an employee is not penalised for having raised those concerns.

In every case in which an employer fails or neglects to fulfil its duty under the general provisions of the health and safety legislation, the health and safety of employees are put at risk, but the WRC and Labour Court has not been given the jurisdiction to investigate such transgressions. By contrast, penalisation in respect of which the WRC and Labour Court has been given jurisdiction, involves the imposition of some separate or independent detriment on an employee which, if undeterred, could undermine the effective operation of the general provisions of the health and safety legislation.

Therefore, the WRC and Labour Court must be careful not to claim jurisdiction which it does not have by classifying as penalisation conduct, by act or omission, which is properly classified as a failure to fulfil a general duty imposed by the health and safety legislation. Accordingly, the WRC or Labour Court must consider if the subject-matter of the complaints, taken at their height, should properly be classified as penalisation, as opposed to a contravention of the general health and safety imperatives.

Application - Penalisation Laws and Unfair Dismissal

Tony & Guy v Paul O’Neill (Determination No. HSD095)

In this case the employee alleged that he had been dismissed having raised certain concerns regarding health and safety issues.

The Labour Court was satisfied that the employee did make complaints concerning health and safety matters arising from the change in the quality of gloves provided by the employer. The Labour Court was also satisfied that following on from those complaints the employer appeared to take issue with the employee in respect of employment related matters which had not previously been a source of difficulty.

It also appeared to the Labour Court that the employer adopted a formalistic approach to the use of its disciplinary procedure and appeared to proceed, with inordinate haste, from one stage to the next until the point was reached where the employee’s employment was terminated.

The whole exercise was characterised by an absence of procedural fairness. In these circumstances it was difficult for the Labour Court to avoid the conclusion that the employer, whether consciously or unconsciously, was proceeding with a predisposition that the employee’s employment should be have been brought to an end.

The Labour Court had no doubt that there were other employment related issues with the employee, of which the employer had justifiable cause to complain. Nonetheless, the Labour Court was satisfied, as a matter of probability, that, were it not for their complaints regarding health and safety, those issues would not have resulted in their dismissal.

Accordingly, the Labour Court held that the aforementioned complaints were an operative reason for the dismissal of the employee and that their complaint of penalisation had been made out.

Sky Handling Partner Ltd V An Employee (Determination No. HSD126)

The employee submitted that they had made a complaint or representation to their employer as regards a matter relating to safety, health or safety at work in late November 2009.

The employee further submitted that she suffered penalisation within the meaning of the health and safety legislation when she was coerced by their superiors; was threatened with a change of work location; lost wages and shift pay whilst on sick leave and was subsequently dismissed by their Employer.

The employer acknowledged that the employee did raise a grievance regarding health safety and welfare at work in November 2009. The employer submitted that the company addressed the issues raised, advised the employee accordingly and there the matter rested.

Whilst the Labour Court could see some evidence of a difficult working relationship between the employee and some of her managers, the Labour Court could see no evidence that these difficulties arose out of the complaint they made in November 2009. Indeed, the evidence suggested that these difficulties both pre and post-dated that complaint.

Furthermore, the Labour Court found that the interactions between the employee and the employer company, after the employee went on sick leave in July 2010, did not amount to penalisation within the statutory meaning of that term. The employer may have been deficient in the manner in which it dealt with the employee, but that deficiency was not, on the balance of probability, the consequence of the complaint made in November 2009.

G4S Secure Solutions Ltd t/a G4 v Colm Wogan (Determination No. Hsd144)

Section 27(2) (c) of the health and safety legislation defines penalisation as 'transfer of duties, change of location of place of work, reduction in wages or change in working hours'.

The employer gave no reason to the employee or to the Labour Court as to why it was necessary at short notice to transfer two people who made a complaint to the Health and Safety Officer on the 25 September. The Labour Court noted that the short notice transfer took place two days after that complaint was lodged.

In those circumstances the Labour Court found that the employee has discharged the burden of proving that they made a complaint under the health and safety legislation to both their employer and to the Health and Safety Officer. He had also established that he was transferred from the original site where he worked and that he suffered the loss of a site specific allowance as a result of the transfer.

The employer did not offer a compelling or indeed reasonable explanation for the short notice transfer imposed on the employee. It stated that it arose as a consequence of his failure to carry out a specific training duty on 13 August. However, it showed no connection between those two events. It did not explain the delay in dealing with the matter. Neither did it explain the alleged need to effect the transfer at such short notice. Finally, it failed to explain why it did not put to the employee details of their alleged infringements and give him an opportunity to offer a defence for their actions.

On that basis the Labour Court found that the most likely explanation for the decision to transfer the employee from the original site was to be found in the safety and health complaint he made on 25 September 2009. The sequence of events between the 25 and the 27 September offer a full and complete explanation for the speed at which the transfer was decided upon and effected. The reference to an incident that took place on the 13 August that was not pursued further with the employee appears to be no more than a cover for that decision.

In this case the employee was transferred and as a consequence they suffered the loss of a site allowance.

The Labour Court determined that the action taken against the employee constituted a penalisation within the meaning of the health and safety legislation.

Covert Audio Recordings in the Workplace

Fri, 05 Mar 2021 11:50:09 GMT

Introduction to Covert Recordings in the Workplace

There are a number of moral and legal questions, that remain unresolved, regarding the use of covert recordings in the workplace.

In general, an employer will be precluded from covertly recording employees, without their consent, in any form. However, there are numerous examples of employees recording conversations with their employers, managers, or other colleagues, in anticipation of a grievance or dispute.

Despite the objections by employers, who cite privacy and data protection laws in support of their proposition that such recordings should not be admitted for consideration in Workplace Relations Commission (WRC) hearings, the WRC has demonstrated a willingness to regard covert recordings as admissible, under certain circumstances.

Where there is a breakdown in trust and confidence between the parties, it is more likely that the WRC will permit the inclusion of a covert recording. However, it appears that where the employer provides a comprehensive redress process, and in the absence of any allegations of wrongdoing, the WRC will not permit the admissibility of covert recordings into evidence.

The theme of trust and confidence comes up time and again, in any deliberations as to whether the inclusion of a covert recording will be permitted.

Case Law - Covert Audio Recordings

A seminal case is that of Laurentiu Eugen Iacob v The Central Hotel (DEC-E2010-147) , as it addresses the issue of a covert recording by an employee and the typical objections pertaining to data protection and privacy, that are routinely cited by employers.

In this case the Complainant asserted that he was discriminated by the Respondent on the grounds of his race contrary to Section 2(h) and Section 8 of the Employment Equality Acts 1998 – 2008, in terms of his conditions of employment and discriminatory treatment. He also claimed that he was subjected to harassment contrary to Section 14(a) of the Employment Equality Acts. The Complainant had recorded a conversation between himself and a manager which had taken place a number of weeks prior to his termination of employment. The Complainant claimed that the manager was aggressive in his manner and used sexually derogatory language, referring to him in unsavoury terms. The Complainant also claimed that, during this conversation, he was denigrated on the basis of race with references being made to translation.

The Respondent objected to this audio recording being admitted into evidence on the basis that it had been made without the knowledge or the consent of the manager. The Respondent submitted that the recording of this conversation amounted to a breach of the manager’s right to privacy under both the constitution in the European convention on human rights and that it was also a breach of the Data Protection Act, 1988.

Having carefully considered the submission of both parties regarding the admissibility of the audio recording, the WRC found that it was not precluded from admitting it into evidence. The WRC went on to state that it had considered the content of this audio recording as not inferring harassment on the grounds of the Complainant’s Roman nationality.

Admittance of Covert Audio Recordings

Overall, the WRC has demonstrated a willingness to accept covert audio recordings into evidence. Where there is a break down in trust and confidence between the parties, it is more likely that the WRC will permit the inclusion of a covert recording.

In A Complainant v A Sports Centre (ADJ-00012455) , the WRC noted that the Complainant made covert recordings of conversations he had with some members of staff of the Respondent and, while it was deemed unacceptable, the WRC did take on board his bona fides, wherein he stated he was trying to protect himself given the break down in relations with his manager and given a number of unsavoury events which had transpired. The Complainant stated that the covert recordings of meetings were done to protect himself as to what was agreed to at meetings, differ from time to time. The Complainant asserted that, having to revert to covert recordings demonstrated the lack of trust he had in his working relationship and why he sought to have the matter addressed through the grievance procedures of the Workplace Relations Commission.

In Michael Caplis v Transeb Ireland Limited (ADJ-00012790) , it was the employer who admitted into evidence the audio recordings made by a private investigator on foot of a disciplinary matter.

In A Senior Contracts Administrator v An Aircraft Leasing Company (ADJ-00020828) , the Complainant sought to admit an audio recording during which a line manager claimed that the Complainant would not be promoted, not necessarily on the grounds of her gender, but because of her family status, in that she had several children. The audio recording was supplemented by a transcript of the conversation. Interestingly, in this case, it was not the Complainant who had made the recording, but a colleague. The Respondent did not object to the inclusion of the audio recording and the recording was admitted into evidence before the WRC.

In Slaughter Line Operative / Butcher v Meat Processing Company (ADJ-00007300) , the WRC was provided with CCTV footage by the employer and two audio recordings by the employee at the hearing. The WRC accepted both into evidence. The CCTV footage was of limited assistance to either party’s case. The employer’s solicitor heard the audio recordings before they were played to the adjudicator and strenuously objected to the admissibility of the audio recordings which he asserted were made without the knowledge or consent of a company director who was apparently unaware that the Complainant was recording their conversations. Despite these objections, the WRC admitted both audio recordings into evidence.

Non-admittance of Covert Audio Recordings

It appears that, where the employer provides a comprehensive redress process, and in the absence of any allegations of wrongdoing, the WRC will not permit the admissibility of covert recordings into evidence.

In Dympna Boyce v Ras Medical Limited Auralia (ADJ-00011059) , it was the employer who took a covert recording of the employee. The employee was completely unaware that she had been recorded. The WRC found that the covert recording without the knowledge of the employee was quite telling and was an unfair and underhand treatment by the employer in relation to the complaints the employee had raised internally.

In Euro Car Parts Ireland Limited V A Worker (ADJ-00019389) , it was held that the failure of an employer to admit a covert recording into a grievance or disciplinary hearing, would not unfairly prejudice the findings of such a hearing. The WRC held that, in relation to the content of the subsequent report, if the employee was unhappy with the findings, there was an appeal process which the employee could have availed of.

In Josh Braybrooke v Department of Employment Affairs and Social Protection (ADJ-00021765) , the Complainant sought to rely on covert audio recordings as he stated that “the managers in the office did not keep or provide me with notes of the meetings had and had a habit of, at a later date, citing events or discussions that did not occur”. The Respondent objected to the inclusion of the transcripts of covert recordings made by him of conversations with his employers. It submitted that the use of covert recordings as evidence by the Complainant is underhand and ought to be excluded. Neither of the persons who are identifiable on the transcript gave their permission to the recording and it was claimed that this amounted to an interference in their human rights and freedoms. The Respondent also went on to state that these recordings were a breach of data protection law as the Complainant, in recording, storing and now processing the data, was acting as a data controller and had unlawfully processed information in relation to data subjects who were clearly identifiable.

In A Customer Service Operator v A Car Hire Company (ADJ-00019536) , the Complainant sought to rely on covert recordings which were taken after the termination of employment, during informal mediation talks between the parties. The WRC noted that it was troubled by one party recording a conversation without consent. While it appreciated that it is not expressly prohibited in any statute, it did nothing for the supposed mutual trust and confidence that lies at the heart of an employment relationship. It was the opinion of the WRC that the covert recording in the workplace is a form of entrapment and has no place in a modern working environment. Interestingly, the WRC went on the note that the Respondent procedures had allowed for the representative accompany the employee to a grievance. This is further embellished in Statutory Instrument 146 of 2000, the Code of Practice on Grievances. The WRC further noted that the Respondents had a comprehensive policy on data protection and associated consent. The Complainant, in this instance, did not advance any reason why he chose to address his post-work grievances alone and take a covert recording. The WRC had noted that the recording took place four weeks after the employment had terminated and decided to admit it from consideration on that basis.

In a A Manager v A fuel Company (ADJ-00018157) , the Respondent submitted a very comprehensive and sequential record of the Respondent handling of a workplace dispute which was evidenced by a number of witnesses. There was a preliminary issue as to whether it was permissible for the Complainant to enter her taped recordings and transcript to the record with the WRC noting that the relevant meetings were taped without the permission of the participants who were aware that they were being taped. The WRC noted that an employment relationship, like so many other relationships, is based on trust and confidence and covert taping undermines that process. It therefore made the decision not to accept this covert recording as evidence on that basis. The WRC went on to explain that it would take evidence from the participants at the meetings, all of whom were present at the adjudication hearing and permit cross examination.

What does 'Without Prejudice' Mean? Settlement Agreement Law

Fri, 26 Feb 2021 15:26:26 GMT

Settlement Agreement Resources:

What does ‘Without Prejudice’ and ‘Subject to Contract’ mean?

In this article, we examine what the phrases 'without prejudice' and 'subject to contract' mean in the context of a settlement agreement, sometimes referred to as ‘exit agreements’, ‘compromise agreements’, or ‘termination agreements’, under Irish employment law.

The main legal impact of a settlement agreement is that it will prevent an employee from bringing any future claim against the employer.

The consequences of such an agreement cannot be overstated, particularly if there is or was a dispute between the parties.

The execution of a settlement agreement often comes down to a simple risk assessment and cost-benefit analysis.

For the employer, he or she will be looking at the likelihood of a case being taken against him, the chances of success, and a calculation of a potential award if the claim is successful. To insulate themselves from that risk, they may offer more favourable terms to the departing employee, in return for their agreeing not to pursue any claim or litigation against the employer.

'Without Prejudice' - Making an Offer Private

By marking the document has being ‘without prejudice’ and ‘subject to contract’, an employer prevents the proposal from having any legal standing, until such time as it is executed by both parties, thereby affording both parties, an opportunity to freely negotiate the terms of the agreement, without fear that their respective positions, can be used against him, if any dispute between them, isn’t settled throughout the negotiation process.

Until such time as the agreement is signed by both the employer and employee, it has no legal standing.

Advice on Settlement Agreements

Worker or Self Employed – The Uber Judgment

Mon, 22 Feb 2021 09:42:07 GMT

Background to Uber Decision

New ways of working organised through digital platforms pose pressing questions about the employment status of the people who do the work involved. The central question for the UK Supreme Court in Uber BV and others (Appellants) v Aslam and others (Respondents) , was whether an employment tribunal was entitled to find that drivers whose work is arranged through Uber’s smartphone application (“the Uber app”) worked for Uber under workers’ contracts and so qualified for the national minimum wage, paid annual leave and other workers’ rights; or whether, as Uber contended, the drivers do not have these rights because they work for themselves as independent contractors, performing services under contracts made with passengers through Uber as their booking agent.

It was Uber’s case that, in answering these questions, the correct starting point is to interpret the terms of the written agreements between Uber BV and drivers. Uber relies on the terms of written agreements which state that, when a request to book a private hire vehicle made through the Uber app is accepted, a contract is thereby created between passenger and driver, to which no Uber entity is a party and under which the driver is solely responsible for providing transportation services to the passenger.

Definition of Worker

The UK Supreme Court noted that, in determining whether an individual is a “worker”, there can, as Baroness Hale said in the Bates van Winkelh of “be no substitute for applying the words of the statute to the facts of the individual case.” At the same time, in applying the statutory language, it is necessary both to view the facts realistically and to keep in mind the purpose of the legislation.

The vulnerabilities of workers which create the need for statutory protection are subordination to and dependence upon another person in relation to the work done. A touchstone of such subordination and dependence is, as has long been recognised in employment law, the degree of control exercised by the putative employer over the work or services performed by the individual concerned. The greater the extent of such control, the stronger the case for classifying the individual as a “worker” who is employed under a “worker’s contract”.

This approach is also consistent with the case law of the Courts of Justice of the European Union (CJEU) which treats the essential feature of a contract between an employer and a worker as the existence of a hierarchical relationship. In a recent judgment the Grand Chamber of the CJEU has emphasised that, in determining whether such a relationship exists, it is necessary to take account of the objective situation of the individual concerned and all the circumstances of his or her work. The wording of the contractual documents, while relevant, is not conclusive. It is also necessary to have regard to how relevant obligations are performed in practice (see AFMB Ltd v Raad van bestuur van de Sociale verzekeringsbank (Case C-610/18).

Gig Worker v Worker

The UK Supreme Court held that the findings of the employment tribunal, which originally determined that the drivers were "workers", was justified, highlighting five specific reasons.

Fixed Remuneration

First and of major importance, the remuneration paid to drivers for the work they do is fixed by Uber and the drivers have no say in it (other than by choosing when and how much to work). Unlike taxi fares, fares for private hire vehicles in London are not set by the regulator. However, for rides booked through the Uber app, it is Uber that sets the fares and drivers are not permitted to charge more than the fare calculated by the Uber app. The notional freedom to charge a passenger less than the fare set by Uber is of no possible benefit to drivers, as any discount offered would come entirely out of the driver’s pocket and the delivery of the service is organised so as to prevent a driver from establishing a relationship with a passenger that might generate future custom for the driver personally.

Terms are Dictated

Second, the contractual terms on which drivers perform their services are dictated by Uber. Not only are drivers required to accept Uber’s standard form of written agreement but the terms on which they transport passengers are also imposed by Uber and drivers have no say in them.

Limited Choice

Third, although drivers have the freedom to choose when and where to work, once a driver has logged onto the Uber app, a driver’s choice about whether to accept requests for rides is constrained by Uber.

Degree of Control

Fourth, Uber exercises a significant degree of control over the way in which drivers deliver their services. The fact that drivers provide their own car means that they have more control than would most employees over the physical equipment used to perform their work.

Personal Relationship

A fifth significant factor is that Uber restricts communication between passenger and driver to the minimum necessary to perform the particular trip and takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.

Conclusion

Taking these factors together, the UK Supreme Court held that the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber, thereby establishing an employment relationship.

Proving an Employment Equality Claim in Ireland

Sun, 21 Feb 2021 14:30:34 GMT

Employment Equality Law Resources:

Employment Equality Acts

The Employment Equality Acts outlaw discriminatory treatment on any of the nine prohibited grounds in a broad reaching manner, covering not only exiting employment relationships but also the termination of those relationships. The nine grounds are:

Gender
Civil status
Family status
Sexual orientation
Religious belief
Age
Disability
Race, colour, nationality, ethnic or national origins
Membership of the Traveller community

There is no requirement for any minimum period of service to be cloaked with the protection of the Acts and therefore job applicants are protected from discrimination, harassment and victimisation.

Discriminatory Treatment

Employment equality regulation outlaws discrimination in relation to access to employment, conditions of employment, pay, training or experience for or in relation to employment, promotion or regrading or classification of posts. The laws also prohibit the issuing by an employer of instructions to discriminate. Discriminatory dismissal (which includes constructive dismissal on any of the protected grounds) is also prohibited by the regulations.

Multiple Discriminatory Acts

It has been recognised by the courts and Workplace Relations Commission that the combination of certain protected classes, such as race and gender or gender and disability, can cause less favourable treatment. This multiple, dual or combined discrimination is not expressly provided or legislated for within the Employment Equality Acts but nevertheless, such claims have been upheld.

Defining Discrimination

Discrimination is defined in a number of different ways in the Employment Equality Acts. Section 6(1) states that discrimination shall be taken to occur where a person is treated less favourable than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds. This definition is a very broad definition of discrimination and includes discrimination on a discriminatory ground which existed but no longer existed or which may exist in the future.

Comparable Treatment

In general a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. Therefore without a comparator, the claim will fail and the choice of comparator is of significant importance to the success of any claim. The comparator cannot be selected out of context with other employees.

Hypothetical Comparator

The Labour Court has previously held that when no similar employee is available for comparison, it may allow the employee to reply on a hypothetical comparator. However, when a comparator is introduced, a successful claim will require demonstration of discrimination on each of the grounds alleged.

Making an Equality Complaint

It is always recommended that employers be afforded an opportunity to address any workplace concerns, complaints or grievances, in the first instance. If an employee does not achieve an adequate response, they may bring a claim to the Workplace Relations Commission, where the matter may be adjudicated.

Engaging an Employment Solicitor

By engaging an employment solicitor to assist with a workplace dispute, an employer or employee can rest assured that they are fully briefed on the options available. Crushell & Co have a track record of achieving successful outcomes for clients through both formal and informal processes.

Injunction Preventing Dismissal

Thu, 18 Feb 2021 08:26:09 GMT

Proceedings to Prevent Dismissal

The High Court recently granted an interlocutory order requiring an employer to pay an employee dismissed during his probationary period, six months' salary on the condition that the employee would be available to undertake his originally intended duties, if required.

The High Court noted that there was a strong case to be made that the employee concerned, Mr O’Donovan, was dismissed by Over-C for sub-standard performance during his probationary period without being afforded his implied contractual right to be heard as part of that assessment or to appeal against an adverse assessment, or both ( O’Donovan v Over-C Technology Ltd & Another [2020] IEHC 291 ).

Although this decision was overturned by the Court of Appeal, it does provide some useful guidance as to what criteria will be examined when an application to injunct an employer is under consideration.

Obtaining Injunctive Relief

In order to obtain an injunction in relation to an employment dispute matter, one must prove that: (1) there is a serious question to be tried on the employee’s entitlement to a permanent injunction; (2) the balance of convenience favours the grant of interlocutory relief, which requires, but is not limited to, a consideration of whether damages would be an adequate and effective remedy for an employee who fails to obtain interlocutory relief but later succeeds in the action at trial and, if not, whether the employee’s undertaking to pay damages would be an adequate and effective remedy for a respondent against whom interlocutory injunctive relief is granted but whose defence to the action succeeds at trial.

While Lord Diplock’s speech in American Cyanamid was ambiguous on whether the adequacy of damages was a consideration antecedent to, or part of, that of the balance of convenience, the judgment of O’Donnell J in Merck has now clarified that it is preferable to consider adequacy of damages as part of the balance of convenience, thus emphasising the flexibility of the remedy.

Injunction Restraining Dismissal

Where a mandatory injunction is sought, such as where an employee seeks an injunction restraining dismissal (which is, in substance, an injunction mandating the continuation of an employment relationship), the Campus Oil principles are subject to the significant refinement that an employee must establish at least a strong case, likely to succeed at the hearing of the action, and not merely surmount the lower threshold of establishing a serious question to be tried ( Maha Lingam ).

In Merck , O’Donnell J pointed out that it would be an error to treat the Campus Oil principles as akin to statutory rules, before later outlining the steps that might usefully be followed in considering an interlocutory injunction application:

First, the court should consider whether, if the plaintiff succeeded at the trial, a permanent injunction might be granted. If not, then it is extremely unlikely that an interlocutory injunction seeking the same relief upon ending the trial could be granted;

The court should then consider if it has been established that there is a fair question to be tried, which may also involve a consideration of whether the case will probably go to trial. In many cases, the straightforward application of the American Cyanamid and Campus Oil approach will yield the correct outcome. However, the qualification of that approach should be kept in mind. Even then, if the claim is of a nature that could be tried, the court, in considering the balance of convenience or balance of justice, should do so with an awareness that cases may not go to trial, and that the presence or absence of an injunction may be a significant tactical benefit;

If there is a fair issue to be tried (and it probably will be tried), the court should consider how best the matter should be arranged pending the trial, which involves a consideration of the balance of convenience and the balance of justice;

The most important element in that balance is, in most cases, the question of adequacy of damages;

In commercial cases where breach of contract is claimed, courts should be robustly skeptical of a claim that damages are not an adequate remedy;

Nevertheless, difficulty in assessing damages may be a factor which can be taken account of and lead to the grant of an interlocutory injunction, particularly where the difficulty in calculation and assessment makes it more likely that any damages awarded will not be a precise and perfect remedy. In such cases, it may be just and convenient to grant an interlocutory injunction, even though damages are an available remedy at trial;

While the adequacy of damages is the most important component of any assessment of the balance of convenience or balance of justice, a number of other factors may come into play and may properly be considered and weighed in the balance in considering how matters are to be held most fairly pending a trial, and recognising the possibility that there may be no trial;

While a structured approach facilitates analysis and, if necessary, review, any application should be approached with a recognition of the essential flexibility of the remedy and the fundamental objective in seeking to minimise injustice, in circumstances where the legal rights of the parties have yet to be determined.’

Finally, in approaching the test the High Court will be conscious of Lord Diplock’s admonition in American Cyanamid (at 407):

‘It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at trial.'

Case references:

American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) (at 407-9) and approved by the Supreme Court in Campus Oil v Minister for Industry (No. 2) [1983] 1 IR 88

Merck Sharp & Dohme Corp v Clonmel Healthcare Ltd [2019] IESC 65

Maha Lingam v Health Service Executive [2005] IESC 89, [2006] 17 ELR 137

What is 'Res Judicata'? | A Guide

Tue, 02 Feb 2021 08:29:47 GMT

What does res judicata mean?

The term “res judicata” also known as claim preclusion, is the Latin term for “a matter (already) judged”.

Doctrine of Res Judicata

The doctrine of res judicata prohibits reopening an issue which has already been decided between the parties by a competent court or tribunal. Case law provides for finality in proceedings and to protect a party from being harassed by successive actions by another party when the issues between them were determined in the first proceedings ( Henderson v Henderson (1843) 3 Hare 100 ).

Interest Republicae ut sit Finis Litium

The maxim “interest republicae ut sit finis litium” translates as “it is in the public interest that there be an end to litigation”.

This maxim is routinely applied by Irish courts to ensure inter alia that attempts by new litigation (rather than by appeal) to attack collaterally a court’s findings will generally be prevented as an abuse of process.

Cause of Action Estoppel

“Cause of action estoppel is defined in “Res Judicata and Double Jeopardy” by Paul A. McDermott (Butterworth 1999, at p57):-

“The term “cause of action” estoppel signifies the estoppel which arises between parties by reason of a judgment given in favour of one and against the other with respect to the cause of action set up in the first proceedings. Its operation prevents a party to an action from asserting or denying as against the other party the existence of a cause of action, the existence or non-existence of which has already determined by a court of competent jurisdiction in previous litigation between the parties. To succeed in such a plea it must be shown that the cause of action in the earlier action is the same as that raised in the second action; D v C [1984] ILRM 173 at 192 (HC).”

A concise definition of cause of action estoppel (and issue estoppel) as offered by Blayney J. in Gilroy v McLoughlin [1989] ILRM 133 , at 136, as follows: -

“In cause of issue estoppel the question is whether a plaintiff is estopped from bringing a particular action by reason of having brought a similar action previously against the same party, while issue estoppel is concerned with whether a particular issue has previously been determined between the same parties by a Court of competent jurisdiction”.

The underlying rationale for the doctrine was explained by Keane J (as he then was) in Dublin Corporation v Building and Allied Trades Union [1996] 2 I.L.R.M 547 as follows:

“The justification of the doctrine is normally found in the maxim interest reipublicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved — the anxiety, the delays, the costs, the public and painful nature of the process — there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.”

Examples of Res Judicata

In The National Museum of Ireland -v- Minister for Social Protection[2016] IEHC 135 it was held that was no issue of estoppel and/or res judicata arises in respect of a decision under the Social Welfare Acts and a claim under employment legislation that is brought to the Workplace Relations Commission (WRC). The Labour Court therefore found that a decision regarding the complainant’s employment status under the Social Welfare Acts, while it may be persuasive, had no effect on a decision of an Adjudication Officer.

In A College Employee v A Third Level College (ADJ-00026088) , the complaint was seeking adjudication by the WRC under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003. The respondent raised a preliminary issue on the complaint asserting that the matters in the complaint were covered by the res judicata rule as the complaint had been the subject of a previous WRC hearing. That hearing related to complaints under the both the Protection of Employees (Fixed Term Work) Act 2003 and the Industrial Relations Act 1969. While no decision had been issued, at the date of the hearing but had since, it was determined that the complainant could not re-litigate the same issues.

In A HR Administrator v A Renewable Energy Company (ADJ-00020154) , the WRC was satisfied that there was no expressed impediment in either the Employment Equality Acts or the Parental Leave Act to debar two complaints being considered by the WRC. The Adjudication Officer was satisfied that the WRC was originally established as a merger of the employment rights bodies and with it help solve the possible forum shopping that it could be said arose in the likes of Jahan Company v Power . The two within complaints were lodged with the WRC for adjudication within days of each other, they had been associated and ran together, and they were heard together. There was no previous adjudication made on either complaint heretofore. The facts of the complaints were intertwined, however, the complainant was claiming two different legal issues. One was a breach of her employment rights as prescribed under the Parental Leave Act 1998 and the other was discrimination under the gender and family status grounds under the Employment Equality Acts 1998-2015.

Covid-19, Remote Working and Unfair Dismissal

Mon, 01 Feb 2021 08:19:17 GMT

Unfair Dismissal Law Resources:

Introduction

A recent case before the Workplace Relations Commission (WRC) (ADJ-00028293) considered whether an employee was entitled to resign her position, following her employer’s refusal to allow her to work from home, having raised concerns about contracting Covid-19 in the workplace.

Background

The employee commenced employment in May 2014 and resigned in May 2020. The employee and two colleagues had been on certified sick leave following what they say was their employer’s refusal to address Covid-19 related health and safety concerns they raised about the workplace. The employer denied this and further denied that the employee was entitled to consider herself to have been constructively dismissed.

The Managing Director of the employer company said that the employee was of the opinion that she should work from home, but that their client, a University, would not have allowed this to happen. He outlined that it was the employees’ role to deal with students directly, and she was therefore required to be on campus.

Safety, Health and Welfare at Work

The Safety, Health and Welfare at Work Act sets out the health and safety requirements of the workplace. Section 8 provides the general duty to ensure ‘so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.’ Section 8(2) provides particulars, including the duty at subsection (e) to provide ‘systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health’.

Section 8(2)(i) refers to the general principles of prevention in Schedule 3 and provides that ‘where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees’.

Schedule 3 of the Act sets out general principles of prevention, including ‘1. The avoidance of risk 2. The evaluation of unavoidable risks … 4. The adaption of work to the individual … 5. The adaption of the place of work to technical progress … 7. The giving of priority to collective measures over individual protective measures.’ These principles are engrained in how risks and hazards are addressed, for example the pyramid-structure hierarchy of control often quoted in health and safety documents. The most effective way to address a risk is to eliminate it, followed by substitution, then by engineering or administrative controls. Personal protective equipment is the last resort and the least effective measure.

Section 13 imposes duties on the employee, including to comply with statutory provisions and to take reasonable care to protect their safety, as well as to cooperate with the employer. Section 19 requires the employer to prepare a written risk assessment of hazards, including of any unusual risks to a particular employee.

The health and safety duties imposed on employer and employee are an implied term in every contract of employment. Through the contract of employment, employers and employees are bound to comply with the statutory regime and relevant health and safety policies.

Constructive Dismissal and Unfair Dismissal

It is clear from the case law, most notably, Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 and Conway v Ulster Bank UD474/1981, that there are two distinct tests for constructive dismissal. They are known as the ‘contract’ and the ‘reasonableness’ tests. They have in common that the onus falls on the employee to discharge the burden of proof. They are, however, separate tests.

In a claim of constructive dismissal, it falls on the adjudication officer to determine if the employee has met either test. In practice, however, parties may hone their submissions on one or other of the tests (as occurred in McCormack v Dunnes Stores UD1421/2008). While an employee may be able to show that they satisfy both tests, they are not required to meet both tests and there is no fused test, combining both repudiation and reasonableness.

Safe Place of Work

This case does not relate to a general right to work from home or to work remotely. It relates to the circumstances the Covid-19 pandemic. The question is whether the employee was constructively dismissed, either following a repudiation of her contract of employment or if it was reasonable for her to resign. There were wider industrial relations issues (for example working time and pay), but the WRC have only addressed these in so far as necessary to decide this claim of unfair dismissal.

As an infectious disease, Covid-19 constitutes a biological hazard. In this context and at the centre of this case are the duties of both employer and employee arising from the Safety, Health and Welfare at Work Act and the underpinning health and safety principles. Compliance with these statutory duties is an implied term of the employee’s contract of employment and significant non-compliance could represent repudiation of that contract or mean that it was reasonable for her to resign.

The WRC decided that the employee was unfairly dismissed by the employer and the employer shall pay to the employee redress of €3,712.50 as compensation for the unfair dismissal.

Conclusion

The WRC found that the requirement that the employee attend the workplace without such adequate consideration of the elimination of risk amounts to repudiation of contract. This arises as providing a safe place of work is a fundamental term of the contract of employment. The WRC held that the employer did not comply with the statutory framework by first seeking to eliminate risk, causing the employee to attend work in greater danger. In this case, the risk could have been readily eliminated or reduced through ‘reasonably practicable’ steps, as suggested by the employee.

Mitigation is not equivalent to elimination.

Equality and Employer Liability - Starbucks Case

Tue, 19 Jan 2021 09:14:38 GMT

Employment Equality Law Resources:

Introduction

A recent case before the Workplace Relations Commission (WRC) (Suchavadee Foley v Atercin Liffey Unlimited T/A Starbucks Tallaght ADJ-00028487) considered whether a drawing on a coffee cup could convey a racial connotation.

The complainant, who is of Thai Irish heritage, and her boyfriend, attended the respondent Starbucks Tallaght branch for a matcha tea latte and some water. An employee drew an image of a smile and ‘slanty’ eyes on the cup as a way of marking it as the complainants. It was held by the WRC that this marking was a clear visual depiction relating to the race of the complainant, described as “offensive and as unimaginative as a 19th century Punch cartoon”.

However, could Starbucks Tallaght be held liable for the actions of their employee in this instance?

The Equal Status Act and Vicarious Liability

The Equal Status Act (the Act) prohibits discriminatory conduct on ten grounds in the provision of services or the disposal of goods, for example going for coffee. Included amongst the grounds is race, colour, nationality or ethnic or national origins. This encompasses a race or nationality imputed to a person.

Vicarious liability arises when one is held legally liable for a wrong committed by another person, for example, because one of your employees has committed a wrong in the course of their employment. The Equal Status Act provides that an employer is vicariously liable for prohibited conduct of their employee where this occurs in the course of their employment, even without the employer’s knowledge or approval.

Prohibited Conduct under the Equal Status Act

The Equal Status Act defines ‘prohibited conduct’ as including both discrimination and harassment. It prohibits discrimination, for example, a service provider refusing to provide a service to one group of people, for example, because of their race etc. The Act also prohibits harassment, including when a person avails of a service, for example buying a cup of tea.

In respect of harassment, section 11(2) identifies as the ‘responsible person’ as a person who 'is responsible for the operation of any place' and who 'shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.' The responsible person here is the respondent, an operator of a coffee shop.

Section 11(4) provides that a person’s submission to unwanted conduct ‘may not be used by any other person as a basis for a decision affecting that person.’ A person’s submission or acquiescence to an act, therefore, does not mean that it was not harassment.

Section 11(5) defines ‘harassment’ as ‘unwanted conduct’ related to a discriminatory ground and which may have ‘the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’ This wording looks to the intention behind any unwanted conduct, but, separately, also to its effect. The section further provides that the unwanted conduct may consist of ‘acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.’ A drawing on a cup was held by the WRC to clearly fall within this definition.

Defences of the Employer to Claim of Discrimination

Section 11(3) of the Act provides as a defence that the responsible person took ‘such steps as are reasonably practicable to prevent the sexual harassment or harassment’.

Starbucks Tallaght held that it could avail of the defence under section 42(3) of the Act as it had provided training to staff.

The respondent acknowledged that discrimination was not always conscious, relying on Nevins, Murphy, Flood v Portroe Stevedores [2005] 16 ELR 282. The respondent said that the CCTV footage showed that this was a benign incident, and this was an independent source of evidence. The complainant had not been treated less favourably and others would have drawings composed of them. In this case, the drawing was positive as it was motivated by the employee thinking the complainant was glamourous.

The respondent referred to the burden of proof in equality complaints, as described by Advocate General Mengozzi in Meister C-140/10. This described the burden of proof as ‘a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.’ There were subjective and objective elements to the test.

Relying on Smith v Ombudsman [2020] IEHC 51, the respondent submitted that animus should be present but there was no evidence of animus in this case.

The respondent, Starbucks Tallaght, referred to the defence available to an employer pursuant to section 42(3). It was a defence for an employer to show that it took the ‘reasonably practicable’ steps to prevent employee’s act. It referred to its harassment policy and the training. It stated that this did not have to be perfect. Referring to the Labour Court authority of McCamley v Dublin Bus EDA 164, the respondent submitted that the training was comprehensive enough to protect the employer from liability. It commented that it had a diverse workforce, including Asian colleagues.

Determination of the WRC

The WRC found that the respondent was not entitled to rely on the statutory defences. It held that this incident stems from the well-established practice of writing on the cup to identify the customer. It is generally the customer’s name, but staff sometimes struggle to spell names correctly, for example, an unfamiliar name or for language reasons. The staff member can also draw on the cup. This is an important interaction as the point of identifying the cup is to personalise the customer experience. It, therefore, requires care to ensure that the personalisation is appropriate. While there is customer service training and a harassment policy, the WRC was not satisfied that Starbucks Tallaght provided sufficient information to staff about the power of drawings and pictures, and that what’s important, is how they are perceived.

Starbucks Tallaght was ordered to pay Ms. Suchavadee Foley €12,000 as compensation for the effects of the prohibited conduct.

Discussion or Disciplinary Process?

Mon, 11 Jan 2021 16:12:11 GMT

Introduction

What distinguishes a discussion from a disciplinary process?

In a recent case before the Workplace Relations Commission (WRC) and Labour Court, an employer was precluded from designating a discussion, as constituting a disciplinary process. This was due to a number of factors, but most importantly, as a result of the company not following its own process and procedures, as laid out in the company handbook (ADJ-00021741).

Background

This matter was heard in the Labour Court, on appeal by Lee Overlay Partners Limited against the decision of the WRC under the Payment of Wages Act 1991 (the Act), in favour of Mr Stephen Kiely, a former employer of the company.

Mr. Kiely claimed that his former employer failed to pay him a sum of €6,300 on 31 January 2019 in respect of two bonus payments which were due from reviews in 2016 and 2017. This failure, he claimed, constituted an unlawful deduction under the Act.

Mr. Kiely was informed that on the date the instalment becomes payable, each of the following conditions must be met:-

1. You must be employed by the company;

2. You have not given notice to the company of the termination of your employment;

3. You have received a ranking of 5 or above in your most recent performance appraisal; and

4. You have not been subject to the company’s disciplinary procedure in the preceding 12 months.

The bonus payments due from the financial years 2016 and 2017, which were due to be paid on 31 January 2019, were withheld as it was deemed by the his former employer, that he did not satisfy criteria 4, as he had been subject to a ‘disciplinary procedure’.

Payment of Wages Claim

The Act at Section 5 makes it clear that a deduction made by an employer is unlawful except in circumstances where the employee has given his or her prior consent in writing.

S ubsection (6)(a) of Section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction.

In Dunnes Stores (Cornelscourt) v Lacey and Nuala O’Brien[2005] IEHC 417, unreported Finnegan P., the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the claimant.

The Labour Court was required to decide whether the claimed unlawful deductions were in fact properly payable to the Mr. Kiely.

What is a ‘Disciplinary Process’?

The company policies and procedures, with respect to disciplinary processes, provided that:

“The Company will attempt to resolve any complaint in an informal manner by way of private discussion between the employee and his/her immediate supervisor. However, where such discussion fails to adequately resolve the issue or where the matter is deemed as gross misconduct, the Company’s disciplinary procedure will be invoked.”

“At every state in the procedure the employee will be furnished with details of the allegation(s) or complainant(s) against him or her and will be given the opportunity to respond fully to such allegations(s) or complaints(s) before any decision is taken.”

“Where considered necessary by the Company, details of the allegation(s) or complaint(s), including witness statements, may be provided in writing to the employee in advance of any disciplinary meeting.”

“At all stages the employee will have the right to be accompanied during any disciplinary meetings by a fellow employee or a representative of his/her trade union (if any) or other employee representative.”

An incident previously occurred that led to Mr. Kiely being spoken to, on 22 January 2019.

The meeting of the 22 January 2019 was held via a conference call.

It was not disputed that Mr. Kiely was not informed of the purpose of the meeting .

Mr. Kiely was n ot presented with allegations of any breach of procedures prior to the meeting.

Mr. Kiely was not advised of the need to have a representative present at the meeting .

The WRC and Labour Court concluded, that in all those circumstances, it is difficult to see how that meeting could be considered as invoking the disciplinary process.

At best it could be described as a discussion in accordance with the policies and procedures of the company.

The Labour Court was of the view that the policies and procedures were highly significant in this situation, as they were very specific on the point at which the disciplinary procedure is invoked, i.e., the point at which an employee could be considered as being the“subject to the company’s disciplinary procedure”.

As the matter was resolved in the discussions which took place on 22 January 2019, the Labour Court was quite satisfied that Mr. Kiely was not subject to the company’s disciplinary procedure.

Payment of Wages Rights | A Guide

Mon, 11 Jan 2021 15:45:31 GMT

Payment of Wages Resources:

Introduction - Payment of Wages in Ireland

In circumstances where an employee has not been paid all they are owed, the disputed sum may be considered a 'deduction' and the impacted employee could bring a claim before the Workplace Relations Commission (WRC).

Claims relating to the payment of wages can be brought under the Payment of Wages Act, 1991.

Payment of Wages Act

Section 5 of the Act deals with regulation of certain deductions made by employers, the relevant part are as follows:-

Section 5(1) provides:-

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.

Section 5(6) provides:-

Where—
(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or
(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,
then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Not Paying Full Amount

The Act at Section 5 makes it clear that a deduction made by an employer is unlawful except in circumstances where the employee has given his or her prior consent in writing. Subsection (6)(a) of Section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction.

In Dunnes Stores (Cornelscourt) v Lacey and Nuala O’Brien[2005] IEHC 417, unreported Finnegan P., the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the claimant.

The WRC must first decide whether the claimed unlawful deductions were in fact properly payable to the Complainant. If so, and there is no lawful basis for non-payment, the WRC may order that the employer make such payment as was owed.

What is a 'Normal' Retirement Age?

Wed, 06 Jan 2021 09:28:15 GMT

Introduction

In this case, the complainant, a cleaner, alleged that she was effectively dismissed following a transfer of the business on 02 January 2020, when the respondent, her new employers, refused to engage her services because she was 66 years of age (A Cleaner -v- A Cleaning Company (Adjudication Reference: ADJ-00026820)).

Her ‘new’ employers held that the “normal" retirement age was 65 and that their insurance policy also stipulated this requirement, as a provision of cover.

Employment Equality Acts - Proving Discrimination

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states:

“Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the employer to prove the contrary.”

This means that an employee is required to establish, in the first instance, primary facts upon which the claim of discrimination is grounded and from which it may be presumed that there has been discrimination. If they succeeds in doing so, then, and only then, the burden of proof passes to the employer to prove the contrary.

Based on the above, when evaluating the evidence in this case, the Workplace Relations Commission (WRC) had to decide whether the employee had established a prima facie case pursuant to Section 85 (a) (1) of the Employment Equality Acts 1998 to 2008.

Inferring Age Discrimination

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the employer. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of section 85 (a) (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "places the burden of establishing the primary facts fairly and squarely on the employee and the language of this provision admits of no exceptions to that evidential rule".

Having carefully considered all of the evidence adduced, the WRC found that the employee had sufficiently established a prima facie case that an act of discrimination took place in relation to the termination of her employment with the employer by means of compulsory retirement at 65. Therefore, the burden of proof switched to the employer to refute the employee’s complaint in this regard.

Defence to Claim of Age Discrimination

The employer’s rebuttal of the employee’s claim of discrimination on the age ground rested on two specific premises.

Firstly, the employer contended that a “normal retirement age” of 65 had been established in the company and applied to the employee and secondly asserted that their insurance policy did not allow the company to engage workers who are over 65.

While the WRC noted the employer’s claim that they had established a normal retirement age of 65, it was satisfied that there was no explicit contractual arrangement betwe en the employer and the employee with regard to an established retirement date given that the contract she had with her previous employer, the terms of which the employer could not alter unilaterally, did not stipulate a retirement age.

Retirement Age and Contract of Employment

In Richard Lett vs Earagail Eisc Teoranta (EDA 1513), the Labour Court found that: “an employer’s employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by s. 34 (4) of the Act. However, in the Court’s view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence.”

Having carefully reviewed all of the evidence adduced and where no express term existed in the employee’s contract of employment requiring her to retire at an appropriately established retirement date, the WRC could only conclude that the employee had no clear, actual knowledge as to the existence of such a retirement age.

Conclusion

While the employer also asserted that its insurance policy precluded the engagement of workers who were over 65 years of age, a copy of this policy was not presented in evidence and there was no suggestion that the company had queried this with their insurer or sought alternative cover elsewhere.

Consequently, taking all of the above into consideration, the WRC was satisfied that the employee was dismissed because of her age and that the employer discriminated against her.

Banded Hour Contracts – What is the Reference Period?

Mon, 14 Dec 2020 08:32:35 GMT

Introduction

A recent case before the Labour Court (the Court) on appeal from the Workplace Relations Commission (WRC) examines the factors that will be considered when deciding the reference period for the purposes of banded hour contracts.

Background

This was an appeal by the respondent at first instance, Aer Lingus (the Respondent), against a decision of an Adjudication Officer in a complaint by Cliona O’Leary (the Complainant) made under the Organisation of Working Time Act 1997 (the Act) concerning her entitlement to be placed on a banded hours contract under Section 18A of the Act. The Adjudication Officer decided that the complaint was well-founded.

Banded Hours and the Organisation of Working Time Act

The Act at Section 18A sets out the bands of weekly working hours upon which an employee may be placed as follows:

Band From To

A 3 Hours 6 Hours

B 6 Hours 11 Hours

C 11 Hours 16 Hours

D 16 Hours 21 Hours

E 21 Hours 26 Hours

F 26 Hours 31 Hours

G 31 Hours 36 Hours

H 36 Hours and over

The Respondent, in response to the request to place the Complainant on a band of weekly hours as provided for in the Act, placed her on Band F. The Complainant contended that the Respondent miscalculated her entitlement to a band of weekly working hours by failing to calculate time spent on annual leave during the reference period as working time within the meaning of the Act and consequently complains that the Respondent failed to place her in a band of weekly working hours as required by the Act.

The Respondent contended that time spent on annual leave cannot be treated as hours worked for the purposes of determining the average number of hours worked per week by the Complainant during the reference period.

Calculation of Banded Hours and Annual Leave

The Act at section 19 sets out the statutory entitlement to annual leave and at subsection 5 provides as follows:

5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave

The Act makes supplemental provision in relation to Public Holidays and states at Section 22 as follows:

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.

The Act at Section18A sets out protections to be afforded to workers which are unrelated to protections derived from the Working Time Directive 2003/88 of the European Union and which are transposed into Irish legislation by various provisions of the Act. The Court must therefore look to the Act itself to establish the meaning of the disputed provision of that Section rather than to Directive 2003/88 of the European Union but without undermining the protections guaranteed therein.

Section 18A sets out that an employee is entitled to request an employer to place her in a band of weekly working hours which reflects the average hours she works per week. This entitlement is given to an employee where she considers that her contract of employment or statement of terms of employment does not reflect the number of hours she works per week. Where such a request is made, an employer is required to determine the appropriate band to place an employee by calculating the average hours worked by the employee in the course of a 12-month ‘reference’ period. The plain purpose of the provision is to ensure the number of hours specified in the contract of employment reflects an employee’s actual working week.

If the calculation mechanism contended for by the Respondent is to be accepted, then, as a matter of mathematical certainty, this objective will automatically be defeated. This is so because the mathematical means to average hours worked across a 12-month period contended for by the employer is to total all hours worked in the period using a divisor 52. Thus, in a year where the employee has spent one week or more on annual leave as distinct from being at work, a divisor of 52 will lower the average. This methodology would guarantee a resulting average which does not reflect the average number of ‘hours worked’ per week by the Complainant in any week where she engages in ‘working time’ as that term is to be interpreted according to Section 20 of the Act.

Section 18A of the Act does not provide a definition of the term ‘hours worked’. Section 2 of the Act does set out that the term ‘work’ should be construed in accordance with the interpretation of the term ‘working time’ set out in that section.

The Court was satisfied that the treatment of annual leave required by Section 19 relates to the treatment of such leave for the purposes of Subsection 1 of that section only. The Court also notes that section 2 of the Act requires that ‘In the Act’, the term ‘annual leave’ shall be construed in accordance with Section 19. The term ‘annual leave’ is not used in Section 18A of the Act.

The Court was therefore satisfied that no provision of the Act provides a means to interpret Section 18A(4) such that the meaning of the requirement resting on the employer to determine ‘the average number of hours worked by that employee per week during the reference period’ can be said to be clearly and unambiguously set out. In particular, the Act does not make clear how time spent on annual leave is to be treated in the calculation of the average. The Court cannot simply import the treatment required of annual leave in Section 19 of the Act into Section 18A and neither can it apply the meaning of the term ‘annual leave’ set out in Section 2 to the provisions of Section 18A which does not use that term at all. Similarly, references in the Act to the treatment of annual leave do not resolve the matter.

In circumstances where, in the view of the Court, the meaning of Section 18A(4) of the Act appears to be ambiguous and where a literal interpretation of the term ‘the average number of hours worked by that employee per week during the reference period’ as used in that subsection would, in the view of the Court as has been set out above, fail to reflect the intention of the Oireachtas, it is necessary to interpret the legislation in the manner provided for at section 5 of the Interpretation Act, 2005 (the Act of 2005) which provides as follows:

5. (1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

The Court, therefore, concluded that the only reasonable means to ensure that the plain intention of the Oireachtas can be achieved is by interpreting Section 18A(4) to mean that the divisor to be used to calculate the average number of hours worked by an employee per week during the reference period should be determined by excluding the number of weeks spent on annual leave in the period. Thus, in a reference period of 52 weeks where an employee has spent, for example, four weeks on annual leave, the divisor for the purposes of section 18A(4) of the Act should be 52 minus 4 which is 48. In this manner, the average number of hours worked by that employee per week during the reference period can be determined by calculating the average hours worked per week in those weeks where the employee is engaged in work as defined in Section 2 of the Act and allowing for the fact that time spent on annual leave during the reference period is not treated as working time for the purposes of the Act at Section 18A.

Determination

The Court determined that the within complaint is well-founded and required the Respondent to comply with Section 18A and place the Complainant on the appropriate band of hours.

When is an ‘Act’ a Protected Disclosure?

Sat, 12 Dec 2020 13:03:52 GMT

Protected Disclosure Resources:

Introduction

A recent case before the Labour Court (the Court) on appeal from the Workplace Relations Commission (WRC) examines the factors that will be considered when deciding whether an act or behaviour can be construed as amounting to a protected disclosure.

Background

This case was an appeal by Ms Frances Murphy (the Complainant) against the decision of an Adjudication Officer ADJ-00006471, CA-00008739-004, in her claim of penalisation against her former employer, Connemara Marble Industries Limited (the Respondent), under Section 12(1) of the Protected Disclosures Act, 2014 (the 2014 Act).

Ms Frances Murphy worked in the family business, since a child, was subsequently made a shareholder and later expressed concerns that the tills were being operated on a ‘cash basis’. She subsequently refused to work on a ‘cash till’. Ms Murphy claimed that these actions were in response to her concerns that operating on a ‘cash basis’ exposed the company to fraudulent practices.

The Adjudication Officer held that Ms Murphy did not make a protected disclosure as defined by the 2014 Act and accordingly held that her claim was not well-founded.

Protected Disclosure Law in Ireland

The Act provides for a tiered disclosure regime and encourages a worker to make a disclosure to his/her employer or a prescribed person in the first instance. It provides that a worker may make a protected disclosure to his/her employer where he/she reasonably believes that information being disclosed shows or tends to show wrongdoing.

Section 5 of the 2014 Act contains an exhaustive definition of ‘protected disclosure’:

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

Section 2 of the 2014 Act provides that “‘penalisation’ means any act or omission that affects a worker to the worker’s detriment.

Section 12(1) of the 2014 Act provides that:

“An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

It follows that a Complainant under the 2014 Act must demonstrate (i) that they made one or more protected disclosures, (ii) that they suffered a detriment and (iii) that there is a causal connection between (i) and (ii).

Application of Protected Disclosures Act to Case

The Court first had to establish that a protected disclosure within the meaning of the 2014 Act had been made by the Complainant before it could consider whether penalisation for the making of a protected disclosure had occurred. In this case, it was disputed that a protected disclosure in line with section 5 of the 2014 Act was made.

The 2014 Act provides in section 5(7) that a Complainant’s motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

It also provides in section 5(8) that where an issue arises as to whether a disclosure is a protected disclosure it shall be presumed until the contrary is proved, that it is.

In Babula v Waltham Forest College [2007] ICR 1026 the UK Court of Appeal determined that the fact that an employee may be wrong in their belief is not relevant, provided their belief is reasonable and the disclosure to their employer made in good faith.

The test for whether a communication is a protected disclosure is whether relevant information is disclosed which the employee reasonably believes shows relevant wrongdoing by the employer.

In this case, the term ‘protected disclosure’ was first raised in November 2016, after the Complainant’s suspension from her employment, when her solicitor wrote to the Respondent stating that the real reason for her suspension was the fact that she had made a protected disclosure about the inappropriate use of funds. The fact that no mention was made of the term ‘protected disclosure’ prior to this does not mean that matters raised by the Complainant before this time are not protected.

As outlined by Humphreys J. in the recent case of Clarke-v-CGI Food Services Limited & Anor. [2020] IEHC 368:

“One can make a protected disclosure without invoking the 2014 Act or without using the language of “protected disclosure”. It is often only after the victimisation, dismissal or other adverse consequence arrives that one has to “retrospectively” figure out what really happened and analyse it in the statutory language. There is nothing wrong with that process and it is certainly different from “retrospectively” creating a case from nothing”.

The central question for the Court was whether a disclosure of relevant information was made to the Respondent that in the reasonable belief of the Complainant tended to show a relevant wrongdoing. Given contradictory evidence submitted by the Respondents, and the fact that the Complainant could provide no actual evidence of ‘wrongdoing’ as a consequence of the operation of a cash till, the Court found against her.

In Baranya v Rosderra Irish Meats Group Ltd [2020] IEHC 56O’Regan J outlined:

“Although the concept of a protected disclosure is effectively a term of art as defined by the 2014 Act, the word ‘disclose’ has the ordinary meaning of to ‘reveal’ or ‘make known’. In this context the statement that the communication did not disclose any wrongdoing on the part of the respondent is, in fact, factually correct as the communication by the appellant, as found by the Labour Court, did not reveal or make known any wrongdoing on the part of the respondent. In those events it was not possible to read into the communication any reasonable belief of a relevant wrongdoing on the part of the employer”.

In the case before the Court, no statement was made by the Complainant to the Respondent as to the reason why she refused to work the till in November 2016, nor a disclosure of a wrongdoing was made. It was submitted that the protected disclosure was communicated through the inaction of the Complainant in refusing to work the till. In the view of the Court, inaction on the part of the Complainant as outlined in this case did not amount to a disclosure of relevant information.

A disclosure of relevant information under the 2014 Act must relate to the provision of specific facts rather than an allegation, or expression of opinion or state of mind of the worker. The information provided must be of facts which in the reasonable belief of the worker making the disclosure tends to show wrongdoing.

In the absence of specific facts about a relevant wrongdoing and how the disclosure of a relevant wrongdoing was communicated to the Respondent in November 2016, the Complainant failed to establish that a protected disclosure within the definition set out in Section 5 of the 2014 Act was made.

Compromise Agreements and Independent Legal Advice

Fri, 11 Dec 2020 08:32:07 GMT

Introduction

A recent case before the Workplace Relations Commission (WRC) examines the factors that will be considered when deciding whether the WRC has jurisdiction to hear a complaint, despite the existence of a compromise agreement (often referred to as an exit, severance or settlement agreement) between the parties.

Background

In An Administrative Assistant v A Charity (ADJ-00022029), the employee was employed by the employer from 23 April 2007 to 21 January 2019. The employee was invited to a meeting on 19 September 2018 for a chat about the future of the office, which ultimately led to her redundancy, in advance of which she was offered, and signed, a compromise agreement. However, she eventually took a claim for unfair dismissal, arguing that she wasn’t fully aware of the consequences of signing the compromise agreement.

Compromise Agreements and Irish Employment Law

The employer denied the complaint of unfair dismissal. The employer said that the employee was dismissed due to a redundancy, which was a genuine dismissal and the procedures used were correct.

The employer relied on the compromise agreement signed by the employee on 7 December 2018, which waived future claims and specifically noted that the Workplace Relations Commission did not have jurisdiction to inquire into the complaint.

The Agreement provided:

“ The Employee confirms that they have had the opportunity to receive independent legal advice with regard to both the meaning and effect of entering into this agreement and signing this document and has taken advice from their trade union. The Employee further understands and accepts the contents of this document in full ”.

The employer relied on Hurley v Royal Yacht Club [1997] 8 ELR 225 which requires the agreement to specifically state the legislation the employee agrees to waive claims under, and that the employee is adequately advised.

The employer disputed the employee was coerced into signing the compromise agreement and said her Trade Union official was involved in the consultation process from its commencement on 17 September 2018. On the basis the employee sought to avail of voluntary redundancy, the employer provided the compromise agreement and the employee procured a solicitor to understand the meaning and effect of the agreement in accordance with clause 7.

The employer also relied on Sunday Newspapers v Kinsella & Anor that the appropriate legislation to be taken into account by the employee is listed and it was not necessary that appropriate advice is professional legal advice in writing. The employee was notified that she was entitled to bring a work colleague or union representative to the meetings. In nearly all meetings the employee’s union official was present. The employer engaged in a transparent manner and examined all alternatives to redundancy including an offer of redeployment to another office and voluntary redundancy.

The Workplace Relations Commission and Compromise Agreements

The WRC noted Section 13 of the Unfair Dismissals Acts 1977-2015 , which provides:

“ A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act .”

Judge Buckley in Hurley v Royal Yacht Club [1997] 8 ELR 225 considered the law in relation to a compromise agreement executed by an employee which did not specifically set out the waiver of his rights in relation to employment protection legislation. The Judge affirmed that employers and employees can compromise claims under the Unfair Dismissals Acts 1977-2015 but this must be in circumstances where the person has an informed consent .

The waiver of legal rights must specifically refer to the various Acts applicable, and the employee should be advised in writing that he should take appropriate legal advice as to his rights. This was endorsed by the High Court in Sunday Newspapers Ltd v Kinsella & Anor [2008] 19 ELR 53 .

Conclusion

The WRC accepted the evidence of the employee that she did not receive either legal advice or advice from her trade union on the terms of the compromise agreement. In addition, the employee was impacted with a relevant medical condition at the time she signed the compromise agreement. Accordingly, the WRC found that it did have jurisdiction to inquire into this complaint.

However, luckily for the employer, the WRC found that the redundancy was a genuine one, that the employee concerned was fairly selected, and therefore, it did not uphold her complaint for unfair dismissal.

Right to Claim Redundancy Suspended (Again)

Tue, 24 Nov 2020 14:05:56 GMT

Suspension of Redundancy Rights

The Irish Government, on 24 November 2020, announced yet another extension of certain provisions which preclude an employee from claiming redundancy from their employer, if they have been temporarily laid off, or placed on short-time work, for an extended period. It was expected that the suspension of these rights would expire on 30 November 2020. However, the Government has announced an additional extension of the relevant provisions, until 31 March 2021.

Statement by Tánaiste

The Tánaiste said:

" I want to acknowledge how difficult this year has been for businesses and their staff. I know this news will be really disappointing for some staff who were hoping to take redundancy before the end of the year. This was a really difficult decision for the government to make and not one which was taken lightly. It was taken in the best interests of society as whole in order to avoid the triggering of further business failures and job losses.

"We know that the first quarter of 2021 will be particularly challenging for many businesses which apart from dealing with considerable trading difficulties due to COVID-19 will also be facing the added disruption and uncertainty of Brexit. We want to help businesses to survive this period so that we can protect as many jobs as possible and get people back to work as soon as it is safe to do so ."

Lay-off and Redundancy Rights

Section 12 of the Redundancy Payments Act provides that an employee on lay-off or on short-time hours, for 4 weeks or more, or 6 weeks in the previous 13 weeks, can claim redundancy from their employer.

The Emergency Measures in the Public Interest (COVID-19) Act suspends that right during the emergency period:

Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19 .

The emergency period was originally defined as that period beginning on 13 March 2020 and ending on 31 May 2020.

This change does not prevent an employer from making an employee redundant, but does prevent an employee from asserting their right to redundancy.

The Equal Status Act – Service Discrimination

Tue, 24 Nov 2020 07:44:50 GMT

Employment Equality Law Resources:

Introduction – Discrimination as to Service

A recent decision of the Workplace Relations Commission (WRC) reaffirms a generally accepted provision, that in order to be discriminated against on the grounds of one's non receipt or delivery of service, one must be in a position, or qualified to avail of that service.

In the present case, the complainant, a father of two children attending a Primary School (the Father), submitted that the alleged behaviour of the school in failing to provide him with information relating to his children’s attendance, amounted to discrimination on the grounds of gender.

The respondent (the School) refuted the complaint and submitted a prima facia case of discriminatory treatment did not exist.

Discrimination under the Equal Status Act

The matter referred for adjudication was whether or not the Father was discriminated against pursuant to Section 3(1)(a) and 3(2)(a) of the Equal Status Act (the Act) and in terms of Section 7 (2) of that Act.

The details of the circumstances regarding the children which were raised during the hearing are not recounted in this article, save to say that the WRC noted that the appropriate agencies had been involved in the situation. It was recognised that the circumstances were difficult for the Father, and where the Father does not believe the School treated him fairly in how it responded to his concerns. The WRC did empathise with all the parties involved and acknowledge the issue was a matter of distress for the Father. The evidence submitted supported the proposition that the School did in fact respond to the Father’s issues and met with him on a number of occasions, despite some of the evidence being disputed between the parties.

Proving Discrimination under the Equal Status Act

With respect to a complaint under the Equal Status Acts, a person making an allegation of discrimination must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination could be established by the Father, the burden of proof would then shift to the School to rebut the presumption of discrimination.

Defining “Service” under the Equal Status Act

Section 2 of the Equal Status Acts defines “service” as a service or facility of any nature which is available to the public generally or a section of the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes access to and use of any place.

Application of Equal Status Act

The School is an Educational establishment, and therefore section 7 of the Act applies.

Section 7(2) of the Act states that an educational establishment shall not discriminate in relation to— (a) the admission or the terms or conditions of admission of a person as a student to the establishment; (b) the access of a student to any course, facility or benefit provided by the establishment, (c) any other term or condition of participation in the establishment by a student, or (d) the expulsion of a student from the establishment or any other sanction against the student.

The Father was not a pupil of the School or a person that could legitimately avail of the services provided by the School as set out in Section 7(1) of the Act. On that basis the nature of the Father’s case does not apply to section 7 of the Act.

The WRC therefore did not find a prima facie case of discriminatory treatment existed in this instance.

Recruitment and Age Discrimination - Objective Justification

Tue, 10 Nov 2020 08:10:01 GMT

Introduction to Age Discrimination in An Garda Síochána

A recent decision of the Workplace Relations Commission (WRC) casts doubts on the legality of age restrictions for certain profession that have hereto justified these restrictions by the physical nature of the work undertaken.

In the separate cases of Fitzpatrick & Boyle (the Applicants) v Commissioner of An Garda Síochána , it was held that the imposition of an age limit of thirty-five years, for entry to the profession, was a crude method of determining physical suitability for membership of the Irish police service.

This case may have consequences for applicants beyond An Garda Síochána. Organizations such as the Defence Forces and Fire Brigade continue to reject applications on age grounds, citing the robust physical requirements, pertinent to their roles.

Background

The Applicants stated that they applied to be members of An Garda Síochána in October 2005 through a competition conducted by the Public Appointments Service (PAS). The Applicants stated that within days they received a response from PAS advising them that they were ineligible for consideration as they were over thirty-five years old – which was the upper age limit that applied.

The Applicants contended that this amounted to discrimination of them on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2004 and contrary to section 8 of those Acts.

An Garda Síochána rejected the assertion that they discriminated against the Applicants, stating that the upper age limit is prescribed by the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004 and that the operation of this upper age limit is objectively justified in terms of sections 34 and/or 37 of the Employment Equality Acts 1998-2004.

Operational Requirements for Age Discrimination

The legitimate aim pursued by An Garda Síochána is to ensure the ongoing and proper functioning and operation of An Garda Síochána.

Counsel for An Garda Síochána submitted a number of factors which should be examined in the context of assessment. An Garda Síochána is unique in that it is a single unified police force. Members are generally unarmed and are required to perform a wide range of tasks across a number of areas that An Garda Síochána is required to provide policing to.

Counsel for An Garda Síochána submitted that it therefore forms an integral part of the State security services and that the need to provide these services is constant, requiring ‘fit and able’ persons to undertake the work prescribed.

Objective Justification for Age Discrimination

Counsel for An Garda Síochána sought to rely on the Decision of the Equality Tribunal in Saunders v CHC Ireland Ltd in terms of the argument that the possession of a high level of physical capacity is a characteristic related to age which amounts to objective justification.

EU Commission’s comments in its Paper “ Age Discrimination and European Law ” that “ the use of such age limits will have to be shown to be clearly necessary; even a pressing legitimate such as public safety cannot justify the sweeping use of age limits where individual assessment is possible .”

Dr. Murphy-Griffin, a lecturer at Waterford Institute of Technology in the Department of Sport and Exercise, located in the School of Health Sciences, appeared for An Garda Síochána. The witness stated that the research reviewed in her Report clearly highlights the importance of physical fitness for the proper functioning of a police officer regardless of age or gender, in particular in safely dealing with arrest scenarios. She added that it is commonly agreed that physical fitness decreases with age and that its effects vary according to several factors, including life history, genetics, lifestyle and healthy behaviour and she noted that peoples’ cardio and respiratory fitness will decline at different rates having regard to these factors.

Dr. Thomas, a former senior ranking police officer in the UK, attended the Hearing on behalf of the Applicants. He stated that for several years he was Assistant Chief Constable at Kent Police Force, six years of which they was responsible for Recruitment, Personnel, Training and Professional Standards. The witness stated that Kent Police force currently has no upper age limit for recruitment to the force - a characteristic common to many other police forces in the UK. Dr. Thomas detailed the fitness requirements operated by Kent Police Force. He added that it was a standard test, which applied, inter alia, to all police officers in the force, including recruits, regardless of gender. He further stated that the test was mandatory and must be completed and passed every year.

Professor Moyna, a Professor of Clinical Exercise Physiology at Dublin City University, appeared for the Applicants. He expressed the view that aging is a multidimensional construct and opines that it has a primary and secondary component. Primary biological aging refers to the progressive deterioration of one’s physiological function which occurs as a person gets older. Secondary aging refers to “ accelerated deleterious structural and functional age-related changes caused by lifestyle factors that quicken the rate of biological agin g”. The witness added that reducing sedentary behaviour and maintaining levels of physical activity is the single most important means of limiting the rate of decline in physiological function. Professor Moyna added that in his view, “ selecting an arbitrary maximum chronological age of 35 years for entry to An Garda Síochána assumes that all individuals undergo the same age-related deterioration in physical function and fails to take account of the complex nature of biological aging, and in particular, the role of a healthy lifestyle .”

Proving Discrimination on Age Grounds

Section 85A of the Employment Equality Acts 1998- 2004 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of the Tribunal, the Workplace Relations Commission and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.

Application of Equality Law to An Garda Síochána Recruitment

Having carefully considered all of the written and oral evidence adduced by the parties, the WRC was satisfied that the Applicants were excluded from proceeding to the next stage of the process solely because of their age. It is at this point that the less favourable treatment of them crystallised. The possibility that they may have not succeeded at any subsequent element of the selection process is irrelevant. The fact is that they were denied that opportunity on the sole basis that they were over the upper age limit which applied for eligibility to the competition.

In Donnellan v The Minister for Justice, Equality and Law Reform McKechnie J held that the imposition of a mandatory retirement age is prima facie discrimination on grounds of age in terms of the Framework Directive – which is transposed into Irish law by the Employment Equality Acts 1998-2004 . The view expressed by McKechnie J must equally apply to the operation of a mandatory upper recruitment age. The WRC therefore found that the Applicants had established a prima facie case of discrimination on grounds of age and the burden then shifted to An Garda Síochána to rebut the inference raised.

The CJEU held in Wolf that lung function, musculature and endurance diminish as a person gets older. In Sorondo , the Court held that “ police work is both physiologically and psychologically demanding which over time leads to a deterioration of adaptation mechanisms and an increase in chronic diseases that cause the functional age to be higher than in other professions ” and that “ from the age of 40 years there is an age associated decrease in resilience to stress and a subsequent inability to perform another task for a variable period of time .”

Having carefully considered the matter, the WRC was satisfied that the characteristic of possession of a high level of physical capacity is a characteristic related to age and that the third limb of the test is satisfied.

Was Age Discrimination Justified?

The WRC found that the operation of the upper age limit of 35 years was not proportionate in terms of Article 4(1) of the Framework Directive and section 37(2) of the Employment Equality Acts 1998-2004 . The WRC found that it goes beyond what is appropriate and necessary and that the objective pursued can be achieved by other means.

Counsel for the Applicants stated that the remedy sought by the Applicants was to be permitted to have their applications for selection considered and not regarded on the sole basis of their age.

The WRC noted that the Applicants were now at an age which would significantly reduce their ability to provide service for a reasonable period of time so that the State could recoup its investment in training, always assuming that they would be successful in all aspects of the selection process and successfully complete the training period, which is now two years.

Consequently, the WRC considered compensation to be the most appropriate remedy in the circumstances.

The WRC ordered that An Garda Síochána pay the Applicants the sum of €12,700 by way of compensation for the distress suffered by them as a result of this discrimination.

Covid-19: Reduced Pay, Reduced Hours and Redundancy

Fri, 30 Oct 2020 18:06:25 GMT

Introduction to Irish Employment Law and Covid-19

The Covid-19 pandemic has brought about significant disruption in our economy and society.

As a consequence of the economic slowdown, many employers have struggled to navigate their way through the difficult financial times, we now find ourselves in.

When income is reduced, employers will naturally look to reduce costs. One of the most obvious ways to implement significant cost savings, across any business, is to reduce salary spend. This can be achieved through a variety of means.

Reduced Hours or Pay due to Covid-19

Some employers may decide to reduce the hours' employees will work or seek an overall reduction in pay. These changes may be temporary or long-term measures, however, depending on the specific contract of employment, it is critical that employers constructively engage with employees, when looking to implement such an amendment to the fundamental terms and conditions of employment.

The abrupt and unilateral introduction of reduced hours or reduced pay, without employee consultation or consent, could lead to a potential payment of wages or industrial relations claim in the Workplace Relations Commission, even if the contract of employment alludes to the employer having such a right.

There may be remedies in the civil courts for a disgruntled employee who considers these changes to be a breach of contract.

It wouldn’t be unimaginable for an employee to bring a claim for unfair dismissal by way of constructive dismissal, arguing they had no option but to resign, but this would be a high bar to overcome, without having exacerbated all internal recourses first.

In any event, detailed legal advice should be sought before pursuing any of these actions.

Lay-Off due to Covid-19

We have already seen large numbers of employees in Ireland, placed on layoff. When an employee is placed on layoff, it is usually on the expectation that they will eventually return to work, if the economic circumstances, and the commercial viability of the business, improve.

Emergency legislation was brought into force, across Ireland, to allow employers to place employees on layoff, for a longer period than would ordinarily be allowed, as a direct consequence of the Covid-19 pandemic (the Emergency Measures in the Public Interest (Covid-19) Act applied from 13 March 2020 and is now scheduled to continue until 30 November 2020).

During lay off, an employee is still ‘employed’ by their employer and the essential terms of their contract of employment remain in force.

Redundancy due to Covid-19

The most consequential decision an employer can take, in reducing headcount spend, is to terminate the employment of some of its employees, potentially through a redundancy process.

The Covid-19 pandemic does not provide an automatic explanation or justification, for the redundancy of any employee, per se. The guiding legal principles and protocols, surrounding a redundancy scenario, continue to apply throughout the pandemic, and any employer who does not strictly adhere to these best practices, may be liable to a potential claim for unfair dismissal, in the Workplace Relations Commission.

Under Irish redundancy law, an employee who is dismissed shall be deemed to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to:

“the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed; or

the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.”

Despite the economic turmoil that we find ourselves in, an employer will still be under an obligation, if implementing redundancies, to prove that such a process was undertaken, pursuant to the grounds cited in the legislation above.

A redundancy cannot be used as a method to eliminate, what would otherwise be described as ‘difficult’ or ‘problem’ employees. The courts previously held, in JVC Europe, that a redundancy “cannot be a clock for weeding out those less competent”.

Justification for Redundancy due to Covid-19

Although the Covid-19 pandemic will obviously be a catalyst for significant change in many businesses, it is crucial that an employer can point to one of the accepted justifications for the implementation of a redundancy process, if they are to successfully defend that process, when challenged.

Citing Covid-19, in isolation, shall not be sufficient. An employer who can clearly demonstrate the impact Covid-19 has had on their business, be they economic, organizational or strategic, will be better placed in defending a potential claim.

Change in the Business Direction

Change in the Skill Set Required

Quite often, a business will justify a termination of employment by redundancy, by the justification that they intend to carry out the business, in a way and manner, for which the skill-set of the terminated employee, is no longer required.

Fewer Employees

Another potential scenario is when businesses assert that they will carry on providing the same type of service or output, but will do so with a fewer number of employees.

Change in Working Methods

Furthermore, a business may cite a change in working methods, as justification for the termination of an employee, by way of redundancy.

Selection Method for Redundancy due to Covid-19

What we do anticipate, in many claims wherein redundancy is disputed, is that some employers may have issues in providing that they applied an objective selection process and procedure when implementing redundancies, or that they failed to carry out a comprehensive consultation process, with the potentially impacted employees.

Objective Criteria

An employer is permitted to retain their best and most critical employees, in a revised and restructured organization. However, there must be some objective criteria, against which, employees are judged and appraised, for redundancy selection. The type of criteria usually utilized includes qualifications of training, educational qualifications, experience, client relationships, work rate, technical skills, quality of work and length of service.

In any potential claim, it would be expected that an employer would be able to provide some criteria, against which, the terminated employee was measured, against those who eventually retained their roles.

Meaningful Engagement

Conclusion

Citing Covid-19, in isolation, is not a sufficient justification, for initiating a redundancy process, unless the employer can point to significant strategic or operational changes, within the organization, requiring a reduction in headcount, for any number of employees.

Having said that, we do anticipate, that the context of the Covid-19 pandemic, will not be lost on the Workplace Relations Commission, when they do hear future claims for unfair dismissal, arising from a redundancy process, during the pandemic.

Proceed with caution and seek advice!

Who Can Attend Work During Level 5 Covid Restrictions?

Wed, 21 Oct 2020 14:56:14 GMT

You should work from home unless you are providing an essential service for which your physical presence is required.

Physical attendance at workplaces is only permitted for those providing the following listed services where such services can only be provided in person and cannot be delivered remotely. It does not include administrative and other support for such businesses and services unless the physical presence of a worker is required.

Agriculture, horticulture, forestry, fishing, animal welfare and related services

The following services relating to agriculture, horticulture, forestry, fishing, animal welfare and related services:

(a) farming;

(b) farm labour;

(d) crop and animal production;

(e) fishing for commercial purposes;

(f) aquaculture and fish farming;

(g) horticulture;

(h) forestry;

(i) veterinary, animal welfare and related services;

(j) marts held online only;

(k) the provision of support services relating to any of the services specified in subparagraphs (a) to (j) (including artificial insemination and animal disposal).

Manufacturing

The following services relating to manufacturing:

(a) the manufacture, production or processing of food and beverage products;

(b) the manufacture, production or processing of animal feeds;

(d) the manufacture of wood pulp, paper and paperboard;

(e) the operation of sawmills and the processing of wood and cork;

(f) the printing and reproduction of newspapers and other media services;

(g) the distillation of coke and refined petroleum products;

(h) the refining of alumina;

(i) the manufacture of chemicals and chemical products;

(j) the manufacture of pharmaceutical products and preparations;

(k) the manufacture of products necessary for the supply chain of essential services;

(l) the manufacture of products necessary for national and international supply chains, other than such supply chains referred to in subparagraph (k);

(m) the manufacture of computers, electronic and optical products (including semi-conductors);

(n) the manufacture of electrical equipment, machinery and other equipment (including agricultural and forestry machinery);

(o) the manufacture of medical devices or appliances;

(p) the manufacture of medicinal, health, dental and other personal hygiene products, equipment, appliances and supplies.

Supply, repair and installation of machinery and equipment

The following services relating to the supply, repair and installation of machinery and equipment:

(a) the supply, repair and installation of machinery and equipment (including mechanically propelled vehicles, industrial machinery and equipment) for essential services;

(b) the repair of mechanically propelled vehicles or the repair of bicycles and related facilities.

Electricity, gas, water, sewage and waste management

The following services relating to electricity, gas, water, sewage and waste management:

(a) the generation, transmission, supply and distribution of electric power;

(b) the extraction and distribution of gas and decommissioning activities in relation to offshore gas filed facilities;

(d) the collection, treatment and disposal of sewage or wastewater;

(e) the collection of waste, remediation activities and other waste management treatment and disposal activities (including the operation of landfill sites, waste transfer stations, waste processing centres and recycling facilities or waste recovery).

Construction and development

The following services relating to construction and development:

(a) construction or development work and the provision of support services relating to construction and development work;

(b) the repair, maintenance and construction of road, rail and utility infrastructure;

(c) the supply and delivery of maintenance and repair services to businesses and places of residence (including electrical, gas, plumbing, glazing and roofing services).

Wholesale and retail trade

The following services relating to wholesale and retail trade:

(a) the operation of essential retail outlets;

(b) wholesale and distribution services necessary for ensuring the availability for sale of food, beverages, fuel, medicinal products, medical devices or appliances, other medical or health supplies or products, essential items for the health and welfare of animals, or supplies for the essential upkeep and functioning of a place of residence;

Transport, storage and communications

The following services relating to transport, storage and communications:

(a) the provision of land transport, including bus, rail and taxi services;

(b) road, rail, sea and air freight;

(d) the operation of ports, harbours and airports;

(e) the operation of lighthouses;

(f) warehousing and support activities (including cargo-handling, postal and courier activities) for the transportation of goods;

(g) the control and critical maintenance of the transport infrastructure network (including roads);

(h) any service required for the safe provision of a service specified in subparagraphs (a) to (g).

Accommodation and food services

The following services relating to accommodation and food services provision:

(a) hotel or similar accommodation services to persons who are guests of those hotels or similar accommodation on the 21st day of October 2020 until the date of their departure;

(b) hotel or similar accommodation services to guests travelling for purposes other than social, recreational, cultural or tourist purposes;

(c) the operation of hotels or similar accommodation services providing essential accommodation (including accommodation for homeless persons and persons in direct provision, persons who are unable to reside in their usual place of residence due to reasons related to the spread of Covid-19 or otherwise) and related services;

(d) food and beverage service activities for supply to a business engaged in an essential service;

(e) the provision of food or beverage takeaway or delivery services.

Information and communications

The following services relating to information and communications:

(a) the production and publication of newspapers, journals and periodicals and the distribution of those publications, whether in hardcopy or digital format;

(b) the production of television and radio programmes, video, sound, digital or other electronic content and the broadcast or publication of the same to the public or a portion of the public;

(c) the provision of services necessary to deliver and support wired telecommunication activities and satellite telecommunication activities and other communications activities (including internet and cloud providers);

(d) the provision of data centre services and related services.

Financial and legal activities

The following services relating to financial and legal activities:

(a) financial, insurance and banking services (including post office and credit union services) provided by a financial services provider;

(b) accounting services or audit services;

Professional, scientific and technical activities

The following services relating to professional, scientific and technical activities:

(a) the provision of engineering, technical testing activities and analysis (including the performance of physical, chemical and other analytical testing of materials and products);

(b) the provision of scientific research and development services;

(c) regulation, inspection and certification services, in accordance with law, of a particular sector by a body created by statute for that purpose.

Rental and leasing activities

The provision of a service for the rental or leasing of mechanically propelled vehicles or bicycles.

Administrative and support activities

The following services relating to administrative and support activities:

(a) payroll and payment services necessary for the operation of undertakings and bodies;

(b) employment placement and human resources services associated with the recruitment and deployment of workers engaged in the provision of essential services;

(d) security activities to assist in either or both of the following:

(i) the delivery of essential services;

(ii) the securing of premises closed to the public;

(e) funeral, burial and related services;

(f) business support services (including information and communications technology support and sales, repair and maintenance for information and communications technology and telephones) where such services are necessary to support -

(i) any other essential service,

(ii) a person working from their place of residence where the business concerned is being operated from a place of residence, or

(iii) a business that is not an essential service, to the extent required to maintain that business in operation or to minimise any delay in the business resuming operation after these Regulations have ceased to be in operation;

(g) where such services are necessary to support any other essential service:

(i) the cleaning of buildings;

(ii) industrial cleaning activities;

(iii) the provision of key third party supports other than those referred to in paragraph (f) provided under contract to a person providing an essential service.

(h) essential health and safety training (that cannot be done remotely).

Public administration, emergency services and defence

The following services relating to public administration, emergency services and defence:

(a) the performance by the Garda Síochána, including members and civilian staff of the Garda Síochána, of its functions under the Garda Síochána Act 2005 (No. 20 of 2005);

(b) public order, rescue and emergency services (including fire, coastguard, lifeboat, mountain rescue and ambulance services);

(d) emergency call answering services;

(e) services to enable the administration of justice;

(f) prison services and child detention services (including all onsite activities);

(g) cyber-security services;

(h) the provision of social protection benefits;

(i) regulatory processes and certification required to ensure supply chains, safety of food, beverages, medicinal products, medical devices or appliances, other medical or health supplies or products, and general process safety;

(j) the operation and maintenance of botanical gardens, parks, forests, nature reserves and playgrounds;

(k) activities relating to the management, protection, restoration and conservation of protected species, habitats and designated natural, archaeological and built heritage sites

(l) security, care and maintenance of premises, collections and objects under the care and management of the National Cultural Institutions

(m) services relating to the deaths and funerals of persons;

(n) chaplaincy services;

(o) services provided or functions performed by an office holder appointed under any enactment or under the Constitution, or members of either House of the Oireachtas, the European Parliament or a local authority;

(p) services provided under the Child Care Act 1991 (No. 17 of 1991);

(q) adoption services under the Adoption Act 2010 (No. 21 of 2010);

(r) services provided to victims;

(s) services, including regulation services, provided by, and activities of, the Central Bank of Ireland, the Investor Compensation Company DAC (otherwise known as the Investor Compensation Company Limited) and the National Treasury Management Agency;

(t) any other service provided, or function performed, by a public body (within the meaning of the Data Sharing and Governance Act 2019 (No. 5 of 2019)), where the provision of the service or performance of the function is necessary to support or manage -

(i) other essential services, or

(ii) the response of the State to the spread of Covid-19;

(u) Driver Testing Services provided by the Road Safety Authority for the purposes of section 33 of the Road Traffic Act 1961 (No. 24 of 1961) for people involved in the provision of essential services or essential retail outlets;

(v) Driving instruction provided by instructors on the Register of Approved Diving instructors, established under Part 3 of the Road Traffic (Driving Instructor Licensing) (No.2) Regulations 2009 (S.I. No. 203 of 2009), where the person receiving instruction has a booking reserved to undergo a test for the purposes of section 33 of the Road Traffic Act 1961 (No. 24 of 1961);

(w) NCT for those with existing appointments;

(x) specific statutory planning system activities, to the extent that they cannot be carried out remotely.

Human health and social work activities

The following services relating to human health and social work activities:

(a) hospital services;

(b) therapy services provided by a member of a designated profession within the meaning of section 3 of the Health and Social Care Professionals Act 2005 (No. 27 of 2005);

- In line with current NPHET advice in respect of Level 5, disability day services will continue to remain open and are deemed essential

(i) the identification, tracing and contacting of persons who have been in contact with persons who have been diagnosed, or are suspected of having been infected, with Covid-19, and

(ii) the testing of persons for Covid-19;

(d) laboratory services;

(e) drug treatment and addiction services;

(f) hospice services;

(g) pharmacy services;

(h) primary care and general and specialist medical practice activities;

(i) dental services;

(j) blood donation and related services;

(k) tissue or organ donation and related services;

(l) residential care services (including nursing care, mental health and substance abuse services, services for elderly persons and persons with disabilities) and children’s residential services;

(m) homecare, home help and other health services in the community;

(n) social work and social care services, (including disability services, mental health services, child protection and welfare services, domestic, sexual and gender-based violence services) and homeless services including homeless outreach services;

(o) paramedical, ambulance and pre-hospital care services;

(p) services provided by minor injury units;

(q) maternity services;

(r) health and social work services;

(s) food safety and environmental services;

(t) regulated childcare services and the care of children for persons providing essential services.

Education

The following services relating to education activities:

(a) primary and post primary school;

(b) higher and further education, insofar as onsite presence is required and such education activities cannot be held remotely.

Community and voluntary services

The following services relating to community and voluntary services:

(a) services not otherwise specified in this Schedule, provided by community and voluntary workers and the Civil Defence, as part of a publicly commissioned service, deployed to assist in the delivery of essential services;

(b) volunteer services operating under the local authority emergency management framework in accordance with public health guidance.

Diplomatic missions and consular affairs

The provision of services essential to the functioning of diplomatic missions and consular posts in the State.

Unfair Dismissals and Alternative Sanctions

Sun, 18 Oct 2020 07:53:24 GMT

Unfair Dismissal Law Resources:

Introduction to Unfair Dismissal and Alternative Sanctions

A recent case before the Workplace Relations Commission (WRC) highlights the need for solid decision and documentation processes, if and when an employer decides to terminate the employment of an employee (see: ADJ-00025193). A failure to strictly adhere to one’s own disciplinary processes and procedures, as well as considering all the options available, could count against an employe r, if challenged.

Background

The complainant was employed as a social care worker (Employee) in a care facility which provides residential care and day services to adults and children with complex support needs (Employer).

A service user of the care facility submitted a complaint concerning an incident that took place, wherein the Employee had called her ‘fat’ and as a result she felt insulted and dejected. When questioned about the incident, the service user quoted the Employee saying, “I am not trying to be funny, but you are fat”. The service user noted that this was not the first time the Employee had expressed such an opinion. The service user’s version of the incident was supported by statements from other members of staff who had been present. The service user was quite distressed after the incident.

As a result of this interaction, the Employee was dismissed, after a relatively comprehensive investigation and disciplinary process.

Unfair Dismissal in Ireland

In a complaint of unfair dismissal arising from the employee’s conduct the relevant statutory provisions and the factors to be considered are set out in Section 6 of the Unfair Dismissals Act, 1977 including:

6. (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Was the Dismissal Reasonable?

The Employer submitted that any form of inappropriate behaviour towards a service user and failure to maintain their safety and wellbeing could only be deemed to be gross misconduct as per their disciplinary policy. They contended that the Employee’s actions amounted to gross misconduct.

The Employer argued that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such, they claimed their decision to dismiss the Employee was reasonable and fair in the circumstances. Therefore, to the employer, the dismissal was not unfair.

‘Band of Reasonable Responses’ Test

The ‘band of reasonable responses’ test in the context of Section 6 of the Unfair Dismissals Act, 1977 was set out by Noonan J in The Governor and Company of the Bank of Ireland v Reilly as follows:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see R oyal Bank of Scotland v. Lindsay .

It is also useful to look at the language of Judge Linnane, in Allied Irish Banks v. Purcell , where she commented:

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift and the following statement of Lord Denning MR:

‘ The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’ It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the Employer to make the decision it made rather than necessarily the one the EAT or the court would have taken. ”

The WRC accepted that the company provides residential care, community outreach and day services to adults and children with complex support requirements on both the intellectual disability and mental health spectrums. As such, there is a responsibility on the care facility to maintain a high standard of compliance with health and safety regulations and provide care to vulnerable users of the services. The provision of such services requires well trained and committed staff with an understanding of the issues associated with working with vulnerable users of the services.

The WRC further accepted that the Employee did something that he should not have done. His comments were inappropriate and caused a vulnerable service user to become upset. The Employee could not provide any valid reason for his actions. He acknowledged that this service user could have reacted to his comments by self-harming or absconding. The WRC recognised that what took place was a very serious error that caused great upset to the service user.

However, the WRC noted the Employer’s disciplinary policy includes the following statement;

"Summary Dismissal – this occurs where a team member is in serious breach of a company policy, procedure or practice or who’s conduct or behaviour is deemed to be a serious concern, under the terms of Gross Misconduct. In this instance disciplinary action may result in the team member’s contract of employment being terminated. The team member will be dismissed without notice or pay in lieu of notice .”

The use of the word ‘may’ indicated that dismissal is not always the penalty to be imposed. Each case must be decided on the facts and any penalty imposed must take account of all the relevant circumstances of the individual case.

Alternatives to Dismissal?

Dismissal from employment is the ultimate penalty. The WRC noted that the letter of dismissal gave no indication that any alternative to dismissal was considered.

There were six outcomes of a disciplinary procedure listed in the Employer’s disciplinary policy;

· No further action

· Informal Caution / Counselling

· Verbal Warning

· First Written Warning

· Final Written Warning

· Dismissal.

Appropriate Alternative Sanction to Dismissal?

The Employee had received a first written warning for a separate disciplinary not involving a service user. The first written warning was not referred to in the disciplinary decision. The WRC noted that this was the first time a complaint of this nature had been made against the Employee.

Therefore, given a lack of consideration of alternative sanctions and a relatively ‘clean’ disciplinary record, it was held by the WRC that a dismissal was disproportionate to the infringement complained of. Finding the dismissal unfair, the WRC awarded the Employer €6000.

Conclusion

The incident in this case was serious and required a reasonable and appropriate response from the Employer. As it was the first time such an incident occurred it would have been reasonable to consider all the possible sanctions available before deciding on the ultimate sanction of dismissal. The WRC was satisfied that the decision maker, having decided the allegations were well founded, did not consider any alternative penalty to dismissal. The decision to dismiss did not take account of all the circumstances. The decision to dismiss cannot be regarded as coming within the range of reasonable responses of a reasonable employer as alternatives to dismissal were not considered, or at least, recorded.

The key takeaway for employers is to consider all the options available and record, not only the decisions made, but also the factors leading to that final decision.

A Guide to Workplace Accident & Injury Claims in Ireland

Sat, 10 Oct 2020 16:14:46 GMT

Health and Safety in the Workplace

Safety, Health and Welfare at Work Act

These laws set out the rights and obligations of both employers and employees and provides for substantial penalties for breaches of the legislation. The Act applies to all employers, employees (including fixed-term and temporary employees) and self-employed people in their workplaces.

Health and Safety Regulations

There may be specific regulations that apply to certain workplaces, depending on the nature and type of work involved. These regulations provide more details of the regulatory requirements under the Acts.

In addition to legislation there are also a number of Codes of Practice which relate to health and safety in the workplace.

Purpose of Acts and Regulations

Compliance with the health, safety and welfare at work legislation will help to prevent workplace accidents and injuries from occurring, as well as ensuring that employees are not subjected to a hostile or dangerous work environment.

Health and Safety Authority (HSA)

The HSA is responsible for enforcing health and safety of employees at work, provides information on best practice workplace health and safety protocols. If an employer is negligent in securing a safe environment, and an accident occurs, an employee may be able to make a personal injuries* claim.

Employer Obligations - Health and Safety in the Workplace

Employer Health and Safety Obligations

Employers have a duty under Section 8 of the Acts to ensure that employees’ safety, health and welfare at work is protected as far as is reasonably practicable. In order to prevent workplace injuries and ill health, the employers have a number of obligations, noted below.

Risk Assessment Obligations

Under the Acts, every employer is required to carry out a risk assessment for the workplace which should identify any hazards present in the workplace, assess the risks arising from such hazards and identify the steps to be taken to deal with any risks.

Protective Measures

Where required, employers should tell employees about any risks which require the wearing of protective equipment, and the employer should provide this protective equipment.

Employee Behaviour

Employers have a duty to prevent improper conduct or behaviour (which includes bullying, harassment and violent behaviour). If an employer does not deal with complaints within a sufficient period of time, they may be open to claims for damages by an employee.

Employers Workplace Welfare Obligations

In order to prevent workplace injuries and ill health, the employers have a number of obligations, including:

the provision and maintenance of a safe workplace which uses safe plant and equipment;
the prevention of risks from the use of any article of substance and from exposure to physical agents, noise and vibration;
the prevention of any improper conduct or behaviour likely to put the safety, health and welfare of employees at risk;
the provision of instruction and training to employees on health and safety;
the provision of protective clothing and equipment to employees;
the appointment of a competent person as the company’s Safety Officer.

Risk Assessments in the Workplace

The employer must also prepare a safety statement which is based on the risk assessment. The statement should contain the details of the employees who are responsible for safety issues. Employees should be given access to the statement and employers should review it regularly.

Employers should carry out a separate risk assessment in relation to employees under 18 years of age. This risk assessment should be carried out before the person is employed. If certain risks are present, including risks that cannot be recognised or avoided by the young person due to factors such as lack of experience, the young person should not be employed.

Employee Obligations - Health and Safety in the Workplace

Employee Health and Safety Obligations

Employees have a number of duties to ensure their health, safety and welfare, and those of fellow employees, are protected in the workplace. The Health and Safety Acts set out rights and obligations of both employers and employees and provide for substantial penalties for breaches of the legislation.

Employee Health and Safety Expectations

Employees are required: to take reasonable care to protect the health and safety of themselves and of other people in the workplace; not to be under the influence of drink or drugs in the workplace; to undergo any reasonable medical or other assessment if requested to do so by the employer; and to report any defects in the place of work or equipment which might be a danger.

Employee Health and Safety Engagement

Employees are required to engage with their employer to the extent required to ensure compliance with the Acts, and are specifically required not to engage in improper conduct or other behaviour that is likely to endanger his/her (or someone else’s) safety, health and welfare at work.

Employee Risk for Improper Behaviour

The Health and Safety Acts provide that an employee shall not intentionally, recklessly or without reasonable cause interfere with, misuse or damage anything provided for the purpose of securing the safety, health and welfare of persons at work and neither shall they place at risk any persons in connection with work activities.

Employees Raising a Safety Concern

An employer’s failure to comply with the duties imposed on them by the law may result in criminal prosecution and include provision for fixed charge penalties. The Health and Safety Act provides that employees must not be victimised for exercising his or her rights under safety and health legislation, such as making a complaint in respect of those failures. This means an employer must not penalise an employee by dismissal or in some other way, for example by disciplinary action or being treated less favourably than other employees, for raising a concern.

Workplace Injury* Benefit and Compensation

If an employee has an accident at work they may apply for Injury Benefit from the Department of Social Protection, if the accident means that the employee cannot perform their work. Employees cannot seek compensation from their employer for an injury sustained at work, under the health and safety legislation.

An employee can, however, make a personal injury* claim through the Injuries Board, an independent statutory body. It will only give an assessment of compensation where the person responsible is not seeking a decision on liability.

Reporting Accident or Injury in the Workplace

Reporting Accidents or Injuries at Work

Employees should report all workplace accidents to the employer, who should then record all details of the incident. This will help to safeguard welfare and other rights which may arise as a result of an occupational accident.

Reporting to Health & Safety Authority (HSA)

Injuries must be reported to the HSA if an employee is unable to carry out their normal work for more than three consecutive days, excluding the day of the accident.

What is not Reportable?

Any injury or accident should be reported to the employer and a record kept, but only fatal and non-fatal injuries are reportable to the HSA. Diseases, occupational illnesses or any impairments of mental condition are not reportable.

Reporting Non-workplace Accidents

An employer may be required to report the injury of a person who is not an employee and who is not at work but who is injured

'from a work activity' if the injured person has had to be taken from the location of the accident to receive

treatment in respect of that injury in a hospital or medical facility.

What is an 'Accident' or 'Personal Injury'?

The Safety, Health and Welfare at Work Act 2005 contains the following definitions:

An ‘ accident ’ means an accident arising out of or in the course of employment which, in the case of a person carrying out work, results in personal injury.

A ‘ personal injury ’ includes –

any injury, disease, disability, occupational illness or any impairment of physical or mental condition, and
any death, that is attributable to work.
When should an accident be reported to HSA?
There are three situations in which an accident should be reported:
arising in the course of employment resulting in personal injury to the person carrying out the work activity. This could be an injury to an employee who is actually doing the work;
arising in the course of employment which results in personal injury to an employee who was not doing the work that is the subject of the accident; and/or
arising from a work activity which results in personal injury to a person outside of the course of employment. This could be an injury to a non-employee or member of the public.

Bringing an Accident or Injury in the Workplace Claim*

Bringing a Claim for Workplace Injury

The Personal Injuries Assessment Board (PIAB) was established to provide independent assessment of personal injury compensation claims for employees who have suffered an injury in the workplace, or while working. In general, a claim must be submitted to the PIAB in the first instance.

Time Limits for an Injury Claim

Our advice is to notify all relevant personnel immediately after a workplace accident or injury. In general, an employee has two months to notify their employer.

Employees may, in some instances, have up to two years from the date of an accident to bring a claim.

What are 'Special Damages'?

Special damages can be anything that goes beyond compensation for the injury, relating to monetary loss suffered, including car hire, damage (e.g. loss of car), damage to clothing or property, loss of earnings, medical consultations, medical treatment fees, medication, physiotherapy, travel, vehicle storage and/or vehicle towing.

Timelines for an Injury Claim

In general, workplace accident claims made to the PIAB are assessed in just over 7 months from when the employer consents to have the claim assessed by the PIAB. Claims for workplace accidents or injuries can take up to 36 months in the civil courts.

What information is required for a workplace injuries claim?

A personal injuries claim usually requires the following details:

the employee's name, address and occupation;
the employee’s personal public service number;
the employer's name, the address and occupation;
the injuries to the employee alleged to have occurred;
details of any special damage in respect of which the employee is making a claim; and
full particulars of the acts or failings of the employer leading to the accident.

What is the 'Book of Quantum'?

The Book of Quantum is intended to provide an indication as to the potential range of compensation for a particular injury. It provides assistance to all those involved in resolving personal injury claims by making the level of damages more predictable and consistent throughout the injury compensation system.

An assessment has a number of components, covering some or all of the following:

a sum to compensate for pain, suffering and loss of enjoyment of life;
future cost of medical care;
loss of earnings into the future caused by the injury; and
specific losses such as past loss of earnings and medical bills.

Compensation for Injury in the Workplace Claim*

Identify a Category of Injury

Assessment of compensation* starts by identifying that part of the body that has suffered the most significant

injury, although the complete effect of all the injuries will be considered, e.g :

back and spine
body and internal organs
head
lower limbs
neck
upper limbs

Understanding the Severity of the Injury

Generally the severity is categorised into broad ranges to reflect the degree of disruption to

lifestyle, pain and permanency of the condition, e.g :

minor
moderate
moderately severe
severe and permanent
Determine the Value Range

The Book of Quantum is then consulted to identify the value given the the relevant injury.

Very often, the majority of cases fall within a given range. However, it should be noted that the actual award may often fall outside of the recommended guidelines.

Consider Multiple Injuries

If, in addition to the most significant injury, there are other injuries, it is not appropriate to

simply add up values for all the different injuries to determine the amount of compensation*.

Where additional injuries arise there is likely to be an adjustment within the value range.

Settlement Agreements and Independent Legal Advice

Tue, 06 Oct 2020 16:00:41 GMT

Settlement Agreement Resources:

What is a 'Settlement Agreement'?

Often referred to as ‘ exit agreements ’, ‘ compromise agreements ’, or ‘ termination agreements ’, a settlement agreement records the final and agreed terms between a departing employee and his or her employer.

The main legal impact of a settlement agreement is that it will prevent an employee from bringing any future claim against the employer. The consequences of such an agreement cannot be overstated, particularly if there is or was a dispute between the parties.

Independent legal advice, prior to the execution of a settlement or exit agreement, is designed to ensure that the employee concerned, is fully appraised, of the consequences of signing the agreement.

However, is independent legal advice always required?

Case Law on Settlement Agreements and Independent Legal Advice

The leading authority in relation to agreements which compromise employment statutory rights is Sunday Newspapers Ltd -v- Stephen Kinsella and Luke Bradley (2008) 19 E.L.R. 53 . In that case, former employees who had entered into severance agreements sought to pursue complaints under the Protection of Employees (Fixed-Term Work) Act 2003 arguing that a waiver of their rights under the Act was void. In the High Court, Smyth J. allowed an appeal against the Labour Court making a number of generic findings with reference to decided caselaw.

Firstly, he confirmed that an employee could enter into an agreement in relation to his or her statutory rights and the question of whether or not such rights had been compromised was a matter for the proper construction of the agreement itself.

Secondly, he adopted Hurley -v- Royal Yacht Club [1997] E.L.R. 225 which considered the circumstances where claims can be legitimately compromised and held that an employee being offered a severance package was entitled to be advised of his entitlements under the employment protection legislation and any agreement or compromise should list the various applicable statutes or at least make it clear that they had been taken into account by the employee.

In addition, an employee should be advised in writing to seek appropriate advice as to their rights and in the absence of such advice, a severance agreement waiving statutory rights would be void.

Recognising the need to enable parties to enter into settlement agreements, this Judgment was recently approved by the High Court in Board of Management of Malahide Community School -v- Conaty Irish Employment Law Journal 2019, 16(3), 85-87 so long as there is informed consent.

In Irish Life Assurance PLC -v- John Healy EDA 1514 (2016) 27 E.L.R. 211 , the Labour Court held that the doctrine of promissory estoppel applied. Having entered into and acted upon a financial settlement of High Court Proceedings with the benefit of legal representation which compromised and waived all claims arising from the claimant’s employment with the respondent, the claimant was deemed to be estopped from pursuing a subsequent complaint under the Employment Equality Acts.

Workplace Relations Commission Complaints and the existence of a Settlement Agreement

The case of A Customer Success Guru -v- An Ecommerce Company provides a useful summary of the position of the Workplace Relations Commission (WRC) with respect to settlement agreements and the bringing of a claim.

Given the unequal positions of strength between employers and employees and protective nature of employment statutes many of which contain non-waiver provisions, an examination of the circumstances surrounding an agreement compromising same requires close scrutiny. Applying the undisputed facts to the principles elucidated in the aforesaid caselaw, the WRC will generally construe a settlement agreement as full and final resolution of any existing and potential claims arising from the parties’ employment relationship.

Settlement Agreement and Informed Consent

Duress to sign a Settlement Agreement?

Did Employer and Employee execute the Settlement Agreement?

Ultimately, did both parties act upon the agreement with the employee paying over the ex gratia sum and by the employee accepting same.

If each of these conditions are satisfied, the employee will be estopped from pursuing a complaint under and the WRC will not have jurisdiction to adjudicate on the substantive complaint.

The requirement for Independent Legal Advice

The Labour Court recently held an appeal by a worker against the decision of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act. The Adjudication Officer decided that a ‘Terms of Settlement’ agreement reached between the parties upon the termination of the employee’s employment amounted to a waiver entered into by the employee such that that he had accepted terms in full and final settlement of all claims against the employer and waived his rights under employment legislation specified in the agreement. The Act was identified in the agreement as legislation in respect of which the employee waived his rights. It was submitted that while the employee is an educated person, he is a Palestinian person whose first language is not English. He is not familiar with the common law system and has difficulty understanding Irish employment law and particularly so in the absence of legal advice. Having regard to the fact that employer placed sole reliance on the settlement agreement as a defence to the complaint, the Labour Court concluded that the dismissal of the employee was unfair.

The Takeaway

The key takeaway for employers is that they risk a potential claim if an employee executes a settlement agreement without independent legal advice.

The key takeaway for employees is that they may be entitled to bring a claim if independent legal advice was not offered, suggested or paid-for by their employer.

Stress, Disability and Discrimination under Irish Employment Law

Tue, 06 Oct 2020 10:14:11 GMT

Introduction to Stress and Disability Caselaw

A recent case was decided by the Labour Court, which examined whether stress could amount to a ‘disability’ for the purposes of the Employment Equality Acts.

Background

The employee was a Personnel Manager in one of the employer’s stores and was a longstanding employee. This case was an appeal of a Workplace Relations Commission decision taken by the employee, alleging discrimination on grounds of disability, contrary to the terms of the Employment Equality Acts 1998-2015 (Determination No. EDA2012).

Stress and Disability - Relevant Law

Under the Employment Equality Acts “disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

In cases of discrimination under the Employment Equality Acts, the person alleging the discrimination bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred.

Disability and ‘Stress’ under the Employment Equality Acts

The definition of disability has been interpreted broadly.

In An employee v. Bus Eireann (2003) ELR 351, it was held that a heart condition was a disability under the Acts.

In Mr. O v A Named Company DEC-E2003-052 it was held that work related stress may amount to a disability.

In A Government Department v A Worker EDA094, it was held that a condition that manifests in a minimal level of symptoms may be classified as a disability.

In the European cases of Chacon Navas v Eurest (C-13/05) and then in Jette Ring v Dansk (C-335/11) it was established that a disability was any condition that hinders full and effective participation in the workforce.

Stress at Work

The employee submitted medical certificates referring to her stress over two periods, from February to September 2015 and from April to August 2016. In addition, the Labour Court was furnished with a medical report from the employee’s doctor, which refers to the injuries to the employee due to this work-related stress as including, sleep disturbance, anxious all the time, tearful and emotionally fragile. It identifies also that the employee developed hypertension in early 2016 and that the events had led to moderate impact on her mental health. The report also referred to the probability of psychological ‘sequellae’ related to this episode in the employee’s life.

Employers Response to Claim that ‘Stress’ was a ‘Disability’

The employer argued that the employee is not a person with a disability, so she is not protected in that regard by the Acts. For them, stress is not a disability under the Acts.

In An Employer And A Worker EDA 1927 the Labour Court noted that the employee in that case had only identified a disability to his employer after his dismissal and that no medical evidence of disability had been provided prior to dismissal and, therefore, the dismissal was not discriminatory.

In the case of A Worker And a Government Department EDA094 the Court drew distinction between the ordinary human reaction to stressful situations and psychiatric illness and described suggestions that would blur the distinctions as an ‘absurdity’. That case emphasised the necessity for the employee to submit medical evidence in support of a claimed disability.

In the present case, the employer noted that, there is no evidence at all of alleged depression even in the medical report submitted and there is no evidence of any medication being prescribed for any of the alleged manifestations of stress.

Decision

In cases of discrimination under the Employment Equality Acts the employee bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred.

In the instant case that burden requires the employee to prove that she suffered from a disability within the meaning of the Acts.

As the Court of Justice noted in Chacon Navas v Eurest Coletividades SA (2006) ECR 1-6467 there is a distinction between sickness and disability. The Labour Court noted, as was pointed out by the employer, in A Worker v A Government Department (EDA 094) that suggestions which blur the distinction between ordinary human reaction to stressful situations and recognised psychiatric illness are an ‘absurdity’.

Conclusion

It is not sufficient, therefore, for the employee to rely on ‘stress’, however caused, as grounds for a claim to have a disability. It is necessary for the employee to show that he or she had a disability as defined above in the Acts. In circumstances where the fact of disability is in dispute, the Labour Court or Workplace Relations Commission can be assisted with evidence from medical practitioners. The failure of the employee to call such a practitioner in evidence means that the Labour Court was left to rely entirely on the written evidence provided. The medical certificates provided to the employer were scant on detail, referring only to ‘stress/work related stress’, which was of no assistance to the Labour Court.

For further information, please contact Crushell & Co.

A Guide to Defamation Law in Ireland

Tue, 06 Oct 2020 08:11:05 GMT

Defamation in the Workplace

What is the Defamation Act 2009?

The purpose of the Defamation Act 2009, is to ensure that an individual's right to a good name, under the Irish Constitution, is upheld.

What are the Elements of Defamation?

The essential elements of the tort of defamation are that a statement be published, which undermines the reputation of an individual, who is reasonably identifiable.

Publication of a Defamatory Statement

The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “defamation” shall be construed accordingly.

Undermines the Reputation of a Person

An individual may dislike or disapprove of a statement made about them. Their feelings may even be hurt. However, for a successful claim of defamation, the statement made must undermine the reputation of that person (e.g. what was the meaning and was it defamatory?).

Identification of Defamed Person

To bring a successful claim, an individual must prove that the defamatory statement could be reasonably inferred to relate to them personally (e.g. a defamatory statement concerns a person if it could reasonably be understood as referring to him or her).

Defences to Defamation

What are the Defences to Defamation?

Truth of a statement is an absolute defence. Fair comment may be considered, as will absolute and qualified privilege. Qualified privilege is often used by employers to defend robust statements concerning the performance of employees.

The Defence of Truth

Section 16 of the Defamation Act 2009 provides that: it shall be a defence (to be known and in this Act referred to as the “ defence of truth”) to a defamation action for the defendant to prove that the statement in respect of which the action was brought is true in all material respects.

Absolute Privilege

Absolute privilege is unlikely to arise in workplace defamation claims as it primarily relates to statements made in made in either House of the Oireachtas, the European Parliament or the exercise of judicial functions.

Qualified Privilege

The statement was published to or from a person or persons who had a duty to receive, or interest in receiving, the information contained in the statement. Very often, in workplace defamation claims, this defence is relied upon in relation to spoken or written words.

Honest Opinion

At the time of the publication of the statement, the defendant believed in the truth of the statement. The opinion leading to the statement must be made on empirically true and accessible facts.

What are the Damages for Defamation?

Assessing Damages in Defamation Claims

When assessing damages to be awarded, consideration is given to the nature and extent of the defamatory statement and the conduct of the parties (e.g. did the defendant offer an apology, correction or retraction of the statement, or an offer to make amends).

Special Damages in Defamation Claims

The court in a defamation action may make an award of special damages to the plaintiff in respect of financial loss suffered by them as a result of the injury to their reputation caused by the publication of the defamatory statement.

Aggravated Damages in Defamation Claims

The court may award aggravated damages when it can be shown that the defendant conducted his or her defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory statement.

Punitive Damages in Defamation Claims

The court may award punitive damages when it is shown that the defendant intended to publish the defamatory statement, knew that the defamatory statement would be understood to refer to the plaintiff, and knew that the statement was untrue or was reckless as to the truth.

Conclusion

Employers' liability for defamatory statements may arise from a variety of contexts involving employer-employee communication.

The principal employment actions giving rise to potential defamatory statements are terminations, references, dissemination of confidential information, evaluations, internal discipline and criticism.

By specializing exclusively on workplace legal and regulatory issues, Crushell & Co have a unique expertise and experience, through which we can objectively analyse and litigate work-related defamation claims.

A Guide to Data, Privacy and GDPR in the Workplace

Tue, 06 Oct 2020 08:01:47 GMT

GDPR in the Workplace

The General Data Protection Regulation (GDPR) places significant obligations on Irish employers in relation to how they collect, use and protect employee data.

Employer Data Obligations

Irish employers need to have adequate data protection training, policies, procedures and protocols in place, to secure employee data rights.

Employee Data Protection Rights

Irish employees have a right to access their work-related data, as well as a right to be informed as to who and how that data is collected and processed.

Employee Data Access Requests

Irish employers must have protocols in place to respond to employee data access requests within 1 month, or 3 months if the request is complex.

Privacy in the Workplace

Employer Monitoring of Employee Emails

The monitoring of employee emails, internet use or phone calls constitutes 'processing' of data. Therefore, employers need to balance their legitimate interests with the right to privacy of their employees.

Workplace Data & Privacy Policy

Irish employers need to have adequate data protection training, policies, procedures and protocols in place, to ensure who, how and when, employee emails, internet use and phone calls will be reviewed or recorded.

Monitoring Employee Data Use

Irish employees must ensure that the monitoring of employee emails, internet use or phone calls, goes no more than is necessary, under the professional circumstances, and is carried out in the least intrusive manner possible.

Employee Data & Privacy Rights

Irish employees may be entitled to bring a complaint to the Data Protection Commission if they feel their employer has undertaken excessive or disproportionate monitoring of emails, internet use or phone calls.

GDPR in the Workplace

Data Protection Principles

Employer processing of employee data must be lawful, fair and transparent, minimal, accurate, stored for no longer than necessary, confidential, and exercised with accountability.

Employee Consent to Data Processing

Irish employees must ensure that they have a legal basis or the consent of their employees to process their data. That consent must be ‘freely given, specific, informed and unambiguous’.

Employee GDPR Complaints

Irish employees may be entitled to bring a complaint to the Data Protection Commission if they feel their employer has breached the provisions of the General Data Protection Regulation.

Employer Data Obligations

Irish employers must be transparent as to how they are using their employees data, safeguard that data and ensue such data is being processed in accordance with the GDPR principles.

Data Protection Principles

Employer processing of employee data must be lawful, fair and transparent, minimal, accurate, stored for no longer than necessary, confidential, and exercised with accountability.

Employee Data Training

Irish employees should ensure their employees receive adequate training on what employee data will be collected, and how and why that data will be processed.

Employee Data Rights

Employee Training & Information

Irish employers need to ensure all employees have adequate data protection training and are aware of company data & GDPR policies and procedures.

Employee Data Access Requests

Irish employers must have protocols in place to respond to employee data access requests within 1 month, or 3 months if the request is complex.

Employee Data Breach Compensation

Irish employees have a right to compensation for non-material damage caused by the unlawful processing of their data by their employer.

Data in the Workplace - Liability and Compensation

Right to Receive Compensation

Any employee who has suffered material or non-material damage as a result of an infringement of their data rights may have the right to receive compensation from their employer for the damage suffered.

Employer Data & GDPR Liability

Any Irish employer involved in processing employee data shall be liable for the damage caused by processing which infringes employee GDPR rights, unless it can prove it was not responsible for the damage.

Data Protection Action

An employee may, where they consider that their rights under GDPR have been infringed, bring an action against their employer in the civil courts. A data protection action shall be deemed to be an action founded on tort.

Compensation & Remedies

If successful in pursuing an action, an employee may be granted a injunction or compensation for damage (including material and non-material damage) suffered, as a result of the infringement of their rights by their employer.

Reporting a Data Breach - The Key Considerations

Wed, 30 Sep 2020 08:04:59 GMT

Introduction

A personal data breach occurs when the data is accessed, disclosed, altered, lost or destroyed in contravention of an organisation's obligation to keep personal data in its possession safe and secure.

As an employer, you have a duty to ensure the safety and integrity of the data you store and process on behalf of your employees and clients. However, if a data breach occurs, you may be under an obligation to notify the Data Protection Commission (DPC) within 72 hours.

In determining how serious you consider the breach to be for affected individuals, you should take into account the impact the breach could potentially have on individuals whose data has been exposed. In assessing this potential impact you should consider the nature of the breach, the cause of the breach, the type of data exposed and whether the personal data of vulnerable individuals has been exposed.

There are three levels:

Low Risk: The breach is unlikely to have an impact on individuals, or the impact is likely to be minimal

Medium Risk: The breach may have an impact on individuals, but the impact is unlikely to be substantial

High Risk: The breach may have a considerable impact on affected individuals

Severe Risk: The breach may have a critical, extensive or dangerous impact on affected individuals.

If the risk is ‘low’, you may not be required to report a breach, but, it may be advisable to contact your solicitor to determine whether communication with the DPC is required.

Information Required when Reporting a Data Breach

1. Breach Timeline

1.1. Do you know the date on which the breach initially occurred?

1.2. The date on which the breach began

1.3. Do you know the time at which the breach occurred?

1.4. Is the breach ongoing?

1.5. If you became aware of the Breach is more than 72 hours ago, please enter the reasons for the late notification of the breach to Data Protection Commission

1.6. How were you made aware of the breach?

2. About the Breach

2.1. Does the Breach involve accidental or unlawful:

2.1.1. Destruction

2.1.2. Loss

2.1.3. Alteration

2.1.4. Disclosure of transmitted personal data

2.1.5. Disclosure of stored personal data

2.1.6. Disclosure of personal data otherwise processed

2.1.7. Access to transmitted personal data

2.1.8. Access to stored personal data

2.1.9. Access to personal data otherwise processed

2.1.10. Unavailability

2.2. What is the nature of the Breach:

2.2.1. Device Lost or Stolen (encrypted)

2.2.2. Device Lost or Stolen (unencrypted)

2.2.3. Paper lost/stolen

2.2.4. Disclosure (unauthorised)

2.2.5. Inappropriate disposal of paper

2.2.6. Hacking

2.2.7. Malware

2.2.8. Phishing

2.2.9. E-Waste (personal data present on obsolete device)

2.2.10. Unintended online publication

2.2.11. Network security compromised

2.2.12. Website security breach

2.2.13. Other

2.3. Please describe how the Breach occurred

2.4. Please select the cause of the Breach

2.4.1. Employee error or omission

2.4.2. Employee intentional act

2.4.3. Contractor error or omission

2.4.4. Contractor intentional act

2.4.5. External intentional act

2.4.6. External unintentional act

2.4.7. Unknown

3. About the Breached Data

3.1. What identifying details relating to individuals were disclosed?

3.1.1. Data subject identify (name, surname, date of birth)

3.1.2. PPSN (or other national identification number

3.1.3. Contact details

3.1.4. Identification data (passport, licence data etc)

3.1.5. Economic or Financial data

3.1.6. Location data

3.1.7. Criminal convictions, offences or security measures

3.1.8. Other

3.2. Were any special categories of data involved ?

3.3. Do you know the number of affected individuals?

3.4. Please enter the approximate number of affected individuals

3.5. Do you know the number of affected records?

3.6. Please enter the approximate number of records affected

3.7. Are data subjects in another member state likely to be affected?

3.8. Were vulnerable individuals affected ?

3.9. Does the breach involve personal data maintained for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties in the State ?

4. Measures in place before the Breach and measures to respond to the Breach

4.1. Measures in place before the Breach and measures to respond to the Breach

4.2. What measures have you taken / do you propose to take in response to the breach?

4.3. Are the mitigating actions fully implemented?

4.4. Have you secured/retrieved the breached data?

5. Consequences/Damages of the Breach for affected individuals

5.1. What in your view are the potential consequences of the breach for affected individuals?

5.1.1. Loss of control over their personal data

5.1.2. Limitation of their rights

5.1.3. Discrimination

5.1.4. Identity theft

5.1.5. Fraud

5.1.6. Financial loss

5.1.7. Unauthorised reversal of pseudonymisation

5.1.8. Damage to reputation

5.1.9. Loss of confidentiality of personal data protected by professional secrecy

5.1.10. Other

5.2. Self-Declaration: How severe is the breach for affected individuals ?

5.2.1. Low Risk

5.2.2. Medium Risk

5.2.3. High Risk

5.2.4. Severe Risk

6. Notification to affected individuals

6.1. Have you notified the affected individuals of the Breach?

6.1.1. Yes

6.1.2. Partially

6.1.3. No

6.1.4. No, but the affected individuals will be notified

6.2. How many affected individuals were informed?

6.3. How were the affected individuals informed?

6.3.1. Formal letter

6.3.2. Email Message

6.3.3. Telephone call

6.3.4. Website notice

6.3.5. Social media notification

6.3.6. Press / media notification

6.3.7. Other

6.4. Please outline the reasons for using this channel

6.5. What information was communicated to the affected individuals? In particular, please indicate if you have related to affected individuals the steps they may take to mitigate any adverse consequences which have been caused or could be caused to them by this breach.

6.6. What information was communicated to the affected individuals? In particular, please indicate if you have related to affected individuals the steps they may take to mitigate any adverse consequences which have been caused or could be caused to them by this breach.

Conclusion

Crushell & Co have extensive experience in advising both employers and employees on all aspects of Irish data protection and privacy laws, including responding to potential data breaches.

We counsel clients on their rights and responsibilities under the data protection regulations, raising or responding to an access request, as well as raising or responding to a notification or complaint to the Data Protection Commission.

Speak to one of our Dublin based specialist data protection solicitors to determine how we can best assist you with your workplace data protection, privacy or GDPR matter.

Non Payment of Wages and Unfair Dismissal

Wed, 30 Sep 2020 06:49:04 GMT

Payment of Wages Resources:

Unfair Dismissal Law Resources:

Introduction to unfair dismissal and non-payment of wages

Can an employee who hasn’t been paid his or her salary, assume that their employment is terminated?

Although there is no universal answer, as each case will be judged upon its own merits, a failure to pay wages, without lawful excuse, may be construed as an intention to terminate the employment relationship, as was decided in a recent case before the Workplace Relations Commission (WRC)(ADJ-00018294).

What is an unfair dismissal?

Section 6 of the Unfair Dismissals Act 1977 as amended (‘the Act’) provides, inter alia, as follows:

‘(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.’

Lawful reasons for a dismissal

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(d) the e mployee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides:

Contract at an end? Failure to pay salary?

Both parties in the present case referenced Redmond on Dismissal wherein it is stated that “in general, a person is dismissed when the employer informs him clearly and unequivocally that contract is at an end or if the circumstances leading to a dismissal was intended or may reasonably be inferred as having been intended .... dismissal requires communication to the employee to be effective.”

The employee contended that the failure to continue salary payments amounted to such an act and communication, as to clearly signal an intention to terminate the employment relationship.

Conclusion

The WRC accepted the position of the employee that the unilateral act of the termination of salary payments, clearly and unequivocally conveyed the intention of the employer that the contract between the employer and the employee was at an end. The WRC further accepted that the letter confirming same, fulfilled the requirement that the communication of the dismissal to the employee to be effective as per the aforesaid definition.

It was noted that the employee did not provide the employer with any form of communication indicating he had either resigned or abandoned his position.

GDPR and Personal Devices – The Potential Pitfalls

Mon, 21 Sep 2020 09:14:34 GMT

Introduction - GDPR and Personal Devices

A recent case in Poland highlights the pitfalls of employees using personal devices to process work-related information.

The Warsaw University of Life Sciences (SGGW) was found to have exposed the personal data of students and prospective degree candidates back in November 2019. Up to 100 students may have had their information exposed after data was stored on an employee’s personal device, which was later stolen. The university was not aware that the employee was processing students’ personal data on a non-work device, a statement from the UODO reads.

Employers Obligations under GDPR

The General Data Protection Regulation (GDPR) places significant obligations on Irish employers, in relation to how they collect, use and protect employee data.

Irish employers need to have adequate data protection training, policies, procedures and protocols in place, to secure employee data rights.

An employee may, where they consider that their rights under GDPR have been infringed, bring an action against their employer in the civil courts. Although not quite as developed in this jurisdiction, a data protection action shall be deemed to be an action founded on tort.

GDPR and Personal Devices - Takeaway for Employers

In the present case, the president of the Polish National Personal Data Protection Office (UODO), the equivalent of the Date Protection Commissioner, fined the institution PLN 50,000 ($13,000) for a breach of GDPR rules.

Irish employers must be transparent as to how they are using their employees data, safeguard that data and ensue such data is being processed in accordance with the GDPR principles.

Acting Up - Considerations under Employment Law

Tue, 15 Sep 2020 07:37:34 GMT

Introduction

An interesting case was recently decided by the Labour Court which spoke to some of the criteria to be examined when assessing the legal characterisation of an employee ‘acting-up’ or occupying some temporary interim role.

This case came before the Labour Court on appeal of a decision of the Workplace Relations Commission (WRC) against Mr. Power, who had made a complaint against the HSE, which had failed.

Mr. Power asserted that the HSE had breached the Protection of Employees (Fixed Term Work) Act 2003 by returning him to his role as Chief Financial Officer of the Saolta University Healthcare Group, having ‘acted-up’ for a not inconsiderable period, as Group Chief Executive Officer.

Background

Mr. Power had been employed by the HSE as a permanent pensionable employee since July 1999. He was appointed as the Chief Financial Officer of the Saolta University Healthcare Group, a unit of the HSE, in January 2012 and occupied that role at the date of the hearing of the Labour Court.

Mr. Power, at the invitation of the HSE, took up the role of Interim Group Chief Executive, Saolta University Healthcare Group in October 2014. The HSE noted that the appointment would be temporary, until March 2015, or until the role was filled on a permanent basis, whichever occurred sooner. Mr. Power was also advised that when his temporary role as Group Chief Executive ceased, he would revert to his ‘substantive terms and conditions as a permanent employee of the Health Service Executive’.

This ‘temporary role’ was extended on several occasions.

In September 2018, the post of Group Chief Executive for a five-year term was advertised in a competition administered by the Public Appointments Service on behalf of the HSE. Mr. Power was an unsuccessful candidate in that competition.

Mr. Power resumed his position as Chief Financial Officer of the Saolta Group in September 2019.

Relevant Law

The Protection of Employees (Fixed Term Work) Act 2003 transposes Council Directive No. 1999/70/EC into Irish law.

The term "fixed-term worker" means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.

The Act transposed the Directive and, at Section 1, defines as follows:

• “ fixed-term employee ” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event ….”

• “ permanent employee ” means an employee who is not a fixed-term employee.

Mr. Power has based his complaint on the definition of successive fixed-term contracts, at Section 9, which provides as follows:

9.(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

In Railway Procurement Agency and Allan Bell & others, [FTD097] the Labour Court stated:

“ the protection of the Act is conferred solely on fixed-term employees and a complaint under the Act can only be entertained if it relates to a period of fixed-term employment."

In Kelly v Louth Council [FTD1320] the Labour Court stated:

Accordingly, the Court finds that the Complainant was at all times a permanent employee of the HSE Council. In order to come within the ambit of the Act a Complainant must have the status of a fixed term worker. The Court interprets that to mean that a Complainant’s employment must be coterminous with the expiry of a fixed term or fixed purpose contract of employment. A complainant who reverts to their substantive grade and whose employment continues at the end of a fixed term assignment does not enjoy the protection of the Act.

Decision

The Labour Court concluded that at all material times Mr. Power was employed as a permanent employee, employed on a contract of employment of indefinite duration by the HSE. The Labour Court thereby concluded that Mr. Power did not have the standing to maintain his appeal. The Labour Court noted that Mr. Powers’ link with his employer is, self-evidently, the permanent employment relationship created and maintained by the contract of employment entered into by him and the HSE prior to his taking up an appointment on a fixed term basis as interim Group Chief Executive and under the terms of which contract he returned to the role of Chief Financial Officer in 2019. That conclusion is all the more inescapable having regard to the fact that Mr. Powers’ employment was at no time at risk arising from the termination of his fixed term appointment to the role of interim Group Chief Executive.

When is an Employee on Lay-off or Suspension?

Mon, 14 Sep 2020 07:06:59 GMT

Introduction - Lay-off or Suspension?

An interesting case recently arose wherein an employee claimed he was on lay-off, while the employer claimed he was suspended. The Workplace Relations Commission (WRC) examined the criteria it would analyze, when determining which category the employee fell into (ADJ-00026100).

Section 7(1) of the Redundancy Payments Acts 1967-2015 provides:

“An employee, if he is dismissed by his employer by reason of redundancy or laid off or kept on short time for a minimum period shall, subject to this Act, be entitled to a payment of monies which shall be known (and/or in this Act referred to) as a redundancy payment. . .”

Section 7(2) of the Acts as amended further provides that:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

What is Lay-off and Short-time?

11 — (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

(2) Where —

(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short-time for that week.

The Right to Redundancy Payment by reason of Lay-off or Short-time

12. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph ( a ) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

It was held by the Employment Appeals Tribunal in the case of St. Ledger v Frontline Distribution Ireland Ltd [1995] E.L.R. 160 when considering the statutory definition of “redundancy” that:

“Impersonality runs throughout the five definitions in the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job. It is worthy of note that the E.C. Directive on Collective Redundancies uses a shorter and simpler definition: ‘one or more reasons not related to the individual workers concerned’. Change also runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete close down. Change may also mean a reduction in needs for employees, or a reduction in numbers”.

Conclusion

The WRC, in the present case, noting that the employee was under investigation for a disciplinary matter, decided the employee was under suspension, rather than lay-off, and therefore not entitled to a redundancy payment.

Time Limit for Appeals to the Labour Court

Mon, 07 Sep 2020 07:42:15 GMT

In general, an appeal to the Labour Court must take place within 42 days from the issuing of the decision of the WRC, unless exceptional circumstances can be proven by the party making the appeal.

Introduction

A recent decision by the Labour Court highlights some of the issues surrounding the timing of making an appeal from the Workplace Relations Commission (WRC).

In general, an appeal must take place within 42 days from the issuing of the decision of the WRC, unless exceptional circumstances can be proven by the party making the appeal.

Time Limit for Appeal to Labour Court

The Workplace Relations Act (the Act of 2015) at Section 44(3) and 44(4) applies to a decision of an Adjudication Officer given in respect of a claim for redress under the Act, and provide as follows

44 (3) Subject to subsection (4), a notice under subsection (2) shall be given to the Labour Court not later than 42 days from the date of the decision concerned.

(4) The Labour Court may direct that a notice under subsection (2) may be given to it after the expiration of the period specified in subsection (3) if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.

In Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034), the Labour Court considered what would be ‘exceptional circumstances’ to permit an appeal outside of the 42 day limit:

“The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.

The burden of proof in establishing the existence of exceptional circumstances rests with the party making the appeal.

Application of Facts

In McNelis Hospitality Bars Ltd and Mr Stephen O'Dowd (CA-00021986-002), McNelis Hospitality Bars Limited, appealed against the decision of the WRC given under a claim made by Stephen O’Dowd, pursuant to the Minimum Notice and Terms of Employment Act, 1973.

McNeils submitted that the appeal had been made after the time period allowed by the Act of 2015 through error and because a bank holiday had fallen in the period of time allowed for the making of an appeal of the decision of the WRC. McNeils submitted that these circumstances amounted to ‘exceptional circumstances’ within the meaning of the Act at Section 44(4) of the Act of 2015.

The Labour Court held that an error of McNeils’s legal adviser did not satisfy the requirement under the Act at Section 44(4), establishing that exceptional circumstances existed in this case such as to have prevented the lodging of the within appeal within 42 days of the date of the decision of the WRC.

Conclusion

The Labour Court therefore could not find that time should be extended for the making of the within appeal. For that reason, the Labour Court found that the within appeal was statute-barred and therefore must fail, affirming the original decision of the WRC.

Covid-19 and Employee Wellbeing

Fri, 04 Sep 2020 16:32:49 GMT

Negative impact on physical and mental wellbeing of Irish workers under Covid-19 highlighted in national research - Laya Healthcare

Employers have a duty to ensure employees’ safety, health and welfare at work, as far as reasonably practicable.

To reduce the spread of Covid-19, employers must take certain actions. These include providing and maintain a safe workplace where all measure necessary to prevent the spread of Covid-19 have been implemented, prevent any risk of exposure between employees, prevent any improper conduct or behaviour likely to put the safety, health and welfare of employees at risk, provide instruction and training to employees on Covid-19 health and safety precautions, and provide protective clothing and equipment to employees, that may be pertinent to prevent the spread of Covid-19.

New research released by Laya healthcare shows that one in three employees in Ireland are classed as vulnerable to covid-19 impacts, with an underlying health condition such as asthma, diabetes or cardiac issues.

Key Report Findings:

• One in three employees in Ireland are vulnerable workers with an underlying condition

• Four in 10 Irish workers (39%) are struggling to cope with everyday life under Covid-19

• 91% of Irish workers have reported some level of anxiety during Covid-19

• One in 10 are seeking help with their mental wellbeing

• Estimated cost of returning employees to work is €37,138

• Almost eight out of 10 (78%) have not taken any sick leave since March

Commenting on the research, Sinead Proos, Head of Health and Wellbeing at Laya healthcare said: “These results highlight the implications we must consider as we try to work and maintain ‘business as usual’ during a pandemic. The majority of Irish workers (91%) reported some level of anxiety, in part due to concern about getting sick from Covid-19, family and friends getting sick and worrying about a second surge.

“To address workers’ concerns, protect the one in three employees who are vulnerable workers and fully comply with health and safety guidelines, long-term investment in building resources, education and training needs to be made. With over 270,000 companies operating in Ireland, the total cost of returning employees to workplaces could well be in the region of €10 billion. The coming months are going to be incredibly challenging. Early intervention and a culture of resilience needs to be prioritised to manage people’s mental and physical wellbeing long-term — both for those working in the office and remotely. Irish employers should ask themselves, ‘is my workforce coping, and if not, do we have the right tools to support them over the coming months and years?’.”

When an employer becomes aware that an employee has an underlying health condition, such as asthma, diabetes or cardiac issues, which may put them at greater risk than most people, if infected with Covid-19, that employer has a responsibility to ensure extra precautions are taken to ensure the safety of the employee concerned.

Irish Legal News - Specialist Workplace Law Firm

Wed, 02 Sep 2020 09:25:21 GMT

“Our goal is to build a practice that can bring deep legal knowledge and expertise in servicing both employer and employee client requirements."

Solicitor Barry Crushell has announced the launch of a new specialist workplace law firm, Crushell & Co Solicitors.

Mr Crushell, who trained with Arthur Cox and previously founded the Dublin and London offices of a US law firm, told Irish Legal News that the COVID-19 pandemic had been a “driving catalyst” in his decision to launch the firm.

Crushell & Co aims to address employers’ and employees’ need for clear, concise and actionable advice on employment-related legal issues in the wake of the pandemic’s profound impact on the Irish workforce.

Mr Crushell said: “Our goal is to build a practice that can bring deep legal knowledge and expertise in servicing both employer and employee client requirements.

“By focusing on a small number of interconnected practice areas, specific to the working environment, such as employment law, data protection and employment immigration, we hope to develop a unique identity as a firm within the Irish legal market.”

The growth of remote working following the pandemic and related health restrictions had also opened the path for establishing a law firm with lower operating costs, he said.

“We have the advantage of taking the lessons we have learned from the crisis and applying our new working systems as a core feature of how we work,” Mr Crushell explained.

“By combining top class practice management systems, with agile working practices, we can offer a more streamlined service, at a better rate – that can only be a positive to our clients.”

For a link to the original article, please click HERE .

Perfect Storm for Workplace Law Firm

Wed, 02 Sep 2020 09:20:18 GMT

Thinkbusiness.ie, in association with Bank of Ireland, recently featured Crushell & Co, Specialist Workplace Solicitors.

A new specialist workplace law firm Crushell & Co Solicitors has come into being, spurred on by the Covid-19 pandemic.

Founded by solicitor Barry Crushell, the new business Crushell & Co aims to address employers’ and employees’ need for clear, concise and actionable advice on employment-related legal issues in the wake of the pandemic and its impact on the Irish workforce.

“One of the issues many companies and individuals encounter, is obtaining expert legal advice, particularly as it applies to workplace legal and regulatory matters,” Crushell explained. “Very often, the expertise these people require, is available in a prohibitively expensive large commercial law firm.

“Never has the need for clear, concise, and actionable employment and workplace legal advice been more evident”

“The alternative is to try their local general practice solicitor, who, although familiar with certain aspects of employment or workplace law, is not fully engrossed in the practice. Crushell & Co is trying to bridge that gap, by providing expertise on workplace legal and regulatory matters, at an accessible price.

“At its core, my firm is all about providing solutions. People come to us with a problem, and we try to resolve it. Very often, lawyers offer a legal theory, to a complex workplace issue. A differentiator from other law firms, is that I have worked in senior management roles, implementing the advice I now offer my clients. That real-world experience, as both an employer and employee, gives me the context I need to translate theory, into tangible solutions.”

Peacekeeper turned lawyer

Crushell began his professional life as an army officer, serving with the UN on a number of international deployments, and later qualified as a solicitor with Arthur Cox.

“The legal profession is a very conservative one, however, I have been guided by a number of friends and mentors outside of law, who have used sound business principles to grow and develop their businesses”

“I most recently founded the Dublin and London offices of a US law firm, serving in a senior leadership role.

“It seems strange to say it, but the Covid-19 crisis prompted me to set-up my firm, for two reasons.

“Firstly, the level of uncertainty and volatility in the economy and the workforce is unprecedented. Never has the need for clear, concise, and actionable employment and workplace legal advice been more evident. My firm will provide clarity to both employers and employees who avail of our services.

“Secondly, Covid-19 has accelerated agile and remote working. For those firms who embrace a technologically driven operating platform, the operational cost savings can be immense, which results in cost-savings to our clients. Although we are in the eye of the storm, it may just be the perfect storm for our new practice!”

By the book

As a newly minted entrepreneur, Crushell believes that many of the traditional practices of the legal world still matter.

“I do believe I can build a unique practice, within the Irish legal market and don’t want to regret never trying”

“Although the legal profession has changed significantly over the past number of years, the fundamental principles in establishing a practice remain constant: Law Society approval, indemnity insurance and clients!

His thoughts on building a business have been tempered by hard-won experience. “Document best practice from the beginning! I’ve been through this process before, setting up the Dublin and London offices of a US law firm. What I learned from that experience, was ‘be prepared to scale from day one’.

“As you set up systems, processes and procedures, think about what you can do to help future colleagues adapt and thrive within your workplace. As I go about my day-to-day business, I try to record best practice, so that my learnings are accessible to others. It could be as simple as clarifying what font to use in a letter, to drafting a template engagement letter itself. Documenting how things are to be done reduces ambiguity and uncertainty, ensuring high operating procedures and practices are maintained by all. “

His advice to fellow founders is to believe in themselves. “They say we regret the things we don’t do, rather than the things we do. I don’t want to regret never backing myself. I do believe I can build a unique practice, within the Irish legal market and don’t want to regret never trying.”

Like most business owners navigating the pandemic, Crushell has found technology has been the fundamental and intrinsic link to keep the show on the road.

“Covid-19 has done more to progress agile working in six months than would ordinarily be expected in six years! My goal is to build a firm, where a solicitor can service a client just as well from London as they could in Longford. We have an operating model that can work entirely remotely, using advanced technology and a robust practice management system.”

For a link to the original feature, please click HERE .

Law Society Gazette feature Crushell & Co

Wed, 02 Sep 2020 09:14:03 GMT

‘Law at work’ motto for new employment law firm

A new legal practice, Crushell & Co, is being launched today (1 September), as a specialist in workplace matters. The firm will be based at Pembroke Street Upper in Dublin 2.

Founder Barry Crushell is a former army officer, who trained with Arthur Cox and, most recently, founded the Dublin and London offices of a US law firm.

Crushell says that the new practice is being launched as the need for clear, concise, and actionable advice on employment-related legal issues is stronger than ever, because of the onset of the COVID-19 pandemic.

Disruption

Crushell & Co Solicitors aims to address the significant disruption to both society and economy, and the profound impact on the Irish workforce, that has resulted from the virus.

“Our goal is to be a specialist law firm, focusing solely on the application of the law in the Irish workplace. Our Dublin-based solicitors will advise both employers and employees on all aspects of workplace legal and regulatory matters,” he told Gazette.ie.

“Our goal is to build a practice that can bring deep legal knowledge and expertise in servicing both employer and employee client requirements.

Consequences

Crushell comments that one of the positive consequences of Covid-19 is the rapid adaptation of remote working.

“The pandemic has accelerated the implementation and use of cutting-edge technology, virtual working models and paperless offices within the legal profession.

“There is now the potential to establish a law firm on a lower operating cost, to a larger market, with a more responsive service,” he said.

Methods of working

“COVID-19 has taught us that innovate methods of working are something we can achieve in the ‘here-and-now’.

“A lot of firms are questioning the way they worked pre-pandemic. We have the advantage of taking the lessons we have learned from the crisis and applying our new working systems as a core feature of how we work.

"By combining top-class practice-management systems with agile working practices, we can offer a more streamlined service, at a better rate ... that can only be a positive to our clients,” he said.

A link to the original article can be found HERE .

Compensation for Workplace Accidents

Mon, 31 Aug 2020 14:11:04 GMT

A Guide to calculating compensation for workplace accidents

A summary to compensation for accidents and injuries in the workplace, in Ireland.

Factors Considered in an Injury Claim

An assessment has a number of components, covering some or all of the following:

a sum to compensate* for pain;
suffering and loss of enjoyment of life;
future cost of medical care;
loss of earnings into the future caused by the injury; and
specific losses such as past loss of earnings and medical bills.

What is the 'Book of Quantum'?

Identify a Category of Injury

Assessment of compensation* starts by identifying that part of the body that has suffered the most significant

injury, although the complete effect of all the injuries will be considered, e.g :

back and spine
body and internal organs
head
lower limbs
neck
upper limbs

Understanding the Severity of the Injury

Generally the severity is categorised into broad ranges to reflect the degree of disruption to

lifestyle, pain and permanency of the condition, e.g :

minor

moderate

moderately severe

severe and permanent

Determine the Value Range

The Book of Quantum is then consulted to identify the value given the the relevant injury.

Very often, the majority of cases fall within a given range. However, it should be noted that the actual award may often fall outside of the recommended guidelines.

Consider Multiple Injuries

If, in addition to the most significant injury, there are other injuries, it is not appropriate to

simply add up values for all the different injuries to determine the amount of compensation*.

Where additional injuries arise there is likely to be an adjustment within the value range.

What are 'Special Damages'?

Special damages can be anything that goes beyond compensation* for the injury, relating to monetary loss suffered, including car hire, damage (e.g. loss of car), damage to clothing or property, loss of earnings, medical consultations, medical treatment fees, medication, physiotherapy, travel, vehicle storage and/or vehicle towing.

Timelines for an Injury Compensation

In general, workplace accident claims made to the Personal Injuries Assessment Board (PIAB) are assessed in just over 7 months from when the employer consents to have the claim assessed by the PIAB.

Claims for workplace accidents or injuries can take up to 36 months in the civil courts.

Bringing a Workplace Relations Commission Claim

Mon, 31 Aug 2020 13:47:19 GMT

Bringing a Workplace Relations Commission Complaint

In this article, we examine the key points to consider, before bringing a Workplace Relations Commission complaint against your employer.

Enforcing Employment Rights

The Workplace Relations Act 2015 established the Workplace Relations Commission (WRC) replacing the Labour Relations Commission, Rights Commissioner Service, Equality Tribunal, and National Employment Rights Authority. Please consult an employment solicitor to advise of the various heads of claim that may be applicable to a workplace dispute.

WRC Adjudication

Adjudication Officers inquire into complaints or disputes, give the parties to the complaint or dispute an opportunity to be heard by the Adjudication Officer and to present to him\her any evidence relevant to the complaint or dispute and make a decision in relation to the complaint or dispute in accordance with the relevant redress provision.

Date of Complaint

In general, Adjudication Officers cannot entertain a complaint if it has been presented to the Director General of the WRC after the expiration of the period of 6 months beginning on the date of the contravention, unless there are exceptional circumstances.

Excusing Delay of Complaint

In considering if reasonable cause exists, it is for the employee to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. Please consult an employment solicitor if the date of the wrong is contested or uncertain.

Frivolous, Vexatious or Misconceived

Section 22 of the Workplace Relations Act states the Director of the Workplace Commission may dismiss a claim at any stage if it is of the opinion that it has been made in bad faith or as frivolous, vexatious or misconceived or relates to a trivial matter (e.g. if the employee has no reasonable chance in succeeding, then the law says that it is frivolous to bring the case).

Exhausting Internal Procedure

The Adjudication Officer must be satisfied that the employee has brought his or her complaint to the attention of the employer, so that the employer has had an opportunity to address the matter internally (e.g. Conway v Ulster Bank, the WRC found that the employeet had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.”)

Appealing a WRC Decision

If either party, the employer or the employee, is unhappy with the decision of the Adjudication Officer following a WRC hearing, they have 42 days from the date of the adjudication to make an appeal to the Labour Court. The subsequent hearing at the Labour Court will be on a 'de novo' basis, meaning the Labour Court hears the case again, from the beginning.

Enforcing a WRC Decision

If an employer or employee fails to adhere to the final decision of the WRC or Labour Court , they may make an application directly to the District Court for an order directing the other party to comply with that decision.