Review of Recent Employment Developments in Ireland 27/10/2017

Highlights this week: We learn more about the UN Convention on the Rights of Persons with Disabilities and when it will be ratified; the EU Commission has welcomed the Council's endorsement of the European Pillar of Social Rights and its general approach to reform the Posting of Workers Directive; Minister of State at the Department of Justice and Equality, David Stanton, outlines his proposals for the new Family Leave Bill which endeavours  to consolidate all existing family leave legislation; and Deloitte need your help with the 2018 Human Capital Trends Survey:
https://bersin.qualtrics.com/jfe/form/SV_0vuZVDjERcV9qlf?Source=ce

CONTENTS

1. Case Law Reviews
2. UN Convention on the Rights of Persons with Disabilities
3. EU Posting of Workers Directive
4. Family Leave Update
5. Equal Status (Amendment) Bill 2013 [PMB]
6. Minister Donohoe Updates Cabinet on Next Phase of Work by Public Service Pay Commission
7. Increase Pay for Workers in the Construction Sector
8. Help Chart the Transition to the Future of Work 2018 Human Capital Trends Survey: Your Insights Needed
9. Health & Safety Developments
10. UK Developments
11. Employment News in the Media
12. Thought-Provoking Video

Case Law Reviews: The focus of our case reviews this week - unfair constructive dismissals. We have also included two UK Supreme Court decisions regarding diplomatic and state immunity in relation to maltreatment and human trafficking which we thought would be of interest to readers, owing to the application of European law.

Remember: Our case law reviews are now held in our case law section on our fully-searchable new employment law hub website:
https://www.legal-island.ie/case-law-landing-page/

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1. Case Law Reviews

G4S Secure Solutions (Ire) Limited v Dominic Shine [2017] ILCR Determination No. UDD1744

Keywords: Section 8A, Unfair Dismissal Acts, 1977 to 2015; Constructive Dismissal

This case involved a claim of unfair constructive dismissal by the complainant. The complainant had worked as a security guard for the respondent company. One night, an incident had occurred while he was working, namely a power cut resulting in the alarm going off. Accordingly, the complainant followed the procedures that he understood should be followed, and after his shift ended he went home. He alleged that five days later he was informed by text that he was being removed immediately from the site in question. When he subsequently contacted the operations manager he was informed that he was being removed from the site for not following protocol. Following this conversation the complainant considered himself constructively dismissed.

In Court the operations manager gave evidence that the alarm activation had not been recorded in the incident report book as required. The Respondent also claimed that the complainant had not been dismissed and that his job is still available.

Based on the facts, the Court held that the respondent had not acted in such a way as to entitle the complainant to terminate his employment without first seeking to resolve the grievance through the internal procedures available. Therefore, the Court found that the respondent's conduct was not unreasonable and did not amount to constructive dismissal.
http://www.workplacerelations.ie/en/Cases/2017/October/UDD1744.html

Noonan Services Group Limited v Michelle O'Connor [2017] ILCR Determination No. UDD1743

Keywords: Section 8A, Unfair Dismissal Acts, 1977 to 2015; Constructive Dismissal

This case involved a claim of unfair constructive dismissal by the complainant. The complainant had been absent from work for nearly 2 years due to a serious illness and had sought in June 2012 to return to her old position without giving notice to the respondent of her intention to do so.

The respondent had felt that the arrangements in place, which had been implemented because of her absence, had been working well and did not need to be changed. Accordingly, the mobility clause in her contract was exercised and an alternative position offered to her. The complainant, despite her contractual terms being red-circled, refused the proposal as she deemed it a demotion. The complainant did not make herself available for work and was subsequently removed from payroll on the 7th September 2012.

The complainant subsequently commenced a temporary role, with the respondent, in October 2012 and remained working there until October 2013, when she went out on long-term sick leave. In January 2014 she notified the respondent of her intention to resign. The respondent attempted to get the complainant to reconsider her resignation by offering her the option of mediation. The complainant's solicitor subsequently informed the respondent of the complainant's wish to retract her resignation and her willingness to engage in mediation. However  the intended mediation never occurred. Ultimately, the complainant notified the respondent that she deemed that her employment had been terminated in January 2014.

She had decided to become a full-time carer for her mother and applied for Carer's Benefit from the Department of Social Protection but not for Carer's Leave through the respondent. As requested, the respondent completed the necessary Carer's Benefit application, although allegedly a number of months late. Admittedly, the respondent made a number of factual errors in the form but corrected those promptly once they became aware of same.

The Court held that the complainant failed to discharge the burden of proof necessary in a constructive dismissal case. The Court stated that an employee's personal or family circumstances, no matter how unfortunate, cannot ground a constructive dismissal claim. Likewise, the Court found that a genuine clerical error by an employer, in completing a Department form, is an insufficient basis to ground such a claim. Accordingly, the appeal was dismissed.
http://www.workplacerelations.ie/en/Cases/2017/October/UDD1743.html

The following UK Supreme Court decisions regarding diplomatic and state immunity in relation to maltreatment and human trafficking will be of interest to readers owing to the application of European law. In Reyes v Al-Malki, Lord Sumption emphasised that exploitative employment practices under cover of diplomatic status is a recurring problem in the UK and elsewhere; while the case of Benkharbouche highlights the gradual curtailment of the doctrine of state immunity when balanced against human rights law.

Reyes v Al-Malki & Anor [2017] UKSC 61

Keywords: Diplomatic Immunity; Vienna Convention on Diplomatic Relations; Maltreatment and Human Trafficking; ECHR

The appeal concerned diplomatic immunity, in particular diplomatic immunity in respect of claims brought by domestic servants against diplomats. When delivering a summary of the decision, Lord Sumption emphasised that exploitative employment practices under cover of diplomatic status is a recurring problem in the UK and elsewhere. Diplomats enjoy immunities under domestic and international law which limit their employees' access to the domestic courts.

Ms Reyes was a Pilipino national. She received a tier 5 visa to the UK facilitated by her employers, Mr and Mrs Al-Malki. Mr Al-Malki was a Saudi Arabian diplomat working in the embassy in London. The couple employed Ms Reyes in their private residence, promising her an 'honest' wage and suitable living arrangements. Her role entailed cleaning, helping in the kitchen and childminding. However, Ms Reyes alleged she was subjected to flagrant ill-treatment and was a victim of human trafficking throughout the course of her employment. She claims she worked excessive hours, was not afforded adequate accommodation, her passport was confiscated and that she was prohibited from leaving the house or communicating with others. She was not paid any salary until after her dismissal. Ms Reyes brought a claim against Mr and Mrs Al-Malki in the employment tribunal for race discrimination, unlawful deduction of wages and a failure to pay the National Minimum Wage.

The Court of Appeal held that the Employment Tribunal lacked jurisdiction because Mr Al-Malki was entitled to diplomatic immunity under Article 31 of the Vienna Convention. Ms Reyes appealed to the Supreme Court and Mr and Mrs Al-Malki cross-appealed, contending that they were never validly served with the claim form. This argument was subsequently rejected by the Supreme Court.

Articles 22 and 29 to 40 of the Vienna Convention on Diplomatic Relations deals with diplomatic immunity. These provisions confer different degrees of immunity on persons connected with a diplomatic mission, according to their status and function. Mr Al-Malki relied on Article 31 and Article 37 of the Convention claiming immunity from all civil proceedings.

The Supreme Court rejected this argument stating Article 31 confers immunity on diplomats regarding acts performed in the course of diplomatic duty. Diplomats who are no longer in the post and have left the country are afforded a more limited immunity under Article 39 (2), known as ‘residual immunity’.

The Court allowed the appeal of Ms Reyes concluding her maltreatment was not an act performed in the course of Mr Al-Malki's diplomatic functions and that this was a “personal transaction of their own.” It was held unanimously that when Mr Al-Malki’s employment concluded and the couple left the country, any diplomatic immunity once enjoyed came to an end. Owing to the decision arrived at on the immunity claim, it was unnecessary for the Court to address Ms Reyes' alternative argument based on the European Convention on Human Rights.
https://www.supremecourt.uk/cases/docs/uksc-2016-0023-judgment.pdf 

Watch a summary of the decision delivered by Lord Sumption:
https://www.supremecourt.uk/watch/uksc-2016-0023/judgment.html 

Benkharbouche & anor v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah [2017] UKSC 62

Keywords: State Immunity; Access to Justice; Compatibility with International Law; Exploitation of Overseas Staff; Human Rights and Fundamental Freedoms; ECHR

This appeal concerned the alleged exploitation of overseas staff recruited abroad. Unlike the case of Reyes v Al-Malki & Anor [2017] UKSC 61 the claimants were employed by the embassies themselves as opposed to individual diplomats. The case highlights the gradual curtailment of the doctrine of state immunity through human rights law.

The claimants were Moroccan nationals. Ms Benkharbouche was recruited in Iraq to work in the Sudanese embassy in London as a housekeeper and cook to the ambassador. Ms Janah was recruited in Libya to work in the Libyan embassy as a domestic worker. They were dismissed from their roles and initiated claims for unfair dismissal, failure to pay the National Minimum Wage, unpaid wages including holiday pay, breach of the Working Time Regulations, failure to provide written terms and conditions and discrimination and harassment.

State immunity in the UK is governed by domestic law contained in the State Immunity Act 1978.

Section 4(2) (b) of the Act provides that a foreign state is immune as respects proceedings relating to a contract of employment between a state and a person who at the time of the contract is neither a national of the United Kingdom nor resident there; and section 16(1) (a) provides that a state is immune as respects proceedings concerning the employment of members of a diplomatic mission, including its administrative, technical and domestic staff.

The Court had to decide whether these provisions were compatible with the EU Charter of Fundamental Rights and Freedoms and the European Convention on Human Rights. The Claimants argued that the relevant provisions of the 1978 Act were incompatible with EU law and with Article 6 of the ECHR, because they prevented access to a court in circumstances where the result was not required by international law. The Secretary of State argued that a court’s recognition of state immunity can never amount to an infringement of article 6, because it only reflects the court’s lack of jurisdiction over a foreign state, but that in any event the relevant provisions of the Act were consistent with international law.

The Supreme Court dismissed the Secretary of State’s appeal and affirmed the order of the Court of Appeal. The Court ruled sections 4(2)(b) and 16(1)(a) of the 1978 Act are incompatible with the right to access a court under article 6 of the European Convention on Human Rights. With regards the claims brought under EU law - EU law prevails over English law in the event of a conflict, therefore those sections of the 1978 Act cannot bar the claims that are based on EU law. Those claims were therefore remitted to the Employment Tribunal to be determined on their merits at trial.

"The result is that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 will not apply to the claims derived from EU law for discrimination, harassment and breach of the Working Time Regulations. Subject to any question as to the application of section 4(2)(b) to the particular circumstances of Ms Benkharbouche, the other claims (failure to provide payslips or a contract of employment, unpaid wages, failure to pay the national minimum wage and unfair dismissal) are barred by those sections of the Act. But to that extent they are incompatible with article 6 of the Human Rights Convention, and also, in the case of section 4(2)(b) with article 6 read with article 14 of the Convention. Both cases must be remitted to the Employment Tribunal to determine the claims based on EU law on their merits."
https://www.supremecourt.uk/cases/docs/uksc-2015-0063-judgment.pdf 

Watch a summary of the decision delivered by Lord Sumption:
https://www.youtube.com/watch?v=F6E_xygtb6I 

In case you missed yesterday's Case Law Review Panel article by Síobhra Rush, Senior Associate in the Employment Law & Data Protection team in Leman Solicitors, discussing two influential Labour Court decisions regarding fair procedures when conducting disciplinary investigations, namely Dublin City Council v A Worker and Zehnacker Ireland Healthcare v A Worker, you can access it here:
https://www.legal-island.ie/articles/ire/features/labour-superior-court-review/2017/oct/fair-procedures-the-labour-court-view/

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2. UN Convention on the Rights of Persons with Disabilities

Deputy Brendan Smith asked the Minister for Justice and Equality in the Dáil on 11th October when the UN Convention on the Rights of Persons with Disabilities will be ratified; and if he will make a statement on the matter.

Minister McGrath said the Government remains committed to ratification of the Convention. He said that it is essential that the State is in a position to meet the obligations that it assumes under the terms of an international agreement from the moment of its entry into force for Ireland. Before the State can ratify the Convention on the Rights of Persons with Disabilities, enactment of new legislation and amendment of existing legislation is required to ensure obligations will be met upon entry into force for Ireland. According to Minister McGrath, work is ongoing on all the other issues set out in the previous Government’s Roadmap for Ratification published in October 2015 and these will be progressed as Committee Stage amendments.  The Bill will be progressed to enactment at an early date to facilitate ratification of the UN Convention as soon as possible.
http://www.justice.ie/en/JELR/Pages/PQ-11-10-2017-108

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3. EU Posting of Workers Directive

The EU Commission has welcomed the Council's endorsement of the European Pillar of Social Rights and its general approach to reform the Posting of Workers Directive.

The Pillar will be proclaimed by the Parliament, the Council and the Commission at the Social Summit for Fair Jobs and Growth, taking place on 17 November in Gothenburg. The Council also agreed on a general approach regarding the Commission's proposal to revise the rules on the posting of workers.

The political agreement on the posting of workers confirms the Commission's key principle of equal pay for equal work at the same place, setting out that posted workers will generally benefit from the same rules governing pay and working conditions as local workers.
http://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=2883&furtherNews=yes 

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4. Family Leave Update

On 10th October, Deputy Michael Healy-Rae asked the Minister for Justice and Equality his views on allowing paternity leave to be taken within the first year; and if he will make a statement on the matter.

Minister of State at the Department of Justice and Equality (Deputy David Stanton) replied:

"As the Deputy will be aware, the Paternity Leave and Benefit Act 2016 creates a statutory entitlement to two weeks' paternity leave and benefit, which can be taken at any point within 26 weeks of the date of the baby's birth (or in the case of adoption, within 26 weeks of the day of placement).

"Parents want choice and flexibility, and the provisions contained in the Paternity Leave and Benefit Act give them a considerable degree of flexibility by allowing to choose when they take the time off to care for their child, within a six-month time frame. The Deputy will also be aware of the commitment in the Programme for a Partnership Government to increase, over the course of the next five years, paid statutory leave afforded to parents during the first year of a child’s life. My intention is to publish my proposals in that regard in due course for inclusion in the Family Leave Bill. The Bill will also review all existing family leave legislation such as parental leave, carer's leave, maternity leave, and adoptive leave and consolidate this legislation into one Act."
http://www.justice.ie/en/JELR/Pages/PQ-10-10-2017-192

Also on 10th October, Deputy Róisín Shortall asked the Minister for Justice and Equality his plans to amend the parental leave legislation to extend the age limit in order to allow parental leave be taken up to the age that a child finishes their primary education; and if he will make a statement on the matter.

Minister Stanton made similar comments - "... the Government has approved drafting of a Family Leave Bill, which I intend to publish in early course. The Bill will consolidate all existing family leave legislation such as parental leave, carer's leave, maternity leave and adoptive leave into one Act while making necessary amendments and improvements."
http://www.justice.ie/en/JELR/Pages/PQ-10-10-2017-193

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5. Equal Status (Amendment) Bill 2013 [PMB]

Deputy Pádraig Mac Lochlainn has sponsored a Bill to amend the Equal Status Act 2000. He hopes there will be a new Act to promote equality in the functioning of public bodies, to provide that regard be had by public bodies to the desirability of reducing socio-economic and other inequalities, to provide for the carrying out of equality impact assessments in respect of measures that are likely to have a significant impact or effect on the equality of opportunity between persons, to provide for the administration by the equality authority of various matters pertaining to this Act, to amend the Equal Status Act 2000, and to provide for related matters:
http://www.oireachtas.ie/viewdoc.asp?DocID=23903

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6. Minister Donohoe Updates Cabinet on Next Phase of Work by Public Service Pay Commission

The Minister for Finance and Public Expenditure and Reform, Paschal Donohoe TD, has briefed Government regarding arrangements for the next phase in the work of the Public Service Pay Commission (PSPC).

The Commission, which was charged with examining pay levels across the public service, made its first report to Government in May 2017. This informed negotiations on a successor to the Lansdowne Road Agreement.

The successor agreement, Public Service Stability Agreement (PSSA) 2018-2020, which was recently ratified by ICTU, includes a commitment to examine the issue of recruitment and retention difficulties in the public service.

While the evidence collected by the Commission suggests that there are no significant recruitment difficulties across the public service vocational streams, it found evidence of some recruitment and retention issues in certain specific areas of the public service. These include certain areas of the health sector and the Defence Forces, as well as senior executive and professional posts in the civil service.
http://www.per.gov.ie/en/minister-donohoe-updates-cabinet-on-next-phase-of-work-by-public-service-pay-commission/

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7. Increase Pay for Workers in the Construction Sector

Pat Breen TD, Minister of State at the Department of Business, Enterprise and Innovation has signed into law an Order entitled “Sectoral Employment Order (Construction Sector) 2017”. This Order fixes the statutory minimum pay, pension and sick pay entitlements for craftsmen, construction operatives and apprentices employed in the construction Sector.

The Order gives legal effect to the terms of a Labour Court recommendation which the Minister accepted in July.  The draft Ministerial Order was laid before the Houses of the Oireachtas on 22 August 2017.

The revised terms and conditions for the construction sector take effect from the date of the Order i.e. 19 October 2017 and will apply to almost 50,000 workers in the sector.

More, including details of appropriate pay rates:
http://www.workplacerelations.ie/en/news-media/Workplace_Relations_Notices/Minister_Pat_Breen_signs_Order_to_increase_pay_for_workers_in_the_construction_sector.html

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8. Help Chart the Transition to the Future of Work 2018 Human Capital Trends Survey: Your Insights Needed

For the past five years, Deloitte’s annual Human Capital Trends survey has revealed evolving practices in talent, leadership, performance management, organisational design as well as the ongoing evolution in the role, capabilities, and expectations of the HR and other business functions.  This year, with businesses in Ireland and globally increasingly focused on driving and sustaining high performance, we are taking this analysis further to better understand how organisations are transforming the way they work while creating a differentiated experience to capture the workforce of the future.

You are invited to participate in this year's survey. Your responses are anonymous and will not be directly associated with you or your company in any way. As a participant, you'll receive valuable outputs, including:

• A report of the survey's overall findings and key actions that organisations can take to prepare for the future of work
• Exclusive insights and experience from leading organisations in Ireland and around the globe to better organise, manage, develop, and align people at work
• An invitation to our webcast

Begin the survey here:
https://bersin.qualtrics.com/jfe/form/SV_0vuZVDjERcV9qlf?Source=ce

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9. Health and Safety Developments

Safety Representatives Resource Book

The purpose of this book is clear from the title: it is a resource book. It is specifically a resource book for safety representatives, but the hope and indeed the expectation is that it is a resource to which employers, their occupational health and safety advisors, employees and the self-employed will refer.
http://www.hsa.ie/eng/Publications_and_Forms/Publications/Latest_Publications/Safety_Representatives_Resource_Book.62063.shortcut.html

Data and Wellbeing

Could wearable technology in the workplace improve employee well-being and could the data captured help shape an organisation’s wider well-being strategy? Collecting data through employee surveys to monitor well-being is nothing new, but increasingly companies are looking to new methods such as wearable technology, employee advice lines and internal social media channels to do this. People Management magazine explores what employers would do with this data and the impact actions could have on employee well-being.
http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/09/27/data-and-wellbeing.aspx

Mobile Elevated Work Platforms

The HSA has update guidance on working at height on mobile platforms. The guidance document has been prepared to assist those working with Mobile Elevated Work Platforms (MEWPs). It offers guidance on Static Vertical, Static Boom, Mobile Vertical and Mobile Booms.
http://www.hsa.ie/eng/Publications_and_Forms/Publications/Latest_Publications/Mobile_Elevated_Work_Platforms.77031.shortcut.html

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10. UK Developments

Employment law is a devolved power in Northern Ireland. The items in this section apply throughout GB only (Scotland and England & Wales) unless we specify they apply to NI.

This section is brought to you by Ciara Fulton, Partner at Jones Cassidy Brett. Ciara is dual-qualified and practices law throughout the island of Ireland. Contact Ciara on cfulton@jcbsolicitors.co.uk

Opening Stage of Employment Tribunal Fee Refund Scheme Launched

The first people eligible for employment tribunal fee refunds in GB were able to apply from last week. The first stage of the phased implementation scheme comes after Ministers committed to refunding those who had paid employment tribunal fees following a Supreme Court judgment. The opening phase of the refund scheme will last for around 4 weeks. Further details of the scheme, including details of how it can be accessed, will be made available when the scheme is rolled out fully.
https://www.gov.uk/government/news/opening-stage-of-employment-tribunal-fee-refund-scheme-launched 

Tribunal Failings

With or without fees, employment tribunals in GB are failing to hit basic targets and judges are departing without being replaced, users have revealed. Minutes of the National User Group Meeting on employment tribunals report that tribunals are falling short of targets for completing and disposing of claims. The Law Gazette goes so far as to say that 'Employment tribunals missing targets and haemorrhaging judges':
https://www.lawgazette.co.uk/law/employment-tribunals-missing-targets-and-haemorrhaging-judges/5063266.article

Unpaid Internships

There is strong public support in the UK to ban unpaid work experience that lasts more than four weeks, new research suggests. Three quarters of people surveyed by the Social Mobility Commission backed a change in the law to stop companies from exploiting unpaid interns. The poll of 5,000 people was published ahead of the second reading of a Lords Bill that seeks to end the practice. More from the BBC:
http://www.bbc.co.uk/news/uk-41717401 

Mental Health Sees 300,000 People Leave Their Jobs in UK Each Year

Up to 300,000 people in the UK with long-term mental health problems have to leave their jobs each year, a report says. It also claims poor mental health costs the UK economy up to £99bn each year. Prime Minister Theresa May, who commissioned the report, said it showed "we need to take action". More from the BBC:
http://www.bbc.co.uk/news/health-41740666

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11. Employment News in the Media

SIPTU members in Irish Rail have announced five dates of 24-hour all out-strike action starting on Wednesday, 1st November following, as SIPTU puts it, a refusal by management at the State transport company to address a reasonable pay claim by staff. The four further 24-hour work stoppages are planned to take place on Tuesday, 7th November, Tuesday, 14th November, Thursday, 23rd November and Friday, 8th December:
http://www.siptu.ie/media/pressreleases2017/mainnews/fullstory_20619_en.html

The Independent has a slightly different take - Striking train workers will give soccer fans and Irish Rail a €1m slap in the face by forcing the closure of key routes ahead of Ireland's World Cup play-off with Denmark next month:
https://www.independent.ie/irish-news/irish-rail-will-be-weakened-by-46m-loss-from-strikes-36249550.html

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12. Thought-Provoking Video

This week's thought-provoking video is about counting plants i.e. plants that can count, rather than people counting plants. Neuroscientist Greg Gage takes sophisticated equipment used to study the brain out of graduate-level labs and brings them to middle- and high-school classrooms (and, sometimes, to the TED stage.) Prepare to be amazed as he hooks up the Mimosa pudica, a plant whose leaves close when touched, and the Venus flytrap to an EKG to show us how plants use electrical signals to convey information, prompt movement and even count. (9:31)
https://www.ted.com/talks/greg_gage_electrical_experiments_with_plants_that_count_and_communicate?  

Enjoy the weekend.