Review of Recent Employment Developments in Ireland 14/9/2018Posted in : Fortnightly Review of Recent Employment Developments on 14 September 2018
Our early bird discount on the Annual Reviews of Employment Law 2018 ends today! Register by 5pm today (14th September) and you'll save up to €100 per seat. The Red Cow is sold out but we still have some seats available at the other two venues:
- Crowne Plaza Hotel, Northwood, Dublin – Thursday 15th November 2018 [over 185 of your peers have already registered]
- Talbot Hotel, Stillorgan, Dublin – Wednesday 28th November 2018 [over 119 of your peers have already registered )
Highlights this week: According to new research women are being shut out of the workplace by the high cost of childcare in Ireland; the Minister for Finance and Public Expenditure & Reform, Paschal Donohoe T.D. has welcomed the publication of the Report of the Public Service Pay Commission on recruitment and retention issues in certain health sector grades; a new report entitled 'Population Ageing and the Public Finances in Ireland' highlights the likely economic and budgetary impacts of demographic change in Ireland in the coming years; and the WRC has published an updated Employment Agency list.
Also Jennifer O'Neill, Consultant in LK Shields, reviews the recent case of Euro Car Parks (Ireland) Limited v Dermot Kelly in which the Labour Court held that a “transfer of an undertaking” had taken place in a scenario where there was no transfer of assets - but where the same core assets continued to be used after the transfer; and checklists - we know that HR professionals just cannot do without them - check out the latest addition to our hub, " As a HR Manager I..."
And don't forget you can now register for our next free employment law webinar 'Lyons to the Max: How has the WRC Interpreted Lyons v Longford Westmeath ETB?' with Bláthnaid Evans, Head of Employment at Leman Solicitors, which will take place live on Friday 21st September 2018 at 11am.
1. Early Bird Discount on Annual Reviews Ends at 5pm Today!
2. Case Law Reviews
3. High Childcare Costs Keeping Women Out of Workplace
4. Age and Finance
5. Report on Recruitment and Retention Issues in the Health Sector
6. Teacher Disciplined for Calling Pupil Offensive Name has Case Remitted to High Court
7. Labour Court Notice - Report of Joint Labour Committees
8. Updated Employment Agency List
9. Just in Case You Missed It...
10. HR Developments
11. Health & Safety Developments
12. Employment News in the Media
13. UK Developments
14. Friends of Legal-Island
15. Free Webinars This Month
16. Thought-Provoking Video
Case Law Reviews: Our first case is an appeal against the dismissal of the plaintiff's personal injuries claim; our second case involved a motion by the defendant to dismiss the proceedings which arose from the plaintiff's dismissal by his former employer.
Remember: Our case law reviews are now held in our case law section on our fully-searchable new employment law hub website:
449 of your peers have already booked to attend the Annual Reviews of Employment Law 2018 conferences, held in association with sponsors Sureskills and IrishJobs.ie. Register by 5pm today (14th September) and you'll save up to €100 per seat.
This year we have 13 different sessions and 15 speakers discussing everything you need to know – it’s a comprehensive and practical update on all the major changes and developments in employment laws affecting the Irish workplace.
Plus, the comprehensive folder of notes (292 pages last year) we provide to every attendee serves as an excellent reference tool when you’re back in the office.
After attending, you will better be able to:
- Minimise your risk of litigation
- Understand how the relevant new cases from Ireland and Europe impact your workplace
- Update your HR policies for key areas in your organisation – key action points will be sent to you via email
- Refer to all important legislative and case law developments relevant to your workplace with an extensive folder of notes
- Prepare your HR department for the year ahead
The Annual Review of Employment Law conferences take place at:
[SOLD OUT] Red Cow Moran Hotel, Dublin – Thursday 1st November 2018
Crowne Plaza Hotel, Northwood, Dublin – Thursday 15th November 2018 [over 185 of your peers have already registered]
Talbot Hotel, Stillorgan, Dublin – Wednesday 28th November 2018 [over 119 of your peers have already registered)
McCarthy v ISS Ireland Limited (Trading as ISS Facility Services) & Anor  IECA 287
Keywords: Personal Injury at Work; Duty of Care to Employees; Vicarious Liability
This case involved an appeal against the dismissal of the plaintiff's personal injuries claim.
The plaintiff had been employed by the first named defendant and claimed that between May 2009 and February 2011 there were five separate incidents involving staff she supervised. She claimed that they had acted abusively and aggressively towards her during the course of their employment and that over time this caused her severe stress, anxiety, humiliation, pain and suffering that she was compelled to leave her employment.
She alleged that after the first incident she reported it to her employer but no action was taken to prevent recurrence. The plaintiff claimed that the non- action by her employer following her complaint, and subsequent complaints, resulted in a situation where the staff she supervised were able to behave in a threatening manner toward her without consequence. The plaintiff submitted that the failure of the first defendant to act appropriately constituted negligence on its part as the plaintiff suffered personal injuries as a result of the cumulative effect of the incidents. The plaintiff accepted that there was a considerable time between each particular incident, that each incident was perpetrated by a different staff member and that the employer could not have foreseen the first incident.
However, the essence of her claim centred on the contention that the first defendant had breached their duty of care to the plaintiff to provide a safe place of work as no particular action had been taken to prevent a recurrence and this inaction and the cumulative effect on her mental health forced her to leave her employment. She also alleged that as a result of the breach she suffered personal injuries, loss and damage. The trial judge had dismissed the plaintiff's claim on the basis that she had not made out her claim of negligence and that a careful employer could not have predicted that such incidents would happen. The plaintiff submitted that the trial judge had erred in characterising her claim as one of workplace bullying and instead alleged that the employer was vicariously liable for their employees' tortious acts and was negligent in failing to provide a safe place of work.
The Court of Appeal dismissed her appeal for vicarious liability on the basis that the incidents complained of were not behaviour committed in the course of employment as such a finding would stretch the concept of vicarious liability beyond its intended limits, particularly if employers were to be found vicariously liable for every individual aggressive verbal outburst by an employee. However, the Court agreed that all employers owe a duty of care to their employees while at work. The Court stated that given the plaintiff's role as supervisor and the potential conflict the role brings that the employer had a particular duty of care to her and ought to have procedures in place to minimise the conflict and to prevent recurrence. The Court expressed a view that the duty of care should also take account of the nature of the job and the relationship between employees but that the duty of care does not extend to ensuring that no recurrence ever takes place.
Accordingly, the Court found that the trial judge had erred by failing to deal with the alleged failure of the employer to provide a safe place of work and remitted the case to the High Court for a determination of the issues of causation and damages.
Harvey v Minister for Jobs Enterprise and Innovation & ors  IEHC 479
Keywords: Dismissal of Proceedings; Use of the Appropriate Remedy
This case involved a motion by the defendant to dismiss the proceedings on a number of grounds.
The proceedings had arisen from the plaintiff's dismissal by his former employer, the Courts Service, in September 2008, following which the plaintiff brought an unfair dismissal claim before the Employment Appeals Tribunal (the "EAT"). The original EAT proceedings were withdrawn by the plaintiff while at hearing on the basis that he felt he was not receiving a fair hearing. The plaintiff also brought wrongful dismissal proceedings in connection with the same dismissal but these were subsequently struck out because the Court determined the plaintiff was precluded from bringing such proceedings having already instituted an unfair dismissal claim before the EAT.
The decision regarding the wrongful dismissal was appealed to the Court of Appeal, however the plaintiff took exception to the composition of the Court of Appeal as the then President of the Court of Appeal was a member of the board of his former employer. Accordingly, the plaintiff believed it was not possible to convene an independent hearing and invited the entire Court to recuse itself. The Court was unwilling to recuse itself and the plaintiff did not prosecute his appeal. The plaintiff then issued proceedings by way of plenary summons, subject to these proceedings, in which the plaintiff claimed exemplary and punitive damages of €1.5 million arising out of the substantial damage and loss caused by servants and/or agents of the State.
He claimed that he was denied justice and redress in accordance with unfair dismissal legislation, in breach of EU law and his human rights. He also claimed that he was denied due process, fairness and natural and constitutional justice. He alleged that he was forced to withdraw his claim before the EAT due to the conduct of the servants of the State in failing to allow him to examine relevant persons, that the process was corrupt and the EAT was in breach of their own duties and obligations and/ or remit. He claims that the chair of the EAT "proceeded to trample" on his rights and that the Director of the Courts Service acted as judge in his own cause.
The High Court held that the defendants were entitled to succeed with their application to dismiss the proceedings as they were frivolous and vexatious. The High Court also noted that the pleadings were anything but clear and succinct and appear to be grounded in historical allegations of breaches of fair procedures. They found that if the plaintiff had not withdrawn his claim before the EAT he would have had available to him an appropriate remedy and it was not open to him now to construct another claim which is derived from his complaints about the manner in which the EAT dealt with his claim. The High Court decided that the proceedings should be struck out.
Women are being shut out of the workplace by the high cost of childcare in Ireland, a new study has found. Parents with one child aged three typically spent about 12 per cent of their disposable income on childcare, the report by the Economic and Social Research Institute and State agency, Pobal, found. However, this figure rose to 16 per cent for lone parents and to 20 per cent for those from lower-income households.
While childcare costs are regularly cited as a major barrier to employment, this report is the first to directly link these costs to lower rates of employment among women. The study assessed the cost and outcomes of childcare only for one child and accepted that the “the burden is more severe for families with more than one child in childcare”.
The report’s co-author, Helen Russell, said findings showed childcare costs were a significant burden to Irish households but also that working arrangements for mothers were more complex than previously thought.
Minister for Children Katherine Zappone responded to the findings by noting that the Government had increased its investment in childcare by 80 per cent since 2016 and that 200,000 children were registered in the last 12 months in various Government supported schemes. However, she said it would take a number of budgets to correct “decades of under-investment”.
Staying with financial matters, a new report entitled 'Population Ageing and the Public Finances in Ireland' highlights the likely economic and budgetary impacts of demographic change in Ireland in the coming years.
Analysis in the report suggests that while there are currently around 5 persons of working age for each person aged 65 and over in Ireland, the equivalent figure will be just over 2 by 2050.
Among the findings are:
- The demographic shift is expected in Ireland over medium- to long- term
- The ratio of retirees to workers set to more than double by 2050
- The growth rate of the Irish economy set to slow over the coming decades
- Reducing the high level of public indebtedness could increase capacity of public finances to absorb additional costs
- Policies that increase employment rate of older workers and those of working age could help to mitigate the impact of population ageing on the public finances
The Minister for Finance and Public Expenditure & Reform, Paschal Donohoe T.D., welcomed the publication of the Report of the Public Service Pay Commission on recruitment and retention issues in certain health sector grades.
The Public Service Pay Commission was tasked under the Public Service Stability Agreement 2018-2020 to conduct a comprehensive examination of underlying difficulties in recruitment and retention of staff in the public service. The Commission adopted a modular approach to its work and the report published today reflects a comprehensive examination of recruitment and retention issues in relation to the grades of Medical Consultants, Non Consultant Hospital Doctors and Nurses and Midwives in the health service. Further considerations and work by the Commission on recruitment and retention issues will address other grades and sectors of the public service.
Commenting on the release of the Report, the Minister said:
“I welcome the Report from the Public Service Pay Commission, which was considered by Government earlier today. There are many viewpoints on the issues confronting our health services. That is why the independent evidence-based analysis of recruitment and retention provided by the Commission in this Report is so important.
I know this proved to be a complex and challenging endeavour for the Chairman, the members of the Commission, and the Secretariat. I would like, in particular, to thank the Chair and the members of the Commission for the commitment and expertise which they brought to the task.
“I understand there is a commitment between public service employers and staff representatives to meet within four weeks of to discuss issues around implementation of the Report. It is important that this agreed process is adhered to and that space is afforded to the parties to reflect on the detail in this Report and engage in that process.” More from the Department of Public Expenditure and Reform:
Staying with health service issues, claims by nurses for a special pay increase to address recruitment difficulties in the health service were set to be rejected by the Public Sector Pay Commission, according to a report in the Irish Times. The commission was asked to examine recruitment and retention issues in the health sector, with nurses’ unions arguing that pay rises were needed if staff shortages and recruitment difficulties were to be tackled. However, while the commission is expected to recommend increases in some allowances and greater access to promotional posts, it will find there is no general recruitment issue in nursing and consequently no case for an across-the-board pay increase.
Significant numbers of nurses could benefit from a parallel process under way between Government and unions to deal with lower pay rates applying to more recent entrants to the public service overall, the commission is expected to point out. A future pay review for nurses could be linked to the implementation of Sláintecare health reforms. More from the Irish Times:
We covered this case in our last review:
Pierce Dillon, a teacher employed by Catholic University School from 1992 to 2017, was found by the Board of Management of Catholic University School to have behaved inappropriately by calling a student an “unpleasant and offensive name” in May 2014. The student’s parents made a complaint in writing, and Mr Dillon denied using the impugned name. The Board of Management of CUS made the finding of inappropriate behaviour in February 2015, and consequently a final written warning was imposed on Mr Dillon in April 2015. In May 2015, Mr Dillon notified CUS of his desire to appeal the decision to impose a final warning; and in September 2015, CUS replied stating that the decision of the Board was final.
In the High Court Justice Twomey said that since the warning was “prima facie spent” prior to the Court first hearing the matter, and did not remain on Mr Dillon’s personnel file, judicial review should not be available on the grounds of mootness.
In the Court of Appeal, Mr Justice Gerard Hogan disagreed with Justice Twomey’s finding on mootness. Justice Hogan said that the warning referring to inappropriate contact with a pupil was likely to have ‘the gravest implications for the good name, reputation and employment prospects” of the teacher, Mr Dillon. Furthermore, Justice Hogan said that Article 40.3.2 and Article 40.3.1 “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”.
Allowing Mr Dillon’s appeal, Justice Hogan said that he would remit the matter to the High Court for a fresh determination. More from ILN:
In accordance with its obligations under Section 41(A) of the Industrial Relations Act 1946 (‘the Act’), the Labour Court has carried out a review of each Joint Labour Committee (JLC).
Please find below the results of the review:
The WRC has published an updated Employment Agency list which can be found here:
One Year On: The Impact of the Lyons Decision for Employers
Following the Lyons v Longford Westmeath Education and Training Board decision there was an air of uncertainty among employment practitioners fearing that legal representation in a disciplinary matter could become the norm. In this article Bláthnaid Evans, Head of Employment at Leman solicitors, considers the outcome of the case, subsequent High Court decisions, and how adjudicators have interpreted and applied the judgment.
Business Transfers: Euro Car Parks (Ireland) Limited and Dermot Kelly
In this month’s article Jennifer O'Neill, Consultant in LK Shields, reviews the recent case of Euro Car Parks (Ireland) Limited and Dermot Kelly (TUD1810) in which the Labour Court held that a “transfer of an undertaking” had taken place in a scenario where there was no transfer of assets - but where the same core assets continued to be used after the transfer.
Checklists - we know that HR professionals just cannot do without them. This one, however, is slightly different - we hope you enjoy it!
Finish the statement " As a HR Manager I..."
Code of Practice for the Chemical Agents Regulations
The Health and Safety Authority, in accordance with section 60(4)(a) of the Safety, Health and Welfare at Work Act 2005 (No. 10 of 2005), and with the consent of Mr. Pat Breen, Minister of State Trade, Employment, Business, EU Digital Single Market and Data Protection, publishes this Code of Practice entitled 2018 Code of Practice for the Chemical Agents Regulations.
The Code of Practice contains the following elements: - Schedule 1 to this Code of Practice stipulates the OELVs, which are currently legally binding under the Chemical Agent Regulations. - Schedule 2 to this Code of Practice provides a list of substances which are under review by the Health and Safety Authority. - Schedule 3 contains a Chemical Abstracts Service (CAS) Number index of all substances included in the Code of Practice. - Substances which have been assigned an indicative occupational exposure limit value (IOELV) under Commission Directives 2000/39/EC, 2006/15/EC, 2009/161/EU and EU 2017/164 (the first, second, third and fourth IOELV Directives) are indicated in the notes column in Schedule 1 to the Code of Practice.
This Code of Practice comes into operation on 21 August 2018 and from that date it revokes and replaces the 2016 Code of Practice for the Chemical Agent Regulations which was issued in accordance with the Safety, Health and Welfare at Work Act 2005.
Dangerous Substances: Infosheets on Legislation and Substitution
As part of the 2018-2019 Healthy Workplaces Campaign, EU-OSHA has published two infosheets, each available in several languages.
‘Legislative framework on dangerous substances in workplaces’ offers a clear, practical summary of the relevant EU law in this area.
‘Substitution of dangerous substances in the workplace’ sets out information about removing the risks posed by certain dangerous substances altogether. This is often the best possible solution. For more information see the European Agency for Safety and Health at Work website:
Luas operator Transdev has sacked one of its drivers after finding he was "moonlighting" as a taxi driver in his wife's licensed vehicle. In response to a tip-off, Transdev hired a private investigator who placed the driver under surveillance over two evenings. He observed the Luas employee accepting a number of fares and also hailed him down to become a passenger in his cab, paying a €5 fare. After an internal investigation and disciplinary process, the unnamed Luas driver was sacked for gross misconduct as it viewed the additional demands placed on the driver's time as a threat to his capacity to carry out his highly responsible role. Transdev also said the driver's contract of employment contained explicit exclusion of moonlighting work. In response, the Luas driver sued for unfair dismissal. The WRC found that the dismissal was fair, upholding Transdev's decision. More from the Independent:
A woman who was mocked for having a west Belfast accent and harassed for being female has won damages from an industrial tribunal. More from the Belfast Telegraph:
Ryanair chief executive Michael O'Leary has insisted that the airline "won't be blackmailed" by striking pilots and "won't roll over and concede" anything that would "endanger" its business model. He was speaking on Bloomberg Television in London as Ryanair pilots and cabin crew in Germany staged a full-day strike on Wednesday 12th September, causing the cancellation of 150 flights. Mr O'Leary said the airline will continue to defend its low-cost business model, after a year of labour unrest, and that the airline is still bracing itself for a hard Brexit. More from the Independent:
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 email@example.com
Employment Law Comparative Table: Northern Ireland, Ireland and Great Britain
It is that time of year again, in the run-up to our Annual Review of Employment Law conferences, that we update our comparative employment law table, which sets out recent employment law developments between the three employment law jurisdictions of Ireland, Northern Ireland and Great Britain.
We have seen a number of changes in the last year or so, mainly in the first and third of these jurisdictions, thanks partly to the hiatus at the Stormont Assembly.
For readers with interests in the Republic of Ireland, there have been many developments in relation to equality laws in particular (parental rights, retirement, gender pay gap reporting and more) but there have also been changes or proposals regarding zero hour contracts and a-typical wording, whistleblowing, Codes of Practice, National Minimum Wage rates and more.
For readers with interests in GB, there have been developments in relation to compensation rates and whistleblowing (as there have been in NI), gender pay gap reporting, working time, National Minimum Wage rates and more.
As mentioned, there have been fewer developments in NI. However, there have been some (such as compensation and NMW rates) and the gap between employment laws in NI & GB continues to grow - it is now very dangerous for NI-based practitioners to rely on GB-based case law reviews, for example. Some laws simply do not apply on a UK-wide basis. On the other hand, of course (pending Brexit at least) some of the developments in relation to EU-derived laws are being applied by employment tribunals in NI, as they are in the GB tribunal and court system.
The comparative table reflects the position at 20 August 2018 and previous versions of the table should be discarded:
Podcasts and Transcripts
The table has been updated by Mark McAllister of the Labour Relations Agency, Ciara Fulton from Jones Cassidy Brett solicitors, and Scott Alexander from Legal-Island. In addition, Mark, Ciara and Scott have recorded a series of podcasts on major areas of difference in comparative employment laws between the three jurisdictions. Those podcasts and their transcripts will be released over the coming weeks. The podcasts go into more detail that can be done in the table and also cover some of the historical reasons for the differences between the jurisdictions.
Mark and Ciara will both be speaking at the NI Annual Reviews of Employment Law this November:
Scott will be introducing all of our reviews, including our three ROI Annual Reviews of Employment Law in November:
Parents Who Lose a Child Entitled to Bereavement Leave
A new workplace right to leave for bereaved parents has been given the royal stamp of approval this week. Employed parents who lose a child under 18 will receive 2 weeks’ leave under the Act, which is expected to come into force in GB in 2020.
The first law of its kind in the UK will support those affected by the tragedy of childhood mortality and is expected to come into force in 2020. The new Parental Bereavement Leave and Pay Act will give all employed parents a day-one right to 2 weeks’ leave if they lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy. Employed parents will also be able to claim pay for this period, subject to meeting eligibility criteria. More from gov.uk:
Reddy Charlton Appoints Laura Graham as Employment and Regulatory Partner
Reddy Charlton has announced the promotion of Laura Graham to partner in the firm’s employment and regulatory department. Ms Graham joined the firm in 2007 and qualified as a solicitor in 2010. She is a member of the Employment Law Association of Ireland (ELAI), the Dublin Solicitors Bar Association (DSBA) employment law committee and is a Registered Trade Mark Attorney.
Laura regularly writes articles for Legal-Island in her bi-monthly feature 'Reddy Made Contracts' which can be accessed here:
Lyons to the Max: How has the WRC Interpreted Lyons v Longford Westmeath ETB?
Fri, Sep 21, 2018 11:00 AM - 11:30 AM BST
The 2017 High Court decision of Lyons v Longford Westmeath ETB was somewhat of a controversial decision in the employment sphere. The judgment of Justice Eager raised serious questions for both employers and employees as to the scope of disciplinary investigations and the role of lawyers therein.
In January 2018 Mr Pat Breen, T.D., Minister of State for Trade, Employment, Business, EU Digital Single Market and Data Protection asked the WRC and the Health and Safety Authority to undertake a review of their Codes of Practice on Bullying in the Workplace. The WRC Code dates from 2002 and the HSA Code has been in place since 2007. The Minister’s initiative comes about as a result of evolving case law in this area. Presumably we can expect the new Codes to reflect the ruling in Lyons v Longford Westmeath ETB and subsequent cases in relation to the right to legal representation and to cross-examine witnesses.
In this webinar Bláthnaid Evans, Head of Employment at Leman Solicitors, describes her recent experiences with clients following the Lyons decision and how employers and WRC adjudicators have interpreted and implemented the decision.
Bláthnaid talks about how the WRC and Labour Court have approached cases that test the Lyons principle and offers insight into how the decision has been applied in practice. Bláthnaid offers her expert opinion on the ramifications of the case, how adjudicators have interpreted and applied the decision, and whether subsequent cases or indeed employers are deviating from it.
NOTE: Legal-Island is running a series of free employment law and HR webinars for subscribers throughout 2018 in association with the National College of Ireland.
All of our Legal-Island webinar recordings and searchable transcriptions are posted online within this section of our employment law hub and are available to stream and research:
This week's thought-provoking video is inspirational and quite a few of our readers will have seen one of the presenters in person. When faced with life's toughest circumstances, how should we respond: as an optimist, a realist or something else? In an unforgettable talk, explorer Mark Pollock and human rights lawyer Simone George explore the tension between acceptance and hope in times of grief -- and share the ground breaking work they're undertaking to cure paralysis.
Enjoy the weekend.This article is correct at 14/09/2018
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.