In Brief: Case Law Special (November 2018)

This month’s In Brief is a common law catch up. It can be hard to keep up-to-date with case law developments – it’s all too easy to miss an important decision that has major implications for employers and employees. For this very reason we decided to compile a list of some of the most interesting employment cases that have been decided in the last few months.

If you want to know more about any of the cases, each has a link to a more detailed case review on the Irish Employment Law Hub, where you will also find a further link to the full judgment online.

The decisions highlighted in this email cover a wide range of employment issues, including the right to legal representation in disciplinary investigations; random drug testing in safety-critical working environments; minor, technical breaches in written particulars of employment; unfair dismissal; the so-called ‘use it or lose it’ provisions of the Working Time Regulations 1998; vicarious liability and dismissal during the probationary period.

Iarnród Éireann / Irish Rail v Barry McKelvey [2018] IECA 346

The High Court decision in Lyons v Longford Westmeath ETB caused huge concern amongst practitioners as it placed advice and corrective action/disciplinary policies in the unknown. Stability appears to have returned again, with the welcome decision for employers in the case of Iarnród Éireann/Irish Rail v. Barry McKelvey.

In this case the Court of Appeal emphasised that employees who are the subject of internal disciplinary inquiries will not normally be entitled to have legal representation during such inquiries.

Dublin Port Company v 160 Various Grades [2018] ILCR Recommendation No. LCR21788

The question of whether random drug testing by employers in safety-critical working environments should be permitted has been a topical subject in recent months. In this judgment the Labour Court held such testing should only be permitted where necessary, justified and proportionate, having regard to the operational issues of the employer.

Component Distributors (CD Ireland) Limited v Brigid (Beatrice) Burns [2018] ILCR Determination No. TED1812

In this case the Labour Court ruled that minor or technical breaches in written particulars of employment should not attract a compensatory penalty against the employer. The complainant sought to argue that the name of her employer and details of her breaks were not set out properly in her contract. The Court held the alleged omissions had not caused any detriment to her, highlighting the fact that she had not raised any grievance or concerns about the matters during her employment.

Synergy Security Solutions Limited v Anna Dudek [2018] ILCR Determination No. UDD1853

The complainant, who had been employed for approximately ten weeks, argued she was dismissed owing to the fact she was pregnant. The respondent argued her dismissal was on grounds of performance and that management was not notified of her pregnancy. The Court held that on the balance of probability the respondent was unaware that the complainant was pregnant and dismissed the appeal.

Kreuziger v Land Berlin and Max-Planck-Gesellschaft v Shimizu [2018] CJEU C-619/16 and C-684/16

A very important case for all in the employment law sphere! Workers cannot be deprived of paid statutory holiday entitlement on the termination of employment or at the end of a particular reference period or authorised carry-over period unless the employer has ensured ‘specifically and transparently’ that the worker is given the opportunity to take the leave.

The ECJ was asked whether the right to an allowance in lieu of paid annual leave may be precluded where the employee failed to apply for leave they were entitled to. The decision has serious implications for the so-called ‘use it or lose it’ provisions of the Working Time Regulations 1998, which can see employees losing any untaken annual leave.

The Minister for Education and Skills & anor -v- Boyle & anor [2018] IESC 52

This case involved the legal rights and obligations arising from the unusual triangular arrangement whereby education in Ireland is funded. The fundamental question that arose on the facts concerned the proper legal characterisation of the employment relationship in circumstances where schools are under the management of management boards but salaries of teachers are paid by the Minister.

Beechside Company Limited T/A Park Hotel Kenmare v A Worker [2018] ILCR Recommendation No. LCR21798

This case involved a claim of unfair dismissal by the complainant following dismissal during his probationary period. The Court found that the complainant had been denied natural justice as there was no proof of substantial grounds for dismissal and there was a lack of fair and proper procedures. Accordingly, the Court awarded the complainant compensation of €90,000.

R and R Mechanical Limited t/a RR Projects v Peter Kiely [2018] ILCR Determination No. RPD1813

This case concerns redundancy and whether the claimant should have been entitled to a payment under the Act. The Court held that no reasonable offer of alternative accommodation had been made and concluded that the complainant's employment had been terminated by reason of redundancy.

Irish Rail v Fergal Bryan [2018] ILCR Determination No. UDD1857

The Court stated that the issue to be decided was whether the circumstances of the dismissal were unfair. The Court held the decision to dismiss the complainant was not proportionate to the gravity of the complaint and ordered the complainant to be re-engaged within 6 weeks of the Court's decision.

M Morrison Supermarkets PLS v Various Claimants [2018] EWCA Civ 2339

As if GDPR, data protection responsibilities and potentially huge fines weren’t frightening enough, this case confirms another layer of danger for employers – the vicarious liability of employers for harm caused by the criminal activities of their employees in relation to data breaches. Will employers now have to obtain insurance for losses caused by disgruntled, rogue employees? This England and Wales Court of Appeal case is a stern warning to employers to ensure the personal information of customers is protected insofar as possible.

“There have been many instances reported in the media in recent years of data breaches on a massive scale caused by either corporate system failures or negligence by individuals acting in the course of their employment. These might, depending on the facts, lead to a large number of claims against the relevant company for potentially ruinous amounts. The solution is to insure against such catastrophes; and employers can likewise insure against losses caused by dishonest or malicious employees….”

Remember, you can find hundreds of case law reviews, articles, videos, podcasts, templates and other resources on the Irish Employment Law Hub.