In Brief: Important Updates from June 2018

A number of useful articles and interesting case law reviews were added to the Irish Employment Law Hub throughout the month of June… here is a quick summary of some important developments to read whilst basking in the exotic Irish heatwave…

As amendments to the Employment (Miscellaneous Provisions) Bill 2017 are currently before the Dáil, we wanted to give readers a brief outline of the Bill, explain the key legislative changes it seeks to impose, and consider the positive and negative reception to it.

We reviewed a number of cases this month, all of which can be accessed in the extensive case law section of the hub. In this month’s Case Law Review Panel article, Paul Joyce BL, Senior Policy Analyst at FLAC, considers when an extension of time should be granted in order to bring a claim. Paul reviews two recent appeals to the Labour Court regarding time limits and identifies the core elements of the test set out in the seminal decision of Cementation Skanska relating to reasonable cause; Laura Graham, Senior Associate in the Employment Law team at Reddy Charlton Solicitors, considers whether employers should include policies and procedures in their contracts of employment; and Harry Wall of Ronan Daly Jermyn Solicitors outlines important aspects of the Parental Leave (Amendment) Bill 2017 and the changes that both employers and employees need to be aware of.

We have many more articles available on our Employment Law hub, a service that is fully searchable, available 24/7 and has a useful browse by topic function. The hub offers in-depth articles written by expert legal practitioners and leading HR professionals, case law analysis and materials tailored specifically to how the law applies in Ireland!

The Employment (Miscellaneous Provisions) Bill 2017 – Dangerous or Necessary?

Bogus self-employment, zero-hour contracts and the status of individuals working within the ‘gig economy’ have been the focus of much media attention of late. Government seeks to address the issue by enacting legislation to improve the security and predictability of working hours for those retained on insecure contracts, yet the proposed provisions are not without controversy.

Creation of the Bill is significant given the ramifications it will have on those affected. Legislating in this area is undoubtedly a positive step in attempting to strengthen the rights of those engaged on insecure contracts, however, the Bill has received a lot of backlash. Officials have criticised key aspects of the Bill and amendments to the initial draft are currently under review.

In this article, we explain the overall objective of the Bill, outline the key legislative changes it seeks to impose, and consider the response to it.
https://www.legal-island.ie/articles/ire/features/supplementary/2018/jun/employment-miscellaneous-provisions-bill-2017-dangerous-or-necessary/ 

Iarnrod Eireann/ Irish Rail v Stephen Lynch [2018] ILCR UDD1825

This case highlights the importance of time limits and the need to give express instructions when retaining legal representation.

The complainant consulted a solicitor shortly after his dismissal and was given a copy of his completed complaint form. However, 8 months later his trade union discovered the form had not been submitted.

The complainant said he and his union official had acted on the belief that the solicitor had submitted the form. The Court had to determine whether this belief was reasonably held, whether there was ‘reasonable cause’ and whether an extension of time should be granted in the circumstances.
https://www.legal-island.ie/articles/ire/case-law/2018/june/iarnrod-eireann-irish-rail-v-stephen-lynch-2018/

Time Limits: When Should an Extension of Time be Granted to Bring a Claim?

• If a complainant’s legal or trade union representative fails to lodge a claim form within the statutory time limit should their claim be permitted to proceed?
• Does inadvertence of a solicitor excuse a delay?
• Does ignorance of one’s legal rights constitute reasonable cause for not observing a statutory time limit?
• What if the complainant failed to formally instruct the solicitor to submit the claim form in question?
• In what circumstances should an extension of time be permitted?

In this month’s Case Law Review Panel article, Paul Joyce BL, Senior Policy Analyst at FLAC, asks these all-important questions, reviews two recent appeals to the Labour Court regarding the extension of time and identifies the core elements of the test set out in the seminal decision of Cementation Skanska relating to reasonable cause.
https://www.legal-island.ie/articles/ire/features/labour-superior-court-review/2018/june/time-limits-when-should-an-extension-of-time-be-granted-to-bring-a-claim/

Should Employers Include Policies and Procedures in Contracts of Employment?

The contract of employment is the fundamental document governing the contractual employment relationship between an employer and an employee. However, it is usually not the only document governing the relationship. Employers often have an employee handbook which includes work practices as well as policies and procedures.

In this month’s ‘Reddy Made Contracts’ article, Laura Graham, Senior Associate in the Employment Law team at Reddy Charlton Solicitors, considers whether employers should include policies and procedures in their contracts of employment.
https://www.legal-island.ie/articles/ire/features/contracts/2018/may/should-employers-include-policies-and-procedures-in-contracts-of-employment/

First Tuesday Q&A: Workplace Investigations

While workplace investigations have always been considered somewhat of a procedural minefield, there is a renewed spotlight on them, stemming from recent High Court cases over the course of 2017 that have significantly increased the focus on this everyday aspect of the employer/employee relationship. Kicked off by the notable case of Lyons v Longford Westmeath Education and Training Board, a number of additional decisions have sought to test the extent to which fair procedures are afforded during such investigations.

In this month’s First Tuesday Q&A Kevin Slattery, Solicitor at A&L Goodbody’s Employment Law team, provides up to date and relevant practical advice, in line with these decisions, on how such investigations should be conducted, their place within the overall disciplinary process and the potentially far-reaching implications of Lyons.

Aurivo Co-Operative Society Limited v Jonathon Bowens [2018] ILCR Determination No. UDD1830

Before the Labour Court, the complainant claimed he was unfairly dismissed on grounds of serious misconduct (at which point he was already on his final warning for a separate issue).

The respondent alleged he had failed to follow an internal policy, one the complainant denied being made aware of. The individual who heard the internal appeal also confirmed that the final written warning was a major factor in his decision and that if it had not been in place then he would have considered dismissal too severe.

The complainant's case was that his dismissal was unfair as the process which led to the decision to dismiss him did not meet the standard of fair procedure. Learn the outcome in our case law section:
https://www.legal-island.ie/articles/ire/case-law/2018/june/aurivo-co-operative-society-limited-v-jonathon-bowens-2018/ 

Legislative Changes to Parental Leave: How Do I Handle It?

In this month’s ‘How Do I Handle It?’ article Harry Wall of Ronan Daly Jermyn Solicitors considers the problem:

I understand that new legislation is pending in relation to parental leave for employees. How will this affect existing parental leave entitlements - How do I handle it?

In this article Harry outlines important aspects of the Parental Leave (Amendment) Bill 2017 and the changes that both employers and employees need to be aware of. Harry considers the new parental leave entitlements, the granting of parental leave and the manner in which applications should be made, and the refusal of applications, referencing the recent case of An Employee v An Employer (ADJ-00000473).
https://www.legal-island.ie/articles/ire/features/how-do-i-handle-it/2018/jun/legislative-changes-to-parental-leave-how-do-i-handle-it/

Non-application of the Unfair Dismissals Acts to the Termination of Fixed-term or Specified Purpose Contracts

In this month’s ‘Employment Law Precedents’ article, Emily Sexton, Solicitor in Comyn Kelleher Tobin, examines a recent decision of the Labour Court regarding section 2(2)(b) of the Unfair Dismissals Acts 1977 – 2015 which permits the non-application of the Unfair Dismissals Acts to the termination of fixed-term or specified purpose contracts.

Emily relays the background facts of the case, analyses the Labour Court decision and offers key takeaway points for employers.

“This decision is a reminder to employers to ensure that fixed-term or specified purpose contracts are reduced to writing and, where an employer wishes to avail of the Section 2 (2) (b) exclusion, that the written contract contains an appropriate clause in that regard.” 

SME Brexit Special - Your Customs Checklist

With less than a year to go until March 29, 2019 - the date the UK leaves the EU - many businesses still haven't started planning for Brexit.

In a Deloitte survey conducted in 2017 with more than 200 businesses, the main areas for concern were the additional costs and administration in the case of no agreement being reached, potential delays to movements of goods, and the challenge of remaining competitive in the UK market. While businesses in Ireland have been successful in diversifying into other markets, the UK remains the largest trading partner for most sectors. Along with the uncertainty, many businesses may have to navigate customs rules and procedures for the first time in an area that can be complex and confusing.

While the negotiations are ongoing, there is still a lot of uncertainty around how the future trading relationship between the UK and EU will look.

In this article Pascal Brennan and Donna Hemphill of Deloitte consider a 'hard Brexit' and a 'soft Brexit' and different levels of alignment and harmonisation between the two options. They offer an overview of customs processes and procedures and identify steps that businesses can take in order to develop a Brexit impact plan.

News Story of the Month…

A spate of suicides at a leading French company will see a number of top executives stand trial over alleged workplace bullying. The former head of France Telecom Didier Lombard, six other executives and telecoms operator Orange, formerly France Telecom, are to be taken to court over their alleged role in a wave of staff suicides. They are accused of engaging in or assisting psychological harassment.

An April 2010 report from labour inspectors found that 19 employees took their own lives, 12 attempted suicide and eight suffered from deep depression or were forced to stop work as a result.

The labour report alleged the company used harsh restructuring methods such as forcing people into new jobs and giving unattainable performance objectives. The company rejects the allegations and will makes its case during a public hearing in the coming months, meanwhile the former chief, an ex-human resources head and a deputy CEO have been placed under court supervision until trial.

This sad and shocking story highlights the need for healthy workplace relations, realistic performance targets and objectives, and supportive management. The case emphasises the importance of dealing with workplace bullying and harassment without delay and the reciprocal nature of the implied term of mutual trust and confidence, given the allegations made by employees suggest a fundamental breach by the employer.

Organisations should have a detailed bullying and harassment policy in place, which is consistent with the Code of Practice, and should ensure managers receive full training on said policies.

When an employer becomes aware that there may be an issue with bullying in the workplace the employer should be proactive. The employee should be encouraged to make a complaint and the procedure should be discussed with them together with what protections the company has in place to prevent victimisation or adverse treatment of employees who make a complaint or act as witnesses in such an investigation.

In short, if an employer is aware of bullying and harassment in the workplace it should address it in a meaningful, proactive way in accordance with its company policy and the Code of Practice.