In Brief: Important Updates from August 2018

Unfortunately, summer is officially over here in Ireland. Temperatures are dropping, kids are back to school and the post-holiday blues are starting to kick in. If you have been in and out of the office this month, don’t panic, as we have plenty of useful articles and case law summaries on the Irish Employment Law Hub to keep you apprised of all the employment law and HR developments which have taken place over the summer months.

In case you missed it… here is a quick recap of some of the topics that featured in August 2018, including:

• Ciarán Ahern, Associate with A&L Goodbody's Employment Group, provides answers to some of your questions on fixed-term workers;
• Deirdre Malone, Employment Partner in Ronan Daly Jermyn, considers a problem scenario in our How Do I Handle It? feature in light of the recent Irish Labour Court decision of Kepak Convenience Foods Unlimited Company v Grainne O’Hara, an interesting case involving employees emailing outside of offices hours that is sure to have profound ramifications;
• Deirdre also delivers this month’s Case Law Review Panel article reviewing the case of Towerbrook Limited t/a Castle Durrow Country House Hotel v Eugene Young 2018 IEHC 425. The case concerned an unfair dismissal claim brought by an employee engaged as a general handyman against his employer, resulting in a blatant breach of procedural fairness and natural justice;
• We offer some practical tips on GDPR for HR;
• The Labour Court published its Annual Report for 2017 – we outline some key findings of the report; and
• Dr Gerry McMahon discusses how to recognise trade unions for collective bargaining purposes.

First Tuesday Q&A: A Guide to Fixed-Term Contracts

In this month’s First Tuesday Q&A Ciarán Ahern, Associate with A&L Goodbody's Employment Group, provides answers to the following questions on fixed-term contracts:

• When is the use of a fixed-term contract appropriate?
• What considerations need to be made when renewing a fixed-term contract?
• When can a fixed-term contract be deemed to be a contract of indefinite duration?
• What are the objective justifications for not offering a contract of indefinite duration?
• Can an employee bring an unfair dismissal claim on the non-renewal of a fixed-term contract?
• What protections are afforded to fixed-term workers?
• Is there a restriction on the length of a fixed-term contract?
• Can you dismiss an employee prior to the expiry of the fixed-term?
• Are employees entitled to redundancy if/when they are dismissed at the end of the contract?

Emailing Outside of Office Hours: How Do I Handle It?

The Organisation of Working Time Act directs that an employer shall not permit its employees to work more than an average of 48 hours in any period of seven days, but what if employees access emails through their personal devices from home, outside of their normal working hours?

In this month’s How Do I Handle It? article Deirdre Malone, Employment Partner in Ronan Daly Jermyn, considers the problem scenario below in light of the recent decision in Kepak Convenience Foods Unlimited Company v Grainne O’Hara, WTC/18/18:

Our employees regularly access emails through their personal devices from home, outside of their normal working hours as defined in their contracts of employment.  I understand that there is a recent decision around working time and emailing outside of office hours – how do I handle it?

Deirdre outlines the background facts of the case, considers the WRC and Labour Court decisions and provides key takeaway points for employers.

Procedural Fairness: Towerbrook Limited t/a Castle Durrow Country House Hotel v Eugene Young 2018 IEHC 425

Deirdre also considers the case of Towerbrook Limited t/a Castle Durrow Country House Hotel v Eugene Young 2018 IEHC 425 in this month's Case Law Review Panel article. The case offers guidance to employers on who can conduct an investigation in the workplace and reaffirms the long-established law that one cannot be a judge regarding an allegation against oneself (nemo iudex sua causa). 

Practical Tips on GDPR for HR

Now that we have had a few months for the new Act to bed in, over the next couple of weeks Legal-Island will take a look at some key issues under the four most hated letters in the English language: G, D, P & R…

In Practical Tips on GDPR for HR: Part 1 we explored the G & D:

G – General but genius tips on dealing with data responsibilities in your HR department.

• Know Your Data
• Know How and When to Report a Data Breach
• Understand the Increased Rights of Individuals
• Ensure Accountability
• Train Your Staff and Update Your Policies

D – Data – What data is protected and what to do when an employee asks for references about them in their personnel file or wants an investigation report to be expunged.

• What Constitutes Data?
• Requests for Erasure

Look out for our next email which will feature the letters, P & R

P – Protection – How to encrypt HR data, protocols for mobile devices and practical advice for staff when working from home.

R - Regulation and compliance – How to build data protection into your HR meetings, training and decision-making processes.

Labour Court Publishes Annual Report for 2017

The Court received 1093 referrals, held 708 hearings, issued 530 Recommendations / Determinations / Decisions / Orders, and investigated 152 cases that were settled prior to or at a hearing. View key findings of the report.

How To... Trade Union Recognition – To Recognise or Not To Recognise?

This month Dr Gerry McMahon looks at trade union recognition for collective bargaining purposes. He looks at the 3 basic options employers have:

• Employers can work with unions (e.g. across the public sector);
• They can try to edge out unions (e.g. Avis car rental, Eircom); or
• They can try to manage without unions (e.g. across the private sector)

With this in mind Gerry discusses:

• The advantages of an employer working with a union;
• Non-union status and recent cases where this has featured;
• The right to bargain instead of a right to recognition;
• What a valid trade dispute with non-unionised employers means; and
• Stability agreements and their practical by-products.

Case Law Reviews

We had a number of interesting case law reviews this month:

The Helene McManus v Health Service Executive [2018] ADJ-00009162 case involved an equal pay claim whereby the Adjudicator had to consider whether the respondent had directly discriminated against the complainant and whether she was in fact engaged in “like work”.

The Cedarglade Limited v Tina Hliban [2018] ILCR Determination No. UDD1843 case concerned a constructive dismissal and whether the reasons cited for the employee's resignation constituted a fundamental breach going to the root of the contract.

Kepak Convenience Foods Unlimited Company v Grainne O'Hara [2018] ILCR Determination No. DWT1820 was previously cited in our Case Law Review Panel article. The very topical Kepak case has many legal and HR practitioners sitting up and paying close attention when it comes to working time, prompting the question of whether emails sent whilst commuting should count as work… The Court in Kepak said the respondent was aware of the number of hours the complainant spent working and took no steps to curtail the hours in excess of the maximum permitted. It was therefore ordered to pay €7,500 to the complainant.

The Pat The Baker v Conor Brennan [2018] ILCR Determination No. TUD1813 case highlights the importance of submitting a claim in time. The complainant sought an extension of time to submit an appeal arguing the delay in receiving his notice of appeal was entirely the fault of his solicitor. The Court held the miscalculation of a deadline date does not amount to exceptional circumstances excusing delay.

In the Dunnes Stores v Mary Doyle Guidera [2018] ILCR Determination No. EDA1838 case the Court doubled the amount of compensation previously awarded to the complainant for a failure by the respondent to provide reasonable accommodation and adequately discharge the duties imposed on them.

The Court considered the efforts made by the respondent to reasonably accommodate the complainant and noted that despite the company doctor's recommendation to keep the complainant under review no steps were taken by the respondent to arrange such a process. 

In the Irish Prison Service v A Prison Officer [2018] ILCR Determination No. EDA1837 case, the respondent was exempt from a complaint of discrimination as the complainant could not carry out their full range of duties as required.

The Court of Appeal case Pierce Dillon v The Board of Management of Catholic University School [2018] IECA 292 of concerns the legality of the disciplinary process conducted by the respondent.

The Cinders Limited v Celina Byrne [2018] ILCR Determination No. RPD1811 case was an appeal against the decision of the Adjudication Officer regarding a redundancy payment. The Court had to consider the suitability of the offers of alternative employment and whether the refusal to accept the offers was reasonable in the circumstances.

News Story of the Month…

A van driver in the Canadian city of Ottawa has been sacked after they were filmed repeatedly splashing pedestrians. Contracting company Black & McDonald said in a Facebook post that the individual concerned is "no longer employed" with them after a video of their anti-social behaviour went viral. The shocking video has been viewed over 750,000 times, and Black & McDonald subsequently made an apology for their driver's behaviour on its Facebook page. Read the full article on the BBC website.