In Brief: Case Law Special (October 2019)

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 discrimination on the grounds of pregnancy and disability and importance of following clear procedures.

Contractual Matters

In order to be able to make deductions from an employees pay, an employer must have authority to do so via the contract of employment or the consent of the employee. 

In An Employee v A Local Authority an employer who failed to recognise previous service under Fixed Purpose contracts was ordered to place the employee at a higher point on the salary scale to reflect their previous experience. 

Disability Discrimination

Can an employer be held liable for discrimination if they were unaware that an employee was disabled at the material time?  According to the case of a Senior Nurse v A Health Service Provider [2019] the answer is no.  In order to establish a prima facia case of discrimination, a complainant must prove that they had a disability at the time material to their claim and that the respondent was on notice of that disability.  

If an employer is aware that an employee has a disability what adjustment must they make to facilitate the continued employment of the individual?  The answer to this question has been analysed in detail in the Nano Nagle School v Daly [2019] case in which the Supreme Court said that the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee.

In An Employee v An Agricultural Equipment Manufacturer [2019] the employers failure to make reasonable accommodations for an employee with a speech impediment was found to be discrimination.

Sex Discrimination

In An Employee v A Healthcare Company [2019] the Respondents ‘disingenuous’ behaviour in agreeing to re-employ an individual on an part-time basis to suit her childcare needs only to then decide that part-time did not suit and to fabricate allegations including stating that the Complainant had resigned was discrimination on the grounds of gender and family status.

In A Shop Assistant v A Retailer [2019] the Complainant was awarded €40,000 for sexual harassment given the inexplicable failure of management to prevent the discriminatory treatment and the serious nature of the discriminatory treatment. This once again serves as a cautionary reminder of the importance of having a no-tolerance culture towards sexual harassment in the workplace.

Dismissal for pregnancy-related reasons, regardless of whether that is under the guise of redundancy or the ending of a fixed-term contract is going to be viewed as discrimination.

Employers should take all reasonably practicable steps to prevent harassment of employees as failure to do so can render them liable for any discrimination suffered.

Procedural Breaches

The importance of following clear procedures in a dismissal on the grounds of redundancy was highlighted in An Employee v A Freight Company – where the lack of clear consultation around selection led to a finding of dismissal ‘under the cloak of redundancy’.

Recruitment, selection and promotion procedures must be clearly set out and adhered to, to avoid findings of discrimination where applicants feel they were treated less favourably in comparison to other applicants.

Failure to follow procedures relating to the handling of protected disclosures led to compensation of €4000 for an employee in A Psychiatrist v A Health Service Provider [2019].