In Brief: Important Updates from January 2020

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 article cover a wide range of employment issues, including the importance of fair procedures; retirement dismissals; restrictive covenants and record keeping for working time matters.

Fair Procedures

The importance of fair procedures in justifying a dismissal continues to dominate and in A Paramedic v An Ambulance Provider [2019] the AO found that there was a clear breach of the principles of natural justice during the investigation, disciplinary and appeals process.  When organisational procedures are following correctly as was argued in the case Aer Lingus v Dick Fagan [2019] the Labour Court agreed with the Adjudication Officer that the Complainant had not been unfairly dismissed as he had at all times been afforded fair procedures.  Ensuring that adequate reasons are given for dismissal is also crucial and in C.D. v The Board of Management of a National School [2019] the Applicant successfully argued that the investigation process was fundamentally flawed, and the decision arrived at was irrational, unreasonable and unlawful.  The Court noted that “…that there is an obligation under Irish law for decision makers to set out adequately the reasons for reaching a decision…”. 

Age Discrimination

Retirement is a particularly thorny issue as employees who are retired at the age of 65 will have an earnings gap as they are unable to access the state pension until the age of 66 (which is increased to 68 in 2028).  There have been many challenges to compulsory retirement dismissals, and it is easy to see why.  In Kathleen Dempsey v The West of Ireland Alzheimer Foundation [2019] the Adjudication Officer found that no legitimate health and safety grounds were presented that would have prevented the complainant working past the age of 65 and the Complainant was able to establish a prima facie case of age discrimination. 

Similarly in James Peter Maloney v Ability West CLG [2019] an argument that employees could not be employed beyond the age of 65 due to health and safety reasons was also rejected as the court had not been provided with any provided with any evidence which would suggest that the driver’s ability to cope in the sometimes challenging situations could potentially be impacted by age.  Employers must be mindful that any rationale for retirement ages must be capable of being objectively justified and must be continually reviewed to ensure they can be justified.   Our recent webinar with Jennifer Cashman, RDJ, discusses this issue in more details.

Restrictive Covenants

Established case law relating to the enforceability of ‘restrictive covenants’ was confirmed in the recently reported case of Ryanair DAC v Peter Bellew [2019] where, after a lengthy battle the High Court confirmed that found that the restraints which the Company’s standard post-employment restrictive covenant purported to apply to the Defendant went far beyond what the Company had shown to be justified.   

Working Time – Record Keeping

The importance of keeping accurate records of hours of work, rest breaks etc has received much attention over the last year and in Stablefield Limited v Ana Lacramiora Manciu [2019]  the Labour Court confirmed that it is the responsibility of the Employer to keep records of working time and the records presented by the Respondent to the Court which consisted of pay slips and pay analysis sheets were not records of the type contemplated by the Statutory Regulations.  Similarly in A Senior Retail Betting Assistant v Retail Bookmaker [2019] the Respondent argued that the Electronic Point of Sale (EPOS) system furnishes an accurate record of work carried out versus time not working which proves when a member of staff would be on a break. The Complainant disputed this argument on the basis that her work involves spending a significant amount of time dealing with customers which cannot be captured by the EPOS system.  The records required to be kept by an employer are detailed in the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001.  Our recent webinar with A&L Goodbody discussed this matter in detail. 

These cases and many more can be found in the Case Law section on the Irish Employment Law Hub