Jennifer Cashman's Employment Law Review of the Year

Posted in : Webinar Recordings on 31 January 2018
Jennifer Cashman
Ronan Daly Jermyn

The keynote speaker at Legal-Island's Annual Review of Employment Law 2017 Jennifer Cashman of Ronan Daly Jermyn, updates her key employment changes of the year (2017), as well as the essential case law developments.

In this webinar, Jennifer Cashman covers:





Scott: Good afternoon, everybody. My name is Scott Alexander. I'm from Legal-Island. I'm here with Jennifer Cashman, who's a partner at Ronan Daly Jermyn Solicitors. We're here live in Dublin and we're going to have a 45 minute review of the key changes and key case studies that Jennifer has identified from 2017 that will impact on 2018. You can ask questions anonymously. There's a chat box on the top right-hand corner of the screen. As you're watching it, you can send in those questions and we'll ask Jennifer those questions anonymously. We hope to run a series of webinars - in fact, we will be running a series of webinars in association with the National College of Ireland. You'll hear more about that in the coming weeks.

We're going to cover five key areas today. We're going to look at

So, Jennifer...

Jennifer: Good afternoon, Scott.

Mandatory Retirement

Scott: Good afternoon, Jennifer. A major development in 2017 was around mandatory retirement. It's developed further since November reviews when you spoke about it then with the publication of the Code of Practice. Explain why employers need to be aware of these changes and how they will impact on them.

Jennifer: Thanks, Scott. Indeed, mandatory retirement ages and the law relating to mandatory retirement ages is something that I've been discussing at the Legal-Island annual reviews for the last number of years. And 2017, indeed, was a year of significant developments in this area. We had lots of cases around employees who were being forced to retire from their employment at what the employer deemed was the mandatory retirement age and in turn, those employees taking age discrimination claims against their employer, arguing that it was discriminatory on grounds of age to force them to retire from their employment.

So, we had a number of case law developments during the course of 2017 in Ireland. This came on the back of a number of European case law developments over the course of the last number of years. This all culminated on the 20th of December 2017, the Workplace Relations Commission published a Code of Practice essentially dealing with retirement ages. This Code of Practice is a guide for employers and HR professionals alike in dealing with the issue of retirement ages and mandatory retirement in employment.

It's a fantastic guide for HR professionals. I would urge all HR professionals and legal professionals alike to have this guide next to them at all times when they're dealing with the issue of retirement ages in the workplace. So, essentially, the Code of Practice, which is called the Industrial Relations Act 1990 Code of Practice on Longer Working - that is the official title of the Code of Practice. Essentially, what it does is it usefully restates the law in this area. It deals with what the Irish law says in this area and then it takes HR professionals and employers through a guide on how to deal with the issue of retiring employees from the workforce.

Scott: And those issues, they reflect the jurisprudence of the European court as well, though, don't they?

Jennifer: Absolutely, Scott. I suppose it would be helpful to give a brief recap on what our Irish law says about mandatory retirement age. So, effectively, in the private sector in Ireland, there is no mandatory retirement age set out in statute. It is a matter for employees under the employment equality legislation to set their own mandatory retirement age. But there was a development with the introduction of additional legislation in 2015, which resulted in effectively the concept of effective justification being introduced formally under Irish law under a statutory provision.

That is something that you're absolutely right, had been developing at European level over the course of the last number of years because the European directive from which our employment equality legislation is derived from effectively sets out that while it's not discriminatory on grounds of age to mandatorily retire an employee from their employment, an employer must be in a position to effectively justify why that mandatory retirement age is necessary in their employment.

Effectively, what the Code of Practice does now is it sets out and codifies the position for lawyers very usefully and helpfully in my view in one document. What our current law says in that regard. What might be considered objective justification for setting a mandatory retirement age in your employment and then sets out a guide from there from your employees and HR professionals in how to actually retirement somebody from employment.

Q: Can you set the retirement age for the company as the state pension age?

Scott: Okay. So, we've got a question here on the chat box if we take that one, Jennifer, as well—can you set the retirement age for the company as the state pension age? The state pension age is increasing. There's a logic there.

Jennifer: Absolutely.

Scott: But it would still have to be objectively justified on most social policy grounds.

Jennifer: Exactly. So, 65 has traditionally been the age at which employers have thought to set the mandatory retirement age at. But 65 is not set out anywhere in stone. It was the age at which employees were entitled to draw down the state pension. So, there was a logic in terms of forcing them to retire from their employment at an age at which they would be in a position to draw down their state pension age.

As you correctly said, the state pension age has increased to 66. It will increase again in 2021 to 67 and ultimately in 2028 to 68. So, the age at which an employee is entitled to drawn down the state pension age is increasing all the time. Yes, the answer is employers can indeed still set their mandatory retirement age at the age in which the state pension is available. However, as set out in the Code of Practice and as set out in statute as I referred to earlier, in the light of our recent developments, the employer must equally be in a position to objectively justify why an employee must mandatorily retire from their employment at that age of 66.

Scott: Those objective justifications, some of them are set out in the Code of Practice, but they would be different for each organisation. So, this company here that's written in, they may be using it if they want some kind of turnover of staff or they want to help youth or whatever else is set out in the Code of Practice. Should they be thinking now these are the reasons this organisation picks those justifications?

Jennifer: Yes. And that's a very interesting conversation to have in your organisation around, "Well, we have a mandatory retirement age. Have we ever thought about why we require people to retire at a particular age?" There will be organisations listening to us today who are, for example, safety-critical-type organisations. Maybe they're in a manufacturing environment. Maybe they have other safety-critical elements to their business.

That may, in and of itself, present an objective justification as to why employees would be required to retire at a particularly mandatory retirement age. Other organisations that don't have that safety-critical aspects to them, such as more sedentary occupations, they may find it more difficult to address the reason as to why people are requested to retire, but there are reasons available to them and the Code of Practice, as you said, sets out five examples of what might be considered - sorry, six examples of what might be considered to be objective justification.

The whole idea of intergenerational fairness, the whole idea of succession planning, having a mixed and diverse workforce in terms of a mixture of ages. All of those reasons have been accepted as objective justification in various cases. Now, it is something to be determined on a case by case basis.

So, it will be, as you rightly said, very much an organisation-specific issue. Each organisation needs to give consideration to why they are setting a mandatory retirement age at a particular level. They don't have to set up the objective justification in the contract of employment. They should and must set out the mandatory retirement age in the contract of employment. They don't necessarily have to set out the objective justification in the contract of employment, but they need to be ready to answer the question when they're asked a question.

The other important thing that has been established at a European level is that your objective justification can change over time. So, in 2018, you may have succession planning or intergenerational fairness as your objective justification. That may change over time and that is perfectly permissible. From a legal perspective, the fact of an objective justification changing doesn't necessarily undermine the fact that you have an objective justification in the first place. But the issue is that a business must think about what their objective justification is and must have it under constant review in terms of what that is.

Q: Is a contract for a fixed term still lawful under the new rules?

Scott: Okay. We have a number of questions coming in, but one of the things that comes up quite regularly with older workers is the issue of extending a contract for a period. Is that still lawful under the new rules?

Jennifer: Yes. Our employment equality legislation set out that it was not discriminatory for employers to offer fixed term or specified purpose contract to an employee who had reached the mandatory retirement age in an organisation. That is still permissible from a legal perspective. However, the concept of objective justification has also now been introduced by statute into the offering of a fixed term or specified purpose contract for an employee who has already reached mandatory retirement age.

What that effectively means in practice is if you have an employee who is retiring and let's take the mandatory retirement age of our listener - 66. As that employee retires under the mandatory retirement age of 66, but for handover reasons or because they're working on a particular project, for example, we want them to stay on a bit longer, maybe for a year or two.

We are allowed then to offer them a fixed term or specified purpose contract of employment. So, they retire from their employment in the normal course and then are offered a fixed term or specified purpose contract of employment for that additional period with the objective reasons as to why we are doing that set out.

So, ordinarily, it will be for succession planning, handover reasons, because we haven't found their successor yet or their successor has just started and needs a handover period or for example, there is a project, a specific project they're involved in and we require their ongoing input.

Scott: Okay. We'll be moving on shortly. We had a comment in there that somebody missed what you said, Jennifer. But just for everybody listening out there (I can't believe they did miss anything) I know Jennifer would say there will be a podcast of this sent afterwards and you can check about an hour or two after the podcast. We'll also have a transcript in a week or two. So, you'll be able to search that transcript and double-check the answers.

Q: Should the retirement age be stated on the contract of employment?

Just one question did come in there - you have stated and I think I'm correct in saying that the retirement age should be stated on the contract of employment?

Jennifer: Yes. Absolutely.

Scott: The objective justification doesn't have to be in there, but it should really be discussed with people. People expect to know when they're going to end employment.

Jennifer: Absolutely. I suppose absolutely the retirement age needs to be set out in the contract of employment because establishing an employer's right to mandatorily retire somebody at a retirement age is a two-step process. First of all, you must establish that there is a mandatory retirement age in the organisation in the first place. Secondly, you must establish there is objective justification. In order to establish there is a mandatory retirement age, it is best practice to have it stated in the contract of employment.

Alternatively, if there is no contract of employment or if the contract of employment doesn't state it, it may still be possible to establish a mandatory retirement age by means of custom and practice which implies the mandatory retirement age into the contract or by means of the pension scheme if the individual employee is a member of an occupational pension scheme, which may in and of itself mention a mandatory retirement age, which may, again, be implied into the contract of employment. A failure to have it in your contract in the first place will make it more difficult to establish that it is this.

Lastly, I think another very important issue for employers to think about in setting their mandatory retirement age is that they apply it consistently in the organisation in so far as possible. So, our advice in Ronan Daly Jermyn to our clients who are looking at maybe wanting to allow certain people to remain on beyond their retirement age for different reasons is yes, you can do it, but you do it by means of that fixed term or specified purpose contract with your objective justification that I discussed earlier.

Scott: There are a number of questions coming in. We're going to leave retirement ages there. Again, just for listeners, RDJ will be having an annual review, again, on the 1st of March in their Dublin office. You can register on their website, which is or indeed details will be sent after the broadcast as well and they'll be covered in Legal-Island's fortnightly review of developments articles.

Watch out as well for the "How Do I Handle It?" articles from RDJ as well that are sent out through Legal-Island. We'll cover a number of those questions. We won't get through all the questions today. There are hundreds of people listening today, so we're not going to get through all the questions. So, we will process them and do some work with them afterwards and, if necessary, have another webinar on something.

GDPR – Tips for HR Professionals

One thing that I think is going to strike the fear into the heart of everyone here are the next four letters, GDPR, every listener will know about these, Jennifer, if only because they know about the €20 million fines plus an extra €10 million for other issues after the 25th of May. We don't have time to cover the whole GDPR. But you want to focus on certain things, certain tips that HR professionals could look at in their own departments to get ready for the GDPR in time for May. So, what are these?

Jennifer: Yes, you're absolutely right, Scott. GDPR are the four letters that have the power to strike fear into all HR professionals and indeed all business professionals because GDPR is an issue that affects not just the HR department, but all departments across a business. However, undoubtedly, HR is one of the departments that is most impacted on by the implementation of GDPR. We are hurdling towards the implementation date of the General Data Protection Regulation, which is the 25th of May 2018.

It is a regulation. It is directly applicable and directly effective as and from that date. So, as and from the 25th of May 2018, GDPR will be in and all of the provisions of GDPR will be operative at that point. So, it is very important and I'm sure all the organisations listening to us this morning are proactive and have been looking at the whole concept of GDPR over the last number of months.

But I suppose we are because we are getting into such a short timeframe now to the implementation date. We have just three months left. HR professionals are reaching out to us and asking the question, "What do I really need to focus on now?" And I suppose from the perspective of the changes that will be implemented as a result of GDPR, the HR departments need to ask themselves very specific questions at this point in time.

Those questions are, "What data does my organisation actually hold about our employees? Where do we hold that data? Where actually is it? Is it in the cloud? What does that actually mean in terms of what jurisdiction that data is held?" Lastly, the most important question to ask, "Why do we hold that data and do we actually need that data about our employees?"

I think in asking those three questions, that is a very good starting point for all HR professionals in terms of what we have, where we have it and why we have it. Then we can begin to put some shape on how we keep that data secure and how we are accountable to our employees and how we deal with the processing of that data and in full compliance with GDPR.

Sensitive Personal Data

Scott: There are a number of bits of data that HR would keep. There's occupational health, there's the personal file, and such like. So, if we take maybe one or two of those issues and apply those questions to a disciplinary record or a referral for health records or something, what would you suggest along those types of lines?

Jennifer: Well, everybody would be familiar with the concept of a sensitive personal data, such as any data around a person's health or wellbeing or on their ethnicity. So, all of those pieces of data will continue to have a special level of protection. They've always had a special level of protection under our existing data protection regime. That will continue to be the case under GDPR. In fact, the concept of sensitive personal data is changing because under GDPR, they are called special categories of data but it means the same thing. Effectively, those categories of employee data require extra protection.

What that actually means is a question for HR in terms of where that data is held and how it's held, so how secure is that data. There is an additional obligation on HR professionals to ensure those special categories of data, or sensitive personal data as we have known it, is held securely and only accessed by those individuals who absolutely must have access to it.

So, while you might have a wider access, for example, for other parts of your HR file, such as your employees' payroll records, payroll don't necessarily need, in turn, to have access to the special categories of data, sensitive personal data. So, it’s very important for HR professionals to categorise the data they have and to think about how they're holding that data and how secure that data is. That's very, very important.

Q: How long should we retain a medical certificate?

Scott: So, if you took a medical certificate, how long could you hold that for? You'd have to analyse when it was issued, presumably, whether there's an ongoing health issue.

Jennifer: Absolutely. There are different provisions in play in terms of retention of HR records. So, we have a number of pieces of employment legislation, which set out certain retention period for records. So, they must be retained for a certain period of time. Where there is no statute provision, then you're back to the general principals of data protection and GDPR. And effectively, data must be held for no long than is necessary.

So, from the perspective of medical data, for example, you will need to maintain that medical data perhaps for as long as the person is out sick and possibly for a period of time after that. But you will need to really give critical analysis to how long you hold that data. I certainly have been asked to audit HR files, which hold data going back a number of years where there would be no justification for still having that data on the file at this point.

Q: When will the fines apply?

Scott: Okay. So, there's no justification, but you're not going to get a €20 million fine for having some old stuff on a file, are you?

Jennifer: Well, the risk is, I suppose - this is where I suppose HR is under the spotlight maybe more than other departments in an organisation. You're less likely to get a complaint. The general belief is you're less likely to get a complaint under GDPR from one of your customers than you are from a disgruntled employee.

Subject access requests are a very powerful tool for a disgruntled employee who may be thinking about taking a claim against you because in fact, the information they can gather from a subject data access request can be - is a much wider pool of information than might otherwise be available to them, for example, under a court order for discovery. Certainly, it is more likely that subject access requests are going to come from employees and/or disgruntled employees than they are from customers of a business.

Scott: And there's no cost to put those in anymore for anyone in any situation regardless of the justification it comes from?

Jennifer: Exactly. We had a cost, a small administrative cost of $0.60 or $0.35 under our existing data protection rules. That will be gone when GDPR is implemented on the 25th of May and there will no longer be a charge associated with making a subject access request. So, it's made even easier for employees to make that request.

Scott: So, if listeners want to know how long it can retain information generally, they can go onto the Data Protection Commissioner's website?

Jennifer: The Data Protection Commissioner's website is a hugely useful source of information. I think it's very important to note as well that while GDPR, the general data protection regulation in and of itself will become effective on the 25th of May 2018. There are aspects of the General Data Protection Regulation which leave it to the national authorities to determine how data protection is going to be handled from a national perspective. So, we have a general scheme of a new data protection bill, which will repeal our previous data protection legislation and implement a new data protection regime for us in Ireland.

One of the areas that the GDPR has allowed a lot of national scope for implementation of our own legislation is around the whole area of HR and employee records. I would urge all our listeners today to keep an eye on the Data Protection Commissioner's website over the coming months because we'll have the new legislation and we've been promised lots of guidance documents and lots of notes from our Data Protection Commissioner. It is a hugely useful source of information.

Q: Would preparation for litigation be justification for retaining records?

Scott: Yeah. Finally, just on this GDPR issue here, on medical records, if you're concerned that somebody may have some kind of personal injury claim or occupational claim, would that be justification for retaining it?

Jennifer: Yes. So, the threat of litigation and preparation for litigation is one of the justifications for maintaining records, maybe longer than might otherwise be the case. In that regard, you'd want to have some real threat as opposed to a background concern that the employee might issue a claim against you. So, you'd want to have some objective evidence that there was actually a real risk of litigation. But yes, absolutely, that is one of the grounds under which data could be kept maybe longer than might otherwise be the case.

Scott: Okay. There's a number of other questions coming in. I want to move on if we can come back to those maybe. GDPR is a big issue at the end.

Jennifer: Absolutely.

Scott: Legal-Island actually has a full day conference on ensuring your HR department is up to date and GDPR compliant on the 6th of March in Dublin. [Please note: The conference has SOLD OUT since this webinar was broadcast.]

We also do some e-learning. I think it's only €20 or €25 per head. For general e-learning on general data protection regulation updates. I'm sure there's loads of stuff on as well.

Jennifer: Absolutely.

Mobility Clauses

Scott: But if you have other questions, we may think of doing a specific webinar just on this issue. Moving on to the third issue, the contractual issue that came up in 2017 was mobility clauses and the right of employers to require employees to move location. Even with a written contract, that's not a given for employees. It's not an unfettered right - or for employers, rather, not an unfettered right. You raised an English case of Kellogg Brown & Root to emphasise this in Ireland. So, tell us about that and why mobility clauses are so difficult.

Kellogg Brown & Root v Fitton: Reasonableness

Jennifer: A very interesting case and a very instructive case from the UK, which would be persuasive authority here in Ireland and certainly useful case as a guide for HR practitioners and employers in terms of the whole issue of mobility clauses, which actually is something that does come up a lot in practice with employees moving premises.

For example, moving location because they've run out of space or because of customer demand, they need to move location. Employers often feel that because they have a mobility clause in their employment contract, they can simply rely on that mobility clause to force employees effectively to move with the organisation. But the Kellogg Brown & Root case in the UK reminded us that reasonableness is always an issue that employers must exercise all of their rights under.

So, while you may have a mobility clause in your contract and indeed you should have a mobility clause in your contract. So, you should have the right to request employees to move, that request, when it comes, must be reasonable in all of the circumstances. The issue in the Kellogg Brown & Root case, the issue that I think we were reminded of in that case was that is very much employee-specific.

So, what is reasonable to ask of me might not be reasonable to ask of you, Scott. So, it will depend on an employee's individual circumstances. And in the Kellogg Brown & Root case, the two employees who challenged the employer's right to exercise the mobility clause had specific reasons as to why the change of location of their workplace didn't suit them for commuting reason. The court reminded us in that case that mobility clauses, while they are important to have in an employment contract, they must be exercised always with this overarching umbrella of reasonableness by the employer.

So, where an employer is thinking about moving premises, that means they will have to give consideration to firstly, do they have a mobility clause in their contract? That is your first port of call in terms of requesting employees to move with the office location, but then a reminder, I think, that we all have to deal with individual issues or concerns that might be brought to HR's attention around that move of location. They must be considered on a case by case basis and what might reasonable for one employee might not be reasonable for another.

Scott: So, if we take an example, Cork traffic is bad, Dublin traffic is really bad. I come from Edinburgh. Traffic’s terrible. So, if somebody can't drive, that could be a specific reason for refusing to move. It might only have been moving two or three miles, but you're not on a bus route or the bus finishes early or you live in the country, those types of things. But for most people, it would be perfectly acceptable for that individual who doesn't drive or can't get the bus or the traffic takes an hour and currently, they can walk around the corner, those ones would be legitimately be able to say, "I'm not moving."

Jennifer: Absolutely, or, "I can't move because of those reasons or because of my difficulty in commuting." Those concerns can't be dismissed by an employer simply because they have a mobility clause in the contract. Those concerns must be addressed. Now, I think it's important for everybody to remember that reasonableness works both ways. So, an employee also has an obligation to act reasonably and to obey lawful instructions of the employer.

So, provided the employee is being reasonable and the employer is being reasonable and the party should be able to come to some accommodation, there can be situations like the Kellogg Brown & Root case where in fact the obstacles faced by the employee can't be overcome. In those circumstances, the employer might find itself in a situation of having to make an employee redundant because their role in the previous location is, in fact, redundant, because that role has moved to a new location. That is a cost and a factor that maybe an employer has not built into their office move. It's something additional that . . .

Scott: There's no minimum distance, really. It's each case on its merits.

Jennifer: It's very much case by case specific. That's very much what the Kellogg Brown & Root case reminded us.

Scott: And subjective dependent on the individual employee.

Jennifer: Exactly. So, as I say, concern can't and should not be dismissed and an employer should seek to address the concerns reasonably with the employee, who equally has an obligation to be reasonable with the employer in relation to the matter.

Zero Hour and Banded Hour Contracts

Scott: Okay. We're going to move on to another area now in employment law. Just in case you've missed anything here, we're live, but you can listen back to the podcast and you should have that with you in about an hour or two hours at the top, at most. The gig economy, zero hour, banded hour contracts and such, employment v self-employed status - these were huge areas, massive cases in the UK as well, with Uber and such like, Deliveroo coming through, big developments in Ireland, as well and the legislative programme. So, give us your take on where we are and where we should be in 2018 with regard to zero hour or banded hour contracts.

Employment (Miscellaneous Provisions) Bill 2017

Jennifer: Well, we now finally have a bill dealing with this whole scenario. We have the Employment (Miscellaneous Provisions) Bill of 2017, which has just been published and will wend its way through the Houses of the Oireachtas. So, this is certainly a developing area that HR practitioners and business owners alike need to keep an eye on over the next couple of months.

Effectively, everybody will be familiar with the report conducted by University of Limerick a number of years ago into concerns around the use by employers of zero-hours contracts. The interesting thing around that report is that the UA report, in fact, determined that the use of zero-hours contracts wasn't particularly common in Ireland. Actually, what was more common in Ireland is the use of a contract as and when required, so the casual-type arrangement that employers and HR practitioners would be more familiar with.

But in any event, concerns remained around the issue of zero-hours contracts. And the Taoiseach very much indicated that this was a priority issue on his legislative agenda when he became Taoiseach. So, effectively, as I say, we now have a bill published at the beginning of December.

The key objective, which is to improve security and predictability of working hours for employees on insecure contracts on those working variable hours. So, effectively, I suppose, the bill is certainly a welcomed development at this stage because there has been so much talk about what might happen in this area, but now we have a bill that tells us more clearly what the government is thinking.

So, a couple of highlights from that bill. I would urge everybody to have a look at it. But there are a couple of highlights from that bill, which I think are important to note today. Firstly, the bill sets out that core employment terms must be provided to employees within five days of starting work for the employer.

So, all employers that would be familiar with their obligations under the 1994 Terms of Employment Information Act, which require them to give employees at least a statement of main terms and conditions of employment within a two-month period of commencement of employment.

In fact, this bill, the Miscellaneous Provisions Bill 2017 now requires employers to set out certain core terms within five days of commencement of employment. Again, I suppose a reminder of how important it is for employers to have their paperwork in order in advance of employees starting.

Q: What happens if the worker is not furnished terms and conditions within five days of commencement of employment?

Scott: What would happen, Jennifer, if they don't get it within five days?

Jennifer: So, there are provisions under the bill for a breach of the legislation or proposed legislation if the employer fails to provide that statement within one month of the commencement of employment. So, there are actually provisions setting out that an employer can face prosecution for legislation arising from that.

So, very important that employers take note of that, that there is now this five-day limit for some core terms of employment to be set out those core terms into the name and address of the employer, the rate of pay, and hours of work. So, if employers fail to do that, then they're looking at maybe a fine, €5,000 or five months in prison. There are some serious sanctions set out in the legislation.

That's the first area I want to highlight under this bill because this bill is being very much talked about in the context of zero hours contracts. But it's just important to know that's not all that it deals with. The core terms of employment requirement applies to all employees, not just employees who are on casual contracts or zero hours contracts. There is also provision in the bill for minimum payments to be made to employees who were called into work for a period but sent home without any or significantly less work than was anticipated.

There is an outright prohibition set out in the bill on the use of zero-hours contracts except in the case of genuine casual work or emergency cover or short-term relief work. We haven't had a complete abolition of the concept of zero hours contracts, but they are now only to be used in exceptional circumstances.

Now, as I say, from my interpretation of the research number of years ago, it seems to me that zero-hours contracts were only being used by employers in exceptional circumstances in any event. So, that might not have a huge impact on employers, but they are now prohibited other than in those emergency situations or for genuine casual work.

Scott: That would lead me to think there has to be objective justification if you're going to use some kind of contract and somebody says this is really a zero hour contract, is there any really difference between ‘as and when’ contracts and zero hours because there's no obligation on the employer to offer any work? You would have to justify it somehow and say something outwith my control as an employer means I cannot guarantee work.

Jennifer: Yes. Exactly. And I think, again, you'll have to be able to show that it's genuine casual work. The concept of casual work in Ireland is always a difficult concept to define. It's not defined in statute. Different employers have different understandings of what casual employment actually means. It can actually be difficult to determine whether employment is genuinely casual or not. The idea of emergency cover or short-term relief work, they're probably slightly easier concepts for an employer to be able to demonstrate and show.

This is just a bill at the moment. It is, as I say, going to go straight through the Houses of the Oireachtas. We are likely to see some amendments to this bill. The hope would be that we would have a little bit more clarity as the bill does land its way through and before it becomes an act, then we might have more clarity on what these concepts actually mean and what this actually will mean in practice.

Scott: Okay. And just on the casual worker, I'm assuming that there are employers out there that use them. Should they leave and be rehired each time? If you have to issue those core terms, it might be the case that if there's a break, you'd have to issue core terms to these casual workers?

Jennifer: Absolutely. There are all sorts of legal issues that arise around that because under the fixed-term workers legislation, for example, there have been a number of cases where you have what employers would have considered casual workers who are employed on a seasonal basis and they might have had a break in the summer months or other months in the year and then are reemployed again for a particular season or a particular period.

The employer genuinely believes these were casual arrangements, when in fact there's a number of cases where those arrangements have been housed to constitute ongoing employment even during the periods where the employee wasn't working on the basis those periods were then deemed from a legal perspective to be periods of layoff. It is quite a complex area and I certainly would urge all employers to take advice before they enter into what they consider to be genuinely casual or seasonal work arrangements.

Q: Our current contract says your hours are flexible and as agreed with your manager, hours are set out six weeks in advance. Is this considered to be a zero hour contract?

Scott: We'll take one final question on this because it's quite an interesting one. I like this one. "Our current contract says your hours are flexible and as agreed with your manager, hours are set out six weeks in advance. Is this considered to be a zero hour contract?"

Jennifer: It could be. The other provision in the bill that I was just coming to is the whole idea of banded hours employment and the bill sets out a new right for an employee whose contract of employment doesn't reflect the reality of the hours worked over a period of 18 months. In that situation, the employee under this bill, the employee will be entitled to be placed in a band of hours that better reflects the reality of the hours they have worked over that period.

So, effectively what the legislation is saying is that if your contract says something similar to what this listener is talking about, but in fact the reality of the situation is that over the course of an 18-month period you have been working a particular type of work pattern, then you might be a banded hours contract and the employee is in a position to effectively take an application under this act to have their contract into banded hours contract and have their employment deemed banded hours employment.

Scott: So, effectively, there would be the minimum hours they should be getting paid in the period. Of course, if they don't get a contract that reflects the main terms, it's relatively simple. You get a €5,000 fine.

Jennifer: Potentially. I think I would urge that particular listener to have a look at the bill as it's currently drafted and keep an eye on this over the next few months as this bill makes its way towards our legislation.

Scott: Splendid. Now, we have ten minutes left to cover five cases. So, we'll zip through them. The first case I'm sure everybody's heard of. It's the Lyons and Longford case. It doesn't come much bigger than that case when it comes to the impact on internal investigations. It's all about the right to be represented legally and the right to cross-examine witnesses through many disciplinary grievance procedures and such like. So, tell us about it and why it's so important. There's now a proposed revision of the Code of Practice on bullying in the workplace. Tell us about that one, Jennifer.

Case Law Developments - Lyons v Longford Westmeath ETB

Jennifer: Well, the Lyons case, I'm sure all our listeners will be very familiar with this case. It did attract a lot of attention. At the time, Mr. Lyons was the subject of an investigation into complaints of bullying made against him by a colleague back in 2015. Number of instances cited - so, I'm going back a number of years, back as far as 2008. Not an unusual situation as employers and HR professionals will agree.

The employer then engaged an external HR company to carry out the investigation. That investigation upheld four allegations of bullying against the respondent, Mr. Lyons. At no stage during the process was the applicant permitted to cross-examine his accuser. That, again, would be unusual during the course of an investigation. Mr. Lyons appeals the outcome of the investigation. Again, not an unusual scenario where a policy provides for that.

His appeal was unsuccessful. He was then advised by the chief executive of his organisation that because his appeal had not been upheld, the investigation reports was considered to stand along with the findings against him. Then he requested to attend under their policy what was a stage four disciplinary hearing. So, effectively the most serious disciplinary hearing. But effectively, what the employer was saying that the purpose of the disciplinary hearing was only to determine the sanction that would be imposed against Mr. Lyons in light of the findings of this report, which had been adopted.

Mr. Lyons, because he was employed in the public sector issued judicial review proceedings that would be not a remedy available in the private sector, but an injunction application would be available in the private sector. So, you can have a similar application made by an employer. Here was a judicial review application where Mr. Lyons sought to judicially review the process that was being used by his employer.

In particular, the fact that he hadn't been afforded the right to legal representation and/or the right to cross-examine his accusers during the course of the investigation carried out by the independent external HR or consultancy. The case came before the high courts and effectively, the court held that there was a right to cross-examine and to legal representation. On the particular facts of this case during the investigation, the high court stated that where investigative processes could lead to dismissal, cross-examination is a vital safeguard to ensure fair procedures.

Now, obviously an outcome like that struck fear into the hearts of lawyers as well as HR practitioners. This was in our view a change in the law because it has always been the case that during a disciplinary process, there may be a requirement to allow legal representation and cross-examination of witnesses, but certainly, the understanding prior to the Lyons case was that an investigative stage, that full suite of rights wasn't available to an individual. The Lyons case appeared at first glance to change that.

But in fact - and I want everybody to take a breath now - the Lyons case was very much a case decided on its own facts. There have been a number of decisions issues post-the Lyons decisions which say something a little bit different, which is that the Lyons case was very specific to its own facts, effectively, as I said earlier, the chief executive had adopted the findings of the HR investigation and was effectively only using the disciplinary process for the purpose of deciding on the sanction.

So, Mr. Lyons effectively didn't really have an opportunity arguably to challenge the findings of the report during the disciplinary stage. Effectively, what the cases the that have been decided post-Lyons have said is that where the investigation is a fact-finding investigation only and where there will be a separate disciplinary process, then the full suite of natural justice and fair procedures does not apply its investigative stage, but it does, of course, apply at the disciplinary stage.

So, almost a restatement of the law as we understood it, which is that, of course, every process must be fair and every investigative process must be fair, but there isn't necessarily an automatic right to legal representation and cross-examination of witnesses during an investigative stage provided it is only a fact-finding mission and provided there will be a separate disciplinary process during which an employee will have the right if it is appropriate for them to have the right to have legal representation and potential cross-examination at that stage.

Scott: But at some stage in the disciplinary process, there will be this decision made. They will come to the conclusion that somebody's done something wrong. And, of course, it covers bullying/harassment-type things and damage to reputation. This was a constitutional right that was argued before the High Court. It seems to me anyway that the argument is that at some stage in the disciplinary process, where those decisions have been made of right and wrong, the employee, where dismissal could be one of the outcomes, has a right to legal representation and a right to cross-examine witnesses.

Jennifer: Yes. But that, in fact, has always been in the case. Under the Burns v Castlerea Prison case from a number of years ago, which again, HR practitioners would be very familiar with, that case said that where there are complex facts in a particular scenario and where the person might lose their job as a result of the outcome of a disciplinary process and where that individual seeks the entitlements to have legal representation, they should be afforded that right. In fact, we would always say to our clients from a practical perspective if somebody asks for that right at a disciplinary stage, let them have it.

Ultimately, if a lawyer is there with them at that stage, it would be very difficult for them to challenge that process subsequently because they've actually participated in the process. So, in fact, it has always been the case that where somebody might be at risk of losing their job, that it would be a good idea if they ask for it to allow them the right to legal representation.

The other distinguishing factor, I suppose, in the Lyons case was that the employer's dignity at work policy under which the investigation was being conducted specifically excluded the concept of legal representation at all and the High Court again really honed in on that. So, what we're saying practically to our clients is certainly set out what representation employees are entitled to have during the investigative stage, so if it's a colleague or a co-worker or if you're a unionised employer, maybe you would allow a trade union representative and certainly state that, but don't specifically state that they won't be allowed.

Scott: Just don't refuse it. If somebody comes forward and you're making those decisions, you're going to have to give them the right or face difficulties down the line.

Jennifer: Potentially at the disciplinary stage. Perhaps not at the investigative stage. Again, what would be very important for employers in these scenarios is their wording around what the investigation is actually achieving would be very important. So, the fact that the investigation is just a fact-finding exercise, that the purpose of the investigator - again, the terms of reference of your investigator should very much set this out.

Scott: And the role of the representative - can they cross-examine directly or are they just there to questions through the chair if they're looking to challenge...?

Jennifer: Again, it depends on what your policy says. It will depend on the individual circumstances of each case. Some policies said it very clearly that it's not a representative, but it's somebody to accompany you and support you as a support person and that their role, therefore, isn't to answer questions on your behalf. Certainly, if an employee is being asked questions in the confines of investigation, they should answer those questions directly.

If you were in a disciplinary context and you were in a situation where it was appropriate on the particular facts of the case to allow legal representation and cross-examination, you could potentially be in a situation where a legal advisor would be cross-examining witnesses. That's not a particularly pleasant prospect for any employer to have to deal with . . .

Scott: Certainly not pleasant for an employer because they have a duty of care. So, if somebody alleges that I bully them and I then go into a disciplinary hearing, saying, "I'm going to speak to you again," and I bully you again through the way that I question them the employer leaves the person making the allegation open to further damage at work.

Jennifer: I think one of the important things after the Lyons decisions - as I say, it did attract so much publicity and so much talk about it at the time, was that you know, I was reading lots of articles and online and some were suggesting that every witness to an investigation or a disciplinary process could effectively be hauled in and cross-examined. I would say certainly from a legal perspective that is not the case because the principles of natural justice and fair procedures set out that an individual is entitled to cross-examine their accuser.

So, from the perspective of bullying at work investigation - again, it will depend very much on the individual circumstances of each case, but while there might have been entitlement to cross-examine the complainant in the context of a disciplinary hearing, they would necessarily have the legal entitlement to cross-examine every single witness that has given evidence to an investigation. Of course, employers are very concerned about that because employers have said to me how are we ever going to get any witness to cooperate with an investigation if they feel they can be subject to legal cross-examination, ultimately as a disciplinary hearing.

So, I think everybody needs to take a breath when they are faced with a request for legal representation and cross-examination, they should take advice very carefully in terms of the individual circumstances of their case. I think the entitlements and the rights of employees are not as broad as might have been first feared in the Lyons case. The Lyons case very much stands on its own facts and has been distinguished in other cases, subsequently.


Scott: Okay. We are actually out of time, folks. So, I don't think we're going to get through the other cases. I'll have a word with Jennifer and her colleagues here at RDJ just about how we're going to deal with that in the future. We like to try and fix a time if we can and deal with the questions there are about what we do with gender pay gap and future developments. So, we'll take that on board.

Just a couple of things - the other cases we had hoped to cover, you will find reviews of them on the website along with issues about data protection and training and so on. Of course, you can register on the website and you'll also find reviews of those cases that have been mentioned. You'll also find you can register there for their annual review themselves that will happen on the first of March in Dublin.

And if you're really interested in the annual reviews and you want to put something in your diary, the annual reviews of employment law, which will of course feature Jennifer as well, are on the 1st, the 15th, and the 28th of November this year. If you want to put one of those in your diary, that would be fantastic. We will be in touch with everybody. We'll send you a podcast of this. You'll get the transcript and we'll come back with other webinars in due course. Thank you very much for listening. Thank you very much to Jennifer.

Jennifer: Thank you, Scott.

Scott: Hope to hear from you all soon. Take care.


This article is correct at 31/01/2018

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Jennifer Cashman
Ronan Daly Jermyn

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