Jennifer Cashman's Employment Law Update (May 2018)

Posted in : Webinar Recordings on 18 May 2018
Jennifer Cashman
Ronan Daly Jermyn

Jennifer Cashman, Partner at Ronan Daly Jermyn updates some key employment developments of the year. Jennifer discusses focus on the decision of the High Court in Hurley v An Post, a workplace bullying case where the employer was held liable for damages suffered by an employee caused by a one-off incident at work. The claimant was awarded €161,133. What lessons might this case have for other employers faced with interpersonal disputes between colleagues?

Jennifer also covers important topics that have been brought into focus by five recent cases:

  • Cox v RTÉ – age discrimination and retirement
  • Genockey v BOI – pre-employment conditions
  • Carron v Fastcom – legal and litigation privilege
  • UPC Communications Ireland Ltd (now Virgin Media Ireland Ltd) v EAT – date of dismissal
  • Castolin Eutectic Ireland Limited v Kita – insubordination and reasonable instructions

Transcript

Please Note: This is a direct transcript of our recent webinar. It may not read as well as a written article would.

Cox v RTÉ – age discrimination and retirement

Scott: The first case we’ll discuss is Cox v RTÉ. That case concerned age discrimination and compulsory retirement and objective justification of enforced retirement. The use of fixed-term contracts to expend retirement is permissible but that also has to be objectively justified. The WRC Code and IHREC guidance reflect that.

Jennifer: And employers do use the fixed-term contracts to keep employees in employment beyond the normal retirement age. I'd urge all HR practitioners in particular who may be currently drafting retirement policies and using the WRC code of practice on working longer to do so to also review the IHREC guidance documents which can be found at www.ihrec.ie and it will be important for HR practitioners to just have a look at that guidance document also when drafting their retirement policies.

So, as we mentioned, a high-profile case that came before the WRC recently was the case of Cox versus RTE. Everybody will be familiar with Valerie Cox. She's a very high-profile journalist and broadcaster with RTE. She argued in this age discrimination claim before the WRC, but RTE had discriminated against her on grounds of age by forcing her to retire at age 65.

Now, this case is an unusual case, in some ways, because Valerie Cox, in fact, had two contracts of employment with RTE running concurrently. She had a full-time contract of employment which commenced in 2004 until March 2016 on which date she retired on the grounds that RTE had a compulsory retirement age of 65. And for that full-time contract, she was paid an annual salary in the normal way

She also had a separate casual or irregular contract of employment, which commenced in August 2003, for which she was paid a daily rate. In relation to that contract, the termination date was in dispute. The employer appeared ultimately before the WRC to argue that that contract terminated also in March 2016 on the same date that they terminated her full-time contract of employment, which is the date, as I say, when she reached her 65th birthday.

What happened is that Valerie Cox issued two claims to the WRC in February 2017. She issued a claim for age discrimination in respect of her compulsory retirement from her full-time employment. That claim ultimately failed because on a preliminary point, which was she hadn't issued the claim in time. Practitioners would be aware that in the WRC, all employment times must be issued within six months of the date of the alleged occurrence or the breach by the employer or 12 months for reasonable cause.

Now, while Cox was in the 12-month time period, she was well inside six months' time period. Her employment terminated in March 2016. Her claim was issued in February 2017 and the WRC determined that there was no reasonable cause shown by Miss Cox for the failure to lodge her claim within the initial six-month time period.

So, the question of whether or not RTE had discriminated against her on grounds of age in respect of the termination of her full-time contract was never, in fact, challenged in full before the WRC because it failed at the first hurdle, which was that it was out of time. However, her second claim of age discrimination in respect to her casual and irregular contract of employment was deemed to be within time.

So, that claim was lodged before the WRC in March 2017. Now, obviously, if it had been accepted that contract had also terminated in March 2016 along with her full-time contract, which is what RTE appeared to argue before the WRC, then obviously, she would have also been out of time in effect of that claim and that claim would have failed.

However, the WRC in hearing the evidence determined that, in fact, it wasn't until December 2016 that Valerie Cox become aware that RTE were making the case that she was no longer going to be given any work under her casual and her regular contract of employment on the basis they had effectively compulsorily retired her in March 2016.

So, the facts of the case that were in dispute—Miss Cox had a pre-retirement meeting with RTE in February 2016 that was accepted by both parties and that was in accordance with the RTE staff handbook, which provides for a pre-retirement meeting in advance of your compulsory retirement.

Valerie Cox said in her evidence that she was told at that stage in February 2016 that while her full-time contract would terminate on her retirement in March 2016, a period of time would then have to elapse between her retirement and being placed back on the roster under her casual or irregular contract of employment, but in fact, that didn't happen. She wasn't placed on any roster. She said it was only in December of 2016 the then acting MD of RTE told her in fact that she would not be placed on the roster again on the basis she had gone beyond the compulsory retirement age as and from March 2016.

So, an interesting case because under her full-time contract of employment, Valerie Cox is a member of the RTE defined contribution pension scheme, which did provide for retirement at age 65. However, under her casual or irregular contract of employment, she was a member or she was entitled to join RTE's PRSA, so there wasn't a defined contribution pension scheme attached to the casual irregular contract. There was a different system established and effectively, RTE had entered into an arrangement with a PRSA provider to enable Miss Cox to participate in a PRSA. That made obviously the casual or regular contract different from her full-time contract.

In the WRC, the adjudicator who heard the case said they had examined in detail the staff manual of 2006 which RTE had provided to the hearing and that dealt with the PRSA operated by RTE and what it said was that eight months before reaching his or her 65th birthday, a staff member in this category will be notified that he or she would be required to retire at age 65 if a decision accordingly has been made.

So, effectively, the wording of the staff handbook was somewhat ambiguous about the compulsory retirement age.

Scott: That's not that unusual when it comes to casual staff, for instance, because they don't have regular employment. So, it wouldn't be surprising that you might take it that way. I think because of her job, I think there were a number of people who wouldn't retire at that particular age. There were a number of well-known TV personalities for instance that would work past 65.

Jennifer: Yes. So, again, absolutely, Scott. In her evidence, Miss Cox had pointed to two other people working on the same programme to which that roster related who were over 65. Now, in fact, they were independent contractors as opposed to the employees of RTE, but again, she argued that it was acceptable for people to work beyond age 65. Of course, that combined with this ambiguous wording in the staff handbook, which provided for you being notified of your retirement at age 65 if a decision had been made, that is not a definitive wording which sets out that you must retire at age 65.

Scott: So, what would be the import then of this case for other employers? What are the practical lessons?

Jennifer: So, effectively what happened was RTE argued that there was a compulsory retirement age of 65 attached to this casual and irregular contract that was rejected by the WRC because of this ambiguous wording in the staff handbook. RTE also sought to objectively justify the retirement age because as we discussed in our last webinar, while it is acceptable for employers to set a compulsory retirement age in employment, they must also be in a position to objectively justify why there is a compulsory retirement age.

RTE sought to do that. They used arguments about intergeneration of fairness, dignity, and respect in the workplace and ensuring the promotion of younger members, particularly in a broadcasting setting. They said that that objectively justified having a compulsory retired age of 65. But in fact, that was rejected by the adjudication officer in circumstances where it wasn't accepted that there was a compulsory retirement age in the first place given the ambiguous wording around the PRSA and the staff handbook.

Scott: Those justifications would be fine under the Code had there been a compulsory retirement age that was unambiguous. The problem was that the wording wasn't strong enough and certain enough and, on this occasion, no decision had been made to retire or she should never have been told to retire.

Jennifer: Precisely. So, again, from an employers' perspective, you must be very definite in terms of your wording in your staff handbooks and in your contracts. We see this all the time in practice where there are contracts that say one thing, staff handbooks that might say something slightly different or something more ambiguous and policy that says something else.

It's extremely important from an HR perspective to make sure that there is consistency and a definitiveness about your wording in your contracts and all of the supporting documentation around that, your pension scheme, your staff handbook, your policies and procedures, all of that must be quite definitive. Yet, absolutely, those objective justifications put forward by RTE have been established as acceptable objective justifications in other cases.

So, there's nothing to say that RTE wouldn’t have successfully defend their compulsory retirement age had they been able to establish that there was a compulsory retirement age in the first place. But how it works from a legal perspective is the first question is whether there is a definite retirement age that can be established from the employer's perspective and if so, then they must objectively justify it, but if you follow the first hurdle of being able to prove you have a compulsory retirement age in the first place, then you'll never get to the next hurdle of proving your objectives of the case.

Scott: There's nothing to justify that. That same logic applies with the new guidance on issuing fixed-term contracts because many employers would have somebody who is 65 and say ‘we want you to stay on for a particular reason or a particular period of time’ and that's got to be objectively justified and set out unambiguously as well.

Jennifer: Absolutely. I suppose in a way objectively justifying an employee staying on beyond retirement age by way of the fixed term or specified purpose contract of employment, which is permissible under the legislation is probably easier to objectively justify then having a compulsory retirement age in the first place because generally speaking, when somebody is due to retire, they may be working on a specific project that needs to be fleshed out, which would be acceptable objective justification for placing them on a specified purpose contract or there may be a succession issue in terms of they may need to hand over a period with their successor.

Again, they would all be acceptable objective justifications for placing the person on a fixed term or specified purpose contract of employment, which you must have that objective justification at that stage also and that has been established from a legal perspective and that's very clearly set out in the WRC code of practice and also in the Human Rights and Policy Commissions Guidance documents.

Scott: Okay. Thank you very much, Jennifer. You're listening to Scott Alexander from Legal-Island. I'm here with Jennifer Cashman at the Exchange Building in the IFSC in Dublin. If you're looking at your screen, you'll see there's a little chat box. So, if you want to send any questions in, we will take these scary questions live for Jennifer. So, send them on in. They will be anonymous when they come through. I won't read out any names.

Hurley v An Post – Bullying and Vicarious Liability

We'll move on to some other cases now. A recent one which just had the quantum awarded is the Hurley v An Post case. It was a workplace bullying and vicarious liability claim. Give us a bit of background about this because this could be a very important case for a number of employers and quite a few lessons to be learned.

Jennifer: Yes, Scott, an interesting case with not one but two decisions attached to it. So, the case, as you say, is Hurley versus An Post. Hurley was an employee of An Post who took a claim for personal injuries arising out of alleged bullying and harassment in the workplace against her employer An Post. Now, there were two decisions by the high court which have been issued, one in 2017, which is the decision of Mr. Justice McDermott which dealt with the liability aspect that in other words was An Post liable to Miss Hurley in respect of the allegations of bullying and harassment that she made.

So, the first decision issued in 2017 deals with the liability issue and then the second decision, which was only issued in the last couple of weeks, was the decision again as the same judge dealing with the quantum, so dealing with how much award should be given to Miss Hurley. Again, a high award, a total award in excess of €160,000. So, from an employer's perspective, a stark number.

Scott: And she was a part-time worker as well.

Jennifer: Yes, she was. I think it's important for employers to take a little bit of a breath in terms of the level of the award because the general damage aspect of that award is actually €50,000, which, to be honest, in a bullying and harassment case would be there or thereabouts. Most bullying harassment cases in our experience the quantum for general damages tends to be somewhere between €40,000 and €60,000. So, this fits squarely in the middle of that, €50,000.

What brought the overall award up to over €160,000 was that Miss Hurley had a loss of earnings claim as well because her employment had been terminated in 2011. So, the judge was looking at loss of earnings and there was a loss of earnings amount awarded to her in excess of €80,000.

Scott: If you're just looking at time, this is a case where the alleged bullying incident took place in 2006 and then other incidents happened because there's more than one happened in 2006. So, this is a long case. This is 12 years old before you get the final judgement. I can't even remember something that happened 12 days ago, let alone 12 years.

Jennifer: Absolutely. You're absolutely right from that perspective. Our court system can be challenging for everybody from that perspective. It is difficult to remember back to something that happened maybe a number of years ago.

So, just to give the listeners some background if they're not familiar with this case, effectively, Miss Hurley has established an incident with a co-worker in July of 2006, as you mentioned, where she suffered aggression at the hands of one of her coworkers, quite an aggressive incident, a once-off aggressive incident. She was out sick from work as a result of that once-off aggressive incident until mid-August 2006.

So, a couple of weeks off after the incident. She then returned to work in August 2006 shortly after the incident occurred, but it was on the return to work she said she experienced what she alleged was bullying behaviour on the part of her other coworkers arising out of what had transpired subsequent to this aggressive incident with her coworker in July 2006. Effectively, what happened was there was a complaint made by her about the aggressive incident in 2006 she then went out sick.

In the meantime, while she was out sick, the employer, An Post, took action in respect of this allegation that she made against her coworker about the aggressive incident. He was immediately suspended on full pay and ultimately his employment was terminated on foot of that. It transpired in the course of the evidence before the high court in this case that in fact, this particular coworker who had been aggressive towards Miss Hurley had been the subject of five disciplinary issues during 2005, so the previous year, two for performance and three for ignoring or failing to abide by management's instructions. He was then advised in June 2005, so just over a year before the incident with Miss Hurley that repetition could without warning lead to his dismissal. So, he was somebody who had been identified maybe as being a problem employee.

The interesting question from a legal perspective that came before the court was whether or not An Post was then in turn liable for this aggressive incident that occurred with Miss Hurley, given that they were on notice that this was a problem employee with whom they had disciplinary issues.

The court considered that question in some level of detail, but determined in fact Miss Hurley had failed to satisfy the court on the balance of probabilities, which is the threshold of proof that a court looks at in employment related cases, that Miss Hurley had failed to satisfy the court on the balance of probabilities that the court would conclude that An Post had sort of lost control of this particular individual that was aggressive towards Miss Hurley as their employee or should have regarded him as somebody that ought not to be out to associate at all with his coworkers because he was a danger to them.

So, what the court said was the court wasn't satisfied, that that was, in fact, the case and that the danger of this employee and his level of aggression towards his coworkers in fact only became obvious in this incident with Miss Hurley in July 2006.

Scott: So, it wasn't foreseeable to that extent. It was, in effect, in relation to her a one-off incident. It wouldn't meet effectively the definition of bullying, but she still won her case. It wasn't this incident on its own, but what happened after she complained and came back to work.

Jennifer: So, there was no vicarious liability on the part of An Post for that particular incident and to be fair to An Post they did take action against the aggressor on the basis that they suspended him and ultimately dismissed him

Jennifer: But then Miss Hurley alleged that on her return to work, her coworkers effectively began to isolate her and began to bully her effectively because they were upset at the manner in which her aggressor had been treated by An Post. So, she returned to work in August of 2006 and was then in work at An Post until late 2007. She said during that period of time, she was isolated. She was ignored. Her colleagues acted inappropriately towards here.

It was quite obvious there was an underlying tension between her and her colleagues because of what had happened with her alleged aggressor and therefore, effectively the court said that what they had to consider then was whether that conduct complained of, the alleged conduct of her coworkers, could objectively be considered to be repeated inappropriate behaviour, which of course, is our definition of bullying from a legal perspective in employment law. Then she would consider whether it objectively could be reasonably regarded as undermining Miss Hurley's right to dignity at work.

Effectively the court, having reviewed it, said that it was satisfied that the conduct of her coworkers towards Miss Hurley following her return was on the application of an objective test highly inappropriate repeated behaviour, which must reasonably be regarded as undermining her right to dignity at work. So, Miss Hurley effectively was in a position to establish that she was bullied by her co-workers in regard to the manner which they had treated her following her return to work.

Ultimately, it was An Post's failure to deal with that. That became the issue that held them liable in this case for bullying and harassment, so not the once off in aggressive incident, but in fact, the behaviour of her colleagues subsequent to that once-off aggressive incident.

Scott: I have some sympathy for the employer here because they did try and they went to Miss Hurley and she seemed to be evasive. They went to her colleagues. They saw nothing. They gave no evidence. It was very difficult for An Post to get anyone to come forward. However, going back to it, there was this petition where 73% of the workforce called for the reinstatement of the aggressor.

So, when you add those things together, they could have done more, I think, to explain some of the background, but then we're in a situation where they're maybe going to the rest of the workforce and saying, “You don't know what this guy is like. There have been previous incidents.” Following on from the suspension, there were some dreadful incidents in the workplace where the Guards were called and everything was getting completely out of hand. There were threats made. There were all kinds of things going on. They didn't really handle that very well, I think, is maybe fair enough.

You're almost caught between a rock and a hard place as an employer, where I fess up to this and I call the whole workforce together and say this is what's happening here. That's difficult, but that might be one of the lessons. You've really got this group bullying type of thing.

Jennifer: It's very difficult. You're absolutely right. It's very difficult for employers in these types of situations. Yes, you're right that the reaction of the aggressor when he was suspended and disciplined was very aggressive, not surprisingly, and the guards had to be called. Now, Miss Hurley was out sick when all of this was happening, of course. The coworkers were there when all this was going on and by the time she came back, coworkers have appeared to have developed a level of sympathy for the aggressor. Miss Hurley said effectively he appeared to blame Miss Hurley for what had happened to him.

The court, in looking at the evidence and considering all the evidence, it was satisfied effectively that the supervisors at An Post and the managers on the ground were fully aware of the tensions created on the shop floor. The court was satisfied they were aware at an early stage following Miss Hurley's return to work in August 2006, she was subjected to the behaviour which she had described.

Miss Hurley had an independent HR expert, Joyce Rigby-Jones from Voltedge, who gave evidence that the court said supported the proposition that an employer must have procedures and active intervention in the workplace if it's to fulfil its duty of care and support for victims of bullying in the workplace. In this particular case, the court accepted, An Post appeared to adopt the approach of 'put your head down, it will all blow over', and it didn't.

In fact, they said it wasn't enough, that An Post should have done more than simply say keep your head down and it will blow over and they should have had some level of active intervention in relation to it. On that basis, the court was satisfied that the employer was liable for the bullying and harassment which Miss Hurley experienced from her coworkers in the course of her employment and the court said that it was satisfied that An Post was aware of that and failed to address in any meaningful way.

Scott: So, what would be the practical lessons for our listeners here? There's a bullying incident. If it's a one-off, that's okay. You still have to deal with it, though. If there are these kinds of group things, what would be the practical lessons here from this case?

Jennifer: I think a one-off incident won't meet the threshold of bullying because it won't be repeated inappropriate behaviour. However, it might still be an inappropriate interaction between colleagues, which must be addressed in the workplace. And this idea, which is difficult for employers to manage and we come across this in practice all of the time and there are very practical difficulties in dealing with these allegations of shop floor bullying that still goes on, but effectively I think employers have to show a level of flexibility.

I think one of the things that came against An Post in the case from my reading and in the event of the decision, was that they were very rigid in terms of their policy and said Miss Hurley should have made a formal written complaint. Again, you have to have some sympathy for an employer in that regard because the policies and procedures are there for a reason in order that they can be followed by everybody.

But I think employers have to show a level of flexibility and perhaps an employer in those instances where they are concerns, there would be something going on at shop floor level which is very hard to tie down might bring in an external facilitator to have a look at what's going on in the workplace and talk to people and see if they could get some information. An employer has to be careful because there can be this whole idea of soliciting complaints as well.

Scott: That maybe ties in with a question we just had which says, "I'm finding more and more allegations of bullying in the workplace." Quite often, when it's investigation, it's personality clashes or when it's investigated, it's personality classes or people who just don't get along. What is the best way to deal with these types of situations?

Jennifer: That listener is absolutely right. We see this in practice all of the time. It's funny, actually, because we've had this discussion amongst my own team and there is eight of us in the office that do employment law all day every day and we've noticed in the last while, in fact, there are more and more disgruntled employees in the workplace and like that listener said, maybe personality clashes between supervisors and subordinates. They are difficult. They are difficult to deal with.

I think your culture from the get-go is very important. We always say when we're drafting dignity at work policies, we say to employers that it's very important in our view to put into that policy that mediation will always be the employers first choice in terms of dealing with issues that may arise between co-workers in the workplace and that the employer almost can't force people to go to the mediation, that of course, it must be voluntary.

But that you effectively devise your policy in such a way that people must actively consider the whole concept of mediation before they rush to saying they want a formal investigation because people are very fast to rush to, "I want this formally investigated. I want to be vindicated."

Scott: As soon as they do that, they take sides. They want to win. It's not a question of resolution. It's about winning as soon as you get to that stage.

Jennifer: Being vindicated can be a lonely place to be. Also, they are, nine times out of ten, I believe, bullying investigations very rarely establishes conducive findings of bullying. So, from that perspective, I think your culture from the start and maybe from the time that employees come in from an induction or when you're reviewing your policy, you get all your employees together and say look, "Nobody in work has to be your best friend, but people are expected to get on and interact with each other appropriately."

There are all sorts of things that feed into this, Scott. We have more diversity in the workplace in terms of different cultures. That can feed into these issues as well because different cultures interpret things in different ways. The Irish sarcasm doesn't always go down well with other cultures. So, that really all has to be addressed from the beginning and from the get-go and culture and culture has to be enforced. No point in leaving things fester and trying to deal with them then, you really need to get at the culture from the get-go.

Scott: It's quite clear form this case the waiting and seeing and hoping that it goes away just isn't the way to deal with it. It's not enough.

Jennifer: You need to take active intervention if you are concerned about anything and offering the people the option of mediation or where you're aware that there may be something going on, bringing in an external facilitator to talk to people might be one way of dealing with it. But it does have to be looked at on a case by case basis. It's not an easy area for employers. There is no point in pretending it is.

Scott: Okay. Thank you very much, Jennifer. You're listening to Jennifer Cashman from Ronan Daly Jermyn. We are here in Dublin at the Exchange Building as part of a series of webinars in association with the NCI. We're here for another 15 minutes. One or two things here coming through on the chat box. The audio seems to be going back and forward, but we've also been testing it elsewhere and they're coming back and saying it's clear.

The streaming if you want to listen back, which will be up on the website on Legal-Island's website in usually an hour or two hours after this broadcast, you'll find it's very clear. So, if you're watching the time, we've done about half an hour. You can move the little arrows up and listen to the parts that perhaps you missed. We'll also be transcribing it, so you'll be able to listen back. So, sorry about that, but I don't know what it is. I'll blame it on the internet if there is an issue or perhaps it's your equipment. That would be the Scottish sarcasm coming out there, Jennifer, and that doesn't always go down well either.

Genockey v Bank of Ireland – pre-employment conditions

We have another case here, Genockey against the Bank of Ireland. This is about wording and pre-employment conditions. So, tell us a bit about that case and we'll look at the lessons learned.

Jennifer: Yes, Scott. This is a good case because it shows an employer who did everything right and was able to successfully defend the claim that was taken against them. Interestingly, Miss Genockey was an applicant for a job in Bank of Ireland. She had been successful, but then the offer was withdrawn because of her failure to meet the appropriate educational qualifications, which were required for the role.

She took the claim to the high court for misrepresentation, negligent statements, and breach of contract against Bank of Ireland. So, quite a serious scenario from an employer's perspective to find themselves in the high court with somebody who never had, in fact, started work with them.

So, effectively, the background of this case is that Miss Genockey sent an unsolicited CV to Bank of Ireland in or around July 2013. She said in that that she had completed her leaving cert in 1997 and that she had received three honours and four passes in her leaving certificate. Ultimately, in her evidence with the high courts, it transpired these results—she admitted that these results did not reflect what she had actually received in her leaving certificate.

In any event, there were no vacancies at the time she sent in her unsolicited CV. So, Bank of Ireland emailed her and told her they would keep her CV on file in the event there was a position opening up. In October of the same year, in October 2013, she was then contacted by Bank of Ireland, with the view to interviewing her for the position of loans administrator. She was asked to bring with her to that interview a completed and signed Bank of Ireland application form and original proof of her qualifications, which would have been proof of her leaving certificate results.

She did attend the interview and she did bring the completed application form, but she didn't bring proof of her qualifications with her. The application form, which became very important in the evidence before the high court, raised several points. It stated that all applicants to Bank of Ireland, would undergo a pre-employment screening process. It also said that additional documentation would be required of candidates prior to commencing employment. So, it was making it clear that there were additional documents that candidates would be asked for before they, in fact, commenced employment. That set out that included original documentation with regard to the required educational qualifications for the role.

The application form also stated that an offer of employment is subject to verification of education and qualifications and proof of identification. So, a very clear statement from Bank of Ireland about what was required from the pre-employment perspective. That became very important from Bank of Ireland's perspective.

Scott: I suppose if we consider the Cox and RTE case, which was ambiguous wording. Here, what it seems to the employer, is the unambiguous wording saying we're going to check things.

Jennifer: Yes. Even further than that, when it came to the high court, effectively, Miss Genockey's case, her allegation was that she received an unconditional offer of employment from Bank of Ireland in a telephone call subsequent to her interviews. But they had called her after her interview and they had told her that she had been successful at the interview.

She said that was an unconditional offer of employment and that she was effectively had been advised to hand in her notice to her existing employer, which she did and she said that she therefore acted to her detriment with her existing employer and given that it was an unconditional offer of employment with Bank of Ireland, they should be forced to proceed with that.

The HR representative from Bank of Ireland who had that telephone call with Miss Genockey after the interview very honestly said she couldn't recall exactly what had been said or what she had said in the telephone call with Miss Genockey.

So, she was very honestly saying—this is back to people's memory when things come for hearing, "I can't remember the exact telephone call, but I can tell you what my usual procedure is when I'm ringing candidates after interview. I would inform them that any offer from Bank of Ireland is subject to successful completion of our pre-hire screening checks because again, back to the application form, they had very significant and very clear higher screening checks."

So, the HR person said, "Look, I can't tell you exactly what I said, but I can tell you that this is my custom and practice and what I usually say to candidates." Because we have this screening check. And effectively, the court accepted that and said that effectively there was no doubt, that the offer that had been made to Miss Genockey was, in fact, subject to certain pre-conditions.

Scott: So, she, the HR person gave evidence, but what supported that was the fact that in writing that backed up what she was saying, where it’s one bit of evidence against another, but of course, in this particular case, the claimant had lied, in effect. She failed maths but said that she passed. Passing maths, certainly, would be quite important in the Bank of Ireland.

Jennifer: In fairness, what the court said in the case, Scott, was they believed the plaintiff, that she had overstated her results unwittingly.

Scott: OK, I withdraw that remark.

Jennifer: She said, "Look, it was 1997, this is 2013. I have never been asked for my leaving cert results in any job I've applied for since I left school. I forgot. I didn't remember what they were." In fairness to the court, they accepted her evidence in that regard.

But effectively, the courts said that when we accept the two unwittingly, it overstated her results. It was made clear by Bank of Ireland that a term of her employment would be that must satisfy certain educational criteria. You're absolutely right. She was going to be working in the loans administrative department of Bank of Ireland. So, maths with a very important precondition for that.

The court said, therefore, she didn't meet the criteria, which Bank of Ireland clearly set out and therefore that they had been entitled effectively to what they refer to Bank of Ireland dismissing here. In fact, what would have happened is they'd have withdrawn the offer and she'd never commenced employment with the Bank of Ireland.

Scott: We have a couple of questions coming in the chat box. You're listening to Jennifer Cashman from Ronan Daly Jermyn. She will, of course, be the lead speaker at the annual reviews of employment law from Legal-Island there in November. We had our first booking in yesterday. We haven't advertised it. But they will be on the 1st, the 15th, and the 28th of November this year. Just on the chat box there, looking back on the bullying case, what are the implications of the Supreme Court's judgement regarding outrageous behaviour and such that came through, Ruffley.

Jennifer: Yeah. The Ruffley decision, as legal practitioners, I suppose raised the bar effectively in terms of what will constitute bullying in the workplace. As a result of that, certainly what we've seen in practice since the Ruffley decision is that we've seen more claims now against employers for stress in the workplace, so maybe not alleging bullying because maybe individuals are concerned that they won't meet the high threshold now that has been set out and that effectively they will argue that they were suffering from work-related stress.

Scott: So, there was pressure put on them that didn't quite meet the definition. Even if we go back to the An Post one, this chap, if it's been accepted, swore in this woman's face. That would meet the definition. If there were a campaign of ostracising an employee, that would probably meet the definition as well, wouldn't it?

Jennifer: Yeah. I suppose the instance with the aggressor was a once off incident. By that, while it's a very serious incident, it wouldn't meet the definition of bullying . . .

Scott: Because it was one-off.

Jennifer: But had it happened twice or had it been foreseeable because they'd done nothing . . .

Scott: Absolutely.

Jennifer: But the court decided that the behaviour of her coworkers was bad enough to constitute because it was a repeated campaign in the court's view. I suppose there is a subtle difference between the An Post case and the Ruffley case. In the Ruffley case, essentially Miss Ruffley was alleging that she had been bullied by the employer, so by the corporate entity almost in terms of how they were dealing with her in terms of a disciplinary procedure.

I suppose the court was, I think in that case, in my humble opinion very keen to ensure that there was no message that went out just because an employer is disciplining somebody that they have been bullying them, there must be reasonableness, obviously the employer must be in a position to discipline them. So, there is a subtle difference between the two cases in terms of what was being alleged and who it was being alleged against, which probably goes to the findings as well.

Now, there's nothing to say that if Hurley wasn't appealed to the Supreme Court that the Supreme Court could determine that impact that it didn't meet the definition so from that perspective it certainly is possible that that could be challenged in and of itself.

Carron v Fastcom – legal and litigation privilege

Scott: We have five minutes left. You're listening to Jennifer Cashman from Ronan Daly Jermyn. I'm Scott Alexander from Legal-Island. We have three cases. Let's get to the nub of these cases. The first one, I suppose, is a relatively simple one, but an important one from a lawyer's point of view as well as an employer's and that's Carron v Fastcom. It's about legal and litigation privilege. What's the difference and why is it important that employers know about this?

Jennifer: This is a very relevant case because it's a 2016 decision that was issued by the then Employment Appeals Tribunal, EAT, which is now the WRC. But this is a relevant case because we're one week away from implementation of GDPR and we couldn't possibly have a webinar without mentioning those four letters one week before implementation.

We do expect as practitioners that arising from GDPR and arising from the increased level of awareness among individuals about their data protection rights that there will be an increase in data access requests from employees to their employers and the Richard Carron and Fastcom case becomes very relevant from that perspective because we see in that case effectively—it was an unfair dismissal case that ultimately came before the EAT but as a preliminary issue. The EAT in the case went back to determine whether communications between the respondent employer and their representatives, Peninsula Business Services, who are an HR consultancy, were privileged either on the basis of legal advice privilege or litigation privilege.

So, there are two distinct types of privilege that can be claimed over certain documentation and consequently, the employer can say, "I'm not releasing this documentation to you under your subject access request on to data protection because it is privileged either by way of legal advice privilege or by way of litigation privilege. Effectively, in this case, what was determined was that legal advice privilege only attaches to communications between a lawyer and a client and vice versa.

Scott: So, if somebody's taking GDPR and you go to your HR advisor and ask for information and there hasn't yet been a claim, it's not protected. There's no privilege there. But if you go to Jennifer Cashman or some other expert in GDPR who's a lawyer, that would be privileged, but Peninsula were a protector or the discussions and communications between them and their client became privileged once the claim goes in. So, once there's litigation and you know about a claim, that's when it becomes privileged.

Jennifer: Exactly. So, legal advice privilege only arises between a lawyer and a client and vice versa. Litigation privilege, which is a separate type of privilege, can extend to communications between a lawyer or the lawyer's client and a third party, where they are prepared for the purposes of litigation, so effectively for the purposes of litigation either existing or in real contemplation at the time and in this case, once the employer became aware that the employee was issuing a claim to WRC as it is now, then effectively communications with Peninsula became privileged at that stage. In fact, as it happened, the individual in Peninsula who stepped into the breach at that stage was a qualified lawyer in any event.

Prior to that, the legal advice privilege for strategy, all employers will go to their HR consultants and/or their employment lawyers maybe for some strategy advice trying to diffuse an issue trying to help it prevent becoming litigation. And those communications were not privileged on the basis that they were not between the employer and a lawyer. So, very important.

Scott: Because they're not privileged, they could be accessed. You could get discovery. They could be used in proceedings later on because they were pre-claim.

Jennifer: A subject access request into data protection is a very powerful weapon for an employer or former employer and their lawyer in terms of getting access to information, which to be honest they might not even get under a court order for discovery because a court order for discovery is very limited in what you could gather in terms of documentation, whereas the subject access request is much broader. We do expect there to be an increase in subject access requests once GDPR becomes effective next week.

UPC Communications Ireland Ltd (now Virgin Media Ireland Ltd) v EAT – date of dismissal

Scott: Well, there you go. Thank you very much, everybody, for listening. We're coming to an end. I don't know that the people have this time or not to listen to too much more of these things. We've still got the two cases. So, why don't we take two minutes, just the key lessons? There's UPC Communications Ireland, which is now Virgin Media. That was about the date of dismissal.

Jennifer: Yes.

Scott: What's important about the date of dismissal?

Jennifer: The lesson for employers from the UPC Communications case, an October 2017 case is that where you are dismissing an employee and where there is an appeal mechanism available to them, you must make it very clear in your original dismissal letter, your termination later, that the dismissal takes effect immediately, notwithstanding their right to appeal and that if they appeal and they're successful in their appeal, they would be reinstated to their employment, but that dismissal takes effect from the date of the original dismissal under the disciplinary procedure.

In UPC, if the employer failed to do that, there was ambiguity around what status the employee had been the date they initially terminated her contract of employment and the date her appeal was determined even though her appeal was unsuccessful from her perspective. So, very important for employers in an original termination letter to set out very clearly what that means from an employment perspective.

Scott: From an employee's point of view, it might mean you put in a claim form before you had your appeal or before the process is completed potentially.

Jennifer: Potentially.

Castolin Eutectic Ireland Limited v Kita – insubordination and reasonable instructions

Scott: Castolin Eutectic Ireland against Kita—what's the lesson here? It's about insubordination and reasonable instructions?

Jennifer: One of these cases unfortunately where doctors differ. The WRC upheld the dismissal of the employee in this case for what the employee described as gross insubordination. The fact of the dismissal itself wasn't in dispute. The WRC, the adjudication officer who heard the case accepted that the employee had been guilty of gross insubordination. However, the labour court reversed that on appeal and awarded the employee €10,000 in compensation.

Effectively what the labour court said was that it was satisfied that the employee had failed to follow a reasonable instruction of his supervisor, but that the court was not satisfied, that failure to do so reached the bar for gross insubordination or method requirement in the circumstances of that particular case of being a substantial ground for dismissal.

The labour court went on then to find some procedural flaws in relation to the investigation and disciplinary process that had been applied to the employee rising out of that alleged gross insubordination. The labour court determined that's arising from the fact that they weren't satisfied that the case met the threshold of gross insubordination and arising from the procedural flaws in the process used to effect dismissal that in fact, it was an unfair dismissal. They did determine and thankfully from the employer's perspective that reinstatement was not an appropriate remedy or reengagement in all of the circumstances, but they did award the employee €10,000 in compensation, which was an expensive day out from an employer's perspective.

Scott: So, all in all, I suppose the lesson for most of the cases today is about clarity. Being ambiguous is not very clever when it comes to . . .

Jennifer: Clarity and consistency, consistency of treatment of employees and clarity in your documentation of particularly where you are implementing new policies and procedures. There's a lot of it happening at the moment because of GDPR. You must cross-reference your documents and make sure there is no element of ambiguity between any of your documents and that you're very clear and consistent in the message in which you're delivering to your employees.

Scott: Thank you very much to Jennifer Cashman from Ronan Daly Jermyn. You'll get a transcript online, usually within a couple of weeks. The streaming will be available. You can listen back to this in an hour or so on the Legal-Island website. If you have any questions you want to send in for future broadcasts, answer the survey and let us know what you think. We hope to see many of you, both Jennifer and I at the Annual Reviews of Employment Law on the 1st, 15th, and 28th and November booking now. Bye, bye.

This article is correct at 18/05/2018
Disclaimer:

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

The main content of this article was provided by Jennifer Cashman. Contact telephone number is +353 21 480 2700  or email jennifer.cashman@rdj.ie

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