Ailbhe Dennehy's Case Law Review 2018

Posted in : Webinar Recordings on 24 January 2019
A&L Goodbody
A&L Goodbody
Issues covered:

In this session, Ailbhe Dennehy revises what she considers to be the top employment cases from 2018 and sets out learning points and takeaway actions to put into practice.

Cases covered in this session include:

  1. Dunboyne Castle v Ribiero; Castle Durrow v Young; A Banker v A Bank – whether an employer's decision to dismiss is within the range of reasonable responses and the importance of impartiality and independence at the investigative stage;
  2. Hurley v An Post and McCarthy v ISS Ireland – an update on workplace bullying case-law before the High Court and Court of Appeal;
  3. O'Hara v Kepak – to what extent are employers liable for employees exceeding the maximum weekly working hours by logging in to the digital workplace before and after hours?
  4. Nano Nagle v Daly – following the Court of Appeal decision in February 2018, what's the current position on the extent of employers to reasonably accommodate employees with disabilities?

Listen to Ailbhe set out the factual background, what the relevant court decided and what this means from a practical perspective for employers, as well as answering your peers' questions.



Scott: Good afternoon, everybody. My name is Scott Alexander. I'm from Legal-Island. I'm here with Ailbhe Dennehy, Senior Associate of A&L Goodbody, the employment, pensions, and incentives team. Ailbhe spoke on case law developments at the Annual Review on Employment Law 2018 conferences last November.

This is a follow-on webinar, a kind of catch-up for anyone that was there, but also if you weren't and you just fancy doing better revision on the key cases that we've looked at over the past year and the impact that they have in Irish workplaces, then that's what we're going to be looking at.

Now, there's a little chat box on your screen. So if you've any questions as we go along, you can send them in and we'll try and deal with those specific questions. We'll keep them anonymous. I can see your name, but nobody else can.

And what we're going look at the background to the cases, why they are potentially so important for the Irish employers, and the key takeaways. What should you do now as a result of these cases to improve your position, make you less likely to a future claim, etc.?

Investigations and Fair Procedures

Danceglen Limited T/A Dunboyne Castle Hotel & Spa v Fernando Ribeiro [2018]UDD1839

Okay. So Ailbhe, the first case that we are going to look at in fact, is going to be a series of three. The first one Dunboyne Castle v Ribeiro. But there are other cases that we're going to look at here to do, and they're to do with whether an employer's decision to dismiss is within the range of reasonable responses and the importance of impartiality and independence at the investigative stage. That ties in with we're chatting about this morning and our previous webinar to do with investigations, right to representation, fair process for procedure, and so on. Through 2018 and these cases here take a different aspect. So tell us a bit about on Dunboyne Castle and Ribeiro.

Ailbhe: Sure, yeah. Thanks a million, Scott. You're right. I suppose the theme of fair procedures in workplace investigations, disciplinary proceedings, and so forth are well known, and they come up in pretty much every case that employers or HR managers are likely to find on their desks.

So I suppose the theme I've taken today is just to look at the recent cases, so the 2018 cases, that are, I suppose, colourful in terms of their factual and specifics, which help us to remember the cases. But there are some very useful and practical key takeaways for HR managers and employers in terms of, as you say, hopefully staying out of the courtroom or at least having a good defence if we need to find ourselves there.

So this particular case, the Dunboyne Castle case, it's the one involving USB key secrets, and that's how I kind of remember it. So this particular case involved a night manager who had 10 years' service with Dunboyne Castle, and he was effectively dismissed for breaches of internet and email security policy. So in this particular instance, the hotel had found those breaches matched gross misconduct, and the only option was to summarily dismiss.

The employee was suspended on pay following the finding, shall I say, of a USB key on his person. And that particular key contained highly confidential hotel information.

So what I wanted to stress here in terms of the factual specifics of this case is that the hotel did everything right. They suspended him on pay pending the investigation, they put him on clear notice that termination of his employment was one potential outcome, and that there would be a separate disciplinary stage. Basically, everything was done by the book here.

As part of the investigation, they found that the employee had sent a number of emails to his personal Gmail account. And on those emails, it wasn't just hotel confidential information. It was actually confidential information relating to various hotel guests as well. So, you know, potential breaches of GDPR, which would, obviously, be very serious these days in terms of the level of sanctions and level of fines that could be applied.

So this particular case, as you mentioned earlier, Scott, it fell on the Labour Court to decide was the decision to dismiss here within the range of reasonable responses for this particular employer. And the decision was it absolutely was fair, it was reasonable. And they felt that the explanations put forward by the individual were very vague and generalised, and the type of breach of the internet policy, which was clearly set out, were extremely serious with potentially extremely serious consequences.

Scott: You really have to wonder why an employee has taken home personal, confidential information about your customers and the workplace.

Ailbhe: Exactly.

Scott: So, yeah, it would make somebody suspicious regardless of what happens. So they found that was okay, but there were issues about the way it was handled, in this particular case, Labour Court?

Key Takeaways

Ailbhe: No. In this particular case, the hotel . . . for a change, I would say, the employer did everything completely right. And the key takeaway here for your listeners is that, you know, notwithstanding the fact that this employee was effectively caught red-handed, hand in the cookie jar, he has this very offensive USB key and these offensive emails clearly showing flagrant breaches of internet policy. And as you said, Scott, why does he need that confidential information? Whatever the reasons were, that wasn't an expanded upon within the decision.

But my takeaway for your listeners is to very much avoid that knee-jerk reaction. Just because you've caught somebody with that hand in the cookie jar, don't forget all your good practices and your good policies and your need to actually do the right things. Suspend on pay, do the investigation, have a separate disciplinary stage. We'll get to that in a moment in terms of the separation of powers. But very much do your methodical step-by-step. "Kill the employee with kindness" tends to be the mantra, where if you do everything by the book, dot the Is and cross the Ts, you're in a very strong and robust position to defend that.

Scott: And that's what Dunboyne Castle did in this particular case here. The next one, which is also a castle . . .

Ailbhe: Castle Durrow.

Eugene Young v Towerbrook Limited T/A Castle Durrow Country House Hotel [2015] EAT Determination UD1598/2013

Scott: Yeah, Castle Durrow v Young. So what's the difference here then?

Ailbhe: So this is our second castle case, but that's kind of where the similarities stop, I guess. So this particular case, it actually went all the way to the High Court. There is talk of it being appealed at the Supreme Court. But for now anyway, it's gone to the High Court. And it's a case where not all the Is were dotted and the Ts were crossed, and this is where the employer is going to fall on its sword for that very reason.

Just by way of a bit of, again, a colourful background to help you remember the case, this particular case involved Mr Young, who was a handyman, a general handyman, on the Castle Durrow grounds. And he'd been there for a long time, since 2013 or even longer. And this particular case involved a very busy bank holiday weekend in June where Mr Young was trying to do deliver pastries and sandwiches from a nearby café to the back entrance of the kitchen of Castle Durrow.

Now there was a policy in place, and it was a well-known policy, and certainly Mr Young was aware of the policy, that rubbish bins behind the kitchen of the hotel were not to be moved in the mornings of Saturdays and Sundays so as not to disturb guests who, as you can imagine, were on a lovely weekend away in Castle Durrow looking to lie in.

So he knew about this policy. However, given that he was trying to deliver these pastries, ultimately, he made an executive decision, "Look, I need to move these rubbish bins and I need to get the cakes in the kitchen". That's the long and short of it.

So the managing director heard this alleged ruckus, came out, and the allegation was that an altercation ensued between the two men. And Mr Young alleged that he was poked and jabbed by the managing director, and insults were thrown, and there was a lot of shouting and swearing and so forth.

Ultimately, the managing director sent Mr Young home at told him to come back the next day and they'd discuss it. So when Mr Young came back the next day, for whatever reason the managing director wasn't there at that time, and a further exchange took place between Mr Young and the hotel's CFO, which effectively resulted in further altercation, and the CFO gave evidence later that she felt in fear for life and threatened, etc.

Significantly, and I'll pause on this point for a moment, it was the managing director who sent a letter to Mr Young suspending him on pay pending an investigation. Now, this investigation didn't really seem to take place factually. There doesn't seem to be clear blue water, as they say, between the investigation and the disciplinary process. And in any event, the personnel involved in the overall process were the managing director and the CFO. So you're in a situation where you've got judge, jury, executioner, effectively.

Scott: And witness.

Ailbhe: Exactly. Everybody involved in it... just there was no changing of the guard. There was no clear blue water between the various moving parts of this particular case. And this is exactly where this particular hotel, Castle Durrow, fell down and the High Court reinforced or certainly upheld the previous court's decision, because this was on appeal to the High Court, and they said it was inappropriate for the managing director to both investigate and determine whether disciplinary sanction was warranted. And there was a failure to provide an independent, thorough, impartial, or objective investigation. So ultimately, Mr Young was unfairly dismissed and the award of I think it was around €32,000 was upheld.

Scott: It's very difficult, in fairness to employers in this particular Castle Durrow here that if it's the senior employee or if it's a smaller employer and there are very few places to go where you see something happening to almost falsely create that kind of independence of thought.

But in the situation here, the MD sees someone do something, as far as they're concerned. It's almost impossible to have a fair investigation when you already believe what you saw the day before.

Ailbhe: One hundred per cent.

Scott: And then you go ahead, having had an investigation, to sit there and look at all the evidence again that you gathered, and then go through it. It was just mishandled. And I can see why people do it, but it's not going to help you before the Labour Court and the adjudication officer.

Ailbhe: Absolutely not. And in fairness, the managing director was being accused by Mr Young of having poked and jabbed him in the chest, etc. So you've got somebody who's accusing you of misconduct and you're that person deciding the outcome of this person's continued employment.

Key Takeaways

So yeah, I suppose that the takeaway for your clients is, you know, you need to come to these things with clean hands. You need to ensure some sort of a division in terms of decision-making. And I completely get that there are . . . certainly, we have a number of clients who, you know, you have small structures in terms of you effectively run out of people, and we haven't even gotten into the appeal stage and who would have heard an appeal. And it does happen in practice. And even with the best firm in the world, you're trying to identify, "Well, who will do the investigation? Who will then do the disciplinary? Who will hear the appeal?" and making sure everyone is kind of appropriately red-circled.

And it is a difficult and complex exercise. It is something I would recommend employers take the time to consider before launching an investigation. Try and red-circle your people to the extent possible. Look at your independent directors. Look at possibly bringing in an external HR consultant, or somebody of that nature, to maybe just do the fact-finding.

But you just don't want to find yourself in a situation where the person who did the investigation has to be the person that makes the decision, because you're kind of you're falling flat on your face straight away, unfortunately, from a fair procedures perspective.

A Banker v A Bank ADJ-00001266

Scott: Okay. There's a third case in this area, and it's a Banker v a Bank. So tell us a bit about that case and why it's important in the area.

Ailbhe: Yeah, again, just sticking with our theme in terms of fair process, this was the WRC adjudication officer decision, one which involved a banker, who was effectively managing his parents' bank accounts.

So the allegation was that's an incorrect rate of interest had been applied to this account, which resulted in his parents effectively getting a windfall of €18,000 as opposed to what apparently or allegedly... it should have been around the €7,000 mark. You see the gap there.

So the banker's position was, "Listen, I've been completely transparent here at all times. I didn't hide the fact that my parents were the account holders of this particular account". He had made this clear to his managers. And he pointed to the fact that there was a number of other checks and balances in here that were ticked off, other people signed off on his accounts on a monthly basis, etc. And from that perspective, there was no breach, there was no misconduct, there was no attempted fraud, notwithstanding the allegation being made against him.

So again, the adjudication officer had to consider here, similar to our theme - was the decision by the bank to dismiss this banker for gross misconduct within the range of reasonable responses?"

And the adjudication officer here, again, fact-specific, but looked at the case where, you know, this banker had used his work email address for all of his transactional instructions and emails on this particular account. This wasn't one of those cases where you have, you know, the sly Gmail or Hotmail or whatever where it's all kind of done under cloak and dagger. So there was real transparency in his actions.

The adjudication officer was also swayed by the fact that there was a significant amount of documentation attached to this account. It wasn't a once-off blessing by a separate manager. It was a monthly occurrence. A number of different people saw this account on a number of different occasions and it kept getting through. So from the banker's perspective, he was doing everything by the book.

Key Takeaways

So in terms of takeaways for your listeners, number one, you're looking at proportionality of sanction and whether or not the punishment fits the crime. And that's something that you need to be very mindful of, not just in this particular fact scenario, but, you know, in a situation where you have an employee with really good record, first offence. You need to weigh up all of those different pros and cons before you just hop to summary dismissal, because it is a very serious sanction, of course.

The other point I wanted to impart upon your listeners as a takeaway is that this particular banker had sought reinstatement to his position rather than compensation as a kind of recompense for unfair dismissal. And the adjudication officer was happy to do that, to award him or direct, should I say, reinstatement.

Now the bank objected and said, "Look, there's been a breakdown of trust and confidence and we've a fractious relationship here and so forth". And the adjudication officer made the point, "Well, if you felt so strongly about that, that case should have been made during the hearing and it wasn't".

So I suppose, as kind of an early point of consideration, if you think that reinstatement or reengagement is absolutely the worst thing that could happen for you, vis-a-vis your unfair dismissal case, you need to make sure that forms part of your argument in the defence and you set that out really clearly why it's not a workable option for you.

Scott: Yeah. I suppose it's about stepping back and saying, "Okay. If we relinquish control and allow an adjudication officer to make a decision, because we haven't settled it, they're going to take a fresh pair of eyes and look at everything around and they might just decide, 'Well, hold on. It's not strong enough to warrant dismissal. It's an understandable mistake'". It's what this chap was saying. And they might say in those circumstances, "Why shouldn't he go back to work?"

So it's always a risk. It's, I suppose, about analysing your risk there, is it?

Ailbhe: It's about analysing your risk. And in fairness, you'll be on notice of the type of recompense the employee is seeking, because there's a drop-down menu when you're making your complaint. So if you received a complaint form and it says that this person is seeking reinstatement, that needs to form part of your defence, and you need to have a robust reason why you couldn't possibly entertain that person coming back.

So if it is the case where you fall on your sword for whatever reason in the specific facts of that case, it isn't just, "Well, we're on the hook for at worst two years' remuneration". And of course, that's very rarely awarded.

But no, the more kind of pressing concern for HR or an employer is that, "This person could be back in our business and, you know, what are we doing then?" I mean, whether or not there is a fractious relationship, it may well be that for a host of other reasons that are not the desired outcome to have the dismissed employee back in the business.

Scott: Okay. For those that are interested, there's a conducting workplace investigations workshop through Legal Island. That's on the website. You'll find details. And that's on the 28th of February.

Workplace Bullying

The second area that we're going to look at is to do with bullying and other issues. We have another couple of cases that are fairly well known I would think, Hurley v An Post and McCarthy v ISS Ireland. So give us a bit of background on either one or both of those cases.

Ailbhe: Sure. So workplace bullying is always a big concern. If anything, it continues to be a hot topic for employers year in, year out. We're all very familiar with the infamous case now of Ruffley v Board Management of St Anne's School, which basically set a very high threshold on the legal definition of bullying, which is good for employers. There is a very high threshold.

But I suppose the cases I wanted to talk to you about today are effectively cautionary tales for your listeners. The first case, the Hurley/An Post case, which resulted in a very significant award, as well as the second case, the McCarthy/ISS case, they're both cases that concerned, I suppose, a lack of action on the part of the respective employers to stop a culture developing within the respective workplaces, which ultimately resulted in an unsafe place of work.

So it's a real culture piece. And I suppose what I'm what I was interested about when looking at these cases is the lack of action rather than even the action that's taken. So even sitting back and doing nothing can result in a very serious situation for employers vis-a-vis workplace bullying.

Hurley v An Post [2018] IEHC 166

So the first case, Hurley v An Post, again, just for a bit of colour, I'll run through some of the facts. Ms Hurley was a postal worker and she was involved in an incident with a co-worker, who reacted aggressively to her request to effectively pass some packages to her, and this co-worker was suspended.

However, it was the reaction of Ms Hurley's colleagues, who actually made her feel ostracised and isolated following this co-worker's suspension, coupled with An Post's poor handling of the matter that ultimately forms the basis for Ms Hurley's claims.

So it's useful to note that Ms Hurley raised this concern in terms of her ostracisation with the An Post HR manager in the first instance, and was simply advised that the matter would die down.

As she subsequently raised concerns with a separate supervisor sometime later, advising him that, "Look, things are getting worse, if anything. They're not getting better. I'm being frozen out and so forth", again, no action was taken. So, Ms Hurley, which often happens in these cases, ultimately went absent on stress grounds, a certified sickness absence for stress, and An Post later dismissed her for capability reasons, and she ultimately sued An Post for negligence, breach of duty, and breach of contract as a result of being ostracised by her colleagues.

Now, what's interesting here is that the High Court, bear in mind this is a personal injuries claim, did find that the conduct of those colleagues did amount to debilitating and humiliating treatment, and it did undermine Ms Hurley's right to dignity at the workplace. So that's the first box ticked.

However, it went on, and this is the kind of key takeaway for your listeners, to look at An Post's response and was highly critical of their lack of response and effectively allowing the behaviour of those colleagues to continue "unchecked", was the phrase the court used. And they also provided Ms Hurley with what they called "minimal support", basically asking her to ride out the storm in the hopes that it would pass.

So the court confirmed the employer's common law duty to take all reasonable precautions for the safety of its employees, and it pointed out the fact that given those circumstances, given that they were on notice of the various actions, it should have been reasonably foreseeable that this type of outcome could come to pass. And that's why the award of €161,000 in terms of damages was handed down here.

Scott: Which is a sizable amount.

Ailbhe: Right.

Key Takeaways

Scott: Again, I can understand the difficulties for employers, because you've got two groups of employees, or one employee and another group, and you either upset the group or you upset the one. But I suppose the takeaway, the bottom line is you have a responsibility to keep each individual worker safe. And, therefore, they should have been speaking to this group of workers, saying, "This has gone too far. However far it's gone, it's gone too far. It's moving into this area where somebody has been personally injured".

Ailbhe: Absolutely. And I mean, it very much depends on if you have a clear kind of grievance, allegations of bullying and harassment that are formally put down. Obviously, you're going to be triggering your kind of investigation duties and all of those good things. But if it's just kind of a general, kind of broad suggestion that everybody's freezing me out and everybody is making me feel unwelcome, it can be harder tackle that, just as you said, Scott. You've kind of got all your workforce over here versus this one individual. But you're absolutely right. You owe a duty to that individual.

So whether it's some form of softer measure, let's say, some form of training that should have been rolled out, or some form of additional support being given to Ms Hurley, whether it's an employee assistance program or something of that nature, "help us help you" type approach, there was just nothing that An Post could point to. They effectively did nothing, having been put on notice on a number of occasions of these concerns.

McCarthy v ISS Ireland Limited (Trading as ISS Facility Services) & Anor [2018]IECA 287

Scott: Okay. The other case, McCarthy v ISS Ireland, not a bullying case, but a similar type of thing I feel like.

Ailbhe: Yeah, this is kind of our misnomer here because it's in our bullying section, but technically it's not bullying, and I will explain myself. Ms McCarthy was employed by ISS Facility Services. She was a cleaning supervisor in a Limerick hospital.

And I suppose what happened is, over the course of two years, she experienced five separate incidents were various subordinate cleaning stuff allegedly acted in an aggressive or threatening or abusive manner towards her. And she raised these concerns or these complaints with her employer on each of the five different occasions over the two years, but effectively nothing was done. And again, similar to the Hurley case, Ms McCarthy ended up suffering stress and anxiety and so forth. She ultimately resigned from her job, the position being so untenable she couldn't possibly keep working there.

So she took a personal injuries claim before the High Court. And what's interesting here is that the High Court was actually critical of her claim to the extent that they said, "Look, this isn't workplace bullying. This isn't repeated conduct. This is five different individuals over the course of significant temporal gaps, i.e., over the course of two years. This can't fit into our nice, neat, high threshold definition of legal workplace bullying that Ruffley had set out". And on that basis, the case was dismissed.

Now, what's interesting for us, as lawyers anyway, is that the Court of Appeal . . . she appealed the Court of Appeal and she said, "Look, I was never saying it was bullying. That wasn't my argument at all". And actually, the High Court Judge erred in law, in fact, considering it in that way with that particular hat on.

So she said, "Actually, it's not a case of workplace bullying", and this is the really kind of subtle point, "it's a case of negligence for the following two reasons". Her first reason was that the various torturous acts by each of the five employees were committed in the course of their employment. And as a result, her employer should be vicariously liable for that conduct.

Her second ground was to accuse the employer of alleged negligence in failing to provide a safe place of work by taking no reasonable or effective action to prevent the recurrence of this type of behaviour.

So really, her argument was that they had negligently permitted an atmosphere to exist whereby that type of behaviour was actually tolerated and not sanctioned.

Scott: And to that extent, it doesn't matter if it's bullying, because the statute, the definition of building, it needs to be repeated. And ordinarily, you've got one bully picking on…

Ailbhe: That's the traditional bully.

Scott: That's the traditional one. It could be a group of things. Arguably, if you're looking at An Post, it could be a group of people who are picking on someone, but it has to be repeated actions. In this case here, they were so far apart. They weren't repeats. So the person wasn't arguing bullying, but they were saying, "You've still got a duty of care. It's not a safe working environment".

Ailbhe: That's exactly right. So that's the crux of her case. So on the vicarious liability point, the Court of Appeal said, "Look, if we were to hold random outbursts of various individual employees at the level of vicarious liability, all employers across land would be liable for every time anyone said anything to anybody. And that's just a step too far and it would be stretching the definition or the concept of vicarious liability way too far".

But to focus in on your point, Scott, that definitely is the crux of this case, the failure to provide a safe place of work. They looked at Ms McCarthy's job. They looked at the fact that she was a cleaning supervisor in a very busy hospital, a hospital that would require very high standards when it comes to cleanliness. And they looked at the reality that, in practice, you should be able to foresee that there will be incidents where subordinate cleaning staff may kind of rub off the cleaning supervisor who has these high standards to maintain, etc., in an adverse way. And from that perspective, there was a degree of foreseeability about the situation, that there could be potential for conflict, and that the employer, in this case, should have anticipated that that conflict could arise.

So they basically said there was a duty. It's a common law duty generally, but also the statute duty under the Safety, Health and Welfare at Work Act to ensure a safe place of work, and they have to take all reasonable steps to protect the employee where there's a foreseeable risk, such as the one to Ms McCarthy. That wasn't shown in this case. So on that basis, the employer is liable of negligence on her injuries.

Scott: And we don't have any damages set yet on this case?

Ailbhe: Not yet. It's been remitted to the High Court for that. So to the best of my knowledge, that hasn't happened yet. So I don't have a juicy figure for you.

Key Takeaways

Scott: Okay. The takeaway generally on that is really just if you get any of those types of incidents, you have to investigate them. Treat them seriously. To most of our listeners, it doesn't particularly matter whether it's a bulling type claim or a negligence claim. In the end, you have a duty of care to investigate fully and take remedial action.

Ailbhe: Absolutely. I mean, honestly, the takeaway . . . and not to be trite about it at all, but my takeaway on this particular theme is just do something. Just be seen to do something and absolutely document what it is that you're doing, whether it's training, whether it's counselling, whether it's meeting with employees one on one, whether it's offering an EAP, do something. Have some sort of a case that you can use to say, "Well, look, we recognised that we have this duty. We did everything we could".

There is a fine line. I mean, no one is expecting you to suddenly recreate your entire working environment for one particular employee. But, you know, in a situation where there are various instances of cultural issues, atmosphere issues, behaviour issues being brought to you, that's a bit of a red flag, and you should be doing something.

Scott: Okay. We have a question actually in through the chat box here. Is a separate investigation process always necessary? Or in cases, I suppose, more minor cases, such as pure absenteeism or lateness, could the line manager go straight to a disciplinary proceeding and take action?

Ailbhe: Yeah, absolutely. I mean, everything is going to be fact specific, but no one's saying that you suddenly have to make sure you have all of these various hurdles in your path before you can get to disciplinary stage.

If you're dealing with something that's fairly open and shut and there isn't any need to investigate, so you're not dealing with a need to interview witnesses or a need to check records or things of that nature, if it's as simple as saying, to take your example, "Look, I have a record of consistent lateness", provided you send that record to the employee in advance of the disciplinary hearing so they have a chance to see the case against them, and then you invite them to come to that disciplinary hearing with their companion or their trade union rep, they have that chance to kind of put forward their side of the story and any mitigating factors, and then they have their chance to appeal a negative outcome, then you're fine. There wouldn't be a separate need to make sure you have some sort of quasi-investigation that's effectively open and shut.

Scott: Yeah, because that would mean a supervisor could never take any disciplinary action really. And you need some kind of real politic here in the workplace where supervisors are allowed to discipline people at the minor level. But if you move on, it's likely to lead to dismissal. You really start putting up your little flags and saying, "Let's separate out these functions".

Ailbhe: Yeah, if we're dealing with kind of verbal and, you know, more minor warnings, there's always going to be less likely that . . . not necessarily all the time, but again, very fact specific, there's usually less of a need for an investigation because it's a fairly minor thing and it's fairly open and shut as to whether something did or didn't happen.

However, at the same time, even on a minor level, if it's a question of, "We have three witnesses who said you did this", there should be some sort of investigation with those three witnesses where you've got the witness statement. And it may well be that the employee gets a copy of those statements, gets an understanding of what the case is against him, who's saying what. That's going to bring us into another territorial on cross-examination and right to legal representation, I'm sure.

Working Outside Normal Working Hours

Kepak Convenience Foods Unlimited Company v Grainne O'Hara [2018]ILCR Determination No. DWT1820

Scott: Right, which also came up on the chat box. If we have time, we'll come back to those ones. But let's change tack a little bit her and move to O'Hara v Kepak. So this is a well-known case. I think a lot of people covered it, including Legal-Island. And it's to do with people working outside their normal working hours. So tell us about that case there, because it was well covered in the press, everywhere. I mean, it was an issue about people doing long hours and long hours culture.

Ailbhe: There was a reason it was picked up in the press. It was a Labour Court case, and award to Mr O'Hara was €7,500, which was not off the charts. But the reason it was trending, as they say, on all the newspapers and whatever is because everyone . . . well, a lot of us are going to relate to that. We're going to relate to, you know, "I don't work 9-to-5. Sometimes, I send emails after 5:00, etc." So there are a lot of people saying, "Hang on a second. That's me. Maybe I should be taking a case".

But I suppose we're in a situation where we're dealing with a very different working environments. So the Organisation of Working Time Act was drafted in 1997, and it's been through various amendments, etc. But we're now in 2019 and we work in a digital environment. We work in a very fluid, flexible, remote access. We deal cross-jurisdictionally. We have conference calls that are set up to pick up various time zones. And you expect people, certainly, at various levels of your organisation to be reasonably available, to go on these calls. And it might be it's a 7:00 call, or it might be it's a 6:00 in the morning call, depending on what it is.

And it may well be that you were at a training course all day, and you do need to pick up and catch up on some emails in the evening. Does that then mean you're breaching your statutory hours? As you know, so I won't belabour it, there is a kind of a maximum number of hours you're "allowed" to work per week, and it's basically an average of 48 hours. So whenever you start hitting 49, 50, etc., technically you're in breach of the Organisation of Working Time Act.

So the situation here was Ms O'Hara was a business development manager, travelling around different sites, would come home in the evening, would log her various reports, etc. And sometimes, it would take her up to 11:00 at night to log them, and then she might get up early in the morning and send some emails to staff members and co-workers and the like.

So her claim was that she was regularly working in excess of the working hours. And the court agreed and they said, "Look, number one, you don't have any adequate records to show that she wasn't working these hours. And number two, you've effectively permitted her to breach this statutory cap by seeing her doing these hours, and again, doing nothing, not taking any steps".

And it's kind of similar to my point earlier in terms of just do something because there was another case from a few years back involving IBM where similar situation. An employee was saying she was working excessively and her employer knew about it. And IBM was able to say, "Yes, we did, but look at all of these things, all these measures or steps we took to stop her doing that. We tried to stop access to her emails at night. We spoke to her. We did all these things". And in that particular case, the IBM case, the decision was that there was a technical breach of the Organisation of Working Time Act. But the court, in that instance, found there was no culpable breach, so no compensation in that case.

So the Kepak case is different because effectively the court found you can see from your software, you could see from your emails, you could see these emails are coming in, in the wee hours of the morning and at the late hours of the night. You should have taken steps. So there's kind of a theme developing here around that.

And there is this kind of bigger picture, I suppose, a backdrop here in terms of what's generally been coined to be "the right to disconnect", and that's a real driving force here. And it's not an Irish-specific thing by any stretch. You have a number of countries across Europe, and I think in New York there is actually a bill in place at the moment, effectively trying to legislate to protect employees.

And this all goes back to your work stress and, you know, people should be able to kind of switch off and plug out and have family time and leisure time, and all of these good things for very important reasons in terms of rejuvenating themselves and so forth. But because of everyone having an iPhone or a smartphone now, and everyone has laptops or remote access, is there now more of an expectation on employers that, "Well, you should be always available. You should be always logging in"?

And this is also coming round in terms of, you know, people on the DART or the Luas, commuting in the morning and they're on their emails. I mean, I do it where you're checking emails and you're reading articles. You're not doing fun things. You're doing work things, albeit on the train.

Scott: You don't find it fun? I find it fun.

Ailbhe: I suppose in the kind of the strict definition of the word . . . But, you know, when you're in that situation, should you then be logging in? Is that an extra hour's work? So from that perspective, there are a lot of moving parts here. It's a very interesting debate. There have been a number of different measures, and oddly enough, a lot of car companies like Volkswagen and Porsche and different companies like that where they've brought in different measures to kind of effectively stop the . . .

Scott: They cut their phones off. They stop emails being able to be sent.

Ailbhe: Yeah. And they kind of redirect emails and you can't send things after hours. So there's kind of a definite case to a push towards recognising that that's an issue. And this Kepak case is probably the main case in Ireland where, you know, employers are a little bit scared of it because . . .

One of the other fatal nails in the coffin here was, as I mentioned earlier, Kepak didn't have records. They weren't able to produce, "Here are her hourly records for the week of whatever". And that is a very practical problem for a lot of employers. Because of this flexible arrangement, are you actually capturing everybody's working hours? And even if you are, how are you recording that? Because unless you're in a nice clock-in, clock-out system, that's actually quite difficult to do, and it can kind of result in an automatic black mark.

Scott: Yeah. It's a difficult one to handle, really. I was on holiday last week . . .

Ailbhe: Very nice.

Scott: Yeah, very nice. Whenever I go on holiday, I always check my emails and clear them, and flag the ones that I've got to deal with when I come back. If it's an urgent one, I'll pass it on to somebody. But that makes me feel good because I know I'm not coming back to 500, 600, 700, 800 emails or whatever, which is what I get in a week. I've cleared all the rubbish, so I know that I'm coming back to hit the ground running. And for me, that's great. That makes my holiday good, because I'd be sitting there at the end of the holiday going, "Oh, no. What's it's going to be like on Monday when I go back?"

Ailbhe: Four thousand emails. Yeah.

Scott: So I don't want that. But it's my way of controlling my working day, if you like. And provided I'm happy with that, and the employer is happy with that, it's okay. But in this situation, I think the employer said, "You should be getting through your work more quickly". And the employee is going, "Oh, no. You're making me work too long because I've not got the support structures". That's where it can cause some problems.

Ailbhe: Absolutely.

Key Takeaways

Scott: Really, the takeaway is what? Just look your culture, think about things, do something?

Ailbhe: Yeah. And unfortunately, I don't have kind of the magic answer to this, because this did come up . . . I mean, it's come up for a number of our clients who are asking, "Well, we don't keep records". I mean, especially think about your senior, senior people who are constantly travelling for work and they're often on late-night conference calls and so forth. I mean, a lot of these senior people aren't even on kind of set hours contracts. You have that nice kind of carve-out from the Organisation of Working Time Act that allows people to kind of take control of their own time, but within reason as well.

And it's that kind of fine line between giving . . . you can't kind of pass the buck to your employees and say, "Well, it's on you to make sure you take a rest and you go to sleep and don't work the weekend because you've worked every weekend before for the last six months". And the courts are basically saying, "You're effectively permitting that breach because you're on notice. Notwithstanding the fact that he has control of his hours, you could see this person going over and above". And the question is, well, he may be happy to do that now. It's when the employment relationship breaks down, if and when.

Scott: Or when they get sick.

Ailbhe: Or when they get sick.

Scott: They then turn around and say, "I'm now sick because you let me let me work too long".

Ailbhe: Exactly. And you're saying that was reasonably foreseeable, and you're into a situation of, you know, whether or not there are these technical breaches that you're culpable for, because you're on notice notwithstanding that clause in your contract.

Disability Discrimination and Duty to Make Reasonable Adjustments

Nano Nagle School, Appellant, v. Marie Daly, Respondent [2018] IECA 11

Scott: Okay. The final section that we're going to deal with here today is to do with reasonable accommodation and disabilities. It's Nano Nagle v Daly, a well-known case. I think we were chatting earlier and you were saying that you believe is up for appeal at the Supreme Court in March?

Ailbhe: That's right. Again, it's a provisional date, so don't quote me on it, but my understanding is that it's provisionally down to be heard at the Supreme Court on the 14th of March. So whether it goes ahead or not, we'll wait and see. But in some ways, it will be useful if it did, because at least we'd have to a definitive view on this once and for all.

As you said already, Scott, this case has been doing the rounds for some time and has been a source of some concern for employers, certainly, in the early days when . . . I suppose just to clarify for anyone who doesn't know, this particular case really looked at the extent of an employer's duty to reasonably accommodate an employee with some form of a disability.

And this particular case involved a paraplegic special needs assistant within the Nano Nagle School. And she was awarded €40,000 in compensation by the Labour Court because of the school's failure to reasonably accommodate her.

And they looked at things like the school had failed to adequately consider a redistribution of this particular assistant's various duties as an SNA, and they ultimately then found, at Labour Court and the High Court stage, that the school had failed to discharge that statutory duty to reasonably accommodate.

So this is a concern for employers because this seemed to say that you kind of have to . . . there was an onus on employers to actively explore and consider any and all potential accommodations, which, you know, is a lot of work. And I mean, looking at any type of workforce, having to basically almost redesign the job to fit the person to make sure you can keep the person in employment . . . it wasn't quite saying that, but it wasn't much way off it anyway.

So there was some comfort for employers in the Court of Appeal decision, which was came out last February, so just about a year ago. It overturned the High Court judgement and said, "Hang on, it's not as onerous as that. There isn't a duty to kind of exhaust yourself and to effectively re-craft the job". So it said that if the person can't perform the essential duties, was the phrase used, it's fine to then say, "You've discharged your duty".

So obviously, the reasonable accommodation onus is there and there's a statue obligation on employers to look to reasonably accommodate that employee, but if they can't do the essential duties of that particular job, that's where the buck stops.

Scott: So in essence, if I'm picking up correctly, for an accommodation to be deemed reasonable, it has to be related to these core duties?

Ailbhe: Exactly.

Scott: So if you're asked to do something, and it doesn't help the person do the core duties better, or even do them at all, then you're absolved of your responsibilities in effect because it's not going to help them do the job. You don't have to keep a job open if they can't do it.

Key Takeaways

Ailbhe: That's exactly right. And there are a number of key takeaways from Nano Nagle, etc., but I suppose from a practical perspective, provided you can objectively stand over your assessment of what . . . let's say there are 10 duties and responsibilities that are integral to this particular job. If the employee can't do the essential ones, the three or four main ones that are in there, you're not required to come up with another job. You're not required to redeploy the person or so forth.

You've hired somebody to do a job. This is what this job entails. Obviously, there is this duty. I mean, just to be really clear, that duty is not going away for you to take all those reasonable steps to reasonably accommodate. But if you can't, having done all the good things like engaging with the employee, sending the person for independent medical assessment, depending on what it is, etc., once you've ticked a number of these boxes, the Court of Appeal is effectively saying, "There's a place called stop".

There's a bit of reasonableness that needs to come into this and we all need to kind of take that step back and look at it objectively. Would an objective and reasonable employer be able to reasonably accommodate in the manner suggested by the employee?

Scott: Well, to put it another way, and this may be a difficult question just before we finish because we didn't have a chance to chat this over beforehand, but if I were off on long-term ill health, I would think that an employer should be looking to find a job that I can do even if I can't do that job, if there's one available.

So if I'm a driver and I can't drive, but there's work in the warehouse, I might be able to argue, "Don't sack me. Give me an opportunity to go try that job in the warehouse". Now, it wouldn't be maybe under this decision reasonable accommodation, but there may be an argument there under unfair dismissal legislation maybe. No?

Ailbhe: Well, yes and no. I suppose there are things . . . redundancy law, for example. If your role is at risk of redundancy, you do put forward vacancies and so forth as suitable alternative employment. So in this instance, there are some similar arguments that are made because you're sort of looking at the particular job and reasonably accommodating that person to do that particular job. I'm sure there are lots of different types of jobs that you could do notwithstanding your disability, but the point is you're hired to do this particular job.

So if it's within the employer's ambit and within their scope to say, using your example of the driver, "We don't have a driving job, but we have this other job", and the employer is happy to reasonably accommodate the employee in that manner, that's absolutely fine.

But what I'm saying is that, you know, there isn't an obligation on you to kind of reinvent the wheel. Provided you've exhausted all opportunities, you've engaged with the employee, you've done the medical assessment, there isn't a need for you to kind of continue to employ the person outside of the job description.

Scott: Yeah. And whatever changes might be made, accommodations, as this stands, subject to the March appeal anyway, they have to impact in that employment to go to the core duties, if you like.

Ailbhe: Essential duties, yeah.

Scott: You have to be able to show that these would help the person do the job. And if they're not there, then they're not reasonable, effectively.

Ailbhe: Absolutely. Yeah. And just to be clear, even when an employer has done everything right . . . I have another case that we can touch on very briefly, the Dunnes Stores v Guidera case. The Labour Court actually doubled the award of compensation to the employee who was dismissed on disability discrimination grounds, having been absent on long-term sickness. So she was awarded €30,000 instead of €15,000. She was out on long-term sickness for two years. They met with her independent medical advisor, all those good things, but ultimately, they didn't wait for a specialist doctor's opinion, and that was the nail on the coffin there.

So, you know, there are a lot of cases on disability discrimination, so it's something I'd definitely recommend you take advice on before you pull the trigger.

Scott: Yeah. They are very dangerous cases indeed…

Thank you very much to Ailbhe Dennehy. There are a number of themes going through there, particularly about following your procedures and investigating and trying to separate them.

This article is correct at 24/01/2019

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