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Welcome to the June Issue of Keeping in Touch

Introduction

We are in a new environment. The way businesses worked before is

going to change completely. The businesses which people were in at the start of March before all of this happened are not going to return in the near future. We will have different ways of working. There will

be different stresses. Of course, there are going to be job losses. There will be a significant

numbers of redundancies. This concerns us. It firstly concerns us from the point of view of the difficulties those who lose their job will be

put in to try to keep mortgages in some cases paid but just being able to provide the basics will be a challenge. We have a major concern that unless the Redundancy Payment Act, 1967, as amended, is not

amended itself to provide for the fast tracking of these cases that many individuals will not get their redundancy payment for a considerable period of time. We have proposed that redundancy cases

would be heard in public so as to allow situations where a group of workers may be made redundant, who wish to bring a claim, where

they have not received their redundancy payment to have these all heard on one day. Currently the system has to operate on the basis of each case being heard separately.

In the Employment Appeals Tribunal these cases were heard where

there would be a group of workers on one day all at the same time. There were times when fifty cases could be listed at one time on one afternoon in the EAT. In the WRC under their current rules this would

entail of fifty separate hearings. In 2019 there was 20,000 claims referred to the WRC. There were 5,000 hearings. We are likely to see somewhere between 20,000-60,000 claims, being optimistic, to the

WRC in respect of redundancy claims where the redundancy is not paid and that will be on top of claims of unfair selection under the

Unfair Dismissal Legislation. There will need to be a complete and total change in how the WRC operates if we are not going to have a situation of 2- or 3-year delay in having cases dealt with there. It is

going to be a challenge. It will be a challenge to how the WRC works. The WRC is going to have to change its procedures and those

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appearing before the WRC are going to have to adopt those procedures and adapt their current procedures to ensure that cases can be dealt

with in a speedy and efficient way. In particular representatives whether they’re legal representatives or those who provide services for a fee will need to be regulated in the event that they do not comply

with the rules of the WRC. If that does not happen there is likely to be significant numbers of claims going against the WRC itself,

particularly in relation to claims which would flow from EU legislation, that individuals have a fundamental right to have their cases dealt with and that these cannot be delayed because of administrative

issues within the WRC. Of course, the WRC will get a certain amount of leeway currently but that is not going to go on very long. The cases will have to be dealt with.

Because businesses are now going to operate in a completely different

way it is likely that there is going to be disputes in workplaces. There will be issues about returning to work. It is likely there is going to have to be remote working. There will be individuals who will work

part time in the office and part time at home, hours of work are likely to change in workplaces. The traditional 9-5 in offices is probably going to go. This is all going to be a challenge for both employers and

employees. It will be important that individuals get appropriate legal advice from employment law solicitors.

There are also issues relating to personal injury claims. Remote working is likely to increase these claims unless individuals are

provided with proper work stations. This will be a challenge for employers to ensure that these are in place. There are going to be

issues of individuals getting ill in work places. Therefore, having the return to work protocol properly in place is going to be a challenge. There are going to be mental health issues which are going to arise.

Individuals working at home may feel divorced from workplaces, this will create its own stress. There will be employees coming to work who are concerned about getting onto public transport. This will equally

create stress. This may not be actionable stress when it comes to somebody being concerned about getting on public transport.

However, the issue of individuals suffering stress because they are divorced from the workplace may very well be one which will end up in the Courts. There will therefore be a challenge for employers to put in

place appropriate procedures to minimise that risk. This is an area where employers will need more than one advisor. It will be advisors

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in the area of employment law and personal injury work who can help them identify risks and resolve them. There will also be issues relating

to health and safety and challenges for HR departments. By taking appropriate steps employers can minimise risk.

We have a changed working environment. We have a changed economy. Those changes are going to become more pronounced and it

is going to be a challenge for all to meet them.

Index:

• Out and About

• Getting the message out

• Women returning from Maternity Leave and the Temporary

Wage Subsidy Scheme

• Lodging submissions to the WRC

• Making an employee redundant who was on the Temporary

Wage Subsidy Scheme

• Redundancy, Temporary Wage Subsidy Scheme, Senior

Employees, and, those returning from Maternity Leave

• Redundancy – Suitable alternative job

• Offer of Alternative Employment

• Redundancy

• Collective Redundancies

• Fair Selection for Redundancy

• A rushed Redundancy may result in an Employment

Equality claim

• Discrimination in relation to returning to work

• Dismissal on the grounds of incapacity or ill health

• Retirement on the age ground

• Unfair Dismissal – Is a dismissal unfair

• Unfair Dismissal and Fair Procedure

• Protection in Unfair Dismissal cases

• Procedures in Unfair Dismissal cases

• Protection against dismissal and penalisation under the

Safety, Health and Welfare at Work Act 2005

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• Claiming for Penalisation/ Dismissal

• Other avenues of redress

• Maternity Protection Act, 1994 – Safety Leave

• Protected Disclosures Act, 2014

• Burden of Proof in Employment Equality Cases

• Reasonable Accomodation of a person with a disability

• Equal Pay Claims

• Constructive Dismissal – Using the Grievance Procedure

• Resignation

• Gig Economy – A further development from the European

Court of Justice

• Sexual Harassment

• Warning signs of a Political/Religious belief

• Practical issue with bringing claims where a company is in

Liquidation

• National Minimum Wage – Reference Periods

• Annual Leave Year for Holiday Purposes

• Claim under the National Minimum Wage Act

• Why is PPE so important from a legal point of view

• €87,000 awarded to woman for psychiatric Injury

• Woman awarded over €300,000 for injury in road traffic

accident

• Legionnaires Disease and Personal Injuries

Out and About On 28 April Richard Grogan was quoted in The Irish Sun on the issue

of wage cuts without consent.

On 4 May Richard was quoted on the front page of The Irish Independent on the lack of crèches being a threat to jobs for women returning to work. In the same newspaper on page 4 Richard was

quoted in an article on how women’s jobs are at risk.

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On 5 May, comments made by Richard on the issue of ageism in a case in which the office was involved in where an award was made

was reported in The Irish Examiner. On 12 May Richard appeared on Today with Sarah McInerney on RTE

discussing employment law issues. On the same date Richard was quoted in TheJournal.ie discussing concerns around returning to

work from an employment law point of view. On 13 May Richard was quoted on the threat to jobs of women in The

Irish Examiner. This was also referred to on Morning Ireland in “What it says in the papers” where the comments made by Richard were reported on.

On 14 May Richard was referred to on The Afternoon Show on RTE

with Maura and Daithi in relation to the article in The Irish Examiner where he had been quoted. On the same date Richard was interviewed on Highland Radio, Waterford Local Radio and on Corks 96FM all

relating to the issues concerning employment law relating to individuals returning to work and in relation to the Corks 96FM also in particular the difficulties women would have, returning to work,

without proper crèche and childminding facilities.

On 17 May the Firm was quoted in an article in the Sunday Business Post concerning the volume of employment law cases which are likely to arise and the alternate methods of dealing with same including

mediation and the difficulties that were likely to be for both employers and employees. Also on Sunday 17 May Richard was quoted in The

Sunday Times on the practical issues concerning individuals working from home and in particular the issues surrounding compliance with the Organisation of Working Time Act and the fact that employers

were seeking to have a right to analyse the work done on computers at home in what would be effectively a remote working scenario. Richard Grogan of our firm was also mentioned in an article by Sarah

McInerney in The Sunday Times where she writes a column. The quote which Richard gave on her radio show on RTE as regards

women being excluded from the Temporary Wage Subsidy Scheme which was that effectively women were being abandoned by the government and as Richard stated “put in a boat and pushed out to

sea” was commented on by Sarah McInerney in her article highlighting the inequality in Irish legislation as regards women.

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On 18 May Richard was again interviewed on Today with Sarah

McInerney on RTE discussing employment law issues. Arising from the interview on 12 May a significant number of employment law issues arose as a result of which RTE invited Richard back again to

answer these questions.

On 19 May Richard was interviewed for Primetime on RTE dealing

with the issue of employees returning to work and the fact that employees will be returning to a completely different workplace.

On 25 May Richard was interviewed for an article by Laura Slattery in the Irish Times, titled ‘’Working from home - new costs, new stresses

and little relief’’ On 29 May Richard was interviewed by Deirdre O’Shaughnessy on

Cork’s 96 FM on the issue of remote working. In particular which was answering listeners questions on this as regards the rights of

employees in such circumstances. During May we have continued our employment law updates on a

daily basis. Since the first day of the lockdown we have been putting in place a daily update on employment law issues. We have covered everything from the Temporary Wage Subsidy Scheme to Redundancy,

to the Return to Work Protocol and a myriad of issues which are coming to our attention as questions which both employers and

employees are raising. We do think it is important as a firm that we are seen to provide real and relevant information during this period of time.

Getting the Message Out The firm has been raising various employment law issues.

Two issues which were of particular relevance is Section 678 of the Companies Act. That has a particular difficulty. Where companies go

into liquidation, which we recognise is going to happen, to issue claims to the WRC an application will first have to be made to the

High Court. We raised this in a piece which was published in Irish Legal News. We also contacted the Minister for Justice and Equality,

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the Minister for Employment Affairs and Social Protection and the Minister for Business, Enterprise and Innovation. We got responses

from all three. The relevant Minister is of course the Minister for Business, Enterprise and Innovation but the problem that we were raising was going to cause difficulties for the Courts if they were

swamped with such applications and for the WRC as to how it operates and in particular for those who might not have legal

representation and could find that the WRC would not have jurisdiction to hear their case. We are delighted that we received a positive response from Minister Humphries through her office to the

effect that this issue is on the agenda and is being looked at. Nothing unfortunately can be done until we get a new government in place and between now and then it may well be that proceedings will have to

issue to the High Court. This is unfortunate.

This firm made submissions to the Workplace Relations Commission in relation to their consultation concerning how matters will proceed in the WRC going forward. This was a personal submission by this

firm.

Women Returning from Maternity Leave and the Temporary Wage Subsidy Scheme

On the 29th May it was announced that women returning from maternity leave would be included in the Scheme. In addition, it

would be backdated to 26 March. This is an issue which this office had taken a very strong public stance on during April and May. As a result of the stance which we took Richard Grogan of this firm was

interviewed on Today with Sarah McInerney on RTE and was quoted in an article in Irish Examiner by Liz Dunphy on 13 May. In addition,

on Sunday the 17 May Richard Grogan of this firm was quoted again on this issue by Sarah McInerney this time in her article in The Sunday Times. We are certainly not saying that it was this office that

had the law changed. There were many others who led on this issue and commented on it. We were just delighted that we could comment and that our voice was given an opportunity to be heard both in the

press and on the airwaves.

Of course the Scheme was one which was rushed through. There were always going to be difficulties with it. However, the issue relating to

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women being excluded was one which was particularly important to be addressed and luckily it was addressed by the government.

Lodging Submissions to the WRC.

This issue was raised in case ADJ-00017854. A preliminary objection had been raised by the respondent about the fact while a brief outline

of the claim had been put in this was not added to before the first hearing date was announced.

The Adjudication Officer set out that both parties were familiar with the WRC rules on submissions. The Adjudication Officer pointed out

that in the case of employment equality law the burden of proof rest on the complainant and it is reasonable to place the respondent and the WRC on notice of the background and outline arguments/case law

which may be relied upon. The Adjudication Officer stated; ‘‘I find it of enormous benefit to have submissions from both parties well in advance of the hearing date to assist me in conducting my investigation. Therefore, the best practice standard centres on adherence to the WRC rules on investigation and hearing procedures’’. The Adjudication Officer went on to state that two well prepared submissions anchor an equality of arms from the outset and variation

on this approach can lead to expressions of irritation which creep into the very valuable hearing time and can form an unnecessary

distraction from the facts of the case. The Adjudication Officer would have preferred to have received both

submissions much sooner.

We simply mention this as this is an issue which is constantly arising. In an Unfair Dismissal case the burden of proof is on the employer. In an employment equality case the initial burden is on the employee. In

cases coming before the WRC parties in the past have tended to treat these as an inquisitorial process. The Supreme Court in Ireland in a case involving the Workplace Relations Commission and the

Employment Equality legislation pointed out that the WRC is an

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inquisitorial entity. Equally a number of recent decisions of the CJU have equally pointed out in such areas as the Organisation of Working

Time Act that matters are for the employer to prove. With remote hearings going to be an issue which is going to have to be

addressed and the limited time that parties can be in the same room the issue of appropriate submissions being lodged in advance is an

issue which the WRC is going to have to look at. The days of rocking up to the WRC and putting a 40- or 50-page

submission which would include case law on the table for the other side and for the Adjudication Officer is something that has to change. Equally the issue of parties bringing their submission and then

reading the whole thing equally has to change. Of course, this means that Adjudication Officers will have to read submissions in advance.

This did happen in the Equality Tribunal. In those cases the start of the case was the Equality Officer raising the issues that they would have seen from the initial submissions. They would address questions

on the submissions to both parties. It was only after that was done that the parties would get into evidence. It had the huge advantage that significant parts of the hearing could be avoided as regards going

into evidence where the Equality Officer was able to ascertain whether a particular issue was a fact that was in dispute or not in dispute.

How cases run in the WRC are going to have to change. It is useful that the Adjudication Officer in this particular case has set out that it

would be better if appropriate submissions were lodged in advance.

There is no ‘rocking up’ to the Labour Court without a submission and there seems to be every reason why a similar approach should now be taken by the WRC.

Submissions to the WRC

This issue was addressed by an Adjudication Officer in a case ADJ-

00023248 where the Adjudication Officer pointed out that Adjudications Officers generally managed hearing without prior sight of submissions as it is common that parties do not submit them in

advance.

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The Adjudication Officer in this case was stating the obvious. The Workplace Relations Commission provides that submissions are to be

lodged in advance. A practise has going up, effectively from day 1 of the Workplace Relations Commission, that some parties will never submit documentation in advance or in time.

Times are now changing. There are going to be issues relating to

remote hearings. There are going to be issues ongoing in relation to making sure that there is minimal contact between parties and the social distancing is kept in place. The WRC has issued a consultation

paper. It will be imperative, in our view, that the Workplace Relations Commission put in place procedures to ensure that full submissions are lodged in advance with all relevant documentation.

If proper submissions have been put in this will reduce hearing times.

Making an Employee Redundant Who Was on the Temporary Wage Subsidy Scheme

When employers went into the Temporary Wage Subsidy Scheme (“TWSS”) the employer would have given a statement, as part of the

process, that it was not their intention to be making anybody redundant who was put under the Scheme.

In reality a number of employees who were put under that Scheme are going to be made redundant.

Where an employer proposes to do so they need to be extremely careful. The Revenue Commissioners have indicated that where an

employee is proposed to be made redundant then in those circumstances the employee must be taken off the TWSS.

Take the situation where an employer is considering redundancies. They have say ten employees all under the TWSS. All ten are notified

that they are at risk of redundancy. The employer believes that only four of five will actually be made redundant but, because they all work in a similar unit they are all potentially at risk of redundancy.

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In those circumstances the employer must take the full ten employees off the TWSS when the consultation process starts. Once the selection

has been made then in those circumstances the employees not being made redundant can be put back on the TWSS. This would equally apply if an employer notified an employee that a single individual was

at risk of redundancy in which case they equally, in that situation have to be taken off the Scheme.

A number of employers are going to fall foul on this issue and have a reclaim from the Revenue.

There is certain logic in the approach of the Revenue Commissioners. The employer has said that they had not intended to make any

employees redundant. There have been issues coming up as regards calculating redundancy notice and holiday pay in a situation where an

employee is made redundant and had been put under the TWSS. As the Revenue rules will require the employee to be taken off the TWSS then the law is very clear and their notice and holiday entitlements

would be calculated on their old salary or wage not on the TWSS. Equally their redundancy would be calculated on their normal wage or salary subject to a maximum of €600 per week and not on the TWSS

rate of pay.

Redundancy, Temporary Wage Subsidy Scheme, Senior

Employees, and, those Returning from Maternity Leave

You might wonder why we would lump all of these four together. There is a very good reason and we will try and set it out here.

Under the Temporary Wage Subsidy Scheme (“TWSS”) an employer

going into the Scheme completes a declaration, to the Revenue saying it is not their intention to make any of those on the TWSS redundant. Now senior employees earning more than €75,000 are not eligible to

join the Scheme. Women returning from maternity leave who are not on the payroll on 29 February could not join the Scheme until recently. There may also be some men who would have been on

parental leave who may not have been on the payroll on that date equally. However, there is a significant number of women who would

be in the position of not being on the payroll on the 29 February.

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Take a situation where an employer is intending that they, when opening, will have to reduce the number of employees. The employer

now is in a very difficult situation. If the employer complies with the Revenue position the first people to be really considered for redundancy will be those who are earning over €75,000 and those

who would have not have been on the payroll which in this case would be women returning from maternity leave but now are covered. Let’s

take a situation where you have a company that has a unit which has ten people doing the same work. One employee is older and has been on a higher salary on the basis of annual increments. There is one

employee who came back from maternity leave but could not be put onto the Temporary Wage Subsidy Scheme as they earn over €75,000. The employer works out that they are only going to need eight

employees in that unit. Applying the Revenue rules the older employee and the woman returning from Maternity leave being paid over

€75,000 would be the two individuals who should be given redundancy. That covers the Revenue. However, from an employment perspective dismissing either would leave the employer open to an

equality claim on the ageism ground and the gender/family status ground from the two individuals.

The Labour Court have constantly held as have the Revenue through the Appeal Commissioners that the Labour Court is not bound by

decision of the Revenue or the Appeal Commissioners and that the Revenue/the Appeal Commissioners are not bound by a decision of the Labour Court. There is therefore a standoff. Employment law says

one thing. The Revenue law says something else.

If the employer ignores the Revenue rules and applies the normal redundancy rules and equality legislation the employer could well find themselves in a situation of a reclaim from the Revenue in respect of

those who were made redundant who had been on the TWSS. There is even a question that the employer would have a reclaim in respect of all of those workers who are on the TWSS because the employer will

effectively have broken their statement of intent to the Revenue by making two people on the TWSS redundant when there was others not

on the TWSS who could have been made redundant. From an employment perspective redundancy is the job not the individual and it’s hard to argue that issues under the TWSS being Revenue rules

would trump the employment legislation.

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So there is a Mexican standoff. There is of course a solution and that is that in those circumstances the Revenue rules to be amended so as

to provide that the employment law applies being the normal employment law provisions as regards selection and that if on a normal selection basis somebody would have been selected for

redundancy who was on the TWSS and a person who was not on the TWSS would be retained then in those circumstances the Revenue

would neither seek a refund of the TWSS subsidy to the employer nor the interest on it.

The reality is this is going to become a problem. It is a problem which we have highlighted. We highlighted this issue on RTE on the Sarah McInerney Show on 18 May and in an interview with TheJournal.ie.

We doubt that this issue is going to be addressed but we have raised

it.

Redundancy – Suitable Alternative Job This arose in the case of ADJ-00020231. The Adjudication Officer

pointed out that Section 15 of the Act provides that an employee shall not be entitled to a redundancy payment if the employer has offered to

renew the employees contract of employment or to reengage the employee under a new contract of employment and that the provisions of the contract is renewed or of the new contract as to the capacity in

place in which the employee would be employed and as to other terms and conditions would not differ from the corresponding provisions of

the contract in force immediately before the termination of the contract and the renewal or reengagement would take effect on or before the date of termination of the contract and that the employee

had unreasonably refused the offer. The Adjudication Officer pointed out that under Section 15 the

employer must make this in writing and it must be a suitable employment in relation to the employee and the renewal or

reengagement must be notified to take effect not later than four weeks from the date of termination of the contract where the employee has served the relevant notice.

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The Adjudication Officer pointed out the case of Cinders Limited -v- Byrne RPD 1811 the Labour Court held that the issues to be

considered where the suitability of the offers of alternative employment made on behalf of the respondent to the complainant and whether the complainants decision to refuse each of those offers was

reasonable in all the circumstances. The Labour Court in that case relied on the case of Cambridge & District Co-Operative Society

Limited -v- Ruse 1993 IRLR156 where the Labour Court referred to the suitability of the employment is an objective matter whereas the reasonableness of the employees refusal depends on factors personal

to him and is a subjective matter to be considered from the employees point of view. In the Cinders case the Labour Court held that it was reasonable for the employee to refuse to move to a concession within a

department store but unreasonable to refuse to move to a stand-alone store in the city centre a distance of about six kilometres. The Labour

Court in that case held there was no significant difference between the working environment she would have enjoyed in the alternative store and that she had experienced in the previous twenty or so years of her

working relationship with the respondent. The Adjudication Officer in this case also held, which will be

important, that the relevant termination date in a case arising from lay off or short time is the date the notice of intention to claim relief is

served and referred to the case of Leinster Cleaning Services -v- Muningus RPD199. It might be thought by some that it is the date that the notice would run out or the notice period in the contract. It is

not. It is the date that the notice is served.

Redundancy – Offer of Alternative Employment

This issue arose in ADJ-00026299. The issue in relation to being offered suitable alternative employment is set out in Section 15 (2) of the Redundancy Payments Acts 1967 -2015.

The issue is whether the offer constitutes an offer of suitable employment in relation to the employee and where it has been refused

whether it was unreasonable to refuse the offer.

The Adjudication Officer pointed out that this issue is that firstly the offer made must be looked objectively and secondly the decision the

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employee must then be looked at from a subjective stand point. The Adjudication Officer set out that this position had been clearly set out

in Employment Law Second Edition at 19.123 where it states “The question of suitability may be determined objectively whereas the reasonableness of the employee’s refusal is subjective and must be considered from the employee’s perspective. Thus the employee’s perception of the alternative job must be taken into account” The Adjudication Officer reviewed the law in relation to this.

In this particular case the Adjudication Officer found that the employee was 65 years of age, was not in good health and had

afterschool commitments with her granddaughter. The new job would have been one where she would have had to take two buses to get to

Barrow Street premises leaving her with a substantially longer commute time both to and from the workplace. Even though the employer was willing to amend the working hours that would not have

reduced the actual amount of time and effort involved in getting to and from work. The Adjudication Officer found that the employee was entitled to redundancy.

While it is not set out in this particular case the reality of matters is

that a short additional commute would be reasonable. A longer commute would not.

Redundancy

The issue of redundancy is an issue which is going to be arising shortly in many workplaces. The issue arose in case ADJ-00024839.

In that case the Adjudication Officer set out that there are five alternative definitions of redundancy contained in the Redundancy Payments Acts 1967-2007. It was pointed out that the fact that the

requirement of that business for employees to carry out work of a particular kind in the place where the employee was so employed has ceased or diminished or is expected to cease or diminish is a

redundancy situation.

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This is likely to be one of the grounds which is going to arise in cases. The issue in cases is likely to be the issue as to whether the

requirement is likely to diminish as much as it has diminished. We would anticipate that there are going to be a lot of claims in the

WRC over this issue.

Collective Redundancies

Covid-19 is a unique challenge for employers. The challenges for employers are changing effectively on a weekly basis. Employers are trying to minimise the impact on their workforce, to look after the

health and safety of their employees, and to protect the business going forward.

One issue which we see arising is unfortunately the issue of collective redundancies.

Now the first question is always what is a collective redundancy. A collective redundancy occurs where a particular number of employees

in any employment are made redundant within a thirty-day period. The thirty days must be consecutive or put in very simply language

one after another. Therefore, for example if employees were made redundant on the 28th February and further employees were made redundant on the 2nd or 3rd of April that would not be a collective

redundancy provided the numbers did not exceed the threshold.

The issue then is what are the thresholds. This depends on the number of workers.

Under 21 workers there can be no collective redundancies. Between 21 and 49 employees then 5 or more must be made

redundant.

Between 50 and 99 employees then 10 or more must be made redundant.

Between 100 and 299 employees 10% or more must be made redundant.

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300 employees or over then 30 employees or more.

In looking at the numbers of employees the provisions of the Protection of Employment Act 1997 set out that you must look at the

number of employees averaged over the 12 months before the date on which the first dismissal takes effect. What does this mean? It means

in the previous example let us take a company which has 24 workers. Three are made redundant at the end of February. That does not create collective redundancy. One more is made redundant in April

therefore there is no collective redundancy as it is not within the 30 consecutive days. The employment is then down to 20 employees. If in June five more employees are to made redundant at that stage you

look at the number of employees that were there in the preceding 12 months and in those circumstances in respect of the redundancies in

June these would be a collective redundancy because of the fact that there would have been 24 employees previously in the preceding 12 months.

In the case of a collective redundancy an employer is obliged to provide certain information to the employee’s representatives and to

consult with them. They must also notify the Minister who also has to be provided with relevant information.

The representatives will be a trade union, a staff association or a body which has been the practice of the employer to conduct collectively

bargaining negotiations with. In the absence of a trade union, staff association or such a body then it is a person or persons chosen by

the employees to represent them and negotiate with the employer. It is not a matter of the employer nominating somebody.

The employer can decide on the method of election and the number of representatives but it is the employees who elect the representatives. It may be appropriate if there are different classes of employees who

could be affected that representatives would be elected from each class. Take for example a company which is involved in distribution.

There will be office staff, there will be those working in the warehouse and there will be those who will be drivers delivering goods. On a very simple basis there would therefore potentially be three different

groups of workers who would have possibly different issues but certainly would be defined constituencies.

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The employer is obliged to provide certain information and this

includes the reasons for the proposed redundancies, the number and description of categories of employees who it is proposed to make redundant, the number of employees and categories normally

employed, the number of agency workers to which the Protection of Employees (Temporary Agency Work) Act 2012 applies, to specify

those parts of the business in which the agency workers are working and the type of work those agency workers are engaged to do. The employer must also set out the period during which it is proposed to

put in place the redundancies, the selection criteria and the method of calculating the redundancy payments. The employer must give all of this information also to the Minister.

The consultation period with the representatives must be at the

earliest opportunity but in any event at least 30 days before the first notice of dismissal is given. The employer must look at the possibility in these negotiations of avoiding the redundancies, reducing the

numbers to be made redundant and must look at issues such as redeployment or retraining of employees made redundant.

The company cannot avoid going through this process as failure to do so can be a breach of the requirements.

Some employers mistakenly believe that once the collective redundancy negotiations have finished that that is the end of matters.

That is not the position. Individual consultations must be carried out with the at-risk employees. An employer who fails to do so can be

liable on convictions to a fine not exceeding €5,000. It should also be noted that failure to consult can result in a complaint to the WRC. In some cases, it can result in an injunction.

It is likely that the issue of collective redundancies is going to become a significant issue over the coming months. It is important for both

employers, employees and representatives to be aware of the relevant collective redundancy legislation.

Fair Selection for Redundancy

This issue was addressed in ADJ-00018415. The Adjudication Officer quoted the case of Williams –v- Comp Air 1982 1 ICR156 where

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Browne Wilkinson J in considering the issue of fair selection identified the following generally accepted principles governing how reasonable

employers will typically act.

1. The employee will seek to give as much warning as possible of

impending redundancies so as to enable the Union and employees who may be affected to take early steps to inform

themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2. The employer will consult the Union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In

particular, the employer will seek to agree with the Unions on criteria to be applied in selecting the employees to be made

redundant. Where a selection has been made, the employer will consider with the Union whether the selection has been made in accordance with those criteria.

3. Whether or not an agreement as to the criteria to be adopted has been agreed with the Union, the employer will seek to establish criteria for selection which so far as possible do not

depend solely upon the opinion of the person making the selection but can be objectively checked against such things as

attendance records, efficiency at the job, experience, or length of service.

4. The employer will seek to ensure that the selection is made

fairly and in accordance with these criteria and will consider any representation the Union may make as to such selection.

5. The employer will seek to see whether instead of dismissing the employee he could afford him alternative employment.

In Boucher –v- Irish Productivity Centre 1994 ELR205 this was a case which covered the issue of unfair selection. The selection had been

carried out without any consultation or interviews. The Employment Appeals Tribunal emphasised that those in the group likely to be

dismissed should be made aware that such assessment is being made and should be given an opportunity to give their views which should be considered.

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In Mulligan –v- J2 Global (Ireland) Limited UD-993-2009 in respect of redundancy the Tribunal stated;

“In case of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases there may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissal Acts as such a lack of procedure may lead to the conclusion that an Unfair selection for redundancy had taken place!”.

In JVC Europe –v- Banasi 2011 IEHC279 Mr. Justice Charleton stated;

“It is made abundantly clear by the Legislation that redundancy, while it is a dismissal, is not unfair. A dismissal however can be distinguished as redundancy that is not lawful. Upon dismissal an employee can simply say that the employee was not dismissed for a reason specific to that person but that instead his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. In all cases of dismissal, whether by reason of redundancy or substantial grounds justifying dismissal, the burden of proof rests of the employer to demonstrate that the termination of the employment came within a lawful reason”.

Another case that was quoted is that also of St. Leger –v- Frontline Distributors Ireland Limited 1995 ELR160 where Dermot McCarthy

SC stated;

“Impersonality runs throughout the five definitions of the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job. It is worthy to note that the EC Directive on collective redundancies uses a shorter and simpler definition “one or more reasons not related to the individual worker concerned. Change also runs through all five definitions. This means change in

the workplace. The most dramatic change of all is a complete shutdown. Changes may also mean a reduction in needs for

employees, or a reduction in numbers. Definition (d) and (e) involve

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change in the way of work is done or some other form of change in the nature of the job. Under these two definitions change in the job just

means qualitative change. Definition (e) must involve, partly at least work of a different kind and that is the only meaning we can give to the words “other work”. More or less work of the same kind does not

mean “other work” and is only quantative change”.

It is interesting that the case in JVC Europe Mr. Justice Charleton also remarked;

“It may be prudent, as a mark of a genuine redundancy, that alternatives to letting an employee go, should be examined”.

This is a case where the complaint issued on 4th December 2018. The decision issued on 28th April 2020 with the case having being heard

on 7th June 2019.

We simply mention this as this is a case under redundancy which has arisen before we are likely to have the avalanche of redundancies arising. It issued at a time when we had a considerable amount of full

employment in this country. Therefore this decision is a useful decision as it was written at a different time but it is setting out the

law as it is now going to be applied in these changed circumstances.

Redundancy Selection The issue of the selection for redundancy is an issue which is going to

be arising. This issue did actually arise in case ADJ-00014858. The employee was not successful in that case.

The relevant legislation in Section 6 of the Unfair Dismissals Act 1977. In relation to the issue of selection for redundancy Subsection 3 is the

relevant section which provides: “(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either

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(a) The selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be the ground justifying dismissal, or

(b) He was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1977, representing him or has been established by the custom and practice of the employment concerned, relating to redundancy and there

Were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an Unfair Dismissal”

In looking at this it is also important to look at the provisions in Section 7 subsection 2 the Redundancy Payments Act 1967 as

amended. In these cases the question is always going to be whether the

employee was properly selected for redundancy. In these types of cases it will be imperative for employers to have the appropriate

documentation in place showing the selection process and how it was applied to the employee and how the employee was given fair procedures in relation to same.

A rushed Redundancy may result in an Employment Equality

claim

IN ADJ-0001888318883 the Adjudication Officer in this case awarded a total of €56,000.

In reviewing the case it is clear that the Adjudication Officer did not say that this was not a genuine redundancy situation where a job was moving to another country. The Adjudication Officer did however point

out the decision of Mr. Justice Charleton in JBC Europe Limited –v- Panisi 2001 IEHC279 where he stated;

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“It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined”.

In this case the employee was given an alternative. She was given time

to consider a new position in a new country before her employment was terminated. However she was only given 9 days. This was to consider moving with her job to France. The Adjudication Officer

pointed out that the employee was still actively interested in the role but was not given sufficient time to get a French Lawyer to advise her on the new contract.

Where making an employee redundant it is important that alternatives

are put forward and considered. At the same time if a new role is being offered the employee must be given sufficient time to consider same. If there is a change in contract arising then of course time will

have to be given. Of course it will depend on what the changes are. If it involves a change in country and therefore the law governing there

employment clearly a lengthy period will have to be given. If it is a minor change then only a short period of time will need to be given.

The case however importantly points out that the issue of redundancies cannot be looked at in a vacuum. Employers must be conscious of the fact that not only may an unfair dismissal claim arise

on the basis of unfair selection but equally an Employment Equality claim can arise.

Discrimination in Relation to Returning to Work

This issue arose in case ADJ-00023183. This is a useful case to read.

The case is interesting in that the Adjudication Officer went through the law in some detail.

The Adjudication Officer pointed out the Council Directive 2002/73/EC states “A woman on maternity leave shall be entitled after the end of her period of maternity leave to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled to during her absence.”

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Section 6.2A of the Employment Equality Act 1998 as amended

recognised that discrimination on the gender ground shall be taken to occur where “On a ground related to her pregnancy or maternity leave the woman employee is treated in a manner which is contrary to any statutory requirements less favourably than another employee, has been and would be treated”

The Adjudication Officer pointed out that the statutory requirement with which the respondent must comply Section 26 of the Maternity Protection Act 1994 which states that an employee shall be entitled to

return to work “Under terms and conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work” In relation to the issue of burden of proof the Adjudication Officer set out the case of A Government Department -v- An Employee where the

Labour Court took account of the decision in Nagarajan -v- London Regional Transport in holding that the prescribed ground need not be

the sole or even principle reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a significant factor.

The Adjudication Officer set out the case relating to the issue of failing

to promote the complainant as evidence of discrimination on the gender grounds. The Adjudication Officer quoted the case of the Labour Court in O’Higgins -v- UCD EDA131 where the Labour Court

stated “It is not necessary to establish that the conclusion of discrimination is the only, or the most likely, explanation, which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts…”

The Adjudication Officer went on to state that the Labour Court stated

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“The court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. The lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination. Where a prima facie case of discrimination is made out and where the respondent fails to show that the discriminatory ground was anything other than a trivial influence impugned the decision the complaint will be made out. The court must be alert to the possibility of unconscious or inadvertent discrimination a mere denial of a discriminatory motive, in the absence of independent cooperation, must be approached with caution.” In relation to the issue of burden of proof the Adjudication Officer

again quoted the case of O’Higgins -v- UCD where the Labour Court stated “Where the onus of proof is on the respondent the question the court must ask itself is whether it is more probable than not that the complainants gender had nothing to do with her failure to be promoted. If, on the basis of all the evidence, the court answers this question in the affirmative the respondent will have discharged its burden. If the court cannot answer that question in the affirmative, or if it concludes the probabilities are equal, the respondent will not have discharged that onus and the complaint must succeed” Miller -v- Minister for Pensions 19472All ER372 and 374 applied. In

this case the employer quoted the case of Cunningham -v- Intel Ireland DEC -E2012/020 but the Adjudication Officer stated this did not assist the employer. In that case the employee had maintained a

strategic position in the organisation while losing some of their operational roles to a more junior colleague. In the case before the Adjudication Officer the employee had lost her strategic role by her

exclusion from the senior leadership team and the absence of any compensatory position.

In this case an award of €41,370 was made representing six months salary. This was awarded as compensation for discrimination. In such

circumstances the award would be exempt from tax.

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Dismissal on the grounds of incapacity or ill health

This issue was addressed in case ADJ-00021334. In this case the Adjudication Officer pointed out that Section 6 of the Unfair

Dismissals Act, 1997 in Subsection 4 provides that a dismissal will not be an unfair dismissal if it results wholly or mainly from one or

more of the following which would include the capacity, competence or qualification of the employee for performing work of the kind which the employee was employed to do. The Adjudication Officer pointed

out in the case of O’ Brien -v- Dunnes Stores Limited UDD1714 that it was an implied term in any contract of employment that the employee will remain fully fit to perform the duties for which he or she is

employed and the loss of that capability can give rise to a dismissal.

The Adjudication Officer also helpfully pointed out in the case of Bolger -v- Showerings (Ireland) Limited 1990 ELR184 was a case where Lardner J set out the test to determine the fairness or otherwise

of a dismissal in such circumstances as follows. In this case it was the ill health of the plaintiff which the company

claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair he must

show that, for the dismissal due to the incapacity the employer must show that.

(1) Ill health must be the reason for the dismissal;

(2) This must be a substantial reason;

(3) The employee must be notified that his dismissal for incapacity

is being considered;

(4) The employee must be given a chance to be heard.

The Adjudication Officer deciding the case referred to the Dunnes

Stores case cited previously where the Labour Court stated, in a case where the complainant was dismissed for reason of ill health,

‘’It is not for the Court to establish whether the complainant was incapable to carry out her duties but rather that it is sufficient that the respondent honestly believed on reasonable grounds that she was. This approach as whether a reasonable employer would have dismissed the

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employee in the same circumstances was explained by Donaldson L J in Union of Construction Allied Trades and Technicians -v- Brane 1981 IRLR224 in the following terms. ‘’It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question ‘would a reasonable employer in those circumstances dismiss?’ however, Tribunals must not fall into error of asking themselves the question would we dismiss? Because there is sometimes a situation in which one reasonable employer would or would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstance”. In this jurisdiction in Bunyan -v- United Dominions Trust 1982

ILRM404 the EAT adopted a similar principle.It is sometimes mistakenly assumed by employees, in such circumstances, that the test is for them to show that the employer was wrong and that they

could have preformed the work. That is not the test. The test is whether a reasonable employer would have dismissed. These are

always difficult cases. The employee is always going to be of the view that they should not be dismissed. It is therefore vitally important, in our opinion, that in addition to the above steps that, and this has

been set out in other cases so it wasn’t relevant in this case, that the employer gets an appropriate medical report and make sure that that

report is given to the employee and that the employee has an opportunity to have their own medical representative comment on that report.

Retirement on the age ground

A particularly useful decision issued from the WRC in case ADJ-

00019975. In this case a considerable amount of law has been quoted by both, the Union representing the employee and by IBEC representing the employer. It is a very useful case for anybody to read

who is interested in the issue of age discrimination, simply because of the fact, if nothing else, that the law has been argued so fully.

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Unfair Dismissal – Is a Dismissal Unfair In case ADJ-00024130 the Adjudication Officer set out that the test of

reasonableness was set out in Norltake (IRL) Ltd -v- Kenna UD88/1983 as

1. Did the company believe that the employee misconducted

himself as alleged; if so?

2. Did the company have reasonable grounds to sustain that belief? If so;

3. Was the penalty of dismissal proportionate to the alleged

misconduct?

In relation to the penalty of dismissal and whether it is proportionate to the misconduct the Adjudication Officer pointed out that one has to look at the actual misconduct that occurred. The Adjudication Officer

pointed out that the respondent employer had cited the EAT case of Moore -v- Knox Hotel and Resort Limited UD27/2001 where it was stated

“The claimants actions destroyed the respondent’s trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”

In many cases this issue constantly comes up. It is useful that the Adjudication Officer has restated the law.

The test of whether or not it was reasonable is not what the Adjudication Officer might believe. It is not one to establish the guilt

or innocence of the claimant or whether the Adjudication Officer themselves would have dismissed in this situation. The law as set out by the Adjudication Officer also quoting the case of Looney and Co.

Limited -v- Looney UD843/1984 is one where the EAT had set the law out, very clearly as being;

“Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided to set this up as a standard against which the employer’s actions and decisions are to be judged”

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Unfair Dismissal and Fair Procedure

This arose in case ADJ-00016397 where the Adjudication Officer set

out the law on this quoting the case of Redmond on Dismissal Law Third Addition Chapter 13.23 which stated:

‘‘The challenges facing an employer seeking to justify, having dispensed with or disregarded fair procedures, will of course be considerable. Achieving a balance between procedural and substantive justice is difficult. The functional importance of manifest justice in industrial relations cannot be underestimated; good industrial relations depend upon management not only acting fairly but been seen to do so. Breach of a fundamental tenet of natural and constitutional justice will not be condoned by the Workplace Relations Commission or the Labour Court on appeal’’.

The Adjudication Officer also quoted the case of Gearon -v- Dunnes Stores Limited UD367/1988 where the EAT held:

‘‘The right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat of her employment is a right of the complainant and is not a gift of the respondent or the Tribunal…. As a right is a fundamental one under Natural and Constitutional Justice; it is not open to this Tribunal to

forgive its breach’’.

The Adjudication Officer pointed out that the passage was applied and endorsed by the Labour Court in Panasov -v- Pottle Pig Farm UDD175 where the Labour Court concluded:

‘’The Court is of the view that a failure to properly investigate allegations of misconduct or afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair”.

In this case the Adjudication Officer held that the dismissal was procedurally unfair and awarded compensation.

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It is important for employers to remember that procedural fairness is an inherent part of dealing with any disciplinary matter.

This issue also arose in case ADJ-00022531 where the Adjudication Officer in that case specifically set out the Code of Practice on

Grievance and Disciplinary Procedures S.I. No.146 of 2000 which states that the procedure for dealing with such issues reflecting the

various circumstances for enterprises and organisations must comply with the general principles of natural justice and fair procedures which include that that employees grievance are fairly examined and

processed, that details of any allegation or complaint are put to the employee concerned, that the employee concerned is given an opportunity to respond fully to any such allegation or complaint and

that the employee concerned is given the opportunity to avail of the right to be represented during the process.

The Adjudication Officer in that case quoted the case of Magill -v- Thompkins Limited UD1665/2012 where the EAT determined that the

dismissal was unfair because: “She was denied due process, and indeed, any process, was not given any details of the complaint against her and had no opportunity to defend herself. Instead, the termination of her employment was presented to her as a fait accompli’’.

In this particular case the employee was called to a meeting without notice and was told there was no requirement for a shop steward. A letter was read to her by the coordinator. She was not advised of a

right of appeal. The hearing was conducted by the CEO who had been a party to the decision to dismiss. The Adjudication Officer quoted the case of the Labour Court in John Cassey -v- A Worker CD/05/596

which stated:

“It is not acceptable for the company to send for an individual without indicating the seriousness of the meeting… and then to summerly dismiss that person’’. The Adjudication Officer held that the process utilised was

fundamentally flawed on many levels. The employee was not given a notice of a disciplinary hearing, was not advised of the seriousness of the complaint, was not allowed representation at the hearing and was

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not advised of the details of the complaint, and was not given an opportunity to respond and was not advised of her right to appeal.

Procedures in Unfair Dismissal Cases

This issue arose in case ADJ-00019683 where the issue arose as to what the issue concerning fair procedures is where an employee admits matters. The Adjudication Officer quoted the case of UDD203

Dunnes Stores -v- Kilpl where the Labour Court considered the situation where the employee had admitted being engaged in other employment at a time she should have been at work had she not

called in sick earlier that day. The court found that in these circumstances there exists :

“A well-established principle that there is a wide degree of flexibility afforded to employers in relation to the manner in which the principles of natural justice are applied in the conduct of disciplinary procedures. The circumstances of each particular case will determine the particular application of those principles in practice. For example, it is accepted that where an employee has freely made it clear and unequivocal admission of wrong doing, the employer is not required to conduct as extensive an investigation into the allegations against the employee as it would in circumstances where employee has, at all times, maintained his innocence Royal Society for the Protection of Birds -v- Croucher 1984 ICR604”

Protection Against Dismissal and Penalisation Under the Safety, Health and Welfare at Work Act 2005

Introduction

As we adapt to our new way of life with Covid-19, employees are now more than ever concerned with health and safety in the workplace. However, with huge unemployment levels in the country, employees

are also worried that raising any health and safety issues in the workplace will have a negative impact on their employment.

Protection

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The Safety, Health and Welfare at Work Act 2005 protects employees

against dismissal and penalisation as a result of raising complaints regarding health and safety in the workplace.

Section 27 (1) defines penalisation as: -

“Any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.”

Section 27 (2) sets out that penalisation can include but is not limited to: -

“

a) Suspension, layoff, or dismissal or the threat of same; b) Demotion or loss of opportunity for promotion; c) Transfer of duties, change of location of place of work, reduction

in wages or change in working hours; d) Imposition of any discipline, reprimand or other penalty; and e) Coercion and intimidation.”

Section 27 (3) specifically provides that an employer shall not penalise

or threaten penalisation against an employee for: - “

a) Acting in compliance with the relevant statutory provisions; b) Performing a duty or exercising a right under the relevant

statutory provisions; c) Making a complaint/representation to a safety representative,

employer, HSA relating to safety, health and welfare at work;

d) Giving evidence in proceedings in respect of enforcing relevant statutory provisions;

e) Being a safety representative or an employee performing

functions under the relevant statutory provisions; and f) Refusing to return to the place of work in circumstances where

the employee believed there to be a serious and imminent danger or for taking steps to avoid such danger.”

If an employee has his/her employment terminated as a result of raising health and safety complaints in the workplace, this dismissal

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will be deemed to be unfair. Section 27 (4) provides that the dismissal of an employee shall be deemed for the purposes of the Unfair

Dismissals Act 1977 – 2001 to be an unfair dismissal if it results wholly or mainly from a penalisation. Section 27 (5) provides that the employee cannot recover under both the Unfair Dismissals Legislation

and Safety, Health and Welfare at Work Act 2005 in the event of a successful outcome.

Claiming for Penalisation/Dismissal

In order to make a claim for penalisation or dismissal arising out of a health and safety complaint, a complaint must be submitted to the Workplace Relations Commission within a period of six months of the

date of penalisation/dismissal. A hearing date will be assigned and an Adjudication Officer of the Workplace Relations Commission will hear

the complaint. The Adjudication Officer can then carry out one or more of the following options: -

1. Declare the complaint to be well founded or not well founded; 2. Require the employer to take a specific course of action; and

3. Require the employer to pay compensation to the employee.

If the parties are not satisfied with the decision of the Adjudication Officer, the case can be appealed to the Labour Court.

Previous cases for penalisation and dismissal arising from health and

safety issues which have been before the Workplace Relations Commission and Labour Court have illustrated that such a claim will only be successful if the employee can prove the following: -

1. That he /she made a complaint to the employer regarding

health and safety issues in the workplace. It is extremely helpful

if the complaint was made in writing and a copy can be produced.

2. That he/she suffered some sort of detriment as a result of making the complaint regarding health and safety issues in the workplace.

3. That he/she can prove that this detriment would not have been suffered if the complaint was not made.

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Other Avenues of Redress

Depending on the circumstances of each employee’s case, there may be more than one avenue to explore for redress. For example, Section

5 (3) (d) of the Protected Disclosures Act 2014 provides for the protected disclosure of relevant wrongdoings, including that “the

health and safety of any individual has been or is likely to be endangered”. As set out above, Section 27 (4) of the Safety Health and Welfare at Work Act 2005 provides that the dismissal of an employee

shall be deemed for the purposes of the Unfair Dismissals Act 1977 – 2001 to be an unfair dismissal if it results wholly or mainly from a penalisation. An employment law solicitor can assist you with

choosing the best avenue of redress for your case.

Conclusion Safety, health and welfare at work is very much a top priority for

organisations at the moment. However, there are, as always, a portion of employers that will have total disregard for health and safety at work. There are protections for the employees in these organisations.

We are here to assist any employees who have been penalised or dismissed for raising health and safety complaints in the workplace.

Maternity Protection Act, 1994 – Safety Leave

This issue arose in case ADJ-00021750. In this case the employer

conducted a risk assessment and submitted this presumably to the Department. The employee in this case was working as a primary school teacher in a primary school. It appears that the Department

refused the application on the basis that the complainants’ issues were of a medical nature as opposed to matters relating to health and safety. The Adjudication Officer in this case said that the employer

had sought certification in line with the terms and conditions of employment and circular letter 54/2019. It appears that this was a

case where all parties being the school and the employee were of the view that there was an imminent health and safety risk it was simply that the Department were not in agreement. The employee in this case

had sought health and safety leave for the period from November 2018 to February/March 2019. Under the Maternity Protection Act the

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relevant provision is Section 18 which would have provided for the employee receiving effectively three weeks pay. The Adjudication

Officer took the view as the Adjudication Officer is entitled to do that the issue of health and safety leave was determined by the employees’ contract of employment. We would be of the view that the entitlement

comes under the Maternity Protection Act and that the employee cannot contract out of those rights by anything in their contract or by

way of a circular from the Department of Education.

Protected Disclosures Act, 2014

In case ADJ-00023015 the Adjudication Officer in this case helpfully set out the test of claiming that there has been penalisation.

The Adjudication Officer correctly pointed out as held by the Labour Court in the case of Aidan and Henrietta McGrath Partnership -v-

Anna Monaghan PDD162 that: “The Court must first establish that a protected disclosure has been made before it can examine whether penalisation within the meaning of the Act has occurred.”

The effect of this as the Adjudication Officer pointed out is that Adjudication Officer must determine whether a protected disclosure

within the meaning of Section 5 of the Act occurred. Under Section 5 it is the disclosure of “relevant information” made by a worker.

To qualify as “relevant information” a worker must reasonably believe that the information disclosed tends to show one or more “relevant wrongdoings” and the wrongdoings must come to the workers attention in connection with their employment. In this case the

employer accepted that a protected disclosure occurred. The next question then is whether the employee was subject to

penalisation. Again, in the previous case the Labour Court addressed this issue saying:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a

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protected act. This suggests that there is more than one causal factor in the chain if events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the complainant having committed the protected act he or she would not have suffered the detriment. This involves in consideration of the motive or reason which influenced the decision maker in imposing the impugned detriment.” In this case the employee complained of three different incidents. The Adjudication Officer found in favour of one of these and awarded

€7,500. Issues under the Protected Disclosure Act are regularly coming up.

There are some misconceptions particularly by employees. The first to these is that to claim penalisation the disclosure must occur prior to

the detriment being complained of. The second is that the employee must disclose a protected act. This is

effectively wrongdoing. The employee must be able to show what the disclosure is and how the employee believes that this is a protected disclosure of a relevant wrongdoing.

The third issue is that employees believe that the level of

compensation is going to be up to five years wages. Up to is the relevant word. The calculation of loss in a protected disclosure case is the same as in an Unfair Dismissal case. There is no general

compensation.

Fourthly, employees sometimes do not understand that they must show that any detriment that they claim happened was as the Labour Court stated “but for” them having made the disclosure what

happened would not have occurred as regards to the detriment they are complaining of.

Protected Disclosures

The issue of protected disclosures is becoming one which is arising in the WRC to a greater extent.

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Case ADJ-00025139 is one where this arose. The Adjudication Officer helpfully set out the legislation in Section 5 setting out what is a

protected disclosure. The Adjudication Officer also pointed out as determined in PDD162

Aiden & Henrietta McGrath Partnership -v- Ann Monaghan:

‘‘A grievance is a specific matter to a worker whereas a protected disclosure is where the worker has information about a relevant wrongdoing’’. In Donegal Co Council -v- Liam Carr PD155 the employee in that case had management responsibilities for whom he reported whereas in

this case the employee was lower down the hierarchy than the person she made the complaint against. The Adjudication Officer held on that

basis that the employee had a reasonable concern and it came within Section 5(2)(d) of the Act.

The Adjudication Officer then helpfully set out what penalisation involved which is set out in Section 3 of the Act. Section 12 of the Act as it was pointed out provides that an employer should not penalise or

threaten penalisation against an employee.

The Adjudication Officer set out the health and safety judgment of Shamoon -v- Chief Constable of the Royal Ulster Constabulary 2003 UKHL11 as per Lord Hope 2003 ICR337 where it was said:

‘‘The test for what constitutes a determined is an objective one and the

Court should consider if a reasonable worker would or might take the view that the treatment complained of was, in all the circumstances, to his or her determined’’.

The Adjudication Officer pointed out that the Labour Court stated that there is a requirement:

“To show a chain of causation between the impugned determined and

the protected act or omission”. That view was expressed by the Labour Court in Óglaigh Náisiúnta Na

hÉireann -v- McCormack HSD115.

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The Adjudication Officer pointed out that as set out in case PDD201 Financial Services Union -v- Hanna that:

‘‘Redress for contravention of Section 12(1) provides for an award of compensation which is just and equitable having regard to the

circumstances’’.

The Adjudication Officer in setting compensation of €6,500 did so on the basis of her loss of earnings where she was temporarily relocated for approximately seven weeks which resulted in the loss of €409.05.

The Adjudication Officer also noted the impact this complaint had on the complainant resulting in her absence from work with anxiety.

In case ADJ-00023015 the Adjudication Officer in that case also quoted the case of Aiden & Henrietta McGrath Partnership -v- Ann

Monaghan, which in relation to the issue of determined by stating: “Thus, the determined giving rise to the complaint must have been

incurred because of, or in retaliation for, the complainant having committed a protected act. This suggests that where there is more then one causal factor in the chain of events leading to the determined

complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the complainant having committed

the protected act he or she would not have suffered the determined. This involves the consideration of the motive or reason which influenced the decision maker in imposing the impugned determined.”

Burden of Proof in Employment Equality Cases This arose in a case of Monga and Health Service Executive ADJ-

00016512. The complainant claimed that he was discriminated in that there was no clear policy or procedure followed in the selection of the successful candidate and there was no feedback as to why he was

unsuccessful. The complainant referred to the following authorities in support of the case being Bosz -v- Damoli Construction Solutions

Limited 2011 ELR34, Dublin Corporation -v- Gibney ESS 1986 in relation to establishing a prima facie case and Minagucbi -v- Wine Port Lakeshore Restaurant EDA034 on the shifting of the burden of

proof.

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The respondent in relation to the burden of proof raised some well-known cases. In relation to the prima facie case they referred to the

case of Southern Health Board -v- Mitchell DEE011 also at 2001ELR201 and Arthurs Valpeters -v- Melburry Develops Limited 2010 ELR64. They also referred to the decision in Margetts -v-

Graham Anthony and Company Limited EDA038 where the Labour Court referred to the mere fact that the complainant fell within one of

the grounds is not sufficient in itself to establish a claim of discrimination.

In deciding the case it is also important that the Adjudication Officer referred to the case of Fagan -v- Revenue Commissioners DEC-E-2008-004 where the Equality Officer found in favour of the

complainant mainly due to the lack of cogent evidence from the respondent and the non-existence of documentary evidence to

substantiate its case that discrimination did not play into its decision making.

It is useful that the Adjudication Officer in this case took the time to set out the law in some detail.

This issue arose also in ADJ-00025124.

The Adjudication Officer in this case set out that provisions of Section 85 A(1) of the Acts. The Adjudication Officer set out that in order to demonstrate that the claimant had received less favourable treatment

and that the less favourable treatment arose from one of the protected grounds that the claimant must first establish a prima facie case of

discrimination the Adjudication Officer set out the prima facie evidence had been held by the Labour Court in Rotunda Hospital -v- Gleeson DDE003/2000 to be:

‘‘Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that

discrimination has probably occurred’’.

The respondent in this case had set out that this requires that a claimant has to not only establish the primary fact upon which he or she will seek to rely but also that those facts are of sufficient

significance to raise an inference of discrimination and refer to the

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case of Cork City Council -v- McCarthy EDA21 2008 where the Labour Court recommended that:

‘‘The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the

probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect

discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from

those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain in particular facts or a set of facts which are proved in evidence. At the initial stage the

complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is

the only, or indeed the most likely explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those

facts’’ The Adjudication Officer also pointed out that in Melbury

Developments Limited -v- Valpeters 2010 ELR64 that the Labour Court had warned that:

‘‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination

can be drawn’’.

It is helpful that the Adjudication Officer in this case has set out the law in such depth.

Reasonable accommodation of a person with a disability

This issue arose in ADJ-00017854 where there was a considerable amount of legal argument in relation to issues. This is helpful. While it

is a case where the employee won a sum of €5,000 what is more interesting in this case for Lawyers and those involved in representing in the WRC is what was set out in relation to the law.

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This case involved the issue of being able to hear. The employer distinguished the facts of Mr. C -v- Bus Eireann DEC/E2007/046

where the complainant in that case disputed he had a hearing problem and a question of hearing aids central to this particular case did not arise. The counsel in the case however quoted from the

decision in relation to whether driving could be deemed a hearing critical job. In that case it was stated;

“If it is hearing critical, then the respondent must reassure itself that its drivers attain the standard set in accordance with best practice.”

In relation to ascertaining the condition of an employee with a disability it is important to remember the case of Humphries –v-

Westwood Fitness Club 2004 15ELR296 where the employer at a minimum must ensure that he or she is in possession of full facts

concerning the condition the employee complains of and that the employee must be allowed an opportunity to influence the employers decision. It was pointed out that this is a two stage enquiry namely an

enquiry on the factual position of capability followed by the issue as to whether any special treatment or facilities may be available to the employee to become fully capable. In this case the Adjudication Officer

was satisfied that the employer complied with the procedural requirements necessary for reasonable accommodation.

The Adjudication Officer also quoted the Supreme Court decision in Nano Nagle School –v- Daly 2019 IESC which clarified the duty

imposed by Section 16 of the Employment Equality Acts. The Adjudication Officer pointed out that the primary obligation of an

employer in relation to an employee with a disability is to take appropriate measures, where required in a case, to enable the employee to continue in employment. This includes an obligation to

consider relieving the disabled employee of duties they cannot perform but must not following an evaluation place a disproportionate burden on the employer. The obligation to provide reasonable accommodation

does not extend to creating an entirely different job. An employee with a disability must be fully capable of performing the duties of the

position after it is modified by the application of reasonable accommodation which can relieve the employee of the requirements to perform certain duties which they cannot perform.

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We particularly mention this case as it is a useful case to read for anybody considering bringing or defending a claim on disability

grounds. We believe this is likely to arise to a significant extent where businesses reopen and an employee has a concern about returning to work.

It must be remembered however, that for an employee to come within

the provisions of the Employment Equality Legislation they will first have to show that they suffer from a disability. We would expect some fairly novel arguments to arise in this area. The WRC and the Labour

Court will probably have to rule on a significant number of cases as to whether the person has or has not got a disability.

It is only if the person has a disability that this is an issue of then investigating the disability and looking to see what accommodation

could be made will arise. This issue also arose in ADJ/00017777 where the Adjudication Officer

in that case helpfully set out what a disability means as set out in Section 2 of the Act.

“It is:

(a) The total or partial absence of a person’s bodily or mental functions including the absence of a part of a person’s body.

(b) The presence in the body of organisms causing, or likely to

cause, chronic disease or illness (c) The malfunction, malformation or disfigurement of a part of a

person’s body (d) A condition or malfunction which results in a person learning

differently from a person without the condition or malfunction,

or (e) A condition, illness or disease which affects a person’s thought

processes perception of reality, emotion or judgement or which

results in disturbed behaviour and shall be taken to include a disability which exists at present or which previously existed

but which no longer exists or which may exist in the future or which is imputed to a person.”

The issue of disability was recently considered by the Labour Court in a case of Houses of the Oireachtas –v- Hickey EDA1918 where the

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Judgement of the CJEU in Chacon Navas –v- Eurest C-13/05 and Ring –v- Dansk C-335-11 where referred to.

The Adjudication Officer in this case specifically pointed out that the Labour Court stated it was:

“Bound by the Judgement of the Court of Justice in case C-335-11. It

is clear from the extract quoted above from that judgement that a relatively short illness, such as that experienced by the complainant in this case, does not amount to a disability that hinders “the full and

effective participation of the person concerned in professional life on an equal basis as other workers.”

We are simply setting these two cases out to highlight the importance that if bringing a claim under the Employment Equality Acts claiming

a disability the burden of proof will initially be on the employee to show that they have a disability.

Equal Pay Claims

This issue arose in case ADJ-00024040.

The Adjudication Officer set out that the relevant time in relation to a claim is any time during the three year period which proceeds or the three year period which follows the particular time.

The Adjudication Officer noted that it is set law that a complainant is

entitled to choose her own comparators and in this case the complainant choose two male comparators who were appointed at the same time from the same competitive interview as the complainant

was. It was accepted that the complainant was paid at a different rate to the comparators. The complaint was received on the 28th August 2019. The comparators were appointed in February 2017. Therefore

the claim was within the relevant time.

The respondent in this case which was Dublin County Council submitted three precedent cases per submission. The first was a case of Cadman -v- HSE (C-17/05). This is a case where the CJU rejected

an equal pay claim on the basis that length of service is an appropriate criteria and has a legitimate objective for rewarding

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experience acquired. Also the case of Wilton -v- Steel Company of Ireland where it held there was no discrimination as the comparator

was actually receiving a higher salary as a result of longer service and not because of gender and also the case of Irish Aviation -v- Impact DEP 993 where it was established that the difference in pay related to

a grading structure not gender.

The Adjudication Officer in this case looked at Article 141(1) which had been set out in the Cadman case that that provision can be direct but also indirectly discriminatory as set out in case C-285/02. The

Adjudication Officer also quoted from that case where it was stated: ‘‘It is apparent from settled case law that Article 141EC, like it’s

predecessor Article 119 of the EEC Treaty (which became Article 119 of the EC Treaty-Articles 117 to 120 of the EC Treaty have been

replaced by Article 136 EC to 143 EC, must be interpreted as meaning that whenever there is evidence of discrimination it is for the employer to prove that the practice at issue is justified by objective factors

unrelated to any discrimination based on sex’’. The Adjudication Officer quoted the case of C-33/89 and C-4/02 and

C-5/02. The Adjudication Officer went on to quote from the Cadman case that:

‘‘This justification given must be based on a legitimate objective. The means chosen to achieve that objective must be appropriate and

necessary for the purpose’’

The Adjudication Office held that where three individuals were recruited to undertake the same job at the same time and are doing the same work but that the two male employees are paid at a higher

rate of pay this is sufficient to ground a prima facie case of discrimination. The Adjudication Officer held that the County Council had not proved justification of the denial of equal pay. The

Adjudication Officer found that the respondent had not found justification of the denial of equal pay and in the absence of

information under Section 76 procedure and in the absence of an adequate explanation for the pay differential between the complainant and the two named comparators having regard to all the forgoing

information including the oral submissions it was that the employee was entitled to succeed.

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Constructive Dismissal – Using the Grievance Procedure Normally an employee will have to use the grievance procedure. There

is an exception as was set out in the case of Allen -v- Independent Newspapers Limited where the Employment Appeals Tribunal had

held that: “The claimant concluded that she could have no confidence in the

respondent to either properly or effectively address her grievances was a reasonable conclusion in all the circumstances. Moreover, the claimant did not act unreasonably, in taking into consideration the

likely effect on her health and wellbeing were she to remain the work environment.”

In many cases that we see employees consider that they do not have to go through the grievance procedures because of the view that they

would have no confidence in the respondent. The issue however is that this has to be coupled also with the likely effect on their health and wellbeing and in reality, this would need to be backed up with

medical documentation. Normally an employee is obliged to go through the grievance procedure as held in a case of Conway -v-

Ulster Bank Limited UD474/1981/. That is a case where the EAT found that the employee had not acted reasonably in resigning without first having substantially used the grievance procedure to

attempt to remedy her complaints.

In this particular case it is interesting that the solicitor for the employee had sought, on behalf of the employee to raise the grievance procedure. The employer had not commenced an official grievance

investigation when requested by the solicitor for the employee. The Adjudication Officer therefore held that the employee had sought to utilise the grievance procedure and this was sufficient to ground a

claim for Constructive Dismissal.

Where an employer gets a grievance submitted either directly by the employee or by their legal representative or union the employer should instigate a grievance process.

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Resignation

This issue arose in case ADJ-00018811. In this case the Adjudication Officer referred to the case of Willoughby

-v- CF Capital PLC 2011IRLR985 where at paragraph 27 it was stated:

“The special circumstances exception to which I have referred is one that finds its expression and application in several reported authorities. They are cases in which either the employee has given an oral notice of resignation or (less commonly) in which the employer has given an oral notice of dismissal. The words of the notice so given may, on the face of it, be clear and unambiguous and may take effect according to their apparent terms. Indeed, the general rule is that they will do so. The authorities recognise, however, an exception to that general rule namely, that the circumstances in which the notice is purportedly given or sufficiently special that it will or may not take such effect. For example, the words of notice may be the outcome of an acrimonious exchange between employer and employee may be uttered in the heat of the moment such that there may be a real question as to whether they were really intended to mean what they appeared to say. In such circumstances it will or may be appropriate for the recipient of such notice to take time before accepting it in order to ascertain whether the notice was in fact intended to terminate the employment”

It was held at paragraph 37: “It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon, the circumstances in which it is given may require him first to satisfy himself the that giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be”

In the case of Millett -v- Shinkwin DEE2004ELR319 the Labour Court stated the “general rule” as follows “A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end.

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The contract cannot be reconstructed by a subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract” The Adjudication Officer also pointed out Redmond on Dismissal Law

22.22 at page 495 which states: “Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned”

There are going to be times when employees for one reason or another are going to utter words that they may subsequently be sorry they

said. There will be limited times when a resignation or dismissal were clear words are used can be classified as meaning anything other than what was said.

Effectively it is an issue of:

“Act in haste – repent at ease”

Gig Economy – A further development from the European Court of Justice.

The case of B-v-Yodel Delivery Network Limited Case C-692/19 has the potential for significantly changing how individuals are categorised

as self-employed.

The dispute concerned B who operated in a parcel delivery courier service. He carried on his business exclusively for Yodel. He used his own vehicle and own mobile phone. Under the agreement couriers are

not required to perform the deliveries personally but may appoint a subcontractor who’s substitution Yodel may veto if that person does not have the level of skills and qualifications at least equivalent to that

required of a courier engaged by Yodel. The service agreement provides that the courier is free to deliver parcels for the benefit of

third parties at the same time as providing services on behalf of Yodel. Yodel is not required to use the services of the courier just as the

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couriers are not required to accept any parcel. In addition, the couriers may fix a maximum number of parcels which they are willing

to deliver. As regards working hours the couriers with whom Yodel concluded service agreements require the parcel to be delivered between Monday and Saturday of each week and they must be

delivered between 7.30am and 9pm. A fixed rate is paid for each parcel. The Court pointed out that it is for the National Court to apply

the concept of a ‘worker’ for the purposes of Directive 2003/88 and the National Court must in order to determine to what extent a person carries on his activities under the direction of another base that

classification on objective criteria and make an overall assessment of all the circumstances of the case brought before it having regard both to the nature of the activities concerned and the relationship of the

parties involved. The Court referred to case C-428/09 and also case C-147/17. The Court also pointed out that since the employment

relationship implies the existence of a hierarchical relationship between the worker and his employer the issue whether such a relationship exist must in each particular case be assessed on the

basis of all the factors and circumstances characterising the relationship between the parties and again the Court referred to case C-47/17 and C-147/17.

The Court pointed out that an essential feature of an employment

relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives a remuneration. This has been set out in a number

of cases being C-316/13 and C-518/15.

Importantly the Court pointed out that simply calling a person ‘an independent contractor’ does not prevent that person being classified as an employee within a meaning of EU law as was held in case C-

413/13. The Court pointed out that in the case of a person who although hired

as an independent service provider under National law for tax, administrative or organisational reasons who acts under the direction

of his employer as regards, in particular, his freedom to choose the time, place and content of his work, does not share in the employers commercial risk and for the duration of that relationship forms an

integral part of the employers undertaking, so forming an economic unit with that undertaking. The Court pointed out on the other hand

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more leeway in terms of choice of the type of work and task to be executed of the manner in which the work of those tasks are being

performed and of the time and place of work and more freedom in the recruitment of his own staff are the features which are typically associated with the functions of an independent service provider. The

Court referred to case C-270/13.

The Court pointed out that the Directive concerning aspects of the Organisation of Working Time must be interpreted as precluding a person engaged by his putative employer under a service agreement

that stipulates that he is self-employed independent contractor from being classified as a ‘worker’ for the purposes of that Directive where that person is afforded discretion.

(a) To use subcontractors or substitutes to perform the services

which he has undertaken to provide;

(b) To accept or not accept the various tasks offered by his putative

employer or unilaterally set the maximum number of those

tasks;

(c) To provide his services to any third party, including direct

competitors of the putative employer, and

(d) To fix his own hours of work within certain parameters and to

tailor his time to suit his personal convenience rather that solely

the interests of the putative employer.

Provided that, first the independence of that person does not appear

to be fictitious and second it is not possible to establish the existence of a relationship of subordination between that person and his putative employer. However, it is for the referring Court, taking

account of all relevant factors relating to that person and to the economic activity he carries on classifying that persons professional

status under Directive 2003/88. On the issue of the Gig Economy clearly the issue of being allowed act

for competitors is going to be a significant issue, this will apply both to what could be called the delivery services as it will to situations where professional services are being provided. Equally the issue of setting

hours of work is going to be a particular problem for those who use contractors to provide services on site.

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A considerable number of contracts which are put in place for these

types of workers will need to be reviewed in light of this recent decision. The issue of hours of work is going to be one which is likely to cause some difficulties. In the particular case dealt with by the

CJEU, the Court pointed put that the requirement to deliver between particular times would not appear to be fictitious but create a

relationship of subordination as a requirement to deliver is inherent to the very nature of that service. It may become more difficult if you take an individual providing a professional service to require that they

need to be available between 9am-5pm or some other set hours unless the person engaging them can show that that is an inherent requirement. Where such clauses are in agreements it is going to be

easier to argue that the individual is in fact an employee. In the area of deliveries certainly it appears clear that it is legitimate to provide

that certain parcels, for example would have to be delivered between a particular time. It may be more difficult to provide for other delivery services that individuals would be available at certain times. In the

area of services to firms and companies the very fact of having set times will have to be able to be justified. It will have to be able to be shown that this an inherent part of the service.

For those in the delivery services the issue of individuals being

allowed subcontract the work is not going to be as problematical as that where professional services or specialist services are being provided. The level of control over appointing a suitable alternative or

substitute will be extremely limited.

While this case referred to those in the service industries it is our view that this decision is going to cause a significant number of individuals in companies classified as self-employed contractors now converting

to ‘workers’ under the Directive. This is an extremely important decision and has the potential to

significantly change how businesses will need to operate as regards using self-employed contractors going forward for in particular

professional type services whether that be, for example accounting, or project based contracts.

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Sexual Harassment

In case ADJ-00017891 this is a case where the Adjudication Officer was satisfied that the employee was subjected to sexual harassment.

The Adjudication Officer however held that they were satisfied that the employer in this case put in place appropriate measures and had

taken reasonable practical steps to prevent such harassment and sexual harassment occurring and therefore could rely on the provisions of Section 14 A (2) of the Employment Equality Acts. The

claim therefore failed. This case highlights the importance of employers having in place

appropriate protection for employees. Once the employer has the appropriate policies and procedures in place then it is possible that

the employee may not be successful even in a sexual harassment case where it is found that sexual harassment occurred. If however the employer does not follow their own procedures even if there are

policies in place then of course the employee can still win their case.

Wearing Signs of a Political/Religious Belief This issue was addressed in a case of Achbita -v- G4S Solutions C-

157-15. That case from the CJEU addressed that neutral blanket bans and unwritten rules that a worker could not wear signs of a

political or religious belief held that it was not direct discrimination but that a link to indirect discrimination could be drawn.

In Irish law there is no discrimination where there is a ban on political insignia being worn. Our legislation does cover religious beliefs.

If an employer in Ireland is going to put in place a ban on religious insignia which can include a matter such as wearing a cross the

employer needs to be in a position to justify such a ban. What will be appropriate for one business will not be appropriate for the business next door. Before an employer puts in place any ban it is important to

ensure that appropriate advice is obtained.

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Practical issue with bringing claims where a company is in liquidation.

The provisions of Sections 678 of the Company Act 2014 provide that where a resolution to wind up a company has been passed or a

liquidator has been appointed no proceedings can issue against that entity without leave of the High Court. Subsection – Section (2)

provides an exemption where a claim is brought to the Employment Appeals Tribunal (‘EAT’). The EAT has not been in a position to accept cases since the end of August 2015. Post Covid-19 there is the

potential that there will be a considerable number of cases where companies will go into liquidation. There will be an issue of jurisdiction for the WRC to actually hear cases in such circumstances

without the appropriate application. It would be preferable if Section 678 of the Company Act 2014 was amended by the deletion of the

words ‘Employment Appeals Tribunal’ and the insertion instead of the words ‘Workplace Relations Commission’ if that is not done there will be a potential significant number of applications which will go to the

High Court. There may well be claims against the state for failing to vindicate rights particularly in relation to claims under any act implementing a Directive. There will also be the position the

liquidators, being obliged to protect the assets of a company, will be raising this section as a defence that the WRC has no jurisdiction this

could very badly impact on individuals who do not have representation.

National Minimum Wage – reference periods

The issue of the reference period for the National Minimum Wage Act has arisen in a number of cases. There are number of decisions from

the Labour Court which are very clear in relation to these issues where the longer reference period of 6 years has been applied. There are some decisions from the WRC where the 6 years period is applied

and others where the 6 months period is applied. It will probably be helpful if the Labour Court give a further definitive

ruling on this issue.

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Annual Leave Year for Holiday Purposes

The issue of holidays is now arising. One issue is the issue of the holiday year. Many companies will have a contract which provides

that the holiday year runs from the 1st January to the 31st December.

Employees may bring claims saying that they did not get their holidays or their full holidays within the leave year.

Claims are issued under the Organisation of Working Time Act. The leave year under the Organisation of Working Time Act is the period from the 1st April to the following 31st March.

We regularly hear in cases particularly from those defending claims

that an employee did not get their annual leave that the company’s annual leave year runs from the 1st January to the 31st December. This issue was addressed by the Labour Court in the case Waterford

County Council -v- O’Donoghue DWT0963: “The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1 April and ending on 31 March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period” For bringing a claim in respect of annual leave because the leave year ends of 31 March an employee cannot bring a claim that they did not receive their annual leave entitlement until after the 31 March. They

then have until the 30th September to lodge a claim. Once they lodge the claim that case then goes back and covers the entire leave year.

If an employee however is not paid their holiday pay, before going on holidays they can issue at any stage within six months of having gone

on holidays.

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Claim under the National Minimum Wage Act.

The issue of the time limit arose in the case ADJ-00022057. In that case the Adjudication Officer set out that the employee worked from

the 13th October 2018 until the 19th April 2019. The claim was submitted to the adjudication service of the WRC on the 15th June

2019. The Adjudication Officer held that the relevant period covered by that claim was a period from the 16th December 2018 to the 19th April 2019.

We would have to disagree with this reasoning. A claim under the National Minimum Wage Act goes back for six years. This has been

held in a number of cases in the Labour Court. In respect of claims under other pieces of legislation then of course the employee would be

limited to six months from the date that the claim is lodged and in this respect the decision of the Adjudication Officer is right.

However as regards the claim under the National Minimum Wage Act we would be of the view of the Adjudication Officer was incorrect on that point.

Applications for extension of time to bring a claim or an appeal.

This issue was addressed in ADJ-00022052 where the Adjudication Officer referred to the case of Cementation Skanska -v- Carroll DWT

38/2003. The Adjudication Officer also referred to the Labour Court decision in Clint McGuire -v- PJ Personnel Limited AWD 201 where

the Labour Court held that: ‘”The test formulated in Cementation Skanska -v- Carroll draws

heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell -v- Dun Laoghaire Corporation 1991 ILRM 30’’. Here Costello J (as he then was) stated as follows

‘”The phrase ‘good reason’ is one of wide import which it would be

futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not

extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What

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the plaintiff has to show (and I think the onus under O.84 r21 is on the plaintiff) is that there are reasons which both explain the delay

and afford unjustifiable excuse for the delay’’. In that case the Labour Court went on to state:

‘’ it is clear from the authorities that the test places the onus on the

applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to

establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the

complainant would have presented the complaint in time were it not for the intervention of the factors relied upon as constituting

reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented. That may undermine a

claim then those factors were the actual cause of the delay. Finally while the establish test imposes a relatively low threshold of reasonableness on the applicant, there is some limitation on the range

of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should

not extend a statutory time limit merely because the applicate subjectively believed that he or she was justified in delaying the institution of proceedings’’

Why is PPE so Important from a Legal Point of View We have heard a lot about PPE, or personal protective equipment, in

the news headlines over the last number of weeks in light of the current COVID19 pandemic. We all know that it is a measure which is used to keep workers safe while carrying out their work in

accordance with their employment. In the current circumstances with COVID19, using PPE will save lives. While there are lots of employers

who will regard the provision of PPE as an absolute priority, there are also employers who have an extremely relaxed attitude to the provision of PPE and, as we move through the economic aftermath of

COVID19, there will be employers who will view PPE as an expensive outlay and cut the cost of providing same. This will end up being the

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most expensive cost saving measure ever implemented by those businesses.

The reason why the provision of PPE is so important from a legal point of view is because employers have a duty of care to employees. While

an employer is not an insurer for its employees, it is well settled law that an employer must take reasonable care for the safety of its

employees. In addition to this common law duty of care, an employer also has a statutory duty of care under the Safety, Health and Welfare at Work Act 2005 to ensure the safety, health and welfare of its

workers so far as is reasonably practicable. Section 2 (6) of the Safety, Health and Welfare at Work Act 2005 sets out the definition of “reasonably practicable”. This is an important definition as this is the

standard of care to which an employer will be held:

“For the purposes of the relevant statutory provisions, “reasonably practicable”, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventative measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.”

So how does an employer take reasonable care for its employees and ensure their safety, health and welfare so far as is reasonably

practicable? It can provide a safe place of work, a safe system of work, competent staff and proper equipment. Providing PPE can help achieve a safe place of work and a safe system of work. However, the

provision of PPE and simply leaving it in the workplace will not be sufficient. All employees must be instructed to use the PPE and employers must ensure so far as is reasonably practicable that all

employees are following these instructions.

An employer also has a statutory duty under Section 19 of the Safety, Health and Welfare at Work Act 2005 in relation to hazard identification and risk assessment. A risk assessment will identify the

risks of COVID19 in the workplace, the protective and preventative measures taken and the resources provided for protecting the safety,

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health and welfare of workers at the place of the work. All of this information should then be recorded in a safety statement pursuant

to Section 20 of the Safety, Health and Welfare at Work Act 2005. Again, this is where the provision of PPE and instruction in relation to the usage of same will arise.

While reading the above, an employer may think that this is just

lawyers being overzealous about health and safety law. However, if an employee becomes sick or injured at work and subsequently brings a personal injury claim or the employee’s family bring a claim for fatal

injuries, a Court will analyse whether proper equipment, a safe place of work and a safe system of work were implemented. In addition, a Court will also examine whether the employer complied with its

statutory obligations under the Safety, Health and Welfare at Work Act 2005. If an employer has not been compliant, it will have a

difficult time successfully defending such an action. There may even be issues with insurers providing indemnity in extreme cases as a result. Accordingly, it is in an employer’s best interests to be

compliant in an effort to keep injury and illness among employees at a minimum at work. This will also result in happier employees which contributes to good productivity and revenue for business, which will

be needed as our economy navigates its way out of the aftermath of COVID19.

€87,000 AWARDED TO WOMAN FOR PSYCHIATRIC INJURY

In the case of Lisa Sheehan -v- Bus Eireann – Irish Bus and Vincent Dower [2020] IEHC160, Ms Sheehan was awarded a total of €87,238 in a judgement of the High Court dated the 3rd April 2020. The award

consisted of €65,000 for general damages to date and €20,000 for general damages into the future, making a total of €85,000. Special damages in the sum of €2,238 were awarded, making the total award

€87,238. The case is interesting in that it discusses liability for negligently

inflicted psychiatric damage at length. The case raised two fundamental issues, namely: -

1. What is the nature and scope of the duty of care not to cause a

reasonably foreseeable psychiatric injury to a person who was

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not directly involved in the accident caused by that breach of

duty?; and

2. Does the law recognise a right of recovery for the psychiatric

consequences of witnessing an accident, if the primary victim is

the tortfeasor rather than a blameless third party?

The subject matter of the proceedings was a road traffic accident which occurred on the 28th January 2017 when a bus was struck

head on by a single occupant motor vehicle. The driver of the motor vehicle was killed in the road traffic accident and the second named defendant was the nominated representative of that motor vehicle’s

insurer, FBD Insurance. At the time of the road traffic accident, Ms Sheehan was travelling in her motor vehicle when some debris from

the accident struck her motor vehicle, causing her to brake. The accident had already occurred and she was not a witness to same. She got out of her motor vehicle and saw diesel oil and, perhaps,

blood on the road. She also witnessed the damaged passenger bus and severely damaged motor vehicle. She ran to the motor vehicle and saw a badly disfigured and partially decapitated body of what looked

like a child in the back of the car. This gave Ms Sheehan a tremendous fright and she telephoned the emergency services. The

disfigured body in the back of the motor vehicle was that of the adult driver. It had been propelled to the back of the motor vehicle by the force of the impact of the collision. While waiting for help, Ms Sheehan

searched the surrounding area for other victims. She encountered the driver of the bus, who’s face was covered in blood. The victims of the

road traffic accident were strangers to Ms Sheehan. Ms Sheehan was obliged to attend with her general practitioner three

days after the accident, having suffered a panic attack at work. She was tearful, agitated and experiencing flashbacks of images of the accident. She was prescribed anxiolytic and antidepressant

medication, referred for counseling sessions and certified as unfit for work. Unfortunately, her symptoms did not resolve and she was

obliged to attend with a consultant psychiatrist subsequently. She continued to suffer with nightmares and flashbacks, which caused sleep disturbance. She was withdrawn and distant from everyone,

including her husband and her family. Normal intimacy with her husband had ceased. She developed anxiety about the car travel

associated with rural life and wanted to move to an urban area to lessen car travel time. This had become a further source of strain and

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friction within her family. She was irritable and hypervigilant and had outbursts of anger. She would constantly ruminate about what she

had witnessed at the scene of the accident. She remained apprehensive and pessimistic about the future. She was diagnosed as having a moderately severe post traumatic stress disorder after an

initial stress reaction at the scene of the accident, together with a depressive adjustment reaction. Despite continued therapy and

medication, her prognosis for recovery remained guarded. In his judgement, Mr Justice David Keane concluded that the test for

liability for negligently inflicted psychiatric injury is that set out by Hamilton CJ in the Supreme Court case of Kelly -v- Hennessy [1995] 3IR 253. In that case, Hamilton CJ set out five proofs that a plaintiff must establish to succeed in a case for damages for negligently inflicted psychiatric injury. These elements are as follows: -

i. That the plaintiff suffered a recognisable psychiatric illness;

ii. That the psychiatric illness was shock induced;

iii. That the shock (and, hence, the consequent psychiatric

illness) were caused by the negligence of the defendant; and

iv. That the shock was sustained by reason of actual or

apprehended physical injury to the plaintiff or another

person; and

v. That the defendant owed the plaintiff a duty of care not to

cause the plaintiff a reasonably foreseeable injury in the form

of psychiatric illness.

When considering the fifth element of the test in Kelly, being the existence of a duty of care, Mr Justice Keane concluded that it is that articulated by Keane CJ in the case of Glencar Exploration plc -v- Mayo County Council (No.2) [2002] 1IR84 (at page 139): “There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damaged property was reasonably foreseeable and that the notoriously difficult and elusive test of “proximity” or “neighbourhood” can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the

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defendant for the benefit of the plaintiff, as held by Costello J. At first instance in Ward -v- McMaster [1985] IR29, by Brennan J in Sutherland Shire Council -v- Heyman (1985) 157CLR424 and by the house of lords in Caparo Industries plc-v- Dickman [1990] 2AC605. As Brennan J pointed out, there is a significant risk that any other approach will result in what he called a “massive extension of a prima facie duty of care restrained only by undefinable considerations…” Mr Justice Keane concluded by saying that a rigid primary/secondary victim distinction has no role to play in the application of either of the

above. While Mr Justice Keane was of the view that nothing turned on the

primary/secondary victim argument, he did address same in the course of his judgement. He was of the view that Ms Sheehan was in

fact a primary victim of the accident as she was a motorist within the radius of flying debris from the collision and therefore in the area of risk of foreseeable physical injury.

The second issue which the court had to consider was the argument put forward by the defendants’ that Ms Sheehan’s claim for damages

must fail because, as a matter of policy, there is no liability in negligence where the primary victim was the negligent defendant and

the shock to the plaintiff arose from witnessing the defendant’s self-inflicted injury. Mr Justice Keane in rejecting this argument stated: - “It seems to me that, even if it were otherwise appropriate to apply an exclusion of liability of the type identified in Greatorex (and I have already concluded that it is not), then the constitutional strictures under which our courts necessarily and properly operate would only permit that to occur as the result of the relevant rights balancing exercise, rather than as the result of the application of an inflexible, one sided rule.” Mr Justice Keane concluded that Ms Sheehan had satisfied each of the elements of the test to establish liability for negligently inflicted

psychiatric injury. When assessing general damages, Mr Justice Keane gave consideration to the dicta of Irvine J in the case of Nolan -v- Wirenski [2016] 1I.R.461: -

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“Principal and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the state; (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries.” Ms Sheehan was then awarded general damages in the sum of €65,000 to date and €20,000 for general damages into the future,

totaling €85,000. Agreed special damages in the sum of €2,238 were also awarded, making a total of €87,238.

Woman awarded over €300,000 for injury suffered in road traffic accident

In the case of Joanne O’Sullivan -v- Agnieszka Brozda, Mary Coughlan and Jason Coughlan [2020] IEHC129, the plaintiff was awarded the

total sum of €302,445.48. This case is an interesting case in that the court was faced with difficult questions in relation to the nature of chronic pain and whether a defendant can be held liable for the

exacerbation of pain which ensued in the years following a road traffic accident.

The plaintiff was a front seat passenger in a motor vehicle that was rear ended on the 27th August 2016. While the case was before the

court for an assessment of damages only, the defendant relied strongly on the proposition that this accident was a low impact collision and, accordingly, that the plaintiff could not have been

injured to the extent of which she complained. To support this proposition, the defendant relied on photographs of each of the

vehicles after the accident, which did not show major structural damage to either vehicle. The defendant also relied on the fact that the repairs to the vehicle in which the plaintiff had been travelling at the

time of the accident amounted to only €249.70. The plaintiff did not accept that this was a low impact collision. She outlined to the court

that there was a loud bang on impact and that the vehicle was shunted forward, causing her head to propel forwards and then backwards striking the headrest and her right knee striking the

dashboard. Interestingly, there was no engineering evidence on behalf

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of either party before the court. In addition, neither the first named defendant nor the third named defendant were called to give evidence

at the hearing of the action. The plaintiff was a bad candidate for the accident as she had

undergone serious surgery to her neck and skull in the eleven-week period prior to the accident. The evidence of her treating medical

practitioners was that she was making good progress in her rehabilitation from the surgery prior to the road traffic accident. It was anticipated that she would return to work within a period of six

months post-surgery. It was the plaintiff’s case that the trauma to the soft tissues of her neck and shoulders was considerably worse than would otherwise have been the case, given that she had undergone

extensive surgery prior to the accident. She complained of a severe soft tissue injury to her neck, to her shoulders and to her lower back

as a result of the accident. In addition, she also complained of an injury to her right knee and an exacerbation of pre-existing headaches. She also experienced depression and PTSD, for which she

had been prescribed medication. She underwent extensive treatment with a pain specialist. The evidence before the court was that she had 16 interventions with the pain specialist on 8 occasions, together with

3 courses of botox injections and an injection of fremanezumab administered by a neurologist. She also underwent extensive

physiotherapy and acupuncture treatment. She was obliged to attend with a consulting psychiatrist for her depression and PTSD and undergo cognitive behavioural therapy and counselling. The plaintiff

remained unfit for work since January 2016 (prior to the road traffic accident the subject matter of these proceedings) and was advised

that she would only be able to return to work on a phased basis over the next two years.

Mr Justice Barr indicated that he preferred the opinions of the plaintiff’s medical experts to that of the defendant’s medical experts and found that the plaintiff was indeed unfit for work. He indicated

that the plaintiff had had her life totally disrupted for the last three years and acknowledged that her injuries had affected every aspect of

her life and that she was rendered very considerably disabled during this period of time. He also noted the extensive medical treatment which she had undergone. Mr Justice Barr awarded general damages

to date in the sum of €96,000 and future general damages in the sum of €50,000. He awarded the special damages in the sum of

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€17,648.98. He awarded net loss of earnings for the period from January 2017 to date in the sum of €105,480.54. The court

acknowledged that the amount to be awarded in respect of future loss of earnings was difficult to assess. It was expected that the plaintiff would return to work on a phased basis over the next two years. Given

the plaintiff’s current levels of pain and restriction and activity, the court did acknowledge that they could not see her earning much in

the next year. Accordingly, the court awarded the sum of €33,315.96, being 50% of her loss of earnings on a total incapacity basis over the next two years. The total award amounted to €302,445.48.

Legionnaires Disease and Personal Injuries

The HSE’s Health Protection Surveillance Centre has warned of a

Legionnaires Disease outbreak. This is because many buildings and businesses have been closed for in or around nine weeks now due to the Covid-19 pandemic. This means that appliances and water

systems have also been left untouched for a considerable period of time.

Legionnaires Disease is a type of pneumonia that causes serious illness in people over 50, smokers or people with an underlying health

condition. Symptoms of the disease include cough, shortness of breath, high fever, muscle pains and headaches. Nausea, vomiting and diarrhoea may also occur. It is caused by the growth of a bacteria

called legionella in water systems that are not adequately managed.

The HSE have advised that a person can contract Legionnaires Disease by breathing in tiny droplets of water containing bacteria that cause the infection. This will usually occur in hospitals, hotels, spas

or offices that would have spa pools, hot tubs and air conditioning systems. It would be considered unusual to contract the virus at home, from other people, at places such as lakes and rivers, from

drinking water containing the bacteria or from other people with the infection.

The case of Mary Kelleher -v- Inue Hospitality Series 2 Limited trading as Muckross Park Hotel and NCH Ireland Limited trading as Chem Aqua 2016/7835P was before the High Court in February 2020. The plaintiff in this case was suing the defendants for personal injuries

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caused by Legionnaires Disease contracted in a luxury hotel spa. The plaintiff and her husband had gone to the hotel and spa to celebrate

their 25th wedding anniversary. The plaintiff had availed of the facilities including the steam room, the sauna and the pool. However, the plaintiff began to feel very unwell after checking out and was

obliged to attend with a doctor with a suspected viral infection and the sensation of losing power in her muscles within the following six days.

The plaintiff was transferred to hospital where she was intubated and ventilated and a diagnosis of Legionnaires Disease was confirmed. She

was placed in an induced coma for three weeks and remained in hospital for in or around 54 days. The plaintiff was discharged from hospital in a wheelchair and was obliged to undergo intense

physiotherapy treatment. The court was advised that the plaintiff’s quality of life had deteriorated since and that she was never going to

recover. The court was also advised that the HSE incident control team had carried out investigations and found that bacteria was traced back to the hotel and that the indoor cold spa pool was the

likely source of the infection. Liability was admitted and the case was before the court for an assessment of damages. However, the case settled and the terms of the settlement remained confidential.

As set out in the above case, Legionnaires Disease can result in very

serious personal injuries. Before re-opening businesses, employers and business owners need to ensure that employees and customers are returning to a safe environment by carrying out the appropriate

inspections and maintenance works on business premises.

*Before acting or refraining from acting on anything in this

Newsletter, legal advice should be sought from a solicitor. **In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.