Employment Law Update 2008 Adrian Twomey - CIPD

Employment Law Update 2008
Adrian Twomey
CIPD Southern Region, 1 October 2008
atwomey@advokat.ie

Adrian Twomey
• Head of Employment Law,
advokat / gallenalliance solicitors
• Graduate of UCC, TCD & Kings Inns
• “One of the world’s leading lawyers for
business” – Who’s Who of International
Business Lawyers
• Clients include pharmaceutical,
banking & aviation multinationals
• Has acted for a number of national
governments & the ILO / UN
atwomey@advokat.ie

advokat
• Employment law dept of gallenalliance solicitors
• Acts for multinational and indigenous employer
clients
• Representation before the EAT, Labour Court,
Equality Tribunal, Rights Commissioners and the
civil courts
• Advice on all aspects of employment law
• In-house training on employment law compliance
• Corporate immigration services (100% record on
green card and work permit applications and
appeals)
atwomey@advokat.ie

Introduction
• Little legislative activity
• Significantly increased activity at Tribunals
• Awards increasing
• Large scale redundancies and their impact on the number of
claims and size of awards
• Bullying, harassment and stress continue to figure
• Union activity at local level seems to be increasing as the
recognition issue also resurfaces
• Equality Tribunal’s future uncertain
atwomey@advokat.ie

Legislation
• No new legislation enacted since May 2007
• Protection of Employees (Agency Workers) Bill 2008 (Private
Member’s Bill) dead in the water and No.2 Bill defeated at
second stage in the Seanad
• Employment Law Compliance Bill 2008 published in March but yet
to be debated
• National Employment Rights Authority (NERA)
• Display of notices regarding rights in workplaces
• Duty to resolve disputes at workplace level
• Enforcement / Inspections
• Penalties - €250,000 / 3 years imprisonment (maxima)
atwomey@advokat.ie

Legislation
• New pay deal
• Aim of progress on rights of agency workers in 2009
• Publication of Employment Agency Regulation Bill by end of
2008
• Agreement on union recognition by March 2009
• Legislation in 2009 to prohibit victimisation of union
members and of incentivising non-membership
• Enact Employment Law Compliance Bill by end of 2008
• Bolster EROs and ERAs by legislative means
atwomey@advokat.ie

Supreme Court
• Sheehy v Ryan & Moriarty, [2008] IESC 14, 9 April 2008
• Diocesan secretary dismissed for reasons of “redundancy”
• Court acknowledged that the Plaintiff had been offered a
permanent and pensionable job
• The Court refused, however, to accept that this meant that
the Plaintiff had a legally enforceable guarantee of
employment for life or even until reaching pensionable age
• The Court noted that at common law the employer is entitled
to dismiss for any or no reason once reasonable notice has
been given
atwomey@advokat.ie

Supreme Court
• Quigley v Complex Tooling & Moulding Limited, [2008] IESC
44, 22 July 2008
• Plaintiff awarded €75,773.94 in High Court for depression
caused by bullying & harassment at work
• Court accepted that bullying must be “repeated,
inappropriate and undermining the dignity of the employee
at work”
• Court found that the Plaintiff had been bullied by a manager
who excessively and selectively supervised him, unfairly
criticised him, did not respond to his complaints
atwomey@advokat.ie

Supreme Court
• Court overturned the High Court award because of lack of
evidence linking his depression to the bullying
• Evidence instead pointed to his depression having been
caused by his subsequent dismissal (in relation to which he
had successfully sued in the EAT) and the anxiety caused
by his involvement in litigation
atwomey@advokat.ie

House of Lords
• Corr v IBC Vehicles, [2008] UKHL 13, 27
February 2008
• Accident leading to physical injury
• Depression
• Suicide
• Compensation under the Fatal Accidents
Act 1976
• Foreseeability
• Stress-related personal injury cases
atwomey@advokat.ie

High Court
• Injunction applications increasing in
number
• Bullying, harassment and stress cases
still a feature
• Compulsory retirement ages still
permissible (Donnellan case)
• Hotel JLC order blocked in High Court
before agreement eventually reached
• Challenge to electrical contracting REA
ongoing
atwomey@advokat.ie

Labour Court
• Czerski v ICE Group Services Limited,
Determination EDA0812
• Appeal against decision of Eq. Tribunal that
agency discriminated on race ground in
requiring 2 references before recommending
applicant to client company
• Award of €7,000 overturned
• No statistical evidence
• “… the Court cannot see how a non-national
would be placed at any greater disadvantage
than a National.”
atwomey@advokat.ie

Equality Tribunal
• Decentralisation to Portarlington
• Turnover in Equality Officers
• Delays lengthening
• Talk of amalgamation
• Increasing numbers of race claims
atwomey@advokat.ie

atwomey@advokat.ie

Equality Tribunal
• 58 Named Complainants v Goode Concrete Ltd, DEC-E2008-
020
• The Complainants argued that they had been the victims on
discrimination on the ground of race because their employer
(who had employees of 14 different nationalities) had not
provided them with contracts of employment and safety
documentation in their own native languages
• The Tribunal awarded €290,000 in compensation as well as
additional sums ranging between €2,000 and €25,000 to
individual complainants in relation to other matters
atwomey@advokat.ie

Equality Tribunal
• A Female Employee v A Recruitment Co., DEC-E2008-015
• Female employee claimed that she had been sexually
harassed by her manager who sent her sexually explicit text
messages in the early hours of the morning after a night out
at a pub
• She claimed that she was dismissed after she complained
and went out sick
• Award of €10,000 for the harassment and €15,000 for the
discriminatory dismissal
atwomey@advokat.ie

Equality Tribunal
• McGarvey v Interim Justicia, DEC-E2008-
041
• Selected for redundancy 7 months after
starting and while pregnant
• Selection matrix unsupported by
underpinning documentation
• Company could not discharge burden of
proof when it transferred
• Award of €30,000
atwomey@advokat.ie

Employment Appeals Tribunal
• Mockett v STMS Limited, UD316/2007
• Night worker in warehouse dismissed
after sleeping on the job
• Award of €12,000
• EAT: “The claimant was working long
antisocial hours and it was reasonable
for him to seek to have a rest during the
course of the night when there was no
work to be done in the warehouse.”
atwomey@advokat.ie

Employment Appeals Tribunal
• McCann v Gate Gourmet, UD1053/2007
• Dispatch manager refused to sign a form for a client airline
• Dismissal was ruled unlawful and €25,000 awarded
• Decision-maker/General Manager not impartial, having been
kept acquainted with developments by the claimant’s
manager verbally and by e-mail
• Accuser not at hearing
• Failure to disclose all relevant documentation
atwomey@advokat.ie

Employment Appeals Tribunal
• Colgan v Boylesports Ltd, UD215/2007
• Discrepancies in betting transactions
• Failure to conduct a proper investigation
• No other staff questioned about irregularities
• Allegations and evidence not fairly put to
individual in advance of investigation
meeting
• Dismissal was ruled unlawful and €7,000
awarded
atwomey@advokat.ie