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Ms. Abbie Fitzgerald, who had been employed by the H.S.E. since 1980, applied in 2007 for an extension of her employment beyond the age of retirement which was 65 years. However her application was refused and when she appealed this decision, her appeal was rejected. She was informed by her employer that the decision was being upheld as there were no difficulties in recruiting staff for her particular grade. However, Ms. Fitzgerald contested otherwise, stating that there were severe staff shortages, and that there were often difficulties in covering shift work. Ms. Fitzgerald also claimed that at the time her extension application was refused, two male colleagues, who were boiler men at her workplace, were permitted to work beyond the age of retirement. Ms. Fitzgerald submitted to the tribunal that the only reason her application was refused and her male colleagues’ was not, was due to her gender and age. Although the Equality Officer rejected her claim of age discrimination, he did find that there had been gender discrimination, as he could find no exceptional circumstance or objective reason why the male colleagues’ contracts were extended and Ms. Fitzgerald’s was not. The Equality Officer, Enda Murphy, awarded Ms. Fitzgerald €25,000 in compensation for the distress caused by the discrimination.
Ms. Denise Blatt, a former employee of the firm Palmece Ltd, was awarded €100, 000 in compensation by the Equality Tribunal after she was victimised and discriminated against when she became pregnant. Ms. Blatt, who worked in one of the Comfort Inn Hotels since 2003, and was employed as General Manager since 2004, stated that initially, she had enjoyed regular pay increases and bonuses, due to her performance. However, in 2006, when Ms. Blatt notified her employers of her pregnancy, she received a letter shortly afterwards pointing out her various flaws. Ms. Blatt submitted that she had never before received such a letter, and in fact that year, the hotel which she managed had been awarded “Hotel of the Year” within the group. Throughout her pregnancy, Ms. Blatt suffered from high blood pressure, which her medical team attributed to work related stress, and according to the complainant herself, the stress nearly caused her to lose the baby. When Ms. Blatt returned from maternity leave, she discovered that she was pregnant again, and she alleged that because she was pregnant, she was refused promotions, ignored for interviews, and was also refused interview information criteria. Due to high blood pressure, Ms. Blatt was confined to bed rest, and during that period the hotel changed ownership. Ms. Blatt submitted that when she met with her new employers, she was pressurised into taking redundancy, and following that meeting she was hospitalised, due to the stress she suffered. Despite Ms. Blatt being in a critical condition, her new employers nonetheless attempted to contact her throughout her hospital stay, through texts and phone calls. The Equality Officer held that Ms. Blatt had been victimised and discriminated against due to her pregnancies, and awarded her €50,000 for victimisation and €50,000 for discrimination. The Equality Officer stated that the reason that such a high figure was awarded was because the discrimination had persisted for two pregnancies, and had lasted for a period of a year and eight months.
On 5th August, the Minister for Enterprise, Trade and Innovation, Batt O’Keeffe, stated that the slowing rate of redundancies indicated that economic growth is under way. These comments were made after it emerged that the number of redundancies which were lodged into the Department of Enterprise, Trade and Innovation, in July was the second lowest of this year. Despite the increase in live register figures, Minister O’Keeffe maintained that economic growth was under way, stating that such figures were not uncommon for the summer period, and were more due to seasonal factors, than the economic recession. Minister O’Keeffe further claimed that these figures would reverse come autumn, noting that the number of redundancy claims which were lodged in the first seven months of this year, was a 20 per cent decrease from this time last year. Minister O’Keeffe dismissed Opposition remarks on the live register figures, asserting that the Government would persist with their policies, help unemployed workers to get back into the workforce and “create conditions conducive to job creation”.
According to a recent Health and Safety Authority report, the highest number of workplace injuries reported to the HSA was from the Construction Industry, with the healthcare sector coming a close second. The illness and statistics report provides that in 2008, the Construction Industry accounted for 15.4% of injuries reported to the HSA. Surprisingly, it was the healthcare sector which held the second highest number of claims, as opposed to other industries, like mining, which only accounted for 1% of workplace injury claims. The report further states that the main causes of accidents within the healthcare sector were due to manual handling, falls, and shock or violence. According to statistics, there has also been a steady increase in the rate of illnesses amongst employees within the healthcare sector.
Mr. Justice Hedigan in the recent High Court case of Sharma & Anor, an appeal from the E.A.T., rejected two security employees’ claims of unfair dismissal, as the act which they were claiming under, the Safety, Health and Welfare at Work Act 2005, was subject to the one year continuous service rule. The two applicants in this employment case, Mr. Sharma and Mr. Saharan, had both worked for the same security firm for under a year. They alleged that their employer had threatened job losses if they refused to work the hours which they were assigned. Mr. Sharma claimed that he was asked to work another night shift despite having worked the previous 14 hours, while Mr. Saharan alleged that he was owed over 200 hours pay, but that his employer had refused to pay the amount due, stating that his wages were being deducted due to damage caused during a break-in on a site that Mr. Saharan was working on. In order to claim for unfair dismissal, under the Unfair Dismissals Act 1977, an employee must be in continuous service for over a year. However, the applicants’ lawyers were claiming unfair dismissal pursuant to the Safety, Health and Welfare Act 2005, asserting that since the act was silent on the “one year” requirement, that it was not applicable. Mr. Justice Hedigan rejected the employees claim. Mr. Justice Hedigan found that based on his observations of other pieces of legislation, such as the Maternity Protection Act, it expressly stated that the one year rule is not applicable, while the 2005 Act made no such statement. Mr. Justice Hedigan concluded that the “one year” requirement was applicable to the 2005 Act, and since both employees had worked less than a year, their case was dismissed.
Mr. Martin Mannering alleged that his employer failed to protect him from racial harassment, after an anonymous threatening note was left in his locker in September 2006. The note made reference to his nationality, and suggested that he should follow another English fireman’s example and leave the station that he had been working at since 2001. The note stated that this was “Limerick Ireland, not Middlesboro England”. Although the respondents, Limerick City Council, maintained that Mr. Mannering received the same treatment as other employees, Mr. Mannering claimed otherwise, submitting that when he and his union representative brought the matter to the HR Department, nothing more was done. The Equality Officer acknowledged that there was a harassment policy in place at the station but they noted that the Chief Officer never followed up on the claim of harassment, and never followed any of the policy procedures, such as informing the offender of the allegation. The Equality Officer stated that merely transferring Mr. Mannering was not a solution to the problem. Thus, the Equality Officer held that due to the Chief Officer’s failure to conduct a proper investigation into the matter, and his failure to comply with policy obligations, that Mr. Mannering should be awarded €5,000 in compensation.
A High Court personal injuries case was dismissed after it was revealed to the court that the “injured” plaintiff had been dancing, drinking and participating in parachute jumps. The plaintiff, Mr. Alan Danagher, alleged that he had been assaulted in a nightclub on 27th December 2005 by a member of the security staff after a bar brawl broke out. Mr. Danagher contended that a security man had grabbed him by the neck, and dragged him backwards towards the foyer area of the nightclub. The plaintiff claimed that as a result of his injuries he had to abandon his college studies for that year and the subsequent year, that he could no longer play sport, and that he had become introverted and an infrequent visitor of nightclubs and discos. However, Mr. Danagher was left red-faced after it emerged that six months after the alleged incident, the plaintiff had participated in a parachute jump for charity. The plaintiff’s case was further weakened when excerpts from his facebook page revealed his enthusiasm for dancing, sport and nightclubs, with one damaging excerpt stating that he would be “drunk on a dance floor” that night. The case was dismissed as the plaintiff failed to prove that security staff had been negligent on the night in question, however, Mr. Justice Irvine stated that he would have thrown out the case anyway, stating that the injuries the plaintiff sustained were a “far cry” from the serious injuries that were claimed.
Speaking at a UCD conference marking the 20th anniversary of the Industrial Relations Act on 17th July 2010, the Chief Executive of the LRC, Kieran Mulvey, stated that services at the LRC had become inundated with claims in recent months. Kieran Mulvey stated that the LRC was struggling to cope with the record number of claims that they had received. In the Rights Commissioner Service alone, over 8,000 claims had been submitted in the first six months of this year. According to the latest figures, in the LRC report of 2008, there had been a steady increase in claims in all areas of legislation, in particular the Payment of Wages Act, which received over 3,500 claims in 2008, an increase of 17% from 2007. Kieran Mulvey named the economic recession as one of the reasons for the increased number of referrals over the last few years; however, he also remarked that problems within the legislation have also led to an increasing number of claims. However, he warned that it would be a time-consuming process to “iron out” all the wrinkles in employment law.
Chaos ensued at the Danish Brewery, Carlsberg, in April 2010, when over 800 employees went on strike for a 5 day period, after a company decision to limit the consumption of free beer. Employment lawyers were on red alert! Since the brewery was founded, in 1847, employees have been permitted to drink as much beer as they wished during their work shift, and beer was widely available at various coolers throughout the brewery. However, for health and safety reasons, this practice is now being curbed, as the company fear (with some justification!) that accidents could occur in the workplace, particularly with employees who operate heavy machinery. Under the new policy, employees can now only drink beer during their 30 minute lunch break, and are limited to one bottle of beer. Although Carlsberg drivers striked in sympathy with the brewery workers, the policy change does not affect them, as there are “alcohol ignition locks” installed in the vehicles, preventing the drivers from “drink driving”. Normality has, however, returned to the brewery, after management agreed to enter into talks with the worker’s union, 3F. Whether employees will retain probably the best perk in the world remains to be seen!
We are delighted to welcome Sandra Moloney to our Employment Law Team. Sandra graduated from University College Dublin with an Honours Degree in Law in 1998 and qualified as a Solicitor in 2002. She also holds a Diploma and a Masters in Commercial Law together with a Diploma in Employment Law, from University College Dublin. Sandra is an experienced litigator with expertise in the area of employment law. Sandra joins us having specialised in employment law in a leading Dublin law firm. Sandra has advised on complex and sensitive employment matters, both contentious and non-contentious for many high profile clients. The Principal of the firm, Terence O’Sullivan adds: “We are delighted to welcome Sandra to the practise and the wealth of experience she brings to us can only enhance the specialist service we provide to our clients whether employers or employees” Sandra can be contacted at sandra.moloney@tjos.ie or 021 4223075
On Friday 2nd July, the Labour Court recommended a 7.5% pay cut for construction workers, following an application by the Construction Industry Federation. The reason for the application was due to the recent downturn in the economy, most notably the construction sector, where employment has fallen from 286,000 to 129,000, with further job losses predicted. However, the cuts were opposed by construction workers, arguing that the measures would only further cripple the sector and would place financial hardship on the few still employed. Despite opposition to the proposals, the Labour Court approved the 7.5% pay cut. They justified it on the basis that government pay cuts which had previously been imposed on state employees, had affected construction workers in local authorities. Thus, the Labour Court adjusted the pay cuts in line with those in the public sector. However, the labour court stressed that this was a temporary measure, and would be reviewed again in January 2012 and every subsequent year. The cuts will take affect 4 weeks after the recommendation, provided that it is accepted by both parties involved.
The National Employment Rights Authority has published its first quarterly report of 2010. In the period January to March 2010 NERA reports that the following were the most popular guides downloaded: NERA Information Services: NERA reports that the most requested information categories continue to be redundancy, working hours, payment of wages, terms of employment and unfair dismissal. NERA Inspection Services: Summary of prosecution activity: Summary of Enforcement activity: Sectorial differences: If you have any queries in relation to any aspect of the above and wish to ensure either that as an employer you are not open to possible prosecution, please contact us at www@tjos.ie or info@tjos.ie or call us at 021 4223075 and we will be delighted to assist you in any way that we can.
A recent decision of the UK Employment Tribunal in Martin and Others v Professional Game Match Officials Limited (ET/2802438/09) found that forcing football match officials, such as referees, to retire at the age of 48 was discriminatory under the Equal Treatment Directive and it could not be justified as proportionate. The relevant legislation at issue was the Equal Treatment Directive, implemented in the UK under the Employment Equality (Age) Regulations 2006. Under these Regulations and indeed Directive there is a defence to discrimination on the grounds of age where the discriminatory measure or policy can be shown to be a proportionate means of achieving a legitimate aim. The discriminatory measure must also have a public or social policy objective in order to be justified. In Martin, Professional Game Match Officials Limited argued that the policy objective here was to promote high standards of refereeing and to supply match officials who met with FIFA’s (the international body governing world football) standards for match officials. However, the UK Employment Tribunal rejected these arguments and found that there were other measures which could have been taken to achieve the same aims in a less discriminatory way, for example objective fitness and competence assessments. In addition the Tribunal found that Professional Game Match Officials Limited had advanced no reason for choosing 48 as the retirement age for match officials. Taking the above into account, the Tribunal concluded that Professional Game Match Officials Limited could not demonstrate that their policy of having officials retire at 48 was proportionate and so it was found to contravene the 2006 Regulations. Age discrimination has been outlawed in Ireland since 1999 with the implementation of the Employment Equality Act. In relation to the issue of compulsory retirement ages, Irish courts and tribunals have been faced with a difficulty because of the provisions of the Employment Equality Act 1998 – 2008. Specifically section 34(4) of the Equality Act states that it shall not constitute discrimination on the age ground to fix different ages for retirement (whether voluntarily or compulsorily) of employees or any class or description of employees. In general there are no defined mandatory retirement ages in Ireland. There are however, statutory exceptions such as for Gardai and the judiciary, and in practice most contracts of employment will provide a retirement age for an employee. The ECJ has held in Felix Palacios de la Villa v Cortefiel Servicios SA (Case C-411/05) that EU Member States are not prohibited from introducing a mandatory retirement age. The High Court has considered the question of compulsory retirement in the case of Martin Donnellan v Minister for Justice Equality and Law Reform and the Garda Commissioner. In that case the claimant was compelled to retire at age 60 and contested the relevant legislation. In that case the Court considered the objective of the compulsory retirement which was reduced from age 65 to 60 for assistant commissioner rank Gardai and found that the arguments put forward on behalf of the respondents were valid. Namely that the main objective i.e. to create promotion opportunities for less senior Gardai in a pyramidal structure was a legitimate aim. Should you have any queries relating to any issues touched upon in this article please contact us on 021 4223075.
The Eyjafjoll volcano has dominated news coverage in Europe over the last few weeks, and at the height of the crisis, left an estimated 30,000 Irish people stranded abroad according the Government's Taskforce on Emergency Planning. In this article we will look briefly at the main issues facing employers and employees who were left stranded as a result of the flight restrictions. The main issue is whether an employer has an obligation to pay these employees if they miss work due to their flight being cancelled. Much will depend on the contract of employment, in particular whether it provides for paid leave in the event of an unforeseen event like this. Employers will however, have to flexible in relation to this to maintain a good working relationship with their employees and so options for an employee may be to take days they are stranded as annual leave, or arrange with their employer to make up the time in some fashion. Similarly, employers should be wary of taking disciplinary action against employees where the employer feels that insufficient effort was made by them to attempt to return for work. There may also be situations where an employee is capable of working remotely e.g. by logging in to the company network. If disciplinary action is to be taken however, it should be in line with basic fair procedures and the employer’s own disciplinary policy. Finally, there are also important health and safety implications for staff who must cover for absent colleagues who have been stranded due to the flight disruptions. An employer should ensure that the remaining staff are trained to carry out the necessary covering work. An employer should also be mindful of providing for sufficient rest breaks under the Organisation of Working Time Act 1997 where the absence of certain employees has lead to a substantial increase in workload. The Eyjafjoll volcano has clearly had a major impact on many facets of working life throughout Europe, but employers must still be careful to ensure compliance with Employment Law legislation when their employees have finally returned to work.
Olympique Lyonnais SASP –v- Olivier Bernard & Newcastle United F.C. In 1997 Football player Oliver Bernard signed a contract with French Club side Olympique Lyonnais for three seasons. Oliver Bernard was in a category known as “joueurs espoirs” namely players between the ages of 16 and 22. Under the rules of the French Football Association at the end of his training as a “joueur espoir” a player is obliged to sign his first professional contract with the club that trained him, if the club requires him to do so. Olivier Bernard refused such an offer from Olympique Lyonnais preferring to sign instead a professional contract with the English Club, Newcastle United F.C. Olympique Lyonnair sued Mr. Bernard for damages. Under European Law (Article 45 of the Treaty on the functioning of the European Union) provides for the freedom of movement of workers within the European Union. In this case the French Courts referred the following questions to the ECJ: The ECJ held that Article 45 does not preclude a scheme which in order to attain the objective of encouraging the recruitment and training of young players, guarantees compensation to the club which provided to the training if, at the end of his training period, the young player signs a professional contract with the club in another member state, provided that the scheme is suitable to ensure the attainment of that objective and does not go beyond what is necessary to attain it. The ECJ notes that the French rules are a restriction on freedom of movement for workers but also recognises that the objective of encouraging the recruitment and training of young players must be accepted as legitimate. It states that a scheme providing for the payment of compensation for training where a young player at the end of his training signed the professional contract with the club other than the one which trained him can, in principle, be justified by the objective of encouraging the recruitment and training of young players. However such a scheme must be capable of actually attaining that objective and must be proportionate to that objective, taking due account of the costs borne by club in training both future professional players and those who will never play professionally. However the Court held that the requirement to pay damages based on the earnings of the footballer’s first professional year, and not the training course costs, was not proportionate and therefore not enforceable against the player. This case illustrates what impact E.U. Law may have on repayment clauses or potentially restrictive covenants. It all comes back to the principle that repayment and indeed restrictive covenant clauses will only be upheld if there is a legitimate aim and the clause is justified and proportionate in that regard. Sandra Moloney 16th April 2010
NERA recently published their review of 2009. Monitoring and enforcing compliance with employment law through inspections is a key element of NERA’s work. In 2009 they also took on the role of dealing with calls in relation to redundancy on behalf of the Department of Enterprise, Trade and Employment and this was done to enable Department Staff to prioritise the processing of redundancy claims. Last year NERA focused on the following areas: Agriculture, Catering, Contract Cleaning, Retail Grocery and Allied Trades, Hotels, Security and construction. 2009 AT A GLANCE: INFORMATION SERVICES SUMMARY: PROSECUTION ACTIVITY SUMMARY ENFORCEMENT ACTIVITY SUMMARY INSPECTION SERVICES SUMMARY For 2010 NERA are targeting the Retail Grocery trade amongst others, so to ensure your business is compliant, contact us today at 021 4223075 or email info@tjos.ie to see what we can do for you.
Particularly with more senior employees, the employer often reserves a right in the contract of employment to place the employee on garden leave. The effect of this is that the employee remains an employee until the end of the notice period ( for senior executives typically three to six months) but is not required to attend work. Invoking garden leave clauses most commonly arises where senior employees, terminate their contracts to go and work for a competitor. Companies by invoking garden leave clauses, keep the employee out of the market place long enough for any information they have to go out of date, or enable the employee’s successor to establish themselves, particularly with customers so as to protect goodwill. Operating garden leave may help deter a competitor from poaching employees in the first place. However a recent UK Court of Appeal case of Standard Life Health Care v Gorman is of interest. This case concerned two employees who resigned from Standard Life to go and work for a competitor. Despite the fact that there was no garden leave clause in the employees Contracts of Employment, the Court of Appeal ruled that where an employer discovers that an employee has been in serious breach of duty and in breach of his duty of good faith that the Company was entitled to refuse to provide the employees with work and suspend the employees preventing them from attending their place of work. All employers have a legal obligation to furnish employees with a statement of the terms of their employment. An express garden leave clause in a contract of employment would have enabled Standard Life to immediately invoke the clause and avoided costly litigation. Sandra Moloney 6 February 2010.
A nursing boss who was told in an NHS appraisal she was the "wrong colour and wrong culture" for Cumbria has been awarded £115,000 compensation. Dr Sarina Saiger, a former assistant director of nursing at North Cumbria University Hospitals Trust, suffered the slur on inquiring about promotion. A tribunal earlier ruled she was racially discriminated against and unfairly dismissed from her job. The trust has apologised to Dr Saiger for the "distress" caused. Bradford-born Dr Saiger, a single mother of mixed race, claims then director of nursing Bruce Skilbeck told her during an appraisal in November 2005 she was the "wrong colour and the wrong culture" for Cumbria. Mr Skilbeck has always denied the accusation but the tribunal ruled it was more likely than not that he had used those words. Dr Saiger, who is of Indian descent, said: "I was utterly stunned that here I was in the 21st Century doing my job and it was not about my ability or my competency but it was about my colour. "(In effect) I was being told that 'you are not worthy and we are not willing to have you here'. "I was being told that 'we are never going to give you the director of nursing post because you don't fit, you are the wrong colour'." She was sacked in May 2008 after complaining about the fact that she was being unfairly treated because of her race, the tribunal heard. It was also told that Dr Saiger had to occasionally work from her car while desk space was occupied by white colleagues. Carole Heatly, the Chief Executive of North Cumbria University Hospitals NHS Trust, said: "The trust is pleased this lengthy case has come to a conclusion for all concerned and, as an organisation, we are now able to move on. "Again, we would like to offer an apology to Dr Saiger for the distress that this case has caused. "The trust has learned many lessons from this case and embedded them." From www.bbc.co.uk
Delivery driver Alex Frowd, 26, has been awarded £3,000 by an employment tribunal after he claimed his female boss bullied him and said he "stank of body odour". Mr Frowd, of Newport, Gwent, said office manager Julie Cummings was "so aggressive" he feared she would punch him. He said: "She was worse than any male boss I've ever had. Julie's attitude towards me was very aggressive, adversarial and confrontational. I found it very difficult being around her and I even took my breaks outside the office to be away from her." Mr Frowd told the hearing in Cardiff that he was sacked after Mrs Cummings, 40, allegedly accused him of "stinking of BO" in their offices. He said he had enjoyed a "good relationship" with Mrs Cummings when he joined Hex Holdings in Tremorfa, Cardiff, three years ago, but that soon changed. "She treated me like an unpaid servant and I was at her beck and call especially to go and find her meals at any time of day. Once when an empty Coke can was found in my van she lost all control and was shouting and screaming at me. I was terrified she was going to hit me and after that I left the office when I was on a break just to get away from her," he said. Mrs Cummings told the hearing that Mr Frowd was sacked after being seen parked up at least four times near their offices instead of working. She said: "He made no allegations of bullying and harassment when he was working here." But the tribunal ruled the company failed to follow proper procedures in sacking him from his £240-a-week job and he was awarded £3,300 compensation for unfair dismissal. From www.cpdwebinars.com
The UK government faces legal action for failing to protect people from discrimination at work, throwing doubt on any proposals for a new law on equality. The European commission has said parts of UK law, including provisions on sexual orientation and disability, are inadequate and could refer the situation to the European court of justice. The claim, set out in two reasoned opinions sent to the UK government last month, includes a warning that the law that applies to faith-based organisations, schools and adoption agencies allows too much scope for discrimination on grounds of sexual orientation. "This could be difficult for the government," said Robin Allen QC, head of Cloisters chambers. "The extent to which religious organisations are exempt from the rules of sexual orientation discrimination is a particularly difficult issue. The government will certainly resist any strengthening to the current law in an election year." Other parts of UK law singled out by the EU's equal opportunities commissioner include the lack of a ban on "instructions to discriminate", where a person is discriminated against because of the actions of a third party, and the lack of clear provisions for class actions. Last month, the long-awaited equality bill was included in the Queen's speech for a second year and was presumed to be compliant with EU requirements. News of the warning from the commission means the UK is the only European country to have failed to implement two key EU directives on discrimination. The government has two months to respond.
Rebecca Waite was just 19 and was known to be an unstable epileptic when she went into Ipswich Hospital to give birth to her first child in May 2004. Whilst she waited to have her baby induced, a midwife advised her to take a bath for pain relief, the High Court heard. Her barrister, Margaret Bowron QC, said that, "tragically, as only fate can sometimes happen", Miss Waite was unattended by any member of hospital staff when she suffered an epileptic fit in the bath and slipped below the water. Her partner, Felixstowe dock worker, Paul Burch, was making phone calls to excited relatives at the time and discovered Miss Waite not breathing, when he returned a few minutes later. Although Miss Waite, of Felixstowe, was revived by desperate hospital staff, she suffered brain damage which will blight the rest of her life, top judge, Mr Justice Nicol, was told. And, even more tragically, her baby son, Kyle, was born by emergency Caesarean section with such grievous neurological damage that he has little awarness of the world around him and is not predicted to live beyond the age of 12. Both Miss Waite and Kyle, now five, sued the hospital's managers, Ipswich Hospital NHS Trust, which has agreed to a multi-million-pound settlement of their case after making an early admission of liability. The court heard Miss Waite's payout is valued at £3.4 million and Kyle's at more than £1.6 million, although his award could be worth much more than that if he survives beyond the age of 12. After issuing a public apology on behalf of the NHS Trust, Mr Stephen Miller QC told the court: "This was a tragic outcome for what should have been a joyous occasion for this family" And every lawyer in court paid tribute to family members who have devoted their lives to caring for Ms Waite and Kyle, in particular Mr Burch and Miss Waite's mother, Lorraine Waite. Miss Waite's solicitor, Trefine Maynard, said later: "Many women find taking a bath during the later stages of labour helpful in managing their pain. "However, Rebecca should never have been encouraged to have a bath unsupervised as she was know to be at risk of having a seizure. Allowing her to do so had tragic consequences "She was found by her partner under water and, although not apparently breathing, she was fortunately revived. The lack of oxygen had, however, left her with permanent brain injury ...and she will never be able to work. "Her unborn son, Kyle, was delivered by emergency Caesarean section, but the oxygen deprivation he had suffered resulted in profound brain damage and he is totally reliant on others for his care. "He has been tirelessly looked after by his devoted family and has done remarkably well". The compensation package for both Ms Waite and Kyle will take the form of substantial lump sums, as well as index-linked and tax-free annual payments to cover the costs of their care for as long as they live. The value of Miss Waite's total award is estimated at £3.4 million, whilst Kyle will receive a lump sum of £685,0000 and annual payments of £140,000 to cover the enormous costs of looking after him. Those payments will increase if the now five-year-old survives beyond the age of 19. However, although his family hope otherwise, he is not predicted to live beyond the age of 12. The settlements also include payments for the mother and baby's "pain and suffering" - £140,000 for Ms Waite and £210,000 for Kyle - and the arrangements have the secure financial backing of the National Health Service Litigation Authority. Describing the case as "particularly sad", Miss Bowron said Miss Waite was 38 weeks pregnant when she went into hospital to have her baby induced and the level of Kyle's handicap is such that he is never expected to make any meaningful recovery. She added that, although mother and son are currently living in a very cramped housing association bungalow, packed with all the equipment needed to sustain Kyle, "they have what is a remarkable happy home life in terribly difficult circumstances". Speaking of her "admiration" for the whole family, Miss Bowron said Miss Waite's mother, Lorraine Waite, in particular, "has been a brick in this case. She has stood by her daughter and has been a stalwart carer for her grandson". Although he works full time at Felixstowe docks, Kyle's father, Paul Burch, in his 20s, has also been a "very good" dad, and his parents have also "done their bit" in providing care. Miss Bowron told the court of Kyle's current condition: "His health is fragile and he is in hospital at the moment. He really is not well and this has happened intermitently throughout his life. His grandmother is with him and we wish them both well". Stephen Miller QC issued a public apology to the family and said: "Whilst the damages will not undo the wrong done to these two claimants, we hope it will make their lives more tolerable and enjoyable than it has been in the past". And speaking of the disaster that befell mother and baby, he added: "This was a tragic outcome for what should have been a joyous occasion for this family". Approving the settlement, Mr Justice Nicol said that, although no amount of money could ever put the right the harm done to Miss Waite and Kyle, he hoped it would ease their suffering. And, although Kyle's life expectacy was expected to be "very much truncated" - to the age of 12 - the judge said he hoped that prediction turned out to be a pessimistic one. Miss Waite's "cognitive and behavioural abilities" are gravely affected by her brain damage, but the judge said Kyle's father, and all four of his grandparents, had weighed in to give "a very very considerable amount of care" and he was fortunate to have such a family.
A court in Florida has ordered tobacco giant Philip Morris to pay out $300m (£180m) in damages to former smoker Cindy Naugle, who at the age of 62 is wheelchair bound because of the lung disease emphysema. Philip Morris, maker of Marlboro cigarettes, said it the will challenge the verdict because of "numerous erroneous rulings by the trial judge". Its spokesman said that the punitive damages are "grossly excessive and a clear violation... of the law". Ms Naugle started smoking in 1968, aged 20, to make herself look older. The payout is the result of a major class-action suit in 2006, which was thrown out of court. About 8,000 individual cases were filed subsequently. This is thought to be the biggest payout so far. The judge awarded $56.6m for medical expenses and $244m in punitive damages.
There is a ‘dire need’ for solicitors to undertake pro bono work, UKlegal aid minister Lord Bach admitted this week. Addressing Monday’s joint national pro bono conference in London, which kicked off National Pro Bono Week, Bach suggested there should be a ‘professional expectation’ on lawyers to give free legal advice. He said he was keen to hear the outcome of a Junior Lawyers Division debate this week on whether pro bono should be compulsory. ‘My personal view is that [if there were a professional expectation on lawyers to do pro bono work] that might go some way to increasing the confidence that the general public have in lawyers and the respect with which they are viewed,’ he said. Bach said pro bono had a vital role to play given the constraints on legal aid. ‘There remains a strong need to make sure we do our upmost to protect the vulnerable. Pro bono is hugely important in this respect. And I go further – there is a dire need for it.’ Former attorney general Lord Goldsmith QC, who chairs the Access to Justice Foundation, told delegates he will target unclaimed client account balances as an additional source of income for the foundation, which this week announced its first-ever round of 14 grants. It has received income from the first three pro bono costs orders, as well as donations. Meanwhile, Virgin Trains dedicated one carriage of a first-class coach free of charge to transport 40 lawyers between the two pro bono conferences held in London and Manchester this week, enabling lawyers to brainstorm ideas about how to increase pro bono collaboration during the journey. Other highlights of the week included the launch of ALLIES – a local lawyer in every school – an initiative to promote and support lawyers becoming school governors, and a flagship event at Toynbee Hall in London providing workshops and advice to social entrepreneurs. The law faculty at Oxford University launched its first pro bono programme alongside local firm Turpin & Miller. Students will be trained to take the first draft of instructions for fixed-fee legal aid cases. BPP Law School in Manchester set up an employment law telephone advice line in association with LawWorks, to assist solicitors giving free advice. Meanwhile, the Bar Council launched ‘Friends in Law’, a scheme to recognise those chambers which provide financial support and volunteers for charities and pro bono work.
Maureen Murphy, 30, and Anna Francis, 37, are both suing Nomura for sex and race discrimination and unfair dismissal. Miss Murphy also alleges sexual harassment. Their barrister, Michael Duggan, told the Central London Employment Tribunal: “This organisation is institutionally racist and sexist.” Miss Murphy, a senior analyst earning £55,000 a year, and Miss Francis, a director on £250,000, had worked in Asian equity sales for Lehman Brothers when that bank collapsed last year. Their department was bought by Nomura and they transferred to its City offices.
Miss Murphy, of North London, described talking to a trader about hiring a cleaner. He allegedly said: “You’re a woman. That’s where you belong, at home cleaning the floors.” She said she was excluded from clients and marginalised before being dismissed in March this year.Miss Francis, of West London, said she was promised a place on a new Asian equities sales team but was made redundant last December. “I would not have been treated in this way if I was male employee, especially a Japanese male employee,” she said. Her former boss allegedly told Miss Murphy that Miss Francis had been dismissed for being “too outspoken and female”, explaining that “the Japanese hate women, especially if they are too loud”. Nomura denies the accusations. Sal Dirschberger, a spokesman, said: “Nomura maintains that it acted fairly in the dismissal of Anna Francis and Maureen Murphy by reason of redundancy as part of a wider reorganisation following the Lehman Brothers acquisition. To suggest they were selected on the basis of race or sex is wholly unfounded.” The case continues.
A girl left severely disabled following her birth at a Norfolk hospital has won a multi-million pound compensation payout at the High Court. Tahlia Jade Downes, now 14, was deprived of oxygen during her delivery at the Norfolk and Norwich Hospital. Through her mother, Dawn, she sued the hospital's managers, claiming a Caesarean should have been carried out. The hospital denied staff had caused injury but agreed to a settlement expected to run in to several millions. The court heard Tahlia, of Hellesdon, near Norwich, had suffered permanent brain damage, which led to severe mental and physical disabilities and also affected her vision. The hospital agreed before Mr Justice Eady that she should be compensated on the basis of 70% of a full valuation of her claim. 'Extraordinary care' A final figure for her compensation will not be reached for some time, but lawyers confirmed outside court that Tahlia's claim will be worth several million pounds, given the enormous costs of funding a lifetime of care. Margaret Bowron QC, for Tahlia, told the judge: "We, on our side, are satisfied that it is a fair and proper resolution of a difficult claim. "It has brought financial stability and, although not a full amount, it makes her future secure." Miss Bowron added that Tahlia's family, particularly her mother, had "devoted more hours of care than can be imagined to this very damaged little girl". Terence Coghlan QC, for the Norfolk and Norwich University Hospitals Trust, added: "Everyone involved in this case has been struck by the extraordinary level of care and time and love which has been put into caring for Tahlia by her family and we didn't want that to pass without being mentioned in court." Approving the settlement, Mr Justice Eady said he was entirely satisfied that it was fair and in the best interests of Tahlia and her family.
Companies that pay staff more for long service could be forced to scrap schemes after a landmark ruling that they might discriminate against women. The case at the Court of Appeal involved Christine Wilson, an inspector with the Health and Safety Executive, who claimed that her employer’s pay agreement was unfair because it was linked pay to length of service for up to 10 years. It meant three male colleagues on the same level as Mrs Wilson were paid more than her for doing equivalent work. The Equality and Human Rights Commission intervened in the case, arguing that linking pay to length of service often disadvantages women who take time out to have a family and so do not have the same continuous length of service as men. More than a third of companies are thought to use pay scales that increase salaries with the length of time a worker has remained with the business. Managers may now need to justify such policies if employees claim they are unfair. The commission said the ruling would provide a welcome boost to women in some jobs who have time off to raise children. It is holding a consultation on how to develop a consistent way to measure the gender pay difference. On average Men working full time are paid of 12.8 per cent more than women though the gap has narrowed from 17.4 per cent a decade ago.
A doctor, Dr Jeevan Mehta, hit the chairman of his employment tribunal with a chair after being asked for more evidence to support his claims of discrimination, a hearing was told. Mehta battered Christopher Carstairs shouting: 'I'm disgusted by this man, white man, bloody racist,' the General Medical Council heard. Solicitor Anna Coultas said the Indian doctor's temper suddenly flared during a case management hearing at the Central London Employment Tribunal on August 19, 2005. Mehta had been asked to provide "further and better particulars" of his claim against the University of London. "Things were all proceeding as normal but Dr Mehta was getting frustrated with the order," she said. "His voice got louder. He started to get antsy." She said he got up from his seat and dismissed the proceedings as a joke. "He went to pick up a jug of water. I thought he was going to empty it over the chair's head", she said. "He said he was going to ------- kill him.' Miss Coultas said she "felt scared" and went to the front desk to get help. When security said it was not their responsibility, she returned to the tribunal to see Mehta standing behind his desk with the chair was on the floor between him and the chairman. "The chair was on its side on the floor. It wasn't in that position when I left the room." Some minutes later Miss Coultas said the police arrived. The GMC heard that when she was away Mehta shouted: "I'm disgusted by this man, white man, bloody racist." He then walked towards Mr Carstairs, before picking up a chair and striking him with it, it is claimed. Chris Hamlet, for the council, said Mehta's conduct at the 2005 hearing was "entirely inappropriate". But he said his actions that day make up only a part of the GMC's case against him. Mehta appeared at West London Magistrates Court on September 2003 after failing to notify the Department of Work and Pensions of a change in circumstances. As a result he received a 12 month conditional discharge for fraudulently claiming benefits on four occasions between 2001 and 2002, and was made to pay £100 costs, it is claimed. Mehta is also accused of repeatedly failing to respond to request for employment details, following the conditional discharge and attack. Despite two letters from the GMC in 2008 he failed to return an Employer Details Form and said the council was "seeking irrelevant information in violation of my protected civil rights which is capricious, oppressive and racist". Although his misconduct hearing was expected to open on Monday, Mehta has repeatedly objected to both the charges he faces and the evidence brought. The 10-day hearing will be further held up following his request that the GMC produces the wooden chair used at his employment tribunal. Dr Mehta, from Parsons Green, Fulham, west London, denies the charges or that his fitness to practise is impaired. The doctor, who qualified from the University of Madras in 1971, could be thrown out of the profession if any of the charges are found proved. The hearing continues.
Keogh v Mentroy Limited (UD 209/2009) FACTS The claimant (the "employee") was promoted from his sales assistant position with the respondent (the "employer") to that of manager in the employer's store. In the ensuing months business declined and it was decided to make the position of manager redundant, being the most expensive member of staff. The employer had also heard complaints from other staff members about the employee and his management style. The employee was not given the option of returning to his former role. In the days immediately following the employee's redundancy another staff member resigned and a notice advertising full or part-time positions was placed in the employer's shop window. DETERMINATION The Employment Appeals Tribunal (the "EAT") held that in deciding to make the employee redundant the employer took into account factors other than the decline in business, namely the complaints from other staff members. The EAT found that the employer did not adequately consider other alternatives to redundancy and that the reasons given were not in fact the reasons being relied upon. Accordingly the EAT found that the employee had been unfairly dismissed. The employee was awarded €15,000.
FACTS The claimant (the "employee") held a senior position in the respondent's (the "employer") PR agency. While initially the employee got on well, problems began to develop regarding his performance and his relationships with clients as various clients terminated his services. The employer had several discussions with the employee regarding his performance and eventually issued him with a verbal warning. Subsequently the last of the employee's clients dispensed with his services. The employer decided to close the employee's division. The employer considered that there was no other position in the company for the employee and dismissed him on grounds of redundancy. At the EAT hearing the employee was able to produce an email from a consultant engaged by the employer. The email was sent to the employer prior to the employee's dismissal. The consultant stated in the email that the employer did not have adequate dismissal procedures in place to dismiss the employee fairly, but that it might be possible to dismiss him for redundancy on the basis that the employee was not capable of fitting in with plans for the company's growth. DETERMINATION The EAT found that even if there was a genuine redundancy, the employer had not given adequate consideration to the selection of an employee other than the claimant and that the employer had not considered any alternative to redundancy such as redeployment. The EAT held that the dismissal by reason of redundancy was a sham used to circumvent the disciplinary procedure. The EAT held that the employee was unfairly dismissed and awarded him €14,500. LEGAL ANALYSIS It is a full defence to a claim of unfair dismissal to show that an employee was dismissed for reason of redundancy. However where there was no genuine redundancy the dismissal will be unfair. As most employers are now aware before a position can be made redundant there must be a genuine redundancy but in addition the selection of the impacted employees must be fair and the procedures followed must also be fair. Where an employee is under-performing an employer may be tempted to make the employee redundant. This was the approach suggested by the consultant in his email in the Cronin case above. However, the EAT has made it clear in St Ledger v Frontline Distributors Ireland Limited that there is an essential difference between ability and training. While an employee's training and qualifications may be taken into consideration, their ability to do the job better or worse than another person should not be a factor in deciding whether to make them redundant. Impersonality is an important aspect of redundancy. Where an employer wishes to dismiss an employee for disciplinary reasons it may be tempting to try to disguise the dismissal as a redundancy as disciplinary procedures necessarily take time to go through fully. This is particularly the case where the employee's performance is at issue as the employee will need to be given adequate time to improve their performance. Employers may therefore view a redundancy process as a quicker way of terminating the employment of an under-performing employee. However, these cases illustrate that the EAT will carefully scrutinise the background to such redundancies and where it finds that the redundancy was not a genuine one the employer will run the risk of a finding of unfair dismissal. The EAT emphasised in Cronin that there was no issue with making an employee who was also the subject of a disciplinary procedure redundant but that the crucial point was that the disciplinary process and the redundancy process must be kept separate. In Cronin the consultant advised the employer that as there was no disciplinary procedure currently in place in the employer's company it would take a considerable amount of time to firstly put one in place and to then carry it out in order to fairly dismiss the employee. In these circumstances the employer decided to opt for making the employee 'redundant'. Employers are advised to have a comprehensive disciplinary procedure in place and to ensure that this is properly communicated to all staff members. This should then be followed whenever disciplinary issues with staff arise and all relevant meetings recorded. This should reduce the temptation for employers to resort to a potentially very costly 'redundancy shortcut'. In advance of making any position redundant a company should prepare a business plan. This plan should set out the business reason for making redundancies, the desired end result and the selection process being applied. Where an employer can demonstrate the process used to reach a decision, the employer will be in a much better position to defend a claim for unfair dismissal.
A NUN who refused to leave her teaching job at a Presentation Order school after being instructed to do so by her superior should be given her job back, an Employment Appeals Tribunal has ruled. During five days of hearings the order “insisted” that it was “permissible for religious orders to act in a manner contrary to the law of the land”. “The courts have allowed religious orders to openly discriminate in circumstances where such discrimination would not ordinarily be lawful. Such orders must be allowed to run their own affairs in their own interests,” the order’s counsel told the tribunal. The three-member tribunal, in a majority decision, found Sr Maria O’Sullivan of Grange Way, Pinecourt, Grange, Douglas, Cork, had been unfairly dismissed by the board of management of the Presentation primary school in Bandon. The tribunal said the way Sr Maria was treated at the time of her dismissal was “grossly undeserved, hugely disrespectful and is a source of shame on those who carried it out”. “The tribunal is also concerned that the board of management or at least certain people on that board appeared to be acting in conjunction” with the order’s provincial leader to remove Sr Maria from the school. “It seemed that each side in this untidy situation looked elsewhere when challenged on it by the claimant. “This dismissal was wholly unjustified in all the circumstances,” the determination says. Sr Maria, who qualified as a teacher in 1975, had worked at the school since 1991 and refused to leave her job. The order argued that as it had the power to nominate a member of the congregation to one of its schools it followed that it had the authority “albeit implied, to withdraw that nomination” and then the board of management was obliged to terminate that member’s employment. When the board of management said it was terminating her employment, Sr Maria wrote to her superior saying “I now hold you personally responsible for the loss of my employment, loss of salary and pension”. Sr Maria’s provincial leader wrote to her in August 2006 saying that as she had not agreed to take a career break as requested by the order’s leadership team she was “withdrawing” her from Bandon school and “missioning you to a period of rest”. The provincial leader told the tribunal the congregation were bound by their own rules and constitution which were based on canon law and that Sr Maria had to comply with them because of her membership and her vows. “However, the witness also accepted that their members were subjected to the laws of the State,” the determination says.
A former prison officer who said she was forced out of her job after being bullied because she was pretty has won her case for unfair dismissal. Amitjo Kajla, 22, said she suffered the abuse at Brinsford Young Offenders' Institution near Wolverhampton. Her tribunal heard how former colleagues questioned her behaviour with male inmates and suggested she rejected advice about the dress code. The tribunal has now issued a written judgement backing her claims. Ms Kajla, who lives in Wolverhampton, also won claims for age and sex discrimination against HM Prison Service (HMPS). The hearing in Birmingham in July heard Ms Kajla describe how she had been effectively sacked by Brinsford in April 2008 despite having no problems in her previous job at Shrewsbury prison. 'Weak woman' The written judgement said the tribunal accepted that under the circumstances, the treatment Ms Kajla was subjected to amounted to unfair dismissal. In a statement, Ms Kajla said: "All I ever did was try to uphold the HMPS purpose statement, which clearly states that their duty is to 'look after prisoners with humanity' and I sought to apply that in my work by treating prisoners with respect. "However, one officer didn't like my way of working, which was counter to the macho approach he favoured. "I was seen as a weak woman who could be bullied." A spokesman for the Prison Service said it was "disappointed" by the tribunal's findings and said it would study them "carefully". The spokesman added: "The Prison Service takes all allegations of sexual harassment very seriously." A hearing will be held in early November to determine how much compensation Ms Kajla should receive.
The UK High Court has upheld the law that allows UK employers to force workers to retire at the age of 65.
A JUDGE who once jailed a man for talking in his court was accidentally shot by a solicitor brandishing a pellet gun during a family law hearing in Longford.
Judge John Neilan was hit by the shot as a solicitor, whose identity was not disclosed, was exhibiting an air pistol as evidence in a case. The weapon was inadvertently discharged, firing a pellet which struck the judge. The judge was not seriously injured in the incident and continued to hear the court case. The incident occurred during a family law hearing on Tuesday in front of around half a dozen shocked witnesses. As the media are excluded from family law cases, other details of the incident remain shrouded in privacy. Regarded as outspoken, Judge Neilan earlier this year jailed a man for seven days for talking in court. And then he warned that anybody appearing before him in Athlone District Court would be sent to prison to "learn some manners" if they interrupted proceedings. Also this year the judge, referring to prisoners already serving jail terms, criticised the Department of Justice for "wasting taxpayers’ money" by bringing prisoners more than 160km out of their way to answer charges in midland courts. In 2004, Judge Neilan announced that he would jail all convicted drunk drivers for a week pending sentence. Legal experts, including then Justice Minister Michael McDowell, commented that such a move would be illegal and no good legal reason existed to remand a convicted drunk driver before handing down a sentence. Judge Neilan said the comments by the minister were made to "intimidate and humiliate" him. This summer, the judge spoke out strongly at Mullingar District Court against the abuse of children in the home. "I will elevate children to a position of paramount importance. I am not going to sit in court and allow a nightmare to be visited on innocent children. I will vindicate their rights," he declared after hearing garda evidence that a clearly distressed nine-year-old child had witnessed a drink-fuelled domestic assault. This, he said, amounted to an abuse of the child.
Compliance with employment legislation is a vital part of any business, particularly as the sanctions for failing to adhere to the various pieces of legislation can be very costly. For example, a simple failure to provide a contract of employment can cost an employer in excess of €1,300 per failure, and you will soon realise that this can quickly add up. In the Equality Tribunal decision of 58 Named Complainants v. Goode Concrete Limited each of the 58 claimants received €5,000 for a failure by their employer to provide a contract of employment in the claimant’s own language. The cost to the employer in that case was over €300,000! In addition, there can also be substantial negative publicity and increased costs arising from a Rights Commissioner hearing or Employment Appeals Tribunal hearing, in particular if the case is appealed to the Circuit Court. The following questions outline some of the key areas of compliance that employers must be aware of: • Do you have a written statement of terms of employment for each employee (contracts of employment)? • Have you carried out a risk assessment under the Safety, Health and Welfare at Work Act 2005? • Do you have an anti-bullying policy in place? • Do you have Grievance or Disciplinary Procedures in place? • Do you keep complete records of your employee’s hours worked, leave taken and wages paid? • Have you complied with the Safety, Health and Welfare at Work (General Application) Regulations 2007, in particular in relation to eye tests for employees who use computer screens, noise levels and lighting in your workplace? • Are you compliant with the Employment Equality Acts 1998 to 2004? If the answer to any of the above questions is “no”, then you are vulnerable to having an employee bring you before a Rights Commissioner, or the Employment Appeals Tribunal. In addition, you could also be brought before the Circuit Court or be prosecuted by the Health and Safety Authority or the National Employment Rights Authority (NERA). During an inspection, NERA will demand access to a full range of records, including terms of employment for each employee, payroll details, copies of payslips, records of leave taken and entitlements,details of hours worked for each employee etc. etc. etc....... The time and expense incurred in defending such claims or prosecutions means that it is in your interest to have an Employment Law Audit carried out of your business in order to ensure that you are fully prepared to deal with any claim that comes knocking on your door. Here at Terence J. O'Sullivan Solictors we can carry out that audit for you to ensure that you are do not fall foul of Employment legislation and regulations. If you have any queries then contact our principal, Terence J O'Sullivan.
A judge unhappy with repeated interruptions from a robbery suspect took rather direct action to achieve silence in court - he ordered a deputy to put duct tape over the defendant's mouth. Brown complained that his court-appointed attorney wasn't prepared and angered the judge with interruptions. After a warning, the judge told the bailiff to tape Brown's mouth shut.
Workers at SPCK's Christian bookshop chain have won a "substantial" payout after being sacked, many by e-mail, by the company's new owners the St Stephen the Great Charitable Trust (SSG), a union has said. |
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Terence J. O'Sullivan Solicitors
32 Washington Street West, Cork City, Ireland T: +353 (0)21 4223075 | F: +353 (0)21 4905924 | E: info@tjos.ie 
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