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Mr. Justice Feeney of the High Court recently approved a €1.5 million settlement for a personal injuries claim taken by the father of a young child who lost his arm in a lawnmower accident. The boy, Conor Bryne, was two years old at the time of the accident and had been playing in his aunt’s patio, while his mother and aunt were gardening. The boy then slipped down an embankment where his cousin was using a drive-on lawnmower. Despite the lawnmower having a protective guard, which shielded the blade, Conor’s right arm went underneath the guard and was amputated just below the elbow. The boy was rushed to Cork University Hospital but doctors were unable to reattach the arm. Conor’s father subsequently took a personal injury claim against his sister-in-law and her husband. Mr. Justice Feeney approved the settlement, noting that it was calculated in anticipation of Conor’s future losses and would also cover the cost of adapting the family home.
The Employment Appeals Tribunal recently awarded a former equine administrative assistant over €23,000 in compensation for her constructive dismissal. The Claimant commenced employment in 2007 as an equine administrative assistant and was also required to help out on the stud farm. The Claimant submitted to the Tribunal that her employer was very demanding and was constantly ringing and texting her, causing her to miss important family events. The Claimant also submitted to the Tribunal that she was not permitted to take lunch breaks and that her employer made derogatory comments about her, such as blaming her when creditors were not paid on time and alleging to other employees that she was suffering from a hangover when she left work sick one day. Matters came to a head on the 2nd December 2010, when the Claimant tried to explain to her employer that she was unable to fit two years of company accounts on a one page documents as requested. The Respondent told the Claimant to “shut up” and informed her that he would get someone else to do the work if she couldn’t. The Claimant submitted that she took this to mean that her job was no longer available. The Tribunal noted that while the Claimant had been made an offer of reinstatement, she was entitled not to return to work given the complete breakdown of trust and confidence in the employer/employee relationship. The Tribunal concluded that the Claimant had been constructively dismissed and accordingly awarded her €23,826 in damages. Compensation isn’t the only outcome of a claim for unfair dismissal which comes before the Employment Appeals Tribunal. However, if the employer-employee relationship has broken down and is beyond repair, then the EAT will refuse to order reinstatement of the employee – as reinstatement could do more harm than good. If you are an employer facing an employment appeals tribunal case or if you are an employee considering taking action against your employer – seek specialist employment law advice!
A former leisure centre manager was recently awarded over €25,000 in compensation by the Employment Appeals Tribunal for his unfair dismissal. The Claimant had commenced employment in October 2008 and his contract of employment contained a restrictive covenant, which the Claimant had acknowledged in writing. In August 2010, the Respondent Employer discovered that the Claimant had failed to disclose that he was involved in other business activities during the course of his employment for the Respondent. The Respondent submitted to the Tribunal that they subsequently conducted a full and thorough investigation into the matter and had given the Claimant every opportunity to make submissions during that disciplinary process. The Claimant was subsequently dismissed from his employment. The Tribunal found that while the Claimant had been involved in other business activities, they were located approximately 60 km away from the Respondent’s business. The Tribunal also highlighted that it had never been explained to the Claimant that a breach of the restrictive covenant could lead to his dismissal. Accordingly, the Tribunal held that the Claimant had been unfairly dismissed. Once again, this EAT decision highlights the importance of fair procedures. In particular, it illustrates that even if an employee signs a contract of employment it may not render the terms of that contract legally binding if the employee doesn’t understand their significance. If you are an employer who is considering engaging in a disciplinary process, or if you are an employee who is currently embroiled in a disciplinary process – seek specialist employment law advice! To read further on the decision:-
Earlier this week, the Supreme Court made a landmark ruling in McGowan & ors v Labour Court & anor, in which they held that the system of Registered Employment Agreements (“REAs”) was unconstitutional as it delegated law-making powers beyond the Oireachtas. This article will provide some guidance as to the rationale of this landmark decision and its impact for employers and employees alike. What are REAs? How REAs came before the Supreme Court Supreme Court decision of 9th May 2013 Justice O’Donnell noted that under Article 15.2.1 of the Irish Constitution, the Oireachtas has exclusive law-making power, referring to a number of decisions which confirmed this view. He stated that REAs were a delegation of a “most fundamental and far-reaching kind” as they controlled every aspect of the employee’s work life and their employer’s business. He also highlighted the fact that REAs essentially granted law-making power to unidentified private individuals and that the Labour Court has no power of consultation or comment on these agreements. Justice O’Donnell noted that the power of approval and registration of these agreements had been delegated to the Labour Court, an intermediate body – and that there was no guidance as to how they should exercise their powers. The only limitation imposed on their regulation power was section 27 of the 1946 Act which provided that registration is mandatory subject to compliance with the subheadings of section 27. However, Justice O’Donnell emphasised that this limitation was inadequate, noting that there was no obligation on the Labour Court or parties to the agreement to consider the interests of those who would be bound by the agreement. Justice O’Donnell was also scathing of the fact that neither the Labour Court nor the Oireachtas could vary the agreement. Even the parties who were bound by the agreement, but had not been represented at the time of its making, could not seek to vary such agreements. Aftermath As of yesterday, the Minister for Jobs, Enterprise and Innovation Richard Bruton is still seeking legal advice on the judgment before commenting. However, it is likely that just like the JLC system, which was struck down as being unconstitutional in 2011, an Industrial Relations Amendment Act will be introduced to reform the REA system. In the meantime, UNITE Construction Official Tom Fitzgerald commented on the 9th May 2013 that the current terms and conditions of employment will continue to apply until they are re-negotiated. To read further on the decision, click the link below:-
The Dublin Circuit Court recently made a €9,464 personal injury compensation award to a Dublin student. In June 2010, the Plaintiff purchased a takeaway meal at the Kings Garden Chinese restaurant in Tallaght which was to be shared with his friends. However, when the Plaintiff placed his hand inside the brown paper bag to retrieve his portion of the meal, he burned his hand on hot curry sauce which had been provided by the restaurant. The Plaintiff subsequently attended Tallaght Hospital where he was treated for the burn injury to his hand. The Plaintiff submitted to Court that he attended the hospital on several further occasions and that he still suffers from discolouration of the skin and pain in cold weather. . Mr. Justice Groarke initially awarded the Plaintiff €12,000 in compensation as the restaurant had been negligent in providing the Plaintiff with a defective cup. This award was subsequently reduced to €9,464 on account of the Plaintiff’s contributory negligence as he had failed to look inside the bag before retrieving his meal.
The Employment Appeals Tribunal recently awarded a former supermarket employee €7,000 in compensation for his unfair dismissal. The Claimant commenced employment in 2007 as a General Assistant. On the evening of the 15th June 2010, the Claimant was called into a meeting with the Store Manager following an allegation of assault by a customer’s father. The Claimant was accused of putting his hand on a young boy’s shoulder when he skipped the self-service queue. The Claimant submitted to the Tribunal that he had placed his hand on the boy in a friendly manner, so as to direct him to a self-scan area, but that the boy had become abusive and had threatened the Claimant that he “would get him fired”. On the meeting of the 15th June, the Claimant was not afforded an opportunity to have a representative or witness present at this meeting. At a subsequent disciplinary meeting, the Claimant was shown CCTV footage of the incident. His trade union official submitted to the Tribunal that she had to ask the Store Manager to refrain from talking over the footage and giving his own interpretation of the events. The Claimant was subsequently dismissed from his employment as a result of the assault allegation. The Tribunal, in awarding €7,000 in compensation, highlighted the employer’s failure to adhere to fair procedures and noted that the Store Manager had failed to consider the possibility of relocation of the employee. The Tribunal were also critical of the fact that the Store Manager was unable to produce any documentation which instructed staff not to place a hand on a customer. Once again, this EAT decision emphasises the importance of adhering to fair procedures, even where an employee may be guilty of gross misconduct. If you are an employer who is contemplating engaging in a disciplinary process, or if you are an employee who is facing dismissal – seek specialist employment law advice! To read further on the decision:-
The Employment Appeals Tribunal recently awarded a former pharmacy counter assistant €25,000 in compensation for her unfair dismissal. The Claimant commenced employment for the Respondents in 2003 and was not provided with a contract of employment. In 2004 she received training on a software programme system for stock control, known as the EPOS system, for which she was solely responsible for in her branch. In April 2010, the Claimant was called into a disciplinary meeting after a number of allegations had been brought against her – such as her use of bad language and for throwing a stapler at her branch manager. At the end of the meeting, the Claimant was dismissed for gross misconduct and was refused a “second chance” by the Managing Director as she felt that the matter was too serious. The Claimant submitted to the Tribunal that she was unaware of the purpose of the disciplinary meeting, and had believed that management were going to discuss her pay/work hours. She was not given an opportunity to have a representative present and she submitted that she is still unsure as to the reason for her dismissal. However, the Claimant did acknowledge her use of bad language and that she had thrown a stapler in the direction of her branch manager. The Tribunal were particularly scathing of the Respondent and noted that they hadn’t followed any acceptable procedure in dismissing the Claimant. The Tribunal highlighted the fact that she had no contract of employment, there was no grievance procedure in place, she was not informed of the purpose of the meeting and she was given no right of appeal. This decision highlights that even if an employee has engaged in wrongdoing, the employer must ensure that they adhere to fair procedures and allow for a right to an appeal, should the employer decide to dismiss the employee due to their conduct. If an employer fails to do so, they may face a hefty compensation award – as well as their own legal costs! If you are an employee who is facing a disciplinary hearing or if you are an employer who is concerned about an employee’s conduct – seek specialist employment law advice! To read further on the decision:-
In a recent High Court decision, Justice Ryan reduced a €195,000 personal injury award to €114,300 on account of the Plaintiff’s contributory negligence. Background Although the Defendant admitted liability for the accident, he claimed that the Plaintiff was contributory negligent as she knew that she was travelling in a car with an intoxicated driver and had failed to wear her seatbelt. The Plaintiff submitted that she was not present in the Defendant’s company on that night, as she had been socialising with another group, and that she did not notice anything untoward about his condition. Decision Justice Ryan noted that while the Plaintiff had been contributory negligent, she had suffered significant injuries and thus reduced her personal injury by 40% to €114,300.
Ms. Justice O’Malley recently overturned a Circuit Court decision and awarded a pizza delivery man €7,000 in compensation for his personal injury. In October 2009, Mr. Kahurana was delivering promotional pizza menu leaflets through letterboxes when the Defendant’s Alsatian bit his finger. Mr. Kahurana subsequently required hospital treatment for his finger injury and a tetanus injection. The Defendant submitted that ten days after the incident, Mr. Kahurana called to his house with several companions demanding money for his injury, to which the Defendant allegedly told him to leave, in no uncertain terms, using what has to be described as unparliamentary language. What is noteworthy about the decision is that Mr. Kahurana was awarded his Circuit Court and High Court costs, in addition to €7,000 in compensation for his personal injury.
In February 2013, Mr. Justice Sean Ryan of the High Court awarded Ms. Karen Hurley-Ahern €100,000 in personal injuries damages for a failed sterilisation after a son, that she was never supposed to have, died when he was six months old. Background The parents subsequently sued for the suffering and trauma caused as a result of the failed sterilisation procedure. Decision (as reported in the Irish Times)
In a recent Employment Appeals Tribunal decision, the Tribunal awarded a former truck driver €28,000 in compensation for unfair dismissal after he was unfairly selected for redundancy. Background Tribunal Hearing Commentary
We are constantly hearing reports in the media about bullying and its effect on work output and morale, as well as the real impact on the victim and their extended family. But how does the law treat a complaint of bullying? The simple answer is, inadequately, and that goes for both the employer and the employee. To put it in context, the first Code of Practice for the Prevention of Workplace Bullying was only published by the Irish State in 2002. Over 12 years have passed since its inception, and while the Code of Practice has been amended to incorporate statutory duties under Health and Safety legislation, as of yet no anti-bullying forum has been put in place. As a result, both employers and employees are left with remedies that really do not fit the bill. I do sincerely believe that employers want to do right by the complainant employee, as well as the employee against whom the complaint is made. Very often, however, it becomes a war of attrition between the parties. The HSA Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying 2007 defines bullying as “repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of the employment, which could reasonably be regarded as undermining the individual’s right to dignity at work”. The ERSI Report of 2007, as commissioned by the Department of Enterprise, Trade and Innovation, confirmed that approximately 7.9% of all employees within the Irish workforce experienced workplace bullying – equating to a figure of 159,000 individuals. Based on our experience as employment lawyers, that figure has ballooned over the years.
After the internal processes are exhausted, what then for the complainant if the complaint is not upheld? Therein lies the difficulty. If he or she has suffered injury, by which we mean a diagnosis of a psychiatric condition, one can contemplate bringing a claim for damages. This, however, is based on the same common law that allows an employee to bring an action by way of personal injury, and it is safe to conclude that the precedent case law is very much against the complainant, who is the victim of bullying. There is no forum dedicated to hearing complaints of bullying, unless the complaint of bullying can be linked to one of the nine grounds of discrimination prohibited by the Equality Acts. If the female victim of bullying alleges that the bullying is in effect harassment and/or victimisation on grounds of, say, gender, she might bring a complaint before the Equality Tribunal. In the absence of discrimination, in our experience, the victim of bullying is left with no option but to proceed by way of trade dispute under the Industrial Relations Acts. The complaint can currently be heard by a Rights Commissioner but if the employer objects to his investigation, then it will be heard by the Labour Court. There are a number of decisions that have been given by the Labour Court which do recognise the reality of bullying but in our experience the remedies available to the victim of bullying is the equivalent of putting “square pegs in a round hole”. I have no doubt that employers who are well motivated wish to meet complaints of bullying fairly, and restore good morale to the workplace, for both the complainant and the alleged bully. When a dispute ensues, we would heartily recommend both to the employer and to the employee that mediation be considered at the earliest stage possible. Mediation can offer a viable solution for both the employer and the employee, it avoids the blood-letting that can ensue when battle ensues, and both the employer and the employee can have good relations restored with all parties feeling that they have been heard. We have vast experience in this area, so if you have been bullied do get in touch!
In the recent Dublin Circuit Civil Court decision of Varga –v – POD Entertainment Ltd, Justice Deery awarded the Plaintiff, who was appealing the Employment Appeal Tribunal’s decision, €40,000 in compensation for her unfair dismissal. Background Decision Commentary
In an unusual decision, the Employment Appeals Tribunal recommended the re-instatement of a former employee who called his manager a moron. The Claimant was employed by the Respondent from 2002 until 2010, when he was dismissed for abusive, objectionable and threatening behaviour towards his manager. The manager in question had suspended the employee for allegedly calling him a “f**cking moron”. The Claimant informed his HR Supervisor that while he accepted that he had called the manager a moron, he had not used bad language. In a subsequent disciplinary hearing, HR became concerned about the Claimant’s welfare and referred him to their occupational health physician. The doctor made a report noting that he was fit for work and recommended mediation between the Claimant and his manager. However, this report was never furnished to the Claimant. The Claimant was subsequently dismissed on the basis of his gross misconduct, as well as his lack of remorse. The Tribunal held that the Claimant’s dismissal had been unfair as the procedures used by the respondents had not been even-handed. The Tribunal highlighted in particular the fact that the Claimant was not furnished a copy of the doctor’s report, nor was he given details of conversation between HR and his work colleagues. The Tribunal noted that for such an isolated incident, the termination of the Claimant’s employment was a disproportionate sanction as other remedies were available. What is perhaps most surprising (or shocking!) is that the Tribunal recommended the re-instatement of the employee, rather than award compensation. This decision highlights for employers that not only can they face hefty legal costs, if they wrongly dismiss an employee, they may also have to pay compensation and allow that employee return to the workplace! If you are considering engaging in a disciplinary procedure, or if you are the employee who is subject to such a process – seek specialist employment law advice! To see the full decision: - http://www.eatribunal.ie/determinationAttachments/b9e72baa-ab54-49bd-a163-26d52ff087d3.pdf
Although 2012 now seems but a distant memory, there were a number of important legislative developments throughout that year, particularly within the employment law arena. The most important legislative developments, that both employers and employees alike should be aware of, include the following: - 1. Updated Code of Practice on Sexual Harassment and Harassment in the Workplace 2012 This Code updates the previous Code of Practice on Harassment 1998. The Code contains helpful guidelines as to what constitutes harassment and sexual harassment, how an employer can defend themselves from harassment claims and the remedies available. To read more: - http://www.irishstatutebook.ie/2012/en/si/0208.html 2. Agency Workers On the 5th December 2011, the EU Directive on Temporary Agency Workers came into effect. While there was initially some confusion as to whether the Directive had direct effect for both public and private sector agency workers, the Protection of Employees (Temporary Agency Work) Act 2012 has clarified matters. The Act is applicable to both private and public sector agency workers and these workers are entitled to the same basic working and employment conditions as their directly recruited counterparts. These conditions include pay, annual leave, access to amenities and job opportunities. To read more: http://www.irishstatutebook.ie/2012/en/act/pub/0013/print.html 3. REAs and JLCs 2011 and 2012 were quite turbulent years for the Registered Employment Agreements and Joint Labour Committee systems. In 2011 there was a constitutional challenge by the Quick Service Food Alliance of the right of the Catering JLC to set minimum rates of pay and employment conditions. The High Court ruled that the JLC system was unconstitutional due to an excessive delegation of law-making power to the Labour Court. The Industrial Relations (Amendment) Act 2012 enacted as a consequence so as to reform the JLC system. According to the Act, JLCs may still set rates but now employers can apply for an exemption where there is a substantial risk of workers being made redundant or where the employer is in financial difficulty. Registered Employment Agreements were subject to a separate constitutional challenge by electrical contractors in May 2011. However, Justice Hedigan dismissed the case as he deemed it to be “out of time”. Thus, REAs still remain in effect. The Industrial Relations (Amendment) Act 2012 also establishes new rules for the creation and amendment of REAs and EROs (Employment Regulation Orders). Employers should keep an eye on the JLC and REA system for future updates. To read more:- http://www.irishstatutebook.ie/2012/en/act/pub/0032/index.html While these legislative developments are important and ensure that Ireland is in line with EU standards, such developments can cause a headache for employers and employees alike. If you are unsure as to your rights and/or obligations regarding recent employment legislative developments – seek specialist employment law advice!
The Employment Appeals Tribunal, sitting in Letterkenny Co. Donegal has heard how a care assistant who began employment for the Respondent in 2006 had an allegation made against him in 2010 and was unfairly dismissed thereafter. He received a phone call in February 2010 from his employer alleging an unspecified allegation and requesting that he attend a ‘meeting’. The care worker was not given the chance to defend himself as he was only given the specifics of the allegation one hour prior to the meeting. He never received any feedback or determination from his employer after the meeting and assumed that all matters had been settled and were sorted. However in March 2010 he received another phone call and a handwritten note from his employer alleging further allegations and that he must attend a disciplinary hearing. A nurse in charge carried out an investigation into the allegations, as was the employer’s policy for all complaints made against staff, but the care worker was not permitted into the establishment in the meantime. He received no warning and was dismissed the following month in April 2010. He only ever missed one day from work in 4 years. Ultimately the Employment Appeals Tribunal found that by virtue of the lack of Fair Procedures in the way the employee was treated that he was unfairly dismissed, albeit there was significant poor performance on his part in carrying out his duties. The EAT awarded him €5,500 for his unfair dismissal and a further 2 week’s wages of €726.60 for the lack of adequate notice of his termination. This claim was heard by the EAT on 8th February, 26th March and 20th June 2012
The Equality Tribunal recently awarded €15,000 in compensation for the discriminatory dismissal of a former waitress of the Coffee Pot and Deli café. Ms. Szmall claimed that she had been constructively dismissed, after she informed her employers of her pregnancy. Prior to her pregnancy, Ms. Szmall worked between 20-30 hours in the Respondent’s café. Upon informing the Respondents of her pregnancy, her hours were dramatically reduced and were then subsequently withdrawn entirely. Ms. Szmall submitted to the Tribunal that she had no option but to ask for her P45. Subsequently, Ms. Szmall discovered that another woman, who was Irish and was not pregnant, was hired by the Respondents on a full-time basis. The Respondents argued that for business reasons they thought that the café would be better served by one full-time waitress rather than two part-time waitresses. The Equality Officer found that while Ms. Szmall had not been discriminated against in terms of access of employment, she had been discriminatorily dismissed and accordingly awarded her the equivalent of one year and eight months the Claimant’s salary. This decision highlights that even if an employer believes the dismissal of an employee may better serve the business, they must ensure that they adhere to employment equality legislation. Otherwise, an employer may face heft legal costs and compensation awards. If you are an employer or an employee who is unsure of your rights and obligations as regards employment legislation – seek specialist employment law advice! To read further on the decision:-
On the 6th December 2012, it was reported by the Irish Times that the Dunnes Stores hijab case has been settled. Ms. Tavoraite, a Lithuanian national who had converted to Islam, claimed that her former employers Dunnes Stores did not permit her to wear the hijab at work.
The Claimant had been employed as a childcare worker in a crèche for over five years. One of her responsibilities was to supervise the children while they were playing on the Astroturf pitch, with two other colleagues. On the 23rd November 2010, the Manager of the crèche received a complaint from a father that his child had been held down on the AstroTurf pitch by two older boys, who then proceeded to force a sock into his mouth.
Justice Matthew Deery of the Dublin Circuit Civil Court recently awarded approx. €28,000 in personal injuries damages in compensation for a slip on a dance floor. The Plaintiff, Ms. McNamara, had visited the Leopardstown racecourse with friends in December 2009. As the racing had been cancelled, due to fog, the group went to the “The Fillies Bar” in which a DJ was encouraging people to dance in a tiled alcove of the bar. Ms. McNamara was dancing with a man whom she had just met, when she slipped on a wet patch on the floor – hitting her head on the tiles and breaking her left wrist. The Defendants argued that the man whom Ms. McNamara had been dancing with had caused the accident due to his “rough” actions. The Bar Manager gave evidence that the man in question had been throwing Ms. McNamara around the floor. Justice Deery dismissed the defence, stating that impromptu dancing was permitted within the bar and that the bar had an inadequate cleaning system in place. Justice Deery also acknowledged that the manner in which Ms. McNamara fell was consistent with the floor having been wet.
The Employment Appeals Tribunal recently overturned a Rights Commissioner decision, and awarded approx. €45,000 in compensation for unfair dismissal.
The High Court recently approved a €50,000 personal injury settlement to a teenage girl, who suffered a neck injury when a goalpost fell on her six years ago.
The Appellants, the former employers of the Respondent, appealed a Rights Commissioner determination to the Employment Appeals Tribunal, claiming that the Respondent had been dismissed for gross misconduct.
The Employment Appeals Tribunal recently awarded a former employee of an online hotel booking service company €55,000 in compensation for his unfair dismissal.
The Employment Appeals Tribunal recently awarded a former Dunnes Stores employee €10,000 in compensation for her unfair dismissal. The Claimant was employed as a cook in the in-store café of one of the Respondent’s stores. In July 2009, it came to management’s attention that local traders may be receiving food for free. Thus, CCTV footage was monitored, upon which it was discovered that staff were “continuously grazing” food from the hot counter. The Claimant was viewed on several occasions eating food directly from the hot counter, without washing her hands, and drinking tea and minerals. The Claimant was subsequently dismissed for gross misconduct. The Claimant submitted to the Tribunal that she merely tasted the food to ensure that it had reached the optimum temperature, as the serving unit equipment was faulty and customers often complained that the food was cold. She also submitted that the water fountain had broken down, and that the manager allowed staff to take cold drinks because the restaurant was so warm. She was unaware that the fountain had been repaired whilst she was out on sick leave. The Claimant also contended that she was never informed that staff could not taste the food and that she was never informed of the purpose of her disciplinary meeting. The Tribunal found that her behaviour, while reprehensible, did not amount to gross misconduct, on the basis that the manager of the café failed to ensure implementation of company policies in relation to hygiene and staff sales. The Tribunal advised that the Respondents should have issued a verbal/written warning, rather than dismissing the Claimant.
The Chief Executive of Temple Bar Gallery and Studios Ltd (TBGS) was recently awarded €30,000 after the Employment Appeals Tribunal found that her redundancy had been a “sham”. The woman claimed that she was made redundant in order to simply make way for a younger colleague who would do the same job for less pay. The Tribunal found that the job specifications in the job vacancy posting for a “Studio Development Officer” were practically the same as the duties carried out by the Claimant. The Tribunal went on to say that in order to be deemed ‘fair’, a redundancy must be impersonal and result in a change. Neither of these two characteristics were present in this redundancy. The Irish Times - Friday, October 26, 2012
The Dublin Circuit Court recently approved a settlement award of €4,000 for a six year old girl, who was inoculated with the swine flu vaccine without her parents’ consent. Parents of children attending the St. Laurence O’Toole National School were notified in advance of the planned inoculation of children with the swine flu vaccine. Niamh Fleming’s parents signed a form indicating that they did not consent to the administration of the vaccine to their daughter. This was done on the basis of advice from their GP who had warned of the dangers of the vaccine. The Court noted that Niamh Fleming had not suffered from any adverse consequences, other than a painful arm, and approved the settlement offered of €4,000.
A former golf groundskeeper was recently awarded €75,000 in compensation for his unfair dismissal by the Employment Appeals Tribunal. The award broke down into a €67,500 award for unfair dismissal and a €7,500 award for the respondent’s failure to pay 8 weeks’ pay, pursuant to the Minimum Notice and Terms Acts 1973 – 2005.
The Employment Appeals Tribunal recently awarded a former manufacturer fabricator €32,000 in compensation for his unfair dismissal, following a horseplay injury. On the 2nd February 2010, the Claimant and his work- colleagues were walking up a ramp within the workplace. There was some banter and horseplay at the time and the Claimant was caused to trip on a ramp. It subsequently emerged that he had broken his collarbone. The Claimant informed his Production Manager about the incident and confirmed that he would take no action against the company. The following week the Claimant was asked to attend a meeting, so as to “sort out” his sick leave payments. During the course of that meeting the Claimant confirmed that he was telling the truth about the incident and that he would take no action against the company. The Claimant was then shown CCTV footage of the incident showing that the Claimant had been involved in horseplay with his colleagues and that this horseplay had caused his injury. The Claimant was dismissed in that meeting on the basis that the company could no longer trust him. During the Tribunal hearing, the Respondent’s Production Manager submitted that he had not agreed with the decision to dismiss the Claimant as he felt that it was too harsh. Having reviewed the CCTV footage, the Tribunal were of the opinion that while horseplay had been involved the Claimant had been unfairly dismissed as the disciplinary procedures used to deal with the matter were flawed. This decision clearly illustrates that fair procedures must be adhered to at all times during a disciplinary process, as otherwise an employer may face hefty legal costs and unfair dismissal awards. Before you dismiss an employee, or before you are dismissed by your employer, seek specialist employment law advice!
The Employment Appeals Tribunal recently awarded a former female casino worker €36,000 for unfair dismissal, after the Claimant informed her employers of her pregnancy.
The Employment Appeals Tribunal recently overturned a Rights Commissioner decision and awarded a former lorry driver €25,000 in compensation for unfair dismissal. The Complainant commenced employment in 2008 for a haulage company. After several months, the Plant Manager informed the Complainant that several complaints had been made regarding his excessive speeding. The Complainant submitted to the Tribunal that following that warning, he kept his speed below 40km/hr. A year later, the Complainant was asked to collect his insurance disc from the Transport Manager, BO, who then subsequently asked him to attend a meeting that afternoon. In that meeting the Complainant was informed that further complaints had been made about his dangerous driving, and that he was to be suspended with pay for five days while those complaints were investigated. The following week the Complainant was invited to a further meeting, where his contract of employment was terminated. The Complainant submitted to the Tribunal that he was never provided with any witness statements and that he never had any accidents while driving the truck. The Tribunal, in finding for the Complainant, noted that even if there were genuine concerns about the Complainant’s dangerous driving, fair procedures had not been adhered to. The Tribunal highlighted the fact that the Complainant had not been informed of the purpose of the disciplinary meeting beforehand, nor was he informed of the possibility of losing his job. The Tribunal also noted that in the meeting the complaints were never teased out with the Complainant – he was simply told that complaints had been made, and clearly these complaints were believed in full. This decision clearly illustrates that even if an employer does have a genuine reason for a dismissal, they must ensure that they adhere to fair procedures, such as by conducting a proper investigation into the matter and by teasing out the issue with the employee concerned. Otherwise, an investigation may appear one-sided and could lead to unfair dismissal claims – resulting in further loss and expenditure. If in doubt as to whether your company is engaging in fair procedures, seek specialist employment law advice.
In the first case of its kind, the High Court settled in April 2012 an overseas personal injury claim for €88,000, after a Dublin resident was injured in a road traffic accident while holidaying in France. Mr. Kelly (75) sustained a hip injury in June 2009 after he was knocked down by a council maintenance van, while crossing a road in Cannes. While Mr. Kelly did not require immediate medical assistance, he was forced to undergo a total hip replacement in 2011 after his hip rapidly deteriorated following the accident. Justice O’Neill noted that prior to the accident Mr. Kelly had led a very active lifestyle, but that he could no longer play tennis or cycle and was restricted in his day-to-day activities. A personal injuries action was subsequently taken against a French insurance company. However, while the insurers accepted liability, they argued that the case should be judged according to the “Book of Quantum” which exists in France, in which personal injury claims are assessed on a much lower scale than their Irish counterparts. Given the impact of the injury on Mr. Kelly’s lifestyle, however, Justice O’Neill applied the methodology under which a French court would make its award but increased the value of the overseas accident compensation claim to Irish levels.
The High Court recently approved a €100,000 personal injury settlement for a young boy who suffered significant injuries after being struck by a car.
Ms. Justice Mary Irvine recently approved a €750,000 personal injury settlement after a man suffered severe personal injuries from a fall from scaffolding. Mr. Patrick Rayner was helping his brother to replace slates on his roof, when he lent over the top of the scaffolding tower and fell three metres to the ground. As a result of the accident, Mr. Rayner suffered a fractured skull, had lost his sense of taste and smell, lost his hearing and suffered from frequent headaches. Mr. Rayner had initiated proceedings through his wife Julia, as he claimed that the scaffolding tower had not been secured to a permanent structure and that his brother had failed to make adequate provision for his health and safety. Ms Justice Mary Irvine approved the settlement of compensation for fall from scaffolding, stating that this was a case of the deeds of a Good Samaritan concluding in tragedy. While it is unusual for a brother to take a personal injuries action against his brother, this case highlights that should an individual ask a friend or relative to assist them in D.I.Y, they should ensure that the health and safety of that person is protected. Otherwise, they do may face hefty legal fees and expensive personal injury claims. If you have suffered a personal injury or have a personal injury claim made against you, seek legal advice!
The Employment Appeals Tribunal recently awarded a former childcare worker over €26,000 in compensation for unfair dismissal.
In late June, the Dublin Circuit Court approved a €21,000 personal injury settlement after a young girl was seriously injured from a shop display. Ms. Earls, who was 11 at the time of the accident, was shopping with her mother in Dunnes Stores when she passed by a stand displaying cakes. Unknowns to the girl, there were rusty nails protruding from the display stand. Ms. Earls snagged her leg on these nails and suffered an abrasion and laceration on her leg as a result. Justice Mahon noted that Ms. Earls had been left with a permanent scar on her left leg. Ms. Earls, who sued through her mother and next friend Fidelma, claimed for compensation against Dunnes Stores and ABF Grain Products, whose products were displayed on the stand. The Defendants admitted liability for the dangerous shop display on a 60:40 basis and settled their claim with the young plaintiff for €21,000 which included her legal costs. This case illustrates for shop owners that due caution should be taken with any displays placed on the shop floor. As while it may increase revenue sales, if the display is faulty then it could also increase the likelihood of a customer/staff member being injured and a subsequent personal injury claim.
The Employment Appeals Tribunal recently awarded €15,000 in compensation for unfair dismissal to a former factory worker after they were dismissed for refusing to sign a letter and for leaving the factory floor. The Complainant had been employed as a factory worker for 11 years and he submitted to the Tribunal that in the latter years of his employment, he had been subjected to bullying and harassment by senior management. He acknowledged that while he had been previously disciplined for poor performance, he alleged that this was because he was under extreme stress from harassment which he suffered within the workplace. In May 2010, the Complainant was asked by his production supervisor to work on the Friday of the May Bank Holiday, which ordinarily he would not have been scheduled to work. The Complainant submitted to the Tribunal that he had planned to travel to Dublin for the weekend with his family and informed the supervisor that he was unavailable. However, no explanation was given for his absence on Friday and none was sought by the supervisor. The following day, the supervisor approached the Complainant and asked him to sign a letter acknowledging that he had been offered an extra working day which he had refused. The Complainant refused to sign the letter, as he was upset by its contents, and left the factory in order to discuss the matter with his wife. He returned to the workplace twenty minutes later and informed the supervisor that he would work the day in question. However, the Complainant was subsequently summoned to a disciplinary meeting at which he was dismissed. An appeal hearing upheld the decision of senior management. The Tribunal noted that while the Complainant had a prior disciplinary record, that the refusal to sign the letter, and twenty minute absence from the factory floor, was not of sufficient gravity to warrant dismissal. Thus, the Tribunal awarded the Complainant €15,000 in compensation for unfair dismissal. This case highlights for employers that they must ensure that if they wish to dismiss an employee for misconduct, they must ensure that the offences are of sufficient gravity to warrant dismissal. Otherwise, employers could face hefty legal costs and the possibility of unfair dismissal claims against them. Likewise, employees should seek specialist employment law advice as to whether their alleged offences constitute sufficient grounds for dismissal. If in doubt, seek specialist employment law advice!
The Employment Appeals Tribunal recently awarded €31,000 in unfair dismissal compensation to a former Sales Representative after the Respondent employer failed to implement proper redundancy procedures. The Complainant commenced employment with the Respondent employer in 2006, who was involved in the flooring business. The Complainant submitted to the Tribunal that he had excellent performance levels throughout the course of his employment, as he consistently exceeded sales targets and was also successful in marketing to new customers. In December 2009, the Complainant met with the Managing Director who offered him a package, meaning that the Complainant would have to leave the company. While no reason was offered for the package, the Complainant was reminded by the MD that he was the highest paid employee and that the company was in financial difficulty. However, prior to the meeting the Complainant submitted to the Tribunal that there had been office gossip that he was to be let go. As he was aware that the package was linked to a redundancy process, he requested certain documentation. This documentation was never provided. The Complainant was subsequently dismissed by redundancy. While the Complainant did receive his statutory redundancy payment, he submitted to the Tribunal that no alternatives to redundancy were discussed prior to his dismissal. He also submitted that several members of the sales team, who were retained by the employer, were never considered for the redundancy selection. The Tribunal highlighted that no objective selection criteria was used for the redundancy procedure. They also emphasised the fact that the meetings with the Complainant were unclear and lacked focus and direction. Thus, the Tribunal awarded €31,000 for the “sham” redundancy procedure. It is imperative that employers use objective selection criteria when undergoing a redundancy procedure process as employers cannot simply “pick and choose” employees without objective justification. Failure to do so could result in an unfair dismissal case, as highlighted above. If you are considering implementing redundancies in your business or if you are being considered for redundancy, you should seek specialist employment law advice.
Ms. Justice Jacqueline Linnane, of the Dublin Circuit Court, recently awarded €17,000 in personal injury damages after a man sustained a fall while shopping in Argos. Mr. Conroy claimed that he had been caused to fall, while shopping for a lawnmower for his mother, on a wet wipe that was lying on the shop floor. As a result of the accident, Mr. Conroy severely injured his shoulder. Mr. Conroy claimed that Argos were negligent as they had failed to check the floor for potential hazards. However, Argos denied any liability as they contended that CCTV footage showed that the wet wipe had only fallen on the grounds minutes earlier, and that the staff could not be expected to consistently monitor the condition of the floor in such a low-risk store. Mr. Conroy’s forensic engineer discredited these contentions, submitting to the court that given the extra footfall in the queuing area where Mr. Conroy’s accident had occurred, that greater attention should have been paid to the condition of the floor. It was also revealed that five minutes before the wet wipe first appeared on camera, CCTV footage showed a woman pushing a baby buggy through the area. Justice Linnane held that even though it was the woman with the baby buggy who had been responsible for the accident, given that more than ten minutes had passed since the discarding of the wet wipe and Mr. Conroy’s accident, that Argos was liable.
The Employment Appeals Tribunal recently dismissed a Complainant’s claim as his former employer, Harvey Nichols, had acted in accordance with fair procedures. The Complainant, a former chef employed in the retail store, argued that he had been constructively dismissed due to bullying and harassment suffered in the workplace and also his general working conditions. The Complainant submitted that he had made several complaints to Human Resources about his working conditions and hours, which were changed following an assessment from Occupational Health. However, the Complainant claimed that despite his complaints, his general working conditions did not improve. The claimant then requested a transfer to a different department. The HRM informed the claimant that he had not applied through the appropriate procedure and he was requested to do so, but he never did. The Complainant stated that he had received three written warnings from the head chef regarding his personal and food hygiene. However, he alleged that he had never received a copy of those warnings and he made a bullying complaint to HR against the head chef. That bullying complaint was subsequently investigated by HR and on conclusion of the investigation the Complainant went on sick leave and subsequently resigned as he felt that the Respondents had taken no action regarding his bullying and working conditions complaints. The Tribunal noted that the Complainant would have remained in the Respondents’ employment had he been transferred to another department. Nonetheless, the Tribunal dismissed his constructive dismissal claim noting that the Respondents had acted in accordance with their Grievance Procedure. They also noted that the Complainant had acted in an unreasonable fashion following the conclusion of HR’s investigation and that he had failed to appeal HR’s decision. This case illustrates for employers and employees alike the importance of adhering to fair procedures as if an employer acts fairly and reasonably then any unfair dismissal claim could be dismissed by an employment body. Equally this case highlights for employees that they should exhaust all internal remedies before bringing a complaint, as failure to do so may lead to their claim being dismissed. If in doubt, employers and employees should seek specialist employment law advice.
The Employment Appeals Tribunal recently awarded €15,000 in compensation for unfair dismissal to a former factory worker after they were dismissed for refusing to sign a letter and for leaving the factory floor. The Complainant had been employed as a factory worker for 11 years and he submitted to the Tribunal that in the latter years of his employment, he had been subjected to bullying and harassment by senior management. He acknowledged that while he had been previously disciplined for poor performance, he alleged that this was because he was under extreme stress from harassment which he suffered within the workplace. In May 2010, the Complainant was asked by his production supervisor to work on the Friday of the May Bank Holiday, which ordinarily he would not have been scheduled to work. The Complainant submitted to the Tribunal that he had planned to travel to Dublin for the weekend with his family and informed the supervisor that he was unavailable. However, no explanation was given for his absence on Friday and none was sought by the supervisor. The following day, the supervisor approached the Complainant and asked him to sign a letter acknowledging that he had been offered an extra working day which he had refused. The Complainant refused to sign the letter, as he was upset by its contents, and left the factory in order to discuss the matter with his wife. He returned to the workplace twenty minutes later and informed the supervisor that he would work the day in question. However, the Complainant was subsequently summoned to a disciplinary meeting at which he was dismissed. An appeal hearing upheld the decision of senior management. The Tribunal noted that while the Complainant had a prior disciplinary record, that the refusal to sign the letter, and twenty minute absence from the factory floor, was not of sufficient gravity to warrant dismissal. Thus, the Tribunal awarded the Complainant €15,000 in compensation for unfair dismissal. This case highlights for employers that they must ensure that if they wish to dismiss an employee for misconduct, they must ensure that the offences are of sufficient gravity to warrant dismissal. Otherwise, employers could face hefty legal costs and the possibility of unfair dismissal claims against them. Likewise, employees should seek specialist employment law advice as to whether their alleged offences constitute sufficient grounds for dismissal. If in doubt, seek specialist employment law advice!
The Employment Appeals Tribunal recently awarded €33,000 in compensation for unfair dismissal to a former Shift Supervisor in Supermacs after he was falsely accused of stealing cash lodgements and CCTV footage.
Ms. Justice Mary Irvine recently approved a €1.25 million settlement for a teenage girl who was left with severe personal injuries after being involved in a fatal car crash.
The Plaintiff, Cam My Lam, was walking by St. Stephen’s Green when she was hit by the bus. The accident caused her to lose her vision in her right eye and her vision in left eye is now blurred. The Plaintiff claimed that prior to the accident she had been very involved in the Vietnamese community and enjoyed cooking. However, after the accident her Counsel submitted that she no longer met other women from the Vietnamese community and was unable to resume work as a babysitter. While Dublin Bus denied the alleged negligence and breach of duty, the claim was settled out of court. Ms. Justice Mary Irvine noted that while money could not give back what one might have had, nonetheless she noted that it was a good settlement. As reported in the Irish Times
Mr Cross had been crossing the Naas dual carriageway after a night out with friends following a golf outing. Before Mr Cross crossed the road to reach the Red Cow Hotel taxi stop, he was struck by a Luas tram travelling from Kylemore. The accident left Mr Cross with multiple rib fractures and a severe brain injury, resulting in Mr Cross being only to walk with the assistance of crutches and being unable to work. Mr Cross took an action against the Luas tram operators – arguing that they had failed to take reasonable steps to provide appropriate signage and safe passage for pedestrians who were crossing the road lawfully. While the matter was settled out of court, Ms Justice Irvine noted that had the matter gone to trial, Mr Cross could have lost his case due to the fact that the Defendants had claimed that Mr Cross significantly contributed to his injuries due to his intoxicated state at the time of the accident.
The Employment Appeals Tribunal recently awarded a former Manager of a gas firm €120,000 in unfair dismissal compensation after the Manager was dismissed for discrepancies in car tracking records. The Claimant commenced employment in 2007 and in 2009 a tracker was fitted in his company car on the pretence of facilitating emergency response. No such tracker was placed on any of the Directors’ cars. In 2010 the Respondent Company noted from tracking records that the Claimant had spent a considerable amount of time in the Kilmainham area – where the Claimant’s family were based. The Claimant Manager was called in for a “chat” and was unaware that the meeting was disciplinary in nature. His explanation for the time spent in Kilmainham was that he had been supervising fitters in the area and also that he had a Director’s permission to visit a sick family friend. Further meetings were held, in which the Manager refused to give further explanations for his attendance in the area until the board confirmed as to whether he would be dismissed. The Board of Directors concluded that there had been a breakdown in their relationship and subsequently dismissed the employee. The Board suspected that the Manager was working for another employer but at no point did they attempt to interview the fitters being supervised nor did the board attempt to substantiate their suspicions. This case is a stark reminder for employers that fair procedures must be adhered to even where there have been allegations of wrongdoing. If the employer fails to fully investigate the matter, they could face a similar predicament to the Respondent Employer in this case. Before dismissing an employee, employers should seek specialist employment law advice.
A teenage boy from Clondalkin, West Dublin, has been awarded €20,500 by the Dublin Circuit Court after a bicycle he was riding came apart causing him to fall and break his arm
The award was made against the UK registered bicycle retail chain, Halfords, who sold him the bike in the Liffey Valley Shopping Centre. The boy had asked the store to assemble the bike for him but a few hours after collecting it, the handlebars came off and the boy fell to the ground, suffering a fracture to his right arm.
The boy underwent surgery and has since made a satisfacory recovery.
This story was originally reported by Saurya Cherfi in The Irish Independent on 12.6.12.
We have moved offices and our new address is 6 Lapps Quay, Cork. Our contact Telephone number 021/4223075 and our Fax number 021/4905924 remain unchanged.
A resolution put before the European Parliament in Strasbourg last week by a Slovakian MEP calls for heavy fines for employers across the EU who are found to pay female staff less than males for doing the same work. In addition, the resolution calls for such employers to be made ineligible for EU funding and to be ignored as regards public procurement projects.
Former GAA President Seán Kelly, MEP for Munster, said: “This isn’t right. And it’s not just in relation to pay. There is a lack of women on executive councils and boards. It’s a major problem across the board and an end needs to be put to it. We need to introduce quotas and more specific policies on maternity leave and childcare.” The resolution was passed and now goes before The European Commission which may draft legislation implementing the Parliament’s proposals. This story was originally reported by Aoife Carr in The Irish Times on 25.5.2012 http://www.irishtimes.com/newspaper/world/2012/0525/1224316664045.html6
We have confirmed that we will move premises from 1st June 2012 and our new address will be at 6 Lapps Quay, Cork. Our contact Telephone number 021/4223075 and our Fax number 021/4905924 will remain unchanged. For details of where to find your Employment Law Specialist, go to www.tjos.ie but not until 1st June 2012! In ease of you, 6 Lapps Quay is directly across from the Clarion Hotel near the Boardwalk and we are delighted to be moving to this new and developing part of our vibrant Cork City! Terence O’Sullivan
A former employee of Eason’s booksellers has been awarded €15,000 by the Employment Appeals Tribunal after she was involved in a car crash while travelling in a taxi. The crash left her unable to perform her duties in Eason's main warehouse.
A new law could be enacted in the US which would see a maximum fine of $10,000 imposed on employers who ask for Facebook or other social media passwords during interview or application processes. The Social Networking Online Protection Bill or 'SNOP' will impose similar penalties on schools or universities who request such information as part of disciplinary or enrollment procedures. It comes in the wake of some much publicised incidents of job candidates and college applicants being required to divulge their Facebook passwords in order to be considered for the job or college they've applied for. A Democratic Congressman has declared that Social Network passwords should be afforded the same protection as other sensitive personal information such as bank and email passwords while Facebook itself has also come out against this emerging practice with its Head of Privacy Erin Egan saying: "As a user, you shouldn’t be forced to share your private information and communications just to get a job, we’ll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action."
This was originally reported in The Irish Independent on 30th April 2012 http://www.independent.ie/business/technology/laws-to-protect-facebook-passwords-from-prying-employers-3095872.html
The Dublin Circuit Civil Court recently awarded €38,000 to a woman who suffered damages after a sun lounger which she had been sitting on collapsed. The woman was holidaying with her husband in Italy at the time and had just sat down, on the third day of her holiday, on a sun lounger when it collapsed. She submitted to Court that she spent the remainder of her holiday in her hotel bedroom due to her injuries. Upon returning to Ireland, she visited her G.P. who prescribed her strong painkillers which she has been on ever since. Judge Jacqueline Linnane held the Travel Agency Department liable for damages and awarded the woman €38,000 in damages and her legal costs. As reported in the Irish Times
The Dublin Circuit Court recently awarded Mr. Nagle, a former Manager, over €155,000 in compensation for unfair dismissal and dismissed all allegations of misconduct. Mr. Nagle was employed as a Manager in a multi-national company and was summoned, without prior warning, to a telephone conference call with the company’s directors in California. During that call Mr. Nagle was dismissed from his position due to allegations of fraudulent misconduct. It was alleged that Mr. Nagle had been involved in the setting of a “dummy order” – which was an order that a customer had not committed to – in order to give the impression that company revenue targets were increasing. However, Mr. Nagle submitted to both the Employment Appeals Tribunal and the Dublin Circuit Court that he had received instructions from the managing director, Mr. O’Halloran, and another employee, Ms. Dahdah, to set up the order and he honestly believed that there had been a verbal commitment from the customer to go through with this sale. Although Ms. Dahdah and Mr. O’Halloran were reprimanded and had to undergo training for their part in the deceit, only Mr. Nagle was dismissed from his position. Counsel for Mr. Nagle submitted that the dismissal had a “devastating” effect on him and that he had only been available to find another position recently, three years after his dismissal. Although the EAT found that Mr. Nagle had been unfairly dismissed, they had awarded no compensation – however Ms. Justice Linnane awarded €155,000 in compensation for flawed disciplinary procedures and dismissed all allegations of misconduct against Mr. Nagle. As reported in the Irish Independent
A Polish woman was recently awarded €10,500 in compensation from the Employment Appeals Tribunal after she was dismissed from her position for failing to return to work after collapsing from exhaustion while in the workplace. Ms. Mazur commenced employment in November 2008 and was required to work 11 hours a day 7 days a week, with her only day off in all that period of time being Christmas Day. Her employer submitted to the Tribunal that she was always at the premises as she was in a relationship with him. However Ms. Mazur claimed that her only breaks were infrequent cigarette breaks and when she queried her employer as to how long she would have to continue working such long hours, she never received a satisfactory response. In April 2009, Ms. Mazur collapsed in the workplace due to exhaustion. While in the hospital, Ms. Mazur’s sister rang her employer to inform him that she could not return to work, upon which her employer said that if Ms. Mazur did not return that her job would be gone. Ms. Mazur’s case is a stark reminder to employers that they ensure that they are in compliance with employment legislation as regards time and days off, as well as ensuring that all their employees are registered for tax purposes. As Ms. Mazur’s case illustrates that not only could an employer face an unfair dismissal case, they may also face the wrath of the Revenue Commissioners. If in doubt, both employers and employees should seek specialist Employment Law advice. As reported in the Irish Independent
The brother of Irish TV presenter Hector, Mr. Keogan, was recently awarded €85,000 in compensation by Ms. Justice Deery in the Circuit Civil Court. Mr Keogan was dismissed in September 2009 from his position as pub-club manager of the George Pub and Nightclub in Dublin after a check on the pub safe revealed a cash anomaly. €1,100 had been removed from the pub safe and replaced by a personal cheque from Mr. Keogan. However, Mr. Keogan had submitted to the Employment Appeals Tribunal that it was custom and practice to cash cheques, which were then lodged to the company’s credit, and that he had previously done so on several occasions. The Employment Appeals Tribunal accepted Mr. Keogan’s arguments and held that he had been unfairly dismissed and should be reinstated to his position as manager. However, when the case went on appeal to the Circuit Civil Court, Counsel for the employer submitted that his reinstatement would not be possible as the company had gone into receivership after Mr. Keogan had been dismissed. Mr. Justice Deery noted that Mr. Keogan’s reinstatement would be inappropriate and held instead that he was entitled to compensation of €85,000. If an employer is considering dismissing an employee, who engaged in a certain activity, they should be aware that that activity may not be included within the Contract of Employment, it could be considered to be part of the custom and practice of the company if carried out for long periods of time without any objections. It is advisable that before dismissing an employee in such circumstances, that the employer obtains specialist employment law advice.
The Equality Tribunal recently awarded €315,000 in compensation to Ms. O’Brien, a former employee of the O’Callaghan Hotels Group, for harassment, victimisation and discriminatory dismissal on the grounds of gender and family status. Ms. O’Brien commenced employment as Director of Sales and Marketing in 2003 and for the first four years of her employment, the hotel’s revenue increased and the Group won numerous awards under her management. The Claimant first became pregnant in 2004 and worked right up until late January 2005, after which she went into labour and gave birth to a still-born son. She submitted to the Tribunal that senior management pressurised her not to take her full maternity leave and that she regularly received phone calls and emails during her maternity leave pressurising her to attend meetings. Ms. O’Brien’s relationship with senior management rapidly deteriorated during the economic recession, and on one occasion a report compiled by Ms. O’Brien was torn up in front of her by Mr. A who stated “this is what I think of your report … disgraceful”. During 2009, the Claimant became pregnant for the third time, and although she received congratulations from senior management, the General Manager advised her to consider voluntary redundancy. Although in a subsequent meeting this option was replaced with a decision by Ms. O’Brien to take early maternity leave, she was handed afterwards a draft agreement by the General Manager which would terminate her employment, and which she refused to sign. Ms. O’Brien submitted that she became distraught and was put on sick leave by her doctor. However, during her sick leave her company phone and fuel card were blocked and she was sent another agreement which if signed by her would terminate her employment. The Claimant subsequently went into premature labour and gave birth to a still-born daughter after which the company refused to pay the rest of her maternity leave. Ms. O’Brien submitted to the Tribunal that she had been constructively dismissed. The Tribunal found for Ms. O’Brien. The Tribunal’s award of €315,000 is a stark reminder to all employers to ensure that they adhere to the statutory protections afforded to pregnant employees under the Maternity Protection Acts 1994 – 2004. No company has funds to meet a claim of that order, and this action demonstrated the absolute need for emphasis to always seek and rely on specialist employment law advice.
An 11 year old boy recently settled his High Court personal injuries claim against the Rotunda Hospital in Dublin for €5.5 million. The boy, who was suing through his mother, claimed that as a result of mismanagement during his labour and after his birth, that he suffered severe personal injuries. The boy’s mother had been admitted to hospital with elevated blood pressure in March 2000 and the boy was born by caesarean section in April. It was claimed that the hospital was negligent for failing to have a pre-warmed incubator available for the boy, as instead the baby was placed in the mother’s bed in an attempt to warm the baby up. Ms. Justice Mary Irvine noted that while money could never compensate the boy, that this settlement would provide the boy with the care he needs. As reported in the Irish Independent
The Employment Appeals Tribunal recently awarded a former General Manager of the Riverview Fitness Club, Mr. Paul Taylor, €300,000 for unfair dismissal. The Tribunal were particularly influenced by the fact that the Respondent employer was unable to produce a Contract of Employment for Mr. Taylor at the Tribunal hearing.
The Employment Appeals Tribunal recently awarded two former Shop Stewards over €250,000 in compensation for unfair dismissal, as a result of their employer’s failure to adhere to fair procedures.
A former employee of the Dublin Airport Authority was recently awarded €73,000 by the Employment Appeals Tribunal for unfair dismissal.
The Employment Appeals Tribunal recently awarded a former female employee €47,000 for unfair dismissal after her employer failed to adhere to proper procedures.
The EU Directive on Temporary Agency Work came into effect from the 5th December 2011, subsequently followed by the publication of the Temporary Agency Work Bill on 16th December 2011. In an unprecedented move, the Bill is applicable to both public and private sector employers. Although Article 5.4 of the EU Directive provides for a “lead in” qualifying period whereby the equal treatment provisions would not come into immediate effect, the National Social Partners failed to reach an agreement on such a period. Therefore, the Directive has immediate effect on public and private sector employers. Under this Bill temporary agency workers are entitled to the same basic working and employment conditions as their directly recruited counterparts which include pay, annual leave and rest periods. Pay is defined as including basic pay, shift premium, overtime premium, unsocial hours premium, and Sunday premium where a Sunday is worked and a premium is normally paid to a directly recruited employee. However, other pay components are excluded from the Directive such as occupational pension schemes and sick pay schemes. Temporary agency workers are now entitled to access of amenities and facilities provided within the workplace such as crèches and canteens. Thus, hirers and employment agencies must ensure that there are appropriate measures in place to ensure equal treatment for all agency workers otherwise they may be in breach of the EU Directive. The Agency Work Bill, when enacted in early 2012, will have retrospective effect to the transposition date of 5th December 2011, meaning that existing agency workers are entitled to equal treatment from 5th December 2011.
The Employment Appeals Tribunal recently awarded a security guard €32,000 for unfair dismissal for the Respondent’s failure to adhere to fair procedures during their disciplinary process. The Claimant had recently returned to his role as a Night Security Officer in the Respondent’s supermarket following a career break. The Claimant submitted that upon his return to work he had received no documentation or training, even though he had been informed by the Security Manager that “things had changed” and that he would be the only Night Officer on duty. On the 11th June 2009 another work colleague informed the Store Manager that the Claimant had failed to pay for goods which he had consumed in the Respondent’s petrol station, which was in breach of the Company’s “Honesty Policy”. A series of meetings ensued after which the Claimant was dismissed for gross misconduct. The Claimant submitted that his job was quite pressurised as he was expected to carry out other duties in addition to his security role. The Claimant also submitted that he was invited to the initial investigative meeting on false pretences as the Store Manager had given no indication that the meeting was an inquiry. The Tribunal accepted the Claimant’s evidence noting in particular that he had no previous breaches of discipline or complaints. However they stated that the Claimant had significantly contributed to his dismissal.
This office will be closed for the Christmas Holidays from Wednesday the 21st of December next at 5.00pm until Tuesday the 3rd of January 2012 at 10.00am. We would like to take this opportunity to wish you a very Happy Christmas and a Peaceful New Year. We have made a donation to our favoured charity, Cork ARC Cancer Support House, this year in lieu of sending out Christmas cards to our clients and colleagues.
174 women working for Birmingham city council win landmark court ruling on equal pay, paving way for similar claims. Tens of thousands of cooks, cleaners and caterers will be able to pursue equal pay claims against employers after a court of appeal ruling that their applications should not be so strictly time limited. This is brought to us from Christopher Thomond for the Guardian. The decision that cases can be heard in the high court, as well as in employment tribunals where there is a six-month restriction, is a historic victory for 174 women who formerly worked for Birmingham city council. Recent legal victories by lower-paid women, notably against Sheffield city council, have helped establish the precedent that women working in cleaning and caring jobs should be paid the same as men in male-dominated occupations such as refuse collectors, street cleaners, road workers and gravediggers. Birmingham city council had appealed against a deputy high court judge's ruling in December last year that the high court did have jurisdiction to determine the claims. The council argued cases could be heard only by the employment tribunal, where cases have to be lodged within six months after leaving employment or a change of contract within employment, compared with a six-year time limit for claims brought in the high court. Three judges, Lord Justice Mummery, Lord Justice Davis and Dame Janet Smith, dismissed the appeal. They unanimously ruled that Birmingham council had failed to establish that the deputy judge's construction of the 1970 Equal Pay Act was wrong or in any way flawed. Mummery said it was "extraordinary" that this was the first time the issue had been raised – 40 years after the act came into force. Refusing permission to appeal to a higher court, Mummery said although it was a case that might well affect "many, many other cases", the supreme court should decide whether to hear it. The court heard that in 2007 and 2008 tens of thousands of pounds in compensation was paid to female council employees. More payments have also been made this year to women who went to the employment tribunal. However, only workers who were still employed or who had only recently left employment were eligible to make claims. Those who had left more than six months earlier were caught by the six-month deadline for making claims to the tribunal, the judges heard. Last December, Birmingham council applied to the high court to have fresh claims struck out on the grounds that the court lacked jurisdiction to hear them. Mummery said the courts were being asked to "stifle claims" for the "convenience" of the council. If the claims could not be brought before the high court their merits could not be considered. Among the claimants in the most recent case is Linda Manders, 59, from Selly Oak in the West Midlands. "I gave 10 years' service to the council," she said. "The lunchtime supervisor role was the only job that fitted round my needs. The pay was low and much lower than men on the same pay grade. Not being able to claim the pay I was entitled to is simply not right and this judgment helps me and others like me who may now be able to recover what they should have been paid over many years."
You might well ask why WMD? At a time when unemployment is rising, and the economy is telling us that we must up-skill and re-invent ourselves, will the AWD be bad for both employees and employers?
The Employment Appeals Tribunal recently awarded a childcare worker €46,800 in compensation for unfair dismissal after it found that the respondents failed to comply with fair procedures.
The Employment Appeals Tribunal recently released their 2010 Report, which illustrated the impact of the economic downturn on the processing of claims. The Report also noted that in 2010, over €3 million had been awarded in compensation for unfair dismissal claims. The Report also noted the unprecedented growth in claims, arising from the turbulence of the labour market, which has resulted in vast increases in the average waiting times for a case to be heard. The waiting period in Dublin has increased from 16 weeks in 2008 to 58 weeks in 2010. Similarly, in provincial areas the average waiting time for cases is 55 weeks, where it was 31 weeks in 2008.
The Cardiff Court of Civil Justice recently awarded a father £25,000 for psychiatric injuries caused as a result of losing his daughter in a road traffic accident. Mr. Terry Jones was diagnosed with Post Traumatic Stress Disorder after his daughter and three other teenagers lost their lives as a result of another driver’s careless driving. The driver in question had only passed his driving test and was later convicted of careless driving. Mr. Jones submitted to the Court how he had been informed “bluntly” of his daughter’s death and of the scenes of anguish when he came upon the road traffic accident. Awarding Mr. Jones £25,000 against the convicted driver, the Court noted that Mr. Jones had “lived a life of hell” and had needed psychiatric help since his daughter’s death.
This was reported in BBC News, 7th September 2011
The Employment Appeals Tribunal recently awarded two female claimants €65,000 for unfair dismissal. The Claimants had been dismissed from their positions in the Respondent Bank after an investigation into employees’ emails accounts found that emails of a very serious pornographic nature had been sent. Ten employees were disciplined, including the two claimants, and five were dismissed from their position. The Respondent submitted that fair procedures had been adhered to, as both Claimants had been invited to two disciplinary meetings before their dismissal and that all staff had received guidelines on internet and email policies. The Claimants submitted to the Tribunal that there was an office culture of sending such emails, that they had received similar emails from senior management and had never been asked to stop forwarding such emails. Although they had received Company policies, they had never read them and had never been asked if they were familiar with the Bank’s email policies. They submitted that internet and email policies were only discussed informally at monthly staff meetings and abuse of email policy was never highlighted by their senior management. Neither Claimant had been aware of the email investigation. The Tribunal held that the Respondent’s investigative process was flawed as they had excluded the Claimants from their investigation and had only chosen to examine a small section of emails. The Tribunal acknowledged that while the Claimants did breach company policies, that there were mitigating factors, as the abuse of the policy was widespread and that no issues of a disciplinary nature had arisen prior to this misconduct. Therefore, they determined that the sanction imposed was not proportionate to the offence and awarded the Claimants over €65,000 for unfair dismissal.
The Employment Appeals Tribunal recently recommended the re-instatement of a dismissed caretaker who mistakenly locked a female postgraduate student into a college premises on the Friday night of a Bank Holiday.
A claimant who was made redundant on the grounds that she failed to acquire a C class driving licence has had her dismissal upheld by the Employment Appeals Tribunal. The claimant alleged that her dismissal was personal. The EAT disagreed and held that it was common sense that having decided to discontinue the only service that the claimant was qualified to carry out made her lack of the relevant driving licence the objective and only criterion used in her selection as the candidate for redundancy. This claim was heard on 3rd June 2011 and is published on www.eatribunal.ie
A German national was recently awarded €4,346.67 by the Labour Court for her employer’s failure to pay her the national minimum wage during the course of her employment.
The Equality Tribunal recently awarded a former bookkeeper €50,000 for discrimination and victimisation which occurred during the course of her employment, as a result of her pregnancy.
A hotel receptionist was recently awarded €30,000 by the Equality Tribunal for harassment and sexual harassment which occurred over the course of her employment. The female complainant commenced employment in June 2007, and in the months leading to August 2008 was subjected to increasing levels of sexual harassment from the General Manager, Mr. A. Mr. A made several inappropriate comments during the course of her employment, such as suggesting that the complainant wear miniskirts in work. This inappropriate behaviour increased in the months leading to August 2008, with Mr. A making suggestive comments and gestures. On one particular evening, the complainant submitted, Mr. A attempted to kiss her. The complainant submitted that she was unsure of how to react to this incident as there was no harassment policy implemented within the workplace. Following this incident, the complaint was subjected to further incidents of intimidation and harassment, leading to her terminating her employment with the respondents as the complainant felt that the respondents made no attempt to resolve the situation. The Equality Tribunal dismissed the respondent’s assertion that the complaint could have come to one of the directors, Ms. B, with a complaint of sexual harassment as the Tribunal stated that given Ms. B and Mr. A’s marital relationship and the close-knit nature of the staff, it would not be plausible for an employee to do so. The Tribunal determined that the complaint had been harassed and sexually harassed and their decision was influenced by the fact that there was no harassment policy implemented within the workplace. The complaint was awarded €30,000 in compensation for the distress caused by the harassment.
A major reversal of a downward trend in Aboriginal unemployment in the Australian state of New South Wales has forced the state government to order an extensive review, and overhaul if necessary, of NSW's indigenous employment programmes. The State's Minister for Aboriginal Affairs, Victor Dominello siad said the state government was spending an average of $78 on labour and employment services for each Aboriginal person but a disproportionate $3817 on public order and safety. ''We need to be investing more in education and employment services so that we are spending less on public order,'' he said As of 2007, the unemployment rate for Indigenous people in NSW was 4 times that of the state as a whole at 20%. NSW has the lowest rate of employment of any of the Australian States or Territories at 59.9% according to Mr Dominello. The review of jobs programs would aim to give people greater ''economic empowerment'' while the NSW government is already focussed on early education programmes that will teach Aboriginal children more about their indigenous languages and cultures to help develop a greater sense of identity within the wider NSW and Australian community
This was reported in The Sydney Morning Herald, Saturday June 25th, 2011 http://www.smh.com.au/nsw/review-to-target-aboriginal-jobless-programs-20110624-1gjgn.html
The European Court of Justice has decided that gay couples in civil partnerships should have the same pension rights as married couples. The Court ruled that German laws favouring married couples over those in a “Registered Life Partnership” breached an E.U. Directive on employment discrimination based on sexual orientation. The ECJ said that people in civil partnerships were entitled to supplementary retirement pension benefits equal to those received by married pensioners.
The High Court awarded Catherine Masterson €47,000 in damages after she was attacked by a dog on 28th May 2002. The dog, an Akita dog, was owned by the Plaintiff’s brother in law, Henry Masterson. On 28th May 2002, the dog was chained to a camper van, but it broke free of the chain and attacked the Plaintiff. The Plaintiff suffered severe personal injuries including a scar on her chin where she had been bitten by the dog, and injuries to her neck and hand. She also developed a fear of dogs as a result of the incident. The Defendant, Mr. Henry Masterson, had admitted liability. He returned the dog to the RSPCA and the dog was subsequently put down. Mr. Justice Michael Peart awarded the Plaintiff €46,987 in damages. This was reported in The Irish Times on Friday 13th May 2011
Former Quinn Insurance middle manager, Wesley Bell, has brought a claim for unfair dismissal to the Employment Appeals Tribunal against the company. Mr Bell was dismissed for accepting a bottle of wine from a client at Christmas time. Mary Paula Guinness, for Quinn Insurance, told the Tribunal that the firm’s ethical guidelines were breached when Mr Bell accepted the gift. Ms Guinness also told the Tribunal that a disciplinary procedure was brought against Mr Bell and he did not contest the allegations and he did not appeal the decision to dismiss him. Chris Horrigan, for Mr Bell, told the Tribunal that his client admitted to receiving a bottle of wine but did not think of it as a bribe. He also said that the company did not suffer as a result of this gift and Mr Bell did not benefit. The case will continue in July. This story appeared in The Irish Times on Thursday April 14th, 2011.
On April 11th 2011, Garda Sergeant John Liston was awarded compensation of €106,400 by the High Court for injuries he sustained after being stabbed in the side by a man who later took his own life. Sgt Liston heard a call on the radio about a man who had produced a knife after he was refused entry into a nightclub in Fermoy, Co Cork. Upon arriving at the scene the Gardaí, including Sgt Liston, tried to overpower the man named as Trevor Clancy but Mr Clancy instead grabbed Sgt Liston around the neck. Sgt Liston then felt a pain in his left side and warm liquid on his uniform, and realised that he had been stabbed. Sgt Liston was taken to hospital and underwent surgery for the stab wound and has since made a good recovery. Since the incident Sgt Liston has been suffering from post-traumatic stress disorder. Ms Justice Mary Irvine awarded Sgt Liston general damages of €100,000 and special damages and expenses of €6,400. This story appeared in The Irish Times on Tuesday, April 12th, 2011.
The Labour Court has overturned a ruling of the Equality Tribunal awarding senior diplomat, Patricia Cullen €20,000 for victimisation against the Department of Foreign Affairs.
On 6th April 2011 in Cork Circuit Court, Patrick Keegan, now 12 years old, was awarded €25,000 for injuries he received after a stray dog attacked him when he was 6 years old. In 2006, Patrick Keegan was attacked by a stray dog at Loughmahon Park, which is owned by Cork County Council, and required 60 stitches. The dog or its owner were never identified. Counsel for the Plaintiff said that as Cork County Council was the owner of the land, it was responsible for this incident as the animal involved was permitted to remain on the land for any period of time. Counsel for Cork County Council said that the Council did not know that the dog was on the land and therefore did not permit him to stay and should not be liable for the attack. Judge Patrick Moran held that the Council did in fact permit the dog to remain on the land and was liable for the injuries suffered by Patrick Keegan. Judge Moran awarded €25,000 in damages. A stay has been put on the award because of the important legal issues raised by the case. This article appeared in The Irish Independent on 7th April 2011.
On 24th March 2011 the High Court awarded Bridget Sweeney, a home-school liaison co-ordinator, €88,000 in compensation for injuries she suffered as a result of the bullying and harassment of her by the school principal Dr. Austin Corcoran. Ms. Sweeney claimed she had to retire from her post in 2009 due to illness suffered as a result of the actions of Dr. Corcorcan. The Court heard how at one point Dr. Corcoran hired a private investigator to follow Ms Sweeney for a four day period. In his ruling, Mr. Justice Daniel Herbert found this covert surveillance to be the most serious harassment and he said being followed by two men in a car must have been truly terrifying to a woman on her own. Mr. Justice Herbert found that the evidence established that Ms. Sweeney suffered clinical depression between 2008 and 2010 as a result of the continuous bullying of her by Dr. Corcoran. The Board of Management of Ballinteer Community School was held vicariously liable for the actions of Dr. Corcoran in the course of his employment. Mr. Justice Herbert awarded Ms Sweeney €88,000 and said he was including €5,000 aggravated damages in the total award. This story appeared in The Irish Times on Friday March 25th, 2011.
Paul Gogarty (now 35) has been awarded €2 million in a High Court settlement for severe brain injuries he sustained in a hit and run car accident. Mr Gogarty from county Cavan was walking home from a night out at around 3am on 20th June, 2005 when he was struck by a vehicle. The vehicle left the scene of the accident and was never traced. Through his brother Oliver, Mr Gogarty took an action against the Motor Insurers Bureau of Ireland (MIBI) which deals with uninsured and untraced vehicles involved in accidents in Ireland Mr Justice Nicholas Kearns approved the €2 million settlement after both sides agreed to the sum. This story appeared in The Irish Times on Wednesday March 9th, 2011.
The Labour Court yesterday recommended that the five staff members of the Davenport Hotel in Dublin who were at the centre of a dispute regarding a wage cut should be reinstated on the roster and payroll on their original rate of pay. The Hotel had asked 40 housekeeping staff to sign documents allowing the hotel to reduce their wages from the 1st February which was when new legislation reducing the national minimum wage came into effect. Five employees, all foreign nationals, were taken off the roster and payroll for refusing to sign the documents which would have reduced their wages from €8.65 an hour to €7.80 an hour. The Company claimed that the reduction in wages was necessary in order to provide job security to all its employees in a difficult trading period. The Court stated that as it had not been provided with the necessary information in relation to the Hotels trading it could not support the Hotels submission that the pay cuts were necessary in order to provide job security. The Court recommended that the five staff members be reinstated on their original rate of pay and that the staff should be paid all the money they would have earned had they not been removed from the work roster in February As this was the first dispute in relation to the new national minimum wage it is an important case for other low paid workers in this country who are being treated in a similar fashion. The decision has been described by trade union SIPTU as "a significant victory". This story appeared in The Irish Times on Tuesday March 8th, 2011.
The High Court has granted a temporary injunction imposing conditions on how picketing is being conducted outside the Davenport Hotel on Lower Merrion Street, Dublin. Pickets were placed by trade union Siptu when five employees, all foreign nationals, were taken off the roster and payroll for refusing to sign new contracts which would have reduced their wages from €8.65 an hour (the previous minimum wage) by almost €1 an hour. Since February 1st 2011 the national minimum wage is €7.65 an hour. In some cases an employment contract or terms of employment will state that an employee is paid at the prevailing national minimum wage hourly rate. Where this is the case, an employer may reduce the employee's pay in line with the minimum wage rates. Where this is not the case an employer cannot reduce it without an agreement with the employee, as this would change the terms and conditions of employment. Ms Justice Mary Laffoy granted an interim injunction restraining Siptu from having more than six people picketing at any one time. Orders were also granted stating that (1) the picketers had to be employees of the hotel and (2) there should be an appropriate number of Siptu officials present. Judge Laffoy said she was satisfied to grant the injunction for Davenport Hotel as the injunction was not preventing picketing but was merely applying conditions on the manner in which the picketing was being conducted. The dispute is being closely monitored by employers in the hotel and catering sectors in particular. A full hearing of the injunction is to be heard at the High Court this week.
The recent European Court of Justice (ECJ) ruling prohibiting insurers to take the gender of the insured into account in determining the price of their insurance will have a detrimental effect on people’s pension income in retirement, experts say. The court said “The EU aims in all its activities to eliminate inequalities and to provide equality between men and women”. Women’s annuities – an annual pension income – are typically lower than men’s. Women are expected to live four years longer than men therefore the money in their pension has to be spread over more years. Experts are predicting that annuity rates would equalise for men and women with the effect of women receiving higher annuities per year and men receiving lower annuities per year than the present rate. The chief executive of the Irish Insurance Federation (IIF) Mike Kemp said he was “disappointed “by the ruling. He also went on to say that “Insurers have always priced risk objectively based on statistical evidence and there is no reason why this process should be interfered with”. The ruling will come into effect from 21st December, 2012. The implications of which should become clear as the insurance industry changes in compliance with the ruling. The possible impact of the decision could have a significant fallout for pension schemes and their members.
A teenager is to receive €110,000 in compensation for an eye injury he sustained on his family farm. David Booth was eight years old when he suffered serious injuries to his right eye when he impaled it on a hook attached to a milking machine at his family’s farm on April 28th, 2002. Through his sister Elaine, David Booth (now 17) took an action against the Senior Milking Machine Company Ltd and Stradbally Farm Services Ltd. It was alleged that the Defendants were negligent on the grounds that the milking machine was not designed and constructed to a safe standard. It was also alleged that the Defendants allowed an exposed hook device to be present on the machine without having regard to the danger it posed. The Defendants denied the claims against them. The €110,000 settlement was approved by Justice John Quirke without admission of liability. This story appeared in The Irish Times on Friday March 4th, 2011.
On 1st March 2011, Kate Murphy (now 5 years old) was awarded an interim settlement of €1.3million by the High Court as a result of her personal injuries action taken against the Health Service Executive and consultant obstetrician, Raymond Howard. Through her mother Sarah Murphy, Kate took the action for alleged negligence and breach of duty in the circumstances of her birth resulting in serious brain injuries. Senior Counsel for South Tipperary General Hospital, told Mr Justice John Quirke that her client wanted to express their sincere apologies for the failings that caused the injuries to Kate. Mr Justice Quirke ordered an interim payment of €1.3 million. The case has been adjourned for two years on the basis that new legislation addressing future care costs is due to be enacted within this timeframe. This story appeared in The Irish Times on Wednesday 2nd February 2011.
A cyclist has been awarded €48,000 damages including €7,000 in aggravated damages at the High Court. He suffered injuries to his arm he when he fell from his mountain bike, shortly after collecting it from a bicycle repair shop. Piotr Lizanowicz, aged 27, sued Hollingsworth Cycles Limited for breach of contract and alleged negligence relating to the repairs carried out on his bike. On April 20th 2009, Mr Lizanowicz collected the bicycle from the Defendant’s bicycle repair shop, where he had brought it to have the brakes fixed and broken spokes repaired. On the same day, he was cycling along the Terenure Road when he heard a noise from the front wheel which appeared to have locked. He was then thrown over the handlebars of the bicycle and fractured his right arm. Hollingsworth Cycles Limited denied the claims and in addition they made an allegation of fraud against Mr Lizanowicz. Ms. Justice Elizabeth Dunne in the High Court accepted Mr Lizanowicz’s account of events. She said that the Defendant had made a clear allegation of fraud against Mr. Lizanowicz which they were unable to prove and on that basis awarded him €7,000 for aggravated damages. This story appeared in The Irish Times on 19th February 2011.
A woman has been awarded €28,200 by the Equality Tribunal for discriminatory dismissal and harassment. Breda Farrell was employed by Irish Youth Promotions (in Liquidation) in December 2008. Ms Farrell claimed that she got on well in her job and was complimented regularly by Ms A, a founding Director of the company. In January 2009 she informed Ms A that she was pregnant. Ms Farrell alleged that about a week later Ms A came to her desk and told her that the company might not be able to keep her on. Ms A then began to either ignore Ms Farrell or direct disparaging remarks at her. Ms Farrell was asked to sell calendars for the Sudden Infant Death Association. She claimed that she asked Ms A could she work on another project as she found this project upsetting as she was pregnant. Ms A gave her another project and gave her an ultimatum of 30th January by which her targets should be met or she would be fired. On January 27th Ms Farrell went out on sick leave. Ms Farrell subsequently received a letter from the Department of Social and Family Affairs in relation to her Maternity Benefit. In this letter she learned that her employment contract would not be renewed after her 3 month trial. Irish Youth Promotions submitted statements from other employees who became pregnant during their period of employment and stated that Irish Youth Promotions Ltd was a family friendly work environment. However the Equality Officer found in favour of Ms Farrell and awarded her €18,200 (a year’s salary) for the discriminatory dismissal and a further €10,000 for harassment.
Elaine Lennon, suing through her father John Lennon was awarded €2.39 million in an interim settlement at the High Court on Thursday 17th February 2011. Ms Lennon, now aged 36, brought the personal injuries action against the HSE and Dr Patrick Mathuna, a GP at Castle Mill Medical Centre, Balbriggan for failing to carry out a CT scan and for not properly diagnosing the cause of her headaches. Ms Lennon was a part-time opera singer and psychologist who can now only speak in a whisper and requires 24 hour care after the misdiagnosis. She was first admitted to Our Lady of Lourdes Hospital in Drogheda with headaches on February 4th 2007 when she was 39 weeks pregnant. She was diagnosed as having a urinary tract infection and dehydration. She was then assessed by a midwife and later that day underwent a Caesarean section and gave birth to a healthy baby girl. However, she continued to complain of headaches and neck stiffness and did not respond to antibiotics. She was discharged from Our Lady of Lourdes Hospital on February 11th 2007. On February 14th 2007, she attended Dr Mathuna’s clinic and presented with headaches and vomiting. She received an injection which worked for around 24 hours. On February 17th 2007, Dr Mathuna visited her and told her he believed she was suffering from post-natal depression and exhaustion and prescribed her with a sedative. Later that day she collapsed at home and was admitted to A&E. The next day, she suffered two seizures and a CT scan was carried out which revealed that an abscess in her brain had burst into the ventricles. Both Defendants admitted liability. Mr Justice John Quirke approved the settlement. He proposed to deal with the issue of future care of Ms Lennon the following week and told her that she will benefit from expected legislation to provide periodic payments in cases of this nature. This story appeared in The Irish Times and The Irish Independent on Friday 18th February 2011.
Minister for Enterprise, Trade and Innovation Mary Hanafin, yesterday announced a review to take place of the framework of statutory wage fixing mechanisms in Ireland. Under the statutory wage fixing system employers and employees from a wide range of sectors negotiate legally binding agreements on wages and terms of employment. Minister Hanafin has urged interested parties to submit their views on the current mechanisms, known as Employment Regulation Orders (ERO) and Registered Employment Agreements (REA). The review is to be completed within six weeks of February 25 which is the closing date for receiving submissions. The review will be carried out jointly by Labour Court chairman Kevin Duffy and Dr Frank Walsh, Lecturer, University College Dublin. Minister Hanafin said:’ we need to ensure that statutory wage fixing mechanisms work effectively and efficiently and that they do not have a negative impact on economic performance and employment levels.’ The decision to review the wage mechanisms has been welcomed by business groups. Irish Business and Employers confederation (Ibec), Chambers Ireland and The Irish Congress of Trade Unions (Ictu) all showing support for the review.
Margaret Caldwell of Navan, Co Meath was yesterday awarded €115,000 in damages for injuries she sustained following a fall at the home of Eugene Caldwell, her former brother in law, on May 9th, 2007. The court heard that while Ms Caldwell was at Eugene Caldwell’s home helping to remove bags she felt a step crumble beneath her and fell to the ground. She suffered a fractured ankle and was wheelchair bound for eight weeks. The Defendant claimed that Ms Caldwell had fallen over a cat, and not a crumbling step. Ms Caldwell stated she did see the cat after the fall but she had not fallen over it. She recalled thinking that the cat had not brought her any luck. Mr Justice Sean Ryan in the High Court rejected the Defendant’s claim that Ms. Caldwell had fallen over the cat and awarded damages of €115,000 to Ms Caldwell. Mr Justice Ryan agreed to stay the award subject to an appeal on the condition that Ms Caldwell would receive €65,000 immediately. This story appeared in The Irish Times on Tuesday 7th February 2011.
Rac Eire Partnership, a consortium of three Portuguese companies has been found guilty of falsifying employment records at Nenagh District Court. The National Employment Rights Authority (NERA) took the case on behalf of the Minister for Enterprise, Trade and Employment after it carried out an inspection of the company’s records in July 2008. The inspection showed that the employment record’s recorded working hours from 8.30am to 6pm, while the workers gave evidence of working from 7am to 8pm. The consortium was fined a total of €3000 for falsifying the records of employees working on the construction of the M7 motorway from Nenagh to Limerick. A spokesman for NERA welcomed the outcome of the case and stated that the case was prosecuted to the full extent of the authority’s powers. This story appeared in The Irish Times on Monday 7th February 2011.
Luke Miggin has been awarded an interim settlement of €1.35 million by the High Court as a result of a personal injuries action he took against the Health Service Executive and Consultant Obstetrician Michael Gannon of Mullingar General Hospital. Luke, now aged 4 years, was left with severe brain damage, as a result of medical negligence at birth. He has been awarded an interim settlement of €1.35 million by the High Court. He claimed that the defendants were guilty of negligence and breach of duty towards him in the circumstances of his delivery on the 28th February 2006. Both parties admitted liability. As legislation to deal with lifetime care in such cases is due to be enacted in the next two years the settlement was made on an interim basis. If this legislation does not come into force the case will come before the courts for further consideration. This story appeared in The Irish Independent and The Irish Times on Wednesday 26th January 2011.
The family of the late Art Ridge brought a High Court action against Blackrock Clinic, Surgeon Michael J. Tolan, and Surgical Registrar Ramy Alnahhal, for medical negligence. Mr. Ridge, who was aged 62, was recovering from a successful cardiac operation and receiving post-operative treatment at the Blackrock Clinic in Dublin in December 2005. On December 18th 2005, Mr. Ridge’s heart was accidentally pierced by the insertion of a forceps by Dr Alnahhal while undergoing a post-operative procedure. Despite undergoing an emergency operation Mr Ridge died after almost an hour in surgery. Dr. Alnahhal admitted full liability. Justice John Quirke approved a settlement of €385,000 against Dr. Alnahhal. The action against Blackrock Clinic and Michael J. Tolan was struck out with no liability admitted. This story appeared in The Irish Independent and The Irish Times on Monday 25th January 2011.
On the 19th January 2011, Circuit Court President Justice Matthew Deery approved an award of €56,000 collectively, for three siblings who had sustained injuries in a road traffic accident in January 2007. The children suffered whiplash injuries when the car in which they were passengers was struck from behind by the Defendant, Ms. Monica Carney. The children had received treatment from their general practitioner and a consultant. As part of the settlement offer, Daniel Hopkins now aged 10 years, and his brother Thomas Hopkins, now aged 7 years, were each given €20,000. Their sister Rachael Hopkins, now aged 9 years, was given €16,000. The monies will remain invested in court funds until they reach the age of 18.
An employee of Thomond Lodge Nursing Home has won a Labour Court Recommendation against her employer for being unfairly dismissed. The employee was a Carer at the home. Following a complaint in regard the employees’ mistreatment of a resident she was dismissed. The Union arguing on behalf of the employee submitted the following: The Company did not attend the hearing and failed to make a statement. The Court found that there was an absence by the employer to follow proper disciplinary procedures. The Court found that she was unfairly dismissed and made the recommendation that the employer should pay her compensation of €5000.
Seán Ross McGowan through his mother Rose Houlihan brought proceedings against Miss Carr’s Home Housing Association Ltd, a Health Service Executive funded service, and the HSE, after suffering brain damage as a result of falling into a pond while under the care of the Defendants.
Television presenter Miriam O’Reilly has taken her former employer the BBC to an employment tribunal claiming age and sex discrimination. Ms O’Reilly was one of four women television presenters in their 40’s and 50’s who was dropped from long running show Countryfile when it was moved to a primetime slot. The show was then relaunched with younger presenters. The BBC denied discrimination and insisted that Ms O’Reilly had been axed because she lacked the necessary experience in primetime television. The tribunal found that Ms O’Reilly was discriminated against on the grounds of age but did not uphold her claim of sex discrimination. The BBC has accepted the findings of the tribunal and has since apologized to Ms O’Reilly. The tribunal stated that Ms O’Reilly will be entitled to compensation in relation to loss of earnings, injury to feelings and aggravated damages.
In Cork Circuit Court last week Judge Séan O’Donnabháin held that a nun who lost her job was not unfairly dismissed.
Judge O’Donnabháin refused to make an order for costs. This ruling overturned the decision of the Employment Appeals Tribunal. The Tribunal found that Sr O’Sullivan had a contract of employment with the school. This contract had been terminated without any consultation with the sister and therefore amounted to unfair dismissal. The decision of the EAT has been previously reported on October 9th, 2009.
The Equality Tribunal has ruled that the Christian Brothers School in Clonmel indirectly discriminated against the Traveller community. A mother took the case on behalf of her son through the Irish Traveller Movement (ITM) independent law centre. Mary Stokes son John wished to enrol in the aforementioned school in November 2009. On application the family was told that the number of applicants exceeded the number of places at the school. They were also told that a policy was in place which would determine the children who would have priority to enrol. The policy for prioritising applicants was threefold: The Tribunal found that the third prerequisite indirectly discriminated against Travellers as it had previously not been common practice for Travellers to go to secondary school and thus it would be unlikely that John’s father would have gone to the school. The school denied that its policy was discriminatory and stated that a number of Travellers had attended the school. The Tribunal however upheld the complaint and ordered the school to immediately offer John a place in their school. It also ordered the school to review its admissions policies so as not to indirectly discriminate against pupils in the future. This ruling which could be appealed by either party could have implications for schools that prioritise children of past pupils. Accordingly it is very important that schools review their admissions policies to ensure that they are compliant with all equality legislation. If you require any further information 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. This story appeared in The Irish Times on Friday 10th December, 2010.
The High Court has ordered sanctions imposed on Dr Dylan Evans professor at University College Cork to be quashed. Dr. Evans was accused of sexual harassment by a colleague after he showed her a paper on the sexual behaviour of fruit bats. The complainant claimed that this was not the first time he raised sexual subjects with her. UCC appointed an external team of experts to investigate Dr Evans behaviour towards the complainant up to the day he showed her the paper. The investigation found that the incident regarding the fruit bat report did amount to sexual harassment. The investigation further found that no sexual harassment occurred prior to the ‘fruit bat’ incident. The President of UCC ordered he undergo a two-year period of ‘monitoring’ and ‘special training’ after the allegations of sexual harassment were made against him. The president of the High Court Mr Justice Nicholas Kearns declined to quash the investigation findings but quashed the sanctions imposed on Mr Evans. The Judge said the sanctions were disproportionate and he ruled the matter should return to the president of UCC. Mr Justice Kearns awarded the costs of the High Court action to Dr Evans
Ms Regina Cruise claimed that she was discriminated against and harassed on the grounds of gender by Nail Zone Ltd when she informed them of her pregnancy. She also claimed that she was dismissed in circumstances amounting to discrimination on grounds of gender. Nail Zone Ltd rejected Ms Cruise’s assertions in their entirety. The Equality Officer found that Ms Cruise had been discriminated against on grounds of gender in terms of her conditions of employment. The Officer did not find that she had been harassed on grounds of gender. The Officer also found that she was not dismissed in circumstances amounting to discrimination. The Equality Officer awarded Ms Cruise €10,000 for discriminatory treatment. In its conclusion the Labour Court said that in order to come within the purview of the Employment Equality Acts 1998 to 2008 the discrimination and harassment which the Court has found to have occurred must be causally connected to Ms Cruises pregnancy and therefore to her gender. The Court found that it was casually connected. The Labour Court upheld the award of €10,000 made by the Equality Officer. In addition the Court found that Ms Cruise was subjected to harassment and awarded her further compensation in the amount of €10,000 in respect of the harassment.
The Supreme Court on 16th November, 2010 has dismissed Dunne’s store’s appeal against a High Court decision awarding Brendan O’Neill damages over severe facial and other injuries. On the 4th July, 2002 Brendan O’Neill was shopping at Dunne’s Stores in Thurles Co Tipperary. As he was walking near the rear of the shop a woman told him there was a robbery in progress and the security guard needed help. Responding to this he went to the assistance of the security guard on duty. He helped the security man in restraining a youth until Garda assistance was to arrive. When Gardaí arrived on the scene a second youth turned up to help his friend. The second youth had a motorcycle chain and struck Mr O’Neill on the face causing him severe injury. The court stated that it was inadequate to have only one security guard on duty at such a busy time and expect him to police all the departments in the store. The security guard did his duty as best he could albeit against protocol and for this reason the store was vicariously liable. The court held that the defendants were guilty of negligence. Mr O’Neill was awarded €81,201 in damages plus costs.
Domestic Employees: NERA will be carrying out inspections in this facet of employment in order to determine the level of compliance with employment legislation. The Labour Relations Commission published a useful code of practice for protecting such employees. The code of practice seeks to increase awareness of the application of employment legislation in this sector. More than 220,000 people have accessed the NERA website from January to September 2010, over 40% of which were new visitors. NERA reported that the top five most popular guides downloaded were: NERA Inspection: Summary of prosecution activity: Summary of enforcement activity: New Retail Grocery and Allied Trades ERO: If you have any queries in relation to any aspect of the above and wish to ensure 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.
Louise Farrelly, who brought a personal injuries action in the High Court arising out of an incident on the 17th April 2004, settled her action last week for €2.23million. Ms. Farrelly had just disembarked from a minibus, and was crossing the road, when she was struck by a passing car which was driven by Mr. John Earley. She was 14 years of age at the time of the accident. Ms. Farrelly suffered severe brain and physical injuries and has been left entirely dependent on others. John Earley, who was driving the car, with his father Bernard Earley, the owner of the car, both denied any negligence or liability on their part. Judge Iarflaith O’Neill in the High Court noted that John Earley had drank three pints of beer earlier that evening and he acknowledged that John Earley’s driving was impaired because of this. The action settled in the High Court last week with Ms. Farrelly receiving the sum of €2.23 million. The action settled on the basis that the Defendants were liable for two thirds of the accident, while Ms. Farrelly accepted one third contributory negligence for the accident. This story appeared in the printed version of The Irish Times on Thursady November 4th 2010.
It was confirmed during the week that the UK Government is actively considering increasing the qualifying period of unfair dismissal from 1 year to 2 years. This means that in order for an aggrieved employee who feels that he has been unfairly dismissed he must be 2 years in the employment of the Company before he can take a claim. If this change does proceed it is relatively good news for businesses but not so for employees. Essentially employers would have an extra year to dismiss unreasonably (however the protection with respect to discrimination would still remain in place). In Ireland in order for an employee to qualify for an unfair dismissal they must have 1 years continuous service and there have been no such moves to date to increase this qualifying period to 2 years. However, no qualifying period is required for equality related dismissals. For further information on any of the topics above please do not hesitate to contact us.
The EU Directive on Temporary Agency Work (2008/104/EC) must be transposed into Irish law by 5 December 2011. This Directive provides that the basic working and employment conditions applicable to temporary agency workers should be at least the same as those which would apply to such workers if they were recruited by that particular employer to occupy the same job. Member States will be obliged to provide for administrative or judicial procedures to safeguard temporary agency workers' rights. Penalties for non-compliance of these obligations should also be provided. In order to develop the bill necessary to give effect to this directive the Department of Enterprise, Trade and Innovation is currently looking for the views of interested parties including agency workers.
The National Employments Rights Authority("NERA") website has continued to be accessed by large numbers of people seeking employment rights information. NERA reported that almost 700,000 web pages have been visited by 93,000 visitors in the period January to June 2010, 60% of which were new visitors. NERA’s most popular guides: NERA Inspection: NERA Information Services: Sectorial differences: Common Issues Found During NERA Inspections: Summary of prosecution activity:
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.
Mr. Chief Justice Murray advised at the 30th anniversary conference of the Legal Aid Board that the Government should promote professional mediation services and should change the outlook that the courts are the first and only method of resolving a dispute. Mr. Justice Murray stated that particularly in family law scenarios, mediation could prove a useful tool, as often litigation aggravates the situation, putting the welfare of the children involved at risk. Mr. Justice Murray advised that mediation services should be encouraged as the primary option for dispute resolution, referring to UK research which demonstrated that the legal aid fees of mediating family disputes were half that of litigating them. Legal Aid Board Chairwoman, Anne Colley, agreed with Mr. Justice Murray’s remarks, commenting that from the business side, those with legal problems tended to suffer from adverse consequences, such as stress, breakdown of relationships and loss of home. Ms. Colley also stated that if disputes were not resolved in a quick and efficient manner that it could impact on the person’s family and their working life. Terence J. O’Sullivan is a CEDR Accredited Mediator and is a member of the Law Society of Ireland Mediation Panel, as well as a member of www.commercialmediators.ie. He has over 20 years experience as a Solicitor, particularly in the field of litigation, with an emphasis on employment law.
In-House lawyers faced another set back this week, after the ECJ ruled in the case of Akzo Nobel Chemicals Ltd V European Commission that lawyer-client privilege does not extend to in-house legal teams. The issue of privilege arose when European Commission Officials were conducting an investigation into the company Akzo Nobel Chemicals, which was rumoured to be engaging in anti-competitive behaviour. Commission Officials obtained several documents, containing advice from a lawyer who was permanently employed by the company. Representatives of the company argued that these documents were protected by lawyer-client confidentiality; however the Commission held that the documents were not privileged, as the lawyer was part of the company “in-house” legal team, and was not an external body. The ECJ agreed with the Commission and found that in-house lawyers were not entitled to the same level of protection as external lawyers in terms of lawyer-client confidentiality. Thus, Commission Officials can view in-house communications, as the ECJ stated that if Officials could not examine these documents that it would adversely affect the “unity of the European Union”. The decision has sparked controversy amongst in-house legal teams who already resent the varying levels of privilege they have within different EU member states. Julianne O’Leary, a competition partner for Stephenson Harwood, criticised the decision, commenting that the decision does not relate to the realities of commercial life, and that it would hinder open communications between company legal teams and their clients.
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
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