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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
32 Washington Street West, Cork City, Ireland T: +353 (0)21 4223075 | F: +353 (0)21 4905924 | E: info@tjos.ie 
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