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Remote Working and Reasonable Accommodation

Thu, 29 Feb 2024 12:52:18 GMT

Remote Working and Reasonable Accommodation

Background

The case of Sarah Treacy v Centz Retail Holdings Ltd. (ADJ-00037025) examines the circumstances under which an employer will be required to consider remote working, as a form of reasonable accommodation, in respect of an employee who may be suffering a disability.

Sarah Treacy (the Complainant) brought a complaint under section 77 of the Employment Equality Act 1998 against Centz Retail Holdings Ltd. (the Respondent) to the Workplace Relations Commission (WRC), alleging that the failure of the Respondent to allow her to work from home constituted a failure on their part to provide her with a reasonable accommodation.

According to the Complainant, she was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), sought to work from home for a portion of her working week to allow her downtime. She found office work distracting and sought accommodation for occasional work from home. The Respondent refused to provide the requested accommodation and accused her of using her disability for pay increase. The Complainant's consulting psychologist recommended a private office space, but the Respondent refused, citing unsuitability and regular use. The Respondent also allowed another employee to work from home in other circumstances without a disability and during her pregnancy due to Covid concerns. The Complainant's grievance complaint was dismissed, stating that the Respondent had a policy against working from home. The Complainant argued that this policy missed the purpose of reasonable accommodation and that the Respondent would not provide the accommodation without consulting a medical practitioner or follow-up queries.

According to the Respondent, they recognised that the Complainant had ADHD, and agreed that this should be considered a disability for the purposes of the Employment Equality Act.

The Respondent also accepted that the Complainant provided them with the report her Clinical Psychologist in June 2021. They highlighted that the report from her Clinical Psychologist stated; “Given Sarah’s diagnosis, it is expected that she will find working in an open plan office very distracting and as such it is recommended that she be provided with somewhere silent where she can focus on work and also be able to take movement breaks when required without disturbing her colleagues.” On foot of the said report, and in accordance with its recommendations, the Respondent made arrangements to provide the Complainant with a separate office within which she could carry out her work free from distraction and would be free to move about as required.

Legislation and Case Law

Disability is defined in section 2 of the Act as:

“(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person's body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, (e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour…

Section 16(3)(b) of the Act provides that: “the employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability – (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless such measures would impose a disproportionate burden on the employer”.

The Supreme Court in Nano Nagle School v Daly [2019] IESC 63 decided the following concerning the interpretation of Section 16 of the Act, at paragraph 84:

“Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

The Court made it clear that the mandatory primary duty on the employer under Section 16(3)(b) is that he or she shall take appropriate measures where needed in a particular case to enable a disabled person to participate and advance in employment unless these measures would impose a disproportionate burden.

Section 16(4) defines appropriate measures. Appropriate measures are not just physical changes but may include changes in work practices. Each individual case must be assessed by the employer to establish what appropriate measures are required. An employer’s response to assessing what appropriate measures are required is described in Employment Law (Regan 2017) at paragraph 17.277 as follows: “It requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace. In this regard it requires an individualised approach by employers. It allows adjustments to be made in order that disabled employees may be deemed capable of performing the essential tasks of a particular job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary or required. It involves the employee entering into an interactive dialogue with the employer, to search for the right kind of accommodation needed in the overall circumstances of the case. It is a proactive obligation placed on employers.”

Decision

Ultimately, the Adjudication Officer decided that, while the provision by the Respondent of an office to the Complainant, in part addressed the needs of the Complainant, the failure of the Respondent to carry out a proper assessment of those needs and make an informed determination as to a modification of her working terms, conditions, and routines, constituted a failure on their part.

The Adjudication Officer determined that:

“Notwithstanding the above, the Respondent did not present evidence of any assessment made by them in terms of the Complainant’s working from home request. In circumstances where it was recommended by her psychologist that the Complainant be allowed to work from home on occasion, that the Respondent had allowed her to work from home in the past and had allowed another employee to do so and failed to make an assessment of the Complainant’s needs themselves, I find that the Respondent failed to make the Complainant reasonable accommodation for her disability and that she was therefore discriminated against.”

Considering all of the factors, the Adjudication Officer made an award of €5000 in respect of the discriminatory treatment.

Takeaway

The takeaway for employees considering bringing a complaint under the Employment Equality Act, 1998, alleging that their employer failed to provide them with a reasonable accommodation is to determine whether they put their employer on notice of their disability, and afforded their employer an opportunity to explore all of the viable options, before making a determination, as to whether the proposals, if any, were suitable.

For employers, it will be necessary to demonstrate, that when an employee presents with a disability, that a proper consultation, with the employee is undertaken, taking into account the medical evidence presented, as well as the feedback of the employee concerned, in determining whether any proposal is suitable, and fulfilling their obligations as an employer to provide a reasonable accommodation to the employee concerned.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors

Changes to Terms of Employment and Rate of Pay

Tue, 20 Feb 2024 09:49:07 GMT

Changes to Terms of Employment and Rate of Pay

Background

The case of Dermot Flanagan v Dublin Bus (ADJ00046729) examines the circumstances under which changes to the terms and conditions of employment, impacting pay, will ordinarily be enforceable.

Mr Flanagan (the Complainant) brought a complaint under Section 27 of the Organisation of Working Time Act, 1997 against Dublin Bus (the Respondent) to the Workplace Relations Commission (WRC), alleging that he should be paid at the bus driver rate for the annual leave he accrued while working as a bus driver, but did not take until after he assumed a new role.

By way of background, the Complainant was a bus driver who, as a result of two assaults suffered while driving for the Respondent, was unable to continue to work as a bus driver so took on an alternative, lower paid role with the Respondent organisation.

Legislation and Case Law

Section 20(1)(c)(iii) of the Organisation of Working Time Act 1997, as amended, (the Act), prescribed that, where an employee is unable to avail of their annual leave entitlement due to illness, and has provided a medical certificate to that effect, any untaken annual leave can be carried over for up to 15 months after the end of the year it which it was earned.

Section 20(2)(b) of the Act states that "the pay in respect of an employee's annual leave shall (b) be at the normal weekly rate or, as the case may be, a rate which is proportionate to the normal weekly rate”.

The Respondent paid the Complainant’s annual leave at his new 30-hour rate, even though the annual leave in question had been earned whilst the Complainant was a bus driver on a higher rate of pay.

Section 19(1)(a) of the Act states the following:

"(1)(a) For the purpose of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was

(a) At his or her place of work or at his or her employer's disposal, and

(b) Carrying out or performing the activities or duties or his or her work."

The Complainant further submitted that the Respondent was in breach of section 5 of the Payment of Wages Act 1991, as amended, because an illegal deduction had been made.

Section 5 of the Payment of Wages Act provides that:

"(6) Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. "

The Complainant submitted that in this case, the deduction from his wages was not authorised by him and he was not made aware of it prior to the deduction.

Decision

Ultimately, the Adjudication Officer decided that, when the Complainant agreed to accept a lower rate of pay, that would impact any annual leave entitlements owed to him and therefore he couldn’t bring a complaint in respect of a lower rate of pay in respect of accrued but untaken annual leave.

The Adjudication Officer determined that the Organisation of Working Time Act sets out that annual leave entitlements should be set at the rate of normal pay.

Subsection 20(2) of the Organisation of Working Time Act, 1997, as amended, (the Act) provides that:

“The pay in respect of an employee’s annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate …”

The ‘normal weekly rate’ is set out under S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, which provides that:

“The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation. If the employee concerned pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs”.

Takeaway

The takeaway for employees considering accepting any changes to their terms and conditions of employment, is to consider the whole impact such a change could have on core and ancillary benefits such as annual leave.

For employers, it will be necessary to demonstrate that any reduction in payments made to an employee on foot of a change to their terms and conditions of employment, has a basis in law. Ordinarily, the written consent of the employee will ordinarily be required to give legal affect to such changes.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Entitlement to Carry Over Annual Leave

Thu, 08 Feb 2024 18:30:30 GMT

Entitlement to Carry Over Annual Leave

Background

The case of Martin Beirne v Health Service Executive (HSE) (ADJ-00040093) examines the circumstances under which an employer will be held liable for any accrued but untaken holiday pay from previous annual leave periods.

Mr. Beirne (the Complainant) brought a complaint under 27 of the Organisation of Working Time Act, 1997 against the HSE (the Respondent) to the Workplace Relations Commission (WRC), alleging that he was unpaid annual leave from 2007 until the cessation of his employment in 2022.

The Respondent argued that the jurisdiction of the WRC was limited to 6 months from the filing of the complaint which could be extended to 12 months under exceptional circumstances.

Complaint pursuant to section 27 of the Organisation of Working Time Act

Section 27 of the Organisation of Working Time Act provides:

‘A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee’s employment.’

Cognisable period

The cognisable period for complaints pursuant to section 27 is set out in section 41(6) of the Workplace Relations Act. It states: ‘Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’

Section 41(8) provides that the cognisable period can be extended by a further 6 months, should the complainant establish reasonable cause in the late presentation of the complaint.

Entitlement to annual leave

Section 19 of the Organisation of Working Time sets out the entitlement to annual leave. Full-time employees, such as the complainant, have a statutory right to four weeks of paid annual leave in any leave year.

Section 20 provides as follows in respect of the taking of annual leave:

‘(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject— (a) to the employer taking into account— (i) the need for the employee to reconcile work and any family responsibilities, (ii) the opportunities for rest and recreation available to the employee, (b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and (c) to the leave being granted — (i) within the leave year to which it relates, (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or (iii) where the employee — (I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.’

Entitlement to cesser pay

Section 23 of the Organisation of Working Time Act sets out the employee’s entitlement to cesser pay in compensation for a balance of annual leave not taken. Section 23 provides:

‘(1) (a) Where — (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. (b) In this subsection — ‘relevant period ’ means — (i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year, (ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year (I) the current leave year, and (II) the leave year immediately preceding the current leave year, (iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the leave year immediately preceding the current leave year, or (iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the 2 leave years immediately preceding the current leave year.’

Cesser pay is the ‘allowance in lieu’ referred to below in Article 7 of the Directive. Section 23 provides that it is payable for the ‘relevant period’. Ordinarily, the ‘relevant period’ is the current leave year (as the obligation is for annual leave to be taken within the leave year). Section 23(1)(b)(ii) addresses ‘relevant period’ where the period for leave to be taken has been extended by up to 6 months, with the employee’s consent. Section 23(1)(b)(iii) addresses ‘relevant period’ where the employee accumulates annual leave while on certified sick leave. The provision addresses this in two scenarios: one where employment ends within 12 months of the certified sick leave and a second, where the employment ends in the final 3 months of the period of 15 months.

Royal Liver Assurance v Macken [2002] 4 IR 427

In Royal Liver Assurance v Macken, the High Court held that the period of 20 days of annual leave must be granted to the employee within the leave year. Where this is not done, the Court held that the employer is obliged to consult with the employee to obtain their consent for the balance of leave to be granted within six months of the end of the leave year in question.

The High Court did not agree with the Labour Court’s conclusion that the date of contravention could be extended to include the six-month period that follows the leave year. The High Court pointed out that the effect of the Labour Court decision was that an employee could only submit a complaint after this further six-month period ended, so that the employee may be out-of-time.

The High Court held that the latest date of contravention to grant leave within a leave year is the last day of the leave year in question.

Working Time Directive

Article 7 of the Working Time Directive (2003/88/EC and its predecessor Directive 93/104/EC) sets out the entitlement to paid annual leave. It states:

‘Annual leave 1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice. 2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.’

Sections 19, 20 and 23 of the Organisation of Working Time Act transposed this provision into Irish law.

Article 31 Charter of Fundamental Rights

Article 31 of the Charter on Fundamental Rights of the European Union addresses annual leave. It provides:

‘Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.’

Interpretation of the Court of Justice of the European Union

The Court of Justice of the European Union (the ‘CJEU’) has made several significant decisions that touch on the carry-over of annual leave and the nature of the contravention at the termination of an employee’s employment. As noted by the High Court in Macken, the starting point is that the right to paid, unconditional annual leave is a ‘fundamental social right’. This is now reflected in the Charter of Fundamental Rights.

KHS v Shulte C-214/10

KHS involved an employee who was unable to work on serious health grounds between 2002 and 2008. The Court observed that ‘a provision of national law setting out a carry-over period for annual leave not taken by the end of the reference period aims, as a rule, to give a worker who has been prevented from taking his annual leave an additional opportunity to benefit from that right at the end of the reference period or of a carry-over period. However, the Court attached to that finding of principle the condition that a worker who has lost his right to paid annual leave must have actually had the opportunity to exercise the right conferred on him by that directive (see Shultz-Hoff and Others, paragraph 43).’

The CJEU noted that, where the employee is unfit for several consecutive reference periods, the unlimited accrual of annual leave would no longer reflect the actual purpose of the right to paid annual leave. The CJEU noted that ‘the carry-over period must also protect the employer from the risk that a worker will accumulate periods of absence of too great a length, and from the difficulties for the organisation of work which such periods might entail.’

The CJEU conclude that Article 7 did not preclude national provisions which limit the carry-over of paid annual leave to 15 months where a worker is unfit for work for several consecutive reference periods.

King v The Sash Window Workshop Ltd C-214/16

In King v Sash Window, the employee claimed 13 years of paid annual leave that he had been prevented from taking over the course of his employment. The employer had not paid annual leave as it treated the employee as being self-employed and not an employee.

At paragraph 65, the CJEU concluded ‘Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.’

In the preliminary reference, the UK Court of Appeal had posited a maximum carry-over period of 18 months, but the CJEU did not agree to any such limitation.

To note, the relevant UK statute provided two causes of action: the right to take leave (Regulation 13) and the right to be paid for the leave (Regulation 16). Regulation 30 conferred the following right, subject to a limitation period:

‘(1) A worker may present a complaint to an employment tribunal that his employer — (a) has refused to permit him to exercise any right he has under — (i) regulation ... 13(1); ... or (b) has failed to pay him the whole or any part of any amount due to him under regulation ... 16(1). (2) An employment tribunal shall not consider a complaint under this regulation unless it is presented — (a) before the end of the period of three months ... beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made; (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three or, as the case may be, six months.’

Max-Planck-gestelleschaft zur Forderung der Wissenschaften eV v Shimizu C-684/16

In Max-Planck, the national law in question provided that annual leave must be granted and taken in the course of the leave year; otherwise, it lapsed unless carried over under the terms of the provision. It provided that an allowance could be paid in lieu where the employment had terminated. In this case, the employee claimed 51 days of annual leave accruing in 2012 and 2013 (his employment ceased on the 31st December 2013).

The CJEU reaffirmed the position set out in preceding judgments that Article 7 did not preclude a national provision that resulted in an employee losing their entitlement to annual leave where they had the opportunity to exercise the right to annual leave but chose not to take leave.

Citing the employee as being the weaker party in the employment relationship, paragraphs 43 to 47 of the judgment refer to the burden resting on the employer to ensure that the employee had the opportunity to take paid annual leave.

At paragraph 46, the Court held ‘Should the employer not be able to show that it has exercised all due diligence in order to enable the worker actually to take the paid annual leave to which he is entitled, it must be held that the loss of the right to such leave at the end of the authorised reference or carry-over period, and, in the event of the termination of the employment relationship, the corresponding absence of a payment of an allowance in lieu of annual leave not taken constitutes a failure to have regard, respectively, to Article 7(1) and Article 7(2) of Directive 2003/88.’

The Court concluded that a national court hearing a complaint must ‘ensure that, should the employer not be able to show that it has exercised all due diligence in enabling the worker actually to take the paid annual leave to which he is entitled under EU law, the worker cannot be deprived of his acquired rights to that paid annual leave or, correspondingly, and in the event of the termination of the employment relationship, to the allowance in lieu of leave not taken which must be paid, in that case, directly by the employer concerned.’

Kreuziger v Land Berlin C-619/16

The Grand Chamber of the CJEU heard both Max-Planck and Kreuziger on the same day (29th May 2018) and also handed down both judgments at the same time (6th November 2018). In Kreuziger, the relevant regulation provided that entitlement to annual leave lapsed 12 months after the end of the leave year. The employee sought payment for untaken annual leave for the period of the 1st January to the 28th May 2010, when his employment ended on completion of his legal training.

Again, the CJEU reiterated that ‘it cannot be inferred from the Court’s case-law mentioned in paragraphs 30 to 33 of the present judgment that Article 7 of Directive 2003/88 should be interpreted as meaning that, irrespective of the circumstances underlying the worker’s failure to take paid annual leave, that worker should still be entitled to the right to annual leave referred to in Article 7(1), and, in the event of the termination of the employment relationship, to an allowance by way of substitution therefor, pursuant to Article 7(2).’

At paragraph 42, the CJEU held ‘the Court has in particular held that Article 7(1) of Directive 2003/88 does not in principle preclude national legislation which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a leave year or of a carry-over period, provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the directive.’

At paragraph 52, the CJEU cited that the burden lay on the employer: ‘the employer is in particular required, in view of the mandatory nature of the entitlement to paid annual leave and in order to guarantee the effectiveness of Article 7 of Directive 2003/88, to ensure, specifically and transparently, that the worker is actually given the opportunity to take the paid annual leave to which he is entitled, by encouraging him, formally if need be, to do so, while informing him, accurately and in good time so as to ensure that that leave is still capable of procuring for the person concerned the rest and relaxation to which it is supposed to contribute, that, if he does not take it, it will be lost at the end of the reference period or authorised carry-over period, or upon termination of the employment relationship where the termination occurs during such a period.’

Terveys-Ja Sosiaalialan Neuvottelujargesto (TSN) ry v Hyvinvointialan liito Ri C-609/17 and C-610/17

In TSN, the CJEU held that annual leave entitlement in excess of that required by the Directive is not within the scope of the Directive. The Finnish collective agreement in question could treat differently carry over of untaken annual leave (due to illness) between leave that fell within the four weeks provided under the Directive and leave in excess of this entitlement. The collective agreement could limit the carryover of untaken annual leave to four weeks.

Present Case

In A Facilities Coordinator v A Bakery (ADJ-00019188) the Adjudication Officer applied the CJEU authorities of KHS v. Shuite (C-214/10); King v. Sash Window Workshop (C-214/16); Max-Planck-gestelleschaft zur Forderung der Wissenschaften eV v. Shimizu (C-684/16); Kreuziger v. Land Berlin (C-619/16) Terveys-Ja Sosiaalialan Neuvottelujargesto (TSN) ry v. Hyvinvointialan Liito Ri (c-609/17 and C-610/17) which held that where the Employer is on notice that annual leave has not been availed unless the employer warns the worker that the failure to avail of the annual leave will result in it being lost, the leave carries over and remains extant as an accrued entitlement at the end (cesser) of the employment.

Decision

Ultimately, the Adjudication Officer decided that the Complainant in the present case, was devoid of any line management whatsoever, and this resulted in the Respondent, not clearly communicating his leave entitlements, during his last years of service. Notwithstanding this management and administrative oversight, it was held that, despite the protestations concerning the consignable period, there was an assumption that any unused annual leave, would carry over into the next annual leave period, if an employer has not taken sufficient steps, to provide or warn the employee concerned, that they are at risk of losing that annual leave, if not properly utilised.

The Adjudication Officer determined that:

“The decisions of Kreuizger v. Land Berlin and Max Planck v. Shimizu was applied by the WRC in Adj. 19188 [A Facilities Coordinator v. A Bakery]. I have found both the CJEU authorities and Adj. 19188 to be persuasive and helpful to assist with this decision.

In 2008 on in the context of a restructure of the HSE Estates section the Complainant’s role as a Property Manager was recommended to be abolished. However as no suitable alternative position for the Complainant could be found, he expected to be made redundant but this did not occur. Instead, the Complainant was maintained as Property Manager and given the role of supervising five staff in a section of HSE Estates but without any line management, reporting structure or any effective oversight. This resulted in the Complainant not being eligible for promotion, training or career advancement. But it also meant that on a day to day basis, he had no one to report to and therefore he had no one to sanction if and when he took annual leave. This unusual situation pertained until he applied to take retirement in April 2022 at which point he raised the fact that he had outstanding annual leave that he had carried over each year from 2007.

Adj. 19188 [A Facilities Coordinator v. A Bakery] is clear in its finding. Applying Kreuziger, an employer is required (in view of the mandatory fundamental right to paid annual leave as per Article 7 of Directive 2003/88) to ensure that the worker is both given the opportunity to take paid annual leave and if it is to be lost through non-use, that the worker must be put on notice of this in advance of its loss.

This did not occur in any respect. I have heard no evidence from either party that even any conversation took place between the Respondent and Complainant about him not taking enough annual leave, the carry-over of annual leave, whether it could be lost if he didn’t take it, indeed anything about annual leave at all.

In the present case, there was no communication between the Respondent and the Complainant to ensure in the first instance that he was taking his annual leave entitlement or in the alternative that if he did not take the leave, that it would not carry over or he was at risk of losing it.”

Takeaway

The takeaway for employees considering bringing a complaint under the Organisation of Working Time Act, for accrued but untaken holiday pay, is to determine what their entitlements were on an annual basis, how many days annual leave were actually taken, and calculate the requisite deficit.

For employers, it will be necessary to demonstrate that they afforded their employees an opportunity to avail of annual leave and warned them of the consequences of not availing of that annual leave, before the annual leave period expired.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Protected Disclosure or Grievance?

Tue, 06 Feb 2024 06:20:07 GMT

Grievance or Protected Disclosure?

Background

The case of Louis O'Neill v City Break Apartments Limited City Break Apartments (ADJ-00042764) examines the circumstances under which an Adjudication Officer will construe a concern as constituting a protected disclosure.

Mr O’Neill (the Complainant) brought a number of complaints against City Break Apartments Limited City Break Apartments Limited (the Respondents) to the Workplace Relations Commission (WRC) alleging that he had been discriminated against due to his disability and that he was forced to resign on account of the failure of his employer, in part, to provide him with a reasonable accommodation. The act of Mr O'Neill in raising his concerns about workplace conditions and being 'replaced' by another employee was presented as having constituted a protected disclosure..

Legislation and Case Law

For the purposes of this article, the complaint was primarily grounded in Schedule 2 of the Protected Disclosures Act, 2014.

The Protected Disclosures Act 2014 (as amended) provides that an employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee for having made a protected disclosure. The Protected Disclosures Act 2014 (as amended) provides at section 5 that: “

(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if:

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in a work related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”

Section 3 of the 2014 act defines “penalisation" as:

“any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes— (a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;”

In Crawley v Dundalk Institute of Technology (ADJ 00026170, 23 February 2022), the Adjudication Officer held that:

“the key question arising then is what information is disclosed in the complainant’s email of December 2018 that carries a reasonable inference of wrongdoing that is relevant and can be said to fall in any way into the order of relevant wrongdoings in the Act.”

In the matter of Baranya v Rosderra Meats Group Limited [2021] IESC 77, the Supreme Court held that, per Hogan J., an Adjudicating body must examine,

“…did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of S.5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer”.

In the case of O’Neill v Toni and Guy Blackrock Limited [2010] ELR 21, the Labour Court considered the requirement for a causal connection in claims of penalisation in respect of claims under the Safety, Health and Welfare at Work Act, 2005, prior to the enactment of the Protected Disclosures Act 2014.

When considering causal connection under the Protected Disclosures Act 2014 in Anna Monaghan v Aidan & Henrietta McGrath Partnership [2017] 28 ELR 8), the Labour Court held that the provisions concerning penalisation were “broadly similar” to those in the 2005 Act. The Labour Court stated that:

“It is clear from the language of section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for an Appellant to establish that the detriment of which he or she complains was imposed 21 “for” having committed one of the acts protected by section 27 (3) of the 2005 Act. Thus the detriment giving rise to the complaint must have occurred because of, or in retaliation for, the Appellant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Appellant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or the reasons which influenced the decision maker in imposing the impugned detriment.”

Following the enactment of the Protected Disclosures (Amendment) Act 2022 since the above decision, the burden of proving that the dismissal did not arise from the making of a protected disclosure by the Complainant rests on the Respondent. Section 12 of the amended act provides that:

“7(c) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.”

In Liam McMullan v Inspire Wellbeing (ADJ 00032530, 7 February 2023) the Adjudicating Officer held that:

“At the time the complaint was lodged, the burden of proof was the “but for” test: whether the protected disclosure was an operating cause in the act of detriment, as opposed to be the main cause or the whole cause. This burden of proof was significantly altered by the Whistleblowing Directive (Directive 2019/1937) and the transposing Protected Disclosures (Amendment) Act, so that it is presumed that the detriment was due to the protected disclosure. In line with the Directive, this reverse burden of proof applies to all aspects of detriment, including deeming that a person has not passed probation or that their employment should end.”

The Complainant was on sick leave for a prolonged period, and upon his return to work, discovered a number of emails between Officers the Company. The emails set out certain plans to replace the Complainant in his existing roles, and a strategy as to how that could be achieved, potential concerns which may have led to the dismissal of the Complainant and commentary on the Complainant’s mental and physical health.

The Complainant postulated that his having brought this communication to the attention of his employer constituted a protected disclosure.

The Respondent noted that, while the concerns of the Complainant were genuine, given the increase in volume of business, his being on long term sick leave, as well as a number of other strategic considerations, an amendment to the organisational structure was required, in any event.

Ultimately, the Adjudication Officer decided that the issues complained of, were personal to the Complainant, related solely to his terms and conditions of employment, amounting more to a grievance than a protected disclosure.

The Adjudication Officer commented:

“I cannot see any basis on which the Complainant could have formed a reasonable belief that the matters raised in the above email could conform to the definitions of a protected disclosure in the 2014 Act. The Complainant is raising issues about himself and of concern to himself. I find the contents of the email do not meet the test of information or relevant information of a wrongdoing for the purposes of section 5 of the 2014 Act. The contents of the email relate exclusively to the Complainant and to his clearly manifest discontent around his duties, working procedures and broadly speaking his terms and conditions of employment together with a generalised allegation that he has been “getting treated in a less favourable way.” I am satisfied the matters outlined in the email bear all the hallmarks of an individual grievance and do not constitute a protected disclosure.”

Takeaway

The takeaway for employees considering bringing a complaint under 2014 Act is to consider what ‘revelation’ constituted a form of whistleblowing and in what way were they subsequently penalised.

For employers, it will be necessary to demonstrate that any complaints or concerns are properly addressed and that an employee is not reprimanded for having raised such apprehensions.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Sick notes, disability and duty to inform employer

Fri, 19 Jan 2024 13:29:59 GMT

Sick Notes and Proving Disability

Background

The case of Louis O'Neill v City Break Apartments Limited City Break Apartments (ADJ-00042764) examines the circumstances under which an Adjudication Officer will construe medical certificates as providing a sufficient proof, from an employee to an employer, that they were suffering a disability, in accordance with the definition within the relevant legislation, creating an onus on the employer, to address same.

Mr O’Neill (the Complainant) brought a complaint under section 77 of the Employment Equality Act, 1998, against City Break Apartments Limited (the Respondents) to the Workplace relations Commission (WRC) alleging that he had been discriminated against by reason of his disability, that the Respondent treated him unlawfully by discriminating against him, in respect of his conditions of employment, and the Respondent failed to give him a reasonable accommodation. The Complainant also alleged that he was forced to resign, on account of this treatment. The Respondent denied of liability whatsoever, arguing that they had never been put on notice, prior to his filing complaints of his suffering disability.

Legislation and Case Law

Section 16 of the 1998 Act sets out the responsibility on an employer to make reasonable accommodation for an employee with a disability:

"(3) (a) For the purposes of this section, a person with a disability is fully competent to undertake, and fully capable of undertaking, any duties if, the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as 'appropriate measures') being provided by the person's employer.

(b) An employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability

(i) to have access to employment

(ii) To participate and advance in employment

(iii) To undergo training unless the measures would impose a disproportionate burden on the employer

(i) The financial and other costs entailed,

(ii) The scale and financial resources of the employer's business, and

(iii) The possibility of obtaining public funding or other assistance. 'appropriate measures', in relation to a person with a disability

(a) Means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) Without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) Does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

ln the Supreme Court decision of Nano Nagle School v Marie Daly [2019] IESC 63 it was held that for the purposes of the entirety of Section l6 of the 1998 Act;

"a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance.”

After extensive discussion of the obligations on employers arising pursuant to Section l6 of the 1998 Act, McMenamin J summarised by stating that the fundamental criterion is "to consider -whether the degree of redistribution, or "accommodation", is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer.”

In the case of A Health and Fitness Club-v-A Worker EED037 wherein The Labour Court stated;

" This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before 15 coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity. The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision. In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Under Section 8 of the Employment Equality Act 1998, there is a prohibition on discrimination by employers under subsection (1):

“(1) In relation to—

(a) access to employment,

(b) conditions of employment, (c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker…………

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

The Complainant asserted that he was demoted, rather than accomodated.

In the event that an employee is able to establish that they are suffering from a disability, the existence of a disability, in itself, is not enough to establish a claim of discrimination.

In Margetts v.Graham Anthony and Company (EDA038) it was held:

“The Complainant must adduce other facts from which it may be inferred, in the balance of probabilities that an act of discrimination has occurred.”

With respect to whether an employer is on notice that an employee is suffering from a disability, the decision of the Labour Court in A Worker v. An Employer EDA 1927 is instructive. While factually distinct from the within case, as it related to an alleged discriminatory dismissal and failure to provide reasonable accommodation, it was held:

“It would be, in the view of the Court, entirely unreasonable and unrealistic to expect employers to engage in guesswork about whether or not medical complaints brought to their attention required further enquiry by them in order to establish if they indicated the existence of a disability that required them to take appropriate measures within the meaning of the Employment Equality Acts to assist an employee.”

That decision goes on to state that the decision maker acting on behalf of the employer “was not provided with any medical evidence that the Complainant had a disability. He was provided with mere assertions to that effect by the Complainant.” The Court went on to say:

“As this court noted in Melbury Developments Ltd. v. Valpeters (EDA0917), albeit in a somewhat different context, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’…[the Employer] could not have been expected to accept the Complainant’s assertions in the absence of medical evidence.”

Decision

The Adjudication Officer highlighted the burden of proof in an employment equality complaint, when disability is cited.

Section 85A (1) of the Employment Equality Act, 1998 provides as follows:

—(1) “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in so doing, then, and only then, is it for the respondent to prove the contrary. The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a respondent. “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place. The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn. When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant. The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

“…provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculations, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The interpretation section of the Employment Equality Act, 1998 provides the following definition of disability:

“disability” means—

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

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(d) a condition or malfunction which results in a person learning differently from a person withoutthe condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

It is well settled that for an employee to come within the protections of the Act, they will first have to show that they suffer from a disability. This issue has been addressed by the Labour Court on a number of occasions included among which is the case of A Worker v. An Employer [EDA 1927] cited by the Respondent and also in the case of A Retail Company v. A Worker [EDA 2012], where the Labour Court held as follows:

“In circumstances where the fact of disability is in dispute, the Court can be assisted with evidence from medical practitioners. The failure of the Complainant to call such a practitioner in evidence means that the Court is left entirely to rely on the written evidence provided.”

“The Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise. The burden of establishing this falls on the Complainant. In view of the fact that insufficient evidence has been provided to the Court on this issue, it is not possible for the Court to determine that the Complainant had a disability at the time in question.”

The Adjudication Officer determined that in the within case the written evidence provided was the medical certificates provided by the Complainant to the Respondent. The Labour Court in A Retail Company v. A Worker [EDA 2012] described the medical certificates in that case as “scant on detail.”

The Adjudication Officer found that the medical certificates within this case of Mr O’Neill, were not merely “scant on detail”, but devoid of any detail whatsoever. The Adjudication Officer went on to note that there had been no evidence of any evidence opened before them, in support of the claimed disability. The medical certificates were considered to be of no evidential value in any regard, as they merely provided dates in which they pertain to, with no narrative, at all, in respect of the nature or reason as to why the Complainant was being declared unfit for work. They simply alluded to “medical illness”. That being the case, a decision could not be made in favour of Mr. O’Neill.

Takeaway

The takeaway for employees considering bringing a complaint alleging that their employer has discriminated against them on the grounds of their disability, is to determine in advance what evidence has been provided to the employer prior to filing the complaint, that they in fact, suffered a disability. If an employee fails to inform their employer that they are suffering a disability, an employer cannot be expected to provide a reasonable accommodation, in respect of an illness or injury of which they are unaware.

For employers, defending a potential complaint alleging discrimination on the grounds of disability, a first course of action, is to review if the employee ever brought the supposed disability to their attention, in the first place.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Dismissal due to Pregnancy

Fri, 19 Jan 2024 13:10:24 GMT

Dismissal on Pregnancy Grounds

Background

The case of Ms Abbie Walsh v Soraghan Auto Retail Limited T/A Sandyford Motor Centre (ADJ00045841) examines the circumstances under which the dismissal of a pregnant employee will be deemed to amount to a form of discrimination.

Ms Walsh, (the Complainant), brought a complaint under Section 77 of the Employment Equality Act, 1998 against Sandyford Motor Centre, (the Respondent), to the Workplace Relations Commission (WRC), alleging that she had been dismissed four and a half months into a twelve month probationary period, having informed her line manager that she was pregnant.

Legislation and Case Law

Section 6(2A) of the 1998 Act also provides protection for pregnant workers against less favourable treatment in the workplace. It provides:

2(A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

Irish law provides robust protection to women who have been dismissed for any reason related to pregnancy in accordance with its obligation in European law. It is well established in case law that pregnancy is “a special protected period” and the Labour Court has found that only “the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant.” The rationale for this approach is evident from the decision of C-232/09 Danosa v. LKB Lizings SIA [2011] CMLR 45, at 60, the Court held as follows:

“It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave.”

In the case of Dekkar v. Stichting voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941, the European Court of Justice held that since pregnancy is a uniquely female condition, less favourable treatment on the grounds of pregnancy constitutes discrimination on the grounds of gender.

Section 85A of the Acts provides for the allocation of the probative burden between a complainant and a respondent in cases coming within its ambit. In the matter of Mitchell v. Southern Health Board [2001] ELR 201the Labour Court held that: -

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

However, it is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of pregnancy. The fact of pregnancy is the “primary fact”. In effect what this means is for an employer to dismiss a woman during her pregnancy, regardless of the reason for that dismissal, they must have duly substantiated reasons for the dismissal provided to the employee in writing and these reasons must be substantial as held by the Labour Court in Assico Assembly Limited as cited in the Complainant’s legal submission above.

In relation to this burden of proof in matters involving a specific allegation of pregnancy-related dismissal I note the following extract from Bolger Bruton and Kimber, Employment Equality Law (Round Hall Press, 2012): -

“The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives. It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant was not on the grounds of pregnancy.”

In the matter of Teresa Cross (Shanahan) Croc’s Hair and Beauty -AND- Helen Ahern [EDA 195] the Labour Court set out at considerable length its understanding of the legal protections for pregnant women as follows:

“Since the decision in Dekker the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union.

The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union.

The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2.2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of the Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive”.

The Labour Court in Teresa Cross cites extensively from case 406/06 Paquay v. Societe d’architectes Hoet + Minnie SPRL [2007] ECR 1-8511. The Labour Court held in Teresa Cross that the Court in Paquay “pointed out that in accordance with its case law the prohibition of less favourable treatment, on grounds of pregnancy comes within the ambit of both the Equal Treatment Directive and the Pregnancy Directive. The importance of providing real and effective redress in cases where the rights of pregnant workers are infringed was emphasised by the Court at pars 45-47 if its judgment in Paquay. Here the Court said:

45 However, the objective is to arrive a real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer (Marshall, paragraph 24).

46 Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules (Marshall paragraphs 25 and 26).

47 It is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process…

49 While recognising that the Member States are not bound, under Article 6 of Directive 76/207 or Article 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered.”

In summary the Labour Court in Teresa Cross held as follows:

“It is abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment on account of their condition from the commencement of their pregnancy to the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy….

An analysis of the prohibition of any pregnancy-related dismissal can be seen in the decision of the Equality Tribunal in O'Brien v Persian Properties t/a O'Callaghan Hotels where the Equality Officer relied on the decisions of the Court of Justice in Dekker, Webb and Brown in confirming that pregnancy is "a special protected period' and pointed out that the Labour Court had found that only the "most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant".

In the case of Assico Assembly Ltd v Corcoran EED 033/2003, the Labour Court held:

" Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”

The Respondent simply has not complied with any of its legal obligations in this regard.

In Emma Rooney v Nomos Productions ADJ-00039520(12/07/2023), an employer had dismissed a pregnant worker and made reference to the worker's 'style ', 'synergy ' and not being the 'right fit ' when dismissing her. The employer had also, however, told the pregnant worker that she had done nothing wrong. The Adjudicator criticised the language used by the Respondent in dismissing the Claimant, noting: "Such imprecision of language can often be used to provide the cover needed to mask acts of discrimination. Where discrimination is being practised a perpetrator is unlikely to tell the victim openly that is what is happening and will normally resort to such euphemisms.”

The Adjudicator in Emma Rooney found that a prima facie case of discriminatory dismissal had been made out. The Adjudicator highlighted the requirement of Article 10.2 of Pregnant Workers Directive that an employer "cite duly substantiated grounds for her dismissal ", noting:

"The word 'substantiated' is important here. Thus, a statement outlining the grounds containing the sort of vague clichés used by the respondent at its final meeting with the complainant would be unlikely to comply with this requirement that an employee be given.”

While the WRC determined in Emma Rooney that the Claimant had not been dismissed on the grounds of her pregnancy (and therefore did not uphold the main complaint), it did determine that the Respondent failed to comply with the requirement to notify the complainant in writing of the grounds for the dismissal and awarded the complainant €10,000 for this failure.

Decision

Ultimately, the Adjudication Officer decided that the Complainant had been dismissed by the Respondent in part due to her pregnancy.

The Adjudication Officer determined that “while it is the Respondent’s position that the dismissal occurred as a result of the Complainant’s underperformance, the evidence as presented does not credibly or cogently demonstrate that this was the sole reason for the Complainant’s dismissal.”

Takeaway

The takeaway for employees considering bringing a complaint under Section 77 of the Employment Equality Acts, 1998, on the grounds of discriminatory dismissal due to pregnancy, is to determine if there are any other substantive reasons that an employer may utilise in defending such a charge.

For employers, it will be necessary to demonstrate that the termination of a pregnancy employee, was wholly unrelated to the pregnancy of that employee.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Participation in Workplace Investigation and Disciplinary Process

RG343171 — Sun, 07 Jan 2024 19:09:31 GMT

Expectation to Participate in

Workplace Investigation and Disciplinary Process

Introduction

The case of a Worker v Louth County Council (ADJ00041356) examines the circumstances under which it would be reasonable or otherwise for an employee not to participate in an investigation or disciplinary process. The matter was appealed to the Labour Court (LCR22871).

The Worker (the Complainant) brought a complaint under Section 13(9) of the Industrial Relations Act, 1969 against Louth County Council (the Respondent) to the Workplace Relations Commission (WRC), alleging that he was unfairly sanctioned and taken off winter road gritting duties following an incident in relation to a gritting truck in December 2020.

A duty to participate in an Investigation and Disciplinary Process?

The Complainant was issued with a disciplinary sanction for failing to follow an instruction to collect a replacement truck when issues arose with the truck he was driving. The Complainant refused to drive the truck on the basis that it was unsafe. The Respondent submitted that the truck was safe to drive to a location to collect an alternative truck and that the Complainant refused to follow a reasonable instruction.

In response, the Complainant was placed on administrative leave which he alleged should only apply in cases of serious misconduct. The Complainant further alleged that the matter was not properly investigate and procedures used to sanction him were flawed.

Ultimately, the Labour Court decided that, notwithstanding some confusion surrounding the implementation of the company’s investigation and disciplinary policy, the failure of the Complainant to participate in that process was prejudicial to his own interests.

The Labour Court determined that:

“The Court notes the worker raised concerns about the disciplinary process with the CEO at the outset. Having written to the CEO the worker chose not to engage in the process and instead read out a pre-prepared statement at the disciplinary hearing. A worker is expected to cooperate with any disciplinary investigation. In this case by refusing to engage in the process, the worker denied himself an opportunity to respond to any questions raised and have his views fully considered as part of any outcome.”

Takeaways

The takeaway for employees considering bringing a complaint relating to an investigation or disciplinary process, is for them to fully participate in that process, notwithstanding any flaws they may perceive to exist. Our advice is for employees to highlight any procedural deficiencies, in writing, to the employer throughout the process so that such failings can be addressed or relied upon at a later date if a complaint is filed.

For employers, it will be necessary to demonstrate that the process carried out to investigate or discipline an employee was carried out in accordance with due process and fair procedure, ideally following the company’s own internal guidelines.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Duty to Inform Employer of Disability

Fri, 05 Jan 2024 11:03:29 GMT

Duty to Inform Employer of Disability

Introduction

The case of Alan McAndrew v DHL Supply Chain (Ireland) Limited (ADJ00035383) examines the obligations of an employee to inform an employer of any disability should the employee seek a reasonable accommodation.

Mr McAndrew (the Complainant) brought a complaint under the Employment Equality Act, 1998 against DHL Supply Chain (Ireland) Limited (the Respondent) to the Workplace Relations Commission (WRC), alleging that he had not been provided with a reasonable accommodation in respect of his disability. The WRC found against the Complainant, and he appealed the matter to the Labour Court. The Labour Court also found against the Complainant (ADE/22/108).

Reasonable Accommodation

The Complainant ordinarily worked night shifts but, on revealing that he suffered from hypertension, he was afforded the opportunity to undertake day shifts as a security guard for the Respondent. The Labour Court determined that the Respondent did make reasonable accommodation for the Complainant by transferring him to day duties that did not involve any night work. Therefore, the Labour Court found that the complaint was not well founded.

The Complainant went on to note that he also suffered depression which the Respondent didn’t take into consideration. It appears as if no medical evidence had been previously submitted to the employer in respect of any depression suffered by the Complainant.

Ultimately, the Labour Court decided that the employer could not be held liable for failing to provide a reasonable accommodation in respect of a disability in which it was not aware of.

“The Complainant indicated in his own evidence that he suffered from a second disability also i.e. depression. However, the Court – having reviewed the full suite of medical certificates and reports submitted to it, finds that there is no evidence that the Respondent was ever notified of this disability. As a matter of simple logic, an employer cannot be expected to make reasonable accommodation for a disability which an employee has not notified it about.”

Conclusion

The takeaway for employees seeking a reasonable accommodation from their employer is to ensure that the employer is fully aware of any disability they suffer and what steps are required to accommodate that disability. The WRC and Labour Court will not permit an employee to progress a complaint under the employment equality legislation if they cannot demonstrate they have informed their employer of that disability.

The takeaway for employers is to ensure that if an employee presents with a disability, all options are considered with respect to accommodating that employee.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Compensation for Unfair Dismissal: Mitigation of Loss

Fri, 05 Jan 2024 10:43:42 GMT

Compensation for Unfair Dismissal: Mitigation of Loss

Background

The case of Noel Baron v Orbit Security Limited (ADJ00032287) examines the circumstances under which redress will be awarded where an employee fails to demonstrate they took sufficient efforts to mitigate their losses.

Mr Baron (the Complainant) brought a complaint under Section 8 of the Unfair Dismissals Act, 1977 against Orbit Security Limited (the Respondent) to the Workplace Relations Commission (WRC), alleging that he had been unfairly dismissed without due process or fair procedure, ostensibly due to redundancy.

Legislation and Case Law

Although the complaint was primarily grounded in Section 8 of the Unfair Dismissals Act, 1977 which assumes that an employer will be in a position to explain any reasons why an employee was terminated, this case focused on Section 7 of that Act which sets out the various factors to be considered in making of compensation.

It provides for an Adjudication Officer (and the Labour Court) to consider such redress as is considered appropriate ‘having regard to all the circumstances.’

The requirement to have regard to all the circumstances is repeated in Section 7(1)(c) in relation to the assessment of what will constitute ‘just and equitable’ compensation.

How ‘all the circumstances’ is to be assessed may be gleaned from reading Sections 7 (2) (a) to (f) and these six itemised criteria include the conduct of the employer (including their compliance with fair procedure), and the conduct of the employee and their contribution (if any) to the dismissal.

Section 2(c) deals with the requirement placed on the complainant to make efforts to mitigate his loss in assessing the level of compensation.

The complainant gave evidence of his attempts at mitigation. While he made some effort to do so he pointed out that his former employer had something of a monopoly on security jobs in the area and the pandemic was still a factor.

Of course, efforts at mitigation should not be confined to seeking jobs in the complainant’s traditional area of employment (and, in his evidence he did mention applying for a job as a driver). These efforts were insufficient, and the Adjudication Officer factored them into his award.

Nonetheless, in measuring the weight to be attached to all of these various components of the termination in Section 7 of the Act, the requirement placed by the statute on an Adjudication Officer to have regard to ‘all the circumstances’ provides an overarching framework and is required to be taken seriously.

Decision

Ultimately, the Adjudication Officer decided that:

“ … the treatment of the complainant and the manner of the termination of his employment was deplorable and was compounded by a total disregard for his constitutional rights to a fair procedure. This stands out as the most significant of those circumstances required to be evaluated by the statute and is a particular breach of Section7 (2) (d) and (e).

Therefore, in assessing ‘all the circumstances’ as required by the Act, the inadequacy of any efforts by the complainant to mitigate his loss must be properly weighed in the context of the full requirements of Section 7.

There is nothing in the Act to suggest that the significance of an employee’s failure to mitigate should be elevated beyond any of the other five criteria set out there. Indeed, given that three of the five relate to the employer’s conduct and conduct of the termination process, a contrary case could be made, and on the facts of this case it would succeed.”

The Adjudication Officer assessed the total loss of earnings on the part of the Complainant as €19,080 but reduced this amount by 50% to take into account the inadequacy of his mitigation, bringing the sum under assessment to €10,000.

Takeaway

The takeaway for employees considering bringing a complaint under Section 8 of the Unfair Dismissals Act, 1977 is to be in a position to show that the steps taken by them, subsequent to the termination of their employment, could be considered reasonable and earnest to avoid any diminution in compensation awarded.

The takeaway for employers, it will be necessary to demonstrate that the manner in which the termination was effected was a reasonable one to ensure that the act of termination itself is not seen as being so unjust as to deserve compensation beyond the mitigated losses.

Furthermore, an employer defending a complaint under the Unfair Dismissals Act, 1977 should challenge any efforts made by the former employee to secure alternative employment.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Complaints to Workplace Relations Commission

Thu, 04 Jan 2024 12:54:18 GMT

Complaints to Workplace Relations Commission

Introduction

In this article, I provide a summary of the process of filing a complaint with the Workplace Relations Commission (WRC) through to the conduct of a hearing and issuing of a decision.

Filing a Complaint to the WRC

If someone feels that there has been a violation of employment or equality laws, or if they have a specific grievance under industrial relations laws, they may file a complaint or refer a disagreement to the WRC. The Workplace Relations Complaint Form (Complaint Form) should be used to file a complaint.

The Complaint Form needs to be carefully completed, with the employer or respondent's name and address as well as all pertinent areas completed. Ensuring that the employer or respondent's legal name is written accurately on the Complaint Form is crucial.

A copy of the Complaint Form and any other materials received will be forwarded to the respondent in the event that a complaint is filed with the WRC (limited exclusions may apply to complaints requiring an inspection). It is imperative to furnish the accurate postal address of the respondent, such as the registered address of an organisation. It is critical that the complaint maintains up-to-date contact information with the WRC, including email and physical address.

A party runs the risk of missing crucial paperwork being delivered to them, like the hearing date, if they fail to notify the WRC of changes to their contact information.

Pre-filing Requirements

Please be aware that before filing a complaint, potential complainants must provide notice to the respondent under a number of the Acts the WRC oversees. The Equal Status Act4, for instance, mandates that a complainant give notice to the service provider before filing a complaint.

Furthermore, before bringing a dispute, the employee must request a statement of earnings from the employer under the National Minimum Wage Act. It is recommended that complainants finish these preliminary procedures and include the completed paperwork with their complaint.

Date of Filing WRC Complaint

According to the Workplace Relations Act of 2015, a complaint or disagreement needs to be reported within six months of the alleged legal infraction. The Unfair Dismissals Act, the Employment Equality Act, and the Equal Status Act all have comparable time constraints. Regarding Redundancy Payment Act complaints, a lengthier time frame is applicable.

The day a complaint or dispute is received by the WRC is the same as the date it is referred. If a complaint is not referred within the allotted period, an adjudication officer may grant an extension, up to a maximum of twelve months, if the Adjudication Officer determines that the complainant has provided "reasonable cause" for the delay.

The time period cannot be extended by an Adjudication Officer beyond 12 months following the most recent claimed violation (24 months in the case of a Redundancy Payments complaint). The Adjudication Officer alone has the authority to decide whether to extend time. If a complainant requests a longer period of time, they must include all necessary supporting documentation and a thorough justification for their request. If a complainant is using deception to establish a date of violation, they must include all pertinent information.

In order to facilitate the WRC's more effective operation, the WRC invites parties to grant permission for documents to be served electronically.

Mediation of WRC Complaint

In some circumstances, the complaint could be forwarded to the Mediation Service in an effort to support and assist both parties in using mediation as a means of resolving conflicts. It is recommended that parties use this alternate dispute resolution procedure. The complaint will be sent to an adjudication officer for hearing if one or both parties refuse to participate in early resolution or mediation, or if attempts at resolution prove fruitless.

Submission of WRC Complaint Statement or Supporting Documents

It is crucial that all supporting paperwork be submitted by both parties as soon as possible and no later than 15 working days prior to the hearing date. In compliance with fair processes, this gives the Adjudication Officer enough time to be ready for the hearing and gives the parties enough time to review any supporting documentation and arguments that were presented before the hearing. The other party requests copies of the parties' paperwork. Please be aware that all parties involved in the dispute will receive copies of all submitted materials, including letters sent to the WRC.

A party may not to be permitted to present documents on the day of the hearing or within 15 working days before the hearing date, at the discretion of the adjudication officer. This will guarantee equitable procedures for all involved. Whether or not to accept any evidence provided within 15 working days of the hearing date is solely up to the Adjudication Officer.

If each side can submit a written argument, it would be beneficial. This could consist of an events timeline and a succinct written narrative of the happenings. If the parties have this knowledge, they may refer to the pertinent case law or the relevant section of law that they rely on. If there is a claim of discrimination or penalization, you may want to discuss the connection between the alleged discrimination or penalization and the protected act. The adjudication hearing will be focused on matters pertinent to the complaint or disagreement at hand thanks to the case statement.

Conduct of WRC Hearings

The Adjudication Officer is responsible for conducting the hearing and inquiry in a way that is appropriate for the facts of the case, compliant with fair procedures, and advances justice. Except in circumstances where a party can show that a remote hearing would not serve the interests of justice or would violate fair procedures, or until the WRC determines this on its own initiative, all WRC cases are deemed susceptible to remote hearing.

To enable their needs, the parties, representatives, or witnesses should provide as much warning as possible if they have any exceptional requirements (such as the need for an interpreter).

According to Workplace Relations Act 2021, unless the relevant Adjudication Officer determines on their own initiative or in response to a request from a party to the proceedings that the proceedings should be conducted in private due to the existence of "special circumstances," all WRC hearings involving the administration of justice—that is, all WRC cases other than those for disputes under Section 13 Industrial Relations Act 1969—will be held in public. "Special circumstances" might include, for instance, situations in which one of the parties has a medical condition or disability that they would prefer to keep private, cases involving sensitive subjects like sexual harassment, cases involving protected disclosures, or situations in which there is a possibility that a party could be harmed if the hearing is held in public or if the parties are mentioned in the ruling.

Parties may express their opinions prior to the hearing, but the adjudication officer will often make these choices at the hearing. The public may be allowed to attend the hearing if it has been determined that the matter will be heard in public. To aid applications from the parties at the hearing, WRC case lists are still released every week with only case reference details. The public will not be allowed entry if the adjudication officer determines that the hearing should take place in private.

Ensuring that all pertinent information is supplied to the WRC ahead of the hearing and that all witnesses are available on the day of the hearing is the duty of the parties and their representatives.

The parties involved and any present witnesses may be questioned by the Adjudication Officer. Each side will have the chance to present evidence, summon witnesses, cross-examine the other party and any witnesses, reply, and raise any pertinent legal issues. Typically, witnesses are permitted to attend the court; however, this is contingent upon the specifics of the case and the available physical or virtual space.

Considering fair processes, arrangements that will best promote accurate and effective testimony, the orderly conduct of the hearing, and the hearing room/virtual platform's capacity, the adjudication officer will determine what is appropriate.

Issuing a WRC Decision and Appeal to the Labour Court

The Adjudication Officer will draft a written decision on the case after the hearing. This will include a resolution or suggestion about every grievance or disagreement. The parties will receive this. Additionally, the verdict will be posted on the WRC website.

Within 42 days of the decision's date, either party may file a written appeal with the Labour Court (decisions made under the ESA must be appealed to the Circuit Court within 42 days of the decision's date).

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Deviation from Company Policy

Thu, 04 Jan 2024 10:12:45 GMT

Deviation from Company Policy

Background

The case of a Health Support Worker v a Healthcare Organisation (IRSC0000049) examines the circumstances when an employer deviates from its own internal policies and procedures.

The Health Support Worker (the Complainant) brought a complaint under Section 13 of the Industrial Relations Act, 1969 against a Healthcare Organisation (the Respondent) to the Workplace Relations Commission (WRC), alleging that a disciplinary process adopted by the employer was fundamentally unfair towards her.

In denying this allegation, the Respondent submitted that the process was conducted in accordance with all of the Complainant’s natural and contractual rights and that the sanction subsequently imposed was proportionate to the wrongdoing alleged.

In summary, the Complainant alleged that the Respondent did not allow her to have sight of the terms of reference at the outset of an investigation and that the Respondent did not engage in a preliminary screening of the allegation upon receipt, as required in the company’s own documentation.

Ultimately, the Adjudication Officer decided that, while the Respondent had suggested that an investigation followed the principles of natural justice, there was a deviation from the company’s own policies and procedures.

The Adjudication Officer determined that: “the position here is relatively simple – if the Employer has set out policy, they are required to follow the same. While the Employer has suggested that the investigation followed the principles of natural justice in all other respects, this does not mean that they can simply abandon the parts of their policy that they deem overly onerous and time consuming.”

The Adjudication Officer went on to note that, as the parties were no longer enjoying a working relationship, he recommended that the Respondent pay the Complainant the sum of €2,000 in compensation in finalisation of the dispute.

Takeaway

The takeaway for employees considering bringing a complaint under Section 13 of the Industrial Relations Act, 1969 is to ensure that the outcome requested is achievable. The Industrial Relations Act only permits an Adjudication Officer to make a recommendation only.

For employers, it will be necessary to demonstrate that, in any investigation or disciplinary process, they can demonstrate that they adhere to their own internal procedures.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

When are Wages 'Properly Payable'?

Wed, 03 Jan 2024 09:57:17 GMT

When are Wages Properly Payable

Background

The case of Maureen Power v Garryowen Community Development Project (ADJ00045719) examines the circumstances under which wages will be properly payable by an employer to an employee.

Ms Power (the Complainant) brought a complaint under Section 6 of the Payment of Wages Act, 1991 against Garryowen Community Development Project (the Respondent) to the Workplace Relations Commission (WRC), alleging that she was not provided with sufficient work during the period of her employment with the Respondent but, nonetheless, should have been paid for that work, given her availability.

Legislation and Case Law

The complaint was primarily grounded in Section 5(6) of the Payment of Wages Act addresses the circumstances in which wages ‘properly payable’ wages are not paid:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

Decision

Ultimately, the Adjudication Officer decided that as the Complainant had not worked the requisite hours in contention, the employer was under no obligation to make any payment to her.

The Adjudication Officer determined that “i is apparent therefore that, if I find that wages that were “properly payable” to the complainant were not paid, I must conclude that there has been a deduction from her wages. Section 5(1) of the Act provides that, apart from tax, PRSI and USC, unless there is a provision in an employee’s contract of employment to deduct wages, without the employee’s written consent, a deduction may not be made.

Every contract of employment is based on an agreement by an employee to attend work and to carry out work, in return for an agreed sum in wages. While she was not at work, the complainant’s wages were not properly payable, meaning that she had no legal or contractual entitlement to wages. As this condition of being “properly payable” has not been met, it follows that there was no deduction from wages which were not due.”

Takeaway

The takeaway for employees considering bringing a complaint under the Payment of Wages Act, 1991 is to determine how they can demonstrate that an amount owed to them was properly payable to them by virtue of the contract of employment, a relative legislative provision and / or works carried out.

For employers, it will be necessary to demonstrate that any payment in contention was either properly paid or no debt legally arose.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Rest Periods under the Organisation of Working Time Act, 1997

Wed, 03 Jan 2024 09:51:21 GMT

Rest Periods under the Organisation of Working Time Act, 1997

Background

The case of Ana Oliveira v B. Gallagher Limited trading as the Station House Hotel (ADJ00040797) examines the circumstances under which an employer will be in breach of the Organisation of Working Time Act, 1997, if an employee is not provided with an eleven hour rest period in every twenty four hours worked.

Ms Oliveira (the Complainant) brought a complaint under Section 27 of the Organisation of Working Time Act, 1997, against the Station House Hotel (the Respondent) to the Workplace Relations Commission (WRC), alleging that, between May 2022 and July 2022, on eight occasions, she was not provided with an eleven hour rest period in every twenty four hours worked. The Complainant alleged that, on each occasion, the Respondent required her to work a late shift, ending at 11 p.m., followed by a morning shift, commencing at 7 a.m. which resulted in her not getting eleven hours of rest within the twenty four hour period.

Legislation and Case Law

The Respondent attempted to defend the claim on a number of grounds:

“The entitlement to a daily rest period - of not less than 11 hours in each period of 24 hours of work - is a right that is set out in section 11 of the Organisation of Working Time Act 1997.

There are however exemptions to this provision.

There is an exemption where there has been a change in shift (as per section 4 of the Organisation of Working Time Act 1997 which provides

“…these sections (including section 11) shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to in section 11..” and

There is another exemption from section 11 (under SI 21/1998) where the activity requires the “continuity of production of the provision of services” and includes the activity of tourism. (Schedule para 3 of SI 21/1998).

If an exemption applies on either basis there is no breach if the employee receives compensatory rest as per Regulation 4 of SI 21/1998.”

The Respondent also relied on the Labour Court decision of Marchford Ltd v. Dariusz Olejarz DWT 1180 to support the finding that where there has been a shift change an exemption under section 4 may arise and where equivalent compensatory rest has been provided to the worker, no breach of section 11 occurs.

Decision

Ultimately, the Adjudication Officer decided that the Complainant received compensatory rest for all eight of the section 11 alleged breaches, however, the right to an exemption is not only determined by whether compensatory rest has been provided. The Respondent's right to apply an exemption must first be established.

The Adjudication Officer determined that:

“In respect of a section 4 exemption, I accept that in seven of the eight instances where a continuous rest period of 11 hours was not provided to the Complainant, that seven of those occasions arose from circumstances that were not planned. It is relevant that the employment in question only lasted 3 months and I accept the Respondent’s evidence that during that time, unforeseen challenges did arise and this required the Respondent to change the Complainant’s at the last minute…

I find that the complaint - that the Respondent breached the Complainant’s right to a rest period (as per section 11 of the OWTA) on one occasion namely 11th / 12th May 2022 - to be well founded.

Under section 27 (3) of the OWTA for a breach of section 11 I may make an award of compensation not exceeding 2 years renumeration.

I make an award of compensation to the Complainant for this breach in the sum of €400.00. My reason for this is the fact that even though only one of the eight alleged breaches of section 11 succeeded, an award under section 27 (3) must be at a level which deters future breaches by the Respondent. €400 is a proportionate remedial sum bearing in mind that the Complainant had only started work a week before this breach occurred and this breach was done without any apparent appreciation by the Respondent that they should not have managed their roster in this way.”

Takeaway

The takeaway for employees considering bringing a complaint under Section 27 of the Organisation of Working Time Act, 1997, is to be in a position to demonstrate that they have not been afforded an eleven hour rest period in every twenty four hours worked.

For employers, it will be necessary to demonstrate that they either provided the necessary eleven hour rest break within every twenty four hours worked or that one of the permitted exemptions applied in each and every circumstance.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

Time Limit to Appeal to Labour Court

Wed, 03 Jan 2024 09:43:05 GMT

Time Limit to Appeal to Labour Court

Background

The case of Mr Paul Scales v Euro Parks Ireland Limited (ADJ00028709) examines the circumstances under which the Labour Court will consider an appeal if the appeal has been lodged outside of the requisite timeline.

Mr Scales (the Complainant) brought a complaint under the Protection of Employees, (Temporary Agency Work) Act, 2012 against Euro Parks Ireland Limited (the Respondent) to the Workplace Relations Commission (WRC). He later made an appeal to the Labour Court (determination number AWD221).

Ordinarily the Labour Court requires an appeal to be made to that forum within 42 days from the issuance of a decision from an Adjudication Officer of the WRC.

The Complainant said that Christmas had intervened between the decision of the WRC and his appeal.

Legislation and Case Law

S.44 of the Workplace Relations Act 2015 reads as follows;

(3) Subject tosubsection (4), a notice undersubsection (2)shall be given to the Labour Court not later than 42 days from the date of the decision concerned.

(4) The Labour Court may direct that a notice undersubsection (2)may be given to it after the expiration of the period specified insubsection (3)if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.

The Labour Court addressed the question of the application of its authority to extend the period for the submission of appeals inGaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034)as follows:-

“The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.

The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.”

Decision

Ultimately, the Labour Court decided that there were no exceptional circumstances to permit the extension of time for lodging an appeal. The Labour Court determined that there was nothing exceptional about Christmas. The Labour Court further noted that there was nothing to prevent the submission of an appeal during the Christmas period.

Takeaway

The takeaway for employees considering bringing an appeal to the Labour Court is to ensure that the appeal is filed within 42 days of the date of the decision from the WRC.

For employers, it will be necessary to demonstrate that, if an appeal is made outside of the 42 day period, no exceptional circumstances arise.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.