Employment Review - Highlights of 2019

The Superior Courts delivered a number of judgments in 2019, which provide important guidance for employers. We discuss these judgments and a number of notable legislative developments below.

Legal Representation - An Exceptional Right

Barry McKelvey v Iarnród Éireann/Irish Rail

In November the Supreme Court confirmed that employees are only entitled to legal representation in an internal disciplinary process in exceptional circumstances.

The Supreme Court found that the ultimate issue, which a court has to determine in a case such as this, is whether disciplinary proceedings continuing without legal representation would amount to unfair proceedings and be in breach of the implied term as to fairness. Clarke CJ stated that it follows that such a breach could only be established where it could be shown that legal representation is "necessary" to ensure a fair process.

The Supreme Court endorsed the principles established in Burns and Hartigan v Governor of Castlerea Prison [2009] and was satisfied that “the observation…that legal representation will only be required as a matter of fairness in exceptional cases provides overall guidance to the proper approach”.

The Supreme Court also considered the stage at which it may be appropriate for a court to intervene in a disciplinary process. Clarke CJ referred to the Supreme Court decision in Rowland v An Post [2017]. He found that the basic principle identified in that case was that "courts should be reluctant to intervene while a disciplinary process is ongoing but rather should wait until the process has come to an end and then decide whether the result of that process is sustainable in law.”

Clarke CJ acknowledged that this case concerned an allegation of theft and that the disciplinary process could result in dismissal. However, he found that, while this was certainly a factor to be considered, it did not, of itself, demonstrate that legal representation was necessitated. He held that the allegation against Mr McKelvey was relatively straightforward and that he could not see anything in the allegations, the evidence or the procedures to be followed which would "place these disciplinary proceedings beyond the competence of an experienced trade union official".

This is a helpful judgment for employers, particularly following the uncertainty caused by the 2017 Lyons case in which the High Court held that employees who were facing potential dismissal or reputational damage were entitled to legal representation at all stages of the investigation process. While the McKelvey case now confirms that an entitlement to legal representation in an internal disciplinary process will only arise in exceptional circumstances, employers should assess carefully each situation based on its own facts in order to decide whether or not such exceptional circumstances exist.

Maria Daly v Nano Nagle School

The Supreme Court examined the extent of the obligation on employers, under Irish employment equality legislation, to put in place “appropriate measures” to reasonably accommodate employees with a disability.

The Supreme Court rejected the Court of Appeal’s distinction between “tasks” and “duties” when interpreting the legislation. The Court of Appeal had held that an employer was only obliged to consider a distribution of certain tasks and not the removal or redistribution of duties. The Supreme Court disagreed. It held that employers are required to consider all appropriate measures which might be taken to provide reasonable accommodation. If no such measures were taken, the Supreme Court held that employers would be required to show that this was because those measures would impose a disproportionate burden. The Court held the relevant test to be one of "reasonableness and proportionality" and that "an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee.” Furthermore, it was held that removing all duties which a disabled employee is unable to perform would be likely to impose a disproportionate burden.

The Court of Appeal’s decision in this case seemed to limit the obligation on employers to consult with the employee where it was clear that the employee could not fulfil the functions of the role. However, the Supreme Court, while not holding that there is a mandatory duty to consult in all cases, noted “in this State…our courts have always attached importance to fair procedures where employment is at stake" and that "a wise employer would provide meaningful participation in vindication of their duty under the Act".

This decision makes clear that, when considering the appropriate measures to be taken to reasonably accommodate a disabled employee, employers should consider the redistribution of the employee's duties. In addition, employers would be well advised to consult with an employee in relation to reasonable accommodation measures. 

Sunday Working – Premium Pay

Trinity Leisure Holdings Limited Trading as Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova

The High Court clarified employers’ obligations in respect of documenting an employee’s entitlement to a Sunday premium. This case involved claims by the respondents to the Workplace Relations Commission (“WRC”) that their employer had failed to pay them a premium for working on Sundays, in breach of the Organisation of Working Time Act 1997. The Adjudication Officer and subsequently the Labour Court upheld the employees’ claims.

The High Court found that, while an express contractual statement may not always be conclusive, it shifts the burden of proof to an employee who claims that her/his rate of pay does not take account of Sunday work. Further, the High Court found that the Labour Court had erred in law by ignoring the express contractual wording, which stated that the hourly rate of pay included the Sunday premium. The Labour Court also erred by interpreting the legislation so as to impose an obligation on employers to provide a breakdown of employees’ pay in order to identify the element referable to Sunday work.

This is a welcome clarification for employers. However, as the High Court noted, a statement in a contract may not always be conclusive. Employers should, therefore, ensure that they are able to demonstrate clearly that a premium for Sunday work has in fact been factored into their employees' pay.

WRC Procedures - Constitutional Challenge

Tomasz Zalewski v Adjudication Officer (Rosaleen Glackin), the Workplace Relations Commission, Ireland and the Attorney General and Buywise Discount Store Limited

The Supreme Court held that Mr Zalewski has the requisite standing to pursue his challenge in relation to the constitutionality of the following procedures of the WRC:

1.  an Adjudication Officer is not required to have any legal qualification;                            
2. evidence is not heard on oath;
3.  hearings are held in private;
4. there is no penalty for any person who gives false evidence; and
5. the appeals process lies with a body (the Labour Court) which does not require persons to be legally qualified.

Mr Zalewski’s constitutional challenge will now proceed in the High Court.

Parents’ Entitlements – Leave and Benefits

The Parental Leave (Amendment) Act 2019 has increased the period of unpaid parental leave. The increase is staggered, with an increase from 18 weeks to 22 weeks since 1 September 2019 and to 26 weeks from 1 September 2020. The Act also increases the upper age limit for a child in respect of whom parental leave may be taken from 8 to 12 years. 

The Parent’s Leave and Benefit Act 2019 introduced two paid weeks of parent’s leave during the first year of a child's life. This applies to children born after 1 November 2019.  Employees who have the requisite social insurance contributions will be entitled to State benefit during parent’s leave. Employers may supplement the State benefit if they wish.

All Changed, Changed Utterly

The Employment (Miscellaneous Provisions) Act 2018 came into operation on 4 March 2019. In summary, the Act includes the following changes:

1. Employers are required to provide new recruits with five core terms of employment in writing within five days of starting employment;
2. The use of zero-hour contracts is prohibited, except in very limited circumstances. Zero-hours contracts are allowed in respect of work of a casual nature, work done in emergency situations and short-term relief work to cover routine absences;
3. Where an employee is required to be available for work but she/he is not provided with work, the employee is entitled to certain minimum payments; and
4. Where an employee’s contract of employment does not accurately reflect the actual hours worked by the employee, the employee is entitled to make a written request to her/his employer to be placed on a particular band of weekly working hours, which more accurately reflects her/his hours worked. Employers may only refuse to place an employee on the band requested in certain limited circumstances.

Employers who breach the Act may face criminal convictions and complaints by employees to the WRC.

For more information on the above or for general Employment advice, please contact a member of the ByrneWallace Employment Law Team.