Contents

  • Redundancy
  • Bullying and harassment
  • Victimisation
  • Civil partnership
  • Transsexualism
  • Criminal Justice Bill 2011
  • Watching Brief: current priorities of Employment Rights & Industrial Relations

Redundancy

The Rights Commissioner and the Labour Court recently expounded the principle that It is normal and accepted practice that, except in the case of a liquidation that leaves an employer with no resources, that an employer in a redundancy situation will pay an additional or ex-gratia payment to a redundant employee in addition to statutory entitlements. The Court reduced the sum awarded the employee from €100,000 to €75,000 inclusive of statutory redundancy entitlements in full and final settlement of her claim: Divine Word Missionaries v A Worker CD/09/350.

In selecting for redundancy an employer will normally draw up a matrix of criteria. A criterion of 'the overall requirements of the business' is unlikely to satisfy the requirement for selection criteria to be sufficiently objective so as to eliminate, if at all possible, decisions being made on a basis which cannot withstand close scrutiny. In a recent case, the EAT repeated that employees must be told the criteria to be applied and be given the opportunity to make representations on their behalf in respect of those criteria: Cronin v R.P.S Group, Tallaght - UD 2348/ 2009.

Bullying and harassment

Employer's vicarious liability for bullying and harassment can arise even where the employer does not know an employee is being bullied. In a recent High Court case the employee teacher successfully claimed before the High Court that the Principal's behaviour towards her had been oppressive and bullying. Herbert J singled out a particularly vicious form of bullying [which] involves isolating the victim in the workplace by influencing others by actual or suggested threats to their own interests and by undermining the victim's standing in the organisation and amongst colleagues by disparaging references. The employer, in the form of the Board of Management, was held vicariously liable for the actions of the principal: Even if the Board of Management did not know, or could not reasonably have known (which was not the situation in the present case) that the plaintiff was being bullied and harassed by [the Principal] in the course of her work, it is still vicariously liable for the wrongful acts of [the Principal] once those wrongful acts were committed by him within the scope of his employment: Bridget Sweeney v The Board of Management of Ballinteer Community School [2011] IEHC 131.

Victimisation

Allegations of victimisation can arise in the course of proceedings. The circumstances in which a complainant can amend or augment an original claim were considered by the High Court in County Louth Vocational Education Committee v The Equality Tribunal [2009] IEHC 370 where, during the course of a hearing before an Equality Officer, a complainant sought to rely on occurrences, which he claimed were acts of discrimination, that had not been referred to in his original claim. The judge rejected the VEC's challenge to the decision of the Equality Officer to consider the new points raised by the complainant: If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. In the VEC case, the complainant was seeking to rely on events which occurred many years before he made his original complaint.

In Department of Foreign Affairs v Patricia Cullen DET No EDA116 the complainant sought to rely on an occurrence which post-dated her complaint. The Labour Court considered whether the claim of victimisation was properly made by way of amendment to the original complaint or whether it was properly admissible as a new complaint. The Court regarded the general principles in the VEC case as applicable and admitted the claim of victimisation. On the evidence, however, the Court did not uphold the complainant. It overturned the Tribunal's award of €20,000 in relation to victimisation. The ruling continues a recent trend in which the Labour Court has overturned a number of Equality Tribunal decisions on victimization and demonstrates the high standard of proof which the Labour Court seeks for these claims.

Civil partnership

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 gives same-sex couples rights and responsibilities comparable to civil marriage. The legislation also provides rights for participants in long-term cohabiting relationships who have not entered into a civil partnership or marriage.

The Civil Partnership Act came into effect on 1 January 2011. A three-month waiting period was required by law for civil ceremonies although exemptions could be sought through the courts for grave reasons. The first publicly celebrated Irish civil partnership under the Act took place on 5 April 2011. Amendments to the tax code are set out in the Finance (No 3) Bill 2011 which allows registered civil partners to receive the same tax treatment as married couples in respect of income tax, stamp duty, capital acquisitions tax, capital gains tax and VAT.

A new ground, 'civil status', has been substituted for 'marital status' in the Employment Equality Act 1998 and the Equal Status Act 2000. Discrimination can be alleged on the ground of 'different civil status'. The 'family status ground' has also been amended. In the definition of 'member of the family' the words 'or civil partner within the meaning of the Civil Partnership Act 2009' have been added. The new Act also provides that a benefit under a pension scheme that is provided for the spouse of a person 'is deemed to provide equally for the civil partner of a person'. The Court of Justice of the European Union recently held that a supplementary retirement pension paid to a partner in a civil partnership, which is lower than that granted in a marriage, may constitute discrimination on grounds of sexual orientation. This is the case if the partnership is reserved to persons of the same gender and if it is in a legal and factual situation comparable to that of marriage: Jürgen Römer v Freie und Hansestadt Hamburg C-147/08. Employers are advised to check employee benefits to ensure no discrimination exists.

Transsexualism

The complainant in Hannon v First Direct Logistics Ltd DEC-E2011-066 was diagnosed with Gender Identity Disorder and was a male to female transsexual. She worked as a man as a business development manager for the employer company for 5 years before she disclosed to management that she was a transsexual. When she arrived in the office as a woman after changing her name by deed poll, she was told she would have to work the phones in her 'male identity' from home, while a new office was set up, and would have to revert to a male identity when meeting clients. Later, the complainant was told there were concerns about her productivity. Eventually she left the company claiming constructive dismissal.

The Equality Officer found that requesting Ms Hannon to switch between a male/female identity whenever the respondent felt the need for it constituted direct discrimination on the gender and disability grounds. She found the complainant was discriminated against on the basis of gender and disability and awarded €35,422.71 plus interest. This was the first case of its kind in Irish law. The Equality Officer spelled out the position for employers: Transsexualism is a recognised medical condition. Transsexualism is treated by a combination of hormone therapy, surgery (in some cases) and 'real life experience', that is, living as a member of the other sex...This also applies to the workplace and it is clear that these Acts impose an obligation on an employer to enable a person with a Gender Identity Disorder to allow, within the confines of said workplace, allowing for health and safety, uniform etc. requirements, to accommodate such 'real life experience'.

There is likely to be a call for legislation here akin to the UK Gender Recognition Act 2004 that gave transsexual people legal recognition as members of the sex appropriate to their gender (male or female), allowing them to acquire a new birth certificate, affording them full recognition of their acquired sex in law for all purposes, including marriage.

Criminal Justice Bill 2011

The main purpose of the Bill, published in May 2011, is to facilitate the more effective investigation of white collar crime and to reduce associated delays. The proposals in the Bill are based on the experiences of those involved in investigations and prosecutions of these types of offences, and in particular on the experiences of those involved in current investigations.

The Bill is targeted at specified serious and complex offences attracting a penalty of at least five years imprisonment, including offences in the areas of banking and finance, company law, money laundering, fraud, corruption, competition, consumer protection, and cybercrime. The Bill breaks new legislative ground in providing for the 24-hour period of detention by gardaí for serious offences to be broken up. At present, there is provision for a break from midnight to 8am but the Bill provides that, for a specified range of white-collar offences, the suspect can be temporarily released after three or four hours, for example, to facilitate further investigation.

Forthcoming Legislation/ Directives

The current priorities of the Employment Rights & Industrial Relations Division of the Department of Jobs, Enterprise and Innovation appear in the redacted version of the 'Department Brief for Minister' April 2011 (pursuant to the Freedom of Information Acts 1997 and 2003):

  • Restoring the National Minimum Wage and addressing inability to pay
  • Reforming the Employment Regulation Orders (EROs) and Registered Employment Agreements (REAs) systems
  • Dealing with legal challenges to Joint Labour Committees (JLCs) and REAs
  • Delivering on commitments re employee representation
  • Addressing Trade Union anti-victimisation issues
  • Possible restoration of published Employment Rights / Industrial Relations Bills
  • Reducing the compliance burden arising from Employment Law
  • Seeking agreement by Social Partners on derogation under Temporary Agency Work Directive
  • Reviewing Employment Permits
  • Streamlining Employment Rights processes (and institutions)

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.