In HR Matters, the Arthur Cox Employment Law Group Newsletter, we look at a range of issues across our practice area and some recent and prospective developments in law. In the Newsletter, we highlight some key issues, and address queries that may have arisen for our clients.

Arthur Cox has Ireland's largest dedicated employment and industrial relations law practice, consistently top ranked in the area, with considerable experience in advising on a vast range of complex employment and industrial relations issues for a wide variety of clients at both national and global levels. The Employment Law Group provides an extensive range of legal services to clients on all aspects of national and EU employment law and industrial relations. The group also provides a skilled mediation service.

COSTS OF INTERLOCUTORY INJUNCTION APPLICATION

A recent High Court decision on costs is important given the frequency of applications for interlocutory relief in employment law. In Tekenable Ltd v Morrissey, Ghent and Critical Village Ltd [2012] [1590P] the plaintiff employer sought various interlocutory injunctions. When the matter came before the Court it was informed that the injunction application had been settled, except for the issue of costs, on the terms of an undertaking to be given by the defendants. The Court made the order in the terms sought. It was envisaged that the main proceedings would continue. The employer then sought the costs of the interlocutory application against the defendants, submitting that the undertaking given to the Court was equivalent to a Court order. The defendants contended that no order should be made or alternatively that, at worst, the costs should be reserved to the trial judge.

The High Court, applying the Rules of the Superior Courts and relevant case-law, made an order reserving the costs of the application for the interlocutory injunction, including the costs of the application before the Court, to the trial judge. The judge suggested that parties who compromise such applications give careful consideration to including in their agreement either (a) a provision as to by which of the parties the costs of the application for the interlocutory injunction are to be borne; or (b) a provision that those costs be reserved to the trial judge.

EMPLOYMENT RIGHTS OF UNDOCUMENTED WORKERS

In Hussein v The Labour Court & Younis [2012] IEHC 364 the unwitting effect of the Employment Permits Act 2003 on the employment rights of undocumented workers became apparent. The employee, whose work permit had run out, resigned from his employment and made a series of claims under various employment statutes. The employer strongly disputed them. A Rights Commissioner and the Labour Court upheld the claims. The employee's solicitor wrote on several occasions to his employer seeking payment of the sums awarded in accordance with the Labour Court determination. The employer sought judicial review in the High Court. At the heart of his case was that the employee had no standing to invoke the protection afforded by the employment legislation of the State, since by definition any contract of employment was an illegal one in the absence of an employment permit.

The High Court acknowledged that "in some cases" the court had no alternative but to hold that a contract was rendered substantively illegal by statute. As the key provisions of the Employment Permits Act 2003 prohibited a non-national from being employed without the appropriate employment permit, the judge was "compelled to hold" that the Act created an absolute offence so far as an employee was concerned. Hence, the employee had no effective recourse in respect of the alleged exploitation.

Legislation remedying this is to follow, see below.

SOVEREIGN IMMUNITY AND EMPLOYMENT LAW

In Government of Canada v Employment Appeals Tribunal (1991) the Supreme Court, in an employment law claim by a dismissed Embassy driver, accepted that the doctrine of absolute sovereign immunity no longer existed. However, the Court found that a restricted form of state immunity existed and applied it to the case. The driver was found to be involved in the employing government's public business organisation and interests because of his peculiar position of trust and confidentiality.

The European Court recently affirmed that absolute sovereign immunity no longer applies, in Ahmed Mahamdia v Peoples' Democratic Republic of Algeria Case C-154/11, where the employee at the Algerian Embassy contested his dismissal before the German courts. Algeria argued that as a foreign state it enjoyed immunity from jurisdiction in Germany, where the embassy in question was located.

According to the Court, the case concerned a contract of employment concluded by the embassy where the functions of the employee did not fall within the exercise of public powers. In the exercise of its functions, an embassy, like any other public entity, can acquire rights and obligations of a civil nature, in particular as a result of concluding private law contracts.

The national court in Mahamdi is likely to be influenced by the fact that the employee was a relief driver for the ambassador.

PRIVATE PART-TIME TEACHERS

In Catholic University School v Dooley and Scannell (2010) (the CUS case) the High Court held that a teacher paid by a private secondary school and whose terms and conditions of employment were determined solely by the school could not rely on a teacher in the same school whose remuneration was paid by the Department of Education and Skills and whose terms and conditions were determined by the Minister for Education and Skills for the purpose of a claim under the Protection of Employees (Part-Time Work) Act 2001 (the 2001 Act). The Court held the employer of the comparator must be deemed to be the Department of Education and Skills whereas the College was the employer of the claimant.

The Labour Court recently said it was not open to it to consider any submission that the CUS case was wrongly decided; it was bound by the doctrine of precedent. In Hillside Park Preschool and the Minister for Education and Skills v Anne Boyle DET No PTD 126 the claimant part-time teacher was not included in the National School Teachers' Superannuation Scheme (the scheme) controlled by the Minister for Education and Skills pursuant to the Teachers Superannuation Act 1928, and which provided pension benefits to primary school teachers employed in national schools. The claimant's salary was 98% funded by the Minister. She submitted that by not being afforded the benefits of the scheme she was treated less favourably than a comparable full-time employee, contrary to the 2001 Act.

The Labour Court said that while the CUS decision might appear to be at variance with earlier authorities it was directly in point. On the evidence, the Court determined that the claimant satisfied the 2001 Act's requirements that she and her comparator were engaged on like work. It made an order directing the Minister for Education and Skills to enter the claimant in the National Teachers Superannuation Scheme and to pay her compensation in the amount of €10,000.

VICTIMISATION FOR ALLEGATIONS OF SEXUAL HARASSMENT

The claimant in A female teacher v Board of Management of a Secondary School DEC-E2012-103 alleged, among other things, excessive supervision of her work by the school's principal, sexual harassment by a number of male pupils, and the termination of her contract of employment in response to the allegations.

The Equality Tribunal rejected the complaint of sexual harassment as without independent evidence, from someone else present, of the fact of the impugned words having been uttered, "the Respondent could not proceed to impose a sanction on the alleged perpetrator". Citing the combination of the Dignity in the Workplace policy, and Code of Behaviour for Pupils, the Tribunal concluded that the school had taken such steps as were reasonably practical to prevent the occurrence of sexual harassment.

According to the Tribunal, however, it was clear "that if the Complainant had not made allegations of sexual harassment, her contract would not have been terminated. No witnesses could recall any other case in the school's history of a teacher not being kept on after probation." It declined to grant the claimant's request for reinstatement, as "it would not be in the best interests of all to order reinstatement in view of the obvious breakdown in relations within the school". The claimant was awarded €75,000.

COMPULSORY RETIREMENT AGE

Employers introducing compulsory retirement ages are well advised to ensure they select an upper age limit that mirrors the age at which their employees can benefit from any company pension (or for lower paid employees, the state pension) in order to demonstrate that employees are not unduly prejudiced. Employers should regularly review upper age limits. This is borne out by the decision of the CJEU in Torsten Hörnfeldt v Posten Meddelande AB C-141/11.

The dispute originated in Sweden which had transposed the prohibition of discrimination on the ground of age into national law and introduced a positive 'right to work' until the end of the month in which an employee reached the age of 67. The employee's contract ceased pursuant to the 67-year rule and the collective agreement that governed his individual contract. He argued that as the 67-year rule was not limited by conditions such as pension eligibility, it was precluded by the Equal Treatment Directive (2000/78/EC).

The European Court said that the Directive did not preclude a national provision which allows an employer to terminate an employee's employment contract based solely on the fact that the employee has reached the age of 67.

This only applies if that national measure is objectively and reasonably justified on legitimate grounds in employment and labour market policy. Furthermore, the national provisions must include a reasonable and compulsory instrument to achieve that aim.

We anticipate that compulsory retirements will be a "hot topic" for employers in 2013 with increasing numbers of employees wishing to work beyond age 65 due to their straitened personal financial circumstances. Furthermore, the increase in State pension age from age 65 to 66 and the abolition of the transitional pension from January 2014 will likely serve as a catalyst for employees to request to work beyond normal retirement age or indeed, challenge their employers' entitlement to compulsorily retire them. In the coming weeks, we will be publishing a detailed client update on compulsory retirements, in which we will look at the current state of the law in this area and the very real issues, from an employment and pensions perspective, that will arise when the changes in the State pension age take effect.

IRISH EMPLOYMENT RIGHTS AND INDUSTRIAL RELATIONS REFORMS

In an address at UCD on Sept 28 2012 the Minister for Jobs, Enterprise and Innovation outlined progress in relation to on-going workplace relations reform. He expected the Workplace Relations Bill to be enacted early next year. The legislative programme involves amending 22 pieces of employment legislation, 12 sections in other legislation and 71 statutory instruments.

Other matters touched on by the Minister:

  • Muhammad Younis, above, his Department will be bringing forward proposals to deal with its effect on rights of undocumented workers in certain circumstances in the near future
  • Industrial Relations (Amendment) Act 2012, reviews of the JLCs will be carried out by the Labour Court as soon as practicable
  • New Codes of Practice are being prepared by the LRC on Sunday Working and the standardisation of benefits in the nature of pay, including overtime and how and when it becomes payable, across sectors covered by JLCs

The full text is on www.enterprise.gov.ie

WATCHING BRIEF

Cases coming up

Pension trustees

A HC claim has being taken by members of a defined benefit (DB) scheme who argue that they are owed between €40 million and €50 million in pension contributions that the trustees should have sought from the company which sponsored the scheme. It is contended that the pension scheme had a minimum funding standard deficit of €129 million when the winding up process began in December 2011. The plaintiffs have raised a range of issues including the trustees' alleged failure to exercise their power to require the company to make a contribution to fund the full deficit.

The trustees of another defined benefit pension scheme which was wound up in deficit are facing a HC claim by a scheme member who is challenging the trustees' decision not to consider his application for an ill-health early retirement pension made at a time when the wind-up of the scheme is said to have commenced. The member alleges breach of trust, misrepresentation, breach of warranty, conspiracy and breach of duty in the trustees' administration of the scheme. The scheme was in deficit to the extent that the active and deferred members received no benefits from the scheme on the wind up. The defendants, including the scheme's sponsoring employer, applied for an order to have the plaintiff's proceedings dismissed arguing that the proceedings disclosed no reasonable course of action and were frivolous and vexatious. The Court refused the defendants' application and it seems that the substantive case against the company and the trustees will proceed in 2013.

Comparators for equal pay

Over 7,000 claims have been made by clerical officers in both Garda stations and the civil service arising out of which the High Court referred questions to the Court of Justice of the European Union. The claim alleges that the clerical officers are doing 'like work' to Gardai on civilian duties in stations, but are paid much less. Its key concerns centre on the comparators that can be used (e.g. whether it will suffice to provide justification in respect of the generality of comparator posts) and whether or not industrial relations considerations can be used as objective justification for different pay. A preliminary decision from an Advocate General will first be given.

Bills

Bills planned or in progress include:

  • Competition (Penalties and Sanctions) Bill, to strengthen the effective enforcement of competition law in Ireland
  • Mediation Bill 2012
  • Workplace Relations (Law Reform) Bill 2012, to implement the planned reforms in employment rights and industrial relations bodies, see above
  • Health and Social Care Professionals (Amendment) Bill 2012 to amend the Health and Social Care Professionals Act 2005 in relation to membership of the Health and Social Care Professionals Council and to take account of Directive 2005/36/EC on the recognition of Professional Qualifications
  • National Vetting Bureau (Children and Vulnerable Persons) Bill 2012, to provide a legislative basis for the vetting of persons who seek positions of employment relating to children or vulnerable persons. See further : www.arthurcox.com/whats-new/publications/index.html
  • Human Rights and Equality Commission Bill 2012 to replace the existing Equality Authority and Human Rights Commission with a new amalgamated structure

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.