Author: Terry Gorry

Categories
Unfair Dismissal

Employee paid in lieu of notice-when did employment end for unfair dismissal purposes?

If you are unfairly dismissed and you are paid in lieu of notice when does your employment end? When you have been given the notice and payment, or when the notice period would have expired?

This is of huge significance because if you want to bring a claim for unfair dismissal, for example, you need 12 months’ service in the workplace. What happens if you are fired just short of reaching the 12 months’ service period?

This was the issue in the case of Action Health Enterprises Limited and Michael D’Arcy. D’Arcy brought a claim for unfair dismissal to the WRC and had been awarded €45,000. This decision was appealed to the Labour Court.

The facts

The dates in this case are of vital importance; D’Arcy commenced as an employee on 31st January 2017 and was dismissed on 30th November 2017. Even though he had a 3 month notice period entitlement in his contract of employment he was given a letter telling him that he was being paid for the 3 months but his employment ended immediately.

He received the payment on 17th December 2017 after his solicitor had sent a letter seeking payment. His contract had provided

Termination with Notice:

“… employment may be terminated at any time by either you or the Partnership giving the other party at least three months ‘prior written notice, or statutory notice, if greater.”

“Where notice of termination of our employment is given, whether by you or the Partnership, the Partnership will have the right to:

Pay you in lieu of notice the amount of your entitlement to basic salary in respect of all or part of such notice period;”

Action Health Enterprises Limited appealed the WRC decision to the Labour Court on the basis that D’Arcy did not have the necessary 12 months’ service to bring an unfair dismissal claim.

Action Health argued that the employment ended on the giving of notice and brought the employment to an immediate end by exercising its contractual right to pay him in lieu of notice.

He argued that the Minimum Notice and Terms of Employment Act 1973 does not prevent the parties agreeing to accept payment in lieu of notice and, accordingly, the date of termination was 30th November 2017. If this was accepted then D’Arcy did not have the 12 months’ service to bring the unfair dismissal claim.

It was also argued that even if no notice was given to the employee the earliest date of termination would be the date that complied with the provisions of the Minimum Notice and Terms of Employment Act 1973. This would be 1 week later giving a date of dismissal of 7th December 2017 which would have been insufficient for the employee to bring the claim.

The argument was that there is nothing in the Minimum Notice and Terms of Employment Act 1973 or in the Unfair Dismissals Act 1977 preventing an employee from agreeing to pay in lieu of notice.

Sections of “Dismissal Law in Ireland” by Mary Redmond were advanced by the employer’s legal representative:

“If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms. If there is no right to give pay in lieu of notice in the contract the EAT will treat the case as a no notice one and will add on the contractual or statutory notice whichever is the greater”.

As an aside, it is worth noting that the only circumstances in which the legislature saw fit to provide that notice should be automatically added onto service was for the purpose of calculating the amount of a redundancy payment.

Section 7 Minimum Notice and Terms of Employment Act, 1973 states:

7.—(1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.

(2) In any case where an employee accepts payment in lieu of notice, the date of termination of that person’s employment shall, for the purposes of the Act of 1967, be deemed to be the date on which notice, if given, would have expired.

D’Arcy’s legal team argued that the contractual notice provision supersedes the Complainant’s entitlement under the 1973 Act, therefore, the Complainant was entitled to three months’ notice of termination. They argued that the date of dismissal for the purpose of the Unfair Dismissals Act 1977 includes the notice period, whether worked or not.

They relied on Redmond on Dismissal Law which states:

“the Unfair Dismissals Act, as amended, deems the date of dismissal to be the date on which notice, had it been given, would have expired. In practice, this can mean there is a crucial distinction between the employee‘s date of termination (when he or she ceased to be an employee pursuant to the contract of employment,) and his or her, date of dismissal (the date that is reckonable for the purposes of establishing the length of services qualification and the time limit rules under the Unfair Dismissal legislation)”.

In other words even where the parties agree to contractually bring the contract to an end the parties cannot override the statutory provisions of  the Unfair Dismissals Act 1977 concerning the date of dismissal.

Labour Court Decision

The Labour Court had to decide whether the date of dismissal for the purpose of the Unfair Dismissals Act 1977 was 30th November 2017 or 3 months later when the notice period would have ended. If it was 30th November 2017 he did not have the necessary service to bring the claim; if 3 months’ later he did have the necessary service.

Firstly, the Labour Court recognised that this was a complex issue and was not “definitively settled”.

Secondly, they held that the employee could waive his right to notice in accordance with the 1973 act as follows:

“Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice”.

It noted that when he was dismissed he did not receive any pay in lieu of notice. He only received it when his solicitor wrote to the employer seeking it.

This action, the Labour Court held, approbated or approved the contract because he sought the payment pursuant to the term of the contract which referred to terminating the contract without notice and the employee accepting payment in lieu.

The Labour Court held that the date of dismissal is 30th November 2017 as that was the date the employment came to an end in accordance with his contract of employment. That being the case he did not have the necessary locus standi to bring the unfair dismissal claim under the Unfair Dismissals act 1977.

The Labour Court overturned the WRC decision. Read the full decision here.

Categories
Industrial Relations

High Court Strikes Down Sectoral Employment Orders and Chapter 3 Industrial Relations (Amendment) Act 2015 is Unconstitutional

The legislation, which confers on the Minister the right to make a sectoral employment order, has been held to be invalid by the High Court.

This finding arose in a case brought by the National Electrical Contractors of Ireland against the Labour Court and others (Náisiúnta Leictreach Contraitheoir Eireann -v- The Labour Court, The Minister for Business Enterprise and Innovation, Ireland, the Attorney General [2020] IEHC 303) which challenged a sectoral employment order made by the Minister.

The legislation which purported to give the power to the Minister is contained in Chapter 3 of the Industrial Relations (Amendment) Act 2015.

This act made it a condition precedent that the Labour Court must firstly have complied with the requirements of Chapter 3 of the Act.

The High Court held that the Minister erred in so finding because the report submitted to the Minister by the Labour Court was deficient on a number of heads, including:

  1. The report failed to record the conclusions of the Labour Court on important matters
  2. The report failed to set out a fair and accurate summary of the submissions made by interested parties who were against the making of the sectoral employment order.

The National Electrical Contractors of Ireland had made submissions concerning various matters prior to the making of the sectoral employment order. The High Court held that the Labour Court had failed to engage with them in the statutory report.

Mr Justice Simons held that the Minister should have refused to make the sectoral employment order as a consequence of the deficient report. The Minister acted “ultra vires”, therefore.

Even though the Court did not have to concern itself with the constitutionality of the legislation per se the parties in this judicial review agreed that the Court could go ahead and do so to resolve the issue one way or the other.

The Court held that the offending legislation, Industrial Relations (Amendment) Act 2015 did not contain sufficient policies and principles to guide the Minister in exercising discretion regarding such employment orders.

The Court noted that the making of such orders had important ramifications from the perspective of i) promoting fair competition and ii) ensuring appropriate terms and conditions for workers.

Mr Justice Simons held that the making of these significant policy decisions were “abdicated” to the Minister and involved the “standard-less delegation of law making to the Minister”.  This is unconstitutional by reference to article 15.2.1 of Bunreacht na hEireann which states:

° The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

The High Court held, accordingly, that Chapter 3 of the Industrial  Relations  (Amendment)  Act  2015 is invalid and is to be struck down. It follows that the Sectoral Employment Order (Electrical Contracting Sector) 2019 (SI 251 of 2019) is invalid and must fall with the parent legislation.

It follows that all other sectoral employment orders (construction and mechanical engineering) are also invalid.

Read the full decision in Náisiúnta Leictreach Contraitheoir Eireann -v- The Labour Court & ors [2020] IEHC 303.

Categories
Employment Claims

3 frequent mistakes employees make regarding their rights in the workplace

Are you an employee? Have you a problem or issue regarding your employment?

I receive a large number of queries from employees every day of every week and I notice the same sort of mistake being repeatedly made from employees at all levels of an organisation. These mistakes are understandable, but avoidable, and in this piece I will identify 3 such mistakes.

1.Failing to distinguish between a grievance and a breach of a legal entitlement

The rights of employees derive primarily from the constitution (Bunreacht na hÉireann), statutes on the statute book-for example, the Unfair Dismissals Act 1977-and the contract of employment between employer and employee.

If you cannot place your issue firmly and unequivocally into one of these 3 categories then the only route open to you may be to make a grievance internally in accordance with the grievance procedures in the workplace.

This may or may not produce a satisfactory outcome for you and there are other factors to consider, also. For example, your grievance may not be upheld and your relationship with the employer or a colleague may be degraded.

So, it is vitally important that you know whether you have a real remedy open to you or you may choose to fight a different battle on another day.

I have written articles about this topic previously, including this one: Have you a genuine employment case or merely a grievance? Answer these 4 questions

2. Mistaking occupational stress with actionable workplace stress

There is a gulf of difference between ordinary occupational stress and the type of stress that causes a psychiatric/psychological injury and leave the employer open to a negligence claim for damages arising from the injury.

The Courts have repeatedly held that occupational stress is normal and acceptable. Work is not play or recreation and there is bound to be a certain amount of stress involved. This is not enough to allow you bring a claim which might succeed and it can be easy for the employee to misunderstand this.

For example, I have had employees complaining to me about the stress arising from a workplace investigation or disciplinary process. I have to explain that I recognise it is certainly a stressful time but the employer has an obligation to investigate certain matters in the workplace-for example, allegations of bullying or sexual harassment or theft or gross misconduct in the workplace.

Sometimes, it is tempting to point out to an employee, “dude, you are accused of stealing €19,500 worth of stock/sexual harassment/bulling/discrimination/misconduct-of course the employer is going to investigate and, yes, of course it is stressful, but you cannot sue him for the stress”.

But no matter how tempting I have to calmly and patiently explain the difference between ordinary occupational stress and actionable stress that is so great that the employee’s mind has been overwhelmed and has suffered a breakdown.

Read more about  Occupational Stress and Actionable Workplace Stress-the Crucial Difference here.

3. Believing the contract of employment can only be interpreted literally

It is undoubtedly true that the contract of employment can only be changed with the consent of both parties, including the employee. This does not mean, however, that certain work practices cannot be changed by the employer, and such changes may not be contractual changes.

Also, there are certain terms implied into every contract of employment, even though they may not be express terms set out in the contract document itself. Some employees fall into the mistake of interpreting their contract in an extremely literal way and refusing to adapt themselves to changing circumstances in the workplace. This can lead to difficulties and tensions between employer and employee.

Conclusion

The three mistakes I discuss above are easy ones to make, especially for any employee who does not have frequent interaction with the law in general or employment law in particular. This is why it is a good idea to get some professional advice before you embark on a dispute with your employer, and why clarity is such a vital prize to seek.

If you don’t you may be picking a battle that you cannot win, or you might win but lose the war, so to speak.

Categories
Health and Safety

Working from Home-Employment Law Issues to Consider

Working from home as a consequence of the Covid 19 pandemic has led to unanticipated areas of concern from an employment law perspective. The two principal areas giving rise to concern are to do with:

  1. Health and safety
  2. Data privacy/GDPR

The two statutory bodies in Ireland with responsibility for health and safety and data protection-the Health and Safety Authority and the office of the Data Protection Commissioner-have published useful guidance in this area.

Let’s take a look, shall we?

Safety, Health and Welfare at Work Act 2005

Generally, the employer’s duties regarding the employee’s workspace continues in force as set out in the Safety, Health and Welfare at Work Act 2005. These duties include ensuring the safety, health and welfare of employees, the provision of safe systems of work, safe equipment, risk assessments, and information/instruction regarding health and safety.

The employee has duties, also, and must cooperate with the employer, follow instructions and procedures, protect themselves as well as possible and report any injury without delay.

Regarding home working the responsibility for health and safety remains with the employer and he must ensure there is a suitable workspace and equipment and a means of contacting the employer.

Equipment already used in the workplace can be used for home working, provided it is in good condition and suitable. The employer must check with the employee that the workspace is satisfactory and that there is adequate light, heat, ventilation, sufficient space, free of clutter, and so on.

There are further considerations to be taken into account when the employee is a vulnerable worker or has a disability or is pregnant-that is, the employee is in a sensitive risk group and there are further guidelines on the HSA website (see link below).

When employees are using computers and digital technology the employer should consider doing an ergonomic assessment of the workspace. This could involve the use of a questionnaire from the employer to employee in the first instance and then an ergonomic risk assessment depending on the results of the questionnaire.

Employers should also consider regular contact with employees, arranging IT support if necessary, regular communication and feedback and contact details are up to date and there are agreed means of contact. The psychological aspects of working from home and perhaps a sense of isolation cannot be overlooked and the employer should maintain regular contact with the employee.

The employee, too, has responsibilities for her own safety and must cooperate with the employer and keep in regular contact, agree the work to be done, and identify the equipment you need to set up a safe work station at home.

The employee must ensure that she has adequate ventilation, heat, light and maintains a clutter free environment. The equipment the employee will need should be identified including stationery, phone headset, mobile phone, laptop, and so on.

It is most important for the employee to keep in regular contact with the employer as it is in the interests of both employer and employee.

This page on the HSE website is helpful in this regard.

Data privacy and protection

The Data Protection Commission has issue guidelines regarding working from home.

Devices

The safeguarding of devices, effective access controls, keeping the device locked up when not in use, ensuring devices have necessary updates, and fast reporting arrangements if a device is lost or stolen are areas to be looked at.

The usual precaution concerning the use of emails and ensuring you use work related emails for work emails is advised, along with ensuring you follow the employer’s applicable policies concerning email and internet access.

Employees need to be careful about accessing to cloud services and/or the employment network of the workplace, the use of logins being hacked/compromised, and so on.

GDPR relates to all records concerning personal data, including electronic and paper records. Therefore you need to be prudent and cautious about the secure storage and maintenance of paper records, especially records with personal data such as health data.Guidance from the Office of the Data Protection Commission can be found on this page

Categories
Data Protection

The Use of CCTV in Disciplinary Hearings in the Workplace-Interesting High Court Decision (February 2020)

The conflict of rights in the workplace between employer and employee concerning the use of cctv in the workplace, and its use in disciplinary processes, was dealt with by the High Court in February 2020. The case was Doolin v The Data Protection Commissioner [2020] IEHC 90 and it was an appeal from the Circuit Court where Doolin, the employee, had lost.

The purpose of CCTV gathering in this workplace was for “security purposes”. On that basis Doolin argued that the employer could not use that CCTV footage in a disciplinary process.

Generally, the use of CCTV in the workplace must be “necessary and proportionate”. This means it should only be used for the stated purposes, unless it has been made clear at the outset that the gathering of the cctv data may be used for these other purposes-for example investigating offences or prosecuting offenders or disciplinary procedures.

The Grand Chamber of the European Court of Human Rights has held that the use of covert surveillance in the workplace may be justified if reasonable suspicion of serious misconduct has occurred. You can read a blog post here about Lopez Ribalda and others v Spain.

The key takeaways from that case are

  1. The employee’s right to privacy in the workplace is not absolute
  2. The employer’s action must be viewed in the light of the specific facts of the case and whether the steps taken by the employer were in pursuit of a legitimate aim and were necessary and proportionate.

Doolin v The Data Protection Commissioner [2020] IEHC 90

Doolin had been disciplined in the workplace arising from the taking of unauthorised breaks in the workplace. These had become apparent when the employer had found threatening graffiti in Our Lady’s Hospice and Care Service in Harolds Cross and had been advised by an Gardai to monitor who had access to the room in question.

This was how the question of unauthorised breaks by Doolin arose.

Doolin complained to the Office of Data Protection Commission about the use of CCTV in the disciplinary process and the unlawful use of his personal data.

The Data Protection Commissioner held that the purpose of gathering the CCTV was advised in advance as “for the purpose of health and safety and crime prevention”. Because the original viewing of the CCTV was for a security purpose-that is, to try to find out who was posting the graffiti-the subsequent viewing of the data for the disciplinary process against Doolin was not for a different purpose.

Doolin appealed this decision to the Circuit Court who upheld the decision of the Data Protection Commissioner. Doolin then appealed to the High Court.

The High Court agreed with Doolin insofar as it held that if the employer had intended to use CCTV in disciplinary proceedings in the workplace it should have made this clear in its data protection policy. It changed its policy in later years to reflect this but this was not the case at the time Doolin was disciplined.

The High Court held that the Circuit Court and the Data Protection Commissioner were incorrect in finding that no further processing of the data had occurred in the disciplinary process.

Interestingly, it found that if the data protection policy had reflected, as it later did, that cctv could be used for “for the purpose of a disciplinary investigation” it would have been acceptable to discipline Doolin with the assistance of the cctv; but that was not the case when Doolin was subjected to the disciplinary.

The High Court held, inter alia,

I am therefore overturning the decision of the Circuit Court on the basis that there was no evidence for the conclusion that the disciplinary action, in which information derived from the CCTV footage was used, was carried out for security purposes.

The High Court also concluded,

The information used by the Panel to arrive at their conclusion that the Applicant had taken unauthorised breaks derived inter alia from both the CCTV footage and fob access records. Accordingly, it is indisputable that the information contained in the CCTV footage was used for the disciplinary proceedings, which use constituted a different purpose from the one for which the data was originally collected. The fact that it was not downloaded for use does not mean no further processing took place.

Conclusion

For the reasons set out in the Decision,

I: (a) allow the appeal against the decision of the Circuit Court on the basis that there was no evidence for the conclusion that the use of the CCTV footage or material derived from it in the disciplinary hearing was for security purposes;

 (b)  conclude that the DPC made an error of law in holding that no further processing took place as this conclusion was founded upon an incorrect interpretation of “processing” having regard to the terms of s.2(1)(c)(ii). 

64. Having regard to the above, I uphold the appeal and set aside the conclusions of the DPC in the Decision to the effect that no contravention of s.2(1)(c)(ii) occurred. 

65. I am conscious that s.26 simply provides for an appeal to the High Court on a point of law but does not prescribe what should happen in the event of a successful appeal. I therefore propose to hear the parties on the form of Order, including whether the matter should be remitted to the DPC. [Note: At a costs hearing on 25 February 2020, the parties indicated that no remittal should be made to the DPC and an Order was made in the terms of paragraph 63 above].

Read the full decision in Cormac Doolin and The Data Protection Commissioner and Our Lady’s Hospice and Care Services 2019/2011CA.