2 Cases That Remind Me Why I Love Being a Solicitor (Most of the Time)

irish solicitor

I have been involved in a couple of cases which were resolved this year, and which reminded me why I love my job and get a great deal of satisfaction in my work from time to time.

Both cases involved employees, both involved High Court legal proceedings, and both were settled with satisfactory outcomes for my clients.

The first one concerned a young man who had suffered a catastrophic psychological/psychiatric breakdown in the workplace. Our case was that the employer was negligent and was liable for the injury he suffered and therefore liable to compensate him for the personal injury and loss of earnings resulting from his subsequent inability to work due to the injury.

Our case was that the employer worked him excessively, placed demands on him which were beyond his capacity, his subsequent personal injury was forseeable and he was entitled to be compensated for this. We also pleaded breach of contract and breach of statutory duty in failing to provide a safe place of work in accordance with health and safety obligations.

In any legal contest it is inevitable that there will be at least two sides to every story and our case was not without its weaknesses. There is seldom a guarantee of success and given the nature of the injury my client had suffered there would always be a concern as to how he would be able to deal with a High Court case, cross-examination, and all the other attendant pressures of going to Court.

There was also other factors to be considered such as the length of time since the injury and the loss of income which was causing problems for my client and his young family, not least in relation to paying his mortgage and the normal day to day expenses you incur with a young family.

And there was, of course, the medical argument that he would only be able to fully recover once his case was finalised one way or another. It is very difficult to recover from a psychiatric or psychological injury if the case arising from that injury remains unresolved and there is a chance you will lose and be in even worse financial and health difficulty.

So, after three years or thereabouts the case was settled to his, and my, satisfaction. It gave me a great feeling of contentment when he came to the office to pick up the settlement cheque and he gave me a bottle of whiskey and a hug. It’s no coincidence that his appearance has improved greatly since the settlement and I have no doubt he is on the road to recovery and a new, less stressful phase in his life.

The other case involved a lady who has a professional qualification and is ambitious for her career. She quit her job with one employer and was moving to another as she saw it as a progression on her career path; besides, it was closer to home.

Her application for the new job went well and she was told she had the job, subject to, amongst other things, a satisfactory reference. However, the reference that her old employer provided was an appallingly inaccurate one. Not alone was it inaccurate it was defamatory of our client and painted her as unprofessional and lazy.

The outcome was that the job offer was withdrawn. When she contacted her old employer about the defamatory reference they immediately withdrew the reference and provided an honest, good reference instead. However, it was too late for the damage was done and her proposed new job had gone to another candidate.

We sued the old employer for defamation in the High Court on the basis that they had a duty to provide an honest, accurate reference and the issuing of the correct reference was done too late and our client had lost the new job and suffered other losses, and damage to her professional reputation, as a result of their negligence in allowing the first, bad reference be supplied to the prospective new employer.

It transpired that when a reference was first sought the furnishing of this reference was left to an employee who had a personal grudge against our employee and this employee took the opportunity to put the boot in when the chance arose.

It proved costly for the employer, however, leading to legal proceedings. This case, too, was settled to the satisfaction of our client. It is worth noting that these settlements, like virtually all such settlements, would be settled without an admission of liability by the employer.

But you will see from these cases that the circumstances which might give rise to legal proceedings are wide and varied: and once proceedings are issued it can be a long time between the act giving rise to the legal proceedings and the ultimate resolution of the case.

In the meantime the personal and financial toll that can come to weigh on the person bringing the claim, and their loved ones, can be terribly onerous.

For this reason it gives me a great sense of relief and gratification when the outcome is a satisfactory one and the client is happy and can put the whole affair behind him/her.

Construction Workers Improved Terms and Conditions of Employment from October, 2017

construction worker

50,000 workers in the construction sector were granted improved terms and conditions of employment from 19th October, 2017.

The improved terms and conditions include statutory minimum pay, improved pension and sick pay entitlements. The backgournd to the improved conditions and the minimum rates of pay are set out in an Order called “Sectoral Employment Order (Construction Sector 2017)”.

Summary

Pay rates

Category 1 Worker: €17.04 per hour

(General Operatives with more than one year’s experience working in the Sector)

Category 2 Worker: €18.36 per hour

(Skilled General Operatives, Scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience, Banks operatives*, Steel Fixers, Crane Drivers and Heavy Machine Operators)

(*Banks operatives are more generally known as banksmen)

Craft Worker: €18.93 per hour

(Craft Workers in the following trades: Bricklayers/Stone Layers; Carpenters and Joiners; Floor Layers; Glaziers; Painters; Plasterers; Stone Cutters; Wood Machinists; Slaters and Tilers)

Apprentice

(Apprentices in the following trades: Bricklayers/Stone Layers; Carpenters and Joiners; Floor Layers; Glaziers; Painters; Plasterers; Stone Cutters; Wood Machinists; Slaters and Tilers)

Year 1: 33.3% of Craft rate

Year 2: 50% of Craft Rate

Year 3: 75% of Craft Rate

Year 4: 90% of Craft Rate

New Entrant Worker: €13.77 per hour

(General Operatives who are over the age of 18 years and entering the Sector for the first time).

The SEO also includes recommendations in relation to sick pay, pensions and unsocial hours payments.

The full order can be accessed here: Sectoral Employment Order (Construction Sector 2017).

Irish and UK Employment Law-What Are the Main Differences?

uk employment law

There are huge similarities between Irish law and UK law, which is to be expected as the Irish legal system originates from the English legal System. The Irish legal system exists in a common law jurisdiction, as opposed to a civil law jurisdictions like France and other European countries.

Other common law jurisdictions include the legal systems in England, Australia, Canada, New Zealand, and India.

Common law systems place great reliance on previous decisions in Court, which decisions set precedents for principles to be applied in later cases with similar circumstances.

Consequently, Irish employment law and English employment law are strongly comparable.

However, there is differences, too. Let’s take a look:

  • Minimum wage rates are different
  • Rest break entitlements also differ
  • Mandatory pension-mandatory enrolment of an employee in a pension is not the position in Ireland, whereas it is in the UK
  • Statutory sick pay exists in the UK, but there is no statutory sick pay in Ireland (there may be a contractual entitlement, however)
  • Annual leave entitlements are different
  • There is no award upper limit for discrimination in the UK, there is a limit of 2 years’ remuneration in Ireland
  • Minimum notice-there is slight differences, depending on the length of service
  • Redundancy payment entitlements are different-in the UK regard is had for the age of the employee, in Ireland it is calculated on service alone
  • Unfair dismissal-in Ireland you need only 1 year’s service, whereas in the UK you need 2 years’ service to bring a claim
  • Termination payments are taxed differently
  • Whistle blowing-there is no upper limit on the award in the UK, in Ireland the limit is 5 years’ remuneration
  • settlement/compromise agreements-there is no statutory recognition in Ireland, there is in the UK
  • Working time-maximum working week (48 hours) can be opted out of in the UK, but not in Ireland
  • Agency workers in Ireland have protection from no less favourable treatment from day one, whereas in the UK the worker needs to have worked 12 weeks on assignment
  • Collective bargaining-there is no obligation on an Irish employer to recognise the trade union in the workplace for bargaining purposes; in the UK the union can follow a statutory route to seek recognition
  • Status of employment-in Ireland you can be an employee or self employed contractor; in the UK you can be an employee, or self employed, or a worker
  • Employment claims-there is no preliminary case management procedure in Ireland; there is in the UK
  • Injunctions-employees seeking injunctions in Ireland are much more likely to succeed than in a UK court
  • TUPE-in Ireland the employer gets a better deal in relation to the application of TUPE regulations as the triggering of TUPE is more limiting as the transfer must involve the transfer of significant tangible or intangible assets or employees

Conclusion

On balance, I think it is fair to say that UK employers would find the employment law landscape in Ireland a more favourable one to employees than exists in the UK. UK employers may also find a higher level of expectation and empowerment with the Irish employee when it comes to employment rights and the relationship between employer and employee.

An Open Letter to Employees Who Think They Have No Employment Rights

 

open letter employee rights

I was amazed when I read it.

And, yet, I have seen the same opinion voiced before on my Facebook page about employment law in Ireland. Here’s what the guy said: “workers have no rights”.

The opinion is still there, I have not deleted it as everyone is entitled to their opinion.

But it is complete nonsense, quite frankly.

Employees have very extensive rights in Ireland thanks to a number of sources including:

  • EU directives and regulations
  • Irish statutes
  • Common law
  • The Constitution.

EU directives, such as the working time directive, are transposed into Irish law by Statute such as the Organisation of Working Time Act, 1997, regulations, and statutory instruments. This ensures Irish employees have extensive rights in relation to working time, rest breaks, paid leave, public holiday, and so on.

Irish Statutes regarding employment law

A non exhaustive list of primary legislation regarding employment law in Ireland includes Acts dealing with

  • Terms and conditions of employment
  • Working time
  • Minimum notice
  • Whistleblowing
  • Wages-payment of wages and minimum wage
  • Annual leave
  • Maternity leave
  • Adoptive leave
  • Other statutory leave entitlements
  • Part time employees
  • Fixed term employees
  • Agency workers
  • Health and safety
  • Data protection
  • Discrimination and equality
  • Transfer of undertakings (TUPE)
  • Young persons in the workplace
  • Dismissal
  • Redundancy
  • Industrial relations

All of these acts have teeth-real rights that can be upheld by employees at the risk of costly financial punishment for the employer, for example 2 years’ remuneration for unfair dismissal, up to 5 years’ in the whistleblowing/protected disclosure legislation.

employee rights ireland

Common law

Under common law the employee has extensive rights in respect of health and safety, notice of termination, wrongful dismissal, an entitlement to natural justice and fair procedures, and the right to have trust and confident in the employer.

The Constitution of Ireland

Rights for employees pursuant to Bunreacht na hÉireann include

  • The right to earn a living
  • The right to join a trade union
  • The right to strike
  • The right to his good name
  • The right to fair procedures and natural justice
  • The right to equality before the law, and the avoidance of discrimination

Conclusion

You will see from the above that employees have a multitude of rights. In fact, employers feel that they are the ones in the relationship who have no rights and would laugh at the suggestion that “workers have no rights”. It is up to the employee on occasion, however, to stand up for their rights and this can take a lot of courage.

It is not easy to stand up against the employer.

Before you do that, though, you should check that you have a justiciable right to fight for and that you are on solid ground and you are not fighting an avoidable battle that you may lose and which can lead to a deterioration in the relationship with the employer.

Once you do discover, however, that your employment rights have been breached there should be no difficulty in pursuing the matter with your employer with the assistance of your trade union or appropriate professional advisor.

24 Random Questions From My Website (December, 2017) About Employment Law In Ireland

questions and answers

When I look at the phrases which led to people visiting my website EmploymentRightsIreland.com I can see the questions they are trying to find answers for.

I have just taken a look at the search logs for December, 2017 and the usual questions have come up: questions about holiday entitlements, public holiday entitlements, and disciplinary procedures.

The same, or similar, questions come up each month so the questions in this article from December, 2017 data are representative of the types of questions employees and employers ask.

I have written extensive articles about this topics which you can find here:

  1. How to calculate your holiday entitlements, including public holidays
  2. Disciplinary procedures, including how to carry out a disciplinary procedure step by step

In this piece, however, I want to answer some other specific questions from the search logs.

Let’s go.

Q 1. difference between terms of employment and conditions of employment

 

  1. There is none. Terms and conditions of employment are essentially the same thing and the phrase, terms and conditions, is usually used to describe the provisions of the employment contract.

Q 2. do irish employers have to pay 20 annual leave days

 

  1. The legislation actually provides for a maximum of 4 working weeks, but yes, the employee is entitled to paid leave each year. The article linked to from number 1 above tells you exactly what the employee is entitled to by way of annual leave, regardless of whether he/she is full time or part time.

Q 3. what does a indefinite contract mean

 

  1. This question refers to a contract of indefinite duration (CID). You can learn more about Contracts of Indefinite duration here. If you have had a series of fixed term contracts you may be entitled to a contract of indefinite duration, which is, in effect, a permanent contract.

Q 4. what are principles of natural justice in ireland

 

    1. The principles can be encapsulated in 2 Latin phrases:
    2. Nemo iudex in causa sua (no man is a judge in his own cause) and
    3. Audi alterem partem (here the other side)

This can be summed up as holding that the person against whom an allegation has been made should have the chance to put their side of the story, and the decision maker should be unbiased and engage in a fair procedure before arriving at a decision.

You can watch a short video about the 2 fundamentals of natural justice in civil law in Ireland here.

Q 5. i havent signed any warning before can i get fired with verbal warning?

      1. It it immaterial whether you have signed for a disciplinary warning or not; let’s face it, if refusing to sign for a warning could prevent the employer from using the disciplinary procedure he would never be able to terminate an employee’s employment. Therefore, you will still have the warning on your record, whether you signed or accepted it or not.

Q 6. can you opt out of the working time directive in ireland

 

      1. No, the working time directive has led to working time regulations being part of the fabric of Irish employment law and there is no opt out.

Q 7. whats happens if i have been out of work sick for a year

 

      1. Ultimately the employer may seek to terminate the employment contract on the basis of the employee’s inability to perform the work for which he was employed. Before doing this it would be desirable for the employer to get an up to date medical report to ascertain the position and whether the employee will be able to return to work in the near future. If not, the employee may be terminated on the ground of incapacity.

Q 8. irish law on references for work

 

      1. I have written about references in the past. In summary, there is no obligation on the employer to give a reference for a departing, or departed, employee. In fact, some employers have a policy of not giving references. If the employer does give a reference, though, it should be accurate and not misleading.

Q 9. how many verbal and written warnings

 

      1. There is no hard and fast rules or regulations about how many warnings an employer should give an employee. On occasion, an employee can be summarily dismissed without any warnings if the conduct is so bad that it warrants instant dismissal. Most disciplinary procedures will provide for 3 or 4 warnings, but if you are an employee you need to read your workplace disciplinary procedure to be sure.

Q 10. can employer impose electronic time system

 

      1. Yes.

Q 11. smoke break entitlements ireland

 

      1. There is no legal entitlement to a smoke break. Your entitlements to rest breaks, for smokers and non smokers, are the same. Read about rest breaks in the workplace here.

Q 12. legal fees wrc

 

      1. If you bring a claim to the WRC (Workplace Relations Commission) both parties pay their own legal expenses/fees.

Q 13. as an employer can i decide when my employees take hoildays

 

      1. Yes.

Q 14. in irish law can you be contacted about work when your off sick

 

      1. Yes, but the employer needs to be careful about this. However, there is no legal impediment to the employer contacting an employee, and it is advisable to do so to see how the employee is and enquire about his/her welfare.

Q 15. in republic of ireland can you be made work overtime

 

      1. The situation regarding overtime should be set out in your contract but, generally, an employee being requested to overtime and refusing may be guilty of misconduct by virtue of refusing a reasonable request of the employer. There would need to be a bit of give and take on both sides, though, and the contract of employment should be reviewed carefully.

Q 16. can i get wages owed after 7 years in ireland

 

      1. No, you are out of time. The statute of limitations for contract litigation is 6 years.

Q 17. what s the next step if you are on final warning?

      1. Dismissal.

Q 18. do you have to recognise a trade union

 

      1. No. The employee has a right to be a member of a union but the employer does not have to recognise the union in the workplace and can negotiate directly with the employee.

Q 19. does the law permit an employer to charge an employee for misconduct which had occurred in the past fixed term of contract?

 

      1. No. If an employee is guilty of misconduct he should be subject to the disciplinary procedure in the workplace but charging an employee a financial penalty would be inappropriate and unsound.

Q 20. how many sick days are you entitled to in ireland

 

      1. It will depend on your contract of employment. If the contract does not allow any sick days there is no legal entitlement to be entitled to paid sick days.

Q 21. how much do i get on the sick in ireland

 

      1. It depends on whether your employer operates a sick pay scheme or not. Some do, but there is no legal obligation to pay an employee while he/she is out sick, unless it is in the contract. The employee may be entitled to illness benefit from the Department of Social Protection.

Q 22. am i entitled to a paid break

 

      1. No.

Q 23. does tupe apply to ireland

 

      1. Yes, it certainly does. You can learn more about TUPE here.

Q 24. what should be included in my employment contract

 

      1. Learn what should be contained in the contract of employment here.

Conclusion

This is only a sample – from one month, December, 2017- of the questions that people are asking on my website. The other big areas that cause people concern are unfair dismissal, bullying, disciplinary procedures, and holiday pay.

There is a lot more information about all aspects of employment law in Ireland on http://EmploymentRightsIreland.com