Anne O'Connell Solicitors

Published in the Irish Employment Law Journal 2025, volume 22 Issue 4, pgs 98-99.  Readers will recall our article in this journal earlier this year¹ on the Opinion of Advocate General Emiliou, in Kingdom of Denmark v European Parliament and Council of the European Union concerning Directive (EU) 2022/2041 on adequate minimum wages in the European Union ("EU") (the "AMW Directive"). On 11 November 2025, the Court of Justice of the European Union ("CJEU") issued its judgment² in which it annuls part of the AMW Directive while confirming the validity of the majority of it. This case was where the Kingdom of Denmark, supported by the Kingdom of Sweden, asked the CJEU to annul the AMW Directive in its entirety, on the grounds that the European Parliament and the Council lacked competency to adopt the AMW Directive. The Law Article 153 of the Treaty on the Functioning of the European Union ("TFEU") provides that the EU shall support and complement the activities of the Member States in certain fields, such as working conditions, representation and collective defence of the interests of workers and employers. However, subs.5 provides that the: "provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs." As its principal head of claim, the Kingdom of Denmark submitted to the CJEU that the AMW Directive directly interferes with the exclusions on pay and the right of association provided for in subs.5 above. The Advocate General's Opinion The Advocate General ("AG") in his opinion stated that as the AMW Directive has as its object the regulation of pay, it directly breached the pay exclusion in art.153(5) of TFEU. However, in relation to the right of association exclusion, the AG did not agree that the right of association equals the right to collective bargaining. The AG rejected the argument that the AMW Directive has as its object the regulation of the right to association. Ultimately, the AG concluded that the European Parliament and the European Council had indeed acted in breach of their jurisdiction by legislating in the area of pay, specifically excluded from the EU's competence and proposed that the entire AMW Directive be annulled on that point. The Judgment The CJEU did not agree with the AG that the entire Directive should be annulled but alternatively decided to annul only part of the Directive. However, it did agree with the opinion of the AG in that the exclusion of the EU's competence by the TFEU in respect of pay and the right of association does not extend to any sort of link with those areas being provided for in EU provisions. It also stated that the exclusion does not cover any measure which, in practice, would have effects or repercussions on the level of pay. The exclusion applies only to direct interference by EU law in the determination of pay and in the right of association. The CJEU referred to a number of decisions in respect of its decision. In respect of art.4, which provides for measures to promote collective bargaining on wage-setting, the CJEU found that it is merely a means of achieving the main objective of the AMW Directive rather than being a distinct purpose of it. Article 4 does not require Member States to reach the threshold of 80 per cent of collective bargaining coverage, but to establish a "framework" of enabling conditions for collective bargaining and draw up an "action plan" to promote such bargaining with the involvement of the social partners. It found that, as art.4 does not oblige Member States to require a larger number of workers to join trade unions or to declare a collective agreement universally applicable, then it does not amount to direct interference by EU law in the determination of pay or the right of association. However, in respect of art.5, the CJEU found that art.5(2) amounted to direct interference by EU law in the determination of pay within the European Union. It found that art.5(2) requires Member States with statutory minimum wages to ensure the use of the four elements listed in that provision in respect of the setting and updating of the statutory minimum wage. Those four elements are: "the purchasing power of statutory minimum wages, taking into account the cost of living"; "the general level of wages and their distribution"; "the growth rate of wages"; and "long-term national productivity levels and developments". The CJEU also found that the portion of art.5(3) which requires that Member States that use an automatic mechanism for indexation adjustments of wages not to decrease the level of statutory minimum wage amounts to a direct interference by EU law in the determination of pay within the European Union. The remaining provisions of art.5 and arts 6 to 8 were found to provide for measures establishing a framework for the setting of adequate minimum wages with a view to improving living and working conditions in the EU and in relation to the scope of "working conditions" and fall within the competence of the EU. Based on the above, the CJEU annulled art.5(2) and the part of the sentence "provided that the application of that mechanism does not lead to a decrease of the statutory minimum wage" in art.5(3) on the ground that those provisions fall within the exclusions of the EU's competences under art.153(5) TFEU. The annulment of art.5(2) necessitated the annulment of the part of the sentence in the fifth sentence of art.5(1) "including the elements referred to in paragraph 2". As the Kingdom of Denmark was successful in part of its application, it was awarded one-third of its costs, but it had to pay two-thirds of the costs of the European Parliament and the Council of the European Union. Conclusion The social parties are delighted with the decision, as it did not have any impact on the promotion of collective bargaining. This is underway in Ireland with the publication of Ireland's Action Plan to Promote Collective Bargaining 2026-2030 in early November 2025. However, the European Union (Adequate Minimum Wages) Regulations 2024 (S.I. No. 633 of 2024), which was enacted in November 2024, amended the National Minimum Wage Act and included the four elements set out in the annulled art.5(2) of the AMW Directive. Therefore, a change in this legislation may be required as this amendment no longer has a valid legal foundation. Irish Employment Law Journal – Volume 22, No.4, 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

Published in the Irish Employment Law Journal 2025, volume 22 Issue 2, pgs 41-42 Advocate General (“AG”) Nicholas Emiliou delivered his opinion on 14 January 2025 in Kingdom of Denmark v European Parliament and Council of the European Union, a recent action concerning Directive (EU) 2022/2041 on adequate minimum wages in the European Union (the “AMW Directive”). The Kingdom of Denmark, supported by the Kingdom of Sweden, asked the Court of Justice of the European Union (the “CJEU”) to annul the AMW Directive, on grounds that the European Parliament and the Council lacked competency to adopt the AMW Directive (C-19/23). Emiliou noted that the European Union (EU) is only allowed to act within the limits of the competences conferred upon it by the Member States and set out in the Treaties, referred to as the “principle of conferral”. The AG considered this principle and the relevant EU legislation in his opinion on the AMW Directive. What is the AMW Directive? The AMW Directive, which was to be transposed into national law in the Member States by 15 November 2024, sets out procedural obligations regarding the adequacy of statutory minimum wages in the EU. This Directive provides that minimum wages are considered adequate if: “they are fair in relation to the wage distribution in the relevant Member State and if they provide a decent standard of living for workers based on a full-time employment relationship”. It was observed that not all workers in the EU are effectively protected by minimum wages and that in particular, this affects women, young workers, low-skilled workers, people with disabilities and migrant workers. Article 5 of the AMW Directive provides that Member States are to be guided by certain criteria in the setting and updating of statutory minimum wages, with the view of achieving a decent standard of living within the EU and reducing in-work poverty. These criteria shall include consideration of the purchasing power of statutory minimum wages, taking into account the cost of living in the Member State and the growth rate of wages. The AMW Directive provides that where more favourable provisions exist in the current national framework, these rights should continue to apply. The AMW Directive states that the Directive is without prejudice to the full respect for the autonomy of the social partners and their right to negotiate collective agreements in the Member State. In addition, Article 4 of the AMW Directive requires Member States to promote collective bargaining on wage-setting. An action plan is required to be established in each Member State where the collective bargaining coverage rate is less than 80 per cent (this includes Ireland). Prior to the current action before the CJEU, the Danish Parliament had already indicated its opposition to the AMW Directive, giving an opinion in December 2020 that, in its view, wage conditions were best regulated at a national level. The Law Article 153 of the Treaty on the Functioning of the European Union (“TFEU”) provides that the EU shall support and complement the activities of the Member States in certain fields, such as working conditions, representation and collective defence of the interests of workers and employers. However, subs.5 provides that the “provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.” As its principal head of claim, the Kingdom of Denmark submitted to the CJEU that the AMW Directive directly interferes with the exclusions on pay and the right of association. The Opinion The AG noted that several instruments have been adopted over the years on the basis of Article 153 TFEU, for example, the recent Directive (EU) 2019/1152 on transparent and predictable working conditions in the EU. However, the AG observed that the current action does not exist in a vacuum, and instead it is linked to a broader perception of “competence creep” by the EU and specifically the Nordic Member States’ opposition to EU actions which they regard as interfering in their labour law. He also notes that the AMW Directive, from a practical perspective, will not affect the national systems in the countries of Sweden or Denmark to any great extent and that one may regard this action as a mere “principled opposition”. However, ultimately, the AG considered the motivations of these countries as irrelevant to the case before him. The AG described the European Parliament as walking on “thin ice” in their interpretation of the pay exclusion in Article 153(5). They argued that pay refers to the level of wages, not procedures for setting wages. However, in the AG’s view, the term “pay” in Article 153(5) is not limited in this way and is intended to cover all aspects of Member States’ wagesetting systems. It was not accepted by the AG that the AMW Directive only imposes procedural obligations. The AG referred to Article 5, which outlines criteria that Member States shall consider when establishing procedures for setting and updating statutory minimum wages and commented as follows: “I do not see how, for example, the obligation contained in Article 5(2)(c) of that directive that the procedure for the setting and updating of statutory minimum wages is to be guided by the growth rate of wages could mean anything other than that the level (amount) of minimum wages must be based on and reflect that growth rate. What is presented as a procedural obligation is, in fact, a substantive obligation in disguise.” The AG also reviewed other relevant Articles of the AMW Directive and submitted that, as it has as its object the regulation of pay, it directly interfered with the pay exclusion in Article 153(5) of TFEU. In relation to the right of association exclusion, the AG was not convinced by the argument of the Danish and Swedish governments that the right of association equals the right to collective bargaining. He commented that these are separate and distinct rights, one being the right to join organisations to protect economic interests (such as trade unions) and the other being related to a specific mandate of those organisations. It is interesting that the AG’s opinion seemed to take a contradictory approach in utilising a very broad interpretation of pay and a very narrow interpretation of the right to association. The AG found it difficult to conclude that Article 4 of the AMW Directive concerning collective bargaining has as its object the regulation of the right to association. Ultimately, the AG concluded that the European Parliament and the European Council had indeed acted in breach of their jurisdiction by legislating in an area, i.e. pay, specifically excluded from the EU’s competence and proposed that the AMW Directive be annulled. The Irish Perspective The Minister for Enterprise, Trade and Employment in Ireland enacted the European Union (Adequate Minimum Wages) Regulations 2024 (S.I. No. 633 of 2024) in November last year to transpose the AMW Directive. The Minister noted that Ireland’s minimum wage setting framework was already largely in compliance. The changes included the addition of wording requiring the Low Pay Commission (“the Commission”) to consult with representatives of employers and employees prior to making a recommendation in respect of the national minimum hourly rate of pay to the Minister. It also introduced additional criteria the Commission shall have regard to when making the recommendation, in line with Article 5 of the AMW Directive. If the AMW Directive is annulled, S.I. No. 633 of 2024 will likely be repealed. The action plan on the promotion of collective bargaining, as required by Article 4 of the AMW Directive, will no longer be required. The Irish government was actively working on this plan, as a public consultation on how Ireland can increase and promote collective bargaining just recently closed for submissions on 12 May 2025. It has been reported in Irish media that trade union officials are dismayed by the AG’s opinion, as they view the AMW Directive as having the potential to promote collective bargaining in the private sector. It is important to note that even if the AMW Directive is annulled, employers in Ireland will still be required to comply with existing national legislation concerning minimum rates of pay, namely the National Minimum Wage Acts 2000 and 2015. Conclusion The AG’s opinion has been met with some surprise and criticism, considering the significant support for the AMW Directive by other Member States bar Sweden and Denmark and how the AG’s opinion appears contrary to previous case law and other Directives. It is considered uncommon for the CJEU not to follow an AG’s opinion. However, it is very rare for the CJEU to annul an entire Directive. Some commentators have offered their view that it is unlikely the CJEU will annul the entire AMW Directive, and that “conflicts over competence are generally settled on the political stage”. It is also deemed likely that the European Parliament’s more restrictive interpretation of the pay exclusion will be considered within the band of reasonableness in light of existing case law. It remains to be seen how the final CJEU decision will impact future EU directives concerning industrial relations and labour law. The decision of the CJEU is expected in the coming months, so this is one to watch! Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

Published in the Irish Employment Law Journal 2025, volume 22 Issue 3, pgs 69-71 The Court of Justice of the European Union (the “CJEU”) delivered judgment on 11 September 2025 in the case of G.L. v AB SpA (C-38/24), which concerned a preliminary ruling request from the Supreme Court of Cassation, Italy. The request for preliminary ruling concerned the interpretation of Council Directive 2000/78/EC (the “Directive”) of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. The judgment confirmed that the Directive prohibits both direct and indirect discrimination by association with a person who has a disability and that the obligation to provide reasonable accommodation extends to the caregiver, despite the fact that they do not have a disability themselves. The Facts G.L. was employed by the company AB as a “station operator” where she was responsible for monitoring and supervising an underground station. G.L. was also the caregiver of her severely disabled child, and in that capacity, she requested her employer to assign her, on a stable basis, to a fixed morning shift for her duties. Alternatively, she requested that she be given lower-level duties to enable her to follow a care programme at a fixed time in the afternoon for her minor child, who lived with her, and was severely disabled, whilst continuing to pursue her professional activity on an equal basis with other employees. AB did not grant her request but did provide her with some accommodation on a temporary basis, assigning her a fixed workplace with a preferential schedule as compared to other station operators. G.L. brought an action before the District Court, Rome, Italy, seeking a declaration that her employer’s behaviour towards her was discriminatory. She requested that her employer be ordered to assign her definitively to a shift with fixed hours, between 8:30 and 15:00, or, in any event, one compatible with her child’s needs, to adopt a plan to eliminate the discrimination, and to pay her compensation for damages. G.L. claimed that AB had treated her differently from her colleagues, who, for health reasons, were considered to be temporarily or permanently unfit to perform their work in the normal manner. Whereas those colleagues were temporarily assigned to other tasks pending retraining in different duties, being assigned to a subsidised or “assisted” service with a fixed workplace, she was not given that opportunity since, in her case, the assessment of fitness was made on the basis not of the health status of her child, but on her own health status. G.L. claimed that AB adopted measures of a temporary and nondefinitive nature over an unreasonably long period of time, which was not sufficient. Furthermore, she claimed that AB failed to take any action in respect of her request to be potentially assigned, if necessary, to lower-level duties in order to resolve her difficulties. The District Court dismissed G.L.’s action on the ground that she could not bring the action as she was not the disabled person. The Court of Appeal dismissed her case on its merits, finding that no discriminatory conduct on the part of AB had been established and that, in any event, AB had provided reasonable accommodation. G.L. brought an appeal on a point of law to the Supreme Court of Cassation, claiming that she met the legal requirements for the protection of her right to nondiscrimination on grounds of disability in the workplace. She disputed that AB provided reasonable accommodation, which she was fully entitled to and that the temporary measures granted by AB did not rule out the alleged discrimination. After she brought her appeal, she was dismissed on 10 October 2022. The Supreme Court noted that Italian law at the time of the main proceedings did not provide for general protection against discrimination and harassment in the workplace for caregivers. However, it noted the judgment of the CJEU in Coleman (C-303/06, EU:C:2008:415, 17 July 2008) provided that the family caregiver of a disabled person is entitled to protection against direct discrimination on the ground of disability in the workplace. Nevertheless, the Supreme Court did not know if this should also apply to indirect discrimination. It also noted that the Coleman judgment restricted the provision of reasonable accommodation to those with disabilities. Furthermore, since the Coleman judgment, the UN Convention on the Rights of Persons with Disabilities (the “UN Convention”) and the Charter of Fundamental Rights of the European Union (the “Charter”) both came into force. Therefore, the Supreme Court decided to stay the proceedings and refer the following questions to the CJEU: “1) Should European Union law be interpreted- where applicable on the basis also of the [UN Convention] – as meaning that a family caregiver of a severely disabled child who claims to have suffered indirect discrimination in an employment context as a result of the care provided by that individual is entitled to rely on the anti-discrimination protection that would be afforded to that disabled person, if they were the worker, by [the Directive]? 2) If the answer to [the first question] is in the affirmative, should European Union law be interpreted – where applicable on the basis also of the [UN Convention] – as meaning that it is incumbent on the employer of the abovementioned caregiver to make reasonable accommodation to guarantee compliance – also in favour of that caregiver – with the principle of equal treatment in relation to other workers, modelled on the provisions laid down in relation to persons with disabilities in Article 5 of [the Directive]? 3) If the answer to [the first and/or second questions] is in the affirmative, should European Union law be interpreted – where applicable also on the basis of the [UN Convention] – as meaning that the relevant caregiver for the purposes of [the Directive], should be understood as any person, whether a member of the family or a de facto cohabiting partner, who cares in a domestic setting, even informally, free of charge, for a significant number of hours, on an exclusive, continuous and long-term basis, for a person who, by reason of their severe disability, is not absolutely self-sufficient in the performance of the daily activities of living, or should European Union law be interpreted as meaning that the definition of the caregiver in question is broader or even narrower than as stated above?” The Decision The CJEU followed the Opinion of Advocate General Rantos. It held that the UN Convention and the Charter are an integral part of the EU legal order and their provisions may be relied upon in order to interpret the provisions of the Directive. Answer to the First Question The CJEU referred to the Coleman judgment in which it was held that direct discrimination by association on the ground of disability is prohibited by the Directive. Where an employer treats an employee who does not himself/herself have a disability less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his/her child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination under the Directive. It stated that an interpretation of the Directive limiting its application only to persons with disabilities is liable to deprive that Directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee. The CJEU also referred to the decision in CHEZ Razpredelenie Bulgaria (C-83/14, EU:C:2015:480) in respect of Directive 2000/43, which was drafted in similar terms to the Directive but in respect of “race or ethnic origin” rather than “disability”. In that case, all the electricity meters were placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres in an urban district mainly inhabited by those of Roma origin. Such meters were placed at a height of less than two metres in the other districts. The CJEU held in that case that the principle of equal treatment to which that directive refers applies not to a particular category of person but by reference to the ground in art.1, here being race or ethnic group. Therefore, those who suffered the less favourable treatment on that ground but were not of a Roma origin still benefited from the protection of that directive. Therefore, the court expressly held that indirect discrimination by association fell within the scope of Directive 2000/43. The CJEU referred to the Charter and, in particular, arts 21, 24 and 26. Article 21(1) of the Charter, prohibits “any discrimination” based, inter alia, on disability. Article 24 of the Charter provides that children are to have the right to such protection and care as is necessary for their well-being and that in all actions relating to children, the child’s best interests must be a primary consideration. Article 26 provides that the European Union is to recognise and respect the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. Reference was also made to the decision of the European Court of Human Rights in Guberina v. Croatia (22 March 2016 CE:ECHR:2016:0322JUD002368213) which held that discriminatory treatment suffered by a person on account of the disability of his or her child, with whom he or she has close personal links and for whom he or she provides care, is a form of disability-based discrimination covered by art.14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without distinction as to whether that discrimination was direct or indirect. The CJEU stated that the UN Convention provides that the concept of “discrimination on the basis of disability” covers “any” distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms and that concept includes “all forms of discrimination” including denial of reasonable accommodation. In light of the above, the CJEU answered the first question in the affirmative stating that the Directive read in light of arts 21, 24 and 26 of the Charter and arts 2, 5 and 7 of the Convention, must be interpreted as meaning that the prohibition of indirect discrimination on grounds of disability applies to an employee who does not himself or herself have a disability but who is subject to such discrimination because of the assistance that that person provides to his or her child who has a disability, which enables that child to receive the primary care required by virtue of his or her condition. Answer to the Second Question Regarding the second question, the CJEU referred to the above-mentioned arts 24 and 26 of the Charter. It also had regard to art.2 of the Convention, which expressly provides that the concept of discrimination on the basis of disability includes all forms of discrimination, “including denial of reasonable accommodation”. In accordance with the fourth paragraph of that article, “reasonable accommodation” means: “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.” The court referred to point 53 of the Advocate General’s Opinion in which he stated that “reasonable accommodation”, as defined in art.2, is not restricted to the needs of persons with disabilities in the workplace. Accordingly, that accommodation must, where necessary, also be provided to a worker who provides the assistance which enables that person with a disability to receive the primary care required by virtue of his or her condition. Article 7(1) of the Convention further provides that the States Parties are to take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. Point (x) of the Preamble to the Convention refers to the need to assist the families of persons with disabilities to enable families themselves to contribute towards the full and equal enjoyment of the rights of persons with disabilities. It follows that the employer must adapt the working conditions of the employee who is providing the assistance for his or her child with a disability. As regards the type of reasonable accommodation that the employer of a caregiver is required to make, the CJEU held that art.5 of the Directive should be read in light of art.2 of the Convention, which prescribes a broad definition of the concept of “reasonable accommodation”. It held that the reduction of working time may constitute one of the measures of accommodation and/or the reassignment to another job may constitute such a measure. However, the CJEU confirmed that this does not oblige an employer to take measures that would impose a disproportionate burden on it. While the CJEU held that it is for the national court to determine whether or not a measure is disproportionate, it stated that account should be taken of the financial costs entailed, the scale and financial resources of the organisation and the possibility of obtaining public funding or any other assistance. In addition, the possibility of assigning a person with a disability to another job is only available where there is at least one vacancy that the worker in question is capable of holding. The answer to the second question is that the Directive, in particular art.5, read in light of arts 24 and 26 of the Charter and art.2 and 7(1) of the Convention must be interpreted as meaning that an employer is required, in order to ensure compliance with the principle of equal treatment of workers and the prohibition of indirect discrimination referred to in the Directive, to make reasonable accommodation, within the meaning of art.5, in respect of an employee who does not himself or herself have a disability but who provides, to his or her child who has a disability, the assistance which enables that child to receive the primary care required by virtue to his or her condition, provided that that accommodation does not impose an unreasonable burden on the employer. Finally, the CJEU ruled that question number three, as asked by the referring court, was inadmissible. The concept of a caregiver is not provided for in the Directive, and the CJEU noted it appears to fall under national law. The CJEU also noted that the referring court did not provide an explanation as to the link between the third question concerning the concept of a “caregiver” and the dispute in the main proceedings. CONCLUSION The Directive was transposed in Ireland by the Employment Equality Acts. While this CJEU decision broadens the protection for caregivers and the concept of discrimination by association, it raises a number of questions. For example, will the sixmonth qualifying period under the Code of Practice for Employers and Employees on the Right to Request Flexible Working be deemed to be discriminatory, as employees with disabilities do not have to wait six months to get flexible working hours as a reasonable accommodation, where necessary and not disproportionate. Also, there does not seem to be a de minimis level of disability for the child or person for whom the employee provides care. Will employers be able to seek medical evidence in respect of the person with the disability? It is also not clear as to the definition of a “caregiver”. Furthermore, the protection of discrimination by association is very broad, only requiring the person to have suffered less favourable treatment due to one of the protected grounds but not requiring the person to come within the definition of such a ground. It will be interesting to see if this decision will result in an increase in claims under the Employment Equality Acts on the ground of discrimination by association, including refusal of remote working applications, and if so, what level of awards will be granted. Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

In a recent decision of the Workplace Relations Commission (WRC) in the case of Noel O’Connell v National Council for Special Education (ADJ-00042837), the National Council for Special Education (NCSE) was found to have indirectly discriminated against a deaf applicant for the role of “Advisor Deaf/Hard of Hearing (ISL)”. The case is significant not only for its discrimination finding, but also because the Adjudication Officer disapplied the statutory €13,000 compensation cap applicable in access-to-employment discrimination claims, awarding €40,000 in compensation instead. Facts: In March 2022 the Complainant who is deaf and fluent in Irish Sign Language (“ISL”) applied for a role with the National Council for Special Education (“NCSE”). The role was entitled “Advisor Deaf/Hard of Hearing (ISL)” (the “Role”). In order to be eligible for consideration for the Role, the NCSE required applicants to hold a formal Irish Sign Language (“ISL”) qualification. As is typical for native sign language users, the Complainant did not hold a formal academic ISL qualification. There was also a requirement to demonstrate excellent oral communications skills. The Complainant’s application was rejected. The Complainant requested a review explaining the denial of his application. That internal review upheld his complaint, finding that he met the essential criteria. However, the NCSE did not reopen the competition for the Role or provide the Complainant with any remedy. Decision: The Adjudication Officer decided in favour of the Complainant. The Adjudicator determined that the Respondent’s actions amounted to indirect discrimination against the Complainant and the Complainant’s discrimination claim was well founded. The Adjudication Officer then turned to the question of what should be ordered by way of redress for the discrimination suffered by the Complainant. Significantly, national law in Ireland (namely Section 82(4) of the Employment Equality Act 1998) provides an upper compensation limit of €13,000.00 in cases involving discrimination in respect of access to employment (which is the category this case would fall under). However, the Complainant’s legal team sought to rely on European Law namely Article 17 of Directive 2000/78 which provides that “The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive”. The Complainant’s legal team also relied upon Case C-378/17 Minister for Justice and Equality & Commissioner of An Garda Síochána v. Workplace Relations Commission where the European Court of Justice (“ECJ”) held that bodies such as the WRC who are called upon to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective including “disapplying if need be any national provisions or national case-law that are contrary to EU law”. The Complainant was successful in his plea for effective compensation as the Adjudication Officer did in fact disapply the national compensation cap of €13,000.00 and instead ordered the Respondent to pay the Complainant compensation in the amount of €40,000.00. Takeaway for Employers: This is a highly significant decision by the WRC as it demonstrates a willingness to exercise its power to disapply national law when it conflicts with EU law. On the specific point of compensation caps, suffice to say that employers should be prepared for strong arguments against the imposition of the €13,000.00 compensation cap in access to employment claims going forward. However, employers should also be ready for arguments by employees that potentially go beyond that i.e. arguments that other statutory compensation caps should similarly be set aside in cases where more effective and dissuasive redress is required in accordance with EU law. Link to decision  –ADJ-00042837 Authors – Jane Holian and Laura Killelea 28th February 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

The Labour Court recently considered an appeal of a Workplace Relations Commission (“WRC”) decision in Ann Britton v. Amcor Flexibles Ltd ADJ-00050138. The complaint was in relation to the Sick Leave Act 2022 (“the Act”). The WRC Adjudicator had found that the company sick pay scheme (“CSP scheme”) overall was not more beneficial than the Statutory Sick Pay scheme (“SPS scheme”) and on that basis awarded the Complainant compensation of €1,000. The Respondent appealed this decision to the Labour Court who ultimately upheld the decision of the WRC. Facts: For ease, the Complainant and Respondent as they were referred to in the WRC remain the same in the Labour Court. The Complainant had commenced employment with the Respondent on 20th April 2023. The Respondent operated a CSP scheme which provided that, following 12 months service an employee may be paid sick leave of up to ten days once a medical certificate was provided on the third day. In the third and fourth year of employment, this would increase to 15 days and 20 days in the fifth year. In January 2024, the Complainant was on certified sick leave for five days. The Complainant did not qualify for the CSP scheme as she did not have the 12-month service requirement, and she was also informed that she would not receive any payment under the SSP scheme as the CSP scheme was deemed more favourable overall. At the time, the SSP scheme provided five days sick pay over a twelve-month period, after 13 weeks continuous service. This was payable from day 1 of absence and at a rate of 70% of normal pay up to a maximum of €110. The Complainant argued that she was entitled to SSP during the relevant period. The Respondent argued that the CSP scheme was as a whole more favourable than the SSP as per Section 9 of the Act and on that basis the obligations to pay SSP did not apply to the Respondent. Section 9 also sets out the various factors to be taken into consideration in determining when the Act will not apply. The Respondent accepted that the service requirement and the number of days before eligibility for payment were less favourable in the CSP than the SSP. However, the Respondent submitted that in terms of the period for which sick leave is payable, the amount of sick leave payable and the reference period, the Respondent’s scheme was more favourable as a whole and on that basis their appeal should be upheld. Decision:  The Court upheld the WRC decision and using the factors set out in Section 9(2) compared the CSP and SSP over the course of a reference period being January to December 2024. The applicable absences were 5 days from 2nd January to 8th January. Section 9 Considerations: Period of service of an employee that is required before sick leave is payable. Company Sick Pay Scheme: 52 weeks Statutory Sick Pay Scheme: 13 weeks Section 9 Considerations: Waiting Period before sick leave is payable Company Sick Pay Scheme: Three days Statutory Sick Pay Scheme: No waiting period Section 9 Considerations: The period for which sick pay is payable. Company Sick Pay Scheme: Less than 12 months service. O days Statutory Sick Pay Scheme: Five days Section 9 Considerations: The amount of sick leave that is Payable. Company Sick Pay Scheme: Entitlement during this absence Nil. Entitlement during the reference period with 12 months service, 2 days only = €252.80 Statutory Sick Pay Scheme: Entitlement in 12-month reference period with one absence of five days, capped ay 70%  =  €442 Section 9 Considerations: The reference period for the scheme. Company Sick Pay Scheme: 12 months rolling from the first date of absence. Statutory Sick Pay Scheme: 12 months, time starts to run from 1 day of absence in the year Takeaway for Employers: This decision confirms the importance of reviewing and thoroughly evaluating any company sick pay scheme in determining whether the scheme is truly more favourable than the statutory sick pay scheme, within the reference period. An assessment can be carried out pursuant to Section 9(2) of the 2022 Act, and should a company sick pay scheme be deemed more favourable overall, then the statutory sick pay scheme is not applicable. This Labour Court decision gives a good guidance in respect of such assessment. Links- Labour Court Decision – Amcor Flexibles Ltd v Ann Britton SLD251 WRC Decision - Ann Britton v Amcor Flexibles Ltd (ADJ-00050138) Sick Leave Act 2022   Authors – Ethna Dillon and Anne O’Connell

Two WRC decisions arising from the same transfer under the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“TUPE Regulations”) reached different outcomes on whether the lack of confirmation by the employee re transferring amounted to a resignation by the employee. The cases are Jason Franzoni v. Hibernia Homecare Ltd (ADJ-00056751) and Charlotte O’Connor v. Hibernia Homecare Ltd (ADJ-00057021). Facts: Hibernia Homecare Ltd (the Respondent) submitted that it had to transfer its business to its parent company, Hibernia Homecare Group Ltd in order to meet the HSE requirements in the new Service Level Agreement. Formal notice was emailed to its employees on 31 October 2024 in line with the TUPE Regulations. The consultation process began on 5th November 2024. During this meeting David Wallace, Managing Director, informed the employees that they had a choice as to whether or not they wished to transfer but if they refused to transfer that this would be considered a resignation. During this meeting a small number of employees objected to the transfer in support of one of the directors who was not included in the transferee company. The meeting got heated and these employees, including both Complainants, walked out of the meeting. The Respondent appointed a mediator who represented both the transferor and transferee in the consultation meetings. A new contract was issued to the employees with the transferee named as the employer but it was on the same terms and conditions of employment. The employees were pushed to sign it but had been informed that their existing contract would transfer. The transfer deadline was extended to 31st January 2025. The employees were given until 4pm on 31st January 2025 to sign the contracts or be dismissed. At 4.01pm a notice was sent to the employees who did not sign the contract informing them that their employment had ceased. Neither Complainant signed the contract but both stated that they did not object to transferring. The Respondent acknowledged that the employees were not required to sign a new contract and could rely on their existing contracts in a TUPE transfer. The question was whether the Respondent employer could properly equate signing the new contract with consenting to the TUPE transfer. Each Adjudicator analysed this question differently and came to different outcomes. Decisions: Decision 1 - Franzoni v. Hibernia Homecare Ltd – dated 4th December 2025 Mr Fanzoni was employed as a Health Care Assistant from 9 September 2021. He claimed his employment was unfairly dismissed on 31st January 2025 because he refused to sign a new contract of employment when his role was due to transfer under TUPE Regulations. The Respondent denied dismissal and stated that the Complainant refused to transfer and thereby resigned. The Complainant relied on the wording in the Respondent’s memo of 31st October 2024 which stated that the transferring employees “will however, retain their current contracts of employment”.  The Respondent placed considerable emphasis on what is alleged that the Complainant said on 5th November 2024 meeting. While there was a dispute as to what exactly the Complainant said, the Adjudicator was satisfied that the Complainant indicated that he would not transfer and walked out of the meeting with a few other employees. The Adjudicator pointed out that this was almost 3 months before the transfer date and was stated in a heated meeting. The Respondent argued that this together with the failure to sign the new contract constituted resignation. The Adjudicator (Patricia Owens) rejected the Respondent’s argument and found that the Complainant was unfairly dismissed. The Adjudicator referred to case law in relation to establishing a genuine resignation and stated that a resignation must be clear, unambiguous and unequivocal. The Adjudicator held that if the Respondent genuinely believed the Complainant intended to resign or refuse to transfer then it would have been “reasonable and appropriate” for the Respondent to write seeking clarification of the Complainant’s position. The Adjudicator said that she was at a loss as to why the Respondent did not send a single email asking the Complainant to clarify his position. The Adjudicator criticised the Respondent for equating signing the new contract with confirming agreement to transfer, noting that there is no legal requirement for an employee to sign a new contract and also referring to the Respondent’s memo of 31st October 2024 stating that the employees would be retained on their current contracts. She stated that under the TUPE Regulations, a transferee or transferor is not entitled to insist that an employee sign a new contract and held that refusal to sign did not amount to resignation and did not provide any fair or lawful basis for termination. Although the Adjudicator acknowledged the Respondent acted fairly in its general consultation, she stated that it did not remove its obligation to seek clarification from the Complainant when he had not participated in some of the meetings and had not signed the contract and the alleged rejection was nearly 3 months earlier in a heated meeting. The Adjudicator found that the Complainant did not resign but was unfairly dismissed and awarded him 13 weeks’ pay. Decision 2 – O’Connor v. Hibernia Homecare Limited dated 18th November 2025 Ms O’Connor was employed from 9th June 2022 until 31st January 2025. Her employment ceased when she did not confirm her willingness to transfer under TUPE. She worked 30 hours per week. The Complainant gave evidence that the memo of 31st October 2024 stated that employees would become employees of the new company and retain current contracts/terms/benefits and that there would be no redundancies/layoffs because of the change. The Complainant refused to sign the new contract and had questions about why she had to sign and was concerned it might affect her hours. The Complainant did not work on Fridays and missed phone calls on the final date. The final day communication gave employees until 4pm to confirm agreement to transfer. It is not very clear in the decision whether or not she actually stated her rejection to transferring but it appears that like in the Franzoni case, she only expressed her objection to the transfer at the meeting on 5th November 2024 and not again afterwards. The Adjudicator found that she had resigned and relied on TUPE case law in relation to objection to transferring. Interestingly, the Adjudicator found that the Complainant effectively resigned because “she persistently refused to confirm willingness to transfer even though there was no change to her terms and conditions” (emphasis added).   The Complainant stated in evidence that other than signing the contract she did not know how else to confirm her willingness to transfer. The decision does not find that the Complainant “refused to transfer” which is what is referred to in TUPE case law to amount to a resignation. The Adjudicator was satisfied that the Complainant was not dismissed but resigned and therefore could not be unfairly dismissed. Takeaway for Employers: It is clear from these decisions that an employer involved in a TUPE transfer should not require the signing of a new contract as the method of indicating that the employee is not objecting to transferring. An employee is not required to consent to the transfer but has the option to reject or ‘opt out’ of transferring which needs to be clearly communicated to the employer. Where an employer believes an employee is refusing to transfer, it should seek clear written clarification from that employee. Remember resignation must be clear, unambiguous and unequivocal and should be in writing. Resignation in the heat of the moment can also be retracted. Ensure communications during the consultation period are consistent and clear and if refusal to transfer is going to be treated as resignation, ensure that this is clearly communicated to the employees well in advance of the transfer date in writing and that there are not contradictory messages sent to the employees. It should be noted that the first decision above is the most recent of the two decisions. It will be interesting to see if this is followed when this arises again. Links  - ADJ-00056751; ADJ-00057021 Authors – Anne O’Connell 21st January 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

Tony Molloy v Kaefer Limited (ADJ-00053834) is a recent unfair dismissal case that was before the Workplace Relations Commission (“WRC”). The Complainant brought the complaint under the Unfair Dismissal Acts 1977-2015 (the “Acts”) claiming his dismissal was both procedurally and substantively unfair. The Respondent denied this and claimed that his dismissal was necessary because it was impossible for the Complainant to continue in his role due to its client’s insistence that he be removed from their site. Facts: The Complainant was employed by the Respondent from 17th October 2016 until his dismissal on 29th May 2024. He was employed as a mechanical technician/fitter and was based on a site managed by a primary client of the Respondent since the beginning of 2024. Under the commercial contract between the Respondent and the client in question, the Respondent, through the Complainant and his team, completed specified mechanical works as outlined in permits issued by the client. The Respondent submitted that on 26th April 2024, and in the following days, the Complainant repeatedly refused to take responsibility for the permits or carry out duties as a permit holder, despite ongoing requests from his supervisor and other members of management. The Complainant gave evidence that his refusal was due to the recent initiation of the disciplinary procedure against a colleague because of a defect under such a permit and his belief that the permit process conferred an unacceptable level of liability upon him (regardless of the cause of the defect itself). He wanted his concerns addressed before he took up these duties again. The Respondent told the WRC that the Complainant was suspended with immediate effect from 15th May 2024 following his continued refusal to perform his duties. The Complainant emailed an apology to the Respondent following his suspension, accepting that his actions had been unacceptable. The Respondent intended to proceed with a disciplinary process, however prior to the scheduled disciplinary hearing the client issued the Respondent with  a formal letter requesting the Complainant’s removal from their site on an indefinite basis. The Respondent gave evidence that they asked the client to reconsider, but the client refused and insisted that the Complainant be removed from site. The Respondent submitted that they were contractually obliged to follow this directive and for that reason, they made the decision not to pursue the disciplinary process. They dismissed the Complainant and communicated this to him in correspondence on 29th May 2024. The Respondent’s Operations Manager gave evidence that their preferred outcome from the disciplinary procedure would have been a disciplinary sanction short of dismissal and the imposition of a Performance Improvement Plan (“PIP”), however the client’s reliance on a pre-agreed contractual term “forced their hand”. Evidence was given on behalf of the Respondent that they increased the Complainant’s notice pay from four to eight weeks as a gesture of goodwill. The Complainant appealed his dismissal, but it was upheld. The Complainant identified a number of procedural failures on the part of the Respondent, and argued that dismissal was disproportionate. The Respondent argued that the dismissal was fair because there were other substantial grounds justifying the Complainant’s dismissal, namely the client’s refusal to have him back on site, and he was not dismissed for misconduct. Decision: The Adjudicator, Mr. Brian Dolan, found that the Complainant had been unfairly dismissed. Under the Acts, the dismissal of an employee is deemed unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. There are a number of grounds that an employer can rely on to demonstrate that a dismissal was substantively fair under section 6(4) of the Acts. A further basis on which an employer can rely in defending an unfair dismissal claim is contained in section 6(6) which provides as follows: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.” [our emphasis].   The Adjudicator noted that section 6(6) is often invoked by employers seeking to justify dismissal in circumstances where a client refuses to permit an employee on site, arguing that this amounts to  “other substantial grounds” under that subsection. The Adjudicator noted the client in question was a primary source of work for the Respondent. However, the Adjudicator referred to a series of decisions addressing the reliance on “other substantial grounds justifying the dismissal” by employers experiencing pressure from third parties to remove employees from their sites. He pointed out that these authorities have established an onus on employers in these circumstances to consult with the third party, advocate on behalf of their employee, and consult with the affected employee on other roles that may be available in their organisation. In Merrigan v Home Counties Cleaning Ireland Ltd (UD904/1984), the Employment Appeals Tribunal (“EAT”) (as it then was) found that “The job of an employee cannot be at risk on the mere whim of a third party to the employment relationship”. In Derek Hevey v Provincial Security Services Ltd (UD447/2011), the EAT found that a Respondent “…will be expected to show that it has concluded an investigation into the reasons for the refusal of the respondent’s customer to have the claimant work on the site.” In An Employee v An Employer (UD205/2010), the EAT held that: “Every case must be considered in the light of its own particular facts. The dismissal of an employee brought about through pressure from third parties whether customers, clients, fellow employees or others may be justified provided the employer acts fairly and handles the procedure and investigation properly.” In the present case, the Adjudicator found that the Respondent could not rely on section 6(6) of the Acts and held that the Complainant was unfairly dismissed. The Adjudicator observed that it seemed apparent that the Respondent simply accepted the client's decision to remove the Complainant at face value and did not appear to advocate on his behalf. While evidence was given that the Respondent did speak with the client in this regard and asked them to reconsider, the Adjudicator found that the Respondent’s efforts were inadequate. The Adjudicator awarded compensation to the Complainant. In relation to the level of the award, the Adjudicator commented that “it is clearly apparent that the Complainant viewed his own behaviour as unacceptable and in consideration of the factual matrix presented by the parties, it is clear that these issues directly contributed to his dismissal.” The Adjudicator awarded €10,000 in compensation, taking into account the Complainant’s contribution to his own dismissal and his efforts to mitigate his losses. Takeaway for Employers: This case highlights the obligations on employers who are faced with a decision by a client not to permit one of their employees back on site. This type of scenario can pose a significant problem for employers in circumstances where the employee in question works primarily, or exclusively, on that client’s site. Such a decision does not always arise in response to a misconduct or performance issue, making it very difficult for employers to address in line with their policies. Even where there are misconduct or performance issues, employers are often placed in a difficult position when clients refuse to permit an employee to remain on site while they conduct an investigation or disciplinary process What is clear from the case law in this area, including this decision, is that employers have obligations to their employees that cannot be circumvented because of a client’s directive. What will be appropriate in one situation may not be suitable in another and employers need to ensure that their approach and response is tailored to the particular facts and circumstances. It is advisable for employers to seek legal advice as this can be a complex area. Links: https://www.workplacerelations.ie/en/cases/2025/december/adj-00053834.html You may also be interested in our previous article on a WRC case involving dismissal of an employee arising from a cancelled SLA. Link available here . Authors – Tara Kelly and Jenny Wakely   27th January 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2 www.aocsolicitors.ie

As we journey into 2026, it's timely to reflect on some key developments and noteworthy cases that shaped Irish Employment law last year. Minimum Wage The start of 2025 saw an increase in minimum wage to €13.50 per hour.  From 1st January 2026 it has increased further to €14.15 per hour. Gender Pay Gap Reporting  2025 saw gender pay gap reporting requirements extended to employers with at least 50 employees. Employment (Contractual Retirement Ages) Act 2025 This new legislation provides for a process whereby employees whose contract of employment specifies a retirement age below the state pension age (currently age 66) may notify their employer that they do not consent to retire at that age. There are certain notification requirements and on receipt of the notification, the employer must not enforce the contractual retirement age before providing the employee with a “reasoned written reply”. The new legislation was signed into law by the President just before Christmas 2025 however the provisions are not effective until such time as the Minister of Enterprise, Trade and Employment makes the necessary commencement order. Further details can be found in our Article, written on the first publication of the new Bill. General Scheme of the Equality (Miscellaneous Provisions) Bill 2024 The Bill proposes a number of noteworthy amendments to equality legislation. Further details can be found in our Article. However, significant amendments to these proposals are expected. WRC Looks Past the Corporate Veil  In Paul Lingard v Randridge International Ltd (In Examinership) (ADJ-00053934), the Workplace Relations Commission (“WRC”) found that a contractor satisfied the test for an employee set out by the Supreme Court in Revenue Commissioners v Karshan Midlands (Ltd t/a Domino’s Pizza) [2023] IESC 24. Although the contractual relationship was between two limited companies, the WRC looked behind this arrangement and found that there was a “contract of services”, i.e. an employment relationship. Further details can be found in our Article. Debenhams Case - High Court The High Court reversed a decision of the Labour Court which found Debenhams Retail Ireland owed their former employee €1,140 for a breach of its obligations in relation to collective redundancies. The Labour Court found that the Respondent employer had failed to commence the consultation process in good time and that by delaying the consultation until after the liquidators had been appointed, they had limited the options available in terms of coming to an agreement. However, the High Court found there was no evidence put before the Court of any options being lost or unavailable as a result of the 8-day delay. The High Court also found that a consultation process can start in advance of the first consultation meeting and took into account the surrounding circumstances (Covid-19 restrictions, Easter Bank Holiday weekend). Further details can be found in our Article. Employer Found Not to be Data Controller of Non-Work Related Personal Data The High Court upheld a decision of the Data Protection Commissioner (“DPC”) dismissing a complaint in relation to the HSE hack in 2021. The Applicant had discovered his personal email accounts had been compromised as well as his personal cryptocurrency account. The Applicant believed his work mobile phone was the source of the hack. The DPC decided that the HSE was not a “data controller”, within the meaning of that term in article 4.7 of the General Data Protection Regulation (EU) 2016/679 as the HSE did not authorise use of personal data on the work phone under their Acceptable Use Policy. Further details can be found in our Article. Significant Award for Breaches of Organisational of Working Time Act The WRC made an award of €34,999.99 for multiple breaches of the Organisation of Working Time Act 1997. The Complainant gave credible evidence he was not afforded his daily and/or weekly rest periods and worked in excess of the maximum weekly working hours set out under the 1997 Act. This decision was noteworthy in circumstances where the Adjudicator found that the Complainant’s working hours were determined by the needs of the business (he was a Chef) notwithstanding that the Complainant was responsible for rostering his own hours. Further details can be found in our Article. Significant Decisions Upholding Mandatory Retirement Ages:  2025 saw some noteworthy decisions from the WRC and the Labour Court in which mandatory retirement provisions were upheld.  In August, 2025 the Labour Court overturned the WRC decision which found that Mr Tom Ronan was discriminated against on the grounds of age when he was forced to retire at 70. This case had an interesting background as Mr Ronan was successful in his High Court application for an interim injunction requiring the Garda Commissioner to immediately re-engage him as a civilian driver pending the outcome of his proceedings. However, his application for an interlocutory injunction (to continue the interim order) was refused by the High Court, who found the appropriate route to pursue his claim was the WRC and Labour Court and that it would not be appropriate for the High Court to “trespass” on this statutory mechanism (a link to our Article on this aspect of the matter is also found below). The Labour Court noted that it was bound by the Supreme Court decision in Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 in which Mr Justice Collins emphatically endorsed the State’s decision to apply a mandatory retirement age of 70 to the majority of public servants.  Further details can be found in our Article.  Further details on the High Court Application can be found in our Article.  In October, 2025, the WRC upheld the enforcement of a mandatory retirement age provision by Eircom Limited where it determined Eircom had acted reasonably in accordance with its Retirement Policy and the mandatory retirement age was objectively and reasonably justified by legitimate aims. Further details can be found in our Article. Supreme Court Recognised Claim for Damages for Emotional Stress as a Result of a Data Breach But Not as a “Personal Injury” Claim The Supreme Court considered whether a claim for emotional distress as a result of a data breach falls within the statutory definition of “personal injury” and whether obtaining PIAB authorisation to initiate proceedings was required. It found that such a claim did not come within the definition of a “personal injury” claim. It was held the Plaintiff had a standalone claim for non-material damage pursuant to s117 of the Data Protection Acts. Mr. Justice Brian Murray also held that where a plaintiff’s claims are solely for mental distress, upset and anxiety that the plaintiff cannot expect anything other than very, very modest awards. Further details can be found in our Article.   Pension Auto-Enrolment The Government’s new statutory retirement savings system, MyFutureFund, went live from 1st January 2026. Employees are automatically enrolled if they are between 23 and 60 years of age, earn €20,000 or more per year and are not in “exempt employments”. Late in 2025 many employers were conscientiously preparing for this go-live date, especially upon the opening of the MyFutureFund Portal in December. New regulations were introduced relatively suddenly at the end of 2025 (and are already in effect since 1st January, 2026) setting out minimum standards that must be met in respect of contributions to occupational pension schemes and PRSAs in order for employments to be “exempt” from autoenrollment to MyFutureFund. See more about pension auto-enrolment in our original Article and January update here. A Quick Look at Noteworthy EU Developments… In the case of G.L. v AB SpA (C-38/24) the Court of Justice of the European Union (“CJEU”) ruled employers are required to provide reasonable accommodation to employees who are caregivers of their child with a disability. This decision broadens the protections for caregivers and the concept of discrimination “by association”. Further details can be found in our Article. The full judgement dated 11 September 2025 can be found here. On 11 November 2025 the CJEU annulled part of the Adequate Minimum Wages Directive while confirming the validity of the majority of the Directive. Article 5(2) and 5(3) of the Directive were found to constitute direct interference by EU law in the determination of pay and so were annulled. This judgement will likely require an update to the European Union (Adequate Minimum Wages) Regulations 2024 (S.I. No. 633 pf 2024). However, the judgement did not impact the promotion of collective bargaining, as required by the Directive. This is underway in Ireland with the publication of Ireland’s Action Plan to Promote Collective Bargaining 2026-2030 in early November 2025. Further details can be found in our Article. The full judgement can be found here. Authors – Tara Kelly, Ethna Dillon and Laura Killelea 27th January 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2 www.aocsolicitors.ie  

“MyFutureFund” Ireland’s new auto-enrolment pension system is now in effect as of 1st January automatically enrolling “eligible” employees. While many employers were prepared for this development, what came as a surprise were the further regulations signed into law on 22nd December, 2025 (S.I. No. 668/2025 - Automatic Enrolment Retirement Savings System Regulations (Amendment) (Section 52) Regulations 2025, hereafter the “Regulations”). The Regulations set out minimum standards that must be met in respect of contributions to occupational pension schemes and PRSAs in order for employments to be “exempt” from autoenrollment to MyFutureFund. These Regulations setting out minimum standards had not been expected for some time. The Regulations which are already in effect since January 1st stipulate the following minimum standards. Minimum Standards For Defined Contribution Schemes and PRSAs: Employer contributions must amount to not less than 1.5% of the employee’s gross pay or €1,200 in any year, whichever is less. In addition the aggregate contributions of the employer and the employee cannot be less than 3.5% of the employee’s gross pay or €2,800 in any year whichever is less. It is important to note the reference to “gross” as opposed to base pay. This is significant as traditionally many pension contributions have been calculated with reference to an employee’s base salary. It is important to be aware that “gross” pay reflects more than just an employee’s base salary. It can include things like commission, bonus etc. Minimum Standards For Defined Benefits Schemes: Where a scheme is a defined benefit scheme continuing service in that employment entitles the employee to accrue a long service benefit. Takeaway for Employers: Employers who are treating their employee’s employments as exempt from autoenrollment to MyFutureFund on the basis of contributions being made to an occupational pension scheme or PRSA should (if they have not already done so) review the contribution levels to ensure they meet the new minimum standards. In many cases the contributions may satisfy the standards, however, where there is a shortfall, employers need to be careful about how that shortfall is addressed. Some employers are choosing to make up the short fall through an increased employer contribution in circumstances where seeking to compel an increased employee contribution from existing employees likely presents additional legal issues/challenges. Employers may also like to review the “FAQ for Employers/Agents” that is available on the MyFutureFund Website (link below). Links: https://myfuturefund.ie/employer-faq https://www.irishstatutebook.ie/eli/2025/si/668/made/en/print?q=enrolment&years=2025 Author –Laura Killelea 23 January 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie      

Karen McHale v Mayo University Hospital (ADJ-00053715) involved a constructive dismissal complaint under the Unfair Dismissals Acts 1977 – 2015. The Complainant claimed that she was left with no option but to resign from her employment due to the Respondent’s treatment of her when a complaint was made against her under the Respondent’s grievance procedure. Her complaint was upheld and she was awarded compensation, including a lump sum in respect of her pension. Facts: A complaint was made against the Complainant by one of her colleagues following their return from leave. The Complainant’s line manager required the Complainant to carry out the return-to-work meeting with that employee. During that meeting, the employee mentioned to the Complainant that he had made a complaint about her, of which he assumed she was aware. The Complainant had not received a copy of the complaint and was not aware that a complaint had been made against her. She asked the Respondent to provide her with a copy of the complaint, but they did not, and she was directed to attend mediation in an attempt to resolve the complaint. When she attended the mediation, the mediator was surprised that the Complainant had not been given details of the complaint or provided with a copy of it. Further issues arose in respect of reporting lines, and the Complainant submitted that she was bypassed in the reporting structure. She went on certified sick leave, still without having been provided with a copy of the complaint. The Complainant was offered alternative positions that were not suitable, and she felt that she was bullied into accepting one of those positions. The Complainant ultimately resigned. She did not submit a grievance before doing so, because she felt that she was unable to rely on the Respondent’s grievance procedure given the lack of fairness afforded to her in respect of the complaint made against her under that same procedure. The Respondent sought to defend the claim on the basis that the Complainant had failed to exhaust the internal options available to resolve her grievances prior to resigning from her employment. It did not dispute that the Complainant had not been provided with a copy of the complaint against her before commencement of an investigation into the complaint and before commencement of the mediation process. Decision: The Adjudicator, Conor Stokes, upheld the Complainant’s claim. He referred to the decision in Re: Haughey [1971] IR 217 and the fundamental principles set out in that decision, which included the entitlement to be provided with the case being made out against you, and having the opportunity to rebut that case. He found that those principles did not appear to have been included in the Respondent’s grievance procedure, and were not afforded to the Complainant in respect of the complaint made against her. He was satisfied that a reasonable employer would regard the grievance procedure as flawed, and would not (and should not) expect or require her to have engaged with that flawed grievance procedure prior to her resignation. He found that she had been constructively dismissed. What is particularly interesting about this decision, is the Adjudicator’s calculation of the Complainant’s financial loss and the award of compensation made by him. Having found that compensation was the most appropriate remedy, the Adjudicator assessed the Complainant’s financial loss, noting her loss of a pension entitlement/lump sum as a result of the termination of her employment. He requested and obtained post-hearing submissions regarding financial loss and mitigation. From that information, the Adjudicator noted that the pension “built up” by the Complainant was preserved for her to “draw down” upon retirement, but he noted that that did not appear to be the case in respect of the Complainant’s pension lump sum of approximately €41,831. The Complainant had about 17 years left to qualify for a full pension. The Adjudicator included a lump sum of €41,831 in his award of compensation, reflecting the loss of this pension lump sum. Takeaway for Employers: The inclusion of a figure specifically relating to loss of a pension lump sum in an award of compensation is very interesting. It is not clear from the decision, but it would seem more likely that the Complainant’s pension was a defined benefit pension as opposed to a defined contribution pension. The inclusion of such a loss in calculating the Complainant’s financial loss is nonetheless an interesting approach, and it will be interesting to see if it is followed in subsequent decisions and/or if a similar approach might be taken in circumstances where a complainant’s pension is a defined contribution scheme rather than a defined benefit scheme. Link – https://www.workplacerelations.ie/en/cases/2025/november/adj-00053715.html 26th January 2026 Author – Jenny Wakely AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

In Kim Dempsey v Irish Prison Service (ADJ-00043513) the Complainant brought a complaint under section 77 of the Employment Equality Acts (as amended) against her employer Irish Prison Service, for failing to provide her with reasonable accommodation following a workplace incident that left her unable to carry out her regular duties. Facts: The Complainant commenced employment with the Respondent as a prison officer in 2008. In May 2017 while working for the Respondent, the Complainant suffered multiple injuries as a result of a serious assault by a prisoner. Since the incident the Complainant has suffered with chronic and ongoing back pain requiring her to undergo specialist treatment. She has been medically advised that she is not fit for manual duties and that she should return to work in an office-based capacity. The Complainant has not returned to work since this incident and has remained on sick leave since 2017. It seems that while the Complainant was on sick leave, she obtained the qualifications for the role of Work Training Officer Integrated Sentence Management (“WTO”) and was later offered a position in Cloverhill prison but the Complainant submitted she was never permitted to start this role. The duties of the WTO were in dispute in the case. In summary, the Respondent argued it was not possible to re-employ the Complainant as a WTO/Prison Officer, as all positions involved prisoner contact or the potential for prisoner contact in conflict type scenarios. The Complainant on the other hand argued the role of WTO is a primarily office based role albeit that in some understaffed prisons such as Cloverhill, some WTO’s do not perform the WTO role full time due to having to fill in for staff shortages elsewhere in the prison. However, it was the Complainants position that there are full time WTO positions available in other prisons that do not entail carrying out general prison officer duties and if they do, this arises only exceptionally and therefore any such requirement could be dealt with by way of a reasonable accommodation. It is worth noting that in the Complainant’s submission reference was made to the case of XXX v. HR Rail SA C-485/20 (10th February 2022) where the Court of Justice of the European Union (the “CJEU”) handed down a judgement in the context of a worker becoming permanently incapable of remaining in their job because of the onset of a disability. The CJEU recognised in that case that the concept of reasonable accommodation may include reassignment to another job within the undertaking for which the worker has the necessary competence, capability and availability and where such reassignment would not impose a disproportionate burden. The CJEU recognising that the possibility of assigning the person to another job was aimed at a situation where there is “at least one vacancy” which the worker concerned would be able to occupy, so as not to impose a disproportionate burden on the employer. Decision: WRC Adjudication Officer Jim Dolan upheld the Complainant’s claim. In his decision he quoted detailed sections of the landmark Supreme Court ruling in Nano Nagle School v Daly [2019] IESC 63 which examined the obligations of an employer to provide reasonable accommodation for an employee with a disability. See a link to our previous article on the Nano Nagle judgment here (https://aocsolicitors.ie/landmark-supreme-court-decision-on-the-obligation-to-provide-reasonable-accommodation-to-employees-with-disabilities/). The Adjudicator also referred to the judgment in Robert Cunningham and Irish Prison Service [2020] IEHC 282 where Mr Justice Barr commented that it was clear from the decision in the Nano Nagle case, that there has been a “paradigm shift” in the way disability is to be viewed in European and Irish law. Mr. Justice Barr commented that the legislation and case law clearly provide “rights of real substance to persons of disability, who wish to enter or remain in work”. The Adjudication Officer ordered the Respondent to pay compensation to the Complainant in the sum of €60,000. He also made an order to reasonably accommodate the Complainant by finding a position which will permit her continued employment as a prison officer within three months. While the Adjudicator did not directly comment on the Complainant’s reference to the XXX case (which post dates Nano Nagle), the order to find a position which will permit the employee’s continued employment as a prison officer within three months is arguably consistent with that Judgement. It is also worth noting that in his decision the Adjudicator remarked upon the fact the Complaint had not been invited to attend a conference that had taken place to discuss her possible return to work. He commented that he believed she should have been invited to attend that conference. The Adjudicator ordered that the Complainant should be included in any discussion/decision in the tasking of finding her a position. Takeaway for Employers: In so far as the order to find a position within three months is concerned, it is worth pointing out that the Respondent in this case was a large public body where the likelihood of an alternative position being available may be higher than in a small private business. It does not necessarily follow that a similar order would be made in respect of a smaller organisation. Nonetheless, this decision serves as an important reminder that the right of reasonable accommodation is a right of “real substance” and employers should be mindful of their duty to provide reasonable accommodation measures to employees unless the measures would impose a disproportionate burden on the employer. Link: https://www.workplacerelations.ie/en/cases/2025/november/adj-00043513.html Authors- Abigail Ansell, Laura Killelea   2nd January 2026 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

The Government’s new statutory retirement savings system will go live from 1st January 2026. The scheme known as MyFutureFund, will be overseen and administered by the National Automatic Enrolment Retirement Savings Authority (NAERSA). NAERSA will identify which employees meet the eligibility criteria for auto-enrolment using Revenue payroll data and will enrol them, which should result in minimal administrative work for employers. Employees will be enrolled automatically in the new pension scheme if they are: * Aged between 23 years and 60 years; * Not currently part of a pension plan; and * Earn €20,000 or more per year (there is an earnings threshold of €80,000). Employees will have the option to opt-out (after 6 months, but before 8 months) or suspend their participation in the scheme. Employees who are under 23 or over 60 years of age, or who earn less that €20,000 a year, may opt into the scheme, with all contributions from their employer(s), the employee and the State applying. The fixed contribution rates from the employer, the employee and the State will be phased over a period of 10 years and are set out below: Year of the auto-enrolment scheme Employee Contribution Rate Employer pays Government pays 1 to 3 1.5% 1.5% 0.5% 4 to 6 3% 3% 1% 7 to 9 4.5% 4.5% 1.5% 10 and after 6% 6% 2% Employees who are already a member of an occupational pension scheme or trust, Retirement Annuity Contract (RAC) or have a Personal Retirement Savings Account (PRSA) or Pan-European Personal Pension Product (PEPP), which is recorded in payroll, will not be auto-enrolled and will not be able to opt in based on that employment. However, where an employee has a second employment where pension contributions are not paid, the employee can be auto enrolled or opt into the scheme in respect of that second employment if they meet the eligibility requirements. Employers and employees should be aware that when an employee has multiple jobs, NAERSA will take into account the combined earnings to determine eligibility for auto-enrolment and an employee will be enrolled for any job without existing pension coverage if the total earnings are over €20,000. Takeaway and Considerations for Employers: Employers, if they have not done so already, need to ensure that they meet their auto-enrolment obligations. Failure to do so will result in penalties and possible prosecution. Employers should consider: * Review existing pension schemes – employers with existing pension schemes in place should ensure that their existing scheme qualifies for exemption. Employers should bear in mind that any employees who are not part of an existing pension scheme will be auto-enrolled if they meet the eligibility criteria. * Updating payroll software – employers should update their payroll software and should ensure that it can take instructions for enrolment, calculate and pay employer and employee contributions to NAERSA. * Budgeting for contributions – contributions will commence in January 2026, with an incremental increase over the next ten years, employers should ensure that they have budgeted appropriately. * Clear communications with employees – employers will be obliged to inform employees when they are first enrolled. Employers are also reminded that it is an offence to take any action that hinders or attempts to hinder an employee from participating in the MyFutureFund scheme. The employer portal contains sample correspondence that employers can use to issue to employees. * Employer Portal is now open – As of 1st December 2025,the MyFutureFund employer portal is open and employers must: 1. Complete their profile on the MyFutureFund Portal before the end of December. 2. Set up a payment method. 3. Run payroll as usual. 4. Employers should also keep an eye out for NAERSA notifications and communications via the portal. Links – MyFutureFund Portal * Auto-Enrolment Retirement Savings System for Employers – Department of Social Protection Authors- Ethna Dillon, Jenny Wakely Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

In the case of Patrick Donnellan and Eircom Limited (ADJ-00051860) the Complainant brought a complaint under section 77 of the Employment Equality Act, challenging the Respondent’s enforcement of a mandatory retirement age of 65 and its refusal of his application for an extension of his contract. Facts: Prior to his retirement in April 2024, the Complainant had been employed by the Respondent (and/or its predecessor) for 44 years. The Complainant submitted that his contract of employment did not specify a retirement age. He submitted that it made reference to 65 in terms of receipt of pension but there was no requirement to retire at that age. The Complainant was employed as a field technician. The Complainant submitted that he had substantial financial commitments for example putting a family member through third level education and was not in a position to retire at 65. Both sides acknowledged that he sought an extension of his contract but that this was refused citing factors such as intergenerational fairness, health and safety concerns and succession. He appealed this internally within the Respondent but his appeal was unsuccessful. The Respondent gave evidence at hearing to the effect that the Respondent’s defined benefit pension scheme has historically been drawn down at age 65 and that retirement at 65 is custom and practice across the organisation. Evidence was given of the Respondent’s retirement policy having been reviewed back in 2020 following external benchmarking and union engagement. Evidence was also provided around the rationale behind the retirement age of 65, naming succession planning, career progression, headcount management and the need to maintain an age balanced workforce. The Respondent submitted that 70% of its 900 staff are employed as field technicians (like the Complainant) and 60% of field technicians are currently over the age of 60. The Respondent submitted there is an aim of avoiding sudden loss of skilled staff.  Reference was also made to the field technician role being a “safety critical” role. The Respondent outlined the succession planning in place for the Complainant’s territory and the hiring of an apprentice in 2023 and in 2024 to address anticipated retirement in the Clare area. A witness for the Respondent gave evidence that “retirement age of 65 was to support intergenerational fairness, career progression, workplace diversity and health and safety, particularly relevant in physically demanding roles like those in open Eir, where 65% of the workforce is over 60, and in Clare, 88% are over 60”. The Respondent gave evidence that the Complainant’s annual salary after 44 years of service had been €48,463.11 and that upon retirement, he received a tax-free lump sum of €68,087.34 and an annual pension of €22,695.00. Decision: In this decision, the WRC Adjudication Officer Úna Glazier- Farmer relied on the current legal position on retirement age as set out in Seamus Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 (see end of this article for a link to our previous article on Mallon). The Adjudication Officer referred to the Supreme Court’s finding in Mallon that a mandatory retirement age does not constitute unlawful age discrimination where it pursues a legitimate aim and the means of achieving that aim is appropriate and proportionate in accordance with article 6)1) of the Directive 2000/78/EC and the relevant CJEU jurisprudence. The Adjudicator listed some examples of what can constitute a legitimate aim as set out by the Supreme Court and referred to the Supreme Court having found that the avoidance of an individual capacity assessment has been recognised as a legitimate aim in favour of justifying a general retirement age. The Adjudication Officer also referred to another recent WRC Decision on the topic of retirement age namely Valentine Reilly v Meath County Council ADJ-00050118 and the analysis of the Adjudication Officer in that case. Ultimately, the Adjudication Officer found that in the instant case there had been a “consistent and systematic” and “coherent” application of the mandatory retirement rules by the Respondent, that the Respondent’s legitimate aims were identified in a letter to the Complainant communicating its decision to refuse an extension of his contract and were based on intergenerational fairness, succession planning, and health and safety. She noted the Respondent’s Retirement Policy which also refers to maintaining an age balance in the workplace. She found all four aims were noted by the Supreme Court in Mallon as legitimate. The Adjudication Officer relied on the Supreme Court’s finding that an employer is “better placed than the court to assess what [is] necessary or appropriate for the effective operation of the coronial system” and found that this limits the role of the WRC to consider whether the Respondent’s judgement appeared to be unreasonable. She found that the Respondent is best placed to assess what is necessary or proportionate for the effective operation of its business. The Adjudication Officer found the Respondent had acted reasonably in accordance with its Retirement Policy and the mandatory retirement age was objectively and reasonably justified by legitimate aims. She commented that while it is entirely understandable that the ongoing costs associated with supporting his family are substantial, in the circumstances, the Respondent’s mandatory retirement age of 65 was appropriate and necessary in light of the pension provision. Takeaway for Employers: This decision serves as reminder that while mandatory retirement ages are permissible if they pursue a legitimate aim and the means of achieving that aim are appropriate and proportionate, they provide fertile ground for dispute and are regularly challenged by employees in the WRC. Employers should consult with their lawyers to ensure they are up to date on the topic of retirement ages and are operating in a manner that is consistent with the findings of the Supreme Court in Mallon. Link  – https://workplacerelations.ie/en/cases/2025/october/adj-00051860.html Links to some other recent articles we have written on this topic: https://aocsolicitors.ie/supreme-court-clarifies-law-on-mandatory-retirement-ages/ https://aocsolicitors.ie/recent-decisions-on-mandatory-retirement-highlight-requirement-for-appropriate-contractual-provisions-and-retirement-policies/ Authors – Abigail Ansell and Laura Killelea 30 November 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie    

In A Female Complainant v The Health Service Executive (ADJ-00055810), the Workplace Relations Commission (the “WRC”) found that the Complainant was discriminated against by her employer on the grounds of gender. The Adjudicator, Conor Stokes, found that the Complainant was sexually harrassed by a senior colleague for over a year, and that the Respondent did not react robustly enough in order to protect the Complainant. The Adjudicator awarded the Complainant 52 weeks’ remuneration (€86,717) for the effects of the discrimination. Facts: The Complainant is a pharmacist working in a HSE hospital setting. The Complainant lodged an employment equality claim with the WRC on 10th December 2024 alleging gender discrimination and sexual harassment. The Complainant described a series of incidents in which she was sexually harassed by a senior male pharmacist, the first of which took place in May 2023. Further incidents occurred, culminating in an incident in June 2024 during which the senior pharmacist showed her a picture of naked male genitalia while they were along in the pharmacy office together. The Complainant lodged a complaint of sexual harassment the following Monday when her line manager returned to work. The Complainant sent an email to HR in which she sought a formal investigation into seven separate incidents. The Complainant submitted that she was only interviewed more than eight months after making a complaint. She stated that the harasser continued to work in the workplace for over a year while she had to move elsewhere to try and avoid him, and she continued to encounter him in the workplace. The Complainant had to take stress leave twice during that time. The Respondent stated that it was required to give the senior pharmacist due process and noted that he was entitled to natural justice and fairness. It referred to the investigation that was carried out and the report that was issued in respect of the complaint. The investigation found in favour of the Complainant. While the Respondent submitted that it put certain safety measures in place, it accepted that it did not do enough to protect the Complainant. Decision:  The Adjudicator found the Complainant to be credible, and in the absence of any evidence to the contrary, he found that all the incidents described by the Complainant took place (not just those upheld in the investigation which the senior pharmacist had admitted to). The Adjudicator found that the senior pharmacist repeatedly violated the safeguarding direction put in place by the Respondent. This was confirmed by the Respondent’s witness who confirmed that she had to speak to him repeatedly. The Adjudicator was satisfied that the Complainant had “amply” established facts from which it could be presumed that she had been discriminated against. Accordingly, the burden shifted to the Respondent to prove the contrary. The Respondent did not challenge the Complainant’s version of events and affirmed many of the details given by her including the timeline and how long it took to address matters while the senior pharmacist remained in place and the Complainant was moved around. The Adjudicator found that the Respondent “wholly failed” to take steps to prevent the senior pharmacist from continuing to sexually harass the Complainant. He “repeatedly inserted himself” into the Complainant’s work environment, resulting in the Complainant taking stress-related sick leave. Up to the date of the WRC hearing, 13 months after the sexual harassment had been reported, no disciplinary action had been initiated against the senior pharmacist. The Adjudicator was critical of the relevant HSE policies and the delay, as well as the inadequacy of the safeguarding mechanisms put in place. He concluded that the Respondent did not take such steps as were reasonably practicable to safeguard the Complainant. He found that the Respondent was liable for the discrimination of the Complainant, and was unable to rely on the defence in section 15(3) of the Employment Equality Acts. In considering the appropriate redress, the Adjudicator noted that it is important that any award should serve the purpose of dissuading a potential harasser, of persuading an employer to comply with the legislation, and should be proportionate to the infringement and breach of the Act. The Adjudicator awarded the Complainant compensation in the amount of €86,717, equivalent to 52 weeks’ remuneration, for the effects of the discrimination in this case. Interestingly, the Adjudicator also ordered the Respondent to disregard the two periods of sick leave for work-related stress taken by the Complainant arising from the harassment for the purposes of annual and multi-annual sick leave calculation. Takeaway for Employers: This decision is a strong reminder to employers of their obligations to employees under the Employment Equality Acts. Breaches of employment equality legislation can be very costly for organisations, as awards of compensation are made for the “effects” of the discrimination and are not dependent on loss of earnings, increasing the potential exposure for employers. Employers must ensure that they have robust policies in place that protect the rights and interests of employees who may experience harassment. It is essential that employers ensure that their policies are effectively communicated to employees and appropriate training is advisable. When complaints of harassment or discrimination are made in the workplace, employers should act without delay in order to protect the rights of all parties concerned. Legal advice is recommended in navigating this sensitive area. Link- ADJ-00055810 28th November 2025 Authors – Jane Holian, Jenny Wakely Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie    

In Dariusz Kowalski v Nvd Limited (ADJ-00034716) the Complainant claimed that he was unfairly dismissed by the Respondent because of his refusal to sign a new contract that altered the terms and conditions of his employment to his detriment. Facts: The Complainant began working for the Respondent as a driver in 2005 transporting new cars on trucks to various destinations in Ireland, the UK and the EU. In 2009, the Respondent engaged with SIPTU to introduce new terms and conditions including a reduction to the Complainant’s pay without his agreement. The Complainant engaged in prolonged efforts over twelve years to revert to the terms and conditions of his 2005 contract without success. In 2021 he was offered a new contract with non-negotiable terms, including the requirement to serve a probationary period, even though he had been working for the Respondent since 2005. There were other less favourable terms, including relating to the Complainant’s hours of work, the inclusion of a fixed retirement age of 60, higher cash penalties in the event of damage to vehicles, and uncertainty regarding the details relating to his bonus and times of work, which could be changed without his agreement. The 2021 contract also provided that the Respondent could vary terms solely on the basis of business needs whereas the 2005 contract required the agreement of both parties to alter the terms of the contract. The Complainant refused to sign the new contract. The Complainant was dismissed on 19th February 2021, purportedly on the basis of redundancy, and paid eight weeks’ salary in lieu of notice. The Complainant’s position was that the contract was being made “redundant” and not the work/the role. He pointed out that the dismissal letter referred to the contract and argued that a unilateral change in contractual terms does not give rise to a redundancy situation. He also argued that at the time of his dismissal, the market was expanding and there was no reduction in the requirement for drivers on the part of the Respondent. The Complainant contended that his dismissal arose not from a requirement to reduce the number of drivers, but instead as a result of his refusal to sign the new contract. Without prejudice to the Complainant’s position that there was no genuine redundancy, the Complainant also argued that there was no fair redundancy process: the Complainant was not put on notice of redundancy; the Respondent did not follow a fair selection process, but simply selected the Complainant and three of his colleagues who also refused to sign the new contract; and the Complainant was simply informed that he was being made redundant. The Respondent’s position was that the Complainant was not unfairly dismissed, and it was a genuine redundancy. The Complainant refused the offer of suitable alternative employment and therefore was not entitled to receive a statutory redundancy payment. The Respondent provided details of market changes in respect of car importations as a result of the worldwide economic crash in 2008, and those associated with Brexit. Details were provided regarding the Respondent’s engagement with SIPTU in respect of pay restructuring, and a pay cut negotiated with SIPTU in 2009, to be restored when pre-2009 revenue returned. SIPTU sought a return to pre-2009 pay in negotiations with the Respondent between 2010 and 2011. However, the Labour Court ruled against it. In 2013 there were further negotiations between SIPTU and the Respondent, and drivers were given an option to either accept a new contract with €8000 in compensation for changes to conditions and salary reduction, or voluntary redundancy. The Complainant held out for a return to the 2005 contract. Further efforts to get the Complainant to agree to the new 2013 contract (between 2014 and 2018) were unsuccessful. The Complainant lodged a civil bill in the Circuit Court in 2018 for breach of contract when the Respondent amended his terms and conditions in accordance with the terms of the 2009 agreement to which the Complainant never agreed. This was settled in December 2020. Further attempts were made to secure the Complainant’s agreement to the new contract in December 2020 and January 2021, but these efforts were also unsuccessful. The Respondent issued the Complainant with a new contract in 2021 and informed him that he would be made redundant if he did not sign it, and that no statutory redundancy would be paid because suitable alternative employment was offered. The Complainant rejected the contract and was made redundant. Decision: The Adjudicator, Máire Mulcahy, found that the requirement for the transportation of cars had not reduced, and the “manner of doing business” remained unchanged. She noted that the Respondent had not considered anyone else for redundancy except the Complainant and his three colleagues who took legal action against the company. The Adjudicator referred to the dismissal letter which made it clear that the reason for the Complainant’s redundancy was his refusal to accept the new contract. She was satisfied that the Complainant’s dismissal was not due to a genuine redundancy: “The altered terms in the contract put to the complainant in 2021 did not indicate a diminished need for [sic] a reduction in the service to customers as opposed to requiring greater flexibility on his part to meet the needs of those customers. It’s not a redundancy that meets the statutory definition as the requirement for truck drivers had not diminished. That his refusal may have been unreasonable to accept the altered contractual terms is not a matter which fits in with the definition of a redundancy.” The Adjudicator then considered whether or not the Respondent unfairly dismissed the Complainant. In doing so, the Adjudicator identified the Respondent’s failure to dismiss the Complainant through a fair disciplinary process as the “biggest defect” in the Respondent’s conduct. She noted that the Complainant was given an ultimatum, and then the same person who gave him the ultimatum dismissed him a month later. She concluded that the Complainant was unfairly dismissed. However, the Adjudicator acknowledged that the Complainant behaved unreasonably in failing to accept the challenges facing the Respondent and in his dealings with the Respondent, noting that this was “short” of what the Respondent was entitled to expect. She found that his “mistrust in the bone fides” of the Respondent who had engaged in “painstaking efforts to find a resolution and avert dismissal was either misplaced or manufactured”. While she noted that opportunism is not a substantial ground for dismissal, she took the Complainant’s behaviour into account in assessing the amount of compensation to award by way of redress. The Complainant’s loss was €9,173 and the Complainant was awarded €3,500 by way of compensation which the Adjudicator regarded as just and equitable in all the circumstances. Takeaway for Employers: While this case was quite fact-specific, the decision highlights that although redundancy is a fair reason for dismissal, “redundancy” has a specific statutory definition contained in the Redundancy Payments Act 1967. Section 7(2) sets out the various circumstances that may give rise to a redundancy situation. The fact that an employee’s contract of employment may no longer be fit for purpose does not mean that the employee’s role is redundant. Employers that find themselves in this situation should note that the Adjudicator in this case suggested that an employer ought to address an employee’s unreasonable refusal to negotiate necessary amendments to his/her contract of employment through a fair disciplinary process. Careful consideration must be given to the provisions of section 7(2) of the 1967 Act and whether or not a genuine redundancy situation exists before determining the appropriate course of action.   Link: ADJ-00034716 - Workplace Relations Commission   Authors- Abigail Ansell and Jenny Wakely   29th October 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2   www.aocsolicitors.ie  

 In Sara Halpin v Robert & F Warren Ltd (ADJ-00058438), one of the claims that the Complainant sought adjudication from the Workplace Relations Commission (“the WRC”) was under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, commonly referred to as “TUPE Regulations”. Her claim was that she was never notified of the transfer which occurred in 2021. Although the claim was lodged in April 2025, approximately 4 years after the transfer took place, the WRC Adjudicator, Conor Stokes, found that the contravention of the TUPE Regulations was within time for him to hear the claim. Facts: The Complainant held a role in Human Resources within the Respondent company. The Complainant claimed that she was never made aware that a transfer of undertakings had taken place, and that her employment transferred from one employer to another. The Complainant stated that she understood the transfer of undertakings to have taken place in 2021 but only became aware of this fact from communications with the Revenue Commissioners during the 12 months prior to lodging the complaint with the WRC. The Respondent confirmed that it never made the Complainant aware of the existence of a transfer of undertakings. The Respondent confirmed the principals of both entities were the same person. Therefore, the Respondent had not complied with Regulation 8 of the TUPE Regulations in respect of consultation and providing the required information to the Complainant but that was four years ago. Regulation 10 of the TUPE Regulations refers to the time limits within which to make a claim for such breaches and states that: “A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates..” The six-month time frame is mirrored in section 41(6) of the Workplace Relations Act 2015. Section 41(8) of the Workplace Relations Act provides for an extension of time: “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” Notwithstanding that the Adjudicator appears to have accepted that the transfer of undertakings took place in 2021, the Adjudicator found that the complaint fell within the period envisioned in the Act. The Adjudicator stated: “The respondent confirmed that it never informed the complainant of the change of ownership of the business.  Accordingly, I consider that the date of the contravention to which this complaint refers falls within the period comprehended by the Act and is validly before the WRC.” It is not clear from the written decision why the Adjudicator granted the extension “later than six months after” the expiration of the time limit i.e. beyond the 12-month extended period - was it due to the Respondent never informing the Complainant or was it due to the fact that the Complainant discovered the transfer within 12 months of her lodging her claim. The author of this article was not involved in this case nor present at the hearing. It is possible that the parties are clearer to the basis for this decision. The Adjudicator ordered the Respondent to pay the Complainant four weeks in compensation for the breach of Regulation 8. Takeaway for Employers: While the principles in this decision are straightforward, employers should be aware the laws governing TUPE are complex. The transferring employer must provide TUPE information, including the proposed date of transfer and reasons for the transfer, at least 30 days before the transfer of undertakings takes place, or at the very least, in good time before the transfer. Employers should remember that the purpose of the TUPE Regulations is to protect employees’ rights where a transfer of undertaking occurs. While time limits apply for TUPE related complaints to the WRC, organisations should be aware that they may be exposed to further extensions if they fail to inform the employees at all about the transfer of undertaking and it is better to inform the employees, even if late, to start the time limit to run and limit the exposure.   Link –  ADJ-00058438 - Workplace Relations Commission   Authors- Jane Holian, Anne O’Connell   29th October 2025   AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie  

The Labour Court recently issued its decision on an appeal of a Workplace Relations Commission (“WRC”) decision which found that Mr Tom Ronan, a civilian garda driver (the “Complainant”), was discriminated against when he was forced to retire at 70. The WRC Adjudicator, Brian Dalton, ordered re-engagement of the Complainant in his role as a driver and a three-year extension of his employment from the date of re-engagement. We examined the WRC decision in our newsletter article “WRC Orders Re-Engagement of Driver Forced to Retire at 70 – Mandatory Retirement ‘Highly Likely’ to Cause Him Financial Hardship” here. In An Garda Siochana v Tom Ronan (EDA2560) the Labour Court overturned the WRC decision. Facts: The Complainant was a Civil Servant who commenced employment as a driver with the Department of Justice in January 2020, and was subsequently transferred to An Garda Síochána. He was retired from his role when he reached the mandatory retirement age of 70. The Complainant argued that some of his colleagues in comparable roles were permitted to work past 70. He claimed that he was discriminated against on the ground of age and that he needed to keep working due to his personal circumstances, arguing that he would endure financial hardship post-retirement. The Adjudicator in the WRC agreed that he was discriminated against notwithstanding that the retirement age had already been found to be objectively justified, placing significant emphasis on the issue of financial hardship. He decided that on the facts of the case, the mandatory retirement age for the Complainant was unreasonable. The Complainant then sought a High Court injunction to essentially give effect to the WRC Order which was under appeal to the Labour Court. An interim injunction was initially granted, but an interlocutory injunction was refused on the basis that there was a statutory remedy available and the WRC and Labour Court were the most appropriate fora to decide on the matter. Mr Justice Mulcahy pointed out that section 43(3) of the Workplace Relations Act 2015 makes it clear that where a WRC decision is appealed to the Labour Court, the WRC Order cannot be enforced by the District Court and a WRC Order which is under appeal should not be considered as being operative. We wrote an article examining the High Court decision entitled “Leave to Appeal to Supreme Court Sought by Civilian Garda Driver who was Refused Interlocutory Injunction by High Court” here. Labour Court decision: The Labour Court referred to the Supreme Court decision in Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 in which, at paragraph 88 of the judgment, Mr Justice Collins emphatically endorsed the State’s decision to apply a mandatory retirement age of 70 to the majority of public servants. The Court referred also to paragraph 92 of the judgment where Collins J pointed out that this is “considerably higher” than the current pensionable age of 66 in respect of the Social Welfare Consolidation Act 2005. The Labour Court noted that it was bound by the Supreme Court’s decision in Mallon and found that the Complainant’s complaint that he was discriminated against by the Respondent when he was compulsorily retired was not well founded. The Court stated that the Respondent’s decision was “nothing more than the implementation of the State’s policy as embodied in the 2018 Act and that Act does not give any discretion to individual public sector employers to extend an individual public servant’s employment beyond his or her seventieth birthday.” Finally, the Labour Court found that the Complainant’s attempt to compare his situation to colleague civilian drivers who were recruited between 2004 and 2012 (and do not have a mandatory retirement age) was inappropriate: “It is a matter of public record that the State decided against retrospectively applying a mandatory retirement age to this cohort of public servants when enacting the 2018 Act as to have done so could have given rise to a perception of unfairness and may have been inconsistent with those workers’ legitimate expectations.” Takeaway for Employers: The area of mandatory retirement and age discrimination is a complex one which has given rise to numerous WRC and Labour Court decisions in recent times. As noted in our article “WRC Orders Re-Engagement of Driver Forced to Retire at 70 – Mandatory Retirement ‘Highly Likely’ to Cause Him Financial Hardship” (link above), employers will not be used to having to consider an employee’s financial situation in making a decision about mandatory retirement in an individual case. The Labour Court decision is welcome clarification on this point and appears to be the right decision, particularly in circumstances where the retirement age had already been found by the Supreme Court to be objectively justified. Link: https://www.workplacerelations.ie/en/cases/2025/august/eda2560.html  Author - Jenny Wakely 19th September 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

The Supreme Court judgement (of O’Donnell CJ, Dunne J, Hogan J, Murray J and Collins J) in Patrick Dillon v. Irish Life Assurance PLC which was handed down on 24th  July 2025, considered whether claims for emotional distress as a result of a data breach falls within the definition of ‘personal injury’ under the Personal Injuries Assessment Board Act 2003 and whether obtaining PIAB authorisation to initiate proceedings was required. It found that such a claim did not come within the definition of a ‘personal injury’ claim. It will be interesting to see the application of this decision going forward to other potential claims in the employment law area. Facts: The Plaintiff, Patrick Dillon, held a life assurance policy with the Defendant,  Irish Life. The Defendant issued in error six letters in relation to the Plaintiff’s policy containing  his personal and financial data between 2008 and 2020 and sent them to a  third party. The Plaintiff issued proceedings in the Circuit Court alleging that the data breaches were caused by negligence and breach of duty, including breach of statutory duty and caused him “distress, upset, anxiety, inconvenience, loss and damage”. This was due to the alleged breach by the Defendant of the Data Protection legislation. The Defendant argued that the Plaintiff’s claim fell  within the definition of ‘personal injury’ within the meaning of the Civil Liability Act 1961 which requires a pre-authorisation from PIAB, which the Plaintiff had not obtained. Also, it argued  that he should have commenced proceedings by Personal Injuries Civil Bill rather than the Equity Civil Bill in which they were instituted. Both the Circuit Court and the High Court on appeal found that the proceedings sought damages for ‘personal injury’ and that PIAB authorisation should have been obtained before instituting proceedings and therefore they dismissed his claim. The Supreme Court granted Plaintiff the leave to appeal the High Court decision as it considered this case raised issues of general public importance about whether a claim for damages for “distress, upset and anxiety” arising from a data breach could possibly be seen as a claim for damages for personal injury and the compatibility of PIAB authorisation requirement with EU law. Decision: In this decision there was two key issues that fell for consideration . One being whether the non-material damage (distress, upset and anxiety) fell within the statutory definition of ‘personal injury’ as found by the High Court. The second issue being if the Plaintiff’s claim is a form of ‘personal injury’ , whether a requirement to apply to PIAB for pre-authorisation  would render it extensively difficult for the plaintiff to exercise his rights to compensation for non-material damage under the GDPR in breach of the EU Directive. The Supreme Court judgement delves into the statutory and common law definition of the term ‘personal injury’. This judgment highlights that in relation to the various statutory definitions: ‘it is easy to lose sight of the fact that while the definition of ‘personal injury’ used in these statutes is comprehensive, in none of them does it purport to be of general application. It is instead used for various distinct, related but quite specific purposes.’ The Court also refers to the case of Clark v O’Gorman where it was held that a personal injury action is not a claim in which standalone damages are sought to compensate for distress and anxiety. Mr. Justice Brian Murray held that the Plaintiff’s claim in negligence was misconceived as he cannot obtain damages in negligence for mental distress that falls short of a psychiatric injury. However, he held that the Plaintiff had a standalone claim for non-material damage pursuant to the unique claim set out in Section 117 of the Data Protection Acts. He also held that where a plaintiff’s claims are solely for mental distress, upset and anxiety that the plaintiff cannot expect anything other than very, very modest awards. Takeaway for Employers: The Supreme Court’s Decision in Dillon v Irish Life Assurance Plc is important to note where claims for emotional upset, distress, or anxiety without a recognised psychiatric illness do not qualify as personal injury but also illustrates where such claims may still proceed in respect of certain statutory obligations. While this decision specifically related to the breach of GDPR and the remedy provided for in that legislation, it will be interesting to see if the decision will be applied to other statutory remedies where there is non-material damage such as under the Protected Disclosures Acts or under the Safety, Health and Welfare at Work Acts. Link: https://www2.courts.ie/view/judgments/56f5ca9a-b457-4cc2-b47d-430d66ec47d2/94687f75-3845-4430-be87-9699d49b9460/2025_IESC_37.pdf/pdf Authors – Anne O’Connell & Abigail Ansell 18 September 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

In Emily Williams v Board of Management, St Tola’s National School (ADJ-00055461) the Complainant alleged she was discriminated against by reason of her family status by the Respondent primary school. The Complainant submitted a complaint to the Workplace Relations Commission (“WRC”) under the Employment Equality Acts 1998-2015 (the “Acts”). Facts: The Complainant was employed by the Respondent as a teacher on a series of fixed-term contracts from September 2022 to August 2024. The Complainant felt she was treated less favourably than others when being considered for teaching roles because she was on maternity leave. The discrimination complaint submitted by the Complainant focused on two main incidents: The awarding of a Contract of Indefinite Duration (“CID”) to her colleague – “Comparator A” Not being appointed to a further fixed-term position available within the Respondent school - losing out to “Comparator B” and her treatment during this interview process In February 2024 a permanent vacancy arose in the Respondent school due to a resignation while the Complainant was on maternity leave. At the time the Complainant and another teacher “Comparator A” were eligible for a CID, both having worked at the school for two years on fixed-term contracts. The Complainant submitted to the WRC that the Principal of the Respondent awarded the CID to Comparator A without informing her (she found out through a colleague) and without any transparency regarding the decision-making process. The Complainant made inquiries and was later informed that the CID had been awarded based on the highest score from a previous interview round in 2023. The Principal of the Respondent gave evidence to the WRC that this was school policy. On 18th June 2024 the Complainant interviewed for a fixed-term position in the school for the new school year. At the end of the interview, the Principal congratulated her on the birth of her baby daughter and stated “you really should enjoy every moment at home with the baby”. The Complainant gave evidence to the WRC that she felt it was unprofessional to discuss her maternity leave in front of the interview panel and that the comment seemed to hint at her not receiving the position. The Respondent gave evidence to the WRC that the interview was over when the comment was made and all questions had already been asked and answered. The following day the Complainant was informed that her application was unsuccessful. The Complainant requested her interview scores from the Respondent following contact with her union, the Irish National Teachers’ Organisation (“INTO”). The Complainant told the WRC that she learned from INTO that the school could “roll-over” a teacher’s contract in their third year and there was no requirement to hold another fixed-term position interview. The Complainant believed that the Board of Management decided to proceed with interviews for the fixed-term position, and score her unfairly, because of the possibility that she might have decided to extend her maternity leave if offered the position. When there was still no reply to her request for her interview scores by 27th August, INTO suggested to the Complainant that she contact the Principal and let her know that she was uncomfortable with the two incidents referred to above, and ask if she would take a call from INTO. The Principal emailed the Complainant later that day re-iterating that the CID was awarded to the candidate with the highest score from the previous interview round. On 29th August the Principal emailed the Complainant her interview scores, however there were no interview notes attached. Decision: The Adjudicator, Patricia Owens, firstly addressed a preliminary matter regarding statutory time limits. In normal course, complaints under the Acts must be submitted to the WRC within 6 months of the alleged contravention (with an extension of a further 6 months possible in limited circumstances if there was reasonable cause for the delay). The Complainant submitted her complaint to the WRC in November 2024, and the most recent occurrence of alleged discrimination was the interview for the fixed-term position on 18th June 2024. While the CID was awarded in May 2024 and the Respondent argued that a claim relating to that matter was out of time, the Adjudicator found that a continuum of discrimination existed that began with the awarding of the CID and culminated in the Complainant not being appointed to a fixed term position for the new school year. On that basis, the Adjudicator was satisfied that all of the issues forming part of the Complainant’s claim were within time. The Adjudicator referred to settled law that, in the first instance, the onus is on the employee to establish an arguable case of discrimination before the Respondent is required to rebut it. The Adjudicator was satisfied that the Complainant had discharged this evidential burden. The Adjudicator noted in particular the Complainant’s arguments that she was treated unfavourably compared to her comparators not on maternity leave; that Comparator A, who was not as experienced as her, was awarded the CID based on a previous interview process in 2023; and that Comparator B, who had only previously provided ad hoc cover to the school, was appointed to the fixed-term position. After proceeding to hear the substantive case, the Adjudicator found that the complaint of discrimination was well-founded and ordered the Respondent to pay €85,000 in compensation for the discrimination. The Adjudicator concluded that no satisfactory explanation was given for the decision to award the CID based on the order of merit in the previous fixed-term competition in 2023. The Adjudicator noted that the equal entitlement of the Complainant to be considered for the CID was disregarded even to the point that the Respondent believed she had no entitlement to be informed a viable CID was available. The Respondent’s explanation that it was school policy was rejected by the Adjudicator, as it emerged during the course of the hearing that no such policy existed. The Adjudicator had regard to the Department of Education and Skills’ Circular No. 44/2019. This circular provides that reference may be made to a panel of suitable applicants being set up for future vacancies when advertising teaching positions, but that “permanent vacancies may not be filled from a panel established following interviews for a fixed-term post”. In addition, the circular provided that where a panel is compiled, it is applicable for any vacancies filled “within four months”. The Adjudicator noted that the CID was a permanent vacancy, and that the appointment for the CID in 2024 based on the 2023 panel was well outside the four-month timeline prescribed in the circular. In relation to the fixed-term position, the Adjudicator concluded that the Respondent failed to provide any evidence (such as interview notes) to explain how the interview panel arrived at their conclusions for the interview scores. The Adjudicator considered the absence of such evidence to be “fatal” to the Respondent’s defence of the inference of discrimination. In relation to the qualifications category, both the Complainant and Comparator B received the same score. However, in nearly all other categories the members of the interview panel scored the Complainant lower. In particular, the Adjudicator noted that the Complainant, who had 2 years’ experience working in the school, was marked lower in relation to both “Classroom Management & Administration” and “Awareness of School Procedures” than a candidate who had provided ad hoc cover. One of the marking sheets for the Complainant also had a reduction in one of the scores which was not adequately explained at the hearing. In relation to the comments made by the Principal, the Adjudicator found that the Respondent had failed to demonstrate that these comments did not have an adverse effect on the interview outcome. The Adjudicator appreciated that it may well have been the Principal’s intention to pass on her well wishes, however the interview had not yet closed when the comments were made. Even if the questioning had concluded, the scoring had not yet been completed, and the Adjudicator found it “entirely inappropriate” that comments relating to the Complainant’s family status were addressed to her during the interview. Takeaway for Employers: This WRC decision illustrates the evidential burden that employers bear in employment equality cases. While the initial burden is on the employee to successfully make out a prima facie case, the employer is then required to provide evidence to rebut the inference of discrimination. The absence of interview notes in this case was fatal to the school’s defence, particularly where the identified comparator appeared to have less experience than the Complainant. It is important that all documentation from recruitment processes is retained so that employers can demonstrate their appointments are based on objective criteria and not based on any of the nine discriminatory grounds. Link - https://www.workplacerelations.ie/en/cases/2025/august/adj-00055461.html Authors – Tara Kelly and Jenny Wakely 30th September 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2 www.aocsolicitors.ie

The Workplace Relations Commission (“WRC”) and the Labour Court (the “Court”) each recently issued a decision on the subject of mandatory retirement ages in Denise Murphy v Royal College of Surgeons in Ireland (ADJ-00046831) (WRC decision) and Deepak fasteners (Shannon) Ltd v Liam Murphy (EDA2545) (Labour Court decision). The decisions demonstrate the requirement for employers to ensure that they have in place appropriate contractual provisions and retirement policies. Denise Murphy v Royal College of Surgeons in Ireland (ADJ-00046831) Facts: The Complainant in this case had worked for the Respondent on a contract of indefinite duration from May 2012. She worked as a secretary to the Respondent’s Pathology Department. The Complainant’s contract of employment stated that the normal retirement age would be the Complainant’s 65th birthday. The Complainant turned 65 on 24th February 2022. She was aware of the mandatory retirement age and the Respondent’s retirement age policy, but she wanted to continue working. Before her 65th birthday, the Complainant spoke to the Head of the Department who discussed the matter with the Complainant’s manager. The Respondent allowed the Complainant to continue working for an additional one-year period on an exceptional basis, and she was provided with a fixed term contract and worked for another year. The Complainant’s request for a further extension was refused and she was officially retired on 23rd February 2023. The Complainant learned that other staff members had been permitted to continue working beyond the age of 66. She viewed this as diluting the “exceptional” nature of her one-year extension, and she lodged a discrimination complaint in the WRC. The Respondent accepted that, at the date of hearing, 27 employees were working who were over the age of 66. However, the Respondent’s position was that those employees worked in technical and academic roles that were more difficult to replace. Decision: The Adjudicator, Penelope McGrath, noted that the Complainant’s contract of employment “very clearly stipulated” that the normal retirement age would be the Complainant’s 65th birthday. She also referred to what she described as a “well-advertised and formal” in-house policy that was in force throughout the Complainant’s employment. This policy clearly described the reasons or justifications for the mandatory retirement age. The Adjudicator referred to the Respondent’s decision to facilitate a one-year extension for the Complainant, which was objectively justified by the Respondent as a measure that would greatly assist a smooth transition during a period of change that the Department of Pathology was experiencing at that time. The paperwork also demonstrated that there was a clear succession plan for the transfer of the Complainant’s role to her replacement in advance of the end of her extended period of employment. The Adjudicator noted that the one-year extension provided to the Complainant was in line with the in-house retirement age policy which specifically permits such extensions as follows: “In exceptional circumstances RCSI reserves the right to engage with employees, if agreeable, post-retirement age. This will be done on a case-by-case basis, subject to business needs and each case will be objectively justified on its own merits. The furtherance of the employment relationship will be subject to the terms and conditions as set out in the contract for which the post-retirement age engagement is required and agreed. Any contracts issued to staff employed beyond 65 will be temporary, time bound, subject to specific objective justification and will note the changes in eligibility to staff benefits, including, pension provision and insurance cover. All staff have the right to retire at 65. Subject to agreement by both parties, RCSI continues to reserve the right to retain the services of strategically important employees and retain the expertise of experienced staff in specialist roles e.g. Surgeon Prosectors. The extension of these roles will be objectively justified.” The Adjudicator further noted the clear language used in the Complainant’s fixed term/extension contract in respect of the objective justification for the issuance of a fixed-term contract rather than a contract of indefinite duration, and the fact that the contract was an “exceptional post-retirement one-year fixed term contract to support the department of Pathology.” In response to the Complainant’s argument that the Respondent’s implementation of the retirement policy was selective and discriminatory, given that a significant number of employees were permitted to work beyond 66, the Adjudicator found that these “derogations” from the implementation of the retirement policy did not serve to “de-legitimise” or “undermine” the retirement policy. She accepted the Respondent’s argument that it needed to retain specialist skills and technical know-how and that certain staff could not be easily replaced. The Adjudicator found that the Complainant had not been discriminated against by the Respondent when it terminated her employment in February 2023. Deepak fasteners (Shannon) Ltd v Liam Murphy (EDA2545) Facts: This case was an appeal by Mr Murphy (the “Complainant”) from a decision of the WRC that his discrimination complaint was not well-founded. In this case, the Complainant had been employed as a General Operative from February 1977 until he was compulsorily retired on his 65th birthday on 27th February 2022. He had asked to be allowed to continue working after that date, but the Respondent did not agree. The Complainant gave evidence that he was still “fit and competent” to carry out his work and that he had not been asked to undertake a risk assessment or occupational health assessment before he was compulsorily retired. The Respondent’s CEO gave evidence about the business needing to “pivot in a new direction”, making it necessary for it to hire new employees with specific skills. He accepted that no meeting had taken place with the Complainant in respect of his application for longer working, and conceded that he could not remember having reviewed the Code of Practice on Longer Working. He also accepted that another employee had been allowed to continue working after his 65th birthday. Decision: The Court found that there was no mandatory retirement provision in the Complainant’s contract of employment. It also found that there was no evidence that the Respondent had ever given “serious consideration” to putting in place a “contemporary” retirement policy in line with the Code of Practice on Longer Working and the “evolution of employment equality legislation”. The Court criticised the Respondent for having had “no regard whatsoever” to the Code of Practice and for not having engaged “in any meaningful way” with the Complainant’s request to work beyond 65. The Court noted that had been no performance, health and safety or concentration issues with the Complainant. The Court concluded that the Respondent discriminated against the Complainant in compulsorily retiring him, noting that there was “no objective justification that the Respondent can rely on in support of its decision of [sic] compulsorily retire the Complainant simply because he reached the age of 65.” The Complainant was awarded €18,000 for the effects of the discrimination, equivalent to approximately six months’ gross pay. Takeaway for Employers: The WRC and Labour Court have issued a number of recent decisions on the issue of mandatory retirement (links to a sample of some of our recent articles on mandatory retirement, post-retirement fixed term contracts, and the Code of Practice on Longer Working are below). Recent decisions have not always been consistent in approach including, for example, in respect of the importance placed on the Code of Practice for Longer Working (referred to by the Labour Court in Deepak decision, but not by the WRC in the Denise Murphy decision). However, what remains clear from WRC and Labour Court decisions is the need for employers to ensure that if they intend to rely upon a mandatory retirement age, it needs to be clearly set out in their contracts of employment, and appropriate retirement policies ought to be in place and adhered to. Employers need to ensure that they properly engage with any requests for longer working and, while some decisions do not specifically refer to the Code of Practice, employers should have due regard to the Code, and it ought to be reflected in their retirement policies. Employers should always be cognisant of the requirement to objectively justify any decision to compulsorily retire an employee/permit an employee to work beyond its mandatory retirement age, and to communicate the objective justification to employees. This area of employment law is a complex one and legal advice is advisable.  Links: WRC decision: https://workplacerelations.ie/en/cases/2025/july/adj-00046831.html Labour Court decision: https://workplacerelations.ie/en/cases/2025/august/eda2545.html Links to some previous articles on mandatory retirement, post-retirement fixed term contracts, and the Code of Practice on Longer Working: Recent Caselaw: Mandatory Retirement Ages and Post-Retirement Fixed Term Contracts: https://aocsolicitors.ie/recent-caselaw-mandatory-retirement-ages-and-post-retirement-fixed-term-contracts/ WRC Find it is Not Unlawful for Employer to Enforce Mandatory Retirement Age, Despite Shortcomings in Following Code of Practice: https://aocsolicitors.ie/wrc-find-it-is-not-unlawful-for-employer-to-enforce-mandatory-retirement-age-despite-shortcomings-in-following-code-of-practice/ Author - Jenny Wakely 31st July 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie