Anne O'Connell Solicitors

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

In Lisa McGrath v Net Smart Security Limited (ADJ-00056559) the Workplace Relations Commission (“the WRC”) found that the Complainant was discriminated against by her employer on the grounds of gender and family status. The Adjudicator, Particia Owens, awarded the Complainant €50,000 (almost two years pay) for the Respondent’s breach of section 77 of the Employment Equality Act, 1998. Facts: The Complainant commenced employment with the Respondent company in August 2022 as an Accounts Administrator. The Complainant commenced a period of maternity leave in January 2024, followed by a period of parental leave up to the 15th of September 2024.  When planning her return to work, the Complainant requested to work part time due to difficulties during her pregnancy and childcare obligations. The Respondent refused this request. The Complainant resigned and submitted complaints of constructive discriminatory dismissal. The Respondent submitted the WRC complaint was out of time and that they acted in good faith at all times and denied the Complainant was discriminated against. The Complainant does not appear to have raised any formal grievance prior to resigning. Decision: Having engaged with the Respondent’s arguments that the Complainant’s claims were out of time, the Adjudicator ultimately determined that the Complainant’s case under the  Employment Equality Acts could be heard. Having considered the evidence offered by both sides, the Adjudicator set out a list of what she determined to be the primary facts in the case including the following: The Complainant was not paid for attending ante natal appointments and her bonus was affected by virtue of her attending these appointments. The Complainant experienced difficulties with her manager after informing her that she was pregnant. No risk assessment was carried out in relation to what, if any, accommodations might be required for the Complainant. The Complainant was refused part time working hours on the basis that it did not take place in the company. However, part time work was allowed for family members of the CEO of the Respondent. There was no meaningful engagement from the Respondent with the Complainant in relation to return to work options and a potential timescale. Despite acknowledging that payments to the Complainant “may have been overlooked” there was no offer by the Respondent to rectify this. In light of the foregoing, the Adjudicator was satisfied that the Complainant had presented facts from which it may be presumed that the principle of equal treatment was not applied to the Complainant. The Adjudicator found that it was clear from the evidence of the Respondent’s witnesses that there was a lack of knowledge in relation to the protection afforded to pregnant employees.  There was no credible explanation to explain why a risk assessment, paid time off for maternity related appointments and meaningful and tangible efforts to reasonably accommodate the Complainant were not undertaken. The Adjudicator found that the Complainant was discriminated against on the grounds of gender and family status and that she was entitled to redress that is “effective; that has a genuine dissuasive effect with regard to the employer and that is commensurate with the injury suffered by her”. The Adjudicator did not consider that reinstatement or reengagement were appropriate in this case. After considering the Complainant’s salary (including bonus) of €26,000, the Complainant’s present loss, future loss and her loss of statutory protection, and the “effects “of the dismissal on the Complainant and to ensure that there is a dissuasive effect with regard to the employer, the Adjudicator awarded her the sum of €50,000. Takeaway for employers: This decision is a strong reminder to employers that they should be aware of their obligations to pregnant employees and employees returning to work post maternity leave. Failures in this regard and any acts of discrimination can prove very costly for the employer. Employers should be cognisant that in employment equality cases, awards of compensation are frequently made for the “effects” of the discrimination, increasing the potential exposure. The award of €50,000.00 in this case was almost two years pay.  See another of our recent Articles here (https://aocsolicitors.ie/pregnant-employee-who-was-dismissed-awarded-e136200-in-wrc/) where the employee was awarded €136,200.00. Employers should also note that the €50,000.00 award in this case was made not withstanding that the employee does not appear to have lodged any formal grievance prior to her resignation. Link - https://workplacerelations.ie/en/cases/2025/july/adj-00056559.html Authors – Jane Holian and Laura Killelea 31st July 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

In Aoife Cleary v St. Patrick’s National School Lurgybrack (ADJ-00053384) the Complainant lodged several complaints with the Workplace Relations Commission (“WRC”), including a complaint of victimisation under the Employment Equality Acts. She claimed that she was victimised by the Respondent school as a result of Employment Equality Act proceedings that she had brought against a nearby school. The Respondent raised a preliminary argument in this matter that victimisation cannot arise where the proceedings in question were against another employer. The WRC’s decision on this preliminary argument is interesting and noteworthy. Facts: The Complainant is a teacher. She brought WRC proceedings against Kilmacrennan National School in Donegal, the first hearing date of which coincided closely with an interview process in the Respondent school which was located only 15 kilometres from Kilmacrennan National School. The two schools also share a parish priest. The Complainant was unsuccessful in her application for a position in the Respondent school, but the Principal could not explain why she had not been successful. The Complainant also wrote to the Respondent school requesting marking sheets from the interview process and also questions regarding what she regarded as irregularities and improper procedures during the interview process. She also asked for confirmation as to whether or not there had been communications between the two schools regarding her WRC complaint against Kilmacrennan National School. The Complainant did not receive answers to her questions. The Complainant was subsequently offered the role due to another candidate obtaining alternative employment, and the Complainant was informed that she was the “next person on the list according to scoring, in the interview process.” Two new teachers were also appointed, but they were appointed on fixed term contracts meaning that they received holiday pay in the summer whereas the Complainant was only given work “to the end of the year” meaning that she got no holiday pay in the summer. The Complainant repeatedly sought equal pay and conditions for equal work, but to no avail. The Complainant subsequently applied for and was interviewed again for one of three posts on the Letterkenny Supply Panel, a role which she had successfully been working in for almost two years. She was unsuccessful. The interview process for this post coincided closely with the second WRC hearing date in respect of her Employment Equality Act proceedings against Kilmacrennan National School. The Complainant claimed that she was victimised by the Respondent in the form of discrimination during the interview process, by not appointing her on two occasions; giving her inferior conditions of employment; and not providing her with written terms of employment. She claimed that she was victimised because of her WRC Employment Equality Act complaint against a neighbouring school. The Respondent raised a preliminary issue claiming that victimisation could not arise because the Complainant’s WRC proceedings as a result of which she claimed to have been victimised, were against a different employer. The Respondent relied on the Labour Court decision in Public Appointments Service v Kevin Roddy [EDA1019] in support of its position. In that case, the Labour Court held that the complainant’s victimisation claim was “unsustainable in law”, finding that there was no “causal link” between the complainant’s proceedings against another employer and his non-selection by the respondent for a job with the respondent. Decision: The Adjudicator, Shay Henry, referred to section 74(2)(b) of the Employment Equality Act 1998 which defines victimisation as follows: “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to – (b) any proceedings by a complainant” He noted that the Act is silent on whether or not victimisation must relate to acts of the organisation against whom the proceedings were taken. He found that the Act does not restrict victimisation proceedings in the way that the Respondent claimed that it did, stating that: “If the authors of the Act had wished to confine victimisation to actions resulting from proceedings between an employee and the employer against whom proceedings were taken they would have said so explicitly in the Act.” The Adjudicator noted that in the Roddy case referred to above, there was no connection between the two employers which were not even located in the same jurisdiction. The Adjudicator was satisfied that as the two employers in this case were national schools located in close proximity and under the same patronage, it was possible that there could be a causal connection. He therefore rejected the Respondent’s preliminary argument. Takeaway for Employers: While the Complainant was ultimately unsuccessful in her victimisation complaint against the Respondent, the decision is noteworthy in making it clear that victimisation complaints under section 74(2)(b) are not necessarily confined to the same employer. This means that, for example, victimisation could occur between two sister companies. What is clear, however, is that there must be a causal connection and victimisation complaints will not be sustainable in law where the two entities are in no way connected. It will be interesting to see how this reasoning is applied in future cases. Link: https://www.workplacerelations.ie/en/cases/2025/july/adj-00053384.html Author - Jenny Wakely 31st July 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

Andrea Myers v Clay Youth Project Clg (ADJ-00056614) is a recent unfair dismissal case that was before the Workplace Relations Commission (“WRC”). The Complainant brought a complaint under the Unfair Dismissal Acts 1977-2015 (the “Acts”) claiming she had been constructively dismissed by her employer. However, in an interesting set of circumstances, the Complainant had signed a compromise agreement with her employer settling all claims prior to bringing the WRC action. Background: The Complainant was involved in a road traffic accident which resulted in her being absent from work for extended periods throughout 2024. Following her return to work the parties entered into discussions on a compromise agreement which was signed on 20th December 2024. The Complainant referred a complaint to the WRC just over a month later. As a preliminary matter, the Respondent questioned the WRC’s jurisdiction to hear the case as the signed agreement was expressed to be in full and final settlement of all and any claims against the Respondent. The Acts were specifically mentioned in the agreement as one of the statutes under which the complainant would not pursue complaints. Decision: The Adjudicator found that the Complainant was not estopped from pursuing her complaint of constructive dismissal on the basis of the compromise agreement. The Adjudicator noted the signed compromise agreement included the following wording: “The employee hereby confirms that she has had the opportunity of taking legal advice on the provisions of this agreement and that she understands the effect and the implications of this agreement, and that she is signing this agreement voluntarily and without any duress whatsoever.” The Adjudicator noted that as a matter of uncontroverted fact, the Complainant was not given the opportunity to take legal advice on the document. The Respondent gave examples of prior case law confirming the position that validly executed compromise agreements will be upheld and the Respondent sought to rely on such case law. The Adjudicator distinguished this case from the case law mentioned by the Respondent. For example, the Adjudicator noted that in the case of Angela Thompson v County Wexford Education Centre UD 581/2012, the Employment Appeals Tribunal had made specific reference to the fact the agreement itself was clear and that the claimant informed the Respondent that she had taken independent legal advice. The Adjudicator engaged with the principles outlined in the other cases relied upon by the Respondent i.e. Healy v Irish Life Assurance (DEC E2015-002) and Sunday World Newspapers Limited v Steven Kinsella and Luke Bradley [2008] ELR 53. However, the Adjudicator determined that the references in the latter case to “appropriate steps” and “professional advice of an appropriate character before the agreement was signed” were fatal to the Respondent’s position in this case as the Complainant’s evidence was that she was not even shown the entire document, just the signature page, and that she was not allowed to retain a copy of it. The Adjudicator accepted that there were “meaningful negotiations and discussions” in this case but stated that the requirement for “informed consent” is a critical one. On this point he commented, “If it can be shown that a party has waived their right to do so that will be a different matter, but it is not what happened here on the basis of the complainant’s uncontested evidence”. Accordingly, the Adjudicator allowed the Complainant to proceed with her constructive dismissal claim against the Respondent notwithstanding having signed the Compromise Agreement. Takeaway for Employers: This case is an interesting look at how the WRC may deal with complaints that still make their way to hearing even though a settlement agreement was signed by the parties. As it happens the Complainant in this case was ultimately unsuccessful in her constructive dismissal claim and received no WRC award. Nonetheless, the case should act as a warning for employers as it reinforces the principle that employees should be given an opportunity to take legal advice on any proposed settlement agreement in order for it to be enforceable. Link - https://www.workplacerelations.ie/en/cases/2025/july/adj-00056614.html   Authors – Tara Kelly and Laura Killelea   31st July 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

In Lenianastasia Shanahan V Roots Health Food (ADJ – 00054550) the Complainant claimed that she experienced sexual harassment in her employment with ‘Roots’ under section 79 of the Employment Equality Acts 1998 – 2015. Facts: The Complainant commenced employment with the Respondent in March 2024 as a server/assistant production. She worked for 16 weeks until her resignation in July 2024. The Complainant claimed that during this period she was subject to persistent unwanted conduct by a male colleague (“MR”) including sexualised comments, repeated requests to go out with him and remarks on her appearance. The Complainant said that she did not report these incidents during her employment due to fear and uncertainty, alleging that she was not made aware of any procedure or policy and concern about the owner’s close relationship with the perpetrator. The Respondent stated that while the Complainant wasn’t aware there was a harassment policy in place that their policy was stored under the till in the shop. Once the Respondent was notified of the complaint, they commenced an investigation but stated there was not enough evidence to corroborate the allegations and therefore no prima facie case of discrimination was made. The Respondent also expressed that once they were notified of the complaint the Respondent took reasonably practicable steps for the size and structure of the business to prevent sexual harassment in the workplace. Decision: The Adjudicator, Pat Brady, upheld the Complainant’s claim that she was discriminated on the grounds of gender involving sexual harassment in the workplace. He found that there was no clear anti-harassment or dignity at work policy in place before the harassment occurred, nor was there any other preventative measures in place. The Adjudicator held that steps taken by the Respondent subsequent to the alleged breaches of the Act do not provide a defence. The Adjudicator also found the Respondent’s statement that “there was not enough evidence to corroborate the Complainants allegations, and therefore no prima facie case of discrimination established” to be an ‘erroneous misunderstanding of the law’. He stated that it is the duty of an investigator to reach conclusions and that the absence of corroboration is not determinative. The Adjudicator held that the Complainant had established a clear prima facie case, and the investigator provided no explanation as to why he could not reach any conclusion. However, with fairness to the investigator, the refusal of the Complainant to engage with the investigation was deemed unhelpful. He also referenced the timeframe in which the Complainant submitted her complaint. While he accepts that the Complainant was not aware of any policy in place, he finds this explanation not convincing, and that despite a series of incidents from April to July, she did not think to mention any aspect to her employers to whom, according to them she had a good working relationship. The Complainant’s refusal to attend for interview along with her withdrawal from the process was regarded as ‘not acceptable’ and was taken into account by the Adjudicator in making his award of compensation. The claim was well founded, but the Complainant was only awarded €5,000 due to her delay in raising her complaint with her employer and her refusal to engage in their internal process. Takeaway for Employers: This decision illustrates that it is not sufficient to have a Bullying and Harassment Policy in place as a defence for a claim of sexual harassment or discrimination. The employer needs to be able to prove communication and training to the staff, regardless of the size of the business. The Adjudicator clarifies the burden of proof in relation to internal investigations of harassment and the subjective element of it. He also confirmed that the lack of corroborating evidence in such investigations should not be determinative. It is interesting that the Adjudicator was so critical of the Complainant not raising the issue sooner with the Respondent and taking this into account in the amount of compensation awarded. Link  - https://workplacerelations.ie/en/cases/2025/july/adj-00054550.html Authors – Abigail Ansell and Anne O’Connell 31st July 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

In the recent high profile decision of the Workplace Relations Commission (“WRC”) in Cathal Hussey v Tesco Ireland Limited (ADJ-00052619), Tesco has been ordered to re-engage a worker who was dismissed after calling his manager “useless”. Facts: The Complainant had 16 + years service with the Respondent prior to the decision to dismiss. In terms of the issues giving rise to dismissal, the Complainant had referred to his line manager as “useless” following which his line manager had filed a grievance under the Respondent’s bullying and harassment procedure. An investigation was undertaken by the Respondent. Following the investigation there was a disciplinary process the outcome of which was to impose a sanction of a final written warning on the Complainant. This was appealed by the Complainant and on appeal the Respondent elevated the sanction to that of dismissal. It seems a further appeal was offered against the sanction of dismissal and the Complainant exercised that additional right of appeal. The outcome of the additional appeal was to uphold the dismissal. The Complainant brought a claim against the Respondent under the Unfair Dismissal Acts 1997-2015 (the “Acts”) and sought the remedy of reinstatement. Decision: Re-Engagement: The Complainant was successful in his unfair dismissal claim and the Respondent was directed to re-engage him within four weeks from the date of the WRC decision but with a final written warning to remain on the Complainant’s file from the date of re-engagement for one year. The WRC directed that the period between the date of the Complainant’s unfair dismissal and the date of re-engagement be treated as a period of unpaid suspension. The Adjudicator made it clear that she was not directing re-engagement in the Complainant’s previous role. She was satisfied there were many options for General Warehouse Operative roles such as that held by the Complainant given the nature and size of the Respondent’s enterprise. This decision is significant in light of the Supreme Court decision last year in the case of An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38 where the Supreme Court emphasised that re-instatement and re-engagement are remedies that are “exceptional in nature”. Our previous article on that case is available here (https://aocsolicitors.ie/supreme-court-rules-high-court-erred-in-re-engaging-school-principal-in-a-manner-that-meant-he-was-effectively-reinstated/ ). The Adjudicator confirmed she was mindful of the Supreme Court decision in the Gaelscoil Moshíológ case and quoted the following passage from the Judgement: “The remedy of reinstatement under s. 7(1)(a) can normally be said to be only applicable in a case where the WRC or Labour Court considers that the employee’s dismissal has been totally unfair and unjust, such as to require the employer to take the person back in the same job, without any break in service or loss of pay, and notwithstanding the inevitable breakdown in the relationship between them. It is a very strong remedy, and is only applicable in clear cut cases, where it is the appropriate response to perhaps high-handed and unjustifiable conduct on the part of an employer, and where any other remedy is not sufficient vindication of the employee.” The Adjudicator determined that she did not find compelling the submission of the Respondent that because it was opposed to re-instatement, it should not be granted. However, having considered the totality of the evidence she did find beyond doubt  that the Complainant contributed to a significant degree to the circumstances in which he now found himself. She took this into account when considering his request for re-instatement and ultimately she did not find re-instatement to be an appropriate form of redress in this case. Having ruled out re-instatement the Adjudicator went on to set out her analysis as to how she arrived at a decision to order re-engagement. She confirmed she had taken into consideration the age of the Complainant, the length of his service with the Respondent together with the fact that the Respondent employs over 13,500 employees in this jurisdiction and plans to open ten new stores nationwide. She confirmed the size of the Respondent enterprise was a significant factor in her decision to direct re-engagement. Fair Procedure Points: As well as being noteworthy due to the re-engagement order this WRC decision is  interesting from the perspective of guidance for employers around the rules of fair procedures when conducting workplace investigations, disciplinary processes and appeals processes. For instance,, the Adjudicator’s decision highlights the following points and could act as a helpful precedent for employers conducting internal investigations and disciplinary processes: It is possible that as part of investigating one set of allegations further allegations against the employee may naturally come to light. This does not in and of itself render the process unfair. Where an investigation process is frustrated by the failure of an employee to attend it may be reasonable for the employer to conclude the investigation bearing in mind the passage of time. Employers should be careful to ensure investigators doe not overstep their remit which in many cases will be solely to establish the facts and collect evidence. We would caution that employers should always check what their own policies say on this. There may be circumstances where an investigation is so flawed it will contaminate the entire process, however procedures do not need to be“a counsel of perfection” but rather “they must be fair.” The power to increase a sanction on appeal is one that should be exercised cautiously and relied upon only in exceptional cases. Sanctions should be proportionate. For example in this case “when balancing the impact of the Complainant’s conduct on the Respondent as against the impact of the dismissal on the Complainant” the Adjudicator was of the view the sanction was disproportionate to the actions of the Complainant in referring to his line manager as “useless”. Takeaway for Employers: Workplace investigations and disciplinary processes are difficult to get right. It can be worthwhile to take legal advice early on in the process in order to avoid costly mistakes that cannot be rectified later. Employers (and larger employers in particular) should be mindful that an award of compensation may not be the only thing they will be exposed to in an unfair dismissal claim by an employee. They could find themselves subject to an order to reinstate or re-engage the employee. The  Supreme Court’s guidance in the Gaelscoil Moshíológ Judgement as to the “exceptional nature” of those remedies makes such orders less likely but it is evident the WRC are still willing to consider them. For example, see our recent article here (https://aocsolicitors.ie/wrc-orders-reinstatement-of-employee-who-was-unfairly-dismissed/ ) which discusses a recent case where the WRC ordered re-instatement. Links: https://workplacerelations.ie/en/cases/2025/july/adj-00052619.html https://aocsolicitors.ie/supreme-court-rules-high-court-erred-in-re-engaging-school-principal-in-a-manner-that-meant-he-was-effectively-reinstated/ https://aocsolicitors.ie/wrc-orders-reinstatement-of-employee-who-was-unfairly-dismissed/ Author – Laura Killelea 31st July 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

David Henderson v The Bohemian Football Club CLG (ADJ-00056820) concerned an employee of the Respondent football club who claimed he was unfairly dismissed in a sham redundancy process, in the absence of any fair procedures. The Complainant submitted his complaint to the Workplace Relations Commission (“WRC”) under the Unfair Dismissals Acts 1977-2015. Facts: The Complainant gave evidence to the WRC of his involvement in various aspects of football in Ireland and abroad as a player, scout and coach. His most recent period of employment with the Respondent commenced on 1st January 2023. He described carrying out various roles for the Respondent including head of recruitment, men’s first team goalkeeper coach, women’s first team coach, chief scout for the Academy and liaison with the Respondent’s partner club. According to the Complainant the League of Ireland season had ended in November 2024, and no issues had been raised with him. On 30th November 2024 during a phone call with the Respondent’s Director of Football he was informed his employment was being terminated. The Complainant submitted to the WRC that during this phone call the Director of Football initially referred to budgeting issues when he informed him of his dismissal but when pressed he referenced “anonymous verbal complaints” and a “historic letter of complaint”. Following his dismissal the Complainant wrote to the Director of Football requesting clarification and evidence of these allegations, but he received no response. He then wrote to the Respondent’s Board of Management, who refused to provide specific details. The Complainant, concerned for his reputation and professional standing, escalated his concerns to the FAI. In January the FAI confirmed to the Complainant that the Respondent had informed them that no letter of complaint ever existed. The Respondent’s President gave evidence to the WRC that the football club had experienced significant losses in 2023 and the projected losses for 2024 had come to fruition. He stated that the budget for 2025 was reviewed in October/November 2024 and cutbacks were required. He submitted that the decision to make the Complainant’s role redundant was made at a board meeting in early November 2024 where it was decided the recruitment role was not needed. The Respondent’s Director of Football was instructed to inform the Complainant that his “services were no longer required and that his services were being dispensed with”. Decision: The Adjudicator, Christina Ryan, found the Complainant was unfairly dismissed from his employment. Under the Unfair Dismissals Acts the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy. However, the Adjudicator found there was no evidence before the WRC to support this contention. The Adjudicator noted no documentary evidence was adduced to substantiate the Respondent’s assertions regarding the financial position of the football club and that there was a “marked absence” of any minutes from the board of management meeting where the decision to make the Complainant’s role redundant was made. The Adjudicator commented it was difficult to reconcile how the Complainant’s role, in particular, was identified for redundancy when the President could not give evidence on all the functions the Complainant carried out for the Respondent save to say “recruitment”. The Adjudicator was critical of the issues of misconduct referenced by the Director of Football which went un-investigated and uncorroborated, calling them a “gross fabrication”. She expressed her astonishment that the Respondent’s President confirmed in evidence at the hearing that no letter of complaint ever existed. It was also not disputed by the Respondent’s President that the Complainant was not put on notice that redundancies were being considered by the Respondent or that he was at risk of redundancy. The President also confirmed no consultation process was carried out and no possible alternatives to redundancy were considered. The Adjudicator commented that the Respondent showed a “cavalier disregard for due process and an unmitigated disregard for the law” and found the Complainant’s dismissal “was nothing more than a sham redundancy carried out in a ruthless and dishonest manner without a single thought for the personal damage the Respondent was inflicting on the Complainant”. The Adjudicator noted that the preferred remedy was compensation and was satisfied the Complainant’s efforts to mitigate his ongoing losses were reasonable. Under the Unfair Dismissal Acts an Adjudicator can award compensation for a Complainant’s loss of earnings not exceeding 104 weeks/ 2 years’ gross remuneration. The Complainant earned €250 net per week, which was referred to in the decision, and the  Adjudicator awarded €26,000 as compensation for the unfair dismissal. It is unclear whether it is a coincidence that this figure amounts to 104 weeks of the Complainant’s weekly net salary. The WRC decision is also silent on whether the Complainant received his statutory redundancy pay or contractual notice pay. However the Adjudicator noted the award was the upper limit of what she was in a position to award and that it was “just and equitable having regard to all the circumstances”. It is worth noting that since the release of this WRC decision a spokesperson for the Respondent football club gave a statement to the Irish press that it fully accepts the decision and apologises unreservedly to Mr Henderson. Takeaway for Employers: This case is a stark reminder to employers of their legal obligations in Ireland. An employer cannot escape their obligations under the Unfair Dismissal Acts by simply calling what is otherwise an unfair dismissal “a redundancy”. There is an onus of proof on employers to show a genuine redundancy situation existed and that their conduct was reasonable by engaging in a fair consultation process with the employee. As the Adjudicator quoted in her decision (from a significant judgment in this area, JVC Europe Ltd v. Ponisi [2012] E.L.R. 70) “without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights”. Apart from the blatant lack of procedural fairness in this case, it is interesting that the Respondent’s lack of documentary evidence was highlighted by the Adjudicator. Readers are reminded of a recent WRC decision covered in our AOC April Newsletter where the WRC found that redundancy was used as a “cloak” to exit a senior employee and highlighted the absence of minutes from the senior management meeting where the decision to make the role redundant was made. Respondents are now often required to provide this type of evidence at WRC hearings to show that the redundancy was legitimate and that proper procedures were observed. Link - https://www.workplacerelations.ie/en/cases/2025/july/adj-00056820.html   Authors – Tara Kelly and Anne O’Connell 31st July 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

In the recent decision of Mark Alcock v Knights Tower Trading (ADJ-00049112), the Workplace Relations Commission (“WRC”) made an award of €34,999.99 for multiple breaches of the Organisation of Working Time Act 1997 (the “Act”). Facts: In September 2019, the Complainant commenced work as a Sous Chef with the Respondent Hotel and was promoted to the role of Head Chef in June 2022. The Complainant subsequently resigned, and his employment ended on 12th November 2023. The Complainant referred three complaints to the WRC in December 2023 claiming that the Respondent had breached section 11 of the Act dealing with daily rest periods, section 13 dealing with weekly rest periods, and section 15 in respect of maximum weekly working hours. The Complainant’s position was that on a number of occasions he was not afforded his daily and/or weekly rest periods and that he worked far in excess of his contracted hours and in excess of the maximum weekly working hours provided for under the Act. The Respondent refuted the complaints and submitted as a preliminary point that Part II of the Act did not apply to the Complainant as he had complete control over his working hours and was in fact responsible for rostering his own hours and those of the other kitchen staff. The Respondent’s Managing Director gave evidence on behalf of the Respondent and stated that the General Manager’s role was to monitor the Complainant’s hours and that he would have seen what hours were and were not being worked. The Managing Director also stated that the Complainant would not have been approved for overtime. The Complainant gave evidence agreeing that it was his responsibility to roster all kitchen staff, including himself. The Complainant also accepted that his contract provided for a 39-hour working week, however he stated in his evidence that he could not simply leave after eight hours when there were a large number of guests in the hotel and a number of functions taking place. Decision: On the preliminary issue the Adjudicator, Ms Christina Ryan, considered section 3(2)(c) of the Act which provides as follows: Non-application of Act or provisions thereof (2) Subject to subsection (4), Part II shall not apply to— (c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment. The Adjudicator also considered the decisions of the Labour Court in M & J Gleeson & Company v. Robert Maloney DWT 1395. The Labour Court determined that: “[b]ased on the evidence provided the Court cannot accept that the Complainant was a person the duration of whose working time is determined by him. The times when he was required to perform his work were essentially dictated by fulfilling customer orders which was the main function of the business”. On that basis, the Labour Court found that the Complainant’s employment was not the type envisaged by section 3(2)(c) of the 1997 Act. Further, in Erac Ireland Limited v. Eddie Murphy DWT 1583 the Labour Court found that the Complainant was employed to work hours as determined by the business needs of the Respondent and consequently was not a person in control of his own working hours. Taking into consideration the provisions of section 3(2)(c), the case law from the Labour Court and the evidence of the parties, the Adjudicator concluded that the Complainant did not determine his working time and found that the business needs of the Respondent determined the hours worked by him. On that basis, the Adjudicator found that Part II of the 1997 Act applied to the Complainant’s employment with the Respondent. Therefore, the minimum daily rest periods, weekly rest periods and weekly working hours provided in the Act applied to his employment. In relation to the complaints in respect of breaches of the daily rest period and weekly rest period, the Adjudicator found that the Complainant gave credible evidence that he was not afforded his daily and/or weekly rest periods. The Adjudicator considered the case law and the EU Directive, Directive 93/104/EC (the “Working Time Directive”) from which the right to rest breaks is derived. The Adjudicator ordered the Respondent to pay the Complainant compensation in the amount of €5,833.33 being one month’s pay for the breach of section 11 of the Act and a further month’s pay of €5,833.33 for the breach of section 13 of the Act. In relation to the complaint in respect of a breach of section 15 of the Act, the Adjudicator found that the Complainant gave credible evidence that he not only worked in excess of his contracted working hours, but also in excess of the maximum weekly working hours set out under the Act. Under section 15, “An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours…” The Adjudicator ordered the Respondent to pay the Complainant compensation in the amount of €23,333.33 being four months’ pay for the breach of section 15 of the Act. Takeaway for Employers: In this case, the total award of compensation was €34,999.99 for breaches of the relevant sections of the Act. While the Complainant’s contract of employment provided that he had control over his own working hours, the Adjudicator was satisfied that it was in fact the business that determined his working time. It is incumbent on employers to ensure that their employees take their minimum rest periods and that they do not work in excess of the maximum weekly working hours. Employers intending to rely on an employee’s ability to control his or her own working hours need to ensure that the employee genuinely has such control. This decision is particularly noteworthy in circumstances where the Adjudicator found that the Complainant’s working hours were determined by the needs of the business notwithstanding that the Complainant was responsible for rostering his own hours. Link – WRC Decision  Authors – Ethna Dillon & Jenny Wakely 6 May 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

This article discusses a recent Workplace Relations Commission “WRC” decision and a recent Labour Court decision on the knotty subject of mandatory retirement ages. Case 1: Tom Kitterick v Mayo County Fire Service (ADJ-00050808) Facts: Mr. Kitterick (the “Complainant”) commenced working for the Respondent in 2008 as a fire fighter at the Westport Fire Service in County Mayo. In 2019 he was promoted to Station Officer. The Complainant had been granted two extensions of his employment, from age 55 to 58 and from 58 to 60. Both occurred after he completed a successful medical assessment. The Complainant then requested to be retained beyond his 60th birthday.  However, his employment terminated on the 18th December 2023, his 60th birthday. The Complainant sued under the Employment Equality Acts 1998-2015 as amended (hereinafter the “EEA”) on the basis of discrimination on the grounds of age. Of note is the fact that the refusal to extend the Complainant’s contract beyond retirement age came just three months prior to the introduction of a new circular which extended mandatory retirement age to 62. This proposed extension had been flagged in August 2023 and unions and management were supporting it, although the circular did not issue or take effect until May 2024. Decision: The WRC Adjudicator’s decision is interesting as it goes through and applies the principles laid down by the Supreme Court in last year’s landmark judgement on mandatory retirement ages in the case of Mallon v the Minister for Justice & Ors [2024] IESC 20. See our previous article on the Mallon decision here (https://aocsolicitors.ie/supreme-court-clarifies-law-on-mandatory-retirement-ages/ ). Having gone through the Mallon principles the Adjudicator determined that the Complainant had clearly established a prima facie case that an act of discrimination took place in relation to mandatory retirement on his 60th birthday. However, an employer can still successfully defend such act of discrimination if it can establish that the relevant mandatory retirement age was objectively and reasonably justified by a legitimate aim; and the means of achieving that aim were appropriate and necessary. The Adjudicator acknowledged the principle determined in Mallon that the relevant competent authority is better placed than the courts to assess what is necessary or appropriate for the effective operation of the role. The Adjudicator also accepted that the physical and mental abilities of retained firefighters are crucial for the role and the proper functioning of the fire service and that the Respondent acted in accordance with the ciruclar that was in place at the time. Therefore, the mandatory retirement age was objectively and reasonably justified by a “legitimate aim”. However, the Adjudicator then went on to examine whether the means of achieving that aim were appropriate and necessary.  The Adjudicator found there was no evidence of consideration of the means that were appropriate and necessary. The Adjudicator distinguished this case from Mallon on the basis that the legislation in Mallon was clear and in place from the outset on mandatory retirement at age 70 years. In Mr. Ketterick’s case, the age was moving incrementally and there was a custom of joint engagement on the means of implementation. The Adjudicator commented that it was regrettable no consideration had been given to using the normal medical assessment on an interim basis pending the “imminent” extension of the retirement age to 62. Th Adjudicator determined that while she remained conscious of Mallon and the margin of appreciation to be afforded to the appropriate authority, she nevertheless viewed the lack of consideration of any appropriate means as unreasonable. She determined that the Complainant was left in limbo with no consideration on his extension request, either nationally or locally. The Adjudicator was critical of the fact that unlike the previous occasions when the retirement age increased, there was no lead in period considered; there was no interim extension of his contract considered; and there was no consideration to facilitate his return or apply the circular retrospectively once the new circular extending the age to 62 issued. The Adudicator found the Complainant was discriminated against on the grounds of age. The Adjudicator made an award of €9,500 by way of compensation to the Complainant. The Adjudicator commented that she would have considered awarding re-instatement but the Complainant had sought compensation. This WRC decision is the latest in a string of WRC decisions on the issue of mandatory retirement ages for retained fire fighters. The WRC arrived at a similar decision to the decision issued in Ketterick in the previous cases of Jim Murphy v Carlow County Council ADJ- 00052056 available here (https://www.workplacerelations.ie/en/cases/2024/december/adj-00052056.html) and Paul Curran v Carlow County Council ADJ–00052052 (https://www.workplacerelations.ie/en/cases/2024/december/adj-00052052.html ). Case 2: John Murphy v Bausch Health Ireland Limited (EDA2534) The Complainant commenced employment with the Respondent on 9th April 2011 as a General Operative. The Respondent operates a normal retirement age of sixty-five. In May 2021, prior to reaching the Respondent’s retirement age, the Complainant had requested to work beyond the normal retirement age. This request was initially refused and the Complainant retired in October 2021 upon reaching the age of sixty-five. The Complainant and Respondent subsequently reached an agreement under which the Respondent offered the Complainant a one-year fixed term contract which commenced on 29 October 2022 and was due to expire on 29 October 2023. The Complainant made written requests on 19 July 2023 and 21 August 2023 for a further one-year post retirement fixed term contract which were refused by the Respondent. The Complainant then submitted a complaint to the WRC, alleging discrimination on the grounds of age. The Complainant was unsuccessful in his complaint of age discrimination to the WRC. The Adjudicating Officer held that the complaint was not well-founded and determined that “the Complainant’s employment ended because of the expiry of fixed term contract and for no other reason.” The Complainant appealed to the Labour Court. During the Labour Court hearing a member of the Respondent’s Human Resources team confirmed that the Respondent employs staff, including general operatives, on fixed term contracts from time-to-time. She also confirmed that on occasion these fixed-term contracts have been renewed. The Labour Court determined it was self-evident the employees so engaged on fixed term contracts – including those that were extended or renewed – were hired when of an age that is under the Respondent’s normal retirement age and were, at the material time, therefore, younger than the Complainant when he was offered and accepted a fixed-term contract which was not extended notwithstanding his request to do so. Decision: The Labour Court determined that the Complainant was prima facie treated less favourably than younger comparators on the age ground. The Court allowed the Complainant’s appeal and awarded €2,000 to the Complainant by way of compensation, equivalent to one month’s gross pay. Interestingly, this case seems to have turned on the availability of comparator employees who were younger than the Complainant and had been on fixed term contracts which had been renewed. It appears that had there been no such comparators, the employer may have been able to successfully defend the Complainant’s age discrimination claim on the basis that the Complainant’s employment expired by reason only of the expiry of his post-retirement fixed term contract. This defence has worked successfully for employers before the WRC in the past. By way of example, in the cases of Carl Davidson v Amari Ireland Limited – (ADJ00037279) and Peter O’Loughlin and the Health Service Executive (ADJ-00026333). See our previous article last year which reviewed the Davidson case (along with a number of other retirement age cases) – https://aocsolicitors.ie/recent-wrc-decisions-on-retirement-age/ Takeaway for Employers: The above mentioned cases add to evolving caselaw on mandatory retirement ages. The following are the key takeaways for employers: If you wish to enforce a mandatory retirement age, you need to be able to demonstrate it serves a legitimate aim and that the means of achieving that aim are appropriate and necessary. Where an employer gives an employee a post-retirement fixed term contract of one year, for example, this may be sufficient to provide the employer with a defence to any subsequent age discrimination claim on the part of the employee so long as the only reason for the subsequent termination of the employment is the expiry of the post termination fixed term contract. However, this defence may not work where there are other younger staff members in comparable roles who were on fixed term contracts and had them renewed. While the giving of a one year post-retirement age fixed term contract might assist the employer in defending an age discrimination claim from that particular employee, where employers routinely give post-retirement fixed term contracts this could risk undermining the general mandatory retirement age in the organisation. For example, in the WRC case of Doreen Nolan v Alsaa, ADJ-00029859, the Adjudicator determined that there appeared to be a ‘rule of thumb’ that staff would be allowed to work on for a further two years which in effect was ignoring the employer’s stated retirement age of 65 in that case and bringing in a retirement age of 67. Employers should note this is a complex area of law that can be challenging to navigate. It is advisable to seek legal advice around the question of enforcing mandatory retirement ages in order to mitigate (in so far as possible) exposure to claims of age discrimination under the Acts. One final point of interest is the fact the WRC Adjudicator in the Ketterick case (and indeed the Adjudicators in the Curran and Murphy cases) confirmed a willingness to consider ordering reinstatement had the employee sought it. This is noteworthy in light of last year’s Supreme Court Judgement in the An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38 where the Supreme Court determined that reinstatement is only to be ordered in “exceptional” circumstances. See our previous article on that Supreme Court decision here (https://aocsolicitors.ie/supreme-court-rules-high-court-erred-in-re-engaging-school-principal-in-a-manner-that-meant-he-was-effectively-reinstated/ ). See also our previous article here (https://aocsolicitors.ie/wrc-orders-reinstatement-of-employee-who-was-unfairly-dismissed/ )  on a recent WRC award of reinstatement. Links – https://www.workplacerelations.ie/en/cases/2025/april/adj-00050808.html https://www.workplacerelations.ie/en/cases/2024/december/adj-00052056.html https://www.workplacerelations.ie/en/cases/2024/december/adj-00052052.html https://www.workplacerelations.ie/en/cases/2025/april/eda2534.html https://www.workplacerelations.ie/en/cases/2020/december/adj-00026333.html Authors – Lia Berkery & Laura Killelea 17th June 2024 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

In the recent decision of Thomas Farrell v Salesforce (ADJ-00052842), the Workplace Relations Commission (“WRC”) found that the Respondent’s failure to respond to a request for remote working within the four-week deadline breached the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”). Our previous article on the Act can be found here. Facts: With the agreement of the Respondent, the Complainant had worked fully remotely since June 2023, only attending the office when needed. In May 2024, the Complainant’s line manager informed her team members that employees would be required to attend the office between three and four days per week. The Complainant submitted a formal request on 10th June 2024 to continue working fully remotely. On 11th July 2024, the Respondent responded to the request seeking more time to consider the matter. However, this was outside the four-week timeframe stipulated in the Act for an employer’s response to such a request. It was submitted by the Respondent that the delay was due to human error. Decision: The Adjudicator, Breiffni O’Neill, upheld the Complainant’s complaint. When considering the amount of compensation to award, he noted that the Respondent had not provided any compelling reasons for their failure to respond to the Complainant’s request within the time period which had expired on 9th July 2024. On the other hand, he noted that the delay was minor, being only two days outside the four-week period prescribed by the Act. He made an award of €1,000. Takeaway for Employers: This decision is a reminder to employers to pay careful attention to the strict time limits provided for under the Act when dealing with remote working requests. The award of €1,000 was not insignificant for such a minor delay of only two days. Employers should familiarise themselves with the relevant time periods and their obligations when presented with a formal request for remote working. Further details are provided below in the WRC Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working. Links WRC Decision  AOC Solicitors – Work Life Balance and Miscellaneous Provisions Act 2023  Code of Practice for Employers and Employees Work Life Balance and Miscellaneous Provisions Act 2023 Authors – Ethna Dillon & Jenny Wakely 3 May 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

Francisco Martin Santano v Enable Ireland Sandymount School (ADJ-00050049) concerned a complaint under the Unfair Dismissals Acts 1977-2015. The Complainant claimed that he was unfairly dismissed when the Respondent refused his request to take a career break, needed due to loss of his accommodation in Dublin, and subsequently refused to allow him to return to his role when he finally secured accommodation months later. The Respondent claimed that his employment contract was frustrated when he left Dublin and he was not dismissed. Facts: The Complainant commenced employment with the Respondent on 1st September 2019 as a Special Needs Assistant. On 29th January 2023 the Complainant requested a one-year career break as he had to move out from his home by 22nd March 2023. His lease had been terminated by his landlord after 10 years. The Complainant described the effects of the cost of living and accommodation crisis in Dublin to the WRC; that he was unable to secure a property to rent in Dublin and was unable to purchase a property. He managed to agree an extension with his landlord to stay in his current home until the end of June 2023, meaning he could finish his work commitments for the current academic year. However, the Complainant submitted he was then left with no option but to relocate home to Spain ahead of the 2023/2024 academic year. His request for a career break was denied by the Board of Management of the School on grounds that only a certain number of teachers and special needs assistants were eligible for a career break at any one time, to ensure the school meets its obligations to its pupils, and the quota had been reached. The Complainant contacted the Department of Education who advised him that it was a matter for the Board of Management at the Respondent to resolve and that he could appeal the decision. The Complainant submitted his appeal, but it was unsuccessful. The Board of Management expressed to him that they recognised it was not the solution he was hoping for but that they were willing to engage with the Complainant if he was to apply for a role again in the future. The Complainant sent a letter to the Chairperson of the Board of Management in July 2023 outlining the exceptional circumstances that he faced, that he had to move home to Spain but would keep the school informed of any change if he secured accommodation. In December 2023 the Complainant informed the school that he would returning as he secured accommodation in Dublin as of 1st January 2024. The Respondent notified the Complainant that his contract of indefinite duration had been frustrated by his failure to return to work for the new academic year. The school had no choice but to recruit new applicants for his position as special needs assistants are critical to the support and education of the children in the school’s care. Separately the Complainant also described his frustrations with trying to access his personal data over a number of months after he submitted a data subject access request (“DSAR”) to the Respondent. In particular he requested minutes of meetings where his career break was discussed. The Complainant raised a complaint with the Data Protection Commission due to the Respondent’s failure to engage with his DSAR. Decision: The Adjudicator, Mr Jim Dolan, determined that he did not have jurisdiction to investigate the complaints concerning the Complainant’s personal data/potential breaches of the General Data Protection Regulation, as these should be referred to the Office of the Data Protection Commissioner. In relation to the complaint under the Unfair Dismissal Acts, the Adjudicator found no dismissal had taken place and therefore the complaint was not well-founded. In relation to the refusal to grant the Complainant a career break, the Adjudicator had regard to the Department of Education’s circular on the topic which states “in drawing up this policy, the welfare and educational needs of the pupils shall take precedence over all other considerations. The sole discretion as whether to grant an application for a career break rests with the employer”. The Adjudicator also considered the Respondent’s position that the contract had been frustrated. He referred to the following explanation of the doctrine of frustration in Redmond on Dismissal Law: “a contract of employment may end as a result of the legal doctrine of frustration, that is, where performance of the employee’s duties in the future would become radically different from that undertaken by him”. The Adjudicator found it impossible to disagree with the Respondent’s position, that the employee’s act of returning to Spain frustrated the employment contract. Takeaway for Employers: This is an interesting WRC decision as it is very rare that a contract of employment is held to be terminated by frustration. The decision quotes useful authorities on the doctrine of frustration. Separately, the decision also demonstrates the very real impact of the Irish housing crisis on industrial relations and employment law matters in Ireland. It is likely that similar cases will arise in the future, as employees may experience difficulty finding affordable accommodation in Dublin. Employers should be mindful of their policies and procedures in place concerning career breaks and/or requests for remote working or working from abroad. Any decisions made under these policies and the reasons for those decisions should be well documented. Indeed, if an employer can demonstrate they treated the employee experiencing this hardship with fairness and compassion and duly considered their request in line with established procedures (with the option to appeal), they will be better placed to defend potential claims. Link – https://www.workplacerelations.ie/en/cases/2025/april/adj-00050049.html Authors – Tara Kelly and Anne O’Connell 6th June 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

Following the 2023 judgement of the Supreme Court in The Revenue Commissioners v Karshan (midlands) Ltd/ T/A Donimo’s Pizza [2023] IESC 24 the Government’s “Code of Practice on Determining Employment Status”(hereafter “the Code”) has been reviewed and updated by an interdepartmental group comprising of the Department of Social Protection (hereafter the “Department”), the Office of the Revenue Commissioners (hereafter the “Revenue”) and the Workplace Relations Commission (hereafter the “WRC”). The Code is intended to provide a clear understanding of the employment status of individuals, taking into account current labour market practices and developments in legislation and case law. Included below is a high level summary of the Code. A full copy of the Code can be accessed here: https://www.gov.ie/en/publication/23e13-code-of-practice-on-determining-employment-status/ General Summary of the Code: The Code confirms that the Department, Revenue and the WRC each have a remit in determining the employment status of a person and that decisions of these bodies are not binding on each other. The Code confirms the five-step framework for determining employment status as set out by the Supreme Court in Karshan and includes specific guidance on each question some of which is briefly summarised below. Question 1: Does the contract involve the exchange of wage or other remuneration for work? Summary Guidance on Question 1: The Code indicates that provided there is payment by a business to a worker for a service “directly or indirectly” for the provision of the worker’s labour, whether agreed in writing or not, and whether the work is carried out on a once off basis or on a continuous basis or anything in between, there is a contract which is capable of being an employment contract. Question 2: If so, is the agreement one where the worker is agreeing to provide their own services, and not those of a third party, to the business? Summary Guidance on Question 2: The Code confirms that the more restrictions imposed on the freedom for a worker to appoint a substitute, the more indicative the arrangement is that of a contract of employment. Question 3: If so, does the business exercise sufficient control over the worker to render the agreement one that is capable of being an employment agreement? Summary Guidance on Question 3: The Code confirms that the right of the business to exercise control is more relevant than whether they actually exercise this right. The Code also confirms that when considering the issue of “control”, a decision maker may have regard to the issues of “enterprise” and “integration”. “Enterprise” being the extent to which the worker carries risk and their ability to make financial gain through their own ingenuity/efficiency. “Integration” being the extent to which a worker is an integral part of the operations of the business/person engaging their services, as opposed to carrying out work that, although done for the business, is peripheral or accessory to it. If question 1,2 or 3 above are answered negatively it means that there can be no contract of employment. Question 4: If the above three requirements are met, all of the circumstances of the arrangement/agreement/ contract must be considered. In other words, whether the terms of the arrangement/agreement/ contract between the business and the worker, interpreted in the light of the practical/real conditions of engagement (the “factual matrix”) are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the worker working for themselves or for the business/employer. Summary Guidance on Question 4: The Code confirms that while a detailed written agreement may carry significant weight, efforts to describe a relationship in a particular way which differs from the day-to-day reality, in order to circumvent or frustrate the operation of statutory provisions, will be challenged. On this point the Code concludes that the question to be considered is whether the facts indicate that the worker is providing services on his or her own account, or whether the facts indicate that the worker is providing the services on behalf of the business. Question 5: Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires a particular approach to be taken, e.g., a person might be an employee for social insurance purposes but self-employed for employment law or tax purposes. Summary Guidance on Question 5: On this point the Code emphasises that in the context of the WRC determining employment status under the relevant employment legislation, the definitions of ‘contract of employment, ‘employee’ and ‘employer’ differ from one employment enactment to another. Therefore, each case lodged with the WRC for Adjudication is different and is decided on its own facts by an independent Adjudication Officer. Pages 13-14 of the Code set out some typical characteristics of an employee as well as important caveats to same. Pages 15-16 of the Code set out some typical characteristics of self-employment and again sets out important caveats to same. The Code references the term “False/ Bogus self-employment” and confirms it is a term used to describe when a worker, who is in fact engaged under an employee contract of service, is knowingly recorded and reported to Revenue and the Department as if they were operating under a self-employed contract for services. The Code confirms this is a criminal offence subject to significant sanctions under the Social Welfare Acts. The Code also goes into detail on employment status classifications in respect of people who own or control companies, agency workers, intermediary arrangements and workers in the digital/gig economy. Of particular note is the guidance contained at page 17-19 in respect of “intermediary arrangements”. Third Party Intermediary Companies: The Code reflects that there are two main forms of intermediary structures used in lieu of a direct engagement between a worker providing services and the end-user of those services namely “Personal Service Companies” (hereafter “PSC’s”) and “Managed Service Companies (hereafter “MSC’s”). The Code reflects that under a PSC arrangement a contract for services is agreed between the end-user and an intermediary company owned/directed by the worker. A PSC is generally a limited company that typically has a sole director who is the worker/contractor who owns most or all of the shares in the company. A variation of the PSC arrangement above involves the use of what have become known as MSC’s. In essence, this involves setting up a company, which is generally structured with a number of worker shareholders who may or may not be involved in delivering similar services to the same end-user. MSC’s are typically facilitated by a third-party agent who organises the legal and administrative affairs of the Company. Th Code confirms that notwithstanding the use of such intermediary structures, the employment relationship will still be subject to the same five questions provided for by the Karshan ruling (outlined above) when determining whether the worker is self-employed or an employee. The Code confirms that in looking at all the facts and circumstances of the case, it is possible that a decision-maker or Adjudicator may determine that the end-user, is the employer for PRSI purposes. Each case is determined on its own facts. Notwithstanding the above, the Code confirms that for taxation purposes, Revenue cannot, except for limited circumstances provided for in tax legislation, “look through” corporate structures. Interestingly, the Code’s commentary on intermediary structures coincides with a timely WRC decision in which an individual worker was deemed an employee despite being paid through a third party company of which she was the sole shareholder and director - PR Company v Hotel Resort (ADJ-00046181, ADJ-00047024, ADJ-00045524, ADJ-00047375). We have written a separate article on that case which is available at this link.  However, the facts of that case were very unusual, and it will remain to be seen if a similar determination would be made in a case involving different facts. Takeaway from Employers: Employers should familiarise themselves with the Code and ensure that adequate analysis is undertaken of engagements with contractors so as to reduce the chances of costly consequences arising later from a mis-categorisation of the relationship. Employers should also be mindful that contractor arrangements are something that should be kept under review as a relationship that starts out as a genuine contractor arrangement can be deemed to have become an employment relationship over time. In addition to familiarising themselves with this newly updated Code, it would be advisable for employers to familiarise themselves with the detailed guidelines that previously issued from Revenue on this subject. Those guidelines are discussed in our previous article from June of this year available here: https://aocsolicitors.ie/new-revenue-guidelines-for-determining-employment-status/ Link: https://www.gov.ie/en/publication/23e13-code-of-practice-on-determining-employment-status   Author – Laura Killelea 11th December 2024

The High Court judgement of Ms Justice Bolger in Padraic Hanley v. PBR Restaurants Ltd t/a Fish Shack Café [2024] IEHC 662 delivered on 19th November 2024 gives clarification to the scope of a de novo hearing before the Labour Court.It may also permit Complainants to change strategy between the WRC hearing and the Labour Court hearing. Facts: This case was an appeal of the Labour Court decision to the High Court on a point of law. The Appellant had lodged a number of claims including an unfair dismissal claim under section 8 of the Unfair Dismissals Act to the Workplace Relations Commission (“WRC”) on 21st October 2020. The narrative in the WRC Complaint Form stated that there was a breakdown in his relationship with management which he claimed led to a sham redundancy. The Adjudicator found that the Appellant was self-employed from August 2008 to December 2019 and therefore he did not have the one year’s requisite service to take a claim under the Unfair Dismissals Act. She relied mainly on the ‘mutuality of obligation’ test but did make reference to the enterprise test, contract, control, pay, tax and social insurance. The Appellant appealed to the Labour Court. He lodged written submissions in advance of the hearing, most of which focused on his employment status from 2008 to December 2019. On the first of three days of hearing before the Labour Court on 23rd June 2022, the Appellant’s representative claimed for the first time that the Appellant was dismissed wholly or partly for having made protected disclosures. This would obviate the need for the Appellant to have one year’s service to claim unfair dismissal. The Appellant’s representative contended that this was part of the factual submissions made in the WRC claim form in relation to the deterioration of the relationship with management leading to his purported redundancy. The Labour Court invited submissions on whether it had jurisdiction to consider the argument. The Appellant argued that the Labour Court should not deal with the matter as a preliminary point and should hear the evidence in respect of whether or not his dismissal was wholly or mainly on the making of a protected disclosure. The Respondent argued that this was a new head of claim and that the Labour Court did not have jurisdiction to hear it. The Labour Court deemed that it had two preliminary issues to determine, the first in respect of whether it has the jurisdiction to consider the arguments relating to a protected disclosure and, if not, whether the Appellant had the required one year’s service to claim under the Unfair Dismissals Act. The Labour Court referred to its own decision in Dawn Country Meats Ltd v. Hill which related to the Organisation of Working Time Act.  The Labour Court concluded that its jurisdiction under section 44 of the WRC Act is solely that of an appellate body from decisions of the WRC Adjudicators and it has no jurisdiction to act as a court of first instance. It held that it did not have jurisdiction to enlarge the scope of the appeal to allow arguments that were not made at first instance. The Labour Court then considered the employment status of the Appellant from 2008 to December 2019. It relied on the High Court decision in Minister for Agriculture and Food v. Barry and Others and in particular the mutuality of obligation test. It held that the Appellant was not an employee from 2008 to December 2019 and therefore did not have the one year’s service. The Labour Court’s decision issued on 23rd June 2023. The Appellant’s grounds of appeal to the High Court were: The Labour Court was required to hear the evidence on protected disclosures and not decide on the preliminary issue of his employment status alone. The Labour Court erred in law in determining the Appellant was not an employee before December 2019 and in applying a mutuality of obligation test to his situation. Decision: Ms Justice Bolger addressed both grounds of appeal in her judgement. In relation to the Labour Court’s jurisdiction to determine a preliminary issue, Ms Justice Bolger referred to the Supreme Court decision in Fitzgibbon v. The Law Society of Ireland and quotes parts of the judgement in which Clarke J. (as he was then) set out what was involved in a de novo hearing and goes on to state – “In summary, therefore, it seems to me that the use of the term ‘de novo appeal’ or similar terminology, carries with it a requirement that the  appellate  body  exercise  its  own  judgment  on  the  issues  before  it  without any regard to the decision made by the first instance body against whom the appeal lies.” The Supreme Court decision was after the Labour Court’s decision in Dawn Meats. Ms Justice Bolger referred to the statutory jurisdiction of the Labour Court in dealing with an appeal of an unfair dismissal decision in s.44(1)(a)(i) of the WRC Act which requires the Labour Court to “give the parties to an appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal”. Ms Justice Bolger held that the Labour Court erred in law by refusing to hear the Appellant’s evidence and arguments on what he said was his protected disclosure and the reason for his dismissal and such approach was inconsistent with s.44. Ms Justice Bolger addressed each of the elements referred to in the Labour Court decision and found them not to be in line with s.44 and the nature of a de novo appeal as per the Supreme Court decision in Fitzgibbon. She referred to s.47(1) of WRC Act where a party who did not participate in the WRC hearing could, after paying a fine, appeal the case to the Labour Court and have their case heard for the first time before the Labour Court, which is contrary to what the Labour Court decision referred to. In particular, Ms Justice Bolger pointed out that the claim that was raised by the Appellant in the Labour Court was not a new claim but was one of the 20 situations referred to under s.6(2) of the Unfair Dismissals Act and therefore still a claim under s.8 of the Unfair Dismissals Act as was heard in the WRC. The fact that it was a different argument under s.6 then that argued before the WRC Adjudicator does not make it anything other than an unfair dismissal claim and referred to the fact that all dismissals are deemed unfair unless proved otherwise by the employer. The Respondent argued that the potential higher award that may be granted in respect of a dismissal that is wholly or mainly due to a protected disclosure creates a “new jurisdiction” that was not available to the WRC Adjudicator and therefore the Labour Court should not be allowed to hear the protected disclosure argument. Ms Justice Bolger held that the Respondent confused the monetary jurisdiction of the Labour Court under s.7 with its jurisdiction to hear an appeal pursuant to s.44(1) of the WRC Act. She held that the availability of a higher award does not render the underlying claim anything other than a s.8 Unfair Dismissal Act claim. In relation to the employment status, Ms Justice Bolger applied the Supreme Court decision in The Revenue Commissioners v. Karshan (Midlands) Trading as Dominos Pizza, regardless of the decision having been made after the Labour Court decision that was subject to the appeal. She found that the Labour Court had erred in law by relying on the mutuality of obligation test. Ms Justice Bolger set aside the decision of the Labour Court and sent it back to the Labour Court for a rehearing of the appeal from the WRC. Takeaway for Employers: This High Court decision clarifies the scope of a de novo appeal to the Labour Court and how an employee may change the arguments that he/she wishes to rely upon. However, the claim itself must remain under the same section of the legislation as per the claim before the WRC. As a Respondent has the right to know the case that it has to meet, if such a change occurs in a Labour Court hearing without prior notice, then the Labour Court should give the Respondent time to consider this new argument and possibly put in further written submissions if it so wishes. It should also be noted that sworn evidence from the WRC may still be referred to in the Labour Court and a complete change in argument may result in difficulties for the Complainant in relation to the sworn evidence previously given by him/her. Link https://www.courts.ie/viewer/pdf/c19c0284-260c-41df-9d29-ffda80cac0b6/2024_IEHC_662.pdf/pdf#view=fitH Authors – Anne O’Connell

Raquel Vieira Dos Santos Silva v Eteam Workforce Limited (ADJ-00051855) is a decision of the Workplace Relations Commission (“WRC”) in a case under the Employment Equality Acts 1998-2015 (the “Acts”). It concerned an employee who alleged she was dismissed from her employment because she was pregnant. Facts: The Complainant was employed by the Respondent as a Category Sourcing Consultant from 12th December 2022 until 29th February 2024. She was issued with a contract of employment in November 2022, which did not contain an end date. In July 2023 the Complainant informed the Respondent that she was pregnant, following which emails were exchanged regarding her due date and estimated start of her maternity leave. The Complainant was presented with a contract addendum ten days later, purporting to extend her contract from the end of December 2023 until the end of February 2024, the month she was due to commence maternity leave. The Complainant initially refused to sign this addendum as it was the Complainant’s position that she was employed on a full-time permanent basis since her start date, and she told the WRC that there was never any mention of her role being fixed-term in nature. The Complainant submitted to the WRC that she eventually signed this addendum under duress, as she was told that she would receive no income for January and February 2024 if she did not sign it. The Complainant’s employment was terminated on 29th February 2024 while she was on maternity leave. The Respondent’s position was that it was an error that the Complainant’s original contract had no end date. Their legal representative submitted that the Respondent’s contract with their client was being terminated at the same time as the Complainant being due to go on maternity leave, and that they had been actively trying to seek alternative roles for her. Decision: The Adjudicator, Gaye Cunningham, considered whether the Respondent discriminated against the Complainant on the grounds of her gender and whether she was discriminatorily dismissed because of her pregnancy. Under the Acts an employer shall not discriminate against an employee on any of the nine discriminatory grounds. Section 6 (2A) states that: “discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.” In any employment equality case before the WRC, the initial burden of proof is on the Complainant to establish facts from which discrimination may be presumed, before the burden shifts to the Respondent to prove the contrary. The Adjudicator was satisfied that a prima facie case of discrimination had been made out by the Complainant where she had been presented with a contract addendum bringing her contract to an end merely ten days after informing the Respondent of her pregnancy. The Adjudicator seemed critical that no written submissions and, in particular, no documentary evidence, had been provided by the Respondent who relied only on oral evidence at the hearing. For example, no documents were provided showing that the Respondent’s contract with the client was being terminated at the same time that the Complainant was due to go on maternity leave, or showing that they were regularly seeking alternative roles for the Complainant. The Adjudicator accepted the Complainant’s evidence that she was put under pressure to sign the contract addendum and commented that to unilaterally change an employee’s terms and conditions of employment is a serious matter, which is “particularly egregious” where the Complainant had notified the Respondent of her pregnancy. The Adjudicator ultimately found that the Respondent discriminated against the Complainant on the ground of gender and that the Respondent discriminatorily dismissed her on the grounds of gender and related to her pregnancy. In deciding upon redress, the Adjudicator specifically referred to the European Court of Justice case Von Colson & Kamann v Land Nordrhein- Westfalen [1984] ECR 1891, which is authority for the well-established position that the sanction for discrimination should be “effective, dissuasive and proportionate”. It should be noted that this case was referred to by the Complainant in her submissions, along with the WRC case of Dr Jacqueline Elliott v Flexiteam Ltd (ADJ-00045346), where the Adjudicator stated that “the embarrassing and distressful situation the Complainant was put in” should be taken into account when deciding upon the quantum of award. The Respondent was ordered to pay €124,800 for the effects of the discrimination and the distress caused to the Complainant. The Respondent was also ordered to pay €11,400 in respect of her loss of earnings between July and September 2024. Takeaway for Employers: Employers should be aware that pregnant women have strong protection from discrimination in Ireland. This protection is rooted not only in the Acts, but also in the Maternity Protection Acts, EU law and the Irish Constitution. Employers should be wary of taking any steps to terminate a pregnant employee’s employment, or to terminate an employee’s employment while they are on maternity leave, as this is a form of protected leave. Employers should also take note of the high quantum of the award in this case. As noted by the Adjudicator when referring to EU law, awards for discrimination are meant to be dissuasive. In unfair dismissal cases, awards of compensation are based on a complainant’s loss of earnings and complainants are obliged to mitigate their loss and actively seek new employment. However, in employment equality cases, awards of compensation are frequently made for the effects of the discrimination, increasing the potential exposure. Link – https://www.workplacerelations.ie/en/cases/2024/adj-00051855.html Authors – Tara Kelly and Jenny Wakely

The WRC recently delivered decisions on a number of employment law claims brought by the Complainant in a case entitled PR Company v Hotel Resort (ADJ-00046181, ADJ-00047024, ADJ-00045524, ADJ-00047375). The decisions are noteworthy as the WRC found the individual to be an employee (and not an independent contractor) for the purpose of various employment law statutes notwithstanding that she was paid through a company. Facts: On various dates in 2023 the Complainant lodged claims against the Respondent under a number of different employment law statutes. The Complainant described herself as the PR and Digital Marketing Manager for the Respondent. She submitted that while she performed some duties as an independent contractor, following a successful application for a work permit, she became an employee of the Respondent. The Respondent submitted the Complainant was never their employee and that all work she completed on their behalf was as an independent contractor. The Respondent submitted that the duties she carried out were completed by a limited company of which the Complainant was the sole director. It was submitted the Complainant retained complete autonomy over the strategies and operations of her company. The Respondent submitted that they imposed no restrictions as to when or how the Complainant completed work assigned to her company nor was she assigned any company laptop, phone or other assets to complete her work. As part of their defence, the Respondent referred to documentation where the Complainant allegedly referred to herself as a “contractor”. They also argued she was in a position to substitute others to complete work for her so long as the work was completed by her limited company. The Respondent referenced an invoice that named a different individual within the Complainant’s company. There were some very unusual facts in this case, including the Complainant being under the investigation of the Gardai at the time of the WRC hearing and a significant dispute around the level of knowledge/involvement by the Respondent in respect of the Complainant’s application for the abovementioned employment permit. It was not in dispute that for a period of time from March 2023, the Complainant provided services to the Respondent as an independent contractor and that such services were provided by a third party company of which the Complainant was the sole shareholder and director. However, the position of the Complainant was that this arrangement was to come to an end with the commencement of her employment visa/permit in August 2022. The Respondent on the other hand argued that the Complainant remained an independent contractor at all times and, notwithstanding the terms of the Complainant’s visa/permit, she did not take up direct employment with them at any point during their engagement. Decision: In determining whether the Complainant was an employee or independent contractor, the Adjudicator applied the five question framework set out by the Supreme Court in the case of Revenue Commissioners v Karshan [2023] IESC 24.Those questions are as follows: Does the contract involve the exchange of wage or other remuneration for work? If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer? If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement? If these three requirements are met the decision maker must then determine whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer. Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing. In analysing these questions, the Adjudicator considered the extent of the Respondent’s knowledge and involvement with the Complainant’s employment permit application process. While the board of the Respondent denied any knowledge of same, the Complainant opened various communications from the then General Manager advising her to make the permit application and acknowledging the application while it was in progress. There also appears to have been some level of acknowledgement on the part of the Respondent that the former General Manger did assist the Complainant with the permit application. The Adjudicator concluded that while the Respondent had noted that the Complainant signed the permit application on the part of the former general manager, and apparently drafted an accompanying contract of employment of her own volition, it was apparent that the senior management of the Respondent was aware, at all times, that the Complainant intended to make such an application in the anticipation of the commencement of direct employment with their organisation. The Adjudicator went on to comment that it is apparent it waas a condition precedent of the permit application that the applicant must have secured an offer of employment prior to the award of the permit and that while the Respondent had raised many deeply concerning points in respect to the manner by which the Complainant applied for the permit, the fact remained that the Respondent was aware she was making the application and should have been aware that such application would by operation of statute serve to create an employment relationship between the parties. The Adjudicator went on to state that if the Respondent intended for the Complainant to remain as an independent contractor, then they had a duty to make this extremely clear to her, particularly when her ongoing residence in the state was dependent on her ongoing employment with the Respondent. As mentioned above, there were a number of very unusual issues that arose in this case. Another such point was the fact that the Complainant opened correspondence from the Respondent in which the Respondent apparently sought to ostensibly terminate its agreement with the Complainant and then later stated that should the Complainant return various passwords and digital marketing assets, the Respondent would come to an arrangement regarding the Complainant’s ongoing visa and continued residence. On this point, the Adjudicator commented that it was “utterly inappropriate” for the Complainant’s visa status and ongoing residence to be used as a form of bargaining chip and that the foregoing further illustrates the Respondent were well aware of the Complainant’s status and were prepared to rely on same, and the consequent contract of employment implied by same, when the result was to their benefit. The Adjudicator commented that in considering the various points that arose in this case, it was apparent that the facts represented an extremely unusual set of circumstances and even having considered voluminous submissions from both parties etc. it remained difficult to classify the relationship between the parties with any degree of certainty. Nonetheless, the Adjudicator determined that applying the Karshan principles it could be seen that in respect of question 1, the contract between the Complainant, “or at least the corporate entity controlled by the Complainant”, and the Respondent involved the exchange of remuneration for work. Significantly, the Adjudicator determined that “While the Respondent placed a great deal of reliance on the fact that all payments were issued through a third-party company controlled by the Complainant, such a system is commonplace in complaints of incorrectly classed self-employment and cannot, of itself, disqualify the existence of a contract of employment”. In respect of question 2 of the Karshan framework the Adjudicator noted the Complainant’s evidence that she was under the direct control and supervision of the Respondent and that while the Respondent submitted a third party could have provided such services, there was no evidence of such services having been provided by a third party. On the question of control, the Respondent had argued that they exerted little to no control over the Complainant in the manner in which she performed her duties and noted that she performed most of her duties on a remote basis. On this point the Adjudicator commented that while the concept of control is a crucial criterion by which an engagement might be classified as a contract of employment, in recent times an increasing number of roles are performed either fully or partially remotely and that the nature of the Complainant’s role was that such duties could be performed remotely. The Adjudicator noted the Complainant’s evidence that she performed such duties under the direct control and supervision of the incoming general manager. In respect of questions 4 and 5 of the Karshan framework the Adjudicator noted the Respondent’s position was that the relationship was entirely inconsistent with a contract of employment and the arrangements did point to the Complainant working for herself. The Adjudicator commented that while this point was far from conclusive, the fifth question of the Karshan framework advises that any finding must be adjusted based on the existence of a particular legislative regime. The Adjudicator commented that in this regard, the relevant legislative regime provides that in sponsoring, or at least having constructive knowledge of the application for residence, the Respondent engaged in a process that would have the legal requirement of the criterion of a contract of employment and any finding in respect of question 4 of the Karshan framework must be viewed in this respect. The Adjudicator ultimately concluded that the Complainant was engaged under a contract of employment and moved on to consider her various employment law claims against the Respondent. Takeaway for Employers: This case shows that in contractor arrangements even where an individual is engaged through a company, the WRC may in theory be willing to look behind that company and deem the individual worker to be an employee. It will be interesting to see whether the case is appealed. It is important to point out that the facts of this case were very unusual, and it would remain to be seen whether the WRC would adopt a similar approach in another case. The case is timely in circumstances where the Government has recently published an updated Code of Practice on Determining Employment Status. It is noteworthy in the context of this case, that the code includes a whole section on the use of intermediary arrangements in lieu of a direct engagement between a worker and an end user and sets out how Revenue and the Department of Social Protection are likely to approach such arrangements. See our article summarising the provisions of the Code available at this link. Links: https://www.workplacerelations.ie/en/cases/2024/november/adj-00046181.html https://www.workplacerelations.ie/en/cases/2024/november/adj-00047024.html https://www.workplacerelations.ie/en/cases/2024/november/adj-00045524.html https://www.workplacerelations.ie/en/cases/2024/november/adj-00047375.html Author – Laura Killelea

 In Alan Lehane v Sean Ahern Ltd ADJ-00051505, the Workplace Relations Commission (“WRC”) found that an employer’s sick pay scheme was more favourable overall than entitlements provided for under the Sick Leave Act 2022 (“the Act”),notwithstanding that the Complainant had been disadvantaged by a waiting period under the employer’s sick pay scheme. Facts: The Complainant’s case was that he was an employee of the Respondent from August 2021 to February 2024. He claimed that in January 2024, he was absent from work for three consecutive days. The Complainant submitted that he had noticed that his next payslip did not reflect payment for these absences, as he had anticipated given the Respondent participated in the Construction Worker’s Pension Scheme (“CWPS”) and followed the CWPS sick pay scheme (“CWPS scheme”). The Complainant claimed that he queried this with his employer, who informed him that the CWPS scheme did not provide sick pay until a fourth day of absence. The Complainant contended that he should have received pay for his absences through the statutory sick pay scheme (“SSP”) instead, as it would entitle him to be paid from the first day of absence. It was the Complainant’s submission that the SSP was the more favourable of the two schemes and highlighted that the CWPS scheme’s three-day waiting period meant that he may never claim the benefit of sick pay due to potentially only ever being absent for short periods of time. It was the Respondent’s submission that the Industrial Relations Sub Committee of the CWPS conducted a comparison exercise between the CWPS scheme and SSP. The Respondent contended that the result of that exercise was a recommendation that the CWPS scheme substitute the SSP, in accordance with section 9 of the Act as it is more favourable to employees. The Respondent further submitted that the WRC’s decision in Karolina Leszczynska v Musgrave Operating Partners Ireland (“the Musgrave case”) supported this substitution. Decision: The Adjudicating Officer stated that the Act is intended to confer a benefit on employees who have no contractual entitlement to paid sick leave. The SSP at that time provided five days sick pay over a twelve-month period, at a rate of 70% normal pay up to a maximum of €110, whichever the lesser. In line with section 8(1) of the Act, an employer may provide a sick pay scheme that is as favourable or more favourable to its employees than the SSP, and “…any such provision shall be in substitution for, and not in addition to that entitlement”. Section 9 of the Act states that an employer shall not be obliged to provide SSP “where the terms of the scheme confer, over the course of a reference period set out in the scheme, benefits that are, as a whole, more favourable to the employee than statutory sick leave.” Although the Adjudicating Officer recognised that the three-day wait period under the CWPS scheme put the Complainant at a disadvantage whereby he was not entitled to receive any sick pay until his fourth day of absence, the Adjudicating Officer was satisfied that the CWPS scheme was, on the whole, a more favourable scheme compared to that under the 2022 Act. The Respondent demonstrated that the CWPS scheme allowed for payment of 50 days sick pay per annum, which was accepted as being more favourable than the SSP allowance. The Adjudicating Officer noted that the benefits conferred by the CWPS scheme outweighed the disadvantage the Complainant faced. Takeaway for Employers: This decision is an interesting development on recent caselaw on the Sick Leave Act 2022. This decision appears to follow the rationale of the Musgrave case, which determined that the benefits of a company’s sick pay scheme will be considered as a whole and compared with the overall benefits of the SSP. Our readers will note the contrast between these decisions and Ann Britton v Amcor Flexibles Ltd, in which it was decided that a company sick pay scheme was, as a whole, less favourable than the SSP, having regard to the disadvantage faced by the Complainant as an employee with less than twelve months service (links to our previous articles on these case are below). These cases highlight the importance of evaluating company sick leave policies on a regular basis to ensure that they do not fall short of the SSP allowance. Link - Alan Lehane v Sean Ahern Ltd WRC Examines First Case Under Sick Leave Act 2022 WRC Finds that Company Sick Pay Scheme less favourable overall than the Statutory Sick Pay Scheme Authors – Lia Berkery & Laura Killelea

It is appropriate at this time of the year to look back at some of the interesting developments and the important cases that have shaped employment law in Ireland in 2024. Code of Practice on the Right to Request Flexible and Remote Working The Workplace Relations Commission (“WRC”) published its highly anticipated Code of Practice on the right to request flexible working for caring purposes for certain categories of workers and the right to request remote working (the “Code”). The Code sets out practical guidance on how to approach requests for flexible and remote working and provides a template Work Life Balance Policy and application form. Further details can be found in our article AOC Article. Parent’s Leave Update From 1st August 2024, parents are now entitled to nine weeks of Parent’s Leave in respect of children born or adopted on or after 1st August 2024, an increase from seven weeks. Parent’s Leave entitles “a relevant parent” to avail of time off work during the first two years of a child’s life, or in the case of adoption, within two years of the placement of the child with the family. During a period of Parent’s Leave, parents will be entitled to avail of Parent’s Benefit through the Department of Social Welfare if they have sufficient PRSI contributions and meet any relevant eligibility requirements. Further details can be found in our article AOC Article. Gender Pay Gap Reporting Update Under The Employment Equality Act 1998 (Section 20A) (Gender Pay Gap Information) (Amendment) Regulations 2024 ( “the 2024 Regulations), from 31st May 2024, reporting requirements have been extended to employers with at least 150 employees. All employers with at least 150 employees were required to choose a snapshot date in June 2024 and were required to report within six months of that date. The 2024 Regulations also introduced changes to how gender pay gap reporting is carried out and clarified that basic pay includes payments made to employees (by the State and/or by an employer) during adoptive, maternity, paternity and parent’s leave. Reporting requirements will be extended to employers with at least 50 employees in 2025. Further details can be found in our AOC Article. Sick Leave Act 2022 – Update On 1 January 2024, statutory sick leave was increased to 5 days’ sick pay a year, an increased from 3 days in 2023).  It is proposed that the entitlement will increase to 7 days in 2025 and 10 days in 2026. However, at the time of writing this has yet to be confirmed. The Sick Leave Act 2022 is linked here. New criteria for non-disclosure agreements regarding discrimination, harassment and/or victimisation. A new section was added into the Employment Equality Act which restricts employers entering into non-disclosure agreements with employees relating to any allegations of discrimination, harassment, sexual harassment and victimisation. However, the section goes on to provide that this does not apply to agreements reached through the WRC Mediation Services or where it complies with the requirements of an excepted non-disclosure agreement. Further details can be found in our article AOC Article. Government Publish’s Updated Code of Practice on Determining Employment Status. Following the 2023 judgement of the Supreme Court in The Revenue Commissioners v Karshan (midlands) Ltd/ T/A Donimo’s Pizza [2023] IESC 24 the Government’s “Code of Practice on Determining Employment Status” has been reviewed and updated. The Code is intended to provide a clear understanding of the employment status of individuals, taking into account current labour market practices and developments in legislation and case law. Further details can be found in our Article. Supreme Court Clarification on the law on Mandatory Retirement Age - Seamus Mallon v The Minister For Justice, Ireland, and The AG [2024] IESC 20  The Supreme Court issued an important judgement clarifying the law on mandatory retirement ages. It clarified that contrary to what had previously been understood, the law on mandatory retirement age setting, does not presumptively require case by case or role by role assessment or that such individual assessment must be shown to be impractical if a generally applicable retirement age is to be justified. Further details can be found in our article AOC Article. The principles in Mallon were subsequently followed in Holland v HSE and Ors [2024] IEHC 533 . Supreme Court Rules High Court Erred in Re-engaging School Principal in a Manner that Meant He was Effectively Reinstated - An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38 The Supreme Court found that the High Court, Labour Court and the Workplace Relations Commission (“WRC”) had erred in law in ordering the re-engagement of a principal of a primary school, in a long-standing dispute. The Supreme Court addressing the remedies of reinstatement and re-engagement under the Unfair Dismissals Acts and made it abundantly clear to lower decision-making bodies that those remedies are only to be ordered in exceptional cases. Factors to be considered in cases seeking these remedies include the passage of time, the state of relations between the parties, changes in the workplace, and the implications on innocent third parties. Further details can be found in our article AOC Article. WRC Holds Fiddler To Be An Employee - Matthew McGranaghan v. MEPC Music Ltd (ADJ-00037668) The Complainant in this case had brought a number of complaints to the Workplace Relations Commission (“the WRC”) alleging that he was an employee and not self-employed and, on that basis, he successfully claimed that he was unfairly dismissed; not paid his notice entitlement; not paid his annual leave or public holiday entitlement. This decision illustrated how easy it is now going to be for workers to be able to prove that in reality they are employees. It is vital that all businesses that engage with contractors who provide personal service review their arrangements. There are careful steps that need to be considered in respect of each of these options. However, doing nothing is no longer a viable option. Further details can be found in our article  AOC Article. Twitter ordered to pay €550,000 to Former Employee - Gary Rooney v Twitter International Unlimited Company (ADJ – 00044246) This case is hugely significant for employers who operate employee incentive/equity schemes as it paves the way for employees to claim for loss of benefits under those schemes as part of an unfair dismissal claim. This case also reinforces the principle that resignations need to be unequivocal and unambiguous and that if an employer wrongly treats a termination of employment as a resignation, there will likely be a legal exposure under Unfair Dismissals Acts. The decision is under appeal to the Labour Court. Further details can be found in our article  AOC Article. Supreme Court Decision Makes It Very Difficult For Employers To Obtain an Injunction To Restrain Industrial Action in the Future - H.A. O’Neil Limited v. Unite the Union and Ors [2024] IESC 8 The Supreme Court judgements in this case make it extremely difficult for an employer to obtain an injunction restraining picketing and other industrial action in the future. It highlights that alternative reliefs and action may need to be explored by employers in such circumstances. Further details can be found in our article AOC Article. Employee Awarded Significant Compensation for Unfair Dismissal by WRC - Michael Kiely v Hyph Ireland Limited (ADJ-00037708) The Adjudicator found that the Complainant in this matter was unfairly dismissed and assessed his financial loss to be €460,000 over 17 months. He made an adjustment of €20,000 to account for a five-month period following expiration of the Complainant’s non-compete clause, reducing the financial loss figure to €440,000. This decision is interesting in terms of the comprehensive assessment of financial loss by the Adjudicator. Of particular note is the Adjudicator’s view that because the Complainant was a “successful entrepreneur” he had “every right to pursue that goal to re-establish himself in a similar role that he was dismissed from”, and that it was not reasonable for him to compromise that “legitimate goal” by accepting “any work that detracts from that objective.” Employers need to bear this in mind in terms of assessing the potential level of exposure in respect of a former employee who is or was a successful entrepreneur, and the efforts that he or she has made to mitigate his or her loss. Employers should also consider the potential impact of post termination restrictions on a former employee’s ability to mitigate his/her loss. Further details can be found in our article AOC Article.  

In a recent decision of the Workplace Relations Commission (“WRC”) in Gareth Elliot v Legs Eleven Limited... In a recent decision of the Workplace Relations Commission (“WRC”) in Gareth Elliot v Legs Eleven Limited (ADJ-00050223), the Complainant claimed that his dismissal for reason of redundancy was unfair. The Complainant argued that the Respondent had not taken into consideration other roles which he could have done. The Respondent rejected the claim. Facts: The Complainant was employed as a digital marketing executive in September 2021 and was promoted to the role of content marketing manager 6 months later. His role was to manage communications with prospective clients, search engine optimisation (SEO) and managing the social media content. He worked from his home in Amsterdam. On 9th November 2023, the Respondent’s General Manager, Mr Stephen Kelly, met with the Complainant and informed him that his position was at risk of redundancy due to commercial struggles, as there had been consecutive losses between August and October 2023. Evidence given by Mr Kelly was that the Complainant’s role was selected due to the leadership opinion that it was not generating revenue and that paid social media was a better option compared to content management. Following the meeting on 9th November, the Complainant emailed Mr Kelly and asked him to consider an alternative to redundancy, knowing that a social media marketing manager had recently been hired in September 2023. In his evidence, Mr Kelly stated that the Complainant did not have the requisite experience in paid social media and had never shown skills in targeted advertising or advertising campaigns. Mr Kelly further stated that after consideration of the Complainant’s CV, he did not envisage the Complainant taking on a social media marketing manager role as it was more than just marketing. He also stated that the company did not have the time to provide training for the Complainant in the new social media role. On 16th November, the Complainant was notified on a video call that his role was being made redundant and his employment would terminate on 30th November. This was confirmed in writing. Under cross examination, Mr Kelly confirmed that a further social media manager was hired subsequent to the Complainant being made redundant. Mr Kelly told the WRC that the vacancy had arisen after an internal move – the social media roles are based on “regions” and one of the social media managers moved to an international position. He also confirmed that a freelance videographer was hired in October 2023, to do on-street videos and comic pieces which were uploaded to social media sites by the manager. Mr Kelly confirmed that there were no performance issues with the Complainant, who had met his targets but stated that the company focus had shifted to social media rather than Google analytics or email marketing. The Complainant gave evidence that he had worked in paid advertising in the first six months of his employment with the Respondent and outlined that he was one of the longest-serving employees with transferable skills. The Complainant stated that he believed that he was unfairly selected for redundancy, with others like his manager now doing parts of his role. He believed that he was more skilled than others hired after him and no effort was made to slot him into a different role. Decision: The Adjudicator, Catherine Byrne, considered the Complainant’s complaint under the Redundancy Payments Acts 1967-2014 (the “RP Act”) and the Unfair Dismissals Act 1977-2015 (the “UD Act”). Under section 7(2)(c) of the RP Act, “…an employee who is dismissed shall be taken to be dismissed by reason of redundancy if, for one or more reasons not related to the employee concerned, the dismissal is attributable wholly or mainly to – (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise[.]” The Adjudicator stated that from Mr Kelly’s evidence, the number of employees working for the Respondent had decreased from 15 to 8 during the period between November 2023 and the date of the hearing in May 2024. Furthermore, certain parts of the Complainant’s role were no longer carried out, with other parts being carried out by a freelance videographer and the Complainant’s former manager. On that basis, the Adjudicator was satisfied that a genuine redundancy situation existed. The Adjudicator then considered whether the process that resulted in the Complainant’s redundancy was unfair and whether it was unreasonable for the Respondent to select the Complainant for redundancy and not for the role of social media marketing manager. The Adjudicator referred to section 6(7) of the UD Act and stated that an adjudicator must have regard to; “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and  (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.” The Adjudicator stated that no evidence was submitted regarding the existence of any company procedure for implementing redundancies. In the absence of same, fair procedures must be applied, to include the right to notice, the right to be represented at meetings, the right of response to a decision to make an employee redundancy, and the right of appeal. The Adjudicator found that with some training and support, an employee whose job is redundant may be suitable for a different job: “A job may be eliminated, but the employee may be capable of doing a different job or, they may be capable of doing the same job in another part of the organisation.” Referring to subsections (2A) and (2B) of section 15 of the RP Act, the Adjudicator noted the provision for a trial period for an employee to consider if an alternative job is suitable. The Adjudicator stated that in her view the objective of the subsections is to avoid the dismissal of an employee by permitting him/her to try out another role even if it  is not a “direct match” .The Adjudicator noted that if an employee whose job is at risk of redundancy requests to take on another role, “it is incumbent on an employer to consider that request.” Section 15 (2A) and (2B) set out the following: “(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section. (2B) Where - (a) an employee's remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and (b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.” The Adjudicator concluded that while the Complainant’s role was redundant, his dismissal was unfair for two reasons. Firstly, the Respondent made “no effort” to avoid the Complainant’s dismissal. The Complainant should have been re-deployed and permitted to try out the role as social media marketing manager (which he had requested) for a trial period. In so finding, the Adjudicator was cognisant of the fact that the Complainant was an experienced marketing executive, and that the alternative role was also related to marketing, albeit a different aspect. His performance would then have been subject to review to consider whether he was suitable in the long-term or following an unsatisfactory review, whether he should be made redundant at that point. Secondly, the Adjudicator found that the process leading to the Complainant’s dismissal was not consistent with a “standard” redundancy procedure. She noted the very short period between the Complainant being put at risk of redundancy, and his redundancy being confirmed a week later. She also noted that the Complainant was not informed of his right to be accompanied or represented at the meetings and he was never advised of any appeal process. The Adjudicator commented that the process may have been slowed down if the Complainant had been in receipt of support, the effect of which may have been that a different decision could have been reached. The Complainant started in a new role on 24th January 2024. On that basis, the Adjudicator deemed compensation to be the most appropriate redress, and she awarded €5,400 to the Complainant, equivalent to eight weeks’ gross pay (his loss of earnings for the period he was out of work). Takeaway for Employers: This decision emphasises the importance of adhering to fair procedures in the context of a redundancy process. It is in keeping with the trend in other recent decisions which place significant focus on the obligation on employers to consider alternatives to avoiding redundancies. The Adjudicator appears to go a step further in this case by referring to section 15 (2A) and (2B) of the Redundancy Payments Acts. Section 15 relates to circumstances in which an employee may be disentitled to a statutory redundancy payment for refusing to accept alternative employment. Subsections 15(2A) and (2B) enable employees to try out an alternative role without losing the entitlement to a redundancy payment purely for having tried out the alternative role. It remains to be seen whether the Adjudicator’s line of reasoning in this regard will be followed in subsequent decisions. However, either way it is imperative that employers ensure that proper and adequate consideration is given to all alternatives to redundancy, particularly in circumstances where there is a similar role available which an employee regards as a suitable alternative and which is not significantly different from the role that he/she has been carrying out or has previously carried out. Links ADJ-00050223 - Workplace Relations Commission Authors – Ethna Dillon and Jenny Wakely

In the recent high-profile case of Gary Rooney v Twitter International Unlimited Company (ADJ – 00044246)... In the recent high-profile case of Gary Rooney v Twitter International Unlimited Company (ADJ – 00044246), the Workplace Relations Commission (“WRC”) upheld the Complainant’s claim for unfair dismissal and awarded him a record €550,131. The decision is under appeal to the Labour Court. Facts: The Complainant began employment with the Respondent in 2013. At the time his employment ended in December 2022 he held the position of “Director of Source to Pay”. On 16th November 2022, the Respondent’s then entire workforce received an email from the Respondent’s new owner (Elon Musk). The email was entitled “A Fork in the Road”. The content of the email (as outlined to the WRC by the Complainant and accepted by the Respondent) was as follows: “Going forward, to build a breakthrough Twitter 2.0 and succeed in an increasingly competitive world, we will need to be extremely hardcore. This will mean working long hours at high intensity. Only exceptional performance will constitute a passing a grade. [….] If you are sure that you want to be part of the new Twitter, please click yes on the link below. Anyone has not done so by 5pm ET tomorrow (Thursday) will receive three months of severance. Whatever decision you make, thank you for your efforts to make twitter successful. Elon.” Following the Fork in the Road email, the Respondent sent employees an accompanying FAQ document which according to the Complainant stated that “If you do not confirm that you wish to stay at Twitter, you are resigning. You will not be entitled to statutory redundancy or other termination payments, unless otherwise required by law.” According to the Complainant the FAQ document contained a reference to a “separation offer” but the Complainant argued it was not possible to know from the information given what was being offered. The Complainant argued that confusingly the FAQ document also seemed to suggest that if a person did not click the box and did not agree the severance offer the Company would take some other unknown approach. Specifically, the Complainant referred to the following alleged statement in the FAQ document “If you don’t click “yes” we will liaise with you in relation to next steps in accordance with our legal obligations.” On 17th November 2022 at 6pm Irish Time (which the Complaint said was just four hours before the deadline outlined in Mr. Musk’s email) the Complainant virtually attended a large meeting involving a number of staff in the company. The Complainant contended that he did not glean any useful information from this meeting. It was common case that the Complainant did not click “yes” by the time the deadline passed. It was also common case that the following day,18th November, the Complainant’s access to the company’s internal systems and network was cut off without any form of communication. On 19th November, the Complainant received an email from the Respondent acknowledging his “decision to resign and accept the voluntary separation outlined to you”. The Complainant responded to this email stating that he had not indicated that he was resigning. He received an automated response to this email indicating he would receive a response within three business days. The Complainant sent a follow-up email on 5th December 2022 noting his disappointment that his email was not responded to within three business days. The Respondent’s HR Department responded, noting that the failure to respond to the Fork in the Road email had been treated as the Complainant having served notice of resignation. Decision: There were extensive legal submissions from both sides on the question of whether the fact that the Complainant did not respond to Mr. Musk’s Fork in the Road email could amount to a resignation. The Respondent argued that it did. The Complainant strongly contested this and argued that the termination of the Complainant’s employment was an unfair dismissal. Among other things, the Respondent raised that there had been various communications from the Complainant on the Respondent’s internal communication platforms following the Fork in the Road email and that those communications demonstrated the Complainant had made a conscious decision that he was not going to click “yes”. The Respondent argued that these communications taken together constituted a communication to the Respondent of his intention to resign. There was detailed consideration of previous case law in respect of resignations and dismissals including the UK case of Sothern v Franks Charlesly & Co [1981] IR 278 as cited in subsequent decisions in this jurisdiction. The Sothern case determined that: “in the normal case if unequivocal words of resignation are used the employer is entitled to immediately accept the resignation and act accordingly”. The Adjudicator rejected the arguments put forward by the Respondent and determined that the Complainant’s failure to click “yes” to Mr. Musk’s email of 16th November email “cannot by any reasonable standards be deemed to equate with the use of unequivocal or unambiguous words of resignation.” The Adjudicator held that the Respondent had dismissed the Complainant, and the dismissal was unfair. The Adjudicator then turned to consideration of the appropriate level of compensation. The Adjudicator’s decision on this point is hugely significant for the following reasons: The Adjudicator took into account Equity Grants/ Deferred Cash Consideration benefits enjoyed by the Complainant arising from his employment with the Respondent and factored them into his calculation of the award to the Complainant for losses arising from the dismissal. This decision is also significant because in addition to making an award to the Complainant in respect of losses already incurred as a result of the dismissal, the Adjudicator made a substantial award for future losses (not yet incurred). Of the €550,131 awarded, a substantial €200,000 represented an award for future losses. The Adjudicator’s approach to the question of mitigation of loss is also noteworthy. Employees in unfair dismissal claims must be in a position to demonstrate they have made adequate efforts to mitigate their financial loss arising from the dismissal (usually by seeking alternative paid employment). On this point, the Complainant’s lawyers had submitted that for nine months the Complainant had attempted to find a job with an equally high level of remuneration but had been unable to do so and was then forced to accept a position at a considerably lower salary. The Respondent argued the Complainant had not made sufficient efforts to mitigate his loss. However, the Adjudicator found that the Complainant made appropriate efforts to mitigate and remarked as follows: “He was not obliged to take any job at any salary but rather to seek suitable alternative employment attracting an income as close as he could get to the overall compensation package he had enjoyed prior to the dismissal. From the point of view of assessing mitigation I find that. in all of the circumstances, it would be unfair to criticise the Complainant for failure adequately to mitigate by not achieving a base salary together with benefits as generous as those he enjoyed with the Respondent, and I do not make such a finding.” Takeaway for Employers: This case is hugely significant for employers who operate employee incentive/equity schemes as it paves the way for employees to claim for loss of benefits under those schemes as part of an unfair dismissal claim. This case also reinforces the principle that resignations need to be unequivocal and unambiguous and that if an employer wrongly treats a termination of employment as a resignation, there will likely be a legal exposure under Unfair Dismissals Acts. This point was covered in another of our articles last month in the context of “heat of the moment” resignations where similar principles apply (see that previous article here https://aocsolicitors.ie/employers-should-be-cautious-of-heat-of-the-moment-resignations/). Link -  https://www.workplacerelations.ie/en/cases/2024/august/adj-00044246.html   Authors – Lia Berkery & Laura Killelea

The recent determinations of the Labour Court in Parnells GAA Club, Parnells GAA Club LTd v Leigh Fogarty (Decision No’s RPD2420 & RPD2419) are noteworthy for any employer faced with a possible layoff situation. However, it should be noted that the employer chose not to attend the hearing of the Labour Court and so the Labour Court’s determination discussed below would have been on the basis of the evidence of the employee only. Facts: The determination sets out the background of this case as follows. The employer’s premises closed on 12th March 2020 due to the Covid-19 Pandemic. In terms of communications around the closure the employee confirmed to the Labour Court that he was never at any time given any notice of temporary lay-off in accordance with Section 11 of the Redundancy Payments Acts 1967-2014 (the “Acts”). However, neither was he ever at any time given any notice of dismissal. Nonetheless, his employer ceased to pay him or offer him work.. An employee who is on temporary lay-off can usually (after a specified period of time) serve a notice on their employer of their intention to claim a redundancy payment. The employer can avoid having to make a redundancy payment in such a situation if they serve a counter notice within a certain time frame confirming there will be work available to the employee within a specified time period. The time periods in each case are set out in the legislation. It is not necessary to go into them for the purpose of this article. Suffice to note the employee here confirmed to the Labour Court that he eventually served a notice of an intention to claim a redundancy payment (in the form of an RP9 form) on the employer. The employee contended that the employer did not responded to the RP9 form in any substantive manner. The employee subsequently brought a claim to the WRC and on appeal to the Labour Court seeking a redundancy payment. Decision: The Labour Court determined that in order for the employee to be regarded as laid off within the meaning of the Acts, it is a condition precedent  that he be given notice to that effect by the Respondent (in accordance with Section 11(b) of the Acts) prior to the cessation of his employment for that reason. In the absence of such notice, the Labour Court concluded that the employee’s employment had never ceased by reason of lay-off within the meaning of the Acts on 12th March, 2020 or at any other time and that it therefore followed the serving by the employee of notice to claim a redundancy payment by reason of lay-off upon the employer can have no meaning. Consequently, it was determined that the employee has neither been dismissed from his employment nor acquired a right to redundancy payment arising out of a layoff. Instead and very significantly, the Labour Court determined that the employee remains employed by the employer albeit that he has not been paid or provided with work in over four years. Such a decision gives rise to complex employment law considerations from the perspective of an employer. Takeaway for Employers: Where an employer finds themselves in a sutation of needing to temporarily lay off a member of staff, it is important to ensure that all necessary paperwork is put in place around this including issuing the appropriate official written notice of layoff to the employee in accordance with the requirements of the Acts. Separately, while it was not something that arose for discussion in this decision, employers should also be careful to ensure they include clauses on layoff/short time in their employees’ contracts of employment as the absence of such contractual clauses can prove problematic later if a lay off/short time situation arises. Links  - https://www.workplacerelations.ie/en/cases/2024/august/rpd2419.html and https://www.workplacerelations.ie/en/cases/2024/august/rpd2420.html Authors –Hannah Smullen and Laura Killelea