Legal Island Annual Conference Case Law Review 2019 M-47266207-1 Introduction 1 Labour Court Annual Report 2018 2 Workplace Relations Report 2018 • 343% increase in age-related • 1,169 referrals – 7% increase from 2017 disability claims • 770 employment rights appeals • Average waiting time of 6-9 months • 57% unfair dismissals, employment equality, OWT • 75% adjournment applications successful • 945 hearings scheduled • 504 Recommendations/Determinations/D ecisions 2 MAIN-47266207-1 Themes 1 2 3 Fair Procedures 4 Reasonable Injunctions Immigration Accommodation 5 6 7 8 Working Time Maternity Leave Constructive Annual Leave & Pregnancy Dismissal Discrimination 3 MAIN-47266207-1 1
1. Reasonable Accommodation 4 MAIN-47266207-1 Nano Nagle v Daly 14 October 2013 12 August 2014 Equality Tribunal Labour Court 31 January 2018 11 December 2015 Court of Appeal High Court 31 July 2019 Back to Labour Supreme Court Court 5 MAIN-47266207-1 Supreme Court – Key Take-aways REASONABLE MEDICAL ADVICE ACCOMMODATION Be fully informed by up- to-date medical advice Objectively evaluate appropriate measures to facilitate a return to work REDISTRIBUTION CONSULTATION Consider the Though not necessarily redistribution of both core mandatory, a “ wise ” duties and non-core employer will engage and tasks consult with the affected employee 6 MAIN-47266207-1 2
2. Injunctions 7 MAIN-47266207-1 Injunctions 01 02 03 Kearney v Byrne Powers v HSE Grenet v EA Ireland Wallace • High Court • Court of Appeal • High Court • Pitfalls of no-fault • Jurisdiction for • Jurisdiction for dismissal redundancy-based fixed-term • Ostensible unfair dismissal claim employment claim authority 8 MAIN-47266207-1 3. Immigration 9 MAIN-47266207-1 3
Jones v Minister for Justice and Equality Application for Irish citizenship via naturalisation High Court Irish Nationality and Citizenship Act 1956 – “ continuous residence ” in final year What a difference a single day makes! Court of Appeal hearing 8 October 2019 MAIN-47266207-1 4. Fair Procedures 11 MAIN-47266207-1 Fair Procedures McKelvey Park Hotel Hughes v IBTS • Court of Appeal • Labour Court • High Court • Legal • Probationary • Judicial Review – representation dismissal – fair lawfulness of during disciplinary procedures? decision-making hearing? process 12 MAIN-47266207-1 4
5. Working Time 13 MAIN-47266207-1 European and Irish cases on Working Time Records 1 2 CCOO v Deutsche Bank Kepak v O’Hara • CJEU • Labour Court • WTD: “ guarantee better • Failure to keep proper records – protection of the safety & health employer had “permitted” of workers ” by ensuring employee to work excessively “ adequate breaks ” and imposing “ ceiling on duration of working • Organisation of Working Time Act week” 1997 • Suitable system in place to record daily and weekly working time 14 MAIN-47266207-1 6. Maternity Leave & Pregnancy Discrimination 15 MAIN-47266207-1 5
Recent cases 03 01 02 Financial Dir of Marketing v G4S Secure Telecom Co. Administrator v Solutions V Kelly Telecom Provider • WRC • Labour Court • WRC • AO not convinced • “ effective • “ a problem that employer “completely dissuasive, needed to be unaware/indifferent ” to proportionate ” solved” pregnancy • Maximum • Award of • Award of €55,000 compensation €26,100 awarded 16 MAIN-47266207-1 7. Constructive Dismissal 17 MAIN-47266207-1 Recent Cases Ryan, Canon & Kirk Accounting v Kneite • Labour Court • Win for employer • Held: “ behaved reasonably and expeditiously when dealing with the Complainant’s complaints ” Local Govt Agency v Connolly • Labour Court • Win for employer • Held: “no breach of contract or unreasonable behaviour ” Accountant v Accountancy Firm • WRC • Loss for employer • Award of €16,500 18 MAIN-47266207-1 6
8. Annual Leave 19 MAIN-47266207-1 Kreuzinger and Planck cases “Use it or lose it” approach to statutory annual leave entitlement CJEU: objective of WTD = ensure employees take leave for purpose of rest and relaxation to ensure “ effective protection of their health and safety ” Employer must be able to show “ specifically and transparently ” that employees were given chance to take annual leave Steps for employers: > Annual Leave Policy > Reminders > Encouragement MAIN-47266207-1 Questions? 21 7
Thank you 22 8
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