(Date is date archived)
Just to give a flavour of the things we have been sharing and are worth talking about! (I’ve started to use the blog more for news in recent months so have a browse there also)
- Trade union membership in US down is to 17.5%, the lowest in 96 years. ‘In ‘vertiginous decline’ says AFL-CIO’
April 20th 2013
- Parental leave now 18 weeks; see blog
March 3rd 2013
- Read the Government ‘Blueprint for a World Class Workplace Relations service’ here. Outline legislation approved by the Cabinet. The revised Blueprint (July) is here
- Recent (Sept 2012) rumours suggest that the Mediation Bill might be delayed to 2013. There is a summary of the ‘Draft General Scheme’ of the Mediation Bill in my March 2011 blog and you can read the full text here. See report of Law Reform Commission on Mediation here.
- Oireachtas research group report on TU’s and conflict in the recession here
- Thinking of getting in to employment law. Sign up for Tony Kerr’s Diploma in Employment law at UCD More here
November 9th 2012
- Thinking of getting in to employment law. Sign up for Tony Kerr’s Diploma in Employment law at UCD More here
- UK Ct of Appeal message to po faced employers; get a sense of humour before dismissal.
April 27 2012
Employee dismissed on foot of untrue reference succeeds in damages against 1st employer. McKie v Swindon College, High Court, Proposal to make employers pay for Month 1 of sickness could have provoked a major row with GP’s if it had gone ahead. Looks odd in the context of €550m bill (IT Mar 10th) for public service sick leave when stated reason for change was to put burden of absence management back on employer See also bbc.in/vXAJv1
Busy times for employment rights law reform. See recent blog for proposed changes in use of tribunals etc and here for SFA commentary on JLC reform.
An unintended consequence of the reduction in the employer redundancy rebate could cost jobs. it’s one thing when a large company closes and pulls out of the country (Talk Talk for example). But many small businesses were able to PROTECT jobs by trimming a small number. The 60% rebate in that case was a support for the remaining jobs, not an inducement to reduce employment! That’s our experience!Dec 30th 2011
Worker with Asperger’s syndrome denied job with NHS gets UK £25k in discrimination case. News report here
Richard Bruton announces first steps in Employment Rights reform by merging LRC and NERA. Read details here (See Home page for link to submissions received)
Good news for client of Workplace Solutions. Accused unfairly of bullying, rights abused in investigation. Awarded €5,000. RC rec here. Company appeal fails in Labour Court.
Report in Irish Times that days lost to industrial action halved in Q2 2011 compared with previous year. Report here.
Ct refuses application for injunction to restrain former employee from joining a competitor BUT says neither the former employee NOR the competing company can solicit business or deal with existing customers of previous employee for 12 months. Net Affinity v Conaghan (March 2011)
Mr Justice Peter Kelly at launch of Engineers Ireland new dispute resolution procedures (July 12th) says ‘mediation is the infant of ADR, but it is a thriving infant”. For more on EI scheme click here
Richard Bruton’s speech at UCD Employment Law event July 1st. Read it here. See my comments in blog 24
UK Court guidance on Personal Protective equipment, foreseeable risk etc judgement here
Big changes in employment law in Northern Ireland. Click here for detail
Irish Times reports delays at Equality Tribunal up to three years. Scandalous! The solution is the same as for the EAT; private mediation; see my blogs.
In an Appeal before the English Employment Appeals Tribunal decided on the 21st April 2011, IJ Rees and Ors –v- Peninsula Business Services Limited(Appeal No. UKEAT/0407/10/RN), the Court decided that the Appellant Peninsula Business Services Limited had unfairly dismissed the Claimants IJ Rees and 2 other former employees because, at the Stage 2 process of their Redundancy selection procedure, where they met with the employees individually to consult with them on their selection for Redundancy, they failed to advise them of the individual scores at their first Consultation meeting.
Take a look at the SFA priorities for small business for the new Government.Click here
Okay, it’s not employment law HR or dispute resolution, but boy was it great; the sports story of the decade.
John Mooney airborne after hitting winning boundary. Pic Sky News
Nurse in the course of restraining a patient sits astride him and remarks that it’s been awhile since she was in that position! Dismissal upheld at UK EAT, but overturned by Court of Appeal. Lexology report here. Lewd, but humorous comment! And once off! Hope for Andy Gray?
Employment law, dispute resolution and the General Election
(I will be blogging at greater length on other reforms in the system in a few days)
Fianna Fail; Admittedly in the context of reducing costs for ‘Professional Services’ Fianna Fail repeats the commitment first made in the ‘Four Year Plan’ to address competitiveness by providing ‘a more structured approach to mediation in the legal system and promote further the use of Alternative Dispute Resolution, taking into account recommendations of the Law Reform Commission in its Final Report 2010 on the subject’ and also to ‘Provide for increased use of arbitration and mediation’.
Fine Gael Manifesto: p 28 Mediation: Fine Gael will take the steps necessary to encourage and facilitate the use of mediation to resolve commercial, civil and family disputes in order to speed up the resolution of such disputes, reduce legal costs and ameliorate the stress of being involved in contested court proceedings. (Thanks to Nicola White for spotting this.)
Will this apply to the EAT and the other employment related disutes procedures?
Labour; The Labour Party says it will support robust competition policy and enforcement and ‘structural reform in the professions to drive down the cost base for the traded sector’ which could be read as including the ADR options in the employment law sphere. regarding the JLC’s labour .
Fine Gael says it will ‘support the renegotiation of the Employment Regulation Orders (ERO) imposed on the hotel, restaurant, security, agricultural, retail and other sectors under the JLC system within six months under an independent nonvoting chairperson. We will also allow employers and workers in ERO sectors to negotiate enterprise-level collective agreements with their own staff which will make them exempt from the ERO’
Labour says it will reform the Joint Labour Committees (JLC) structure that dates from the 1940s, a time when employee rights and general labour law were much less developed. [and by] appointing independent chairpersons to the Joint Labour Committees as an urgent first step in this reform process
So both Labour and Fine Gael propose a review of the JLC/ERO system. With the reduction in the National Minimum Wage JLC basic rates are now almost €2 per hour higher than the NMW! Looks like Cheerio ERO!
FG also proposes the introduction of a Single Employment Act;
This is a slightly odd proposal. On the assumption that none of the existing protections will be removed the proposal to consolidate all 31 statutes and regulations into a single measure sounds like a waste of time. For practitioners the issue is not the multiplicity of statutes, but the processing of claims arising under them.
Minimum Wage. FG, Labour, SF and Joe Higgins all committed to reverse reduction to €7.65
Whistleblowers ; Fine Gael proposes to introduce a ‘ A “Whistleblowers’ Charter” as part of an ‘Open Government’ Bill’ to protect workers in the public service, banks etc who expose wrongdoing. Pat Rabbitte introduced a Bill on this last year so it seems likely either way that more comprehensive whistleblower protection will be introduced after the election. Complaints by employees that they have been penalised for making ‘protected disclosures’ will be processed to the Rights Commissioner service and the Labour Court
Others; Very little! Greens have a section on small business but nothing on dispute resolution. Sinn Fein have nothing at all of interest. Strange that. Say what you like about the Shinners and their past, but they know a thing or two about dispute resolution!
February 7th 2011
There has been wide coverage of an EAT decision (Dunne v Prison Service 704/2009) which concerned a probationary prison officer whose employment was terminated while still on probation; admittedly one that had been extended three times out to 22 months.
While employeees with less than 12 months service are (with some exceptions) not covered by the Unfair Dismissals Act it is, strictly speakig irrelevant whether they are on probation or not. While not covered by the Unfair Dismissals Act such workers are still absolutely entitled to the benefit of fair procedures in the processing of their dismissal. Peremptory terminations at any stage in Year 1 is a very bad idea.
This determination is poorly written and slips between concepts of probation and service which are confusing. What is clear is that probation or no probation, fair procedure ALWAYS applies. Over one year some differing principles apply in respect of the worker on probation but the Unfair Dismssals act and the full writ of fair prcedure remain inviolate.
February 3rd 2011
X v Mid Sussex Citizens Advice Bureau & Ors  EWCA
The England & Wales Court of Appeal has ruled that volunteers are not protected from acts of discrimination on grounds of disability under the DDA 1995. The ruling applies to other grounds identified in the EU Framework Directive (‘occupation’ does not cover volunteers, according to the EWCA).For full case click here. Here is an extract from the judgement. A related issue is how disputes resolution machinery might apply to disputes between employees and volunteers. More on this shortly
59 I wholly reject the premise underpinning the submission of both the appellant and the Commission that because the principle of non-discrimination is so important in EU law, the only reasonable inference is that the Directive was intended to apply to volunteers. The logic of that argument is that the principle should apply to all fields of human activity, but no-one suggests that this is the case. The Directive is plainly limited in its field of operation, and the only question is whether CAB volunteers fall within or without its scope.
60. I accept that a broad and generous interpretation of the Directive should be given consistent with a purposive approach which EU law dictates is the proper way of interpreting provisions of this nature. But …… it is far from obvious that it would be thought desirable to include volunteers within the scope of the discrimination legislation relating to employment. Indeed, when the matter was specifically addressed by the European Commission and a proposed amendment was introduced, the European Council chose not to introduce it. They must have had doubts as to its desirability.
61. Second, it is inconceivable that the draftsman of the Directive would not have dealt specifically with the position of volunteers if the intention had been to include them. ……..The concept of worker has been restricted to persons who are remunerated for what they do. The concept of occupation is essentially an overlapping one, and I see no reason to suppose that it was intended to cover non-remunerated work. .
62. ……Burton J is right in concluding that the concept of “occupation” was intended to refer to a class or category of jobs, and that the concept of “employed” and “self employed” was intended to refer to particular jobs. That would explain why the Directive in terms forbids discrimination with respect to access to an occupation but does not, for example, provide that there should be no discrimination with respect to the terms of the occupation.
63. …….the concept of worker under EU law is not defined by reference to those with a contract; it is capable of embracing all those who perform work for another for remuneration, whether pursuant to a contract or some other relationship. There is no need for a concept of occupation to capture those employed in a particular job.
64. But even if that analysis is wrong and the concept of occupation is capable of identifying a particular post falling outside the definition of employment or self employment, for reasons I have given I do not think that it would include volunteers. It follows that the appeal fails.
65. I do not accept that there is sufficient doubt as to the outcome to merit a reference to Europe on the substantive issue. Certain French authorities relied on by Mr O’Dempsey to create that doubt did not on careful analysis lend real support to his submissions. I am satisfied that the appellant’s case would fail before the ECJ.
- January 27th
Reform of the EAT and the system generally for processing claims under the employment rights statutes is desperately overdue. I established last week that the delay in getting to the EAT is now about 80 weeks (78 in Dublin , 82 in Wicklow)
In 2009, according to the report of the EAT about half of all cases submitted swere not heard by year end! Over 4000 of them.
The UK has published a Consultation Paper on reform of its system. Among other proposals under consideration is a fee for lodging a case. More importantly, the UK Employment Act features a mediation (conciliation) stage; a serious omission in our system. In the UK there is provision that a Conciliation Officer ‘may endeavour to promote a settlement between the parties without proceedings being instituted”. We could badly do with such a provision here, although there is no legal impediment to the parties mediating a settlement subject to certain conditions.
The paradox may be (on the basis of the rationing principle!) that some restrictions on claims would actually benefit bona fide claimants who are currently waiting a year and a half for a hearing!
See blog for reflection on Ivor Callely judgement
Legislation reducing the minimum wage to €7.65 per hour was passed by the Dail and is expected to be in force during the first half of 2011. The opposition parties thought most likely to form the next government opposed the move so we will have to wait and see.
Less well flagged is the fact that the Bill also provides that the Minister for Enterprise, Trade and Innovation may amend the minimum wage without a recommendation in a national economic agreement or from the Labour Court, highlighting the economic and employment criteria to be used in a ministerial decision. The Bill includes that a recommendation for a change in the minimum wage by the Labour Court to the Minister cannot be issued after the expiry of 13 weeks following receipt of an application from one or both of the social partners, according to the SFA in its recent Newsletter.
UCD Law school had its Distinguished guest lecture on December 14th featuring UK Labour Lawyer Professor Keith Ewing of Kings College London. Topic; The Industrial Relations Act 20 years on! Prof Ewing outlined his view that the recent European court decision (EHCR) in the Demir and Baykara v Turkey decision spell the begininng of the end of Ireland’s constitutional ban on compulsory trade union recognition (the line of authority most recent restated in Ryanair v The Labour Court). Fuller report is now in the blog .
While only a footnote to the bigger picture, the budget has abolished tax relief on subscriptions to trade uniions & professional organisations. Not very significant in the overall scheme of things. Many union members, in particular because they are PAYE taxpayers may not claim the relief
Saw the launch by the Chief Justice, John L Murray, of the Law Reform Commission’s reports on Reform of the Courts Acts and proposals to provide for Alternative Dispute Resolution: Mediation and Conciliation
Comment: This is a really important document. For those of us also interested in the area of employment disputes, perhaps a little weak but I’ll take a closer look and post something on this in due course. Also some will be concerned at the distinction drawn between mediation and conciliation. More soon.
The fact that the National Recovery plan includes a commitment to ADR and to enacting the Law Reform Commission Bill is very positive. We will be approaching the other main parties to ensure that they consider a similar commitment for their manifestos for the upcoming General Election which is likely in the first quarter of 2011.