Employment

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