Anne O'Connell Solicitors

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 Courtney Carter v Tesco Ireland Limited (ADJ-00049889), the Complainant brought a complaint to the Workplace... In Courtney Carter v Tesco Ireland Limited (ADJ-00049889), the Complainant brought a complaint to the Workplace Relations Commission (“WRC”) under the Employment Equality Acts 1998 – 2015 claiming that she was discriminated against on the ground of family status. Facts: The Complainant began working for the Respondent on 23rd October 2023 and was dismissed on 17th December 2023, after just 13 weeks of employment. This was during her probationary period. The Complainant was absent a number of times during her short employment due to her chronically ill child needing care and attendance at hospital visits and, on one occasion, hospitalisation. Despite producing medical certificates corroborating this, the Respondent dismissed her due to her inability to adhere to a strict attendance policy which it applied to all employees. There were no performance issues, and her dismissal was directly related to her absences to care for her child. The Respondent was able to show that it applied the relevant policy equally to all of its employees and that it was consistent in its approach. Decision: The Adjudicator, Brian Dalton, considered firstly whether or not there was direct discrimination in this case. Given the consistent application of the policy to all employees who failed the absenteeism requirement, and the absence of a comparator, it was clear that there was no direct discrimination. He turned his consideration to whether or not the Respondent’s practice and application of the policy  indirectly discriminated against the Complainant, i.e, if it “weighed more heavily” on the Complainant because of her family status when compared to an employee with no family status. The Adjudicator noted that the Respondent had classified the Complainant’s absences as illness when they were in fact absences due to caring responsibilities. The Adjudicator referred to the decision in NBK Designs and Inoue cited by Purdy, Equality Law in the Workplace (1st edition, Bloomsbury 2015) in which the Labour Court determined that an employee who was dismissed because she could not change her working arrangements from job-sharing to a full-time role due to her family commitments was indirectly discriminated against. The Labour Court in that case upheld the complainant’s argument that the requirement to work full-time was a condition of employment that disadvantaged significantly more women than men, and significantly more people who came within the grounds of marital status and family status than people of a different marital and family status and therefore amounted to discrimination on the grounds of gender, family status and marital status. Turning to the instant case, the Adjudicator found that the practice of applying an “inflexible policy” indirectly discriminated against the Complainant because of her family status and he found that no objective reasons had been provided by the Respondent for the practice. In finding for the Complainant, the Adjudicator ordered the Respondent to re-engage the Complainant within four weeks of the date of the decision and extend her probationary period for a further 13-week period. He also made an order for compensation of €2,500 in line with section 82(1)(f) of the Act for the effects of the discrimination. Takeaway for Employers: It is not enough for a policy not to directly discriminate against an employee(s), employers must also exercise caution in terms of the application of its policies. This decision shows the importance of applying workplace policies consistently yet flexibly when circumstances require it. The rigid application of a policy will not be appropriate where there are extenuating circumstances and employers must be particularly careful to ensure that they apply their policies in a way that does not indirectly discriminate against a particular employee(s). There are a number of different redress options open to an adjudicator, including re-instatement, re-engagement and/or compensation and the effects of a successful complaint can be costly for employers. Link:  https://workplacerelations.ie/en/cases/2024/july/adj-00049889.html Authors- Nicola MacCarthy and Jenny Wakely

In Matthew McGranaghan v. MEPC Music Ltd (ADJ-00037668), the Complainant brought a number of complaints... In Matthew McGranaghan v. MEPC Music Ltd (ADJ-00037668), the Complainant 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 claimed that he was unfairly dismissed; not paid his notice entitlement; not paid his annual leave or public holiday entitlement. He also claimed compensation for the Respondent’s failure to comply with the minimum notice requirement. The Adjudicator, Caroline Reidy, found in his favour and awarded him a total amount of €43,840 Facts: The Complainant is a musician (fiddler) who started providing his services to the Respondent band in January 2014. In May 2020 the Complainant contacted the Scope Section of the Department of Social Protection alleging that he believed he fitted the criteria for being an employee and was therefore eligible for the Pandemic Unemployment Payments. Scope determined that the Complainant was an employee for the purposes of social insurance. However, the Respondent successfully appealed this decision to the Appeals Officer. The Complainant worked on average 4 days per week for the Respondent between rehearsals and gigs. He would send an invoice at the end of every week indicating the number of gigs he played. Apparently, the Complainant had negotiated his rate of pay with the Respondent. He was also free to play with other bands, which he did. He was also able to determine when he was or wasn’t available but he was only not available on 2 occasions. When the Complainant was not available the Respondent would get someone else and pay that person directly. When the Complainant played with the Respondent he had to wear the uniform of the band and he had to learn the music in advance. Due to Covid-19 shut down, the Complainant had not played for the Respondent since March 2020 and he lodged his complainant form with the WRC on 4 March 2022. The Respondent alleged that all the claims were out of time. Decision: Time Limit – The Adjudicator acknowledged that the reason why the Complainant had not worked since March 2020 was mainly due to Covid-19. Although the Respondent wrote to the Complainant offering him a gig in August 2021, which the Complainant was not available for. The Adjudicator held that the email of 22 September 2021 which the Respondent wrote to the Complainant confirming that they would no longer require his services was the last date of contravention and therefore the claims were lodged within 6 months from that date. This would result in the claims for unfair dismissal, notice payment, compensation for failure to pay notice and Terms of Employment (Information) Act claim all being within time. However, the Adjudicator did not explain in her decision how she awarded the Complainant annual leave and public holiday when he had not worked within the statutory annual leave year to which the claim related and nor had he worked 5 weeks before the public holiday that was within the relevant period. This may have been explained through oral submissions at the hearing. Employment Status - The Adjudicator applied the 5-step test set out by the Supreme Court in the decision of Karshan (Midlands) Ltd t/a Domino’s Pizza v. Revenue Commissioners (the “Karshan Case”) and found as follows – The Complainant did provide personal service of being the fiddle player for the bank in exchange for payment. He provided personal service and the use of a substitute was very exceptional and when a substitute was used, the substitute was paid directly. It was determined that the Respondent had sufficient control over the Complainant as the Complainant had no flexibility as to when the gigs were scheduled, he was told what music to play, wears the band uniform and was instructed by the Respondent for all work-related matters. The Adjudicator held that when considering the evidence and the circumstances of the case in practice, she held that the Complainant was an employee based on the arrangements in place and he was not self-employed. There was no legislation that required any adjustment to the above answers. Unfortunately, the Adjudicator did not get into the issue of continuity of service and/or reckonable service in this decision, which the Supreme Court did not address either. It appears that the Covid-19 shut down made such an exercise very difficult in this case. The Complainant was awarded 6 months salary for the unfair dismissal claim which amounted to €26,880. He was awarded 4 weeks pay in respect of his notice and a further 4 weeks compensation for the Respondent’s failure to pay his notice entitlement. However, he was only awarded €500 in respect of not having received a contract of employment. He was awarded €5,000 in respect of not being paid annual leave and €1,500 in respect of not receiving his public holiday entitlement. This totalled €43,840 gross. Takeaway for employers: This decision illustrates 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 and either permit substitution by which the contractor engages and pays the substitute or insist that the contractor operates through a limited company going forward or change the arrangement to that of an employment relationship. 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. Link: https://workplacerelations.ie/en/cases/2024/august/adj-00037668.html Author- Anne O’Connell

In a recent decision of the Workplace Relations Commission (“WRC”) in Alina Karabko v Tiktok Technology... In a recent decision of the Workplace Relations Commission (“WRC”) in Alina Karabko v Tiktok Technology Ltd ADJ-00051600, the Complainant alleged the Respondent did not fully consider her application for fully remote working arrangements in accordance with the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”) and the Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working (the “Code”). The Complainant alleged that the Respondent disregarded her needs in their decision to refuse her request for remote working and did not consider the request in an objective, fair and reasonable manner. The Respondent rejected the claim in its entirety. Facts: According to the case put forward by the Respondent, the Complainant was employed as a Core Operations Specialist within the Respondent’s Core Operations Team, commencing on 24 January 2022. The Respondent submitted that the Complainants contract, signed in January 2022, provided that her normal place of work would be the Dublin office. However, her contract further stated that due to the covid-19 pandemic the Respondent may require her to work remotely from time to time, which the Complainant did on a full-time basis. The Respondent’s submitted that in July 2022, a non-mandatory Return to Office (RTO) policy was issued, providing for employees to work 2 days from the office, whilst encouraging 3 days on site. However, the Complainant was permitted to work full time from home during 2022 on a discretionary individual basis. The Respondent indicated there was a further review of the RTO policy in January 2023 and due to the Complainant’s previous exception she was not required to attend the office at that time. However, in July 2023 a planned return to the office for all employees was announced effective from October 2023. According to the Respondent, the announcement stated “The Company believes that in person collaboration inspired creativity and creates irreplaceable value”. The Respondent indicated that the Complainant’s exception request was refused in August 2023 as exceptions were only being considered on the basis of providing reasonable accommodation in respect of a disability and were no longer being granted on the basis of individual exception requests. The Respondent told the WRC that on 11 March 2024, the Complainant had submitted a request for fully remote work, setting out in her request that it would reduce her daily commute (which the Complainant previously stated would take 2.5 hours each way) and carbon footprint, it would improve her quality of life and also that there was a lack of suitable accommodation in Dublin for herself and her pet. The Respondent told the WRC that on the 5 April 2024, the Respondent’s HR Business Partners (HRBP) acknowledged the application and advised the Complainant that they required an extension to consider her application fully. The Respondent confirmed to the WRC that on 12 April 2024, it issued a decision setting out that the Complainant’s request had been refused and the grounds for the refusal as follows: “Our Core Operations department, with 123 Core Ops specialists in Dublin, operates on a hybrid work model. This model promotes 3 days of in-person collaboration in the office and 2 days of remote work. Whilst some duties of this role can be performed from home, there are other essential parts of the job that must be performed from the office, such as team collaboration and knowledge sharing for continuous upskill and performance. The company believes that in-person presence is crucial for team engagement and effective training. Exclusively working remotely would have a substantial adverse effect on these benefits”.  According to the Respondent the Complainant had responded alleging that the Respondent had not fully considered her request in line with the Act and the Code of practice. The Respondent told the WRC she had also raised queries in relation to the decision itself and the process. The Respondent submitted that the Complainant had been invited to a meeting on 2 May 2024 and that at that meeting it was discussed in detail the reasons for the refusing of the request and the other queries raised by the Complainant. The Respondent indicated that the Complainant was informed of her right to pursue the matter under the grievance procedure, however she confirmed she would not be considering that route. It seems the Complainant subsequently lodged her complaint with the WRC on 6 May 2024, claiming the Respondent had failed to consider her needs when processing her request and alleging a failure to comply with the Act and Code when considering her application. Decision: The Adjudicator, Marie Flynn, stated the relevant provisions for the purpose of the matter to be considered under the Act was Section 20 which provides for the entitlement of employees to request remote working arrangements.  Section 20 provides that: (1) An employee may, request approval from his or her employer for a remote working arrangement. (2) An employee must have completed 6 months continuous employment before a remote working arrangement can commence; (3) A request for a remote working arrangement shall— (a) be in writing and signed by the employee, (b) specify the details of the remote working arrangement requested and the proposed date of commencement and expiration if applicable; (c) specify, having regard to the code of practice— (i) the reasons why he or she is requesting approval of the remote working arrangement; (ii) details of the proposed remote working location, and (iii) information as may be specified in the code of practice on the suitability of the proposed remote working location, and (d) the request must be submitted as soon as reasonably practicable but not later than 8 weeks before the proposed commencement of the remote working arrangement.  Section 21 of the Act obliges an employer who receives a remote working request to consider the request having regard to a number of criteria and to respond not later than four weeks after receipt of the request: (1) An employer who receives a request for a remote working arrangement submitted in accordance with section 20 (3) shall— (a) consider that request, having regard to— (i) his or her needs, (ii) the employee’s needs, and (iii) the requirements of the code of practice, and (b) as soon as reasonably practicable but, subject to subsection (2), not later than 4 weeks after receipt of the request— (i) approve the request, which approval shall include an agreement prepared and signed by the employer and employee setting out— (I) the details of the remote working arrangement, and (II) the date of the commencement and the expiration, if any, of the remote working arrangement, (ii) provide a notice in writing informing the employee that the request has been refused and of the reasons for the refusal, or (iii) where subsection (2) applies, provide a notice in writing to the employee that the employer has extended the 4 week period under this subsection for a further period specified in the notice. (2) Where an employer is having difficulty assessing the viability of the request for a remote working arrangement, the employer may extend the 4 week period referred to in subsection (1) by a further period not exceeding 8 weeks. (3) When the agreement referred to in subsection (1)(b)(i) is signed by the employer and the employee, the employer shall retain the agreement and provide a copy of the agreement to the employee who shall retain it. “ The AO outlined that their remit under Section 27(6) of the Act was limited to assessing whether an employer considered a request for remote working in accordance with Section 21 of the Act and the Code. Specifically, that they were precluded from investigating the merits of a decision to grant or refuse a request. The AO referred to three distinct duties on an employer who receives a remote working request, as follows; First Duty The employer must have regard to its needs, the needs of the employee and the requirements of the Code of Practice. In respect of this duty the AO pointed out that on submission of the Complainant’s request, a manager and member of HR of the Respondent’s staff met to consider the application in line with the Act and the Code and the Respondents business plans. The AO referred to the Respondent’s evidence that taking all of the relevant factors into account, the decision was made to refuse the Complainant’s request to work remotely on a full-time basis.  The Adjudicator found that the Respondent had complied with their obligations under Section 21(1)(a) of the Act in this regard. Second and Third Duties Under Section 21 (1)(b) of the Act an employer is obliged to either approve a request for remote working or notify in writing its refusal of a request within 4 weeks of receipt. An employer can also avail of an extension of up to eight weeks, which the Respondent in this instance had sought. The Respondent had acknowledged receipt of the Complainant’s request on the 5 April, notified the Complainant that they required an extension and duly issued a decision to the request on 12 April 2024. The Adjudicator found that the Respondent had fully complied with their obligations under Section 21(1)(b) and Section 21 (2) of the Act and the claim was not well founded. Takeaway for Employers: It is important to reiterate that the rights under the Act and the Code provide a right of any employee to request remote working, they do not have a right to remote work. An employer is obliged to consider the request having regard to the employer’s needs, the employee’s needs and the requirements under the Code but the employee will not have a legal claim against the employer purely because they are unhappy with the decision taken by the employer in respect of their request for remote working. The remit of the WRC or Labour Court is not to decide on the merits of a decision made by an employer to decline a request for remote work. The WRC and Labour Court are limited to an assessment of whether an employer has complied with their obligations under the Act, more specifically section 21 and in accordance with the Code. Employers should ensure that they have an up-to-date Remote Working Policy, outlining their obligations but also the obligations of any employee in making a request for remote working. Links ADJ-00051600 - Workplace Relations Commission Code of Practice Authors – Ethna Dillon and Laura Killelea

Supreme Court Rules High Court Erred in Re-engaging School Principal in a Manner that Meant He was Effectively Reinstated... The Supreme Court has recently found that the High Court, Labour Court and the Workplace Relations Commission (“WRC”) erred in law in ordering the re-engagement of a principal of a primary school. In An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38, the Supreme Court (judgment delivered by O’Donnell C.J.) emphasised the exceptional nature of the remedies of reinstatement and re-engagement and the need to ensure that they are appropriate in the particular circumstances of a case. Facts: This is a long-running dispute which has lasted over 13 years. In January 2012, the Principal of Gaelscoil Moshíológ (the “School”)was placed on administrative leave following an incident in a classroom. He was subsequently suspended on full pay in May 2013 following the discovery of issues relating to enrolment figures and pending the outcome of a disciplinary process. After a protracted disciplinary process, the Principal was dismissed from his role with effect from 30th November 2015. He appealed his dismissal, but his appeal was unsuccessful. The Principal brought a claim to the WRC which found that he had been unfairly dismissed and ordered his re-engagement with effect from 1st January 2018. The Board of Management of the School (the “Board”) appealed this decision to the Labour Court which found that the Principal had been unfairly dismissed and ordered his re-engagement with effect from 1st September 2017, four months earlier than the date stipulated by the WRC. The Board subsequently appealed to the High Court on a point of law.The High Court dismissed the appeal, but found that the Labour Court erred in directing re-engagement from September 2017. The High Court initially ordered reinstatement with effect from 30th January 2013, which was the date on which it considered that the period of administrative leave should have ended. However, in a subsequent judgment re-engagement was ordered with effect from 30th November 2015, restored to payroll with effect from 1st August 2023, and restored to his duties with effect from 4th August 2023, and paid arrears of salary with effect from 30th November 2015. The High Court also ordered the Board of Management to pay the Principal’s legal costs on a legal practitioner and client basis, a higher legal costs liability than usual.The Board appealed again to the Supreme Court. Decision: The Supreme Court examined the scope of an appeal on a point of law, which, it is well established, does not involve a re-hearing of the case. The Supreme Court held that the High Court went much further than holding that the Labour Court did not err in law, but exceeded its scope of appeal by considering the merits of the case. O’Donnell C.J. went on to say that the decision-making bodies were incorrect in law in ordering the remedy of re-engagement, emphasising that reinstatement and re-engagement are remedies that are “exceptional in nature”. That was not given due consideration by the WRC, Labour Court, or the High Court. The Court stated that the decisions to re-engage the Principal “focussed solely on the interests of the Principal” and failed to consider other factors that the Supreme Court deemed ought to have been considered, including: the fraught relations between the parties the long period of time that had elapsed any changes to the curriculum or responsibilities of a school principal, or the capacity of the Principal to resume his duties following the length of time he had been out for. O’Donnell C.J. also placed emphasis on the fact that a new principal had been appointed to the school for some time: “It is necessary to consider whether any order of reinstatement or reengagement is practicable in the circumstances. If it is not practicable it should not be ordered. This assessment may include a consideration of whether that reengagement will displace an innocent person who has been engaged to fulfil that role.” He went on to say that: “Indeed, neither body made any finding about the validity of the appointment of the principal. (It is indeed a valid criticism of both decisions that they did not consider the impact of their decision on the position of the new principal at all).” In considering the circumstance as a whole, O’Donnell C.J. stated that ordering re-engagement in this case “does not reflect the exceptional nature of the remedy.” He differentiated between the Board of Management of a school, and the management of a commercial enterprise, as a school Board of Management is run by volunteers, has less flexibility, and cannot negotiate settlements in a manner open to commercial bodies. It would not be reasonable to expect the school to remain without a principal during lengthy litigation proceedings. In light of this, the Court went on to say: “Life must go on. In this case this was a working school, and the pupils, parents and teachers could all reasonably expect to have a principal in place. As set out in the extract from Redmond on Dismissal Law (op. cit.) at paragraph 103 above, it is extremely rare, even in those cases in which a claim for unfair dismissal succeeds, for an order for reinstatement to be made. It is not reasonable to expect that businesses would remain in limbo pending the outcome of protracted legal proceedings. That is so in general, but must apply with particular force in a case such as this, in which there has been such a lapse of time between dismissal and adjudication, and in the context of a small national school.” The Chief Justice noted that the appropriate order to make would usually be to set aside the Labour Court’s decision which was upheld by the High Court and remit it back to be reconsidered. However, in light of the "inordinate amount of time that has already elapsed", the Supreme Court found that it would not be appropriate to do so, particularly in circumstances where the Principal had been back in his position for close to a year. The Supreme Court ordered that the portion of the decision of the High Court varying the order of the Labour Court (by providing for re-engagement to date from the date of effective dismissal of 30th November 2015) should be set aside and the order of the Labour Court deeming re-engagement to have taken effect from September 2017 should be restored. Finally, the Supreme Court varied the order of the High Court Order in relation to costs. The High Court had ordered that the Board of Management should pay the Principal’s legal costs on a legal practitioner and client basis. The Supreme Court disagreed with this order. O’Donnell C.J. found that costs ought to have been awarded on a party and party basis. The Court also ordered the Principal to pay back the Board of Management the arrears of almost two years of salary that was awarded to him by the High Court. Takeaway for Employers: This case is an important authority from the Supreme Court addressing the remedies of reinstatement and re-engagement under the Unfair Dismissals Acts. The Supreme Court has 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. Links https://www.courts.ie/acc/alfresco/c93705b1-781d-4c38-b4e7-522f05f93f3c/2024_IESC_38_.pdf/pdf#view=fitH Our article on the decision of the High Court can be found here. Authors - Jane Holian, Jenny Wakely

In a recent decision of the Workplace Relations Commission (“WRC”) in Darryl Scales v Ennistymon Parish... In a recent decision of the Workplace Relations Commission (“WRC”) in Darryl Scales v Ennistymon Parish & Community Group ADJ-00047886, the Complainant alleged he was unfairly dismissed under section 6 of the Unfair Dismissals Act 1977 (“the Act”) while the Respondent alleged the Complainant had resigned. Facts: The dispute regarding whether the Complainant was dismissed or resigned revolved around a meeting of 4th August 2023, between the Complainant and his supervisor. It appears there was no dispute that on Friday 4 August 2023, the Complainant turned up unannounced on his day off in the office of his supervisor. He appeared to be dissatisfied with the way an investigation into a particular workplace incident was being carried out. There was no dispute that at the said meeting the Complainant threw his key back to his supervisor. It appears that, when asked by his supervisor if he was coming back to work on the next morning, the Complainant’s reply was to the effect that he was not, why would he, and that he was leaving. It seems that the parties’ interpretation of the Complainant’s response was completely different. There was no dispute that the Complainant did not turn up for work on Saturday 5th August and Sunday 6th August 2023. The Complainant did not contact the Respondent at all to explain his non-attendance. The Complainant, at the adjudication hearing asserted that he declined to work but he did not resign. The Respondent, on the other hand, contended that the Complainant resigned his position. Decision: Adjudicator Ewa Sobanska held that the complaint of unfair dismissal was well-founded. She found that even if she were to accept the Respondent’s position that its understanding was that the Complainant resigned his position, legal precedent cautioned against ‘heat of the moment’ resignations. The Adjudicator stated that best practise provides an employee is allowed to come back to at least discuss the case when tempers are cooled. She referred to the Labour Court decision of Shinkwin v Donna Millett EED044 and various other authorities in support of this position. The award in this case was low at €990 but this was linked to the fact that the Complainant was deemed not to have met the required standard in terms of his efforts to mitigate his loss (i.e. find alternative employment). The Complainant had taken on a full-time course and so he was unavailable for work. If the Complainant had been deemed to have met the necessary standard in terms of efforts to mitigate his loss the award would likely have been higher. Takeaway for Employers: Employers are advised to be cautious of accepting ‘heat of the moment’ resignations at face value. Actions or words during a heated exchange should not generally be taken as final. Instead, discussions should continue when tensions have deescalated and the intent behind an employee’s actions or words can be determined, particularly to enquire whether resignation was really intended. Employers need to be aware that if they accept a heat of the moment resignation and treat the employment relationship as terminated, depending on the circumstances, this could result in a successful unfair dismissal claim by the employee. Link - https://www.workplacerelations.ie/en/cases/2024/july/adj-00047886.html Authors – Lia Berkery & Laura Killelea

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 A Solicitor v A Construction Consultancy Business (ADJ-00046911), the Complainant brought a complaint to the... In A Solicitor v A Construction Consultancy Business (ADJ-00046911), the Complainant brought a complaint to the Workplace Relations Commission (“the WRC”) under Section 8 of the Unfair Dismissals Act, 1977, alleging that she was an employee of the Respondent company and was unfairly dismissed. The Adjudicator, Catherine Byrne, found that the Complaint was never an  employee of the Respondent company, regardless of having been treated as an employee by the Revenue and paying taxes for 11 years. Facts: The Complainant is a solicitor who was married to AB, a manager in the Respondent company. AB’s son, MD, is the managing director of the Respondent company. A company that was established by AB went into liquidation following the 2008 financial crash. A new business was established in 2011 which carried out similar work to the previous company, i.e. construction consultancy. The Complainant’s marriage to AB ended in 2020. The Complainant submitted to the WRC that she was an employee of the Respondent company. She provided legal advice and supported her husband in his role as a manager. The Complainant told the WRC that she did a “huge amount” of work for the Respondent at times, dealing with legacy issues from the previous company. She said that she was engaged with the liquidators and debtors and sourcing seed capital for the new business.  She said that she was involved in “everything to do with the office.”  The Complainant described her work as “assisting my husband.”  She said that he did the pricing for contracts, and she helped him to compose emails.  When her marriage ended in March 2020, the complainant said that she asked to be paid her full salary, to which her husband replied, “we’re not together anymore.”  She said that she offered to continue to work, but her husband left their home, and she wasn’t given any work. The Complainant cited her annual salary to be €52,000.  On the documents she submitted from Revenue for 2021 and 2022, her salary was stated to be €42,000.  When she was asked at the hearing about this discrepancy, the Complainant said that she spoke to her accountant about this and she was advised that the difference didn’t matter and that her husband “has the funds.”  She said that she was not concerned about the discrepancy because she was happily married at the time. The Respondent put it to the Complainant that she never worked in the company’s office in Dublin. The Respondent submitted that there was no evidence that the Complainant was in an employment relationship with the Respondent.  The Respondent argued that the Complainant did no work for the Respondent since March 2020, and argued that she did no work for many years. MD gave evidence that when the new company was set up in 2011, the Complainant gave them advice in her capacity as a solicitor.  She sourced a handbook and employee contracts.  She dealt with the office manager and gave her the contracts to issue to employees. MD said that he had no dealings with the Complainant directly or indirectly for 10 years. He said that there is no file in the office in relation to the Complainant. AB, the Complainant’s ex-husband, gave evidence to the WRC. He said that his job is to price work all over the country.  He said that, in 2011, the Complainant sourced the contracts for the employees at the time and gave them to the office manager.  When the first company went into liquidation, AB said that the Complainant “helped me a lot”. He said she helped him because she was his wife and she gave him advice.  In relation to the Complainant’s wages, AB said that he and the complainant came up with the arrangement, as by splitting his wages into his and the complainant’s, his tax burden was reduced. Decision: The Adjudicator referred to the definition of an “employee” as stated at s.1 of the Unfair Dismissals Act, 1977: “…an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment…” At the hearing, the Complainant provided a document which she claimed to be a copy of her contract of employment dated May 1st 2011.  She said that this contract was issued to her when she sourced contracts for employees at the time the business was set up in 2011. The Adjudicator expressed concerns over this document, as it was not signed by the managing director of the company, and there was no clear start date of employment provided. The document stated that the Complainant’s place of work is “various construction sites within the Republic of Ireland… or Europe.”  The Adjudicator stated that this was not consistent with the role that the Complainant claimed that she held of office manager / legal advisor, and the Complainant ought to have ensured that the contact stated that her place of work is her home. Further, the contract stated that the Complainant’s annual salary was €52,000.  The documents that she provided from the Revenue Commissioners show that, in 2021 and 2022, she is recorded as having earned €42,000. The Adjudicator said that if the complainant earned €42,000 in 2021 and 2022, it is unlikely that she earned €52,000 in 2011.  He said that it seems that the Complainant was uncertain of the amount in wages that the Respondent put through the payroll in her name, something that is not consistent with being an employee. For the reasons set out, the Adjudicator was satisfied that the document submitted by the Complainant was not a contract of employment and was satisfied that she was not issued with a contract by the Respondent. The Adjudicator was not satisfied that the Complainant demonstrated that she was an employee of the Respondent company.  The Adjudicator referred to the fact that in her written submissions to the WRC, the Complainant presented information which was incorrect, as she was mistaken with regard to the ownership of the company, She incorrectly said that her former husband was a director, and incorrectly named two people who she said were employees. The Adjudicator concluded that apart from her marriage to AB, the Complainant was detached from the Respondent’s business. The Complainant referred to work she did to support the previous business when it went into liquidation and the work she did to help to set up the new business in 2011.  In his evidence, AB stated that the complainant was of great assistance to him at this time, as his wife and not as an employee. The Adjudicator held that this collaboration between the Complainant and her husband was entirely normal in the context of a supportive marriage and is disingenuous to seek to re-frame this support as a contractual employment relationship.  The Adjudicator also noted that while remote working is now a common working arrangement, it would have been very unusual between 2012 to 2020, and did not accept that the Complainant worked for the Respondent from home for all this time. Employment Status: The Adjudicator stated that where there is a question about whether an individual is an employee, most precedents, including Karshan, concern the difference between a contract of service and a contract for service; that is, the difference between an employee and a self-employed contractor.  However, this was not the issue in question in this case. In this way she distinguished this case from the five tests set out by the Supreme Court in Karshan. The Adjudicator said that here, the Respondent did not provide work to the Complainant and she did not seek out work.  She was not involved in the business on a day-to-day basis.  She never went to the office, she did not know the names of any of the employees and, on the date of this hearing, she had not spoken to the managing director of the Company in more than ten years.  The Complainant’s evidence showed that her involvement in the business was confined to the advice she gave at the beginning, her effort to have a debt repaid on an unknown date, and her assistance to her husband with drafting emails over a period of eleven years. The Adjudicator held that this was an insufficient contribution to establish a relationship of employment or to show that the Respondent was obliged to provide her with work. In considering the fact that the Complainant received a salary into her bank account from the Respondent payroll, the Adjudicator held that it was irrelevant which bank account the Complainant’s wages were paid into, as the reality was the she was not required to do any work in return for her wages, and that she colluded with the Respondent to create a false impression with the Revenue Commissioners that she was an employee of the company. Although the Supreme Court in Karshan had held that the mutuality of obligation test should no longer be considered when determining whether or not someone is an employee, the Adjudicator based her decision on the lack of mutuality of obligation. The Adjudicator referred to the mutuality of obligation test and referred to the fact that there was no obligation on the Complainant to carry out work for the Respondent, and no obligation on the Respondent to provide the Complainant with work. The Adjudicator held that the Complainant was not an employee of the company and therefore did not have the standing to make a claim under the Unfair Dismissal Act. Takeaway for Employers: It must be noted that we were not at the WRC hearing of this case. However, it appears from the decision that the Adjudicator was not convinced that the Complainant was an employee of the Respondent. However, it is strange that rather than applying the five step test set down in the Supreme Court decision of Karshan (Midlands) Ltd t/a Dominos Pizza v Revenue Commissioners [2023] IESC 24, the Adjudicator distinguished this case from Karshan decision and relied on the test of mutuality of obligation. It appears from the published decision that the Complainant may not have satisfied the Karshan test to be determined to be an employee. It will be interesting to see whether or not this decision is followed or whether the Karshan tests will be relied upon when this arises again. We have seen in recent decisions that post Karshan, it is now far easier for workers to establish a relationship of employment. The decision herein appears out of step with the current position on employee status, and it may be that the Labour Court will provide further clarification on this topical issue. However, it remains the case that employers should be proactive in engaging with contractors and any workers who provide personal services. Link - https://www.workplacerelations.ie/en/cases/2024/august/adj-00046911.html Author- Jane Holian, Anne O’Connell

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

As highlighted in our previous article in June 2022 entitled “Employers to Begin Mandatory Reporting of Gender Pay Gap... As highlighted in our previous article in June 2022 entitled “Employers to Begin Mandatory Reporting of Gender Pay Gap Information for the First Time” (link below), the Gender Pay Gap Information Act 2021 (“the Act”) came into force on 31st May 2022. The Act amends the Employment Equality Act 1998 and aims to ensure greater transparency regarding differences in the remuneration of employees by reference to gender. The Act requires relevant employers to do the following: Publish an annual report identifying any gender pay gaps within their organisation; and Publish a “relevant report” explaining the reasons for such a pay gap and identifying steps it can take to reduce or eliminate it. The reporting requirements are being rolled out incrementally based on the size of the employer. Employers with 250 or more employees have been required to report since December 2022. Those employers were required to select a date in June 2022, a so-called “snapshot” date, and report within six months. From 31st May 2024, reporting requirements have been extended to employers with at least 150 employees. The Employment Equality Act 1998 (Section 20A) (Gender Pay Gap Information) (Amendment) Regulations 2024 update the Employment Equality Act 1998 (Section 20A) (Gender Pay Gap Information) Regulations 2022 by amending the definition of “relevant employer” to an employer who employs not less than 150 employees on the relevant date. All employers with at least 150 employees were required to choose a snapshot date in June 2024 and they are required to report within six months of that date. The 2024 Regulations also introduce changes to how gender pay gap reporting is carried out. These changes include the following: An update to the formula used to calculate an employee’s working hours. A change to the treatment of share options and interests in shares which are now treated as benefits in kind as opposed to bonus remuneration. Clarification 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. Links – https://aocsolicitors.ie/employers-to-begin-mandatory-reporting-of-gender-pay-gap-information-for-the-first-time/ https://www.irishstatutebook.ie/eli/2021/act/20/enacted/en/print.html The Employment Equality Act 1998 (section 20A)(Gender Pay Gap Information) Regulations 2022 The Employment Equality Act 1998 (section 20A)(Gender Pay Gap Information)(Amendment) Regulations 2024 Author – Jenny Wakely

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