Anne O'Connell Solicitors

Two WRC decisions arising from the same transfer under the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“TUPE Regulations”) reached different outcomes on whether the lack of confirmation by the employee re transferring amounted to a resignation by the employee. The cases are Jason Franzoni v. Hibernia Homecare Ltd (ADJ-00056751) and Charlotte O’Connor v. Hibernia Homecare Ltd (ADJ-00057021). Facts: Hibernia Homecare Ltd (the Respondent) submitted that it had to transfer its business to its parent company, Hibernia Homecare Group Ltd in order to meet the HSE requirements in the new Service Level Agreement. Formal notice was emailed to its employees on 31 October 2024 in line with the TUPE Regulations. The consultation process began on 5th November 2024. During this meeting David Wallace, Managing Director, informed the employees that they had a choice as to whether or not they wished to transfer but if they refused to transfer that this would be considered a resignation. During this meeting a small number of employees objected to the transfer in support of one of the directors who was not included in the transferee company. The meeting got heated and these employees, including both Complainants, walked out of the meeting. The Respondent appointed a mediator who represented both the transferor and transferee in the consultation meetings. A new contract was issued to the employees with the transferee named as the employer but it was on the same terms and conditions of employment. The employees were pushed to sign it but had been informed that their existing contract would transfer. The transfer deadline was extended to 31st January 2025. The employees were given until 4pm on 31st January 2025 to sign the contracts or be dismissed. At 4.01pm a notice was sent to the employees who did not sign the contract informing them that their employment had ceased. Neither Complainant signed the contract but both stated that they did not object to transferring. The Respondent acknowledged that the employees were not required to sign a new contract and could rely on their existing contracts in a TUPE transfer. The question was whether the Respondent employer could properly equate signing the new contract with consenting to the TUPE transfer. Each Adjudicator analysed this question differently and came to different outcomes. Decisions: Decision 1 - Franzoni v. Hibernia Homecare Ltd – dated 4th December 2025 Mr Fanzoni was employed as a Health Care Assistant from 9 September 2021. He claimed his employment was unfairly dismissed on 31st January 2025 because he refused to sign a new contract of employment when his role was due to transfer under TUPE Regulations. The Respondent denied dismissal and stated that the Complainant refused to transfer and thereby resigned. The Complainant relied on the wording in the Respondent’s memo of 31st October 2024 which stated that the transferring employees “will however, retain their current contracts of employment”.  The Respondent placed considerable emphasis on what is alleged that the Complainant said on 5th November 2024 meeting. While there was a dispute as to what exactly the Complainant said, the Adjudicator was satisfied that the Complainant indicated that he would not transfer and walked out of the meeting with a few other employees. The Adjudicator pointed out that this was almost 3 months before the transfer date and was stated in a heated meeting. The Respondent argued that this together with the failure to sign the new contract constituted resignation. The Adjudicator (Patricia Owens) rejected the Respondent’s argument and found that the Complainant was unfairly dismissed. The Adjudicator referred to case law in relation to establishing a genuine resignation and stated that a resignation must be clear, unambiguous and unequivocal. The Adjudicator held that if the Respondent genuinely believed the Complainant intended to resign or refuse to transfer then it would have been “reasonable and appropriate” for the Respondent to write seeking clarification of the Complainant’s position. The Adjudicator said that she was at a loss as to why the Respondent did not send a single email asking the Complainant to clarify his position. The Adjudicator criticised the Respondent for equating signing the new contract with confirming agreement to transfer, noting that there is no legal requirement for an employee to sign a new contract and also referring to the Respondent’s memo of 31st October 2024 stating that the employees would be retained on their current contracts. She stated that under the TUPE Regulations, a transferee or transferor is not entitled to insist that an employee sign a new contract and held that refusal to sign did not amount to resignation and did not provide any fair or lawful basis for termination. Although the Adjudicator acknowledged the Respondent acted fairly in its general consultation, she stated that it did not remove its obligation to seek clarification from the Complainant when he had not participated in some of the meetings and had not signed the contract and the alleged rejection was nearly 3 months earlier in a heated meeting. The Adjudicator found that the Complainant did not resign but was unfairly dismissed and awarded him 13 weeks’ pay. Decision 2 – O’Connor v. Hibernia Homecare Limited dated 18th November 2025 Ms O’Connor was employed from 9th June 2022 until 31st January 2025. Her employment ceased when she did not confirm her willingness to transfer under TUPE. She worked 30 hours per week. The Complainant gave evidence that the memo of 31st October 2024 stated that employees would become employees of the new company and retain current contracts/terms/benefits and that there would be no redundancies/layoffs because of the change. The Complainant refused to sign the new contract and had questions about why she had to sign and was concerned it might affect her hours. The Complainant did not work on Fridays and missed phone calls on the final date. The final day communication gave employees until 4pm to confirm agreement to transfer. It is not very clear in the decision whether or not she actually stated her rejection to transferring but it appears that like in the Franzoni case, she only expressed her objection to the transfer at the meeting on 5th November 2024 and not again afterwards. The Adjudicator found that she had resigned and relied on TUPE case law in relation to objection to transferring. Interestingly, the Adjudicator found that the Complainant effectively resigned because “she persistently refused to confirm willingness to transfer even though there was no change to her terms and conditions” (emphasis added).   The Complainant stated in evidence that other than signing the contract she did not know how else to confirm her willingness to transfer. The decision does not find that the Complainant “refused to transfer” which is what is referred to in TUPE case law to amount to a resignation. The Adjudicator was satisfied that the Complainant was not dismissed but resigned and therefore could not be unfairly dismissed. Takeaway for Employers: It is clear from these decisions that an employer involved in a TUPE transfer should not require the signing of a new contract as the method of indicating that the employee is not objecting to transferring. An employee is not required to consent to the transfer but has the option to reject or ‘opt out’ of transferring which needs to be clearly communicated to the employer. Where an employer believes an employee is refusing to transfer, it should seek clear written clarification from that employee. Remember resignation must be clear, unambiguous and unequivocal and should be in writing. Resignation in the heat of the moment can also be retracted. Ensure communications during the consultation period are consistent and clear and if refusal to transfer is going to be treated as resignation, ensure that this is clearly communicated to the employees well in advance of the transfer date in writing and that there are not contradictory messages sent to the employees. It should be noted that the first decision above is the most recent of the two decisions. It will be interesting to see if this is followed when this arises again. Links  - ADJ-00056751; ADJ-00057021 Authors – Anne O’Connell 21st January 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

Tony Molloy v Kaefer Limited (ADJ-00053834) is a recent unfair dismissal case that was before the Workplace Relations Commission (“WRC”). The Complainant brought the complaint under the Unfair Dismissal Acts 1977-2015 (the “Acts”) claiming his dismissal was both procedurally and substantively unfair. The Respondent denied this and claimed that his dismissal was necessary because it was impossible for the Complainant to continue in his role due to its client’s insistence that he be removed from their site. Facts: The Complainant was employed by the Respondent from 17th October 2016 until his dismissal on 29th May 2024. He was employed as a mechanical technician/fitter and was based on a site managed by a primary client of the Respondent since the beginning of 2024. Under the commercial contract between the Respondent and the client in question, the Respondent, through the Complainant and his team, completed specified mechanical works as outlined in permits issued by the client. The Respondent submitted that on 26th April 2024, and in the following days, the Complainant repeatedly refused to take responsibility for the permits or carry out duties as a permit holder, despite ongoing requests from his supervisor and other members of management. The Complainant gave evidence that his refusal was due to the recent initiation of the disciplinary procedure against a colleague because of a defect under such a permit and his belief that the permit process conferred an unacceptable level of liability upon him (regardless of the cause of the defect itself). He wanted his concerns addressed before he took up these duties again. The Respondent told the WRC that the Complainant was suspended with immediate effect from 15th May 2024 following his continued refusal to perform his duties. The Complainant emailed an apology to the Respondent following his suspension, accepting that his actions had been unacceptable. The Respondent intended to proceed with a disciplinary process, however prior to the scheduled disciplinary hearing the client issued the Respondent with  a formal letter requesting the Complainant’s removal from their site on an indefinite basis. The Respondent gave evidence that they asked the client to reconsider, but the client refused and insisted that the Complainant be removed from site. The Respondent submitted that they were contractually obliged to follow this directive and for that reason, they made the decision not to pursue the disciplinary process. They dismissed the Complainant and communicated this to him in correspondence on 29th May 2024. The Respondent’s Operations Manager gave evidence that their preferred outcome from the disciplinary procedure would have been a disciplinary sanction short of dismissal and the imposition of a Performance Improvement Plan (“PIP”), however the client’s reliance on a pre-agreed contractual term “forced their hand”. Evidence was given on behalf of the Respondent that they increased the Complainant’s notice pay from four to eight weeks as a gesture of goodwill. The Complainant appealed his dismissal, but it was upheld. The Complainant identified a number of procedural failures on the part of the Respondent, and argued that dismissal was disproportionate. The Respondent argued that the dismissal was fair because there were other substantial grounds justifying the Complainant’s dismissal, namely the client’s refusal to have him back on site, and he was not dismissed for misconduct. Decision: The Adjudicator, Mr. Brian Dolan, found that the Complainant had been unfairly dismissed. Under the Acts, the dismissal of an employee is deemed unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. There are a number of grounds that an employer can rely on to demonstrate that a dismissal was substantively fair under section 6(4) of the Acts. A further basis on which an employer can rely in defending an unfair dismissal claim is contained in section 6(6) which provides as follows: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.” [our emphasis].   The Adjudicator noted that section 6(6) is often invoked by employers seeking to justify dismissal in circumstances where a client refuses to permit an employee on site, arguing that this amounts to  “other substantial grounds” under that subsection. The Adjudicator noted the client in question was a primary source of work for the Respondent. However, the Adjudicator referred to a series of decisions addressing the reliance on “other substantial grounds justifying the dismissal” by employers experiencing pressure from third parties to remove employees from their sites. He pointed out that these authorities have established an onus on employers in these circumstances to consult with the third party, advocate on behalf of their employee, and consult with the affected employee on other roles that may be available in their organisation. In Merrigan v Home Counties Cleaning Ireland Ltd (UD904/1984), the Employment Appeals Tribunal (“EAT”) (as it then was) found that “The job of an employee cannot be at risk on the mere whim of a third party to the employment relationship”. In Derek Hevey v Provincial Security Services Ltd (UD447/2011), the EAT found that a Respondent “…will be expected to show that it has concluded an investigation into the reasons for the refusal of the respondent’s customer to have the claimant work on the site.” In An Employee v An Employer (UD205/2010), the EAT held that: “Every case must be considered in the light of its own particular facts. The dismissal of an employee brought about through pressure from third parties whether customers, clients, fellow employees or others may be justified provided the employer acts fairly and handles the procedure and investigation properly.” In the present case, the Adjudicator found that the Respondent could not rely on section 6(6) of the Acts and held that the Complainant was unfairly dismissed. The Adjudicator observed that it seemed apparent that the Respondent simply accepted the client's decision to remove the Complainant at face value and did not appear to advocate on his behalf. While evidence was given that the Respondent did speak with the client in this regard and asked them to reconsider, the Adjudicator found that the Respondent’s efforts were inadequate. The Adjudicator awarded compensation to the Complainant. In relation to the level of the award, the Adjudicator commented that “it is clearly apparent that the Complainant viewed his own behaviour as unacceptable and in consideration of the factual matrix presented by the parties, it is clear that these issues directly contributed to his dismissal.” The Adjudicator awarded €10,000 in compensation, taking into account the Complainant’s contribution to his own dismissal and his efforts to mitigate his losses. Takeaway for Employers: This case highlights the obligations on employers who are faced with a decision by a client not to permit one of their employees back on site. This type of scenario can pose a significant problem for employers in circumstances where the employee in question works primarily, or exclusively, on that client’s site. Such a decision does not always arise in response to a misconduct or performance issue, making it very difficult for employers to address in line with their policies. Even where there are misconduct or performance issues, employers are often placed in a difficult position when clients refuse to permit an employee to remain on site while they conduct an investigation or disciplinary process What is clear from the case law in this area, including this decision, is that employers have obligations to their employees that cannot be circumvented because of a client’s directive. What will be appropriate in one situation may not be suitable in another and employers need to ensure that their approach and response is tailored to the particular facts and circumstances. It is advisable for employers to seek legal advice as this can be a complex area. Links: https://www.workplacerelations.ie/en/cases/2025/december/adj-00053834.html You may also be interested in our previous article on a WRC case involving dismissal of an employee arising from a cancelled SLA. Link available here . Authors – Tara Kelly and Jenny Wakely   27th January 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2 www.aocsolicitors.ie

As we journey into 2026, it's timely to reflect on some key developments and noteworthy cases that shaped Irish Employment law last year. Minimum Wage The start of 2025 saw an increase in minimum wage to €13.50 per hour.  From 1st January 2026 it has increased further to €14.15 per hour. Gender Pay Gap Reporting  2025 saw gender pay gap reporting requirements extended to employers with at least 50 employees. Employment (Contractual Retirement Ages) Act 2025 This new legislation provides for a process whereby employees whose contract of employment specifies a retirement age below the state pension age (currently age 66) may notify their employer that they do not consent to retire at that age. There are certain notification requirements and on receipt of the notification, the employer must not enforce the contractual retirement age before providing the employee with a “reasoned written reply”. The new legislation was signed into law by the President just before Christmas 2025 however the provisions are not effective until such time as the Minister of Enterprise, Trade and Employment makes the necessary commencement order. Further details can be found in our Article, written on the first publication of the new Bill. General Scheme of the Equality (Miscellaneous Provisions) Bill 2024 The Bill proposes a number of noteworthy amendments to equality legislation. Further details can be found in our Article. However, significant amendments to these proposals are expected. WRC Looks Past the Corporate Veil  In Paul Lingard v Randridge International Ltd (In Examinership) (ADJ-00053934), the Workplace Relations Commission (“WRC”) found that a contractor satisfied the test for an employee set out by the Supreme Court in Revenue Commissioners v Karshan Midlands (Ltd t/a Domino’s Pizza) [2023] IESC 24. Although the contractual relationship was between two limited companies, the WRC looked behind this arrangement and found that there was a “contract of services”, i.e. an employment relationship. Further details can be found in our Article. Debenhams Case - High Court The High Court reversed a decision of the Labour Court which found Debenhams Retail Ireland owed their former employee €1,140 for a breach of its obligations in relation to collective redundancies. The Labour Court found that the Respondent employer had failed to commence the consultation process in good time and that by delaying the consultation until after the liquidators had been appointed, they had limited the options available in terms of coming to an agreement. However, the High Court found there was no evidence put before the Court of any options being lost or unavailable as a result of the 8-day delay. The High Court also found that a consultation process can start in advance of the first consultation meeting and took into account the surrounding circumstances (Covid-19 restrictions, Easter Bank Holiday weekend). Further details can be found in our Article. Employer Found Not to be Data Controller of Non-Work Related Personal Data The High Court upheld a decision of the Data Protection Commissioner (“DPC”) dismissing a complaint in relation to the HSE hack in 2021. The Applicant had discovered his personal email accounts had been compromised as well as his personal cryptocurrency account. The Applicant believed his work mobile phone was the source of the hack. The DPC decided that the HSE was not a “data controller”, within the meaning of that term in article 4.7 of the General Data Protection Regulation (EU) 2016/679 as the HSE did not authorise use of personal data on the work phone under their Acceptable Use Policy. Further details can be found in our Article. Significant Award for Breaches of Organisational of Working Time Act The WRC made an award of €34,999.99 for multiple breaches of the Organisation of Working Time Act 1997. The Complainant gave credible evidence he was not afforded his daily and/or weekly rest periods and worked in excess of the maximum weekly working hours set out under the 1997 Act. This decision was noteworthy in circumstances where the Adjudicator found that the Complainant’s working hours were determined by the needs of the business (he was a Chef) notwithstanding that the Complainant was responsible for rostering his own hours. Further details can be found in our Article. Significant Decisions Upholding Mandatory Retirement Ages:  2025 saw some noteworthy decisions from the WRC and the Labour Court in which mandatory retirement provisions were upheld.  In August, 2025 the Labour Court overturned the WRC decision which found that Mr Tom Ronan was discriminated against on the grounds of age when he was forced to retire at 70. This case had an interesting background as Mr Ronan was successful in his High Court application for an interim injunction requiring the Garda Commissioner to immediately re-engage him as a civilian driver pending the outcome of his proceedings. However, his application for an interlocutory injunction (to continue the interim order) was refused by the High Court, who found the appropriate route to pursue his claim was the WRC and Labour Court and that it would not be appropriate for the High Court to “trespass” on this statutory mechanism (a link to our Article on this aspect of the matter is also found below). The Labour Court noted that it was bound by the Supreme Court decision in Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 in which Mr Justice Collins emphatically endorsed the State’s decision to apply a mandatory retirement age of 70 to the majority of public servants.  Further details can be found in our Article.  Further details on the High Court Application can be found in our Article.  In October, 2025, the WRC upheld the enforcement of a mandatory retirement age provision by Eircom Limited where it determined Eircom had acted reasonably in accordance with its Retirement Policy and the mandatory retirement age was objectively and reasonably justified by legitimate aims. Further details can be found in our Article. Supreme Court Recognised Claim for Damages for Emotional Stress as a Result of a Data Breach But Not as a “Personal Injury” Claim The Supreme Court considered whether a claim for emotional distress as a result of a data breach falls within the statutory definition of “personal injury” and whether obtaining PIAB authorisation to initiate proceedings was required. It found that such a claim did not come within the definition of a “personal injury” claim. It was held the Plaintiff had a standalone claim for non-material damage pursuant to s117 of the Data Protection Acts. Mr. Justice Brian Murray also held that where a plaintiff’s claims are solely for mental distress, upset and anxiety that the plaintiff cannot expect anything other than very, very modest awards. Further details can be found in our Article.   Pension Auto-Enrolment The Government’s new statutory retirement savings system, MyFutureFund, went live from 1st January 2026. Employees are automatically enrolled if they are between 23 and 60 years of age, earn €20,000 or more per year and are not in “exempt employments”. Late in 2025 many employers were conscientiously preparing for this go-live date, especially upon the opening of the MyFutureFund Portal in December. New regulations were introduced relatively suddenly at the end of 2025 (and are already in effect since 1st January, 2026) setting out minimum standards that must be met in respect of contributions to occupational pension schemes and PRSAs in order for employments to be “exempt” from autoenrollment to MyFutureFund. See more about pension auto-enrolment in our original Article and January update here. A Quick Look at Noteworthy EU Developments… In the case of G.L. v AB SpA (C-38/24) the Court of Justice of the European Union (“CJEU”) ruled employers are required to provide reasonable accommodation to employees who are caregivers of their child with a disability. This decision broadens the protections for caregivers and the concept of discrimination “by association”. Further details can be found in our Article. The full judgement dated 11 September 2025 can be found here. On 11 November 2025 the CJEU annulled part of the Adequate Minimum Wages Directive while confirming the validity of the majority of the Directive. Article 5(2) and 5(3) of the Directive were found to constitute direct interference by EU law in the determination of pay and so were annulled. This judgement will likely require an update to the European Union (Adequate Minimum Wages) Regulations 2024 (S.I. No. 633 pf 2024). However, the judgement did not impact the promotion of collective bargaining, as required by the Directive. This is underway in Ireland with the publication of Ireland’s Action Plan to Promote Collective Bargaining 2026-2030 in early November 2025. Further details can be found in our Article. The full judgement can be found here. Authors – Tara Kelly, Ethna Dillon and Laura Killelea 27th January 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2 www.aocsolicitors.ie  

“MyFutureFund” Ireland’s new auto-enrolment pension system is now in effect as of 1st January automatically enrolling “eligible” employees. While many employers were prepared for this development, what came as a surprise were the further regulations signed into law on 22nd December, 2025 (S.I. No. 668/2025 - Automatic Enrolment Retirement Savings System Regulations (Amendment) (Section 52) Regulations 2025, hereafter the “Regulations”). The Regulations set out minimum standards that must be met in respect of contributions to occupational pension schemes and PRSAs in order for employments to be “exempt” from autoenrollment to MyFutureFund. These Regulations setting out minimum standards had not been expected for some time. The Regulations which are already in effect since January 1st stipulate the following minimum standards. Minimum Standards For Defined Contribution Schemes and PRSAs: Employer contributions must amount to not less than 1.5% of the employee’s gross pay or €1,200 in any year, whichever is less. In addition the aggregate contributions of the employer and the employee cannot be less than 3.5% of the employee’s gross pay or €2,800 in any year whichever is less. It is important to note the reference to “gross” as opposed to base pay. This is significant as traditionally many pension contributions have been calculated with reference to an employee’s base salary. It is important to be aware that “gross” pay reflects more than just an employee’s base salary. It can include things like commission, bonus etc. Minimum Standards For Defined Benefits Schemes: Where a scheme is a defined benefit scheme continuing service in that employment entitles the employee to accrue a long service benefit. Takeaway for Employers: Employers who are treating their employee’s employments as exempt from autoenrollment to MyFutureFund on the basis of contributions being made to an occupational pension scheme or PRSA should (if they have not already done so) review the contribution levels to ensure they meet the new minimum standards. In many cases the contributions may satisfy the standards, however, where there is a shortfall, employers need to be careful about how that shortfall is addressed. Some employers are choosing to make up the short fall through an increased employer contribution in circumstances where seeking to compel an increased employee contribution from existing employees likely presents additional legal issues/challenges. Employers may also like to review the “FAQ for Employers/Agents” that is available on the MyFutureFund Website (link below). Links: https://myfuturefund.ie/employer-faq https://www.irishstatutebook.ie/eli/2025/si/668/made/en/print?q=enrolment&years=2025 Author –Laura Killelea 23 January 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie      

Karen McHale v Mayo University Hospital (ADJ-00053715) involved a constructive dismissal complaint under the Unfair Dismissals Acts 1977 – 2015. The Complainant claimed that she was left with no option but to resign from her employment due to the Respondent’s treatment of her when a complaint was made against her under the Respondent’s grievance procedure. Her complaint was upheld and she was awarded compensation, including a lump sum in respect of her pension. Facts: A complaint was made against the Complainant by one of her colleagues following their return from leave. The Complainant’s line manager required the Complainant to carry out the return-to-work meeting with that employee. During that meeting, the employee mentioned to the Complainant that he had made a complaint about her, of which he assumed she was aware. The Complainant had not received a copy of the complaint and was not aware that a complaint had been made against her. She asked the Respondent to provide her with a copy of the complaint, but they did not, and she was directed to attend mediation in an attempt to resolve the complaint. When she attended the mediation, the mediator was surprised that the Complainant had not been given details of the complaint or provided with a copy of it. Further issues arose in respect of reporting lines, and the Complainant submitted that she was bypassed in the reporting structure. She went on certified sick leave, still without having been provided with a copy of the complaint. The Complainant was offered alternative positions that were not suitable, and she felt that she was bullied into accepting one of those positions. The Complainant ultimately resigned. She did not submit a grievance before doing so, because she felt that she was unable to rely on the Respondent’s grievance procedure given the lack of fairness afforded to her in respect of the complaint made against her under that same procedure. The Respondent sought to defend the claim on the basis that the Complainant had failed to exhaust the internal options available to resolve her grievances prior to resigning from her employment. It did not dispute that the Complainant had not been provided with a copy of the complaint against her before commencement of an investigation into the complaint and before commencement of the mediation process. Decision: The Adjudicator, Conor Stokes, upheld the Complainant’s claim. He referred to the decision in Re: Haughey [1971] IR 217 and the fundamental principles set out in that decision, which included the entitlement to be provided with the case being made out against you, and having the opportunity to rebut that case. He found that those principles did not appear to have been included in the Respondent’s grievance procedure, and were not afforded to the Complainant in respect of the complaint made against her. He was satisfied that a reasonable employer would regard the grievance procedure as flawed, and would not (and should not) expect or require her to have engaged with that flawed grievance procedure prior to her resignation. He found that she had been constructively dismissed. What is particularly interesting about this decision, is the Adjudicator’s calculation of the Complainant’s financial loss and the award of compensation made by him. Having found that compensation was the most appropriate remedy, the Adjudicator assessed the Complainant’s financial loss, noting her loss of a pension entitlement/lump sum as a result of the termination of her employment. He requested and obtained post-hearing submissions regarding financial loss and mitigation. From that information, the Adjudicator noted that the pension “built up” by the Complainant was preserved for her to “draw down” upon retirement, but he noted that that did not appear to be the case in respect of the Complainant’s pension lump sum of approximately €41,831. The Complainant had about 17 years left to qualify for a full pension. The Adjudicator included a lump sum of €41,831 in his award of compensation, reflecting the loss of this pension lump sum. Takeaway for Employers: The inclusion of a figure specifically relating to loss of a pension lump sum in an award of compensation is very interesting. It is not clear from the decision, but it would seem more likely that the Complainant’s pension was a defined benefit pension as opposed to a defined contribution pension. The inclusion of such a loss in calculating the Complainant’s financial loss is nonetheless an interesting approach, and it will be interesting to see if it is followed in subsequent decisions and/or if a similar approach might be taken in circumstances where a complainant’s pension is a defined contribution scheme rather than a defined benefit scheme. Link – https://www.workplacerelations.ie/en/cases/2025/november/adj-00053715.html 26th January 2026 Author – Jenny Wakely AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

In Kim Dempsey v Irish Prison Service (ADJ-00043513) the Complainant brought a complaint under section 77 of the Employment Equality Acts (as amended) against her employer Irish Prison Service, for failing to provide her with reasonable accommodation following a workplace incident that left her unable to carry out her regular duties. Facts: The Complainant commenced employment with the Respondent as a prison officer in 2008. In May 2017 while working for the Respondent, the Complainant suffered multiple injuries as a result of a serious assault by a prisoner. Since the incident the Complainant has suffered with chronic and ongoing back pain requiring her to undergo specialist treatment. She has been medically advised that she is not fit for manual duties and that she should return to work in an office-based capacity. The Complainant has not returned to work since this incident and has remained on sick leave since 2017. It seems that while the Complainant was on sick leave, she obtained the qualifications for the role of Work Training Officer Integrated Sentence Management (“WTO”) and was later offered a position in Cloverhill prison but the Complainant submitted she was never permitted to start this role. The duties of the WTO were in dispute in the case. In summary, the Respondent argued it was not possible to re-employ the Complainant as a WTO/Prison Officer, as all positions involved prisoner contact or the potential for prisoner contact in conflict type scenarios. The Complainant on the other hand argued the role of WTO is a primarily office based role albeit that in some understaffed prisons such as Cloverhill, some WTO’s do not perform the WTO role full time due to having to fill in for staff shortages elsewhere in the prison. However, it was the Complainants position that there are full time WTO positions available in other prisons that do not entail carrying out general prison officer duties and if they do, this arises only exceptionally and therefore any such requirement could be dealt with by way of a reasonable accommodation. It is worth noting that in the Complainant’s submission reference was made to the case of XXX v. HR Rail SA C-485/20 (10th February 2022) where the Court of Justice of the European Union (the “CJEU”) handed down a judgement in the context of a worker becoming permanently incapable of remaining in their job because of the onset of a disability. The CJEU recognised in that case that the concept of reasonable accommodation may include reassignment to another job within the undertaking for which the worker has the necessary competence, capability and availability and where such reassignment would not impose a disproportionate burden. The CJEU recognising that the possibility of assigning the person to another job was aimed at a situation where there is “at least one vacancy” which the worker concerned would be able to occupy, so as not to impose a disproportionate burden on the employer. Decision: WRC Adjudication Officer Jim Dolan upheld the Complainant’s claim. In his decision he quoted detailed sections of the landmark Supreme Court ruling in Nano Nagle School v Daly [2019] IESC 63 which examined the obligations of an employer to provide reasonable accommodation for an employee with a disability. See a link to our previous article on the Nano Nagle judgment here (https://aocsolicitors.ie/landmark-supreme-court-decision-on-the-obligation-to-provide-reasonable-accommodation-to-employees-with-disabilities/). The Adjudicator also referred to the judgment in Robert Cunningham and Irish Prison Service [2020] IEHC 282 where Mr Justice Barr commented that it was clear from the decision in the Nano Nagle case, that there has been a “paradigm shift” in the way disability is to be viewed in European and Irish law. Mr. Justice Barr commented that the legislation and case law clearly provide “rights of real substance to persons of disability, who wish to enter or remain in work”. The Adjudication Officer ordered the Respondent to pay compensation to the Complainant in the sum of €60,000. He also made an order to reasonably accommodate the Complainant by finding a position which will permit her continued employment as a prison officer within three months. While the Adjudicator did not directly comment on the Complainant’s reference to the XXX case (which post dates Nano Nagle), the order to find a position which will permit the employee’s continued employment as a prison officer within three months is arguably consistent with that Judgement. It is also worth noting that in his decision the Adjudicator remarked upon the fact the Complaint had not been invited to attend a conference that had taken place to discuss her possible return to work. He commented that he believed she should have been invited to attend that conference. The Adjudicator ordered that the Complainant should be included in any discussion/decision in the tasking of finding her a position. Takeaway for Employers: In so far as the order to find a position within three months is concerned, it is worth pointing out that the Respondent in this case was a large public body where the likelihood of an alternative position being available may be higher than in a small private business. It does not necessarily follow that a similar order would be made in respect of a smaller organisation. Nonetheless, this decision serves as an important reminder that the right of reasonable accommodation is a right of “real substance” and employers should be mindful of their duty to provide reasonable accommodation measures to employees unless the measures would impose a disproportionate burden on the employer. Link: https://www.workplacerelations.ie/en/cases/2025/november/adj-00043513.html Authors- Abigail Ansell, Laura Killelea   2nd January 2026 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

The Government’s new statutory retirement savings system will go live from 1st January 2026. The scheme known as MyFutureFund, will be overseen and administered by the National Automatic Enrolment Retirement Savings Authority (NAERSA). NAERSA will identify which employees meet the eligibility criteria for auto-enrolment using Revenue payroll data and will enrol them, which should result in minimal administrative work for employers. Employees will be enrolled automatically in the new pension scheme if they are: * Aged between 23 years and 60 years; * Not currently part of a pension plan; and * Earn €20,000 or more per year (there is an earnings threshold of €80,000). Employees will have the option to opt-out (after 6 months, but before 8 months) or suspend their participation in the scheme. Employees who are under 23 or over 60 years of age, or who earn less that €20,000 a year, may opt into the scheme, with all contributions from their employer(s), the employee and the State applying. The fixed contribution rates from the employer, the employee and the State will be phased over a period of 10 years and are set out below: Year of the auto-enrolment scheme Employee Contribution Rate Employer pays Government pays 1 to 3 1.5% 1.5% 0.5% 4 to 6 3% 3% 1% 7 to 9 4.5% 4.5% 1.5% 10 and after 6% 6% 2% Employees who are already a member of an occupational pension scheme or trust, Retirement Annuity Contract (RAC) or have a Personal Retirement Savings Account (PRSA) or Pan-European Personal Pension Product (PEPP), which is recorded in payroll, will not be auto-enrolled and will not be able to opt in based on that employment. However, where an employee has a second employment where pension contributions are not paid, the employee can be auto enrolled or opt into the scheme in respect of that second employment if they meet the eligibility requirements. Employers and employees should be aware that when an employee has multiple jobs, NAERSA will take into account the combined earnings to determine eligibility for auto-enrolment and an employee will be enrolled for any job without existing pension coverage if the total earnings are over €20,000. Takeaway and Considerations for Employers: Employers, if they have not done so already, need to ensure that they meet their auto-enrolment obligations. Failure to do so will result in penalties and possible prosecution. Employers should consider: * Review existing pension schemes – employers with existing pension schemes in place should ensure that their existing scheme qualifies for exemption. Employers should bear in mind that any employees who are not part of an existing pension scheme will be auto-enrolled if they meet the eligibility criteria. * Updating payroll software – employers should update their payroll software and should ensure that it can take instructions for enrolment, calculate and pay employer and employee contributions to NAERSA. * Budgeting for contributions – contributions will commence in January 2026, with an incremental increase over the next ten years, employers should ensure that they have budgeted appropriately. * Clear communications with employees – employers will be obliged to inform employees when they are first enrolled. Employers are also reminded that it is an offence to take any action that hinders or attempts to hinder an employee from participating in the MyFutureFund scheme. The employer portal contains sample correspondence that employers can use to issue to employees. * Employer Portal is now open – As of 1st December 2025,the MyFutureFund employer portal is open and employers must: 1. Complete their profile on the MyFutureFund Portal before the end of December. 2. Set up a payment method. 3. Run payroll as usual. 4. Employers should also keep an eye out for NAERSA notifications and communications via the portal. Links – MyFutureFund Portal * Auto-Enrolment Retirement Savings System for Employers – Department of Social Protection Authors- Ethna Dillon, Jenny Wakely Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

In the case of Patrick Donnellan and Eircom Limited (ADJ-00051860) the Complainant brought a complaint under section 77 of the Employment Equality Act, challenging the Respondent’s enforcement of a mandatory retirement age of 65 and its refusal of his application for an extension of his contract. Facts: Prior to his retirement in April 2024, the Complainant had been employed by the Respondent (and/or its predecessor) for 44 years. The Complainant submitted that his contract of employment did not specify a retirement age. He submitted that it made reference to 65 in terms of receipt of pension but there was no requirement to retire at that age. The Complainant was employed as a field technician. The Complainant submitted that he had substantial financial commitments for example putting a family member through third level education and was not in a position to retire at 65. Both sides acknowledged that he sought an extension of his contract but that this was refused citing factors such as intergenerational fairness, health and safety concerns and succession. He appealed this internally within the Respondent but his appeal was unsuccessful. The Respondent gave evidence at hearing to the effect that the Respondent’s defined benefit pension scheme has historically been drawn down at age 65 and that retirement at 65 is custom and practice across the organisation. Evidence was given of the Respondent’s retirement policy having been reviewed back in 2020 following external benchmarking and union engagement. Evidence was also provided around the rationale behind the retirement age of 65, naming succession planning, career progression, headcount management and the need to maintain an age balanced workforce. The Respondent submitted that 70% of its 900 staff are employed as field technicians (like the Complainant) and 60% of field technicians are currently over the age of 60. The Respondent submitted there is an aim of avoiding sudden loss of skilled staff.  Reference was also made to the field technician role being a “safety critical” role. The Respondent outlined the succession planning in place for the Complainant’s territory and the hiring of an apprentice in 2023 and in 2024 to address anticipated retirement in the Clare area. A witness for the Respondent gave evidence that “retirement age of 65 was to support intergenerational fairness, career progression, workplace diversity and health and safety, particularly relevant in physically demanding roles like those in open Eir, where 65% of the workforce is over 60, and in Clare, 88% are over 60”. The Respondent gave evidence that the Complainant’s annual salary after 44 years of service had been €48,463.11 and that upon retirement, he received a tax-free lump sum of €68,087.34 and an annual pension of €22,695.00. Decision: In this decision, the WRC Adjudication Officer Úna Glazier- Farmer relied on the current legal position on retirement age as set out in Seamus Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 (see end of this article for a link to our previous article on Mallon). The Adjudication Officer referred to the Supreme Court’s finding in Mallon that a mandatory retirement age does not constitute unlawful age discrimination where it pursues a legitimate aim and the means of achieving that aim is appropriate and proportionate in accordance with article 6)1) of the Directive 2000/78/EC and the relevant CJEU jurisprudence. The Adjudicator listed some examples of what can constitute a legitimate aim as set out by the Supreme Court and referred to the Supreme Court having found that the avoidance of an individual capacity assessment has been recognised as a legitimate aim in favour of justifying a general retirement age. The Adjudication Officer also referred to another recent WRC Decision on the topic of retirement age namely Valentine Reilly v Meath County Council ADJ-00050118 and the analysis of the Adjudication Officer in that case. Ultimately, the Adjudication Officer found that in the instant case there had been a “consistent and systematic” and “coherent” application of the mandatory retirement rules by the Respondent, that the Respondent’s legitimate aims were identified in a letter to the Complainant communicating its decision to refuse an extension of his contract and were based on intergenerational fairness, succession planning, and health and safety. She noted the Respondent’s Retirement Policy which also refers to maintaining an age balance in the workplace. She found all four aims were noted by the Supreme Court in Mallon as legitimate. The Adjudication Officer relied on the Supreme Court’s finding that an employer is “better placed than the court to assess what [is] necessary or appropriate for the effective operation of the coronial system” and found that this limits the role of the WRC to consider whether the Respondent’s judgement appeared to be unreasonable. She found that the Respondent is best placed to assess what is necessary or proportionate for the effective operation of its business. The Adjudication Officer found the Respondent had acted reasonably in accordance with its Retirement Policy and the mandatory retirement age was objectively and reasonably justified by legitimate aims. She commented that while it is entirely understandable that the ongoing costs associated with supporting his family are substantial, in the circumstances, the Respondent’s mandatory retirement age of 65 was appropriate and necessary in light of the pension provision. Takeaway for Employers: This decision serves as reminder that while mandatory retirement ages are permissible if they pursue a legitimate aim and the means of achieving that aim are appropriate and proportionate, they provide fertile ground for dispute and are regularly challenged by employees in the WRC. Employers should consult with their lawyers to ensure they are up to date on the topic of retirement ages and are operating in a manner that is consistent with the findings of the Supreme Court in Mallon. Link  – https://workplacerelations.ie/en/cases/2025/october/adj-00051860.html Links to some other recent articles we have written on this topic: https://aocsolicitors.ie/supreme-court-clarifies-law-on-mandatory-retirement-ages/ https://aocsolicitors.ie/recent-decisions-on-mandatory-retirement-highlight-requirement-for-appropriate-contractual-provisions-and-retirement-policies/ Authors – Abigail Ansell and Laura Killelea 30 November 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie    

In A Female Complainant v The Health Service Executive (ADJ-00055810), the Workplace Relations Commission (the “WRC”) found that the Complainant was discriminated against by her employer on the grounds of gender. The Adjudicator, Conor Stokes, found that the Complainant was sexually harrassed by a senior colleague for over a year, and that the Respondent did not react robustly enough in order to protect the Complainant. The Adjudicator awarded the Complainant 52 weeks’ remuneration (€86,717) for the effects of the discrimination. Facts: The Complainant is a pharmacist working in a HSE hospital setting. The Complainant lodged an employment equality claim with the WRC on 10th December 2024 alleging gender discrimination and sexual harassment. The Complainant described a series of incidents in which she was sexually harassed by a senior male pharmacist, the first of which took place in May 2023. Further incidents occurred, culminating in an incident in June 2024 during which the senior pharmacist showed her a picture of naked male genitalia while they were along in the pharmacy office together. The Complainant lodged a complaint of sexual harassment the following Monday when her line manager returned to work. The Complainant sent an email to HR in which she sought a formal investigation into seven separate incidents. The Complainant submitted that she was only interviewed more than eight months after making a complaint. She stated that the harasser continued to work in the workplace for over a year while she had to move elsewhere to try and avoid him, and she continued to encounter him in the workplace. The Complainant had to take stress leave twice during that time. The Respondent stated that it was required to give the senior pharmacist due process and noted that he was entitled to natural justice and fairness. It referred to the investigation that was carried out and the report that was issued in respect of the complaint. The investigation found in favour of the Complainant. While the Respondent submitted that it put certain safety measures in place, it accepted that it did not do enough to protect the Complainant. Decision:  The Adjudicator found the Complainant to be credible, and in the absence of any evidence to the contrary, he found that all the incidents described by the Complainant took place (not just those upheld in the investigation which the senior pharmacist had admitted to). The Adjudicator found that the senior pharmacist repeatedly violated the safeguarding direction put in place by the Respondent. This was confirmed by the Respondent’s witness who confirmed that she had to speak to him repeatedly. The Adjudicator was satisfied that the Complainant had “amply” established facts from which it could be presumed that she had been discriminated against. Accordingly, the burden shifted to the Respondent to prove the contrary. The Respondent did not challenge the Complainant’s version of events and affirmed many of the details given by her including the timeline and how long it took to address matters while the senior pharmacist remained in place and the Complainant was moved around. The Adjudicator found that the Respondent “wholly failed” to take steps to prevent the senior pharmacist from continuing to sexually harass the Complainant. He “repeatedly inserted himself” into the Complainant’s work environment, resulting in the Complainant taking stress-related sick leave. Up to the date of the WRC hearing, 13 months after the sexual harassment had been reported, no disciplinary action had been initiated against the senior pharmacist. The Adjudicator was critical of the relevant HSE policies and the delay, as well as the inadequacy of the safeguarding mechanisms put in place. He concluded that the Respondent did not take such steps as were reasonably practicable to safeguard the Complainant. He found that the Respondent was liable for the discrimination of the Complainant, and was unable to rely on the defence in section 15(3) of the Employment Equality Acts. In considering the appropriate redress, the Adjudicator noted that it is important that any award should serve the purpose of dissuading a potential harasser, of persuading an employer to comply with the legislation, and should be proportionate to the infringement and breach of the Act. The Adjudicator awarded the Complainant compensation in the amount of €86,717, equivalent to 52 weeks’ remuneration, for the effects of the discrimination in this case. Interestingly, the Adjudicator also ordered the Respondent to disregard the two periods of sick leave for work-related stress taken by the Complainant arising from the harassment for the purposes of annual and multi-annual sick leave calculation. Takeaway for Employers: This decision is a strong reminder to employers of their obligations to employees under the Employment Equality Acts. Breaches of employment equality legislation can be very costly for organisations, as awards of compensation are made for the “effects” of the discrimination and are not dependent on loss of earnings, increasing the potential exposure for employers. Employers must ensure that they have robust policies in place that protect the rights and interests of employees who may experience harassment. It is essential that employers ensure that their policies are effectively communicated to employees and appropriate training is advisable. When complaints of harassment or discrimination are made in the workplace, employers should act without delay in order to protect the rights of all parties concerned. Legal advice is recommended in navigating this sensitive area. Link- ADJ-00055810 28th November 2025 Authors – Jane Holian, Jenny Wakely Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie    

In Dariusz Kowalski v Nvd Limited (ADJ-00034716) the Complainant claimed that he was unfairly dismissed by the Respondent because of his refusal to sign a new contract that altered the terms and conditions of his employment to his detriment. Facts: The Complainant began working for the Respondent as a driver in 2005 transporting new cars on trucks to various destinations in Ireland, the UK and the EU. In 2009, the Respondent engaged with SIPTU to introduce new terms and conditions including a reduction to the Complainant’s pay without his agreement. The Complainant engaged in prolonged efforts over twelve years to revert to the terms and conditions of his 2005 contract without success. In 2021 he was offered a new contract with non-negotiable terms, including the requirement to serve a probationary period, even though he had been working for the Respondent since 2005. There were other less favourable terms, including relating to the Complainant’s hours of work, the inclusion of a fixed retirement age of 60, higher cash penalties in the event of damage to vehicles, and uncertainty regarding the details relating to his bonus and times of work, which could be changed without his agreement. The 2021 contract also provided that the Respondent could vary terms solely on the basis of business needs whereas the 2005 contract required the agreement of both parties to alter the terms of the contract. The Complainant refused to sign the new contract. The Complainant was dismissed on 19th February 2021, purportedly on the basis of redundancy, and paid eight weeks’ salary in lieu of notice. The Complainant’s position was that the contract was being made “redundant” and not the work/the role. He pointed out that the dismissal letter referred to the contract and argued that a unilateral change in contractual terms does not give rise to a redundancy situation. He also argued that at the time of his dismissal, the market was expanding and there was no reduction in the requirement for drivers on the part of the Respondent. The Complainant contended that his dismissal arose not from a requirement to reduce the number of drivers, but instead as a result of his refusal to sign the new contract. Without prejudice to the Complainant’s position that there was no genuine redundancy, the Complainant also argued that there was no fair redundancy process: the Complainant was not put on notice of redundancy; the Respondent did not follow a fair selection process, but simply selected the Complainant and three of his colleagues who also refused to sign the new contract; and the Complainant was simply informed that he was being made redundant. The Respondent’s position was that the Complainant was not unfairly dismissed, and it was a genuine redundancy. The Complainant refused the offer of suitable alternative employment and therefore was not entitled to receive a statutory redundancy payment. The Respondent provided details of market changes in respect of car importations as a result of the worldwide economic crash in 2008, and those associated with Brexit. Details were provided regarding the Respondent’s engagement with SIPTU in respect of pay restructuring, and a pay cut negotiated with SIPTU in 2009, to be restored when pre-2009 revenue returned. SIPTU sought a return to pre-2009 pay in negotiations with the Respondent between 2010 and 2011. However, the Labour Court ruled against it. In 2013 there were further negotiations between SIPTU and the Respondent, and drivers were given an option to either accept a new contract with €8000 in compensation for changes to conditions and salary reduction, or voluntary redundancy. The Complainant held out for a return to the 2005 contract. Further efforts to get the Complainant to agree to the new 2013 contract (between 2014 and 2018) were unsuccessful. The Complainant lodged a civil bill in the Circuit Court in 2018 for breach of contract when the Respondent amended his terms and conditions in accordance with the terms of the 2009 agreement to which the Complainant never agreed. This was settled in December 2020. Further attempts were made to secure the Complainant’s agreement to the new contract in December 2020 and January 2021, but these efforts were also unsuccessful. The Respondent issued the Complainant with a new contract in 2021 and informed him that he would be made redundant if he did not sign it, and that no statutory redundancy would be paid because suitable alternative employment was offered. The Complainant rejected the contract and was made redundant. Decision: The Adjudicator, Máire Mulcahy, found that the requirement for the transportation of cars had not reduced, and the “manner of doing business” remained unchanged. She noted that the Respondent had not considered anyone else for redundancy except the Complainant and his three colleagues who took legal action against the company. The Adjudicator referred to the dismissal letter which made it clear that the reason for the Complainant’s redundancy was his refusal to accept the new contract. She was satisfied that the Complainant’s dismissal was not due to a genuine redundancy: “The altered terms in the contract put to the complainant in 2021 did not indicate a diminished need for [sic] a reduction in the service to customers as opposed to requiring greater flexibility on his part to meet the needs of those customers. It’s not a redundancy that meets the statutory definition as the requirement for truck drivers had not diminished. That his refusal may have been unreasonable to accept the altered contractual terms is not a matter which fits in with the definition of a redundancy.” The Adjudicator then considered whether or not the Respondent unfairly dismissed the Complainant. In doing so, the Adjudicator identified the Respondent’s failure to dismiss the Complainant through a fair disciplinary process as the “biggest defect” in the Respondent’s conduct. She noted that the Complainant was given an ultimatum, and then the same person who gave him the ultimatum dismissed him a month later. She concluded that the Complainant was unfairly dismissed. However, the Adjudicator acknowledged that the Complainant behaved unreasonably in failing to accept the challenges facing the Respondent and in his dealings with the Respondent, noting that this was “short” of what the Respondent was entitled to expect. She found that his “mistrust in the bone fides” of the Respondent who had engaged in “painstaking efforts to find a resolution and avert dismissal was either misplaced or manufactured”. While she noted that opportunism is not a substantial ground for dismissal, she took the Complainant’s behaviour into account in assessing the amount of compensation to award by way of redress. The Complainant’s loss was €9,173 and the Complainant was awarded €3,500 by way of compensation which the Adjudicator regarded as just and equitable in all the circumstances. Takeaway for Employers: While this case was quite fact-specific, the decision highlights that although redundancy is a fair reason for dismissal, “redundancy” has a specific statutory definition contained in the Redundancy Payments Act 1967. Section 7(2) sets out the various circumstances that may give rise to a redundancy situation. The fact that an employee’s contract of employment may no longer be fit for purpose does not mean that the employee’s role is redundant. Employers that find themselves in this situation should note that the Adjudicator in this case suggested that an employer ought to address an employee’s unreasonable refusal to negotiate necessary amendments to his/her contract of employment through a fair disciplinary process. Careful consideration must be given to the provisions of section 7(2) of the 1967 Act and whether or not a genuine redundancy situation exists before determining the appropriate course of action.   Link: ADJ-00034716 - Workplace Relations Commission   Authors- Abigail Ansell and Jenny Wakely   29th October 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2   www.aocsolicitors.ie  

 In Sara Halpin v Robert & F Warren Ltd (ADJ-00058438), one of the claims that the Complainant sought adjudication from the Workplace Relations Commission (“the WRC”) was under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, commonly referred to as “TUPE Regulations”. Her claim was that she was never notified of the transfer which occurred in 2021. Although the claim was lodged in April 2025, approximately 4 years after the transfer took place, the WRC Adjudicator, Conor Stokes, found that the contravention of the TUPE Regulations was within time for him to hear the claim. Facts: The Complainant held a role in Human Resources within the Respondent company. The Complainant claimed that she was never made aware that a transfer of undertakings had taken place, and that her employment transferred from one employer to another. The Complainant stated that she understood the transfer of undertakings to have taken place in 2021 but only became aware of this fact from communications with the Revenue Commissioners during the 12 months prior to lodging the complaint with the WRC. The Respondent confirmed that it never made the Complainant aware of the existence of a transfer of undertakings. The Respondent confirmed the principals of both entities were the same person. Therefore, the Respondent had not complied with Regulation 8 of the TUPE Regulations in respect of consultation and providing the required information to the Complainant but that was four years ago. Regulation 10 of the TUPE Regulations refers to the time limits within which to make a claim for such breaches and states that: “A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates..” The six-month time frame is mirrored in section 41(6) of the Workplace Relations Act 2015. Section 41(8) of the Workplace Relations Act provides for an extension of time: “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” Notwithstanding that the Adjudicator appears to have accepted that the transfer of undertakings took place in 2021, the Adjudicator found that the complaint fell within the period envisioned in the Act. The Adjudicator stated: “The respondent confirmed that it never informed the complainant of the change of ownership of the business.  Accordingly, I consider that the date of the contravention to which this complaint refers falls within the period comprehended by the Act and is validly before the WRC.” It is not clear from the written decision why the Adjudicator granted the extension “later than six months after” the expiration of the time limit i.e. beyond the 12-month extended period - was it due to the Respondent never informing the Complainant or was it due to the fact that the Complainant discovered the transfer within 12 months of her lodging her claim. The author of this article was not involved in this case nor present at the hearing. It is possible that the parties are clearer to the basis for this decision. The Adjudicator ordered the Respondent to pay the Complainant four weeks in compensation for the breach of Regulation 8. Takeaway for Employers: While the principles in this decision are straightforward, employers should be aware the laws governing TUPE are complex. The transferring employer must provide TUPE information, including the proposed date of transfer and reasons for the transfer, at least 30 days before the transfer of undertakings takes place, or at the very least, in good time before the transfer. Employers should remember that the purpose of the TUPE Regulations is to protect employees’ rights where a transfer of undertaking occurs. While time limits apply for TUPE related complaints to the WRC, organisations should be aware that they may be exposed to further extensions if they fail to inform the employees at all about the transfer of undertaking and it is better to inform the employees, even if late, to start the time limit to run and limit the exposure.   Link –  ADJ-00058438 - Workplace Relations Commission   Authors- Jane Holian, Anne O’Connell   29th October 2025   AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie  

The Labour Court recently issued its decision on an appeal of a Workplace Relations Commission (“WRC”) decision which found that Mr Tom Ronan, a civilian garda driver (the “Complainant”), was discriminated against when he was forced to retire at 70. The WRC Adjudicator, Brian Dalton, ordered re-engagement of the Complainant in his role as a driver and a three-year extension of his employment from the date of re-engagement. We examined the WRC decision in our newsletter article “WRC Orders Re-Engagement of Driver Forced to Retire at 70 – Mandatory Retirement ‘Highly Likely’ to Cause Him Financial Hardship” here. In An Garda Siochana v Tom Ronan (EDA2560) the Labour Court overturned the WRC decision. Facts: The Complainant was a Civil Servant who commenced employment as a driver with the Department of Justice in January 2020, and was subsequently transferred to An Garda Síochána. He was retired from his role when he reached the mandatory retirement age of 70. The Complainant argued that some of his colleagues in comparable roles were permitted to work past 70. He claimed that he was discriminated against on the ground of age and that he needed to keep working due to his personal circumstances, arguing that he would endure financial hardship post-retirement. The Adjudicator in the WRC agreed that he was discriminated against notwithstanding that the retirement age had already been found to be objectively justified, placing significant emphasis on the issue of financial hardship. He decided that on the facts of the case, the mandatory retirement age for the Complainant was unreasonable. The Complainant then sought a High Court injunction to essentially give effect to the WRC Order which was under appeal to the Labour Court. An interim injunction was initially granted, but an interlocutory injunction was refused on the basis that there was a statutory remedy available and the WRC and Labour Court were the most appropriate fora to decide on the matter. Mr Justice Mulcahy pointed out that section 43(3) of the Workplace Relations Act 2015 makes it clear that where a WRC decision is appealed to the Labour Court, the WRC Order cannot be enforced by the District Court and a WRC Order which is under appeal should not be considered as being operative. We wrote an article examining the High Court decision entitled “Leave to Appeal to Supreme Court Sought by Civilian Garda Driver who was Refused Interlocutory Injunction by High Court” here. Labour Court decision: The Labour Court referred to the Supreme Court decision in Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 in which, at paragraph 88 of the judgment, Mr Justice Collins emphatically endorsed the State’s decision to apply a mandatory retirement age of 70 to the majority of public servants. The Court referred also to paragraph 92 of the judgment where Collins J pointed out that this is “considerably higher” than the current pensionable age of 66 in respect of the Social Welfare Consolidation Act 2005. The Labour Court noted that it was bound by the Supreme Court’s decision in Mallon and found that the Complainant’s complaint that he was discriminated against by the Respondent when he was compulsorily retired was not well founded. The Court stated that the Respondent’s decision was “nothing more than the implementation of the State’s policy as embodied in the 2018 Act and that Act does not give any discretion to individual public sector employers to extend an individual public servant’s employment beyond his or her seventieth birthday.” Finally, the Labour Court found that the Complainant’s attempt to compare his situation to colleague civilian drivers who were recruited between 2004 and 2012 (and do not have a mandatory retirement age) was inappropriate: “It is a matter of public record that the State decided against retrospectively applying a mandatory retirement age to this cohort of public servants when enacting the 2018 Act as to have done so could have given rise to a perception of unfairness and may have been inconsistent with those workers’ legitimate expectations.” Takeaway for Employers: The area of mandatory retirement and age discrimination is a complex one which has given rise to numerous WRC and Labour Court decisions in recent times. As noted in our article “WRC Orders Re-Engagement of Driver Forced to Retire at 70 – Mandatory Retirement ‘Highly Likely’ to Cause Him Financial Hardship” (link above), employers will not be used to having to consider an employee’s financial situation in making a decision about mandatory retirement in an individual case. The Labour Court decision is welcome clarification on this point and appears to be the right decision, particularly in circumstances where the retirement age had already been found by the Supreme Court to be objectively justified. Link: https://www.workplacerelations.ie/en/cases/2025/august/eda2560.html  Author - Jenny Wakely 19th September 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

The Supreme Court judgement (of O’Donnell CJ, Dunne J, Hogan J, Murray J and Collins J) in Patrick Dillon v. Irish Life Assurance PLC which was handed down on 24th  July 2025, considered whether claims for emotional distress as a result of a data breach falls within the definition of ‘personal injury’ under the Personal Injuries Assessment Board Act 2003 and whether obtaining PIAB authorisation to initiate proceedings was required. It found that such a claim did not come within the definition of a ‘personal injury’ claim. It will be interesting to see the application of this decision going forward to other potential claims in the employment law area. Facts: The Plaintiff, Patrick Dillon, held a life assurance policy with the Defendant,  Irish Life. The Defendant issued in error six letters in relation to the Plaintiff’s policy containing  his personal and financial data between 2008 and 2020 and sent them to a  third party. The Plaintiff issued proceedings in the Circuit Court alleging that the data breaches were caused by negligence and breach of duty, including breach of statutory duty and caused him “distress, upset, anxiety, inconvenience, loss and damage”. This was due to the alleged breach by the Defendant of the Data Protection legislation. The Defendant argued that the Plaintiff’s claim fell  within the definition of ‘personal injury’ within the meaning of the Civil Liability Act 1961 which requires a pre-authorisation from PIAB, which the Plaintiff had not obtained. Also, it argued  that he should have commenced proceedings by Personal Injuries Civil Bill rather than the Equity Civil Bill in which they were instituted. Both the Circuit Court and the High Court on appeal found that the proceedings sought damages for ‘personal injury’ and that PIAB authorisation should have been obtained before instituting proceedings and therefore they dismissed his claim. The Supreme Court granted Plaintiff the leave to appeal the High Court decision as it considered this case raised issues of general public importance about whether a claim for damages for “distress, upset and anxiety” arising from a data breach could possibly be seen as a claim for damages for personal injury and the compatibility of PIAB authorisation requirement with EU law. Decision: In this decision there was two key issues that fell for consideration . One being whether the non-material damage (distress, upset and anxiety) fell within the statutory definition of ‘personal injury’ as found by the High Court. The second issue being if the Plaintiff’s claim is a form of ‘personal injury’ , whether a requirement to apply to PIAB for pre-authorisation  would render it extensively difficult for the plaintiff to exercise his rights to compensation for non-material damage under the GDPR in breach of the EU Directive. The Supreme Court judgement delves into the statutory and common law definition of the term ‘personal injury’. This judgment highlights that in relation to the various statutory definitions: ‘it is easy to lose sight of the fact that while the definition of ‘personal injury’ used in these statutes is comprehensive, in none of them does it purport to be of general application. It is instead used for various distinct, related but quite specific purposes.’ The Court also refers to the case of Clark v O’Gorman where it was held that a personal injury action is not a claim in which standalone damages are sought to compensate for distress and anxiety. Mr. Justice Brian Murray held that the Plaintiff’s claim in negligence was misconceived as he cannot obtain damages in negligence for mental distress that falls short of a psychiatric injury. However, he held that the Plaintiff had a standalone claim for non-material damage pursuant to the unique claim set out in Section 117 of the Data Protection Acts. He also held that where a plaintiff’s claims are solely for mental distress, upset and anxiety that the plaintiff cannot expect anything other than very, very modest awards. Takeaway for Employers: The Supreme Court’s Decision in Dillon v Irish Life Assurance Plc is important to note where claims for emotional upset, distress, or anxiety without a recognised psychiatric illness do not qualify as personal injury but also illustrates where such claims may still proceed in respect of certain statutory obligations. While this decision specifically related to the breach of GDPR and the remedy provided for in that legislation, it will be interesting to see if the decision will be applied to other statutory remedies where there is non-material damage such as under the Protected Disclosures Acts or under the Safety, Health and Welfare at Work Acts. Link: https://www2.courts.ie/view/judgments/56f5ca9a-b457-4cc2-b47d-430d66ec47d2/94687f75-3845-4430-be87-9699d49b9460/2025_IESC_37.pdf/pdf Authors – Anne O’Connell & Abigail Ansell 18 September 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

In Emily Williams v Board of Management, St Tola’s National School (ADJ-00055461) the Complainant alleged she was discriminated against by reason of her family status by the Respondent primary school. The Complainant submitted a complaint to the Workplace Relations Commission (“WRC”) under the Employment Equality Acts 1998-2015 (the “Acts”). Facts: The Complainant was employed by the Respondent as a teacher on a series of fixed-term contracts from September 2022 to August 2024. The Complainant felt she was treated less favourably than others when being considered for teaching roles because she was on maternity leave. The discrimination complaint submitted by the Complainant focused on two main incidents: The awarding of a Contract of Indefinite Duration (“CID”) to her colleague – “Comparator A” Not being appointed to a further fixed-term position available within the Respondent school - losing out to “Comparator B” and her treatment during this interview process In February 2024 a permanent vacancy arose in the Respondent school due to a resignation while the Complainant was on maternity leave. At the time the Complainant and another teacher “Comparator A” were eligible for a CID, both having worked at the school for two years on fixed-term contracts. The Complainant submitted to the WRC that the Principal of the Respondent awarded the CID to Comparator A without informing her (she found out through a colleague) and without any transparency regarding the decision-making process. The Complainant made inquiries and was later informed that the CID had been awarded based on the highest score from a previous interview round in 2023. The Principal of the Respondent gave evidence to the WRC that this was school policy. On 18th June 2024 the Complainant interviewed for a fixed-term position in the school for the new school year. At the end of the interview, the Principal congratulated her on the birth of her baby daughter and stated “you really should enjoy every moment at home with the baby”. The Complainant gave evidence to the WRC that she felt it was unprofessional to discuss her maternity leave in front of the interview panel and that the comment seemed to hint at her not receiving the position. The Respondent gave evidence to the WRC that the interview was over when the comment was made and all questions had already been asked and answered. The following day the Complainant was informed that her application was unsuccessful. The Complainant requested her interview scores from the Respondent following contact with her union, the Irish National Teachers’ Organisation (“INTO”). The Complainant told the WRC that she learned from INTO that the school could “roll-over” a teacher’s contract in their third year and there was no requirement to hold another fixed-term position interview. The Complainant believed that the Board of Management decided to proceed with interviews for the fixed-term position, and score her unfairly, because of the possibility that she might have decided to extend her maternity leave if offered the position. When there was still no reply to her request for her interview scores by 27th August, INTO suggested to the Complainant that she contact the Principal and let her know that she was uncomfortable with the two incidents referred to above, and ask if she would take a call from INTO. The Principal emailed the Complainant later that day re-iterating that the CID was awarded to the candidate with the highest score from the previous interview round. On 29th August the Principal emailed the Complainant her interview scores, however there were no interview notes attached. Decision: The Adjudicator, Patricia Owens, firstly addressed a preliminary matter regarding statutory time limits. In normal course, complaints under the Acts must be submitted to the WRC within 6 months of the alleged contravention (with an extension of a further 6 months possible in limited circumstances if there was reasonable cause for the delay). The Complainant submitted her complaint to the WRC in November 2024, and the most recent occurrence of alleged discrimination was the interview for the fixed-term position on 18th June 2024. While the CID was awarded in May 2024 and the Respondent argued that a claim relating to that matter was out of time, the Adjudicator found that a continuum of discrimination existed that began with the awarding of the CID and culminated in the Complainant not being appointed to a fixed term position for the new school year. On that basis, the Adjudicator was satisfied that all of the issues forming part of the Complainant’s claim were within time. The Adjudicator referred to settled law that, in the first instance, the onus is on the employee to establish an arguable case of discrimination before the Respondent is required to rebut it. The Adjudicator was satisfied that the Complainant had discharged this evidential burden. The Adjudicator noted in particular the Complainant’s arguments that she was treated unfavourably compared to her comparators not on maternity leave; that Comparator A, who was not as experienced as her, was awarded the CID based on a previous interview process in 2023; and that Comparator B, who had only previously provided ad hoc cover to the school, was appointed to the fixed-term position. After proceeding to hear the substantive case, the Adjudicator found that the complaint of discrimination was well-founded and ordered the Respondent to pay €85,000 in compensation for the discrimination. The Adjudicator concluded that no satisfactory explanation was given for the decision to award the CID based on the order of merit in the previous fixed-term competition in 2023. The Adjudicator noted that the equal entitlement of the Complainant to be considered for the CID was disregarded even to the point that the Respondent believed she had no entitlement to be informed a viable CID was available. The Respondent’s explanation that it was school policy was rejected by the Adjudicator, as it emerged during the course of the hearing that no such policy existed. The Adjudicator had regard to the Department of Education and Skills’ Circular No. 44/2019. This circular provides that reference may be made to a panel of suitable applicants being set up for future vacancies when advertising teaching positions, but that “permanent vacancies may not be filled from a panel established following interviews for a fixed-term post”. In addition, the circular provided that where a panel is compiled, it is applicable for any vacancies filled “within four months”. The Adjudicator noted that the CID was a permanent vacancy, and that the appointment for the CID in 2024 based on the 2023 panel was well outside the four-month timeline prescribed in the circular. In relation to the fixed-term position, the Adjudicator concluded that the Respondent failed to provide any evidence (such as interview notes) to explain how the interview panel arrived at their conclusions for the interview scores. The Adjudicator considered the absence of such evidence to be “fatal” to the Respondent’s defence of the inference of discrimination. In relation to the qualifications category, both the Complainant and Comparator B received the same score. However, in nearly all other categories the members of the interview panel scored the Complainant lower. In particular, the Adjudicator noted that the Complainant, who had 2 years’ experience working in the school, was marked lower in relation to both “Classroom Management & Administration” and “Awareness of School Procedures” than a candidate who had provided ad hoc cover. One of the marking sheets for the Complainant also had a reduction in one of the scores which was not adequately explained at the hearing. In relation to the comments made by the Principal, the Adjudicator found that the Respondent had failed to demonstrate that these comments did not have an adverse effect on the interview outcome. The Adjudicator appreciated that it may well have been the Principal’s intention to pass on her well wishes, however the interview had not yet closed when the comments were made. Even if the questioning had concluded, the scoring had not yet been completed, and the Adjudicator found it “entirely inappropriate” that comments relating to the Complainant’s family status were addressed to her during the interview. Takeaway for Employers: This WRC decision illustrates the evidential burden that employers bear in employment equality cases. While the initial burden is on the employee to successfully make out a prima facie case, the employer is then required to provide evidence to rebut the inference of discrimination. The absence of interview notes in this case was fatal to the school’s defence, particularly where the identified comparator appeared to have less experience than the Complainant. It is important that all documentation from recruitment processes is retained so that employers can demonstrate their appointments are based on objective criteria and not based on any of the nine discriminatory grounds. Link - https://www.workplacerelations.ie/en/cases/2025/august/adj-00055461.html Authors – Tara Kelly and Jenny Wakely 30th September 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2 www.aocsolicitors.ie

The Workplace Relations Commission (“WRC”) and the Labour Court (the “Court”) each recently issued a decision on the subject of mandatory retirement ages in Denise Murphy v Royal College of Surgeons in Ireland (ADJ-00046831) (WRC decision) and Deepak fasteners (Shannon) Ltd v Liam Murphy (EDA2545) (Labour Court decision). The decisions demonstrate the requirement for employers to ensure that they have in place appropriate contractual provisions and retirement policies. Denise Murphy v Royal College of Surgeons in Ireland (ADJ-00046831) Facts: The Complainant in this case had worked for the Respondent on a contract of indefinite duration from May 2012. She worked as a secretary to the Respondent’s Pathology Department. The Complainant’s contract of employment stated that the normal retirement age would be the Complainant’s 65th birthday. The Complainant turned 65 on 24th February 2022. She was aware of the mandatory retirement age and the Respondent’s retirement age policy, but she wanted to continue working. Before her 65th birthday, the Complainant spoke to the Head of the Department who discussed the matter with the Complainant’s manager. The Respondent allowed the Complainant to continue working for an additional one-year period on an exceptional basis, and she was provided with a fixed term contract and worked for another year. The Complainant’s request for a further extension was refused and she was officially retired on 23rd February 2023. The Complainant learned that other staff members had been permitted to continue working beyond the age of 66. She viewed this as diluting the “exceptional” nature of her one-year extension, and she lodged a discrimination complaint in the WRC. The Respondent accepted that, at the date of hearing, 27 employees were working who were over the age of 66. However, the Respondent’s position was that those employees worked in technical and academic roles that were more difficult to replace. Decision: The Adjudicator, Penelope McGrath, noted that the Complainant’s contract of employment “very clearly stipulated” that the normal retirement age would be the Complainant’s 65th birthday. She also referred to what she described as a “well-advertised and formal” in-house policy that was in force throughout the Complainant’s employment. This policy clearly described the reasons or justifications for the mandatory retirement age. The Adjudicator referred to the Respondent’s decision to facilitate a one-year extension for the Complainant, which was objectively justified by the Respondent as a measure that would greatly assist a smooth transition during a period of change that the Department of Pathology was experiencing at that time. The paperwork also demonstrated that there was a clear succession plan for the transfer of the Complainant’s role to her replacement in advance of the end of her extended period of employment. The Adjudicator noted that the one-year extension provided to the Complainant was in line with the in-house retirement age policy which specifically permits such extensions as follows: “In exceptional circumstances RCSI reserves the right to engage with employees, if agreeable, post-retirement age. This will be done on a case-by-case basis, subject to business needs and each case will be objectively justified on its own merits. The furtherance of the employment relationship will be subject to the terms and conditions as set out in the contract for which the post-retirement age engagement is required and agreed. Any contracts issued to staff employed beyond 65 will be temporary, time bound, subject to specific objective justification and will note the changes in eligibility to staff benefits, including, pension provision and insurance cover. All staff have the right to retire at 65. Subject to agreement by both parties, RCSI continues to reserve the right to retain the services of strategically important employees and retain the expertise of experienced staff in specialist roles e.g. Surgeon Prosectors. The extension of these roles will be objectively justified.” The Adjudicator further noted the clear language used in the Complainant’s fixed term/extension contract in respect of the objective justification for the issuance of a fixed-term contract rather than a contract of indefinite duration, and the fact that the contract was an “exceptional post-retirement one-year fixed term contract to support the department of Pathology.” In response to the Complainant’s argument that the Respondent’s implementation of the retirement policy was selective and discriminatory, given that a significant number of employees were permitted to work beyond 66, the Adjudicator found that these “derogations” from the implementation of the retirement policy did not serve to “de-legitimise” or “undermine” the retirement policy. She accepted the Respondent’s argument that it needed to retain specialist skills and technical know-how and that certain staff could not be easily replaced. The Adjudicator found that the Complainant had not been discriminated against by the Respondent when it terminated her employment in February 2023. Deepak fasteners (Shannon) Ltd v Liam Murphy (EDA2545) Facts: This case was an appeal by Mr Murphy (the “Complainant”) from a decision of the WRC that his discrimination complaint was not well-founded. In this case, the Complainant had been employed as a General Operative from February 1977 until he was compulsorily retired on his 65th birthday on 27th February 2022. He had asked to be allowed to continue working after that date, but the Respondent did not agree. The Complainant gave evidence that he was still “fit and competent” to carry out his work and that he had not been asked to undertake a risk assessment or occupational health assessment before he was compulsorily retired. The Respondent’s CEO gave evidence about the business needing to “pivot in a new direction”, making it necessary for it to hire new employees with specific skills. He accepted that no meeting had taken place with the Complainant in respect of his application for longer working, and conceded that he could not remember having reviewed the Code of Practice on Longer Working. He also accepted that another employee had been allowed to continue working after his 65th birthday. Decision: The Court found that there was no mandatory retirement provision in the Complainant’s contract of employment. It also found that there was no evidence that the Respondent had ever given “serious consideration” to putting in place a “contemporary” retirement policy in line with the Code of Practice on Longer Working and the “evolution of employment equality legislation”. The Court criticised the Respondent for having had “no regard whatsoever” to the Code of Practice and for not having engaged “in any meaningful way” with the Complainant’s request to work beyond 65. The Court noted that had been no performance, health and safety or concentration issues with the Complainant. The Court concluded that the Respondent discriminated against the Complainant in compulsorily retiring him, noting that there was “no objective justification that the Respondent can rely on in support of its decision of [sic] compulsorily retire the Complainant simply because he reached the age of 65.” The Complainant was awarded €18,000 for the effects of the discrimination, equivalent to approximately six months’ gross pay. Takeaway for Employers: The WRC and Labour Court have issued a number of recent decisions on the issue of mandatory retirement (links to a sample of some of our recent articles on mandatory retirement, post-retirement fixed term contracts, and the Code of Practice on Longer Working are below). Recent decisions have not always been consistent in approach including, for example, in respect of the importance placed on the Code of Practice for Longer Working (referred to by the Labour Court in Deepak decision, but not by the WRC in the Denise Murphy decision). However, what remains clear from WRC and Labour Court decisions is the need for employers to ensure that if they intend to rely upon a mandatory retirement age, it needs to be clearly set out in their contracts of employment, and appropriate retirement policies ought to be in place and adhered to. Employers need to ensure that they properly engage with any requests for longer working and, while some decisions do not specifically refer to the Code of Practice, employers should have due regard to the Code, and it ought to be reflected in their retirement policies. Employers should always be cognisant of the requirement to objectively justify any decision to compulsorily retire an employee/permit an employee to work beyond its mandatory retirement age, and to communicate the objective justification to employees. This area of employment law is a complex one and legal advice is advisable.  Links: WRC decision: https://workplacerelations.ie/en/cases/2025/july/adj-00046831.html Labour Court decision: https://workplacerelations.ie/en/cases/2025/august/eda2545.html Links to some previous articles on mandatory retirement, post-retirement fixed term contracts, and the Code of Practice on Longer Working: Recent Caselaw: Mandatory Retirement Ages and Post-Retirement Fixed Term Contracts: https://aocsolicitors.ie/recent-caselaw-mandatory-retirement-ages-and-post-retirement-fixed-term-contracts/ WRC Find it is Not Unlawful for Employer to Enforce Mandatory Retirement Age, Despite Shortcomings in Following Code of Practice: https://aocsolicitors.ie/wrc-find-it-is-not-unlawful-for-employer-to-enforce-mandatory-retirement-age-despite-shortcomings-in-following-code-of-practice/ Author - Jenny Wakely 31st July 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

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

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

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

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

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