Looking back on 2017, we saw some interesting developments across the many areas of employment law. Worldwide, 2017 marked the rise of the #MeToo movement and related sexual harassment claims.In Ireland, 2017 was the year of a controversial High Court decision which suggested that employees are entitled to cross-examine witnesses and legal representation during workplace investigations, a proposal to significantly limit or abolish mandatory retirement ages and a Supreme Court decision raising the threshold for what constitutes workplace bullying under Irish law, amongst many other developments. We look back at our top five most popular briefings and podcasts in this update. Our employment podcast series will be continuing in 2018 with the first update on what we expect to be the main employment law issues this year issuing later this month.
1. Fair procedures in disciplinary investigations - The High Court decision in Lyons v Longford and Westmeath Education and Training Board was one of the most important decisions of 2017 with potentially far-reaching implications regarding the process to be followed in workplace investigations. The decision in that case suggested that an employee is entitled to the full range of fair procedures at the disciplinary investigation stage, including the right to cross-examine witnesses and the right to be legally represented. Two subsequent decisions of the High Court appear to contradict this decision as they concluded that this right is confined to the formal disciplinary hearing stage; the point at which a decision is made in relation to the disciplinary matter. Listen to Bryan Dunne’s podcasts (episodes 26 and 27 and a panel discussion in episode 29) on these issues here and / or read an article on the matter here.
2. Refusal of injunction in a case involving a challenge to the fairness of a redundancy process - In a development that will be of some relief for employers, in Kearney v Byrne Wallace, the High Court has affirmed that it does not have jurisdiction to grant an injunction in circumstances where an employee claims to have been unfairly selected for redundancy. Unless an employee can demonstrate some other potential breach of contract by their employer, an application for an injunction based solely on an allegedly unfair dismissal on grounds of redundancy is unlikely to succeed. Read the full article here.
3. Higher threshold for bullying under Irish law? - The Supreme Court decision in Ruffley v The Board of Management of St Anne's School provides some greater clarity on where the threshold lies between workplace conduct that an employee typically finds stressful and upsetting (e.g. disciplinary procedures) and conduct that constitutes bullying. The decision appears to substantially limit the type of conduct that has, to this point, been considered as potentially constituting bullying and is likely to be welcomed by employers. In that case, Charleton J in the Supreme Court stated that “the test for bullying is of necessity to be set very high”. Read the full article here.
4. Mediation Act 2017 - 2017 saw the enactment of legislation to facilitate the increased use of mediation as a means of resolving disputes, rather than matters going before the Irish civil courts. Mediation has clear advantages over civil litigation in resolving a dispute and, while it remains to be seen how employers can use the Act to control where workplace disputes are heard, it is anticipated that mediation will become an even more commonplace feature for employers in dealing with workplace disputes. Listen to episode 30 of the Employment Podcast Series here.
5. Reliance on previously expired disciplinary warnings and the introduction of new allegations at a disciplinary hearing - the Labour Court decision in DHL V Michael Coughlan was one of the more remarkable determinations against an employer in 2017, not least because the employee was awarded the full two years' gross remuneration for his unfair dismissal. The Labour Court heavily criticised the employer, DHL, for the manner in which it conducted its disciplinary process on a number of grounds. Its judgment provides clear and useful guidance to employers on certain issues that regularly crop up in disciplinary processes including that employers should not take into account previously expired disciplinary warnings at subsequent hearings or introduce new allegations at the disciplinary hearing and subsequent stages. Listen to episode 24 of the Employment Podcast Series to find out more.