Matheson


Employment Law Podcast Series

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Bryan Dunne, Head of Employment at Matheson, discusses the latest developments in Irish employment law. The podcasts are a key resource in keeping up to date for HR practitioners, employment lawyers and international employers with employees in Ireland. You can download the podcasts from the Matheson Soundcloud or iTunes pages.

Episode 37: Are Employees no Longer Entitled to Legal Representation at Internal Disciplinary Hearings? 

In this episode of the Matheson Employment Law Podcast Series, Bryan Dunne reviews Irish Rail and McKelvey, a case from the Irish Court of Appeal that was handed down at the end of October. This case is a critical development in Irish employment law and a very positive outcome for employers as it overturned the controversial Lyons decision from 2017, which had suggested that employees should be entitled to legal representation at all internal disciplinary hearings. You can also read a separate article on this decision by Matheson employment partner Russell Rochford and associate Yvonne Bouton. 

Episode 36: All it Takes to Successfully Defend a Discrimination Claim in Ireland

In this episode of the Matheson Employment Law Podcast Series, Bryan Dunne reviews a recent decision from the Irish Workplace Relations Commission in a race discrimination claim brought under the Employment Equality Acts. This particular case is a very strong example of how an employer can successfully defend a discrimination claim and it will show that an employer doesn’t necessarily have to go to significant lengths to succeed in this type of defence.

Episode 35: Should Employers be Concerned by the Industrial Relations (Amendment) Act 2015? Three Recent Decisions

In this episode of the Matheson Employment Law Podcast Series, Bryan Dunne considers three recent decisions of the Irish Labour Court under the Industrial Relations (Amendment) Act, 2015, the legislation which protects employees where their employer refuses to recognise their trade union. We consider what these decisions mean for you as employers and ask whether this legislation, and the threat of a trade union seeking an order for improved terms from the Labour Court, is still something employers need to be concerned about? This episode also includes an update on draft legislation relating to gender pay gap reporting and increased parental leave.

Episode 34: What do US Employers Worry About in Managing Irish Employment Law?

In this episode, Bryan Dunne talks with Geraldine Carr, a senior associate in the Matheson Employment, Pensions and Benefits Group about her six-month secondment in the Matheson Californian offices. Geraldine discusses some of the key trends coming up in US workplaces which we can expect to see finding their way into Irish workplaces very soon and also some of the main issues that US employers struggle with when it comes to dealing with Irish employment law. Bryan also considers a case previously reviewed in Spring 2017 on the question of when notice of termination of employment takes effect, whether it is when issued, when received or when read. This question has now recently been decided by the UK Supreme Court, hopefully once and for all.

Episode 33: Putting the GDPR into HR

In this special episode, we take a detailed look at the HR aspects of GDPR and what employers should already be doing to prepare for the new GDPR regime. This episode is a recording of a recent panel discussion held for clients between Niall Pelly and Russell Rochford, partners in the Matheson Employment, Pensions and Benefits Group and Anne-Marie Bohan, a leading data protection specialist and head of the Matheson Technology and Innovation Group.  If you are interested in further practical advice on preparing for GDPR, you can also review our Countdown to GDPR series in which we will be giving further guidance on dealing with some of these issues in practice as we approach 25 May next.

Episode 32: How Far Does Reasonable Accommodation go in Addressing Disability in the Workforce?

Bryan Dunne covers a recent decision of the Irish Court of Appeal, Nano Nagle and Marie Daly.  This case dealt with the very practical question of just how far an employer is required to go to provide reasonable accommodation to an employee with a disability in the workplace and at what point an employer can lawfully conclude that an employee’s disability is such that they are no longer capable of performing the role that they have been hired for.

Episode 31: Key Employment Themes for 2018

In this special episode, Matheson employment partners Bryan Dunne and Russell Rochford look at the areas that they predict will be the most active for employment lawyers and HR directors in 2018.  This ranges from GDPR and the impact that this will have on dealing with data access requests in particular to the proposed gender pay gap legislation, which has now been given priority in the Government’s most recent legislative schedule. Russell and Bryan also look at predictions and growing trends in relation to increased trade union activity against non-union employers and the impact that expected legislation on mandatory retirement ages will have in the work place, amongst other key themes.

Episode 30: What Does the Mediation Act 2017 Mean for Employers and are Fathers Entitled to Paid Paternity Leave if Mothers Receive Paid Maternity Leave?

Bryan Dunne discusses two separate issues in this podcast. The first is the recent decision of an Irish adjudication officer which dealt with the question as to whether an employer is allowed to refuse to pay paternity leave when at the same time paying generous maternity leave.  The second issue is the recently enacted Mediation Act 2017 and the issues and opportunities that it presents for employers under Irish law.

Episode 29: The Lyons Judgment and Fair Procedures - Just What is Fair Enough and How to Work Within These Rules?

Bryan Dunne leads a panel discussion with Tom Mallon BL, Cathy O'Grady, International Senior HR Director at Groupon, Desmond Ryan BL and Niall Pelly, Matheson Partner on Lyons v Longford and Westmeath Education and Training Board.  This was a decision that held that an employee was entitled to full fair procedures at an internal disciplinary investigation, including the right to cross examine witnesses and to legal representation.

Episode 28: Can an Employer Take Previously Expired Disciplinary Warnings into Account in a Subsequent Disciplinary Hearing if for a Similar Type of Offence?

Bryan Dunne discusses a recent decision of the Irish Labour Court, a decision that was handed down at the end of July just past and this is the case of DHL and Michael Coughlan.  This case deals with an issue that comes up quite frequently in practice and that’s the question as to whether an employer can take into account previous disciplinary warnings that have expired in a subsequent disciplinary hearing, if the conduct relates to a similar type of offence.

Episode 27: Lyons v Longford Westmeath Education and Training Board - Are Employees Now Entitled to Full Fair Procedures at the Preliminary Investigation Stage? Part 2

Bryan Dunne revisits the High Court's decision in Lyons v Longford Westmeath Education and Training Board, a decision that has been extremely controversial over the past number of weeks for both employment lawyers and HR directors. This is because, in that case, Judge Eagar in the High Court seemed to suggest 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.

Since that decision was issued on 7 May last, two new decisions of the High Court have issued from Judge McDermott in the last six weeks and both of those decisions, depending on how you interpret the Lyons decision, appear to contradict the key point. They both deal with the same question as to the extent to which an employee is entitled to fair procedures at the preliminary investigation stage. However, they both conclude 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.

Episode 26: Lyons v Longford Westmeath Education and Training Board - Are Employees Now Entitled to Full Fair Procedures at the Preliminary Investigation Stage? Part 1

In this latest episode of the Matheson Employment Law Podcast Series, Bryan discusses a decision of the High Court from May of this year, which held that employees are entitled to both the right to cross-examine witnesses and the right to legal representation at the preliminary investigation stage of a disciplinary process.  Based on earlier case law on the issue of fair procedures, as also identified in this case, this may not be seen as such a striking legal development, if at the stage in the disciplinary process where the employer is deciding whether the allegations are proven and if so, what sanction should be applied.  However, in terms of actual HR and employment law current practice, it is a very significant development to extend this degree of fair procedures to the preliminary investigation stage, if the investigation is no more than a fact gathering exercise to decide if the matter should go to a disciplinary hearing.  This would require the majority of employers to adapt their practices to allow for both cross-examination and legal representation at investigation meetings, as well as potentially other aspects of fair procedures also.

Bryan also discusses updates on mandatory retirement ages and the positive impact for employers in the Supreme Court decision on what constitutes bullying in Ruffley v Board of Management of St Anne’s School.

Episode 25: How will the General Data Protection Regulation Impact Employers in Ireland?

In the latest episode of the Matheson Employment Law Podcast Series, Bryan Dunne is joined by Anne-Marie Bohan, a Partner in the Matheson Data Protection Practice Group, to discuss the implications for employers and Irish employment law of the new General Data Protection Regulation.  With just under one year to go until implementation of the Regulation, Bryan and Anne-Marie discuss the steps employers should be taking now to prepare for this.

Episode 24: When Does Notice of Termination Take Effect - When it is Delivered, Received or Read?

In the latest episode of the Matheson Employment Law Podcast Series, Bryan Dunne takes a detailed look at a recent decision of the UK Court of Appeal from March 2017. This decision dealt with the question of the point at which notice of termination becomes effective. Bryan also highlights two other important employment law developments, firstly a proposal to significantly limit or abolish mandatory retirement ages and secondly the recent decision of the Court of Justice of the European Union upholding an employer’s right to prohibit employees wearing religious symbolism in the workplace.

Episode 23: Is Gross Negligence also Gross Misconduct?

Bryan Dunne looks at a recent decision of the UK Court of Appeal which finally settles the question of whether or not an employee can be dismissed for gross misconduct simply by reason of an error, as opposed to dishonesty or wilful wrongdoing. Bryan also highlights two important legislative updates: the recently published Mediation Bill and the Pensions Amendment Bill 2017. Finally, Bryan reviews another weird and wonderful case from around the world, this time a home grown case from the Employment Appeals Tribunal Division in Galway.

Episode 22 - Top Five Employment Law Trends for 2017

Bryan and Niall Pelly look at their predictions for the top five employment law trends for 2017. These five trends include: continued changes to how employers apply suspension and run suspension meetings post Reilly v BOI; a substantial increase in the level of whistleblowing claims; a further rise in the level of trade union activity and number of recognition campaigns in the private sector; a continued rise in the number of dismissals leading to High Court injunction proceedings; and broader use of no fault terminations to manage the risk of employment injunctions. The review also considers some observations on running hearings before the Workplace Relations Commission and workplace audits from the Commission's inspectors.

Episode 21 - Penalisation Claims under the Irish Whistleblowing Legislation

Bryan reviews a recent decision of the Irish Labour Court. This case is the first to consider a penalisation claim under the Protected Disclosure Act 2014, the Irish statutory whistleblower code. Bryan also takes a look at a separate case decided recently by Cork Circuit Court, in which an employee obtained the second statutory injunction issued under the legislation to date to prevent her employer for dismissing her for making a protected disclosure. These two cases, together with the case reviewed in episode 20 below, which also dealt with a statutory injunction for a whistleblower, indicate that the age of whistleblowing claims has well and truly arrived.

Episode 20 - How can an employee actually stop their employer from dismissing them under the Irish whistleblowing legislation?

Bryan reviews the first successful application under the Irish whistleblowing legislation for an interim relief order. This is essentially an order to stop an employer from implementing a dismissal where it is alleged the dismissal is connected to the protected disclosure. This is the first time a Court has actually granted such an order, so it is a very significant development in the development of this legislation. It is expected that following the media attention around this order, highlighting just how effective they can be in severance negotiations, that there will be a change in employees’ attitudes to the use of this legislation. Since this recording, in recent days the first penalisation decision under this legislation has also now been handed down, which will be covered in the next podcast.

Episode 19 - What happens when an employer refuses to engage in collective bargaining? A review of the Labour Court’s first recommendation under the revised Industrial Relations (Amendment) Act, 2015.

Bryan reviews the Labour Court’s first recommendation under the Industrial Relations (Amendment) Act, 2015.  This is a very significant development for non-union employers under legislation designed to encourage trade union recognition and collective bargaining.  It seeks to achieve this by allowing the Labour Court to set an employer’s pay and benefit rates directly with the union where the employer does not engage in collective bargaining, and subject to certain other pre-conditions being met.

Episode 18 - “Vicarious liability" – Can an employer actually be held liable for an employee that seriously assaults a customer?

Bryan Dunne discusses a recent decision of the UK Supreme Court which deals with the issue of vicarious liability, the legal principle under which an employer can be held responsible for the unauthorised acts of its employees.  In this case, the employer was held responsible for an extreme act of unprovoked violence by a petrol pump attendant against a customer.  This case illustrates just how far reaching this principle can be.  The review also considers the recent expert report into the Clerys Department Store closure and some significant changes it has recommended to the Irish collective redundancy legislation to prevent similar scenarios.

Episode 17 - When is a discretionary bonus really a discretionary bonus?

Bryan Dunne discusses a recent decision of the Irish High Court which dealt with the thorny question of when a discretionary bonus is not actually discretionary after all. In this case, as it turned out, the employer was not as free as it thought to hold back staff bonuses.

 Episode 16 - Find out the risks to an employer when a preliminary investigation goes too far

Bryan Dunne discusses a recent decision of the Irish High Court which illustrates the risks to an employer when a preliminary investigation goes too far. The key issue for employers, as highlighted in this case, is the risk of triggering a much higher standard of fair procedures and due process in a preliminary investigation. This can occur where the investigator seeks to reach conclusions of fact at the preliminary investigation stage, rather than simply deciding whether there is a sufficient basis on the facts as alleged or evidence gathered to warrant the matter being put to a disciplinary hearing. The practical difficulty that arises where this occurs is that the employer may not have allowed the degree of fair procedures that the type of conclusion ultimately reached requires, and at that point it is too late to adapt to this.

Episode 15 -  Find out why the Irish Court of Appeal overturned one of the largest bullying and harassment awards to date? 

Bryan Dunne discusses a recent decision of the Irish Court of Appeal that overturned an earlier 2014 High Court decision, which awarded a special needs assistant over a quarter of a million Euro. The issue before the Court of Appeal was whether the actions of the employer actually amounted to bullying and if they did, whether there was a sufficient causal link between the bullying and the psychiatric injury suffered. The decision is definitely a welcome outcome for employers in that it establishes a higher standard for plaintiffs to meet in bullying and harassment claims.

Episode 14 - Recent EAT ruling focuses on managing long term absence in the workforce 

Bryan Dunne discusses a recent Employment Appeals Tribunal (“EAT”) ruling regarding an employee on long term absence. The EAT’s ruling gives some interesting insight into how the Irish courts might expect employers to manage an employee’s return to work and is also a rare example of an employer exercising a strategy of admitting the dismissal was unfair at the outset in order to limit the case to an assessment of loss of earnings only. The discussion considers when this might be an effective strategy and the risks to be considered in using it.

Episode 13 -  What is the role of HR in a disciplinary process?
Bryan Dunne reviews the ruling in the recent Ramphal v Department of Transport case in episode 13 in our Employment Law Podcast series. This case from the UK called into question the role of the Human Resources department in providing support and guidance to a decision maker in a disciplinary process. The ruling has implications for HR teams across the board as they are inevitably called upon to provide their expertise in disciplinary matters and advises that the conclusions in a disciplinary process should be reached independently by the appointed decision maker.

 

 

Episode 12 - August 2015

In episode 12 of our Employment Law Podcast Series, Bryan reviews the recent decision of the Irish High Court in Reilly v Bank of Ireland, in which an employee was reinstated to his position six years after he had actually been dismissed.  This judgment turned on a number of points, though one of the key issues from an employer’s perspective is how it may now restrict an employer’s ability to suspend an employee pending a disciplinary investigation.  These are issues already being raised by employees’ representatives since this decision came out, so HR professionals and employers need to be aware of the implications of this decision and how to deal with them.

 

Episode 11 - Workplace Relations Act -  June 2015

In the latest episode in the Employment Law podcast series Bryan takes an in-depth look at the Workplace Relations Act, designed to fundamentally overhaul and streamline the existing employment law claim system. The podcast highlights some of the key positives, negatives and likely trends for large employers following on from these changes. Since this recording, it has now been confirmed that this legislation will commence on 1 October next.

Episode 10 - April 2015

In episode 10 of our Employment Law podcast series Bryan Dunne considers the extent  to which Irish compromise agreements are actually enforceable against employees following two recent decisions from the courts on this issue.

Episode 9 - March 2015

In episode 9 of our Employment Law podcast series Bryan Dunne reviews a recent decision in which an employee's High Court claim for stress related personal injuries was dismissed on the basis that the employee had already issued proceedings before the Equality Tribunal on the same facts. He also examines another weird and wonderful case from around the world; this time he asks whether running from the immigration authorities could be considered performing duties in the course of your employment.

Episode 8 – February 2015

In this episode Bryan looks at a recent decision of the EAT in which the employer successfully defended a decision to dismiss a security guard following an incident with a customer. The decision gives some useful insights into the practicalities of running an internal investigation and hearing, and the extent to which the Tribunal accepts that not all investigations are perfect. He also considered a recent UK decision requiring employers to include overtime in calculating holiday pay and what this means for employers in Ireland.  Finally, he takes a look at another weird and wonderful employment law case from around the world.

Episode 7 - December 2014

In this episode of the employment law podcast series, Bryan looks at a recent decision of the Employment Appeal Tribunal (EAT) which held that it was excessive to dismiss an employee for accessing her manager’s email and printing off a number of emails without permission, and considers the issues involved in reaching this conclusion.

Episode 6 - November 2014

In this episode of the employment law podcast series, Bryan Dunne and Deirdre Cummins discuss the implications for employers and trustees of two recent Commercial Court decisions involving Irish pension schemes, namely the Element Six litigation (Greene & Ors v Coady & Ors) and the Omega Pharma case (Holloway & Others v Damianus BV & Others). The Omega Pharma judgment is currently under appeal.

Episode 5 - October 2014

In this episode Bryan takes an in-depth look at a recent High Court decision where an attempt to enforce a 24 month restrictive covenant period was made by an employer.  He also covers a weird and wonderful case from Ireland and a brief overview of some recent developments in the employment law world.

Episode 4 - September 2014

In this podcast Bryan looks at recent developments in the world of employment law and examines two High Court cases. The first relates to a case where an employee was awarded over €250,000 in a bullying and harassment claim. This is one of the highest awards given by the High Court to date in an employment stress claim. The second case is an unusual one where the court upheld the right of the employer to dismiss the employee because he was not the ‘right-fit’ for the company.  Finally, Bryan looks at some weird and wonderful employment law cases from around the world.

Episode 3 - June 2014

In this episode, Bryan discusses two recent High Court cases. The first case considers whether or not an employee should be allowed to cross examine witnesses at a disciplinary hearing. The second case is a classic case of bullying and harassment and again illustrates just how time consuming they can become for employers, but is a useful example of the High Court taking a very objective approach in dismissing the claim. Bryan also discusses other recent developments in the world of employment law.

Episode 2 – February 2014

In this episode, Bryan looks at three new cases. The first is a recent decision from the Supreme Court which emphasises the growing expectation on employers to intervene in workplace disputes before they escalate out of hand. The second case looks at the question of whether an employer has to allow an employee bring external representation to internal meetings. The third is a useful constructive dismissal case, highlighting what not to do in an employment investigation.

Episode 1 - December 2013

Bryan looks at two recent employment law cases. The first concerns an Employment Appeals Tribunal decision which found that a reduction in pay is not the same as a deduction from pay and so not subject to the same restrictions. The second case deals with a successful defence of a constructive dismissals claim, which provides a useful insight into how the tribunal expects employers to deal with employee grievances if they are to win such cases. Bryan will take you through the cases, detailing the evidence sought by the tribunal.

Disclaimer: These podcasts present an overview of the cases and law and do not constitute legal advice. How the law will apply in any particular case will depend on the individual circumstances. Listeners should seek legal advice if any of the matters discussed are relevant to them.



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