Redmond on Dismissal Law [3 ed.] 9781526507211

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A_Dismissal_Law_3rd_edn.book Page i Thursday, November 9, 2017 1:06 PM

Redmond on Dismissal Law Third Edition

A_Dismissal_Law_3rd_edn.book Page ii Thursday, November 9, 2017 1:06 PM

In memory of Dr Mary Redmond, with gratitude

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Redmond on Dismissal Law

Third Edition

by

DR DESMOND RYAN LLB (Dub), BCL, MA (Oxon), PhD (Dub) Barrister-at-Law

D U B L I N • LON DON • E D I N BU RG H • N E W DE L H I • N E W YOR K • SY DN EY

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BLOOMSBURY PROFESSIONAL Bloomsbury Publishing Plc

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Author has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers.

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Preface

I wish to acknowledge with gratitude the great support and encouragement of the late Dr Mary Redmond in generously inviting me to take on the authorship of this work. It is an honour to do so. The Unfair Dismissals Act, introduced 40 years ago to offset the harshness and inflexibility of the common law, has, in the words of Dr Redmond in the Preface to the previous edition of this book in 2007, ‘revolutionised the legal relationship of employment’. In the decade since that edition, several further profound changes have taken place. The Workplace Relations Act 2015 has radically overhauled the system for adjudicating upon unfair dismissal claims and the impact of that legislation is reflected throughout this edition. The introduction of the Protected Disclosures Act 2014 is another landmark development since the previous edition, and a new chapter is devoted to this dynamic and evolving area. There have also been very significant developments in the common law relating to dismissal in the last decade. The interaction between common law and statute in dismissal is one of the most challenging questions facing contemporary employment law and decisions such as Edwards v Chesterfield [2011] UKSC 58, [2012] 2 AC 22, to give just one example, reveal how sharply divided approaches to this interaction can be. Case law has also continued to grow steadily in the sphere of employment injunctions, and the gig economy poses fresh challenges for the legal characterisation of the employment relationship. The above are just some examples of the remarkable pace at which dismissal law continues to develop. Many more are identified and analysed throughout this new edition. I am very grateful to many institutions and individuals who have provided crucial support for this project. I thank my colleagues and students at the School of Law in Trinity College Dublin for providing such a dynamic and stimulating working environment. I am grateful to the Faculty of Arts, Humanities and Social Sciences Benefaction Fund for its generous grant support. Much of my research and writing was carried out whilst a Visiting Fellow at Exeter College, Oxford from October 2016 until July 2017, and as a Visiting Scholar at the Centre for Employment Law and Labour Relations, University of Melbourne Law School during July and August 2017. Both environments were wonderfully supportive and conducive to comparative research. I thank the Chief Justice, The Honourable Mr Justice Frank Clarke, for kindly agreeing to launch this edition.

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Redmond on Dismissal Law

I was fortunate to benefit from the help of three excellent research assistants: Rachael Evans, Solicitor, Dáire McCormack-George, Trinity College Dublin, and Tara Murphy BL, to each of whom I am very grateful. I am also very grateful to a number of practitioners for generously providing me with resources such as unreported judgments and commentaries, and for their generous willingness to discuss various employment law topics with me that helped me better understand dismissal law and its application in practice. I wish to thank in particular Rachel Barry, Solicitor, Marguerite Bolger SC, Claire Bruton BL (who also kindly read and helpfully commented upon some draft material), Helen Callanan SC, Mark Connaughton SC, Niamh Fennelly, Solicitor, Brendan Kirwan BL, Cathy Maguire BL, Tom Mallon BL, Sile O’Kelly BL, Oisin Quinn SC, and Ray Ryan BL. I also wish to thank Amy Hayes and her colleagues at Bloomsbury Professional for their ongoing patience and for their support of this project through to its completion. Most of all, I thank with love my parents, Kevin Ryan and the late Maureen Ryan. The law is as stated as of 1 October 2017. Desmond Ryan 6 November 2017.

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Contents

Preface .......................................................................................................................... v Contents ...................................................................................................................... vii Table of Cases .......................................................................................................... xvii Table of Legislation ................................................................................................lxxiii

Chapter 1

Historical Development of the Law’s Protection against Wrongful Termination of Employment

Introduction: the nature of the present work ................................................................ 3 A. Historical evolution of statute and of common law on termination of employment in Ireland .................................................................... 6 (1) Statute law ................................................................................................... 6 (2) The relation of master and servant at common law ................................... 18 (3) The common law action for wrongful dismissal ....................................... 22 B. Individual employment rights and organised activity in Ireland .......................... 23

Chapter 2

Wrongful Dismissal

A. The evolving role of contract ................................................................................ 29 B. The Constitution ................................................................................................... 30 C. Overarching principle? ......................................................................................... 31

Chapter 3

Identifying the Nature of Employment

A. Prevalence of contract ........................................................................................... 35 B. Employees ............................................................................................................. 37 Mutuality of obligation ...................................................................................... 41 C. Office-holders ....................................................................................................... 47 Respect and co-operation in the exercise of office ............................................ 49 Incidental and consequential powers ................................................................. 49 D. Persons whose employment is regulated by statute .............................................. 53

Chapter 4

Termination with or without Notice

A. Due notice of termination ..................................................................................... 59 (1) At common law ......................................................................................... 59 (2) Contracts apparently incapable of termination by notice .......................... 65 (3) Termination by mutual consent ................................................................. 69 (4) Statutory notice .......................................................................................... 69 (5) Employee resignation ................................................................................ 70

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Redmond on Dismissal Law (6) Statutory waiver or pay in lieu ...................................................................71 (7) PILON ........................................................................................................71 B. Lawful summary dismissal ....................................................................................72 (1) Grounds existing at the time of dismissal ..................................................72 (2) Grounds discovered subsequent to dismissal .............................................75

Chapter 5 A. B. C. D. E. F.

Wrongful Dismissal: Limitations in the Contract

Limitations in the contract: general .......................................................................77 Breach of procedural limitations ...........................................................................77 Breach of an implied term of fairness ...................................................................78 Breach of substantive limitations ..........................................................................82 Breach of implied terms ........................................................................................83 The mutual obligation of trust and confidence ......................................................84 (1) Characteristics ............................................................................................85 (2) The implied obligation of mutual trust and confidence and the interaction between common law and statute regarding termination of employment ........................................................................86 (3) Malik ..........................................................................................................87 (4) Johnson ......................................................................................................88 (5) Ireland follows Malik and – less unambiguously – Johnson .....................90 (5) Eastwood ....................................................................................................92 (6) Edwards v Chesterfield ..............................................................................95 (7) Rejection of implied term in Australian law: Commonwealth Bank of Australia v Barker ........................................................................97 (8) Overarching term? ......................................................................................98

Chapter 6

Effect of Breach on Concept of Termination

A. Automatic or elective theory ...............................................................................101 B. Elective theory in Ireland ....................................................................................110

Chapter 7

Constitutional Justice

Introduction............................................................................................................... 113 A. Natural and constitutional justice ........................................................................113 B. Audi alteram partem ............................................................................................116 (1) Right to be informed of the charge/given adequate notice of an inquiry .................................................................................................117 (2) Oral hearing .............................................................................................123 (3) Representation ..........................................................................................124 (4) Confronting one’s accusers ......................................................................127 (5) Rights respected even if the plaintiff’s conduct is unmeritorious ............130 (6) Courts generally will not interfere ...........................................................131 (7) No such thing as an open and shut case ...................................................131

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Contents (8) Tribunal or disciplinary panel receiving legal advice ............................. 132 (9) Civil standard of proof ............................................................................. 133 C. Nemo iudex in causa sua .................................................................................... 134 Probationers ..................................................................................................... 139

Chapter 8

The Constitution and Dismissal

A. Constitutional actions inter partes ...................................................................... 141 B. Infringement of constitutional provisions and dismissal .................................... 142 (1) Freedom of association ............................................................................ 144 (2) Implied right to work ............................................................................... 148 (3) Implied right to basic fairness of procedures .......................................... 149 (4) Implied right to privacy ........................................................................... 150 (5) Implied right to a good name ................................................................... 150 (6) Implied right to a speedy trial/not unreasonable length of suspension ................................................................................................ 150 C. Remedies under the Constitution ........................................................................ 156 (1) Damages .................................................................................................. 156 (2) Other remedies ......................................................................................... 160 D. The Constitution and the European Convention on Human Rights .................... 162

Chapter 9

Remedies: Judicial Review

A. Order 84 .............................................................................................................. 165 Other preliminary matters of relevance in an employment law context ...................................................................................................... 167 B. Judicially reviewing dismissal-related decisions ................................................ 167 Becker and subsequent case law ...................................................................... 172 C. Remedies ............................................................................................................. 175 (1) Declaratory relief ..................................................................................... 175 (2) Damages as an alternative remedy .......................................................... 176 (3) Damages as an additional remedy ........................................................... 176 (4) Quantum of damages ............................................................................... 177 (5) Certiorari ................................................................................................. 180 (6) Injunctions ............................................................................................... 181 D. Legitimate expectation ........................................................................................ 181 E. Double jeopardy .................................................................................................. 187

Chapter 10

Specific Performance, Injunctions and Declarations

Introduction .............................................................................................................. 193 A. Historical refusal of equitable remedies ............................................................. 194 B. Injunctions: overview ......................................................................................... 195 C. Interlocutory injunctions: principles ................................................................... 196

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Redmond on Dismissal Law D. Exceptions to the general rule emerge in the UK ................................................199 E. Developing jurisprudence in Ireland ...................................................................203 Common characteristics where injunctions granted ................................................. 204 (1) Alleged breach of a substantive limitation regarding termination in the contract ...........................................................................................204 (2) Dismissal of office-holders with contracts of employment .....................206 (3) Alleged breach of a procedural limitation in the contract and/or of implied term of fairness .......................................................................208 Common characteristics where injunctions have not been granted....................................................................................................................... 213 (1) Investigations/reports on the facts ...........................................................214 (2) The relationship between statutory unfair dismissal and the employment injunction ......................................................................217 F. Declaratory relief .................................................................................................225

Chapter 11

Damages arising from Wrongful Dismissal

A. General principles on which damages are awarded ............................................229 B. Specific cases ......................................................................................................239 (1) Breach of substantive limitations .............................................................239 (2) Breach of procedural limitations ..............................................................240 C. Damages and the elective theory of repudiatory breach .....................................243 D. Distress regarding manner of dismissal and injury to reputation ........................245 (1) Malik undermines Addis ..........................................................................249 (2) Johnson ....................................................................................................251 (3) Repudiatory act and constructive dismissal .............................................252 E. Pensions and perquisites ......................................................................................252 F. Liability to income tax ........................................................................................255 G. Social welfare benefits ........................................................................................257 H. Income continuance .............................................................................................258 I. The mitigation of loss ..........................................................................................260 J. Termination of secondment agreement ...............................................................262

Chapter 12

Statutory Unfair Dismissal

A. The need for legislation: background influences ................................................267 B. The Unfair Dismissals Act 1977 .........................................................................270 (1) Basic principles ........................................................................................270 (2) The contract of employment ....................................................................273

Chapter 13

Reasonableness and the Employer’s Role under the Unfair Dismissals Act

A. The employer’s reason for dismissal ...................................................................275 (1) Identifying the employer’s reason ............................................................275 (2) Evidence of the employer’s reason ..........................................................277 x

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Contents B. Reasonableness of the employer’s decision to dismiss ...................................... 279 (1) Procedural v substantive justice .............................................................. 281 (2) Reasonableness of the employer’s conclusion in the light of all the circumstances ..................................................................................... 283 C. The function of the Workplace Relations Commission: the band of reasonable responses test ................................................................. 284 D. The employer’s disciplinary procedures ............................................................. 286 (1) The corrective approach .......................................................................... 287 (2) The constructive approach ....................................................................... 289 (3) General principles .................................................................................... 290 (4) Warnings .................................................................................................. 297 (5) Inquiry and investigation ......................................................................... 300 (6) Appeal ...................................................................................................... 308 (7) Disciplinary procedures for non-union employees .................................. 311 (8) Disciplinary procedures for probationary employees .............................. 312 E. The effect of the European Convention on Human Rights Act 2003 ................. 312

Chapter 14

Involvement in Proceedings; Age; Pregnancy and Maternity and Paternity

Introduction .............................................................................................................. 319 A. Involvement in civil or criminal proceedings ..................................................... 319 B. Age ...................................................................................................................... 320 C. Protective leave entitlements .............................................................................. 320 (1) General .................................................................................................... 320 (2) The impact of national and European anti-discrimination law ............... 321 (3) Pregnancy ................................................................................................ 324 (4) Maternity ................................................................................................. 325 (5) Right to return to work and leave-related issues potentially pertaining to dismissal claims ................................................................. 327 (6) The effect of a more favourable agreement ............................................. 330

Chapter 15

Capability, Competence or Qualifications, Contravention of Statute

Introduction .............................................................................................................. 333 A. Capability ............................................................................................................ 334 (1) Ill health ................................................................................................... 334 (2) Alcoholism .............................................................................................. 341 B. Competence ........................................................................................................ 343 C. Qualifications ...................................................................................................... 345 D. Contravention of statute ...................................................................................... 346

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Redmond on Dismissal Law

Chapter 16

Conduct

A. General ................................................................................................................349 (1) The common law ......................................................................................351 (2) ‘Last straw’ dismissals .............................................................................352 B. Dishonesty ...........................................................................................................352 (1) Employee admission ................................................................................353 (2) Employer suspicions regarding more than one employee .......................354 (3) Secret profits/false expenses ....................................................................355 (4) Crimes outside employment ....................................................................355 (5) Social welfare fraud .................................................................................360 C. Refusal to comply with an order/perform a task .................................................363 D. Bad language .......................................................................................................366 E. Physical injury to person or property, including horseplay .................................367 F. Harassment or bullying .......................................................................................370 G. Absenteeism ........................................................................................................372 H. Alcohol-related conduct and drugs ......................................................................373 I. Double-jobbing/loyalty and fidelity ....................................................................375 (1) Second job ................................................................................................375 (2) Acting in competition with employer ......................................................376 (3) Confidential information ..........................................................................377 J. Grooming/personal hygiene ................................................................................378 K. Poor attitude ........................................................................................................378 L. Internet/email/social media abuse .......................................................................379 M. Employer’s rules ..................................................................................................383

Chapter 17 A. B. C. D. E. F. G. H.

Redundancy

Meaning ...............................................................................................................387 Need for proof .....................................................................................................388 ‘Wholly or mainly’ ..............................................................................................390 Strike or industrial action ....................................................................................392 Reorganisation .....................................................................................................393 Redeployment ......................................................................................................394 Change of employment status .............................................................................394 Fairness ................................................................................................................395

Chapter 18

Other Substantial Grounds

A. Introduction .........................................................................................................399 (1) Employer’s interests .................................................................................399 (2) Third party pressure .................................................................................402 (3) Reorganisations ........................................................................................405

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Contents B. Transfer of undertaking ...................................................................................... 406 (1) General .................................................................................................... 406 (2) Regulation 5 ............................................................................................. 408 (3) Employee objection to transfer ................................................................ 410 (4) Jurisdiction of the Workplace Relations Commission and the civil courts ......................................................................................... 411 (5) ‘Transfer’– early uncertainty ................................................................... 412 (6) Change of contractors .............................................................................. 413 (7) Collective Agreements ............................................................................ 417 (8) Definition of ‘transfer’ in Regulations .................................................... 418 (9) Transferor and transferee ......................................................................... 419 (10) Termination of employment before the transfer date .............................. 419 (11) Contracting out of TUPE rights ............................................................... 420 (12) Economic, technical or organisational reasons for dismissal (ETO) ....................................................................................................... 421 (13) Transfer of part of business or of group .................................................. 424 (14) Post-transfer changes in terms and conditions of employment ............... 425

Chapter 19

Constructive Dismissal

A. Definition ............................................................................................................ 431 B. Two tests ............................................................................................................. 432 (1) The contract test ...................................................................................... 434 (2) The reasonableness test ........................................................................... 438 (3) Flexibility, mobility clauses .................................................................... 440 (4) Miscellaneous .......................................................................................... 442 C. Employment equality .......................................................................................... 444 D. Transfer of undertakings ..................................................................................... 445

Chapter 20

Protected Disclosures

A. Background ......................................................................................................... 447 (1) Overall relevance of whistleblowing in Irish employment law ............... 447 (2) The legal basis for the protection of whistleblowers in Ireland .............. 447 B. The scope of persons protected under the 2014 Act ........................................... 448 C. Key provisions of the 2014 Act concerning dismissal ....................................... 449 (1) Three key amendments to the Unfair Dismissals Acts ............................ 449 (2) Robust protections evidenced in the emerging case law of the Workplace Relations Commission and Labour Court ............................. 452 D. Robust Protection against Penalisation ............................................................... 453 E. Distinctive new remedies available under the 2014 Act ..................................... 455 (1) Introduction of a new tort ........................................................................ 455 (2) Availability of urgent interim relief in the Circuit Court ........................ 455

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Redmond on Dismissal Law (3) Effect of interim reliefs on ultimate compensatory award in the context of unfair dismissal within the meaning of the amendments introduced by the 2014 Act .................................................456

Chapter 21

Collective Aspects of Unfair Dismissal

A. The individualisation of collective issues in unfair dismissals legislation ..........459 B. The Industrial Relations Act 1990 and dismissal ................................................460 C. Express limitations on managerial prerogative ...................................................462 (1) Trade union membership or activities ......................................................462 (2) Unfair selection for redundancy ...............................................................469 (3) Dismissal for participating in strike or other industrial action ................480

Chapter 22

Fact and Date of Dismissal

A. The fact of dismissal ............................................................................................489 (1) Definition of dismissal .............................................................................489 (2) Doubt as to dismissal ...............................................................................493 (3) Examples of termination which may or may not constitute dismissal ...................................................................................................498 B. Date of dismissal .................................................................................................506 (1) Notice .......................................................................................................507 (2) Holidays ...................................................................................................508 (3) Internal appeals ........................................................................................508 (4) Date of dismissal and elective/automatic theory ......................................510 (5) Clarification of correct legal position where claimant lodges claim prematurely ....................................................................................510

Chapter 23

Express Qualifications and Exclusions

A. The parties ...........................................................................................................513 (1) Employee .................................................................................................513 (2) Office-holder ............................................................................................516 (3) Employer ..................................................................................................516 B. Continuity of service ...........................................................................................519 (1) Length of service and hours normally worked .........................................519 (2) The First Schedule ...................................................................................521 (3) Temporary employees on successive fixed-term contracts ......................522 (4) Dismissal followed by re-employment within 26 weeks .........................523 (5) Transfer of undertaking ............................................................................524 (6) Illegality ...................................................................................................525 C. Exclusions ...........................................................................................................527 (1) Types of employee ...................................................................................527 (2) Types of contract ......................................................................................533 D. Jurisdiction ..........................................................................................................541

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Contents

Chapter 24

Remedies for Unfair Dismissal

A. Introduction: proprietary right to employment ................................................... 543 B. Primary remedies under the 1977 Act ................................................................ 544 (1) The Constitution ...................................................................................... 544 (2) Reinstatement and re-engagement defined .............................................. 545 (3) No right to primary remedies .................................................................. 548 C. Compensation ..................................................................................................... 552 (1) Broad approach of the Workplace Relations Commission ...................... 552 (2) Compensation described .......................................................................... 553 D. Natural justice ..................................................................................................... 570 E. Insolvency of employer and recourse to social insurance fund .......................... 571

Chapter 25

Procedural Aspects of Unfair Dismissal

A. B. C. D. E.

General ................................................................................................................ 573 Adjudication officers .......................................................................................... 573 The Labour Court ................................................................................................ 574 Alternative remedies ........................................................................................... 577 Application: time limit ........................................................................................ 579 (1) Appeals from and enforcement of decisions of the Workplace Relations Commission ............................................................................. 580 (2) Notice of Appeal to the Labour Court – extension in exceptional circumstances .......................................................................................... 580 (3) Right of Appeal to High Court on point of law ....................................... 582 (4) Mixed questions of fact and law .............................................................. 583 (5) Whether arguments not pursued below can be advanced on High Court point of law appeal ............................................................... 583 (6) Enforcement of decisions of the Workplace Relations Commission and the Labour Court .......................................................... 584 F. Workplace relations complaint form .................................................................. 584 G. Written submissions and relevant documentation .............................................. 585 H. Adjournments ...................................................................................................... 586 I. Non-attendance at hearings ................................................................................. 587 J. Settlements .......................................................................................................... 588 K. Enforcement ........................................................................................................ 589 L. In camera hearing/immunity ............................................................................... 590 M. Fees ..................................................................................................................... 592 N. Judicial review .................................................................................................... 592 Index ........................................................................................................................ 595

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Table of Cases

A A la Francaise Ltd v Monaghan UD 13/1977 ............................................ 21.15, 24.35 A v B [2003] IRLR 405 ......................................................................................... 16.08 AA v The Medical Council [2002] 3 IR 1 ............................................................... 9.79 Abbott Ireland Ltd v Henderson UD 233/1986 ..................................................... 25.59 Abdullah v Tesco Ireland plc UD 1034/2014 ................................. 13.11, 13.28, 16.04 Abels v Bedrijfsverenigning voor de Metaalindustrie en de Electotechnische Industrie [1985] ECR 469 ..................................................................... 18.39, 22.54 Abernethy v Mott Hay & Anderson [1974] ICR 323 ............................................ 13.03 Abler v Sodexho MM Catering GmbH [2003] ECR I-14023 ......... 18.28, 18.45–18.49 Abler v Sodexho MM Catering Gesellschaft [2004] IRLR 168 ........................... 18.46 Abrahams v Herbert Reiach Ltd [1922] 1 KB 477 ............................................... 11.12 Abrahams v Performing Rights Society Ltd [1995] IRLR 486 ............................... 4.27 Abrahamson v Law Society of Ireland [1996] 2 ILRM 481 ................................... 9.62 Accounts Manager v A Provider of Payroll and HR Support ADJ-00002369 (20 March 2017) ..................................................................... 24.07 Accounts Officer v A Public Body ADJ-00002707 (7 July 2017) ........................ 24.26 Achbita Case C–188/15.......................................................................................... 18.10 Acklam v Sentinel Insurance Co Ltd [1959] 2 Lloyd’s Rep 683 ............................ 5.16 Adams v Farrell UD 64/1993 ................................................................................ 16.15 Adderly v Dixon (1824) 1 Simons & Stuart 607, 611 ........................................... 10.04 Addis v Gramophone Co Ltd [1909] AC 488 ................................... 9.39, 11.46, 11.50 Adesokan v Sainsbury’s Supermarkets Ltd [2017] ICR 590 .......... 16.05, 16.45–16.46 Adigun v Equality Tribunal [2015] IESC 91 ........................................... 23.110, 25.43 Adin v Sedco Forex International Resources Ltd [1997] IRLR 280 ....................... 4.13 ............................................................................................................... 11.71, 15.10 Adlum v Longford Textile Ltd UD 353/1993 ............................................ 15.15–15.18 Aer Rianta v Greene UD 598/1987 ....................................................................... 16.30 Affleck v Newcastle Mind [1999] IRLR 405 ........................................................ 23.14 African Association Ltd and Allen, Re [1910] 1 KB 396 ....................................... 4.05 AG Bracey Ltd v Iles [1973] IRLR 210 ..................................................... 24.62, 24.72 Ahearne v Tipperary SR County Council UD 664/1997 ...................................... 23.58 Ahern v Ahern Fabrics Ltd UD 74/1977 .................................................... 24.52, 24.56 Air Foyle Ltd v Crosby-Clarke [2002] IRLR 483 ................................................. 18.91 Aira Pascual C–509/14 [2015] EUECJ C–509/14, [2016] IRLR 156 ................... 18.39 Albion Automative Ltd v Walker [2002] EWCA Civ 946 ................................... 21.41 Alemo Herron [2013] ICR 1116 ........................................................................... 18.52 Alexander v Brigden Enterprises Ltd [2006] IRLR 422 ....................................... 13.24 Alexander v Standard Telephones & Cables Ltd [1990] IRLR 55 ....................... 10.27 Ali v Southwark London Borough Council [1988] ICR 567 ................................ 10.24 Allen v Dunnes Stores Ltd [1996] ELR 203 ......................................................... 16.72 Allen v Independent Newspapers (Ireland) Ltd [2002] ELR 84 ................ 24.42, 24.70

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Redmond on Dismissal Law Allen v National Australia Group Europe Ltd [2004] IRLR 847 .................4.20, 22.04 Allen v Wellman International Ltd UD 152/1979 .................................................13.74 Alliance Paper Group plc v Prestwich [1996] IRLR 25 ......................................16.114 Allied Irish Banks Ltd v Lupton (1984) 3 JISSL 107 ............................................19.18 Allied Irish Banks plc v Purcell [2012] ELR 189 ..................................................19.15 Allman v Bus Éireann UD 472/2005 .....................................................................15.07 Allman v Hoddler UD 576/1986 ............................................................................15.07 Allman v Minister for Justice [2003] ELR 7 ..................................................7.63, 8.21 Al-Mishab v Milton Keynes NHS Foundation Trust [2015] EWHC 3096 (QB) ............................................................................................10.02 Alstom Ireland Ltd v A Worker CD 07/413 ..........................................................16.82 Amalgamated Investments v Texas Commerce [1982] QB 84 ...............................9.54 Ambrose v Serono Ltd [2007] ELR 184 ................................................................23.80 Anderson and McAlonie v Dalkeith Engineering Ltd (In Receivership) [1984] IRLR 429 ..............................................................................................18.66 Anderson v Pringle of Scotland Ltd [1998] IRLR 64, [1998] SLT 754 ................................................................................................10.27 Anglian Home Improvements Ltd v Kelly [2005] ICR 242 ..................................13.28 Aparau v Iceland Frozen Foods plc [1996] IRLR 119, [2000] ICR 341 .................................................................................................19.10 Apex Fire Protection Ltd v Murtagh [1993] ELR 201 ........................................16.113 Archbold Freigtage v Wilson [1974] IRLR 10 ......................................................24.76 Archbold v ESB UD 642/2003 ..............................................................................23.06 Ardmore Studios (Ireland) Ltd v Lynch [1965] IR 1 ...............................................1.42 Arklow Pottery Ltd v O’Reilly UD 241/1979 .......................................................13.10 Asda Stores Ltd v Thomson [2002] IRLR 245 ......................................................13.59 Asha Abdullahi Adan v Embassy of The Republic of Kenya UD 2163/ 2011 .......................................................................................25.63–25.64 Ashmore v O’Hara UD 60/1991 ............................................................................16.48 Aslam and Farrar v Uber BV (28 October 2016) UK Employment Tribunal .........3.02 Aslam v Uber BV [2016] EW Misc B68 (ET) (28 October 2016) ..........................3.08 ASLEF v Brady [2006] IRLR 576 (EAT) .............................................................13.12 ASLEF v United Kingdom (2007) 45 EHRR 34 ........................................8.53, 13.130 Aspden v Webbs Poultry & Meat Group (Holdings) Ltd [1996] IRLR 521 ............................................................................................ 4.13–4.16, 11.71, 15.10 Associated Tyre Specialists (Eastern) Ltd v Waterhouse [1976] IRLR 386 .........19.11 Attorney General v Paperlink Ltd [1984] ILRM 373 .....................................1.05, 8.14 Attorney General v X [1992] 1 IR 1, [1992] ILRM 401 .........................................1.04 Au Pair v A Respondent ADJ-00001976 (4 November 2016) ................................3.02 Auguste Noel v Curtis [1990] IRLR 326 ...............................................................13.78 Austin Morris v Peter Keogh (Upholsters) Ltd UD 947/1984 ...............................16.42 Autoclenz Ltd v Belcher [2011] UKSC 41 ..............................................................3.04 AWG Group [2006] 1 All ER 967 ...........................................................................7.60 Ayanlowo v IRC [1975] IRLR 253 .......................................................................13.58 Aylward v Lawler Products BV UD 1117/1993 ....................................................15.15 Aziz v Midland Health Board [1995] ILRM 48, [1995] ELR 49 .................7.33, 13.70

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Table of Cases B B & I Steam Packet Co Ltd v Branigan [1958] IR 29 ........................................... 21.06 Bărbulescu v Romania App No 61496/08 (12 January 2016), ECtHR ...... 8.52, 13.128 Bărbulescu v Romania Appl No 61496/08, (5 September 2017) GC [2017] ECHR 754 ......................................................... 5.21, 13.128–13.129, 16.95 BAC Ltd v Austin [1978] IRLR 332 ..................................................................... 19.11 Bainbridge v Circuit Foil UK Ltd [1997] IRLR 305 .................................... 4.13, 11.71 Balfour Beatty Networks Ltd v Wilax [2006] IRLR 258 ...................................... 18.46 Ball v Coggs (1710) 1 Bro Parl Cas 140 ........................................... 1.33, 10.04–10.06 Banco Ambrosiano SpA v Ansbacher & Co Ltd [1987] ILRM 669 ....................... 7.58 Banco de Portugal v Waterlow & Sons [1932] AC 452 ........................................ 11.80 Bane v Garda Representative Association [1997] 2 IR 449 .................................... 9.19 Bank of Ireland v Reilly (2015) 12 IELJ 72 ........................................8.27–8.31, 13.34 Bannon v Employment Appeals Tribunal [1993] 1 IR 500 .................................. 18.42 Barber v Manchester Regional Hospital Board [1958] 1 WLR 181 ..................... 11.30 Bariamis v John Stephen of London Ltd [1975] IRLR 237 .................................. 19.11 Barley v Royal Dublin Golf Club UD 151/1978 ................................................... 24.01 Barr and Fallon v Blood Transfusion Service Board UD 313 and 341/1986 .......................................................................................................... 23.29 Barr v Marley Extrusions (Ire) Ltd UD 78/1978 ................................................... 24.64 Barry and French v Irish Linen Service Ltd UD 905 and 906/1986 ..................... 16.29 Barry v Gardeur (Ireland) Ltd [1991] ELR 31 ...................................................... 16.59 Barry v Newbridge Silverware Ltd UD 1517/2012 .............................................. 22.74 Barry-Ralph v HSE [2016] ELR 268 .................................................................... 19.03 Barthorpe v Exeter Diocesan Board of Finance [1979] ICR 900 ............................ 3.38 Bartley v Rathgordon Enterprises Ltd [1997] ELR 41 .......................................... 14.22 Bartley v Royal Dublin Golf Club UD 151/1978 .................................................. 13.74 Barton v Newsfast Freight Ltd UD 1269/2005 ..................................................... 17.27 Basnett in (1976) 5 ILJ 180 ................................................................................... 11.65 Bass Leisure Ltd v Thomas [1994] IRLR 104 ...................................................... 19.10 Bastow v Anderson & Co UD 314/1978 ............................................................... 13.71 Bateman v British Leyland UK Ltd [1974] IRLR 101, [1974] ICR 403, KIR 284, 9 ITR 266 ......................................................................................... 24.24 Bateman v Gillrock Ltd t/a Centra Quick Shop IRN 08 22/02/2006 .................... 18.89 Bates Farms & Dairy Ltd v Scott [1976] IRLR 214 ............................................. 13.10 Bates v Model Bakery Ltd [1992] ELR 193 ................................... 17.15, 21.78, 21.85 Baumler (UK) Ltd, Re [2005] BCC 181 ............................................................... 16.19 Baxendale and Meade v British Fuels Ltd [1996] IRLR 541 ................................ 18.82 BBC v Beckett [1983] IRLR 43 ............................................................................ 19.21 BBC v Dixon [1979] 2 All ER 112 ......................................................................... 4.20 BBC v Ioannou [1975] ICR 267 ................................................................... 4.20, 22.04 Beach v Reed Corrugated Cases Ltd [1956] 1 WLR 807 .......................... 11.59, 11.67 Beary v Revenue Commissioners [2011] ELR 137 .............................................. 23.27 Beattie v Parmenter (1889) 5 TLR 396 ................................................................... 4.28 Beatty v Bayside Supermarket Ltd UD 142/1987 ................................................. 19.14 Beauty Therapist v A Beauty Salon ADJ-00004584 (20 July 2017) .................... 16.96

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Redmond on Dismissal Law Becker v Board of Management of St Dominic’s Secondary School Cabra [2005] IEHC 122, [2005] IEHC 169, [2005] 1 IR 561 .............................9.10, 9.24 .................................................................................................. 10.33, 10.52m 15.06 Becker v Duggan [2005] IEHC 376, [2006] ELR 21 ...........................7.38, 7.48, 9.28 Beckham v Drake (1849) 2 HLC 579 ....................................................................11.79 Beckmann v Dynamco Whicheloe Macfarlane Ltd [2002] ECR 1–4893 .............18.29 Becton Dickinson & Co Ltd v Lee [1973] IR 1 ......................... 5.18, 8.11, 8.13, 21.06 ................................................................................................... 21.23, 21.61, 21.82 Beeston v Collyer (1827) 2 C & P 607, 4 Bing 309 ................................................4.05 Beirne v Commissioner of An Garda Síochána [1993] ILRM 1 .............................9.15 Belford v Doyle UD 286/1978 ...............................................................................13.74 Bell v DEVTEC Ltd UD 340/1988 ........................................................................15.38 Benitime Ltd v Onit [2017] ELR 157 ....................................................................19.03 Bennett and Marron v Minister for Justice and Equality [2017] IEHC 261 ........................................................................................3.28, 7.14 Bennett and Murphy v Hartman Ireland Ltd UD 506 and 507/1992 .....................22.34 Benning v British Airways ET2703528/2010 ........................................................16.98 Bentley v An Post UD 954/1988 ...........................................................................15.12 Berber v Dunnes Stores Ltd [2006] IEHC 327, [2009] IESC 10, [2009] ELR 61 ..................................... 4.06, 5.35, 5.43, 13.19, 16.09, 19.05, 19.07 Berg and Busschers v Besselsen [1988] ECR 25 ........................................18.38, 18.59 Bergin v Bus Átha Cliath UD 61/1987 ..................................................................16.64 Bergin v Galway Clinic Doughiska Ltd [2008] 2 IR 205 ...........................10.10–10.12 Berriman v Delabole Slate Ltd [1985] ICR 546 ....................................................18.66 Berrisford v Woodward Schools (Midland Division) Ltd [1991] ICR 564 ...........18.05 Bessenden Properties Ltd v Corness [1973] IRLR 338 ..............................21.41, 24.72 Betts v Brintel Helicopters Ltd and KLM Era Helicopters (UK) Ltd [1996] IRLR 45 ................................................................................................18.36 Bex v Securicor Transport Ltd [1972] IRLR 68 ....................................................19.16 BH v A Named Company (DEC E2006/026) ........................................................23.14 Bhandari v Advocates Committee [1956] 1 WLR 1442 ..........................................7.56 Bhasin v Hrynew [2014] SCC 71 ............................................................................5.68 Birch v (1) Nuneaton and Bedworth Borough Council and (2) Sports and Leisure Management Ltd [1995] IRLR 518 ..............................................18.45 Birch v University of Liverpool [1985] ICR 470 ..................................................22.32 Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics (1969) 409 F 2d 718 (2d Cir 1969) ....................................................................8.33 BL Cars Ltd v Lewis [1983] IRLR 58 ...................................................................21.56 Blackman v The Post Office [1974] IRLR 46 .......................................................15.41 Blackrock College v Browne [2013] IEHC 607 ....................................................25.35 Blair (Eamonn) v Coverall Courier Services Ltd (UD 1263/2013) .......................15.09 Blascaod Teo v Commissioners of Public Works (No 4) [2003] 3 IR 565 .............8.42 Bligh v Stobart Ireland Driver Services Ltd (TU29/2011, TU30/2011, TU31/2011) ......................................................................................................18.41 Bligh v Stobart Ireland Driver Services Ltd [2015] ELR 32 .................................18.50 Bliss v South East Thames Regional Health Authority [1987] ICR 700 ......................................................................................11.46, 11.50

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Table of Cases Blue Star Ship Management Ltd v Williams [1979] IRLR 16 .............................. 15.42 Boal v IMED Ireland Ltd UD 327/1994 ............................................................... 23.72 Boast v Firth (1868) LR 4CP 1 ............................................................................... 4.04 Bodziachowska v Douglas & Kaldi @ Dundrum Ltd [2013] ELR 108 ................ 19.03 Boland v Dublin Corporation [1946] IR 88 ............................................................ 4.35 Boland v Phoenix Shannon plc [1997] ELR 113 .................................................. 10.38 Bold v Brough, Nicholson & Hall Ltd [1964] 1 WLR 201 ........................ 11.59, 11.67 Bolger v Showerings (Ireland) Ltd [1990] ELR 184 ................................. 15.01, 15.12 Bollard v Ridgeway UD 1018/1988 ...................................................................... 14.14 Bolshaw v The Pentemps Group Ltd (No 10536/79) ............................................ 23.06 Bolton Roadways Ltd v Edwards [1987] IRLR 392 ............................................. 21.91 Borgan v Two Wheels Ltd UD 563/1991 ............................................................. 24.13 Bork P International A/S v Foreningen of Arbejdsledere I Danmark [1989] IRLR 41 ................................................................................................ 18.60 Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 ....................... 11.30 Boston Deep Sea Fishing and Ice Co Ltd v Ansell (1888) 39 Ch D 339 ....... 4.33–4.35 Botzen v Rotterdamsche Droogdok Maatschappij BV [1985] ECR 520 .............. 22.54 Botzen v Rotterdamsche Droogdok Maatschappij BV [1986] 2 CMLR 50 ............................................................................... 18.70–18.75 Boucher v Irish Productivity Centre UD 882, 969, 970 and 1005/1992 ....................................................................... 17.01, 17.25, 21.35, 21.45 Bougnaoui Case C–157/15 ..................................................................................... 18.10 Boulger v Irish Rail UD 771/1993 ........................................................................ 13.65 Boulton & Paul Ltd v Arnold [1994] IRLR 532 ................................................... 22.29 Bourke v Victor Collins Enterprises Ltd [1993] ELR 37 ...................................... 19.10 Bourton v Narcea Ltd and Anglo Irish Beef Processors UD 186/1994 ................ 23.06 Bowater v Northwest London Hospitals NHS Trust [2011] 331 .......................... 13.28 Boyd v Fitt (1863) 14 ICLR 43 ............................................................................. 11.01 Boylan v United Parcel Service of Ireland Ltd UD464/2011 ............................... 24.18 Boyle v An Post [2015] IEHC 589 .................................................. 10.17, 10.78, 18.02 Boyle v Dom O’Donnell UD 324/2015, MN 160/2015 ........................................ 21.20 Boyle v EOC [1998] IRLR 717 (ECJ) .................................................................. 14.08 Boyle v Marathon Petroleum (Ireland) Ltd [1995] ELR 200 ................................ 15.18 Boyo v Lambeth London Borough Council [1994] ICR 72 ......................... 6.14, 11.31 ............................................................................................................... 11.42, 22.06 Boys and Girls Welfare Society v McDonald [1996] IRLR 126 .......................... 13.16 Brace v Calder [1895] 2 QB 253 ................................................................ 11.81, 22.42 Bracebridge Engineering Ltd v Darby [1990] IRLR 3 .......................................... 19.28 Bradshaw v Murphy [2014] IEHC 146 ................................................................... 2.02 Brady v An Post UD 463/1991 .............................................................................. 16.31 Brady v AO Smith Electric Motors Ireland Ltd UD 647/1990 ............................. 15.11 Brady v Employment Appeals Tribunal and Bohemian Football Club [2015] ELR 1 ........................................................................................ 22.76–22.78 Brady v Minister for Social Protection [2016] IEHC 553 .......................... 24.31, 24.37 Braganza v BP Shipping Ltd [2015] UKSC 17, [2015] 1 WLR 1661 ........... 5.69, 9.65 Branigan v Collins (Godolfin Gallery) UD 28/1977 ............................................. 24.53 Brannigan v O’Connors Jeans Ltd UD 1030/2005 ............................................... 19.20

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Redmond on Dismissal Law Breathnach v Ireland [1989] IR 489 ........................................................................9.75 Bredin v Donegal County Council [1992] ELR 222 .............................................23.58 Breen v Cooper (1869) IR 3 CL 621 (Exch) ............................................................1.37 Breheny v Sealink Stena Line Ltd UD 559/1992 ................................................23.101 Brendan Dunne Ltd v Fitzpatrick [1958] IR 29 .....................................................21.72 Brennan & Ging v Ellward (Lancs) Ltd [1976] IRLR 378 ....................................21.27 Brennan v Bluegas Ltd UD 591/1993 ....................................................................18.03 Brennan v Foley UD 277/1991 ..............................................................................17.22 Brennan v Irish Pride Bakeries [2017] IECA 107, [2017] ELR 181 .....................................................................................22.55, 23.13 Brennan v Mamselle Ltd UD 1028/1995 ...............................................................23.08 Brennan v Religious of the Sacred Heart [2000] ELR 297 ...................................23.20 Brennan v St Luke’s Home Incorporated UD 643/1988 .......................................16.65 Breslin & M’Keever v Gilchrist & Co (1903) 37 ILTR 99 (Co Ct) ........................1.33 Breslin v Dublin Board of Assistance (1956) 90 ILTR 158 ................. 3.42, 4.03, 4.10 Brett v Niall Collins Ltd (In Receivership) [1995] ELR 69 ........... 18.39, 18.79, 23.40 Brewster v Burke and Minister for Labour (1985) 4 JISLL 98 .......... 4.26, 4.33, 16.43 Briggs v Imperial Chemical Industries (1968) 3 ITR 276 .....................................19.17 Briggs v Oates [1990] ICR 473 .............................................................................22.42 Brightwater Selection (Ireland) Ltd v Minister for Social and Family Affairs [2011] IEHC 510 ................................................................................................3.08 Brindle v Smith [1973] ICR 12 ..............................................................................11.17 Briscoe v Lubrizol Ltd [2002] IRLR 607 ...................................................11.73–11.77 Bristol Garage (Brighton) Ltd v Lowen [1979] IRLR 86 ......................................19.11 British Fuels Ltd v Baxendale and Meade [1998] IRLR 706 ................................18.37 British Guiana Credit Corporation v Da Silva [1965] 1 WLR 248 ............11.12, 11.46 British Home Stores Ltd v Burchell [1978] ITR 560 ............................................13.16 British Labour Pump Co Ltd v Byrne [1979] IRLR 94 .........................................13.24 British Leyland UK Ltd v Swift [1981] IRLR 91 .......................................13.28, 19.15 British Transport Commission v Gourley [1956] AC 185 .....................................11.66 Brittains Arborfield Ltd v Van Uden [1977] ICR 211 ...........................................24.45 Brock v An Post UD 57/1987 ...................................................................13.104, 16.32 Brompton v AOC International Ltd [1997] IRLR 639 .................................4.13, 11.71 Broome v Cassel & Co [1972] 2 WLR 645 .............................................................9.40 Broomfield v Minister for Justice (10 April 1981) HC ...........................................7.71 Brophy v ASTG and OKI (Systems) Ireland UD 548/99 ......................................18.75 Brown v McNamara Freight UD 745/1987 ...........................................................16.43 Brown v Rentokil Ltd [1998] IRLR 445 ................................................................14.11 Brown v Southall & Knight [1980] IRLR 130 ......................................................22.07 Brown v Stockton-on-Tees Borough Council [1988] IRLR 263 ................14.17, 21.58 Brown v Board of Management of Rathfarnham Parish NS [2006] IEHC 178 .................................................................................................9.13 Brown v Board of Management of Rathfarnham Parish NS [2008] 1 IR 70 ...........9.24 Brown v Waterloo Regional Board of Commissioners of Police (1982) 136 DLR (3d) 49 ...................................................................................11.49 Browne v Conran UD 380/1992 ............................................................................14.14

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Table of Cases Browne v The Mountview/Blakestown/Hartstown/Community Drugs Team UD 1447/2014 ................................................................................................. 16.27 Brunt and Keenan v Sancerre Ltd t/a Top Security UD 305/1986 ........................ 25.49 BSG Property Services v Tuck [1996] IRLR 134 ................................................. 18.73 Buchanan-Smith v Schleider [1996] IRLR 547 .................................................... 18.70 Buckland v Bournemouth University Higher Education Corporation [2011] QB 323 ...................................................................................... 19.13–19.15 Buckle v Lee Overlay Partners Ltd UD 1509/2003 .............................................. 23.99 Buckley v Disabled Artists Ltd UD 3/1978 .......................................................... 24.52 Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR 412 ................................................ 7.60 Bunyan v United Dominion Trusts (Ireland) Ltd [1982] ILRM 404 ............................................................................. 13.32, 13.64, 24.46, 24.60, 24.76 Burchill v Irish Printed Circuits UD 175/1987 ..................................................... 16.12 Burke v Canadian Embassy UD 523/1988 ............................................................ 25.60 Burke v Garvey [1979] ILRM 232 ................................................................. 3.44, 7.73 Burke v Independent Colleges Ltd [2011] ELR 169 ............................................. 10.38 Burlo v Langley [2006] EWCA Civ 1778, [2007] ICR 390 (CA) ........................ 24.40 Burns v Governor of Castlerea Prison [2009] 3 IR 682 ............................. 13.69–13.69 Burns v Santander UK plc [2011] IRLR 639 .......................................................... 4.04 Burroughs Machines Ltd v Timmoney [1976] IRLR 343 ..................................... 19.11 Burton Allton & Johnson Ltd v Peck [1975] IRLR 87 ......................................... 22.35 Buthelezi v Dlamini and Dlamini and Republic of South Africa [2017] ELR 24 ................................................................................................. 25.63 Bux v Toohey & Co Ltd UD 137/1978 ...................................................... 15.38, 24.51 Byrne v Allied Transport Ltd UD 11/1979 ........................................................... 13.20 Byrne v Australian Airlines Ltd (1994) 120 ALR 274 .............................. 11.30, 11.43 Byrne v Board of Management Scoil Mhichil Naofa UD 757/2002 ..................... 24.51 Byrne v Bradden Design Centre Ltd UD 176/1978 ................................... 13.74, 24.40 Byrne v Corporation of Dún Laoghaire UD 820/1986 .......................................... 15.12 Byrne v Gaelite Signs Ltd UD 699/1987 ............................................................ 13.103 Byrne v Gypsum Industries plc UD 57/1990 ........................................................ 21.57 Byrne v International Contract Cleaners UD 538/1993 ........................................ 16.67 Byrne v Irish Sports Council [2013] IEHC 438 .................................................... 10.69 Byrne v Kevin Laing Ltd UD 82/1991 .................................................................. 16.66 Byrne v Kinematograph Renters’ Society [1958] 1 WLR 762 ............................... 5.10 Byrne v Limerick Steamship Co [1946] IR 138 ........................................... 4.04, 11.63 Byrne v Minister for Defence [2016] IEHC 464 ................................................... 14.23 Byrne v Minister for Defence [2017] IEHC 453 ........................................ 14.23, 19.10 Byrne v North Strand Furniture Ltd UD 12/1980 ................................................. 13.74 Byrne v PJ Hegarty & Sons Ltd UD 126/1978 .......................................... 17.07, 24.56 Byrne v Readibake Ltd [1993] ELR 136 ............................................................... 16.51 Byrne v RHM Foods (Ire) Ltd UD 69/1979 .......................................................... 19.10 Byrne v Safety Solutions Ltd UD 563/2003 ......................................................... 19.14 Byrne v Security Watch (Dublin) Ltd [1991] ELR 35 .......................................... 13.52 Byrne v Telecom Éireann UD 24/1990 ................................................................. 13.13

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Redmond on Dismissal Law C Cable & Wireless plc v Muscat [2006] IRLR 354 ...................................................3.08 Cafferkey v Metrotech Services UD 932/1998 ......................................................22.22 Caffrey v Argus Security Ltd UD 233/1988 ..........................................................25.52 Caffrey v Avonmore Creameries Ltd [1991] ELR 51 ...........................................16.13 Caffrey v Instituto Cervantes UD 567/1996 ..........................................................25.64 Cafolla v O’Malley and AG [1985] IR 486 .............................................................8.14 Cahill v Dublin City University [2010] ELR 109 .......................................10.30, 10.34 Cahill v Sutton [1980] IR 269 ..................................................................................8.03 Cahill v Teagasc [1996] ELR 215 .........................................................................23.80 Cahill v Trinity College Dublin UD 476/1985 ......................................................13.55 Cahill, East Donegal Co-Op Livestock Mart Ltd v AG [1970] IR 317 ...................8.03 Caldwell and Stuart, Re (1985) 15 DLR (4th) 1 ....................................................18.05 Callanan v Messrs Thomas, John and Edward McWilliams UD 299/1978 ..........13.11 Callison v Ford Motors Ltd [1969] ITR 74 ...........................................................18.25 Calvin v Carr [1979] 2 All ER 440 ..........................................................................7.68 Campbell and Glennon v EBS [2016] ELR 99 ......................................................23.02 Campbell v Frisbee [2002] EWHC 328 (Ch) ..........................................................6.09 Campbell v Press & Sons Ltd (No 12500/80) .......................................................23.06 Campus Oil v Minister for Industry (No 2) [1983] 1 IR 88 ........................10.10–10.13 Canavan v KA Burke (Carriers) Supplies Ltd UD 15/1977 ..................................16.53 Cannon v Dunnion Ltd UD 361/1991 ....................................................................25.50 Cannon v John Bolton Motors Ltd UD 58/1979 ....................................................16.53 Cannon v John Meagher Ltd UD 32/1988 .............................................................24.56 Cannon v Noonan Cleaning Ltd [1998] ELR 153 .................................................18.46 Cannon v Noonan Cleaning Ltd UD 461/1997 ......................................................18.41 Cantor Fitzgerald v Bird [2002] IRLR 867 QBD ....................................................5.25 Capaldi v C-Step Shoes Ltd UD 806/1989 ............................................................17.07 Capital Food Emporium (Holdings) Ltd v Walsh [2016] IEHC 725 .......................7.12 Capital Radio Productions Ltd v Radio 2000 Ltd (26 May 1998) SC ...................10.03 Carey v Docket & Form International Ltd UD 302/2004 ......................................13.96 Carey v Independent Newspapers (Ireland) Ltd [2004] 3 IR 52 .............................4.03 ..................................................................................................... 4.07, 11.26, 11.49 Carmichael v National Power plc [1999] ICR 1226 ................................................3.17 Carmody v Aughinish Alumina Ltd UD 25/1986 ..................................................15.12 Carmody v Minister for Justice, Equality and Law Reform [2010] 1 IR 635 ..................................................................................................8.54 Carney v Balkan Tours Ltd (20 January 1997) 34/96 ............................................24.67 Carr v Alexander Russell Ltd [1976] IRLR 220 ....................................................13.20 Carr v City of Limerick Vocational Education Committee [2000] ELR 57 ...........................................................................................3.28. 4.10 Carroll v Bird 3 Esp 201 ..........................................................................................1.22 Carroll v Bus Átha Cliath [2005] 4 IR 184 ..................................... 10.48–10.52, 10.97 Carroll v Condons Cash & Carry Ltd UD 160/1979 .............................................17.05 Carroll v Dublin Bus [2005] 4 IR 184 ...................................................................15.07 Carroll v Peter Lyons Ltd UD 229/1979 ................................................................19.11 Carroll v The Foxrock Inn [1990] ELR 236 ..........................................................13.52

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Table of Cases Carron v Fastcom Broadband Ltd t/a Fastcom [2017] ELR 44 ................. 25.07, 25.09 Carter v Ballsbridge Ltd UD 718/1996 ................................................................. 14.14 Carthy v Clydavale Investments Ltd UD 1091/2004 ............................................ 19.24 Carvill v Irish Industrial Bank Ltd [1968] IR 325 ................................................................ 3.35, 4.06, 4.30, 4.35, 6.04, 11.66, 24.62 Casey v Dunnes Stores [2003] ELR 313 ............................................................... 22.13 Cassidy v Batchelors Ltd UD 1098/1996 .............................................................. 13.49 Cassidy v LM Ericcson Ltd UD 934/2004 ............................................................ 21.56 Cassidy v Ministry of Health [1951] 2 KB 343 ...................................................... 3.09 Cassidy v Shannon Castle Banquets and Heritage Ltd [2000] LR 248 ........ 7.33, 10.42 Castledine v Rothwell Engineering Ltd [1973] IRLR 99 ...................................... 13.12 Castleisland Cattle Breeding Society Ltd v Minister for Social and Family Affairs [2004] IESC 40, [2004] 4 IR 150 .............................................. 3.10 Catering Assistant v A Café ADJ-00002734 ........................................................ 21.20 Caudron v Air Zaire [1985] IR 716 ......................................................................... 9.46 Cavanagh v Dunnes Stores Ltd UD 820/1994 ........................................... 16.47, 24.76 Cave v Vehicle Maintenance (Dublin) Ltd [1998] ELR 319 ..................... 18.34, 19.30 Cayne v Global Natural Resources [1984] 1 All ER 225 ...................................... 10.19 Celtec Ltd v Astley [2006] IRLR 635 ............................................. 18.28, 18.31, 23.17 Central Bank of Ireland v Gildea [1997] ELR 238 ............................................... 23.63 Cerebus Software Ltd v Rowley [2001] ICR 376, [2001] IRLR 160 .......................................................................... 4.27, 11.12, 11.83 Cetinsoy v London United Busways Ltd [2014] UKEAT 0042_14_2305 (23 May 2014) ........................................................................ 18.28 CH Giles & Co Ltd v Morris [1972] 1 All ER 960 ............................................... 10.06 Chakki v United Yeast [1982] 2 All ER 446 ......................................................... 22.39 Chamberlain v Bennett (1892) 8 TLR 234 .............................................................. 4.07 Chant v Aquaboats Ltd [1978] ICR 643 ............................................................... 21.27 Chappell v Times Newspapers Ltd [1975] 2 All ER 233, [1975] ICR 145 ..................................................................................... 10.20, 21.92 Check-out Manager v A Retail Chain ADJ-00002115 (2 June 2017) .................. 13.28 Chevalier v Herve Mahy, Ty Ar Mor Restaurant UD 60/1977 ............................. 24.35 Chhabra v West London Mental Health NHS Trust [2014] ICR 194 ................. 13.105 Chris v John Lichfield [1975] IRLR 28 ................................................................ 13.12 Church v West Lancashire NHS Trust (No 2) [1998] IRLR 491 (EAT) ... 13.04, 17.21 City of Birmingham DC v Beyer [1977] IRLR 211 .............................................. 21.27 Clancy v Cannock Chase Technical College [2001] IRLR 331 ............................ 24.60 Clancy v Moysteel CME Teo UD 1029/1993 ....................................................... 21.35 Clancy v Productivity Centre UD 882/1992 ......................................................... 21.45 Clark v BET plc [1997] IRLR 342 ............................................................. 11.64, 11.82 Clark v Nomura International plc [2000] IRLR 766 ............................................. 11.63 Clarke v Boliden Tara Mines Ltd [2016] ELR 343 ............................................... 13.93 Clarke v CIÉ UD 104/1978 ............................................................. 13.12, 16.22, 24.24 Clarke v Eley (IMI) Kynoch Ltd ........................................................................... 21.58 Clarke v Hogan UD 135/1978 ............................................................................... 24.08 Clarke v Teagasc UD 984/1995 ............................................................................ 23.80 Clayton v Oliver [1930] AC 209 ........................................................................... 11.47

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Redmond on Dismissal Law Clayton v Vigers [1990] IRLR 177 .......................................................................14.18 Clery v TSB Bank UD 754/1995 ..............................................................13.85, 13.103 Cloran v SCI Ireland Ltd UD 95/1990 ...................................................................14.16 Coates and Venables v Modern Methods & Materials Ltd [1982] IRLR 318 ..............................................................................................21.89 Cobley v Forward Technology Industries plc [2003] IRLR 706 ..........................17.19, Cockburn v Alexander (1848) 6 CB 791 ...............................................................11.12 Coffey v William Connolly Construction Ltd [2007] IEHC 319 .................6.29, 10.13 Cole v Press O Matric Ltd UD 678/1992 ...............................................................23.54 Colen v Cebrian (UK) Ltd [2004] IRLR 210 .........................................................23.43 Collier v Sunday Referee Publishing Co [1940] 2 KB 647 ...................................11.47 Collinge v Turned Parts Ltd UD 660/1990 ............................................................17.23 Collino v Telecom Italia [2000] IRLR 788 ............................................................18.33 Collins v Board of Management of the Holy Trinity School UD 1520/2003 ........24.24 Collins v Geo O’Dwyer UD 746/1986 ..................................................................23.43 Collins v HP CDS Ireland Ltd UD1713/2010 ............................................15.02, 18.11 Collins, Re [1925] Ch 536 .....................................................................................22.44 Collman v Construction Industry Training Board [1966] 1 ITR 52 ......................22.47 Commerzbank AG v Keen [2007] IRLR 132 ........................................................11.64 Commonwealth Bank of Australia v Barker [2014] HCA 32 ............... 2.10, 5.65–5.68 Company v A Worker ED/04/13 Det No 51 (9 February 2005) ............................19.26 Complainant v A Technology Company ADJ-00000020 (2 June 2016) ....................................................................................................17.24 Complainant v Respondent ADJ-00004482 (12 April 2017) ................................17.01 Condon v Córas Iompair Éireann (16 November 1984) HC ...................................7.39 Condon v Rowntree Mackintosh Ltd UD 195/1979 ..............................................24.66 Condon v Solicitors Disciplinary Tribunal [2012] IEHC 173 .................................7.25 Connachey v Little Chic Knitwear Ltd UD 342/1985, (1986) 4 ILT ....................16.88 Connaughton v Ryan’s Hotel plc UD 391/1987 ....................................................16.19 Connelly v McConnell [1983] IR 172 .....................................................................7.65 Connolly v Arramara Teo UD 132/1987 ...............................................................16.81 Connolly v Midland Tarmacadam Ltd UD 19/1979 ..............................................13.74 Connolly v PR Reilly Ltd UD 768/1989 ................................................................22.20 Connolly v Robinson (1946/72) .............................................................................24.76 Conran v Smyth t/a Salad Bowl Restaurant UD 239/1987 ....................................25.49 Conroy v Board of Management of Gorey Community School [2015] IEHC 103 .......................................................................................7.23, 9.19 Construction Industry Training Board v Labour Force Ltd [1970] 3 All ER 220 .........................................................................................23.06 Converfoam (Darwen) Ltd v Bell [1981] IRLR 195 .............................................15.19 Conway v An Taoiseach (12 April 2006) HC................................................7.04, 10.61 Conway v Health Service Executive [2016] IEHC 73 .............................................7.69 Conway v INTO [1991] 2 IR 305 ............................................................................8.40 Conway v Ulster Bank Ltd UD 474/1981 ...................................................19.14, 19.19 Cooke v Ashmore Hotels Ltd [1992] ELR 1 .........................................................22.16 Cooke v Carroll UD 239/1994 ....................................................................13.59, 13.96

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Table of Cases Cookery Retail Manager v A Cookery Retailer ADJ-00004428 (25 April 2017) ................................................................................................ 17.10 Coonan v Attorney General [2001] ELR 315 ......................................................... 9.64 Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 ........................... 7.08 Copland v United Kingdom [2007] ECHR 253 ......................................... 8.52, 13.128 Copsey v WWB Devon Clays Ltd [2005] IRLR 811 ............................................ 16.50 Copson v Eversure Accessories Ltd [1974] ICR 636 ............................................ 24.57 Corcoran v Central Remedial Clinic UD 7/1978 .................................................. 19.10 Corcoran v Holmes [2007] 1 ILRM 23 ................................................................... 7.60 Corcoran v Kelly & Barry Associates UD 174/1978 ................................. 13.74, 24.53 Cork & Bandon Rly Co v Goode 13 CB 826 .......................................................... 9.36 Corrigan v Rowntree Mackintosh (Ireland) Ltd UD 39/1978 ............................... 22.14 Corry v NUVGATA [1950] IR 315 ............................................................. 4.31, 21.06 Cosgrave v Kavanagh Meat Products Ltd UD 6/1988 .......................................... 19.08 Costello v Kellys Carpetdrome UD 78/1980 ........................................................ 17.07 Cotswold Developments Construction Ltd v Williams [2006] IRLR 181 (EAT) .................................................................................... 3.14 Cotter v Ahern [1976–77] ILRM 248 ...............................8.11, 8.34–8.39, 9.37, 11.79 Cottle v Cottle [1939] 2 All ER 535 ........................................................................ 7.60 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, [1984] 3 All ER 935 .....................................9.07, 9.47, 9.57–9.63 Council of the Isles of Scilly v Brintel Helicopters Ltd [1995] IRLR 6 ............... 18.45 Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84 ..................... 5.22, 19.10 Courtenay v Radio 2000 Ltd t/a Classic Hits 98FM [1997] ELR 198 .................. 10.44 Cousins v Brookes Thomas Ltd UD 45/1988 ..................................................... 13.104 Coutts v ISS Contract Cleaners Ltd UD 429/1996 ................................................ 18.11 Cowley v (1) Noonan Services Ltd and (2) Lantern Securities Ltd UD 1053/2004 ........................................................................... 18.28, 18.93, 19.16 Cox v ESB [1943] IR 94, (1945) Ir Jur Rep 58 .............................................. 7.17, 9.36 Cox v ESB [1944] IR 81 ....................................................................................... 11.63 Cox v Ireland [1992] 2 IR 503 ................................................................................ 8.14 Cox v Phillips Industries Ltd [1976] 1 WLR 638 ........................................ 9.39, 11.49 Coyle v Dun Laoghaire Vocational Educational Committee UD 993/1996 ......... 15.43 Crampton v Butlers Engineering International Ltd (In Receivership) UD 599–605/1995 ........................................................................................... 22.19 Crampton v Dacorum Motors Ltd [1975] IRLR 169 ............................................ 24.76 Crawford v Swinton Insurance Brokers Ltd [1990] IRLR 42 .................... 18.66–18.68 Credit Suisse Asset Management v Armstrong [1996] ICR 882 .......................... 16.89 Credit Suisse First Boston (Europe) Ltd v Padiachy [1998] IRLR 504 .............................................................................................. 18.79 Creed v KMP Co-op Society Ltd [1991] ELR 140 ............................................... 16.59 Criminal Law (Jurisdiction) Bill 1975, Re [1977] IR 129 ...................................... 1.05 Crisp v Apple Retail (UK) Ltd ET/2104806/10 .................................................. 16.102 Cronin v Eircom Ltd [2007] 3 IR 104 ....................................... 2.06,5.42, 10.92, 11.84 Cross International v Reid [1985] IRLR 387 ........................................................ 21.44 Cross v Redpath Dorman Long Ltd [1978] ICR 730 ............................................ 23.15 Crotty v Merriott Radiators Ltd UD 985/2004 ...................................................... 15.20

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Redmond on Dismissal Law Crouch v The Post Office [1973] 3 All ER 225 .....................................................21.27 Crowe v An Post [2016] ELR 93 ...........................................................................16.24 Crowley v Cleary [1968] IR 261 .............................................................................8.11 Crowley v Ireland, INTO [1980] IR 102 ................................... 8.05, 8.09, 8.40, 21.72 Cruikshank v Hobbs [1977] ICR 725 ....................................................................21.59 Cuala Developments Ltd v Gamble EDA 174 (15 February 2017) .......................25.08 Culkin v Sligo County Council [2017] IECA 104 ......................................14.07, 25.18 Cunningham and O’Connor v Oasis Stores Ltd [1995] ELR 183 ..............18.70, 18.75 Cunningham v Intel Ireland Ltd [2013] IEHC 207 .....................................14.07, 25.18 Cunningham v Ryan UD 163/2004 ........................................................................22.25 Cupar Contracting Ltd v Lindsey UKEAT/0184/15 ..............................................24.76 Cupar see Wright v Silverline Care Caledonia Ltd [2016] UKEAT 0008_16_1210 (12 October 2016) .....................................................24.76 Curley v Texaco (Ire) Ltd UD 829/1986 ....................................................13.33, 16.11 Curling v Securicor Ltd [1992] IRLR 549 ..................................................19.10, 19.17 Curtis v Paterson (Darlington) Ltd [1973] ICR 496 ..............................................24.76 Cussons v Skinner 11 M & W 161 ..........................................................................4.35 Cyril Leonard & Co v Simo Securities Trust Ltd [1972] 1 WLR 80 ...........4.35, 11.66 D D v M [1996] IRLR 192 ......................................................................................16.114 d’Urso v Ercole Marelli Electromeccanica Generale SpA [1992] ECR 1–4105 .........................................................................................22.54 D&J McKenzie Ltd v Smith [1976] IRLR 345 .....................................................19.11 Dacas v Brook St Bureau (UK) Ltd [2004] EWCA Civ 217, [2004] ICR 1437 .................................................................................................3.08 Daily Office Cleaning Contractors Ltd v Shefford [1977] RTR 361 ....................11.80 Dalton v Krups Engineering Ltd UD 942/1986 .....................................................15.12 Daly v CLG Builders Ltd UD 685/1996 ................................................................21.41 Daly v Hanson Industries Ltd UD 719/1986 ..............................................14.02, 17.10 Daly v Sheehan Security Corporation Ltd UD 481/2005 ......................................23.14 Daly v Somers UD4 95/2005 .................................................................................13.58 Daly v Wessel Cable Ltd UD 651/1986 ................................................................23.29 Daniels v Packard Electric (Ireland) Ltd UD 842/1986 .........................................15.12 Danmols Inventar A/S [1985] ECR 2639 ..............................................................22.54 Davidson and Maillon v Comparisons [1980] IRLR .............................................16.89 Davis v Marshall (1861) 4 LT 216 ...............................................................4.06, 11.11 Davis v Sealink Stena Line Ltd UD 874/1993 .....................................................23.102 Davson v France (1959) 109 LJ 526 ........................................................................4.03 Davy v JA Sollins (Builders) Ltd [1974] IRLR 324 ..............................................19.11 Dawkin v Antrobus 17 Ch D 115 ............................................................................7.50 Dawnay Day & Co Ltd v De Braconier D’Alphen [1997] IRLR 442 .................16.114 Day v Savadge [1615] Hob 85 .................................................................................7.60 De Francesco v Barnum (1890) 45 Ch D 430 ........................................................10.04 De Róiste v Minister for Defence [2001] ELR 33 ...................................................9.07 De Róiste v Minister for Defence [2001] IESC 4, [2001] 1 IR 190 ........................9.42 De Stempel v Dunkels [1938] 1 All ER 238 ............................................................4.05

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Table of Cases Dearly v The Queen (1846) 12 C1 & F 520 ............................................................ 7.14 Decro-Wall Practitioners Int SA v Practitioners in Marketing Ltd [1971] 1 WLR 361, [1971] 2 All ER 216 ................................................. 6.02, 6.05 Deegan v Minister for Finance [2000] ELR 190 ................................. 7.13, 8.23, 10.67 Dekker v Stichting Vormingscentrum vor Jonge Volwassenen 177/88, [1994] IRLR 27 ................................................................................................ 14.08 Del Monte Foods v Mundon [1980] IRLR 224 (EAT) ......................................... 14.16 Delabole Slate Ltd v Berriman [1985] IRLR 305 ................................................. 18.68 Delaney v Electrical Contractors Safety Standards Association Ltd UD 1322/2003 ................................................................................................. 23.54 Delaney v Staples [1992] 1 AC 687 ........................................................................ 4.27 Demir and Baykara v Turkey [2009] IRLR 766 ............................... 8.09, 8.53, 13.130 Dempsey v Grant Shopfitting Ltd [1990] ELR 43 ................................................ 23.08 Denco Ltd v Jainson [1991] IRLR 63 ................................................................... 16.90 Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 186 .............. 6.04 Department for Transport v Sparks [2016] ICR 695 ............................................. 21.35 Department of Defence v An Employee EE 4/1992, DEE 1492 ........................... 14.08 Dermott v Lightstar Catering Ltd UD 349/1991 ................................................... 16.92 Derving v Kilvington (1973) 8 ITR 266 ............................................................... 21.86 Desmond v Hoover Ltd UD 655/1991 .................................................................. 13.80 Devaney v DNT Distribution Company Ltd UD 412/1993 .................................. 22.16 Devine v Designer Flowers Wholesale Florist Sundries Ltd [1993] IRLR 517 .............................................................................................. 24.70 Devine v Pharmacia Medical Devices Ltd UD 903/1994 ..................................... 15.12 Devis v Atkins [1977] AC 931 .............................................................................. 24.65 Devlin v Player & Wills (Ireland) Ltd UD 90/1978 ............. 13.11, 13.67, 16.05, 16.13 Devonald v Rosser & Sons [1906] 2 KB 728 ....................................................... 11.12 Diesen v Samson [1971] SLT 49 .......................................................................... 11.49 Dietman v London Borough of Brent [1988] IRLR 299 ....................................... 11.31 Dignam v MEW Tullamore Ltd UD 775/1985 ................................................... 13.104 Dignan v Sheehan Security Corporation Ltd [2005] ELR 222 ............................. 18.41 Dignity Funerals Ltd v Brace [2005] IRLR 189 ................................................... 24.45 Dillon v Board of Management of Catholic University School [2016] IEHC 674 ............................................................................................... 9.08 Dillon v Castle Hyperstore Ltd UD 52/2004 ......................................................... 19.08 Dinan v First Southern Bank Ltd UD 32/1989 ...................................................... 16.87 Dinworth v Southern Health Board UD 284/1977 ................................................ 17.19 Diosynth Ltd v Thomson [2006] IRLR 284 .......................................................... 13.74 Director of Consumer Affairs v Bank of Ireland [2003] 2 IR 217 .......................... 3.34 Dixon v British Broadcasting Corporation [1979] QB 546, [1979] ICR 281, [1979] 2 All ER 112, [1979] 2 WLR 647, [1979] IRLR 114 .......................... 22.04 Dixon v West Ella Developments Ltd [1978] ICR 856 ........................................ 21.27 Dobson & Heather v KP Morritt Ltd [1972] IRLR 99 .......................................... 24.76 Dodd v Local Stores (Trading Ltd) [1992] ELR 61 ................................... 22.49, 22.53 Doheny v Allplast Ltd UD 120/1979 ......................................................... 24.44, 24.48 Doherty v South Dublin County Council (No 2) [2007] 2 IR 696 ........................ 10.75 Dolan v J McGettigan Ltd UD 670/1991 .............................................................. 15.29

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Redmond on Dismissal Law Donavan v Dungarvan UDC UD 1077/1993 .........................................................16.54 Donegal County Council v Langan UD 143/1989 .................................................15.18 Donegal County Council v Porter [1993] ELR 101 ...............................................23.55 Donegal Rubber Co Ltd v Berrigan UD 252/1989 ................................................24.13 Donnelly v Arklow Pottery Ltd UD 572/1990 ......................................................16.09 Donnelly v Bray Urban District Council UD 235/1993 ........................................23.75 Donnelly v Gleeson (11 July 1978) HC .......................................... 22.47, 22.51–22.53 Donnelly v Minister for Defence (February 1977) HC ...........................................3.45 Donovan v Invicta Airways [1969] 2 Lloyds Rep 413 ..........................................19.10 Dooky v Baxter Storey Ireland Ltd [2012] ELR 336 .................................15.47, 23.43 Dooley v Great Southern Hotel [2001] ELR 340 ....................................................4.11 Dooley v Great Southern Hotels Ltd [2001] IEHC 115 ..........................................4.27 Doran v Community Games UD 1388/2003 .........................................................16.69 Doran v Lennon and O’Kelly [1945] IR 315 .........................................................21.06 Dorian v Dundalk Golf Club plc UD 237/1987 .....................................................21.63 Dougan and Clarke v Lifeline Ambulance Service (2016) The Irish Times, 30 July ..............................................................................................................20.27 Dower v Radio Ireland Ltd [2001] ELR 1 (HC) ......................................................3.11 Dowling v AO Smith Electric Motors (Ireland) Ltd UD 1074/1995 .....................16.36 Dowling v WB Peat & Co Ltd UD 93/1978 ..........................................................24.76 Dowsett Engineering Construction Ltd v Fowler (1977) EAT 425/76 ..................19.16 Doyle v Grangeford Precast Concrete Ltd [1998] ELR 260 ....................................4.03 Doyle v Hoyer Ireland Limited [2016] ELR 336 ...................................................13.31 Doyle v JJ Carron & Co Ltd UD 236/1978 ...........................................................16.05 Doyle v Law Associates Ltd UD 448/2004 ...........................................................14.14 Doyle v Nitrigin Éireann Teo UD 148/1978 ...............................................23.68, 24.21 Doyle v Rimac Ltd RP 434/2004 ...........................................................................18.42 Dr Sophie Redmond Stichting v Bartoland [1992] IRLR 366 (ECJ) .........18.39, 18.45 Drage v Governors of Greenford High School [2000] IRLR 314 .........................22.66 Drew v St Edmundsbury Borough Council [1980] IRLR 459 ...................21.28–21.31 Dromina Community Playgroup/Dromina Community Council Ltd v Morey UDD 1715 (7 April 2017) Labour Court .........................................................24.17 Drury v Goodhill Ltd UD 502/1991 ......................................................................23.72 Dryden v Greater Glasgow Health Board [1992] IRLR 469 .................................19.10 Dublin Corporation v Flynn [1980] IR 157 .............................................................9.75 Dubyna v Hourican Hygiene Services Ltd T/A Master Clean Services UD 781/2004 .........................................................................................15.47, 23.43 Dudoit v Boyne Valley t/a Boyne Valley Group (UD737/2015) ..........................13.32 Duffy Meats Ltd t/a Kerry Foods v Ryan UDD1631 ............................................24.18 Duffy v Liffey Meats (Cavan) [2017] IEHC 103 .......................................10.77, 14.23 Duffy v Meath County Council UD 270/1994 ......................................................15.21 Duffy v Sutton [1955] IR 248 ................................................................................11.01 Duffy-Finn v Lundbeck Ltd [1990] ELR 224 ........................................................25.53 Duggan v A&T Drain Services UDD 1737 (28 July 2017) Labour Court .........................................................................................22.13, 24.73 Duggan v An Taoiseach [1989] ILRM 710 .............................................................9.63 Duggan v Galco Steel Ltd UD 507/80 ...................................................................21.32

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Table of Cases Duijne v Irish Chamber Orchestra [2002] ELR 255 ............................................... 3.10 Duke v Sherlock Bros Ltd UD 75/1993 ................................................................ 13.71 Duncombe v Children, Schools and Families Secretary [2011] ICR 1312 ........... 23.99 Dunk v George Waller & Son Ltd [1970] 2 QB 163 ............................................ 11.46 Dunnachie v Kingston Upon Hull City Council [2004] IRLR 727 ....................... 24.45 Dunne v Brooklyn Engineering Service (Dublin) Ltd UD 392 P11/1988 ............ 14.22 Dunne v Duignan UD 261/1979 ............................................................................ 24.51 Dunne v Harrington UD 166/1979 ............................................................. 13.11–13.16 Dunne v Securitas [2017] ELR 132 ........................................................... 13.07, 16.14 Dunne v The Drake Inn Ltd UD 97/1987 .............................................................. 13.90 Dunphy v Largo Food Exports Ltd [1992] ELR 179 ............................................ 16.59 Durnin v Building & Engineering Co Ltd UD 159/1978 ...................................... 16.53 Dzenkaityte v Allied Stores Ltd UD505/2004 ...................................................... 15.47 E E India Co v Vincent (1740) 2 Atkyns 83 ............................................................... 1.33 E Lindsay DC v Daubney [1977] IRLR 181 (EAT) ............................................. 15.12 E&J Davis Transport Ltd v Chattaway [1972] ITR 361 (NIRC) .......................... 17.15 Earagail Eisc Teoranta v Doherty [2015] IEHC 342 ............................................ 25.33 Earl v Cantor Fitzgerald [2000] EWHC 555 (QB) .................................................. 4.15 Earl v Slater Wheeler (Airlyne) Ltd [1973] 1 All ER 145, [1973] IRLR 115 (NIRC) ...................................................................... 13.10, 13.23 Earley v Health Service Executive [2015] IEHC 520, [2017] IECA 157 .............................................................. 9.64, 10.11–10.15, 10.23 Earley v Health Service Executive (No 2) [2017] IECA 207 ........................ 3.50, 9.65 ........................................................................................... 3.41, 10.23, 10.30, 10.35 East Donegal Co-op Ltd v AG [1971] IR 317, 104 ILTR 81 .............. 7.02, 8.02, 24.80 East India Co v Vincent (1740) 2 Atkyns 83 ........................................................ 10.04 Eastwood v Magnox [2004] IRLR 733 ................................................................. 24.42 Eastwood v Magnox Engineering plc and McCabe v Cornwall County Council [2004] UKHL 35, [2005] 1 AC 503, [2004] ICR 1064 ................................................................. 5.44, 5.64, 11.36, 11.56 Eate v Semperit (Ireland) Ltd UD 46/1977 ..................................... 24.40, 24.57, 24.76 Ebbs and Healy v Oasis Stores plc UD 1020/1994 ............................................... 18.70 Ebrahimian v France, App No 64846/01 (26 November 2015), ECtHR ... 8.53, 13.130 ECM (Vehicle Delivery Service) Ltd v Cox [1999] IRLR 559 ............................ 18.75 Educational Co of Ireland Ltd v Fitzpatrick (No 2) [1961] IR 345 ........................ 1.29 ............................................................ 8.02, 8.10, 8.33, 21.04, 21.22–21.23, 21.72 Edwards (Inspector of Taxes) v Clinch [1980] STC 438, [1980] 3 All ER 278 ................................................................................. 3.35–3.41 Edwards v Aerials and Electronics (Ireland) Ltd UD 236/1985 ........................... 17.12 Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58, [2012] 2 AC 22 ..........................................5.04, 5.56–5.63, 6.24 ................................................................................................... 10.28, 11.35, 11.45 Edwards v Governors of Hanson School [2001] IRLR 733 (EAT) ........... 15.12, 24.70 Edwards v Skyways Ltd [1964] 1 WLR 349 .......................................................... 1.42 EFG Zest v A Worker (LCR21432, 10 April 2017) .............................................. 21.03

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Redmond on Dismissal Law EG v Society of Actuaries in Ireland [2017] IEHC 392 ........................................13.70 Egg Stores (Stamford Hill) Ltd v Leibovici [1976] IRLR 376 ..............................15.18 Elark Developments Ltd v Flanagan UD 16/97 .....................................................17.05 Elbay v Iona National Airways Ltd [1993] ELR 166 .................................17.05, 17.12 Electric Skyline Ltd v Mullen [2017] ELR 91 .......................................................18.50 Eley (IMI) Kynoch Ltd v Powell [1982] IRLR 482 ..............................................21.58 Elmes v Vedanta Lisheen Mining Ltd [2014] IEHC 73 .............................11.78, 21.41 Elstone v CIÉ (13 March 1987) CC .......................................................................13.21 Ely v YKK Fasteners (UK) Ltd [1993] IRLR 500 (CA) .......................................13.06 EMI Group Electronics Ltd v Coldicott (HM Inspector of Taxes) [1999] IRLR 630. .............................................................................................11.66 Emmens v Elderton (1853) 13 CB 495 ....................................................................1.37 Employee dismissed while on long term sick leave v An Employer ADJ-00005398 (6 July 2017) ...........................................................................24.74 Employee v A Credit Union ADJ-00002731 (9 June 2017) ..................................18.65 Employee v A Fish Processing Company ADJ-00002653 ....................................22.70 Employee v A Hotel ADJ-00001497 (7 June 2017) ................................................1.43 Employee v A Property Management Company ADJ-00004397 (9 March 2017) ...................................................................................................8.32 Employee v Adrian Lee Services Ltd UD 2073/2009 ...........................................17.05 Employee v Employer [2010] ELR 205 ................................................................19.03 Employee v Employer ADJ 0000381 (12 April 2017) .............................13.18, 13.107 Employee v Employer ADJ-00000456 (22 March 2017) ...........................20.18, 20.30 Employee v Employer ADJ-00001805 (20 June 2017) .........................................13.16 Employee v Employer ADJ-00002352 (25 November 2016) ...............................17.12 Employee v Employer ADJ-00003442 (8 March 2017) ........................................19.24 Employee v Employer ADJ-00004559 (25 April 2017) ........................................24.26 Employee v Employer ADJ-00004851 (25 May 2017) .........................................19.07 Employee v Employer RP 119/2012 ......................................................................17.07 Employee v Employer UD 1181/2010 ...................................................................18.17 Employer v Employee UD 230/2014 ..........................................................15.28, 24.26 Employment Appeals Tribunal v Government of Canada [1992] ELR 29 ..................................................................................................25.63 Ennis v Donabate Golf Club Ltd UD 118/1978 .....................................................24.51 Eogan v University College Dublin [1996] 2 ILRM 302 ..................... 9.18, 9.55, 9.61 Equality Authority v Portmarnock Golf Club [2010] 1 ILRM 237 .........................8.13 Ernst & Young v Purcell [2011] IEHC 203 .............................................................9.06 ESB v The Minister for Social Community and Family Affairs (14 January 2005) HC ........................................................................................3.10 Esplanade Pharmacy Ltd v Larkin [1957] IR 285 .................................................21.06 European Paint Importers v O’Callaghan [2005] IEHC 280 ...............................16.114 Evanhenry Ltd, Re (15 May 1986) HC .......................................................22.47, 22.52 Evans v IRFB Services (Ireland) Ltd [2005] 2 ILRM 358, [2005] IEHC 107 .............................................................................................10.33 Evans v Rangebray Ltd (No 26793/79) .................................................................23.06 Evode Industries Ltd v Hearst UD 396–8/1979 .....................................................24.39 Eweida v United Kingdom [2013] ECHR 37 .............................................8.53, 13.130

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Table of Cases Express and Star Ltd v Bunday [1987] IRLR 422 ................................................ 21.95 Express Medicals Ltd v O’Donnell [2016] UKEAT 0263_15_0902 (9 February 2016) ................................................................... 18.02 F Faccenda Chicken v Fowler [1986] 1 All ER 617 ................................................ 16.89 Fairbrother v Steifel Laboratories (Ireland) UD 665/1985 ................................... 16.87 Fairman v Oakford (1860) 5 H & N 635 ................................................................. 4.05 Fakih v Minister for Justice [1993] 2 IR 406 ................................................. 9.57–9.60 Fallon v Athlone Bowl and Leisure Ltd [1997] ELR 67 ....................................... 23.08 Fanning v Public Appointments Service [2015] IEHC 663 .................................. 10.33 Fanning v UCC [2005] IEHC 264 ......................................................................... 10.36 Fanshaw v Robinsons & Sons Ltd [1975] IRLR 165 ............................................ 19.11 Farell v J B Brian Motors t/a Belgard Motors UD 341/1987 ................................ 23.72 Farrell v Donabate Steelworks Ltd UD 273/1987 ................................................. 23.13 Farrell v Farcourt Foods Ltd UD 610/1989 ........................................................... 22.19 Farrell v Kepak Group (Meat Division) UD 1202/2013 ....................................... 16.15 Farrell v Minister for Defence (10 July 1984) HC ............................ 3.45, 13.56, 13.82 Farrell v Minister for Defence (1985) 4 JISSL 105 ................................................ 5.11 Farrell v Newmans Athboy Ltd UD 613/1996 ...................................................... 17.27 Fay v AHP Manufacturing BV t/a Wyeth Medica Ire UD 386/2004 .................... 19.24 Fay v The Order of Hospitalers of St John of God UD 92/1980 ........................... 24.72 FC Gardner Ltd v Beresford [1978] IRLR 63 ....................................................... 19.11 FC Shepherd & Co Ltd v Jerrom [1986] IRLR 358 .............................................. 22.39 Felwood Manufacturing Ltd [1990] ILR 68 .......................................................... 18.61 Fennelly v Assicurazioni Generali SpA (1985) 3 ILT (ns) 73 .............................. 10.33 Ferenka Ltd v Lewis UD 26/1977 ......................................................................... 24.22 Fergus O’Farrell Ltd v Nugent UD 120/1978, UD 123/1978 .................... 16.53, 24.56 Ferguson v Dawson Ltd [1976] 3 All ER 817 ......................................................... 3.11 Ferris v Ward [1998] 2 IR 194 .............................................................................. 10.16 Fillieul v Armstrong (1837) 7 Ad & El 357 ............................................................ 4.30 Fisher v WB Dick & Co Ltd [1938] 4 All ER 467 .................................................. 4.05 Fitton v City of Edinburgh Council UKEATS/0010/07/MT ................................. 23.17 Fitzgerald v Kerry Network of People with Disabilities UD 1037/2003 .............. 13.58 Fitzgerald v Regsimn Ltd UD 307/1995 ............................................................... 16.88 Fitzgerald v South Eastern Health Board [2003] ELR 257 ..................................... 9.64 Fitzgerald v St Patrick’s College UD 244/1978 .................................................... 22.03 Fitzgerald v Williams Transport Ltd UD 15/1978 ................................................ 16.53 Fitzgibbon v Law Society [2014] IESC 48 ........................................................... 25.08 Fitzgibbon v Westpres Publication Ltd (1983) 30 DLR (4th) 366 ........................ 11.49 Fitzmaurice v Hele PVC Windows UD 385/1990 ................................................ 24.18 Fitzpatrick and Fitzpatrick v Overseas Publications Ltd UD 86 and 887/1989 ................................................................................................... 16.57 Fitzpatrick v British Railways Board [1991] IRLR 376 ....................................... 21.29 Fitzpatrick v Nolan (1851) 1 ICR 67 1 .................................................................... 1.33 Fitzpatrick v Wymes (17 May 1973) HC ................................................................ 3.44

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Redmond on Dismissal Law Flaherty v Minister for Local Government and Public Health [1941] IR 587 .....................................................................................................3.42 Flanagan v Auto Conversions Ltd UD 134/1996 ..................................................15.12 Flanagan v Collen Bros (Dublin) Ltd UD 72/1980 ...............................................21.41 Flanagan v MW Wallpaper Specialists Ltd UD 153, 154, 155, 156/1989 ...........................................................................................................17.09 Flanagan v University College Dublin [1988] IR 724, [1989] ILRM 469 ............................................................... 7.29, 7.40, 13.68, 13.70 Fleming v Athlone Manufacturing Co Ltd UD 148/1978 .....................................23.68 Fleming v DS UD 322/1989 ..................................................................................15.12 Fleming v Ireland [2013] 2 IR 417 ..........................................................................8.07 Flood v Bus Átha Cliath UD 91/1993 ....................................................................16.76 Flood v Vanguard Plastics (Ire) Ltd UD 575/1990 ................................................17.05 Floody v Charles Dougherty & Co Ltd UD 46/1980 .............................................16.53 Florish v Alienvault Inc [2017] ELR 224 ..............................................................24.38 Flynn v An Post (1987) ILT 165, [1987] IR 68 .....................................8.21–8.25, 9.67 Flynn v Breccia [2017] IECA 74 ..................................................................5.68, 10.93 Flynn v Great Northern Railway Co (Ire) Ltd (1955) 89 ILTR 46 ................................................................... 4.03, 4.04, 4.30, 7.09, 7.61, 8.04, 11.68 Flynn v McFarlane Plastics Ltd UD 553/2005 ......................................................24.72 Flynn v Power [1985] IR 648 ................................................................................18.05 Fogarty and O’Connor v IBM International Holdings BV UD 771/2000 & UD 661/2000 ....................................................................................................16.96 Fogarty v Dunnes Stores Munster Company UD 548/1996 ..................................13.40 Fogarty v UK [2002] IRLR 148 (ECtHR) .............................................................25.63 Folan v Dunnes Stores (Terryland) Ltd UD56/2000 .............................................21.73 Foley and D2 Private Limited v Workplace Relations Commission [2016] IEHC 585 ..............................................................................................21.64 Foley v Aer Lingus [2001] ELR 193 ..........................................................10.61–10.63 Foley v Calview Investments Ltd UD 1228/2003 .................................................24.07 Foley v Post Office [2000] ICR 128 ......................................................................13.28 Folkestone Nursing Home Ltd v Patel [2016] UKEAT 0348_15_0106 ................22.29 Ford Motor Co Ltd v AUEFW [1969] 2 QB 303 ....................................................1.42 Ford v Milthorn Ltd [1980] IRLR 30 ....................................................................19.11 Foreningen Af arbejdsledere I Danmark v Daddy’s Dance Hall A/S [1989] 2 CMLR 517, [1988] IRLR 314 ......................... 18.28, 18.39, 18.65, 18.79 Forgan v Burke (1861) CP 12 CL (Ir) 495 ..............................................................1.36 Former Employee v An Excavation Company ADJ-00001194 (1 June 2016) ....................................................................................................24.26 Forshaw v Archcraft Ltd [2005] IRLR 600 ...........................................................18.03 Fosca Services (UK) Ltd v Birkett [1996] IRLR 325 ............................................11.31 Four Seasons Ltd v Maughen [2005] IRLR 324 ....................................................22.39 Fowler and Bergin v Hardware Distributions Dublin Ltd [1996] ELR 240 ..........25.53 Fox v Ashling Hotel Ltd UD 108/1978 .................................................................24.58 Fox v Des Kelly Carpets Ltd [1992] ELR 182 ......................................................21.52 Fox v Europ Assistance Holdings Ltd UD 538/2004 ............................................24.41 Foxall v International Land Credit Co (1867) 16 LT 637 .......................................4.03

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Table of Cases Fox-Bourne v Vernon and Co (1894) 10 TLR 647 ................................................. 4.07 Frames Snooker Centre v Boyce [1992] IRLR 472 .............................................. 16.18 Francis v Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411 ..............................................................................................6.04, 9.32–9.34, 10.96 Francovich and Bonifaci v Italy Joined Cases C–6/90 and C–9/90 ...................... 24.84 Franks v MEP Personnel Ltd (No 20708/77) ........................................................ 23.06 Freeman v O’Flaherty UD 9/1978 ......................................................................... 22.13 French v Barclays Bank plc [1998] IRLR 646 ........................................... 11.46, 11.50 Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 ..................................... 16.06 FT Breach v Epsylon Industries Ltd [1976] IRLR 180 ......................................... 19.11 Fulham v Curragh Knitwear Ltd UD 76/1978 ................................ 13.74, 16.07, 16.53 Furlong v Telectron Ltd (1986) 5 JISLL 167 ........................................................ 16.52 Fyfe & McGrouther Ltd v Byrne [1977] IRLR 29 ....................................... 5.22, 19.11 G G v An Bórd Úchtála (1979) ILTR 25, [1980] IR 32 ................................... 8.13, 21.23 Gabor v NVD Ltd UD 2436/2011 ................................................................ 4.23, 22.69 Gaffney v Press Knives Ltd UD 304/1978 ............................................................ 13.73 Gahan v Lalor UD 326/1979 ................................................................................. 24.18 Gallagher v Dept of the Marine UD 491/1990 ...................................................... 21.56 Gallagher v Grove Turkeys Ltd UD 559/1991 ...................................................... 21.53 Gallagher v Linson Ltd UD 87/1979 ..................................................................... 13.11 Gallagher v Revenue Commissioners [1991] ILRM 632, [1994] ELR 231 [1995] ILRM 108 ......................................................... 7.33, 7.40–7.42, 8.16, 13.70 Gallagher v Robert Smyth & Sons Ltd UD 1063/2004 ......................................... 23.54 Gallivan v Irish Commercial Society Ltd UD 319/1979 ....................................... 17.07 Galvin v Commissioner of An Garda Síochána [2011] IEHC 486 ......................... 9.80 Galway Crystal Ltd v McMorrow UD 1/1977 ...................................................... 16.53 Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210 ............................................................................................... 7.11 Gannon v Firth [1976] IRLR 415 .......................................................................... 22.09 Gardiner v Kildare Co Council (1952) 86 ILTR 148 ............................ 3.42, 4.03, 4.10 Gardner v Peeks Retail Ltd [1975] IRLR 244 ....................................................... 21.27 Garland v Irish Rail UD 125/1992 ........................................................................ 13.49 Garner v Grange Furnishing Ltd [1977] IRLR 206 ................................................ 6.05 Garrahy v Bord na gCon [2003] ELR 274 ...........................10.09, 10.16–10.19, 10.33 Garrett v CIÉ UD 177/1980 .................................................................................. 13.58 Garrett v The Botany Weaving Mill Ltd UD 355/1979 ........................................ 17.07 Garvey and Gunn v Bord an Choláiste Náisúinta Ealaíne is Deartha [1990] 2 IR 168 ................................................................................................ 11.49 Garvey v Ireland [1981] IR 75 ....................... 1.04, 3.32, 3.44, 7.14, 9.32, 9.38, 11.49 Garvey v Minister for Justice, Equality and Law Reform [2006] 1 IR 548 ......................................................................................... 7.35, 9.78 Gateway Hotels Ltd v Steward [1988] IRLR 287 ................................................. 18.66 Gavin v Bus Éireann [1990] ELR 103 (EAT) ....................................................... 15.12 Gavin v Kerry Foods [1990] ELR 162 .................................................................. 13.52 Gearon v Dunnes Stores Limited UD367/1988 .................................................... 13.23

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Redmond on Dismissal Law Geary v Fannin Ireland Ltd t/a Talbot Pharmacy UD 197/1987 ...........................25.53 Gee v The Irish Times and the Irish Times Publications Ltd [2000] ELR 249 ................................................................................................10.63 General Billposting Co v Atkinson [1909] AC 118 .................................................6.09 General Operative v A Manufacturing Company ADJ-00006103 (29 August 2017) ..............................................................................................13.70 General Operative v A Religious Society ADJ-00002814 (28 March 2017) ...............................................................................................19.07 Genockey v Governor and Company of the Bank of Ireland [2017] IEHC 498 ................................................................................................2.01 Geoghegan v Institute of Chartered Accountants in Ireland [1995] 3 IR 86 ...........................................................................................9.16–9.22 George Edwardes (Daly’s Theatre) Ltd v Comber (1926) 42 TLR 247 .........4.03, 4.07 George v Davies [1911] 2 KB 445 ..........................................................................4.03 George v The Ministry of Justice [2013] EWCA Civ 324 ....................................17.01 George Wimpey & Co Ltd v Cooper [1977] IRLR 205 ........................................19.11 Georgopoulos v Beaumont Hospital Board [1993] ELR 246 .........................7.54–7.56 Georgopoulus v Beaumont Hospital [1998] 3 IR 132 .............................................7.59 Geraghty v Abouds Pages Ltd UD 46/1978, UD 50/1978 .....................................24.56 Geraghty v Embassy of Mexico and Daniel Duetzin [1998] ELR 310 (EAT) ...............................................................................................................25.63 Geraghty v Industrial Credit Corporation UD 396/1989 .......................................22.23 Gibney v Riverside Manufacturing Co (Ire) Ltd UD 732/1987 ............................24.24 Gibson v Manchester City Council [1979] 1 All ER 972 ......................................22.31 Gilbert v Goldstone [1976] IRLR 257 ...................................................................19.11 Gilheany and Meehan v Revenue Commissioners [1996] ELR 25 ...... 3.45–3.49, 9.63 Gilles v R Daniels & Co Ltd [1980] IRLR 457 .....................................................19.11 Gillespie v Northern Health and Social Services Board [1996] IRLR 214 (ECJ) ....................................................................................14.08 Gimber & Sons Ltd v Spurrett [1967] ITR 308 .....................................................17.21 GKN (Cwmbran) Ltd v Lloyd [1972] ITR 160 .......................................................6.04 Glancy v Noonan Services UD 973/2005 ..............................................................16.81 Glass v Lissadell Towels Ltd UD 320/1979 ..........................................................22.13 Gleeson v Minister for Defence [1976] IR 280 ..............................................3.45, 9.32 Glegola v Minister for Social Protection [2017] IECA 37, [2017] ELR 117 ................................................................................................24.83 Glendinning v Mid Ulster District Council Dungannon & South Tyrone Borough Council [2017] NIIT 01375_15IT ..........................................21.35, 22.32 Glover v BLN Ltd [1973] IR 388 ....................................... 3.35, 4.33–4.34, 5.07–5.08 ................................. 5.12–5.16, 7.02, 7.52, 8.17, 8.44, 10.99, 11.11, 11.63, 11.66 Glover v BLN Ltd [1973] IR 432 .................................................................9.36, 11.60 Glynn v Keele University [1971] 1 WLR 487 .........................................................7.52 Gogay v Hertfordshire County Council [2000] IRLR 703 (CA) ....................5.46, 5.52 ..................................................................................................................5.68, 11.49 Goldrick and Mooney v Dublin Corporation (10 November 1986) HC .........5.11, 9.47 Golomb & William Porter & Co Ltd’s Arbitration, Re (1931) 144 LT 583 ................................................................................11.11, 11.47

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Table of Cases Golovan v Portulin Shellfish Ltd UD428/2006 ..................................................... 15.47 Goodbody v British Railways Board [1977] IRLR 84 .......................................... 24.24 Gordon v Adams (Dalkeith) Ltd [1972] ITR 81 (MRC) ....................................... 17.21 Gordon v Dealgan Amusement Enterprise Ltd UD 221/81 .................................. 21.20 Gordon v Potter (1859) 1 F & F 644 ..................................................................... 11.63 Gorictree Ltd v Jenkinson [1984] IRLR 391 (EAT) ............................................. 18.66 Goss v Ryanair (28 February 2005) HC ................................................................ 10.41 Gould v O’Shea’s Ltd UD 323/1978 ..................................................................... 21.41 Gouldings Chemicals Ltd v Bolger [1977] IR 211 ................................................. 1.42 Government of Canada v Employment Appeals Tribunal [1991] ELR 57 ................................................................................................. 25.62 Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241 ...........................................................7.13, 8.27, 10.64, 13.34, 19.22, 24.07, 24.18 Gowie v Citibank Europe UD 1128/2013 ............................................................. 17.07 Grace v Northgate Group Ltd [1972] IRLR 53 ..................................................... 19.10 Graham and Kennedy v De Gee Ltd UD 861 and 862/1982 ................................. 16.88 Graham v ABF Ltd [1986] IRLR 90 ..................................................................... 21.52 Grainger v WJ Dwans & Sons Ltd UD 906/1987 ................................................. 16.81 Grant v Ampex Great Britain Ltd [1980] IRLR 461 ............................................. 13.76 Grant v Wm Grant & Sons (1916) 50 ILTR 189 .................................................... 1.32 Grassick v TP O’Connor & Sons Ltd UD 114/1979 ............................................. 21.15 Gray v Shetland Knorrs Preserving Ltd [1985] IRLR 53 ..................................... 21.54 Grealish v Alumina Ltd UD 378, 379 and 380/1987 ............................................ 16.67 Great Western Railway Co v Bater [1920] 3 KB 266 ............................................. 3.35 Greeley v Baker UD 96/1978, UD 130/1978 ............................................. 24.40, 24.55 Green v Wright (1876) 1 CPD 591 ......................................................................... 4.05 Greenan v Cavan County Council UD 1000/1995 ................................................ 23.58 Greenhof v Barnsley Metropolitan Council [2006] IRLR 98 ............................... 19.05 Gregory v Cannon Hygienic Products Ltd UD 283/1992 ..................................... 19.14 Gregory v Wallace [1998] IRLR 387 ...................................................................... 4.27 Grehan v The North Eastern Health Board [1989] IR 422 ...................................... 4.10 Grennan v Carty RP161/2004 ............................................................................... 14.30 Griffin v Telecom Éireann (3 March 1992) CC .................................................... 22.33 Griffin v Telecom Éireann UD 148/1991 .............................................................. 22.33 Grimes v Cabinpac Ltd UD 692/1986 ................................................................... 16.60 Grimes v Graham O Sullivan UD 425/2001 ......................................................... 16.34 Grogan v CIÉ UD 28/1984 .................................................................................... 21.75 Grundy v Sun Printing and Publishing Association (1916) 33 TLR 77 ......... 4.03, 4.07 Gryf-Lowczowski v Hinchingbrooke Healthcase NHS Trust [2006] ICR 425 ................................................................................................ 15.19 Guidon v Farrington [1993] ELR 98 .......................................................... 18.38–18.41 Guja v Moldova [2008] ECHR 144 ........................................................... 8.53, 13.130 Gunn v Bord an Choláiste Náisiúnta Ealaíne is Deartha [1990] 2 IR 168 .......................................................................3.35–3.38, 5.12, 7.01 Gunton v Richmond Upon Thames LBC [1980] ICR 755, [1980] IRLR 321, [1980] 3 WLR 714 ....................................5.58, 6.05, 6.17, 6.28 .............................................................................. 10.21, 10.96, 11.30, 11.38, 22.06

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Redmond on Dismissal Law Guz v Bechtel National Inc 8 P 3d 1089 (Cal 2000) ...............................................5.37 G4S Justice Services (UK) Ltd v Anstey [2006] IRLR 588 .....................13.109, 18.31 H Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 .............................................13.49 Hadley v Baxendale (1854) 9 Exch 341 .......................................................1.38, 11.01 Hagen v ICI Chemicals and Polymers Ltd [2002] IRLR 31 ....................................5.22 Halal Meat Packers (Ballyhaunis) Ltd v EAT [1990] ELR 49 ..............................25.66 Halford v The United Kingdom [1997] EHRLR 551, [1997] IRLR 471 ..............13.98 Hall v Hebert [1993] 3 SCR 159 ............................................................................11.02 Hallissey v Pretty Polly (Killarney) Ltd UD 362/1984 .........................................14.14 Hamilton v Magill (1883) 12 LR Ir 186 ..................................................................1.38 Hand v Dublin Corporation [1991] 1 IR 409 ...........................................................8.14 Hand v Ludlow [2010] IEHC 583 ..................................................................3.44, 9.24 Handels-OG Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening 179/88 [1991] IRLR 31 .................................................14.08 Handley v Moffat (1873) IR 7 CL 104 ....................................................................1.24 Handley v Moffat 7 ILTR 9 .....................................................................................1.22 Hanlon v Smiths’ Dolphin’s Barn Ltd UD 883/1982 ............................................15.36 Hanlon v Smurfit Kappa Ireland Ltd t/a Smurfit Kappa Dublin [2016] ELR 163 ................................................................................................13.11 Hanly v County Mayo VEC [1999] ELR 10 .........................................................23.66 Hanon v Prendergast UD 274/1985 .......................................................................14.02 Hanrahan v Merck Sharp and Dohme Ltd [1988] ILRM 629 .................................8.38 Hanratty v Minister for Industry and Commerce [1931] IR 189 .............................4.10 Hardie Grant London Ltd v Aspden [2011] UKEAT 0242_11_0311 ..................................................................................................22.20 Hardy v Polk (Leeds) Ltd [2004] IRLR 420 (EAT) ..............................................24.40 Hardyside v Tesco Stores (Irl) Ltd UD 932/1982 ..................................................16.13 Harkin v Caplin UD 15/1986 .................................................................................16.48 Harkins v Shannon Foynes Port Company [2001] ELR 75 ...................................10.33 Harrington v Gleeson (1897) 31 ILT & SJ 429 .......................................................4.31 Harris & Russell Ltd v Slingsby [1973] ICR 454 ..................................................22.27 Harris & Russell v Slingsby [1973] IRLR 221 ......................................................16.89 Harris v PV Doyle Hotels UD 150/1978 ...............................................................13.52 Harris v Southwest Doctors On Call Ltd UD 2012/2011, RP 2594/2011 .............17.21 Harrison Bowden Ltd v Bowden [1994] ICR 186 .................................................22.57 Harrison v National Engineering and Electrical Trade Union UD 406/1987 ........19.08 Harrison v Norwest Holst Group Administration Ltd [1985] IRLR 240 ...............19.09 Harrold v St Michael’s House [2008] ELR 1 .............................................19.03, 19.14 Harte v Iarnród Éireann UD 149/1990 ...................................................................13.90 Harte v Kelly, Anderson and HKC Ltd [1997] ELR 125 ...........................10.40–10.41 Harte v Tender Meats Ltd RP 499/2001 ................................................................18.41 Hartery and Welltrade (Middle East) Ltd v Hurley (15 March 1978) HC ..............4.33 Hartnett v Advance Tyre Company Ltd [2013] IEHC 615 .........................10.14, 10.54 Haseltine Lake & Co v Dowler [1981] IRLR 25 ...................................................22.20

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Table of Cases Haugh and Haugh v Atlanta Nursing Home Ltd UD 490 and 491/1994 .......................................................................................................... 15.45 Haughey v Moriarty [1999] 3 IR 1 .......................................................................... 7.04 Haughey, Re [1971] IR 217 ................................................3.32, 5.08–5.10, 7.28, 8.16 Haughton Main Collieries Co, Re [1956] 1 WLR 1219 ........................................ 11.67 Hayden v Sean Quinn Properties Ltd [1994] ELR 45 ................................ 11.03, 23.43 Hayden v McCormick McNaughton Ltd UD 303/80 ............................................ 21.63 Hayes & Caffrey v B & I Line UD 192/1979 ....................................................... 23.63 Hayes v Dexter 13 ICLR 22 .................................................................................... 4.10 Hayes v Ireland [1987] ILRM 651 .......................................................................... 8.39 Hayes v Jury’s Hotel plc UD 683/1992 ................................................................. 13.90 Hayes v O’Kelly Bros Civil Eng Ltd UD 208/2001 ............................................. 17.26 he Post Office v Roberts [1980] IRLR 347 EAT .................................................... 5.25 Health Service Executive v Doherty [2015] IEHC 611 ............................. 25.31, 25.35 Healy v Alps Electric (Ireland) Ltd UD 699/1994 ................................................ 13.91 Healy v Cormeen Construction Ltd M 263, UD 98/1978 .......................... 13.74, 24.40 ............................................................................................................... 24.52–24.56 Healy v Joseph Brennan Bakeries Ltd UD 622/1980 ............................................ 24.18 Healy v Minister for Defence (7 July 1994) HC ..................................................... 8.34 Hearn v Collins [1998] IEHC 187 ........................................................................... 4.37 Heath v Longman Ltd [1973] 2 All ER 1228 ........................................................ 21.72 Heathman Ltd (t/a County Contractors) v Quadron Property Services Ltd [2016] UKEAT 0451_15_2201 (22 January 2016) ......................................... 18.28 Heelan v Irish Rail UD 360/1994 .......................................................................... 15.06 Heinisch v Germany [2011] IRLR 922 ...................................................... 8.53, 13.130 Helmet Integrated Systems Ltd v Tunnard [2007] IRLR 126 ............................... 16.89 Hempenstall v Minister for the Environment [1994] 2 IR 20 ................................. 9.63 Heneghan v The Western Regional Fisheries Board [1986] ILRM 225 ............................................................................. 3.44, 4.01, 7.63 Henke v Gemeinde Schierke und Verwaltungsgemeinschaft ‘Brocken’ [1996] IRLR 701 .............................................................................................. 18.39 Hennessey v St Gerard’s School Trust Irish Times Law Report 13 March 2006, [2004] ELR 230 ....................................................................... 9.65 Hennessy v Abernethy’s Bakery Ltd UD 582/1994 .............................................. 19.14 Hennessy v McCann Nurseries Ltd UD 7/1979 .................................................... 24.62 Hennessy v Read & Write Shop Ltd UD 192/1978 ................................... 13.11–13.15 Henry Denny & Sons (Ireland) Ltd v Hamill UD 105/1991 ................................. 15.11 Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] I IR 34 ................................................................................ 3.04, 3.07, 25.32 Henry v Ellerman City Liners Ltd [1984] 409 ...................................................... 21.40 Henry v Ellerman Lines plc [1985] ICR 57 .......................................................... 21.41 Herlihy v Superintendent of Gurranabraher Garda Station [2012] IEHC 531 ........ 9.63 Herman v Owners of SS Vicia [1942] IR 305 ....................................................... 11.79 Hernandez v Vodafone Ireland Ltd [2013] ELR 194 ............................................ 16.89 Hertz Rent-A-Car Ltd v Hughes UD 10/1980 ....................................................... 13.49 Hestor v Dunne Stores Ltd [1990] ELR 13 ........................................................... 16.12 Hevey v Dublin Port & Docks Board UD 161/1978 ............................................. 16.13

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Redmond on Dismissal Law Heywood v Wellers [1976] 1 All ER 300 ..............................................................11.48 Hickey & Co Ltd v Roches Stores (Dublin) Ltd [1980] ILRM 107 ......................11.60 Hickey v Eastern Health Board [1990] ELR 177, [1991] 1 IR 208 .........................5.12 .................................................................................................... 10.37, 10.81–10.84 Higgins v Aer Lingus UD 410/1986 ......................................................................16.88 Higgins v Bank of Ireland [2013] IEHC 6 ............................................ 2.02, 7.39, 8.23 Higgins v Donnelly Mirrors Ltd UD 104/1979 ..........................................19.08, 19.10 Higgins v Iarnród Éireann UD 57/1991 .................................................................16.11 Higgins v McNaughton Twisteel Reinforcements Ltd UD 478/1987 ...................16.37 Hill v AUEF (1973) Industrial Tribunal 509/73 ....................................................24.44 Hill v CA Parsons Ltd [1972] 1 Ch 305 .......................................................6.05, 10.20 Hill v General Accident Fire and Life Assurance Corporation plc [1998] IRLR 641 ................................................................ 4.13–4.18, 11.73–11.78 Hill v Parsons Ltd [1972] 1 Ch 305 ............................................................10.96, 11.11 Hilton International Hotels (UK) Ltd v Protopapa [1990] IRLR 316 ...................19.24 Hilton v Carrigaline Pottery Co Ltd UD 153/1979 .....................................13.06, 15.38 Hindle v Percival Boats Ltd [1969] 1 WLR 174 ...................................................17.09 Histon v Shannon Foynes Port Company [2004] ELR 277 .....................................3.28 Hitchcock v Post Office [1980] ICR 100, [1980] IRLR 100 ..........................3.13, 3.38 Hoban v Kildare County Council [2017] ELR 54 .................................................19.03 Hoban v Nitrigin Éireann Teoranta UD 522/1987 .................................................25.55 Hobbert v Dunnes Stores (Tralee) UD 8/1989 ....................................................16.104 Hobson v Liebherr Great Britain Ltd UD 451/2004 ............................................13.110 Hoey v White Horse Insurance Ireland Ltd [2016] ELR 30 ..................................15.01 Hogan v Minister for Justice, Garvey (8 September 1976) HC ...............................3.44 Hogan v United Beverages (14 October 2005) CC .................................................3.11 Hogan v Wavin Ireland Ltd UD 89/1986 ..............................................................15.12 Hollister v National Farmers Union [1979] ICR 542 ............................................22.29 Hopkins v Norcross [1992] PLR 109 .....................................................................11.62 Horgate v Coolock Foods t/a Silvervrest [1990] ELR 91 ......................................16.48 Horkulak v Cantor Fitzgerald International [2004] IRLR 942 (CA), [2005] ICR 402.........................................................................................5.24, 11.63 Horsley Smith & Sherry Ltd v Dutton [1977] IRLR 172 (EAT) ...........................13.06 Hosford v Minister for Social Protection [2015] IEHC 59 ......................................9.13 Hounga v Allen [2014] 1 WLR 2889 .........................................................15.48, 23.43 Housing Aid Manager v A Local Partnership Development Company ADJ-00004920 (11 July 2017) .........................................................................17.05 How v Tesco Stores Ltd [1974] IRLR 194 ............................................................24.76 Howard v Breton Ltd UD 486/1984 ......................................................................23.31 Howard v Ennis Urban District Council [1991] ELR 40 .......................................23.77 Howard v University College Cork [2001] ELR 8 ................................................10.41 Hrvatski liječ nič ki sindikat v Croatia App No 36701/09 ............................8.53, 13.130 Hubbard v McMullen and Gillen Ltd UD 580 .......................................................16.18 Hughes v MongoDB [2014] IEHC 335 ...................................................................2.02 Hugh-Jones v St John’s College, Cambridge [1979] ICR 848 ................................3.38 Humphreys v University of Oxford [2000] ICR 405 .............................................19.33 Hurley v Royal Cork Yacht Club [1997] ELR 225 .........................17.13, 18.65, 25.54

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Table of Cases Husain v BCCI [2002] EWCA Civ 82 .................................................................. 11.51 Hussain v Elonex plc [1999] IRLR 420 (CA) ....................................................... 13.59 Hussein v Labour Court [2012] 2 ILRM 508 ........................................................ 15.48 Hutchinson v Enfield Rolling Mills [1981] IRLR 318 .......................................... 15.12 Hutton v Major George Phillippi UD 291/1980 .................................................... 23.12 Hyde v Kelleher and FAS [2004] ELR 145 .......................................................... 23.08 Hyland v Balmoral Dublin Ltd UD 63/1978 ......................................................... 22.13 Hyland v J H Barker (North-West) Ltd [1985] IRLR 403 .................................... 23.45 Hynes v Conlon (1939) Ir Jur R 49 ................................................................ 1.42, 8.04 Hynes v Garvey [1978] IR 174 ............................................................. 3.44, 7.13, 7.71 Hynes v GEC Distributions (Ireland) Ltd [1992] ELR 95 .................................... 16.74 I Ibidunni v Boston Scientific (Ireland) Ltd [2011] ELR 158 ................................. 23.05 Ikoro v Woodies DIY Limited UDD1739 (3 August 2017) Labour Court.......................................................................................... 13.54, 24.74 Imperial Group Pension Ltd v Imperial Tobacco Ltd [1991] IRLR 66, [1991] ICR 524, [1991] 2 All ER 597 .......................5.23, 5.28, 5.68, 11.52, 19.11 Industrial Rubber Products v Gillon [1977] IRLR 389 ......................................... 19.11 Industrial Yarns Ltd v Greene [1984] ILRM 15 .......................................... 6.28, 22.19 Industriebond FNV v The Netherlands [1985] ECR 511 ...................................... 22.54 International Paint Ltd v Cameron [1979] IRLR 62 ............................................. 21.57 Irani v Southampton and South West Hampshire Health Authority [1985] ICR 590, [1985] IRLR 203 ....................................................... 10.02, 10.22 Irish Aviation Authority v Christopher Reddin UDD1710 ................................... 16.79 Irish Shipping Ltd v Byrne [1987] IR 486 ............................................................ 22.48 Ironmonger v Morefield Ltd [1988] IRLR 461 ..................................................... 22.04 Irvine v Midland Gt W Rly (Ir) Co (1879) 6 LR Ir 55 ............................... 11.01, 11.79 Isle of Wight Tourist Board v Coombes [1976] IRLR 413 ................................... 19.11 Ivory v Arthur B Brennan Ltd UD 895/1984 ........................................................ 16.67 Ivory v Ski-Line Ltd UD 744/1986, (26 February 1988) HC ............................... 14.32 J Jackson v Hayes, Candy & Co Ltd [1938] 4 All ER 587 ...................................... 11.81 Jackson v Horizon Holidays Ltd [1975] 3 All ER 92 ........................................... 11.49 Jackson v John J McCarthy & Co Ltd UD 297/1978 ............................................ 18.13 James Ferris v Royal Liver Friendly Society UD 877/1983 ................................. 13.40 James v Greenwich Borough Council [2008] EWCA Civ 35, [2008] ICR 545 .................................................................................................. 3.08 James v Western Contractors Ltd UD 132/1980 ................................................... 21.41 Jameson v Harris Calorific Ltd UD 372/1991 ..................................................... 13.110 Janciuk v Winerite Ltd [1998] IRLR 63 ............................................................... 11.32 Jarvis v Swans Tours Ltd [1973] 1 All ER 71 ...................................................... 11.49 Jeffers v DCC Ireland Ltd UD 169/2000 ................................................... 17.26, 21.35 Jenvey v Australian Broadcasting Corporation [2002] IRLR 520 ............... 4.14, 11.73 John Brown Engineering Ltd v Brown [1997] IRLR 90 ....................................... 21.51 John Lewis plc v Coyne [2001] IRLR 139 ................................................. 16.10–16.11

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Redmond on Dismissal Law John v Rees [1969] 2 WLR 1294 .............................................................................7.53 Johnson v Longleat Properties (Dublin) Ltd (1978) 13 Ir Jur 186 ........................11.49 Johnson v Nottinghamshire Combined Police Authority [1974] ITR 164 ............18.22 Johnson v Unisys [2001] UKHL 13, [2003] 1 AC 518 ..................................5.30–5.38 ........................................................................................... 5.50, 10.86, 11.19, 24.42 Johnson v Unisys Ltd [2001] ICR 480 ..................................................................10.28 Johnston v Redwood Hydraulics Ltd UD 800/1990 ..............................................14.16 Johnstone v Bloomsbury Health Authority [1991] ICR 269 ...................................5.37 Joines v B and S (Burknale) Ltd [1977] IRLR 83 .................................................13.06 Jones Bros (Hunstanton) Ltd v Stevens [1955] 1 QB 275 .......................................1.09 Jones v F Sirl & Son (Furnishers) Ltd [1997] IRLR 493 ......................................19.12 Jones v Gwent County Council [1992] IRLR 521 ......................................10.09, 10.96 Jones v Lee [1980] IRLR 67 ..................................................................................10.25 Jones v Lee and Guilding [1980] ICR 310 ............................................................10.21 Jordan v McKenna Ltd UD 577/1982 ....................................................................21.61 Jordan v Walter D McKenna Ltd UD 577/1982 ....................................................21.78 Joyce Fitzsimons-Markey v Gaelscoil Thulach na nÓg [2004] ELR 110 .............25.26 Joyce v Board of Management of Coláiste Iognaid [2015] IEHC 80 ..................................................................................................7.21 Joyce v Brothers of Charity Services [2009] ELR 328 ..........................................19.03 Joyce v Health Service Executive [2005] IEHC 174 .............................................10.63 Judd v Hammersmith Hospital Board of Governors [1960] 1 WLR 328 ..............11.59 Judge v Crown Leisure Ltd [2005] IRLR 823 .......................................................19.10 Junk v Kuehnel [2005] IRLR 310 ..........................................................................21.68 JVC Europe Ltd v Panisi [2011] IEHC 279, [2012] ELR 70 ................................16.02 K Kallinos v London Electric Wire [1980] IRLR 11 ................................................22.09 Katsikas v Konstantinidis [1993] IRLR 1979 ........................................................18.34 Kaufman v RMF (NI) Ltd [1996] ELR 219 .........................................................23.102 Kaur v MG Rover Group Ltd [2005] ICR 624 ......................................................17.01 Kavanagh v Cooney Jennings Ltd UD 175/1983 ..................................................18.12 Kavanagh v Eurosnax International Ltd UD 319/1985 .......................................13.104 Kavanagh v PARC (1989) 7 ILT (ns) 180 .............................................................23.14 Kay v Nobrac Carbon Ltd (18 December 1985) CC .............................................23.18 Kean v Fitzgerald (1894) 28 ILT & SJ 620 (Ex) .....................................................4.33 Kean v Western Health Board UD 940/1988 ........................................................19.14 Keane v Swim Ireland [2004] ELR 6 ......................................................................3.03 Keane v Western Health Board UD 940/1988 .......................................................22.23 Keane v Westinghouse Electric Ireland Ltd UD 633/1986 ...................................16.63 Kearney v Flexhaven Ltd UD 463/2013 ................................................................16.15 Kearney v Minister for Justice [1986] IR 116 .........................................................8.39 Kearney v Saorstát and Continental Shipping (1943) Ir Jur Rep 8 ........................22.40 Kearney v Standard (1938) Ltd UD 138/1978 .......................................................24.75 Kearney v Tesco (UD86/2010) ..............................................................................15.09 Keating v Customs Clearance (Service) Dundalk UD 825 P14/1991 ...................14.14 Keeley v Fosroc Int Ltd [2006] IRLR 961 .............................................................21.35

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Table of Cases Keen v Commerzbank AG [2007] ICR 623 ............................................................ 5.21 Keen v Dymo Ltd [1977] IRLR 118 ..................................................................... 13.06 Keenan v Iarnród Éireann [2010] IEHC 15 ........................................................... 10.33 Keenan v The Gresham Hotel Ltd UD 478/1988 .................................................. 17.18 Kehoe v Memorex Media Products UD 222/1987 ................................................ 25.54 Kelleher v St James Hospital Board UD 59/1977 ................................................. 17.20 Kellett v Dublin Providers Ltd UD 728/1986 ....................................................... 16.43 Kelly v Aer Rianta International CPT [1998] ELR 170 ...................................... 23.100 Kelly v Alienvault Ireland Ltd (2016) The Irish Examiner, 3 November ............. 20.28 Kelly v An Post UD 974/1986 ................................................................... 13.84, 16.11 Kelly v Board of Management of St Joseph’s National School [2013] IEHC 392 ...................................................................................... 7.24, 9.26 Kelly v Braun Ireland Ltd UD 703/1992 ............................................................. 13.104 Kelly v Cavanagh, Cavanagh, Heigher Ltd (in liq) and Dubshad Ltd UD 222, 223, 224/1996 ................................................................................... 18.39 Kelly v CIÉ UD 214/1984 (11 February 1985) CC ........................ 13.34, 16.68, 21.75 Kelly v CIÉ UD 28/1978 ............................................................... 13.104, 16.33, 24.08 Kelly v Ireland [1986] ILRM 318 .................................................................. 9.72–9.75 Kelly v Irish Prison Service [2017] IEHC 118 ........................................................ 9.63 Kelly v Langarth Properties Ltd UD 742/1993 .......................................... 21.35, 21.45 Kelly v Minister for Agriculture [2012] IEHC 558 ................................................ 7.59 Kelly v Murphy UD 144/1993 .............................................................................. 25.43 Kelly v Power Supermarkets Ltd [1990] ELR 41 ...................................... 13.49, 13.50 Kelly v Sheehan’s Cash and Carry UD 925/1996 ................................................. 13.52 Kemmy v Amgen Technology (Ireland) t/a Amgen UD 1979/2013 ..................... 23.80 Kemp v Shipton Automation Ltd [1976] IRLR 305, [1976] ICR 514, 11 ITR 232 ....................................................................................................... 24.66 Kendrick v Aerduct Productions [1974] IRLR 322 .............................................. 24.76 Kenealy v The Mayor, Aldermen and Burgesses of the Borough of Kilkenny [1905] 2 IR 167 .................................................................................................. 7.17 Kennan v Raheny and District Credit Union Ltd UD 111/1980 ........................... 19.10 Kennedy Gartry v Dr Andrew Laserian McDermot UD 20/1990 ......................... 21.55 Kennedy v Avon Arlington Ltd UD 934/1992 ...................................................... 13.77 Kennedy v Cappincur Joinery Ltd UD 38/1977 .................................................... 17.05 Kennedy v Ireland [1987] IR 587 ............................................................................ 8.19 Kennedy v Same UD 8/1978 ................................................................................. 21.41 Kennedy v Veolia Transport (Ire) Ltd UD 240/2006 ............................................ 16.81 Kenny v Irwin and Trustees of the Operative Plasterers & Allied Trades Society of Ireland [1991] ELR 152 ........................................................ 3.39, 22.05 Kenny v South Manchester College [1993] ICR 934 ............................................ 18.45 Kenny v Tegral Building Products Ltd [2006] ELR 309 ...................................... 23.20 Kenny v Tegral Building Products Ltd UD 837/2004 ............................... 23.31, 23.72 Kenny v Trustees of the Operative Plasterers & Allied Trades Society of Ireland UD 14/1990 ..................................................................................... 23.09 Keogh v McGettigan and Newsfast Freight RP 505/2004 .................................... 18.28 Keogh v Mentroy Ltd UD 209/2009 ..................................................................... 17.28 Keohane v Douglas Nursing and Retirement Home Ltd UD 246/1996 ................ 16.69

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Redmond on Dismissal Law Keon v Hart (1867) CP 2 CL 138 ............................................................................1.35 Kerr v Marley Extrusions (Ireland) Ltd UD 78/1978 ............................................24.41 Kerr v Tower Hotel Group Ltd UD 12/1977 ............ 13.73, 24.44, 24.55, 24.64, 24.71 Kerry Foods Ltd v Creber [2000] IRLR 10 ...........................................................18.60 Kerry Foods Ltd v Lynch [2005] IRLR 680 ..........................................................17.17 Keyes v B & I Line plc UD 959/1991 ...................................................................16.26 Keys v Shoefayre Ltd [1978] IRLR 476 ................................................................19.11 Khan v Health Service Executive [2008] IEHC 234 ...............................................7.08 Khan v HGS Global Ltd [2015] UKEAT 0176_15_1611 .....................................22.32 Khanum v Mid-Glamorgan Area Health Authority [1978] IRLR 215 ..................13.58 Kiely v Leo Laboratories Ltd [1998] ELR 172 .....................................................25.53 Kiely v Minister for Social Welfare (No 2) [1977] IR 267 ....... 7.10, 7.28, 7.44, 10.48 Kiernan v A Wear Ltd UD643/2007 ......................................................................16.97 Kiernan v Dublin Corporation UD 436/1988 ........................................................16.39 Kiernan v Our Lady’s Hospital for Sick Children UD 1129/1992 ........................13.63 Kierse v NUIG UD 219/2000 ................................................................................23.80 Kilgannon and Hegarty v Peamount Hospital UD 722 and 723/1987 ...................23.29 Killgren v Teagasc UD 929/1995 ..........................................................................23.80 Kilsaran Concrete Ltd v Vitalie Vet [2016] ELR 237 ................................13.72, 16.14 King v Cummins & Sons UD 123/2004 ................................................................16.71 King v Eaton Ltd (No 2) [1998] IRLR 686 ...........................................................13.24 King v University Court of the University of St Andrews [2002] IRLR 252 ..........5.46 King v University of Saskatchewan (1969) 6 DLR .................................................7.62 Kingsley v United Kingdom (2002) 35 EHRR 177 .................................................7.62 Kingston v Irish Dunlop Co Ltd [1969] IR 233 .....................................................10.96 Kinlan v Ulster Bank Ltd [1928] IR 171 ...............................................................11.44 Kinsella v Ulster Bank Ltd (25 October 2016) HC ................. 7.13, 8.27, 10.67, 13.40 Kirk v Irish Holemasters Ltd UD 601/1997 ..........................................................14.14 Kirwan v Northside Motors Ltd UD 12/1979 ........................................................13.11 Kirwan v Technical Engineering and Electrical Union [2005] ELR 177 (HC) ...............................................................................3.10, 3.39 Kirwan v The Mental Health Commission [2012] IEHC 217 ...............................10.73 Klarenberg Case C–466/07, [2009] IRLR 301, [2009] ICR 1263, [2009] EUECJ C–466/07 ......................................................................18.50, 18.75 Knapton v ECC Card Clothing [2006] IRLR 756 (EAT) ......................................24.60 Knight v AG [1979] ICR 194 ..................................................................................3.38 Knowles v Puresafe Ltd UD 435/2006 ..................................................................24.45 Knox v Henderson Retail Ltd [2017] NICA 17 (10 March 2017) ..............19.05, 19.11 Kohinoor Ltd v Ali UDD1629 ....................................................................21.45, 21.52 Kolfor Plant Ltd v Wright [1982] IRLR 311 (EAT) ..............................................14.36 Kopke v Germany [2010] ECHR 1725 .......................................................8.52, 13.128 Kuckson v Stones [1858] 1 E & E 248 ..................................................................10.04 Kudeshkina v Russia [2009] ECHR 342 ....................................................8.53, 13.130 Kurfey v Dublin Gas Company UD 483/1986 ....................................................13.111 Kwik-Fit (GB) Ltd v Linehan [1992] IRLR 156 ...................................................22.25 Kyle Steward Contractors v Stainrod (1977) EAT 406/77 ....................................21.41

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Table of Cases Kylemore Services Group v Terrie Clarke EDA 169 (16 May 2016) ................... 25.25 Kyne v Irish Grain Board Ltd (In receivership) UD 366/1985 ............................. 23.43 L ‘La Lavia’, Re [1996] 1 ILRM 194 ......................................................................... 9.47 Laffin and Callaghan v Fashion Industries (Hartlepool) Ltd [1978] IRLR 488 .............................................................................................. 21.60 Lamb Bros (Dublin) Ltd v Davidson (4 December 1979) HC ................................ 3.11 Land Securities Trilliam Ltd v Thornley [2005] IRLR 765 EAT ......................... 19.10 Landers v AG (1973) 109 ILTR 1 ........................................................................... 8.14 Landsorganisationen Denmark v Ny Mølle Kro [1987] ECR 5465 ...................... 18.38 Lane v Shire Roofing Company (Oxford) Ltd [1995] IRLR 493 ........................... 3.08 Lang v Government of Ireland [1993] ELR 234 ..................................................... 7.13 Langan v Abbott (Ireland) Ltd UD 120/1989 ....................................................... 15.20 Langley v Burbo [2006] IRLR 460 ....................................................................... 11.12 Larkin v Irish Rail UD 603/1988 .......................................................................... 16.12 Laughton & Hanley v Bapp Industrial Supplies Ltd [1986] IRLR 245 ................ 16.89 Lavarack v Woods of Colchester Ltd [1967] 1 QB 278 ........................................ 11.63 Lavery v Irish Silver Ltd UD 68/1977 ............................................ 13.26, 15.39, 24.21 Lavery v Plessey Telecommunications Ltd [1983] IRLR 202 (Court of Appeal) ............................................................................................. 14.36 Law v Chartered Institute of Patent Agents [1919] 2 Ch 276 ................................. 7.60 Lawler v Linden (1876) CP 10 CL 188 ................................................................... 1.35 Lawless v Dublin County Council [1990] ELR 101 (EAT) .................................. 15.12 Lawless v RTV National Vision Ltd [1990] ELR 47 ............................................ 15.31 Lawlor v House of Names Ltd UD 12/1991 ......................................................... 22.35 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 .......... 4.29 Laws v London Chronicle Ltd [1959] 2 All ER 285 ............................................... 6.02 Lawson v Serco Ltd [2006] IRLR 289 .................................................................. 23.99 LE v Greece, App No 71554/12 (21 January 2016) ECtHR ...................... 8.53, 13.130 Leary v National Union of Vehicle Builders [1971] Ch 34 .................................... 7.68 Leconfield v Thornley [1926] AC 10 ...................................................................... 3.34 Ledernes Hovedorganisation acting for Rygaard v Danks Arbejdsgiverforening acting for Strø Mølle Akustik A/S [1996] IRLR 51 ........................................ 18.44 Ledwidge v Peter Mark Ltd UD 70/1978 ................................................... 24.40, 24.75 Leeson v GNC (1889) 43 Ch D 366 ........................................................................ 7.60 Lefever v The Trustees of the Irish Wheelchair Association UD 492/1995 ................................................................................................... 17.13 Leggett v Barry’s Tea Ltd UD 207/1989 .............................................................. 24.58 Lennon v Commissioner of An Garda Síochána [2003] IEHC 127 ........................ 3.44 Leonard v Willie’s Restaurant [2004] ELR 14 ................................................... 23.112 Leopard Security Ltd v David Campbell [1997] ELR 227 ..................................... 4.21 Levett v Biotrace Int plc [1999] IRLR 375 ................................................ 11.61–11.63 Lewis v Motorworld Garages Ltd [1986] ICR 157 (CA), [1985] IRLR 465 .......... 5.25 ...................................................................................................... 5.28, 11.52, 19.11 Lightways (Contractors) Ltd v Associated Holdings [2000] IRLR 247 ............... 18.75 Limerick Health Authority v Ryan [1969] IR 194 ................................................ 21.32

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Redmond on Dismissal Law Lindsay v Queen’s Hotel Ltd [1919] 1 KB 212 .....................................................11.63 Linehan and Murphy v Jeremiah Fitzpatrick Ltd UD 555 and 556/1992 ..............16.85 Lissadel Towels Ltd v O’Halloran UD 203/1978 ..................................................24.77 Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546 ....................18.60 Little v Charterhouse Magna Assurance Co Ltd [1980] IRLR 19 .........................19.11 Liverpool Corp v Wright 28 LJ Ch 868 ...................................................................3.33 Living Design (Home Improvements) Ltd v Davidson [1994] IRLR 69 ............16.114 Lloyd v Standard Pulverised Fuel Co Ltd [1976] IRLR 115 .................................24.76 l-Mishab v Milton Keynes NHS Foundation Trust [2015] EWHC 3096 (QB) .....10.28 Loftus and Healy v An Bord Telecom (13 February 1987) HC ............................13.21 Loftus v The Attorney General [1979] IR 221 ......................................................24.80 Logabox v Titherley [1977] IRLR 97 ....................................................................19.11 Logan Salton v Durham County Council [1989] IRLR 99 ....................................22.38 London Borough of Camden v Pedersen [1979] IRLR 377 ..................................19.11 London Borough of Waltham Forest v Omilaju [2005] IRLR 35 ..............16.09, 19.05 London Transport Executive v Clarke [1981] IRLR 166 ......................................22.09 London Underground Ltd v Ferenc-Batchelor [2003] IRLR 252 (EAT) ..............13.77 Lonergan v Salter-Townshend, Irish Council for People with Disabilities [2000] ELR 15 ..................................................................................................10.34 Looney and Co Ltd v Looney UD 843/1984 .........................................................16.11 Loughran v Bearcroft Caterers UD 61/1978 ..........................................................24.55 Loughran v Bellwood Ltd UD 206/1978 ...............................................................13.10 Luce v London Borough of Bexley [1990] IRLR 422 ...........................................21.26 Ludi v Switzerland (1993) 15 EHRR 173 ..............................................................13.98 Lumley v Wagner (1852) 1 De G M & G 604 .......................................................10.03 Lupton v Allied Irish Banks Ltd (1984) 3 JISSL 107 ..............................................5.11 Lynch v Dublin Corporation UD 193/1985 ...........................................................16.38 Lynch v Jim Dwyer Motors Ltd (In receivership) UD 1025/1984 ........................23.13 Lyon v St James’ Press Ltd [1976] ICR 413 .........................................................21.27 Lyons v Gallagher and Others UD 1531/2003 ...........................................18.28, 18.41 Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272 .............................................................. 7.40, 10.53, 10.60, 13.70 Lyons v MF Kent & Co (International) Ltd (in liq) [1996] ELR 103 .....................4.06 M M v An Bord Uchtála [1975] IR 81 .........................................................................8.09 M v Medical Council [1984] IR 485 ........................................................................8.20 Macari v Celtic Football and Athletic Co [1999] IRLR 787 .................................16.43 Macken v Irish Equestrian Federation (20 July 1978) HC ......................................8.14 MacLehose v R & G Taverns Ltd [1999] ELR 180 ...............................................16.15 MacNeilage v Arthur Roye (Turf Accountants) Ltd [1976] IRLR 88 ...................19.11 Madden v Brown Thomas & Co Ltd UD 263/1992 ..............................................13.09 Maddy v Duffner Bros Ltd UD 803/86 ..................................................................19.10 Madigan v Yvonne Models Ltd UD 295/1978 ......................................................24.56 Magham v Janssen Pharmaceuticals BV UD 1127/1984 ......................................13.59 Maguire v Ardagh [2002] 2 IR 385 ................................................................7.04, 7.41

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Table of Cases Maguire v Funny Biz Ltd UD 879/1992 .................................................... 13.96, 16.15 Maguire v Ofrex Group (Ireland) Ltd UD 90/1980 .............................................. 24.58 Maha Lingham [2006] ELR 137 .................................................................................... Maha Lingham v Health Service Executive [2005] IESC 89, [2006] ELR 137 ..........................................5.55, 10.10, 10.30, 10.88–10.92, 20.26 Mahamdia (Case C–154/11) .................................................................................. 25.64 Maher v Aim Group UD 398/2004 ....................................................................... 13.97 Maher v B & I Line UD 271/1978 ............................................................. 22.65, 23.28 Maher v Beirne (1959) 93 ILTR 101 .................................................................... 21.06 Maher v Greyhound Waste Disposal Ltd UD 705/2005 ....................................... 22.25 Maher v Irish Permanent plc (No 1) [1998] ELR 77 ................................. 10.42, 10.46 Maher v Irish Permanent plc (No 2) [1998] ELR 89 ................................... 7.51, 10.48 Mahon v Cummins Graphics Supplies Ltd [1991] ELR 53 ................................ 13.104 Mahon v Eircom Limited [2017] ELR 78 ............................................................. 13.31 Mahony v Department of Defence UD 28/1989 ................................................... 15.30 Malik and Mahmood v Bank of Credit and Commerce International SA [1997] IRLR 462, [1998] AC 20 .......................... 2.06, 5.28–5.33 .....................................................................5.38, 11.45–11.46, 11.51–11.56, 19.11 Malloch v Aberdeen Corpn [1971] 1 WLR 1578 .................................................... 3.30 Malone v Galway Shopping Centre Management Ltd UD 515/1994 ................... 18.42 Malone’s Application, Re [1988] NI 67 ......................................................... 9.14–9.17 Managers (Holborn) Ltd v Hohne [1977] IRLR 230 ............................................ 19.10 Manifold Industries v Sims [1991] IRLR 242 ....................................................... 21.90 Manning v Indigo Holdings Ltd UD 1001/1994 ................................................... 18.04 Mannion v Noughton and Noughton [2014] ELR 36 ............................................ 19.03 Mansour v Romansa Ltd UD 360/2004 ................................................................ 22.21 Maranan v Beechfield Nursing Homes Limited [2017] ELR 51 .......................... 13.24 Marbé v Geo Edwardes [1928] 1 KB 269 ............................................................. 11.47 Margiotta v Mount Charlotte Investments Ltd [1966] ITR 465 ............................ 17.16 Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 (QBD) ........................................................................... 3.07–3.09 Marriot v Oxford and District Co-Op Soc (No 2) [1970] 1 QB 186, [1969] 3 All ER 1126 (CA) ............................................................................. 19.12 Marsden v Fairey Stainless Ltd [1979] IRLR 103 ................................................ 22.09 Marsh v National Autistic Society [1993] ICR 453 ................................................ 6.14 Marsh v University College Dublin UD 27/1997 ........................... 23.68, 24.18, 24.21 Marshall Specialist Vehicles Ltd v Osborne [2003] IRLR 672 EAT .................... 19.12 Marshall v Harland & Wolff Ltd and the Secretary of State for Employment [1972] IRLR 90 ................................................................................................ 15.15 Marshall v NM Management Ltd [1996] IRLR 20 ............................................. 16.114 Martin v Audio Video Services Centre Ltd UD 617/1991, [1992] ELR 216 (EAT) .............................................................. 13.96, 16.04, 16.15 Martin v Dunnes Stores (Enniscorthy) UD 571/1988 ........................................... 16.24 Martin v Permanent Defence Force Other Ranks Representative Association [1995] ELR 158 ........................................................................... 23.60 Martin v South Bank University [2004] IRLR 74 ................................................. 18.29 Martin v Minister for Social Protection [2017] IEHC 361 ..................................... 9.23

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Redmond on Dismissal Law Martin v Nationwide Building Society [1999] ELR 241 .......................................10.50 Martin v Yeomen Aggregates Ltd [1983] IRLR 49 ...............................................22.22 Maryland v Citywest Golf and Country Club UD 1438/2004 ...............................24.42 Mason v Governing Body of Ward End Primary School [2006] IRLR 432 .........13.24 Mason v The Post Office [1973] IRLR 51 .............................................................24.13 Massey v Crown Life Insurance Co [1978] ICR 594 ..............................................3.11 Mathewson v RB Wilson Dental Laboratory Ltd [1988] IRLR 512 .....................16.26 Matthews v Centre Travel Bureau de Change UD 926/1986 ................................13.91 Matthews v Ophardt Products Ltd UD 550/1983 ..................................................14.12 Matthews v Sandisk International Ltd UD 331/2010 ............................................22.75 Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] ICR 270 ......................................................................................8.51, 13.127 Maund v Penwith DC [1984] ICR 143 ..................................................................21.17 Maunsell v Minister for Education and the Very Rev Canon Breen [1940] IR 213 .....................................................................................................7.49 Maxwell Fleet and Facilities Management Ltd, Re [2000] IRLR 368 .......18.75–18.76 Maxwell v English Language Institute UD 580 P17/1989 ....................................14.14 Maxwell v Hickey & Co Ltd UD 5/1991 ...............................................................25.53 May v Moog Ltd [2002] ELR 261 .........................................................................22.22 Maybury v The Commissioner of An Garda Síochána [2016] IEHC 224 ...............9.63 Mayeur v APIM [2002] IRLR 783, [2002] ICR 1316 ...............................18.33, 18.40 McAdie v Royal Bank of Scotland [2007] EWCA Civ 806 ..................................24.70 McAndrew v Eagle Star Life Assurance Co Ltd UD 134/2002 ............................13.50 McArdle v Kingspan Ltd UD 1342/2003 ...................................................13.16, 24.18 McArdle v Superquinn [1991] ELR 171 (EAT) ....................................................13.95 McAuliffe v Minister for Social Welfare [1995] 2 IR 238 .............................3.09, 3.13 McBride v Midland Electrical Co Ltd UD 37/1979 ..............................................24.01 McBridge v Midland Electrical Co Ltd UD 48/1979 ............................................24.18 McCabe v Chicpack Ltd [1976] IRLR 38 ..............................................................19.11 McCabe v Lisney & Son UD 5/1977 ..........................................................24.64, 24.76 McCabe v Lisney & Son [1981] ILRM 289 ...............................................24.63–24.69 McCabe v Unimade Ltd UD 549/1995 ..................................................................15.36 McCall v An Post UD 132/1994 ............................................................................13.21 McCarthy v BREEO Foods Ltd [2009] IEHC 254, [2010] ELR 53 ........................4.08 McCarthy v CIÉ UD 172/1984 ..............................................................................21.75 McCarthy v CIÉ (10 May 1985) CC ......................................................................13.21 McCarthy v Du Buisson and Sykes UD 325/1990 ................................................23.13 McCarthy v Irish Shipping Ltd UD 100/1978 ............................................13.58, 24.51 McCarthy v Sunbeam Ltd [1991] ELR 38 .............................................................14.12 McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594 ....................................................................................4.10, 5.16 McConnon v Sligo Dairies Ltd UD 1104/1993 .....................................................18.04 McConville v ESB [1997] ELR 46 ........................................................................19.24 McCormac v PH Ross Ltd UD 206/1979 ..............................................................21.32 McCormack v Brady P30/1992 .............................................................................14.28 McCormack v Garda Complaints Board [1997] 2 IR 489 .......................................7.04 McCormack v Hanlon Exports Ltd UD 460/1986 .................................................19.14

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Table of Cases McCormick v DA Ellison [1990] ELR 170 .......................................................... 21.39 McCrory v Magee [1983] IRLR 414 (NICA) ....................................................... 13.04 McCrossan v Department for Social Development [2016] NIIT 00062_15FET (3 November 2016) .................................................................. 21.28 McDermott v Allied Irish Banks UD 166/1978 .................................................... 24.53 McDermott v Kemek Ltd/Irish Industrial Explosives Ltd [1996] ELR 233 .................................................................................... 16.13, 16.89 McDermott v Loy (29 July 1982) HC ..................................................................... 3.12 McDermott v NEC Semiconductors Ireland Ltd UD 146/2001 ............................ 16.90 McDermott v The Carpet Mills UD 1124/1995 .................................................... 14.14 McDonagh v Galway Corporation [1991] ELR 33 ............................................... 19.16 McDonald v Bord na gCon [1965] IR 217 .............................................................. 7.02 McDonald v Flanagan and Co Ltd UD 648/1990 ................................................. 16.20 McDonald v Parish of St Helier [2005] JRC 074 (3 June 2005) ........................... 11.33 McDonnell v Carpenter Energy Savers UD 491/1988 .......................................... 24.51 McDonnell v Minister for Education [1940] IR 316 ............................................... 4.09 McDonnell v The Drawing Centre Ltd UD 715/1993 .......................................... 17.05 McElarney v QMI Ltd UD 141/1992 .................................................................... 22.19 McElroy v GE Capital Aviation Services Ltd UD 713/2004 ................................ 23.99 McEneaney v Cavan and Monaghan ETB [2016] IECA 53 .......................... 9.13, 9.65 McEniry v The Waterford & Kilkenny Rly Co (1858) 8 CL (Ir) 312 ..................... 1.36 McEvoy and Doyle v Prison Officers Association [1998] ELR 250 ............. 5.07, 8.40 McEvoy v Avery Dennison Ltd [1992] ELR 172 ................................................. 13.71 McEvoy v Governor and Company of the Bank of Ireland [2006] IEHC 3 ................................................................................................. 10.61 McEvoy v International Contract Cleaners (Ireland) Ltd UD 830/1986 ............... 16.37 McGarrigle v Donegal Sports and Golf Centre Ltd UD 680/2002 ....................... 13.58 McGarry v Jury’s Hotel plc UD 775/1992 ............................................................ 13.90 McGee v Beamount Hospital UD 136/1984 ......................................................... 13.33 McGee v Revenue Commissioners and AG [1974] IR 284 .................. 1.04, 8.19, 8.33 McGibbon v Mark Royce Ltd UD 90/1978 .......................................................... 13.74 McGinn v Murnaghan Bros Ltd UD 13/2009 ....................................................... 17.05 McGlinchey v Ryan McGlinchey v Ryan [2010] IEHC 536 .................................. 9.79 McGowan v Kelleher Public Works Ltd UD 9/1980 ............................................ 16.53 McGowan v Scottish Water [2005] IRLR 167 ...................................................... 13.98 McGrath and Ó Ruairc v The Trustees of the College of Maynooth [1979] ILRM 166 ............................................................................. 7.32, 8.09, 8.13 McGrath and Restrick v Fisher Field Construction & Farm Machines Ltd UD 927 and 928/1982 ...................................................................................... 15.32 McGrath v Athlone Institute of Technology [2011] IEHC 254 ............................ 10.73 McGrath v Burke 957 P23/1988 ........................................................................... 14.14 McGrath v CA Jenkins & Sons Ltd UD 227/1978 ................................................ 19.10 McGrath v de Soissons (1962) 112 LJ 60 ............................................................. 11.63 McGrath v Minister for Justice [2001] ELR 15 .................................................... 11.44 McGrath v Short UD 315/1978 ............................................................................. 15.39 McGrath v The Commissioner of An Garda Síochána [1991] IR 68 ............. 9.68–9.75

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Redmond on Dismissal Law McGrath v Trintech Technologies Ltd [2005] 4 IR 382 ....................... 4.17, 5.38–5.41 ...................................................................10.70, 10.87, 11.56, 11.78, 15.10, 19.10 McGrory v Campbell UD 49/1979 ........................................................................19.10 McGuigan v The Guardians of the Poor of the Belfast Union (1885) 18 LR Ir 89 .............................................................................................1.32 McGuire v McElvaney Motors Ltd [1990] ELR 153 ............................................19.10 McGuirk v Shamrock Oil Supplies Ltd UD 528/1996 ..........................................18.16 McGuirk v WP Keeling & Sons Ltd UD 325/1985 ...............................................23.27 McHugh v Commissioner of Garda Síochána [1987] ILRM 181 ...................3.44, 7.49 McIlraith v Seitz Filtration (GB) Ltd [1998] ELR 105 ........................................23.104 McIlwraith v His Honour Judge Fawsitt [1990] 1 IR 343 .....................................25.67 McKayed v Forbidden City Ltd t/a Translations.ie [2016] IEHC 722 ................................................................................................3.21 McKendry v Avery Hardoll [1977] IRLR 369/77 .................................................21.27 McKenna v Bursey Peppard Ltd [1997] ELR 87 ...................................................22.14 McKenna v Farrell Bros [1991] ELR 77 ...............................................................16.48 McL v An Bord Uchtála [1975] IR 81 ...................................................................21.23 McLaren v Chalet Club (1951) 1 CLC 2508 .........................................................11.47 McLeish v Ten Pin Bowling Co of Ireland UD 94/1978 .......................................13.12 McLoughlin v GSR Co (1944) 78 ILTR 74 .............................................................4.03 McLoughlin v Minister for Social Welfare and Patrick J Byrne [1958] IR 1 .........................................................................................................3.45 McLoughlin v Setanta Insurance Services Ltd [2011] IEHC 410 .........................10.54 McMahon v Cootehill Livestock Sales Ltd UD 102/1980 ....................................24.08 McMahon v Irish Aviation Authority [2014] IEHC 431 .......................7.13, 8.23–8.27 McMahon v Leonard 6 HLC 870 .............................................................................4.10 McManamon v Videpro International Products Ltd UD 250/1991 .......................19.25 McMeechan v Secretary of State for Employment [1995] IRLR 461 ...................23.06 McMeechan v Secretary of State for Employment [1997] ICR 549 .......................3.08 McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031 ..............13.112 McMillan v Comreof Ltd UD 237/1995 ................................................................21.57 McMillan v Guest [1942] AC 561 ..................................................................3.29–3.30 McNamara v Lannit (Ireland) Ltd UD 910/1984 ...................................................13.62 McNamara v South Western Area Health Board [2001] ELR (HC) .......................7.13 McNeill v Commissioner of Garda Síochána [1995] 1 ILRM 321 ................3.44, 9.67 McNulty v Ballyheane Community Sports Club Limited (UD26/2012) ...............13.58 McSorley v County Kilkenny Vocational Education Committee (24 June 2005) HC .............................................................................................7.13 McSweeney v OK Garages Ltd UD 107/1978 ......................................................18.19 McSweeney v Sunbeam Ltd UD 62/1978 ........................... 24.18–24.21, 24.41, 24.56 Meade v London Borough of Haringey [1979] 1 WLR 637 ...................................8.09 Meade and Baxendale v British Fuels Ltd [1997] IRLR 505, [1998] IRLR 706 ...................................................................................18.85, 18.86 Meath County Council v Creighton UD 11/1977 ..................................................13.20 Mehigan v Dyflin Publications UD/582/2001 (EAT) .................................13.98, 16.96 Meighan v Power Supermarkets Ltd UD 610/1995 ...............................................16.15 Meikle v McPhail (Charleston Arms) [1983] IRLR 351 .......................................18.61

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Table of Cases Melia v Security Wardens Ltd UD 805/1986 ........................................................ 16.80 Melroy v Floraville Nurseries Ltd UD 703/1993 .................................................. 17.07 Memorex World Trade Corporation v Employment Appeals Tribunal [1990] 2 IR 184 ....................................................................................... 8.32, 24.18 Merchants of Waterford YB 2 Ric 3, f 12, 1 Hen 7 f 2 ........................................... 1.31 Merckx and Neuhuys v Ford Motor Co Belgium SA [1996] IRLR 467 ............... 18.45 Merrigan v Home Counties Cleaning Ireland Ltd UD 904/1984 .......................... 18.11 Merriman v St James’s Hospital Board UD 365/1986 .......................................... 16.50 Meskell v CIÉ [1973] IR 121 ..............................................2.05, 8.04, 8.11–8.12, 8.34 ...................................................................................................... 8.45, 21.23, 24.04 Michael Peters Ltd v (1) Fanfield and (2) Michael Peters Group plc [1995] IRLR 190 .............................................................................................. 18.76 Micklefield v SAC Technology Ltd [1991] 1 All ER 275 .................................... 11.61 Midland International Ltd v Cooney P15/1990 ..................................................... 14.28 Mid-Western Health Board v Ponnampalam (26 March 1980) CC ...................... 25.12 Mikkelsen v Danmols Inventar A/S [1985] ECR 2639 ......................................... 18.33 Miles v Wakefield BC [1987] IRLR 193 ................................................................ 3.38 Miles v Wakefield Council [1985] 1 WLR 822, CA .............................................. 3.33 Miles v Wakefield Metropolitan District Council [1987] AC 539 ......................... 3.31 Miley v Employment Appeals Tribunal [2016] IESC 20 ...................................... 25.67 Miliangos v George Frank (Textiles) Ltd [1976] AC 443 ...................................... 5.69 Miller v Karlinski [1945] 62 TLR 85 .................................................................... 23.47 Miller v Rafique [1975] IRLR 70 ............................................................... 21.27–21.32 Millett v Shinkwin UD 4/2004 .............................................................................. 22.22 Minister for Agriculture & Food v Barry [2008] IEHC 216, [2009] 1 IR 215, [2008] ELR 245 .......................................................... 3.17, 25.32 Minister for Agriculture v Barry [2011] IEHC 43 .................................................. 3.15 Minister for Agriculture v Barry [2015] IESC 63 ................................................... 3.17 Minister for Education v Regional Technical College, Letterkenny and Colin Morrow [1995] 1 ILRM 438 ........................................................... 3.42, 9.42 Minister for Finance v Civil and Public Service Union [2007] ELR 36 ............... 25.22 Minister for Finance v McArdle [2007] 2 ILRM 438 ........................................... 25.35 Minister for Labour v Daniel P O’Connor and Irish Dunlop Co Ltd (6 March 1973) HC .......................................................................................... 25.54 Minister for Labour v PMPA Insurance Co Ltd No 674SS/1985 (1986) 5 JISLL 215 .......................................................................................... 23.06 Ministry of Defence v Wheeler [1998] 1 WLR 637 .................................. 11.34, 11.86 Minnock v Irish Casing Co Ltd And Stewart [2007] ELR 229 ............................. 10.53 Mitchell v Grier Electric and WJ Grier UD 1012/1992 ........................................ 19.27 Mitchell v Louie Fagan Ltd UD 370/1985 ............................................................ 25.48 MITIE Managed Services Ltd v French [2002] IRLR 512 ................................... 18.28 Moloney v J & F Goodbody Ltd UD 6/1978 ........................................................ 21.41 Moloney v W Deacon & Sons Ltd [1996] ELR 230 ............................................. 17.04 Monaghan v Aidan and Henrietta Hayes Partnership [2017] ELR 8 ......... 20.12, 20.20 Monie v Coral Racing Ltd [1980] IRLR 464 ........................................................ 16.16 Mooney v An Post [1994] ELR 103 (HC), [1998] ELR 238 (SC) .......................... 5.13 .................................................................................................7.08, 7.28, 7.29, 7.65

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Redmond on Dismissal Law Mooney v An Post [1998] 4 IR 288 ................................................................5.15, 9.77 Mooney v Foy UD 657/1989 .................................................................................13.20 Mooney v Rowntree Mackintosh Ltd UD 473/1980 .............................................15.19 Moorcock, The (1889) 14 PD 64 .............................................................................5.18 Moore v CIÉ UD 355/1984 (1985) CC ..................................................................21.75 Moore v Der Ltd [1971] 1 WLR 1476 ...................................................................24.76 Moore v Menzies World Cargo (Ireland) Ltd UD 1361/2005 ...............................21.56 Moore v Xnet Information Systems Ltd [2002] ELR 65 .......................................10.37 Moores v Bude-Stratton Town Council [2001] ICR 271 (EAT) .............................5.68 Moran v Ashford Valley Food Ltd UD 202/1991 .................................................13.64 Moran v Bailey Gibson Ltd UD 69/1977 ..............................................................13.58 Moran v Christina Noble Children’s Foundation (Ire) Ltd UD 24/2005 ...............19.21 Morans v Electricity Supply Board UD 347/1997 .................................................19.14 Morawska v Dublin Airport Authority, PLC (DAA) and ASC Airport Services Consolidated Ltd TU39/2014, TU40/2014, TU41/2014, TU42/2014 TU43/2014, TU44/2014, TU45/2014 ....................................................18.28, 18.35 Morey v Dromina Community Playgroup UDD1715 (7 April 2017) Labour Court .....................................................................................................13.32 Morey v Rock Foundation [1997] ELR 236 ..........................................................23.08 Morgan v Fry [1968] 2 QB 710 .............................................................................21.82 Morgan v Trinity College Dublin [2003] 3 IR 157 .................. 8.23, 8.28, 10.64–10.65 Morran v Glasgow Council of Tenants Associations [1998] IRLR 67 .................11.25 Morris v CH Bailey Ltd [1969] 2 Lloyd’s Rep 215 ...............................................11.81 Morris v Smart Bros UD 688, 739, 741, 1045, 1046 and 1047/1991 ....................18.58 Morris v Southampton City Council [1982] ICR 177 ...........................................22.39 Morrison v Verbatim Ltd UD 624/1994 ................................................................15.06 Morrisont v School Board of Abernethy [1876] SLR 13-611 .................................4.05 Morrow v Safeway Stores Ltd [2002] IRLR 9 EAT ................................................5.25 Mort NO v Henry Shields-Chiat 2001 (1) SA 464 (C) ............................................5.68 Morton Sundour Fabrics Ltd v Shaw (1968) ITR 84 .............................................22.61 Moss v Chesham UDC (1945) 172 LT 301 ...........................................................11.47 Mulcahy v O’Sullivan and Walsh [1944] IR 336 ..................................................11.63 Mulcahy v Seaborn Ltd UD 157/1978 ...................................................................13.12 Mulhall & Sons Builders v Dunphy UD 710/1981 ................................................23.31 Mulhern v An Post [1990] ELR 131 ......................................................................15.12 Mulholland v An Bord Pleanála (No 2) [2006] 1 IR 453 ........................................3.27 Mullally v The Labour Court [2016] IECA 291 ......................................................9.08 Mullarkey v The Irish National Stud Ltd [2004] ELR 172 ...................................10.33 Mullen v Monaghan Mushrooms UD 794/1994 ....................................................16.12 Mullins v Digital Equipment International UD 329/1989 .....................................16.90 Mullins v Standard Shoe Co Ltd UD 134/1979 .....................................................24.51 Mulloy v Minister for Education [1975] IR 88 ........................................................8.09 Mulqueen and Mulqueen v Verit Hotel and Leisure (Ireland) Ltd [1993] ELR 162 ................................................................................................18.64 Mulraney v Group4 Securities (Ireland) Ltd UD 841/1985 ...................................15.11 Mulroy v Jurys Hotel Group plc UD 877/1995 .....................................................16.81 Murco Petroleum Ltd v Forge [1987] IRLR 50 .....................................................19.10

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Table of Cases Murgitroyd & Co Ltd v Purdy [2005] 3 IR 12 ...................................................... 16.89 Murgitroyd and Co Ltd v Purdy [2005] 3 IR 12 ................................................. 16.114 Murphy v Aldi Stores (Ireland) Ltd EET043 (2 December 2004) ........................ 25.27 Murphy v Berger Paints Ltd UD 818/1985 ......................................................... 13.104 Murphy v Binchy & Sons Ltd UD 243/1978 ........................................................ 22.62 Murphy v Brokencross Ltd RP 507/1995, RP 118/1996 ....................................... 18.41 Murphy v Dept of Education and Science UD 66/2005 ........................................ 15.41 Murphy v E Mooney & Co UD 224/1985 ............................................................. 24.13 Murphy v Eyrefield House Stud Ltd UD 441/1992 .............................................. 13.75 Murphy v Grand Circle Travel [2014] IEHC 337 ................................................... 3.04 Murphy v Independent News & Media UD 841/2013 .......................................... 24.76 Murphy v Minister for Social Welfare [1987] IR 295 .......................... 3.39, 3.45, 9.07 Murphy v Pollock & Pollock (1863) 15 CL (Exch) 224 ......................................... 1.36 Murphy v Stewart [1973] IR 97, 107 ILTR 117 ................................. 8.11–8.12, 21.23 Murphy v Tesco Stores (Ireland) Ltd UD 1242/1983 ........................................... 15.11 Murphy v Valley Investment Ltd UD 112/1980 ................................................... 24.76 Murphy v Whelan UD 673/1994 ......................................................................... 16.105 Murphy v Wm Doherty & Co (Printers) Ltd UD 282/1987 .................................. 16.85 Murray v Budds [2017] IESC 4 ............................................................................ 11.49 Murray v Cara Cheshire Home UD 753/1986 ....................................................... 16.80 Murray v CTV Services Ltd UD 109/1978 ........................................................... 24.44 Murray v Lavelles (Achill) Ltd UD 528/1988 ...................................................... 24.56 Murray v LFS & P Enterprises UD 11/1986 ......................................................... 16.62 Murray v Meath Co Council UD 43/1978 .................................................. 13.16, 24.66 Murray v Michael Grant Ltd t/a Michael Grant Opel Centre UD 559/1987 ................................................................................................... 16.19 Murray v Reilly M 137, UD 3/1978 ...................................................................... 24.41 Murray v Rockabill Shellfish Ltd [2012] ELR 331 .............................................. 19.03 Murtagh Properties Ltd v Cleary [1972] IR 330 ..........................1.05, 8.02, 8.11, 8.14 Murtagh v Board of St Emer’s National School [1991] 1 IR 482 (SC) .................. 9.10 Murtagh v O’Connor & Breen Ltd UD 186/1978 ...................................... 24.40, 24.56 Myers v Commissioner of An Garda Síochána (22 January 1988) HC .................. 9.67 Myles v O’Kane [1991] ELR 181 ......................................................................... 23.31 Mythen v Buttercrust Ltd [1990] 1 IR 98 .............................................................. 22.57 Mythen v Employment Appeals Tribunal [1990] ELR 1 ........................... 18.32, 18.57 N Nano Nagle School v Daly [2015] IEHC 785 ....................................................... 15.07 Napier v National Business Agency Ltd [1951] 2 All ER 264 .................. 11.04, 23.47 Nathan v Bailey Gibson [1998] 2 IR 162 .............................................................. 21.23 National Asset Loan Management Ltd v McMahon; National Asset Loan Management Ltd v Downes [2014] IEHC 71 ........................................... 1.04 National Engineering and Electrical Trade Union v McConnell [1981] IR 75 ....................................................................................................... 9.32 National Heart and Chest Hospital Board of Governors v Nambiar [1981] ICR 441 ................................................................................................ 22.29

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Redmond on Dismissal Law National Museum of Ireland v Minister for Social Protection [2016] IEHC 135 .......................................................................................3.25–3.26 National University of Ireland Cork v Ahern [2005] 2 IR 577 ..............................25.34 Naujoks v National Institution of Bioprocessing Research and Training Ltd [2006] IEHC 358 .....................................................................................7.27, 10.10 NC Watling & Co Ltd v Richardson [1978] IRLR 225 (EAT) .............................13.32 Neary v C&F Automotive Ltd UD 1245/2014, TE 52/2015 .................................17.07 NEETU v McConnell (1983) 2 JISLL 94 ................................................................9.35 Nerney v Thomas Crosbie Holdings Ltd [2013] IEHC 127 ............. 8.29, 11.49, 11.66 Net Affinity Ltd v Conaghan [2012] 3 IR 67 ........................................................16.89 Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 .................................3.14, 3.17 Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677 ........................13.32 Newcastle Upon Tyne NHS Foundation Trust v Haywood [2017] EWCA Civ 153 .....................................................................................22.07 Newell v Canadian Pacific Airlines (1977) 14 OR 752 .........................................11.49 Newman v TH White Motors Ltd [1972] IRLR 49 ...............................................13.73 Nicholson v Heaven and Earth Gallery Pty (1994) 126 ALR 233 ........................11.30 Nicola Coffey v Connect Family Resource Centre Ltd (UD 1126/2014) .............19.07 Nicolaou v An Bórd Úchtála [1966] IR 667 ............................................................8.03 Nicoll v CLG Builders Ltd UD 554/1995 ..............................................................14.02 Nicoll v Greaves (1864) 17 CB (NS) 27 ..................................................................4.03 Niemietz v Germany (1992) 16 EHRR 97 ..................................................8.52, 13.128 Nigrell v Graham UD 690/2013 ............................................................................17.24 Niven v Galleria Ltd UD 409/82 ...........................................................................21.20 NM v Limerick and Clare Education and Training Board [2015 No 308 JR ........13.70 Noakes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 ......................18.33 Nolan Transport (Oaklands) Ltd v Halligan, Nolan, Ayton & SIPTU [1998] ELR 117 ....................................................................................21.06 Nolan v Brooks Thomas Ltd UD 179/1979 ................................................15.15, 15.24 Nolan v EMO Oil Services Ltd [2009] ELR 122 ............................10.73–10.74, 10.85 Nolan v Hermans Ltd UD 423/1987 ......................................................................19.16 Nolan v Steel and Engineering Supplies Ltd UD 34/1981 ....................................16.53 Noonan v Commissioner of An Garda Síochána [2007] IEHC 354 ........................9.63 Noonan v Dunnes Stores (Mullingar) (14 July 1989) CC .....................................16.25 Noonan v O’Leary UD1369/2014 .........................................................................19.03 Noritake (Irl) Ltd v Kenna UD 88/1983 ................................................................16.04 North Bowl Ltd v Maxime II [1993] ELR 228 ......................................................22.16 Norton Tool Co Ltd v Tewson [1973] 1 All ER 183 .............................................24.45 Notably Byrne v Ireland [1972] IR 241 ...................................................................8.45 Nova Colour Graphic Supplies Ltd v EAT and Spain [1987] IR 426 ........................................................................................18.41, 23.42 Nova Media Services v Minister for Posts and Telegraphs [1984] ILRM 161 ...............................................................................................1.05 Now Motor Retailing Ltd v Mulvihill [2015] UKEAT 0052_15_1506 (15 June 2015) .........................................................................13.59 Nugent v CIÉ [1990] ELR 15 .....................................................................15.02, 16.54 Nugent v Queally Pig Slaughtering Ltd UD 865/1991 ..........................................13.57

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Table of Cases Nugent v University College Dublin UD 224/1992 .............................................. 22.33 NUR v Sullivan [1947] IR 77 ....................................................................... 8.10, 24.04 NVH v Minister for Justice and Equality [2016] IECA 86, [2017] IESC 35 ..............................................................1.01, 1.04, 8.03, 8.07, 8.15 NWL Ltd v Woods [1979] IRLR 321 ................................................................... 10.18 Ny Mølle Kro [1987] ECR 5465, [1989] IRLR 37 .................................... 18.28. 18.39 O Ó Coindealbháin (Inspector of Taxes) v Thomas B Mooney [1990] 1 IR 422 ....... 3.12 Ó Conaill v The Gaelic Echo Ltd (1958) 92 ILTR 156 .......................................... 4.03 Ó Domhnaill v Health Service Executive [2011] IEHC 421 ................................ 10.73 Ó Riain v Independent Newspapers UD 134/1978 ................................................. 3.11 Ó Ruairc v The Trustees of the College of Maynooth [1979] ILRM 166 ............... 7.63 Ó Cléirigh v Minister for Agriculture [1996] 2 ILRM 12 ....................................... 7.66 Ó Cruadhlaoich v Minister for Finance (1934) 68 ILTR 174 ................................. 3.35 Ó Loinsigh v Community Technical Aid UD 678/2004 ....................................... 22.30 Ó Cruadhlaoich v Minister for Finance (1934) 68 ILTR 174 ................................. 4.04 O’Brien v Aon Insurance Managers (Dublin) Ltd [2005] IEHC 3 ............ 10.63–10.67 O’Brien v Asahi Synthetic Fibre UD 25/1992 ...................................................... 13.68 O’Brien v Bord na Móna [1983] IR 255 ...................................................... 7.66, 24.80 O’Brien v County Dublin Vocational Education Committee UD 959/1995 ......... 15.44 O’Brien v Dunnes Stores Limited UDD1714 (7 April 2017) Labour Court............................................................................... 13.32, 15.01, 15.06 O’Brien v Good Shepherd Convent UD 342/1991 ............................................... 13.51 O’Brien v Heinz Pollmeier [1991] ELR 157 ......................................................... 16.93 O’Brien v Int Harvester Co of Great Britain [1974] IRLR 374 ............................ 13.12 O’Brien v Liberty Insurance Ltd UD163/2015 ..................................................... 19.03 O’Brien v Murphy Plastics (Dublin) Ltd UD 142–4/1980 .................................... 19.05 O’Brien v Tipperary Board of Health [1938] IR 761 .............................................. 3.35 O’Brien v Truvale Contractors Ltd UD 264/1990 ................................................ 17.05 O’Brien v Verbatim Ltd UD 320/1986 ................................................................. 16.80 O’Byrne v Dunnes Stores [2003] ELR 297 ................................................ 11.49, 19.18 O’Byrne v Orchard Insurance Ltd UD 172/1979 .................................................. 17.05 O’Callaghan v Aer Lingus UD 189/1990 .............................................................. 15.30 O’Callaghan v Denis Mahony Ltd UD 117/1979 ................................................. 23.72 O’Callaghan v Disciplinary Tribunal [2002] 1 IR 1 .................................... 7.18, 10.69 O’Callaghan v Dunnes Stores [2014] ELR 213 .................................................... 16.14 O’Callaghan v Energy Sealants Ltd [1992] ELR 230 ........................................... 21.15 O’Callaghan v Quinnsworth UD 68/1978 ............................................................. 24.51 O’Carroll v Sovereign Security Ltd [2011] ELR 281 ........................................... 19.03 O’Ceallaigh v An Bord Altranais [2000] 4 IR 54 ........................................ 7.18, 10.69 O’Connell v Adelaide & Meath Hospital Dublin [2016] IEHC 423 ..................... 10.49 O’Connell v Building and Allied Trades Union [2015] ELR 173 ............. 21.20–21.23 O’Connell v CTF Ltd UD 588/1991 ..................................................................... 24.15 O’Connell v Garde’s Coffee Shop [1991] ELR 105 ............................................. 13.49 O’Connell v Listowel UDC (1957) Ir Jur R 43 ..................................................... 11.09 O’Connell v The Gaelic Echo Ltd (1958) 92 ILTR 156 ......................................... 4.07

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Redmond on Dismissal Law O’Connor and O’Connor v Guiry UD 65/1978 .....................................................22.13 O’Connor v Astra Pumps Ltd UD 486/1986 .........................................................16.36 O’Connor v Brewster [1992] ELR 10 .........................................................15.02, 16.93 O’Connor v Dublin Bus [2003] 4 IR 459 ..............................................................13.96 O’Connor v Kilnamanagh Family Recreation Centre Ltd UD 1102/1993 ............23.76 O’Connor v Marley Extensions (Irl) Ltd UD 135/1979 ........................................24.71 O’Connor v Power Securities Ltd UD 344/89 .......................................................21.52 O’Connor v Servier (Ireland) Industries Ltd UD 1101/2015................................13.102 O’Connor v Sugardolls Nail Bar and Beauty Ltd UD 902/2015 ...........................19.03 O’Dea v Ó Briain [1992] ILRM 364 .......................................................................7.01 O’Doherty v John Paul Hennessy Junior and Harrow Holdings Ltd UD 857/1991 ....................................................................................................19.28 O’Doherty v O’Connolly Food Services Ltd UD 225/1991 .......................21.39, 21.52 O’Doherty v System Dynamics Ltd UD 803/1995 ................................................21.39 O’Domhnaill v Health Service Executive [2011] IEHC 421 ......................10.76, 25.16 O’Donnell (Patrick) v Tipperary (South Riding) County Council [2005] 2 ILRM 168 ............................................................................................9.20 O’Donnell v Chief State Solicitor, Ireland and the Attorney General [2003] ELR 268 ................................................................................................10.34 O’Donnell v Dun Laoghaire Corporation [1991] 1 ILRM 301 .............................11.49 O’Donnell v Tipperary (South Riding) County Council [2005] IESC 18, [2005] 2 IR 483 ..........................................................................................7.31, 7.37 O’Donoghue v Emerson Electric (Ireland) Ltd UD 177/1986 ...............................24.58 O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615 ...................................................................................24.45, 24.51 O’Donoghue v South Eastern Health Board [2002] ELR 189 .................................9.28 O’Donoghue v Veterinary Council [1975] IR 398 ..................................................7.65 O’Donoghue v Watchford Ltd [2016] ELR 216 ....................................................19.03 O’Donovan v De La Salle College Wicklow [2009] IEHC 163 ..............................9.45 O’Donovan v Ryanair and Servisair (Irl) Ltd [1997] ELR 63 ...............................19.29 O’Dowd v Collis Lee Ire Ltd UD 170/1979 ..........................................................17.05 O’Duffy v Law Society of Ireland [2005] IEHC 61 ................................................9.79 O’Farrell Ltd v Nugent UD 120/1978, UD 123/1978 ..........................................24.39 O’Farrell v Dublin VEC UD 114/2012 ..................................................................23.66 O’Flaherty v Rowntree Mackintosh (Ireland) Ltd M4140/1987 ...........................23.32 O’Flynn v Berkel (Ireland) Ltd [1990] ELR 19 .....................................................16.86 O’Grady v Cornelscourt Shopping Centre Ltd UD 210/1979 ...............................19.10 O’Hagan v Pat the Baker Ltd UD 518/1986 ..........................................................16.56 O’Hare v Rotaprint Ltd [1980] ICR 44 ..................................................................17.06 O’Hare v The Curtain Centre Ltd UD 149/1978 ........................................13.12, 24.40 O’Hora v Dakota Packaging Ltd UD 372/1991 ...................................................13.110 O’Kane v Dunnes Stores Ltd UD 1547/2003 .............................................19.10, 19.19 O’Kelly v WYG Engineering Ltd [2013] ELR 279 ....................................14.10, 24.53 O’Laoire v Jackel International Ltd (No 2) [1991] ICR 718 .................................11.46 O’Laoire v The Medical Council [1998] WJSC-SC 11507 .....................................7.59 O’Laorie v Jackel Int Ltd [1991] ICR 718 .............................................................11.50 O’Leary v An Post [2016] IEHC 237 .............................................................5.15, 7.43

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Table of Cases O’Leary v Cranehire Ltd UD 167/1979 ................................................................ 19.10 O’Leary v Eagle Star [2003] ELR 223 .................................................................. 16.96 O’Leary v Minister for Finance (3 July 1998) HC .................................................. 9.62 O’Looney v Roderick Hogan & Associates UD 447/1987 ................................... 22.62 O’Loughlin v Minister for Social Welfare [1958] IR 1 ........................................ 23.63 O’Mahony v Arklow UDC and Minister for Local Government [1965] IR 710 ............................................................................................ 3.42, 4.03 O’Mahony v College of the Most Holy Trinity [1998] ELR 159 ......................... 22.04 O’Mahony v Kerry Ingredients (Ireland) Ltd UD 1421/2003 ............................... 15.11 O’Mahony v McCarthy [2014] IEHC 682 ............................................................ 23.54 O’Mahony v PJF Insurance [2012] ELR 86 .......................................................... 16.99 O’Mahony v Trinity College Dublin [1998] ELR 159 ............................... 23.76, 23.79 O’Mahony v Whelan t/a Pallet Providers [1992] ELR 117 .................................. 16.59 O’Malley v Aravon School Ltd (13 August 1997) HC ......................................... 10.45 O’Meara v AIBP (Nenagh) Ltd UD 1099/1993 .................................................... 24.43 O’Neil v Flynns Garage UD 122/1981 .................................................................. 19.10 O’Neill and O’Connor v PMPA Ins Co Ltd UD 124 and 130/1980 ..................... 24.58 O’Neill v Bank of Ireland [1993] ELR 145 ...........................4.23, 22.27, 22.66, 23.28 O’Neill v Beaumont Hospital Board [1990] ILRM 419 ......................................... 9.12 O’Neill v Breffni Proteins Ltd UD 78/1981 .......................................................... 23.54 O’Neill v Bus Éireann [1990] ELR 135 ................................................................ 15.03 O’Neill v Fr Eugene McCarthy UD 371/1991 ...................................................... 15.06 O’Neill v Furlong & Sons Ltd UD 75/1978 .......................................................... 13.49 O’Neill v Iarnród Éireann [1991] ELR 1 ................................................................ 9.09 O’Neill v Murphy UD 122/1980 ........................................................................... 17.05 O’Neill v RSL (Ire) Ltd [1990] ELR 31 ................................................................ 13.49 O’Neill v Toni & Guy Blackrock Ltd [2010] ELR 1 ............................................ 20.22 O’Reilly v Dodder Management UD 311/1978 ......................................... 13.73–13.74 O’Reilly v Furlong & Sons Ltd UD 75/1978 ........................................................ 13.74 O’Reilly v Irish Press (1937) 71 ILTR 194 .................................................... 4.03, 4.07 O’Reilly v Laois County Council UD 1327/2005 ................................................. 15.41 O’Reilly v Mackman [1983] 2 AC 237 ................................................................... 9.47 O’Reilly v Oxford Ireland Ltd UD 814/1994 ........................................................ 19.10 O’Reilly v Pulmann Kellogg Ltd UD 340/1979 ................................................... 22.64 O’Riordan v Killine Eyewear Ltd [1991] ELR 89 ..................................... 21.15, 21.20 O’Riordan v Lombard & Ulster Banking Ltd UD 25/1988 .................................. 15.12 O’Rourke v Caldwell [1998] ELR 287 ................................................................... 4.10 O’Rourke v Ryan’s Meat Market Ltd UD 112/1978 ............................................ 24.56 O’Rourke v Talbot Ireland Ltd [1984] ILRM 587 .................................................. 1.42 O’Rourke v Valcroft Ltd t/a Mr Binman [2015] ELR 209 ........................ 17.21–17.24 O’Shea v Commissioner of An Garda Síochána [1993] ELR 229 .......................... 3.44 O’Shea v PJ Cullen & Sons UD 17/1977 ................................................... 24.41, 24.52 O’Sullivan v Mercy Hospital Cork [2005] IEHC 170 .......................................... 10.67 O’Sullivan v O’Sullivan [2009] ELR 334 ............................................................. 19.03 O’Sullivan v Thomson-Coot [1973] 14 KIR 108 .................................................. 23.06 O’T v B [1998] 2 IR 321 ......................................................................................... 8.07 Oakes v Lynch UD 214/1978 ................................................................................ 23.29

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Redmond on Dismissal Law Office Administrator v A Community Arts Centre ADJ 00000381 (12 April 2017) .................................................................................................16.85 OGB [2014] ICR 1152 ...........................................................................................18.54 Ogieriakhi v Minister for Justice and Equality [2017] IESC 52 ............................11.49 Ogilvy and Mather (New Zealand) v Turner [1996] 1 NZLR 641 ........................11.49 102 Social Club and Institute Ltd v Bickerton [1977] ICR 911 ..............................3.35 Orange Communications Ltd v Director of Telecommunications Regulation (No 2) [2000] 4 IR 159 .......................................................................................7.60 Orr v Zomax Ltd [2004] 1 IR 486 .................................................... 5.38, 10.85, 11.56 Osam v Mahon UD 625/1986 ................................................................................19.16 Osman v Saville Sportswear Ltd [1960] 1 WLR 1055 ..........................................11.39 Owen v Superquinn Ltd UD 932/1982 ..................................................................16.24 Owens v Ramsbottom UD 103/1980 .....................................................................19.10 Oy Liikenne [2001] ECR I-745 .............................................................................18.47 P P Bork International A/S v Foreningen af Arbejdsledere I Danmark [1990] 3 CMLR 701 .........................................................................................18.28 Pacelli v Irish Distillers Ltd [2004] ELR 25 .................................................8.14, 16.15 Pacitti Jones v O’Brien [2005] CSIH 56 ................................................................23.20 Pagano v HGS [1976] IRLR 9 ...............................................................................24.75 Page One Records Ltd v Britton [1968] 1 WLR 157 .............................................10.05 Paine and Moore v Grundy (Teddington) Ltd [1981] IRLR 267 ...........................21.53 Palfrey v Transco plc [2004] IRLR 916 ................................................................22.61 Palmanor Ltd v Cedron [1978] IRLR 303 .............................................................19.11 Palmer v The Trustees of the Army Canteen Board UD 449/1984 .......................13.71 Palomo Sanchez v Spain [2011] ECHR 1319 .............................................8.53, 13.130 Panama v London Borough of Hackney [2003] IRLR 278 (CA) ..........................13.16 Panasov v Pottle Pig Farm UDD175 (6 July 2017) ...............................................13.23 Panisi v JVC Europe Ltd [2011] IEHC 299, [2012] ELR 70 ..................................8.28 Panisi v JVC Europe Ltd [2012] ELR 70 ...................................................17.04–17.07 Park Cakes Ltd v Shumba [2013] EWCA Civ 974 ................................................21.41 Parker v Cathcart (1866) 17 ICLR 778 .......................................................11.01, 11.44 Parnell v McCullough Piggott Ltd UD 359/1987 ..................................................24.54 Parr v Whitbread plc [1990] IRLR 39 ...................................................................16.18 Parry v Cleaver [1970] AC 1 ......................................................................11.65–11.66 Parsons v Airplus International Ltd UKEAT/0023/16/JOJ (4 March 2016) .........20.29 Parsons v BNM Laboratories Ltd [1954] 1 QB 95 .....................................11.67, 11.69 Parsons v Iarnród Éireann [1997] 2 IR 523 ......................... 10.70–10.72, 10.96, 25.15 Parsons v Kavanagh [1990] ILRM 560 ...................................................................8.14 Patel v General Medical Council [2003] IRLR 316 ..............................................16.10 Patel v Mirza [2016] 3 WLR 399, [2017] AC 467 .............. 11.05–11.07, 16.42, 23.43 Pattison v Institute for Industrial Research and Standards (31 May 1979) HC .......1.42 Paul v Earraí Miotail Teoranta UD 200/1986 ........................................................16.57 Pay v Lancashire Probation Service [2004] IRLR 129 EAT ...............................13.125 Payzu Ltd v Saunders [1919] 2 KB 581 ................................................................11.81 Payzu Ltd v Hannaford [1918] 2 KB 348 ................................................................4.06

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Table of Cases Peace v City Edinburgh Council [1997] IRLR 417 .............................................. 10.27 Peacock Stores v Peregrine [2014] UKEAT 0315_13_2503 (25 March 2014) .............................................................................................. 21.41 Pearlberg v Varty [1972] 2 All ER 6 ....................................................................... 7.08 Pedersen v London Borough of Camden [1979] IRLR 377 (EAT), [1981] IRLR 173 (CA) .................................................................................... 19.05 Peppard v Tara Mines Ltd UD 268/1992 .............................................................. 15.27 Percy v Church of Scotland [2006] 2 AC 28 .................................................. 3.30–3.31 Percy v Church of Scotland BD of National Mission [2005] UKHL 73, [2006] IRLR 195 ....................................................................................... 3.29, 3.38 Perkin v St George’s Healthcare NHS Trust [2005] IRLR 934 ................. 16.92, 18.02 Perth & Kinross Council v Donaldson [2004] IRLR 121 .......................... 18.39, 22.54 Pesca Valentia Ltd v Minister for Finance [1990] 2 IR 305 ................................... 9.59 Pete’s Towing Services v Northern Industrial Union of Workers [1970] NZLR 32 .............................................................................................. 21.82 Phelan v BIC (Ireland) Ltd, Biro BIC Ltd, Société BIC SA and Robert MacDonald [1997] ELR 208 .................................................... 10.37, 10.81 Philip Smith v RSA Insurance Ltd UD1763/2013 ................................................ 24.28 Phillips v Alhambra Palace Co [1901] 1 QB 59 ................................................... 22.42 Phillips v International Health Benefits (Irl) Ltd UD 331/1993 ........................... 17.26 Phillips v Medical Council [1991] 2 IR 215 ........................................................... 9.63 Philpott v Ogilvy & Mather Ltd [2000] ELR 225, [2000] 3 IR 206 ..................................................................................... 10.37, 10.79 Phipps v Laffin UD 18/1979 ................................................................................. 13.73 Phipps v South Western Area Health Board UD 232/2003 .................................. 23.66 Photo Production Ltd v Securicor Ltd [1980] 1 All ER 556 .......................... 6.09–6.10 Photostatic Copiers (Southern) Ltd v Okuda [1991] IRLR 11 .............................. 18.30 Pickering v Microsoft Ireland Operations Ltd [2006] ELR 65 ...................... 4.24, 5.24 ........................................................................................... 6.31, 11.58, 11.63, 19.05 Pilon v Peugeot Canada Ltd (1980) 114 DLR (3d) 378 ........................................ 11.49 Pine Valley Developments Ltd v Minister for the Environment [1987] IR 23 ....................................................................................................... 8.34 Pitt v Meath Thoroughbred Breeders UD 763/1999 ............................................. 18.66 PMPA Insurance Co Ltd v Keenan (27 July 1983) SC ......................................... 25.54 PMPS Ltd and Moore v AG [1983] IR 339 ............................................................ 8.10 Polkey v AE Dayton Services Ltd [1987] IRLR 503 ............................................ 13.24 Port of London Authority v Payne [1992] IRLR 447 ........................................... 21.29 Porter and Nanayakkara v Queen’s Medical Centre [1993] IRLR 486 ................ 18.68 Porter v Queen’s Medical Centre Nottingham University Hospital [1993] IRLR 486 .............................................................................................. 18.45 Post Office v Strange [1981] IRLR 515 ................................................................ 19.21 Post Office v UPOW [1974] IRLR 22 .................................................................. 21.32 Potts v Minister for Defence [2005] IEHC 72 ........................................................ 9.08 Potts v Plunkett (1859) 9 CL (Ir) 290 (QBD) ......................................................... 1.33 Powell v London Borough of Brent [1988] ICR 176 ............................................ 10.23 Power v St Paul’s Nursing Home and T & M Cleaning Ltd [1998] ELR 212 ............................................................................................... 18.46

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Redmond on Dismissal Law Power v Binchy (1929) 64 ILTR 35 ...............................................................4.28–4.30 Power v National Corrugated Products UD 336/1980 ................................21.61, 21.87 Power v University of Limerick UD 654/1991 ......................................................19.14 Powers and Villiers v A Clarke and Company (Smethwick) Ltd [1981] IRLR 483 ..............................................................................................21.39 Powrmatic Ltd v Bull [1977] IRLR 145, [1977] ICR 469 .....................................24.60 PR Consultants Scotland Ltd v Mann [1996] IRLR 188 .....................................16.114 Preece v JD Weatherspoons Plc ET/2104806/10 ...................................................16.98 Price v Gourley Bros Ltd [1973] IRLR 11 ............................................................13.12 Price v Guest Keen and Nettlefolds [1918] AC 760 ................................................4.04 Print Factory (London) 1991 Ltd v Millam [2006] IRLR 923 (EAT) ...................18.39 Production Operative v A Medical Devices Producer ADJ-00006307 (12 June 2017) ..................................................................................................16.60 Purcell and McHugh v Bewleys Manufacturing Ltd .............................................18.61 Purcell v Carey UD 883/1995 ................................................................................22.39 Purser v Rent-A-Tool Ltd UD 391/1994 ...............................................................18.23 Q Queensland Stations Property Ltd v Federal Commissioner of Taxation [1945] 70 CLR 539 ............................................................................................3.09 Quigley v Beirne [1955] IR 62 ..............................................................................21.06 Quigley v Complex Tooling and Moulding Ltd [2009] 1 IR 349 ..........................19.10 Quinn and Delaney v Friends of the Elderly [1991] ELR 225 ..............................21.15 Quinn v B&I Line [1990] ELR 175 .......................................................................16.80 Quinn v Friends of the Elderly [1991] ELR 225 ...................................................21.15 Quinn v IBRC Ltd [2015] IESC 29 .......................................................................23.43 Quinn v Ken David Ltd UD 264/1979 ...................................................................23.72 Quinn v Quality Homes (21 November 1977) HC .................................................11.49 Quinn v Tennants (Ireland) Ltd UD 249/1992 ....................................................13.110 Quinns Supermarket Ltd v AG [1972] IR 1 .............................................................8.09 R R (Jacob) v Blaney [1901] 2 IR 93 ..........................................................................7.14 R (Malik) v Waltham Forest Primary Care Trust [2006] IRLR 526 (HC) ..........13.125 R (McMorrow) v Fitzpatrick [1918] 2 IR 103 .........................................................7.14 R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 ........1.03, 25.65 R v Darlington School Governors (1844) 6 QB 682 ...............................................7.14 R v East Berkshire Health Authority ex parte Walsh [1985] IRLR 203, [1985] QB 152 ..................................................................................................10.02 R v Gt Bowden (Inhabitants) (1827) 7 B & C 219, 108 ER 716 .............................1.34 R v Jennings (1966) 57 DLR (2d) 644 ...................................................................11.68 R v Kelly [1999] 2 All ER 13 ................................................................................25.28 R v Liverpool Corp, ex p Liverpool Taxi Operators Association [1972] 2 QB 299 .................................................................................................7.08 R v M Cunningham (1885) 16 LR Ir 206 ................................................................1.32 R v St Peters in Dorchester (Inhabitants) (1763) Burr SC 515, 95 ER 25 .............................................................................................................1.35

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Table of Cases Rabbette v BOPA (Ire) Ltd UD 123/1985 ............................................................. 18.04 Rafferty v Bus Éireann [1997] 2 IR 424 ............................................... 9.15, 9.19, 9.64 Rajpal v Robinson [2004] IEHC 149 ............................................................. 3.42, 9.42 Ralton v Havering College of Further and Higher Education [2001] IRLR 738 .............................................................................................. 18.79 Ramphal v Department For Transport [2015] UKEAT 0352_14_0409 (4 September 2015) ........................................................................................ 13.105 Rantsev v Cyprus & Russia (2010) 51 EHRR 1 ................................................. 13.130 Rapple v Irish Press Newspapers UD 841/1995 ........................................ 24.08, 24.22 Rask and Christensen v ISS Kontinenservice A/S [1992] ECR 1-5755 ............................................................................... 18.43, 18.45 Rasool v Hepworth Pipe Co Ltd [1980] IRLR 80 ................................................. 22.09 Raspin v United News Shops Ltd [1999] IRLR 9 ........................... 11.18, 11.25, 11.34 Rawson v Minister for Defence [2012] IESC 26 .................................................... 9.05 Ray v Kerry Group plc UD 25/1991 ..................................................................... 19.14 Raymond v Dennis UD 1149/2005 ....................................................................... 23.54 Raymond v Embassy of Nigeria UD 636/2004 ..................................................... 25.63 Raynor v Remploy Ltd [1973] IRLR 3 ................................................................. 13.12 Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 ................................................................................................ 3.06 Reda v Flag Ltd [2002] IRLR 747 .......................................................................... 5.54 Redfearn v UK [2012] ECHR 1878 ........................................................... 8.53, 13.130 Redland Purple Ltd v O’Halloran UD 51/1978 ..................................................... 13.49 Redmond v Royal Marine Hotel UD 196/1978 ..................................................... 13.74 Redmond v Superwood Ltd UD 93/1985 .............................................................. 16.51 Reed v Stedman [1999] IRLR 299 .......................................................................... 5.24 Reg (Fitzmaurice) v Neligan (1884) 14 LR Ir 149 .................................................. 7.14 Reg (Riall) v Bayly [1898] 2 IR 335 ....................................................................... 7.14 Reg v Home Sec ex p Tarrant [1985] 1 QB 251 ................................................... 13.69 Regan v Killarney Hotels Ltd UD 786/1993 ......................................................... 16.73 Regan v Rossview Ltd UD 636/1991 .................................................................... 23.32 Regional Claims Manager v An Insurance Company ADJ-00000680 (12 April 2017) ................................................................................... 23.99, 23.108 Reid v Oxx (1986) 4 ILT (ns) 207 ........................................................................ 21.17 Reid v Roadspeed International (Ireland) Ltd UD 258/1992 ................................ 16.58 Reigate v Union Manufacturing Co [1918] I KB 592 ............................................. 5.18 Reilly v The King [1934] AC 176 ........................................................................... 3.35 Rhodes v Forwood (1876) 1 App Cas 256 ............................................................ 11.63 Richardson (Inspector of Taxes) v Delaney [2001] IRLR 663 ............................. 11.66 Richardson v H Williams & Co Ltd UD 17/1979 ...................................... 13.73, 15.35 Riddell v Mid-West Metals Ltd UD 687/1980 ...................................................... 19.10 Ridge v Baldwin [1961] 2 WLR 1054, [1964] AC 40 .......................... 3.30, 3.37–3.38 ........................................................................................ 5.09, 5.12, 7.14, 7.53, 8.44 Ridgway v Hungerford Market Co (1885) Ad & El 171 ........................................ 4.35 Ridgway v JP Morgan Chase Bank [2007] EWHC 1325 (QB) ................. 11.64–11.65 Rigby v Ferodo [1987] IRLR 516 ........................................................................... 6.02 Rigney v Offaly County Council [1990] ELR 38 ...................................... 16.74, 24.16

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Redmond on Dismissal Law Riordan v Butler [1940] IR 347 .............................................................................21.06 Riordan v Dairy Disposal Co Ltd UD 55/1979 .....................................................17.08 Riordans Travel Ltd v Acres Co Ltd (17 January 1979) HC .................................24.76 RMT v United Kingdom App No 31045/10 ...............................................8.53, 13.130 Robb v Hammersmith and Fulham London Borough Council [1991] ICR 514 ......................................................................................10.24, 10.45 Robert Cort & Son Ltd v Charman [1981] IRLR 437 ...........................................11.17 Roberts v West Coast Trains Ltd [2004] IRLR 788 .................................13.109, 22.29 Robinson v Crompton Parkinson Ltd [1978] ICR 401, [1979] IRLR 61 .......................................................................................5.22, 19.11 Robinson v Hindman (1800) 3 Esp 235 ...................................................................1.37 Robinson v Ulster Carpet Mills Ltd [1991] IRLR 349 ..........................................21.62 Robson v Cambrian Electric Products Ltd [1976] IRLR 109 ................................19.11 Roche v Kelly & Co Ltd [1969] IR 100 ..................................................................3.06 Roche v Salthill Hotel Ltd [1996] ELR 15 ............................................................18.46 Roche v Salthill Hotel Ltd UD 35/1995 ................................................................18.41 Roche v Sealink Stena Line Ltd [1993] ELR 89 ....................................23.101, 23.112 Rochford v Royale Alarms Ltd UD 218/1988 (15 November 1988) CC ...............16.34 Rock Refrigeration Ltd v Jones [1996] IRLR 675 ...................................................6.09 Rodgers v Irish Transport and General Workers Union [1978] ILRM 51 ........................................................................................8.11, 8.12 Rodgers v Linde Refrigeration Ltd UD 613/1989 .................................................17.07 Rogers v An Post [2014] IEHC 412 ........................................................................7.26 Rogers v Dublin Corporation [1998] ELR 59 ........................................................15.07 Rogers v Irish Helicopters Ltd UD 358/1982 ........................................................22.38 Rogers v Vosper Thornycroft (UK) Ltd [1989] IRLR 82 ......................................21.42 Rolls Royce Motor Cars Ltd v Price [1993] IRLR 203 .........................................21.56 Rolls Royce Motors Ltd v Dewhurst [1985] IRLR 184 ........................................21.51 Rolls-Royce Plc v Unite the Union [2009] EWCA Civ 387, [2010] ICR 1 .....................................................................................................21.57 Rookes v Barnard [1963] 1 QB 623, [1964] AC 1204, [1964] 2 WLR 269 ..................................................................................9.40, 21.82 Ross v Eddie Stobart Ltd [2013] UKEAT 0068_13_0808 (8 August 2013) ................................................................................................21.17 Rossiter v Pendragon plc [2002] IRLR 483, [2002] ICR 1063 ..................18.93, 19.34 Rossiter v Sisters of La Sagesse UD 92/1978 ........................................................24.56 Rotsart de Hertaing v J Benoidt SA (in liq) and IGC Housing Service SA [1997] IRLR 127 ...................................................................................18.30, 18.57 Rowland v An Post [2011] IEHC 272, [2017] IESC 20 ........................ 2.07, 7.40–7.45 .................................................................................................... 10.43, 13.56, 13.70 Roy v Wavin Pipes Ltd UD 119/1983 ...................................................................15.11 Royal & Sun Alliance Group v Payne [2005] IRLR 848 ......................................23.55 Royal Mail Group Ltd v Communication Workers Union [2010] ICR 83 ............18.28 Royal Society for the Protection of Birds v Croucher [1984] IRLR 425 ..............16.14 RS Components Ltd v Irwin [1973] IRLR 239, [1973] ICR 535 ...............19.10, 22.29

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Table of Cases Ruffley v Board of Management of St Anne’s School [2014] IEHC 235, [2017] IESC 33, [2015] IECA 87 ....................... 5.07, 7.70, 9.31 ......................................................................................... 10.96, 11.45, 13.49, 16.68 Rumsey v Owen White and Catlin (1978) 245 EG 225 ........................................ 11.80 Rutten v Cross Medical Ltd [1997] IRLR 249 .................................................... 23.104 Ryan v Attorney General [1963] IR 294 ................................................................. 8.06 Ryan v Beltrims Ltd UD 607/1986 ....................................................................... 25.49 Ryan v Jenkinson (1855) 25 LJ (NS) QB 11 ........................................................... 4.09 Ryan v Kelleher UD 496/1991 .............................................................................. 18.41 Ryan v Mutual Tontine Association [1893] 1 Ch 116 .......................................... 10.04 Ryan v O’Flaherty [2004] ELR 180 ...................................................................... 18.41 Ryan v UPC Communications [2015] ELR 217 ................................................... 22.70 Ryan v Weekes UD 498/1986 ............................................................................... 25.49 Ryanair Ltd v Aer Rianta cpt (25 January 2001) HC ............................................ 10.17 Ryanair Ltd v Labour Court [2007] ELR 57 ........................................................... 8.12 Ryder & Byrne v The Commissioner of Irish Lights UD 81 and 8/1977 ............. 15.43 S Saeed v Inner London Education Authority [1985] ICR 637 ...................... 9.66, 10.98 Sainsbury plc v Hitt [2003] ICR 111 ..................................................................... 13.28 Sales Director v A Food Company ADJ-00002798 (5 April 2017) ...................... 22.63 Salmon v Castlebeck Care (Teesdale) Ltd [2015] ICR 735 .................................. 22.29 Salt v Power Plant Co Ltd [1936] 3 All ER 322 ..................................................... 4.10 Sanders v Ernest A Neale Ltd [1974] IRLR 236, [1974] ICR 565, [1974] ITR 395 ............................................................................ 6.04, 10.20, 17.14 Sandhu v Gate Gourmet London Ltd [2009] IRLR 807 ....................................... 21.82 Santamera v Express Cargo Forwarding [2003] IRLR 273 (EAT) ....................... 13.70 Sarkatzis Herrero v Instituto Madrileño de la Salud [2006] IRLR 298 ................ 23.20 Sartin v Cooperative Retail Services [1969] ITR 392 ........................................... 17.17 Sarvent v Central Electricity Board [1976] IRLR 66 ............................................ 24.24 Saul v Mahoney Manufactured Signs UD 37/2003 ............................................... 17.26 Savage v Sainsbury Ltd [1980] IRLR 109 ................................................... 4.23, 22.69 Savino v Gardner Merchant (Ireland) Ltd UD 122 P7/1990 ................................. 14.28 SBJ Stephenson v Mandy [2000] IRLR 23 ......................................................... 16.114 Scally v Southern Health and Social Services Board (British Medical Association) third party [1991] 4 All ER 563, [1992] 1 AC 294 ........... 5.28, 11.52 Scally v Southern Health and Social Services Board [1991] IRLR 522 (HL) ......... 5.19 Scally v Westmeath County Council UD 304/1994 .............................................. 23.58 Scanlon v Kelly UD 134/2004 .............................................................................. 18.41 Scariff v Taylor [1996] 2 ILRM 278 .............................................................. 3.45, 7.32 Schmidt v Spar und Leihkasse der Fruherer Amter Bordesholm Kiel und Cronshagen [1994] IRLR 302 ....................................................... 18.39, 18.45 Scott v Coalite Fuels and Chemicals Ltd [1988] ICR 355 .................................... 22.32 Scottish Co-Op Wholesale Society Ltd v Lloyd [1973] ICR 137 ......................... 24.57 Seaman v Denver Motors Ltd UD 186 and 187/1997 ........................................... 19.21 Secretary of State for Trade and Industry v Cook [1997] IRLR 150 .................... 18.30 Secretary of State v ASLEF (No 2) [1972] 2 QB 455 ............................................. 2.07

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Redmond on Dismissal Law Securicor Guarding Services Ltd v Fraser Security Services Ltd [1996] IRLR 552 ..............................................................................................18.70 Security Guard Supervisor v A Security Company ADJ-00003427 (30 March 2017) ....................................................................................13.28, 16.03 Sengupta v Health Service Executive [2012] ELR 205 .........................................18.11 Senior Platform Developer v A Software Service Provider ADJ-00001930 (31 May 2017) ..................................................................................................20.08 Serikovs v Litec Moulding Ltd UD 525/2015 .......................................................16.78 Shannon v Michael Flannery Car Sales Ltd UD 120/1992 ....................................15.12 Shannon v Michelin (Belfast) Ltd [1981] IRLR 505 .............................................21.17 Sharkey v Dunnes Stores (Ire) Ltd [2004] IEHC 163 ...................................5.38, 11.49 Sharma v Employment Appeals Tribunal [2010] ELR 262 ...................................23.22 Sharos v Fluid Controls (Ire) Ltd UD 824/2004 ....................................................16.55 Sheedy v Therm-o-Disc (Ireland) UD 494/1991 ...................................................16.91 Sheehan and O’Brien v Vintners Federation of Ireland Ltd [2009] ELR 155 .....................................................................................17.29, 19.03 Sheehan v Commissioner for An Garda Síochána [1998] IEHC 202 ...........7.40, 13.70 Sheehan v Continental Administration Co Ltd UD 858/1999 ...............................24.74 Sheehan v Dublin Tribune Ltd [1992] ELR 239 ...................................................23.76 Sheehan v H & M Keating & Son Ltd UD 534/1991 ............................................13.86 Sheehan v Keatings Bakery UD 738/1989 ............................................................18.16 Sheehy v Ryan [2008] IESC 14 ...............................................................................2.01 Sheehy v Ryan and Moriarty [2004] ELR 87 .............................................10.82–10.83 Sheehy v Ryan and Moriarty [2008] 4 IR 258 ..............................................4.12, 10.84 Sheffield v Oxford Controls Co Ltd [1979] IRLR 133 ..........................................22.36 Sheils v Bonner Engineering Ltd UD 67/1977 ......................................................24.35 Shelly-Morris v Dublin Bus [2003] 1 IR 232 ........................................................13.96 Shepherds Investments Ltd v Walters [2007] IRLR 110 .......................................16.89 Sheriff v Corrigan [2000] ELR 233 .........................................................................7.28 Shiels v Integrate Ireland Language & Training Ltd [2010] ELR 41 ..................................................................................................18.50 Shindler v Northern Raincoat Co Ltd [1960] 1 WLR 1038 ...................................11.81 Shirlaw v Southern Foundries Ltd [1939] 2 KB 206 ...............................................5.18 Shortt v Data Packaging Ltd [1994] ELR 251 .......................................................10.36 Shortt v Data Packaging Ltd [1996] ELR 7 ...........................................................17.25 Shortt v Royal Liver Assurance [2008] IEHC 332 ..................................................7.47 Shortt v Smurfit Corrugated Ireland Ltd UD 540/1986 .........................................16.85 Shove v Downs Surgical plc [1984] ICR 532 .............................................11.46, 11.63 Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104 ..........................8.52, 13.128 Siliadin v France (2006) 43 EHRR 16 .................................................................13.130 Silver Tassie Co Ltd v Cleary and Same v Beirne (1958) 91 ILTR 27 .................21.06 Silvey v Pendragon plc [2001] IRLR 685 ..............................................................11.59 Simmette Ltd v Pedelty [1993] UKEAT 13_91_2004 ..........................................21.27 Simmons v Hoover Ltd [1977] ICR 61, [1977] QB 284 .......................................21.82 Sinclair v City of Dublin Vocational Education Committee UD 349/1986 ..........23.33 Singh v London Country Bus Services Ltd [1976] IRLR 176 ...............................15.41 Sita (GB) Ltd v Bruton [1997] IRLR 501 ..............................................................19.31

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Table of Cases Skiggs v South West Trains Ltd [2005] IRLR 459 ............................................... 24.45 SLEF v United Kingdom (2007) 45 EHRR 34 ....................................................... 8.09 Slevin v Edenderry Swimming Pool Ltd UD 180/1989 ........................................ 23.26 Sloan & Co v Dunne UD 69/1978 ......................................................................... 16.13 Smith v Arana Bakeries Ltd [1979] IRLR 423 ..................................................... 22.09 Smith v Baron Johns UD 797/1986 ....................................................................... 13.95 Smith v Beirne (1955) 89 ILTR 24 ....................................................................... 21.06 Smith v Birmingham Corporation [1939] 4 All ER 16 ......................................... 23.19 Smith v Clay (1761) 3 Bro CC 639n ..................................................................... 22.77 Smith v de Jong UD 207/1978 .............................................................................. 13.12 Smith v Hayle Town Council [1978] ICR 996 ...................................................... 21.17 Smith v Inner London Education Authority [1978] 1 All ER 411 ........................ 10.19 Smith v RSA Insurance Ireland Ltd UD 1673/2013 ....................... 13.30, 19.15, 19.22 Smith v Thompson (1849) 8 CB 44 ...................................................................... 11.11 Smith v Tobin [1992] ELR 253 ............................................................................. 19.10 Smith v Trafford Housing Trust [2013] IRLR 86 ............................................... 16.100 Smith v Trustees Of Brooklands College [2011] UKEAT 0128_11_0509 (5 September 2011) ................................................................. 18.29 Smurfit (Ire) Ltd v O’Brien UD 640/1992 ............................................................ 17.07 Smyth v Thomas Montgomery Ltd UD 87/1992 .................................................. 22.17 Société Générale (London Branch) v Geys [2013] 1 AC 523, [2013] ICR 117 .................................................2.11, 4.27, 6.20–6.27, 11.37, 22.06 Solectron Scotland Ltd v Roper [2004] IRLR 4 .................................................... 18.89 Solicitors (Firm of) v A Worker [2002] ELR 305 ................................................. 14.03 Somjee v UK [2002] IRLR 886 (ECtHR) ............................................................... 8.50 Sorensen and Rasmussen v Denmark (2008) 46 EHRR 29 ....................... 8.53, 13.130 Sorensen v Denmark (2008) 46 EHRR 572 ............................................................ 8.13 Soterion v Urtrachem Ltd [2004] IRLR 871 ......................................................... 23.43 Southern Health Board v CH (11 March 1996) SC ................................................. 7.42 Speakman v Calgary (City) (1908) 9 WLR 264....................................................... 4.05 Spijkers v Gebroeders Benedik Abbattoir CV [1986] 2 CMLR 296 .................... 18.39 Sposato v Aircraft Purchase Fleet Ltd ADJ-00001968 ......................................... 18.41 Spring v Guardian Assurance plc [1995] 2 AC 296 ................................................ 5.19 St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267 .................... 23.43 St Ledger v Frontline Distribution Ltd [1995] ELR 160 ....................................... 17.13 Staffordshire County Council v Donovan [1981] IRLR 108 ................................ 22.38 Stakelum v Canning [1976] IR 314 ......................................................................... 3.35 Stamp v AN Stamp Ltd UD 11/1978 .................................................................... 16.53 Stamp v McGrath UD 1243/1983 ......................................................................... 22.64 Stanley Cole Wainfleet Ltd v Sheridan [2003] IRLR 52 ...................................... 19.08 Stanley v Garda Síochána, Complaints Board [2000] 2 ILRM 121 ........................ 3.44 Stapleton v St Colman’s (Claremorris) Credit Union Ltd UD 1776/ 2012 ........... 24.07 Stapp v Shaftesbury Society [1982] IRLR 326 .......................................... 11.17, 22.61 State (Burke) v Garvey [1979] ILRM 232 .............................................................. 7.13 State (Burke) v Lennon and AG [1940] IR 136 ...................................................... 1.04 State (Curtin) v Minister for Health [1953] IR 93 .......................................... 3.42, 4.03 State (Cussen) v Brennan [1981] IR 181 ................................................................. 9.44

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Redmond on Dismissal Law State (Dublin Corporation) v EAT and Mooney (20 October 1986) HC ..............25.14 State (Duffy) v Minister for Defence [1979] ILRM 65 ...........................................7.13 State (Ferris) v EAT (1985) 4 JISSL 100 .................................................23.111, 25.13 State (Gallagher) v Governor of Portlaoise Prison (18 May 1977) HC ...................7.32 State (Gleeson) v Minister for Defence [1962] 1 WLR 1411 ..................................9.32 State (Gleeson) v Minister for Defence [1976] IR 280 ......................... 4.28, 7.03, 7.13 State (Healy) v Donoghue [1976] IR 325, 110 ILTR 9 ..................................1.04, 8.16 State (Irish Pharmaceutical Union) v Employment Appeals Tribunal [1987] ILRM 36 ......................................................................................7.22, 24.78 State (Killian) v Minister for Justice [1954] IR 207 ................................................7.60 State (Lynch) v Cooney [1982] IR 337 ....................................................................7.75 State (Malachy Daly) v Minister for Agriculture [1988] ILRM 173 .......................7.73 State (McFadden) v Governor of Mountjoy Prison [1981] ILRM 113 ...................8.18 State (Polymark) v The Labour Court [1987] ILRM 357 ........................................7.54 State (Sheehan) v McMahon [1976–77] ILRM 305 ................................................7.68 State (Smullen) v Duffy [1980] ILRM 46 ...............................................................7.32 State (Thomas Jordan) v The Commissioner of An Garda Síochána [1987] ILRM 107 ...............................................................................................3.44 State (Vozza) v O’Floinn [1957] IR 227 .................................................................9.45 Stenson v Fluid Dynamics UD 251/1978 ..............................................................23.54 Stephens v Archaeological Development Services Ltd [2010] IEHC 540 ............24.32 Stevenson v Dalton Secondary & Preparatory Schools UD 10/1978 ....................23.68 Stevenson v United Road Transport Union [1976] 3 All ER 29, [1977] ICR 893 ...............................................................................3.41, 9.32, 10.96 Stevenson, Jordan and Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101 ...............................................................................................3.06 Stewart v Glentaggart Ltd [1963] SLT 119 ...........................................................11.68 Stock v Frank Jones (Tipton) Ltd [1978] ICR 347 ................................................21.88 Stocks v Magna Merchants Ltd [1973] ICR 530 ........................................11.65, 11.72 Stokes v Christian Brothers High School Clonmel [2015] IESC 13 .....................25.24 Stonearch Branch Randstone Ltd v O’Brien PE1/2003-PE44/2003 ......................21.70 Store Manager v A DIY Store ADJ-00002684 (23 May 2017) .............................19.23 Storey v Fulham Steel Work Co (1907) 24 TLR 89 ................................................4.04 Stoskus v Goode Concrete Ltd [2007] IEHC 432 ............................ 7.36, 10.17, 13.70 Stratford v Lindley [1965] AC 307 ........................................................................21.82 Stroker v Doherty [1989] IR 440 .............................................................................3.44 Strouthos v London Underground Ltd [2004] IRLR 636 ......................................13.28 Stuart Peters Ltd v Bell [2009] EWCA Civ 938 [2010] 1 WLR 10, [2009] ICR 1556 ...............................................................................................24.40 Stuart v Armoguard Security Ltd [1996] 1 NZLR 484 ..........................................11.49 Stubbs v Trower, Still & Keeling [1987] IRLR 321 CA .........................................5.18 Sullivan v Boylan [2013] IEHC 104 ........................................................................8.47 Sunday Newspapers Ltd v Kinsella [2007] IEHC 324 ...............................18.65, 25.54 Sunley Turriff Holdings v Thomson [1995] IRLR 184 .........................................18.76 Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice [1997] IRLR 255 ..................................................18.46–18.46 Sweeney v Gallaghers Hotel (Letterkenny) Ltd UD 566/1983 .............................15.39

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Table of Cases Sweeney v Otis Elevator (Irl) Ltd UD 587/1988 .................................................. 16.48 Symantec v Leddy [2009] IEHC 256 .................................................................... 18.34 Symbien Ltd v Christensen [2001] IRLR 77 ......................................................... 16.89 Szabo v Esat Digifone Ltd [1998] 2 ILRM 102 .................................................... 10.33 T T & K Home Improvements Ltd v Skilton [2000] IRLR 595 ................................. 4.03 Takacs v Barclays Services Jersey Ltd [2006] IRLR 877 .............................. 4.14, 5.54 ............................................................................................................... 11.61, 11.73 Talbot (Ireland) Ltd v Merrigan (1 May 1981) SC .................................... 21.06, 21.72 Talbot (Ireland) Ltd v Minister for Labour (1983 No 407 Sp) ............................. 25.54 Tammegami v Employment Appeals Tribunal and Tullow Oil plc and Tullow Oil Co Ltd (27 November 1987) ......................................................... 25.13 Tara Mines Ltd v Duffy UD 50/1980 .................................................................... 21.72 Tara Prospecting Ltd v Minister for Energy [1993] ILRM 771 .............................. 9.63 Taylor v Furness Withy Ltd (1969) 6 KIR 488 ....................................................... 3.43 Taylor v National Union of Seamen [1967] 1 WLR 532, [1967] 1 QBD 767 ....................................................................... 9.39, 10.96, 11.30 Taylor v OCS Group Ltd [2006] IRLR 613 ........................................................ 13.110 Taylor v Thiel Computer Products UD 246/1990 ................................................. 13.20 TD v Minister for Education [2001] 4 IR 259 ......................................................... 8.07 Tesco Stores Ltd v Pook [2004] IRLR 618 ........................................................... 16.19 TGWU v McKinnon [2001] IRLR 597 ................................................................. 18.60 The Marley Tile Co Ltd v Shaw [1980] IRLR 25 ................................................. 21.33 The Wise Group v Mitchell [2005] UKEAT 0693_04_1102 (11 February 2005) .......................................................................................... 11.34 Theedom v British Railways Board [1976] IRLR 137 .......................................... 19.11 Thomas Marshall (Exports) Ltd v Guinle [1978] IRLR 174 .......................... 4.24, 6.05 Thompson v Eaton Ltd [1976] 3 All ER 383, [1976] ICR 336, [1978] IRLR 483......................................................................... 21.72, 21.86, 22.09 Thompson v SCS Consulting Ltd [2001] IRLR 801 (EAT) ................................. 18.61 Thomson v Alloa Motor Co Ltd [1983] IRLR 403 ............................................... 16.01 Thorton v Coolock Foods Ltd t/a Silvercrest Foods [1990] ELR 40 .................... 16.48 Tierney and Dalton v CIÉ UD 81/1984 (15 July 1985) CC .................................. 21.75 Tierney v Amalgamated Society of Woodworkers [1959] IR 254 ......................... 8.12 Tierney v An Post [1999] ELR 293, [2000] 2 IRLM 214 ............ 3.13, 7.08, 7.28, 9.12 Tierney v Cleere UD 812/1984 ............................................................................. 16.55 Tierney v Irish Meat Packers (1989) ILT 5 ............................................................. 4.06 Tighe v Travenol Laboratories Ltd P14/1986 ....................................................... 14.28 Timex Corporation v Thomson [1981] IRLR 522 ................................................ 21.54 Tinsley v Milligan [1994] 1 AC 340 ..................................................................... 11.05 Tipperary (North Riding) County Council v Doyle [1996] ELR 93 ..................... 23.58 Tipperary (North Riding) County Council v Treacy [1996] ELR 4 ...................... 23.58 Tippett v International Typographical Union Local 226 (1977) 71 DLR (3rd) 146 ................................................................................................. 11.49 Tobin v Cashell [1998] ELR 277 ............................................................................ 4.35 Todd v NE Electricity Board [1975] IRLR 130 .................................................... 24.24

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Redmond on Dismissal Law Tolnay v Criterion Films [1936] 2 All ER 1625 ....................................................11.47 Tolson v Governing Body of Mixenden Community School [2003] IRLR 842 ..............................................................................................19.14 Tomlinson v The London Midland & Scott Rly Co [1944] 1 All ER 537 ..............5.04 Toner v ESAT Telecommunications Ltd UD 135/2003 ........................................14.21 Toohey v Molex SA UD 976/1986 ........................................................................15.12 Top Creation v St Albans District Council [1998] BCC 999 ................................23.14 Tormey v Display Development Ltd UD 2/1977 ..................................................24.75 Torpie v Post Publications Ltd UD 420/1995 ........................................................15.12 Trans Irish Lines Ltd v Delaney UD 6/1977 ..............................................24.48–24.53 Transaer International Airlines Ltd (In Liquidation) v Delaney and Two Hundred and Nine Others [2004] ELR 1 .........................................................22.48 TransCo (formerly BG) v O’Brien [2002] IRLR 441 (CA) ....................................5.23 Transco plc v O’Brien [2002] IRLR 444 .................................................................5.24 Transport Salaried Staffs’ Association v CIÉ [1965] IR 180 ..................................8.34 Traynor v Ryan [2003] 2 IR 564 ............................................................................10.49 Treacy v Irish Packaging Recycling Ltd [2013] IEHC 41 .....................................11.10 Troy v Ennis Handling Systems Ltd UD 601/1991 ...............................................13.79 Trusts of the Will of Simon Sheil, Re (23 November 1977) SC ...........................22.40 Trusts of Will of Simon Sheil, Re; Browne v Mulligan (23 November 1977) SC ..................................................................................11.66 Tucht v West Germany App No 9336/81 (1982), ECtHR ..........................8.53, 13.130 Tuke v Coillte Teoranta [1998] ELR 324 ...................................................21.73, 21.86 Tunstall v Condon [1980] ICR 786 .......................................................................22.42 Turner v London Transport Executive [1977] IRLR 441 ......................................19.11 Turner v Mason (1845) 14 M & W 112 ...................................................................4.29 Twomey v O’Leary Office Supplies Ltd [1997] ELR 42 ......................................22.65 U UK Waste Control Ltd v (1) Wren and (2) Eastbourne Borough Council [1995] ICR 974 .................................................................................................18.45 Ulsterbus Ltd v Henderson [1989] IRLR 251 (NICA) ..........................................13.70 Union of Construction and Allied Trades and Technicians v Brane [1981] IRLR 224 ..............................................................................................13.31 Unison v UK [2002] IRLR 497 (ECtHR) ................................................................8.09 United Bank v Aktar [1989] IRLR 507 ...................................................................5.23 University College Cork v Bushin [2012] IEHC 76 ..............................................25.33 Uzunov v Board of Management of Coolmine Community School UD 1147/1992 ..................................................................................................23.27 V VA Hemmings v International Computers Ltd [1976] IRLR 37 ...........................19.11 Vanfleet Transport Ltd v Mark Murphy (25 November 1988) CC .......................13.54 Vaughan v Weighpack [1974] ICR 261 .................................................................24.45 Veniamin Tymoshenko v Ukraine App no 48408/12 (2 October 2014), ECtHR ...................................................................................................8.53, 13.130 Victory v Leopardstown Park Hospital UD 9/1987 ...............................................15.10

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Table of Cases Vidal [1998] ECR 1–8179 ..................................................................................... 18.45 Vidyodaya University of Ceylon v Silva [1964] 3 All ER 865 ............................... 7.08 Viggósdóttin v Islandspóstur HF [2002] IRLR 425 .............................................. 18.33 Villella v MFI Furniture Centres Ltd [1999] IRLR 468 .............................. 4.14, 11.73 Vine v National Dock Labour Board [1956] 3 All ER 944, [1956] 1 QB 658, [1957] AC 488 .........................................3.41, 6.04, 9.32, 10.96 Virgin Net Ltd v Harper [2003] IRLR 831 ........................................................... 11.21 Virgin Net Ltd v Harper [2014] EWCA Civ 271, [2005] ICR 921 ............ 11.20–11.22 Visa International Service Association v Paul [2004] IRLR 42 ............................. 5.24 Vita Contex Ltd v Dourellan UD 1031/1992 ........................................................ 13.57 Vitalie Vet v Kilsaran Concrete, Kilsaran International Ltd [2016] ELR 237 ............................................................................................... 16.03 Vogt v Germany (1996) 21 EHRR 205 ...................................................... 8.53, 13.130 Vokes Ltd v Beer [1973] IRLR 363, [1974] ICR 1 ............................................... 13.25 W W & J Wass Ltd v Binns [1982] IRLR 283 .......................................................... 13.24 W Devis & Sons Ltd v Atkins [1977] 3 All ER 40, [1977] IRLR 314 [1977] AC 931 .................................................................. 4.34, 13.10, 22.07, 24.62 W v Ireland (No 2) [1997] 2 IR 141 ............................................................... 8.35–8.37 WA Goold (Pearmak) Ltd v McConnell [1995] IRLR 516 (EAT) ....................... 19.14 Walker v Bausch & Lomb Ltd UD 179/2008 ....................................................... 16.96 Walker v Northumberland County Council [1995] IRLR 35 ................................ 19.10 Wall v British Compressed Air Society [2004] IRLR 147 ................................... 23.55 Wall v Bus Átha Cliath UD 460/1995 ................................................................... 15.10 Wallace v Irish Aviation Authority [2012] IEHC 178, [2012] 2 ILRM 350 [2012] ELR 177 ...........................................8.24, 8.29, 10.54, 10.58, 13.41, 13.108 Wallace v United Grain Growers Ltd [1977] 3 SCR 701 ............................ 5.68, 11.49 Wallace-Hayes v Skolars Hairdressing School Ltd [1991] ELR 108 ................... 22.16 Walsh and Cotter v Denford Taverns Ltd and Bowler [1998] ELR 315 .............. 18.42 Walsh and Long v Kilkenny County Council UD 824 and 836/1992 ................... 23.75 Walsh and O’Riordan v Lindville Ltd UD 125 and 6/1990 .................................. 13.64 Walsh v A Guinness & Co Dublin Ltd UD 871/1985 ........................................... 15.12 Walsh v Dublin Health Authority (1964) 98 ILTR 82 ................................... 3.42, 4.10 Walsh v East Link Ltd UD 90/1988 ...................................................................... 24.24 Walsh v FN Woolworth & Co Ltd UD 296/1978 ................................................. 16.53 Walsh v Iarnród Éireann UD 27/1987 ................................................................... 15.12 Walsh v Oliver Freaney & Co and Dunnes Stores Ltd [1995] ELR 209 ... 23.14–23.17 Walsh v Smiths (Portlaoise) Ltd UD 164/1978 ..................................................... 13.74 Walsh v Sweeney UD 751/1992 ........................................................................... 22.18 Walshe v Hill Ltd UD 501/1989 ........................................................................... 16.13 Walton & Morse v Dorrington [1997] IRLR 488 ...................................... 19.10, 19.12 Wandoch v Aldi Stores (Ireland) Ltd UD897/2015 .............................................. 19.03 Warburton v Co-Operative Wholesale Society Ltd [1917] 1 KB 663 ......... 4.04, 10.04 Ward v Spivack Ltd [1957] IR 40 ......................................................................... 11.63 Wardle v Crédit Agricole Corporate Bank [2011] EWCA Civ 545, [2011] ICR 1290 ................................................................................................ 5.58

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Redmond on Dismissal Law Wares v Caithness Leather Products [1974] IRLR 162 .........................................19.11 Warner Brothers Pictures Inc v Nelson [1937] 1 KB 209 .....................................10.03 Warner v Armfield Retail & Leisure Ltd) [2013] UKEAT 0376_12_0810 ....................................................................................................4.04 Warner v Barbers Stores [1978] IRLR 109 ...........................................................19.11 Warnes v Trustees of Cheriton Oddfellows Social Club [1993] IRLR 58 ................................................................................................19.24 Warren v Cross Channel Carriers Ltd UD 44/1977 ...............................................24.35 Warren v Mendy [1989] 1 WLR 853 .....................................................................10.03 Wasser v Dublin Corporation UD 42/1989 ...........................................................16.40 Waters v Kentredder (Irl) Ltd UD 3/1977. ............................................................16.01 Watling & Co Ltd v Richardson (1978) EAT 774/77 ............................................21.45 Watson v Student Loans Company Ltd [2002] ScotCS 279 ....................................4.01 Webb v EMO Air Cargo (UK) Ltd C–32/93, [1994] IRLR 482, [1985] IRLR 645 (HL) .....................................................................................14.10 Webb v Ireland [1988] IR 353, [1988] ILRM 565 .........................................9.47, 9.63 Wendelboe v LJ Music ApS [1985] ECR 511 .......................................................22.54 Werhof v Freeway Traffic Systems [2006] IRLR 400 ............................................8.09 Wernstrom v Galway Aviation Services Ltd UD 1460/2004 ................................13.58 West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, [2014] ICR 194 ......................................................................................10.02, 10.28 West Midlands Co-Operative Society v Tipton [1986] ICR 192, [1986] IRLR 112 .............................................................................................22.29 Western Cape Education Department v Julian John Gordon (18 March 2013), Labour Court, Johannesburg ............................................................................24.19 Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, [1978] IRLR 332 .......................................................................................... 5.27, 19.05, 19.11, 19.12 Wetherall (Bond St WI) v Lynn [1977] IRLR 333 ................................................19.11 Wetherall v Lynn [1978] IR 205 ............................................................................19.11 Wheatley v Ulster Bank Ltd UD 18/1977 ..............................................................24.35 Wheeler v Patel [1987] ICR 631 .................................................................18.66–18.66 Whelan v Dempsey UD 557/1990 .........................................................................21.55 Whelan v IWA Ltd t/a Irish Wheelchair Association UD 436/2014 ..........13.74–13.78 Whelan v Minister for Justice (19 June 1990) HC, (1991) ILT 2 ...................3.42, 7.73 Whelan v RTÉ UD 1056/1993 ...............................................................................23.15 Whiffen v Milham Ford Girls’ School [2001] IRLR 468 ......................................21.58 White and Carter (Councils) Ltd v McGregor [1962] AC 413 .....................6.26, 11.40 White v Aluset Ltd UD 259/1988 ..................................................... 8.08, 21.23–21.25 White v Betson [1992] ELR 120 ................................................................21.15, 21.20 White v Dawn Meats Group t/a Dawn Meats UD852/2012 ..................................13.92 White v Fry-Cadbury (Ire) Ltd UD 44/1979 ................................... 13.16, 16.13, 24.66 White v Irish Rail UD 364/1993 ............................................................................16.26 White v Power Supermarket Ltd UD 312/1985 .....................................................22.62 White v Reflecting Roadstuds Ltd [1991] IRLR 331 ............................................19.10 Whitham v Club 24 Ltd t/a Ventura ET/1810462/2010 ...........................16.98, 16.102 Whitwood Chemical Co v Hardman [1891] 2 Ch 416 ..........................................10.03

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Table of Cases Whooley v Millipore Ireland BV [2010] IEHC 314 ............................................. 23.18 Whyte v Phonewatch Ltd UD 685/2015 ..................................................... 19.12, 25.18 Wickers v Champion Employment [1984] ICR 365 ............................................. 23.06 Wigan Borough Council v Davies [1979] IRLR 127 ............................................ 19.10 Wilding v British Telecommunications plc [2002] EWCA Civ 349, [2002] IRLR 525 (CA) .................................................................................... 24.76 Wiley v Revenue Commissioners [1994] 2 IR 160 ................................................. 9.63 Wilkins v Cantrell & Cochrane Ltd [1978] IRLR 483 .......................................... 19.11 William Hill Organisation v Tucker [1998] IRLR 313 ........................................... 4.19 William Murphy v The Turf Club [1989] IR 172 ................................................... 9.10 Williams Transport Group Ltd v McCafferty UD 152/1978 ................................ 16.13 Williams v CompAir Maxam Ltd [1982] IRLR 83 ............................................... 21.47 Williams v Duffy & Co UD 687/1986 .................................................................. 23.05 Williams v Lloyds Retailers Ltd [1973] IRLR 262 ............................................... 24.76 Williams v Watson Luxury Coaches Ltd [1990] IRLR 164 ................................. 15.18 Willow Oak Developments Ltd v Silverwood [2006] IRLR 28 (EAT) ................. 18.03 Wilson and NUJ v UK [2002] IRLR 568 ................................................... 8.53, 13.130 Wilson v Associated Newspapers and Palmer v Associated British Ports [1993] IRLR 336, [2002] IRLR 568........................................................ 8.09, 21.21 Wilson v Brereton (1843) 5 LR Ir 466 .................................................................... 1.36 Wilson v Circular Distributions Ltd [2006] IRLR 38 ............................................. 3.14 Wilson v Lamb [2007] All ER (D) 485 ................................................................. 19.10 Wilson v Post Office [2000] IRLR 834 ................................................................. 15.12 Wilson v St Helen’s Borough Council [1996] IRLR 320 ..................................... 18.79 Wilson v United Kingdom (2002) 35 EHRR 523 ................................................... 8.09 Wiltshire County Council v NATFHE and Guy [1980] IRLR 198 ...................... 22.04 Winters v Strategic Arts Management Co Ltd [2012] ELR 286 ........................... 18.50 Witham v Hills Shopfitters Ltd (1976) IT 17091/76/B ......................................... 19.11 Withers v General Theatre Corporation [1933] 2 KB 536 .................................... 11.46 Wixted v Sang Mann [1991] ELR 208 ....................................................... 21.15, 21.20 WJ Dawn Ltd v Tynan UD 120/1980 ................................................................... 13.49 Woodhouse v The RIAM (1908) 2 IR 357 .............................................................. 1.37 Woods v Greaney UD 285/1990 ........................................................................... 22.16 Woods v Monkscombe Ltd UD 585/1990 ............................................................ 14.14 Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666, [1981] IRLR 347, [1982] ICR 693 ...................................... 5.22, 5.28, 11.52, 19.05 Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 465 ........................ 2.06 Worker v A Hospital [1997] ELR 214 ......................................................... 7.42, 13.60 Worker v An Employer (No 2) [2005] ELR 132 .................................................. 22.23 Worker v Therapie Clinic (LCR 21396 ................................................................. 21.03 Wright v Hoyer Ireland Ltd UD 501/1996 ................................................. 18.37, 18.74 Wynes v Southrepps Hall Broiler Farm Ltd (1968) ITR 407 ................................ 24.01 Wynne v The Ormond Printing Co Ltd UD 669/1993 .......................................... 24.18 X X v Y [2004] IRLR 625 CA ................................................................................ 13.123 XXX v YYY [2004] IRLR 137 (EAT), [2004] IRLR 471 (CA) .......................... 25.59

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Redmond on Dismissal Law Y Yap v Children’s University Hospital Temple St Ltd [2006] 4 IR 298 ......10.30–10.33 Yapp v FCO [2015] IRLR 112 ...................................................................10.02, 10.28 Yates v British Leyland [1974] IRLR 367 .............................................................13.12 Yeates v Minister for Posts and Telegraphs [1978] ILRM 22 ....................10.17, 10.33 Yetton v Eastwood Froy Ltd [1967] 1 WLR 104 ..................................................11.81 Yeung v Capstone Care Ltd [2013] UKEAT 0161_13_1302 ................................13.70 Yewdall v Secretary of State For Work & Pensions [2005] UKEAT 0071_05_1907 (19 July 2005) ...........................................................21.28 Yore v Tara Mines Ltd UD 326/1986 ....................................................................16.61 Yorkshire Engineering and Welding Co Ltd v Burnham [1974] ICR 77 ..............11.65 Young and Woods Ltd v West [1980] IRLR 201, (1981) ILJ 124 ..........................3.11 Young, James & Webster v UK [1982] EHRR 38 ..................................................8.11 Young’s of Gosport Ltd v Kendell [1977] ICR 907 ..............................................24.53 Z Zambra v Duffy UD 154/1978 ....................................................................13.86, 24.76 Zimmerman v Der Deutsche Schulverein [1999] ELR 211 .................................23.104 Zucker v Astuid Jewels Ltd [1978] IRLR 385 .......................................................21.32 Zuphen v v Kelly Technical Services (Ire) Ltd [2000] ELR 277 ..................4.04, 22.39

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Table of Legislation

Ireland Act of Union of Great Britain and Ireland 1800 ...............................................1.02, 1.26 Adoptive Leave Act 1995 .............................................................................14.01, 23.91 s 4...........................................................................................................................14.36 s 6 ..........................................................................................................................23.92 s 8 ..........................................................................................................................23.96 s 9 ..........................................................................................................................23.97 s 16 ........................................................................................................................14.21 s 20.........................................................................................................................14.34 s 25 ........................................................................................................................23.21 s 26 ........................................................................................................................14.34 (2) ...................................................................................................................22.60 s 29 ........................................................................................................................17.01 Adoptive Leave Acts 1995 and 2005 ......................................................................12.10 Anti-Discrimination (Pay) Act 1974 .......................................................................14.07 s 8(3) .....................................................................................................................25.34 Bankruptcy Act 1988 ...............................................................................................22.44 Carer’s Leave Act 2001 ...............................................12.10, 14.01, 14.34, 20.04, 23.98 s 4 ........................................................................................................................14.36 s 14 ........................................................................................................................14.34 s 16(4) ...................................................................................................................22.60 s 26 ........................................................................................................................17.01 Child and Family Agency Act 2013 s 28 ........................................................................................................................23.49 Civil Service Regulation Act 1956 s 5 .........................................................................................................3.45–3.49, 7.72 s 5A ......................................................................................................3.42, 7.72–7.76 (4) ....................................................................................................................7.72 s 7 .........................................................................................................3.42, 7.72–7.75 9(1) ......................................................................................................................7.66 s 17 ...............................................................................................................3.49, 23.52 (1) .....................................................................................................................3.50 Civil Service Regulation (Amendment) Act 1958 s s 3 .........................................................................................................................7.72 Civil Service Regulation (Amendment) Act 2005 ............3.42, 3.45, 7.74, 12.12, 23.63 s 2 ........................................................................................................................23.49 s 6 ..........................................................................................................................3.47

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Redmond on Dismissal Law Civil Service Regulation (Amendment) Act 2005 (contd) s 7 ......................................................................................................................... 3.46 s 22 ....................................................................................................................... 23.52 s Pt 6 ..................................................................................................................... 23.51 s Pt 7 ....................................................................................................................... 4.21 Combination Laws Repeal Act 1924 (5 Geo IV, c 95) ............................................. 1.29 Companies Act 1963 s 194 ....................................................................................................................... 4.33 Companies (Amendment) Act 1990 ....................................................................... 22.58 Companies Act 2014 s Pt 11 ................................................................................................................... 22.47 s Sch 1 Table A art 7 .................................................................................................................. 4.33 art 84 ................................................................................................................ 4.33 Competition Act 1991 s 4(1) ................................................................................................................... 16.113 Competition Act 2002 ........................................................................................... 16.112 s 3 ....................................................................................................................... 16.111 4(1) .................................................................................................................. 16.111 Conspiracy and Protection of Property Act 1875 ..................................................... 1.29 Contractual Obligations (Applicable Law) Act 1991 ........................................... 23.106 s 6 ...................................................................................................................... 23.107 Credit Guarantee (Amendment) Act 2016 ................................................... 14.07, 25.17 s 17 ................................................................................................. 14.07, 19.26, 25.17 Criminal Justice (Amendment) Act 1933 ................................................................. 8.33 Criminal Justice (Theft and Fraud Offences) Act 2001 s 59(3) ................................................................................................................... 20.04 Data Protection Act 1988 ........................................................................................ 16.82 s 2(1)(c)(iii) .......................................................................................................... 13.99 Data Protection (Amendment) Act 2003 ................................................... 13.98–13.100 Declaratory Act 1720 ................................................................................................ 1.09 Dismissals Acts 1977–2015 ...................................................................................... 1.03 Education Act 1998 ................................................................................................... 9.24 s 23 ......................................................................................................................... 9.24 Education and Training Boards Act 2013 ............................................................... 23.65 Electricity Supply Act 1927 s 29(9) ..................................................................................................................... 9.36 Elizabethan Statute 1562 ........................................................................................... 1.17

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Table of Legislation Employees (Provision of Information and Consultation) Act 2006 .............20.04, 25.11 s 13 ........................................................................................................................12.11 s 21(3) ...................................................................................................................18.28 Employment Act 2002 ...............................................................................................5.49 Employment Agency Act 1971 ...............................................................................23.06 Employment Equality Act 1977 ..............................................................................14.07 Employment Equality Act 1998 ............14.07, 14.13, 15.05, 19.26, 20.04, 23.18, 24.45 s s

2(1) ..................................................................................................................15.05 4 .......................................................................................................................23.49 6 (2) ..................................................................................................................14.03 (6)(c) ..............................................................................................................14.07 s 37 ........................................................................................................................18.08 (1C) .................................................................................................................18.09 s 77 ..................................................................................................14.07, 19.26, 25.17 s 101 ................................................................................................14.07, 19.26, 25.17

Employment Permits Act 2003 s 2 ..........................................................................................................................15.46 Employment Permits Act 2006 s 4 ..........................................................................................................................15.46 s 8 ..........................................................................................................................15.46 Employment Permits (Amendment) Act 2014 ........................................................15.46 Equality Act 2004 s 25 ........................................................................................................................18.08 Equality (Miscellaneous Provisions) Act 2015 s 10 ........................................................................................................................14.03 s 11 ........................................................................................................................18.08 European Convention on Human Rights Act 2003 ...............................8.01, 8.48, 13.98 ............................................................................................................13.123–13.128 s 3 ............................................................................................................................8.49 Finance Act 1964 s 8 ..........................................................................................................................11.67 s 9 ..........................................................................................................................11.67 Finance Act 1967 s 10 ........................................................................................................................11.68 Finance Act 1968 .....................................................................................................11.68 Further Education and Training Act 2013 ...............................................................23.71 Gaming and Lotteries Act 1956 ................................................................................8.14 Garda Síochána Act 2005 ..........................................................................................3.44

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Redmond on Dismissal Law Health Act 1970 ........................................................................................................ 9.42 s 22 ......................................................................................................................... 9.29 s 22–24 ................................................................................................................... 3.42 s 23 ......................................................................................................................... 9.29 s 24 ......................................................................................................................... 9.29 s 37 ....................................................................................................................... 18.26 Health Act 2004 ...................................................................................................... 23.67 s 17 ....................................................................................................................... 23.49 Health Safety and Welfare at Work Act 2005 a 13(1)(c) ........................................................................................ 13.96, 16.77–16.82 Industrial Relations Act 1946 ................................................................................. 12.03 s 19(4) ..................................................................................................................... 3.39 Industrial Relations Act 1969 ................................................ 1.44, 12.04, 13.121, 21.03 Industrial Relations Act 1971 ................................................................................. 10.20 s 116 ..................................................................................................................... 24.45 Industrial Relations Act 1990 ........ 1.29, 8.10, 13.36, 21.04, 21.10, 21.79, 21.84–21.86 s 8 .............................................................................................................. 1.29, 21.05 s 9 ....................................................................................................................... 21.07 (4) ................................................................................................................... 21.10 s 11 ......................................................................................................................... 8.10 s Pt II .................................................................................................................... 21.05 Industrial Relations (Amendment) Acts 2001–2004 ................................................ 8.12 Industrial Relations (Amendment) Act 2015 s 39 ....................................................................................................................... 21.13 Industrial Training Act 1967 ................................................................................... 23.71 s 4 ............................................................................................................ 23.71–23.72 7(2) ................................................................................................................... 23.40 s 27(5)(c) .............................................................................................................. 23.74 Insurance Act 1990 s 6 ......................................................................................................................... 18.26 Irish Land Commission (Dissolution) Act 1992 ....................................................... 7.66 Irish Universities Act 1908 .............................................................................. 9.18, 9.55 Jurisdiction of Courts and Enforcement of Judgments Act 1993 ......................... 23.107 Larceny Act 1916 s 17(2)(b) ................................................................................................................ 9.69 Local Authorities (Officers and Employees) Act 1926 ................................. 9.36, 23.64 Local Government Act 2001 ................................................................................... 23.12 s 144 .......................................................................................................... 23.49, 23.64 Local Government Reform Act 2014 ........................................................... 23.12, 23.49

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Table of Legislation Maternity Protection Act 1994 .........................12.10, 14.01, 14.04, 14.19, 14.35, 23.90 s 4(1) ....................................................................................................................14.36 (3) ...................................................................................................................14.35 s 8 ........................................................................................................................14.20 s 14(1) ...................................................................................................................14.20 s 15 ........................................................................................................................23.89 s 15A–B ................................................................................................................14.21 s 16 .............................................................................................................14.21–14.24 (1) ...................................................................................................................23.83 (4) ...................................................................................................................23.83 s 17 ........................................................................................................................23.88 s 18 .............................................................................................................14.21, 23.88 (3) ...................................................................................................................23.88 s 20(1) ...................................................................................................................23.90 s 21 .............................................................................................................14.21, 23.83 (1) ...................................................................................................................14.19 s 23 ........................................................................................................................14.21 s 26 .............................................................................................................10.77, 14.25 (2)–(3) .............................................................................................................14.26 s 27 ........................................................................................................................10.77 (1)–(2) ............................................................................................................14.27 s 28 ........................................................................................................................14.29 (3) ...................................................................................................................14.30 s 38(2) ...................................................................................................................23.82 (5) ...................................................................................................................23.21 s 40 ........................................................................................................................14.33 (2) ...................................................................................................................17.01 (4) ........................................................................................................14.33, 22.60 s Pt IV .............................................................................................14.01, 14.24, 23.82 Maternity Protection (Amendment) Act 2004 .........................................................14.04 s 19 ........................................................................................................................14.27 Maternity Protection of Employees Act 1981 s 17 ........................................................................................................................14.22 Maternity Protection of Employees Acts 1981 and 1991 ........................................14.04 Medical Practitioners Act 1978 .................................................................................8.20 Minimum Notice and Terms of Employment Act 1973 ........................4.21, 5.05, 11.65 .............................................12.03, 22.49, 22.60, 22.74, 23.74, 24.13, 24.39, 24.56 s 1 ............................................................................................................................4.21 s 3 ............................................................................................................................4.25 s 4 ............................................................................................................................4.22 s 6 ............................................................................................................................4.21 s 8 ............................................................................................................................4.26 s Sch 1 ..................................................................................18.64, 23.20, 23.29, 23.38 para 6 ...................................................................................................24.13, 22.48 para 7 ..............................................................................................................22.48 para 8 ..............................................................................................................23.23

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Redmond on Dismissal Law Minimum Notice and Terms of Employment Acts 1973–2005 .............................. 11.13 National College of Art and Design Act 1971 s 17 ......................................................................................................................... 3.35 National Minimum Wage Act 2000 ............................................................. 20.04, 23.21 s 36(2) ................................................................................................................... 12.11 Nurses Act 1985 s 38 ....................................................................................................................... 10.69 Offences Against the State Act 1939 s 34 ......................................................................................................................... 8.14 Organisation of Working Time Act 1997 ...................................................... 3.26, 24.39 Parental Leave Act 1995 s 23(3)(b) .............................................................................................................. 17.01 Parental Leave Act 1998 ................................................................... 12.10, 14.01, 14.20 s 4 ........................................................................................................................ 14.36 s 15 ....................................................................................................................... 14.34 s 25 ....................................................................................................................... 14.34 (2) ................................................................................................................... 23.21 (3)(a) .............................................................................................................. 22.60 Paternity Leave and Benefit Act 2016 ................................... 12.10, 14.01, 23.21, 23.98 s 4 ....................................................................................................................... 14.36 s 13(1) ................................................................................................................... 23.87 s 20 ....................................................................................................................... 14.21 s 24 ....................................................................................................................... 14.34 s 26 ....................................................................................................................... 14.34 (4)......................................................................................................... 17.01, 22.60 s 34 ....................................................................................................................... 14.20 Payment of Wages Act 1991 ................................................................................... 25.33 Police Forces (Amalgamation) Act 1925 .................................................................. 7.16 Police Forces Amalgamation Act 1925 .................................................................... 9.38 Post Office Act 1908 ................................................................................................. 8.14 Postal and Telecommunications Services Act 1983 s 45 ....................................................................................................................... 18.26 Prevention of Corruption Act 2001 s 8A ....................................................................................................................... 20.03 Prevention of Corruption Acts 1889–2010 ............................................................. 20.03 Probation of Offenders Act 1907 ............................................................................ 16.36 Protected Disclosures Act 2014 .................................. 10.95, 12.10–12.11, 20.01–20.06 ..................................................................................................... 23.01, 23.21, 25.11 s 3 ............................................................................................................. 20.06, 20.19 s 5 ........................................................................................................................ 20.08

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Table of Legislation Protected Disclosures Act 2014 (contd) (3) ...................................................................................................................20.13 (7) ...................................................................................................................20.12 6(2) ......................................................................................................................20.14 s 7 ..........................................................................................................................20.14 s 8 –9......................................................................................................................20.14 s 9 ..........................................................................................................................20.14 s 10 ........................................................................................................................20.15 (3) ...................................................................................................................20.16 (4) ...................................................................................................................20.14 s 11(1)(c) ...............................................................................................................23.21 (2) ........................................................................................................20.10, 20.26 s 13 .............................................................................................................20.07, 20.25 s 16 ........................................................................................................................20.17 s Sch 1 para 3 ........................................................................................................20.29 s Sch 2 ...................................................................................................................20.19 s Sch 4 ...................................................................................................................20.04 Protection of Children Act 1999 ................................................................................5.56 Protection of Employment Act 1977 .................................................12.04, 21.50, 21.63 Protection of Employees (Employers’ Insolvency) Act 1984 s 1(3) ...................................................................................................................24.83 Protection of Employees (Part-Time Work) Act 2001 .................................20.04, 21.58 .....................................................................................................23.23, 25.11, 25.35 Protection of Employees (Fixed-Term Work) Act 2003 .....................3.26, 20.04, 21.58 ...............................................................................23.27, 23.35, 25.11, 25.33–25.35 s 2 .........................................................................................................................22.04 Protection of Employees (Temporary Agency Work) Act 2012 .......20.04, 21.58, 23.06 s 2 .........................................................................................................................23.07 Protection of Young Persons (Employment) Act 1977 ...........................................16.48 Public Service Management (Recruitment and Appointments) Act 2004 ..............23.67 Railways Act 1924 s 55 .................................................................................................................4.03, 8.34 Redundancy Payments Act 1967 ............................................12.01, 12.03, 14.04, 23.39 s 6 ..........................................................................................................................21.79 s 7 ..........................................................................................................................10.74 (2) ........................................................................................................17.02, 17.05 (a) ...............................................................................................................17.15 (b) ...............................................................................................................17.19 s 14 ........................................................................................................................17.29 s 29(1) ...................................................................................................................17.06 Redundancy Payments Act 1971 .............................................................................17.02 s 10 ........................................................................................................................17.03

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Redmond on Dismissal Law Redundancy Payments Acts 1967–1990 ................................................................. 23.74 Redundancy Payments Acts 1967–2003 ................................................................. 11.65 Redundancy Payments Acts 1967–2014 ................................................................. 17.02 Regional Technical Colleges Act 1992 s 11(1) ..................................................................................................................... 9.43 (a)–(b) .................................................................................................. 3.42, 9.42 Safety, Health and Welfare at Work Act 2005 ................................. 20.04, 20.22, 23.22 s 27(2)(a) .............................................................................................................. 23.22 s 28(1) ................................................................................................................... 23.22 Social Welfare (Consolidation) Act 1981 ............................................................... 16.40 s 111 ....................................................................................................................... 3.39 Social Welfare Consolidation Act 2005 .................................................................... 3.26 Solicitors Amendment Act 2002 s 18 ......................................................................................................................... 9.79 Statute Law Revision (Pre-1922) Act 2005 .............................................................. 1.22 Statute of Frauds Act 1695 s 2 ......................................................................................................................... 10.33 Taxes Consolidation Act 1997 s s 123 ................................................................................................................... 11.67 s 210 .................................................................................................................. 11.67 s Sch 3 .................................................................................................................. 11.67 Terms of Employment (Information) Act 1994 ............................................... 5.05, 5.06 Trade Union Act 1871 ............................................................................................. 21.18 Trade Union Act 1913 ............................................................................................. 21.18 Trade Union Act 1941 ............................................................................................... 8.10 s 6(3) .................................................................................................................... 21.18 Trade Union Acts 1941–1990 ...................................................................... 21.06, 21.18 Trade Union Amendment Act 1876 ........................................................................ 21.18 Trade Union and Labour Relations Act 1994 s para 5(2)(c) ........................................................................................................ 19.05 Trade Union and Labour Relations (Consolidation) Act 1992 ................................ 21.19 Transport Act 1964 s 9 ........................................................................................................................ 18.26 Unemployment Insurance Acts 1920–1921 .............................................................. 4.03 Unfair Dismissals Act 1977 ............................................ 2.06, 8.08, 14.04, 14.35, 22.02 s 1 ..................... 13.02, 19.03, 21.79, 21.86, 22.02–22.04, 22.60–22.65, 23.01, 23.07 (1) ........................................................................................................ 22.41, 23.05 (2) ........................................................................................................ 23.92, 24.09 (b) ................................................................................................................... 22.72 (c) ........................................................................................................ 22.05, 23.10

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Table of Legislation Unfair Dismissals Act 1977 (contd) s 2 ...............................................................................................................1.03, 23.33 (1)(a) ...............................................................................................................23.20 (2) ...................................................................................................................22.03 (b) ..............................................................................23.33–23.35, 23.75–23.90 (c) ....................................................................................................23.82–23.90 (3) .......................................................................................23.101, 23.108–23.112 (a) .............................................................................................................23.100 (b) .............................................................................................................23.100 (4) ...................................................................................................................24.13 (5) ...................................................................................................................23.37 s 2A ......................................................................................................................23.52 3 .........................................................................................................................23.68 s 4 ...............................................................................................................23.08, 23.71 s 5 ..............................................................................12.10, 21.11, 21.72, 21.79, 21.84 (1) ...................................................................................................................21.95 (2) .............................................................................................21.71–21.77, 21.87 (3) ...................................................................................................................21.71 (5) ...................................................................................................................21.97 s 6 ....................................................................................................12.10, 16.52, 24.69 (1) ..............................................................12.8, 17.01, 17.11, 17.25–17.26, 21.12 ............................21.19–21.22, 21.35, 21.73, 21.77, 21.86, 25.49 (2) ..................................................................................12.10, 21.11, 21.37, 21.45 (a) .........................................................................................21.13, 21.19, 21.30 (ba) .............................................................................................................20.10 (f) ....................................................................................................14.12–14.17 (g) ....................................................................................................14.19–14.21 (2A) ................................................................................................................23.21 (3) ............................................................12.10, 17.01–17.05, 21.11, 21.35, 21.41 (a) ...............................................................................................................21.42 (4) .............................................................................................12.09, 17.11, 18.01 (a) ...............................................................................................................15.04 (c) ...............................................................................................................17.01 (d) ...............................................................................................................16.36 (6) .......................................................................12.09, 13.07, 18.01, 21.35, 25.49 (7) .............................................................................................13.14, 17.27, 21.14 s 7 ..............................................................................24.05, 24.49, 24.57, 24.64, 24.68 (1) .............................................................................................24.27, 24.67–24.68 (a) .........................................................................................21.95, 23.31, 24.23 (b) .........................................................................................21.95, 23.31, 24.23 (c) ...................................................................20.10, 24.29–24.36, 24.45, 24.62 (2) ..................................................................................23.74, 24.23, 24.64, 24.77 (a) ...............................................................................................................24.62 (b) ....................................................................................................24.62, 24.78 (d) .........................................................................................24.34, 24.67–24.71 (2A) ................................................................................................................24.50 (3) ........................................................................................................24.32, 24.64

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Redmond on Dismissal Law Unfair Dismissals Act 1977 (contd) s 8 .................................................................................... 23.24, 23.48, 23.110–23.111 (1A) ................................................................................................................ 24.27 (2) ................................................................................................................... 22.75 (6) ................................................................................................................... 25.03 s 9 ......................................................................................................................... 23.24 (1) ................................................................................................................... 14.20 s 13 .................................................................................... 13.116, 18.64, 22.14, 25.54 s 14 ................................................................................................. 21.17, 23.85, 24.34 (1) .......................................................................................................... 5.05, 13.36 (3) .......................................................................................................... 5.05, 24.71 (4) ................................................................................................................... 13.06 s 15 ........................................................................................ 5.35, 10.70, 23.38, 25.12 (3) ...................................................................................................... 23.111, 25.14 s 16 ....................................................................................................................... 24.25 s 17 ............................................................................................................ 23.67, 24.29 s 19 ....................................................................................................................... 24.25 s 20 ....................................................................................................................... 18.64 Unfair Dismissals (Amendment) Act 1993 ....................................... 17.27, 24.08, 24.48 s 2 ........................................................................................................................ 24.09 s 3 ........................................................................................................................ 23.33 (c) ................................................................................................................... 23.37 s 6 ....................................................................................................................... 24.05 (a) ................................................................................................................... 24.30 (b) ................................................................................................................... 24.34 s 7 ......................................................................................................................... 24.27 s 11 ....................................................................................................................... 24.27 s 13 ....................................................................................................................... 23.06 s 14 ...................................................................................... 21.14–21.17, 23.21, 23.59 s 15 ....................................................................................................................... 18.64 Vocational Education (Amendment) Act 1944 s 7 .......................................................................................................................... 7.13 Worker Protection (Regular Part-time Employees) Act 1991 ................................ 23.24 Workmen’s Compensation Acts 1934–1955 .......................................................... 11.69 Workplace Relations Act 2015 .............................. 1.03, 1.44, 8.28, 12.07, 12.13, 18.35 .............................................................................. 22.13, 24.18, 24.21, 25.01, 25.65 s 10(6) ................................................................................................................... 18.35 s 39 ....................................................................................................................... 10.77 s 41 ....................................................................................................................... 18.35 (8) ................................................................................................................... 25.19 s 43 ....................................................................................................................... 25.36 (1) ................................................................................................................... 25.56 s 44 ....................................................................................................................... 25.24 (4) ................................................................................................................... 25.25 (6) ................................................................................................................... 25.30

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Table of Legislation Workplace Relations Act 2015 (contd) s 45 s 46 s 66 s 71

........................................................................................................................25.36 ........................................................................................................................25.24 ........................................................................................................................21.10 ..........................................................................................................................1.03 Statutory Instruments

Civil Service Regulation (Amendment) Act 2005 (Commencement of Certain Provisions) Order 2006 (SI 363/2006) .................................................23.49 Civil Service Regulation (Amendment) Act 2005 (Section 31) (Commencement) Order 2006 (SI 355/2006) .................................................................................23.49 Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) .........................................................................................13.36, 19.14 Employment Permit Regulations 2014 (SI 432/2014) ............................................15.46 Employment Permits Act 2006 (Prescribed Fees and Miscellaneous Procedures) Regulations 2006 (SI 683/2006) ...................................................15.46 Employment Permits (Amendment) (No 2) Regulations 2016 (SI 363/2016) ........15.46 Employment Permits (Amendment) Regulations 2015 (SI 349/2015) ...................15.46 Employment Permits (Amendment) Regulations 2016 (SI 33/2016) .....................15.46 Employment Permits Regulations 2017 (SI 95/2017) ..................................15.46–15.46 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131/2003) ..........................18.26, 18.28, 18.36 .............................................18.56, 18.66, 19.29, 21.66, 22.43, 22.56, 23.38–23.42 s reg 3 ....................................................................................................................18.62 s reg 4 ....................................................................................................................18.28 (2) ....................................................................................................18.29, 18.51 (4)(b) ..........................................................................................................18.29 s reg 5 ....................................................................................................................18.30 (1) ...............................................................................................................18.37 (2) ....................................................................................................18.37, 18.92 (3) ...........................................................................................18.90, 8.91, 23.41 (4A) .................................................................................................18.29, 18.34 s reg 9 ....................................................................................................................18.64 s reg 11 ..................................................................................................................18.35 s reg 12 .......................................................................................................18.35, 18.84 European Communities (Protection of Employment) Regulations 2000 (SI 488/2000) .........................................................................................21.50, 21.64 European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) Regulations 1980 (SI 306/1980) ..............................................................................18.26, 19.29, 23.38 Garda Síochána (Discipline) Regulations 1971 (SI 316/1971) s Sch ........................................................................................................................9.68

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Redmond on Dismissal Law Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (SI 146/2000) ................... 1.43 ...................................................................................................... 7.36, 13.51, 19.23 Labour Affairs and Labour Law (Transfer of Departmental Administration and Ministerial Functions) Order 2017 (SI 361/2017) ..................................... 21.64 Labour Services Act Apprenticeship Rules 1993 (SI 236/1993) ............................ 23.74 Maternity Protection Act 1991 (Extension of Periods of Leave) Order 2006 (SI 51/2006) ..................................................................................................... 14.20 Maternity Protection (Time-off for Ante-natal and Post-natal Care) Regulations 1981 (SI 358/1981) ...................................................................... 23.89 Protection of Employment Act 1977 (Notification of Proposed Collective Redundancies) Regulations 1977 (SI 140/1977) ............................ 21.64 Redundancy (Redundancy Appeals Tribunal) Regulations 1968 (SI 24/1968) s reg 19(3) ............................................................................................................. 24.44 Rules of the Superior Courts 1986 (SI 15/1986) s Ord 19 r 29 .............................................................................................................. 9.31 84 ............................................................................................................. 9.02, 9.09 r 18 ............................................................................................................... 9.04 r 19 ............................................................................................................... 9.03 r 20 ............................................................................................................... 9.06 r 21 ............................................................................................................... 9.06 Rules of the Superior Courts (Judicial Review) 2011 (SI 691/2011) ....................... 9.03 Rules of the Superior Courts (Judicial Review) 2015 (SI 345/2015) ....................... 9.03 Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 (SI 287/1977) ................................................................................................... 24.36 s reg 4 ........................................................................................................ 24.40–24.44 s reg 5 ................................................................................................................... 24.40 s reg 6 ................................................................................................................... 24.40 Workplace Relations Act 2015 (Fees) Regulations 2015 (SI 536/2015) .................. 1.03 Bunreacht na hÉireann Article s 26 ....................................................................................................................... 18.08 s 40 ......................................................................................................................... 1.05 s 40–44 ................................................................................................................... 8.05 s 40.1 ............................................................................................................. 8.08, 8.15 s 40.3 .................................................................................................... 5.08, 8.14–8.16 s 40.3.1° ................................................................... 1.05, 7.16, 7.40, 8.06, 8.37, 13.70 s 40.3.2° .............................................................................. 3.32, 8.07–8.08, 8.20, 8.24 s 40.6.1° .................................................................................................................. 8.08 (iii) ............................................................................ 8.08, 8.11–8.13, 21.22, 24.03 s 44.2 .................................................................................................................... 18.08

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Table of Legislation Bunreacht na hÉireann (contd) Article s 44.2.3° ..................................................................................................................8.08 s 44.2.3º ...................................................................................................................8.09 s 45 ..........................................................................................................................1.04 s 50 ..........................................................................................................................8.10 United Kingdom 2 Geo 1, c 17 ..............................................................................................................1.17 5 Geo 3, c 15 ..............................................................................................................1.23 11 Eliz 5, Sess 1 (1569) .............................................................................................1.17 29 Geo 2, c 8 ..............................................................................................................1.23 Act of 1 Wm & Mary ................................................................................................3.34 Chancery Amendment Act 1858 (21 & 22 Vict c 27) ...............................................8.34 Chancery (Ireland) Act 1867 s s 155 .....................................................................................................................9.31 Clerks of the Peace Removal Act, 1864 ....................................................................3.34 Combination Act 1799 ..............................................................................................1.29 Combination Act 1800 ..............................................................................................1.29 Conspiracy and Protection of Property Act 1875 s 17 ..........................................................................................................................1.17 Employment Protection (Consolidation) Act 1978 s 11 ........................................................................................................................18.82 s 55(2)(c) ...............................................................................................................19.05 s 59(b) ...................................................................................................................21.41 s 62 .............................................................................................................21.72, 21.77 s 64(1)(a) ...............................................................................................................23.47 Employment Rights Act 1996 ........................................................................1.03, 11.20 s 86 ..........................................................................................................................4.21 s 92 ........................................................................................................................13.06 s 95(1)(c) ...............................................................................................................19.05 s 97 ........................................................................................................................11.15 s 105 ......................................................................................................................21.41 s 108(1) .................................................................................................................11.21 s 113 ......................................................................................................................11.17 s 230 .............................................................................................................3.02, 20.06 Employment Rights Act 2002 s 98A(2) ................................................................................................................13.24 Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) ....................................................................................................1.03

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Redmond on Dismissal Law Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 ....................................................................................................... 11.20 Industrial Relations Act 1971 ................................................................................... 1.03 Local Government Act of 1888 (51 & 52 Vict c 41) ................................................ 3.34 Master and Servant Act 1867 (30 & 31 Vict, c 41) ......................................... 1.26–1.27 s 4 ......................................................................................................................... 1.26 s 9 ......................................................................................................................... 1.26 s 14 ......................................................................................................................... 1.27 Poyning’s Law 1494 (10 Hen VII c 22) ........................................................... 1.09–1.11 Servants Act 1715 s 4 ......................................................................................................... 1.10, 1.17–1.24 Servants Wages Act 1542 (XXXIII Hen VIII c 9) .................................................... 1.17 Sons of Labourers and Travailers of the Ground 1447 (XXV Hen VI, c 7) ............. 1.10 Statute 24 c 1 of Edward III (1361 AD) .................................................................... 3.34 Statute Law Revision Act 1856 ................................................................................ 1.17 Statute Law Revision Act 1863 ................................................................................ 1.17 Statute Law Revision (Pre-Union Irish Statutes) Act 1962 ...................................... 1.22 s 3 s 6 s 7 s 19

......................................................................................................................... 1.22 ......................................................................................................................... 1.22 ......................................................................................................................... 1.22 ......................................................................................................................... 1.22

Statute of Apprentices 1609 (7 Ja 1, c 3) .................................................................. 1.17 Statute of Artificers 1563 (5 Eliz cap 4) ................................................................... 1.17 Statute of Elizabeth 1592 .......................................................................................... 1.17 Statute of Labourers 1604 (1 Ja 1, c 6) ..................................................................... 1.17 Statutes of Kilkenny 1366 ......................................................................................... 1.09 Statute of Labourers 1349 (23 Edw III c 1) .............................................................. 1.09 Trade Board Act 1909 ............................................................................................. 21.18 Trade Board Act 1918 ............................................................................................. 21.18 Trade Disputes Act 1906 ................................................................................ 1.29, 21.04 s1 s2 s3 s4 s8

........................................................................................................................... 1.29 .................................................................................................................. 1.29, 8.10 ........................................................................................................................... 1.29 ........................................................................................................................... 1.29 ........................................................................................................................... 1.29

Trade Union and Labour Relations Act 1974 s Sch 1 .................................................................................................................. 21.59 Trade Union and Labour Relations (Consolidation) Act 1992 s 188 ..................................................................................................................... 21.50 s 237 ............................................................................................... 21.73–21.76, 21.88

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Table of Legislation Trade Union Reform and Employment Rights Act 1993 ........................................18.34 Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981/1794) ......................................................................................................18.60 Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 (SI 2012/989) ....................................................1.03 Unlawful Combinations (Ireland) Act 1803 (43 Geo 3, c 86) ...................................1.29 VI Anne, c 13 ............................................................................................................1.17 Wages Act 1986 ......................................................................................................18.79 Wages and Servants Act 1751 (1 Geo 3, c 17) ..........................................................1.23 Wages and Servants Act 1751 (XXV Geo II, c 8) ....................................................1.23 s 2 ...........................................................................................................................1.23 European Legislation Council Directive 75/129/EC ..................................................................................21.64 Council Directive 76/207/EEC ................................................................................14.10 Council Directive 77/187/EEC ...............................................18.26–18.33, 22.56, 23.38 Council Directive 92/85/EEC ..................................................................................14.04 s art 2 .....................................................................................................................14.16 s art 10 ...................................................................................................................14.04 Council Directive 95/46/EC ..................................................................................13.101 Council Directive 97/81/EC ....................................................................................23.24 Council Directive 98/29/EC ....................................................................................23.24 Council Directive 98/50/EC ....................................................................................18.26 Council Directive 98/59/EC ....................................................................................21.64 Council Directive 2001/23/EC ................................................18.26, 18.30, 18.50, 23.42 s art 1(1)(a) ............................................................................................................18.38 s art 2 .....................................................................................................................18.92 s art 4.2 ..................................................................................................................18.90 Council Directive 2001/23/EC ......................................................................................... Council Directive 2006/54/EC ................................................................................14.23 Council Directive 2008/94/EC s art 2(1)b) .............................................................................................................24.83 Council Regulation 1215/2012/EU .......................................................................23.108 Council Regulation 2016/679/EU ..............................................................13.94, 13.100 International Treaties and Conventions Charter of Fundamental Rights s art 16 ...................................................................................................................18.52

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Redmond on Dismissal Law European Convention on Human Rights ......................................................... 8.01, 8.48 s art 3 ......................................................................................................... 8.53, 13.130 s art 4 ...................................................................................................................... 8.53 s art 6 ......................................................................................................... 8.51, 23.106 (1) ................................................................................................................ 7.06 s art 8 ......................................................................................................... 13.98, 16.95 (1) ........................................................................................ 8.52, 13.128, 25.59 s art 10 ................................................................................................................ 13.125 (2) .............................................................................................................. 16.98 European Social Charter s art 6 .................................................................................................................... 21.72 Holidays with Pay Convention (Revised) 1970 s art 11 .................................................................................................................. 12.02 Maternity Protection Convention 1919 s art 4 .................................................................................................................... 12.02 Maternity Protection Convention (Revised) 1952 s art 6 .................................................................................................................... 12.02 Right to Organise and Collective Bargaining Convention 1949 s art 1 .................................................................................................................... 12.02 Single European Act 1986 ........................................................................................ 8.03 Vienna Convention on Diplomatic Relations s art 31 .................................................................................................................. 25.64 Workers’ Representatives Convention 1971 s art 1 .................................................................................................................... 12.02 Workers’ Representatives Recommendation 1971 s Pt III ................................................................................................................... 12.02

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PART A HISTORICAL DEVELOPMENT

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Chapter 1

Historical Development of the Law’s Protection against Wrongful Termination of Employment INTRODUCTION: THE NATURE OF THE PRESENT WORK ‘You may find it in the fragments of Gregorius and Hermogene’s codes, and in all the codes of Justinian’s down to the codes of Louis and Des Eaux – that the sweat of a man’s brows, and the exudations of a man’s brains, are as much a man’s own property, as the breeches upon his backside.’ Laurence Sterne: Tristram Shandy Vol III Ch 34. ‘[E]mployment is not just simply a means of earning a living. Employment gives dignity to what otherwise would be for many a soulless existence and for those of us … fortunate to have an occupation, trade or employment, this may be said to be one of the key defining features of our lives. The protection of the dignity of the individual (and not simply citizens) is, of course, one of the objectives which the Preamble to the Constitution seeks to secure.’1

[1.01] The field of interest of the present work spans the Constitution, common law and statute law. It has taken a long time for law codes anywhere to recognise that an individual’s work is akin to his or her property. Ireland and Britain are among those jurisdictions where a limited degree of recognition is found but, in general, the theory remains undeveloped, its practical implications unexplored.

[1.02] The law on termination of employment in Ireland cannot be analysed in isolation from British law because the relationship between Ireland and Britain for 800 years was a very important element in establishing the nature and characteristics of the Irish legal and social systems. Until the independence of Saorstát Éireann in 1922, legislation passed by the Westminster Parliament in such matters as trade union law, trade disputes, social security and industrial accidents was frequently applied to Ireland as well.2 Apart from legislative influences, the British system of labour relations affected the growth of labour practices in Ireland because of factors such as geographical contiguity, the free movement of labour, and the operation of British unions and companies in Ireland. As the British House of Lords was the final judicial court of appeal before 1922, a common 1

2

Per Hogan J at [110] in NVH v Minister for Justice and Equality [2016] IECA 86: this was a dissenting judgment in the Court of Appeal but the majority judgment was reversed by a unanimous Supreme Court: [2017] IESC 35, 30 May 2017. Before the Act of Union of Great Britain and Ireland, in 1800, the precise application in Ireland of statutes passed at Westminster was not free of controversy. At the same time, the Parliament of Ireland was legislating for that jurisdiction. See n 16 below.

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[1.03]

Redmond on Dismissal Law

jurisprudence was established throughout the islands. Decisions of the United Kingdom Supreme Court (and its predecessor, the House of Lords) are still highly persuasive for the courts in Ireland.

[1.03] Since 1922, there have been significant divergences between Irish and British labour law. These have occurred at common law, under statute and by virtue of the enactment in 1937 of the Constitution of Ireland (Bunreacht na hÉireann) – yet the assumptions and structures of the systems in the two jurisdictions remain similar. In both, essential elements of the tradition continue in spite of the nature of specific legal provisions. For instance, Ireland’s Unfair Dismissals Acts 1977–2015 are similar to Britain’s statutory provisions concerning dismissal first enacted in the Industrial Relations Act 1971 and, following a series of statutory adventures, now found in the Employment Rights Act 1996. But any assumptions that the intentions and aspirations of the legislature in either jurisdiction are fully and accurately reflected in subsequent behaviour and events would be highly misleading. Between the intentions of the Oireachtas and of Westminster respectively, and the phenomena at which they are directed, there mediate many contingencies which impede, refract or distort the former in terms of their impact on the latter. These include the interpretations applied by the courts, tribunals, administrators, managers and the rank and file, the effectiveness of enforcement and the priorities and general vigilance of those affected by the measures concerned. It is instructive to compare the outcome where these contingencies have operated or operate differently in the two systems. The Unfair Dismissals Acts in this jurisdiction are not on all fours with the Employment Rights Act 1996. In accordance with its usual custom, the Oireachtas modelled the 1977 Act on the corresponding British legislation but tailored it to take account of specific features in Irish industrial relations. Recent years have seen further changes which, albeit that they are largely of a procedural nature, have exerted a striking and fundamental impact on substantive protections against unfair dismissal in British law. Two of the most important examples of this include the ill-fated introduction of Employment Tribunal fees3 and the extension (back) to two years of the qualifying period for unfair dismissal in Britain.4 In contrast, no fees have at the time of writing been introduced for instituting claims before the Workplace Relations Commission in Ireland (albeit that the Workplace Relations Act 2015 does contain a power so to do5); and the qualifying period has remained at one year in Irish law.6 In general, where the statutory provisions are noticeably dissimilar between the two jurisdictions, the contrast will be referred to in this book. 3

4

5

6

The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/ 1893) was deemed unlawful pursuant both to English and EU law and quashed by the United Kingdom Supreme Court in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 on the grounds that, inter alia, it prevented access to justice. For insightful analysis of the human rights implications of a tribunal fees system see Prassl and Adams, ‘Vexatious Claims: Challenging the Case for Employment Tribunal Fees’ (2017) 80 MLR 412. The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 (SI 2012/989) effected this change to the Employment Rights Act 1996. Workplace Relations Act 2015, s 71. See also Workplace Relations Act 2015 (Fees) Regulations 2015 (SI 536/2015). Unfair Dismissals Act 1977, s 2.

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[1.05]

[1.04] The most important divergence from British law took place some 80 years ago when the Constitution of Ireland was adopted following a plebiscite in 1937. The Constitution introduces a fundamentally different dimension into Irish law. It is not only a written document, but also a basic code delimiting the area of legislative competence. It provides for judicial review of legislation and lays down a list of human rights which are protected by the courts. The Preamble, which is cited from time to time by judges as a guide when interpreting legislation,7 refers to the promotion of: ‘... the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained …’.

Article 45 lays down Directive Principles of Social Policy.8 They contain an undertaking that the State will direct its policy towards securing, for example: ‘That the citizens (all of whom, men and women equally, have the right to an adequate means of livelihood) may through their occupations find the means of making reasonable provision for their domestic needs.’

Again, the State: ‘… pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan and the aged.’

And: ‘The State shall endeavour to ensure that the strength and health of workers, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter avocations unsuited to their sex, age or strength.’

[1.05] These principles evidence the view that a constitution expresses ‘not only legal norms but basic doctrines of political and social theory’.9 They lie at the very core of 7

8

9

See, for example, The State (Burke) v Lennon and AG [1940] IR 136 at 155; McGee v AG and the Revenue Commissioners [1974] IR 284 at 310, 318–19; The State (Healy) v Donoghue [1976] IR 325, 347; Garvey v Ireland [1981] IR 75; Attorney General v X [1992] 1 IR 1, [1992] ILRM 401; National Asset Loan Management Ltd v McMahon & ors; National Asset Loan Management Ltd v Downes [2014] IEHC 71; NVH v Minister for Justice & Equality [2017] IESC 35. The Directive Principles were borrowed from the Spanish Republican Constitution of 1937. As stated, they are of a vague and generalised nature and cannot be described as identifying the kind of social and economic rights laid down, for example, in the European Social Charter. Re Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129 at 147 per O’Higgins CJ. Any of the principles cited in the text could arise for consideration in regard to employment legislation. It is generally held that they are no more than noble-sounding exhortations. Article 45 declares that the principles are ‘intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any court under any of the provisions of this Constitution.’ But, in the High Court case of Murtagh Properties Ltd v Cleary [1972] IR 330, Kenny J ascribed a limited usefulness to Article 45. From his dicta (335–36) it seems the principles may be looked to for the enumeration of personal rights under Art 40.3.1°. This may only be done where the allegedly unconstitutional activity takes place inter partes, ie where a statute of the Oireachtas is not under review. See, also, Nova Media Services v Minister for Posts and Telegraphs [1984] ILRM 161; Attorney General v Paperlink Ltd [1984] ILRM 373.

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[1.06]

unfair dismissal law. The most important fundamental rights in relation to the employment relationship are set out in Art 40.10 Here, as in general, the Constitution has been neither an unqualified triumph nor merely an obeisance towards conventional constitutional formularies.11 How far the relevant fundamental rights it enshrines have been effective can be discovered only from the experience of the period of 80 years or so that has elapsed since it came into force. A constitutional philosophy in relation to dismissal has slowly unfolded against a background of judicial interpretation which lays stress on the rights of the individual. The relationship between the employer and the individual worker is regarded as far more crucial than the activities of the worker as part of a collectivity. In Chapter 8, the supreme position of the Constitution in the hierarchy of legal values in Ireland appears as a highly significant feature of the law in relation to termination of employment. Throughout the work, it will be demonstrated how much the influence of the Constitution is brought to bear on every aspect of the law. At times this influence is subtle, at others it is dynamic. To understand the slow and often cumbersome evolution of dismissal law, it is necessary to go back in time. In this chapter, two broad areas are examined: A.

B.

the historical development of statute and of common law in Ireland at a time when Ireland and Britain shared the same, or broadly the same, legal system; and the effectiveness of the trade union movement in relation to individual employment rights and the deficiencies of collective bargaining.

These influences reveal something of dismissal as a social phenomenon, although their testimony is far from comprehensive. Historical records are lacking. Often one is grasping at statutory straws. Historical sources of Irish law on termination of employment are minefields for the unwary, but to omit them altogether would effect greater incomprehension.

A.

HISTORICAL EVOLUTION OF STATUTE AND OF COMMON LAW ON TERMINATION OF EMPLOYMENT IN IRELAND

(1) Statute law [1.06] The law on termination of employment is rooted within the contract model but the circumstances which gave rise to this model (involving the so-called progression from status to contract) differed between Ireland and England. Until the nineteenth century, the contract of employment was hidden under the cloak of service as a status. The move from status to contract is just one label to describe the historical changes 10 11

See Ch 8 below. In general, see Hogan & Whyte, JM Kelly: The Irish Constitution (4th edn, Tottel Publishing, 2003); also Heuston, ‘Personal Rights under the Irish Constitution’ (1976) Ir Jur Vol XI 205; Temple Lang, ‘Private Law Aspects of the Irish Constitution’ (1971) Ir Jur Vol VI 237; Crowe, ‘Human Rights, the Irish Constitution and the Courts’ (1971) 47 Notre Dame Lawyer 281; Donaldson, Some Comparative Aspects of Irish Law (Duke University Press, 1957); Messineo, ‘La Nuova Costituzione Irlandese’ 88 Civilità Cattolica 239, 246; Franzen, ‘Irland und Grossbrittanien seit 1919’ in Jahrbuch des offentlichen Rechts (1938) 280–375.

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[1.07]

which took place before the end of that century. The classic statement, of course, is that of Sir Henry Maine.12 The idea underpinning his concept was principally one of a social move from family to individual. Maine equated family to the traditional law of persons and thereby to status. His account emphasises an important feature of pre-capitalist law, namely that master and servant relations were treated by lawyers up to the eighteenth century as a branch of the law of persons, more specifically, the law of domestic relations.13 They were rooted in a society where subordination to legitimate authority was accepted as natural.14

[1.07] The difficulties experienced in England of adapting the pattern of unfree serf labour to a new contractual relationship were not acutely felt in Ireland where political instability and endemic warfare continually hampered the country. In the fourteenth and fifteenth centuries, there was no Irish manufacturing industry of importance. Agriculture was backward by contemporary English standards. The social and intellectual developments that were linked with industrial and mercantile expansion in other parts of Western Europe had little effect on medieval Ireland.15 Likewise during the sixteenth and seventeenth centuries, and in the centuries that followed, many historic events affected the country.16 Alongside the poverty and isolation in Ireland, social and economic developments were taking place in England. These were ultimately of greater importance for Irish law. 12

13 14

15 16

‘The movement of the progressive societies has been uniform in the one respect. Through all its course it has been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. The individual is steadily substituted for the family, as the unit of which civil laws take account ... Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the family. It is contract ... Thus the status of the slave has disappeared – it has been superseded by the contractual relation of the servant to his master’: Sir Henry Maine, Ancient Law: Its Connections with Early History of Society and its Relation to Modern Ideas (Pollock and Murray, eds, John Murray, 1930) pp 99–100. See Kahn-Freund, ‘Blackstone’s Neglected Child’ (1977) 93 LQR 508, 510. This acceptance runs through Dutton, The Law of Masters and Servants in Ireland (Talbot Press, 1723). Further, the developing concept of individual obligation lay beneath the contract model. There is a clear link between the rise of individualism and contract. Beckett, The Making of Modern Ireland 1603–1923 (Faber and Faber, 1963), p 16. The sixteenth and seventeenth centuries saw, eg, the Reformation, the Cromwellian interlude, the Restoration, the Bloodless Revolution, the accession of the Hanoverians. In addition there was a gradual extension of English administration throughout the country, the settlement of English and Scottish planters in Ulster, the rising in 1641 and the Williamite wars. The Penal Laws had the most pernicious effects on Irish society. They fostered the worst vices of ascendancy on the one side and slavery on the other, and they exacerbated divisions which sprang from differences of religious faith. In addition, during the period 1600–1800, the great mass of Irish people were subject to galling restrictions on their economic freedom. For example, a ruinous export duty was imposed on Irish woollen goods: 10 Wm III c 5(1), see Chart, The Economic History of Ireland (Talbot Press, 1920), Ch 62, for an account of the woollen and linen industries between 1600 and 1800. The matter is also treated in Murray, Commercial Relations between England and Ireland (PS King, 1903) passim.

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[1.08]

Redmond on Dismissal Law

[1.08] The legislative developments discussed here concern persons standing in what Blackstone called ‘private economic relations’.17 In earliest times, the contractual basis of the master–servant relation did not form part of the legal definition. For instance, a labourer’s duty to serve, as will be seen, was based on legal compulsion imposed by magistrates or Justices of the Peace under statute. A person employed under the Poor Law was liable to serve a master with whom he never entered into a contract. The duty to work for another was the essence of the relationship: it could arise simply from the condition of ‘having no visible effects’ and being therefore liable to be directed by the Justices to compulsory work, or from the condition of being a son of a labourer or ‘travailer upon the ground’. [1.09] Although the word ‘status’ is much misused in law,18 the early master–servant relation was based on status, not on contract. Very early on, in 1349, the Statute of Labourers19 introduced a system of compulsory labour. The Act was passed to combat the scarcity of labour and the inflationary situation following upon the Black Death. It controlled the increasing number of landless labourers working for a money wage by a system of forced labour. ‘The object of this legislation’, wrote Fitzjames Stephen, ‘was to provide a kind of substitute for the system of villainage and serfdom which was then breaking down.’20 Under the Act any landless person under 60 could be compelled to work for whichever master required his services. This was reinforced by a penalty of imprisonment for any servant departing his service. Whether the Act applied in Ireland at the time is a matter of constitutional controversy.21 Whatever about theoretical 17

18 19

20

21

Commentaries, cited Kahn-Freund, ‘Blackstone’s Neglected Child’ (1977) 93 LQR 508, 511. The chief relations in private life, according to Blackstone, were master and servant, husband and wife, parent and child, and guardian and ward. Kahn-Freund, ‘A Note on Status and Contract in British Labour Law’ (1967) 30 MLR 635. Statute of Labourers 23 Edw III c 1. In that year Parliament, though called, did not meet on account of the Plague. The statute begins: ‘Whereas late against the Malice of Servants, which were idle and not willing to serve after the Pestilence, without taking excessive wages ...’. History of the Criminal Law of England (Routledge Thoemmes, 1877) Vol III, 204, 274; cf also Jones Bros (Hunstanton) Ltd v Stevens [1955] 1 QB 275, judgment of Lord Goddard. For an authoritative summary of the material relating to the medieval Irish parliament see Richardson & Sayles, The Irish Parliament in the Middle Ages (University of Pennsylvania Press, 1952); see also Hand, English Law in Ireland 1290–1324 (Cambridge, 1967). A useful historical picture of the relationship between Westminster and the Parliament of Ireland is found in Kiernan, History of the Financial Administration of Ireland to 1817 (King & Son, 1967). Ball’s Irish Legislative Systems (Longmans & Co, London, Hodges, Figgis & Co., Dublin, 1888,) is enlightening, as is Newark’s ‘Notes on Irish Legal History’ (1947) 7 NILQ 121. The most concise treatment of this highly controversial subject is in Donaldson, Some Comparative Aspects of Irish Law (Duke University Press, 1957). Poyning’s Law 1494 (10 Hen VII c 22) was a general confirmation of English Acts by the Irish Parliament (see Bradshaw, The Irish Constitutional Revolution of the Sixteenth Century (Cambridge University Press, 1979)). The Declaratory Act in 1720 (the ‘Sixth of George the First’), inter alia, asserted the legislative supremacy of the British Parliament over Ireland. The power of Westminster to legislate for Ireland was a highly contentious issue within Ireland and was frequently denied. In practice, unless the Parliament of Ireland re-enacted Westminster legislation, the latter did not apply in Ireland. (contd.../)

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[1.11]

considerations, however, and the later impact of Poyning’s Law,22 if an English Act were then to be applied in Ireland, the steady practice was that it had to be enacted by the Parliament of Ireland.23 The extent of application of Acts passed by the Parliament of Ireland was in turn limited to the King’s subjects living within the jurisdiction of the Crown.24 (This restriction lasted until 1541 when, under Henry VIII, Ireland passed from being a Lordship to a Kingdom.)25

[1.10] The Parliament of Ireland, which began to be summoned regularly from the middle of the thirteenth century,26 frequently enacted legislation for that jurisdiction. In 1447, compulsory labour was effected by an Irish Act entitled the ‘Sons of Labourers and Travailers of the Ground’.27 It laid down that they: ‘shall be labourers and travailers upon the ground as they were in old times and in all other works and labours lawful and honest.’

The statute was enacted as the ‘Sons’ were allegedly becoming: ‘… evil-doers, wasters, idle men, and destructioners of the king our sovereign lord’s liegepeople, to the great decay of the ... commons, and impoverishment of the State.’

[1.11] In the absence of records, it is not possible to gauge either the practical necessity28 or the effectiveness of master and servant legislation in Ireland. Nonetheless some degree of practical need may be inferred from the fact that a textbook on The Law of Masters and Servants in Ireland was published in Dublin in 172329 (surely the first on 21

22 23

24 25

26 27 28

29

(\...contd) Whatever about the theoretical extension of English Acts, many limitations existed on their effectiveness. First, the area of Anglo-Norman influence waxed and waned considerably until the beginning of the seventeenth century. As a result there was not always machinery to enforce the legislation. Secondly, the native Irish living in the jurisdiction of the royal courts did not always have access to these courts (see Gwynn, The History of Ireland (MacMillan, 1924), 116). See n 21 above. Note that Dutton, The Law of Masters and Servants in Ireland (1723), refers to the Statute of Labourers as being of force in Ireland by Poyning’s Law (at 1). He also notes (at 3) that no action had been brought ‘in this age under the Statute’. Statutes of Kilkenny 1366. Confirmed by Parliament in 1612–13 when an Act was passed retrospectively declaring that all laws were applicable to all people. See Donaldson, Some Comparative Aspects of Irish Law (Duke University Press, 1957), 39. XXV Hen VI, c 7. See Chart, The Economic History of Ireland (Talbot Press, 1920), 44, quoting from Sir W Petty’s Economic Writings. The entire population in the middle of the seventeenth century was estimated at 1,100,000. Of these Petty reckoned that 780,000 could be considered old enough to be capable of work. The tillage of 500,000 acres of corn employed c 100,000 workers; the working of wool and making up of cloth another 75,000; while 12,000 were engaged in the tending of cattle and sheep. See, for useful background information, three works by O’Brien, Economic History of Ireland from the Union to the Famine (Longman, Green & Co, 1921); The Economic History of Ireland in the Eighteenth Century (Maunsel & Co, 1918) and The Economic History of Ireland in the Seventeenth Century (Maunsel & Co, 1919). See also Murray, Commercial Relations between England and Ireland (Murray, PS King, 1903); Lecky, History of Ireland in the Eighteenth Century (Longman, Green & Co, 1913). Dutton, The Law of Masters and Servants in Ireland (1723) above.

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[1.12]

Redmond on Dismissal Law

the topic in the English-speaking common law world). The author, Matthew Dutton, affirms in the Preface that: ‘... no English books can be of much service to us here, without reading and making use of them with a great deal of caution and wariness; for ... as to Servants, Artificers and Labourers, the old statutes made in England (and of force here by Poyning’s Law30) concerning them, many things therein are now grown obsolete.’31

He continues: ‘And as for English books, of the Office of Justices of the Peace, they treat of diverse Statutes not of force in this Kingdom, and especially that branch of their Office, that relates to Masters, Artificers, Apprentices, Servants and Labourers is taken up (in those Books) with the Statute of 5 Eliz cap 4 and some few subsequent statutes, and the judgments and resolutions of the Judges grounded upon them ... all other statutes before that time made (though many of them are still in force here by Poyning’s Law) are there repeated by that Statute, but it don’t extend to Ireland.’32

So, ‘modern’ books written in England could not be of sufficient authority for Justices of the Peace in Ireland. Where, however, no express direction or authority was given by any law in force in Ireland: ‘it seems (according to Sir Richard Bolton33) that the English statutes may serve for some direction to them ...’.34

[1.12] Dutton defines the term ‘servant’ in the preface.35 He was such person: ‘as, by agreement and retainer, oweth duty and service, to another, who therefore is called his Master.’

Among servants, some were ordinary, menial and familiar, that is, they were constantly in the house or family and attending on their master’s business; and: ‘these are either for a less time, as, such as are hired or retained by the year, half or quarter of a year, or such as are for a longer time, and retained by Indenture and Covenant in writing, as Apprentices, which are generally for seven, and sometimes for eight or more years, and others are extraordinary, and upon occasion only, some of which are sometimes dwelling with their Masters and others are not, and are hired by the day, week or month, such as Artificers and Labourers.’

[1.13] Dutton’s definition of ‘servant’ may be contrasted with that of Sir William Blackstone in the First Book of his Commentaries.36 The Commentaries were published over four decades later, in 1765 (and a comparison between the first edition and the 30

31 32 33 34 35 36

10 Hen 7, c 22 (as it is cited in the printed versions of the Irish statutes, though it was originally c 39). See n 21 above. At vi. At viii. Bolton, Just Lib 2, 13. Dutton, The Law of Masters and Servants in Ireland (Talbot Press, 1723) at ix. At i. Bk 1, 1st ed (18th edn), 485.

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[1.15]

eighteenth, published in 1821, shows that the text is substantially the same). For Blackstone the master-servant relation is: ‘founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him.’

[1.14] The duty to serve is the essence of the employment relationship. Blackstone’s myopic view of the contractual element in the service relation was identified by the late Professor Kahn-Freund as a major stultifying factor in the development of a contractual basis in the English law of employment relations.37 Dutton, on the contrary, was aware of a contractual element as the reference to ‘agreement’ in his definition illustrates. This is noteworthy notwithstanding that in his subsequent treatment of the master–servant relation, he regards the agreement or contract as an accidentale, not an essentiale, of the relation. Dutton makes it clear that the master and servant had a work–wages relationship; once more, he refers to an agreement inter partes: ‘the general rule of Law is that according as the retainer and agreement is, so the Servant, Artificer, and Labourer must do his work, and so the Master must pay his wages; and if either of them fail, they may have reciprocal remedy against each other ...’.38

In Ireland, therefore, the contractual element was accorded a degree of recognition from the early eighteenth century onwards. This recognition may have resided in theory alone but it is none the less remarkable. The contractual element is very important in individual employment law.

[1.15] Dutton’s analysis of master and servant law in early eighteenth century Ireland is not, unfortunately, comprehensive. One does not know what sort of people were ‘servants’ at the time. His account relates to a certain segment of society, a fact borne out even by the most elementary insight into economic and social history. We do not hear about the skilled craftsman who, having served his apprenticeship as a mason or a carpenter or a tailor, then entered employment in his trade. We hear nothing about those employed in shipping, distilling, tanning, or the linen or woollen industries.39 These industries were conducted on the basis of employed labour. It is true that in Ireland their development in Dutton’s day was subject to commercial restrictions imposed by Westminster. It is true, too, that an industrial revolution (as such) never took place in 37 38 39

Kahn-Freund, ‘Blackstone’s Neglected Child’ (1977) 93 LQR 508, passim. Dutton, The Law of Masters and Servants in Ireland (Talbot Press, 1723), 1. See, eg, Chart, The Economic History of Ireland (Talbot Press, 1920), Ch IV, 62 (also O’Brien, Economic History of Ireland from the Union to the Famine (Longman, Green & Co, 1921); The Economic History of Ireland in the Eighteenth Century (Maunsel & Co, 1918) and The Economic History of Ireland in the Seventeenth Century (Maunsel & Co, 1919). See also Murray, Commercial Relations between England and Ireland (Murray, PS King, 1903); Lecky, History of Ireland in the Eighteenth Century (Longman, Green & Co, 1913)). An interesting picture of the state of Ireland’s external commerce is given in Petty’s ‘Treatise of Ireland’ (Economic Writings, 592) where Irish exports for 1685 are given in detail. The most prominent items are beet, butter, corn, lamb and rabbit skins, hides (salted and tanned), wool (exported to England only), frieze, woollen cloth, linen cloth, linen yarn, beer and whiskey.

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[1.16]

Redmond on Dismissal Law

Ireland (and it had not yet begun in England) but by the early eighteenth century, an important minority of Irish men and women were employed in industry. There were also persons, such as agents who were engaged in the world of commerce; there were stewards, bailiffs and receivers, but Dutton expressly excuses the striking out of these particular categories from his textbook because (oh happy and familiar fault!): ‘what concerns [the above-named servants] hath swell’d the Book bigger than I at first intended it.’

[1.16] Dutton claimed that the categories of ‘other servants’ were adequately dealt with in the common law of England (a disputable fact). The chief value of Dutton’s work lies in his remarks throughout the text, asides which are not directly related to master and servant legislation. They serve as an important, if limited, barometer concerning the problems and status of servants in early eighteenth century Ireland.40

[1.17] Dutton provides a useful catalogue as to how the relation of master and servant is established and terminated and of the sources of the obligations to which it gives rise. His caution in relation to the Statute of Artificers41 is particularly interesting as that Act is commonly believed to have applied in Ireland. (The Elizabethan Statute of 1562 was an elaboration of the two Statutes of Labourers passed by Edward III in 1349 and 1350.42) In fact, part of the subject matter of that Act was dealt with by the Parliament of Ireland 21 years beforehand when the Act for Servants Wages 154243 enabled Justices of the Peace to proclaim the wages of artificers and labourers (who were paid by the day) and of servants at husbandry (who were paid by the year).44 Although not in the same form, the remainder of the Statute of Elizabeth was embodied in an Act of the Parliament of Ireland in 1107,45 during the reign of Queen Anne. That Act dealt with matters such as the testimonial required from a master before a servant could be discharged or put away.46 No master or mistress could hire a servant without a discharge 40 41 42

43 44

45

46

See, in particular, Chs VII and VIII. 5 Eliz cap 4, see para [1.11] above. It must be read in conjunction with subsequent legislation, especially (but not only) the Jacobean Statute of Labourers 1604, 1 Ja 1, c 6, and the Statute of Apprentices 1609, 7 Ja 1, c 3. The statute of 1562 was repealed by the Conspiracy and Protection of Property Act 1875, s 17, the Jacobean statutes by the Statute Law Revision Acts 1856 and 1863. XXXIII Hen VIII c 9; revived and continued by 11 Eliz 5, Sess 1 (1569). ‘But such rating and limiting of wages of Servants, Artificers and Labourers is not much minded of late, either in England or Ireland, though there are also Acts of Parliament in England for that purpose (eg 5 Eliz c 4, 1 Jac 1 c 6). I have seen some such rates made heretofore in England, but I have not met with any made in this kingdom, therefore can’t satisfie the curiosity of my Reader by setting down any such rates at any time made here’ (Dutton, The Law of Masters and Servants in Ireland (Talbot Press, 1723), 182). Sir Richard Bolton (Bolt, Just Lib 2, 135) very much complained of the neglect of justices in rating wages in his time. VI Anne, c 13; see The Journals of the House of Commons of the Kingdom of Ireland (A 1707, 510, 512). Paragraph V.

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[1.20]

from his previous service.47 The Act was re-enacted in similar form in the Servants Act 1715,48 a statute which resembles, but is by no means identical to, 5 Eliz cap 4.

[1.18] The Servants Act shows that the law of master and servant was still in theory, if to a declining extent in practice, the law of the status of those liable to be directed to work at wages fixed without their concurrence and liable to be punished for not accepting work on demand and for not doing it in accordance with the direction. The Irish legislation was hard and oppressive and imposed obligations on the servant alone. The corresponding English Act in some respects protected the servant. For example, that Act provided against termination of the relationship before the end of the agreed term except ‘for some reasonable cause or matter’ and with the consent of a Justice of the Peace or Mayor and through a provision for one quarter’s notice (ss 5 and 6). Moreover, the English Act imposed obligations on masters as well as on servants. Under the Irish Act, if a servant departed his service without consent within the time for which he was obliged to serve, the master could complain upon oath before a Justice of the Peace or Chief Magistrate in the City or Town where the master lived and the civil authority was empowered to issue a warrant for bringing the servant before him. Following examination and due proof upon oath of the offence, the Justice or Chief Magistrate could put the servant in the stocks for a time not exceeding six hours or send him to the House of Correction of the County to be kept at hard labour for a period not longer than 10 days. Afterwards, if the master desired the servant to return to his service, this could be ordered by the Justice or Chief Magistrate. If the servant refused to return to his master, he could again be committed to hard labour and corporally punished. Alternatively the master could discharge the servant.49

[1.19] Under the same Act, no servant could hire or offer himself to be hired into any service while actually in service, and before the time for which he had contracted or hired himself had expired, without licence from his master ‘unless such servant [did] first give one month’s notice’ to his master. If the servant contravened this provision he could be committed to the House of Correction for any time not exceeding 10 days or put in the stocks for no longer than six hours. A master had three months within which to complain and all determinations by the Justice or Chief Magistrate were conclusive between the parties. Because there are no appellate records, the extent of invocation of the Act cannot be known. [1.20] Under the Servants Act, idle and disorderly servants could not only be punished but masters could also part with them. If servants were drunkards, idle or otherwise 47

48

49

Paragraph IX. The form was: ‘MEMORANDUM, That AB the Bearer hereof, was retained by me, CD, of etc as a menial servant for the space of one year ending the ____ day of this instant _____ during which time he behaved himself very expertly, honestly and faithfully [or such character as the Master thought fit] and I do hereby discharge the said AB from my said service. Witness my hand this day of Anno Dom.’ (Dutton, 27–28). 2 Geo 1, c 17; note that the Statute of Labourers was not repealed by the Servants Act and so both Acts laid down punishments concerning the departure of servants (see Dutton, The Law of Masters and Servants in Ireland (1723), 51). See The Journals of the House of Commons of the Kingdom of Ireland (A, 1715, 79). See Dutton, The Law of Masters and Servants in Ireland (Talbot Press, 1723), 78.

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[1.21]

Redmond on Dismissal Law

disorderly50 in their services a Justice or Chief Magistrate could put them in the stocks or send them to a House of Correction. If the master desired the servant to return to his service after the punishment, the Justice was empowered to order him to do so.

[1.21] Termination of the master–servant relation depended on the servant’s being duly discharged. If he was, this was a good bar of any action taken by the master for departing his service.51 The master could discharge his servant by word. If put away by his master, the servant was entitled to wages for the time served. If, on the other hand, the servant agreed to being put away, he had no action to recover any part of his wages (but he could seek the help of a Justice of the Peace if his wages were within the 1715 Act). If a servant left of his own accord before his time had expired, he lost all his wages.52 Where the master discharged his servant, saying he should serve him no longer, the servant could not serve against the master’s will (compare the common law’s traditional refusal to grant specific performance of contracts of service). At the same time the view was expressed by one writer,53 and endorsed by Dutton, that unilateral termination of the relationship would be invalid: the master could not discharge his servant within the term except where the servant agreed thereto. Conversely the servant could not depart from his master without the master’s licence or agreement54 (an interesting foreshadow of the contractual principle of mutuality).

[1.22] Section IV of the Servants Act 1715 dealt with the master’s obligation to give a certificate of discharge. If a master refused to discharge his servant, a Justice of the Peace or Chief Magistrate could look into the cause. If, after five days, he received no answer, or if the reply was not sufficient, he could issue a certificate of discharge without fee. There was no recognition of anything akin to a servant’s right to work. Although a master’s refusal to discharge a servant prevented the latter from obtaining other employment, the common law allowed no action for damages by the servant against the master for refusing to give a certificate of character.55 The Servants Act, 50

51 52

53 54

55

‘Those words are very extensive, wherefore servants can’t now be guilty of any offences, but they may be exemplarily punished by this Statute, in case the Justice don’t think the complaint against them to be frivolous and vexatious’ (Dutton, The Law of Masters and Servants in Ireland (Talbot Press, 1723), 129). Dutton, The Law of Masters and Servants in Ireland (Talbot Press, 1723), 73; Bro Lab, 22. Dutton, The Law of Masters and Servants in Ireland (Talbot Press, 1723), 73, citing Dalt Just, 129, and Bro Lab, 30, 38, 40, 48. Bro Lab, 27. If a servant retained for a year happened within the time of service to fall sick, or to be hurt or lamed, or otherwise became non potens in corpore by act of God, or in doing his master’s business, it seems the master could not put the servant away, nor abate any part of his wages for such time: Dalt Just, 129; cited Dutton, n 14 above, 80. See Lint v Johnston (1893) 28 ILTR 16. L had been compelled to issue a summons to recover her wages after she left her employment but her employer refused to give up her certificate or to give her a discharge so as to enable her to get other employment. As she had been prevented from obtaining other employment she claimed £5 compensation for breach of the contract. The justices awarded £2.00 compensation and 50p costs but, on appeal, the Recorder held no action of the kind could be maintained at common law. The only remedy available to a servant was that provided by the statute, para 4 (see too, Handley v Moffat 7 ILTR 9; Carroll v Bird 3 Esp 201).

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[1.26]

though obsolete, remained on the statute book until its repeal by the Statute Law Revision (Pre-1922) Act 2005. Curiously, very minor deletions had been effected by the Statute Law Revision Act 1962.56

[1.23] The punishment of putting a servant in the stocks as a form of discipline disappeared in a later Wages and Servants Act passed by the Parliament of Ireland in 1751.57 Section 2 of that Act provided that Justices, upon complaint on oath by a master or employer against a servant or labourer, for ‘misdemeanour, miscarriage or illbehaviour in such his or her service or employment’ could examine and punish a servant by House of Correction for one month, by abating wages, or by discharging. Likewise, Justices could hear complaints of ill-treatment by servants and, on satisfactory proof of same, discharge the servant from service. [1.24] Cases on these Acts were extremely rare. In Handley v Moffat,58 which concerned breach of the statutory duty imposed on masters to give a discharge under the Servants Act 1715, s 4, Monaghan CJ observed that: ‘... from the time of the passing of the Act to the present day, over 150 years, no ... action appears to have been brought [under s 4].’59

[1.25] In time, the system of compulsory labour became intertwined with the Poor Law under which parishes were responsible for providing the able-bodied industrious pauper with either employment or relief. In 1838, a public system of poor relief was established in Ireland.60 It was apparently not easy to improvise useful works for the able-bodied without, among other things, a careful organisation of labour. The Government fell back on the workhouse system and from 1838 onwards employment for the able-bodied was found only within the walls of the workhouse. Gradually it extended beyond these as well.

[1.26] In 1800, following the Act of Union of Great Britain and Ireland, a series of statutes was passed at Westminster dealing with master and servant law. The last Master and Servant Act (so styled) was passed in 1867.61 Its major purpose was to inject a measure of equality into the law by affording the same statutory remedies to both master and servant.62 Redress in Ireland was limited to those persons within the jurisdiction of the Metropolitan Police District of Dublin. Section 4 provided that where ‘the employer or employed’ should neglect or refuse to fulfil any contract of service, or the employed 56

57

58 59 60 61 62

The Statute Law Revision (Pre-Union Irish Statutes) Act 1962 (No 29), schedule. Very minor deletions were made from ss 3, 6 and 7, and s 19 was repealed in toto. Although, eg, the Jacobean statutes were repealed by Statute Law Revision Acts (n 43 above) the purposes of the latter Acts seem to be viewed differently in the two jurisdictions. XXV Geo II, c 8. (The Act also concerned recovery of wages.) It was in force for two years and continued in several amendments by 29 Geo 2, c 8 and 1 Geo 3, c 17; it was made perpetual by 5 Geo 3, c 15, para 32 (1765). Under s 2, servants could complain against their masters for ill-treatment, etc. Handley v Moffat (1873) IR 7 CL 104. Handley v Moffat (1873) IR 7 CL 104 at 108. Chart, The Economic History of Ireland (Talbot Press, 1920), 101. 30 & 31 Vict, c CXLI. See Anon, ‘Master and Servant’ (1866–1867) SJ 11, 327.

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[1.27]

Redmond on Dismissal Law

should neglect or refuse to enter or commence his service according to the contract, or absent himself from service, the aggrieved party could complain before one of the Divisional Magistrates. The latter was empowered to award compensation for breach or non-performance of the contract of service. He could also direct the fulfilment of the contract of service, or annul the contract and discharge the parties from its obligations. Alternatively he could impose a fine on the offending party (s 9). The same procedure was available in the event of any dispute as to the rights and liabilities of either of the parties, or where there were allegations of misusage, misdemeanour, misconduct, illtreatment or injury to the person or property of either of the parties under any contract of service.

[1.27] The 1867 Act gave separate treatment to aggravated misconduct, misdemeanour or ill-treatment. Where the alleged misconduct was not committed in the bona fide exercise of a legal right, either existing or bona fide or reasonably supposed to exist and where pecuniary compensation or any other remedy under the Act was not appropriate, a convicted party could be committed at the Magistrate’s discretion to the Common Gaol or House of Correction for a period not greater than three months with or without hard labour (s 14). Where proceedings had not been instituted under the Act, parties to the contract of employment could enforce their rights by action or by suit in the ordinary courts of law or equity. In England, in contradistinction to Ireland, there are many reported cases under the Master and Servant Acts.63 Part of the explanation for the absence of Irish cases lies in the limited application of these Acts. A more important explanation may lie in the political history of Ireland during the nineteenth century. It consisted largely of a recurrent struggle by the majority of the Irish people to regain their civil and religious liberties. In 1846–1847, the Great Famine imposed a new pattern of society and of politics. The economic position of the country deteriorated drastically. A huge and growing proportion of an increasing population lived on the land or, more specifically, on the potato crops which they raised from their plots of ground. Agriculture in the true sense was almost unknown. Industries, with the exception of the linen trade, were in decline.64 It was not until the beginning of the twentieth century that Ireland began to advance in a long cycle of growing world prosperity and expanding trade.65

[1.28] The statistics reproduced below say something about the dominant trends in employment during the latter half of the nineteenth century in Ireland. They show a 63 64

65

See Freedland, The Contract of Employment (Clarendon Press, Oxford, 1976), 137–138. See the works cited in n 28 above, and Meenan, The Irish Economy Since 1922 (Liverpool University Press, 1970), 10; Clancy, Ireland: As she Is, As she has been, and As she ought to be (T Kelly, 1877), Ch VII; Collison Black, Economic Thought and the Irish Question 1817– 1870 (Cambridge University Press, 1960); Murphy, Ireland, Industrial, Political and Social (Longman, 1870). All agricultural products, except the (by then) neglected wheat, were selling well; cattle prices in particular were buoyant. Traditional Irish industries profited also from worldwide prosperity. The linen trade continued to expand its markets. Shipyards and other industries shared in the advance. Brewing and distilling prospered: whiskey, mineral waters and biscuits enjoyed a seemingly secure prestige. The movement in support of Irish industries, which began about the beginning of the century, helped other forms of production, notably woollens and hosiery which had been depressed: Meenan, The Irish Economy Since 1922 (Liverpool University Press, 1970), 10.

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[1.29]

decline in agriculture; a sharp decline in manufacture; a slow but steady increase in weight of the building and transport industries and of the public and professional service; and a notable increase in domestic service (truly suggesting that servants are more numerous where poverty makes service cheap66). Simple gross statistics67 suggest little about individuals’ experiences but they do prescribe the economic limits within which these experiences occur. Employment of the People of Ireland 1851–81 as % of occupied population 1851

1861

1871

1881

Agriculture

48.4%

49.9%

40.7%

41.1%

Fishing

0.4%

0.3%

0.4%

0.5%

Mining

0.4%

0.4%

0.3%

0.4%

Building

2.0%

2.4%

2.2%

2.4%

Manufacture

22.8%

20.7%

19.5%

16.0%

Transport

1.4%

1.8%

2.1%

2.2%

‘Dealing’ (ie shops, etc)

3.6%

4.1%

4.6%

4.8%

Public and professional service

2.2%

3.7%

4.3%

5.0%

Domestic service

10.4%

13.3%

15.2%

18.0%

[1.29] Nineteenth century England witnessed economic changes which effected a revolution in legal forms and institutions. Industrialisation, the capitalist mode of production and the rise of wage labour transformed the economic structure and society of that country. Nothing underwent as revolutionary a change there as the working population. With this development may be linked the atrophy of the contract of employment in the statute law of nineteenth century England (and, it may be added, Ireland).68 The bulk of labour law, and especially the bulk of legislation for the protection of workers, developed until well into the twentieth century outside the framework of the contract of employment. Only comparatively recently69 did legislation begin to confer on workers contractual rights which could not be abrogated to their detriment. The wage-fixing provisions of earlier statutes passed into a limbo before the end of the Napoleonic wars and with it an important basis of the old doctrine of master and servant. Before the middle of the nineteenth century, employment in Ireland, no less than in England, in industry and in trade, in agriculture and in domestic service, rested on a contractual basis. The repeal of the Combination Acts70 confirmed this. The 66

67 68 69 70

As the astonished Charles Booth remarked, cited Best, Mid-Victorian Britain 1851–1870 (Fontana,1979), 98. Source: Best, Mid-Victorian Britain, 1851–1870 (Fontana, 1979), p 99. Kahn-Freund, ‘Blackstone’s Neglected Child’ (1977) 93 LQR 508, 524. See para [1.44] below. In theory the English Combination Acts of 1799 and 1800 applied to Ireland as well, but in 1803, Westminster passed a separate Act, the Unlawful Combinations (Ireland) Act (43 Geo 3, c 86) which declared in its preamble that previous anti-combination laws in Ireland had ‘been found to be inadequate to the suppression thereof’ and put into effect provisions which would outlaw all such combinations. The 1803 Act was repealed by the Combination Laws Repeal Act 1924 (5 Geo IV, c 95).

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[1.30]

Redmond on Dismissal Law

freedom of workmen to combine in order to improve their wages, hours and other conditions of employment implicitly presupposed that these conditions were based on contract and not on status. It was not until 1875 that a manual worker and his employer were made equal contracting parties in the eyes of the law: the Conspiracy and Protection of Property Act 1875 abolished the rule whereby it was a criminal offence for the worker, but not for the employer, to break the contract. In 1906 the Trade Disputes Act was passed which excluded the new tort of ‘simple’ civil conspiracy71 in respect of acts done ‘in contemplation or furtherance of a trade dispute’ (s 1), permitted peaceful picketing in trade disputes (s 2), excluded the torts of inducing breach of employment contracts or interference with business in trade disputes (s 3) and gave complete immunity in actions in tort to trade unions (s 4). The Industrial Relations Act 1990 repealed and replaced the Trade Disputes Act, substantially re-enacting its provisions.72 To the extent that it is not inconsistent with the Constitution,73 it restrains the power of organised labour in trade disputes in Ireland. It defines ‘trade dispute’ (s 8) and the definition in the predecessor to s 8 (the Trade Disputes Act 1906, s 4) was held to cover a dispute in relation to termination of employment.74

[1.30] The remedies which existed at common law are now considered. As will be seen, they were slow in moving into focus.

(2) The relation of master and servant at common law [1.31] Developments taking place at common law in England, in turn closely linked to changing economic circumstances, had a marked impact on the master–servant relation in Ireland.75 When eventually contract doctrine began to be applied to the employment relation, it was never applied in its pure form. That would have given both parties full discretion to define the scope of authority.76 It would have borne a damaging double edge. As Fox put it: ‘[It] would have suggested implications alarming to property owners ... The damaging implications of pure contract doctrine for the employer would have been that it could not allow him to be the sole judge of whether his rules were arbitrary or exceeded the scope of his authority.’77 71 72

73 74 75

76 77

See Redmond, ‘The Tort of Conspiracy in Irish Labour Law’ (1973) 8 Ir Jur 252. On the 1906 Act in general, see Abrahamson, ‘Trade Disputes Act – Strict Interpretation in Ireland’ (1961) 24 MLR 596. Educational Co Ltd v Fitzpatrick [1961] IR 345. See Ch 21, paras [21.05]–[21.11]. Occasionally a discrepancy is to be found between English judgments and the practical political views expressed in Ireland at the time: eg, the case of the Merchants of Waterford (YB 2 Ric 3, f 12; 1 Hen 7 f 2) in which English judges were first of opinion that Ireland was not bound by an English statute but later held that English statutes bound persons living in Ireland. Against this may be set an Irish parliamentary view, for in 1460 the Irish parliament asserted that, although Ireland was subject to the same ‘obedience’ as England, nevertheless it was bound only by statutes made by Irish parliaments or great councils: Donaldson, Some Comparative Aspects of Irish Law (Duke University Press, 1957), 41. Selznick, Law, Society and Industrial Justice, (Russell Sage Foundation, 1969), 122–137. Fox, Beyond Contract, Work Power and Trust Relations (Faber & Faber, 1974), 183. Further, see, Atiyah, The Rise and Fall of Freedom of Contract (OUP, 1979), 523.

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[1.33]

Pure contract theory would have given the employer the power to make rules by express or implied agreement or by custom. It also carried with it the less attractive notion of a right of appeal to an external adjudicator on whether or not those rules or alleged breaches thereof were consistent with the contractual power. Consequently: ‘these needs were met by infusing the employment contract with the traditional law of master and servant ... in the very heyday of contract the evolving modern law of employment was drawing heavily on the old master servant law by incorporating the traditional subordination of the workman.’78

Thus, the contract of employment acquired the dual feature of equality and domination. In terms of doctrinal development at common law this can be traced through the implied terms of fidelity, the employee’s duty to obey orders, the employer’s right to control the conditions of work, and the employer’s power to discipline. The alliance of master and servant law with the contract of employment meant the incorporation of implied terms, reserving full authority and control to the employer. At the same time, his authority was stripped of any personal duty, commitment or responsibility.

[1.32] The common law on wrongful dismissal cannot be appreciated without an awareness of this feature of the contract of employment. In addition, the structure of the contract needs to be properly understood. Moreover, although it has been argued that the contract of employment is not a contract but a continuing implied renewal of contracts at every minute and hour,79 the converse and better approach, which is borne out by the case law, treats the contract of employment as a single contract. In allowing the employee an action for wrongful dismissal, the common law recognised an employee’s interest in the continuance of his employment and gave a particular legal expression to that interest.80 It was well into the nineteenth century, as will be seen, before English courts recognised the implications of this approach.

[1.33] Irish case law in the nineteenth century illustrates many of the rules which flow from the master–servant contract model. The master had a general authority to discipline, command and control the servant in the operation of the enterprise and in the servant’s private life. This was especially true of apprentices and of indentured and living-in servants. In Breslin & M’Keever v Gilchrist & Co81 Overend J declared that: 78 79 80

81

Fox, Beyond Contract, Work Power and Trust Relations (Faber & Faber, 1974), 188. Commons, Legal Foundations of Capitalism (University of Wisconsin Press, 1961) 285. Freedland, The Contract of Employment (Clarendon Press, Oxford, 1976), 20–21, The Personal Employment Contract (OUP, 2003), 88. If the contract were regarded as a mere work-wages bargain, a question would arise as to whether the contract is terminable at will or whether it is terminable, expressly or implicitly, by notice. See in this respect McGuigan v The Guardians of the Poor of the Belfast Union (1885) 18 LR Ir 89; Grant v Wm Grant & Sons (1916) 50 ILTR 189; but see The Queen (The Commissioners of the Town of Boyle and T Wynne) v M Cunningham (1885) 16 LR Ir 206. Breslin & M’Keever v Gilchrist & Co (1903) 37 ILTR 99; 99 (Co Ct).

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[1.34]

Redmond on Dismissal Law

‘... if an apprentice misbehaves the master has the power of correcting him by personal chastisement, provided it be moderate, and the whole control as regards his morals is also with the master.’82

Moreover, at common law, the master and servant relation was not terminable during its currency. This was exemplified in various ways – many of the rules in this respect derived from statute rather than common law. For instance: (a) (b) (c) (d)

there was a presumption of yearly hiring; apprentices and indentured servants were taken on for a term of years; there was no requirement of notice: the only notice which could be given to terminate was one which expired on the final day of the agreement; and servants needed testimonials from their previous master declaring they had been discharged from service.83

[1.34] The policy behind yearly hirings was to avoid seasonal unemployment. This was very much in the interests of the rate-payer who had to finance the application of the Poor Law. Although the risk of seasonal unemployment hit agricultural labourers but not domestic servants, the presumption of yearly hiring was very early extended far beyond agricultural work to conditions which it did not fit at all. From the point of view of the common law there were two central questions: when could a year’s hiring be presumed? 82

83

However, it was ‘old and settled’ law that in the absence of an express agreement in the contract of apprenticeship the master cannot dismiss the apprentice for anything but the most serious misconduct, such as felony, or being a habitual thief (Breslin & M’Keever, 99). In this case, the apprentice had been dismissed for insubordination towards his master’s housekeeper for which he refused to apologise when called upon to do so; he succeeded in an action for breach of the contract of apprenticeship and was awarded the return of his deposit. (Semble, he had no right to damages.) Other rules deriving from the master and servant model were: (i) The master had a reciprocal duty of care and a duty for the general welfare of the servant. But ‘... mischievous would it be, were the principle sustainable, that an employer must warrant the safety of those employed by him’ as Lefroy CJ observed in Potts v Plunkett (1859) 9 CL (Ir) 290, 301 (QBD). The master’s duty of care did not extend to responsibility for injuries occurring to the servant in the course of employment, although resulting from that employment. The servant was supposed to undertake the service subject to all the risks which might occur during its continuance. Where the servant was engaged in work of a dangerous nature, the law required the existence of negligence on the part of the master and the absence of rashness on the part of the servant. (ii) The master had a proprietary interest in the servant – he was liable to third parties for his servant’s misconduct and could sue third parties for loss of his services. (iii) Specific performance of the contract was available as a remedy. Early cases (eg Ball v Coggs (1710) 1 Bro Parl Cas 140; E India Co v Vincent (1740) 2 Atkyns 83; see Freedland, The Contract of Employment (Clarendon Press, Oxford, 1976), 272–73) show it was not until the nineteenth century that objections to such an order were operative. When they were operative, it was in procedural rather than substantive terms. A rare exception based on substantive objections is Fitzpatrick v Nolan (1851) 1 ICR 67 1 in which it was held that a suit could not be sustained which sought to enforce an agreement for the continuance of the plaintiff’s duties of personal services to the defendant, inasmuch as those services might be rendered in a manner productive of injury rather than benefit to the latter. It appears also that the employer could not have maintained a suit to oblige the other party to discharge his duty according to the agreement.

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[1.36]

and what was meant by a yearly hiring if there had been absences or premature termination? These questions had important implications for the law relating to termination of employment as yearly hirings were non-terminable and meant: ‘… the parties are [not] at liberty to separate when they please; on the contrary … one is bound to service, and the other bound to employ, for a year.’84

[1.35] The old statutory rule under the servants legislation that hirings were for a year led to judicial interpretation that all indefinite hirings were for one year.85 Monaghan CJ observed in Keon v Hart86 that: ‘There is no doubt that a general hiring is a yearly hiring, though in cases of menial servants ... the contract is terminable by paying a month’s salary, but that is only the rule when there is nothing in the document to show a different intention of the parties.’87

[1.36] From the nineteenth century on, the courts began to reject the notion of an annual hiring as an automatic implication. Indefinite or general hirings were still presumed to be annual hirings but this was subject to a contrary intention being expressed or implied. In Forgan v Burke88 Monaghan CJ described the law: ‘Where the hiring is under a special agreement, the terms of that agreement are of course to be observed. If there be no special agreement, but the hiring is a general one, without mention of time, it is to be considered to be for a year certain. If the servant continues in employment beyond that year, a contract for a second year is implied, and so on; and, though a hiring in general words is prima facie presumed to be for a year, even though the master and servant may have thought that they could separate within the year, and though the circumstances of the servant leaving in the middle of the year, or having previously served for a shorter time than a year, will not prevent the usual interpretation from taking place, yet this presumption, arising from the use of general words, is capable of being rebutted. Thus, a general hiring, at weekly wages is but a weekly hiring, if there be no other circumstance whence the intended duration of the contract can be collected; eg a hiring at so much per week, for so long a time as the master and servant shall agree, are weekly hirings; but, if there be any circumstance to show that a yearly hiring was intended, a reservation of wages payable at shorter intervals will not control it: as, where the 84 85

86 87

88

R v Gt Bowden (Inhabitants) (1827) 7 B & C 219, 108 ER 716. Cf Lord Mansfield in R v St Peters in Dorchester (Inhabitants) (1763) Burr SC 515, 95 ER 25: ‘Hirings in general and indefinitely give a presumption of hiring for a year.’ Keon v Hart (1867) CP 2 CL 138 at 141. Many cases concerned menial servants. One, Lawler v Linden (1876) CP 10 CL 188 ran to the absurd length of a disquisition as to the derivation of moenia. Counsel argued as to its Saxon, Greek or Latin origin. Lawson J opined that moenia had nothing at all to do with ‘menial’; he regarded the word as deriving from the Saxon meiny which occurs in Chaucer and Shakespeare. Forgan v Burke (1861) CP 12 CL (Ir) 495; citing Smith’s Mercantile Law (6th edn), c 8, 425. In the case before him the plaintiff had agreed with the defendant in the following terms: ‘I agree to serve Major B as steward from 31 May 1858, for £80 per annum ... three months’ notice required on each side.’ He was wrongfully dismissed from employment during a current year without any previous notice. The Chief Justice held the hiring was a yearly one, which could be determined by either party giving to the other three months’ notice before the end of the current year. Damages were assessed on that principle. The plaintiff’s contract, fortunately for him, was a special one (see an earlier example of a special contract: Wilson v Brereton (1843) 5 LR Ir 466).

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Redmond on Dismissal Law

contract was to serve ‘for four shillings and ninepence a week’, or ‘at the rate of four shillings a week’, the parties having liberty of parting at a month’s notice from either, this was held to be a hiring for a year; for the mention of a month showed that the stipulation for a weekly payment of wages was not intended to limit the duration of the contract. But an indefinite hiring by piece-work, or a hiring to do a certain quantity of work, cannot be considered a yearly hiring.’

Once automatic hirings for a year began to be rejected, judicial questions arose about the period of hire and the length of notice.89 One of the reasons why judicial change occurred was the move to a contractual framework. Although an annual hiring could be implied from the parties’ presumed intention, in the final analysis its relation with concepts of non-terminability and compulsory labour was essentially non-contractual. A free contract model required that parties could enter and leave employment freely.

(3) The common law action for wrongful dismissal [1.37] Wrongful dismissal constituted the most important type of breach of contract. By 1800 an action for this breach was specifically recognised by the courts.90 Different analyses were tried and rejected in the case law of the nineteenth century. Judges experimented with an approach which analysed the employment relationship as one of mere ‘service and pay’ whereby the employer was under no continuing obligation to employ but only to pay remuneration accrued due. In the English case of Emmens v Elderton91 (1853), the ‘service and pay’ theory was rejected and the principle established that wrongful termination of the contract of employment gives rise to an action for breach of an implied undertaking by the employer to maintain the employment relationship. In Breen v Cooper92 a domestic servant was expelled late at night from the defendant’s house in the country without her necessary clothes and without money. She brought an action for wrongful dismissal upon a contract of service providing for dismissal without notice. The jury found in her favour and awarded her £20 damages, ie 50p wages due and £19.50 general damages for injury suffered under the circumstances of dismissal. On appeal by her employer, Baron Fitzgerald held for the Court of Exchequer that there was no sum owing to the plaintiff save wages due, but he also made an award in respect of the servant’s implied notice period: ‘I think the plaintiff was entitled to be put, so far as pecuniary compensation could put her in the same position as she would have been if at the time of her dismissal she had been paid the wages due to her, together with an additional fortnight’s wages; and she could not recover as special damages in respect of any matters, save such as would not have happened to her had the contract been fulfilled by payment of those moneys at the time of her dismissal. I can find no evidence of any damage in this case which would not equally have happened, though the contract had been fulfilled in the respect complained of, by payment of those moneys at the time of dismissal.’93 89

90 91

92 93

Problems of vicarious liability and common employment also began to loom large: see McEniry v The Waterford & Kilkenny Rly Co (1858) 8 CL (Ir) 312; Murphy v Pollock & Pollock (1863) 15 CL (Exch) 224. On notice, see Ch 4. Robinson v Hindman (1800) 3 Esp 235. Emmens v Elderton (1853) 13 CB 495. See Freedland, The Contract of Employment (Clarendon Press, Oxford, 1976), 22–23. Breen v Cooper (1869) IR 3 CL 621 (Exch). Breen v Cooper (1869) IR 3 CL 621 at 624–65. See, too, Woodhouse v The RIAM (1908) 2 IR 357, 368.

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[1.40]

[1.38] A further indication as to the Irish courts’ attitude towards the action for wrongful dismissal may be gleaned from their ready endorsement of the principle of Hadley v Baxendale.94 According to this principle, damages may be awarded for breach of contract in respect of loss flowing naturally from the breach or where loss arises from special circumstances within the contemplation of the parties. The courts in Ireland gave a very narrow interpretation to the second limb of this rule.95 Up to the decision in Hamilton v Magill (1883), Irish judges were unlikely to have contemplated an award of damages for wrongful dismissal in respect of loss flowing from breach of an implied term to maintain the work relationship. In Hamilton, however, Palles CB came close to recognising an implied term of this sort when he restated the principle to allow for the fact that the parties to a contract usually contemplate its performance rather than its breach: ‘The damages recoverable [are] such as might arise naturally (ie according to the usual course of things) from such breach of contract itself, or from such breach committed under circumstances in the contemplation of both parties at the time of the contracts.’96

This approach has been developed in case law since then.

B. INDIVIDUAL EMPLOYMENT RIGHTS AND ORGANISED ACTIVITY IN IRELAND [1.39] By the nineteenth century, there was an abundance of labour legislation but there was no smoothness or logic about the way it had developed. Moreover, the legislation had a patchwork design, its effectiveness was far from assured, and the range of topics covered by protective statutes remained narrow. In dismissal and other vital areas of individual employment law there were no statutory protections at all. The view gradually became steadfast that these fell more appropriately and more effectively within free collective bargaining rather than regulatory legislation. [1.40] Other historical considerations peculiar to Ireland may be mentioned. At the time of the Second World War, the Irish worker inherited a century’s old legacy of stagnation – mainly attributable to poor economic decision-making – (whether by politicians, civil servants, or business persons). He was ‘the residuary legatee of the mediocrity of the ruling elite in Irish society’.97 An important consequence of stagnation in the context of termination of employment was that Ireland had no work ethic or morality of work. This was reinforced by the small scale of Irish society, by the importance of personal relationships and by the frequency of face to face situations. The merit of the individual as a worker took second place to other criteria in assessing the rewards of work. Moreover, the degree of industrialisation was still slight. This had implications for the wider work ethic: issues such as dismissal did not weigh heavily on the industrial relations consciousness. By and large Irish workers were not able to draw on the moral, 94 95

96 97

Hadley v Baxendale (1854) 9 Exch 341. It must be remembered, however, that most cases concerned office-holders and not employees or servants whose only remedy lay in a suit for damages. Hamilton v Magill (1883) 12 LR Ir 186 at 202. Lee, ‘The Role of the Worker in Irish Society since 1945’ in Nevin (ed), Trade Unions and Change in Irish Society (Mercier Press, 1980), 11.

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[1.41]

Redmond on Dismissal Law

intellectual, financial or political resources of a flourishing working class culture – there was virtually no working class in the normal Western European sense. Southern Ireland was predominantly agricultural until after the Second World War. As late as 1946, agriculture accounted for 47% of total employment, services for 36% and industry for only 17%. (The last included building and construction.) There were few big factories outside the public service. As late as 1958, only 40 concerns employed more than 500 people.98 The collective need for legislation regulating individual employment was not strongly felt. In 1965, there was still over 30% of the work force employed in agriculture. By contrast, statistics published in 2017 show the employment number in the agri-food sector stands at just 167,500.99

[1.41] Further, a political dimension of working class culture – so important in Britain, for example – was almost wholly lacking in Ireland. The worker was left to fall back on his trade union. Because of the stagnant society in Ireland, and the lack of any larger vision, the function of the trade unions for most groups except the most unskilled was to preserve their differentials against all comers, not least other workers. Differentials became the main bargaining point between employers and employees. [1.42] At first, collective agreements reflected the cautious and conservative policy of regulating only those matters such as wages which traditionally formed the raison d’être of trade unions. Discipline and dismissal procedures later came to be included in collective agreements. This is significant because in a long line of cases, Irish judges assumed, without argument or discussion, that collective agreements are contractually binding between the parties.100 Whether the parties to a collective agreement intend to enter into legal relations,101 or whether the theory of contractual effect conforms to social expediency, the legal enforceability of collective agreements is potentially of great significance in dismissal law. Trade unions can include detailed, carefully drafted, procedural and substantive provisions concerning discipline and dismissal in collective agreements, and these are capable of being enforced before the ordinary courts, independently of a dismissed employee’s rights at common law or to seek injunctive relief. 98

99

100

101

See Meenan, The Irish Economy Since 1922 (Liverpool University Press, 1970), in particular Ch 2; Clampett, ‘The Economic Life of Ireland’ (1928) JIBI 139, 228, 241; Coyne (ed) Ireland: Industrial and Agricultural (Browne & Nolan,1902); Geary, ‘Irish Economic Development since the Treaty’ (1951) Studies 399; O’Brien, ‘The Economic Progress of Ireland 1912–1962 (1962) Studies 9; O’Mahony, ‘Economic Theory and the Irish Economy’ (1960) JIBI 251. See Department of Agriculture, Fact Sheet on Irish Agriculture, January 2017, available at agriculture.gov.ie. Hynes v Conlon (1939) Ir Jur R 49; Ardmore Studios (Ireland) Ltd v Lynch [1965] IR 1; Gouldings Chemicals Ltd v Bolger [1977] IR 211; Pattison v Institute for Industrial Research and Standards (31 May 1979) HC; O’Rourke v Talbot Ireland Ltd [1984] ILRM 587. A collective agreement is, after all, ‘a businesslike document’: Gouldings Chemicals Ltd v Bolger [1977] IR 211, at 231 per O’Higgins CJ. The Supreme Court expressly rejected the British case of Ford Motor Co Ltd v AUEFW [1969] 2 QB 303 in favour of Edwards v Skyways Ltd [1964] 1 WLR 349.

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[1.44]

[1.43] A Sub-Committee of the Employer/Labour Conference was set up in 1972 to consider Codes of Fair Employment and Dismissal Procedures.102 In its Report the SubCommittee drew on corroborative information from the Central Statistics Office regarding sources of disputes between employers and trade unions. The facts bear out the many problems which arose at the time in relation to dismissal.103 The Report suggested a detailed format for dismissal and disciplinary procedures suitable to every form of enterprise. As a general principle, it recommended that there should be no breach of rule to which the penalty of instant dismissal attached. In the twenty-first century, a Code of Practice on Grievance and Disciplinary Procedures was promulgated by the Labour Relations Commission in 2000 after consultation with trade unions, employer organisations and other bodies.104 It replaced an earlier Code in 1996 and is referred to repeatedly by the Workplace Relations Commission in determining whether the procedures leading up to a dismissal meet the requirement of the Unfair Dismissals Acts.105 [1.44] Since the 1970s, in particular, Ireland has seen the development (prompted by international influences) of a series of protective statutes which provide individual workers with a statutory floor of rights. In part, these remedy the deficiencies of collective bargaining. The floor may be improved upon by collective bargaining but it cannot be taken away or diminished. A system of rights commissioners was established under the Industrial Relations Act 1969. The system embodied a form of voluntary arbitration to deal with individual grievances in employment. Many of the cases dealt with each year by the Commissioners concerned dismissal. The need for legislation to deal with termination of employment was obvious. The Unfair Dismissals Act, enacted 40 years ago, attempted to fill this need. It is the most noteworthy extension of regulatory legislation in Ireland. Provisions concerning dismissal followed in several other Acts dealing with, for example, employment equality, maternity protection, transfer of undertakings, adoptive leave, carer’s leave, parental leave, part-time, fixedterm and agency work, and protected disclosures. The introduction of the Workplace Relations Act 2015 fundamentally restructured the employment rights fora in Ireland and the influence of this enormous change will be repeatedly referred to throughout this work.

102

103

104

105

The Irish National Productivity Centre was asked to undertake a research project in the area when the Employer/Labour Conference decided that a study on Codes of Fair Employment and Dismissal Procedures should be initiated. The Sub-Committee consisted of three employer and three congress representatives. In 1963, 1965 and 1971, disputes as to engagement and dismissal of workers were more frequent than disputes arising from any other single source, while in other years (between 1963 and 1971) frequency of disputes in this regard was, in the main, second only to disputes arising from disagreements as to wage settlements: Report, 3. See para [21.03] below. Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (SI No 146/2000). For a recent example see An Employee v A Hotel ADJ-00001497 (7 June 2017).

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PART B WRONGFUL DISMISSAL

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Chapter 2

Wrongful Dismissal A.

THE EVOLVING ROLE OF CONTRACT

[2.01] Under the Unfair Dismissals Act 1977, as amended, a dismissing employer must prove not only the reason or reasons for dismissal, it must also satisfy the Workplace Relations Commission that it has acted reasonably in all the circumstances. Due recognition is given to managerial prerogative and the Workplace Relations Commission is astute not to be seen to support anything in the nature of undesirable curbs on employer prerogative. At common law, the position is quite different. Unless constitutional considerations are involved, the matter is essentially one of contract and the contract of employment, as Chapter 1 outlined, embodies a dual feature of equality and domination. Managerial prerogative has traditionally received little scrutiny. Wrongful dismissal, most simply stated, is dismissal in breach of contract.1 In this regard, it is essential to bear in mind the intense fact-specificity of the case law given that every case will turn upon the particular contract at issue. This salutary note of caution was sounded by the Supreme Court in the leading authority of Sheehy v Ryan2 when Geoghegan J stated that ‘every contract of employment is different and that case law is of marginal assistance only in construing the terms of any given contract’.3 [2.02] In sharp contrast to the statutory protections afforded by the Unfair Dismissals Acts, no reason normally needs to be given for the employer’s decision to dismiss. As has been starkly but effectively stated by the High Court: ‘The law in relation to wrongful dismissal is that, absent express provisions to the contrary, employment contracts can be terminated by notice for good reason, bad reason or no reason.’4

An employee cannot challenge his dismissal as being wrongful unless it has taken place in breach of contract, in violation of his constitutional rights or where misconduct is alleged in violation of constitutional fairness. Similarly, an employer’s main line of defence resides in the cluster of terms in the employment contract. If it has terminated the contract in accordance with its terms, express or implied, and is not guilty of an unconstitutionality, irrespective of motives or of the arbitrary nature of the employer’s action, an employee’s claim for wrongful dismissal will not succeed. The strictness of 1

2

3 4

See generally Cabrelli, ‘Duration, Lawful Termination and Frustration of the Employment Contract’, ch 24 in Freedland (ed), The Contract of Employment (OUP, 2016), ch 24. Sheehy v Ryan [2008] IESC 14, [2008] 4 IR 258. Sheehy was referred to under the heading of ‘Employer’s Right to Dismiss’ in the judgment of the High Court (Eagar J) in Genockey v Governor and Company of the Bank of Ireland [2017] IEHC 498 at 26 per Eagar J. Sheehy v Ryan [2008] IESC 14, per Geoghegan J at [2]. Higgins v Bank of Ireland [2013] IEHC 6, per O’Keeffe J at 538.

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Redmond on Dismissal Law

this orthodoxy has been reflected in a number of recent decisions of the Superior Courts5 concerning no-fault dismissals, analysed in Chapter 5.

[2.03] The traditional understanding of the contract of employment and of the ‘terms’ implied therein continue to undergo change. In 1998 one writer referred to ‘The New Contract of Employment’.6 In the 20 years since that statement was made, the judicial process of fashioning that new contract has continued apace. The ever-increasing volume of employment protection legislation, in particular regarding unfair dismissal, has further influenced the transition from a transactional to a relational understanding of the employment contract. [2.04] The rationale for unfair dismissals law derived from, amongst other things, the inadequacy of the common law. Statute provided a remedy for dismissals found to be unfair, recognising that a dismissal could be at one and the same time unfair yet not in breach of contract.

B.

THE CONSTITUTION

[2.05] In Ireland the 1937 Constitution has played a critical role in the transformation of the contract of employment. Notwithstanding the observance of traditional contract principles, an employer may be found to be ‘abusing’ its common law position. In Meskell v CIÉ7 the Supreme Court (Walsh J) analysed the effect of a constitutional right (in this case the right to form an association) as against the ordinary common law rights of an employer to engage or dismiss its workers, when in so doing it was not in breach of contract. Walsh J was categorical that, if an employer threatens an employee with dismissal should he join a trade union, the employer is putting pressure on the employee to abandon the exercise of a constitutional right and is interfering with the employee’s constitutional rights: ‘If the employer dismisses the worker because of the latter’s insistence upon exercising his constitutional right, the fact that the form or notice of dismissal is good at common law does not in any way lessen the infringement of the right involved or mitigate the damage which the worker may suffer by reason of his insistence upon exercising his constitutional right.’

The judge was unequivocal that: ‘To exercise what may be loosely called a common law right of dismissal as a method of compelling a person to abandon a constitutional right, or as a penalty for his not doing so, must necessarily be regarded as an abuse of the common law right because it is an infringement, and an abuse, of the Constitution which is superior to the common law and which must prevail if there is a conflict between the two.’8 5

6

7 8

At the time of writing the most important of these decisions are Bradshaw v Murphy [2014] IEHC 146 and Hughes v MongoDB [2014] IEHC 335. Brodie, ‘Beyond Exchange, The New Contract of Employment’ (1998) 27 ILJ 79. See para [5.20] et seq. Meskell v CIÉ [1973] IR 121 at 135. Meskell v CIÉ [1973] IR 121 at 135.

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Wrongful Dismissal

[2.07]

The role of the Constitution in dismissal law is explored specifically in Chapter 8, but is of course relevant throughout.

C.

OVERARCHING PRINCIPLE?

[2.06] Since the introduction of the Unfair Dismissals Act 40 years ago in Ireland, the common law has itself undergone significant developments here and in Britain. The emergence of an overarching principle from the implied obligation of mutual trust and confidence is increasingly the subject of keen debate. The implied obligation of mutual trust and confidence has been expressed as a duty upon the employer not, without reasonable and proper cause, to act in such a way as would be calculated or likely to destroy or seriously damage the relationship of trust and confidence existing between the employer and its employees.9 The implied term has been increasingly invoked in litigation during the last two decades. In the older case law the requirement of mutual trust and confidence stemmed from a ‘master and servant’ notion of the employment contract where the relationship was viewed as a personal one. The courts looked to see whether as a matter of fact there was trust and confidence between the parties. The modern approach is prescriptive: the mutual duty of trust and confidence obliges the parties to the contract to behave towards one another in a way which respects trust and confidence and enables it and the employment relationship to flourish. The employer’s prescriptive duty not to do anything likely to destroy the relationship of confidence translates, among other things, into a duty to provide fair procedures in disciplinary matters, a prescriptive duty already endorsed in this jurisdiction by the Constitution. The extent to which terms implied by the courts, such as the mutual obligation of trust and confidence, can be used to limit express terms such as the power to terminate in the contract of employment is arguably the most interesting and important area in dismissal law at the time of writing this edition of this book. Chapter 5 attempts to chart this area and to signpost a way forward. [2.07] It is not too early to suggest that, influenced by the Constitution, a greater convergence in approach between statute and common law may be evolving. A relationship involving good faith promotes personal rights and protects the dignity of employees at work. It leans towards a unitary rather than a pluralist approach between employer and employee. If it continues to develop it will be seen to benefit employers as well as employees. For example, an employee could no longer withdraw her good will if she pleased.10 Action short of a strike would be more likely to found to be in breach of contract. Similarly, judicial comments relating to the contract of employment often have a direct bearing on the standards to be imposed under the Unfair Dismissals Acts, a good example being the comments made by Clarke J (as he then was) in the Supreme Court decision of Rowland v An Post.11 9

10 11

Malik v BCCI [1998] AC 20 at 35 per Lord Nicholls and 45 per Lord Steyn adopting BrowneWilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 465. Malik has been expressly endorsed and applied in Ireland: Cronin v Eircom Limited [2007] 3 IR 104. Pace Lord Denning MR in Secretary of State v ASLEF (No 2) [1972] 2 QB 455 at 491. Rowland v An Post [2017] IESC 20 per Clarke J at 5.3.

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[2.08]

Redmond on Dismissal Law

[2.08] The backdrop of the Constitution in Ireland provides considerable protection against the application to employment contracts of common law principles whereby parties are allowed to contract out of implied terms. The extent to which the parties to an employment contract may contract out of, for example, the implied mutual duty of trust and confidence is currently a matter of intense academic debate, to which the Irish constitutional element adds another rich dimension. This is explored further in Chapter 5. [2.09] Chapter 3 distinguishes between ‘ordinary’ or ‘pure’ employees, whose employment is governed by the contract of employment, and office holders. Special consideration is given to a further category of employees: those whose employment is regulated by statute. These distinctions are relevant to the differing approaches taken by the law in matters of discipline and dismissal, albeit that these differences are becoming blurred (as will be seen throughout the book). [2.10] No claim for wrongful dismissal will succeed if a contract has been terminated in accordance with its terms. But the critical question is, what are those terms? Chapter 4 considers termination of employment where due notice has been given and it looks at termination in circumstances where dismissal without notice may be warranted (misleadingly called ‘summary’ dismissal). Chapter 5 examines other limitations on termination, apart from express or implied terms as to notice in the contract of employment. Substantive limitations will always be express. But procedural limitations may be express, or implied. The implied term of fairness is derived from the Constitution, and has elevated the common law concept of natural justice to a different level. Chapter 5 also considers the potential limitations of the implied term of mutual trust and confidence, and how that implied term has proved divisive, particularly when one analyses the recent rejection of that term in 2014 by the High Court of Australia.12 How this area of the law develops will, of course, influence the remedies a dismissed employee may seek, whether in equity or at common law. [2.11] How breach of the contract of employment affects the legal concept of termination is the subject matter of Chapter 6 where the so-called ‘automatic’ and ‘elective’ theories of termination are analysed with reference to the leading contemporary case law including the very significant decision of the United Kingdom Supreme Court in Societe Generale v Geys,13 in which the Court was sharply divided over the correctness of applying the elective theory. [2.12] The vast and at times irreconcilable area of constitutional justice is then examined. Chapter 7 looks at constitutional justice ‘in the round’, bearing in mind that it may benefit all categories of employee.

[2.13] The potential of the 1937 Constitution to affect the law on dismissal, common as well as statutory, is acknowledged. Far more than a right to basic fairness of procedures is involved. This is apparent in Chapter 8, which also discusses remedies for breach of a constitutional right. 12 13

Commonwealth Bank of Australia v Barker [2014] HCA 32. Société Generale v Geys [2012] UKSC 63, [2013] 1 AC 523.

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Wrongful Dismissal

[2.14]

[2.14] The last three chapters in this Part concern remedies. In Chapter 9 the public/ private law divide is encountered when judicial review is considered. Appropriately, this chapter also touches on the doctrines of legitimate expectation and of double jeopardy. Injunctions, specific performance and declarations form the focus in Chapter 10 where trends to injunct dismissals of ordinary employees are detailed and common characteristics identified. An important development in the analysis of this chapter since the previous edition of this work concerns its treatment of the increasingly important question of the inter-relationship between statutory schemes for redress and the availability of injunctive reliefs. The remedy of damages is analysed in Chapter 11.

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Chapter 3

Identifying the Nature of Employment A.

PREVALENCE OF CONTRACT

[3.01] It is a source of ongoing surprise to practitioners of employment law – and their clients – that the question of when and whether an individual will be categorised as an employee can be exceedingly difficult to answer.1 For centuries the courts have attempted to lay down tests predicated on such principles as control, integration and mutuality of obligation and these and other tests have frequently proved to be of assistance. But none is determinative. In our era of the so-called ‘gig economy’ and with the enormous changes brought about by technology and its impact on how, where and in what way so much work is carried out, little wonder that correctly identifying a person’s employment status can prove so elusive. A powerful argument can be and has been2 advanced to the effect that the binary divide between employee and independent contractor status represents a false unity (in supposing that all employment relationships share common characteristics) and a false duality (in supposing that work relationships fall into one of two rigid categories).3 At the time of writing, proposals in the United Kingdom have been advanced for the substitution for the intermediate (statutory) ‘worker’4 category in that jurisdiction of a ‘dependent contractor’ classification.5 [3.02] Statutory employment claims in recent times have revealed the question of employment status to be constantly changing. At the time of writing, myriad recent cases have found individuals from au pairs6 to courier drivers7 and many more not to be independent contractors but either employees or, in English law,8 workers. Employment status is therefore a critical and timely question to be addressed in the context of dismissal law as we near the beginning of the third decade of the twenty-first century. The focus of this chapter will be on the common law position whereas the position under 1 2 3

4 5

6 7

8

See Prassl, The Concept of the Employer (OUP, 2015). See Freedland, The Personal Employment Contract (OUP, 2003), 15-22. See Riley, ‘The Definition of the Contract of Employment and its Differentiation from other Contracts and other Work Relations’, ch 15 in Freedland (ed), The Contract of Employment (2016), 322. Employment Rights Act 1996, s 230. Good Work: The Taylor Review of Modern Working Practices (11 July 2017) available at https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modernworking-practices. An Au Pair v A Respondent (ADJ-00001976, 4 November 2016). Aslam and Farrar v Uber BV (28 October 2016), UK Employment Tribunal (under appeal at the time of writing). Employment Rights Act 1996, s 230.

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[3.03]

Redmond on Dismissal Law

the Unfair Dismissals Acts is considered in Chapter 23; as the two bodies of law are now so heavily intermingled, however, the analysis in this chapter should be consulted in addition to that in Chapter 23 and vice versa.

[3.03] Writing some 50 years ago, Lord Wedderburn famously described the contract of employment as the ‘fundamental legal institution’ of labour law.9 Most persons at work in the main branches of economic activity in Ireland, in agriculture, industry and services, are governed by the contract of employment.10 The common law distinguishes ordinary employees from office-holders, or persons whose employment is public or is regulated by statute. The distinction relates not only to the rights of these workers but also, and most importantly, to their remedies. The contract of employment is not coterminous with the concept of the employment relationship. Irish courts are rarely invited to distinguish between the rights and duties of the parties to the contract between them, other than during the period of employment. The right not to be unfairly dismissed has been framed in the legislation as a contractual right to benefit the employee during the life cycle of that contract, but not during any period before or after its duration.11 [3.04] A further preliminary point to be made is that the contractual documentation will not be determinative of the worker’s status where the said documentaiton is not consistent with the day-to-day reality of the relationship. Whether this is because the day-to-day work in practice differs markedly from the contractual description,12 or because the contract is a sham document designed to disguise the existence of an employment relationship,13 or for any other reason, the discrepancy will be closely scrutinised by the courts. Notwithstanding this important principle, however, the courts will of course give considerable attention to the underpinning contractual documentation in order to assist the court in its deliberations on employment status. A good example of this is seen in Murphy v Grand Circle Travel.14 In that case, the High Court attached particular significance to the fact that the individual worker had voluntarily entered into a written agreement entitled ‘Independent Contractor’s Agreement’ which made it very clear that the parties’ understanding of their relationship was as one of an independent contactor providing services as a self-employed person. Moriarty J specifically referred to the fact that the agreement in that case was ‘expressly designated as an “Independent Contractor’s Agreement” and contained terms that clearly accord with that description of the engagement’. Moriarty J was satisfied that the individual in Murphy was aware of the nature of the engagement to which she was signifying her commitment.15 9 10

11 12 13 14 15

Wedderburn, Cases and Materials on Labour Law (CUP, 1967), 1. The contract of employment, an apparently simple concept, is complex. Not only are many of the principles obscure but there is a wide diversity of contract patterns. ‘In the cosmos of personal work contracts, on the far side of the contract of employment, there lies a black hole in terms of articulated legal principles and rules. These are uncharted zones’ – Freedland, ‘From the Contract of Employment to the Personal Work Nexus’ (2006) 35 ILJ 1. See Keane v Swim Ireland [2004] ELR 6. Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] I IR 34. Autoclenz Limited v Belcher [2011] UKSC 41. Murphy v Grand Circle Travel [2014] IEHC 337. Murphy v Grand Circle Travel [2014] IEHC 337 at 4 per Moriarty J.

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Identifying the Nature of Employment

[3.07]

[3.05] This chapter begins by identifying the criteria applied by the courts and tribunals to determine the existence of the various categories of worker. It will become apparent that there is no consistent or uniform definition of ‘employee’ or of ‘office-holder’ at common law.

B.

EMPLOYEES

[3.06] To discover the identifying mark or marks of ordinary employees, it is necessary to distinguish between employees and self-employed persons, notwithstanding the false unity and false duality implicit in that binary distinction already identified above. An employee essentially works under a contract of service but it is not always easy to define the status of a worker in this way. In Ireland the criterion traditionally applied by the civil courts to determine the relationship of employee was that of control, whereby the subordinate nature of the relationship is regarded as central to the contract of employment: Roche v Kelly & Co Ltd.16 In Britain, as large sections of industry became more skilled and more technological, the ‘control test’ gave way to the so-called ‘integration test’ which asked ‘Did the alleged servant form part of the alleged master’s organisation?’17 This likewise failed to provide a clear answer and a ‘mixed test’ was then developed.18 In this regard, the Ready Mixed Concrete case is the seminal decision from the English courts. McKenna J stated: ‘A contract of service exists if these three conditions are fulfilled. (i)

The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii)

He agrees, expressly or impliedly, that in the performance of that service, he will be subject to the other’s control in a sufficient degree to make that other master.

(iii)

The other provisions of the contract are consistent with its being a contract of service.’19

McKenna J added: ‘Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done.’20

[3.07] Once the issue of a salary has been determined, then the status test may be applied in two stages. The first question to ask is whether there is control. This is a necessary but not a sufficient test. It must then be determined whether the provisions of the contract are consistent with its being a contract of service. There may be indications, 16 17

18

19

20

Roche v Kelly & Co Ltd [1969] IR 100. Lord Denning developed the test in Stevenson, Jordan and Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101. In Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 (McKenna J). In Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 per McKenna J at 515. In Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 per McKenna J at 515.

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[3.08]

Redmond on Dismissal Law

for example, that a worker is an entrepreneur rather than an employee. In this event the fundamental test to be applied is whether the person who has engaged himself or herself to perform particular services is in business on his or her own account.21 Where the business is already well established, that will be a significant, though not a decisive, factor. The process of classification is regarded as a mixed question of fact and law.22

[3.08] The changing nature of the labour market cannot be ignored in assessing employment status. This is well illustrated by the approach of the English Court of Appeal in Lane v Shire Roofing Company (Oxford) Ltd23 where the Court, in concluding that the plaintiff was an employee, had regard to the changing nature of the labour market, in particular the growth in self-employment and the more flexible nature of the employment relationship today. Henry LJ noted the ‘perceived advantages’ thought to accrue to the parties from the use of self-employed status but added that there are ‘good policy reasons in the safety at work field to ensure that the law properly categorises between employees and independent contractors’.24 He attached importance to the degree of control exerted over the plaintiff and, more importantly, he regarded the vital question to be: whose business was it? Similar considerations are evident in the approach of the UK Employment Appeals Tribunal in 2016 in the context of the Uber litigation in its determination in Aslam v Uber BV.25 [3.09] In what remains a leading judicial statement in this area of Irish law, Keane J in Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare26 set out the principles relating to the assessment of whether or not a person is an employee: ‘The criteria which should be adopted in considering whether a particular employment … is to be regarded as a contract “for service” or a contract “for services” have been the subject of a number of decisions in Ireland and England. In some of the cases, different terminology is used and the distinction is stated as being between a “servant” and “independent contractor”. However, there is a consensus to be found in the authorities that each case must be considered in the light of its particular facts and of the general principles which the courts have developed: see the observations of Barr J in McAuliffe v Minister for Social Welfare [1995] 2 IR 238. At one stage the extent and degree of control which was exercised by one party over the other in the performance of the work was regarded as decisive. However, as later authorities demonstrate, that test does not always provide satisfactory guidance. In Cassidy v Ministry of Health [1951] 2 KB 343 it was pointed out that, although the master of a ship is clearly employed under a contract of service, the owners are not entitled to tell 21 22 23

24 25 26

Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 (QBD). Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] I IR 34. Lane v Shire Roofing Company (Oxford) Ltd [1995] IRLR 493. See on temporary agency workers: McMeechan v Secretary of State for Employment [1997] ICR 549; Dacas v Brook St Bureau (UK) Ltd [2004] EWCA Civ 217, [2004] ICR 1437; Cable & Wireless plc v Muscat [2006] IRLR 354; James v Greenwich Borough Council [2008] EWCA Civ 35, [2008] ICR 545. Both Dacas and James were considered by the Irish High Court (Gilligan J) in Brightwater Selection (Ireland) Ltd v Minister for Social and Family Affairs [2011] IEHC 510. Lane v Shire Roofing Company (Oxford) Ltd [1995] IRLR 493 at 495. Aslam v Uber BV [2016] EW Misc B68 (ET) (28 October 2016). Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] I IR 34.

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Identifying the Nature of Employment

[3.10]

him how he should navigate the vessel. Conversely, the fact that one party reserves the right to exercise full control over the method of doing the work may be consistent with the other party being an independent contractor: see Queensland Stations Property Ltd v Federal Commissioner of Taxation [1945] 70 CLR 539.’27

Keane J then cited Cooke J in Market Investigations v Ministry of Social Security28 who said: ‘The observations of Lord Wright, of Denning LJ and of the judges of the Supreme Court suggest that the fundamental test to be applied is this: “Is the person who has engaged himself to perform these services performing them as a person in business on his own account?” If the answer to that question is “yes” then the contract is a contract for services. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.’

Keane J concluded: ‘It is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.’29

[3.10] Sometimes, for reasons of administrative convenience and tax planning, the employment status of an employee may be changed to that of independent contractor or persons may be recruited on that basis. In Castleisland Cattle Breeding Society Ltd v Minister for Social and Family Affairs30 Geoghegan J in determining that the applicant was not an employee said: ‘There is nothing unlawful or necessarily ineffective about a company deciding to engage people on an independent contractor basis rather than on a “servant” basis but as this court 27

28 29

30

Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] I IR 34 per Keane J at 49. Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 at 184 (QBD). Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] I IR 34 per Keane J at 50. Castleisland Cattle Breeding Society Ltd v Minister for Social and Family Affairs [2004] IESC 40, [2004] 4 IR 150, [23]. See too Kirwan v Technical Engineering and Electrical Union [2005] ELR 177 (HC); ESB v The Minister for Social Community and Family Affairs and Others (14 January 2005) HC; Duijne v Irish Chamber Orchestra [2002] ELR 255 (EAT: cellist an employee).

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[3.11]

Redmond on Dismissal Law

has pointed out in Henry Denny and other cases, in determining whether the new contract is one of service or for services the decider must look at how the contract is worked out in practice as mere wording cannot determine its nature. Nevertheless the wording of a written contract still remains of great importance. It can, however, emerge in evidence that in practice the working arrangements between the parties are consistent only with a different kind of contract or at least are inconsistent with the expressed categorisation of the contract.’

[3.11] The term ‘self-employed person’ is generally used to distinguish a person who may be said to work for an employer but does so as an independent contractor. He or she is bound by a contract ‘for services’ rather than ‘of service’, ie his or her obligation is to do a certain job or jobs as distinct from the more general obligation to serve in any required aspect of the description of services which (s)he has undertaken. At first judges were willing to leave the decision as to the type of contract under which labour is supplied to the parties themselves. They were not prepared, in Wedderburn’s phrase, to ‘pierce the veil’ of self-employment. But both British31 and Irish cases have now departed from this approach. In Lamb Bros (Dublin) Ltd v Davidson,32 Costello J in the High Court sought to uncover ‘the reality of the employment relationship’. At the same time, however, he accorded considerable importance to ‘the clear intention of the parties’, but only in so far as this was not inconsistent with the reality of their relationship. [3.12] Clear pointers as to the criteria that may be used in determining whether a contract is one of service or for services were given by the High Court (Blayney J) in EP Ó Coindealbhain (Inspector of Taxes) v Thomas B Mooney:33 The extent and degree of control exercised by the employer and whether the employed person was in business on his own account. The contracting party must have agreed to provide his own work or skill in the performance of some service for the contract to be one of service. The right of the employer to terminate the employee’s contract upon notice is not inconsistent with the contract being one for services.

[3.13] In McAuliffe v Minister for Social Welfare34 a wholesale distributor of newspapers used the services of various persons to deliver newspapers for him. He challenged a finding of a Deciding Officer of the Department of Social Welfare that these persons were employed under contracts of service. The High Court (Barr J) allowed the appeal and held that the correct characterisation of such drivers was as self31

32

33

34

Eg Ferguson v Dawson Ltd [1976] 3 All ER 817; Massey v Crown Life Insurance Co [1978] ICR 594; Young and Woods Ltd v West [1980] IRLR 201, (1981) ILJ 124 (note). Lamb Bros (Dublin) Ltd v Davidson (4 December 1979) HC. Compare EAT’s determination that claimant was an independent contractor in Ó Riain v Independent Newspapers UD 134/ 1978. See too Hogan v United Beverages (14 October 2005) CC; Dower v Radio Ireland Ltd [2001] ELR 1 (HC). EP Ó Coindealbhain (Inspector of Taxes) v Thomas B Mooney [1990] 1 IR 422, per Blayney J AT 430–433. See too McDermott v Loy (29 July 1982) HC (Barron J). McAuliffe v Minister for Social Welfare [1995] 2 IR 238. See Tierney v An Post [1999] ELR 293 (SC): postmaster to sub-post office found not to be employed on a contract of service and instead an independent contractor applying Hitchcock v Post Office [1980] ICR 100.

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Identifying the Nature of Employment

[3.14]

employed persons. In that case relevant factors which were considered as features of a self-employment situation included that the drivers owned the delivery vehicles and were responsible for all outgoings. The supplier was not obliged to provide the drivers with any particular deliveries and they were free to carry goods for other persons. However, they could not carry a delivery of newspapers for another supplier when engaged in deliveries for the supplier. The drivers made income tax returns as selfemployed persons, and one was registered for value added tax for which he invoiced the supplier. The drivers were responsible for any damage, destruction or loss of goods carried for the supplier and for any loss occasioned by delay. Barr J in his judgment stated that he had ‘no hesitation’ in concluding that the drivers were independent contractors and not employees. In arriving at the Court’s decision he considered the terms of the contracts in dispute against the terms of hypothetical contracts for services and of service for a business involved in carriage of goods. The terms in an hypothetical contract for services for a haulage company would be expected to contain certain distinctive features being inter alia: (a) the provision and maintenance of its own transport; (b) remuneration to cover its costs and provide a profit; (c) the carrier would in general not be restricted from delivering goods for third parties; and (d) the contract would provide an indemnity to the employer in respect of any loss he might sustain through the negligence or breach of contract of the carrier. In contrast the terms of an hypothetical contract of service for a haulage company with an employee would include different terms from a contract for services. The most distinctive features being, inter alia: (a) the employer would provide the vehicle and pay for all its overheads; (b) the driver would be paid on the basis of a weekly wage and overtime or on the basis of each run; (c) the employer would be liable to pay the employer’s share of PRSI contributions and would be obliged to collect and remit the employee’s PAYE income tax; (d) the employee would not be able to use the employer’s vehicle for his own delivery business; and (f) it would be for the employer to provide a substitute driver if the usual driver was unavailable. This enabled the judge to conclude that the contracts between the appellant and the persons delivering newspapers were contracts for services since none of the distinguishing features of the hypothetical contract of service were found but there was much in common with the hypothetical form of contract for services.

Mutuality of obligation [3.14] The concept of ‘mutuality of obligation’ has become central to the test for determining employment status and the case law is replete with references to it.35 It remains, however, ‘probably the most confusing part of the employee test’.36 It was characterised in Nethermere (St Neots) v Gardiner37 as the ‘one sine qua non which can firmly be identified as an essential of the existence of a contract of service’. As employment law scholars38 are increasingly at pains to point out, however, the concept is 35

36 37 38

See, for eg, Cotswold Developments Construction Ltd v Williams [2006] IRLR 181 (EAT); Wilson v Circular Distributions Ltd [2006] IRLR 38. Davies, Employment Law (Longman Law Series, Pearson, 2015), 104. Nethermere (St Neots) v Gardiner [1984] ICR 612 at 632 per Dillon LJ. See for example Countouris, ‘Uses and Misuses of “Mutuality of Obligations” and the Autonomy of Labour Law’ in Bogg, Costello, Davies and Prassl (eds), The Autonomy of Labour Law (Hart, 2015); Prassl, ‘Employees, Employers and Beyond’, ch 16 in Freedland (ed), The Contract of Employment (OUP, 2016), 348–349.

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[3.15]

Redmond on Dismissal Law

now being utilised in manner that arguably conflates two separate ideas:39 mutuality as underpinning the work–wage bargain, on the one hand, and mutual obligations for future performance – the promise to employ and be employed – necessary for the existence of a contract of employment, on the other.

[3.15] A leading example of articulation of the relevant legal principles in this jurisdiction by the Superior Courts is to be found in one of the High Court judgments in the long-running case of Minister for Agriculture v Barry.40 Because of the importance of this case, and the emphasis it places on the requirement of mutuality of obligation to be shown in order for an employment relationship to exist, it is necessary to outline the significant elements of Barry in some detail. [3.16] The case first came before the High Court by way of an appeal from the Employment Appeals Tribunal which had ruled that veterinary surgeons who worked as Temporary Veterinary Inspectors (TVIs) at the Galtee Meats Plant in Cork were employed under a contract of service and were employees. The TVIs were private veterinary surgeons who were also in business on their own account and they could (and mostly did) continue in private practice alongside undertaking TVI work for the Department. They were paid by the Department on an hourly fee basis at rates fixed at intervals. The TVIs were placed on panels which operated on the basis of seniority, availability and suitability. Their function was to assist the permanent veterinary staff at meat plants. Each TVI was provided with the required protective clothing and the necessary equipment. There was a minimum roster period for the TVIs and if one was unavailable to attend a specific shift he had to notify the veterinary inspector who would appoint the next most senior member of the panel to perform the shift. The TVIs were required to carry out the work personally and they occasionally swapped shifts. [3.17] The Employment Appeals Tribunal had originally found that there was an employment relationship on the basis of what it identified as a ‘mutuality of obligation’, but on appeal to the High Court, Edwards J found that the Employment Appeals Tribunal had misunderstood the Supreme Court decision in the Denny case referred to above,41 and that the Employment Appeals Tribunal had misdirected itself in law and had failed to correctly apply the law to the facts of the case. There was a further Employment Appeals Tribunal hearing and a further High Court appeal (before Hedigan J), the effect of which was to find that these individuals were not employees but instead engaged on contracts for services, but that second High Court judgment was the subject of a Supreme Court appeal which caused the matter to be remitted back to the Employment Appeals Tribunal.42 In a very important passage of the main judgment of 39 40

41 42

As set out by Freedland, The Contract of Employment (OUP, 1967), 19–21. Minister for Agriculture v Barry [2011] IEHC 43. At the time of writing (2017), this litigation, which concerns whether the claimants were or were not employees, has been ongoing for over a decade, with multiple judgments in the Superior Courts and several determinations of the Employment Appeals Tribunal. See para [3.09] above. Minister for Agriculture v Barry [2015] IESC 63.

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Identifying the Nature of Employment

[3.19]

the High Court (Edwards J), the Court stated the following in relation to mutuality of obligation as being an essential component of an employment relationship: ‘The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service. It was characterised in Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 at p 632 as the “one sine qua non which can firmly be identified as an essential of the existence of a contract of service.” Moreover, in Carmichael v National Power plc [1999] ICR 1226 at p 1230 it was referred to as “that irreducible minimum of mutual obligation necessary to create a contract of service”. Accordingly the mutuality of obligation test provides an important filter. Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation it is not necessary to go further: whatever the relationship is, it cannot amount to a contract of service. However, if mutuality of obligation is found to exist, the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further.’43

[3.18] It is significant to note that, having made the above statement of principle in the Barry case, the High Court went on to deem the TVI workers in that case to be independent contractors as distinct from employees. In so doing, the High Court placed particular emphasis on the fact that the TVI workers were entitled to decline to work at the very least 16% of the shifts offered to them without that refusal having any consequences for their contracts. Edwards J was unambiguous in stressing the importance of mutuality of obligation, stating: ‘If there is no mutuality of obligation it is not necessary to go further: whatever the relationship is, it cannot amount to a contract of service.’44

When the matter was eventually45 remitted again to the EAT, the EAT found by a majority that the individuals were not employees of the Minister for Agriculture. Whilst the relationship between the parties ‘was a very unusual one’ that had some features ‘indicative of employment’, the majority of the Tribunal found that mutuality of obligation did not exist between the parties. In a powerful dissenting determination, however, the dissenting panel member Ms Doyle found the TVIs to be ‘part and parcel’ of the organisation. Drawing on an analogy of a GP managing a practice who can also be an employee of the HSE as a medical officer of a community hospital, she said the TVIs were ‘busy practitioners juggling a private practice with a parallel employment profile of TVI’.

[3.19] The entitlement to decline up to 16% of the shifts (which has been such a prominent feature in the reasoning of Edwards J in the High Court) in her view meant the TVIs were obliged to attend for 84% of the shifts offered. The dissenting panel member concluded that mutuality of obligation ‘existed through an osmosis of the 43 44 45

Minister for Agriculture v Barry [2009] 1 IR 215, 230–231 per Edwards J. Minister for Agriculture v Barry [2009] 1 IR 215 per Edwards J at 230. After the High Court and Supreme Court appeals referred to above.

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Redmond on Dismissal Law

imperative contained in the [European] regulations and the seniority of the TVIs on the panel’. The Minister ‘undertook to rely on that panel as the sole source of supply of labour. This […] diminished the “remoteness” of a contract worker’. She remarked that the working arrangement of the TVIs matched that of a ‘zero hours’ contract worker with actual fixed regular attendance. The higher pay rate for TVIs could be explained by the attempt to compensate for taking holidays, which was up to five weeks and unpaid for TVIs. Also relevant in the context of the dissenting opinion were the fact that the Minister paid employer PRSI for the claimants; that they had been subject to the parallel benchmarking process in 2003/ 2004, which was the ‘preserve of the employee of the public sector at that time’; and the power of the Minister to suspend a TVI. Looking at these factors in their totality, Ms Doyle found the TVIs were more of a ‘fit’ to employee status and a ‘mis-fit’ to self-employed status, and concluded that it was ‘possible to be employed and self-employed at the same time in different jobs’.

[3.20] It is evident from the differing views of the members of the EAT in the recent Barry decision that starkly divergent approaches can be taken as to the definition of mutuality of obligation. The High Court decision of Edwards J in Barry posits a strict view of mutuality that goes significantly beyond the work/wage exchange and requires an ongoing reciprocal commitment to provide and perform work on the part of the employer and employee respectively. Increasingly, however, this definition of mutuality is coming under academic scrutiny and criticism,46 since the inevitable effect of such an approach will be to cause businesses to structure their contractual arrangements with those working for them in such a manner as to pre-emptively defend against a finding of mutuality of obligation. [3.21] The tensions between these two approaches, and the influence of the academic commentary, can be seen seen in the recent High Court decision in McKayed v Forbidden City Limited, trading as Translations.ie.47 There the plaintiff, an Arabic translator, was retained by the defendant to provide interpretation and translation services, including interpretation services for suspects being interviewed while in garda detention and persons being interviewed in the context of asylum applications. The plaintiff sought redress for unfair dismissal. Although successful before a rights commissioner, the EAT held that he was not an employee and the Circuit Court upheld the EAT decision. The appeal to the High Court led to a detailed examination of the employment status of the plaintiff.

[3.22] On commencing work with the defendant the plaintiff had signed a document which committed the defendant to ‘arrange appointments for [the plaintiff] and endeavour to maintain sufficient work for [him], and promptly pay [him] on receipt of correctly submitted invoices or time sheets’. The plaintiff also signed up to a Code of Conduct that prohibited the delegation of work to colleagues and the passing of his contact details to potential clients of the defendant. 46

47

See, for example, Countouris, ‘Uses and Misuses of “Mutuality of Obligations” and the Autonomy of Labour Law’, published by the UCL Labour Rights Institute (UCL Labour Rights Institute On-Line Working Papers - LRI WP 1/2014). For recent commentary in the context of English case law see Prassl (2017) 133 LQR 366. McKayed v Forbidden City Limited, trading as Translations.ie [2016] IEHC 722.

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Identifying the Nature of Employment

[3.26]

[3.23] The plaintiff gave evidence that: (a) he had received work over a period of approximately two and a half years; (b) that the company provided training for him; (c) that he was paid hourly; (d) that the company told him where to attend and what to do there; (e) that he was not registered for VAT; (f) that the name and logo of the company were displayed on his identification badge when doing the work; (g) that he was to provide the company details and phone number when working, and not his own; (g) that he submitted invoices at the request of the company; (h) that sick pay, holiday pay and pension were not covered; (i) that he could be called at any time, 24 hours, seven days a week, which he described as a requirement that he be ‘on call’ for the company. The defendant’s position was that none of the foregoing matters was determinative given that it had been established that no mutuality of obligation between the parties existed and that this was a sine qua non for any employment relationship as held by Edwards J in Barry, analysed above. [3.24] Ní Raifeartaigh J engaged in a detailed analysis of the case law on point and concluded that the use of the mutuality of obligation as a fundamental requirement for the existence of a contract of service was established as a matter of Irish law. She noted that the plaintiff had sought to rely on the work of Nicola Countouris referred to above,48 but did not accept that this critique of the English case law on mutuality could affect the Court’s conclusion that there was no mutuality since the plaintiff’s contract did not guarantee him work from the defendant and that the mere fact that he had always been provided with work did not amount to an obligation on the defendant to continue to do so. As a result, it was held that the contractual relationship between the parties was lacking any mutuality of obligation and that, accordingly, the contract could not be deemed to be a contract of service. It is respectfully submitted that McKayed is an example of the potential rigidity of the overly strict view of mutuality of obligation that can work an injustice given the reality of the claimant’s working arrangements. It is understood at the time of writing that the majority EAT decision in Barry of 2017 is under appeal to the High Court when such arguments may be further canvassed. [3.25] Each case will depend on its own facts. The ambiguity and uncertainty in this area of employment law is further compounded by the fact that an individual may be deemed an employee for some purposes but not for others. In this context, complex questions of issue estoppel can arise. This is revealed clearly in the recent decision of the High Court in National Museum of Ireland v Minister for Social Protection.49 [3.26] The National Museum case involved a challenge to a determination by a Social Welfare Appeals Officer that an individual was in insurable employment. The case raised the question as to whether issue estoppel applied given that the employment status of the individual had already been determined by a decision of a Rights Commissioner 48

49

Countouris, ‘Uses and Misuses of “Mutuality of Obligations” and the Autonomy of Labour Law’, published by the UCL Labour Rights Institute (UCL Labour Rights Institute On-Line Working Papers – LRI WP 1/2014). National Museum of Ireland v Minister for Social Protection [2016] IEHC 135.

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[3.27]

Redmond on Dismissal Law

who had deemed her to be self-employed. The following year, a Deciding Officer in the Scope Section of the Department of Social Protection determined, pursuant to s 300 of the Social Welfare Consolidation Act 2005, that she was employed as a member of staff with the applicant and therefore was insurable under the Social Welfare Acts for all benefits and pensions at PRSI Class A for the period. Amongst the interesting features of this judgment is the consideration given by Murphy J in her judgment to the argument that issue estoppel would prevent a different categorisation of the worker now being made. Although the High Court did not consider issue estoppel to arise on the facts, the reasoning of Murphy J is very significant for this area of the law generally. Murphy J stated:50 ‘The Court does not consider that issue estoppel arises in the instant case. The Organisation of Working Time Act 1997, the Protection of Employees (Fixed Term Work) Act 2003 and the Social Welfare Consolidation Act have all provided for different statutory mechanisms to resolve what are in essence, different issues arising from an employer-employee relationship. Each of those Acts provides for an ultimate appeal to the High Court on a point of law. None of the Acts provides that the decision of one decision making body is binding on the other. The legislature in its wisdom has seen fit to set up different statutory schemes to deal with different employment issues. Undoubtedly it would be far more efficient to have one body charged with the resolution of all issues relating to employment status. This however is a matter for the legislature and not the courts and as matters stand, employees enjoy rights to seek redress simultaneously from the Rights Commissioner and the Department of Social Welfare depending on the nature of their complaint.’

[3.27] The Court does however note that the decision of the Rights Commissioner in relation to the status of the notice party had been made known to the Appeals Officer and the Deciding Officer prior to their embarkation on their own decision-making process under the 2005 Act. That decision is based on largely the same factual circumstances and that decision must be at least of some persuasive authority such that one would expect the Appeals Officer and Deciding Officer to explain the basis on which they came to a conclusion in relation to the notice party’s employment status which differs from that of the Rights Commissioner whose decision, in the Court’s view, seems more cogently formulated than those of the Deciding Officer and Appeals Officer of the SCOPE section of the respondent. Indeed, the Court’s views in this respect would seem to be in accordance with the remarks of Kelly J in Mulholland v An Bord Pleanála (No 2)51 where he held that a decision making body: ‘…must give its reasons and considerations in a way which not only explains why it has taken a different course but must do so in a cogent way so that an interested party can assess in a meaningful fashion whether or not the respondent’s decision is reasonably capable of challenge.’52 50 51 52

National Museum of Ireland v Minister for Social Protection [2016] IEHC 135 at 52–53. Mulholland v An Bord Pleanála (No 2) [2006] 1 IR 453. Mulholland v An Bord Pleanála (No 2) [2006] 1 IR 453 per Kelly J at 462.

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Identifying the Nature of Employment

C.

[3.30]

OFFICE-HOLDERS

[3.28] It is no easier to define an ‘office-holder’ than an employee;53 frequently, litigation reveals that the terms can be used interchangeably and without certainty.54 The term is sometimes used to describe those in positions of authority in a variety of public and private institutions. The distinction between office-holders and ordinary employees has a long historical basis. At common law, there is much overlap between the two categories.

[3.29] In McMillan v Guest,55 Lord Wright observed that the word ‘office’ is of indefinite content.56 Lord Atkin suggested that ‘office’ implies a subsisting, permanent, substantive position having an existence independent of the person who fills it, and which goes on and is filled in succession by successive holders.57 Lord Atkin’s definition has more recently been described as being ‘useful as a broad description of the ingredients normally present with any office’.58

[3.30] The differences in the entitlements of office-holders in comparison to those of employees was analysed by the House of Lords in Percy v Church of Scotland59 wherein Lord Nicholls of Birkenhead stated the following: ‘The distinction between holding an office and being an employee is well established in English law. An important part of the background to this distinction is that in the past an employer could dismiss a servant without notice, leaving the servant with any claim he might have for damages for breach of contract. Speaking in the 1960s, Lord Reid famously declared that a master could terminate the contract with his servant at any time and for any reason or for none: Ridge v Baldwin [1964] AC 40, 65–68. By way of contrast, some office holders could be dismissed only for good cause. Thereby they were insulated against improper pressures. So the focus in master and servant cases was often on the 53

54

55 56 57 58

59

Historically, the term referred to office-holders, with duties concerning the public, which were included in the class of freeholds. They could be bought and sold and were subject to the law of property. Both public and private offices were protected by the common law. See Napier, The Contract of Service: The Concept and its Application, unpublished doctoral thesis for the University of Cambridge, 1976. The consequences for employees who are office-holders and whose posts are abolished were considered in Histon v Shannon Foynes Port Company [2004] ELR 277. A former office-holder refused to return to work as employee; it was held by the High Court it was a repudiation of his contract of employment such that the employer was entitled to dismiss. Contrast Carr v City of Limerick Vocational Education Committee [2000] ELR 57: office abolished without consent of Minister. Office-holder refused to accept position of ordinary teacher. Held (High and, on appeal, Supreme Courts) no repudiation. Declaration office-holder continued as such and arrears of salary awarded. According to the Supreme Court it would have been open to VEC to make plaintiff redundant with consent of Minister if, as asserted, redundancy situation existed. For a recent example see the judgment of the High Court (Barrett J) in Bennett and Marron v Minister for Justice and Equality [2017] IEHC 261. McMillan v Guest [1942] AC 561. McMillan v Guest [1942] AC 561 at 566. McMillan v Guest [1942] AC 561 at 564. Per Lord Nicholls in Percy v Church of Scotland Board of National Mission [2005] UKHL 73, 17. Percy v Church of Scotland [2006] 2 AC 28.

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[3.31]

Redmond on Dismissal Law

question whether, to adopt the words of Lord Wilberforce, there was an element of public employment or service, or anything in the nature of an office or status capable of protection: Malloch v Aberdeen Corpn [1971] 1 WLR 1578, 1595.’60

Lord Nicholls acknowledged that the criteria to be applied when distinguishing those who hold an office from those who do not are imprecise. In McMillan v Guest, Lord Wright observed that the word ‘office’ is of indefinite content.61 Lord Atkin suggested62 that ‘office’ implies a subsisting, permanent, substantive position having an existence independent of the person who fills it, and which goes on and is filled in succession by successive holders. As Lord Atkin indicated, this is a generally sufficient statement of the meaning of the word. It is useful as a broad description of the ingredients normally present with any office.

[3.31] Lord Nicholls in Percy elaborated: ‘Sometimes the existence of an office is clear. An office may be of ancient common law origin, such as the office of constable. Indeed some offices were regarded by the common law as incorporeal hereditaments, belonging to the current office holder. A benefice in the Church of England is regarded as a freehold office belonging to the incumbent for the time being. Or an office may be created by statute, with attendant statutory functions. A superintendent registrar of births, deaths and marriages is an example.’63

Lord Nicholls continued: ‘Less clear cut are cases where an organisation, ranging from the local golf club to a huge multi-national conglomerate, makes provision in its constitution for particular posts or appointments such as chairman or vice-president. In a broad sense these appointments may well be regarded as “offices”. But caution needs to be exercised here, lest the use of this term in this context lead to a false dichotomy: a person either holds an office or is an employee. He cannot be both at the same time. This is not so. If “office” is given a broad meaning, holding an office and being an employee are not inconsistent. A person may hold an “office” on the terms of, and pursuant to, a contract of employment. Or like a director of a company, a person may hold an office and concurrently have a service contract. Whether there is a contract in a particular case, and if so what is its nature and what are its terms, depends upon an application of familiar general principles. That the appointment in question is or may be described as an ‘office’ is a matter to be taken into account. The weight of this feature will depend upon all the circumstances. But this feature does not of itself pre-empt the answer to the question whether the holder of the “office” is an employee. This feature does not necessarily preclude the existence of a parallel contract for carrying out the duties of the office even where they are statutory.’64

[3.32] The position of office-holders who hold office at the pleasure of the Government was considered by the Supreme Court in Garvey v Ireland.65 There, the special position of an office-holder was captured by Henchy J when he specifically set out the need for protection to be afforded to office-holders as follows: ‘Having regard to the relevant constitutional provisions [Article 40.3.2°], I conceive the law to be that when a person holds a wholetime pensionable office (whether under statute, 60 61 62 63 64 65

Percy v Church of Scotland [2006] 2 AC 28 per Lord Nicholls at 15. McMillan v Guest [1942] AC 561 at 566. McMillan v Guest [1942] AC 561 at 564. At [19], citing Miles v Wakefield Metropolitan District Council [1987] AC 539. At [20], citing Miles v Wakefield Metropolitan District Council [1987] AC 539. Garvey v Ireland [1981] IR 75.

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[3.34]

statutory instrument, charter, deed of trust, or otherwise) from which he may be removed at any time, the power of removal may not be exercised without first according him natural justice by giving him the reason for the proposed dismissal and by providing him with an adequate opportunity of dealing with the reason and of making a reply to it.66’

Thus, the common law position has been ameliorated by the Constitution, which has read into the power of dismissal vested in the Government regarding a person who holds office at the will and pleasure of the Government the requirement to comply with fair procedures or Haughey rights.67 Garvey thus demonstrates, albeit in a different context, the lengths to which the Courts in this jurisdiction have gone to ensure protection and respect be accorded to office-holders in their respective distinct positions.

Respect and co-operation in the exercise of office [3.33] The courts have similarly determined that statutory officers are entitled, not only to fair procedures, but to respect and co-operation in the execution of their legal duties. In the case of Miles v Wakefield Council68 a superintendent registrar for births, deaths and marriages pursued a claim against Wakefield Council for failure to pay the totality of his salary after deductions had been made for time the plaintiff had spent on strike. In finding in favour of the plaintiff the Court of Appeal held that, while the Council was responsible for paying his salary, he remained an officer of the Crown who held office at the pleasure of the Crown and was not, therefore, the Council’s employee. Parker LJ69 stated that: ‘nobody can deal with the fees of a person who holds an office of this description, because the law presumes, with references to an office of trust, that he requires the payment which the law has assigned to him for the purposes of upholding the dignity and performing properly the duties of that office.’

The above passage provides a clear example of the fact that the courts have long recognised the legal imperative of upholding the dignity of an office created by statute which fulfils a vital public function.

Incidental and consequential powers [3.34] More recently in Director of Consumer Affairs v Bank of Ireland,70 Kelly J was asked to determine what powers the plaintiff enjoyed by virtue of her office. The High Court held that: ‘The plaintiff is a statutory officer and is therefore strictly confined to the functions and powers conferred upon her under the Act. She has no inherent power. But she may have powers which, although not expressly conferred, may be regarded as incidental to or consequential upon those which the legislature has expressly authorised.’71 66 67 68 69

70 71

Garvey v Ireland [1981] IR 75, 101–102. See In re Haughey [1971] IR 217. Miles v Wakefield Council [1985] 1 WLR 822, CA. Miles v Wakefield Council [1985] 1 WLR 822, CA at 830, quoting the judgment of Wood VC in Liverpool Corp v Wright 28 LJ Ch 868. Director of Consumer Affairs v Bank of Ireland [2003] 2 IR 217. Director of Consumer Affairs v Bank of Ireland [2003] 2 IR 217 at 238.

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[3.35]

Redmond on Dismissal Law

Valuable analysis on this point can also be gleaned from the extensive analysis conducted by the House of Lords on the nature of the office of Clerk of the Peace in Leconfield v Thornley.72 Leconfield arose out of allegations that new statutory duties conferred on the office of Clerk of the Peace had implicitly altered the traditional tenure for life which a holder of that office enjoyed. In the course of the judgment the court acknowledged the great importance and antiquity73 of the office. Moreover, the court assessed whether the office, given its inherent nature, could be impliedly or obliquely amended by statute: ‘The office of the clerk of the peace is a very ancient one. The mode of appointment to it, the conduct of the holder of it while in it, the discharge of the duties belonging to it, and the method by which the holder can be removed from it have, for many centuries, been treated as matters of such public interest that they have been dealt with by legislative enactments. The appellants do not dispute that under this body of legislation, and up to the passing of the Local Government Act of 1888 (51 & 52 Vict c 41), the office of clerk of the peace was held to be, and was, an office for life terminable against the will of the holder only on the ground of misbehaviour. But they contend that this latter statute has so altered the nature of the office and the rights belonging to it that the standing joint committee had jurisdiction and power to dismiss him from his office – remove him from it, as the operation was formerly styled – no matter how well conducted and efficient he might be, simply on giving him six months’ notice. In order to determine whether the provisions of the Act of 1888 are clear, direct and explicit enough to effect this revolution, one must refer to the early legislation to appreciate what was this official’s position before the latter date …74 Any other view of s. 83, sub-s 2, than that above expressed appears to involve the conclusion that it effected by implication a repeal of the above quoted sections of the Act of 1 Wm & Mary and of the Clerks of the Peace Removal Act, 1864, and it appears to me that so serious a matter as this is not the case for implied repeal, unless far clearer grounds for the implication exist than can be found here.’75

[3.35] In Glover v BLN Ltd76 Kenny J (in the High Court) described the characteristic features of an office: ‘it is created by Act of the National Parliament,77 charter, statutory regulation, articles of association of a company or of a body corporate formed under the authority of a statute, deed of trust, grant or by prescription, and ... the holder of it may be removed if the instrument creating the office authorises this. However, the person who holds it may have a contract under which he may be entitled to retain it for a fixed period: see the decision of the Supreme Court in O’Brien v Tipperary Board of Health [1938] IR 761 and in Carvill v Irish Industrial Bank Ltd [1968] IR 325. 72 73 74 75 76

77

Leconfield v Thornley [1926] AC 10. The office was referred to in Statute 24 c 1 of Edward III (1361 AD). Leconfield v Thornley [1926] AC 10, Lord Atkinson at 22. Leconfield v Thornley [1926] AC 10, Lord Sumner at 31. Glover v BLN Ltd [1973] IR 388. See too Carvill v Irish Industrial Bank Ltd [1968] IR 325; Stakelum v Canning [1976] IR 314. The holder of an office under an Act of the Oireachtas may be removed if the office itself is abolished under statute: Ó Cruadhlaoich v Minister for Finance (1934) 68 ILTR 174. See, too, Reilly v The King [1934] AC 176.

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[3.37]

This is [the plaintiff’s] position because he held the office of director of three of the companies at the date of his dismissal and had a contract under which he could retain these for five years. But the holder of an office does not hold it under a contract: he holds it under the terms of the instrument which created it and so, if he has not a contract, he cannot recover damages if he is removed.’78

The judge made no distinction between office-holders as the term has been traditionally understood and persons whose employment is, for example, regulated by statute or established under the articles of association of a company. Yet different principles of law may apply to each category. Kenny J’s definition is less helpful, it is suggested, than the classic exposition of ‘office-holder’ given by Rowlett J in Great Western Railway Co v Bater.79 To the latter, this is what the term connoted: ‘a subsisting, permanent, substantive position, which had an existence independent of the person who filled it, which went on and was filled by successive holders ... a substantive thing that existed apart from the holders.’

[3.36] In Glover, it was emphasised that as the holder of an office may hold such office under contract, the presence or absence of a contract cannot be the feature which distinguishes an office from employment so far as the principles of natural justice are concerned. It followed, according to Kenny J, that someone such as the plaintiff, who was appointed a company director under a fixed-term contract, could successfully invoke natural justice: ‘If his position under the contract resembles that of the holder of an office.’80

[3.37] In Ridge v Baldwin81 Lord Reid spoke about the kind of case which can resemble dismissal from an office: ‘where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them.’

Kenny J adopted this criterion. The plaintiff in Glover could not be validly dismissed for serious misconduct without its being the unanimous view of the directors of the holding company that the misconduct had a defined effect. He was therefore held to be the holder of an office. 78

79

80 81

Glover v BLN Ltd [1973] IR 388 at 414. Contrast 102 Social Club and Institute Ltd v Bickerton [1977] ICR 911, 919–20. Many statutes in Ireland refer to the power to appoint ‘officers and servants’. In Gunn v Bord an Choláiste Náisiúnta Ealaíne is Deartha [1990] 2 IR 168, this expression was considered by McCarthy J (SC). It appears in s 17 of the National College of Art and Design Act 1971. In the context the judge found that the term ‘officer’ must mean office-holder. But he did not explain why he then went on to conclude that the plaintiff, a member of the academic staff, was an office-holder of An Bord. Great Western Railway Co v Bater [1920] 3 KB 266 at 273–274; subsequently approved by the House of Lords, [1922] 2 AC 1; approved by the Court of Appeal in Edwards (Inspector of Taxes) v Clinch [1980] STC 438, [1980] 3 All ER 278. On Edwards see (1981) ILJ 52 (note). Glover v BLN Ltd [1973] IR 388 at 415 per Kenny J. Ridge v Baldwin [1964] AC 40 at 65.

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[3.38]

Redmond on Dismissal Law

[3.38] Kenny J was correct to point out that ‘office’ and ‘contract of employment’ are not mutually exclusive.82 But the only justification advanced for the Court’s decision was a rather dubious interpretation of obiter dicta in Ridge v Baldwin.83 It is not surprising that, on appeal, the Supreme Court chose a different route to arrive at its decision (in outcome the Court’s finding was similar to that in the lower court).

[3.39] Glover was considered by the High Court (Blayney J) in Murphy v The Minister for Social Welfare.84 The applicant, appointed an ordinary member of the Labour Court under the Industrial Relations Act 1946, s 19(4), paid insurance contributions under the Social Welfare Acts at the rate applicable to permanent and pensionable civil servants. He applied for a decision under the Social Welfare (Consolidation) Act 1981, s 111, as to the correct rate of contribution. The Deciding Officer found that as a member of the Labour Court the applicant was ‘not employed in employment which was insurable under the Social Welfare Acts’. The Department of Social Welfare later gave the grounds of the decision that ‘as members of a court which because of its role and functions is independent in the discharge of these functions, the Labour Court members were not employed under contracts of service’. An Appeals Officer upheld the decision of the Deciding Officer. The applicant, inter alia, sought a declaration that whilst employed in the Labour Court, he was in insurable employment for the purposes of the 1981 Act. While he conceded that he was the holder of an office, he submitted on the authority of Glover that the fact that he was the holder of an office did not exclude the possibility of his also having a contract with the Minister. [3.40] Blayney J did not agree. He cited the passage from Glover, para [3.35] above. From this it was clear that the plaintiff’s office in Glover did not have its origin in contract but in the articles of association of the company. The contract did not create the plaintiff’s office; it merely gave him a right to retain his office for five years. ‘It seems to me that Glover’s case is no authority for the proposition that the applicant appears to be putting forward, namely, that if he can establish that in addition to holding an office he also has a contract with the Minister, this would result in his employment being under a contract of service ... even if the applicant could establish some contract with the 82

83

84

The view does not stand in the light of decisions such as Miles v Wakefield BC [1987] IRLR 193; Barthorpe v Exeter Diocesan Board of Finance [1979] ICR 900 per Slynn J at 904 and it was decisively rejected in Edwards (Inspector of Taxes) v Clinch [1980] STC 438, [1980] 3 All ER 278 per Buckley LJ at 281 (All ER). More recently see Percy v Church of Scotland BD of National Mission [2006] IRLR 195. It does not follow that an office-holder who is ‘employed’ is so under a contract of employment. He or she may work under a contract to execute work or labour: Hugh-Jones v St John’s College, Cambridge [1979] ICR 848 per Slynn J at 852, or indeed under a contract sui generis. See Hitchcock v The Post Office [1980] IRLR 100. Further, there will be some office-holders who do not have a contractual relationship at all with the person or body which appoints them: cf Knight v AG [1979] ICR 194 per Slynn J at 199. Ridge v Baldwin [1964] AC 40 at 65 recognised later in Gunn v Bord an Choláiste Ealaíne is Deartha [1990] 2 IR 168, para [5.12]. Murphy v The Minister for Social Welfare [1987] IR 295. See Kenny v Irwin and Trustees of the Operative Plasterers & Allied Trades Society of Ireland [1991] ELR 152: assistant secretary of trade union found to hold office, and Kirwan v Technical Engineering and Electrical Union [2005] ELR 177 (HC).

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[3.42]

Minister, this would not in any way alter the fact that the origin of his employment was his appointment to a statutory office and not his entering into any contract of service.’85

[3.41] The concept of office-holder has considerably widened to include persons whose employment involves a special status. And even where an employee is not regarded as an office-holder, the duties and functions of his or her post may be so distinctive as to confer upon them a right not to have those duties and functions taken away.86 The class of status-holder has itself increased so much that the classification of occupations covered is a task matched in difficulty only by that of formulating principles to justify their special treatment. In the British case of Vine v National Dock Labour Board,87 for instance, Viscount Kilmuir LC, dealing with a registered dock worker, said that the situation was entirely different from the ordinary master and servant cases and referred to the docker’s status as a registered worker which he was entitled to have supported by statute. The employment concerned in another British case of considerable importance, Stevenson v United Road Association,88 was neither public nor coloured by statute. The plaintiff was a regional officer employed by a trade union. He was dismissed without a fair warning or time to prepare his case. The Court of Appeal held that his dismissal was void, placing much reliance on the fact that the executive committee’s power to dismiss on behalf of the union was circumscribed by the rules of the union and that dismissal would put an ex-officer in a bad light before his colleagues, union members. It would seem from this case that the courts may discover a status not only from the fact that an employer is a public or quasi-public body whose decisions are open to judicial scrutiny but also from the consequences a dismissal may have on a man’s reputation and career within an organisation, particularly a trade union.

D.

PERSONS WHOSE EMPLOYMENT IS REGULATED BY STATUTE

[3.42] There are two types of employment to consider. First, the vires of a particular body in regard to dismissal may be defined by statute. For example, a local government,89 local authority,90 or statutory body cannot employ or dismiss servants except under and within statutory authority. Their powers are derived from statute and must be exercised in accordance with the statute (and with the Constitution). This was illustrated in Whelan v Minister for Justice,91 a case concerning the dismissal of a probationer civil servant (prison officer). The conditions of appointment included a 85 86 87 88

89

90

91

Murphy v The Minister for Social Welfare [1987] IR 295 per Blayney J at 303. Earley v Health Service Executive (No 2) [2017] IECA 207 per Hogan J at [7] et seq. Vine v National Dock Labour Board [1956] 3 All ER 944 at 948, [1957] AC 500 at 508–509. Stevenson v United Road Association [1976] 3 All ER 29. See SA de Smith, Administrative Law, 230. Contrast Edwards (Inspector of Taxes) v Clinch [1980] STC 438, [1980] 3 All ER 278. And see Kenny and Kirwan, above n 76. See Breslin v Dublin Board of Assistance (1956) 90 ILTR 158; The State (Curtin) v Minister for Health [1953] IR 93; Gardiner v Kildare Co Council (1952) 86 ILTR 148. See O’Mahony v Arklow UDC and Minister for Local Government [1965] IR 710; Walsh v The Dublin Health Authority (1964) 98 ILTR 82; Flaherty v Minister for Local Government and Public Health [1941] IR 587. Whelan v Minister for Justice (29 June 1990) HC (Blayney J), noted (1991) ILT 2. See too Rajpal v Robinson, North Eastern Health Board and the Minister for Health and Children [2004] IEHC 149: (contd.../)

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[3.43]

Redmond on Dismissal Law

provision stating that he must serve a probationary period which would normally be of two years duration. The probationer was dismissed following the termination of the two years. Under the then relevant provisions in the Civil Service Regulation Act 1956, s 7, as amended, it was ‘during the civil servant’s probationary period’ that the Minister for Justice was required to be ‘satisfied that [a probationer] has failed to fulfil the conditions of probation attaching to his probationary position’. In the instant case, the Minister had based his determination on the probationer’s unsatisfactory sick absence record. The probationer sought judicial review of the Minister’s decision. Pursuant to an order for discovery, it emerged that the recommendation to terminate the probationer’s service had been endorsed by the Minister after the probationary period. Blayney J held that the Minister had acted ultra vires s 7 of the 1956 Act, as amended, because there was no evidence that, during the period of the applicant’s probationary period, the Minister was satisfied that the probationer had failed to fulfil his conditions of probation. Accordingly the termination was void and the applicant was entitled to a declaration that he remain an established civil servant, in the same position as any other probationer who had completed his probationary period and had not been found to be unsatisfactory. Blayney J noted that s 7 of the 1956 Act, as amended, does not in terms require that the termination occur during the probationary period, provided the Minister reached his decision within the period of probation. The Civil Service Regulations (Amendment) Act 2005 inserted a new s 5A dealing with civil servants on probationary contract. A person may initially be appointed to be an established civil servant on the basis of a probationary contract. Where a civil servant completes the probationary period ‘to the satisfaction of the appropriate authority’, that civil servant shall be appointed as an established civil servant. Where he does not so complete it, he may be dismissed in accordance with the Principal Act.

[3.43] In the second type of employment to consider, dismissal may be in breach of a prohibition upon termination of employment, imposed by statute or by regulation.92 This type of case is distinguishable from the first as there may be a statutory prohibition upon dismissal in cases of private employment where the employer is not a statutory authority.93 [3.44] In Heneghan v The Western Regional Fisheries Board,94 the plaintiff employee held statutory office with the defendant board. His terms of employment provided that 91

92 93 94

(\...contd) committee appointed by Minister to inquire into proposal to remove applicant found not to have been established in accordance with requirements of ss 22–24 of Health Act 1970, nor were regulations made thereunder complied with, such that the committee therefore had no proper jurisdictional basis for its work. Regarding vires in relation to appointment of person to post in regional technical college under Regional Technical Colleges Act 1992, ss 11(1)(a) and 1(b): Minister for Education v Regional Technical College, Letterkenny and Colin Morrow (notice party) [1995] 1 ILRM 438. Both types of statutory relation may be present. Cf Taylor v Furness Withy Ltd (1969) 6 KIR 488. Heneghan v The Western Regional Fisheries Board [1986] ILRM 225. The plaintiff also succeeded on the basis that there had been a breach of natural justice because the regional manager, a party to the dispute, had acted as prosecutor and judge. Heneghan was distinguished by the High Court (O’Keeffe J) in Hand v Ludlow [2010] IEHC 58, a decision analysed in Ch 9.

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[3.45]

he could not be dismissed without full investigation by the board. The board delegated its functions of ‘deployment and control of staff’ to its regional manager. Following a dispute with the regional manager, the latter suspended, then dismissed, the employee. The board refused to intervene. The relevant provision in the employee’s contract read: ‘Employment will be terminated without notice because of misconduct. Notification of the reasons for proposed dismissal shall be conveyed to the officer who will be given the opportunity to state his case. Except in the case of gross misconduct warranting instant dismissal, no dismissal shall be effected until a full investigation has been carried out by the board. The officer may be suspended without pay pending such investigation. The officer may appeal against a decision to dismiss him. Provided the board and officer agree independent arbitration may be sought in the case of a dispute.’

The High Court (Carroll J) accorded ‘their ordinary meaning’ to these words. They referred to the board ‘and not a person delegated by the board’. The regional manager had been delegated responsibility for ‘deployment and control’ of staff. According to the judge: ‘I doubt very much that the ordinary meaning of “control” includes power to dismiss. In the context of employer/employee relations, I think ‘deployment and control’ mean that the person in authority may tell the employee where he is to work and how the work is to be carried out as distinct from an independent contractor who is not subject to control in the manner in which the work is carried out.’95

Accordingly, Carroll J granted the plaintiff’s application for a declaration that his dismissal was void. Inter alia, his contract required an investigation by the board itself, not a delegate, before he could be dismissed.

[3.45] Garda96 and army officers97 are relatively straightforward examples of officeholders whose employment is regulated by statute. Persons working in the civil service traditionally enjoyed considerable security of tenure. It used to be unsettled in law whether a civil servant was an office-holder or had a contract of employment. In Ireland the predominant view, namely that civil servants are ‘office-holders’, was endorsed by 95 96

97

Heneghan v The Western Regional Fisheries Board [1986] ILRM 225 per Carroll J at 228. See Lennon v Commissioner of An Garda Síochána, and others [2003] IEHC 127; Stanley v Garda Síochána, Complaints Board [2000] 2 ILRM 121; McNeill v Commissioner of An Garda Síochána, Ireland and the AG [1995] 1 ILRM 320; O’Shea v Commissioner of An Garda Síochána [1993] ELR 229; Stroker v Doherty [1989] IR 440; The State (Thomas Jordan) v The Commissioner of An Garda Síochána and The Minister for Justice [1987] ILRM 107; McHugh v The Commissioner of An Garda Síochána, P McLoughlin, Ireland and the AG [1987] ILRM 181; Garvey v Ireland [1981] IR 75; Hynes v Garvey [1978] IR 174; Burke v Garvey [1979] ILRM 232; Hogan v Minister for Justice, Garvey (8 September 1976) HC; Fitzpatrick v Wymes (17 May 1973) HC. On the Garda Síochána Act 2005, see Conway, ‘An Garda Síochána – Breaking Down the Thick Blue Wall?’ (2005) 23 ILT 297. See Donnelly v Minister for Defence (February 1977) HC; Gleeson v Minister for Defence [1976] IR 280; Farrell v Minister for Defence (10 July 1984) HC (Murphy J); Scariff v Taylor [1996] 2 ILRM 278. See Murphy, ‘Military Courts – Martial and the Provision of a Right of Appeal to Member of the Defence Forces’ (1992) 2(2) ICLJ 94.

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[3.46]

Redmond on Dismissal Law

the High Court (Costello P) in Gilheany and Meehan v Revenue Commissioners.98 The Principal Act governing the employment of civil servants is the Civil Service Regulation Act 1956, s 5 of which states that ‘established’ (ie permanent) civil servants: ‘hold office at the will and pleasure of the Government’.

[3.46] Section 7 of the Civil Service Regulation (Amendment) Act 2005 (the amending Act) amends s 5 of the Act of 1956. The amended section provides, after restating the principle that ‘every established civil servant shall hold office at the will and pleasure of the Government’, that the powers and functions of the Government may be exercised where the Government so authorises by a relevant Minister or by ‘the appropriate authority’, depending on the category of civil servants concerned. The quid pro quo for what amounts to an encroachment on this category of worker’s hitherto security of tenure was the provision of a remedy under unfair dismissals legislation, see para [23.54] below. [3.47] Section 6 of the amending Act refers to ‘unestablished’ or temporary officers and states that: [The] appropriate authority may terminate the services of a civil servant who is not an established civil servant.

Following the new Act civil servants up to Assistant Principal level may be dismissed by the Secretary General. At Principal Officer level and above they may be dismissed by a Minister on the recommendation of the Secretary General. Only civil servants appointed directly by Government will continue to be dismissed by the Government.

[3.48] Civil servants hold office at the will and pleasure of the Government. Their legal status is that they hold office by virtue of the exercise of statutory powers. This welcome clarification emerged in Gilheany and Meehan and is unaffected by the amending Act. The applicants in Gilheany and Meehan were serving in the respondents’ office at the rank of executive officer. Internal circulars were issued by the employer inviting applications from staff to fill vacancies at higher executive officer level (the first circulars). The two applicants were eligible and applied for the positions. Neither was immediately successful but both received letters confirming that they had been placed on a panel of successful candidates for future promotion. Later the employer decided not to fill the vacancies by promotion of staff from a lower grade but rather by lateral transfer of staff already at higher executive officer rank. A second circular issued which invited applications from higher executive officers. This excluded the applicants from applying. At the time they were both next in line for promotion from the original panels. They claimed, inter alia, that they had contractual rights to the promotional appointments and that they had rights arising from their conditions of service.

[3.49] Their claims were rejected by the High Court. Costello P held that in the absence of a clear intention to enter into contracts of employment with the applicants on their 98

Gilheany and Meehan v Revenue Commissioners [1996] ELR 25. What constitutes employment in the civil service of the Government was considered by the Supreme Court in McLoughlin v The Minister for Social Welfare and Patrick J Byrne [1958] IR 1, and endorsed in Murphy v The Minister for Social Welfare [1987] IR 295 (Blayney J). See also on the Civil Service Regulation (Amendment) Act 2005, Redmond, ‘Accountability and Dismissal in the Civil Service’ (2005) 2 IELJ 114.

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[3.50]

recruitment, their legal status was that of office-holders. The judge referred (at 36) to limits which are placed by law on contractual terms to which the Minister could agree: ‘Firstly, the Minister could not agree to appoint an officer for a fixed term of years because this would be prohibited by section 5 of the 1956 Act which provides that civil servants hold office at the will of the government. Secondly, he could not enter into a legally binding agreement as to the future terms and conditions on which the civil servants would hold office because to do so would fetter the discretionary power conferred by law on the Minister by section 17 of the 1956 Act to vary those terms and conditions.’99

But: ‘... it would be wrong to assume that because no contractual relationship arises from the appointment of a person as an officer in the civil service that no rights and obligations enforceable in a court of law exist. It seems to me that when a statute confers a power on a minister to grant a benefit to some person and that power is exercised it also confers a corresponding right on that person to receive the benefit. This means that there is a statutory right which the courts will enforce to the benefits contained in the terms and conditions of appointment of a civil servant (including, for example, those relating to remuneration) as well as to those benefits arising from the terms and conditions relating to promotion contained in administrative acts, until such time as the right is cancelled or varied by the valid exercise of a power in that behalf contained in section 17.’100

[3.50] Section 17(1) of the Civil Service Regulation Act 1956 accords the Minister for Finance responsibility for the following: (a) (b) (c)

the regulation and control of the civil service; the classification, re-classification, numbers and remuneration of civil servants; and the fixing of: (i)

the terms and conditions of service of civil servants, and

(ii)

the conditions governing the promotion of civil servants.

Subsection (2) empowers the Minister for the purposes of subs (1) to make such arrangements as he thinks fit and to cancel or vary such arrangements. Gilheany and Meehan illustrates how far-reaching is the potential impact of s 17 on the terms and conditions of civil servants. In applying the Unfair Dismissals Act to civil servants, ‘contract of employment’ means ‘such arrangements as are made by the Minister for Finance under section 17 of the Civil Service Regulation Act 1956’. Does the contract of employment mean only such arrangements as have been made by the Minister or does it imply also a power on the part of the Minister to cancel or vary them? If the latter, as is more likely, it can confidently be predicted that the decision of the Court of Appeal in Earley v Health Service Executive (No 2),101 analysed in Chapter 10, will be of considerable significance in placing limits on the exercise of such a power.

99 100 101

Gilheany and Meehan v Revenue Commissioners [1996] ELR 25 per Costello P at 36. Gilheany and Meehan v Revenue Commissioners [1996] ELR 25 per Costello P at 38. Earley v Health Service Executive (No 2) [2017] IECA 207.

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Chapter 4

Termination with or without Notice [4.01] Lawful dismissal is dismissal in accordance with an employee’s contract of employment. Dismissal in breach of contract may disentitle an employer from relying on restrictive covenants following termination.1 Dismissal must be effected by the person or body specified in the contract as having the power to dismiss.2 A dismissal will be wrongful if the employer dismisses the employee without giving him the notice to which he is entitled or in the case of a fixed-term contract with no notice provision, without allowing him or her to see out the fixed term. Crucially, it must be borne in mind that ‘[a]n employee on notice is still an employee, is still bound by and entitled to benefit from the relevant provisions of his contract of service’.3

[4.02] Most commonly, lawful dismissal occurs where an employee is given due notice of termination – although what constitutes due notice is not always free of difficulty. An employee may also be summarily dismissed in accordance with his contract of employment. Both forms of lawful dismissal are considered here. Most (though not all) of what follows in this chapter below is exclusively referable to employees as distinct from office-holders. Chapter 5 discusses the interaction between an express term as to notice in the contract of employment and the implied obligation of mutual trust and confidence regarding the manner in which the express term is exercised.

A.

DUE NOTICE OF TERMINATION

(1) At common law [4.03] The contract of employment is subject to an implied term allowing it to be terminated by the unilateral act of giving notice. If an employer gives notice of the length which the contract requires, or the minimum statutory notice which the law requires, if that is greater (see below), the contract is lawfully terminated.4 1 2 3 4

See para [16.114]. See Heneghan v Western Regional Fisheries Board [1986] ILRM 225; and para [3.44]. Watson v Student Loans Company Ltd [2002] ScotCS 279 at para 12 per TG Coutts QC. See an insightful commentary by Ford, ‘Rethinking the Notice Rule’ (1998) 27 ILJ 220. And see the High Court (O’Donovan J) in Doyle v Grangeford Precast Concrete Ltd [1998] ELR 260. The phrase ‘you may be dismissed with immediate effect’ in a contract does not destroy all other contractual rights including the right to notice: T & K Home Improvements Ltd v Skilton [2000] IRLR 595. It means an employee does not have the right to continue to work or be at employer’s premises.

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[4.04]

Redmond on Dismissal Law

Generally, in the absence of an express term in the contract,5 or a statutory provision concerning dismissal6 or custom and practice,7 or where there is no written contract, the law requires that reasonable notice be given. The calculation of the ‘reasonable’ notice period has rightly been described as being ‘far from scientific’.8 Notice is not required where the contract is frustrated, although it is sometimes erroneously thought to be necessary.

[4.04] It is not always easy to determine whether there has been such a change in circumstances as to frustrate the contract. Indeed, a cogent argument can be made to the effect that the doctrine of frustration as imported from commercial law sits uncomfortably with the contract of employment. Thus, the UK EAT has said: ‘Most contracts of employment are terminable at short notice and are far removed from the type of commercial contract in the context of which the doctrine of frustration was mainly developed. As a matter of everyday practical reality employers and employees alike expect to deal with issues of disability, sickness and absence for other reasons – including imprisonment – within the framework of the employment relationship. The short notice period enables them to do so: even quite unexpected turns of event will have limited financial consequences for an employer. Lawyers are familiar with the concept of frustration because it is taught as part of contract law. But there is no general familiarity with it in industry: the lay members of this Appeal Tribunal had scarcely encountered it in their many years of experience.’9 5 6

7

8

9

Flynn v GNR Co (Ire) Ltd (1955) 89 ILTR 46 at 53. Eg Cox v ESB [1943] IR 94 at 109, 231 and 233 (local government office); McLoughlin v GSR Co (1944) 78 ILTR 74 (agreed scheme as to conditions of service of railway employees pursuant to Railways Act 1924, s 55); Gardiner v Kildare Co Council (1952) 86 ILTR 148 (local government office); The State (Curtin) v Minister for Health [1953] IR 93 (local government office); Flynn v GNR Co (Ire) Ltd (1955) 89 ILTR 46 (‘excepted person’ for purposes of Unemployment Insurance Acts 1920–1921); Breslin v Dublin Board of Assistance (1956) 90 ILTR 158 (local government office); O’Mahony v Arklow UDC and Minister for Local Government [1965] IR 710 (local government office). Three cases involving the newspaper world and custom as to notice are O’Reilly v The Irish Press (1937) 71 ILTR 194 (chief sub-editor of daily paper failed to prove usage or custom entitling him to six months’ notice); Ó Conaill v The Gaelic Echo Ltd (1958) 92 ILTR 156 (member of editorial staff of monthly magazine held entitled to at least one month’s notice) and Carey v Independent Newspapers (Ireland) Ltd [2004] 3 IR 52 (notice of six months implied). Contrast the British case of Grundy v Sun Printing and Publishing Association (1916) 33 TLR 77. See, further, Nicoll v Greaves (1864) 17 CB (NS) 27 at 84; Foxall v International Land Credit Co (1867) 16 LT 637; George v Davies [1911] 2 KB 445; George Edwardes (Daly’s Theatre) Ltd v Comber (1926) 42 TLR 247; Davson v France (1959) 109 LJ 526. Cabrelli, ‘Duration, Lawful Termination and Frustration of the Employment Contract’ in Freedland (ed), The Contract of Employment (OUP, 2016) ch 24 at 521. For comparative analysis see Irving, ‘Australian and Canadian approaches to the assessment of the length of reasonable notice’ (2015) 28 Australian Journal of Labour Law 159. Warner v Armfield Retail & Leisure Ltd) [2013] UKEAT 0376_12_0810 at para 42). See also Burns v Santander UK plc [2011] IRLR 639.

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[4.04]

The High Court (Murphy J) declined to find a contract frustrated in Zuphen v Kelly Technical Services10 where an agency had recruited employees from overseas on the assurance that work would be provided. When the work did not materialise, the plaintiffs’ contracts were terminated. The agency’s plea of frustration was rejected as the contract had not become entirely incapable of being performed. If legislation renders further performance of a contract impossible, the contract will be discharged.11 But the coastline is far less obvious in cases involving illness or incapacity. If it is permanent, illness or incapacity will frustrate the contract.12 If of so prolonged a nature as to prevent the employer from getting substantially what it has bargained for, it is most probable that illness or incapacity will have the same effect. From case law, it seems illness or incapacity will determine the contract of employment if it is of such a nature as to frustrate the business object of the engagement. In Flynn v Great Northern Railway Co (Ire) Ltd,13 Budd J in the High Court recited various British authorities such as Poussard v Spiers14 and Storey v Fulham Steel Work Co,15 which illustrate the difficulty of determining whether a contract has been frustrated or not. In the latter, Alverstone LJ seemed to indicate the necessity of the master’s giving notice before the contract is terminated. (This was further implied, although it was not an issue, in Price v Guest Keen and Nettlefolds.16) In Flynn’s case, Budd J took the view that notice of termination was not necessary. He cited with approval Scrutton LJ in Warburton v Co-Operative Wholesale Society Ltd17 where he said that, under decided cases, a servant incapacitated by illness and in the absence of notice does not cease to be employed unless the illness is such as to interfere seriously with or to frustrate the business purpose of the contract. In Byrne v Limerick Steamship Co,18 Overend J was of the same opinion. He described frustration as operating automatically to determine the entire contract; it did not depend upon the volition of the parties nor even upon their knowledge. Accordingly, in Flynn’s case, Budd J asserted that: ‘If frustration is the test, there does not in principle seem to be any reason why a Master should have to give notice to terminate a contract, already frustrated, and my view therefore is that notice is unnecessary.’ In the case before him, the employee was permanently incapacitated to perform his duties as a fireman on the footplate. His incapacity was held to frustrate the business object of the engagement. The notable development of statutory protections against discriminatory dismissal on the grounds of disability pursuant to Employment Equality Acts 1998–2015 also have to be considered when assessing the potential applicability of the doctrine of frustration: see Warner v Armfield Retail & Leisure Ltd.19 10 11 12 13 14 15 16 17 18 19

Zuphen v Kelly Technical Services [2000] ELR 277. Ó Cruadhlaoich v Minister for Finance (1934) 68 ILTR 174. Boast v Firth (1868) LR 4CP 1. Flynn v Great Northern Railway Co (Ire) Ltd (1955) 89 ILTR 46. Poussard v Spiers (1816) 1 QBD 410 Storey v Fulham Steel Work Co (1907) 24 TLR 89. Price v Guest Keen and Nettlefolds [1918] AC 760. Warburton v Co-Operative Wholesale Society Ltd [1917] 1 KB 663. Byrne v Limerick Steamship Co [1946] IR 138. Warner v Armfield Retail & Leisure Ltd) [2013] UKEAT 0376_12_0810.

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[4.05]

Redmond on Dismissal Law

[4.05] The principle of termination by reasonable notice was first accepted in Beeston v Collyer,20 but the basic concept was of a contract impliedly for a year.21 With time, examples of an implied yearly hiring declined (see Chapter 1) and the notion of an implied term as to notice to terminate gained ground.22 In De Stempel v Dunkels,23 Greer LJ used the ordinary contractual rules for the implication of terms to conclude that the parties to a contract would not have intended otherwise than that the contract should be terminable by notice. But the notice must be reasonable and: ‘The question, what is reasonable notice, depends upon the capacity in which the employee is engaged, the general standing in the community of the class of persons, having regard to the profession to which the employee belongs, the probable facility or difficulty the employee would have in procuring other employment in the case of dismissal, having regard to the demand for persons of that profession, and the general character of the services which the engagement contemplates.’24

[4.06] Earlier cases held that the period of notice should be the same as that governing the payment of wages25 but they were largely concerned with avoidance of the presumption of a yearly hiring. There is no authority to support the general proposition of a presumption that the period of notice is the same as that governing the payment of wages. Today the matter depends upon status more than anything else. For instance, a year’s notice has been held appropriate for the managing director of a company.26 In 20 21

22

23

24 25 26

Beeston v Collyer (1827) 2 C & P 607, 4 Bing 309. Early cases dealt with the question of whether the contract automatically terminated at the end of that year or whether notice in advance of the date of expiry was required. Other decisions recognised that there might be special implied exceptions to the presumption of a yearly hiring, eg Green v Wright (1876) 1 CPD 591. In Fairman v Oakford (1860) 5 H & N 635, Pollock CB expressed the opinion, obiter, that the indefinite hiring of a clerk was not impliedly for a year but was determinable by three months’ notice. So, in the 1870s, a majority of the Scottish Court of Session Inner House Second Division in Morrisont v School Board of Abernethy [1876] SLR 13-611 agreed on a three-month notice period being reasonable in the context of a schoolmaster. By 1910, Lord Alverstone CJ said: ‘The general principle applicable to contracts of service is that, in the absence of misconduct or of grounds specified in the contract, the engagement can only be terminated after reasonable notice’: Re African Association Ltd and Allen [1910] 1 KB 396. De Stempel v Dunkels [1938] 1 All ER 238; see, too, Fisher v WB Dick & Co Ltd [1938] 4 All ER 467. Speakman v Calgary (City) (1908) 9 WLR 264 at 265. Davis v Marshall (1861) 4 LT 216, 217; Payzu v Hannaford [1918] 2 KB 348. Carvill v Irish Industrial Bank Ltd [1968] IR 325; and see O’Keeffe J’s comments at 344. See also Lyons v MF Kent & Co (International) Ltd (in liq) [1996] ELR 103 where twelve months’ notice was awarded to the plaintiff on the basis of: his status and level of responsibility; his professional qualification (chartered accountant); and the requirement that he work abroad. In Lyons the High Court considered the doctrine of yearly living as obsolete, or if not, as easily rebuttable. The reasoning in Lyons was followed by the High Court (Laffoy J) in Berber v Dunnes Stores Ltd [2006] IEHC 327 in implying a three-month notice period into the plaintiff’s contract of employment. (Whilst Berber was overturned by the Supreme Court ([2009] IESC 10, [2009] ELR 61), this does not affect the analysis of Lyons provided by Laffoy J.)

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[4.07]

Tierney v Irish Meat Packers27 the plaintiff was group credit controller in an international company and his work extended to other companies in the group. His employment was terminated after nine years for reasons of redundancy. He received six weeks’ notice. Lardner J (High Court) regarded six weeks as not reasonable notice for termination of the particular employment. He held that six months was appropriate and reasonable in the circumstances. The reasonableness of the notice had to be considered in relation to the period which would be reasonable to enable a person to find other employment. This did not mean that the court had to consider the state of the market at the time but what would be reasonable in a general sense to enable a person who occupied a responsible position in the Financial Controller and Accountancy area of the company.

[4.07] The test of what constitutes reasonable notice was explored by Gilligan J in Carey v Independent Newspapers (Ireland) Ltd.28 Gilligan J held that a reasonable notice period was six months. It is instructive to cite at length the survey of the case law given by the High Court in this case concerning the factors to be considered in determining a notice period. Gilligan J summarised the legal authorities as follows: ‘A good illustration of the relevance of the responsibilities of a position to the question of entitlement to reasonable notice is O’Reilly v Irish Press.29 The plaintiff was the chief subeditor of the Irish Press. He failed to prove a wage custom entitling him to six months’ notice, but the court gave him six months based on the responsibilities attaching to his role: the Court noted that on the evidence before it the success or failure of a newspaper depends to a great extent upon the competence, judgment and the taste of the chief subeditor. The plaintiff had 15 subeditors below him and in addition to being chief subeditor, the plaintiff was the night editor. It seems proof of a custom regarding notice periods in a particular industry or sector is a significant factor for the court to weigh in deciding the matter and will appreciably influence the court’s thought processes: a reading of some of the cases on reasonable notice suggests that customs prevalent in the industry were of central significance to the court’s decision. However, the customs of a particular industry, if such are proved to exist upon the evidence, will not be decisive of the question of what amounts to reasonable notice: it is but one of the factors identified in Warren v Superdrug Markets Ltd to be taken into account in assessing the circumstances of the plaintiff’s employment and the notice period that such circumstances warrant. One case where a custom of the particular industry proved significant in the court’s decision as to reasonable notice is O’Connell v The Gaelic Echo Ltd.30 A member of the editorial staff of a monthly magazine was held to be entitled to at least one month’s notice and evidence was given on behalf of the plaintiff by a representative of the NUJ that the customary period for notice in the absence of express agreement in the Dublin area was one month for reporters, three months for sub-editors and six months for chief sub-editor. Another case emphasising the importance of custom is George Edwardes (Daly’s Theatre) Ltd v Comber.31 In that case, an actor had an option agreement with Daly’s Theatre 27 28 29 30 31

Tierney v Irish Meat Packers (1989) ILT 5. Carey v Independent Newspapers (Ireland) Ltd [2004] 3 IR 52. O’Reilly v Irish Press (1937) 71 ILTR 194. O’Connell v The Gaelic Echo Ltd (1958) 92 ILTR 156. George Edwardes (Daly’s Theatre) Ltd v Comber (1926) 42 TLR 247.

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[4.08]

Redmond on Dismissal Law

whereby the theatre could require the actor to play the part of the Ambassador in the play Katja the Dancer in a West End theatre by giving the actor two weeks’ notice before the end of the season. The option was duly exercised, and the concluded agreement contained a clause that the actor would not perform for any other company or production for the run of the play. The actor subsequently tried to take up an acting engagement with another company before the end of the play’s run. An application by the plaintiff theatre company to restrain the defendant actor from taking this offer up was successful: the court rejected a submission that the agreement was terminable by fourteen days’ notice. Had the agreement been indefinite, this submission would have been accepted: however, the court accepted evidence that “so well known and established is the custom in the profession that a mere engagement of a person to play a part in a certain play in London or the provinces constitutes a contract for such engagement for the run of the play in London or the provinces constitutes a contract for such engagement for the run of the play in London or for the tour, as the case may be, and there is no power on either side to determine the contract during the said run.” Another such case is Grundy v Sun Printing and Publishing Association,32 where the court accepted that the custom for a newspaper editor was a twelve-month notice period and that a sub-editor was entitled to a six-month notice period and determined the period of reasonable notice these persons were entitled to accordingly. Yet another example is Fox-Bourne v Vernon and Co33 where a six-month notice period for an editor was found to be reasonable by reference to the established custom for editors: in the same vein, see also Chamberlain v Bennett34 (where a subeditor of newspaper was held to be entitled to six months based on evidence of a custom).’35

[4.08] The decision of the High Court (Hanna J) in McCarthy v BREEO Foods Limited36 is also instructive in this regard. In that case the High Court was asked to determine what a reasonable notice period was for a managing director whose seniority and hard work over many years was expressly accepted by the Court. The Court again concluded that the appropriate period was six months. Hanna J said: ‘I am satisfied from the evidence both of the plaintiff and Mr Kennedy that persons below the level of the plaintiff or at least some of them were entitled to six months notice. I am equally satisfied that the twelve month period of notice negotiated for Mr Henchy by himself was a one-off. In all the circumstances, relying on such evidence as we have, I am of the view that a six month period of notice would be reasonable.’37

It is perhaps noteworthy that Hanna J refers to a period of one year’s notice which was negotiated specifically by another individual as being a ‘once-off’ and not the norm.

[4.09] Whether notice should terminate at a particular time was discussed in McDonnell v Minister for Education,38 where a teacher was given three months’ notice to terminate at the end of July. O’Byrne J took the view that the only reasonable time at which the particular employment should terminate was at the end of the school year; any 32 33 34 35 36 37 38

Grundy v Sun Printing and Publishing Association (1916) 33 TLR 77. Fox-Bourne v Vernon and Co (1894) 10 TLR 647. Chamberlain v Bennett (1892) 8 TLR 234. Carey v Independent Newspapers (Ireland) Ltd [2004] 3 IR 52 per Gilligan J at 78. McCarthy v BREEO Foods Limited [2009] IEHC 254, [2010] ELR 53. Per Hanna J (McCarthy v BREEO Foods Limited [2010] ELR 53 at 62). McDonnell v Minister for Education [1940] IR 316: See ‘Notice of Termination of a Contract of Service’ (1941) 75 ILT & SJ 59. See, also, Ryan v Jenkinson (1855) 25 LJ (NS) QB 11.

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[4.10]

notice of less than six months terminating at the end of the school year would be neither reasonable nor sufficient to terminate the plaintiff’s employment. On appeal the Supreme Court did not disturb the trial judge’s finding in relation to length of notice but the court disagreed that notice should terminate at any particular time other than that which may be express or implied in the contract of employment.

(2) Contracts apparently incapable of termination by notice [4.10] Parties to a contract of employment may make a contract which is apparently incapable of termination by notice.39 In McClelland v Northern Ireland General Health Services Board40 applications were invited for posts which ‘subject to a probationary period ... will be permanent and pensionable’. The House of Lords left no doubt that the word ‘permanent’ did not preclude the right to give notice. Rather, it indicated the attachment of fringe benefits, such as pension rights, which normally accompany ‘permanence’. In Walsh v The Dublin Health Board,41 Budd J discussed the meaning of ‘permanence’. In the case of a contract of service, a person may be said to be ‘permanently’ employed when he or she is employed for an indefinite period on the regular staff of a particular employer, as distinct from persons taken on casually for a temporary or defined period. That did not necessarily mean that such a person has a contract of employment for life. On the other hand, a person may be given ‘permanent’ and pensionable employment where, under his contract, he holds employment for life or for life subject to the right of an employer to dismiss him for misconduct, neglect of duty or unfitness. This may mean employment is to last until the employee reaches full pensionable age, subject to the rights of the employer just mentioned. 39

40

41

A case in point is Salt v Power Plant Co Ltd [1936] 3 All ER 322, in which the engagement was stated to be for a minimum of three years, subject to a right of cancellation in the event of wilful default. Thereafter there was to be a right to terminate by six months’ notice prior to the ensuing 31 December, and in the absence of such notice the engagement was to be ‘permanent’. Notice to terminate the contract was eventually given 11 years after its commencement but it was held that the provision for permanency after 4 years meant that the contract was for the life of the employee, subject only to an express provision that the performance of the employee’s duties should be to the satisfaction of the directors. McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594. See a note on this case in 73 LQR 281. McClelland was considered by Costello J in Grehan v The North Eastern Health Board [1989] IR 422 where the court declined to imply a term into a contract of employment permitting termination on notice because the express terms of the contract regarding termination were clear and unambiguous, the implication was not required to give business efficacy to the contract and the implication of such a term would be inconsistent with the negotiating history of the contract. And see O’Rourke v Caldwell [1998] ELR 287: court refused to imply term into a fixed-term contract of employment permitting termination on one week’s notice because the facts were insufficient to warrant such an implication. Walsh v The Dublin Health Board 98 ILTR 82 at 86. On the presumption of permanence see Gardiner v Kildare Co Council (1952) ILTR 148; Hanratty v Minister for Industry and Commerce [1931] IR 189; McMahon v Leonard 6 HLC 870; Hayes v Dexter 13 ICLR 22; contrast Breslin v Dublin Board of Assistance (1956) 90 ILTR 158.

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[4.11]

Redmond on Dismissal Law

‘As to what is meant, and should be implied as being in the contemplation of the parties, depends upon the true construction of the whole contract viewed in the light of the surrounding circumstances and all relevant matters.’42

Budd J expressly followed the reasoning of the House of Lords in McClelland’s case that an offer of permanent and pensionable employment without more should be properly construed as a hiring for an indefinite period terminable on reasonable notice.43

[4.11] His judgment was followed with approval in Dooley v Great Southern Hotel44 where it was stated in the plaintiff’s contract that it was intended that employment should extend up to normal retiring date, ie age 65, and that if either party should wish for good and sufficient reason to terminate the employment, then the applicable period of notice would be six months.

[4.12] The leading authority in this jurisdiction is now Sheehy v Ryan.45 The plaintiff alleged that she was entitled to employment until age 65 as, according to her evidence, she had been told that she would be moving to a secure job that was ‘permanent and pensionable’. This she understood to mean a job for life. Citing with approval earlier decisions including McClelland, Walsh and Dooley, the High Court (Carroll J) accepted that the plaintiff had been offered a permanent and pensionable job. However: ‘There was no express or implied condition or promise that it would be [a job] for life or until age 65.’

In the absence of a special condition, the plaintiff could be dismissed on getting reasonable notice. The Supreme Court disallowed the appeal. The judgment of the Court was delivered by Geoghegan J, who was satisfied that the general rule applied that the contract could be terminated on reasonable notice.46

The anti-avoidance cases [4.13] Running in parallel with this view are authorities which adopt a different view of when and how employers may exercise their contractual discretions. See Aspden v Webbs Poultry47 and Adin v Sedco Forex International Resources Ltd48 in both of which the courts in England and Wales and Scotland respectively found that employers could not lawfully terminate the contracts of employees who were off on long-term sickness when this would have the effect of depriving them of their sickness benefit entitlements under health insurance schemes, noted here.49 Since Aspden and Adin see similarly 42

43 44 45 46 47 48 49

Walsh v The Dublin Health Board 98 ILTR 82 at 86. See Carr v City of Limerick VEC [2000] ELR 57. Murphy J (HC) applied Walsh: contract was stated to be ‘whole-time, permanent and pensionable’ but nonetheless was terminable on three months’ notice. It was held to be unrealistic for the plaintiff to argue that she was to be employed for the rest of her life. The Supreme Court overturned the decision on different grounds. Walsh v The Dublin Health Board 98 ILTR 82 at 88. Dooley v Great Southern Hotel [2001] ELR 340. Sheehy v Ryan and Moriarty [2008] 4 IR 258. Sheehy v Ryan and Moriarty [2008] 4 IR 258 at 267. Aspden v Webbs Poultry [1996] IRLR 521. Adin v Sedco Forex International Resources Ltd [1997] IRLR 280. Ford, ‘Rethinking the Notice Rule’ (1998) 27 ILJ 220.

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Termination with or without Notice

[4.17]

Bainbridge v Circuit Foil UK Ltd50 and Brompton v AOC International Ltd,51 where Staughton LJ expressed the view, obiter, that there was a ‘good deal to be said’ for the view that the employee could not be dismissed save for cause after becoming entitled to receive benefits under a long term sick scheme. In Hill v General Accident and Fire52 an employee who was subject to a sick pay scheme was dismissed by reason of redundancy just four months before he would have become entitled to a long-term sickness provision. Lord Hamilton, in the Outer House of the Court of Session, accepted that it would not be open to the employer to dismiss the employee for a specious or arbitrary reason or no reason at all, or for the specific purpose of defeating his sick pay entitlement. To permit such dismissals would be to subvert the scheme.

[4.14] The English High Court followed these cases in Vilella v MFI Furniture Centre Ltd.53 This has become known as an implied ‘anti-avoidance’ term. In Jenvey v Australian Broadcasting Corporation54 Elias J found the implied term that, where a contract contained enhanced redundancy benefits, in the event of impending redundancy the employer could not dismiss for another reason simply in order to avoid paying the employee his contractual entitlement to the enhanced redundancy benefit. This and other authorities were discussed by the English High Court in Takacs v Barclays Services Jersey Ltd,55 a case dealing with anti-avoidance in the context of discretionary bonuses.

[4.15] As Moore-Bick J observed in Earl v Cantor Fitzgerald:56 ‘There is a growing body of authority to the effect that when an employee’s contract of employment incorporates a permanent health scheme of the kind which existed in this case it is an implied term of the contract that once the employee has become entitled to the benefits due under the scheme the employer will not dismiss him simply on the grounds of his continuing incapacity to work.’

[4.16] The foundational authority in this regard is Aspden v Webbs Poultry and Meat Group (Holdings) Limited,57 in which Sedley J in the High Court of England and Wales held that there should be a term implied into an employee’s contract of employment as part of the duty of trust and confidence owed by the employer to the employee to reflect the obvious intention of the parties, which was that the employer would not (save on the grounds of the employee’s gross misconduct) terminate the employee’s contract of employment, where he was in receipt of PHI benefits, while the employee was incapacitated from work, where the effect of such termination would be to disqualify the employee from his sickness benefits under the PHI policy. [4.17] The Court in Aspden held on the evidence in that case that it was not the intention of the employer to exercise its contractual right of dismissal where to do so 50 51 52 53 54 55 56 57

Bainbridge v Circuit Foil UK Ltd [1997] IRLR 305. Brompton v AOC International Ltd [1997] IRLR 639. Hill v General Accident Fire and Life Assurance Corporation plc [1998] IRLR 641. Vilella v MFI Furniture Centre Ltd [1999] IRLR 475. Jenvey v Australian Broadcasting Corporation [2002] IRLR 520. Takacs v Barclays Services Jersey Ltd [2006] IRLR 877. Earl v Cantor Fitzgerald [2000] EWHC 555 (QB), per Moore-Bick J at [41]. Aspden v Webbs Poultry [1996] IRLR 521.

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[4.18]

Redmond on Dismissal Law

would frustrate the entitlement of the employee to benefit from a permanent health insurance scheme. Accordingly, the Court implied a term to that effect into the plaintiff’s contract of employment. On the question of whether the Aspden implied duty approach forms part of Irish law, that decision was considered by the High Court (Laffoy J) in McGrath v Trintech Technologies Ltd,58 where Laffoy J described Aspden as ‘the source of the jurisprudence’, but noted that the case essentially turned upon the contractual documentation between the parties and the fact that Sedley J concluded that the justice of the case demanded that the employer ought not be permitted to disqualify the employee from the policy because it had clearly been the intention of the parties that it should not be permitted to do so.

[4.18] It is significant that the post-Aspden case law in the United Kingdom has narrowed considerably the potential scope of its application. Thus, in Hill v General Accident Fire and Life Assurance Corporation plc,59 Mr Hill’s position was made redundant when he was still in receipt of sickness pay and was some four months away from qualifying for long term sickness provision. He argued that the defendant was in breach of contract in dismissing him, contending that it was an implied term of his contract of employment that the employer would not use its contractual powers of dismissal where doing so would prevent him from accessing an accruing or accrued entitlement under the sickness benefit or health retirement pension scheme. This claim was rejected by the Outer House of the Court of Session, where Lord Hamilton commented on Aspden as follows: ‘In so far as Sedley J’s conclusion is to be understood as laying down as a general proposition that gross misconduct is the only circumstance in which the employer could lawfully dismiss an employee in receipt of sick pay and with the prospect of permanent sickness provision, I must respectfully disagree. No question of a redundancy situation … arose in that case …’.

Lord Hamilton went on to find that the employee could lawfully be selected for redundancy notwithstanding that to do so would be to prevent his accessing the insurance policy. The same approach was adopted by Laffoy J in McGrath v Trintech, where Laffoy J explained the policy reason for not insulating an employee on PHI from a general risk of redundancy: ‘If [the plaintiff] could establish that he was reliant on the prospect of permanent health insurance, his employment could not be terminated and he would require to be excluded from the pool of employees from whom persons might be selected for dismissal on the ground of redundancy. As stated by Lord Hamilton in Hill v General Accident Fire and Life Assurance Corporation plc 60 that would be grossly disadvantageous to fellow employees who were well at the material time.’61 58 59 60 61

McGrath v Trintech Technologies Ltd [2005] 4 IR 382 at para 31. Hill v General Accident Fire and Life Assurance Corporation plc [1998] IRLR 641 at para 24. Hill v General Accident Fire and Life Assurance Corporation plc [1998] IRLR 641 at para 22. McGrath v Trintech Technologies Ltd [2005] 4 IR 382 at para 36.

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Termination with or without Notice

[4.21]

No general right to work during notice – but employer may have contractual duty to provide work [4.19] There is no general right to work during notice, except where the employee’s skills require frequent exercise. Where the circumstances are such that the employer has a contractual duty to provide work, garden leave will be lawful only if it is expressly provided for in the contract of employment: William Hill Organisation Ltd v Tucker.62

(3) Termination by mutual consent [4.20] Parties may of course end the contract of employment by mutual consent. Often, such consent exists from the time of their initial agreement, eg to enter into the employment relationship for a fixed term. When the fixed term is over, the contract automatically comes to an end. Likewise, an agreement may relate to a particular job and, upon completion thereof, the contract will come to an end. At common law, both parties are discharged from further liability. Under unfair dismissals law, however, there may be a claim.63 But contracts which stipulate that an agreement is to last for a certain period only may enable one or both of the parties to terminate it before that time, eg by giving notice of a particular length.64 The legal significance of the distinction between these two types of contract is therefore considerable.

(4) Statutory notice [4.21] In manual and blue-collar employment, the implied period of an employer’s notice was scarcely reasonable by any social or economic standard (it was frequently one week; it is surely an oddity of the common law that yearly hiring should have given way to such notice). Inadequate periods of notice of dismissal could no longer be overlooked when they occurred in situations of mass redundancy and often, too, in areas of high unemployment. In 1973, the Oireachtas attempted to remedy this deficiency by enacting the Minimum Notice and Terms of Employment Act, a statute foreshadowing much more extensive provision for job security.65 The Act lays down minimum periods of notice for every employee as defined therein.66 The definition excludes self-employed persons and ex-employees. Section 4 provides that where the employee has been 62 63 64

65

66

William Hill Organisation v Tucker [1998] IRLR 313. See para [23.75]. This is still a ‘fixed-term’ contract: see BBC v Dixon [1979] 2 All ER 112 (cf (1978) 7 ILJ 131) refusing to follow BBC v Ioannou [1975] ICR 267 on which there is a note in (1975) 4 ILJ 245. See too Allen v National Australia Group Europe Ltd [2004] IRLR 847 (termination earlier does not preclude contract being fixed term). In Britain, similar legislation was first passed in 1963 with the Contracts of Employment Act; see now Employment Rights Act 1996, s 86. ‘Employee’ means an individual who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing and whether it be a contract of service or of apprenticeship or otherwise: s 1 of the 1973 Act. See Leopard Security Ltd (employer) v David Campbell [1997] ELR 227 (resignation of employee without statutory notice found to be in breach of s 6 of the Minimum Notice and Terms of Employment Act 1973). The Civil Service Regulation (Amendment) Act 2005, Part 7, applies the Act of 1973 to civil servants.

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[4.22]

Redmond on Dismissal Law

employed for at least 13 weeks’ continuous service,67 the employer is required to give him or her notice of dismissal which satisfies certain minimum requirements: Period of continuous service

Notice required

13 weeks to 2 years

Not less than 1 week

2 years to 5 years

2 weeks

5 years to 10 years

4 weeks

10 years to 15 years

6 weeks

15 years and over

8 weeks

(5) Employee resignation [4.22] According to s 4 of the Minimum Notice and Terms of Employment Act 1973, the minimum period of notice required of an employee to terminate his contract of employment is, in all cases, not less than one week, provided the employee has been in continuous service for not less than 13 weeks. This represents a welcome attack on the old contractual principle of mutuality, hallowed by the common law, under which an employer and employee respectively may be required to give identical periods of notice to terminate the contract of employment. The statutory periods replace any shorter ones specified in the contract but may be displaced by an express contractual requirement of a longer period of notice. Equally, custom and practice, or any other method of implying better terms, may suffice. [4.23] At common law generally an employee will give the notice specified under his contract and, once given, it does not require acceptance by the employer as the contract is being terminated in accordance with its terms. Withdrawal of the resignation in such circumstances can be done only with the employer’s consent and refusal to give such consent cannot amount to breach on its part. The employing entity may apply a term in the contract enabling it to give pay in lieu of notice; if so, the contract comes to an end in accordance with its terms. In contrast with this position at common law, however, it is extremely important to note that the Unfair Dismissals Act 1977 as amended deems the date of dismissal to be the date on which notice, had it been given, would have expired.68 In practice, this can mean that there is a crucial distinction between the employee’s date of termination (when he or she ceased to be an employee pursuant to the contract of employment) and his or her date of dismissal (the date that is reckonable for the purposes of establishing the length of service qualification and the time limit rules under the Unfair Dismissals legislation).

[4.24] Should an employee give shorter notice than is required, the employer may sue for loss flowing from the breach or it may wish to enforce restrictive covenants agreed in 67 68

See paras [23.29] et seq. Gaboor v NYD Ltd UD 2436/11; O’Neill v Bank of Ireland [1993] ELR 145; Savage v Sainsbury Ltd [1980] IRLR 109.

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Termination with or without Notice

[4.27]

the contract or protect confidential information acquired by the employee.69 If the employing entity is in breach of an important term in the contract or conducts itself in a way which amounts to repudiation, the employee may terminate the contract summarily and claim constructive dismissal as happened in Pickering v Microsoft Ireland Operations Ltd,70 para [5.24].

(6) Statutory waiver or pay in lieu [4.25] On termination of employment, and provided the parties are in agreement, an employer or an employee may waive their right to notice or an employee may accept payment in lieu of notice. Common law implications apply during the first 13 weeks of employment. They also apply to office holders such as members of the Garda Síochána and of the Defence Forces, and to certain other groups (eg sailors, fishermen) expressly excepted under the Act, s 3. Disputes under the 1973 Act may be referred to the Workplace Relations Commission. [4.26] Under s 8 if an employee is dismissed for ‘misconduct’ he is not entitled to notice or pay in lieu. In Brewster v Burke and the Minister for Labour71 the High Court accepted a UK definition of ‘misconduct’: ‘It has long been part of our law that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his master. Such a refusal fully justifies an employer in dismissing an employee summarily.’

(7) PILON [4.27] Terms regarding pay in lieu of notice (PILON) need careful drafting and careful construction. Pay most often is taken to refer to basic salary but this will of course vary depending on the circumstances of each case.72 Where there is a valid PILON clause in the contract, then this comprises a power to bring the contract to an end immediately on a lawful basis: the employee has no entitlement to ‘keep the contract alive against his employer’s will by refusing to accept wages in lieu of notice’.73 By contrast, where there is no valid PILON clause, then it is exceedingly difficult for an employer to contend that it has the power to terminate the contract without adhering to the notice period.74 In such circumstances, injunctive relief may be available to the employee.75 If ‘pay’ is meant also to be in lieu of employee benefits and pension payments which would have accrued during the notice period, it is best to say so. An expression such as ‘It is agreed that the employer may make a payment in lieu of notice to the employee’ is likely to be 69 70 71 72

73 74 75

See Thomas Marshall (Exports) Ltd v Guinle [1978] IRLR 174; para [6.05]. Pickering v Microsoft Ireland Operations Ltd [2006] ELR 65. Brewster v Burke and the Minister for Labour (1985) 4 JISLL 98. For an example of an expansive approach on this point which covered all benefits normally flowing to the plaintiff in the course of his employment, see the judgment of the High Court (McCracken J) in Dooley v Great Southern Hotels Ltd [2001] IEHC 115. Hepple, ‘The Right to Work at One’s Job’ (1974) 37 MLR 681 at 685. Delaney v Staples [1992] 1 AC 687. See further Ch 10. The significance of the elective theory of termination as endorsed by the majority of the United Kingdom Supreme Court in Societe Generale v Geys [2012] UKSC 63, [2013] 1 AC 523 should of course be noted here.

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[4.28]

Redmond on Dismissal Law

construed as giving the employer an option to make a payment in lieu of notice. Language giving an election to the employer is inconsistent with the provision of a contractual right of the employee to insist that he should be paid salary in lieu of notice. Hence the employee’s remedy is not in debt but in damages for wrongful dismissal and any amounts earned by him subsequent to the employer’s election will go to mitigate his loss.76

B.

LAWFUL SUMMARY DISMISSAL

(1) Grounds existing at the time of dismissal [4.28] The right to terminate the contract of employment with reasonable notice is quite separate from the right to terminate the contract summarily, ie without notice, in the case of breach by the other side where the ‘grounds for dismissal during the term contracted for must be such that they amounted to a repudiation of the contract on the part of the employee’.77 Termination of employment without notice will constitute a lawful dismissal only where there are grounds which the law regards as sufficient to justify the dismissal. If these grounds do not exist, an employer will be held to be in breach of contract and liable to pay damages for wrongful dismissal.78 [4.29] The test for breach of contract at an early stage of development was based on status rather than on the particular contractual obligations of an employee.79 As early as Turner v Mason,80 however, the courts relied on a strict contractual approach. This approach has characterised the common law ever since. In Laws v London Chronicle (Indicator Newspapers) Ltd,81 Lord Evershed MR affirmed that: ‘It is, no doubt ... generally true that wilful disobedience of an order will justify summary dismissal since wilful disobedience of a lawful and reasonable order shows a disregard – a complete disregard – of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master, and that unless he does so the relationship is, so to speak, struck at fundamentally.’82 76

77 78

79 80

81

82

Cerebrus Software Ltd v Rowley [2001] ICR 376, distinguishing Abrahams v Performing Rights Society Ltd [1995] IRLR 486. Also Gregory v Wallace [1998] IRLR 387. Power v Binchy (1929) 64 ILTR 35 at 39 per Meredith J. If either party to the contract of employment is aware of a breach by the other side of such seriousness as to justify summary dismissal or summary termination by the employee, but the reason is not invoked within a reasonable period, he will lose the right to terminate the contract and be left only with the remedy of damages: Beattie v Parmenter (1889) 5 TLR 396. See, too, State (Gleeson) v Minister for Defence [1976] IR 280. Cronin and Grime, Labour Law (Butterworths, 1970) at 86-87. Turner v Mason (1845) 14 M & W 112. The defendant’s maid had asked for permission to absent herself from work until the next day so that she could visit her mother, whom she had heard was dying. Permission was refused; the maid went nonetheless and was dismissed without notice. According to the court, the plaintiff could not be permitted to place her moral duty to another before her contractual duty to her employer. Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698. See Woods, ‘The Disobedient Servant’ (1939) 22 MLR 526. Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 at 700.

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Termination with or without Notice

[4.32]

[4.30] It is impossible to define the reason or reasons which will be regarded as sufficient to justify summary dismissal. Grounds which entitle an employer not to enter into a contract to employ and those which justify dismissal of an employee already employed must be distinguished: Power v Binchy.83 Here Meredith J held that, as a rule, mere non-attendance of an employee at his post on one occasion is not a ground for dismissal.84 Further, an employee’s absence from a meeting with his employers to which he is summoned to answer charges against him does not constitute an aggravation of his offence such as would justify dismissal on otherwise inadequate grounds. Depending on the position of responsibility held, absence from duty on one occasion may constitute misconduct, as in Flynn v GNR Co (Ire) Ltd,85 where the plaintiff, a fireman, failed to report for duty. In the circumstances, this was held to be a serious matter.86

[4.31] Some 50 years ago, the High Court (Kenny J) attempted an exposition of the law in an important Irish case concerning wrongful dismissal, Carvill v Irish Industrial Bank Ltd,87 where the judge said that the grounds relied on to justify dismissal without notice to an employee must be actions or omissions by the employee which are inconsistent with the performance of the express or implied terms of his contract of service:88 ‘One of these implied terms is that the employee will have that degree of competence89 which he has represented himself as having at the time when he was originally employed; another term is that the employee will conduct his employer’s business with reasonable competence. The incompetence relied on to justify summary dismissal must, however, be judged by reasonable standards, and the employer must establish that an error was caused by incompetence and not by mistaken judgment or human error. An error relied on to justify summary dismissal must be judged by the standards which prevail among people in Ireland who are engaged in business.’90

[4.32] Those who are in business have sometimes to take risks but, in judging the behaviour of commercial people, the judge had to bear in mind that they often take calculated risks. ‘Another implied term of the contract of service between an employer and an employee is that the employee will act honestly towards his employer and that the employee will not take or misuse the employer’s property or divert to himself profits or property which belong to the employer.’91 83 84 85 86

87 88 89

90 91

Power v Binchy (1929) 64 ILTR 35 at 39 per Meredith J. See Fillieul v Armstrong (1837) 7 Ad & El 357. Flynn v GNR Co (Ire) Ltd (1955) 89 ILTR 46. Flynn v GNR Co (Ire) Ltd (1955) 89 ILTR 46 at 58. See too, Carvill v Irish Industrial Bank Ltd [1968] IR 325, where an isolated incident by a company director was deemed sufficient by Kenny J in the High Court (although not by the Supreme Court) to justify summary dismissal. Carvill v Irish Industrial Bank Ltd [1968] IR 325. Carvill v Irish Industrial Bank Ltd [1968] IR 325 at 335. Eg Corry v NUVGATA [1950] IR 315. Incompetence was regarded as breach of an implied term in the early case of Harrington v Gleeson (1897) 31 ILT & SJ 429. Corry v NUVGATA [1950] IR 315 per Kenny J at 335. Corry v NUVGATA [1950] IR 315 per Kenny J at 335.

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[4.33]

Redmond on Dismissal Law

[4.33] In another important Irish decision, Glover v BLN Ltd,92 several serious charges were made against the plaintiff, who was the technical director of four companies. His contract of appointment provided that he could be dismissed without compensation if guilty of any serious misconduct or serious neglect in the performance of his duties which, in the unanimous opinion of the board of directors of the holding company, affected injuriously the business or property of the holding company or of any of its subsidiaries. The main charges of serious misconduct related to the sale of capital equipment and goods to the operating company by another company. The plaintiff was a shareholder in this latter company and it was managed by his son. Initially, he did not disclose his interest in the company to his co-directors, although after a time all the directors of the operating company were informed by him that he had this interest. There was no evidence before the High Court to establish that the operating company suffered any loss from the various transactions with which the plaintiff was involved. The directors of the holding company could not reasonably have concluded that the dealings with the other company injuriously affected the property or business of the operating company.93 It was not misconduct, Kenny J said, to put oneself in a position where duty and interest might clash: it was a counsel of prudence not to do so. Rather, misconduct lay in failing to reveal the position to those likely to be affected by it, so that they could not decide whether the performance of the duty would be influenced by the competing interest.94

[4.34] The argument relating to the main charge of misconduct against the plaintiff failed because the directors could not reasonably conclude that the contracts injuriously affected the business, property or management of any of the companies. There was one charge of serious misconduct which Kenny J was prepared to accept, however: it related 92

93

94

Glover v BLN Ltd [1973] IR 388, 405 per Kenny J. See (1968) 3 Ir Jur (ns) 322 and (1973) 8 Ir Jur (ns) 297 (Notes). Further on misconduct, see Hartery and Welltrade (Middle East) Ltd v Hurley (15 March 1978) HC. Brewster v Burke and Minister for Labour (1985) 4 JISLL 98; see the early case of Kean v Fitzgerald (1894) 28 ILT & SJ 620 (Ex) in which a general description of misconduct was given. Counsel for Glover cited the following passage from the judgment of Cotton LJ in Boston Deep Sea Fishing and Ice Co Ltd v Ansell (1888) 39 Ch D 339 at 357: ‘If a servant or a managing director, or any person who is authorised to act, and is acting, for another in the matter of any contract, receives, as regards the contract, any sum, whether by way of percentage or otherwise, from the person with whom he is dealing on behalf of his principal, he is committing a breach of duty. It is not an honest act, and, in my opinion, it is a sufficient act to show that he cannot be trusted to perform the duties which he has undertaken as servant or agent. He puts himself in such a position that he has a temptation not faithfully to perform his duty to his employer. He has a temptation, especially where he is getting a percentage on expenditure, not to cut down the expenditure but to let it be increased, so that his percentage may be larger.’ Kenny J did not accept this as a correct statement of the law (at 406). The judge referred to the (then) position of directors of companies in the Companies Act 1963 (s 194), in art 84 of the model articles for public companies and in art 7 of those for private companies in Table A to that Act. These showed that when a conflict between duty and interest arises, a director is bound to disclose the nature of his interest to his co-directors. In Kenny J’s opinion, the same rule applied to those employed (at 407).

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Termination with or without Notice

[4.35]

to work done by employees of the operating company for the plaintiff during hours when they were employed by it and for which no charge was ever made: ‘If the operating company had been a small private company in which nearly all the shares were owned by one person I would not have regarded what happened as being serious misconduct because the difference between a small private company and a privatelyowned business is one which is understood by few. But the operating company was wholly owned by a public company whose shares were quoted on the stock exchange and which employed about 640 people. After much consideration, I have come to the conclusion that it was serious misconduct.’95

The trial judge’s assessment of the facts and his conclusion that the plaintiff was guilty of serious neglect of duty and of serious misconduct were not challenged when the case went on appeal to the Supreme Court.

(2) Grounds discovered subsequent to dismissal [4.35] In Britain, for the purposes of the law of wrongful but not unfair dismissal, an employer who has dismissed an employee for, for example, serious neglect of his duties, may rely on grounds discovered subsequent to the actual date of dismissal: Boston Deep Sea Fishing and Ice Co v Ansell.96 The Irish Supreme Court emphatically rejected this view in Carvill v Irish Industrial Bank Ltd,97 where there was no evidence that at the time of dismissal any of the matters complained of subsequently were within the knowledge of the defendants. The defendants relied upon the principle that it is not necessary that an employer, dismissing an employee for good cause, should state the ground for such dismissal, and, provided good ground existed in fact, it is immaterial whether or not it was known to the employer at the time of the dismissal. O’Keeffe J, for the Supreme Court, found it difficult to understand how an act could be relied on to justify dismissal unless it was known at the time of dismissal. He recognised that there can be some breaches of contract so fundamental as to show that the contract is entirely repudiated by the party committing them, and that such an act might be relied upon in an action for wrongful dismissal. These would not justify a particular dismissal, according to O’Keeffe J, but they would support the plea that a dismissed servant had himself put an end to the contract: ‘Where the act is not of so fundamental a character that would warrant the dismissal of the servant at the option of the employer, it appears to me to be quite illogical to say that an 95 96

97

Glover v BLN Ltd [1973] IR 388 at 412. Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339. And see Ridgway v Hungerford Market Co (1885) Ad & El 171 – corporation clerk entered protest of his own in the minute book at what he regarded as the injustice of his dismissal: this was regarded as an adequate ground for same. These common law rules were approved by the Court of Appeal in Cyril Leonard & Co v Simo Securities Trust Ltd [1972] 1 WLR 80, at 82, 86. The Boston case was impliedly approved by Black J in Boland v Dublin Corporation [1946] IR 88 at 103–04. Carvill v Irish Industrial Bank Ltd [1968] IR 325. However, documents coming into existence after the date of dismissal are discoverable as they may be relevant to establish whether or not fair procedures were adopted prior to dismissal: Tobin v Cashell [1998] ELR 277.

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[4.36]

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employer may be heard to say he dismissed his servant on a ground unknown to him at the actual time of dismissal.’98

[4.36] An employer is not without rights, however, in respect of subsequent misconduct. He could rely on it as a ground for reduction of damages and, in an appropriate case, it may reduce the damages to the point of extinction. [4.37] In Glover99 the board of directors acted with great haste in dismissing the plaintiff. They relied on a report which did not contain complaints or allegations of misconduct set out with the particularity with which they were set out subsequently in the reply to the plaintiff’s notice for particulars. Walsh J added a further gloss to the principles enunciated in Carvill when he stated that: ‘... the misconduct, if known but not in fact used as a ground for dismissal at the time, cannot be relied upon afterwards in an effort to justify the dismissal.’100

Both Carvill and Glover were considered by the High Court (O’Sullivan J) in Hearn v Collins101 where O’Sullivan J, emphasising the distinction drawn in the two decisions between breach and fundamental breach, stated:102 ‘If a fundamental breach comes to light after the dismissal it may still be relied upon by the employer to make a claim not that this subsequently known ground was relied upon as a reason for or otherwise justified the dismissal but rather that the contract at the time of the dismissal had already been repudiated.’

[4.38] Chapter 5 deals with ways in which wrongful dismissal may arise at common law where there are limitations other than those regarding notice in the contract of employment. These may comprise express or implied limitations, and may be procedural or substantive.

98

99 100 101 102

Carvill v Irish Industrial Bank Ltd [1968] IR 325 at 345–346. This is in fact the reasoning of Lord Abinger CB in Cussons v Skinner 11 M & W 161 at 168. Glover v BLN Ltd [1973] IR 388. Glover v BLN Ltd [1973] IR 388 at 426. Hearn v Collins [1998] IEHC 187. Hearn v Collins [1998] IEHC 187 at para 154.

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Chapter 5

Wrongful Dismissal: Limitations in the Contract A.

LIMITATIONS IN THE CONTRACT: GENERAL

[5.01] The protection which ordinary employees enjoy has traditionally been more limited than that which applies to office-holders and to persons whose employment is public or is regulated by statute. To a certain extent, the Constitution has eased the harsh results which flow from these distinctions but, constitutional considerations apart, the crucial difference remains that an ordinary employee’s redress in the event of dismissal in large measure depends upon the terms of his or her contract of employment. If a worker is an ordinary employee, first and foremost wrongful dismissal may take the form of dismissal with inadequate notice. Second, it may comprise unlawful summary dismissal where the employer is unable to justify its decision to dismiss summarily, ie where there has been a repudiatory breach on the employee’s part but it is not sufficiently serious to exonerate the employer’s action. Both types of dismissal have been dealt with in the previous chapter. [5.02] This chapter deals with express and implied terms in the contract of employment which are capable of limiting the employing entity’s power of termination. The terms may be substantive or procedural. Implied terms are considered in the final section of this chapter, with particular attention being devoted to analysing the radical developments which have taken place in the last 20 years concerning the implied duty of mutual trust and confidence. The interaction between terms implied by the courts and express terms, such as the power to terminate the contract of employment, is currently perhaps the most interesting and important area in dismissal law and will continue to be so in employment litigation over the coming years. Later chapters describe the implications of this co-relationship for the elective theory regarding breach of contract and for remedies for termination. [5.03] The first three sections relate to ways in which an employee may be wrongfully dismissed in breach of contract, namely, where dismissal is in breach of express procedural limitations in the contract of employment, or of an implied term of fairness, or of express substantive limitations.1

B.

BREACH OF PROCEDURAL LIMITATIONS

[5.04] The parties to a contract of employment may have expressly incorporated procedural safeguards into the contract.2 Because these safeguards assume the status of 1

2

See generally Bogg and Freedland, ‘The Wrongful Termination of the Contract of Employment’, ch 25 in Freedland (ed), The Contract of Employment (OUP, 2016). Or procedural safeguards may be implied from other written sources such as collective agreements: Tomlinson v The London Midland & Scott Rly Co [1944] 1 All ER 537.

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contractual terms, breach can trigger liability for breach of contract. The possible limitations of such liability are analysed in depth below in the context of the controversial decision of the United Kingdom Supreme Court in Edwards v Chesterfield.3

[5.05] The Minimum Notice and Terms of Employment Act 1973 for the first time placed employers under a statutory obligation to furnish employees on request with a written statement as to terms of employment (cf now the Terms of Employment (Information) Act 1994).4 The statement was not required to include any reference to disciplinary or dismissal procedures, but the Unfair Dismissals Act (s 14(1)) filled this gap by requiring an employer, whether requested to or not, to give to an employee, not later than 28 days after he or she enters into a contract of employment, a notice in writing setting out the procedure5 to be observed before and for the purpose of dismissing the employee. [5.06] To an increasing extent, employers over the last 25 years have been incorporating dismissal procedures into the written terms they are required to give under s 3 of the Terms of Employment (Information) Act 1994, but it should be emphasised that these terms are not binding on an employer unless they have been expressly incorporated into an individual employee’s contract of employment.

C.

BREACH OF AN IMPLIED TERM OF FAIRNESS

[5.07] The preceding section dealt with the effect of express procedural limitations in the contract of employment on an employer’s power to dismiss. In Ireland, the parties’ stated intention in the matter of disciplinary or dismissal procedures is not conclusive. Guided by the Constitution, the courts are willing to imply a term of procedural fairness and have done so where an employer was subject both to express procedural and substantive limitations in relation to dismissal: Glover v BLN Ltd.6 The facts in Glover and the judgment of the High Court are detailed at paras [3.35] and [4.33] above. In spite of the fact that the director employee in that case was adjudged guilty of misconduct within the terms of his contract of employment, as an office-holder he was held to be entitled to invoke natural justice. Because he had not been given prior notice 3

4

5

6

Edwards v Chesterfield [2012] 2 AC 22; and see Collins, ‘Compensation for Dismissal: In Search of Principle’ (2012) 41 ILJ 208; Costello, ‘Edwards v Chesterfield Royal Hospital: Parliamentary Intention and Damages caused by Maladministration of a Contractual Dismissal Procedure’ (2013) 76 MLR 134; Cabrelli, ‘Liability and remedies for breach of the contract of employment at common law: some recent developments’ (2016) 45 ILJ 207. At the time of writing (mid 2017), legislation has been proposed significantly enhancing the content of the information which must be provided by the employer: see Terms of Employment (Information) (Amendment) Bill 2016. ‘Procedure’ is one that has been agreed upon by or on behalf of the employer concerned and by the employee concerned or a trade union, or an excepted body, representing him or her or has been established by the custom and practice of the employment concerned: s 14(3). Glover v BLN Ltd [1973] IR 388. Applied to removal of honorary officer of trade union: McEvoy and Doyle v Prison Officers Association [1998] ELR 250. See Ch 8 for constitutional origins.

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[5.10]

of the charges against him, Kenny J held that his dismissal was invalid and that he was entitled to ‘damages’.7

[5.08] When Glover was appealed, the Supreme Court side-stepped the need to distinguish between office-holders and ordinary employees in relation to procedural due process. The fact that Glover held his employment under a service agreement was not seen as an obstacle. Clause 12(c) of the service agreement provided that the employee could not be validly dismissed for misconduct unless it was serious misconduct and was of a kind which, in the unanimous opinion of the board of directors of the holding company present and voting at the meeting, injuriously affected the reputation, business or property either of that company or of the subsidiary companies. The operation of the clause necessarily involved the ascertainment of the facts alleged to constitute serious misconduct; the determination that they did in fact constitute serious misconduct; and that the members of the board present and voting should be unanimously of the opinion that the serious misconduct injuriously affected the reputation, business or property of the holding company or of the subsidiary companies. The Supreme Court based its decision squarely on contractual considerations. It held that it was necessarily an implied term of the contract in question that the inquiry and determination should be fairly conducted. In doing so, the court derived support from its earlier decision in Re Haughey8 that a guarantee of fair procedures was among a citizen’s personal rights under Art 40.3 of the Constitution. Walsh J declared that: ‘... public policy and the dictates of constitutional justice required that statutes, regulations or agreements setting up machinery for the taking of decisions which may affect rights or impose liabilities should be construed as providing for fair procedures.’9

[5.09] The court distinguished Ridge v Baldwin10 which Kenny J had relied upon at first instance. Unlike the case before the court, the facts there were not governed by the terms of a contract. The existence of a contract was crucial and: ‘... once the matter is governed by the terms of a contract between the parties, it is immaterial whether the employee concerned is deemed to be a servant or an officer in so far as the distinction may be of relevance depending on whether the contract is a contract for services or a contract of service.’11

[5.10] In the case of express procedural limitations, the purpose and effect of implying a term of fairness will be to inject a greater degree of efficacy into these stipulations. Where the limitations are substantive, the implied term will ensure that constitutional justice is observed. The position following Glover is that ordinary employees whose dismissal is limited by express contract terms are entitled to the same procedural safeguards as office-holders. The overriding principle of fairness embraces both categories of worker. Even if there had been no pre-existing contractual relationship, 7

8 9 10 11

Concerning the granting of an award of damages and a declaration as to invalidity of dismissal, see para [9.31] below. On the possibility of a declaration of invalidity see Ruffley v Board of Management of St Anne’s School [2017] IESC 33. Re Haughey [1971] IR 217, para [8.15]. Re Haughey [1971] IR 217 at 425 (emphasis added). Ridge v Baldwin [1964] AC 40. Re Haughey [1971] IR 217 at 427 per Walsh J.

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Walsh J suggested, obiter, that a contract between the plaintiff and the defendants would probably have been implied.12 His dicta suggest that fairness might be implied in a contract whether or not it contained substantive or procedural limitations. From a constitutional perspective, this is unobjectionable. Even more, however, Walsh J could be interpreted as saying that the courts might be willing to infer the existence of a contract for the purposes, effectively, of implying a term of fairness. But this would be to go too far. To ‘raciocinate’ backwards would involve a dangerous and unwelcome departure from common law principles. The application of Glover should not require such a stretch of the contractual imagination. To date, there has been no such judicial innovativeness.

[5.11] Judges in the High Court did not hurry to espouse Glover in so far as it seemed to provide authority for the proposition that constitutional justice applied to officeholders and employees alike. In Lupton v Allied Irish Banks Ltd,13 Murphy J doubted whether Walsh J had equated the position of the two categories. He went on to confine the authority of Glover to its particular facts: where the contract of service had already envisaged that the office-holder would get the benefit of natural justice. The same judge took a similarly restrictive approach in Farrell v Minister for Defence.14 Pending ‘an authoritative review of the law’ Murphy J applied the traditional common law approach and found that the plaintiff, an employee, was not entitled to natural justice. Likewise, Murphy J remarked in Goldrick and Mooney v The Right Honourable The Lord Mayor, Aldermen and Burgesses of Dublin:15 ‘... it seems to me that at common law the decision of an employer to dismiss an employee whose contract of employment does not expressly or impliedly provide for the holding of some enquiry into the conduct of the employee cannot be called into question because of the failure to consult with the employee prior to his dismissal or the failure to adopt any other procedure ensuring the application of the rules of constitutional justice. On the other hand, it is clear that wrongful dismissal would, as it has always done, entitle the employee to damages for breach of contract.’

[5.12] The plaintiff in Gunn v Bord an Choláiste Ealaíne is Deartha16 was an employee whose relationship was governed by contract. For that reason Costello J (High Court) concluded that he could not sustain an argument that his employment relationship was governed by ‘the principles of administrative law developed to deal with office-holders in the public service’. But when the opportunity provided itself on appeal to the Supreme Court, Walsh J17 was quick to attempt a restatement of what the Court had said in Glover. He wished: 12

13 14 15

16 17

Re Haughey [1971] IR 217 at 428. See also the approach of Harman J held in Byrne v Kinematograph Renters’ Society [1958] 1 WLR 762. Lupton v Allied Irish Banks Ltd (1984) 3 JISSL 107. Farrell v Minister for Defence (1985) 4 JISSL 105. Goldrick and Mooney v The Right Honourable The Lord Mayor, Aldermen and Burgesses of Dublin (10 November 1986) HC. Gunn v Bord an Choláiste Ealaíne is Deartha [1990] 2 IR 168. Gunn v Bord an Choláiste Ealaíne is Deartha [1990] 2 IR 168 at 181. See a similar endorsement of Glover by the Supreme Court in Hickey v The Eastern Health Board [1990] ELR 177.

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[5.14]

‘... to clear up what appears to be misapprehension concerning the application of the rules of natural justice or of constitutional justice. The application of these rules does not depend upon whether the person concerned is an office-holder as distinct from being an employee of some other kind. I mention this because it is a subject which is referred to in the course of the judgment of the learned judge of the High Court in his reference to Glover v BLN Ltd.18 The quality of justice does not depend on such distinctions. It appears to me that the misunderstanding has arisen by reason of the great reliance which Kenny J in the High Court appeared to have placed upon the speech of Lord Reid in the English House of Lords decision of Ridge v Baldwin.19 In that case the person who had been dismissed was a Chief Constable and was the holder of a statutory office. He could only have been dismissed from it in accordance with particular statutory provisions. The persons who had the power to dismiss him were not his employers in the strict sense. Because of that fact and that he was by statutory instrument designated as an “officer” as distinct from another type of employee, it was held that the particular statutory provisions referable to the dismissal of an officer had not been complied with. As was pointed out in the majority judgment of this court in Glover v BLN Ltd, the question of whether the plaintiff in that case was an officer or a servant was irrelevant, as the case fell to be decided not upon that distinction but upon the actual terms of the contract between Mr Glover and his employers. In the present case, the agreed procedures are those set out in the agreement with the Federated Workers Union of Ireland, and they did not in any way depend upon whether the employee in question was an officer or not. In any case, where there is no particular procedure prescribed either by agreement between the parties or by statute, and where the case falls to be determined by the application of the principles of constitutional justice, or the principles of natural justice, they are applicable without regard to the status of the person entitled to benefit from them.’

[5.13] McCarthy J said: ‘I share the view of Walsh J that, in the absence of any particular prescribed procedure, the principles of Natural Justice or Constitutional Justice would govern the relationship between the Plaintiff and An Bord. These principles are not the monopoly of any particular class.’20

But doubt still remained. The cautious approach of the High Court in the cases cited above was approved by the High Court (Keane J) in Mooney v An Post.21 He conceded that the application of the distinction between office-holders and employees has led to ‘some strange and anomalous consequences’ as English authorities demonstrated: ‘However, it might be going too far in another direction to incorporate into every contract of employment the principles of natural justice involved in the sphere of administrative law.’

[5.14] Keane J saw the pressure to do this as significantly less today when there is ample statutory machinery providing redress for unfair dismissal. Assuming he were free to do so, Keane J expressed a preference to adopt the approach of Murphy J in Farrell and Costello J in Gunn. He regarded the remarks of Walsh J as strictly obiter in Gunn. Nonetheless as there was some divergence of judicial approach, the judge 18 19 20 21

Glover v BLN Ltd [1973] IR 388. Ridge v Baldwin [1964] AC 40. Gunn v Bord an Choláiste Ealaíne is Deartha [1990] 2 IR 168 at 183. Mooney v An Post [1994] ELR 103 (HC).

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proceeded on the assumption that the principles of natural justice could be invoked by the plaintiff in relation to his dismissal.

[5.15] On appeal, the Supreme Court dealt with the ‘difficulties to trial judges’22 caused by the passages cited at paras [5.12]–[5.13] above. It had been said that because the Supreme Court in Gunn held that the plaintiff was an office-holder the passages quoted were obiter. But according to Barrington J: ... the purpose of the passages was to emphasise that the difference between employee and office holder was not the determining issue as to whether the principles of natural and constitutional justice applied. Certainly the Court appears to have gone out of its way to emphasise this point. ... Society is not divided into two classes one of whom – office holder, is entitled to the protection of the principles of Natural and Constitutional Justice and the other of whom – employee is not. Dismissal from one’s employment for alleged misconduct with possible loss of pension rights and damage to one’s good name, may, in modern society, be disastrous for any citizen. These are circumstances in which any citizen, however humble, may be entitled to the protection of Natural and Constitutional justice. ... seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party. ... is difficult to apply to a contract of employment ... [as it] implies the existence of an independent Judge who listens first to one side and then to the other. If the contract or the statute governing a person’s employment contains a procedure whereby the employment may be terminated it usually will be sufficient for the employer to show that he has complied with this procedure. If the contract or the statute contains a provision whereby an employee is entitled to a hearing before an independent Board or Arbitrator before he can be dismissed then clearly that independent Board or Arbitrator must conduct the relevant proceedings with due respect to the principles of Natural and Constitutional justice. If however the contract (or the statute) provides that the employee may be dismissed for misconduct without specifying any procedure to be followed the position may be more difficult. Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.’23

D.

BREACH OF SUBSTANTIVE LIMITATIONS

[5.16] A contract of employment may contain substantive limitations on an employer’s power to dismiss, ie dismissal may be restricted to specified grounds having a defined effect, as in Glover. The Supreme Court24 there endorsed the opinion of the High Court that, because of the express provisions in cl 12(c) of Glover’s service agreement,25 no implied term could be read into the contract that the plaintiff might be summarily 22 23

24 25

Mooney v An Post [1998] 4 IR 288 at 297, per Barrington J Mooney v An Post [1998] 4 IR 288, 297–298, per Barrington J (with whom Hamilton CJ and O’Flaherty J agreed). For recent treatment of Gunn see O’Leary v An Post [2016] IEHC 237 (Keane J). Glover v BLN Ltd [1973] IR 388 at 424. See para [5.07] above.

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[5.18]

dismissed for misconduct. On the contrary, the clause expressly provided that the plaintiff could not be validly dismissed for misconduct unless it was ‘serious misconduct’ of the kind set out. Sed quaere. Substantive limitations will affect an employer’s initiative as to the grounds upon which he can dismiss but they cannot, it is submitted, affect its response by way of dismissal where the initiative to terminate, so to speak, comes from the employee, ie where the latter is guilty of repudiatory breach. In other words, if an employee is appointed, say, for life, dismissable only for misconduct, there should be a presumption against his dismissal for any other reason. But, whatever substantive limitations are found in the contract, if an employee behaves in a way that is seriously inconsistent with the contract, if he is guilty, for example, of gross misconduct, he should not be able to complain if his employer reacts by summarily dismissing him and the courts would be highly unlikely to treat an employer as having restricted that fundamental power. The general principle may be stated thus: if dismissal can be justified only on impermissible substantive grounds, and is not otherwise a lawful summary dismissal, an ordinary employee will be entitled to claim damages for breach.26

E.

BREACH OF IMPLIED TERMS

[5.17] This chapter asserted at the beginning that the interaction between implied and express terms in the contract of employment touching the employing entity’s power to terminate the contract of employment is currently perhaps the most important area of dismissal law. Implied terms have mainly developed in the context of the employer’s right to dismiss an employee without notice and in the context of constructive dismissal. When determining the reasonableness of the employer’s actions for purposes of unfair dismissal the EAT is influenced by the express and implied contractual terms agreed between the parties.

[5.18] The courts imply terms in order to make the contract workable. Terms can be implied in fact or as a legal incident of the relationship, ie, by operation of law. Where terms are implied in fact, it is either where it is necessary ‘to give business efficacy to the transaction as must have been intended’27 or the term is implied as ‘something so obvious that it goes without saying so that if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement they would testily suppress him with a cry of “Oh, of course”’.28 This is the ‘officious bystander test’. The term must be necessary to make the contract efficacious; a term will not be implied because it is reasonable to do so.29 26

27 28

29

Acklam v Sentinel Insurance Co Ltd [1959] 2 Lloyd’s Rep 683 at 689. An interesting case in this regard is McClelland v NI General Health Service Board [1957] 1 WLR 594 which involved employment of a public rather than a private nature. It represented a significant extension of the scope of such cases from procedural to substantive questions. The Moorcock (1889) 14 PD 64 at 68. Shirlaw v Southern Foundries Ltd [1939] 2 KB 206 at 277, MacKinnon LJ; Reigate v Union Manufacturing Co [1918] I KB 592 at 605, Scrutton LJ. See terms implied by law in Becton Dickinson Ltd v Lee [1973] IR 1. Eg Stubbs v Trower, Still & Keeling [1987] IRLR 321 CA.

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[5.19]

Redmond on Dismissal Law

[5.19] Terms implied by operation of law or ‘legal incidents’ relate to the status of the parties as employer and employee. They may be implied for reasons of policy, even though it is unclear whether the parties might have agreed to them. These are terms inherent in the nature of the contract itself. They are not implied in fact but arise out of the citation of precedent. Among the most important terms implied by law in the contract of employment are: (i) (ii) (iii) (iv) (v) (vi) (vii)

the employer’s duty to exercise reasonable care; the employer’s duty to provide work; the reciprocal duty of cooperation; the employee’s duty of faithful service; the employee’s duty not to disclose trade secrets or confidential information; the employee’s duty to obey lawful instructions; to which should now be added the mutual obligation of trust and confidence.

The courts have implied terms by operation of law in specific contexts such as where a public employer failed to give notice in time to affected employees of their contractual right to buy added pension entitlements.30

[5.20] The final section in this chapter deals with the mutual obligation of trust and confidence. The last edition of this book speculated about the emergence of a ‘new contract of good faith’ due to the evolving case law on the mutual obligation of trust and confidence. There have been very significant and extensive case-law developments since then such that the contract of employment is verily in the process of transformation. Although the nature and scope of the implied term have been and in some respects continue to be controversial, a clearer picture is gradually emerging.

F.

THE MUTUAL OBLIGATION OF TRUST AND CONFIDENCE

[5.21] It is beyond question that ‘in order to be fruitful, labour relations must be based on mutual trust’.31 The implied obligation of mutual trust and confidence has generated a great deal of academic writing, being referred to as, for example, ‘undoubtedly the most powerful engine of movement in the modern law of employment contracts’32 or forming the ‘cornerstone of the legal construction of the contract of employment’.33 Its resonance in the specific context of the employment relationship was well captured in Keen v Commerzbank AG34 when Mummery LJ stated: ‘Employment is a personal relationship. Its dynamics differ significantly from those of business deals and of state treatment of its citizens. In general there is an implied mutual duty of trust and confidence between employer and employee. Thus it is the duty on the part of an employer to preserve the trust and confidence which an employee should have 30

31

32 33 34

Scally v Southern Health and Social Services Board [1991] IRLR 522. Similarly, Spring v Guardian Assurance plc [1995] 2 AC 296. Bărbulescu v Romania Application 61496/08 (5 September 2017), Grand Chamber of the European Court of Human Rights. Freedland, The Personal Employment Contract (OUP, 2003), 166. Collins, Employment Law (OUP Oxford Clarendon Law Series, 2003) 104. Keen v Commerzbank AG [2007] ICR 623.

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[5.24]

in him. This affects, or should affect, the way in which an employer normally treats his employee.’35

(1) Characteristics [5.22] In Courtaulds Northern Textiles Ltd v Andrew,36 a case of constructive dismissal, the EAT in Britain (Arnold J) described the implied obligation as follows: ‘the employer will not, without proper reason and cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties.’37

In Robinson v Crompton Parkinson Ltd38 an employee had been unfairly and improperly accused of theft. Kilner Brown J said: ‘In a contract of employment, and in conditions of employment, there has to be mutual trust and confidence between master and servant. Although most of the reported cases deal with the master seeking remedy against a servant or former servant for acting in breach of confidence or in breach of trust, that action can only be upon the basis that trust and confidence is mutual.’39

[5.23] The obligation may have positive as well as negative effects. In Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd40 the High Court held that the employer was obliged to exercise rights and powers under a pension scheme so as to preserve the employees’ trust. Sir Nicolas Browne-Wilkinson VC stated, most significantly, that the implied term gave rise to an obligation on the employer which: ‘applies as much to the exercise of his rights and powers under a pension scheme as [it does] to the other rights and powers of an employer.’41

[5.24] The implied obligation is often regarded as confined to prohibiting certain conduct on the employer’s part. This was the sense in which it was invoked by Smyth J in the High Court in Pickering v Microsoft Ireland Operations Ltd.42 Many cases, however, such as the Imperial Group Pension case above illustrate the positive effect of the implied duty. Moreover, it is clear that omissions by employers will be sufficient to amount to a repudiatory breach of the duty of mutual trust and confidence. For instance, 35 36

37 38 39 40

41

42

Keen v Commerzbank AG [2007] ICR 623 at 43. Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84. Endorsed by CA in Woods v WM Car Services (Peterborough) Ltd [1982] ICR 693. Also Fyfe & McGrouther Ltd v Byrne [1977] IRLR 29. On the word ‘seriously’ see Elias J in Hagen v ICI Chemicals and Polymers Ltd [2002] IRLR 31 at 39. Also Cabrelli, ‘The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle?’ (2005) 34 ILJ 284; Lindsay, ‘The Implied Term of Trust and Confidence’ (2001) 30 ILJ 1; Collins, ‘Implied Terms in the Contract of Employment’, ch 22 in Freedland (ed), The Contract of Employment (OUP, 2016). Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84 per Arnold J at 86. Robinson v Crompton Parkinson Ltd [1978] ICR 401. Robinson v Crompton Parkinson Ltd [1978] ICR 401 per Kilner Brown J at 403. Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] ICR 524. See too TransCo (formerly BG) v O’Brien [2002] IRLR 441(CA) and United Bank v Aktar [1989] IRLR 507. Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] ICR 524 per Nicolas Browne-Wilkinson VC at 533. Pickering v Microsoft Ireland Operations Ltd [2006] ELR 65.

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an employer’s failure to investigate an employee’s complaints of sexual harassment justified a finding of breach of trust and confidence in Reed v Stedman.43

[5.25] A breach of the implied duty of mutual trust and confidence is always regarded as repudiatory. The EAT in Britain regarded it as a fundamental breach in Morrow v Safeway Stores Ltd.44 If a breach was not sufficiently serious to amount to a repudiation of the contract, it could not be a breach of the implied duty. Cumulative acts on an employer’s part may be taken into account in determining whether or not the employer has acted in a manner which has undermined the implied obligation of mutual trust and confidence: Lewis v Motorworld Garages.45 The Court of Appeal in Lewis emphasised another important aspect of the implied obligation: the employer’s conduct is judged objectively, not subjectively. There may of course be circumstances in which it will be self-evident that the employer intends to undermine the relationship of mutual trust and confidence, as in Cantor Fitzgerald v Bird,46 in which event a subjective intention will be of strong probative value. [5.26] Brodie, writing just over 20 years ago, foresaw that the notion of mutual trust and confidence was emerging as an overarching obligation which applied to the conduct of the employment relationship in all its aspects.47 Much has transpired in the intervening 20 years to shed light on the potential of the obligation in relation to the most critical aspect of the contract of employment, namely, termination. The implied obligation is critically important, actually and potentially, in relation to the highly complex interaction between the common law and statute in relation to termination of employment.

(2) The implied obligation of mutual trust and confidence and the interaction between common law and statute regarding termination of employment [5.27] The historical starting point for this interaction was the case in which the Court of Appeal adopted a contractual test for statutory unfair dismissal, namely, Western Excavating (ECC) Ltd v Sharp,48 para [19.05]. As Freedland puts it: ‘It was in this particular crucible that the implied term as to mutual trust and confidence was 43

44

45

46 47 48

Reed v Stedman [1999] IRLR 299. Similarly Visa International Service Association v Paul [2004] IRLR 42 (failure to inform employee of post for which she considered herself suitable) and Transco plc v O’Brien [2002] IRLR 444 (failure to offer revised contract containing new benefits which had been offered to permanent employees with three months’ service), Horkulak v Cantor Fitzgerald International [2004] IRLR 942 (CA) (duty to exercise rationally and in good faith apparently unfettered discretion to award a bonus). Morrow v Safeway Stores Ltd [2002] IRLR 9 EAT. Not every act which undermines confidence is in breach of the implied obligation. The impugned behaviour must seriously damage the relationship of trust and confidence. Lewis v Motorworld Garages [1986] ICR 157 CA. See too The Post Office v Roberts [1980] IRLR 347 EAT. Cantor Fitzgerald v Bird [2002] IRLR 867 QBD. Brodie, ‘The Heart of the Matter: Mutual Trust and Confidence’ (1996) 25 ILJ 121. Western Excavating (ECC) Ltd v Sharp [1978] ICR 221.

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[5.30]

formed.’49 Decisions such as Courtaulds, para [5.22], followed soon. Although in Ireland the implied term in statutory claims can equally well be formulated in noncontractual terms, in practice this rarely happens. Because of its origins, the implied obligation has developed as a term the breach of which gives rise to repudiation.

(3) Malik [5.28] Brodie, above, was resoundingly endorsed by the House of Lords just over 20 years ago in Malik and Mahmood v Bank of Credit and Commerce International SA,50 a landmark case in which two employees were summarily dismissed on grounds of redundancy. Subsequently it became public knowledge that the bank had been operating in a dishonest manner. The plaintiffs relied on ‘a standardised term implied by law’51 of mutual trust and confidence. According to Lord Steyn:52 ‘The evolution of the implied term of trust and confidence is a fact. It has not yet been endorsed by your Lordship’s House. It has proved a workable principle in practice. It has not been the subject of adverse criticism in any decided cases and it has been welcomed in academic writings. I regard the emergence of the implied obligation of mutual trust and confidence as a sound development.’

[5.29] Lord Nicholls put it thus: ‘Now that this term exists and is normally implied in every contract of employment, damages for its breach should be assessed in accordance with ordinary contractual principles. This is as much true if the breach occurs before or in connection with the dismissal, as at any other time.’53

[5.30] Lord Steyn made it clear that: ‘…[T]he implied obligation applies only where there is no “reasonable and proper cause” for the employer’s conduct, and then only if the conduct is calculated to destroy or seriously damages the relationship of trust and confidence. That circumscribes the potential reach and scope of the implied obligation … The limiting principles of causation, remoteness and mitigation present formidable practical obstacles to such succeeding.’54

The reach and scope of the implied obligation concerns conduct which either deliberately destroys the relationship of trust and confidence or has the effect of 49 50

51

52 53 54

The Personal Employment Contract (OUP, 2003), 155. Malik and Mahmood v Bank of Credit and Commerce International SA [1998] AC 20. In Husain v BCCI [2002] EWCA Civ 82 former employees of BCCI failed to secure stigma damages as the cause of their failure to find work was not the bank; the Court of Appeal agreed. Malik and Mahmood v Bank of Credit and Commerce International SA [1998] AC 20, per Lord Steyn at 45, citing Scally v Southern Health and Social Services Board (British Medical Association) third party [1992] 1 AC 294 at 307B. See also Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 at 670 approved in Lewis v Motorworld Garages Ltd [1986] ICR 157 and Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 2 All ER 597. Malik and Mahmood v Bank of Credit and Commerce International SA [1998] AC 20, 46. Malik and Mahmood v Bank of Credit and Commerce International SA [1998] AC 20 at 39. Malik and Mahmood v Bank of Credit and Commerce International SA [1998] AC 20 at 53.

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seriously damaging it. Reflecting on Malik it seems self-evident that maintaining trust and confidence in the employment relationship should be relevant throughout the entirety of the contract, binding the employer and employee as much during the notice period as it does beforehand. Their Lordships emphasised that the implied obligation not to conduct a dishonest or corrupt business was no more than one aspect of the ‘portmanteau’ general obligation concerning trust and confidence.55

[5.31] The case makes clear that the conduct complained of need not be targeted at a particular employee or group of employees. Trust and confidence can be undermined in several ways. The Law Lords held there is no bar to recovery of damages for breach of the implied term if the breach is discovered only after the employee leaves.

(4) Johnson [5.32] It was only a matter of time before an applicant would allege his dismissal was in breach of the implied obligation of mutual trust and confidence thus bringing the question of compatibility between express and implied terms sharply to the fore. In Johnson v Unisys56 the applicant worked continuously from 1971 until his dismissal in 1994. In 1985 he suffered from a psychological illness brought on by work-related stress and was signed off work. Two years later he was made redundant, but in 1990 was reemployed. Four years later he was summarily dismissed for alleged irregularity. He claimed that his dismissal was in breach of the implied term of mutual trust and confidence as it had been effected without a fair hearing and in contravention of the employer’s disciplinary procedure. Johnson’s subsequent claim of unfair dismissal succeeded: the Employment Tribunal held that his employer had failed to afford him a proper hearing and had not complied with its contractual procedure. He was awarded the maximum compensation reduced by 25 per cent to reflect his contributory conduct. Two years later the applicant commenced common law proceedings, claiming the company had been negligent and/or that it had acted in breach of the implied term of trust and confidence in dismissing him without a proper hearing and in breach of the contractual disciplinary procedure. That aspect of the case which deals with damages is dealt with in para [11.35]. [5.33] The House of Lords held that Malik did not justify a breach of contract claim regarding the manner of dismissal and that a common law right embracing the manner of dismissal could not co-exist with the statutory right of unfair dismissal. Parliament had limited the damages recoverable in an action for unfair dismissal and it would be an improper exercise of the judicial function to develop a common law remedy which was contrary to Parliament’s intended limitations. 55

56

McMullen, ‘Extending remedies for breach of employment contract’ (1997) 26 ILJ, No 3, 245 at 247 wrote ‘... it is possible to envisage successful claims – for example where prior to an imminent wrongful dismissal, an employer alleges incompetence merely to strengthen its hand in negotiating an exit package. If the employee has difficulty in finding future employment and can prove this was caused by the employer’s conduct, there is no reason why damages could not be recovered under the principle in Malik’. Johnson v Unisys [2001] UKHL 13; [2003] 1 AC 518.

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[5.36]

[5.34] Johnson regrettably failed to take into account developments in the common law over the previous decades and the significance of the movement in personal contract law towards an understanding of the complexities in the employment relationship. It was open to the House of Lords to make what would have been a step change in the law of wrongful dismissal. Thus Freedland observes:57 ‘The Law Lords who decided the Johnson case could all see perfectly clearly that the common law of the contract of employment had developed to the point where it certainly permitted, and probably commanded, a more open and inclusive approach to the notion of wrongful dismissal ... only Lord Steyn took the view that this approach should now be regarded as having been fundamentally modified by subsequent evolution of the common law …’

[5.35] Although Johnson left uncertainty in its wake, it nevertheless clarified a significant issue, namely, the underlying juridical nature of the implied obligation of mutual trust and confidence. Before Johnson it was unclear whether the implied term was one implied in fact from the assumed intentions of the parties or, alternatively, was inherent in the parties’ employment status, in other words, a legal incident. The use of the terminology ‘implied obligation’ in Malik and other cases had assisted towards the latter interpretation, but Johnson, especially the judgment of Lord Hoffmann, left little doubt. The issue was presented as answerable by reference to the policies of the common law. The House of Lords deferred to their perceived intention of Parliament when enacting statutory unfair dismissal laws rather than to the intention of the parties. The implied term of mutual trust and confidence thus becomes an obligation imposed ab extra. When courts in Ireland have applied Johnson they have done so using the same language of normative choice (notwithstanding that, unlike in Britain, there is a prohibition on double redress for wrongful dismissal at common law and for unfair dismissal in s 15 of the Unfair Dismissals Act 1977). The obligation is described as one implied by law, eg per the Supreme Court (Finnegan J) in Berber v Dunnes Stores Ltd,58 analysed at para [5.43] below. [5.36] The significance of looking to the intention of Parliament regarding the implied term is first that the parties should not be free to contract out of a normative proposition applied by operation of law.59 A more important consequence, however, relates to the interaction between express and implied terms. The general principle of contract law is that a term implied in fact cannot override an express term. But if the term is inherent to the employment status, a feature which gives the employment relationship its special norms, the same principle may not be appropriate even where the implied term is purportedly excluded or modified. As will shortly be seen, later pronouncements in the House of Lords endorse this. 57 58 59

Freedland, The Personal Employment Contract (OUP, 2003), 360–1. Berber v Dunnes Stores Ltd [2009] IESC 61; [2009] ELR 61, per Finnegan J at 70. Cabrelli takes a contrary view re the non-derogable nature of the duty in ‘The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle?’ (2005) 34 ILJ 284, 291. He also deals with the question of contracting out in the context of whether the Unfair Contracts Terms Act 1977 applies (at 290).

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[5.37] Johnstone v Bloomsbury Health Authority60 is perhaps the best analogous case dealing with the incompatibility problem as between express and implied terms, the implied duty in that case being to exercise reasonable care. The written contract of employment of junior doctors provided a duty to work 40 hours a week and stated that the employer had a discretion to compel the employee to work for a further 48 hours per week. The question was whether the express terms on working hours were disapplied by the implied duty to exercise reasonable care. The judges in the Court of Appeal were divided on how to deal with the incompatibility issue. Leggatt LJ held an implied term could not supersede an express term, Stuart-Smith LJ that an express term could be disapplied by an implied term where the two conflicted and the implied term ought to prevail on ‘principle’, and Browne-Wilkinson VC that the implied term must ‘co-exist’ with the express term without conflict. Co-existence could mean either that the implied term cannot oust an express term, that the scope of the implied obligation needs to be framed with reference to the express term, the latter fashioning its content, or it could mean the express term must be exercised in good faith with reference to the implied duty. Importantly, it can not mean that the express term can be rendered ineffective, in contradistinction, say, to the exercise of a notice provision in disregard of the Constitution where because of its primacy the Constitution will prevail, para [2.04].

(5) Ireland follows Malik and – less unambiguously – Johnson [5.38] The Superior Courts in Ireland have followed Malik and – less unambiguously – Johnson. For instance, McGrath v Trintech61 was a notable case in which the plaintiff had worked on projects that took him on foreign assignments. He suffered bouts of illhealth. He was on sick leave when asked to go on assignment to Uruguay. He worked in Uruguay for over five months and went on certified sick leave on his return. Some months later while still on sick leave he was advised he was being made redundant. The employee claimed the terms of his employment had been varied when he took up the assignment to Uruguay. He did not accept that the company was entitled to make him redundant. [5.39] The plaintiff relied among other things on the implied term of mutual trust and confidence. Laffoy J particularised the question as: ‘whether that broad principle can accommodate the implication in the contractual relationship of the plaintiff and the defendant of terms that the plaintiff would not be dismissed without due cause or without reasonable notice or consultation and that the defendant would adopt fair procedures in any review or selection process for dismissal or redundancy, the breach of which would give rise to an action at common law.’62 60

61

62

Johnstone v Bloomsbury Health Authority [1991] ICR 269. This decision echoes the approach in the US in relation to the similar concept of the implied covenant of good faith and fair dealing, whereby the implied covenant is unable to impose substantive duties or limits on the contracting parties beyond those incorporated expressly in the terms of their agreement: Guz v Bechtel National Inc 8 P.3d 1089 (Cal 2000). McGrath v Trintech Technologies Limited [2005] 4 IR 382. The first case in this jurisdiction to approve Johnson was Sharkey v Dunnes Stores (Ire) Ltd [2004] IEHC 163 (Smyth J stating that he was ‘content to note’ the decision: the judgment appears to go further than this, however, and clearly implicitly approves Johnson) followed by Orr v Zomax Ltd [2004] 1 IR 486 (HC, Carroll J). McGrath v Trintech Technologies Limited [2005] 4 IR 382 per Laffoy J at 394.

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[5.43]

[5.40] The court cited Lord Steyn who had dissented (note how he had regarded the term as a normative proposition): ‘Orthodox contract law does not permit such a result. [Counsel for Unisys’s] argument approached the matter as if one was dealing with the question whether a term can be implied in fact in the light of the express terms of the contract. The submission loses sight of the particular nature of the implied obligation of mutual trust and confidence. It is not a term implied in fact. It is an over-arching obligation implied by law as an incident of the contract of employment [emphasis added]. It can also be described as a legal duty imposed by law – Treitel, The Law of Contract (10th ed, 1999) at p 190. It requires at least express words or a necessary implication to displace it or to cut down its scope. Prima facie it must be read consistently with the express terms of the contract … The interaction of the implied obligation of trust and confidence and express terms of the contract can be compared with the relationship between duties of good faith or fair dealing with the express terms of notice in a contract. They can live together.’63

[5.41] In McGrath the plaintiff claimed that there should be implied into his contract a term that mere compliance with the express notice provision would not validly and effectively terminate the contractual relationship at common law. Laffoy J correctly noted that there was no authority for such a proposition. She was persuaded by the authorities cited by the defendant’s counsel that the proposition was not sound in principle. She concluded that terms in relation to dismissal and redundancy as pleaded by the plaintiff could not be implied into his contract of employment so as to give rise to a cause of action at common law. Laffoy J seemed to rule out any development of the law regarding remedies for the manner in which the express power of termination was exercised when she said: ‘Such protection and remedies as are afforded by statute law to the plaintiff … cannot be pursued at first instance in a plenary action in the High Court.’64

[5.42] It is noteworthy, however, from her choice of words obiter in Cronin v Eircom Ltd65 that the same judge articulated a strong normative view of the implied term: ‘I do consider that as a matter of principle a contractual term of mutual trust and confidence which was recognised by the House of Lords in Mahmood should be implied into each contract of employment in this jurisdiction by operation of law.’66

[5.43] In Berber v Dunnes Stores Ltd,67 the Supreme Court expressly treated the implied term. Finnegan J stated: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the 63 64 65 66 67

Per Lord Steyn at para 24 in Johnson, quoted by Laffoy J in McGrath at 395. McGrath, per Laffoy J at 395. Cronin v Eircom Ltd [2007] 3 IR 104. Cronin v Eircom Ltd [2007] 3 IR 104 per Laffoy J at 125. Berber v Dunnes Stores Ltd [2009] IESC 61; [2009] ELR 61, per Finnegan J at 70.

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employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’68

(5) Eastwood [5.44] What follows from Johnson’s blanket refusal to apply the implied obligation in the context of termination is the risk of a christening, at common law, of opportunistic dismissal. This was one among many damning indictments of Johnson by the House of Lords in the later and highly significant joined case of Eastwood v Magnox Engineering plc and McCabe v Cornwall County Council.69 The employees claimed damages for breach of the duty of trust and confidence in respect of their employers’ campaign to humiliate and undermine them and procure false evidence in order to dismiss them. The Court of Appeal held that since this pattern of events formed part of the manner and circumstances of dismissal, compensation could only be sought in a statutory claim. The House of Lords felt obliged to follow Johnson but their reluctance was palpable and their reasons many and unassailable. [5.45] It will be recalled that Lord Steyn had disagreed with the main thrust of the majority decision in Johnson. In Eastwood he went so far as to suggest: ‘It may be necessary to reconsider the decision in Johnson in a future case ... the subject is of enormous importance: the personal contract of employment affects almost all individuals and families at the same time … Johnson has left employment law in an unsatisfactory state.’70

Different reasons had been advanced by the House of Lords in Johnson for the decision that the implied duty of trust and confidence did not apply to the taking of decisions about dismissal. Lord Millett took the view that the obligation applied during the continuance of the contract of employment but not to or after its termination. Lord Bingham expressed himself as agreeing with Lord Millett and with Lord Hoffmann who had reasoned that it was the intention of Parliament that the common law of wrongful dismissal should not reduplicate the statutory remedies for unfair dismissal.

[5.46] Lord Steyn reminded the House that the majority in Johnson had held that the statutory regime of unfair dismissal precludes a common law development in respect of wrongful dismissal despite the different meanings of those concepts. Not least of the difficulties effected by Johnson was the type of demarcation disputes which would be generated as a result:71 ‘The dichotomy will often give rise to questions whether earlier events do or do not form part of the dismissal process. After all, such problems in relationships between an employer and an employee will often arise because of a continuing course of conduct. In practice this will inevitably lead to curious distinctions and artificial results. It will involve 68 69

70 71

Malik and Mahmood v Bank of Credit and Commerce International SA [1998] AC 20. Eastwood v Magnox Engineering plc and McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503; [2004] ICR 1064. Per Lord Steyn in Eastwood at para 36. On the choices for an employee see Smith LJ in King v University Court of the University of St Andrews [2002] IRLR 252.

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[5.49]

case by case decision making rather than principled adjudications. The outcome of litigation will be very unpredictable. This policy aspect of the consequences of the reasoning of the majority in Johnson was not considered by the House in that case … the way in which a rule or principle operates in the real world is one of the surest tests of its soundness.’72

Lord Steyn warned that Johnson will tend to encourage precipitate and unfair decisions by employers to dismiss employees. How in policy terms the disharmony should be reconciled was not clear but it was unacceptable that a power of suspension must be exercised with due regard to trust and confidence but the more drastic power of dismissal may be exercised free of any equivalent constraint.73

[5.47] The Law Lord cited the overwhelming literature which lacks any support for the analysis in Johnson. The thrust of much of the comment is summarised by Deakin and Morris:74 ‘More generally, the argument that legislative intervention somehow equates to Parliament “occupying the field” at the expense of the future development of the common law would, if more generally applied, have already prevented the application of the implied term of mutual trust and confidence to many other aspects of the employment relationship.’

[5.48] There has been extensive statutory intervention in this jurisdiction as well as in the UK, eg in the areas of health and safety at work and the exercise of employer discretion in relation to occupational pension schemes, all of which have been the subject of judicial innovation in respect of the obligation of mutual trust and confidence and which were accepted as legitimate in both Malik and Johnson. [5.49] Other condemnatory voices were cited by Lord Steyn. Hepple QC and Morris75 described the House of Lords in Johnson by a 4:1 majority as stopping: ‘the common law developing to “reflect modern perspectives of how employees should be treated fairly and with dignity” in the context of dismissal. The reasoning of the majority has disturbing implications for employment rights in general. Although prepared to contemplate a term that a contractual power to dismiss without cause would be exercised fairly and in good faith they regarded the introduction of the statutory remedy of unfair dismissal as fatal to the implication of such a contractual duty (and to the imposition of a duty of care) … The argument that Parliament had intended to freeze out the development of the common law by creating a statutory remedy for unfair dismissal is contentious; the absence of any reference to the common law in the legislation may have occurred because Parliament was content to let the courts develop it in the usual way. Indeed, it would be open to the courts to reason by analogy that a requirement for employers to follow a fair procedure is not regarded by Parliament as unduly onerous. The majority’s reasoning means that although the exercise of the power to suspend must be exercised with due regard to trust and confidence, the more drastic power of dismissal is free from any equivalent constraint ... In viewing statutory rights as a ceiling rather than a floor, Johnson 72 73 74

75

Per Lord Steyn in Eastwood at para [39]. Gogay v Hertfordshire CC [2000] IRLR 703. Deakin and Morris, Labour Law (3rd edn, 2001), pp 410, 411. For a contrary view more recently see Bogg, ‘Common Law and Statute in the Law of Employment’ (2016) 69 CLP 67, in which Bogg mounts a staunch defence of Johnson on separation of powers grounds. ‘The Employment Act 2002 and the Crisis of Individual Employment Rights’ (2002) 31 ILJ 245 at 253–255.

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creates the anomalous situation that employees may be better protected by implied terms in areas in which Parliament has failed or chosen not to legislate that in those in which it has.’

[5.50] Freedland76 regarded the reasoning in Johnson as ‘rather contrived’: ‘It must be said that none of these various grounds of decision seems at all compelling in and of itself. In particular, the reasons advanced by the majority of the Law Lords seem rather contrived, and to be in the nature of rationalisations of a prior decision that it would be undesirable as a matter of policy for a claim of this nature to be allowed to succeed. Thus, if the obligation of mutual trust and confidence is a genuine reading of the implied intentions of the parties to the contract of employment, there seems no special reason why it should be regarded as stopping short of controlling the termination of the contract. If, on the other hand, the adjudication is a genuine attempt to comply with the design of the unfair dismissal legislation, it is rather surprising to have regarded Parliament, when it introduced a set of statutory protections for workers with regard to dismissal, as intending, indeed as enjoining, that the common law should not, in the future, develop parallel protections as part of the implied content of their personal work or employment contracts.’

[5.51] Lord Steyn concluded that Johnson could be justified if, and only if, it could be shown that the co-existence of the statutory scheme and the development of a common law remedy would be unworkable. The majority had not made their decision on the basis that this test was satisfied. ‘What is plain is that if the common law is allowed to develop as argued for by the employee in Johnson no claimant would be allowed to make a double recovery. In practice this will pose no more serious problems than in other areas where possible double recovery problems occur and are dealt with by judges on the facts of each case.’

[5.52] As Lord Nicholls identified, an employer may be better off dismissing an employee rather than suspending him.77 Johnson means that an employee who is psychologically vulnerable is owed no duty of care in respect of dismissal although, depending on the circumstances, he or she may be owed a duty of care in respect of suspension. To Lord Nicholls the case was overwhelming that: ‘… an inter-relation between the common law and statute having these awkward and unfortunate consequences is not satisfactory ... The loss flowing from the impugned conduct taking place before actual or constructive dismissal lies outside the Johnson exclusion area, the loss flowing from the dismissal itself is within that area.’

[5.53] In Ireland, the ‘Johnson exclusion area’ has implicitly influenced the drafting of pleadings, as plaintiffs seek to avoid contamination of their claims emphasising instead alleged wrongs prior to termination of the contract. Cases between 2001 and 2017 are considered below in this chapter. [5.54] In Takacs v Barclays Services Jersey Ltd78 the Johnson exclusion zone was also in evidence. The High Court in Britain was influenced by the fact that the claimant relied on breach of the implied obligation of trust and confidence occurring before 76 77 78

Freedland, The Personal Employment Contract (OUP, 2003), 304. As in Gogay v Hertfordshire County Council [2000] IRLR 703 (CA). Takacs v Barclays Services Jersey Ltd [2006] IRLR 877 HC.

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[5.56]

termination. The implied term was not inconsistent with the express contractual term entitling the employer to terminate at any time on four weeks’ notice. The court distinguished Johnson and also Reda v Flag Ltd79 in which the Privy Council had been unable to accept that the express provision relating to termination was qualified by the implied term of trust and confidence and that the employers had been in breach of that implied term in terminating the employee senior executives’ contracts when they did in order to prevent them from participating in a stock option plan about to be introduced. Master Fontaine remarked: ‘… this is an area of the law which is in the process of developing. The vast majority of the cases have been heard during the last five to six years. It would not, in my judgment, be appropriate to determine this claim at a summary hearing …’.

[5.55] Ireland can benefit from the considerable jurisprudence and academic literature in the UK. In particular it can be predicted that Eastwood will be of enormous potential influence. A degree of appetite to pierce the Johnson exclusion area seems detectable in some remarks of the Supreme Court in Maha Lingham v Health Service Executive.80 Fennelly J referred to the traditional legal principles governing termination of employment ‘although perhaps modified to some extent in the light of modern developments’, namely, that a contract may be terminated on the giving of reasonable notice. The plaintiff had argued that there had developed in parallel with the statutory claim for unfair dismissal ‘the tendency of the courts’ to imply a term of good faith and mutual trust into contracts of employment. ‘This is a development which is perhaps at its early stages and it is not contested in the present case … the question is whether the plaintiff has made out the sort of case that would be necessary to show that the contract of employment had been undermined to such an extent by the employer in this case that the employer was deprived of the right to give a proper period of notice of termination.’

(6) Edwards v Chesterfield [5.56] Edwards concerned two joined cases. In the first, a highly paid consultant was accused of wrongdoing. He was brought before the relevant disciplinary committee. However, there was a procedural flaw in the way the committee was formed in that it did not include a clinician. When he was ultimately dismissed, he argued in the civil courts (having withdrawn an unfair dismissal claim) that that the dismissal had been arrived at in breach of contract. In the second case, Botham, a care worker had been accused of gross misconduct towards two teenage girls and, following a disciplinary hearing, he was dismissed and his name was placed on the list of persons deemed unsuitable to work with children under the Protection of Children Act 1999. His claim for unfair dismissal and wrongful dismissal was upheld. He then instituted further proceedings in the High Court for breach of contract, alleging that the employer had failed to comply with its disciplinary code, which was an express term of his contract, and as a result he suffered a loss of reputation and was put on the statutory list that prevented him from obtaining employment in his chosen field. 79 80

Reda v Flag Ltd [2002] IRLR 747. Maha Lingham v Health Service Executive [2005] IESC 89, [2006] ELR 137 (Fennelly J ex tempore).

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[5.57] In Edwards, a majority of the Supreme Court held that the Johnson exclusion zone did apply, Lord Dyson confirming that: ‘Parliament … could not have intended that the inclusion of these provisions in a contract would also give rise to a common law claim for damages for all the reasons given by the House of Lords in Johnson.’81 [5.58] Botham further claimed that, if the correct procedure had been followed, he would have been cleared of all charges and he would have retained his job and reputation. He argued that the failure to follow the correct procedure was a breach of contract, which occurred prior to the dismissal, and had caused him the loss of destroying his career. He claimed what Elias LJ has called ‘career long loss’82 – compensation for the loss of salary for the remainder of his expected career as a consultant surgeon. This would have amounted to approximately £3.8 million. The employer’s position was that, even if there had been a wrongful dismissal and a breach of contract, the maximum damages available comprised wages for the contractual period of notice plus a period of wages representing the time that it would have taken to follow the correct procedure (the so-called Gunton83 extension). The Court of Appeal upheld Mr Edward’s claim for economic loss arising from reputational damage caused by the breach of contract through the use of the incorrect procedure. Following Eastwood, analysed above in this chapter, this claim for stigma damages was deemed to fall outside the Johnson exclusion zone since the reputational damage occurred prior to the dismissal. [5.59] On appeal to a seven-judge Supreme Court, the Court was strongly divided. Lords Dyson, Walker and Mance held that the claim fell within the Johnson exclusion zone. Lady Hale and Lords Kerr and Wilson held that it fell outside the Johnson exclusion zone. Lord Phillips ultimately decided the case on the different ground that it fell within the precedent of Addis v Gramophone Co.

[5.60] As Collins notes, the division of opinion between the members of the Supreme Court in Edwards was in fact more complex than this.84 Thus, Lady Hale insisted that the exclusion zone only applied to claims based upon the implied term of mutual trust and confidence, whereas, by contrast, Lords Kerr and Wilson, agreeing on this point with Lords Dyson, Walker and Mance, held that the exclusion zone could apply to breach of both express and implied terms in the contract of employment. In addition, Lords Dyson, Walker and Mance insisted that in essence Mr Edward’s claim was about the manner of his dismissal and so fell within the Johnson exclusion zone, whereas Lords Kerr and Wilson held that Mr Edward’s claim for reputational damage arose as soon as the disciplinary panel had reached its conclusion, and the dismissal that happened on the next day was a separate event.85

[5.61] In Botham, the Supreme Court applied the exclusion zone to that claim, with only Lady Hale dissenting. Lord Kerr explained the distinction he drew between the two 81 82

83 84 85

Edwards, per Lord Dyson at 39. Wardle v Crédit Agricole Corporate Bank [2011] EWCA Civ 545, [2011] ICR 1290, per Elias LJ at [19]. Gunton v Richmond upon Thames LBC [1980] ICR 755. Collins, ‘Compensation for Dismissal: In Search of Principle’ (2012) 41 ILJ 208, 212. Collins, ‘Compensation for Dismissal: In Search of Principle’ (2012) 41 ILJ 208, 212-3.

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[5.65]

cases: Mr Botham only suffered reputational damage as a result of his dismissal, which had led to his inclusion on the list of prohibited persons, whereas Mr Edward’s reputational damage occurred immediately after the disciplinary panel had reached its verdict. Is that a convincing distinction?

[5.62] If there is a relevant principled distinction between the cases regarding the application of the Johnson exclusion zone, it is this: Mr Edwards claimed that the wrong disciplinary procedure was used, so that in theory he could have obtained an injunction to stop it in its tracks; in contrast, in Mr Botham’s case, the correct procedure was followed, though the conduct of the hearing seems to have been flawed. [5.63] If the view of the composite majority in Edwards is followed, it has the following consequences. The distinction drawn in Eastwood between breach of contract and dismissal cannot be relied upon. The question is rather one of substance: if the claim concerns the manner of dismissal causing reputational damage, even if in form it concerns a breach of a term of the contract, the claim may be disallowed. This substantive question may be better formulated in this broader way: Any claims under the common law for dismissal or breach of contract that bypass the limitations on the rights and remedies provided by the statutory law of unfair dismissal should be disallowed. [5.64] According to Lord Dyson, the question in each case, following Eastwood v Magnox Engineering plc,86 is ‘whether or not the loss founding the cause of action flows directly from the employer’s “failure to act fairly when taking steps leading to dismissal” and “precedes and is independent of” the dismissal process’.87 Lady Hale in dissent noted that there was no reason to believe that Parliament had, by passing the unfair dismissal legislation, intended to foreclose any future development of a common law remedy in this area, or that it intended to cut down upon or reduce the remedies available to employees whose employers acted in breach of their contracts of employment.88

(7) Rejection of implied term in Australian law: Commonwealth Bank of Australia v Barker [5.65] In its decision in Commonwealth Bank of Australia v Barker,89 the High Court of Australia has stated that such an implied term ‘is a step beyond the legitimate lawmaking function of the courts’90 and does not form part of Australian law. Consequently, the law in Australia and the British Isles now diverges markedly on this fundamental question, a divergence that presents a range of questions as to the nature of the contract of employment and the role of the courts in interpreting that contract. 86 87 88 89

90

Eastwood v Magnox Engineering plc [2004] UKHL 35; [2005] 1 AC 503; [2004] ICR 1064. Edwards, per Lord Dyson at 51. Edwards, per Lady Hale at 111. Commonwealth Bank of Australia v Barker [2014] HCA 32. See Chighine, ‘Commonwealth Bank of Australia v Barker – No implied term of mutual trust and confidence in employment contracts but the door still open for good faith’ (2015) 28 Australian Journal of Labour Law 77. Per French CJ, Bell and Keane JJ delivering the majority judgment, 1.

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[5.66]

Redmond on Dismissal Law

[5.66] The majority judgment in Barker emphasised the changes which the employment relationship had undergone as a fundamental social relationship, moving from being status oriented as reflected in the master-servant relationship to its contemporary position of being contract oriented.91 The majority also stressed the significance of the evolution of statutory law-making in this area, and the resulting symbiotic relationship between the common law and legislation in regulating the employment relationship.92 The High Court underlined the important differences between the regulatory histories of Australia and the United Kingdom, with each responding to local factors, such as the effect on Australian laws of the division of law-making responsibilities between the Commonwealth and the states under the Constitution. The majority judgment further laid emphasis on the very specific circumstances that had given rise to the recognition of the term in the United Kingdom as revealed by the decision in Western Excavating,93 and noted that those contextual factors were not at play in Australia.

[5.67] At a normative level, the majority concluded that implying a mutual duty of trust and confidence would go beyond the necessity test to which implied terms in law must be subject. The obligations which would be imposed on the parties would be greater than could be supported by that test of necessity.94 Separate concurring judgments were delivered by Kiefel and Gageler JJ respectively. (8)

Overarching term?

[5.68] Much has been written as to whether the implied obligation is overarching. It certainly seems to extend beyond a precise formulation to a normative approach or framework of standards for employing entities and employees elaborated in particular contexts, eg sexual harassment95 and suspension without reasonable cause.96 Brodie has continued his invaluable analysis about the conceptual basis for the normative content of the implied obligation.97 He proffers two conceptual bases: the private law notion of a requirement of good faith in the performance of certain classes of contract; and the notion developed in public law of the control of the exercise of certain powers or discretions by reference to the ideas of legality, rationality, procedural regularity and the realisation of legitimate expectations. His aspiration of a convergent evolution is towards a single and overarching conception of the obligation of mutual trust and confidence which will combine these notions as expressing the core values of the 91 92 93 94 95 96 97

Commonwealth Bank of Australia v Barker [2014] HCA 32 at 16. Commonwealth Bank of Australia v Barker [2014] HCA 32 at 17. Analysed in Ch 19 of this work. Commonwealth Bank of Australia v Barker [2014] HCA 32 at 37. Moores v Bude-Stratton Town Council [2001] ICR 271 (EAT). Gogay v Hertfordshire County Council [2000] IRLR 703 (CA). ‘Beyond Exchange: the New Contract of Employment’ (1998) 27 ILJ 79; ‘Legal Coherence and the Employment Revolution’ (2001) 117 LQR 604; ‘Mutual trust and confidence: catalysts, constraints and commonality’ (2008) 37 ILJ 329; ‘Mutual Trust and Confidence: Further Clarification’ (2011) 102 Emp LB 2; see more generally Brodie, ‘How relational is the employment contract?’ (2011) 40 ILJ 232.

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Wrongful Dismissal: Limitations in the Contract

[5.68]

common law.98 His is not a lone voice. Sir Nicholas Browne Wilkinson VC in Imperial Tobacco said: ‘I will call this implied term “the implied obligation of good faith”.’99 According to Freedland, this fits in well with what has been depicted as the role of the idea of good faith in a general movement ‘from “classical” to modern contract law’100 and with what has been described as ‘the productive disintegration of private law’.101 Not only are there judicial decisions102 to support this analysis, there are extrajudicial writings of leading common law judges to this effect.103 In Barker, analysed above, the various judgments delivered by members of the High of Australia noted outstanding questions about whether a duty of good faith could be implied into contracts generally but did not pursue these questions.104 The duty of good faith has, however, been accepted by the Supreme Court of Canada.105 In the Irish Court of Appeal decision in Flynn v Breccia106 – a decision which only serves to underline the distinctiveness and importance of the implied mutual duty of trust and confidence in the contract of employment – the Court of Appeal did not decide whether there is an implied duty of good faith in Irish contract law generally, leaving this question for another occasion. It is noteworthy however, that, Hogan J commented thus: ‘The fact that the Irish courts have not yet recognised such a general principle may over time be seen as simply reflecting the common law’s preference for incremental, step by step change through the case law, coupled with a distaste for reliance on overarching general principles which are not deeply rooted in the continuous, historical fabric of the case law, rather than an objection per se to the substance of such a principle.’107 98

99

100

101 102 103

104

105 106 107

See Oliver, Common Values and the Public-Private Divide (London, Butterworths, 1999). On the commonalities and divergence between common and civil law see Saintier, ‘The elusive notion of good faith in the performance of a contract, why still a bete noire for the civil and the common law?’ (2017) 6 JBL 441. Imperial Tobacco [1991] ICR 524 at 533. In South Africa see Mort NO v Henry Shields-Chiat 2001 (1) SA 464 (C): ‘Like the concept of boni mores in our law of delict, the concept of good faith is shaped by the legal convictions of the community ... requires that careful account be taken of the existence of our constitutional community, based, as it is, upon principles of freedom, equality and dignity.’ Beatson and Friedman, Good Faith and Fault in Common Law (Oxford, Clarendon Press 1995) 1–17. Collins, ‘Regulating the Employment Relation for Competitiveness’ (2001) 30 ILJ 17. Eg Gogay v Hertfordshire County Council [2000] IRLR 703 (CA). Sedley, ‘Public Law and Contractual Entitlement’ (1994) 23 ILJ 201; Laws ‘Public Law and Employment Law: Abuse of Power’ (1997) PL 455; Lord Toulson, ‘Fundamental Rights and the Common Law’: Keynote address given at the Fundamental Rights Conference: A Public Law Perspective, LSE (10 October 2015). See for example the judgment of the majority in Commonwealth Bank of Australia v Barker [2014] HCA 32 at 42. For analysis of the relationship between good faith and trust and confidence, see Riley, ‘Siblings But Not Twins: Making Sense of “Mutual Trust” and “Good Faith” in Employment Contracts’ (2012) 36 Melbourne University Law Review 526. Bhasin v Hrynew [2014] SCC 71. Flynn v Breccia [2017] IECA 74 (8 March 2017). Flynn v Breccia [2017] IECA 74 (8 March 2017) per Hogan J at 8.

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It is instructive to compare and contrast the approach in Flynn v Breccia with that adopted by the Supreme Court of Canada in Wallace v United Grain Growers Ltd.108

[5.69] A significant recent development in the United Kingdom is the decision in Braganza v BP Shipping.109 Perhaps most noteworthy for present purposes is the comment of Lady Hale JSC to the effect that when she stated that ‘the party who is charged with making decisions which affect the rights of both parties to the contract has a clear conflict of interest,’ and that this is heightened when there is a ‘significant imbalance of power’.110 [5.70] Freedland himself suggests an over-arching general principle of ‘contractual fair management and performance’.111 This restores the centrality of the employing entity’s obligation towards its employees. He suggests that the notions of mutuality or reciprocity, care and co-operation, mutual trust and confidence, loyalty and freedom of economic activity, can all be gathered into an overarching idea or standard of contractual fairness. This would sit above principles some of which are themselves framework principles. [5.71] Might Ireland develop an overall ‘fairness’ principle of which the right to basic fairness of procedures is but one component of fair management and performance? Fair management and performance would also require in this jurisdiction a respect for employees’ constitutional rights. Inconsistencies are slowly being mitigated in recent years in this exciting area of development which surely demands that the biggest inconsistency, the Johnson exclusion area, be exposed and rejected. There is now a clearer path through the law which may be followed. Judges in Ireland and in the UK, of which there are notable exponents, have been able to cut straight through previously equivocal precedent and to declare in forthright terms what the law should be. The aspiration here is to encourage that path.

108 109 110 111

Wallace v United Grain Growers Ltd [1977] 3 SCR 701. Braganza v BP Shipping [2015] UKSC 17, [2015] 1 WLR 1661. Braganza, per Lady Hale at 18. Freedland, The Personal Employment Contract (OUP, 2003), 186. ‘Judicial advance should be gradual ... [O]ne step is enough ... It is, I concede, a less spectacular method of progression than somersaults and cartwheels; but it is the one best suited to the capacity and resources of a Judge.’ Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443.

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Chapter 6

Effect of Breach on Concept of Termination A.

AUTOMATIC OR ELECTIVE THEORY

[6.01] The various ways in which breach of an employment contract may be effected by an employer have been described in the two previous chapters. A crucial question remains. What is the precise effect of an employer’s repudiatory breach on the contract of employment?1 Wrongful dismissal, as noted, constitutes dismissal in breach of contract. It involves a termination of the contract as well as of the relationship of employment. Does an employer’s repudiatory conduct automatically terminate the contract, or if not, or if only on occasion, is termination dependent upon some further act or election by the injured party? These issues are complex but at the same time they are fundamental to an understanding of wrongful dismissal. Not only do they reveal much about the nature of the law’s protection, and the principles upon which remedies for wrongful dismissal are based, they also highlight many of the inadequacies which bedevil the so-called contract model of employment. More than anything, they are significant in relation to statutory unfair dismissal. The latter is not treated as a concept with a special meaning but as one which stems from the ordinary common law of contract. The effect of contract doctrine on statutory unfair dismissal is discussed in Chapter 22. The focus here is on termination at common law. [6.02] A basic problem arises because contractual repudiation cannot be clearly or consistently defined. Its meaning was explored in Decro-Wall Practitioners Int SA v Practitioners in Marketing Ltd,2 wherein Sachs LJ ‘at the risk of being dubbed oldfashioned’ said that, to constitute repudiation, the breach of contract must go ‘to the root of the contract’.3 Repudiation is frequently described in such terms. The employment is ‘struck at fundamentally’4 or there is a deliberate flouting of essential contractual conditions. It is a serious matter, not lightly to be inferred. The summary dismissal of an employee, founded upon his alleged breach, affords an illustration of repudiation. It is precisely where repudiation takes the form either of walking out by the employee or of dismissal, constructive or otherwise, that contention can arise. There is less difficulty where, for example, an employer wishing to continue the relationship of employment unilaterally insists upon a change in the terms of employment to which it is not contractually entitled. If it wishes to avoid liability for breach of contract the employer should give express notice of termination of the required length. This is the clear 1

2 3 4

See Cabrelli and Zahn, ‘The elective and automatic theories of termination at common law: Resolving the conundrum?’ (2012) 41 ILJ 346. Decro-Wall Practitioners Int SA v Practitioners in Marketing Ltd [1971] 2 All ER 216. Decro-Wall Practitioners Int SA v Practitioners in Marketing Ltd [1971] 2 All ER 216 at 227. Laws v London Chronicle Ltd [1959] 2 All ER 285 at 287 per Evershed LJ.

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Redmond on Dismissal Law

implication from the leading case of Rigby v Ferodo5 where the employer had promulgated new wage rates which reduced the plaintiff’s wages by £30 per week. The House of Lords held this amounted to repudiatory breach requiring acceptance by the employee. It did not automatically bring the contract to an end. The employee had not impliedly accepted repudiation by working on and accepting for the time being a reduced wage under protest. It was held that damages could be claimed on a continuing basis.

[6.03] In circumstances of repudiatory breach an employee may either stay or go. If he decides to go, the contract is terminated as and when he leaves. Termination is elective. There is no question of the repudiatory breach itself automatically terminating the employment relationship. This, indeed, represents general contract theory. In the event of breach an injured party has the option of treating the contract as continuing or of regarding himself as discharged from any further obligations under the contract. However, as stated, problems are manifold where repudiatory breach in the specific contract of employment takes the form of walking out by the employee or of dismissing, constructively or otherwise, where, in a nutshell, the employment relationship is sundered. [6.04] Suppose, for instance, an employer has dismissed with inadequate notice (distinguish the example of dismissal where the employee is in breach). Has the employee so dismissed an option to go or to stay, or is his or her employment automatically terminated? Can he or she, in accordance with general contract theory, refuse to accept the repudiatory breach and turn up for work and, although not given work, claim remuneration on the ground that he or she is ready and willing to do the work?6 The traditional view of the common law courts was that a special rule operated in the context of employment to the effect that repudiation in the form of wrongful dismissal unilaterally terminated the contract of employment without the need for its acceptance by the injured party.7 It gradually became clear that, in the same way, wrongful repudiation by an employee automatically brought the employment contract to an end. Irish authority for this is found in Carvill v Irish Industrial Bank,8 wherein O’Keeffe J said: ‘There can be some breaches of contract so fundamental as to show that the contract is entirely repudiated by the party committing them, and that such an act might be relied upon in an action for wrongful dismissal, not as justifying the dismissal, but as supporting the plea that the dismissed servant had himself put an end to the contract.’ 5 6

7

8

Rigby v Ferodo [1987] IRLR 516. Cf GKN (Cwmbran) Ltd v Lloyd [1972] ITR 160 at 166; Sanders v Ernest A Neale Ltd [1974] ITR 395 at 400-01. Vine v NDLB [1956] 1 QB 658 at 674, [1957] AC 488 at 500; Francis v Kuala Lumpur Councillors [1962] 1 WLR 1411 at 1417; Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 186; Sanders, above. Carvill v Irish Industrial Bank [1968] IR 325 at 345.

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Effect of Breach on Concept of Termination

[6.06]

[6.05] In 1971, however, the tide began to turn. In Decro-Wall Int SA,9 Salmon LJ expressed some misgivings as to whether a wrongful dismissal brings a contract of service to an end in law, ‘although no doubt in practice it does’. Sachs LJ10 expressed a similar view. Both Lords Justice recognised, obiter, that a dismissed servant’s remedy must lie only in damages and that he could not sue in debt for remuneration under the contract in respect of any period after his employment had actually ceased. The doubts expressed in this case became positive affirmations in Thomas Marshall (Exports) Ltd v Guinle,11 when Megarry VC held that a contract of personal service was no exception to the general rule that repudiation did not automatically discharge the contract. And in Gunton v Richmond upon Thames LBC,12 this approach of the common law was reconfirmed by the Court of Appeal. Gunton, a college registrar, had been appointed on the basis that his employment was terminable by one month’s notice in writing on either side. The employing council had adopted a disciplinary procedure but had bypassed early stages thereof and informed the plaintiff he was to be dismissed while notifying him of a right to appeal. The majority of the court (Buckley and Brightman LJJ, Shaw LJ dissenting) held that the elective theory of termination applied to all forms of wrongful repudiation of the contract of employment, wrongful dismissal being no exception. [6.06] Buckley LJ in Gunton recognised that there had been much judicial difference of opinion on the question of whether wrongful dismissal of a servant puts an immediate end to the contract of service or whether such repudiation must be accepted in order to terminate the contract. He questioned why the doctrine should operate differently in the case of contracts of personal service from the way in which it operates in respect of other contracts. In principle he saw no reason why there should be any difference. He rejected the argument commonly advanced in support of the automatic theory, namely, that the courts will not decree specific performance of a contract of personal service, on the basis that there are innumerable kinds of contract which the court would not order to be specifically enforced, to which the doctrine would undoubtedly apply.13 In the absence of special circumstances, however, he observed that a wrongfully dismissed employee has no option but to accept the employer’s repudiation of contract. Consequently, in the absence of special circumstances, Buckley LJ was of the view that 9

10 11 12

13

Decro-Wall Practitioners Int SA v Practitioners in Marketing Ltd [1971] 1 WLR 361 at 369. See, also, Hill v CA Parsons Ltd [1972] 1 Ch 305, generally regarded at the time as an exceptional decision ([1975] ICR 351 per Roskill LJ). In Garner v Grange Furnishing Ltd [1977] IRLR 206 an employee was able to pursue an action for wrongful dismissal: employer’s conduct such that employee entitled to treat it as repudiation of the terms of contract. Decro-Wall Practitioners Int SA v Practitioners in Marketing Ltd [1971] 1 WLR at 375. Thomas Marshall (Exports) Ltd v Guinle [1978] IRLR 174. Gunton v Richmond upon Thames LBC [1980] ICR 755; see notes McMullen (1981) 40 CLJ 33; and Collins, Morrish and Smith (1981) 10 ILJ 50. In substance, this was the rationale of Shaw LJ’s disagreement with the reasoning of the majority in Gunton. Shaw LJ observed at 459: ‘[T]here can be no logical justification for the proposition that a contract of service survives a total repudiation by one side or the other. If the only real redress is damages, how can its measure or scope be affected according to whether the contract is regarded as still subsisting or as at an end? (contd.../)

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Redmond on Dismissal Law

the court in a case of wrongful dismissal should easily infer that the innocent party has accepted the guilty party’s repudiation. In any event, if a dismissed employee sues for damages for wrongful dismissal, he must by so doing accept the employer’s repudiation of the contract.14

[6.07] The majority in Gunton argued that either party may have a legitimate interest in keeping certain aspects of the contractual relationship alive. For example, an employer may wish to enforce a restrictive covenant (cf Guinle’s case, above) or an arbitration clause. The employee, as in Gunton, may wish to rely upon a disciplinary procedure, or he may wish to prolong the duration of his contract for the purposes of qualifying as to continuity of employment under unfair dismissals legislation. This is a further limitation. The two limitations together contradict any suggestion that the contract of employment can be artificially prolonged after wrongful dismissal, thus effecting an inconsistency with the law on injunctions to restrain dismissal (see Ch 10). [6.08] Only where an employer tries to speed up the effective date of termination, thereby precluding statutory terms, is it of the essence that an employee should be free to ‘accept’ repudiation. It is unnecessary otherwise to pray in aid of ‘incidental or collateral terms’ (per Buckley LJ) as a justification for wanting to keep the contract on foot. In ordinary contract cases, arbitration and limitation of damages clauses continue to exist after the main contract has been terminated and there is no reason why restrictive covenants or disciplinary procedures should not likewise be kept alive. [6.09] The last proposition is supported by the House of Lords’ decision in Photo Production Ltd v Securicor Ltd.15 The case concerned fundamental breach of a commercial security contract but the broad statements of principle enunciated therein are of general application in the law of contract. For the purposes of employment law, they appear to go one step further than Gunton in relation to the meaning of a contractual termination (although the difference may be no more than semantic). It is certain, however, that great caution must be exercised in relation to the meaning of 13

14

15

(\...contd) To preserve the bare contractual relationship is an empty formality. The servant who is wrongfully dismissed cannot claim his wage for services he is not given the opportunity of rendering; and the master whose servant refuses to serve him cannot compel that servant to perform his contracted duties. In this context remedies and rights are inextricably bound together. It is meaningless to say that the contract of service differs from other contracts only in relation to the availability of remedies in the event of breach. The difference is fundamental, for there is no legal substitute for voluntary performance.’ Of course, if the contract persists after a wrongful repudiation, the wage-work bargain will no longer be a part of it, so the employee will not be able to claim an agreed sum of wages, but only damages for breach of contract. See Honeyball and Pearce, ‘Contract, Employment and the Contract of Employment’ (2006) 35 ILJ 30. Photo Production Ltd v Securicor Ltd [1980] 1 All ER 556. The decision casts doubt on General Billposting Co v Atkinson [1909] AC 118, according to Phillips LJ in Rock Refrigeration Ltd v Jones [1996] IRLR 675. The same may be said of Campbell v Frisbee [2002] EWHC 328 (Ch), on which see a note by Clarke (2002) 31 ILJ 353.

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Effect of Breach on Concept of Termination

[6.12]

‘termination’. A contract can never be said to be ‘terminated’ in the strict meaning of the word. Rather, when one speaks of termination: ‘... what is meant is no more than that the innocent party or, in some cases, both parties are excused from further performance’.

[6.10] Lord Diplock developed these thoughts further in Photo Production Ltd and, according to Lord Wilberforce and the other Law Lords, they ‘state correctly the modern law of contract in the relevant respects’.16 His speech, therefore, is the most instructive. According to Lord Diplock: ‘every failure to perform a primary obligation is a breach of contract, but the unfulfilled obligations of each party remain unchanged [here he was referring to what is known as a breach of warranty] except in two cases and these are: (a)

fundamental breach: this is where the event resulting from the failure of one party to perform a primary obligation has the effect of depriving the other party of substantially the whole benefit which it was the intention of the parties that he should obtain, in which case the party not in default may elect to put an end to all primary obligations of both parties remaining unperformed;

(b)

breach of condition: this is where the contracting parties have agreed, whether by express terms or by implication of law, that any failure by one party to perform a particular primary obligation ... irrespective of the gravity of the event that has in fact resulted from the breach, shall entitle the other party to elect to put an end to all primary obligations of both parties remaining unperformed.’

Where the innocent party does elect to put an end to all the unperformed obligations of both parties, the following principles apply: ‘(i)

there is substituted by implication of law for the primary obligations of the party in default which remain unperformed, a secondary obligation to pay monetary compensation to the other party for the loss which he will sustain in the future in consequence of such future non-performance [this his Lordship called ‘anticipatory secondary obligation’; in relation to statutory unfair dismissal the anticipatory secondary obligation is supplied by Act of the Oireachtas and comprises the various remedies provided thereunder]; and

(ii)

the unperformed primary obligations of the other party are discharged.’

[6.11] Confusion must be avoided in regard to the source of secondary obligations. It is a mistake, said Lord Diplock, to use words such as contractual ‘rescission’ or ‘determination’. The contract is just as much a source of secondary as it is of primary obligations, even though the effects of breach may arise by implication of law.17 Applying modern contract principles, then, a contract of employment can never be said to be ‘terminated’ as such. This operates as a further gloss upon the elective theory of ‘termination’ in the event of breach. [6.12] The clarification of general contract principles in Photo Productions Ltd was much needed and worthwhile but it should not be assumed that the common law boot can be applied to every foot without discrimination. This is evident from Gunton. 16 17

Photo Production Ltd v Securicor Ltd [1980] 1 All ER 556 at 563. Photo Production Ltd v Securicor Ltd [1980] 1 All ER 556 at 566.

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[6.13]

Redmond on Dismissal Law

[6.13] To apply the general language of acceptance unreflectively to the contract of employment, as the Court of Appeal did in that case, is to fail to appreciate the latter’s relational, as distinct from its transactional, aspect and to obscure the structure of the implied mutual undertakings contained therein.

[6.14] A further significant step along the development of the British case law was the decision of the Court of Appeal in Boyo v Lambeth London Borough Council.18 In Boyo the employee worked as an accountant under a service contract which could be terminated by either party giving to the other one month’s notice. The employment could also be terminated summarily on the ground of gross misconduct after the conclusion of disciplinary procedures. The employee was accused of offences concerning conspiracy to defraud the Council. He was suspended on full pay pending conclusion of a police investigation. The following month committal proceedings were adjourned but bail conditions were imposed which prevented the employee from contacting any employee of the Council. Some weeks later, he was arrested again and charged with conspiracy to pervert the course of justice. The next day the Council informed him by letter that the suspension had terminated and as a condition of the bail was that he was not to contact any Council Officer, he was unable to fulfil his contract of employment. The contract was therefore ‘frustrated’ according to the Council. The employee straightaway communicated his willingness to be available to work and announced that he would attend work on a particular day. When he reported for work on that day, he was barred by the employer. He continued to maintain thereafter (he went home) that he was available for work. [6.15] Before the County Court, the Council abandoned its claim that it was relying upon the doctrine of frustration and conceded that it was unable to establish gross misconduct. As a consequence, the issues centred around when the employment terminated and what the plaintiff’s financial claims might be. The latter aspect is considered below, para [6.19]. [6.16] The County Court held that the Council’s letter was in effect a dismissal. The employee’s refusal to accept the dismissal as terminating the employment was tactical, said the court, and ‘contrary to reality’, and could be postponed no longer than the point in the action when he was ready for trial and obtained a hearing date, ie when he finally committed himself to a contested hearing.

[6.17] In the employee’s appeal against the decision to the Court of Appeal, some differing viewpoints emerged. Ralph Gibson LJ gave the main judgment and held, regarding the question of whether the employee was entitled to resist the wrongful termination of his employment, that had he not been constrained to follow the decision in Gunton,19 he would have departed from it and held that a wrongful dismissal automatically brings the contract to an end. However, he felt obliged by authority to follow that decision. 18

19

Boyo v Lambeth London Borough Council [1994] ICR 72. See too Marsh v National Autistic Society [1993] ICR 453 noted by Peyton (1994) 23 ILJ 35. Gunton [1980] ICR 755.

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[6.21]

[6.18] Assuming Gunton was correct, he could not, however, go along with the notion that acceptance was easily to be inferred (the position favoured by Buckley LJ, para [6.06] above). Real acceptance was necessary and it was not tenable to say that this occurred simply by conduct in taking another job or instituting proceedings. Accordingly, he would have disagreed with the trial judge in finding that a commitment to a contested hearing amounted to acceptance. Nonetheless, on the facts, the individual admitted that the employment was at an end at the trial itself and therefore acceptance had taken place, albeit at a later date. [6.19] Staughton LJ agreed with the result but made the point that he regarded the Council’s letter as an ‘unambiguous repudiation’ of the employment relationship. He would, unless constrained by Gunton, have regarded the employment contract as sui generis so that a ‘direct’ repudiation, whether by employer or employee, determines a contract of employment forthwith. Sir Francis Purchas held that the contract of employment is an exception to the general law of contract. In particular, it is characterised by the absence of the decree of specific performance. [6.20] Notwithstanding Boyo, in Britain it remained the position until the point was definitely settled in 2012 that the balance of authority favoured the elective theory in the case of a wrongful dismissal by an employer.20 The protagonist of this view forcefully responded to one of the chief arguments advanced against the elective theory of termination, namely, that specific performance is not generally available as a remedy: ‘This is a fallacy. One cannot maintain a rule about termination from the rule about remedies. Such is to turn the analysis about face. And ... even if the argument were attractive, it is no longer applicable in today’s climate when an increasing number of decisions do admit of the possibility of an injunction restraining dismissal in appropriate circumstances.’

The debate has now finally been resolved as a matter of British law with the decision of the UK Supreme Court in Société Générale (London Branch) v Geys.21 For the purposes of this chapter, the key issue to come before the United Kingdom Supreme Court was whether a repudiation of an employment contract, which takes the form of an express and immediate dismissal, automatically terminates the contract (the automatic theory) or – as was held in Gunton – whether the normal contractual rule applies that repudiation must be accepted by the innocent party (the elective theory)?

[6.21] It is necessary to set out the background facts in some detail. The claimant was employed by the London Branch of Société Générale, as managing director of ‘European Fixed Income Sales’ from 9 February 2005. He had a written contract and further terms were incorporated into it by the bank’s Staff Handbook. The contract contained a provision permitting either party to terminate his employment by giving three months’ notice. The Handbook contained a PILON clause reserving the bank’s right to terminate the claimant’s employment ‘at any time with immediate effect by making a payment to you in lieu of notice (or, if notice has already been given, the 20

21

McMullen, ‘Enforcing Contracts of Employment – ‘Going back to Basics’ in the Resolution of Employment Rights Disputes’ (1995) 24 ILJ 353 at 358. Société Générale (London Branch) v Geys [2013] 1 AC 523, noted by Burrows (2013) 42 ILJ 281, Aitken (2013) 129 LQR 335 and Cabrelli and Zahn (2013) 76 MLR 1106.

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balance of your notice period)’. If exercised, the contract required the bank to make a termination payment including a ‘compensation payment’. This was to be calculated by reference to the date when the employment terminated. If the date was after 31 December 2007, Mr Geys was entitled to a compensation payment reflecting awards made to him for the calendar years 2006 and 2007. If termination occurred before that date, it would be assessed by reference to his awards in 2005 and 2006, which were significantly lower.

[6.22] On 29 November 2007 the claimant was summarily dismissed in breach of the terms of the contract. On 18 December 2007 the bank paid into his bank account the correct sums due to him under the PILON clause. The bank then sent him a payslip and P45 setting out the payments. On 2 January 2008 the claimant’s solicitors wrote to the bank advising that he had decided to affirm his contract and requesting further details on the termination and associated payments. On 4 January 2008 the bank wrote to the claimant giving further details. At first instance it was held that the date when the claimant received the bank’s letter (deemed to be 6 January 2008) was the first time it notified him that it had exercised its contractual termination rights. The Court of Appeal, by contrast, held that the claimant’s employment had been terminated on 18 December 2007 when the PILON was made into his bank account. Mr Geys appealed to the United Kingdom Supreme Court. [6.23] The majority of the Supreme Court (Lord Sumption dissenting) held in favour of the claimant and ruled that the elective theory applies to contracts of employment, such that a wrongful repudiation terminates the contract only if and when accepted by the innocent party. It is interesting to reflect on the reasoning adopted by the majority in this regard. First, the majority was clearly heavily influenced by the concern that the automatic theory in the context of a contract of employment rewarded a wrongful repudiator, allowing the repudiator to select a termination date to the detriment of the innocent party. As Lord Wilson explained: ‘The automatic theory can operate to the disadvantage of the injured party in a way that enables the wrongdoer to benefit from his own wrong. The law should seek to avoid such an obvious injustice.’22

Lord Wilson referred to the cautionary note sounded by Professor Freedland to the effect that it is ‘a matter of concern if the common law of wrongful dismissal functions so as to invite opportunistic breach of contract’.23

[6.24] The majority further held that the automatic theory also failed to explain cases where, following an unaccepted repudiation, provisions that did not survive the termination had been enforced against the repudiator, such as those relating to competition or disciplinary procedures. As an example of the latter, Lord Wilson referred to Edwards v Chesterfield Royal Hospital NHS Foundation Trust,24 analysed in Chapters 5 and 11 of this work. Given that Edwards confirmed the absence of a right to 22 23

24

Société Générale (London Branch) v Geys [2013] 1 AC 523 at para 15. Société Générale (London Branch) v Geys [2013] 1 AC 523 at para 66 per Lord Wilson citing Freedland, The Personal Employment Contract (OUP, 2003) at 390. Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58, [2012] 2 AC 22.

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[6.26]

claim damages for breach of a duty to follow a disciplinary procedure, Lord Wilson remarked that this made the availability of the injunction ‘particularly precious’.25 He continued: ‘But it is self-evident that, had the wrongful repudiation already automatically terminated the contract, an injunction would not issue so as to require observance of a procedure designed to determine whether the employer was entitled to terminate it.’26

[6.25] Deprecating the automatic theory on the grounds of hopeless circularity – ‘there is no remedy so there is no right so there is no remedy’27 – the majority also expressed concerns28 about how far the automatic theory, if valid, would extend: should dismissals/ resignations be treated differently depending on whether they are express or implied; immediate or delayed; or outright or less than outright? Ultimately, the majority grounded its rejection of the automatic theory on the basis that to allow it would be to allow a wrongdoer to benefit from its own wrongdoing: ‘In proposing that the court should indorse the automatic theory, the Bank invites it to cause the law … in relation to contracts of employment to set sail, unaccompanied, upon a journey for which I can discern no just purpose and can identify no final destination. I consider, on the contrary, that we should keep the contract of employment firmly within the harbour which the common law has solidly constructed for the entire fleet of contracts in order to protect the innocent party, as far as practicable, from the consequences of the other’s breach.’29

[6.26] Lord Sumption delivered a strident dissenting judgment and held that Gunton was contrary to the consensus existing up the 1970s. Describing the dissenting judgment of Shaw LJ in Gunton as ‘unanswerable’,30 Lord Sumption justified his rejection of the reasoning of the majority in Gunton on the grounds that, inter alia, the decision ignored Lord Reid’s qualification in White & Carter (Councils) Ltd v McGregor31 that a repudiated contract can only continue with the cooperation of both parties. An innocent party cannot treat a contract as subsisting if they cannot perform or enforce it and its subject matter and core obligations have ended. Lord Sumption expressly sounded a note of caution that the approach of the majority would cause the reasoning to be ‘gratuitously extended, at least in the context of contracts of employment, to cases where there can be no contractual performance, because the relationship is dead and all that survives is the husk or shell of a contract devoid of practical content’. According to Lord Sumption, the elective theory accepted by the majority produced an unjust result giving the claimant a windfall, despite suffering no substantial loss measurable in damages. Innocent parties did not have an unfettered right to treat the contract as subsisting. 25 26 27 28 29 30 31

Société Générale (London Branch) v Geys [2013] 1 AC 523 at para 73. Société Générale (London Branch) v Geys [2013] 1 AC 523 at para 73. Société Générale(London Branch) v Geys [2013] 1 AC 523 at para 89 per Lord Wilson. Société Générale (London Branch) v Geys [2013] 1 AC 523 at paras 95-6. Société Générale (London Branch) v Geys [2013] 1 AC 523 at para 97 per Lord Wilson. Société Générale (London Branch) v Geys [2013] 1 AC 523 at para 139. White & Carter (Councils) Ltd v McGregor [1962] AC 413.

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[6.27] Acceptance by the aggrieved party remains a difficult issue. Buckley LJ’s approach in Boyo32 has been questioned thus:33 ‘There is no reason why a search for an alternative job cannot be made without prejudice to rights under the present contract and again, the act of bringing proceedings against an employer, whilst apparently hostile, is not inconsistent with the maintenance of the previous employment relationship.’

Ewing has strongly argued that to contrive acceptance is artificial34 and in Boyo both Ralph Gibson and Staughton LJJ had considered that, assuming the elective theory applied, ‘real’ acceptance would be necessary. The point has now been definitively settled as a matter of English law by the decision of the UK Supreme Court in Geys, where Lord Hope expressly stated: ‘I would endorse Ralph Gibson LJ’s criticism in [Boyo] of Buckley LJ’s observation in the Gunton case that in a case of wrongful dismissal the court should easily infer that the innocent party has accepted the guilty party’s repudiation of the contract. If the law requires acceptance of the repudiation, the requirement is for a real acceptance – a conscious intention to bring the contract to an end, or the doing of something that is inconsistent with its continuation.’35

B.

ELECTIVE THEORY IN IRELAND

[6.28] In Ireland, the High Court (Costello J) endorsed the elective approach in Industrial Yarns Ltd v Greene,36 a case in which the employer challenged claims for redundancy payments on the ground that there had been no dismissal or lay-off by reason of redundancy. Instead, it was contended, the claimants had terminated their own contracts of employment by resignation. Costello J realigned the law relating to discharge of contracts of employment with the traditional principles of repudiatory breach: ‘If there is no contractual power (express or implied) in the contract of employment to suspend the operation of the contract for a limited period then by ceasing to employ an employee and refusing to pay him wages the employer has been guilty of a serious breach of contract amounting to a repudiation of it. At common law that repudiation would not automatically bring the contract of employment to an end; the employee is free to accept that the repudiation has terminated the contract or not to do so … If he accepts the repudiation of the contract then there has been a constructive dismissal of the employee at common law and the contract has been terminated by the employer. But if the employee responds to the employer’s lay-off notice and adopts the lay-off procedures (instead of immediately accepting the employer’s repudiation of the contract) and it is shown that the statutory condition for their initiation by the employer did not exist, then, it seems, the employee is entitled to treat the repudiation of the contract (which occurred when the 32 33

34 35 36

Paragraph [6.14] above. McMullen, ‘Enforcing Contracts of Employment – “Going back to Basics” in the Resolution of Employment Rights Disputes’ (1995) 24 ILJ 353 at 359. Ewing, ‘Job Security and the Contract of Employment’ (1989) 18 ILJ 25. Société Générale (London Branch) v Geys [2013] 1 AC 523 at para 17. Industrial Yarns Ltd v Greene [1984] ILRM 15.

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[6.32]

cesser of employment began) as having terminated the contract of employment and to base his claim for redundancy payment on that fact.’37

[6.29] More recently, the approach in Industrial Yarns Ltd was referred to by the High Court (Edwards J) in Coffey v William Connolly Construction Ltd,38 where Edwards J expressed the view that the plaintiff in that case could legitimately contend that she had not been validly dismissed, relying on the elective theory. Edwards J stated that it was ‘clear to me from a review of the authorities that, in principle, she is entitled to adopt that position’. At the time of writing, the decision in Geys has not been judicially considered in this jurisdiction, but it is submitted that the body of Irish case law to date is consistent with the approach favoured by the majority in Geys. The elective theory is a relevant factor, albeit implicit, in the developing jurisdiction in injunction cases to restrain dismissal (see Chapter 10).

[6.30] The theory is particularly relevant when it comes to alleged breaches of implied terms by the employer leading to constructive dismissal. The developed formulation of the implied obligation of mutual trust and confidence has become, so far as the employer is concerned, that an employer will not, without reasonable and proper cause, conduct himself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Chapter 5 described how, as the law stands because of the ‘Johnson exclusion area,’ para [5.47], artificial distinctions must perforce be drawn between antecedent breaches of mutual trust and confidence and the employer’s repudiatory breach accepted by the employee as terminating the contract. Difficult questions of causation follow and will continue to beset litigation until actual and constructive dismissal are included firmly within the ‘exclusion area’. [6.31] The Johnson demarcation was evident in the constructive dismissal case of Pickering v Microsoft Ireland Operations Ltd39 where the plaintiff complained of being undermined following a division reorganisation at work. She claimed her job had become untenable and applied for the company’s redundancy package but was refused as she would need to be replaced in her job. The plaintiff went on sick leave and remained out due to stress-related illness until her employment with the defendant terminated. She submitted that the defendant’s actions and failure to honour contractual promises made to her resulted in her suffering a nervous breakdown and left her with no choice but to treat her contract as repudiated.

[6.32] Esmond Smyth J (sitting in the High Court) held, among other things, that on the evidence the plaintiff had been given an assurance by the defendant that she would be party to the resolution of any difficulties arising from implementation of the division 37

38 39

Industrial Yarns Ltd v Greene [1984] ILRM 15 at 19. Costello J referred in the course of the above passage to Gunton v Richmond upon Thames LBC [1980] 3 WLR 714. Coffey v William Connolly Construction Ltd [2007] IEHC 319. Pickering v Microsoft Ireland Operations Ltd [2006] ELR 65. This judgment was appealed to the Supreme Court but the appeal was subsequently withdrawn.

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reorganisation plan. That assurance constituted a term of her contract of employment and was a fundamental term: ‘the contractual term which was breached by the defendant was one which went to the root of the plaintiff’s contract of employment with the defendant. It was a term which was there to protect the plaintiff’s vital interests in her future employment with the defendant …’.

[6.33] The defendant’s failure to so involve the plaintiff once difficulties arose constituted a breach of that fundamental term and amounted to constructive dismissal, entitling the plaintiff to treat the contract as repudiated. The judge said: ‘However, the mere fact that there has been a breach of contract does not, of itself, alter the obligation of either party under the contract; what it may do, is to justify the injured party, if she chooses, in regarding herself as absolved or discharged from the further performance of the contract. She could still have an option of either treating the contract as still in existence or to regard herself as discharged …’.40

The court held that the employee had acquired a cause of action at law for breach of contract which was unimpaired by the subsequent repudiation of her contract. The importance of the state of the jurisprudence on the elective/automatic theory will surface once more in Chapter 22 where various interpretative difficulties under the Unfair Dismissals Acts 1977–2015 are attributed to the influence and the ambiguity of the common law.

40

Pickering v Microsoft Ireland Operations Ltd [2006] ELR 65 per Esmond Smyth J at 128.

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Chapter 7

Constitutional Justice INTRODUCTION [7.01] Constitutional justice is potentially available to everyone. The Supreme Court made it clear in Gunn v Bord an Choláiste Ealaíne is Deartha1 that there are not two classes, office-holder and employee, when it comes to invoking the benefits of natural and constitutional justice. Each case, as the courts constantly reiterate, depends on its own facts. Natural and constitutional justice will depend on the circumstances of the case and the details of the particular procedure, whether laid down in statute or by agreement. The minimum to which an employee is entitled is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions. This chapter is potentially relevant to all employees.2 It puts a spotlight on the two most fundamental precepts of natural justice: audi alteram partem and nemo iudex in causa sua.

A.

NATURAL AND CONSTITUTIONAL JUSTICE

[7.02] In Ireland, the idea gradually became popular that natural justice is subsumed under a broader heading of ‘constitutional justice’. Constitutional justice was first mooted by Walsh J in McDonald v Bord na gCon,3 where he gave it as his view that: ‘In the context of the Constitution, natural justice might be more appropriately termed constitutional justice and must be understood to import more than the two well-established principles that no man shall be a judge in his own cause and audi alteram partem.’

[7.03] In The State (Gleeson) v Minister for Defence4 Henchy and Kenny JJ (Supreme Court) sought to distinguish between natural and constitutional justice. Because of the wide scope of constitutional guarantees, whatever value ‘constitutional justice’ may have as a term of generic connotation, Henchy J looked upon a plea of denial of constitutional justice as lacking the concreteness and particularity necessary to identify 1 2

3

4

Gunn v Bord an Choláiste Ealaíne is Deartha [1990] 2 IR 168. See para [5.12]. Members of religious communities cannot claim entitlement to constitutional justice regarding decisions made by their religious superior in relation to their community: O’Dea v Ó Briain [1992] ILRM 364. McDonald v Bord na gCon [1965] IR 217 at 242. Under the so-called ‘double construction rule’, where two constructions of an Act are possible, one which is constitutional, the other unconstitutional, the courts presume the Oireachtas intended the constitutional construction to prevail. See also East Donegal Co-op Ltd v AG [1971] IR 317, 104 ILTR 81 and Glover v BLN Ltd [1973] IR 388. The State (Gleeson) v Minister for Defence [1976] IR 280.

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[7.04]

and bring into focus the precise constitutional issue being raised. According to the judge, to plead a denial of constitutional justice it was necessary to prove: ‘(1)

the application in the circumstances of the case of a specified constitutional right, either express or implied;

(2)

that the decision or decisional process in question has infringed that right; and

(3)

that the plaintiff stands aggrieved by that infringement.’5

Kenny J rejected counsel’s use of ‘natural’ and ‘constitutional’ justice as though they were synonymous. He also stressed the need for a constitutional context before constitutional justice may apply. In subsequent cases the courts tended to rely on natural justice to the exclusion of constitutional justice. The latter was not pleaded in its own right.

[7.04] However, constitutional justice persisted as a concept and is now well established. It goes beyond the two basic tenets of natural justice, audi alteram partem and nemo iudex in causa sua to include other guarantees, eg against statutory infringement. As Costello P put it in McCormack v Garda Complaints Board:6 ‘It is now established as part of our constitutional and administrative law that the constitutional presumption that a statute enacted by the Oireachtas intended that proceedings, procedures, discretions and adjudications permitted, provided for, or prescribed by Acts of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. It follows therefore that an administrative decision taken in breach of the principles of constitutional justice will be an ultra vires one and may be the subject of an order of certiorari. Constitutional justice imposes a constitutional duty on a decision-making authority to apply fair procedures in the exercise of its statutory powers and functions.’

This depiction of constitutional justice as imposing a positive duty on decision-makers to provide for fair procedures in exercising statutory powers and functions significantly shifts the focus of attention, broadens the scope and seriousness of what is involved and is not subject to the limits of the common law. According to Hogan and Whyte:7 ‘... the concept of “constitutional justice” or the constitutional right to fair procedures probably includes the right to sue for damages for breach of the constitutional right to fair procedures; the right to reasons in respect of a judicial or administrative decision; the right to an administrative decision within a reasonable time; the right to have legal proceedings instituted and processed within a reasonable time; a requirement that an administrative decision is based on probative evidence and, ultimately, the right to have a statute invalidated for want of compliance with the guarantee of fair procedures … it may also be said that the “two principles of natural justice as they pre-existed the Constitution are now part of the guarantees of fair procedures and constitutional justice”.’ 5 6

7

The State (Gleeson) v Minister for Defence [1976] IR 280 at 295. McCormack v Garda Complaints Board [1997] 2 IR 489 at 499–500. In Conway v An Taoiseach (ex tempore, 12 April 2006) HC, Feeney J applied constitutional justice to disciplinary proceedings where the employee was not at risk of dismissal. Hogan and Whyte, Kelly: The Irish Constitution (4th edn, Tottel Publishing, 2003) at para 6.1.84. Cases showing the effect of constitutional justice include Haughey v Moriarty [1999] 3 IR 1 and Maguire v Ardagh [2002] 2 IR 385.

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[7.07]

According to the authors it may be that in the majority of cases the fact that this concept is now rooted in the Constitution will not materially add to the range of protection available to the person affected by an adverse administrative decision which he seeks to impugn.

[7.05] Where employment injunctions are granted for breach of the implied term of fairness, the implications of a constitutional root could, however, be far-reaching. The argument would go that the courts were being asked to protect essential, constitutionally guaranteed rights, not concessions. Moreover pragmatism could not take precedence over breach of a constitutional right and the court’s obligation to defend and vindicate the constitutional rights of the citizen. Could damages ever be an adequate remedy? See further para [10.42] et seq. When the term ‘constitutional justice’ is used in this book, it will be assumed that constitutional justice has succeeded and subsumed natural justice in this jurisdiction. Some of the older decisions in which the language of ‘natural justice’ is used need to be regarded in this context. [7.06] The two basic tenets of constitutional justice, considered below, are audi alteram partem and nemo iudex in causa sua. The maxim audi alteram partem8 implies that no judicial or ‘quasi-judicial’ decision may be taken without giving the party affected an opportunity of stating his case and of being heard in his own defence. A right to be heard and to defend oneself is illusory without time to prepare a defence and knowledge of the case to be met. What is sufficient notice will vary with the facts, as will the detail which must be given of the case to be met. Usually a party claiming he has been denied natural justice will rely on the inadequacy of the notice he has received, whether as to the details of the case he is to answer, or as to time, so that he is unable to prepare his defence satisfactorily. The tendency of the courts today is to extend rather than restrict the application of the rule. An infringement or threatened infringement of some known right, constitutional, proprietary, contractual or personal, is a sine qua non for the application of the rule. Article 6(1) of the European Convention on Human Rights provides in somewhat similar terms: In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

[7.07] The nemo iudex principle precludes persons who are in effect prosecutors or who might be suspected of bias from adjudicating. Bias may be actual. It may be apparent as where the adjudicator has an interest in the outcome of the proceeding, or if a reasonable person might have apprehended that there might be bias because of some proven external circumstance such as a family relationship. 8

As to its origins in the common law see Kelly, ‘Audi Alteram Partem’ (1964) 9 Natural Law Forum 103. For application of constitutional justice in broad sphere of administration, where an administrative organ is bound to act judicially, see Hogan & Whyte, Kelly: The Irish Constitution (4th edn, Tottel Publishing, 2003) at 640.

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[7.08] Most Irish cases concern employees whose employment is regulated by statute. The two precepts, audi alteram partem and nemo iudex are not necessarily applicable where an employer dismisses an employee, as the Supreme Court recognised in Mooney v An Post.9 In Tierney v An Post10 the Supreme Court held that similar considerations would apply to a contract for services such as that before the Court (postmaster to a subpost office). Where, as there, the contract provided for disciplinary machinery which was invoked to determine whether a person should retain his office of sub-postmaster or be visited with a lesser sanction, these maxims were applicable. In Khan v Health Service Executive11 the High Court (Laffoy J) considered what was meant by the term ‘fair procedures’: ‘At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to.’

B.

AUDI ALTERAM PARTEM

[7.09] The law regarding the hearing of charges before domestic tribunals was summarised early on by the High Court (Budd J) in Flynn v Great Northern Railway Co (Ire) Ltd:12 ‘The person accused must be informed clearly of that with which he is charged. He must then get a fair hearing. This does not mean necessarily such a hearing as he would get in a court of law. It means that he will be treated fairly according to our ordinary standards of fair play. He must get a fair opportunity of refuting the charge. When I speak of a fair hearing I mean a hearing that is fair having regard to the nature of any agreement or contract which he may have entered into as regards the nature of the hearing. He may, for example, have agreed that the charge shall be determined on written submissions. If so, he cannot complain of any unfairness if the Tribunal does not hear oral evidence.’

[7.10] An equally succinct statement of the law was given by Henchy J (Supreme Court) in Kiely v The Minister for Social Welfare:13 ‘Tribunals exercising quasi-judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures and the like – but they may not act in such a way as to imperil a fair hearing or a fair result.’ 9

10 11 12 13

Mooney v An Post [1998] ELR 238, see para [5.13] above. In Britain not every employee whose terms are regulated by statute can enjoy the benefit of natural justice. See, eg, Vidyodaya University of Ceylon v Silva [1964] 3 All ER 865; Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 at 194 per Bayles J; Pearlberg v Varty [1972] 2 All ER 6; R v Liverpool Corp, ex p Liverpool Taxi Operators Association [1972] 2 QB 299. Tierney v An Post [1999] ELR 293. Khan v Health Service Executive [2008] IEHC 234 at para 26. Flynn v Great Northern Railway Co (Ire) Ltd (1955) 89 ILTR 46, at 53. Kiely v The Minister for Social Welfare [1977] IR 267.

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[7.13]

[7.11] In Galway-Mayo Institute of Technology v Employment Appeals Tribunal,14 a case concerning the calculation of redundancy payments, the High Court (Charleton J) made the following comments in relation to the principle of audi alteram: ‘Fundamental to the correct dispensation of justice is the right of each party to communicate their case. If one party is deprived of that entitlement they will legitimately have a sense of grievance if a judicial decision goes against them. If one party is given an unfair advantage over the other in the way in which a judicial tribunal conducts its business, the same fundamental right in the due process of justice may be infringed. The touchstone for the administration of justice by any judicial body is that both sides be heard. This is done by giving them, as far as practicable, an opportunity to fairly present their case. The ultimate powers of discovery of documents, examination and cross-examination by each side, the presentation of submissions, followed by the consideration of, and then delivery of, a reasoned judgment need not apply to the conduct of all forms of judicial, or quasi-judicial, tribunal. Some forms of fair procedure may require only that a party should be given notice of what the nature of the problem is and then given an opportunity to present a reply. Other forms of decision are so far reaching as to require what is, in effect, the adoption by the tribunal of all of the measures inherent in a plenary hearing or a criminal trial. Fundamental to any procedure, however, is the duty of the tribunal to identify the issue which it is tasked with deciding and to make available to the parties the means, which can be variable, whereby they may address that issue.’

[7.12] Non-attendance by a party before the Workplace Relations Commission can give rise to audi alteram arguments subsequently being made. In this context regard should be had to the decision in Capital Food Emporium (Holdings) Ltd v Walsh & Ors15 where the High Court (Barrett J) considered whether there was a breach of the audi alteram principle in circumstances where one of the parties and its legal representative did not turn up and the presiding officer of the Employment Appeals Tribunal, being satisfied that the party had been duly notified of the hearing, proceeded to hear the case. The High Court held that once the Rights Commissioner had satisfied himself that the party and its legal representative had been duly notified, he was entitled to proceed to hearing and to issue a recommendation thereafter.

(1) Right to be informed of the charge/given adequate notice of an inquiry [7.13] A person cannot be discharged without first having been notified of the reason or reasons for the intended dismissal and been allowed to speak in his own defence: The State (Gleeson) v Minister for Defence.16 The plaintiff, a member of the Defence Forces, who had been enlisted for a statutory period of three years, was sent a certificate of discharge which gave ‘his services being no longer required’ as the reason for his 14

15 16

Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210 at paras 2–3. Capital Food Emporium (Holdings) Ltd v Walsh & Ors [2016] IEHC 725. The State (Gleeson) v Minister for Defence [1976] IR 280. It has long been established that where suspension constitutes a disciplinary sanction the person affected should be afforded natural justice and fair procedures before the decision to suspend is taken: Deegan v Minister for Finance [2000] ELR 190. (contd.../)

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discharge. His military conduct was categorised as ‘unsatisfactory’. Later, it was conceded this should have read ‘fair’. The discharge of a man from the permanent Defence Forces is allowed for ‘prescribed reasons’. One of these, used in Gleeson’s case, applied to ‘a man whose discharge is clearly desirable in the interests of the services and in whose case no other reason for discharge is applicable’. The Supreme Court held that Gleeson’s discharge was invalid because there had been a breach of natural justice. He should have been given an opportunity of being heard before being discharged. The plaintiff: ‘was never informed of the reason for his discharge until after he had actually been discharged; and he was given no information as to the facts or findings relied on to support that reason until the affidavits made on behalf of the respondent Minister were filed in the ... proceedings.’17

The Court issued a salutary reminder that the rules of natural justice are not absolute. ‘Other cases’, said Henchy J: ‘will depend on their own circumstances, including whether the person discharged has, by delay, acquiescence or other conduct, lost his right to relief.’18

[7.14] In Britain, it remained the position until 1985 that a person who held an office at the will and pleasure of the Crown, was not entitled to any reasons before being removed.19 Older judicial authorities in the main were derived from the concept in British constitutional theory that the King can do no wrong and that offices held at royal pleasure are outside the reach of natural justice. Irish cases in the nineteenth and early 16

17 18

19

(\...contd) More recently, however, the effect of the 2015 decision of the High Court in Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241 (discussed at para [8.28] below) has been to imbue a high level of procedural rigour even into decisions to place employees on a non-punitive or holding suspension. The fact that statutory or other procedures for suspension of an employee without pay exist does not absolve a body subject to judicial review from the obligation to discharge their responsibilities in a fair, responsible and reasonable manner. Whether suspension invokes fair procedures depends on the gravity of the reasons for it, the implications for the person concerned and the likely consequences for him or her following suspension: McNamara v South Western Area Health Board [2001] ELR (HC); McMahon v Irish Aviation Authority [2014] IEHC 431. Increasingly, the duration of suspensions is itself coming under scrutiny. The High Court restrained a suspension in McSorley v County Kilkenny Vocational Education Committee (24 June 2005) HC, a case involving interpretation of the Vocational Education (Amendment) Act 1944, s 7. By contrast, the High Court declined to restrain a holding suspension on full pay in Kinsella v Ulster Bank Limited (25 October 2016) HC. The State (Gleeson) v Minister for Defence [1976] IR 280 at 295–6. The State (Gleeson) v Minister for Defence [1976] IR 280 at 297. For examples of cases where relief has been refused see Hynes v Garvey [1978] IR 174; The State (Duffy) v Minister for Defence [1979] ILRM 65; The State (Burke) v Garvey [1979] ILRM 232; Lang v Government of Ireland [1993] ELR 234. R v Darlington School Governors (1844) 6 QB 682; Ridge v Baldwin [1963] AC 40.

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[7.16]

twentieth century endorsed this view.20 However, in 1981 in Garvey v Ireland21 the Supreme Court emphasised that: ‘Judicial precedents resting on [a theory of immunity and of executive absolutism] are of little value today, particularly in a State such as this where constitutional guarantees compel the recognition of personal fundamental rights which prior to the Constitution could have been overborne by theories of executive prerogative or public policy. It has to be remembered also that the pre-Constitution common law, like the pre-Constitution statute law, survives only to the extent that it is consistent with constitutional requirements; and to satisfy that test it must, where necessary, be modified or adapted in such a way as will fit it into the constitutional scheme of things.’

[7.15] The Constitution enters any inquiry as to whether, under the common law as it is understood today, the holder of an office at will or pleasure may claim he is entitled to natural justice before being removed. The courts will not deny to citizens the shield against injustice which constitutional guarantees are intended to provide. Garvey illustrates the extent to which this principle applies even where state security and matters of the gravest national interest may be concerned. [7.16] In January 1978, Garvey, the Commissioner of An Garda Síochána, was called upon to resign by the Government. He declined to do so, whereupon the Government purported to remove him the same day without notice. The Commissioner brought proceedings for wrongful dismissal. In its defence the Government relied on the Police Forces (Amalgamation) Act 1925 which provides that the Commissioner of An Garda Síochána may be removed at any time by the Executive Council (now the Government). By a 4:1 majority,22 the Supreme Court held that the Police Forces (Amalgamation) Act 1925 did not empower the Government to terminate the office of Commissioner of An Garda Síochána at any time without giving reasons and affording him an opportunity of making representations. The Chief Justice emphasised that the position of Commissioner was not an office tenable merely at pleasure. The 1925 Act was continued in force in 1937, the date of the new Constitution. Under Article 40.3.1º, fair and just procedures must be extended to all whose rights are affected by the decisions of others. According to Henchy J: ‘An office such as this, which provides its holder with his livelihood, and in which he may reasonably hope to qualify for honourable retirement, is such an integral part of what goes to make up his dignity and freedom, that his removal from it should have attached to it at least the justification of a stated and examinable reason.’23 20

21

22 23

See, eg, Dearly v The Queen (1846) 12 C1 & F 520; Reg (Fitzmaurice) v Neligan (1884) 14 LR Ir 149; Reg (Riall) v Bayly [1898] 2 IR 335; R (Jacob) v Blaney [1901] 2 IR 93; R (McMorrow) v Fitzpatrick [1918] 2 IR 103. Garvey v Ireland [1981] IR 75 at 99 per Henchy J. In general on dismissal at pleasure see Ganz, ‘Public Law Principles Applicable to Dismissal from Employment’ (1967) 30 MLR 292; Davidson, ‘Judicial Review of Decisions to Dismiss’ (1984) 35 NILQ 121; and Davidov, ‘The Principle of Proportionality in Labour Law’ (2008) 31 Tel Aviv University Law Review 5. Garvey was distinguished by the High Court (Barrett J) in a case involving arguments as to office-holder and employee status in Bennett and Marron v Minister for Justice and Equality [2017] IEHC 261. O’Higgins CJ, Henchy, Parke, Griffin JJ; Kenny J, dissenting. Garvey v Ireland [1981] IR 75 per Henchy J at 101.

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[7.17]

Redmond on Dismissal Law

[7.17] The reason for a proposed dismissal, in Henchy J’s view, need not always be specific or particularised.24 It will usually be sufficient if an indication is given in general terms as to the ground upon which the Government proposes to exercise its discretion, eg because of the Commissioner’s ill-health, to improve the efficiency of the Force, or because the Commissioner has lost the confidence of the Government. If the given reason is specific misconduct, the Commissioner should be accorded an opportunity of dealing adequately with the complaint. Henchy J did not agree that a general reason would be of little or no use. It would enable the Commissioner to know the area of dissatisfaction and accordingly to address representations to the Government.

[7.18] Because of the potentially serious outcome, a professional person is entitled to be put on notice of any preliminary inquiry to determine whether there is a prima facie case against him.25 The notice does not, however, have to be in any particular form.

[7.19] To know the charge against him, an employee must be furnished with all relevant documentation. In Cassidy v Shannon Castle Banquets and Heritage Ltd26 the plaintiff was alleged to have made unwanted sexual advances to a female colleague. The defendant instituted an investigation which consisted of a meeting with the complainant and two subsequent meetings with the plaintiff who was represented by a solicitor. Despite repeated requests, the defendant did not furnish the plaintiff with the original written complaint. The plaintiff had not been made aware that the complainant had attended a doctor nor was he given a copy of the report. The plaintiff’s solicitor had been led to believe she would be given an opportunity to make submissions to the defendant on the substance of the complaint and, if necessary, the appropriate penalty. This opportunity was never granted. The plaintiff was dismissed for gross misconduct. He instituted proceedings in the High Court, inter alia, for a declaration that the purported dismissal was in breach of natural and constitutional justice and that his dismissal was therefore without efficacy and invalid.

[7.20] Budd J granted a declaration in the terms just described. As the plaintiff had been dismissed on grounds of gross misconduct, the Court held that the defendant had been obliged to ensure that the rules of natural and constitutional justice would be applied. It had breached the principle audi alteram partem in three respects:

24

25

26

(i)

failing to furnish the plaintiff with a copy of the statement made by the complainant;

(ii)

failing to disclose the medical report to the plaintiff; and

(iii)

failing to allow the plaintiff’s solicitor to make representations in his defence or to adduce additional evidence or to make submissions on the appropriate sanction in the event of an adverse finding.

Although the reason given at the time of dismissal need not be the real reason, an employer must have been aware of its existence at the time: Cox v ESB (1945) Ir Jur Rep 58. See, too, Kenealy v The Mayor, Aldermen and Burgesses of the Borough of Kilkenny [1905] 2 IR 167. So held by the Supreme Court in O’Ceallaigh v An Bord Altranais [2000] 4 IR 54 (registered nurse and domiciliary midwife) and O’Callaghan v Disciplinary Tribunal [2002] 1 IR 1 (solicitor). Cassidy v Shannon Castle Banquets and Heritage Ltd [2000] ELR 248.

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[7.23]

The Court noted that its declaration enabled the defendant to proceed if it wished in accordance with law to conduct a further inquiry and to afford the plaintiff an opportunity to vindicate his name.

[7.21] More recently, in Joyce v Board of Management of Coláiste Iognaid27 the applicant sought an injunction preventing her employer from continuing a disciplinary procedure against her. The High Court (Binchy J) held that she had established a strong case that, at the full trial of the action, she would succeed in establishing: ‘1. That the chairperson and the board did not proceed with the investigation in accordance with Circular 60/2009, in that the chairperson did not distribute copies of his report to the plaintiff and the board simultaneously and the board proceeded to discuss the report at two meetings in advance of giving the same to the plaintiff, to the likely detriment of the plaintiff; and/or 2. That the July report contains not just a statement of the facts, but also findings and conclusions which have been made without affording the plaintiff any opportunity to respond, thereby depriving the plaintiff of fair procedures and natural justice; and/or 3. If Circular 60/2009 envisages the making of findings as part of the preparation of a comprehensive statement of the facts, then it is clear that the plaintiff would be entitled to fair procedures and natural justice at that stage in the process ie when the report is being prepared by the chairperson.’

[7.22] In the context of hearings before the Workplace Relations Commission, regard must be had to the decision of the Supreme Court in The State (Irish Pharmaceutical Union) v Employment Appeals Tribunal.28 The relevant background to that decision was that the Employment Appeals Tribunal had awarded the remedy of re-engagement at the conclusion of a hearing at which both sides had been legally represented. Neither side had raised the matter and all of the hearing had concentrated on the fairness or otherwise of the dismissal and on the remedy of compensation. The Supreme Court, in holding that the Tribunal had violated the principle of audi alteram partem, said (per McCarthy J): ‘Whether it be identified as a principle of natural justice derived from the common law and known as audi alteram partem or, preferably, as the right to fair procedures under the Constitution in all judicial or quasi-judicial proceedings, it is a fundamental requirement of justice that person or property should not be at risk without the party charged being given an adequate opportunity of meeting the claim, as identified and pursued.’

[7.23] In Conroy v Board of Management of Gorey Community School29 the applicant argued that the allegations which were the subject of the disciplinary process were allegations of sexual impropriety and, as a result, the Board of Management was not competent to make a finding of ‘inappropriate behaviour’ because (a) that was not the matter before it and (b) it was not a matter in respect of which the applicant understood he had a case to answer. Pointing to correspondence, the conduct of the disciplinary hearing and steps taken following the Board’s determination, the High Court (Baker J) rejected the applicant’s argument. 27 28

29

Joyce v Board of Management of Coláiste Iognaid [2015] IEHC 809. The State (Irish Pharmaceutical Union) v Employment Appeals Tribunal [1987] ILRM 36 at 40. Conroy v Board of Management of Gorey Community School [2015] IEHC 103.

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[7.24]

Redmond on Dismissal Law

[7.24] In Kelly v Board of Management of St Joseph’s National School30 the High Court (O’Malley J) noted that the charges against the applicant were laid in such general terms that it was not possible to say whether it was contended that the applicant had refused to comply with more than one instruction. In addition, the issue of misconduct regarding the general behaviour of the applicant became ‘entangled in arguments about events of years gone by which had never been the subject of a complaint at the time’. The High Court quashed the decision of the Board to demote the applicant from principal to mainstream teacher.

[7.25] The necessity for precision in allegations is again illustrated in Condon v Solicitors Disciplinary Tribunal & Another.31 The applicant sought to judicially review a decision of the Solicitors Disciplinary Tribunal to recommend that he not be allowed to practise for six months and, thereafter, not be permitted to practise as a sole practitioner or in partnership. The applicant argued that the complainants had been treated as if they were his clients (when they were not) and that a person who is subjected to a disciplinary process on specific charges should not at the conclusion of the process be convicted and penalised on the basis of some other charge not specified. The High Court agreed and remitted the matter back to the Tribunal to reconsider the sanction imposed having regard to the finding that the complainants were not the applicant’s clients. Kearns P noted: ‘It seems to me undeniable that the applicant went into this process on one particular basis and emerged from it at the other end on a completely different basis, that is to say, being punished on the basis that the Guntons were in fact his clients. I do not agree with the proposition implicit at certain points in the affidavit of Ms Linda Kirwan filed on behalf of the Society which effectively elided the difference in the status of the Guntons as clients or non-clients on the basis that the applicant was not found guilty of anything that went beyond the precise allegations of which he was on notice.’

[7.26] The adequacy of the specificity of allegations was further considered in Rogers v An Post32 where the High Court rejected the plaintiff’s claim that the defendant had not set out precisely what allegation was being levelled against him. The Court (Keane J) pointed to a letter that had been sent by the defendant to the plaintiff, which indicated that the defendant was considering disciplinary action and included very specific details of the misconduct at issue.

[7.27] In Naujoks v National Institution of Bioprocessing Research and Training Ltd33 the High Court rejected the defendant employer’s claim that fair procedures did not apply as the dismissal was not based on any misconduct. In this regard, the High Court pointed to the fact that the reason given for the termination of the plaintiff’s employment was that the Board had lost confidence in the plaintiff’s ability to manage the Institute. It was also stated that the plaintiff’s management style and manner of communication had led to ‘serious human resources issues’. The Court indicated that the inference to be drawn was that the employer had made a judgment as to who was responsible for the human resources issues which had arisen. That was not far removed from making a 30 31 32 33

Kelly v Board of Management of St Joseph’s National School [2013] IEHC 392. Condon v Solicitors Disciplinary Tribunal & Another [2012] IEHC 173. Rogers v An Post [2014] IEHC 412. Naujoks v National Institution of Bioprocessing Research and Training Ltd [2006] IEHC 358.

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Constitutional Justice

[7.29]

judgment that there was a failure on the part of the plaintiff to properly discharge his duties as CEO, which would entitle the defendant to summarily dismiss the plaintiff, but subject to affording him fair procedures.34

(2) Oral hearing [7.28] It is difficult to be specific about ‘entitlements’. Much will depend on the circumstances. For instance, on interpretation of the relevant regulations, it has been held that an oral hearing to an appeals officer of the Department of Social Welfare is mandatory unless ‘a determination of the claim can be made fairly on a consideration of the documentary evidence’.35 In Mooney v An Post,36 Keane J (High Court) found that the plaintiff, a postman before his dismissal, was not entitled to an oral hearing. He remarked that the two great central principles of natural justice, audi alteram partem and nemo iudex in causa sua ‘cannot be applied in a uniform fashion to every set of facts’. In some cases, more may be required, said the judge,37 than the application of these two principles: ‘Where an employee is entitled to an oral hearing, he may also be entitled to the right to cross-examine persons making the allegations against him and a right to legal representation: In re Haughey.38 The person conducting the oral hearing will also be obliged to adopt an even-handed approach in the reception of secondary evidence: Kiely v Minister for Social Welfare.’39

[7.29] The finding of no right to an oral hearing must be viewed against the circumstances in Mooney. Critically, the plaintiff had refused and maintained his refusal to make any statement to the defendants, long after the disposition of criminal charges40 against him. The Supreme Court on appeal reiterated that the plaintiff was employed by An Post on the same terms as those on which he had formerly been employed by the Government. That meant that if he were to be dismissed for misconduct he would have been entitled to know what the charges against him were and to have had an opportunity to answer those charges. Per Barrington J for the Court:41 ‘On the other hand he would never have been entitled to a hearing by the Government nor could he complain if the Government had acted, as no doubt it would have acted, not only on the evidence in the case but also on the report of one of its Inspectors. He would not, normally, have been entitled to see the report of the Government’s Investigating Officer and neither is he, in the circumstances of the present case, entitled to a hearing before the Board of An Post or to see the report of the investigating officer.’ 34 35 36

37 38 39 40 41

On the relationship between this decision and no-fault decisions to dismiss see [5.19]. Kiely v Minister for Social Welfare (No 2) [1977] IR 267. Mooney v An Post [1994] ELR 103. On appeal, see Supreme Court [1998] ELR 238 (Barrington J nem diss). In Tierney v An Post [1999] ELR 293, it was accepted by implication matter was serious enough to warrant oral hearing despite absence of provision for same in relevant disciplinary machinery; person being heard entitled to fair procedures. In Sheriff v Corrigan [2000] ELR 233, the Supreme Court found no right to an oral hearing in the circumstances (prison officer demoted for misconduct). Mooney v An Post [1994] ELR 103 per Keane J at 117. In re Haughey [1971] IR 217. Kiely v Minister for Social Welfare [1977] IR 267. Distinguish, therefore, Flanagan v University College Dublin [1988] IR 724. Mooney v An Post [1998] ELR 238, at 248.

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[7.30]

Redmond on Dismissal Law

[7.30] Alternatively, it was clear to the Court that the plaintiff had received the benefit of fair procedures. But the matter did not rest there. The plaintiff claimed he was entitled to the benefit of an oral hearing before an independent arbitrator and to cross-examine those prepared to give evidence against him. ‘The plaintiff was a postman which is a position of trust. The defendants received complaints which caused them to have misgivings about the integrity of the postal service and about the conduct of the plaintiff. It appears to me that the defendants were entitled to expect a candid response from the plaintiff when they put these misgivings to him and that it was not sufficient for the plaintiff simply to deny responsibility and to say that he could not “remember back to yesterday week”.’42

The court accepted that it was the plaintiff’s right to remain silent while criminal proceedings were hanging over him. But the plaintiff had made no statement to the defendants from his acquittal to the date of his dismissal well over a year later. ‘The plaintiff raised no issue of fact which needed to be referred to a civil tribunal. It is important to emphasise that the dismissal proceedings were not criminal proceedings and it was not sufficient for a person in the position of the plaintiff simply to fold his arms and say: “I’m not guilty. You prove it.” To attempt to introduce the procedures of a criminal trial into an essentially civil proceeding serves only to create confusion.’43

The Supreme Court dismissed the appeal.

[7.31] In O’Donnell v Tipperary (South Riding) County Council44 the applicant was dismissed from the position of station officer of Clonmel Fire Station for allegedly making fraudulent pay claims. He submitted that he had been accused of a criminal offence, namely fraud, and that in the circumstances there was a need for an oral hearing, with a right to cross-examination. Rejecting the applicant’s submission, Denham J noted the approach of Ó Caoimh J in the High Court who had said: ‘the term “hearing” doesn’t necessarily comprehend an oral hearing in any given case and what is required in any given case will depend on the facts of the particular case. In the instant case much of the material that was relied upon was documentary and I believe that the material before the respondent was such that it did not require an oral hearing in the context it is contended for. However, the applicant was afforded the full right to put forward all matters in his defence.’

(3) Representation [7.32] Representation, where there is an oral hearing, may be crucial. There is no rule as to entitlement, rather it is a decision in the discretion of the decision-maker, to be made in the interests of the justice of the particular case. In McGrath and Ó Ruairc v Trustees of Maynooth College,45 the Supreme Court allowed a right to be represented by a lawyer, although not by a trade union representative as the plaintiffs had preferred.46 42 43 44 45

46

Mooney v An Post [1998] ELR 238, at 249. Mooney v An Post [1998] ELR 238, at 249. O’Donnell v Tipperary (South Riding) County Council [2005] 2 IR 483. McGrath and Ó Ruairc v Trustees of Maynooth College [1979] ILRM 166. In Scariff v Taylor [1996] 2 ILRM 278, the appellant was entitled to legal representation before the court martial. See two other decisions rejecting the right to representation: The State (Gallagher) v Governor of Portlaoise Prison (18 May 1977) HC; The State (Smullen) v Duffy [1980] ILRM 46.

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[7.36]

[7.33] The High Court found that the circumstances did not warrant legal representation in Aziz v The Midland Health Board.47 The applicant was invited to attend at his employer’s investigatory meeting with a colleague or union representative. He attended accompanied by a solicitor who was not permitted to represent the applicant and was requested to leave. The applicant remained under protest and unrepresented. In the High Court, a particular limb of the applicant’s argument that the respondent had not followed fair procedures was that he had been refused legal representation. [7.34] Barr J raised two points for consideration. First, he reiterated, there is no general right to legal representation at quasi-judicial disciplinary hearings such as those in Aziz. The facility of bringing a colleague or trade union representative accorded, he said, with widely accepted practice in the public service and semi-State bodies. Second, the issues to be investigated raised simple questions of fact and it was not intended that the hospital authority, the respondent or any other person would have formal legal representation at any stage of the proceedings. This second point is of central importance to the judge’s decision that the applicant was not entitled to formal legal representation. [7.35] In Garvey v Minister for Justice48 the Supreme Court ruled that the trial judge had been correct in pointing out that the 1996 Rules respecting prison officers did not expressly preclude legal representation. Geoghegan J continued: ‘It would seem obvious that there could be no automatic right to legal representation but on the other hand, I would be of opinion that in an important enough case where the prison officer’s employment was at stake the requirement of fair procedures may include an entitlement to legal representation. Each case would depend on its own facts. The issue of legal representation never arose in this case and it is not a valid ground on which judicial review could be granted.’49

[7.36] In Stoskus v Goode Concrete Ltd50 the plaintiff argued that he ought to have been permitted to have legal representation at the disciplinary hearing as there was a threat of dismissal. The High Court noted that it was not argued that the relevant contractual provisions were contrary to the Labour Relations Commission Code51 and that nowhere in the Code was it specified that the right to be represented included a right to be legally represented. Refusing to grant an interlocutory injunction on the basis that the plaintiff had failed to establish a strong case, Irvine J noted: ‘To be successful in arguing his case at trial the plaintiff will effectively have to prove that every employee threatened with potential dismissal has a right to legal representation at his disciplinary hearing, irrespective of any contractual provision which provides for 47

48 49 50 51

Aziz v The Midland Health Board [1995] ILRM 48. Contrast Gallagher v Revenue Commissioners [1991] ILRM 632, where the right to fair procedures was found to involve representation by counsel at an oral disciplinary hearing. The plaintiff, however, was a customs official, who thus lay outside the ambit of unfair dismissals legislation. In addition the Court held that some of the charges could form a basis for a charge of fraud. See too Cassidy v Shannon Castle Banquets and Heritage Ltd [2000] LR 248, para [7.16]. Garvey v Minister for Justice [2006]1 IR 548. Garvey v Minister for Justice [2006]1 IR 548 at 558–559. Stoskus v Goode Concrete Ltd [2007] IEHC 432. SI 146/2000.

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[7.37]

Redmond on Dismissal Law

lesser representation such as representation through a colleague or trade union representative. On the plaintiff’s submission, no company could oblige its employee to sign up to a contract of employment incorporating a code which would provide for anything other than full legal representation in the event of disciplinary proceedings being instituted that might lead to their dismissal. In this respect the plaintiff’s assertion that he was not afforded natural justice and fair procedures by reason of the absence of a right to legal representation places his demands for natural justice at a higher threshold than that provided for in the code of practice contained in SI No 146/2000. If the plaintiff had not signed a contract of employment or had signed a contract of employment which was silent as to the disciplinary procedure to be followed in a case of alleged misconduct, then the plaintiff might be in a stronger position to contend that the rules of natural justice and fair procedures should be implied into the agreement so as to entitle him, in the context of his nationality, ability to speak English and other factors to have a right to legal representation.’

[7.37] In O’Donnell v Tipperary (South Riding) County Council52 the Supreme Court took into account the fact that the applicant had legal representation to conclude that there had been a fair procedure.

[7.38] In Becker v Duggan53 O’Neill J noted that the respondent arbitrator was the only professional lawyer involved in the process. He inferred from the circular that legal representation was ruled out to avoid unnecessary legal complexity. The significance of the scheme was that there was a significant burden on the arbitrator to ensure that the proceedings were conducted in accordance with the Constitution and with law but with a minimum of legal formality. He continued: ‘In my view in the light of the exclusion of legal representation there rested upon the Arbitrator, in this case the respondent, a duty to consider whether in the circumstances of the appeal it was necessary for him to interview witnesses and to call other witnesses. In other forensic proceedings ie court proceeding these functions rest with the legal representatives of both sides. In my view in an appeal under the provisions of s 4 of this circular that duty rests primarily with the respondent.’

[7.39] A relevant authority on the question of an employee’s claim to recover the costs of legal representation during the disciplinary hearing is Higgins v Bank of Ireland.54 The High Court (O’Keeffe J) noted: ‘In the present case, the disciplinary procedures are part of the legal relationship between the plaintiff and the defendant. There is no provision in those procedures for costs to be awarded either to the plaintiff or to the defendant following a disciplinary inquiry hearing. The fact that the hearing took so long is not in itself a valid ground for the claim. No case has been put forward in which costs have been allowed to an employee who appears before a disciplinary inquiry. 55

[7.40] Regard must now be had to the decision of the High Court (Eagar J) in 2017 in Lyons v Longford Westmeath Education and Training Board.56 There the applicant was 52 53 54 55 56

O’Donnell v Tipperary (South Riding) County Council [2005] IESC 18. Becker v Duggan [2005] IEHC 376. Higgins v Bank of Ireland [2013] IEHC 6 at paras 571–572 per O’Keeffe J. Distinguishing Condon v Córas Iompair Éireann (16 November 1984) HC. Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272.

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[7.41]

accused of bullying a colleague and was submitted to an investigatory process. The procedure followed, which was provided for in a Bullying Prevention Policy, did not provide many procedural safeguards. In particular, the investigatory process was capable of leading to dismissal and prohibited legal representation and the cross-examination of witnesses. Eagar J noted that the procedures adopted clearly violated Art 40.3.1 of the Constitution in failing to allow a legal representative to appear on the applicant’s behalf. According to Eagar J, in principle, whenever a process was initiated which could lead to dismissal, that process must be accompanied by the panoply of fair procedure entitlements. It remains to be seen how this will be applied by future courts, but its implications are potentially very significant. It will not always be possible to draw ‘clear blue water’ between the fact-gathering and decision-making stages and the decision in Lyons certainly tilts the balance in favour of enabling employees to have legal representation even at the investigation stage. The direct inter-changeability evinced in the judgment between a right to cross-examine and a right to legal representation is also a question that requires clarification by later courts. The relationship between Lyons and cases such as Gallagher v Revenue Commissioners57 and Rowland v An Post,58 analysed in the next section, also requires judicial consideration.

(4) Confronting one’s accusers [7.41] The right to cross-examine one’s accusers is a constitutional right. It is ‘the great weapon’ available to a person who is accused on the basis of false statements of fact, or denied his legal or constitutional rights on the same basis, as the Supreme Court robustly asserted in Maguire v Ardagh.59 The opportunity to confront one’s accusers in a potentially serious situation was held to be the applicant’s right in Gallagher v Revenue Commissioners.60 The applicant stood in the position of somebody who was accused and whose conduct was being impugned and brought himself, according to Morris J (High Court) and Hamilton CJ (Supreme Court), within the ambit of circumstances envisaged by the Chief Justice in Re Haughey, para [5.08]. Therefore he was entitled: (i)

to be furnished with a copy of the evidence which reflected on his good name;

(ii)

to cross-examine, through counsel, his accuser or accusers;

(iii)

to give rebutting evidence; and

(iv)

to address, by counsel, the committee in his own defence.

Mere administrative difficulties in securing the attendance of witnesses before a tribunal is not a sufficient ground, according to the Supreme Court, for depriving a person 57

58 59 60

Gallagher v Revenue Commissioners [1995] ILRM 108. The law as stated in Flanagan v University College Dublin [1988] IR 724, para [13.68] was approved in Gallagher, and applied in Sheehan v Commissioner for An Garda Síochána, Minister for Justice, Ireland and The Attorney General [1998] IEHC 202. Rowland v An Post [2011] IEHC 272. Maguire v Ardagh [2002] 2 IR 385. Gallagher v Revenue Commissioners [1995] ILRM 108. The law as stated in Flanagan v University College Dublin [1988] IR 724, para [13.68] was approved in Gallagher, and applied in Sheehan v Commissioner for An Garda Síochána, Minister for Justice, Ireland and The Attorney General [1998] IEHC 202.

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[7.42]

Redmond on Dismissal Law

charged before the tribunal of the right to cross-examine witnesses as to facts which are essential to the establishment of the charges against him.

[7.42] However, as in all cases the requirements of natural justice must depend on the circumstances of each case (eg in Gallagher v Revenue Commissioners61 the charges were substantial) and the nature of each particular enquiry. All the facts must be examined and the rights and interests of all the parties must as far as it is practicable, be safeguarded. [7.43] In O’Leary v An Post62 the plaintiff claimed that he was wrongly deprived of the opportunity to cross-examine each of the two customers, who had made a statement when interviewed in the course of the defendant’s investigation, at the disciplinary hearing. Rejecting the plaintiff’s claim, the High Court (Keane J) noted: ‘The most obvious difficulty that confronts the plaintiff in advancing that argument is the fact, not in dispute, that he did not seek to invoke any such entitlement either before or during that hearing. Accordingly, when the plaintiff avers “I was not ever, either myself or through my [union representative], afforded the opportunity to cross-examine and/or confront either [of the two customers concerned]”, his complaint is not that he sought, and was refused, such an opportunity, whether in advance of, or during, that hearing. Rather, it is that the defendant did not of its own volition tender those persons as witnesses during the hearing for the purpose of cross-examination. Had the plaintiff sought to assert such a right to cross-examine at the disciplinary hearing, no doubt he would have been at once reminded of the terms of paragraph 8.2 of the defendant’s agreed Disciplinary Procedure whereby it is acknowledged that the defendant is not obliged to afford an employee the right of cross-examination of any person who has given a statement which is relied upon in initiating or continuing disciplinary proceedings. The same paragraph of that agreed Disciplinary Procedure goes on to stipulate that, in instances where dismissal is being considered, the employee affected may raise questions which he would wish to have put to the person concerned and the defendant will put those questions to that person, within reason, as part of any process of further enquiry following the employee’s initial response to the notice of disciplinary proceedings. Again, it appears to be common case that the defendant did not seek to raise any such question or questions. In the particular circumstances just described, the plaintiff has failed to satisfy me that he has established a strong or clear case that he was wrongly deprived of his right to crossexamine the relevant witnesses at the disciplinary hearing, in breach of his contractual entitlement to natural and constitutional justice and fair procedures.’63

[7.44] In Rowland v An Post64 the plaintiff submitted that the initial procedure did not provide for an oral hearing where he could confront and cross examine his accusers. He also submitted that the appeal provided for was in complete breach of the appeals procedure provided under Clause 2.39 of the Postmasters Manual which only provided an appeal in the event of a decision to dismiss and only provided for one appeal and no 61

62 63 64

Gallagher v Revenue Commissioners [1995] ILRM 108. Also, Southern Health Board v CH (11 March 1996) SC. See, an exceptional case, A Worker v A Hospital [1997] ELR 214, see para [13.60]. O’Leary v An Post [2016] IEHC 237 at paras [48]–[51]. O’Leary v An Post [2016] IEHC 237 per Keane J at [48]–[51]. Rowland v An Post [2011] IEHC 272.

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[7.47]

right to confront accusers or cross examine them. Moreover, there is no prohibition on a person involved in the evidence gathering exercise being involved in the decisionmaking process. In rejecting the plaintiff’s submissions, Murphy J noted: ‘The plaintiff refers to Kenny J in Kiely v Minister of Social Welfare,65 who held that “where essential facts are in controversy, a hearing which is required to be oral and confrontational for one side but which is allowed to be based on written and, effectively unquestionable evidence on the other side has neither the semblance nor substance of a fair hearing. It is contrary to natural justice”. The plaintiff uses this to justify his desire for cross examination because he will be asked questions by the defendant but apparently will not be able to ask questions of those who “accused” him. The plaintiff repeatedly fails to recognise that the investigation stage is not a trial. There are no witnesses to cross examine because there is no necessity to have witnesses to prove figures. The defendant required satisfactory answers to the questions raised by the letter of the 27th June, 2008.’

[7.45] On appeal to the Supreme Court,66 the question to be considered was whether the overall determination of the High Court – namely, that it had been premature of the applicant to apply to that Court during the investigatory procedure – was correct. Clarke J (as he then was), delivering the judgment of the Court, confirmed that a court should not make any order during a disciplinary process unless that process has gone irremediably wrong in a manner which could not be corrected at a later stage in the process. Clarke J confirmed that, in principle, there is no reason: ‘why procedures cannot be put in place which seek to refine the issues in order to determine the precise extent of the materials which require to be disclosed and the precise requirement for cross-examination which may be needed in order that the process as a whole be considered procedurally fair. Unless the entitlement to obtain information or test evidence is afforded at a stage which is so late that it can be said that the person whose interests are in potential jeopardy has suffered an irremediable detriment then it is hard to see how the timing of when information is given or cross-examination allowed could, in and of itself, be regarded as creating a process which breached the rules of constitutional justice.’67

[7.46] At the time of trial, Clarke J concluded, while there had clearly been a refusal to provide information requested or to allow cross-examination of relevant witnesses, it was not clear that such refusal at an early stage had created an irremediable situation. On that basis, the Court upheld Murphy J’s conclusion. [7.47] The context-specificity of the nature of the right to cross-examine was also considered extensively in Shortt v Royal Liver Assurance.68 The plaintiff was subject to a disciplinary process following a complaint by his personal assistant that he had bullied her. The plaintiff argued that the defendant had breached his right to fair procedures in that the plaintiff was neither afforded the opportunity to cross-examine the personal assistant nor provided with some alternative means of testing her evidence. While it was conceded on behalf of the plaintiff that not every disciplinary process would give rise to a right to cross-examine the complainant, it was asserted that the graver the allegation, 65 66 67 68

Kiely v Minister of Social Welfare [1977] IR 267. Rowland v An Post [2017] IESC 20. Rowland v An Post [2017] IESC 20 per Clarke J at [5.6]–[5.7]. Shortt v Royal Liver Assurance [2008] IEHC 332.

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the more important it was that the employee under investigation should have a right to test the evidence. Rejecting the plaintiff’s argument, the High Court (Laffoy J) considered whether, given the refusal of the personal assistant to submit to being questioned at a disciplinary hearing by or on behalf of the plaintiff, the plaintiff was likely to be exposed to the risk of an unfair hearing or an unfair result. It noted that because the nature of the conflict related primarily to the delivery and tone of exchanges rather than their content, the adjudicator was entitled to proceed on the basis that to do so was not likely to imperil a fair hearing or result. In addition, taking account of the nature of the complaint and the respective positions of the complainant and the plaintiff, the adjudicator was entitled to consider the likelihood of a detrimental effect on her by being confronted by the plaintiff or by someone on his behalf.

[7.48] In Becker v Duggan69 the applicant sought an order to quash the decision of the respondent to uphold the decision of an interview board not to appoint her to the role of assistant principal. The applicant was the most senior candidate but the interview board had deemed her unsuitable. The applicant appealed on the grounds that she was not afforded any reasons for this finding and that the principal of the school, who was on the interview board, had a known bias against her. At the appeal, the submission of the Board of Management revealed a far-reaching attack on the applicant’s suitability based on her performance at interview and her performance in previously held posts of responsibility. The applicant indicated that this was the first time she had been made aware of any complaints against her. Finding that there had been a breach of fair procedures, O’Neill J noted: ‘There could be no doubt in my opinion but that in the conduct of an interview in accordance with the provisions of the circular natural justice and fair procedures would have to be observed in an appropriate way. A relevant matter for the respondent to have considered arising out of the complaints made to him by the applicant was whether or not the interview board had raised any of these allegations or referred to them in any kind of appropriate way and, whether any failure to so do was a breach of natural justice and fair procedures in the circumstances.’

(5) Rights respected even if the plaintiff’s conduct is unmeritorious [7.49] In cases where constitutional justice is raised, a court, said Morris J, cannot shut its eyes to the possibility that the applicant is raising the defence of lack of fair procedures in order to obstruct the holding of an inquiry. In Gallagher, para [7.41], the applicant had gone to the High Court on two previous occasions raising obstacles in the way of holding the enquiry and his solicitors had ‘been vigilant to ensure, throughout the progress of the case, that the Revenue Commissioners and the personnel officer [had] conformed in detail to what the law requires’. No short cuts were allowed. ‘A court must wonder if in fact there is a true concern on the part of the applicant that he should be afforded fair procedures or alternatively if he is merely using his entitlement to fair procedures as an obstacle to his having to face up to his responsibilities.’

However, as the judge observed, rights cannot be taken away merely because conduct is alleged to be unmeritorious. It will be for the court, in appropriate circumstances, to 69

Becker v Duggan [2005] IEHC 376.

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[7.53]

assess the reality of a plaintiff’s claim as in McHugh v Commissioner of Garda Síochána.70

(6) Courts generally will not interfere [7.50] With regard to the hearing before a tribunal, and the procedure to be adopted, if there are rules and regulations the court will see that these have been observed. If these rules and regulations appear to involve a contracting out of the requirements of natural justice, the courts will have to consider the question of waiver applying standard tests in constitutional law. In Glover v BLN Ltd,71 Walsh J explicitly left open the question (it was not relevant on the facts) of the extent to which the rules of natural justice could have been excluded by express provisions in the contract. Apart from that, the tribunal is master of its own procedure and is not bound by the rules of evidence: ‘The court will not, as a general rule, interfere with [a tribunal’s] decision unless it be one where the decision is one come to mala fide; see Dawkin v Antrobus.72 It does not matter in the least that the court would have come to a different decision so long as the decision is honest.’

[7.51] Not being bound by the rules of evidence can mean, for example, that an employer is not restrained by the principles of natural justice or its own disciplinary code from allowing procedures which might permit hearsay evidence: Maher v Irish Permanent plc (No 2).73 Moreover, Costello P held in the same case that the employer was not restrained by the principles of natural justice or its own disciplinary code from taking into account allegations relating to conduct prior to a final written warning which had issued to the plaintiff.

(7) No such thing as an open and shut case [7.52] It may be contended in particular circumstances that a hearing would make no difference to the plaintiff’s case. In Glover v BLN Ltd,74 Walsh J unreservedly rejected this proposition: ‘The obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent.’75

[7.53] Perhaps the most tempting situation in which to deny a right to a hearing is where it seems there is no answer to a charge because the alleged wrongdoer was caught in 70

71

72 73

74

75

McHugh v Commissioner of Garda Síochána [1987] ILRM 181. See also Maunsell v Minister for Education and the Very Rev Canon Breen [1940] IR 213 at 234 in which it was held that notice of a tribunal about to sit to determine whether or not to put an end to one’s career is an entitlement of ‘elementary justice’ even where the person affected had no merits. Glover v BLN Ltd [1973] IR 388 at 425. See the discussion of this, from a common law perspective, at para [4.33]. Dawkin v Antrobus 17 Ch D 115. Maher v Irish Permanent plc (No 2) [1998] ELR 89. For the plaintiff’s first proceedings see para [10.46] below. Glover v BLN Ltd [1973] IR 388. See, too, Glynn v Keele University [1971] 1 WLR 487, and Clarke, ‘Natural Justice – Shadow or Substance’ [1975] Public Law 20. Glover v BLN Ltd [1973] IR 388 at 429.

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flagrante delicto. In the British case of Ridge v Baldwin,76 Streatfield J succumbed to this temptation at first instance when he held that a Chief Constable had no right to be heard by his watch committee since at the Central Criminal Court for the purposes of his trial he had convicted himself of unfitness to hold the office of Chief Constable. He had been dismissed without a hearing by his watch committee after his conduct had been the subject of adverse comment by a judge in the course of a trial which concluded with the conviction of a number of members of his force on charges of corruption. He himself had been acquitted of the charges against him. The House of Lords heard the final appeal and held that even if the Chief Constable could not have hoped in the disciplinary proceedings to persuade the watch committee that he ought to be allowed to continue in his position the committee had a number of courses open to it. They might have followed the most lenient course if they had heard the Chief Constable. The justification for not excluding the right to a hearing given by Megarry J in John v Rees77 cannot be improved upon: ‘“When something is obvious” (it may be said) “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.” Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them had been made without their being afforded any opportunity to influence the course of events.’

(8) Tribunal or disciplinary panel receiving legal advice [7.54] If a disciplinary tribunal receives legal advice on a matter of law, must it inform the parties? This was considered in Georgopoulos v Beaumont Hospital Board,78 where the question was answered in the negative in the case of a tribunal engaged in determining a question of fact only. Distinguishing and approving The State (Polymark) v The Labour Court,79 the High Court (Murphy J) held that failure to inform the parties as to the fact or nature of that advice is not of itself such a breach of the rules of natural and constitutional justice as would invalidate the decision of the tribunal. The Supreme Court had no difficulty in endorsing this view.

[7.55] The plaintiff in Georgopoulos was employed as a registrar in the neurosurgery department of the defendant hospital. He made a number of serious complaints about consultant colleagues. Criticisms and complaints were in turn made about the registrar. The hospital subsequently dismissed the registrar without giving him a hearing. He 76

77 78

79

Ridge v Baldwin [1961] 2 WLR 1054. See Goodhart, ‘Ridge v Baldwin: Administration and Natural Justice’ (1964) 80 LQR 105. John v Rees [1969] 2 WLR 1294 at 1335. Georgopoulos v Beaumont Hospital Board [1993] ELR 246. On appeal, see [1998] 3 IR 132. There the issue between the parties was a question of law relating to the jurisdiction of the Labour Court to hear an appeal from the determination of an equality officer. The State (Polymark) v The Labour Court [1987] ILRM 357.

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[7.58]

commenced proceedings seeking to impugn the hospital’s decision and those proceedings were compromised on terms which provided for a rehearing of the complaints against the registrar who was to be legally represented. Following the rehearing the hospital dismissed the registrar. He then commenced legal proceedings seeking a declaration that the hospital had acted ultra vires and had violated the requirements of natural and constitutional justice. The registrar claimed that the hospital’s failure to disclose the legal advice received by it from the legal assessor and its failure to permit the registrar to make submissions in mitigation amounted to a denial of natural and constitutional justice. He also claimed that the hospital in reaching its decision should have applied the standard of proof of ‘beyond reasonable doubt’. This is considered in the next paragraph.

(9) Civil standard of proof [7.56] Regarding the appropriate standard of proof, the plaintiff in Georgopoulos relied on the decision of the Privy Council in Bhandari v Advocates Committee.80 In that case the Privy Council, in considering an appeal from the Court of Appeal of Eastern Africa, quoted with approval the observations of the Court of Appeal in relation to the standard of proof where a regulatory authority was considering an allegation of professional misconduct. The passage approved by the Privy Council was quoted by Murphy J:81 ‘We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.’82

[7.57] Murphy J (and later Hamilton CJ in the Supreme Court) cited Sir William Wade in the sixth edition of his work on Administrative Law who summarised the position in the following terms:83 ‘But the civil standard is flexible, so that the degree of probability required is proportionate to the nature and gravity of the issue. Where personal liability is at stake, for example, the court will require a high degree of probability before it will be satisfied as to the facts justifying detention; and the requirement will not be much lower in matters affecting livelihood and professional reputation, or where there is a charge of fraud or moral turpitude. Lord Scarman has indeed said that the choice between the two standards is largely a matter of words, asking how, if a court has to be satisfied of some crucial fact it can entertain a reasonable doubt.’

[7.58] The High Court emphasised that the case concerned a civil claim between an employer and its employee. It could not be equated with an alleged criminal offence. ‘The investigation cannot be equated with an inquiry as to the qualifications, capacity or authority of a particular individual to perform a range of duties for other employers or in other circumstances. Perhaps in an inquiry of that nature some special standard of proof would be required though I may say I am not convinced that this is the case. In the present matter it is sufficient to say that there is no question of the criminal standard of proof being required and the Supreme Court and in particular the judgment of Henchy J in 80 81 82 83

Bhandari v Advocates Committee [1956] 1 WLR 1442. Bhandari v Advocates Committee [1956] 1 WLR 1442 at 1452. Per Murphy J at 253. Wade, Administrative Law (6th edn, Clarendon Press, 1988) at 341.

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Banco Ambrosiano SpA v Ansbacher & Co Ltd [1987] ILRM 669 (at 701) has unequivocally rejected the contention that there are varying degrees of proof in civil actions. In every such action, the matter falls to be determined on the balance of probabilities.’

The plaintiff’s case was therefore dismissed. His appeal to the Supreme Court was likewise dismissed.

[7.59] The standard of proof was further considered in Kelly v Minister for Agriculture.84 The applicant was suspended and subsequently dismissed from his position as harbour master of Killybegs Fisheries Harbour Centre for having private business interests in contravention of his paid employment. The applicant claimed that the standard of proof should be one beyond reasonable doubt. Rejecting this submission, Hedigan J noted: ‘The applicant claims that the standard of proof should be one beyond reasonable doubt. I do not think that that is a correct view of the law. In Georgopoulus v Beaumont Hospital85 Hamilton CJ stated: “This does not, however, require that the facts upon which the allegations are based should be established beyond all reasonable doubt. They can be dealt with on ‘the balance of probabilities’ bearing in mind that the degree of probability required should always be proportionate to the nature and gravity of the issue to be investigated.” This standard may be somewhat more flexible depending on the gravity of the allegation. I note in this regard the comments of O’Flaherty J in O’Laoire v The Medical Council:86 “The common law panorama at this time gives the impression that there is but one standard of proof in civil cases though, of necessity, it is a flexible one. This flexibility will ensure that the graver the allegation the higher will be the degree of probability that is required to bring home the case against the person whose conduct is impugned. The gravity of the allegations herein is towards the top end of the scale. Thus while the test should still be on the civil side, a higher degree of probability was required. It is not for this Court to assess the evidence upon which the appeal board finally based its decision in any general sense. I do however think the Court may consider whether there was presented to the appeal board a level of proof that went beyond just a bare balancing of probability.”’

C.

NEMO IUDEX IN CAUSA SUA

[7.60] An important argument with regard to the Constitution and nature of a tribunal is that its personnel should not include persons who are in effect prosecutors or who might be suspected of bias.87 The nemo iudex rule is very rarely invoked in the context of 84 85 86 87

Kelly v Minister for Agriculture [2012] IEHC 558 at para 6.8. Georgopoulus v Beaumont Hospital [1998] 3 IR 132 at 150. O’Laoire v The Medical Council [1998] WJSC-SC 11507 at 11515. The importance of this principle could hardly be more clearly illustrated than by the dictum in Day v Savadge [1615] Hob 85 at 87: ‘Even an Act of Parliament made against natural equity as to make a man judge in his own cause is void in itself for iura naturae sunt immutabilia and they are leges legum.’ (contd.../)

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individual employment law largely because an important exception to the rule, namely, the principle of necessity, is likely to apply. On the basis of this principle, a person who is prima facie disqualified for interest or bias may be held competent and obliged to adjudicate if no other duly qualified person is available or no other duly qualified tribunal can be constituted. Parties to a contract, or the members of an organisation may agree, for example, that the power to dismiss shall be committed to a person or an authority interested in the result. Even judges may be obliged to hear a case in which they have an interest – although in the famous case of Martyn v Stewart,88 where the plaintiff complained of wrongful expulsion from his club, the judges who heard the action comprised only those who were not themselves members of the same club.89 The principle of necessity will not be mechanically applied if injustice would result, and in all cases the courts are likely to scrutinise the actual proceedings being challenged.

[7.61] The principle was applied in Flynn v Great Northern Railway Co (Ire) Ltd,90 where the prosecutor reported to an official of the company, and excused his absence from work on grounds of illness. He did not produce a medical certificate. He was given one month’s notice of dismissal for failure to report on duty without prior notification. The prosecutor’s appeal against this notice was heard by another official who affirmed the company’s decision. He alleged that the case should not have been heard by the first official as he had charged him and could not be expected to act impartially in dismissing him. According to Budd J, however, it would fly ‘in the teeth of the machinery of the negotiation rules to suggest that [the same man] could not hear the charge’.

[7.62] The rules provided that the charge should be heard by an ‘appropriate officer’ and he was satisfied the first official was such an officer. He must act impartially and without bias, but the judge saw no reason for thinking he was in any way biased in an unfair sense: ‘Of course he knew of the plaintiff’s record, but so must any master, and I am satisfied he did not allow that to blind his judgment in the matter at issue.’91 87

88 89

90 91

(\...contd) The common law traditionally distinguished between bias, arising from financial interests and that arising from such causes as relationship to a party or witness. The latter type has often been described as a challenge to favour. See Cottle v Cottle [1939] 2 All ER 535; Law v Chartered Institute of Patent Agents [1919] 2 Ch 276; Leeson v GNC (1889) 43 Ch D 366. Geoghegan J dealt fully with the question of bias in Orange Communications Ltd v Director of Telecommunications Regulation (No 2) [2000] 4 IR 159 at 251. Approved by the Supreme Court in Corcoran v Holmes [2007] 1 ILRM 23. Martyn v Stewart (1907). Again, in The State (Killian) v Minister for Justice [1954] IR 207, where the validity of the appointment of judges since 1937 was in issue, the court which heard the case was specially composed of judges who had been appointed before that date. A recent case on pre-judgment by members of the judiciary is Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR 412. See too AWG Group [2006] 1 All ER 967, where the judge personally knew the witness. Flynn v Great Northern Railway Co (Ire) Ltd (1955) 89 ILTR 46, para [7.09] above. Flynn v Great Northern Railway Co (Ire) Ltd (1955) 89 ILTR 46 at 55. King v University of Saskatchewan (1969) 6 DLR (3rd) 120 shows the courts taking a sympathetic and realistic approach to the difficulties of institutions in organising appeal procedures. See however a decision of the European Court on Human Rights in Kingsley v United Kingdom (2002) 35 EHRR 177, in which violation of art 6(1) ECHR was found where the Gaming Board passed a resolution that the applicant was not a fit and proper person to hold a gaming licence and the following year refused him licence in a formal hearing.

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[7.63] One of the few occasions on which the rule against bias was discussed in its more general application was McGrath and Ó Ruairc v The Trustees of the College of Maynooth.92 The plaintiffs, while Roman Catholic priests, had been appointed to teach in Maynooth College (which is a national seminary). On becoming laicised, they were dismissed. One limb of their argument was that the decisions to remove them from office were arrived at by the Trustees of the College (17 bishops) long before the meeting of the Trustees at which the actual resolutions were passed. Some items of evidence allegedly indicated a predetermination by the defendants, before the plaintiffs were either charged or heard, to remove them from Maynooth. It was contended that the entire proceedings against the plaintiffs were contrary to the principles of natural justice and therefore invalid. In the Chief Justice’s view, this submission, ‘even if factually correct’, did not entitle the plaintiffs to succeed: ‘A preconceived view as to what action should be taken or as to what the result ought to be, does not invalidate administrative action of the kind, provided the body concerned is willing to hear what may be said by the party charged and affords him a full and real opportunity of making his defence.’93

[7.64] The distinction was not made between having a crystallised point of view about certain issues and appearing to have judged the facts or merits of a particular case prior to a scheduled hearing. The distinction is one between administrative expertise and prejudgment. The latter, it is suggested, should always be a fatal flaw in any decision. [7.65] Great care should be taken if a person who has been involved in an investigative role is to be present at a meeting to adjudicate and decide the outcome. In Mooney v An Post,94 it was submitted, inter alia, that the constitution of the committee and of the board of An Post amounted to a breach of the principle of nemo iudex in causa sua in that the third party, who had prepared the report on which the committee and the board ultimately acted, was present at the committee meeting and that a fourth party, who signed the report, was also present at both the committee meeting and the meeting of the board. Counsel for the plaintiff relied on the decision of the Supreme Court in Connelly v McConnell,95 and Kenny J in O’Donoghue v Veterinary Council.96 Keane J (as he then was) reiterated that the concept of nemo iudex is imprecise and its application may differ significantly from case to case: ‘... the nemo iudex requirement cannot be literally applied to every employer confronted with a decision as to whether or not he should dismiss a particular employee. If it were, an 92

93

94 95 96

Ó Ruairc v The Trustees of the College of Maynooth [1979] ILRM 166. See, too, Heneghen v The Western Regional Fisheries Board [1986] ILRM 225 where it was successfully argued that the dismissal was void, inter alia, for want of natural justice as a party to the dispute had acted as ‘witness, prosecutor, judge, jury and appeal court’. See too Allman v Minister for Justice [2003] ELR 7 at 15. Ó Ruairc v The Trustees of the College of Maynooth [1979] ILRM 166 per O’Higgins J at 179. Mooney v An Post [1994] ELR 103, see para [7.28] above. Connelly v McConnell [1983] IR 172. O’Donoghue v Veterinary Council [1975] IR 398. Probably no longer regarded as reliable as it sets an unreasonably high standard.

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[7.68]

employer could never dismiss an employee, since he would always be an interested party in the decision.’97

He conceded on the authorities cited that the presence on the tribunal of someone who had hitherto been in a prosecuting role ‘may’ be a violation of nemo iudex.98

[7.66] Legislation often provides that the Minister for Finance is required to concur with payments made by other Minsters to named office-holders. Whether the Minister who pays can be the party who determines the amount arose in Ó Cléirigh v Minister for Agriculture.99 The Irish Land Commission (Dissolution) Act 1992 provided in s 9(1) that the Minister for Agriculture ‘with the concurrence of the Minister for Finance, may ... provide such compensation to or in respect of a lay commissioner ceasing to hold office ... as the Minister considers reasonable’. The plaintiff was appointed a lay commissioner in 1980. Negotiations between him and the first defendant as to the terms of possible compensation for early loss of office were unsuccessful. He instituted proceedings, claiming, inter alia, that s 9(1) contravened the principle of nemo iudex. Barron J (High Court), agreeing, described the need for the concurrence of the Minister for Finance as involving budgetary considerations which is ‘something which has no place in a judicial determination’: ‘Further, since it is a judicial determination, justice must not only be done, but must be seen to be done. In such circumstances, the party paying cannot at the same time be the party determining the amount of the payment. To do so would be to make him a judge in his own cause.’100

[7.67] In many cases it will be the general manager who conducts disciplinary proceedings. But there may be circumstances where that would not be appropriate. In Cassidy v Shannon Castle Banquets and Heritage Ltd (para [7.19]) the High Court found the defendant in breach of the principle of nemo iudex in causa sua in permitting the general manager to adjudicate upon a complaint of unwanted sexual advances against the plaintiff. The Court recognised that it is only in unusual circumstances in the employment context that a general manager should not investigate and decide on such a complaint. In the case before the Court, however, the defendant was a large organisation having an integral relationship with a State-sponsored body. There were other persons who could have carried out the inquiry without the taint of the suggestions of bias, motives for prejudgment, lack of impartiality and personal involvement. In the circumstances the Court held that the general manger should not have been the adjudicator. [7.68] A point which applies to both tenets of natural justice relates to procedures allowing for appeal. If a two-tier procedure is laid down by regulations, and an error as to natural justice occurs in the second tier, that of review, the entire proceedings are not 97 98

99 100

Mooney v An Post [1994] ELR 103 per Keane J at 116. It will be recalled that the plaintiff’s claim was dismissed; this aspect was not considered on appeal by the Supreme Court. Ó Cléirigh v Minister for Agriculture [1996] 2 ILRM 12. Per Barron J at 15 quoting O’Brien v Bord na Móna [1983] IR 255.

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thereby invalidated. The decision reached upon the first tier of investigation will stand: The State (Sheehan) v McMahon.101 The Supreme Court affirmed that: ‘There is no reason why the error of the Appeal Tribunal in thinking that they had no jurisdiction to review should be held to invalidate what had gone before.’102

Aliter, of course, if an error occurs at the first stage of the procedure; see Leary v National Union of Vehicle Builders,103 where it was held that a failure to comply with the rules of natural justice at the initial hearing cannot be remedied by a proper hearing on appeal. While the Privy Council decided that this is not necessarily the case with every organisation, it suggested the principle should apply to trade unions: Calvin v Carr.104

[7.69] In Conway v Health Service Executive105 the plaintiffs, nurses in Áras Attracta, claimed that there had been a breach of their terms and conditions of employment by appointing an investigation team without their agreement and by conducting a parallel investigation under the Trust in Care Policy and the Disciplinary Procedure. Deciding the issue on other grounds, the High Court commented: ‘It does appear to the Court to be unwise to invest the evidence gatherers with the power to become complainants and thereafter to become judges in respect of those complaints. This conflation of roles could certainly give rise to injustice and contravene the principle of nemo iudex in causa sua.’

[7.70] In Ruffley v Board of Management of St Anne’s School106 the plaintiff, a special needs assistant sued for bullying and harassment. O’Neill J stated: ‘I am quite satisfied that the Board did not give any meaningful consideration to the case being made by the plaintiff, namely, that the locking of the door was a common practice amongst the SNAs. At this late stage, when the Board had been alerted to the plaintiff’s case in this regard, they declined to give it any due consideration. The plaintiff’s appeal to them, insofar as it could be said to be an appeal in the normal sense, as the appeal was to the same decision maker as had made the decision appealed against, thereby demonstrably offending the maxim nemo iudex in causa sua, in the event, fell on deaf ears.’

On appeal to the Court of Appeal107 and subsequently to the Supreme Court,108 whilst the plaintiff’s damages award for was overturned on the basis that her claim did not amount to bullying, all members of the (divided) Court of Appeal and (unanimous) Supreme Court were strongly critical of the lack of procedures adopted, with the judgments making increasingly likely the granting of declarations of invalidity arising from flawed disciplinary processes. 101 102

103 104 105 106 107 108

The State (Sheehan) v McMahon [1976–77] ILRM 305. Per Henchy J (Kenny and Parke JJ concurring) at 310. The Supreme Court thought it scarcely conceivable, having regard to the admitted facts and the lightness of the penalty, that the Appeal Tribunal would do other than affirm the disciplinary action that had been taken. Leary v National Union of Vehicle Builders [1971] Ch 34. Calvin v Carr [1979] 2 All ER 440. Conway v Health Service Executive [2016] IEHC 73 at para 36. Ruffley v Board of Management of St Anne’s School [2014] IEHC 235 at para 75. Ruffley v Board of Management of St Anne’s School [2015] IECA 87. Ruffley v Board of Management of St Anne’s School [2017] IESC 33.

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[7.74]

Probationers [7.71] A more inflexible view has traditionally been adopted by the courts in the case of probationers; see, for example, Hynes v Garvey.109 In Broomfield v Minister for Justice,110 Costello J (High Court) took the view that the plaintiff, a prison officer on probation dismissed without notice as to the reasons therefor, was not entitled to relief. In his opinion:111 ‘A person on probation is not in the same position as an office-holder whose probation is ended for the very obvious reason that his employing authority may consider the probationer unsuited for permanent employment and without any specific charge of any acts of misconduct the employing authority keeps to itself the right not to appoint the probationer on a full-time basis.’

[7.72] A number of cases have concerned probationer civil servants including prison officers whose probation was governed by s 7 of the Civil Service Regulation Act 1956, as amended by s 3 of the Civil Service Regulation (Amendment) Act 1958. The law required the Minister as the appropriate authority to be ‘satisfied’ that a probationer civil servant had failed to fulfil the conditions of probation before termination. Section 7 of the Civil Service Regulation (Amendment) Act 2005 substituted a new section for s 5 in the Act of 1956. That section, s 5A, says: Where a civil servant … does not complete the period of the probationary contract to the satisfaction of the appropriate authority, the provisions of section 7 [regarding termination] shall apply.

It must be assumed that requiring something to be to the ‘satisfaction’ of the appropriate authority is the same as requiring that the appropriate authority ‘be satisfied’. In s 5A the requirement of satisfaction can be met or otherwise only after the probationary period. At the same time s 5A(4) provides: Nothing in this section shall prevent the termination of an appointment under [this section] in accordance with the terms and conditions of the probationary contract prior to the expiry of the term of the contract.

[7.73] In The State (Malachy Daly) v The Minister for Agriculture,112 the prosecutor without any prior warning or indication was informed by telephone that the conditions of probation had not been satisfied by him and that, accordingly, the respondent had decided to terminate his appointment. He obtained a conditional order of certiorari quashing the decision of the respondent.

[7.74] Barron J saw the ‘real issue’ as relating to the proper construction of ‘the appropriate authority is satisfied’ in s 7. (The ‘appropriate authority’ has been redefined in the Civil Service Regulation (Amendment) Act 2005, para [3.18].) There was no 109 110 111 112

Hynes v Garvey [1978] IR 174. Broomfield v Minister for Justice (10 April 1981) HC. Broomfield v Minister for Justice (10 April 1981) HC at 5. The State (Malachy Daly) v The Minister for Agriculture [1988] ILRM 173. Also Hynes v Garvey [1978] IR 174, Burke v Garvey [1979] ILRM 232 and Broomfield v Minister for Justice (10 April 1981), HC; Whelan v Minister for Justice (19 June 1990) HC, (1991) ILT 2 at 73.

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[7.75]

substantial distinction, he felt, between that expression and such expressions as ‘the Minister considers’ or ‘the Minister is of the opinion’. In all cases, the exercise of the statutory power is subject to the guarantee of fair procedures. ‘The fact that the decision relates to a person in a probationary position does not affect his or her right to fair procedures. It is no more than one of the circumstances to be considered to determine whether in the particular case fair procedures have been observed.’

[7.75] Barron J held: (1) (2) (3)

(4)

The fact that a decision such as the one in issue relates to a person in a probationary period does not affect such person’s right to fair procedures. Section 7 of the 1956 Act must be construed as giving powers to the Minister which can only be exercised in conformity with the Constitution.113 It is the duty of the court to ensure that the material upon which the Minister acted is capable of supporting his decision. Where such material is not forthcoming, there is no matter from which the court can make such a determination. The Minister was entitled to act without giving notice, but once challenged, was obliged to disclose to the prosecutor the material upon which he had acted.

[7.76] Further decisions must be awaited on the new s 5A of the Civil Service Regulation Act 1956 for a principled restatement of the law regarding probationer civil servants.114

113 114

The State (Lynch) v Cooney [1982] IR 337 applied. See generally Gallagher and Maguire, Civil Service Regulation (Bloomsbury Professional, 2011).

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Chapter 8

The Constitution and Dismissal A.

CONSTITUTIONAL ACTIONS INTER PARTES

[8.01] The Constitution expressly protects the rights and freedoms of individuals from violation by the State. However, partly as a result of its abstract language, it has private law aspects as well.1 Irish courts may also look to the European Convention on Human Rights when considering the nature of individual fundamental rights and increasingly do so. Prior to the passing of the European Convention on Human Rights Act 2003, this happened only rarely, but in the 15 years since that Act has been in force, this has increased significantly. [8.02] In Educational Company of Ireland v Fitzpatrick (No 2)2 Budd J observed that, if an established right in law exists, a citizen has a right to assert it and it is the duty of the courts to aid and to assist him in the assertion of his right: ‘Obedience to the law is required of every citizen, and it follows that if one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it.’

To say otherwise, the judge pointed out, would be tantamount to saying that a citizen can set the Constitution at nought and that a right solemnly given by fundamental law is valueless: ‘It follows that the courts will not so act as to permit any body of citizens to deprive another of his constitutional rights and will in any proceedings before them see that these rights are protected, whether they be assailed under the guise of a statutory right or otherwise ... If the Oireachtas cannot achieve this end, so much the less can any unauthorised body of citizens.’3

[8.03] The question of locus standi under the Constitution may be relevant. Although the Constitution refers to ‘citizens’ in almost every instance, case law over the last 50 years reveals a highly nuanced and individuated analysis in cases involving individual rights, where citizenship is not determinative of the application of such rights.4 In 1980, 1

2 3

4

See Temple Lang, ‘Private Law Aspects of the Irish Constitution’ (1971) 6 Ir Jur (ns) 237, 243; Binchy, ‘Meskell, the Constitution and Tort Law’ (2011) 33 DULJ 339. Educational Company of Ireland v Fitzpatrick (No 2) [1961] IR 345 at 368–69. Educational Company of Ireland v Fitzpatrick (No 2) [1961] IR 345 at 368–69. This was reinforced in 1971 by Walsh J in the Supreme Court in East Donegal Livestock Mart v AG [1971] IR 317 at 338, which reaffirmed that rights guaranteed by the Constitution are intended to be protected by the provisions of the Constitution. One of the first cases involving a so-called private constitutional action was Murtagh Properties Ltd v Cleary [1972] IR 330. The case law spans from Nicolaou v An Bórd Úchtála [1966] IR 667 to NVH v Minister for Justice and Equality [2017] IESC 35.

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[8.04]

the Supreme Court unanimously held5 that a plaintiff must show he had been personally affected injuriously by an impugned statute (or, one may add, action) or that he is in imminent danger of being the victim of it. The court reserved the right to waive or relax this rule if there are ‘weighty countervailing considerations justifying a departure from the rule’.

B.

INFRINGEMENT OF CONSTITUTIONAL PROVISIONS AND

DISMISSAL

[8.04] Meskell v CIÉ6 has been referred to earlier (para [2.05]). That case made it clear that a common law right of dismissal as a method of compelling a person to abandon a constitutional right will not stand. The same considerations apply where a person is dismissed or penalised because of his insistence upon, or his refusal to waive, the right to dissociate.

[8.05] Likewise, constitutional rights must not be exercised in such a way as to frustrate, infringe or destroy the constitutional rights of others. Once it is sought to exercise these rights without regard to the rights of others, or without regard to the harm that may be done to others, what is taking place is an abuse and not the lawful exercise of a right given by the Constitution. Abuse ranks equally with infringement of the rights of others and is condemned by the courts.7 As is seen below,8 the Unfair Dismissals Acts protect employees dismissed for trade union membership or activities. But the constitutional position remains important as the legislation does not protect in the event of action short of dismissal, nor does it protect those exercising their right of dissociation. And, by definition, it does not assist a person refused employment because of trade union membership. Constitutional rights may be expressed or ‘unspecified’. The former are set out in Arts 40–44. They cover inviolability of the dwelling, freedom of association, of expression and of assembly, property rights and freedom of religion. 5

6

7 8

Cahill v Sutton [1980] IR 269. The courts have shown flexibility in waiving the rules. In Crotty v An Taoiseach [1987] IR 713, the validity of ratifying the Single European Act without amending the Constitution was queried. The plaintiff was suing as an ordinary citizen, unable to show any personal injury as a result of ratification. As the impugned legislation if made operative would affect every citizen, the Supreme Court held that the plaintiff had locus standi to challenge the Act. See, before Cahill, East Donegal Co-Op Livestock Mart Ltd v AG [1970] IR 317 at 388. A comprehensive treatment is found in Hogan and Whyte, JM Kelly: The Irish Constitution (4th edn, Tottel Publishing, 2003) para 6.2.117 et seq. Meskell v CIÉ [1973] IR 121 at 135. Contrast Flynn v GNR Co (Ire) Ltd (1955) 89 ILTR 46. The earlier High Court decision in Hynes v Conlon and Others [1939] Ir Jur Rep 49 cannot stand in the light of Meskell. Crowley v Ireland, INTO [1980] IR 102. Chapter 21.

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The Constitution and Dismissal

[8.08]

[8.06] In the High Court in Ryan v AG9 Kenny J was called upon to interpret Art 40.3.1°, under which the State guarantees to protect the ‘personal rights’ of the citizen. In the course of his judgment, which was upheld by the Supreme Court, Kenny J held that: ‘The personal rights which may be invoked to invalidate legislation are not confined to those specified in Article 40 but include all those rights which result from the Christian and democratic nature of the State.’10

Kenny J conceded that this view imposes on the High and the Supreme Courts a difficult and responsible duty to ascertain and declare the guaranteed personal rights of the citizen: ‘In modern times, it would seem to be a function of the legislative rather than the judicial power, but it was done by the courts in the formative period of the common law, and there is no reason why they should not do it now.’11

[8.07] The Supreme Court likewise took the view that the enumeration of ‘personal rights’ in Art 40.3.2° of the Constitution relating to ‘life, person, good name and property’ was not exhaustive and admitted that to attempt to make a list of all the rights which may properly fall within the category of personal rights would be difficult.12 Acknowledgement of implied or ‘undisclosed’ human or personal rights in Art 40.3.1° has encouraged a great deal of judicial creativity not least in the area of labour law. However, in recent years the so-called ‘unenumerated rights doctrine’ has largely fallen out of favour in the Superior Courts although unenumerated rights continued to be recognised under different constitutional provisions.13

[8.08] In relation to unconstitutional dismissal, the most important express rights14 are: All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function (Art 40.1). The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen (Art 40.3.1°). 9

10 11 12 13

14

Ryan v AG [1963] IR 294. See, in this context, the late Mr Justice Walsh in O’Reilly and Redmond, Cases and Materials on the Irish Constitution (Incorporated Law Society of Ireland, 1980), Foreword. Ryan v AG [1963] IR 294 at 312. Ryan v AG [1963] IR 294 at 313. Ryan v AG [1963] IR 294 at 344, 345. O’T v B [1998] 2 IR 321; TD v Minister for Education [2001] 4 IR 259; Fleming v Ireland [2013] 2 IR 417; Kenny, ‘Recent Developments in the Right of the Person in Article 40.3: Fleming v Ireland and the Spectre of Unenumerated Rights’ (2013) 36 DULJ 322; NVH v Minister for Justice and Equality [2017] IESC 35. The first EAT case under the Unfair Dismissals Act 1977 to invoke a constitutional right was White v Aluset Ltd UD 259/88. The EAT found the right of freedom of association germane to the facts before it.

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[8.09]

Redmond on Dismissal Law

The State shall, in particular by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen (Art 40.3.2°). The State guarantees liberty for the exercise of the following rights, subject to public order and morality: ... The right of the citizens to form associations and unions (Art 40.6.1°). Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right (Art 40.6.1°(iii)). The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status (Art 44.2.3°).

[8.09] Constitutional rights may be violated directly15 or indirectly16 by dismissal. An important express right in this context is freedom of association.17 Although the adjective ‘trade’ does not appear before the word ‘union’ in Art 40.6.1°(iii), the subsection clearly includes the right of citizens to form trade unions.

(1) Freedom of association [8.10] Freedom of association has been considered in a number of Irish cases. From the earliest of these, it has been strictly construed in favour of individual interests. In 1947 the Supreme Court held unconstitutional a statutory attempt in the Trade Union Act 1941 to confer on specified unions the right to organise and to represent workers in a specific union, to the exclusion of other unions: NUR v Sullivan.18 In the opinion of the court, any attempt to prescribe which unions workers were entitled to join was not an attempt to regulate or control the right to form unions but an attempt altogether to 15

16

17

18

McGrath and Ó Ruairc v The Trustees of the College of Maynooth [1979] ILRM 166 where Art 44.2.3º was unsuccessfully invoked. See, also, Quinns Supermarket Ltd v AG [1972] IR 1; Mulloy v The Minister for Education [1975] IR 88; and M v An Bord Uchtála [1975] IR 81. The right, eg, to free primary education could be indirectly affected if a purported dismissal had the consequence of depriving third parties thereof; see a discussion of the right in circumstances of industrial action in Crowley v Ireland, INTO [1980] IR 102; cf Meade v London Borough of Haringey [1979] 1 WLR 637. See Casey, ‘Some implications of Freedom of Association in Labour Law: a comparative study with special reference to Ireland’ (1912) 21 ICLQ 699; Kerr and Whyte, Irish Trade Union Law (Professional Books, 1985), Ch 2; Forde and Byrne, Industrial Relations Law (2nd edn, Round Hall, 2010), Ch 8. In Wilson v United Kingdom (2002) 35 EHRR 523 the European Court of Human Rights held that art 11 ECHR ‘safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible’. See, too, Wilson v Associated Newspapers and Palmer v Associated British Ports [2002] IRLR 568 (ECtHR: breach of art 11 for employer to use financial incentives to induce employees to surrender trade union rights); Unison v UK [2002] IRLR 497 (ECtHR: prohibition of strike restriction on a union’s power to protect occupational interests of members and therefore a restriction on guarantee in art 11); Werhof v Freeway Traffic Systems [2006] IRLR 400 (employer’s freedom of association recognised); ASLEF v United Kingdom (2007) 45 EHRR 34; Demir and Baykara v Turkey [2009] IRLR766 (ECtHR). NUR v Sullivan [1947] IR 77 in which Murnaghan J for the Supreme Court declared ultra vires Part III of the Trade Union Act 1941. See Hogan & Whyte, JM Kelly: The Irish Constitution (4th edn, Tottel Publishing, 2003) para 7.5.171 et seq.

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The Constitution and Dismissal

[8.11]

abolish the exercise of that right.19 The tight legalism of the Supreme Court in this case was later sustained in Educational Co of Ireland Ltd v Fitzpatrick.20 Here, the Supreme Court decided by a majority of 3:2 that picketing was contrary to the law when its purpose was to compel employers to dismiss those in their employment who were not members of a particular union.21 The company had been asked by the union to compel certain employees to join. When they refused, strike action began and the company’s premises were picketed. In the circumstances, picketing was held to be ultra vires and to lie outside the protection of s 2 of the Trade Disputes Act 1906.22 To the extent that it authorised or facilitated an unconstitutionality, the Act was held to be inconsistent, pro tanto, with Art 50 of the Constitution.

[8.11] The Educational Co case established the principle that a freedom or right to associate necessarily included a correlative right not to join. In effect the judgment destroyed the legality, in the sense of the enforceability, of closed shop or union security arrangements.23 The right of dissociation followed by implication. According to Kingsmill Moore J: ‘I think a guarantee of a right to form associations and unions is only intelligible where there is an implicit right to abstain from joining such associations or unions.’24 19

20

21

22

23

24

The decision has been regarded as a body-blow by the trade union movement ever since. See Report of the Committee on the Constitution (1967) paras 116–122 inclusive; MacCarthy, Trade Unions in Ireland 1894–1960 (IPA, 1977) 486. Contrast the different approach later adopted by the Supreme Court in circumstances admittedly not identical: PMPS Ltd and Moore v AG [1983] IR 339. Educational Co of Ireland Ltd v Fitzpatrick [1961] IR 345. See Hogan & Whyte, JM Kelly: The Irish Constitution (4th edn, Tottel Publishing, 2003), 979; MacCarthy, Trade Unions in Ireland 1894–1960 (1977) 512; and Heuston, ‘Trade Unions and the Law’ (1969) 4 Ir Jur (ns) 10. Two separate rationes decidendi can be found in the case: Casey, ‘Some implications of Freedom of Association in Labour Law: a comparative study with special reference to Ireland’ (1972) 21 ICLQ 699, fn 17 above, 704. See MacCarthy, Trade Unions in Ireland 1894–1960 (IPA, 1977) Ch 12 and at 517 a particularly pertinent comment: ‘the whole purpose of legalism, the attainment of objective equity, was turned on its head by the very operation of legalism itself, which left cases to be construed almost in the manner of a lottery.’ Educational Co of Ireland Ltd v Fitzpatrick [1961] IR 345 at 398, per Ó Dálaigh J. Section 2 has since been repealed by the Industrial Relations Act 1990. On picketing now, see s 11 of the 1990 Act. Note, however, highly important dicta in the dissenting judgment of Henchy J in Becton Dickinson Ltd v Lee [1973] IR 1 at 47–48 (Supreme Court). The judge suggested that where a prospective employee was required to join a particular union ‘the matter is one of contract and there is no compulsion or coercion, and no interference with the citizen’s free choice ... Not alone is it not in derogation of his constitutional right, it is in exercise of that very right’. See in this context de Blaghd, ‘How closed can my shop be?’ (1972) 106 ILTSJ 67. Educational Co of Ireland Ltd v Fitzpatrick (No 2) [1961] IR 345 at 395. See Casey, ‘Some implications of Freedom of Association in Labour Law: a comparative study with special reference to Ireland’ (1972) 21 ICLQ 699, 707–08. Contrast art 11 of the European Convention on Human Rights and Fundamental Freedoms where freedom of dissociation is not protected as a concomitant of the protection of freedom of association. (contd.../)

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[8.12]

Redmond on Dismissal Law

The right of dissociation is now entrenched in Irish law.25 For example, in Meskell v CIÉ26 Meskell was dismissed by CIÉ where he had worked as a bus conductor for 15 years. At all times during his employment he had been a member in good standing of a trade union. Four trade unions had members in the employment of CIÉ. They were dissatisfied with the level of union membership among employees, and were trying to reduce the number of employees in arrears with union dues. The relevant unions tried to compel the defendants to withhold certain benefits from some employees. The defendants refused to do so. Instead they agreed to terminate the contracts of employment of all employees and to offer each one immediate re-employment under the same general terms as theretofore if he agreed, as a special and additional condition of employment, to the special condition. At the date of his dismissal, Meskell was a member of one of the four unions and had paid all his union dues. When first employed by CIÉ, union membership had not been a term of his contract of service. He sued the defendants for damages in the High Court and claimed a declaration that his dismissal by CIÉ was a violation of his rights under Art 40.6.1°(iii). He also claimed damages for conspiracy. The claims were dismissed by Teevan J in the High Court and the plaintiff appealed to the Supreme Court. The court held that Meskell was entitled to a declaration that his dismissal was a denial and a violation of, and an unlawful interference with, his constitutional rights, and that the agreement between CIÉ and the four unions to procure or cause that dismissal was an actionable conspiracy27 because the means employed constituted a breach or infringement of the plaintiff’s constitutional rights. The plaintiff was also held entitled to damages.28

[8.12] It is clear that, as against an employer, a union membership agreement cannot be legally enforced in Ireland. Indeed, even the moderate approach of requiring the Labour Court to intervene when an employer refused to negotiate and design a legally binding arrangement has been rejected, the Supreme Court in Ryanair Ltd v Labour Court29 holding that the statutory scheme established by the Industrial Relations (Amendment) Acts 2001–2004 did not apply to employers who established an in-house system of collective bargaining of which the union members refused to avail. In practice, however, closed shop agreements are entered into by unions and employers. This can generate further problems concerning the rights of individual workers against one or both of the collective parties. For instance, a trade union exercising a monopoly may refuse to 24

25

26

27

28 29

(\...contd) In spite of this see the wide interpretation of the European Court of Human Rights in Young, James & Webster v UK [1982] EHRR 38. See also Mantouvalou, ‘Is There a Human Right not to Be a Trade Union Member?’ in Novitz and Fenwick (eds), Human Rights at Work: Perspectives on Law and Regulation (2010) 439. The case was followed by the High Court in Crowley v Cleary [1968] IR 261; and Murtagh Properties Ltd v Cleary [1972] IR 330. Article 40.6.1º(iii) has become a source of new rights. See further Rodgers v Irish Transport and General Workers Union [1978] ILRM 51. Meskell v CIÉ [1973] IR 121. See, also, Cotter v Ahern [1976–7] ILRM 248. That there is a limit in practice on the right of association and dissociation in the trade union context appears from Murphy v Stewart [1973] IR 97, 107 ILTR 117. See Redmond, ‘The Tort of Conspiracy in Irish Labour Law’ (1973) 8 Ir Jur 252, and see Cotter v Ahern [1976–7] ILRM 248. See para [8.33] et seq, below. Ryanair Ltd v Labour Court [2007] ELR 57.

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[8.13]

accept a particular applicant into membership. If a post-entry closed shop is in operation so that as a result of such refusal an employer has no option but to dismiss an employeeapplicant, it seems an employee may proceed against the trade union or unions concerned claiming breach or infringement of his or her constitutional right to work.30 (There is no reason in principle why the employee might not also institute proceedings against the employer.) The Supreme Court discussed the question, obiter, in Murphy v Stewart:31 ‘It has been submitted in this court on behalf of the plaintiff and not really contested by the defendants that among the unspecified personal rights guaranteed by the Constitution is the right to work; I accept that proposition.32 The question of whether that right is being infringed or not must depend upon the particular circumstances of any given case; if the right to work was reserved exclusively to members of a trade union which held a monopoly in this field and the trade union was abusing the monopoly in such a way as to effectively prevent the exercise of a person’s constitutional right to work, the question of compelling that union to accept the person concerned into membership (or indeed of breaking the monopoly) would fail to be considered for the purpose of vindicating the right to work.’33

Outside of a closed shop situation there is no constitutional right to join the union of one’s choice.34

[8.13] If a trade union monopoly takes the form of a pre-entry closed shop, there is judicial authority obiter that an individual’s acceptance of employment in such circumstances may amount to a waiver of her constitutional rights under Art 40.6.1°(iii).35 Hence a subsequent dismissal because an individual refused to join the pre-specified union once employed, or because an employee left the union having been accepted by it, would not be unconstitutional. That constitutional rights may be waived where there is full knowledge as to the nature of the act and full consent thereto is now settled.36 However, since constitutional rights lie at the apex of rights in Ireland’s legal system, the courts will not readily infer waiver. It is likely to be particularly difficult to establish the consent necessary for waiver in relation to a pre-entry closed shop where 30

31 32 33

34 35

36

See further para [8.14]. The right to work has been invoked most often in the context of abuse of trade union or collective power. Murphy v Stewart [1973] IR 97 at 117 per Walsh J. See para [8.14]. See Walsh J foreshadowing these dicta in Meskell v CIÉ [1973] IR 121 at 136. It will be crucial to establish that a trade union is abusing monopolistic power. There will be no case to meet where the union is simply pursuing bona fide objectives such as the provision of job opportunities for younger persons in a particular employment by means of a compulsory retirement age: Rodgers v ITGWU [1978] ILRM 51. See Tierney v Amalgamated Society of Woodworkers [1959] IR 254. Becton Dickinson Ltd v Lee [1973] IR 1 at 47–48 per Henchy J. See fn 22 above. The judge did not express a view on whether a condition requiring indefinite trade union membership would be constitutionally valid. But consider Equality Authority v Portmarnock Golf Club [2010] 1 ILRM 237 at 242 where Hardiman J noted that ‘one cannot penalise or disadvantage a person with a view to persuading him or her to waive, or not to exercise, a constitutional right’. See also Sorensen v Denmark (2008) 46 EHRR 572. G v An Bórd Úchtála (1979) ILTR 25; McGrath and Ó Ruairc v Trustees of Maynooth College [1979] ILRM 166. This issue is particularly germane to the precepts of constitutional justice.

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[8.14]

Redmond on Dismissal Law

workers may be obliged to join the particular union under threat of economic deprivation. Moreover, if the pre-entry closed shop agreement requires a person not only to become, but also to remain at all times, a member of a particular union, it is doubtful whether the courts would uphold this wider long-term commitment as being consistent with the Constitution.

(2) Implied right to work [8.14] The right to work has been referred to at para [8.12] above. The first case in which it has provided the ratio decidendi is Cox v Ireland.37 The plaintiff, a qualified vocational teacher, pleaded guilty in the Special Criminal Court to certain firearms offences and was sentenced to two years’ imprisonment. On his release, he was informed that by virtue of the Offences Against the State Act 1939, s 34, his teaching position had been forfeited and that he was disqualified from holding the position for a period of seven years. The High Court (Barron J) granted the declaration sought that s 34 was in breach of the Constitution. The Supreme Court dismissed an appeal (Finlay CJ, Hederman, McCarthy, O’Flaherty and Egan JJ). It held, inter alia, that s 34 constituted an attack and major inroad on the unenumerated right of the person involved to earn a living and also on certain property rights of that person protected by the Constitution, such as the right to a pension or the right to the advantage of a subsisting contract of employment. The section was impermissibly wide and indiscriminate.

[8.15] In NVH v Minister for Justice and Equality,38 the Supreme Court found that the absolute prohibition on asylum seekers engaging in employment constituted an unlawful 37

38

Cox v Ireland [1992] 2 IR 503. The implied constitutional right to earn a livelihood is another way of referring to the right to work. See Murtagh Properties Ltd v Cleary [1972] IR 330 (which more correctly involved the right in relation to equal access to employment for men and women workers); Macken v Irish Equestrian Federation (20 July 1978) HC. In Landers v AG (1973) 109 ILTR 1, legislation limiting the extent to which young children could take part in public entertainment was unsuccessfully impugned; and in Moran v AG [1976] IR 400 the right was invoked in relation to the appropriate body charged with the power of withdrawing a taxi-driver’s licence. A statutory monopoly under the Post Office Act 1908 and its impact on the right to earn a livelihood were explored in AG and Minister for Posts and Telegraphs v Paperlink Ltd [1984] ILRM 373 (held not unconstitutional). Likewise, restrictions imposed by the Gaming and Lotteries Act 1956 were found not to violate the plaintiff’s right to earn a livelihood in Cafolla v O’Malley and AG [1985] IR 486; similarly disqualifications imposed by the Casual Trading Act 1980 in Hand v Dublin Corporation [1991] 1 IR 409. An important principle was stated by O’Hanlon J in Parsons v Kavanagh [1990] ILRM 560: ‘... the constitutional right to earn one’s livelihood by any lawful means carries with it the entitlement to be protected against any unlawful activity on the part of another person or persons which materially impairs or infringes that right.’ See O’Dowd, ‘The Principle of Equality in Irish Constitutional and Administrative law’ (1999) 11 European Review of Public Law 769 at fn 63. In The Employment Equality Bill 1996 [1997] ELR 132, the Supreme Court regarded the right to carry on business and earn a livelihood as an employer’s right to a particular item of property protected from unjust attack by Art 40.3. The constitutional right to work was referred to by the EAT in Pacelli v Irish Distillers Ltd [2004] ELR 25. NVH v Minister for Justice and Equality [2017] IESC 35.

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[8.17]

restriction of the right to seek employment under Art 40.1 of the Constitution, the guarantee of equality before the law. According to the Court, Art 40.1 must be taken to mean that individuals – not merely citizens, as the text suggests – are required to be held equal before the law, which means that ‘those aspects of the right which are part of human personality cannot be withheld absolutely from non-citizens’. The right to work fell within this sphere. In the instant case, the damage to the applicant’s sense of selfworth over a sustained period of time – evidence had been led that he suffered from depression, frustration and lack of self-belief after being denied the right to work during a period of more than eight years while the applicant awaited the outcome of his asylum application – bolstered the conclusion that the absolute prohibition was unlawful. However, the Court recognised three potential grounds for restricting this right in the context of non-citizens: (1) the number of asylum seekers in the jurisdiction and the number applying for asylum; (2) the State’s interest in maintaining the status quo; and (3) the ability to restrict the type or kind of work and length of time for which asylum seekers might be entitled to work.

(3) Implied right to basic fairness of procedures [8.16] Of most significance is a right central also to statutory unfair dismissals law, namely, basic fairness of procedure. The late Chief Justice, Ó Dálaigh CJ, described Art 40.3 of the Constitution as a guarantee to the citizen of basic fairness of procedures in Re Padraig Haughey:39 ‘The Constitution guarantees such fairness and it is the duty of the court to underline that the words of Article 40 s 3 are not political shibboleths but provide a positive protection for the citizen.’

The protection is inviolate no matter what a person’s motives for invoking it.40

[8.17] The right to basic fairness of procedures is capable of a wide application in both private and public law: ‘... in proceedings before any tribunal where a party to the proceedings is on risk of having his good name or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and the State, either by its enactments or through the courts, must, in compliance with the Constitution, outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.’41

By far the most important legacy of Haughey is the constitutionally inspired term of fairness which the Supreme Court implied in the contract of employment of a company director in Glover v BLN Ltd.42 The Irish courts are willing to graft an implied term of fairness onto terms already in an employee’s contract of employment. This is an important factor in the courts’ willingness to grant injunctions to ensure that employment contracts are not terminated unless proper procedures are followed: see Chapter 10. 39

40 41 42

Re Padraig Haughey [1971] IR 217 at 263. See, too, The State (Healy) v Donoghue [1976] IR 325, 110 ILTR 9; Gallagher v Revenue Commissioners and Ors [1994] ELR 231. Gallagher v Revenue Commissioners and Ors [1994] ELR 231. See para [7.27]. Re Padraig Haughey [1971] IR 217 at 264 per Ó Dálaigh CJ. Glover v BLN Ltd [1973] IR 388. Further on Glover see paras [3.35], [4.33] and [5.07].

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[8.18] Non-citizens are entitled to basic fairness of procedures in the same way as citizens: The State (McFadden) v Governor of Mountjoy Prison.43 Barrington J said: ‘The substantive rights and liabilities of an alien may be different to those of a citizen ... But when the Constitution prescribes basic fairness of procedures in the administration of law it does so, not only because citizens have rights, but also because the courts in the administration of justice are expected to observe certain forms of due process enshrined in the Constitution. Once the courts have seisin of a dispute, it is difficult to see how the standards they should apply in investigating it should, in fairness, be any different in the case of an alien than those to be applied in the case of a citizen.’

(4) Implied right to privacy [8.19] An employee’s implied personal right to privacy may be relevant, for example, where an employer engages in surveillance of the workplace. The Constitution does not provide an explicit right of privacy.44 The Law Reform Commission, following consideration of decisions wherein, for example, the courts have recognised a right to marital privacy and a general right to privacy of communication,45 concluded that such privacy rights could, in theory, find application within the workplace. Thus an employer’s right to engage in surveillance must be balanced against the privacy rights of the employees.

(5) Implied right to a good name [8.20] The State guarantees in Art 40.3.2° to protect as best it may from unjust attack and, in the case of injustice, to vindicate the ‘good name’ of every citizen. In M v Medical Council46 the plaintiff submitted that the Medical Practitioners Act 1978 constituted a failure to vindicate and defend his good name in that it failed to prohibit the publication of the findings of a Fitness to Practice Committee in the event of their being of the opinion that a practitioner was guilty of professional misconduct or unfit to practise medicine. Finlay P held that the constitutional guarantee cannot obligate the State to protect any person from every statement or publication which might damage his good name. In the circumstances the public had a clear and identifiable interest. Moreover the plaintiff was entitled to have a full hearing in public before the High Court in which, if successful, his reputation would be vindicated. M does not detract from the potential of an argument based on this right in appropriate circumstances.

(6) Implied right to a speedy trial/not unreasonable length of suspension [8.21] The danger of delay has been repeatedly referred to in decisions of the superior courts in criminal cases. An accused person is entitled as a constitutional right to a speedy trial. The absence of demonstrable prejudice does not mean that prejudice does not or will not arise. In employment cases the courts are not concerned with criminal but 43 44

45 46

State (McFadden) v Governor of Mountjoy Prison [1981] ILRM 113, at 117. Law Reform Commission, Consultation Paper on Privacy, Surveillance and Interception of Communication (LRC CP 10-1996). McGee v The Attorney General [1974] IR 284; Kennedy v Ireland [1987] IR 587. M v Medical Council [1984] IR 485.

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[8.24]

with civil matters. However in Allman v Minister for Justice47 the High Court (Kearns J) was persuaded by the employee that the underlying theme to be inferred from the decision of Flynn v An Post48 is that the process or power of suspension must be construed in employment circumstances as follows: a suspension may be permitted to continue only for such a period of time as may be necessary or reasonably practicable to have a full hearing into the matter giving rise to the suspension so as to determine whether the employee be dismissed, reinstated or dealt with in some other way. Allman seems to establish that a person faced with a disciplinary process has similar rights to a speedy hearing as a person charged with a criminal charge. An employee self-evidently will not be in custody; nevertheless it appears the courts will hold that an employing entity’s power to suspend an employee has clear limits.

[8.22] There have been significant judicial developments concerning suspensions in recent years. One such important development is the decision of the High Court in Higgins v Bank of Ireland,49 where the High Court (having referred to both Morgan v Trinity College Dublin50 and Deegan v Minister for Finance51) stated: ‘The cases draw a distinction between suspension where a disciplinary action is being taken and suspension which is made as a holding operation pending inquiries and to investigate a matter. In these latter circumstances, the rules of natural justice do not apply.’52

[8.23] Higgins must, however, be contrasted with the approach adopted by the High Court (Hogan J) the following year in McMahon v The Irish Aviation Authority.53 The judgment in McMahon articulates a far more nuanced position on the applicability of natural justice entitlements to a suspension. Hogan J observed: ‘The extent to which a person is entitled to fair procedures prior to the imposition of a suspension will generally depend on the overall circumstances and the context in which the action has been taken. The necessity for urgent action, the nature of the suspension, its implications for the good name of the person concerned and, above all, its duration are critical factors. If the suspension is in the nature of a purely “holding” suspension which has been imposed to enable an urgent inquiry to take place, then any obligation to abide by fair procedures prior to its imposition may be attenuated or may even not apply at all …’.54

[8.24] Hogan J went on to say that there was ‘no doubt but that a suspension of this kind has considerable implications for the good name of the person affected’, continuing: ‘Many might reasonably think that the Authority imposed the suspension because of concerns that Mr. McMahon had taken a casual or even irresponsible attitude to the vital 47 48 49 50 51 52 53 54

Allman v Minister for Justice [2003] ELR 7. Flynn v An Post [1987] IR 68. Higgins v Bank of Ireland [2013] IEHC 6. Morgan v Trinity College Dublin [2003] 3 IR 157. Deegan v Minister for Finance [2000] ELR 190. Higgins v Bank of Ireland [2013] IEHC 6 per O’Keeffe J at 532. McMahon v The Irish Aviation Authority [2014] IEHC 431. McMahon v The Irish Aviation Authority [2014] IEHC 431 per Hogan J at para 33 citing Deegan v Minister for Finance [2000] ELR 190, 198–199.

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question of air safety or that he improperly yielded to commercial pressures in allowing flights to take off where the weather conditions for sport parachuting were doubtful or even hazardous. As I pointed out in Wallace v Irish Aviation Authority [2012] IEHC 178, [2012] 2 ILRM 350, 351, often the “very fact of suspension is enough, in this valley of squinting windows, to expose the employee to the decidedly unpleasant prospect of calumny and detraction at the hands of the unforgiving and the uncharitable.” Here it must be recalled that Article 40.3.2 of the Constitution requires the State by its laws to protect that right to good name “as best it may from unjust attack” and in the case “of injustice done” to vindicate that right.’55

[8.25] On the specific issue of the duration of the suspension in McMahon, which had lasted from February 2013 until the date of the hearing in June 2014. On this length of suspension Hogan J was clear in concluding that it could not be regarded as simply holding in nature: ‘Viewed objectively … a suspension of that duration cannot realistically be regarded as a purely holding mechanism, not least given that the underlying facts were not - at least so far as the question of whether Mr McMahon was fit to remain in his position as CCI is concerned – unduly complex. There is clear authority to the effect that a lengthy suspension will be rendered invalid, especially if that delay is prejudicial to the applicant. Thus, in Flynn v An Post [1987] IR 68 the Supreme Court held that a suspension of an employee for a three year period ceased to be valid after the point when the disciplinary investigation ought to have been ready to proceed, which that Court measured as being some four months after the date of the suspension. It was, of course, important to stress that the employee in that case had been suspected of theft and he had been suspended without pay. One may agree that the prejudice to the plaintiff is not quite as severe as that. But the delay has been considerable, stretching well beyond any period necessary to get to the bottom of the basic facts of the matter so as to allay any possible safety concerns. It is also true that while the suspension has not had the same extensive financial implications for the applicant as it did for the plaintiff in Flynn (where the suspension had been without pay), it is plain nonetheless that the suspension has had some financial implications for the plaintiff. But most of all this long suspension has had the effect of seriously affecting Mr McMahon’s constitutional right to a good name and dashing a cherished ambition of his. These are matters which are prejudicial in themselves.’56

[8.26] The High Court in McMahon summarised the balance to be struck in cases of holding suspensions in the following terms, which have very significant implications for any employer considering the imposition of a holding suspension: ‘[T]he Authority is entitled to act in a summary fashion in order to protect public safety, as indeed happened in this case. But if it so acts by, for example, suspending an individual, then it is obliged to ensure that there is a fuller hearing which complied with the requirements of fair procedures (including adequate notice to all concerned) within a relatively short space of time. The proper protection of the constitutional right to a good name will generally demand no less. This did not happen in the present case.’57 55 56 57

McMahon v The Irish Aviation Authority [2014] IEHC 431 per Hogan J at 35. McMahon v The Irish Aviation Authority [2014] IEHC 431 per Hogan J, 43–45. McMahon v The Irish Aviation Authority [2014] IEHC 431 per Hogan J at 59.

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[8.27] It is important to note that McMahon was brought by way of an application for judicial review: this is an important point to be considered when situating the decision within the developing case law on suspensions. In particular, it may in part explain the apparent contrast in emphasis between McMahon and the subsequent decision of the High Court in 2016 in the injunction application in Kinsella v Ulster Bank Limited.58 In Kinsella, the precautionary suspension at issue had gone one for an entire year. Whilst the High Court (Gilligan J) declined to grant injunctive reliefs to the plaintiff, the Court explained that it was adopting this approach on the basis that it was not satisfied that the plaintiff had been irremediably prejudiced in preparing for the disciplinary proceedings which she was seeking to injunct. It is respectfully submitted that that it is in this very specific context that the approach in Kinsella is to be understood, although it should be noted that Gilligan J was not satisfied that the principles of natural and constitutional justice necessarily applied to a precautionary suspension. Context is everything in this regard, and just as there is a clear legal distinction between the judicial review context in McMahon and the injunction application in Kinsella, so too will a claim for unfair dismissal (where the suspension leads to the employee’s dismissal) be viewed in a potentially very different light. This is revealed in another very significant High Court decision in recent years – that of the High Court (Noonan J) in Governor and Company of Bank of Ireland v Reilly.59 The case marks an important turning-point in judicial thinking regarding the appropriateness of the use of holding suspensions, a point which will be analysed below. Significance of Reilly v Bank of Ireland [8.28] By way of preliminary point on Reilly, it is noteworthy that the case involved an extremely lengthy procedural background spanning several years, given that the claimant’s unfair dismissal case was appealed both to the Circuit Court and the High Court.60 Of more substantive significance about Reilly, however, is the very strong note of caution sounded by the High Court about the use of precautionary or holding suspensions. Of particular note is the analysis of Noonan J on the law regarding precautionary suspensions where Noonan J stated: ‘The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J (as he then was) in Morgan v Trinity College Dublin [2003] 3 IR 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on 58 59

60

Kinsella v Ulster Bank Limited (25 October 2016) HC, Gilligan J. Governor and Company of Bank of Ireland v Reilly [2015] IEHC 241. For analysis see Boughton, ‘Holding Suspensions, Policies, and Remedies in Unfair Dismissal—Bank of Ireland v Reilly’ (2015) 12 IELJ 72. The history of Reilly, then, recalls the comments which had been made by the High Court (Charleton J) in Panisi v JVC Europe Ltd [2011] IEHC 299, [2012] ELR 70, 77–78 as to the unwieldy and cumbersome appellate structure in unfair dismissal cases that prevailed prior to the introduction of the Workplace Relations Act 2015.

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the premise of there being no smoke without fire. In Mr Reilly’s case, his evidence was that rumours and reports circulated about him ranging from possibly being involved in fraud to participation in a tiger kidnapping. Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.’61

[8.29] This passage potentially signals an extremely important shift in Irish employment law. Three aspects seem particularly striking. First, it is noteworthy that the reputational consequences of even a holding or precautionary suspension are regarded as being potentially extremely serious for the individual employee. It is not easy to reconcile this approach with the long-standing line of case law, including the Morgan decision referred to in the above passage of the judgment of Noonan J – recognising the permissibility of holding suspensions as long as same do not suggest any disciplinary findings or sanction of the employee. It seems highly likely that employees will rely on these dicta in Reilly in seeking, inter alia, to challenge by way of interlocutory injunction the use of the mechanism of a holding suspension, potentially relying on the approach taken by Hogan J (in the High Court) in Wallace v Irish Aviation Authority.62 It will be recalled that, in Wallace, Hogan J had been prepared to grant injunctive relief due to, inter alia, his concerns about Ireland being a ‘valley of squinting windows’63 and the consequential reputational damage which could befall an individual who was excluded from the workplace even as a temporary measure pending a decision being taken (in that case, pending an appeal from a decision to dismiss).64 [8.30] A second point of particular interest arising from the decision in Reilly concerns the caution expressed by Noonan J to the effect that a decision to place an employee on a holding suspension ought not be undertaken lightly, with Noonan J specifically emphasising that it should be done ‘only after full consideration of the necessity for it pending a full investigation of the conduct in question’. In light of the alacrity with which employers often move to place an employee on a holding suspension, this requirement is likely going to be very difficult for many employers to meet. How, for 61

62

63 64

Governor and Company of Bank of Ireland v Reilly [2015] IEHC 241 per Noonan J at [40]– [41]. Wallace v Irish Aviation Authority [2012] IEHC 178, [2012] 2 ILRM 350 (which, as seen above, was referred to by Hogan J in his judgment in McMahon). Wallace v Irish Aviation Authority [2012] IEHC 178 per Hogan J at [15]. This concern about speculation and gossip befalling a dismissed or sanctioned employee is very difficult to reconcile with, for example, the statement by the High Court (Laffoy J) in Nerney v Thomas Crosbie Holdings Limited [2013] IEHC 127, [62] when she stated: ‘As regards the conversation which the plaintiff’s wife testified she overheard at a checkout in a supermarket in Boyle to the effect that the termination of the plaintiff’s employment suggested that “something must have gone on”, in my view, that must be treated as nothing more than idle gossip.’

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instance, is an employer to demonstrate to a court or employment adjudicative body that it gave full consideration to the necessity for a suspension? It seems fair to suggest that it would be most unusual for employers to have any documentary evidence of such ‘full consideration’ being given in advance of the decision to suspend, which may make it difficult to stand over the decision to place the employee on a holding suspension in the first place. In light of Reilly, therefore, employers should be advised to keep, wherever possible, documentary evidence of deliberations given to the feasibility of not suspending the employee, together with an explanation of the rationale underpinning the decision to suspend. Many will criticise such an approach as unrealistic and unduly burdensome when one considers the urgent circumstances in which employees are typically suspended (eg the coming to light of financial irregularities or complaints of serious assault), but the clear implication of the above passage is that this is now a required step for employers to take. An obvious but important follow-on point from this is that employers should scrutinise their existing procedures and handbooks with a particular focus on the wording in which their provisions on holding suspensions are couched: it may well be prudent to modify existing wording so that it incorporates the language of the above passage. As seen time and again in dismissal litigation, however, mere paper compliance will not suffice: the employer will have to actively ensure that the Reilly precepts are followed in dealing with an employee prior to taking any decision to suspend.

[8.31] Third, Reilly clearly requires an employer to demonstrate why the employee could not reasonably remain in the organisation pending the progress of the investigation and any subsequent disciplinary process. In this regard, careful thought should be given to the risk of repetition of the alleged misconduct and particular concerns for the business but these must in turn be weighed against the countervailing interest of the employee in remaining ‘at his/her desk’. It does appear from Reilly that where the employer can demonstrate that the suspension is necessary to ensure the integrity of the investigation and any disciplinary hearing, then this will be a consideration militating in favour of the appropriateness of suspension.

[8.32] One other noteworthy feature of Reilly is that reinstatement was also granted as a remedy in this case, following analysis of the nature of the remedies available under the 1977 Act and case law such as Memorex World Trade Corporation v Employment Appeals Tribunal.65 Reilly has received significant comment and analysis since it was handed down and it is clearly having an important impact on how suspensions are being analysed. In a 2017 determination referring to Reilly, for example, the WRC has commented that: ‘A suspension is an extremely serious measure which employers are all too quick to turn to without first address the potential consequence of or need for.’66 65 66

Memorex World Trade Corporation v Employment Appeals Tribunal [1990] 2 IR 184. An Employee v A Property Management Company (ADJ-00004397, 9 March 2017).

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[8.33]

C.

REMEDIES UNDER THE CONSTITUTION

(1) Damages [8.33] Constitutional remedies are remedies available as a matter of constitutional right for the redress of constitutional wrongs. The Irish Constitution is almost completely silent concerning the remedies to be employed for its implementation. The usual range of actions and orders are available for breaches, and what is appropriate will depend on the circumstances. Constitutional remedies may be defensive in character where they reassert the status quo ante by quashing a decision, for example, if constitutional justice has not been observed or if evidence is deemed inadmissible on account of a deliberate and conscious violation of constitutional rights. Or they may be affirmative in character where they predicate a particular result. Actions claiming declarations are frequent, as are injunctions to restrain a breach of constitutional rights. Conceptual difficulties can arise where conduct in violation of the Constitution is not of a kind that would be actionable at common law. In such cases implemental remedies are accorded which take their tenor from the Constitution itself.67 The drafters of the Constitution did not contemplate or give any attention to a species of constitutional remedy.68 In the Educational Co case,69 Budd J made it clear that: ‘If an established right in law exists a citizen has the right to assert it and it is the duty of the courts to aid and assist him in the assertion of his right. The courts will therefore assist and uphold a citizen’s constitutional rights.’

[8.34] In many cases, the remedy sought for a violation of the Constitution will be a declaration that breach has taken place, or an injunction restraining unconstitutional action may be sought. The remedy for infringement of the right to basic fairness of procedures is usually an order quashing the relevant decision although damages have also been awarded for breach of this right.70 Since Lord Cairn’s Act (Chancery Amendment Act 1858)71 the courts may award damages as well as, or instead of, an 67

68

69 70 71

Eg McGee v Revenue Commissioners and AG [1974] IR 284. Supreme Court held legislative prohibition on importation of contraceptives in Criminal Justice (Amendment) Act 1933, contrary to right of marital privacy. In the US case of Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics (1969) 409 F 2d 718 (2d Cir 1969), the Court of Appeals for the Second Circuit analysed damages for breach of constitutional right more closely than it had been analysed before, from a judicial point of view. The court held that an action in damages for conduct violative of the 4th Amendment does not lie in a federal matter. The grounds for this decision were (1) the framers of the Constitution had contemplated such relief would be accorded by the common law; (2) the creation of such a remedy was properly the subject of congressional action – only a strong showing of necessity, not made in Bivens, would justify its creation by the judiciary; (3) the burden of developing ‘policy’ rules concerning, eg, computation of damages once the basic cause of action is recognised counselled judicial restraint. Educational Co [1961] IR 345 at 368–69. Healy v Minister for Defence (7 July 1994) HC. 21 & 22 Vict c 27.

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injunction whenever an injunction may be awarded.72 The first case in which an award of damages was made for breach of a constitutional right was Meskell v CIÉ,73 the facts of which are set out at para [2.05], above. Walsh J gave it as his view that ‘the plaintiff is entitled to such damages as may, upon inquiry, be proved to have been sustained by him’.74 He referred to the case of Transport Salaried Staffs’ Association v CIÉ75 which established that those who have an interest in enforcing a statutory duty76 have a right of action even where the statute itself provides no penalty for breach of the obligations imposed by it and does not indicate any way in which the duty is to be enforced: ‘A fortiori, a person whose constitutional rights have been infringed may sue to enforce them or he may sue for damages suffered by reason of the infringement.’77

[8.35] W v Ireland (No 2)78 clarified the interaction between the law of tort and the State’s obligation to defend and vindicate the constitutional rights of its citizens.

[8.36] Notwithstanding his finding that no action for breach of constitutional duty lay, Costello P (High Court) considered the circumstances in which the courts will award damages for breach of constitutional rights. He divided these rights into two classes: the first category includes those rights ‘which the Constitution recognises that man has by virtue of his rational being antecedent to positive law and which are regulated and protected by law in every State which values human rights’. Examples include the right to private property, the right to liberty and the right to freedom of expression. The exercise and enjoyment of these rights are regulated by a variety of laws which protect them against attack and compensate victims for their wrongful infringement. Second, the Constitution guarantees and protects the exercise of other rights ‘which are not regulated by law and for which no legal provision exists to prohibit an anticipated infringement or to compensate for a past one’. The Meskell case above, para [2.05], provides an example of such a right. [8.37] The crucial issue to decide was whether a constitutional action for breach of a right in the first category could be taken in addition, or as an alternative, to an action for damages for personal injuries in negligence. Costello P considered that the State’s 72

73 74 75 76

77

78

See Cooney and Kerr, ‘Constitutional Aspects of Irish Tort Law’ (1981) 3 DULJ 1; Binchy ‘Constitutional Remedies and the Law of Torts’ in O’Reilly (ed) Human Rights and Constitutional Law: Essays in Honour of Brian Walsh (1992); Binchy, ‘Meskell, the Constitution and Tort Law’ (2011) 33 DULJ 339. Meskell v CIÉ [1973] IR 121. Applied by Finlay P in Cotter v Ahern [1976–7] ILRM 248. Meskell v CIÉ [1973] IR 121 at 136. Transport Salaried Staffs’ Association v CIÉ [1965] IR 180. The case involved s 55 of the Railways Act 1924, which provides, inter alia: ‘(i) From and after the passing of this Act the rates of pay, hours of duty and other conditions of service of railway employees shall be regulated in accordance with agreements made or to be made from time to time between the trade union representative of such employees of the one part and the railway companies and other persons by whom they are respectively employed of the other part.’ Meskell v CIÉ [1973] IR 121 at 138. Contrast the traditional approach of the Supreme Court in Pine Valley Developments Ltd v Minister for the Environment [1987] IR 23. W v Ireland (No 2) [1997] 2 IR 141. See Gaughran, ‘Tort, Public Policy and the Protection of Constitutional Rights’ (1998) 16 ILT (ns) 88.

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constitutional obligation under Art 40.3.1° to defend and vindicate the constitutional rights of the citizen was: ‘... implemented by the existence of laws (common law and statutory) which confer a right of action for damages (or a power to grant injunctive relief) in relation to acts or omissions which may constitute an infringement of guaranteed rights ... Thus, if the law of torts makes a provision for an action for damages for bodily injury caused by negligence and if the law also adequately protects the [plaintiff’s] right to bodily integrity [upon which in W the plaintiff relied] then the State’s Art 40 duties have been fulfilled.’79

Therefore it is unnecessary to interpret the Constitution as conferring a discrete cause of action for damages in circumstances where damages are available at common law. Where the applicable law was inadequate to protect the guaranteed right, that law would have to be applied without the provision rendered invalid by the Constitution.

[8.38] Costello P regarded his analysis as consistent with the Supreme Court’s views in Hanrahan v Merck Sharp and Dohme Ltd.80 There the Supreme Court had rejected the plaintiff’s argument that the vindication of his constitutional rights required that the onus of proof be shifted to the defendants to prove that the alleged nuisance was not caused by emissions from their factory. Henchy J had stated that when a plaintiff: ‘... founds his action on an existing tort he is normally confined to the limitations of that tort.’81

Simply because the plaintiff does recover damages under the applicable law does not mean it is ineffective to protect constitutional rights. W provides a most welcome clarification of the law.82

[8.39] The precise computation of damages for breach of a constitutional right has also been clarified. The normal principles on which damages are awarded accord with common law principles, namely, that the victim should be placed in the same position as he was in before he suffered the wrong.83 Damages for breach of a constitutional right will not be exemplary unless the right has been infringed deliberately, consciously and without justification by the State.

[8.40] The best exposition is found in the judgment of Finlay CJ84 in the Supreme Court case of Conway v INTO.85 The facts concerned the interruption of primary schooling in certain schools in Co Cork because of an industrial dispute. The Chief Justice equated an action for damages for breach of constitutional rights with an action in tort. He said: ‘In respect of damages for tort or for breach of constitutional right, three headings of damage in Irish law are, in my view, potentially relevant to any particular case. They are: 79 80 81 82

83

84 85

W v Ireland (No 2) [1997] 2 IR 141 at 167. Hanrahan v Merck Sharp and Dohme Ltd [1988] ILRM 629. Per Henchy J at 636. Which accords with the view in Hogan & Whyte, JM Kelly: The Irish Constitution (4th edn, Tottel Publishing, 2003), 707. Eg, Cotter v Ahern [1976–7] ILRM 248; Kearney v Minister for Justice [1986] IR 116; Hayes v Ireland [1987] ILRM 651. Griffin and McCarthy JJ concurring. Conway v INTO [1991] 2 IR 305. See Crowley v Ireland [1980] IR 102. See also McEvoy and Doyle v Prison Officers Association [1998] ELR 250 (not necessary to prove either negligence or mala fides to obtain damages for breach of constitutional rights).

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(1)

Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.

(2)

Aggravated damages, being compensatory damages increased by reason of: (a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or (b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or (c) conduct of the wrongdoer and/or his representatives in the defence of the claims of the wronged plaintiff, up to and including the trial of the action. Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.

(3)

Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered.’86

[8.41] The Chief Justice held that no real distinction could be maintained between punitive and exemplary damages: it was impossible to award damages for the purpose of making an example of a person without punishing that person and vice versa. But there was no doubt that exemplary or punitive damages could be awarded for breach of constitutional rights: ‘It seems clear to me that the court could not be availing of powers as ample as the defence of the Constitution and of constitutional rights requires unless, in the case of the breach of those rights, it held itself entitled to avail of one of the most effective deterrent powers which a civil court has, the awarding of exemplary or punitive damages. This does not mean that every wrong which constitutes the breach of a constitutional right in any sense automatically attracts exemplary damages. It does not, in my view, even mean that in every such case, irrespective of the facts or circumstances surrounding it, the court should specifically concern itself with the question of exemplary damages ... In this particular case, however, it is clear that the circumstance as found by McMahon J in Crowley v Ireland that the intended consequence of the defendants’ acts was the direct deprivation of the plaintiff of her constitutional right to free primary education, coupled with the special relationship which the defendants consisting of both the organisation and the individuals bore to the general rights of children to free primary education make it a 86

Per Finlay CJ in Conway at 316–317.

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case in which the question of whether or not exemplary damages should be awarded, necessarily arose.’87

The Chief Justice regarded the case before him as an appropriate one in which to award exemplary damages: the right was one vested in a child; it was of supreme and fundamental importance; the defendants were aware of that importance; the breach was an intended consequence of the defendants’ conduct.

[8.42] Budd J (in the High Court) expressed the view in Blascaod Teo v Commissioners of Public Works (No 4)88 that a plaintiff could, in appropriate circumstances, recover damages for an infringement of constitutional rights effected by invalid legislation where the damage was proved to have ‘flowed directly from the effects of the invalidity without intervening imponderables and events’.

(2) Other remedies [8.43] In 1971, Temple Lang suggested that those Articles in the Constitution which are intended to protect individuals’ rights should give rise to an action for whatever remedy was ‘appropriate in the circumstances’.89 In 1972, Casey proposed, on the basis of the reasoning in the Educational Company case, that for an employer’s breach of the duty to respect constitutional rights, a person dismissed would surely be entitled to a remedy, ‘if not reinstatement ... then damages’.90 Nor could the argument be rebutted, he wrote, by saying that although a worker had a particular constitutional right he had no right to be employed by his employer: ‘The reasoning would be as follows: the citizen has a right to work; if he is in employment that right is good against the employer. It is not an absolute right and therefore dismissal for good cause would be competent. However, dismissal for exercising a constitutional right could not be dismissal for good cause; the power to terminate employment is abused when this end is achieved ... It is suggested that the courts will have to modify common law rules on dismissal to protect the right guaranteed by Art 40.6.1º(iii) [and, one may add, by other articles]. This reshaping of the common law has been carried out by the Irish courts before and there seems no reason why it should not be done again where this is necessary to reinforce constitutional rights.’91

[8.44] Before Casey wrote in 1972, the remedy of reinstatement had been hinted at in a judicial context. In Glover v BLN Ltd,92 Walsh J commented on the following passage 87 88 89 90

91

92

Per Finlay CJ in Conway at 320. Blascaod Teo v Commissioners of Public Works (No 4) [2003] 3 IR 565 at 5917. Temple Lang, ‘Private Law Aspects of the Irish Constitution’ (1971) 6 Ir Jur (ns) 237 at 246. Casey, ‘Some Implications of Freedom of Association in Labour Law: a comparative study with special reference to Ireland’ (1972) 21 ICLQ 699 at 714. Casey adds a salutary reminder: ‘The French courts came to abandon received notions of the employer’s unfettered discretion and they did so without any test to build upon’: ‘Some Implications of Freedom of Association in Labour Law: a comparative study with special reference to Ireland’ (1972) 21 ICLQ 699 at 714–715. Glover v BLN Ltd [1973] IR 388 at 427.

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[8.47]

from Lord Reid in Ridge v Baldwin93 which Kenny J had cited with approval in the High Court: ‘The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract, he must pay damages for breach of contract.’

The particular point did not arise for decision in Glover, but Walsh J nonetheless expressly reserved his opinion on the correctness of this statement in Ridge: ‘if it is intended to convey that a court cannot make a declaration which would have the effect of reinstating a person wrongfully dismissed.’

[8.45] Walsh J took up a similar theme in Meskell v CIÉ.94 He recalled the many occasions95 on which the Supreme Court had said that a right guaranteed by the Constitution or granted by the Constitution could be protected by action: ‘or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.’96

[8.46] It is particularly significant that Walsh J regarded it as irrelevant whether an action brought for protection or enforcement of a constitutional right should fit into any of the ordinary forms of action at common law or in equity. The judge awarded damages, but his concluding remarks are telling: ‘As there is no claim in the present case for reinstatement, I do not need to consider that matter.’97

[8.47] The late Professor Heuston described Meskell as a ‘remarkable decision’.98 Meskell appeared to say that the Constitution superimposed a font of law on statute and on common law. At the same time it comprised a separate jurisdiction in its own right, capable of conferring whatever remedy was appropriate in the circumstances, potentially including reinstatement in the face of unconstitutional dismissal. This sort of remedy has not yet been fashioned,99 and may never be given the plethora of remedies already available at common law and under statute for dismissal and possibly too the potential of counter-arguments by an employer relying on freedom of association. At the same time, as this book illustrates again and again, the Constitution operates, both in letter and in 93 94 95 96 97 98

99

Ridge v Baldwin [1964] AC 40 at 65. Meskell v CIÉ [1973] IR 121. Notably Byrne v Ireland [1972] IR 241. Meskell v CIÉ [1973] IR 121 at 135. Meskell v CIÉ [1973] IR 121 at 135. Heuston, ‘Personal Rights under the Constitution’ (1976) 11 Ir Jur (ns) 205, 221. See, further, Cooney and Kerr, ‘Constitutional Aspects of Irish Tort Law’ (1981) 3 DULJ 1. See, however, the approach of the High Court (Hogan J) in Sullivan v Boylan [2013] IEHC 104 where Hogan J, analysing Meskell and Hanrahan, was prepared to fashion a constitutional remedy in light of the basically ineffective state of existing tort law (nuisance and the rule in Wilkinson v Downton) so as to protect, inter alia, the plaintiff’s right to protection of the person (Art 40.3.2). The apparent potential of this decision, given the centrality of personhood to one’s employment, is obvious and exciting.

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spirit, as a screen through which all common and statute law must pass. It is also, arguably, a considerable influence in the many cases over the last 30 years where injunctive relief has been successfully sought to restrain dismissal.

D. THE CONSTITUTION AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS [8.48] Ireland ratified the European Convention on Human Rights (ECHR) 50 years before passing the European Convention on Human Rights Act 2003 which came into effect on 31 December 2003.100 Interpretative incorporation at a sub-constitutional level was the legislative model chosen to give effect to the Convention in Irish law. The primary objective of the Act is described in its long title as ‘An Act to enable further effect to be given, subject to the Constitution, to certain provisions of the [ECHR] ...’. The Act created two new avenues of redress: ‘ A new tortious action (where no other remedy exists) for breach of statutory duty by “organs of the State” under section 3 for which damages or equitable relief can be awarded. The statutory duty in question is the duty (subject to any other statutory provision or rule of law) to discharge its functions in a manner that is compatible with the requirements of the ECHR; and A declaration of incompatibility under section 5 by way of judicial review which may lead to an ex gratia award of damages (probably of a minimal nature as the assessment of such awards is to be based on the level of compensation awarded by the Strasbourg court).’101

[8.49] Section 3 contains a statutory duty on ‘organs of state’ to perform functions in a Convention-compatible manner. An ‘organ of state’ is defined in s 1(1) as including: ‘… a tribunal or any other body … which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised.’ A court is specifically excluded. This could, in theory, be invoked in the context of a tribunal such as the Workplace Relations Commission. [8.50] A tangible effect in the initial period, however, related to delays in proceedings. This, according to Hogan, prompted the courts to take a more interventionist line so far as litigant delay is concerned, although ‘the constitutional principles on fair procedures meant that the courts were already moving in this direction in any event’.102 Delay and procedural fairness may be of potential bearing in relation to discipline and dismissal. [8.51] Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust103 concerned a medical consultant’s re-skilling process which had failed to include certain 100

101

102

103

See, generally, de Londras and Kelly, European Convention on Human Rights Act: Operation, Impact and Analysis (Round Hall, 2010); and Doyle and Ryan, ‘Judicial Interpretation of the European Convention on Human Rights Act 2003: Reflections and Analysis’ (2011) 33 DULJ 369. Lowry, ‘Practice and Procedure under the European Convention on Human Rights Act 2003’ (2003) 8 Bar Rev 183. Hogan, ‘The European Convention on Human Rights Act 2003’ (2006) 12(3) European Public Law 331. See para [8.21]. And Somjee v UK [2002] IRLR 886 (ECtHR): claims had taken over seven or eight years, a violation of art 6(1). Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] ICR 270.

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[8.52]

skills which the consultant was contractually obligated to provide, namely research. The consultant refused to cooperate with the process on this basis and, under a disciplinary review chaired by a person who was not impartial, was dismissed. The majority of the Court of Appeal of England and Wales noted that if art 6 is applicable to a decision by an employer to dismiss an employee, then, unless the decision is made in an independent and impartial manner, it shall not be Convention compliant. The Court then went on to consider whether such a decision determined a civil right of an employee. In the instant case, the Court concluded that as the power exercised was purely contractual and did not affect the applicant’s ability to practise his profession in another hospital or in private practice, no civil right was affected. Rather, it is ‘the determination of the claimed right to redress for alleged breach of the contractual right (or the right to compensation for an alleged unfair dismissal) that engages article 6’.104

[8.52] In addition to public employees, the areas in which the ECHR Act was expected to have greatest effect regarding dismissal was in relation to rights to privacy105 (especially the right of employers to conduct surveillance in the workplace) and to access email.106 Indeed, it appears that the European Court of Human Rights is now developing jurisprudence in at least some such areas. In Sidabras and Dziautas v Lithuania,107 the ECtHR considered the case of two former KGB officers who subsequently worked in the public sector in Lithuania. The Lithuanian Parliament passed legislation which prohibited the employment of, amongst others, KGB officers in the civil service for 10 years after the entry into force of the law. The ECtHR cited from its decision in Niemietz v Germany,108 where it observed: ‘Respect for private life must ... comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of “private life” should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world.’

In the instant case, the Court found that the wide-ranging prohibition on public employment for such a lengthy period of time would infringe the applicants’ art 8 rights.109 It has also been suggested that: ‘Dismissal or the threat of dismissal from one’s job, or conduct liable to make working life difficult is liable to constitute a debilitating obstacle to one’s enjoyment of private life [art 8(1)].’110 104

105

106

107 108 109

110

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] ICR 270 para 76. See Copland v United Kingdom [2007] ECHR 253; Kopke v Germany [2010] ECHR 1725; Barbulescu v Romania, App No 61496/08 (12 January 2016) ECtHR; Canny, Martin and Lowry, ‘The European Convention on Human Rights Act 2003: A Cause Celebre for Privacy Rights in Ireland?’ (2004) 9 Bar Rev 73 and 114; and para [8.19]. See, in re the UK, Allen, Crasnow and Beale, Employment Law and Human Rights (2nd edn, OUP, 2007). Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104. Niemietz v Germany (1992) 16 EHRR 97. See Mantouvalou, ‘Work and Private Life: Sidabras and Dziautas v Lithuania’ (2005) 30 EL Rev 573. Bowers and Lightman, ‘Incorporation of the ECHR and its impact on Employment Law’ (1998) 5 EHRLR 560.

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[8.53] Article 3 protects against torture, humiliation and degrading treatment. The definition of ‘degrading’ is ‘treatment which arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing him …’. Whether or not treatment is ‘degrading’ depends on whether a reasonable person of the same age, sex, and health would have felt degraded. Severe discrimination based on, for example, race might constitute degrading treatment and this might extend to other forms of acute mistreatment in the workplace. Article 4 prohibits servitude and forced and compulsory labour and this has already been used in a labour law context.111 The issue of whistleblowing in maintaining accountability is acknowledged. While initially the ECtHR appeared to find that the disciplinary action taken against whistleblowers was justified,112 more recent jurisprudence has shifted a more employee-friendly position.113 In addition, the Court has provided some protection of the freedom of association,114 the right to strike115 and the exercise of freedom of expression116 and freedom of religion117 in the workplace. [8.54] An important question to emerge concerns the interpretative obligation of the sequencing of Constitution and Convention issues. In Carmody v Minister for Justice, Equality and Law Reform,118 the Supreme Court held that when a person claims that an Act of the Oireachtas or any of its provisions is unconstitutional or contrary to the provisions of the Convention and thus requires a declaration of incompatibility to be issued under the provisions of the 2003 Act, then the issue of constitutionality must first be decided.

111

112

113

114

115

116

117

118

See Siliadin v France (2006) 43 EHRR 16; Mantovalou, ‘Servitude and Forced Labour in the 21st Century: The Human Rights of Domestic Workers’ (2006) 35 ILJ 395; Rantsev v Cyprus & Russia (2010) 51 EHRR 1; Costello, ‘Migrants and Forced Labour: A Labour Law Response’ in Bogg, Costello, Davies and Prassl (eds), The Autonomy of Labour Law (Hart Publishing 2014) 189; and LE v Greece, App No 71554/12 (21 Jan 2016) ECtHR. More often than not, the Court and the Commission have found the disciplining of employees who have spoken out to have been justified, eg Tucht v West Germany App No 9336/81 (1982) ECtHR. See Lewis and Bowers, ‘Whistleblowing: Freedom of Expression in the Workplace’ [1996] 6 EHRLR 637. See Guja v Moldova [2008] ECHR 144; Heinisch v Germany [2011] IRLR 922; and Kudeshkina v Russia [2009] ECHR 342. On protected disclosures generally in Irish law, see Ch 20. Sorensen and Rasmussen v Denmark (2008) 46 EHRR 29; Wilson and NUJ v UK [2002] IRLR 568; ASLEF v UK (2007) 45 EHRR 34; and Demir and Baykara v Turkey [2009] IRLR 766. Demir and Baykara v Turkey [2009] IRLR 766; RMT v United Kingdom App no 31045/10; Veniamin Tymoshenko v Ukraine App no 48408/12 (2 October 2014) ECtHR; and Hrvatski liječnički sindikat v Croatia App no 36701/09. Palomo Sanchez v Spain [2011] ECHR 1319; Vogt v Germany (1996) 21 EHRR 205; Redfearn v UK [2012] ECHR 1878; ASLEF v United Kingdom [2007] IRLR 361. Eweida v United Kingdom [2013] ECHR 37; Ebrahimian v France, App No 64846/01 (26 November 2015) ECtHR. Carmody v Minister for Justice, Equality and Law Reform [2010] 1 IR 635.

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Chapter 9

Remedies: Judicial Review A.

ORDER 84

[9.01] This and the succeeding chapters deal with remedies, mindful of the distinction between ordinary employees and office-holders. Perhaps the most interesting development in recent years has been a cautious departure by the courts from the generally accepted principles that specific performance, injunctions or declarations of invalidity of dismissal of ordinary employees will not normally be allowed. It was the contractual nature of the employment relationship which produced the result that damages are a wrongfully dismissed employee’s only real option. To award equitable remedies, it was argued, would be a contradiction in terms as dismissal legally terminates both the contract and the relationship of employment. [9.02] Before Order 84 of the Rules of the Superior Courts 1986, there were in addition to the principal State side orders of certiorari, prohibition and mandamus, the private law remedies of the declaration and injunction. These categories of remedy applied differently, depending on the context of the decision that was being challenged. The lines between the remedies were not always clear and some could not be used if another remedy were available. It could be fatal to a claim if the wrong order was sought.

[9.03] Order 84 created a single comprehensive procedure known as ‘an application for judicial review’. 1 It enables a person to challenge the legality of administrative action in the High Court and aims to reduce the likelihood that a good case would be lost solely because the wrong remedy was sought. The effect of Order 84, r 19 was to make the various remedies interchangeable. Damages were available as a remedy. At the same time, individual remedies were retained. An applicant has to choose between them, but the court can still grant appropriate relief. [9.04] The 1986 Rules distinguish between State side orders, and the declaration and injunction. Regarding the former, Order 84, r 18(1) requires that an application for relief ‘shall be made by way of an application for judicial review’. Regarding the latter, Order 84, r 18(2) provides that an application for a declaration or injunction may be made by way of an application for judicial review. If, having regard to the nature of the matters, the nature of the party against whom relief is sought and all the circumstances of the case, it would be ‘just and convenient’ for either remedy to be granted on an application for judicial review, the court will grant the relief sought. The declaration and injunction 1

Order 84 has been amended by Rules of the Superior Courts (Judicial Review) 2011 (SI 691/ 2011) and Rules of the Superior Courts (Judicial Review) 2015 (SI 345/2015).

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are remedies of general application in both private and public law, and the distinction just mentioned recognises the fact that they are not purely public law remedies.

[9.05] The nature of judicial review was effectively captured by the Supreme Court in Rawson v Minister for Defence2 when Clarke J (as he then was, with whom Fennelly and MacMenamin JJ concurred) described the judicial review of decisions in the following terms: ‘It is trite law to say that judicial review is concerned with the lawfulness of decision making in the public field. Where a decision is made by a public person or body which has the force of law and which affects the rights and obligations of an individual then it hardly needs to be said that the courts have jurisdiction to consider whether the decision concerned is lawful. If it were not so then it is hard to see how such a situation would be consistent with the rule of law. For if decisions materially affecting the rights and obligations of individuals could be made in an unlawful fashion the rule of law would not be upheld. While the circumstances in which a decision made by a public person or body may be found to be unlawful are varied, it is possible to give a non-exhaustive account of the principal bases by reference to which such a finding might be made. First, the decision must be within the power of the person or body concerned. Second, the process leading to the decision must comply both with fair procedures and with whatever procedural rules may be laid down by law for the making of the decision concerned. Third, the decision maker must address the correct question or questions which need to be answered in order to exercise the relevant power and in so doing must have regard to any necessary factors properly taken into account and must also exclude any considerations not permitted. Fourth, in answering the proper questions raised and in assessing all matters properly taken into account the decision maker must come to a rational decision in the sense in which that term is used in the jurisprudence.’

[9.06] Before bringing an application for judicial review, the leave of the High Court must be sought by way of ex parte motion.3 The High Court will not grant leave unless it considers that the applicant has a sufficient interest in the matter.4 Furthermore, an application for leave must be made within three months from the date when the grounds for the application first arose5 but the High Court may, in certain circumstances, extend that period.6

[9.07] The three heads under which administrative action may be subject to control by judicial review, as enumerated by Lord Diplock in Council of Civil Service Unions and 2 3

4 5 6

Rawson v Minister for Defence [2012] IESC 26, per Clarke J at [6.1] and [6.2]. Order 84, r 20(1)–(2). The standard of proof in ex parte cases and on notice cases is ‘arguable case’: Ernst & Young v Purcell [2011] IEHC 203. This sits, of course, in strong contrast with the standard applying to employment injunction applications in which mandatory relief is sought: see Ch 10. Order 84, r 20 (5). Order 84, r 21(1). Order 84, r 21(2) ff.

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[9.10]

Ors v Minister for the Civil Service,7 and approved by Blayney J in Murphy v The Minister for Social Welfare,8 are illegality, irrationality and procedural impropriety.

Other preliminary matters of relevance in an employment law context [9.08] Three other principles from the case law should be borne in mind at the outset as these can have a particular importance in the context of dismissal law. First, an analysis of the case law makes it clear that applications for judicial review will not be entertained where the matters complained of are hypothetical or where the impugned conduct is merely a hypothetical possibility.9 Similarly, where the issue complained of is historical, the principle of mootness may defeat the application, as recently illustrated in the High Court decision in Dillon v Board of Management of Catholic University School.10 The High Court (Twomey J) held that judicial review should not be available on grounds of: (i) mootness (final written warning had expired by the time of the review); (ii) de minimis requirement (ie, issue was not serious enough to warrant review); and (iii) scarce public resources. A third point of clarification from recent case law11 is that the High Court has no jurisdiction in judicial review proceedings to review a recommendation in respect of a trade dispute made by the Labour Court, since such a recommendation is ‘of a purely advisory or admonitory kind’.12

B.

JUDICIALLY REVIEWING DISMISSAL-RELATED DECISIONS

[9.09] Much difficulty has been caused by the issue as to whether employment decisions are susceptible to judicial review. This section looks at developing jurisprudence in this regard. The Supreme Court’s preference that judicial review is not applicable in respect of decisions made in the course of disciplinary proceedings forming part of a private contract of employment was evident in O’Neill v Iarnród Éireann.13 The applicant had been employed by the respondent as a food and beverage manager. The respondent found him guilty of a disciplinary offence and imposed the penalty of dismissal. The employee applied ex parte pursuant to Order 84.

[9.10] In the High Court, Barr J held that the employee had, on the affidavits before him, established that his dismissal occurred in circumstances which amounted to a breach of natural justice and failure to observe fair procedures and that it was probable 7

8

9 10 11 12 13

Council of Civil Service Unions and Ors v Minister for the Civil Service [1984] 3 All ER 935 at 950. Murphy v The Minister for Social Welfare [1987] IR 295. In De Róiste v Minister for Defence [2001] ELR 33 the Supreme Court upheld the High Court’s decision that the balance of justice did not require that the application be allowed to proceed. The applicant’s delay of 29 years was inordinately long. See, for eg, Potts v Minister for Defence [2005] IEHC 72. Dillon v Board of Management of Catholic University School [2016] IEHC 674. Mullally v The Labour Court [2016] IECA 291. Per Hogan J at [18]. O’Neill v Iarnród Éireann [1991] ELR 1.

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he would succeed in plenary proceedings brought by him to remedy the matter. However, as the relationship between the employee and the respondent was a contractual one of master and servant, the employee was not entitled to apply for judicial review.14 The judge relied on William Murphy v The Turf Club,15 which arose out of a dispute between parties to a private contract. The employee appealed to the Supreme Court. He succeeded by a 2:1 majority.

[9.11] Counsel for the employee submitted to the Supreme Court that under Order 84 judicial review was available in certain circumstances in private law. Hederman J (diss) was satisfied that relief sought under Order 84 lies only against public authorities in respect of duties conferred upon them by law. It did not apply in matters between private persons whose relationship arises from contract: ‘Any dispute arising in that sphere is to be determined by ordinary court procedure in which relief by way of injunction or any other remedy may be granted ... I am also satisfied that a constitutional issue of justice and fairness which may arise between private parties can only be determined by ordinary court procedure.’

The judge regarded it as ‘a startling expansion of proceedings’ if Order 84 were to apply to all matters between private parties as, for example, solicitor and client, master and servant, doctor and patient.

[9.12] Finlay CJ (McCarthy J concurring) retained ‘the grave doubt’ expressed by him in an earlier case16 as to the applicability of proceedings pursuant to Order 84 in respect of a decision made in the course of disciplinary proceedings forming part of a private contract of employment: ‘However, it would appear from the judgments which have been delivered in the High Court and to which we have been referred, that differing decisions may have been reached by different judges of that court concerning the issues which now arise ... until such time as the full and proper interpretation of Order 84 of the Rules has been considered and decided on an appeal by this Court, it would not appear to be correct to cut out the applicant from his opportunity to pursue a relief by way of judicial review and at least to argue at the hearing of such application his right to proceed in this manner.’17

[9.13] More recently, in Hosford v Minister for Social Protection,18 the High Court (Noonan J) observed: ‘There is clearly a range of decisions in the context of employment that may be taken which are merely administrative or managerial in nature and do not give rise to such rights or which are amenable to judicial review. The position may be different where the decision 14

15 16 17

18

See, too, Murtagh v Board of St Emer’s National School [1991] 1 IR 482 (SC) where Hederman J held that most school disciplinary functions fall outside the scope of public law and hence the Ord 84 remedies. Murtagh was expressly applied in an employment law context by the High Court (Peart J) in Becker v The Board of Management of St Dominick’s Secondary School Cabra [2005] IEHC 169. William Murphy v The Turf Club [1989] IR 172. O’Neill v Beaumont Hospital Board [1990] ILRM 419. The Supreme Court expressly reserved for another occasion the question of whether the proceedings before it re application of natural justice to contract for services were maintainable by way of judicial review in Tierney v An Post [2000] 2 IRLM 214. Hosford v Minister for Social Protection [2015] IEHC 59.

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[9.15]

complained of is disciplinary in nature and involves the imposition of a penalty or perhaps dismissal. On occasion, a civil servant may not like being transferred from one role to another but that is an incident of the job and not a matter for judicial review. It is debateable whether there is any public law element arising in such circumstances.’19

In contrast to managerial decision-making, an employer may take a decision that has farreaching implications for the organisation as a whole of a public nature. A good example is to be seen in Brown v Board of Management of Rathfarnham Parish National School,20 analysed in more detail below, where a decision to appoint the notice party to the position of principal was deemed amenable to judicial review.

[9.14] The traditional tests in considering whether a person, or body, in its decisionmaking process, is subject to judicial review, are those of looking at both the source of the power being exercised and the nature of that power. Where the power on which the decision depends is derived from statute, then the courts have almost invariably regarded the decision maker as a subject for review. Apart from cases where there is a statutory source for the exercise of the power, there are also instances where the courts have been prepared to review the exercise of certain common law powers. Kelly LJ put it thus in In re Malone’s Application:21 ‘If the body in question is exercising public law functions or if the exercise of its functions have public law consequences then that may... be sufficient to bring the body within the reach of judicial review ... The essential distinction which runs through all the cases to which we referred is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other.’

[9.15] In Beirne v Commissioner of An Garda Síochána22 Finlay CJ formulated the following test:23 ‘Where the duty being carried out by a decision making authority as occurs in this case is of a nature which might ordinarily be seen as coming within the public domain that decision can only be excluded from the reach of the jurisdiction in judicial review if it can be shown that it solely and exclusively derived from an individual contract made in private law [emphasis added].’

In Beirne the applicant probationer garda’s terms of employment derived from the jurisdiction necessarily vested in the Commissioner by reason of the office held and the statutory powers attached to it. Hence the Commissioner’s decision to dismiss was amenable to judicial review. 19

20 21 22

23

Hosford v Minister for Social Protection [2015] IEHC 59 per Noonan J at [19]. It should be emphasised that, even where an action is not dismissed on the grounds that it is not amenable to judicial review, a heavy onus rests on an applicant contending that a decision to transfer them is unreasonable in the circumstances, as evidenced in the Court of Appeal decision in McEneaney v Cavan and Monaghan ETB [2016] IECA 53. Brown v Board of Management of Rathfarnham Parish National School [2006] IEHC 178. Re Malone’s Application [1988] NI 67 at 81. Beirne v Commissioner of An Garda Síochána [1993] ILRM 1. See too Rafferty v Bus Eireann [1997] 2 IR 424. Beirne v Commissioner of An Garda Síochána [1993] ILRM 1 at 2.

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[9.16]

[9.16] Whether a disciplinary body within the profession of chartered accountant may be judicially reviewable was considered in Geoghegan v Institute of Chartered Accountants in Ireland.24 In finding decisions in disciplinary proceedings before the institute’s appeal tribunal amenable to judicial review, Denham J said inter alia:25 ‘The original source of the powers of the Institute is the Charter. Through that and legislation and the procedure to alter and amend the bye-laws, the Institute has a nexus with two branches of the Government of the State ... The functions of the Institute and its members come within the public domain of the State.’

[9.17] Where universities have featured as respondents the courts have differentiated between staff and officers. Re Malone’s Application,26 above, was a case where the applicant failed to quash a decision of Queen’s University Belfast not to permit her to remain in employment as a computer clerk until the age of 65 like her male colleagues. The Court of Appeal (Kelly LJ and Higgins J) held the applicant’s rights were private law rights to be upheld before industrial tribunals or at common law and not in judicial review proceedings. Kelly LJ said:27 ‘Her status was that of a clerical officer and is now a computer clerk. As such she is not a member of the university. It cannot be said either that she holds an office which by reason of its standing or public law character would attract administrative law remedies if it was unlawfully interfered with ...’

[9.18] In Eogan v University College Dublin28 Shanley J (in the High Court) reviewed the jurisprudence on whether a decision is subject to judicial review. Among the matters to be taken into account, he said, are: ‘(a)

whether the decision challenged has been made pursuant to a statute,

(b)

whether the decision maker by his decision is performing a duty relating to a matter of particular and immediate public concern and therefore falling with the public domain,

(c)

where the decision affects a contract of employment whether that employment has any statutory protection so as to afford the employee any “public rights” upon which he may rely,

(d)

whether the decision is being made by a decision maker whose powers, though not directly based on statute, depend on approval by the legislature or the government for their continued exercise.’

In Eogan, unlike Malone, the applicant’s appointment was made pursuant to a statute under the provisions of the Irish Universities Act 1908 and required to be placed before both Houses of Parliament. As the power which gave rise to the decision originally depended for its existence on approval by the legislature Shanley J was satisfied in consequence that the decision was properly judicially reviewable. 24 25 26 27 28

Geoghegan v Institute of Chartered Accountants in Ireland [1995] 3 IR 86. Geoghegan v Institute of Chartered Accountants in Ireland [1995] 3 IR 86 at 130–31. Re Malone’s Application [1988] NI 67. Re Malone’s Application [1988] NI 67 at 81. Eogan v University College Dublin [1996] 2 ILRM 302 at 309.

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[9.22]

[9.19] A similarly more inclusive view was espoused in Kelly J in Rafferty v Bus Éireann,29 and in Bane v Garda Representative Association.30 Even where the relationship is underpinned by a wholly private contract, certain decision-making undertaken by the employer may still be amenable to judicial review. Thus, in Conroy v Board of Management of Gorey Community School,31 the High Court ruled that the decision to remove the applicant from the role of chaplain was not amenable to judicial review as it arose from a wholly private contract, but the decision to allow him to return as a religious teacher was amenable to judicial review. [9.20] An employee may seek judicial review and at the same time initiate a claim under the Unfair Dismissals Act. The latter may be preferred even if the decision to dismiss is amenable to judicial review. In Patrick O’Donnell v Tipperary (South Riding) County Council32 the applicant took up duty as a station officer and remained as station officer until his dismissal for allegedly making fraudulent pay claims. He was given leave by the High Court to seek, by way of judicial review, certiorari quashing the decision of the respondent to terminate the contract of employment, a declaration that the respondent was not entitled to decide to terminate the contract of employment in the absence of a proper inquiry into its perception that the applicant was making wrongful and illegal pay claims and in the absence of a process of appeal to an independent body being open to the applicant, and damages. The applicant had also initiated statutory proceedings before the Employment Appeals Tribunal (EAT). [9.21] The High Court refused the application and directed that the matter continue before the EAT. It held that the contract of employment between the parties set up a relationship which was one of private law and a contractual relationship and that the relief of judicial review did not lie. Among the issues which arose for decision on the appeal was whether judicial review was applicable. [9.22] The Supreme Court (Denham J, Murray CJ and Macken J concurring) reiterated that the burden is on the respondent to show that the contract between the parties is one of private law (following Beirne v Commissioner of An Garda Síochána, analysed above). The Court acknowledged that the case related to a service of importance in the community for fighting fires and flooding, amongst other matters. First, such a service is necessary within a state, either to be provided by the state or delegated by the state. Second, the sources of the general powers of the respondent are to be found in legislation. Third, the functions of the respondent, the fire service, and the station officer come within the public domain of the State. Fourth, the consequences of the respondent’s decision may be very serious for the applicant. The Court concluded the employment of the station officer of a fire station is a matter within the public domain and amenable to judicial review. While there was a contract between the plaintiff and the respondent, it had a significant public element. The Court applied Geoghegan v Institute of Chartered Accountants in Ireland33 and stated of the factors identified therein: ‘A number of those factors are relevant to this case and I apply those principles. First, this case relates to the fire service and to a station officer of that service, a service of 29 30 31 32 33

Rafferty v Bus Éireann [1997] 2 IR 424. Bane v Garda Representative Association [1997] 2 IR 449. Conroy v Board of Management of Gorey Community School [2015] IEHC 103. Patrick O’Donnell v Tipperary (South Riding) County Council [2005] 2 ILRM 168. Geoghegan v Institute of Chartered Accountants in Ireland [1995] 3 IR 86.

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[9.23]

Redmond on Dismissal Law

importance in the community for fighting fires and flooding, amongst other matters. Such a service is necessary within a State, either to be provided by the State or delegated by the State. Secondly, the sources of the general powers of the County Council are to be found in legislation. Thirdly, the functions of the County Council, the fire service, and the station officer come within the public domain of that State. Fourthly, the consequences of the County Council’s decision may be very serious for the applicant. Amongst these factors, I lay emphasis on the functions of the County Council, the fire service, and the station officer as functions manifestly in the public domain of the State. In conclusion on this issue, I am satisfied that the employment of the station officer of a fire station is a matter within the public domain and amenable to judicial review. While there was a contract between the applicant and the County Council, it has a significant public element and the decision to terminate was amenable to judicial review.’

[9.23] In Martin v The Minister for Social Protection34 the High Court (Binchy J) applied the approach of the Supreme Court in O’Donnell. In Martin, the applicant had been randomly selected by the Department of Social Protection to take part in an activation programme entitled ‘the Tús Community Work Placement Initiative’. This scheme was operated by Tolka Area Partnership pursuant to an agreement with the Department of Social Protection. This led to the employment of the applicant by the Partnership. When she was subsequently dismissed, she sought to judicially review this decision and sought leave to bring proceedings against the Minister for Social Protection. Rejecting the application and denying leave, Binchy J held that it was ‘“abundantly clear” that all matters relating to the employment of the applicant by the Partnership were matters of private law as between those parties, and that the decision to dismiss the applicant from her employment was one taken by the Partnership, and not by the respondent’. Binchy J relied in this regard on the decision of the Supreme Court in Patrick O’Donnell v Tipperary (South Riding) County Council, analysed above.

Becker and subsequent case law [9.24] Several Superior Court decisions regarding dismissal or disciplinary matters concerning teachers cast further light on the extent of judicial willingness to entertain judicial review applications in employment contexts arising from private contractual arrangements. Thus in Becker v The Board of Management of St Dominick’s Secondary School Cabra,35 the applicant was a secondary school teacher who was the subject of a complaint referred by a fellow teacher to the Board of Management pursuant to the school’s grievance procedure. She had been given a written warning as a result. The High Court (Peart J) had no doubt that there was an obvious public law element in the whole area of education ‘in a general sense’. He referred to the provisions of the Education Act 1998, the objects of which all had a public element. However, he distinguished between the wider aspects of education and the statutory provisions, on the one hand, and the narrower aspects of the applicant’s contract of employment on the 34 35

Martin v The Minister for Social Protection [2017] IEHC 361. Becker v The Board of Management of St Dominick’s Secondary School Cabra [2005] IEHC 169.

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[9.25]

other. The impugned decision had been made as part of a disciplinary procedure applicable in the school. Peart J said that there was ‘an important distinction between the various public functions of the school which are involved in the provision of education to the public, and what I might describe as the private functions of that body, such as the hiring and firing of a teacher. One could think of other private functions of a school, such as entering into a contract for the supply of food, or school books, or the building of an extension to the school, which have a similar private law element to the hiring and firing of a teacher. Disputes arising in such private contracts are to be dealt with under private law remedies, such as breach of contract, unless there is some particular public law element to the dispute.’

Becker was applied in Hand v Ludlow36 where the High Court ruled that a decision to conduct a disciplinary hearing into actions of the principal was not amenable to judicial review. Becker was, however, distinguished in Brown v The Board of Management of Rathfarnham NS37 where the issue arose from the selection process for the position of principal. This process was governed by the rules of procedure for boards of management made under s 23 of the Education Act 1998.

[9.25] Quirke J held that a decision by the Board to nominate a candidate for appointment was made pursuant to powers conferred by the Act. It was subject to terms and conditions determined by the Minister for Education with the consent of the Minister for Finance. The decision was, Quirke J added: ‘... made expressly in accordance with rules and procedures which had been agreed between the respondents and with other trade unions and staff associations.’38

Citing the principles set out in Geoghegan, Quirke J considered the following to be the relevant factors: ‘1. This case relates to a major profession, important in the community, which is responsible for the provision of primary education for children within the State pursuant to policies implemented by successive governments with the sanction of the Oireachtas. 2. The original source of the power to appoint the principal teacher of a national school is the Act of 1998 and in particular s.23 thereof The power is conferred on the first respondent and may only be exercised “... subject to such terms and conditions as may be determined from time to time by the Minister with the consent of the Minister for Finance” and “in accordance with the procedures agreed from time to time between the Minister, the patron ... etc”. 3. The functions of the first respondent have a statutory genesis. The decision sought to be impugned was made by the first respondent in exercise of a power conferred upon it by the provisions of s 23 of the Act of 1998. Those facts strongly, inter alia, suggest that the decision can be said to come within the public domain.4. The method by which the contractual relationship between the respondent and the notice party was created is expressly regulated by a statutory regime.’39

Quirke J distinguished Becker on the basis that it had concerned a disciplinary procedure adopted privately by the school, rather than the application of rules and procedures which had a statutory derivation and which were imposed pursuant to a public policy sanctioned by the Oireachtas. The rules themselves were not part of a 36 37 38 39

Hand v Ludlow [2010] IEHC 583. Brown v The Board of Management of Rathfarnham NS [2008] 1 IR 70. Per Quirke J at 85. Per Quirke J at 85–86.

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[9.26]

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statute or statutory instrument, but since they were authorised by the statute and agreed between parties identified within the statute they could be said to form part of the statutory regime. The appointment of a principal could only be made in accordance with agreed procedures as defined by the Act.

[9.26] More recently, detailed consideration was afforded to the decisions in Beirne and O’Donnell by the High Court in Kelly v Board of Management of St Joseph’s National School.40 There the High Court ruled that a decision to demote the applicant principal to the position of mainstream teacher was amenable to judicial as the dispute met the criteria in Beirne and O’Donnell, and could not be described as arising solely out of private contract. O’Malley J explained: ‘I am satisfied that the dispute between the parties meets the criteria set out in Beirne and O’Donnell and cannot in any reasonable sense be described as arising solely out of a private contractual relationship. I adopt the analysis of Quirke J in Brown as to the public importance of the teaching profession and as to the statutory source for procedures within the sector. The analysis applies as appropriately to the dismissal or demotion of a principal as to the appointment of one. These are decisions which manifestly have a public element. Every aspect of the procedure which must be followed derives its authority from statute rather than from contract. The decision is also very serious for the individual concerned. I do not find it necessary to disagree with the judgment of Peart J in Becker. As pointed out by Quirke J, that case concerned an issue that did indeed arise out of a contractual agreement. It also predates the publication of Circular 60/2009, which mandatorily replaced all previous procedures. Having regard to the provisions of that circular, which is part of the statutory regime established by the Education Act, I do not feel that the hiring and firing of teachers pursuant to procedures prescribed by the Act can now be described as a private contractual issue.’41

[9.27] Significantly, however, O’Malley J added the following important qualification when she stated: ‘I do not wish to be taken as saying that every aspect of school disciplinary procedures is a suitable matter for judicial review. There is a very significant difference between, for example, the giving of an oral or written warning, as in Becker, and the appointment, demotion or dismissal of a principal. This is so partly because of the profoundly more serious consequences for the individual concerned, but also because of the wider, public implications for the whole school and the community which it serves.’

[9.28] Consultants employed under the ‘consultant’s common contract’ may, in appropriate circumstances, invoke judicial review of decisions affecting them. In O’Donoghue v South Eastern Health Board42 the applicant was a hospital consultant employed under such a contract. The Health Board wished to conduct an investigation into allegations of bullying made against him using an anti-bullying policy recently 40 41 42

Kelly v Board of Management of St Joseph’s National School [2013] IEHC 392. Per O’Malley J at [133]–[135]. O’Donoghue v South Eastern Health Board [2002] ELR 189. For the application of judicial review in the context of the Arbitration Acts 1954 to 1980, see Becker v Duggan [2006] ELR 21. O’Neill J held that the applicant was entitled to resort to public law remedies by way of judicial review as there were no private law remedies available to her.

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[9.32]

adopted by it. The applicant was opposed to this and sought judicial review of the respondent’s decision to use this policy.

[9.29] Carroll J in the High Court held that as the common contract is nationally negotiated and invokes statutory provisions in its disciplinary procedures (ss 22, 23 and 24 of the Health Act 1970), there was a sufficient public law content to make the matter justiciable under judicial review proceedings.

C.

REMEDIES

[9.30] The most effective and, in Ireland, the most frequently sought remedies by way of judicial review for wrongfully dismissed workers in special categories of employment are a declaration that dismissal is null and void or an order of certiorari quashing a purported decision to dismiss. More frequently, an injunction may be sought to restrain dismissal.43

(1) Declaratory relief [9.31] In former times the action for a declaration had not attained its present popularity. It was almost unknown before 1865 and its scope has been immensely widened in the last 100 years or so.44 A declaration that a dismissal or a disciplinary procedure45 was in breach of contract may be made but that is unlikely to assist a wrongfully dismissed employee in any practical way. In theory such a declaration is available to an ordinary employee. [9.32] The advantage of seeking a declaration for an office-holder or public employee lies in the precise nature and content of the declaration he or she may seek. In fact the content of a declaration is likely to be critical. A declaration may be made that a purported act of dismissal was ultra vires, null and void.46 Or the court may be asked to declare that the appellant still continued in the employment of the respondents or the court may declare that an officer of a trade union has never ceased to hold that position.47 In the latter two situations, it follows that the contract has not ended by other events taking place between the purported dismissal and the date of the declaration. This is by no means the case where a purported dismissal is declared ultra vires and void. In 43 44

45

46

47

On injunctions and declarations, see Ch 10. In former times when the holder of an office was removed and he claimed that this was not justified, he applied for the issue of an information in the nature of a quo warranto directed to the new holder of the office to show how he held the office from which the prior holder had been removed. See the Chancery (Ireland) Act 1867, s 155, which provided the origins for the declaratory action. The wording of s 155 is substantially reproduced in Ord 19, r 29 of the Rules of the Superior Courts. See the comments of the Supreme Court in Ruffley v Board of Management of St Anne’s School [2017] IESC 33 as to the potential availability of a declaration of invalidity arising from a flawed disciplinary process. Here, also, questions concerning the practical effectiveness of such a remedy clearly arise. As in Vine v National Dock Labour Board [1957] AC 488 or The State (Gleeson) v Minister for Defence [1962] 1 WLR 1411. As in Francis v Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411 and National Engineering and Electrical Trade Union v McConnell [1981] IR 75 respectively.

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such circumstances, an employee may, for example, have applied for and commenced work elsewhere before the date of the declaration. In most cases, of course, as Henchy J observed in Garvey v An Taoiseach and the Government,48 it is open to an employer – in spite of any declaration – to recommence dismissal or disciplinary procedures in accordance with natural justice or fairness. Judges, it seems, can rarely resist dropping a broad hint to this effect.49

(2) Damages as an alternative remedy [9.33] The theory of the law is that equity steps in to provide a remedy where damages would be inadequate to compensate the plaintiff. In the first place, there must be a contractual element before it is appropriate to compare the two remedies. In Vine, Jenkins LJ, dissenting from the majority of the Court of Appeal, rejected the defendant’s plea that damages would be adequate. Vine had been employed in the docks as a dock worker for 30 years or more. ‘It was his life’s work; it was a trade which he had pursued from boyhood. Why should he be removed from that employment if he wishes to continue in it? Why should it not be a consideration in deciding whether damages is an adequate remedy or not, that a man prefers one way of life to another? I can see no reason for holding that damages here are necessarily an adequate remedy.’50

[9.34] The approach of Jenkins LJ was endorsed by the House of Lords.51 In Vine, dismissal for the plaintiff meant loss of his status as a registered dockworker, and that would put an end to any possibility of working in the docks. If, however, a dismissed employee would be likely to acquire similar work elsewhere, it is doubtful whether a declaration would be given. For example, in Francis,52 a clerk dismissed by the Municipal Council whose status was accepted to be statutory failed to obtain a declaration that he was still employed by the Council. He could easily obtain other work as a clerk.

(3) Damages as an additional remedy [9.35] A wrongfully dismissed plaintiff may seek a declaration that his purported dismissal was wrongful or was ineffective, null and void, and at this stage seek damages as an additional remedy. Damages may or may not be inconsistent with the declaration. If the latter is to the effect that an employee is still validly in employment, an inquiry as to damages would not be appropriate53 but arrears of salary could be claimed as an ordinary contract debt. If, on the other hand, the declaration related to a purported 48 49

50 51 52 53

Garvey v An Taoiseach and the Government [1981] IR 75. Eg Henchy and Griffin JJ in Gleeson [1976] IR 280 at 297 and 298; Jenkins LJ in Vine v NDLB [1956] 1 QB 658 (CA) at 678; Deputy Judge Dillon at first instance in Stevenson v United Road Transport Union [1976] 3 All ER 29 at 45. By the time the last case came on appeal the union had dismissed the plaintiff a second time. Vine v NDLB [1956] 1 QB 658 at 678. Vine v NDLB [1957] AC 488. Francis [1962] 1 WLR 1411. In this respect, NEETU v McConnell (1983) 2 JISLL 94, is arguably incorrect.

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[9.37]

dismissal in time past, averring to a breach of contract, this would not preclude an award of damages.

[9.36] In Cox v ESB,54 the plaintiff, an employee of the ESB, was removed from office by the board without the board having obtained the requisite prior consent of the Minister for Local Government and Public Health. The plaintiff sued the board, claiming a declaration that the order made by it was ultra vires, void and of no legal effect. His employment was governed by the Local Authorities (Officers and Employees) Act 1926, which required the prior consent of the Minister for a person’s removal from office. Gavan Duffy J made an order declaring the order made by the board purporting to dismiss the plaintiff ultra vires, void and of no legal effect. He also directed an inquiry as to damages. On appeal, the Supreme Court affirmed the declaration in favour of the plaintiff. The court was of opinion, however, that the inquiry as to damages was inconsistent with that declaration and varied the order of Gavan Duffy J by discharging so much thereof as directed an inquiry. The plaintiff thereupon brought an action against the board claiming, first, a declaration that he was then and had been since his removal in the employment of the board as a whole-time, permanent and pensionable officer under a statutory contract of employment; second, a declaration that he was entitled to arrears of salary and cost of living bonus calculated in accordance with the cost of living index figure from the date of removal to the date of issue of the summons; third, an inquiry, if necessary, as to the sum due to him for arrears of salary and cost of living bonus for the said period. Gavan Duffy J held that Cox was lawfully entitled to the arrears of his salary with normal increments from the date of his removal. Further, the plaintiff was held entitled to the cost of living bonus, subject to its stabilisation in May 1941, but it was held that he would have to give credit to the board for any earnings during working hours over the same period.55 By awarding arrears of salary and cost of living bonus the court was putting the plaintiff in the position he would have been in had the contract not been terminated illegally and the plaintiff been allowed to continue in his work. Kenny J was later to declare in Glover v BLN Ltd56 that: ‘An award of damages by a court is intended to compensate the plaintiff for the loss which he has suffered: in some cases the damages may be punitive but compensation or restoration (so far as money can do it) to the position before [termination] ... is the main element.’

(4) Quantum of damages [9.37] Where a contract of employment exists or may be inferred, compensation or restoration is likely, but not inevitable, to involve more for office-holders and special 54 55

56

Cox v ESB [1943] IR 94. The judge also held that the board’s defence of a six-year limitation to the plaintiff’s claim was unsustainable as the greater part of the claim was founded upon a statutory liability and hence the plaintiff had 20 years within which to sue, applying Cork & Bandon Rly Co v Goode 13 CB 826. In that case the statute deemed the defendant to be a shareholder in the events that had happened to him and as a shareholder rendered him liable to pay calls made by the directors; here the relevant statute (Electricity Supply Act 1927, s 29(9)) transformed the plaintiff into a servant of the board on the making of the vesting order and rendered the board liable to pay him remuneration on a scale indicated by the statute. Glover v BLN Ltd [1973] IR 432 at 441.

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[9.38]

Redmond on Dismissal Law

category employees than for ordinary employees. Chapter 11 deals with damages for ordinary employees. Because of the additional factor of office or status, benefit lost or detriment incurred as a result of non-fulfilment of the defendant’s promises is likely to encompass more. In Cotter v Ahern,57 for example, the principle of performance least disadvantageous to the defendant was departed from as it would have been unrealistic and not in accordance with the facts to suggest that it was within the real contemplation of the parties that a post should last merely for the duration of the notice period. The plaintiff succeeded in establishing a breach of contract on the part of a school manager when, on account of trade union pressure, he was not appointed principal of a national school. The High Court was influenced not only by the plaintiff’s status as principal, but also by the unlikelihood that he would leave in the middle of the school year.

[9.38] The High Court decision on the question of redress in Garvey v Ireland58 is somewhat curious. Among other things, the original pleadings before the High Court questioned the power of the Government of Ireland, under the Police Forces Amalgamation Act 1925, to terminate the office of the Commissioner of An Garda Síochána at any time, whether without prior notice or without giving reasons or without giving the holder of the office an opportunity of making representations in relation thereto. McWilliam J ruled that the Government had no such power and the defendants appealed to the Supreme Court against his finding. Their appeal was rejected by a majority (4:1) of the court. The case was sent back to McWilliam J to make such order as he thought fit in the circumstances. The High Court summarised the finding of the Supreme Court thus: ‘that the circumstances of [Mr Garvey’s] purported removal from office ... were such that his appointment was not validly terminated.’

Given that this was the court’s decision, it is surprising that the arguments in the High Court centred on whether the plaintiff was entitled to ‘damages’ for his wrongful removal from office and, if so, the measure of those damages.59 The purported removal from office took place in January 1978.60 Garvey resigned his position in May 1989. A sum representing the amount of his salary from January 1978 was paid to the former Commissioner on resignation but, as payment was in arrears, McWilliam J made an award of special damages representing the interest to which Garvey was entitled from the date of his purported removal from office to that of his actual resignation: ‘... the plaintiff did suffer loss by not receiving his salary at the proper times because either he had to borrow money by investment or otherwise so as to make a profit.’ 57 58

59

60

Cotter v Ahern [1976–77] ILRM 248. Garvey v Ireland [1981] IR 75; the question of ‘damages’ was determined by the High Court (McWilliam J) on 19 December 1979. See Kenny J in the Supreme Court on the trial judge’s decision: ‘These findings meant that the plaintiff had been wrongfully removed from the office which he held and was, at least, entitled to damages’ (emphasis added). See para [7.16] et seq above.

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[9.40]

[9.39] So far, the judgment is unobjectionable.61 But McWilliam J went on to discuss general and exemplary damages, both of which were claimed by the plaintiff. General damages were claimed for loss of job satisfaction, loss of opportunity to prepare for his retirement, invasion of privacy due to the public interest in his removal from office, injury to health and general distress aggravated by the effect the events had upon his family. Both Cox v Phillips Industries Ltd62 and Addis v Gramophone Co Ltd63 were cited in court. McWilliam J espoused the decision in the latter, above all its emphasis that, where a claim is made for breach of contract, whether of a contract of employment or otherwise, circumstances of malice, fraud, defamation or violence which might sustain an action of tort cannot be taken into consideration: ‘Accordingly, unless some injury was occasioned by the plaintiff as a result of the wrongful removal from office of the plaintiff which could reasonably have been foreseen by the defendants I am of opinion that he is not entitled to any general damages under this heading.’

[9.40] However Garvey was the holder of a statutory office whose attempted removal was held to have been devoid of legal validity. In so far as the High Court based its decision on principles relating to wrongful breach of contract, it was misconceived and wrong. The court’s discussion of exemplary damages is equally unsatisfactory. It is unclear whether these damages were considered as a claim in contract or in tort. The general tenor of the court’s judgment is contractual, yet the authority cited in respect of exemplary damages involved tortious liability: Rookes v Barnard.64 In Rookes’s case, Lord Devlin stated: ‘that there are certain categories of cases in which an award of exemplary damages can serve a useful purpose in vindicating the strength of the law and thus affording a practical justification for admitting into the civil law a principle which logically ought to belong to the criminal. The first category is oppressive, arbitrary or unconstitutional action by the servants of government.’

This statement was not elaborated on in Rookes as the case itself did not deal with actions by servants of government. It was, however, very fully discussed in Broome v Cassel & Co,65 and McWilliam J was satisfied from the judgments in that case that he 61

62 63

64 65

With one reservation, however. The judgment implies that the plaintiff who delays longest, provided he remains within the Statute of Limitations 1957, and is not guilty of acquiescence or laches, will receive the greatest award. A different approach is suggested by Taylor v National Union of Seamen [1967] 1 WLR 532 where the possibility is suggested of a declaration which preserves all those prospective rights of the employee which flow from a continuance in employment, without giving him the right to wages between purported dismissal and trial, because the latter might lead to considerable over-compensation of the employee. Freedland, The Contract of Employment at 292 suggests that occasions might well arise in which it might be a useful remedy to declare a dismissal invalid for the purpose only of pension rights depending upon the continuity of employment and not for the purpose of continuing remuneration. Cox v Phillips Industries Ltd [1976] 1 WLR 638. Addis v Gramophone Co Ltd [1909] AC 488. For a consideration of the status of Addis in 2017 and beyond see Ch 11. Rookes v Barnard [1964] 2 WLR 269 at 328. Broome v Cassel & Co [1972] 2 WLR 645.

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should award exemplary damages ‘related to the injury which the plaintiff has suffered by reason of the arbitrary and oppressive conduct of the Government’. Having regard to the view that similar injury would to a large extent have been sustained by the plaintiff had he been lawfully removed from office, the judge awarded £500 on that part of the claim. This aspect of the award should be seen as recovered in tort.

(5) Certiorari [9.41] Certiorari is a remedy of considerable flexibility; it lies to quash a decision of a public body which has been arrived at in excess of jurisdiction. In several significant cases public employees such as gardaí, prison officers and members of the Defence Forces have invoked public law remedies as a means of challenging their dismissal. Many of these authorities are referred to in the preceding chapters. [9.42] The Supreme Court has confirmed that certiorari is, as a matter of principle, always discretionary.66 The discretionary nature of certiorari was emphasised by the Supreme Court in Minister for Education v Regional Technical College, Letterkenny and Colin Morrow67 where the appointment of a person to a college post was challenged by the Minister. Section 11(1)(a) of the Regional Technical Colleges Act 1992 provided that the college may, subject to the approval of the Minister for Education given with the concurrence of the Minister for Finance, appoint such persons to be its officers and servants as its governing body thinks proper. Section 11(1)(b) provides that the selection of officers and servants shall be a function of the college in accordance with procedures which may be determined by the Minister for Education. The Court68 found a clear differentiation in the section between the power of appointment and the power of selection of officers and servants. The creation of a post required the approval of the Minister for Education with the concurrence of the Minister for Finance. However, once created, the process of selection was the function of the college, albeit that it had to be made in accordance with such procedures as may be determined by the Minister. When the applications were screened the requirements for the post (including a relevant degree and/or professional qualification) had been agreed by the College and the Minister. They were not adhered to as the appointee second defendant (who was offered and later appointed to the post) did not have any relevant degree or professional qualification. [9.43] The Minister instituted proceedings seeking an order of certiorari quashing the appointment of the second named defendant on the grounds that the appointment had been made in contravention of s 11(1) of the 1992 Act and that the college had acted ultra vires. Costello J (High Court) granted an order of certiorari quashing the appointment of the second named defendant. The college and the appointee appealed. [9.44] The Supreme Court held that the college was entitled to alter the job requirements. It could not be said that once the Minister had fixed the requirements for 66 67

68

De Róiste v Minister for Defence [2001] IESC 4, [2001] 1 IR 190. Minister for Education v Regional Technical College, Letterkenny and Colin Morrow [1995] 1 ILRM 43. See Rajpal v Robinson, North Eastern Health Board and the Minister for Health and Children [2004] IEHC 149 (Kearns J): order appointing committee under Health Act 1970 to inquire into proposal to remove applicant quashed. Hamilton CJ, O’Flaherty, Egan, Blayney and Denham JJ concurring.

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the post they were ‘absolutely immutable’ and could not be changed. It was not open to the Minister to challenge the validity of the appointment (although an unsuccessful candidate might have done so on the ground that the original requirements circulated to all the candidates were not adhered to). Even if it were open to the Minister to challenge the appointment, the Court was mindful that certiorari is a discretionary remedy. Before making such an order, the Court as stated by Henchy J in State (Cussen) v Brennan:69 ‘... must be satisfied not only as to the matters such as default in the performance of a public duty and jurisdictional error, but also that it would be just and proper in all the circumstances to grant those orders.’

In all the circumstances the Court was not satisfied that it would be just and proper to grant the order sought by the Minister. The second defendant had ‘the type of experience required’ for the post. He had resigned from his earlier position. His appointment had been recommended by a selection board, the majority of whom were wholly independent of the college.

[9.45] It is axiomatic that an applicant for certiorari should behave with the utmost candour in respect of each of the reliefs sought.70

(6) Injunctions [9.46] An injunction will not be granted unless the plaintiff already has an independent cause of action at law or in equity.71 An injunction may be prohibitory in which case it restrains the commission of a wrongful act. Or it may be mandatory, commanding that a legal duty is performed. The former type of injunction is primarily relevant in dismissal cases. The alternative remedies of prohibition and mandamus have somewhat diminished the use of the injunction in judicial review and the new Rules of Court, above, have removed the procedural advantages formerly attributed to the injunction. Outside of judicial review, the emergence of injunctions, particularly interlocutory injunctions, to restrain dismissal is fully discussed in the next chapter.

D.

LEGITIMATE EXPECTATION

[9.47] ‘Legitimate expectation’ is an important doctrine which enables employees governed by public law principles to seek protection which ordinary employees cannot. As it has evolved in Ireland’s jurisprudence, the doctrine of ‘legitimate expectation’ has become closely associated with the right to be heard. It was first invoked before Murphy J (High Court) in Goldrick and Mooney v Dublin Corporation.72 At the time, the judgment of the Supreme Court in Webb v Ireland & AG73 had not been handed down. Murphy J referred to the doctrine of ‘legitimate expectation’ as enunciated by Lord Diplock in O’Reilly v Mackman74 and further analysed in the Council of Civil 69 70

71 72 73 74

State (Cussen) v Brennan [1981] IR 181 at 195. State (Vozza) v O’Floinn [1957] IR 227; O’Donovan v De La Salle College Wicklow [2009] IEHC 163. Caudron v Air Zaire [1985] IR 716. Goldrick and Mooney v Dublin Corporation (10 November 1986) HC (Murphy J). Webb v Ireland & AG [1988] ILRM 565; distinguished In re ‘La Lavia’ [1996] 1 ILRM 194. O’Reilly v Mackman [1983] 2 AC 237.

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Service Unions v The Minister for the Civil Service (the GCHQ case).75 According to the judge, it: ‘… purports to extend the right of judicial review to the protection of beliefs or expectations which derive not from legal rights but from the promises or conduct of the party whose conduct it is sought to review. The GCHQ case is an example of how the doctrine might be applied. That case concerned the rights of civil servants in England. They held their appointments at the pleasure of the Crown so that their employment could be terminated and a fortiori their conditions of employment altered without the employer providing any reason or invoking any procedure to establish the existence of any reason for the termination of the employment. It was established in evidence that for a period of nearly forty years prior consultation had been the invariable rule when conditions of service were to be significantly altered. In those circumstances, it was held to be unfair and inconsistent with good administration for the Government to depart from the practice unless there were special circumstances which would justify the change.’

[9.48] The doctrine of legitimate expectation was raised in Goldrick and Mooney as a fall-back or alternative argument in the event that the court would be unwilling to apply the broad approach of the Supreme Court in Glover to the facts before it. The plaintiffs were fire fighters in the employment of the defendant. Their employment terminated on the grounds of serious misconduct in absenting themselves from duty without permission and consuming alcohol in a public house during hours of duty. [9.49] The plaintiffs relied heavily on the Dublin Fire Brigade Disciplinary Code 1967 which was agreed to form part of their terms of employment. Under the code, nine specified charges could be preferred. These included absence without leave from duty and drunkenness when on duty. Punishments and procedures were detailed under the code. However, it did not provide for termination of employment of members of the Brigade. The court had no hesitation in accepting the defendant’s submission on the code that it had ‘nothing to say on the question of the dismissal of the fire fighters and certainly did not preclude the City Manager from exercising the functions vested in him from dismissing the persons to whom this code does extend’. [9.50] The fire fighters alleged that the express provisions in the code created in them the legitimate expectation that offences of the nature specified would be dealt with under the code unless and until employees were warned prior to any particular act of misconduct that the position would be otherwise.

[9.51] ‘Even assuming that the doctrine of legitimate expectation forms part of our law,’ Murphy J responded, its application had limited value in the case before him. [9.52] He held that it was not necessary for the plaintiffs to pursue this route as the defendant’s inquiry had complied in every respect with the requirements of constitutional justice and met all reasonable demands for fair play: ‘To argue, as the plaintiffs do, that the plaintiffs were entitled to expect and did expect that allegations of misconduct concerning absence without leave or drinking would be tried and dealt with as a disciplinary matter under the Disciplinary Code involves a different application – and perhaps an extension – of the doctrine of legitimate expectation.’ 75

Council of Civil Service Unions v The Minister for the Civil Service (the GCHQ case) [1985] AC 374.

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Evidence was given of other cases in which allegations of misconduct involving fire fighters were dealt with by the personnel department and not under the disciplinary code even though the offence alleged could have been framed thereunder. The judge found there was no established practice of dealing with misconduct involving fire fighters exclusively under the code.

[9.53] Furthermore, even if the conduct or actions of the defendant corporation had in some way engendered in the plaintiffs the belief or expectation that misconduct falling within any of the categories described in the disciplinary code would be dealt with under the code, the judge affirmed that such a belief or expectation would be neither legitimate nor reasonable: ‘If a fire fighter were to absent himself without leave or to consume alcohol in such a way that might significantly impair the capacity of the fire service to respond effectively to emergency calls, no reasonable person would believe or expect that such misconduct would be dealt with under a behaviour code which provides a maximum punishment of two weeks’ loss of wages and expressly excludes from its terms of reference the dismissal of the party guilty of such misconduct.’

[9.54] In Webb76 Finlay CJ recognised that the doctrine of ‘legitimate expectation’ sometimes described as ‘reasonable expectation’ had not been the subject matter of any decision by the Irish courts. The doctrine was, as he put it, but an aspect of the wellrecognised equitable concept of promissory estoppel whereby a promise or representation as to intention may in certain circumstances be binding on the representor and promisor.77 The Chief Justice adopted Lord Denning’s statement of the doctrine in Amalgamated Investments v Texas Commerce:78 ‘When the parties to a transaction proceed on the basis that an underlying assumption (either of fact or of law and whether due to misrepresentation or mistake makes no difference) on which they have conducted the dealings between them exists, neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so.’

[9.55] The doctrine was unsuccessfully invoked because of the particular circumstances that obtained in a case involving retirement age. The Irish Universities Act 1908 provided, inter alia, for the foundation of University College Dublin (UCD) and for the making of statutes for the general government of the college. The first of these statutes (Statute 1) was made in 1911: it stated in Chapter XV, inter alia, that a professor shall continue in office until aged 65 and may thereafter continue for a further five years if this is recommended annually by the governing body. The applicant in Eogan v University College Dublin79 was Professor of Celtic Archaeology. Just before he turned 65, he was informed by letter that the governing body had met the day before and it had been decided not to recommend his continuance in office. He objected in writing. [9.56] Some years earlier, a phased retirement age of 65 had been recommended at UCD and the governing body had confirmed its intention to discontinue extension in 76 77 78 79

Paragraph [9.47] above. Further on this see para [9.61] below. Amalgamated Investments v Texas Commerce [1982] QB 84 at 122. Eogan v University College Dublin [1996] 2 ILRM 302.

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office beyond the age of 65. This was done to make financial savings and to reduce the average age of staff members. The letter the applicant received related to this policy. The governing body’s policy decision had been much debated both at the time and in subsequent years. The applicant instituted judicial review proceedings in which he argued, inter alia, that he had a legitimate expectation to remain in office until he was 70. He claimed that he had been induced into taking his first post in the college by the representation that the effective retirement age was 70 years. The respondent argued, inter alia, that the doctrine of legitimate expectation had no application in the area of private law (on this aspect of Eogan80 the court ruled that the case clearly came within the principles of public law) and that the applicant had no relevant expectation in any event.

[9.57] Shanley J (High Court) described the developing jurisprudence on legitimate expectation in Ireland. He referred to Lord Diplock’s classification in Council of Civil Service Unions v Minister for the Civil Service81 of the three headings under which administrative action is subject to judicial review: illegality, irrationality and procedural impropriety. The last embraced failure to act with procedural fairness, failure to observe basic rules of natural justice and failure of an administrative tribunal to act in accordance with rules of procedure laid down in the legislative instrument by which its jurisdiction is conferred. O’Hanlon J had observed in Fakih v Minister for Justice,82 that this third category might be better described by speaking of ‘a duty to act fairly’. He quoted Lord Roskill:83 ‘The particular manifestation of the duty to act fairly which is presently involved is that part of the recent evolution of our administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had “a reasonable expectation” of some occurrence or action preceding the decision complained of and that that “reasonable expectation” was not in the event fulfilled.’

[9.58] In Council of Civil Service Unions, above, Lord Diplock indicated that to qualify as a subject for judicial review the decision in question must have consequences affecting persons other than the decision maker. It must, he said, inter alia, affect such other person:84 ‘... by depriving him of some benefit or advantage which either:

80 81 82 83 84

(i)

he has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do so until they have communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment; or

(ii)

he has received an assurance from the decision maker it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.’

See para [9.18]. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, para [9.05]. Fakih v Minister for Justice [1993] 2 IR 406 at 422. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 401. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 397.

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[9.59] Keane J had quoted this passage in Pesca Valentia Ltd v Minister for Finance,85 and noted:86 ‘Lord Diplock there emphasises that the essence of the doctrine – in England at all events – is the right of the person affected to be given some rational ground for alterations in a regime to which he has become accustomed and an opportunity to be heard in relation to them before they are implemented.’

[9.60] O’Hanlon J in Fakih had expressly accepted that the so-called doctrine of legitimate expectation was now part of Irish law. Quoting Lord Roskill in Council of Civil Service Unions:87 ‘The principle may now be said to be firmly entrenched in this branch of the law. As the cases show, the principle is closely associated with a “right to be heard”. Such an expectation may take many forms. One may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations, especially when the aggrieved party is seeking to persuade an authority to part from a lawfully established policy adopted in connection with the exercise of a particular power because of some suggested exceptional reasons justifying such a departure.’

[9.61] Having summarised the developing jurisprudence on legitimate expectation, Shanley J turned to the facts in Eogan. The benefit or advantage which the applicant claimed to have been deprived of, and which he was led to believe he would enjoy, was continuance in office until age 70. It was common case, said the judge, that at least from 1987 there had been serious discussion in academic circles in UCD concerning reducing the effective retirement age to 65 to achieve a reduction in the age profile of academic staff in UCD and to make financial savings. It was not disputed that this was the reason for the proposed early retirement nor that a full debate on the proposal took place at the academic council in UCD of which the applicant was a member and to which discussion he contributed. The proposal, moreover, had come before the Labour Court twice. The judge was in no doubt that the applicant: ‘was fully aware of the reasons for the proposed early retirement scheme and that he was given every opportunity to comment on the proposed scheme.’88

Shanley J was also satisfied that it was a decision that the governing body of UCD was entitled to take having regard to the provisions of Chapter XV, para 10 of Statute 1.89 The application was dismissed.

[9.62] While the doctrine of legitimate expectation is similar to, and probably founded upon, the equitable concept of promissory estoppel, as the Chief Justice remarked in Webb,90 McCracken J held in Abrahamson v Law Society of Ireland91 that it had been extended well beyond the boundaries of promissory estoppel ‘which is largely defensive 85 86 87 88 89 90 91

Pesca Valentia Ltd v Minister for Finance [1990] 2 IR 305. Pesca Valentia Ltd v Minister for Finance [1990] 2 IR 305 at 321. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 414. Eogan v University College Dublin [1996] 2 ILRM 302, at 312. See para [9.55] above. See para [9.54] above. Abrahamson v Law Society of Ireland [1996] 2 ILRM 481. See aslo O’Leary v Minister for Finance (3 July 1998) HC (Quirke J).

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in nature and has been described as a shield and not a sword’. Unlike promissory estoppel, he held, a legitimate expectation may give rise to a cause of action in respect of which the court will award damages.

[9.63] McCracken J described the following principles in relation to the doctrine of legitimate expectation as now ‘well established’: ‘(i)

the courts will, as a general rule, strive to protect the interests of persons or bodies who have a legitimate expectation that a public body will act in a certain way;

(ii)

the courts will ensure that where that expectation relates to a procedural matter, the expected procedures will be followed;

(iii)

where the legitimate expectation is that a benefit will be secured, the courts will endeavour to obtain the benefit or to compensate the applicant, whether by way of an order of mandamus or by an award of damages, provided that to do so is lawful;

(iv)

where a minister or public body is granted a power or discretion to make regulations for the good of the public or of a section of the public, the court will not interfere with the exercise of such discretion or power, as to do so would be an undue interference by the court in the affairs of the persons or bodies to whom or to which such discretion or power was given by the legislature.’92

The doctrine of legitimate expectation has long shed its inverted commas and is frequently recognised as being of special significance in specific employment contexts.93 But the public/private law divide which has surfaced in this area leaves many unanswered questions.

[9.64] The most significant unanswered question concerns the place of legitimate expectation in private law. It was expressly queried in Fitzgerald and Others v South Eastern Health Board,94 a case involving changes in work practices. The court referred to Rafferty v Bus Éireann95 which had held that the employee did not have a vested right to preserve his working obligations completely unchanged from the moment his contract of employment began; rather an employee is expected to adapt to new methods and techniques introduced in the course of his employment. The plaintiffs relied on Coonan v Attorney General96 as a basis for contending that the Health Board was estopped from denying an earlier agreement which had given rise to the plaintiffs being ‘red circled’. 92

93

94 95

96

Abrahamson v Law Society of Ireland [1996] 2 ILRM 481 per McCracken J at 498–499. The Court considered the following: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; Duggan v An Taoiseach [1989] ILRM 710; Hempenstall v Minister for the Environment [1994] 2 IR 20; Phillips v Medical Council [1991] 2 IR 215; Webb v Ireland [1988] IR 353; Wiley v Revenue Commissioners [1994] 2 IR 160 and Tara Prospecting Ltd v Minister for Energy [1993] ILRM 771. An example applying para (iv) in the text is Gilheany v Revenue Commissioners [1996] 7 ELR 25. For recent consideration of the applicability of the doctrine see, for eg, Noonan v Commissioner of An Garda Síochána [2007] IEHC 354; Herlihy v Superintendent of Gurranabraher Garda Station [2012] IEHC 531; Maybury v The Commissioner of An Garda Síochána [2016] IEHC 224; Kelly v The Irish Prison Service [2017] IEHC 118. Fitzgerald and Others v South Eastern Health Board [2003] ELR 257. Rafferty v Bus Éireann [1997] 2 IR 424, considered by the Court of Appeal in Earley v Health Service Executive [2017] IECA 157, analysed in Ch 10. Coonan v Attorney General [2001] ELR 315.

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Coonan concerned the continuation in office of a State solicitor after the age of 65. The Supreme Court had found it unnecessary to consider the principles of estoppel or legitimate expectation and held the respondent entitled to succeed on foot of his contract with the Attorney General. Counsel for the Attorney General had argued forcefully that the doctrine of legitimate expectation had no place in private law but only in public law. According to the court, had the decision in Coonan been based on legitimate expectation, it ‘would have extended this doctrine into employment law which would fetter the actions of the State with regard to exercising its discretion on such matters’. Murphy J summarised: ‘Employment law is essentially contractual in nature. In addition to the expressed terms being negotiated between parties – whether in public or private employment – there are, of course, the implied terms of the employment legislation which have grown substantially in the last three decades.’

[9.65] The public/private law divide is fraying. Quite apart from the sphere of judicial review, it is possible to discern public law principles suffusing the private contract of employment.97 In Hennessey v St Gerard’s School Trust,98 for example, Haugh J has held that there is no reason why the equitable doctrine of ‘legal expectancy’ should be confined to claims against public bodies. He accepted that there is a formidable body of legal opinion suggesting that entitlements arising under the doctrine of legal expectancy apply only in relation to dealings with public bodies rather than private ones. However, he took the view that it was clear from the judgment of Finlay CJ in Webb (discussed above at para [9.51]), that the concept is but an aspect of the well-recognised equitable estoppel whereby a promise or representation as to intention may, in certain circumstances, be held binding on the representor or promisor. If it is a doctrine deriving from the principles of equity, the judge said it seemed difficult ‘to find a rational explanation as to why it should bind only public bodies or bind them only in a different way from the obligations which are placed on other bodies’. In the case before him, involving a teacher, Haugh J was satisfied that the doctrine applied. Similar support for such an approach is discernible in more recent case law. Thus, in McEneaney v Cavan and Monaghan ETB,99 the Court of Appeal noted that the President of the High Court held that the applicant had a legitimate expectation that a particular Circular regarding professional competence and discipline would apply.

E.

DOUBLE JEOPARDY

[9.66] The plea of double jeopardy can arise whether proceedings involve public law employees or otherwise.100 Double jeopardy is raised as a plea in circumstances where an employer initiates a disciplinary inquiry where there already has been, or there is ongoing, a criminal trial into the same facts. The cases in the following paragraphs illustrate that there is no general principle that an acquittal on a criminal charge in 97

98

99 100

Two recent examples from the case law are Braganza v BP Shipping Limited [2015] UKSC 17 and Earley v Health Service Executive (No 2) [2017] IECA 207. Hennessey v St Gerard’s School Trust Irish Times Law Report (13 March 2006), [2004] ELR 230 (interlocutory). McEneaney v Cavan and Monaghan ETB [2016] IECA 53. In a private law context see Saeed v Inner London Education Authority, Ch 10.

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respect of an offence can act as an estoppel preventing a disciplinary investigation arising out of the same set of facts.

[9.67] It would be unusual for an employee to wish a disciplinary inquiry to proceed where criminal proceedings are pending against him arising out of the same incident. But in Flynn v An Post101 the Supreme Court102 held, inter alia, that the employer should proceed with the enquiry since it is no function of the employer to protect the employee against the possible prejudice resulting from the waiver of the employee’s right to silence. This case, as has been pointed out on a number of occasions, and in particular by Costello J in Myers v Commissioner of An Garda Síochána,103 was a case peculiar to its own facts. In delivering the majority judgment in Flynn, McCarthy J said: 104 ‘there may be circumstances in which it would be proper to postpone an investigation pending a criminal trial ... No doubt there would be many cases in which there would be acquiescence by both parties in awaiting the outcome of a criminal prosecution and/or a civil action of a limited kind either or both of which touched upon matters in dispute between individuals as employees or employers. A court should, I think, lean towards avoiding expense and, more importantly, avoiding prejudice; where, however, the only party likely to be prejudiced wants to go ahead with the matter, ordinarily his right to do so cannot be denied.’

[9.68] One of the most important cases on double jeopardy is McGrath v The Commissioner of An Garda Síochána.105 The Garda Síochána (Discipline) Regulations 1971, provided, inter alia, that acts or omissions set out in the Schedule to the Regulations shall be breaches of discipline. Included in the Schedule was ‘corrupt or improper practice, that is to say, misappropriation or failure to account for any money or property received by a member in the course of duty ...’. [9.69] The applicant, a member of An Garda Síochána, was charged before the District Court with embezzlement of money received by him by virtue of his employment, contrary to s 17(2)(b) of the Larceny Act 1916. The charges related to money paid on foot of court orders imposing fines. The applicant admitted that he had not issued official receipts for any of those payments; as a result, the orders were returned to the District Court as unexecuted and persons who had paid their fines had been in peril of being imprisoned on foot of those orders.

[9.70] He was returned for trial before the Circuit Court and was acquitted by a jury on all charges. He subsequently received notification that he was to be charged with breaches of Garda discipline, including three charges of corrupt or improper practice; the particulars alleged failure to account for the three sums of money received by him in the course of his duty which were the subject matter of the criminal charges. 101 102 103 104

105

Flynn v An Post (1987) ILT 165 (note), [1987] IR 68. Finlay CJ, Walsh and McCarthy JJ; Henchy and Hederman JJ diss. Myers v Commissioner of An Garda Síochána (22 January 1988) HC. Myers v Commissioner of An Garda Síochána (22 January 1988) HC at 84. Applied in McNeill v Commissioner of An Garda Síochána [1995] 1 ILRM 321 (HC, Morris J), (30 July 1996) SC. McGrath v The Commissioner of An Garda Síochána [1991] IR 68.

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[9.71] The applicant applied by way of judicial review for an order prohibiting the respondent from holding an inquiry into the alleged breaches of discipline. The High Court made such an order in relation to certain of the charges against the applicant; in relation to the charges of corrupt or improper practice, the court ordered that the inquiry could proceed provided that the breaches of discipline alleged were confined to charges of merely improper, rather than corrupt or improper, practice.

[9.72] The Supreme Court106 dismissed the appeal. Before the court the respondent relied on the High Court decision (O’Hanlon J) in Kelly v Ireland107 and, in particular, on the passage at p 328 where the court said: ‘In the rare case where a clearly identifiable issue has been raised in the course of a criminal trial and has been decided against a party to those proceedings by means of a judgment explaining how the issue has been decided, I would be prepared to hold that such decision may give rise to issue estoppel in later civil proceedings in which that party is also involved. Such estoppel would arise, not only in relation to the specific issue determined (in this case, whether the statement was made freely and voluntarily) but also to findings which were fundamental to the court’s decision on such issue.’

[9.73] The respondent contended that in the case before the court there was no judgment giving reasons. There was simply the verdict of a jury. Hederman J for the court concluded that there was ‘a single point’ in the case the jury had to decide: did the accused act dishonestly? The jury resolved that issue by acquitting the accused. There was therefore no additional factor that could be placed before the disciplinary inquiry. ‘The object of the criminal proceedings was to establish that the applicant was guilty of dishonest acts which, if established, would have exposed him to punishment. He was acquitted. The object of the disciplinary proceedings is to establish that he was guilty of the same acts as those in respect of which he was acquitted.’

[9.74] The judge made a distinction between the consequences that might flow from any purely civil action and the disciplinary hearing procedure. The latter was ‘more serious in its consequences’ than a mere civil action. The High Court had ruled that the disciplinary hearing could proceed on an allegation that would read as follows: ‘Improper practice: That is to say at Mountrath Garda Station, Co Laois on 24 January 1984, you failed to account for a sum of money to the amount of £100 received by you in the course of your duty from one ... The said improper practice is a breach of discipline within the meaning of Regulation 6 of the Garda Síochána (Discipline) Regulations 1971, and is described at Reference No 7 in the Schedule to the said Regulations.’

That was acceptable to the Supreme Court. Such an allegation, in the words of Hederman J:108 ‘... relates to matters of internal discipline in the Garda Síochána and is not in any way to be equated with the criminal charges of which the respondent has already been acquitted.’ 106 107 108

Finlay CJ, Griffin, Hederman, McCarthy and O’Flaherty JJ. Kelly v Ireland [1986] ILRM 318. McGrath v The Commissioner of An Garda Síochána [1991] IR 68 at 74.

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[9.75] McCarthy J was keen, however, to dispel any doubt that acquittal on a criminal charge necessarily precludes a disciplinary investigation into the facts arising out of which the criminal charge was brought: ‘I reject such a proposition. The argument in support of such a view is one of estoppel. The vital features of issue estoppel are that the facts and the parties in dispute are essentially the same. Where one organ of State has been a contestant in the first trial of the issue, then, in my view, another organ of State has the necessary privity. What is an organ of State? Certainly, the Attorney General, Ireland, the Director of Public Prosecutions and the Commissioner of the Garda Síochána come within that category. The core question is whether or not the issue was the same. The issue in a criminal trial is the guilt or innocence of the accused; such depends upon a wide variety of circumstances the existence of which has to be proved by the prosecution. As pointed out by Henchy J in Dublin Corporation v Flynn,109 for a variety of reasons an accused person may have been prepared to accept a wrong decision in an earlier prosecution to the effect that he had committed an act of assault or had driven a motor car dangerously. In such circumstances, estoppel would be repugnant to the fair administration of justice. In the instant case, the claim of estoppel is made by the accused but the legal principle is the same. Acquitting a Garda of assault would not preclude a Garda investigation into a breach of discipline such as abuse of authority in failing to behave with due courtesy towards a member of the public.’110

The judge cited O’Hanlon J in Kelly v Ireland:111 ‘He went on to hold that, apart from the applicability of the concept of issue estoppel, the effort to challenge the correctness of a decision made by a court of competent jurisdiction against a party in the course of a criminal trial, by means of civil proceedings instituted by such person after that decision has been made, should normally be restrained as an abuse of the process of the court.’112

McCarthy J referred to Kelly as it has been cited by counsel for the respondent, primarily to distinguish it from the case before the court. The judge regarded it as ‘neither necessary nor appropriate’ to express any view as to its correctness.113

[9.76] Finlay CJ (Griffin J concurring) also wished to: ‘... emphasise, however, as is clear from that judgment, that there cannot, it would appear to me, be any general principle that an acquittal on a criminal charge in respect of an offence, irrespective of the reason for such acquittal, or the basis on which it was achieved, could be inevitably an estoppel preventing a disciplinary investigation arising out of the same set of facts.’114

[9.77] McGrath was followed by Mooney v An Post.115 In Mooney the employer had some confidential information against the applicant employee from a person who could not be called at the trial. Criminal charges against him were not based on that complaint. The employee’s acquittal gave rise to a reasonable requirement on the part of the 109 110 111 112 113 114 115

Dublin Corporation v Flynn [1980] IR 157. Per Mc Carthy J at 75. Kelly v Ireland [1986] ILRM 318. See para [9.72] above. McGrath v The Commissioner of An Garda Síochána [1991] IR 68 at 75. Or that of Lardner J in Breathnach v Ireland [1989] IR 489. McGrath v The Commissioner of An Garda Síochána [1991] IR 68 at 71. Mooney v An Post [1998] 4 IR 288.

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employer that the employee answer certain questions. There was the question of whether he was suitable to be retained as a postman. Keane J in the High Court held that acquittal of criminal charges did not preclude employers from considering whether an employee should or should not be dismissed because of circumstances which had given rise to the charges. He rejected a submission to the contrary effect by counsel for the plaintiff and he regarded it as unnecessary to set out his reasons, beyond saying that it was clear from the observations of Finlay CJ and McCarthy J in McGrath that that case is not authority for the general proposition that, in every case where an employee is acquitted of criminal charges of dishonest conduct, his employer is thereafter precluded from considering whether he should or should not be dismissed because of the circumstances which gave rise to the charges.

[9.78] Framing the terms of reference for a disciplinary inquiry following acquittal on a criminal charge should be undertaken with great care and with advice as Garvey v Minister for Justice, Equality and Law Reform and Others116 illustrates. The case concerned a prior acquittal in criminal proceedings of the same allegations. The applicant was a prison officer and the charge related to alleged assault on a prisoner in the course of his employment. Disciplinary proceedings were instigated against him by the Governor of Mountjoy Prison prior to the criminal trial, and had been the subject of a judicial review action struck out by consent without prejudice to the right of the applicant to argue that further disciplinary proceedings would not be maintainable in the event of an acquittal in the criminal trial. After his acquittal, the Governor sought to resume the disciplinary proceedings. They related to the same allegations on which the criminal charges had been based. The applicant sought to prohibit the proceedings principally on the ground that they related to exactly the same grounds on which he had been acquitted on the merits. The High Court refused the reliefs sought but the Supreme Court (Geoghegan J, Murray CJ and Denham J concurring) allowed the appeal. Recognising that the appeal raised ‘yet again an age old question on which there are decisions of this court not all that easy to reconcile’ the court took the view that the case fell within the category where a disciplinary inquiry would be oppressive and impermissible. ‘By now every aspect of the case must have been discussed within the prison service whether at Governor level or prison officer level. It is impossible to imagine that such a lengthy trial leading to an acquittal did not give rise to a flow of arguments and opinions throughout the prison. In this claustrophobic atmosphere I believe that to use the expression of Finlay CJ in McGrath it would be a “basically unfair procedure” to conduct a disciplinary enquiry on what in effect are identical allegations to the criminal charges based on essentially the same evidence and the same witnesses.’117

[9.79] The highly unusual factual matrix of Garvey should, however, be emphasised. That decision can be contrasted with several other authorities illustrating the narrowness of the ambit of the double jeopardy plea. Thus, in McGlinchey v Ryan,118 the High 116 117

118

Garvey v Minister for Justice, Equality and Law Reform and Others [2006] 1 IR 548. Garvey v Minister for Justice, Equality and Law Reform and Others [2006] 1 IR 548 per Geoghegan J at 558. McGlinchey v Ryan [2010] IEHC 536.

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Court, citing AA v The Medical Council119 noted that Ó Caoimh J had limited the parameters of an inquiry – excluding two matters of which the applicant had been acquitted – on the grounds of fairness rather than double jeopardy. Similarly, in O’Duffy v Law Society of Ireland,120 the High Court rejected the applicant’s claim regarding double jeopardy. The proceedings under s 18 of the Solicitors Amendment Act 2002 sought injunctive type relief, the object of which was to compel the applicant into full compliance with the 2001 regulations. It did no more than that, it merely obligated by way of court order the applicant into compliance with these regulations, an obligation which of course rests on all solicitors. The purpose of any disciplinary inquiry would initially be to determine whether there is a prima facie case of misconduct and following upon that, after a full hearing, to determine whether or not on the evidence, the applicant has been guilty of misconduct. These were two entirely different kinds of proceedings with entirely separate and distinct results. For that reason alone it could be said that double jeopardy does not arise.

[9.80] It is clear, therefore, from the developing case law that the principle of double jeopardy will be confined to a very narrow ambit indeed. This is seen in Galvin v Commissioner of An Garda Síochána.121 The High Court (Hedigan J) rejected applicant’s claim that he had already been disciplined for many of the matters and they could not therefore be taken into account in relation to dismissal. The Court indicated that an employer must be able to have regard to a cumulative pattern of misconduct. Hedigan J emphasised that the principle of double jeopardy does not prevent a person from being convicted in court in respect of an offence and punished under a separate disciplinary or administrative regime in respect of exactly the same conduct.

119 120 121

AA v The Medical Council [2002] 3 IR 1. O’Duffy v Law Society of Ireland [2005] IEHC 61. Galvin v Commissioner of An Garda Síochána [2011] IEHC 486.

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Chapter 10

Specific Performance, Injunctions and Declarations INTRODUCTION [10.01] Amongst the most significant developments in the legal landscape since the introduction of the Unfair Dismissals Acts 40 years ago has been the willingness of the courts to grant injunctive relief to restrain the dismissal of an employee whose terms of employment are governed by contract. This chapter seeks to analyse the developing jurisprudence in Ireland which can be discerned from the authorities as of the time of writing (mid-2017). When granting an injunction judges draw on public law principles, that is, dismissal is regarded as ineffective to terminate the employee’s contract of employment. [10.02] Freedland talks about ‘the public law paradigm’ presenting itself in the private law of equitable remedies in ‘unfamiliar and indirect form’.1 This may be contrasted with the public law paradigm presenting itself in direct form which, as the last chapter illustrated, has enjoyed limited success in challenging termination of employment. In Irani v Southampton and South West Hampshire Health Authority2 Warner J distinguished the earlier case of R v East Berkshire Health Authority ex parte Walsh3 where public law rights were denied to the plaintiff in an essentially private law contractual relationship. The case: ‘decides nothing at all about what remedies such a practitioner [as the plaintiff] may be entitled to under the court’s normal equitable jurisdiction, which is the jurisdiction that I am exercising.’4

Hence, notwithstanding the judicial preference for the inapplicability of public law principles via judicial review, public law principles have been introduced into the private law of equitable remedies.5 1

2 3

4

5

Freedland, The Personal Employment Contract (OUP, 2005) at 374. See generally Freedland and Anby (eds), The Public Law/Private Law Divide (OUP, 2006). Irani v Southampton and South West Hampshire Health Authority [1985] ICR 590. R v East Berkshire Health Authority ex parte Walsh [1985] IRLR 203 and [1985] QB 152 respectively. Irani v Southampton and South West Hampshire Health Authority [1985] ICR 590 per Warner J at 601. For a recent example of this trend in the United Kingdom see West London Mental Health NHS Trust v Chhabra [2014] ICR 194, analysed by Cabrelli (2016) 45 ILJ 207. See also Yapp v FCO [2015] IRLR 112; and Al-Mishab v Milton Keynes NHS Foundation Trust [2015] EWHC 3096 (QB).

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A.

Redmond on Dismissal Law

HISTORICAL REFUSAL OF EQUITABLE REMEDIES

[10.03] The contractual nature of the employment relationship6 produced the historical result that damages were a wrongfully dismissed employee’s only real option. It was also maintained that equitable remedies were not available because of the general rule that the courts will not decree specific performance of contracts involving the performance of a personal service.7 On occasion the courts permitted an injunction to restrain a negative undertaking in a contract for personal services. As the Irish Supreme Court affirmed, ‘while a person cannot be forced to work against his will for someone he can, if in breach of contract, be prevented from working for anyone else’.8

[10.04] The court’s refusal of equitable remedies to compel performance of a contract of employment applied both in relation to a refusal of orders of reinstatement directed against an employer and to a refusal to work directed against an employee. Historically, objections to such orders were not operative before the nineteenth century.9 The rationale behind the refusal of the courts of equity to order specific performance of an obligation to perform personal services lay in the principle that equity will not make an order, the performance of which it cannot effectively supervise, or where performance would require constant supervision.10 To force one person to work for another, it was said, would be to turn contracts of service into contracts of slavery.11 [10.05] Refusal of equitable remedies was justified on a further ground, namely, lack of mutuality. An order of reinstatement cannot be obtained against an employer because, it is contended, specific performance will not lie to compel the rendering of personal services.12 However the merits of granting specific performance against an employer may well be very different from those of granting reinstatement to an employee. To treat the two arguments as if they stand or fall together imposes what Freedland has described 6

7 8

9

10 11

12

For an insightful exposition of English law see Freedland (ed), The Contract of Employment (OUP, 2016) at 244–72; also his Personal Employment Contract (OUP, 2005) Ch 7.3. Whitwood Chemical Co v Hardman [1891] 2 Ch 416 at 426. Capital Radio Productions Ltd v Radio 2000 Ltd (26 May 1998) SC (1998) Nos 128 & 129, per O’Flaherty J. See earlier the well known cases of Lumley v Wagner (1852) 1 De G M & G 604; Warner Brothers Pictures Inc v Nelson [1937] 1 KB 209. Such an injunction will not be granted, however, if its indirect effect would be to compel performance of a contract for personal services, see Warren v Mendy [1989] 1 WLR 853. See Ball v Coggs (1710) 1 Bro Parl Cas 140; and dicta of Sir John Leach VC thereon in Adderly v Dixon (1824) 1 Simons & Stuart 607, 611; also East India Co v Vincent (1740) 2 Atkyns 83; Kuckson v Stones [1858] 1 E & E 248; Warburton v Cooperative Wholesale Society Ltd [1917] 1 KB 663. Ryan v Mutual Tontine Association [1893] 1 Ch 116. Cf De Francesco v Barnum (1890) 45 Ch D 430 at 438 per Fry LJ. But ‘Fry and his fellow judges were clearly thinking in terms of a farmer or the master of a small workshop and their servants. In modern conditions, it is hardly turning contracts of service into contracts of slavery to order the reinstatement of an engineer in a factory employing 5,000 people’: Clark, ‘Remedies for Unjust Dismissal’ PEP Broadsheet 518, June 1970, 8. Page One Records Ltd v Britton [1968] 1 WLR 157. See Brodie, ‘Specific Performance and Employment Contracts’ (1998) 27 ILJ 37.

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[10.07]

as a formal equality between the parties which is far removed from the realities of their relationship.13

[10.06] In CH Giles & Co Ltd v Morris,14 Megarry J referred to the ‘strong reluctance’ of the courts to grant equitable remedies. In his view, such remedies were not refused as a rule and: ‘some day, perhaps, the courts will look again at the so-called rule that contracts for personal services or involving the continuous performance of services will not be specifically enforced. Such a rule is plainly not absolute and without exception, nor do I think that it can be based on any narrow consideration such as difficulties of constant superintendence of the court.’15

One of the exceptions Megarry J might have had in mind, consisted of an historical willingness on the part of the Courts of Equity to make orders against employing entities for the continuance of remuneration following a wrongful dismissal. This was seen, for example, in the old case of Ball v Coggs16 where a plaintiff general manager of a brasswire works for his life obtained an order requiring the employers to pay him his salary (and requiring him to work for them should they request it).17 An important differentiation to bear in mind throughout this chapter is between remedies which order the continuance of employment and those which order the continuance of remuneration and other benefits. The vast majority of remedies fall within the latter category and cannot strictly be said to offend against the equitable principle that injunctions will not be granted if they would require specific performance of contracts of personal services or its rationale.

B.

INJUNCTIONS: OVERVIEW

[10.07] In recent years plaintiffs who have sought injunctions18 from the High Court have in the main been senior executives for whom High Court proceedings are strategically important against their employer (not least because of bad publicity and high legal costs for the employing entity) and for whom the prospect of delays before the WRC and/or Labour Court are unacceptable. It takes several months to get a case to hearing at the WRC; often resumed hearings are necessary several months later and there is also the time involved in the issuing of the determination and the availing of the appeal mechanism to the Labour Court. By contrast, an ex parte or interlocutory application is heard very speedily. The availability of the High Court route is also very important for employees with less than one year’s service. 13

14 15 16

17 18

Bogg and Freedland, ‘The Wrongful Termination of the Employment Contract’ in Freedland (ed), The Contract of Employment (OUP, 2016) 537 at 544. CH Giles & Co Ltd v Morris [1972] 1 All ER 960. CH Giles & Co Ltd v Morris [1972] 1 All ER 960 at 969. Ball v Coggs (1710) 1 Bro Parl Cas 140 cited by Freedland, The Personal Employment Contract (OUP, 2005) at 371. Shades of the ‘Fennelly Order’, para [10.33] below. See generally Kirwan, Injunctions: Law and Practice (2nd edn, Round Hall, 2015).

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Redmond on Dismissal Law

The landscape has, of course, changed significantly since 2014 with the introduction of the Court of Appeal in Ireland.19

[10.08] An injunction is sought to protect the rights of the plaintiff whether at common law, under statute, the Constitution or in equity. Within each of these, the legal rules relevant to the particular context will apply. For example, an implied term will not oust an inconsistent express term in a contract, although they may co-exist. The granting of an injunction is at the court’s discretion. [10.09] Injunctions may seek to impose negative or positive obligations. The most sought after employment injunction is against employing entities restraining disciplinary or dismissal procedures. It falls within the former category and is prohibitory, that is, it restrains the performance or continuance of a wrongful act. On the other hand the mandatory injunction imposes positive obligations, requiring the performance of an act. Most employment injunctions are interim or interlocutory, sought and granted prior to the trial. Whereas an interim injunction will endure until the next hearing, an interlocutory injunction will be effective until the final hearing of the action, maintaining the parties’ status quo as far as possible until the court decides the issues in dispute. If at trial a plaintiff is successful, a perpetual injunction may be granted.20 Where breach is threatened or feared, a plaintiff may seek a quia timet injunction: see Garrahy v Bord na gCon.21

C.

INTERLOCUTORY INJUNCTIONS: PRINCIPLES

[10.10] The principles for granting an interlocutory injunction were identified by the Supreme Court in Campus Oil v Minister for Industry (No 2)22 as whether there is a fair issue to be tried, whether damages would instead be an adequate remedy for the party seeking the injunction if he were successful at the trial of the action and whether the balance of convenience favours the grant or refusal of an injunction at the interlocutory stage. Crucially, however, the Supreme Court affirmed in Maha Lingham v Health Service Executive23 that to establish an entitlement to mandatory relief the plaintiff has to discharge at least that he has a strong case that he is likely to succeed at the hearing. Fennelly J stated as follows: ‘In substance what the plaintiff/appellant is seeking is a mandatory interlocutory injunction and it is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grounds on an interlocutory injunction where the injunction sought is in effect mandatory. In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the 19

20 21 22 23

For specific analysis of the Court of Appeal on injunction jurisprudence see Oisín Quinn SC, ‘Implications of the Establishment of the Court of Appeal for Employment Injunctions’ (2015) 12 IELJ 4. As in Jones v Gwent County Council [1992] IRLR 521. Garrahy v Bord na gCon [2003] ELR 274. Campus Oil v Minister for Industry (No 2) [1983] IR 88. Maha Lingham v Health Service Executive [2006] ELR 137. Applied in Naujoks v National Institution of Bioprocessing Research and Training Ltd [2006] IEHC 358; and Bergin v Galway Clinic Doughiska Ltd [2008] 2 IR 205.

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[10.14]

hearing of the action. So it is not sufficient for him simply to show a prima facia case, and in particular the courts have been slow to grant interlocutory injunctions to enforce contracts of employment.’24

[10.11] Notwithstanding that the reliefs sought are pleaded in prohibitory terms, they are in essence mandatory in nature and therefore attract the application of the Maha Lingham standard. This is reflected in the judgment of the High Court (Kennedy J) in Earley v Health Service Executive25 where Kennedy J said: ‘Whilst the claims are pleaded as if seeking prohibitory orders, it is clearly the position that the pleas are essentially mandatory. Therefore, it is necessary for the plaintiff to establish a strong case in order to obtain the reliefs she now seeks; that is a strong case that she is likely to succeed at the hearing of the action.’

[10.12] This more exacting standard expected of a plaintiff seeking mandatory reliefs has been applied consistently by the High Court since the Maha Lingham decision. For example, in Bergin v Galway Clinic Doughiska Limited26 Clarke J endorsed the ‘strong case test’ and held that where an employee seeks to prevent a dismissal or a process leading to a dismissal: ‘[i]t is necessary for the employee concerned to establish a strong case in order to obtain interlocutory relief.’27

[10.13] The strong case test was also endorsed in Coffey v William Connolly & Sons Limited28 where Edwards J pointed out that if the applicant is seeking a mandatory interlocutory injunction then the threshold is higher than that set out by the Supreme Court in Campus Oil v The Minister for Industry (No 2)29 and cited the decision of the Supreme Court in Maha Lingham in supporting this approach. In Coffey the Court was of the view that whilst the plaintiff clearly had a stateable case, she needed to go a good deal further than that to meet the required threshold and in particular needed to show that she had a strong case that she was likely to succeed in her action. The Court, in declining to restrain the dismissal, pointed out that whether the plaintiff’s interpretation of the contract was correct was arguable both ways and whilst there was definitely a fair issue to be tried, it could not be said that the plaintiff’s case was so strong as to induce the belief that she was more likely than not to succeed at the trial of the action. [10.14] This trend of judicial emphasis on the arduous nature of the strong case threshold has been repeated in many more recent decisions. Thus, in Hartnett v Advance Tyre Company Ltd,30 Ryan J emphasised the onerous nature of the strong case burden imposed upon a plaintiff seeking mandatory reliefs. 24 25

26 27 28 29 30

Maha Lingham v Health Service Executive [2006] ELR 137, per Fennelly J at 140. Earley v Health Service Executive [2015] IEHC 520 at para 18. For analysis of the subsequent decisions of the High Court (O’Connor J) and the Court of Appeal in Earley, see below in this Chapter. Bergin v Galway Clinic Doughiska Limited [2008] 2 IR 205. Bergin v Galway Clinic Doughiska Limited [2008] 2 IR 205, per Clarke J at 216. Coffey v William Connolly & Sons Limited [2007] IEHC 319. Campus Oil v The Minister for Industry (No 2) [1983] 1 IR 88. Hartnett v Advance Tyre Company Ltd [2013] IEHC 615.

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Redmond on Dismissal Law

[10.15] An important clarification as to the onerous nature of the strong case test was, however, provided in Earley v Health Service Executive,31 where the High Court (Kennedy J) rejected the proposition that the strong case test required the plaintiff to satisfy the court that she would ultimately succeed in securing a permanent injunction. Emphasising that Fennelly J in Maha Lingham had stated that the applicant had to show that he has a strong case that he was likely to succeed ‘at the hearing of the action’, Kennedy J concluded that the application of a test of ‘ultimate success’ would render it ‘difficult to see how any application for an injunction could be successful at the interlocutory stage’.32

[10.16] A primary consideration lies in the degree to which an award of damages would adequately compensate the plaintiff and the defendant for the loss caused by an interlocutory decision to refuse or grant an injunction respectively which proves, on a full consideration of the merits at the trial, to be incorrect. Where an interlocutory application is successful, the applicant is required to give an undertaking as to damages should the claim not succeed at the trial of the action. The court must be satisfied, as O’Higgins J put it in Garrahy v Bord na gCon,33 not that damages are an adequate remedy but that ‘there is doubt as to whether damages would be an adequate remedy’. [10.17] Where damages are an adequate remedy, an injunction will be refused.34 However, where quantification of damages is uncertain or complex, damages may not be adequate.35 The court’s discretion may also be influenced by the way in which either plaintiff or defendant have conducted themselves where there is sufficient connection between the inequitable conduct and the matters at issue in the proceedings. In employment law, the extent to which trust and confidence still exists in fact between employer and employee will also be an important factor.36 It relates to a further critical question, namely, whether the order sought would be workable or legally available at the trial of the action. 31

32 33

34 35 36

Earley v Health Service Executive [2015] IEHC 520. The substantive judgment of the Court of Appeal in Earley is considered below. Earley v Health Service Executive [2015] IEHC 520, per Kennedy J at 20. Garrahy v Bord na gCon [2003] ELR 274. In Ferris v Ward [1998] 2 IR 194 at 202 Blayney J had said: ‘It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both that the question of the balance of convenience arises.’ As in Ryanair Ltd v Aer Rianta cpt (25 January 2001) HC, Kelly J. Yeates v Minister for Posts and Telegraphs [1978] ILRM 22 at 24 per Kenny J. A point emphasised by the High Court (Irvine J) in Stoskus v Goode Concrete [2007] IEHC 432. Note, however, the comments of the High Court (Barrett J) in Boyle v An Post [2015] IEHC 589 at para 20 in response to an employer’s averment on affidavit that it had no confidence in the plaintiff: ‘On a general note, the court would observe that employers ought to be careful before they claim in court, or allow their advisors to so claim, that they have no confidence in a particular individual. No confidence? None? It is a very powerful assertion to make, and not one that ought lightly to be made. We all make mistakes; if and when we do it is well for those in a position of authority to remember Lincoln’s adage that “mercy bears richer fruits than strict justice”.’

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[10.20]

[10.18] In some circumstances, a full consideration of the merits of the plaintiff’s claim is justified at the interlocutory stage. In the employment context an important exception to the Cyanamid principles emerged in NWL Ltd v Woods.37 The House of Lords held that where the interlocutory decision will effectively dispose of the dispute between the parties because, for example, both are likely in practice to accept the decision as final, the correct approach is to consider the evidence in full at the interlocutory hearing and decide the question of the plaintiff’s entitlement to an injunction on the merits. Typically this exception would operate in an industrial conflict situation rather than an individual employment one. [10.19] It was argued in Garrahy v Bord na gCon38 that a different threshold for the obtaining of interlocutory relief applies against public bodies.39 O’Higgins J was not willing to endorse a general principle to that effect: ‘Clearly … the public interest might require different considerations when the balance of convenience is taken into account … Even if a higher standard were required to obtain interlocutory relief against public bodies exercising their public functions, it is by no means certain that this would apply to all the functions ancillary to their main function as is the case here.’40

Regarding the balance of convenience the judge referred to May LJ in Cayne v Global Natural Resources41 who called it ‘the balance of the risk of doing an injustice’. The only hindrance to the defendant if they were to win would be ‘in getting on about their business and doing the business which they are charged by statute with doing’.

D.

EXCEPTIONS TO THE GENERAL RULE EMERGE IN THE UK

[10.20] Proof that the so-called rule concerning refusal of specific performance is not absolute emerged in Hill v CA Parsons Ltd,42 a case which was described as ‘highly exceptional’.43 In Hill a majority in the Court of Appeal granted an interlocutory injunction restraining an employer from dismissing an employee who was within two years of retirement after 30 years’ service. The case concerned enforcement of a ‘closed shop’ agreement with a trade union. The plaintiff failed to comply with a direction from his employer to become a member of a nominated trade union and was dismissed. Mutual confidence still existed between the parties and damages would not have been an adequate remedy, particularly in view of the fact that the Industrial Relations Act 1971, which gave employees the right not to be unfairly dismissed in the circumstances, was 37 38 39 40 41 42

43

NWL Ltd v Woods [1979] IRLR 321. Garrahy v Bord na gCon [2003] ELR 274. Relying on Smith & Others v Inner London Education Authority [1978] 1 All ER 411. Garrahy v Bord na gCon [2003] ELR 274 per O’Higgins J at 287–288. Cayne v Global Natural Resources [1984] 1 All ER 225 at 237. Hill v CA Parsons Ltd [1972] Ch 305. See comments by Freedland (1972) 1 ILJ 37, Howells (1972) 35 MLR 310 and Hepple (1972) 30 CLJ 47. Soon afterwards, in Chappell v Times Newspapers Ltd [1975] ICR 145. It was also described as ‘unusual, if not unique’ by Sir John Donaldson in Sanders v Ernest A Neale Ltd [1974] ICR 565 at 571.

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shortly to come into force.44 The majority of the court was required to, and did, deny the absolute standing of the rule of equity against injunctions of this kind. Lord Denning MR stated: ‘It may be said that by granting an injunction in such a case, the court is indirectly enforcing specifically a contract for personal services. So be it.’45

For over a decade, Hill v Parsons intruded only very slightly upon the established attitude of the courts towards compulsory reinstatement.

[10.21] Gradually, however, the reluctance of the courts began to change. In Jones v Lee and Guilding46 and in Gunton v Richmond upon Thames LBC,47 a head teacher and a college registrar, respectively, restrained their dismissals by reason of the employers’ failure to comply with their own disciplinary procedures. In the latter case, Buckley LJ said that: ‘The adoption of the disciplinary regulations and their consequent incorporation into the plaintiff’s contract of service did disable the Council from dismissing the plaintiff on disciplinary grounds until the procedure prescribed by these regulations had been carried out.’48

The plaintiffs’ allegedly infringed rights lay in the incorporation into their contracts of employment of the respective employer’s disciplinary procedures.

[10.22] Similarly in Irani v Southampton and South West Hampshire Health Authority49 Warner J in the High Court granted an injunction restraining dismissal where the employer had failed to follow the disputes procedure laid down in a joint trade union/ management agreement incorporated into the employee’s contract of employment. There was still trust and confidence between the parties.

[10.23] The plaintiff in Powell v London Borough of Brent50 had been selected for promotion to a post as principal benefits officer (policy and training). At the same time one of the other candidates submitted a grievance concerning his unsuccessful application. The Council took the view that the selection procedure might have been in breach of its equal opportunity code of practice. The plaintiff was informed that it was not possible to appoint her. Later it was decided to re-advertise the post. She sought an interlocutory injunction to restrain the Council from advertising the post and requiring it 44

45 46 47 48 49 50

The Act did not give an unfairly dismissed employee any legal right to reinstatement. It simply provided for a tribunal to recommend re-engagement, or, otherwise compensation. Hill v CA Parsons Ltd [1972] Ch 305 at 315A. Jones v Lee and Guilding [1980] ICR 310. Gunton v Richmond upon Thames LBC [1980] ICR 755. Gunton v Richmond upon Thames LBC [1980] ICR 755 per Buckley LJ at 765. Irani v Southampton and South West Hampshire Health Authority [1985] IRLR 203. Powell v London Borough of Brent [1988] ICR 176. For an interesting recent example of the Irish courts emphasising the importance of trust and confidence in this area see Earley v Health Service Executive [2017] IECA 157 where the Court of Appeal, reversing the High Court, held that there was no basis for implying into the plaintiff’s contract of employment a power on the part of the employer to re-assign the plaintiff to other duties. The Court of Appeal went on to grant a mandatory injunction requiring the HSE to restore the plaintiff back into her post: Earley v Health Service Executive (No 2) [2017] IECA 207.

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[10.27]

to treat her as if she were properly employed by them in the post. Knox J refused this in the Chancery Division but the Court of Appeal51 allowed the appeal and granted the injunction on the basis that sufficiency of confidence existed between the parties. Ralph Gibson LJ said: ‘Sufficiency of confidence must be judged by reference to the circumstances of the case, including the nature of the work, the people with whom the work must be done and the likely effect upon the employer and the employer’s operations if the employer is required by injunction to suffer the plaintiff to continue in the work.’52

[10.24] The need for mutual trust and confidence was criticised by the High Court as ‘far too sweeping’ in Robb v London Borough of Hammersmith and Fulham.53 The plaintiff was employed as the Borough’s director of finance. The Council invoked its disciplinary procedure on grounds relating to capability. He sought an injunction restraining the employer from giving effect to the purported dismissal until the contractual disciplinary procedures had been complied with. The injunction was granted notwithstanding that the employer had lost trust and confidence in the plaintiff’s capability to perform his job, in circumstances in which the dismissal was conceded to be in breach of contract. The injunction required the employer to treat the plaintiff as suspended on full pay until the contractual disciplinary procedure had been complied with.

[10.25] The defendant argued that, unless trust and confidence between employer and employee remain, an injunction to preserve the contract of employment should never be granted. Morland J described the submission as: ‘ ... far too sweeping. See, for example, Jones v Lee.54 That was the case of the Roman Catholic head teacher who was granted an injunction giving him a hearing, provided by his contract of employment, before dismissal. The Court of Appeal does not appear to have been inhibited from granting the injunction although the managers of the school must have lost trust and confidence in Mr Jones ... In my judgment ... the all important criterion is whether the order sought is workable.’55

[10.26] The plaintiff had not sought reinstatement so that he could actually perform his duties and responsibilities. He had sought an order to restore his position as it was before the defendant unilaterally aborted the disciplinary procedure and unlawfully terminated his contract. Trust and confidence in the plaintiff’s ability to do the job had no relevance to the workability of the disciplinary procedure as ordered by the court. [10.27] An employer’s redundancy selection procedure is capable of incorporation into individual contracts of employment so that a breach of same may ground an application 51 52 53

54 55

Ralph Gibson and Nicholls LJJ and Sir Roger Ormrod. Powell v London Borough of Brent [1988] ICR 176 per Ralph Gibson LJ at 194. Robb v London Borough of Hammersmith and Fulham [1991] ICR 514; see Ali v Southwark London Borough Council [1988] ICR 567 (court should not interfere to prevent a domestic tribunal from hearing and adjudicating a matter unless the court is satisfied that no reasonable tribunal acting bona fide could possibly uphold the disciplinary charge against the plaintiff). Jones v Lee [1980] IRLR 67. Robb v London Borough of Hammersmith and Fulham [1991] ICR 514 per Morland J at 520.

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for injunctive relief. Anderson v Pringle of Scotland Ltd56 involved a successful application for an injunction to restrain a private sector employer from dismissing an employee in breach of the terms of a redundancy selection procedure. The redundancy agreement stipulated that selection would be based on seniority. When a redundancy situation developed, however, the employer proposed to operate different criteria which would have entailed the dismissal of the plaintiff, unlike selection on grounds of seniority. The Outer House of the Court of Session found that the redundancy agreement was incorporated into the plaintiff’s contract of employment: ‘In the contemporary world, where even reinstatement is a less inconceivable remedy, intervention before dismissal must in my view be seen as a matter of discretion, rather than an impossibility. If there were any question of mistrust, the position would no doubt be very different; but at least on the material before me, I am not persuaded that there is any true analogy between the respondents’ preference for other employees and the need for confidence which is inherent in the employer/employee relationship.’57

The balance of convenience favoured maintaining the status quo.

[10.28] Anderson seemed likely to herald further actions by employees attempting to secure court orders restraining threatened wrongful dismissal or other fundamental breaches of contract by the employer. Regarding wrongful dismissal, however, the House of Lords purportedly stemmed such a tide in the landmark case of Johnson v Unisys Ltd.58 The main legacy of Johnson is uncertainty, however, and it is regrettable that it has influenced the law thus far in Ireland. Johnson is fully discussed in Chapter 5. More recently, the highly restrictive majority decision of the United Kingdom Supreme Court in Edwards v Chesterfield Royal Hospital NHS Foundation Trust59 has, if anything, arguably spurred the courts into reinvigorating the applicability of injunctive reliefs in appropriate circumstances.60

Common characteristics [10.29] The decisions just considered can be said to share some characteristics notwithstanding that they concern issues as diverse as failure to comply with contractual disciplinary procedures, disputes concerning appointment, instructions to carry out 56

57 58 59 60

Anderson v Pringle of Scotland Ltd [1998] IRLR 64; [1998] SLT 754. Anderson was followed by the Court of Session in Peace v City Edinburgh Council [1997] IRLR 417 (employee entitled to seek order restraining employer from proceeding in disciplinary procedures where employer allegedly proposing to use a different disciplinary procedure from that in contract). Cf Alexander and Others v Standard Telephones & Cables Ltd [1990] IRLR 55 where the High Court refused injunctions to restrain the employers from dismissing for redundancy without going through a selection procedure in accordance with a collective agreement. ‘Sufficiency of confidence’ was lacking and the employers wished to retain those members of the workforce most suitable for the available jobs. Anderson v Pringle of Scotland Ltd [1998] SLT 754, per Lord Prosser at 756. Johnson v Unisys Ltd [2001] ICR 480. Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58. Clear evidence of this response can, it is submitted, be found in the decision of the United Kingdom Supreme Court in West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, analysed by Cabrelli (2016) 45 ILJ 207. See also Yapp v FCO [2015] IRLR 112; and AlMishab v Milton Keynes NHS Foundation Trust [2015] EWHC 3096 (QB).

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extra work and breach of redundancy selection procedures. The common characteristics are that: •

the employer was a public body in all cases except Hill v Parsons and Anderson v Pringle; and

•

in all cases save Hill v Parsons the court was being asked to restrain a contractual limitation, whether procedural or substantive, on the employer’s power of dismissal.

Freedland describes these shared characteristics and makes the crucial observation about Hill v Parsons61 that: ‘… the underlying point was that the employing entity was acting as proxy defendant for the trade union with which it had made a closed shop agreement, and those judges felt that the real defendant was seeking to pre-empt the impending statutory regulation of its oppressive practices.’

Thus viewed, the case could be said to concern the public or civil rights of the employee.

E.

DEVELOPING JURISPRUDENCE IN IRELAND

[10.30] Although they evoke surprise, if not unease, in some quarters, the authorities in Ireland illustrate that whilst the remedies of injunction and/or specific performance of contracts of employment are limited, they remain potentially powerful remedies in the arsenal of employees.62 As the Court of Appeal observed in a leading 2017 decision in which it granted mandatory injunctive relief restoring the plaintiff back into her post, ‘[t]he underlying principle is … that the courts should ensure, where possible, that an effective – and not simply a theoretical – remedy should be available in employment cases where a clear breach of contract has been established’.63 It will be seen, however, that the principles on which an injunction may be granted do not necessitate constant supervision nor do they impact on the running of the employer’s business to any significant extent.64 There is no ‘Holy Grail’ to be found in Irish case law, no single unifying principle in employment injunction cases. Given the discretionary nature of the remedy, such a quest would prove fruitless. As in UK law, however, common characteristics have emerged in this jurisdiction over the last 30 years.65 It goes without saying that, where interlocutory injunctions have been granted, damages were found not 61 62

63 64

65

Freedland, The Personal Employment Contract (OUP, 2005) at 373. See Kirwan and Mallon, ‘Injunction’ in Murphy and Regan (eds), Employment Law (2nd edn, Bloomsbury Professional, 2017) Ch 29. Earley v Health Service Executive (No 2) [2017] IECA 207 per Hogan J at 16. See Delany, ‘Case and Comment: Employment Injunctions: The Role of Mutual Trust and Confidence’ (2006) 28 DULJ 363. Judges who have attempted broad brush classifications of principles include Fennelly J in Maha Lingham v Health Service Executive [2006] ELR 137; and Clarke J (in the High Court) in Yap v Children’s University Hospital Temple St Ltd [2006] 4 IR 298 and in Cahill v Dublin City University [2010] ELR 109.

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to have been an adequate remedy and/or the balance of convenience did not favour the plaintiff.

COMMON CHARACTERISTICS WHERE INJUNCTIONS GRANTED [10.31] Irish cases in which interlocutory injunctions have been granted against employing entities share one or more of the following characteristics: • •

the employer is a public body; and/or there are alleged contractual limitations on discipline and/or dismissal, procedural or substantive, express or implied.

[10.32] The characteristics described above are illustrated in the sections which follow where the diverse issues have concerned: (1) (2) (3)

alleged breach of a substantive limitation regarding termination in the contract; dismissal of office-holders with contracts of employment; alleged breach of procedural limitation in the contract and/or of implied term of fairness.

(1) Alleged breach of a substantive limitation regarding termination in the contract [10.33] Fennelly v Assicurazioni Generali SpA66 was the first case in this jurisdiction to mark a departure from the traditional approach of the courts regarding applications for injunctions. The plaintiff had given up a permanent pensionable post in the Garda Síochána at the instance of the defendant company in return for what he argued was an unusual contract of employment of 12 years’ duration. The defendant contended that it had been forced to terminate his employment by reason of a downturn in business, although both parties continued to have high regard for each other. Costello J, delivering his judgment ex tempore, granted an interlocutory injunction on terms, not of reinstatement, but that the defendant would continue to pay the plaintiff his salary67 and bonus until the trial of the action, and that the plaintiff should be prepared to carry out such duties as were requested of him, recognising, however, that the defendant might 66

Fennelly v Assicurazioni Generali SpA (1985) 3 ILT (ns) 73. See Mallon and Bolger, ‘Injuncting the Contract of Employment’ (1997) 3 Bar Rev 113. Contrast the earlier case of Yeates v Minister for Posts and Telegraphs [1978] ILRM 22 in which the High Court refused an injunction on traditional grounds. A change in work practices following amalgamation of two companies may give rise to an alleged breach of existing terms and conditions of employment and in turn may be potential forerunners to allegations of constructive dismissal: see Harkins v Shannon Foynes Port Company [2001] ELR 75; similarly Evans v IRFB Services (Ireland) Ltd [2005] IEHC 107. Harkins was considered in Garrahy v Bord na gCon [2003] ELR 274 where the defendant argued that the plaintiff was seeking a quia timet injunction which placed a higher onus on him. O’Higgins J (following Geoghegan J in Szabo v Esat Digifone Ltd [1998] 2 ILRM 102) was firm that there is no difference in the principles to be applied in the case of a quia timet injunction. Garrahy was followed in Becker v St. Dominic’s Secondary School [2005] 1 IR 561; Evans v IRFB Services (Ireland) Ltd [2005] 2 ILRM 358; Fanning v Public Appointments Service [2015] IEHC 663.

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prefer not to give him any duties but to put him on leave of absence (this became known as the ‘Fennelly order’). In the course of his judgment Costello J said: ‘I agree that in approaching the question of interlocutory relief I should approach the case on the basis that the courts have laid down as a general principle, that they will not give specific performance of an employment contract, but this general principle is subject to exceptions and it has recently been subject to an exception in the well known case of Hill v Parsons Ltd ... [t]he plaintiff will be left without a salary and nothing to live on. The situation in which he finds himself would be little short of disastrous. It seems to me in that situation that the balance of convenience is in the plaintiff’s favour. He should not be left in the situation between now and the action in which he would be virtually destitute with a prospect of damages at the action. This seems an unjust situation.’68

Costello J accepted that the court should not require an employer to take on an employee where serious difficulties have arisen between them or where there is no work for the employee but in the case before him: ‘the parties have obviously the highest regard for one another’. The alleged fixed-term contract was for 12 years. The employer not only stated that no contract existed but also that there was no evidence of a note or memorandum in writing to support the existence of a contract as required by s 2 of the Statute of Frauds Act 1695.

[10.34] In Lonergan v Salter-Townshend, Irish Council for People with Disabilities and Minister for Justice, Equality and Law Reform69 the plaintiff sought to restrain the defendant from terminating his employment. He claimed he had been employed by the second defendant (the Council) as its chief executive officer and that he had been dismissed from that position. The relief sought was granted: among the fair issues to be tried were whether the plaintiff was employed pursuant to a contract of employment or of consultancy, whether the plaintiff was on probation and whether the status of the respondent as an unincorporated body prevented the invocation of the rules of natural and constitutional justice. 67

68 69

As to what might happen if the plaintiff is ill (irrespective of the issues) see Mullarkey v The Irish National Stud Ltd [2004] ELR 172, where the plaintiff was sick from work due to alleged harassment and bullying by the defendant. The High Court refused an order paying him in full until trial of the action but found there was a fair case as to the existence of an implied term to be paid while sick in the contractual arrangements between the parties. Mullarkey was cited as the ‘closest analogy’ to the facts in Yap v Children’s University Hospital Temple St Ltd [2006] 4 IR 298 where the plaintiff was refused an interlocutory injunction requiring the defendant to pay her salary and associated benefits pending trial and also relevant pension contributions. The plaintiff had not returned to work, alleging that the circumstances in which she would be required to work were she to return would not be proper. See also Keenan v Iarnród Éireann [2010] IEHC 15. Fennelly v Assicurazioni Generali SpA (1985) 3 ILT (ns) 73 per Costello J at 74. Lonergan v Salter-Townshend, Irish Council for People with Disabilities and Minister for Justice, Equality and Law Reform [2000] ELR 15. The employment status of the plaintiff after his last contract had expired was found to constitute a serious question to be tried in O’Donnell v Chief State Solicitor, Ireland and the Attorney General [2003] ELR 268. Similarly, an issue as to the correct notice arose in Cahill v Dublin City University [2010] ELR 109.

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(2) Dismissal of office-holders with contracts of employment70 [10.35] While the Superior Courts are not always71 explicit about it in the cases which follow, the public law setting for the plaintiffs was self-evidently significant. In the case of executives who are also directors, for instance, regard must be had to both employment law and to the provisions of the Companies Acts. A director may also be a shareholder. A director shareholder may in some cases have a remedy under the Companies Acts. Depending on the circumstances third party notifications to regulators may be required.

[10.36] In Shortt v Data Packaging Ltd72 the plaintiff sought an interlocutory injunction restraining his dismissal for redundancy as managing director of the defendant company. An office-holder as well as a contract employee, he argued that his purported removal by virtue of an alleged redundancy was spurious and unsubstantiated, and alleged that the real reason lay in differences between himself and his employer. Keane J held in an ex tempore judgment that the plaintiff was entitled to an interlocutory injunction restraining the defendant from implementing the purported termination of his appointment as managing director, and he made an order ‘largely in the form of the order made by Costello J in the Fennelly case’ (para [10.33]). In the course of his judgment, Keane J said: ‘I am satisfied that damages are not an adequate remedy where the plaintiff will have to await the trial of the action in circumstances where he is totally without remuneration, and where a trial will inevitably be some time away.’73

[10.37] Costello J summarised the law in Phelan v BIC (Ireland) Ltd, Biro BIC Ltd, Société BIC SA and Robert MacDonald:74 ‘There is a general principle that the courts do not grant injunctions in cases of termination of contracts of employment on the principle in the old law reports and text books that a contract of employment is a contract of personal service. But there has been a strong body of judgments and authorities that this old rule should be subject to qualifications and in a number of cases the courts have granted interlocutory relief where it was in the interests of justice to do so.’

In the case before him, damages were ‘not an adequate remedy’. Nor was it a case in which the plaintiff was destitute as in Fennelly. The plaintiff had given many years’ service to the first defendant and was its managing director. His appointment as managing director and therefore as employee was terminated by resolution of the 70

71

72

73 74

The cases in this section also concerned reasons (cause) for termination whether given by the employer or arising out of disciplinary proceedings. See, too, para [3.36]. With some exceptions – note, for example, the express reference by the Court of Appeal (Hogan J) to the public sector status of the defendant employer in Earley v Health Service Executive (No. 2) [2017] IECA 207, per Hogan J at 13. Shortt v Data Packaging Ltd [1994] ELR 251. See Fanning v UCC [2005] IEHC 264 where the appointment was governed by NUI Statute 86 (1951) and any statutes or charters made pursuant thereto. Shortt v Data Packaging Ltd [1994] ELR 251, per Keane J at 255–256. Phelan v BIC (Ireland) Ltd, Biro BIC Ltd, Société BIC SA and Robert MacDonald [1997] ELR 208 at 211–212. See similarly Moore v Xnet Information Systems Ltd and Others [2002] ELR 65.

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[10.41]

directors. He was given two months’ salary in lieu of notice. In granting the interlocutory injunction the judge commented: ‘If [the plaintiff] succeeds the damages would be very great. He is entitled to exemplary damages because of the nature of his dismissal. The dismissal on the facts is prima facie invalid. The dismissal was summary … At the hearing, if the case is established, the judge may not grant damages as it is not adequate compensation but would allow the plaintiff to stay on as managing director.’75

Costello J reiterated the principle often repeated in later cases that the rules of natural justice must be complied with where an employee is dismissed for misconduct.76

[10.38] There was a ‘very considerable’ dispute on a large number of issues, evident in the ‘very considerable’ amount of affidavit evidence in Boland v Phoenix Shannon plc77 where the plaintiff had been operations director and vice-president of the defendant until his dismissal. Barron J summarised as follows: ‘Essentially, the defendant accuses the plaintiff of dishonesty and financial irregularity while the plaintiff accuses those now in control of the defendant company of a conspiracy to seize control of the company. The company makes the case that the plaintiff deliberately under-estimated the company’s losses so as to hide his own financial irregularities. The plaintiff replies that he acted on information supplied to him ...’78

[10.39] The plaintiff had been suspended on full pay in accordance with the terms of his contract prior to dismissal. He submitted, inter alia, that the procedures leading to his dismissal were totally unfair. The judge held that there was a fair issue to be tried: ‘Whether there were grounds for dismissal of the plaintiff; whether the executive committee was entitled to dismiss the plaintiff, assuming grounds existed; and whether the procedures leading up to that dismissal were fair.’79

It seemed to the judge that ‘the balance of hardships’ lay in favour of the plaintiff. Damages would not be an adequate remedy. The court made a Fennelly order.

[10.40] In Harte v Kelly, Anderson and HKC Ltd80 the entire issued share capital of the third defendant company was beneficially owned by the plaintiff and the first defendant. Immediately prior to the board meetings of March 1997, which gave rise to the dispute between the parties, there were three directors of the company: the plaintiff, the first defendant and the second defendant.

[10.41] The plaintiff contended that he was wrongfully dismissed from his employment with the company. The defendants contended, inter alia, that it had been resolved to convene an extraordinary general meeting of the company to consider the plaintiff’s 75

76

77

78 79 80

Phelan v BIC (Ireland) Ltd, Biro BIC Ltd, Société BIC SA and Robert MacDonald [1997] ELR 208 at 212. Hickey v Eastern Health Board [1991] 1 IR 208. In the case before the court there was no allegation of misconduct by the plaintiff. See also Philpott v Ogilvy and Mather Ltd [2000] 3 IR 206; Moore v Xnet Information Systems Ltd [2002] 4 IR 362. Boland v Phoenix Shannon plc [1997] ELR 113. See similarly Burke v Independent Colleges Ltd [2011] ELR 169. Boland v Phoenix Shannon plc [1997] ELR 113, per Barron J at 122. Boland v Phoenix Shannon plc [1997] ELR 113 at 123. Harte v Kelly, Anderson and HKC Ltd [1997] ELR 125.

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position as a director of the company. The plaintiff received a substantial sum per month net of tax from the company for his share of royalty payments in respect of the use of patents by the company which were owned by the plaintiff and the first defendant jointly. In the High Court, Laffoy J’s view was that: ‘... the entitlement to the type of order granted in the Fennelly case is not limited to a situation in which the plaintiff can establish that he will face penury if such an order is not made.’81

It seemed to Laffoy J that it would be ‘unjust’ to leave the plaintiff without approximately half his net income pending the trial of the action. Accordingly, she made a Fennelly order. In determining whether the balance of convenience lay in re-involving the plaintiff in the management of the company, Laffoy J found there was a broader interest to be considered than merely the interest of the owners of the equity in the company. The interest of the employees and of the creditors of the company had also to be considered. On the evidence, she did not think it was in ‘the broader interest’ to reinvolve the plaintiff in the management of the company.

(3) Alleged breach of a procedural limitation in the contract and/or of implied term of fairness82 [10.42] Chapter 5 dealt with breach of an implied term of fairness and it will be recalled how this right, founded in natural and constitutional justice, may be invoked by employees as well as by office-holders. The significance of its constitutional roots cannot be overestimated, touching issues such as whether damages can be an adequate remedy for breach, the difficulties associated with contracting out of the right and the appropriateness of the remedy. Typically in cases alleging procedural breach a plaintiff will not be seeking reinstatement so that he can perform his duties and responsibilities. It will more likely be an order to restore the position as it was before the alleged breach, perhaps requiring the employer to treat the plaintiff as suspended on full pay until the contractual disciplinary procedure is complied with. Where dismissal has taken place, a plaintiff who successfully injuncts is likely to obtain a declaration following the trial of the matter pronouncing his dismissal invalid and giving the employing entity the right to recommence the disciplinary procedure. Self-evidently, the employee will not be reinstated. This was the result in Cassidy v Shannon Heritage & Others83 and in Maher v Irish Permanent plc (No 1).84 81 82

83 84

Harte v Kelly, Anderson and HKC Ltd [1997] ELR 125 per Laffoy J at 130. Whether or not the defendant was obliged to observe fair procedures when considering the determination of the plaintiff’s role as a Head of Department at UCC, a role the University contended did not involve employment was among the fair issues to be tried in Howard v University College Cork [2001] ELR 8. If a fair issue is established that the disciplinary process amounts to a sham, an injunction will be granted: Goss v Ryanair (28 February 2005) HC. Cassidy v Shannon Heritage & Others [2000] ELR 248. Maher v Irish Permanent plc (No 1) [1998] ELR 77.

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[10.45]

[10.43] As regards attempts at injuncting a disciplinary process on the grounds of a breach of fair procedures, analysed below, it is helpful to keep in mind the cautionary observation of Clarke J in Rowland v An Post,85 where he stated that: ‘If, at every stage of a disciplinary process, a party could secure an interlocutory injunction if there was even an argument about whether the procedures adopted were permissible, the practical consequences for any effective disciplinary process would be obvious.’

[10.44] The High Court was asked to injunct the dismissal of a radio presenter in Courtenay v Radio 2000 Ltd t/a Classic Hits 98FM.86 He was suspended on full pay and he denied the charge against him. In the High Court he sought, inter alia, an injunction restraining the defendant from terminating his contract of employment. He contended that his purported dismissal was in breach of fair procedures and natural and constitutional justice. The plaintiff relied on a line of authorities commencing with Fennelly. The defendant stressed that such cases were exceptional and that the plaintiff lay outside their ambit; the judge disagreed: ‘It seems to me that the plaintiff does come within the principles deduced from the Fennelly case and the subsequent cases in which that principle was applied, which, in my view, is that relief should be granted if it would perpetrate an injustice to leave a person who alleges that he has been wrongfully dismissed without his salary, and only with the prospect of an award of damages at the trial of the action, pending the trial of the action.’87

Laffoy J found that the balance of convenience lay in favour of granting an injunction restraining the defendant from implementing the purported dismissal until the trial of the action.

[10.45] In O’Malley v Aravon School Ltd88 the plaintiff had originally been appointed joint principal of the defendant school with her husband and subsequently was appointed sole principal. The employer became concerned at the manner in which the terms of the agreement were being implemented and put its concerns to the plaintiff. She was invited to a meeting and, as Costello P (High Court) put it, ‘careful consideration’ was given to her answers. Her employment was terminated consequent to the meeting. Costello P refused to grant interlocutory relief to restrain her dismissal as school principal: ‘This is a case of a school where the Board of Governors have lost confidence in the principal ...’.

The employer had communicated its grounds for dissatisfaction to the principal, she had been given an opportunity to respond and her response had been carefully considered. Moreover Costello P seemed to be influenced by his belief that the trial judge would not be prepared to grant a permanent injunction. He therefore felt it inappropriate to grant interim injunctive relief.89 85 86 87 88 89

Rowland v An Post [2017] IESC 20 at para 2.3. Courtenay v Radio 2000 Ltd t/a Classic Hits 98FM [1997] ELR 198. Courtenay v Radio 2000 Ltd t/a Classic Hits 98FM [1997] ELR 198, per Laffoy J at 202. O’Malley v Aravon School Ltd (13 August 1997) HC. See the UK case of Robb v Hammersmith and Fulham London Borough Council [1991] ICR 514, where, analogously, the High Court regarded ‘the all important criterion [as] whether the order sought is workable’ (per Morland J at 520).

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[10.46] In Maher v Irish Permanent plc (No 1)90 the plaintiff branch manager (the manager) of the defendant was suspended, without loss of pay or benefits, pending the outcome of an investigation by the defendant into allegations of sexual harassment. Following an investigation, the manager was notified of the employer’s decision to dismiss him, but was advised that the decision would not be finalised for a week, thus allowing him time to make representations as to why the decision should not be implemented. The manager sought to restrain the employer from taking any further steps to terminate his employment. He also sought an order reinstating him to his position as branch manager of the defendant. It was not contested that the employer’s disciplinary procedure formed part of the manager’s terms of employment. The manager claimed that every stage of the procedure initiated by the employer was tainted with unfairness. [10.47] Laffoy J granted the relief sought. ‘Having regard to the multiplicity of the allegations against the plaintiff and the diverse nature of those allegations and, in particular, having regard to the significance of credibility in determining whether the allegations of sexual harassment were wellfounded, in my view, the plaintiff was entitled to be furnished with copies of the statements made by the staff members in advance of the hearing and he was entitled to be legally represented at the hearing.’91

The defendant by order was restrained from taking any further steps to terminate the plaintiff’s employment with the defendant, save in accordance with the defendant’s disciplinary procedures and the principles of natural justice.

[10.48] In a second set of proceedings by way of plenary summons shortly afterwards, Maher v Irish Permanent Plc (No 2),92 Costello P held that the defendant was not restrained by the principles of natural justice or its own disciplinary code from taking into account earlier allegations relating to the manager’s conduct nor from allowing procedures at the hearing which might permit hearsay evidence. Costello P gave93 a salutary reminder from the words of Henchy J: ‘Tribunals exercising quasi-judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures and the like-but they may not act in such a way as to imperil a fair hearing or a fair result.’94

The President observed per curiam that should the plaintiff fail to show up at the disciplinary hearing, either alone or with his representatives, or should the representatives appear alone the hearing should proceed nonetheless. 90

91 92

93 94

Maher v Irish Permanent plc (No 1) [1998] ELR 77. On holding suspensions generally see Ch 8. Maher v Irish Permanent plc (No 1) [1998] ELR 77, per Laffoy J at 88. Maher v Irish Permanent Plc (No 2) [1998] ELR 89. In Carroll v Bus Átha Cliath [2005] 4 IR 184 the High Court (Clarke J) granted an interlocutory injunction restraining the employer from holding an appeal unless certain conditions were satisfied (a failure to observe natural and constitutional justice at first instance cannot be ‘cured’ on appeal unless the appeal constitutes a fresh hearing). Maher v Irish Permanent Plc (No 2) [1998] ELR 89, at 93. Kiely v Minister for Social Welfare [1977] IR 267 at 281 per Henchy J.

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[10.52]

[10.49] The court’s pragmatic approach in Maher (No 2) is to be welcomed. In-house disciplinary proceedings are not the same as judicial hearings. As Fennelly J put it in the later case of Traynor v Ryan:95 ‘… cases such as the present exemplify a regrettable tendency in some employment cases to treat procedural safeguards as the real battlefield in preference to facing the substance of complaints in accordance with an agreed procedure. The consequence of such procedural skirmishing is, all too often, to increase costs and delay resolution.’

[10.50] In Martin v The Nationwide Building Society96 the plaintiff branch manager (the manager) sought interlocutory relief on the basis that he was on suspension too long, that the reasons originally given were not the ones later relied on, and that he had had no opportunity to answer the reasons later sought to be the basis for the suspension. The manager had originally been told the suspension would last five days. He sought an injunction over three months later while still suspended. The High Court (Laffoy J) granted an interim order restraining the defendant from prosecuting the disciplinary enquiry. In seeking interlocutory relief the plaintiff argued that the suspension should not be permitted to continue given, inter alia, the delay involved. The High Court (Macken J) held that the delay in dealing with the complaint was inordinate and unjust and accordingly the suspension had continued for a period which was unfair and improper. The implied obligation of mutual trust and confidence may be invoked by an applicant in relation to suspension: Gogay para [5.46].

[10.51] If an employer places an employee on suspension pending medical examination (a rare occurrence), the employer’s bona fides become an issue. There may be an implied entitlement on the part of the employer to be concerned as to whether an employee is fit for work. But the entitlement can occur only when the employer is acting bona fide in the interests of the employee concerned and/or also in its own interests to deal properly with any health and safety aspects.

[10.52] In Carroll v Dublin Bus97 the employer instituted proceedings against the employee because, first, he had acted as a representative on behalf of fellow employees when certified medically unfit for work, and second, he had been involved in a protest which it was alleged could have had the effect of damaging the good name and reputation of the company. Clarke J, referring to the disciplinary proceedings that the respondent had put in place, said: ‘It seems to me that a court should be reluctant to intervene, and in particular to intervene at an interlocutory stage, in as yet an incomplete disciplinary process. To do so would be to invite a situation where recourse might well be had to courts at many stages in the course of what would otherwise be a relatively straightforward and expeditious set of disciplinary proceedings. 95

96 97

Traynor v Ryan [2003] 2 IR 564 at 578. This passage was cited and followed by the High Court (Keane J) in O’Connell v Adelaide & Meath Hospital Dublin Incorporating The National Children’s Hospital [2016] IEHC 423 (at para 107). Martin v The Nationwide Building Society [1999] ELR 241. Carroll v Bus Átha Cliath [2005] 4 IR 184. See too Becker v The Board of Management St Dominic’s Secondary School Cabra [2005] 1 IR 561.

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There may, however, be exceptions to that general rule. Where an employer had, in clear and unequivocal terms, indicated that procedures will be followed which would be manifestly unfair there may be circumstances where it is appropriate for the court to intervene at that stage. This will be so, in particular, in cases where the degree of prejudice which the employee concerned would suffer in the event of an adverse finding at the particular stage in the process in respect of which the complaint is made would be great and unlikely to be substantially reversed by a finding of a court made after the process had come to an end.’98

[10.53] A similar approach evincing caution about the circumstances in which a court should intervene in a disciplinary process at investigation stage is discernible in the judgment of the High Court (also a decision of Clarke J) in Minnock v Irish Casing Co Ltd And Stewart99 where Clarke J stated that, ‘…the court will not intervene necessarily in the course of a disciplinary process unless a clear case has been made out that there is a serious risk that the process is sufficiently flawed and incapable of being cured, that it might cause irreparable harm to the plaintiff if the process is permitted to continue’. Clarke J emphasised the point that in the context of ‘pure investigations’ where no findings are made, the rules of natural justice are not applicable and such pure investigations are therefore not a matter in which the courts should interfere.100 [10.54] Minnock was considered in McLoughlin v Setanta Insurance Services Ltd,101 which related to an application for an interlocutory injunction in circumstances where the plaintiff had been suspended pending an investigation into alleged misconduct. In considering one of the affidavits sworn on behalf of the defendant, Laffoy J noted that while the issues relied on by the deponent as justifying the plaintiff’s suspension are ‘unquestionably of very serious import’ for a company such as the defendant’s and require investigation, the affidavit had more the ‘hallmark of a reasoned determination against the plaintiff than merely an outline of why the invocation of the disciplinary process against the plaintiff was necessary’. The various averments made by the deponent ‘point[ed] to conclusions having been reached by [the deponent] as to misconduct on the part of the plaintiff’.

[10.55] The reliefs sought included ‘an injunction restraining the defendant from continuing “any further investigation, inquiry or disciplinary investigation into the alleged conduct” of the plaintiff’ and ‘an injunction preventing the defendant from dismissing the plaintiff or from taking any steps adverse to the plaintiff on foot of “its purported investigation or disciplinary procedure” into the plaintiff’. The key question to be determined by the court was ‘whether the plaintiff has established that there is a fair issue to be tried that her rights would be infringed’ if the proposed investigation were allowed to continue. [10.56] In finding that this was a case in which it was appropriate for the court to intervene at this juncture and restrain the purported investigation in the manner 98 99 100 101

Carroll v Bus Átha Cliath [2005] 4 IR 184, per Clarke J at 189. Minnock v Irish Casing Co Ltd And Stewart [2007] ELR 229. See further Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272. McLoughlin v Setanta Insurance Services Ltd [2011] IEHC 410. See also Wallace v Irish Aviation Authority [2012] ELR 177; and Hartnett v Advance Tyre Company Ltd [2013] IEHC 615.

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proposed, Laffoy J had ‘absolutely no doubt’ that the test set out by Clarke J in Minnock, above, had been met. Certain comments had been made by the defendant that ‘certainly point[ed] to a pre-judgment’ in relation to the plaintiff’s conduct. If these comments represented the defendant’s understanding of what ‘establishing the facts’ means, it must be concluded that it goes beyond a ‘pure investigation’.

[10.57] In granting an injunction limited to restraining the defendant from continuing the proposed investigation, Laffoy J was satisfied that ‘damages would not be an adequate remedy for the plaintiff if she were summarily dismissed on foot of a flawed process’ due to the reputational damage she would suffer. However, Laffoy J held that it ‘is open to the defendant to initiate an alternative investigation in accordance with the plaintiff’s contract incorporating the provisions of the Employee Handbook modified to suit the plaintiff’s position and to proceed to a disciplinary process’. Finally, Laffoy J held that it was also open to the defendant to continue the plaintiff’s suspension until the process is completed. [10.58] The importance of studying carefully the precise terms of a disciplinary policy is dramatically illustrated by the High Court decision in Wallace v Irish Aviation Authority.102 The extraordinary factual background here involved what Hogan J referred to as an ‘unprecedented level of absenteeism’ on the part of the plaintiff employee, who had been absent for some 759 days in the past nine years. Following an additional unexplained absence, her employer commenced a disciplinary hearing and it was ultimately decided that the plaintiff should be dismissed from her employment. The plaintiff sought to appeal this decision internally within the parameters of the process laid down in the defendant’s disciplinary procedure. Pending this appeal, however, the defendant sought to place the plaintiff on administrative leave until the outcome of her appeal of her dismissal was known. It was at this juncture that the plaintiff sought an interlocutory injunction restraining her employer from adopting this course of action, arguing that for it to do so would be in breach of the employer’s disciplinary procedure. This was because the relevant section of the applicable Collective Agreement governing the plaintiff’s employment made reference to no ‘disciplinary action’ being taken pending the outcome of an appeal. Hogan J granted the injunctive relief sought on the basis that the employer had decided to confer such an entitlement onto its employees and could thus hardly then be permitted to ‘look askance’ at the court’s approach of holding the employer to its contractual commitment. The approach in Wallace therefore underlines the need for employees to parse carefully their disciplinary procedures before fixing on any particular course of action.

COMMON CHARACTERISTICS WHERE INJUNCTIONS HAVE NOT BEEN GRANTED

[10.59] Common characteristics in some recent cases where injunction applications have been refused may tentatively be highlighted. In the first category relief was refused where the injunction was sought at a stage where no allegations had (yet) been made against an employee. In the second, injunctions were refused when they were sought to restrain dismissal whether with or without notice, again where no allegations of 102

Wallace v Irish Aviation Authority [2012] IEHC 178, [2012] 2 ILRM 350.

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[10.60]

misconduct or otherwise had been made. (Self-evidently there were no substantive or other limitations on the power to terminate.) Regarding the secondary category, as will be seen, the rationale has in part been based on the general principle that the rationale is that damages are an adequate remedy, reinforced by the fact that an aggrieved employee may also pursue a statutory remedy. These characteristics are illustrated in the following sections where the cases concern: (1) (2)

investigations/reports on the facts; dismissal where no allegations have been made: (i)

dismissal with no or with inadequate notice,

(ii)

dismissal on lawful notice.

(1) Investigations/reports on the facts [10.60] Precisely when injunctive relief is sought in the context of action short of dismissal is crucial if the application is not to be rejected as premature. Disciplinary procedures are sometimes initiated following an investigation and report on the facts. For example, an internal auditor’s report may be a precursor in the financial services industry to disciplinary procedures not least because the issues investigated can be complex. Or a fact-finding report may be compiled by a third party adjudicator in an intra-employee complaint. The general principle is that an employee is not entitled to natural justice in the absence of allegations, for example, of misconduct or incompetence (‘cause’). As the following decisions illustrate, the courts appear to include fact-finding reports within the category of no alleged cause. However, the factfinding report may make conclusions on whether the facts do or do not disclose misconduct and thus trigger disciplinary procedures, often involving immediate precautionary suspension for an employee. Hence, it is suggested, basic fairness of procedures should be accorded to the employee whose conduct is the subject matter of the investigation and report.103 Each case will depend on its own facts as to what fairness may entail. It is a counsel of prudence, moreover, to furnish a copy of the draft factfinding report to the employee and other relevant parties for comments and to attach these, if any, to the final report preceding the employing entity’s decision to commence disciplinary procedures or otherwise. Case law to date has failed to appreciate the potentially devastating consequences for employees of fact-finding reports. The implied duty of mutual trust and confidence might temper the process involved. [10.61] In Foley v Aer Lingus104 the plaintiff chief executive officer (the CEO) of the defendant company was accused of sexual harassment by a fellow director. A committee comprising members of the board of directors of the company was set up to investigate 103 104

See further Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272. Foley v Aer Lingus [2001] ELR 193. See, too, Conway v An Taoiseach and Others (ex tempore, 12 April 2006) HC, where the court described the disciplinary process to be followed as ‘broad and non-technical’. As it was still on-going, and the plaintiff had a right to appeal if the finding was adverse, the judge described the application as ‘premature’; the court would be reluctant to interfere in the absence of strong and compelling evidence. The court also described the application as premature in McEvoy v The Governor and Company of the Bank of Ireland [2006] IEHC 3 (two further appeals existed and the plaintiff’s dismissal was suspended pending the outcome of the first appeal).

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the accusation. A second complaint made by solicitors on behalf of an employee was then received and it was also referred to the committee for investigation. The committee published its findings in relation to the investigation and in its report found that the CEO’s conduct amounted to sexual harassment as defined in the ‘Respect and Dignity in the Workplace’ document of the defendant company.

[10.62] The company appointed a second committee, also comprising members of the board, whose task was to decide what, if any, disciplinary action was warranted. The CEO was suspended with pay pending the outcome of the disciplinary process. He sought to appeal the findings of the first committee. The defendant argued that an appeal did not arise at this time. The CEO then sought interlocutory injunctions restraining the defendant, inter alia, from taking any further step in the disciplinary process against him and from considering any issue concerning him through the means of the second committee other than on the basis of hearing and determining the allegations of sexual harassment against him. [10.63] The company contended there was no right to an appeal in natural justice, under the CEO’s contract of employment or the staff disciplinary rules. The second committee had not reached any decision on any proposed disciplinary action. All that existed was a report with findings of fact. The company further submitted that the CEO’s contract of employment could be terminated on 12 months’ notice or with appropriate payment in lieu, irrespective of disciplinary proceedings. Carroll J refused the reliefs sought as, in her opinion, damages would be an adequate remedy: ‘The traditional relief at common law for unfair [sic] dismissal is a claim for damages and damage to reputation is also compensatable by damages.’105

Damages would be an adequate remedy. Moreover, even if she was wrong in that she held that the balance of convenience lay in favour of refusing the relief sought. The damage to a company left without a CEO indefinitely would far outweigh the potential damage to a CEO employee.106

[10.64] In Morgan v Trinity College, Dublin107 the plaintiff had a dispute with other members of his faculty regarding the appointment of a new member of staff to the faculty. The second defendant, the senior dean, investigated complaints made against the plaintiff by his colleagues and submitted a report to the Board of the College recommending that he be suspended without pay for a period of three months and receive a formal warning. However, under the disciplinary procedures of the College, where the member of staff did not consent to the recommended penalty, the matter had 105 106

107

Foley v Aer Lingus [2001] ELR 193 per Carroll J at 200. Other cases in which the plaintiff’s employment status was critical to refusal of relief are Gee v The Irish Times and the Irish Times Publications Ltd [2000] ELR 249 (financial controller) and O’Brien v Aon Insurance Managers (Dublin) Ltd [2005] IEHC 3 (managing director); Joyce v Health Service Executive [2005] IEHC 174 (Finnegan P) (consultant surgeon – ‘the public interest in the safety and welfare of the patients should be paramount’). Morgan v Trinity College Dublin [2003] 3 IR 157. The judgment contains a useful early discussion of the concept of suspension and it is instructive to re-read the decision in light of later case law such as Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241.

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to be referred to a disciplinary panel for a de novo hearing. In this case there was no such consent and the matter was duly referred to a disciplinary panel under the chairmanship of the third defendant. Before the panel met there was a new allegation regarding the plaintiff and he was suspended with pay with immediate effect pending a hearing of all matters before the disciplinary panel two months later.

[10.65] The plaintiff sought an interlocutory injunction restraining the third defendant from holding a disciplinary hearing on the grounds, inter alia, that he did not have the right to challenge his accusers during the investigation by the second defendant, that there had been a failure on the part of the second defendant to comply with the time limits set out in the disciplinary procedures of the college, and that the suspension should be lifted by reason of its duration and that the reference of additional grounds arising from the second incident was not in accordance with college procedures. The High Court (Kearns J) refused the injunction sought. Among other things he held the suspension was imposed not as a punitive sanction but as a holding operation pending the outcome of inquiry. The relevant procedures involved an enquiry by the senior dean which, in the absence of an agreement by the employee or officer concerned, could not give rise directly to disciplinary sanctions. Unless the employee or officer agreed with the recommendations of the senior dean, a sanction could be imposed only after a hearing before a disciplinary panel. The High Court found that: ‘Crucially [the plaintiff] retained the right of veto over any possible sanction which the second defendant might regard as appropriate. Nothing in [the Senior Dean’s] conclusion or recommendation therefore amounts to a sanction and I am satisfied that the panoply of rights identified in Re Haughey [1971] IR 217 do not arise in those circumstances.’108

[10.66] The plaintiff’s complaints were held to be premature as all matters could have been dealt with fairly before the disciplinary panel. It was inescapable that the plaintiff would come before the disciplinary panel with the taint or degree of prejudice which inevitably arose from the fact that he had been charged and that the senior dean believed the procedure was justified. ‘However, it seems to me that the inevitable consequence of any suggestion that an employee who has been suspended is thereby, and without more, irredeemably prejudiced, and ipso facto cannot then get a fair hearing would mean that there could never be a holding suspension as one of the steps in a disciplinary process.’109

[10.67] Morgan was followed in O’Brien v Aon Insurance Managers (Dublin) Ltd.110 The plaintiff was managing director of the defendant. Following a number of enquiries, an investigation into the conduct of the plaintiff was initiated. He was placed on what he 108 109 110

Morgan v Trinity College Dublin [2003] 3 IR 157 per Kearns J at 175. Morgan v Trinity College Dublin [2003] 3 IR 157 at 171. O’Brien v Aon Insurance Managers (Dublin) Ltd [2005] IEHC 3. In O’Sullivan v Mercy Hospital Cork [2005] IEHC 170, Clarke J distinguished an entirely informal investigation for purposes of ascertaining whether there might be a basis to institute disciplinary procedures from statutory schemes which require decision as to a prima facie case as a prerequisite for formal disciplinary procedures. In Deegan v Minister for Finance [2000] ELR 190 the Supreme Court held where suspension does not amount to disciplinary sanction but is to enable enquiry to be undertaken, rules of natural justice do not apply. Deegan was applied more recently by the High Court (Gilligan J) in Kinsella v Ulster Bank (25 October 2016).

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[10.70]

described as ‘enforced leave’ following decisions by senior officers of the parent companies. Initially he was told to be absent while an internal audit/review was carried out. Then his absence was continued during the investigation into his conduct.

[10.68] The company submitted that the investigation report and the process which led to it was two-phased. There was an initial investigation and if it disclosed sufficient evidence it would be followed by a more formal disciplinary proceeding. Entitlement to natural justice, it was argued, arises only if and when the employer concerned moves to a formal disciplinary process. The High Court (Clarke J) did not think it appropriate to make any order restraining the further conduct of the disciplinary process. ‘Obviously if it does not, ultimately, prove to be the case that that hearing is conducted in accordance with fair procedures then the plaintiff will have his remedy at that stage.’

[10.69] The Supreme Court in O’Ceallaigh v An Bord Altranais111 considered whether natural and constitutional justice applied at the stage of a preliminary enquiry to determine whether there should be a full enquiry by a committee set up by the Minister for Health and Children. Hardiman J said:112 ‘I cannot see, that in the circumstances of this case, the board would have suffered any impairment to its ability to discharge its statutory functions by notification of the complaints [to the plaintiff]. It would have been perfectly entitled to require any answer within a reasonable time … [The plaintiff] was not treated fairly in relation to the Section 38 [of the Nurses Act 1985] decision to hold enquiries.’

(2) The relationship between statutory unfair dismissal and the employment injunction [10.70] It had become commonplace for lawyers during the 1990s to initiate a claim under the Unfair Dismissals Act as well as seeking reliefs in the High Court by the device of careful pleading. How far the circles intersected was unclear before a case reported in 1997 which has had a major impact in this jurisdiction on employment injunctions restraining dismissal: Parsons v Iarnród Éireann.113 Parsons concerned s 15 of the Unfair Dismissals Act 1977 (later to be amended but the amendment does not affect the rationale of the judgment) which provided that: (1) Nothing in this Act, apart from this section, shall prejudice the right of a person to recover damages at common law for wrongful dismissal. (2) Where a recommendation has been made by a rights commissioner in respect of a claim by an employee for redress under this Act or the hearing of a claim by the Tribunal has commenced, the employee shall not be entitled to recover damages at common law for wrongful dismissal in respect of the dismissal concerned. 111

112 113

O’Ceallaigh v An Bord Altranais [2000] 4 IR 54. The public law context of this case was no doubt helpful. See also O’Callaghan v Disciplinary Tribunal [2002] 1 IR 1 and Byrne v Irish Sports Council [2013] IEHC 438. O’Ceallaigh v An Bord Altranais [2000] 4 IR 54 at 130. Parsons v Iarnród Éireann [1997] 2 IR 523. The case is also considered in Ch 25 on Procedural Aspects of Dismissal. See also the comments of Laffoy J in McGrath v Trintech Technologies Ltd [2005] 4 IR 382.

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Redmond on Dismissal Law

The plaintiff sought, inter alia, a declaration that his dismissal was null and void, a mandatory injunction compelling the defendant to reinstate him and damages for wrongful dismissal. He had also applied to the rights commissioner under the Act of 1977.

[10.71] The defendant submitted that the plaintiff had precluded himself from pursuing a remedy at common law. The remedy at common law for wrongful dismissal was damages. If and in so far as the plaintiff was entitled to claim any declarations, these could only be in respect of terms expressed or implied in his contract of employment but the contract of employment had itself been terminated by the dismissal. The contract being a contract of service there could be no method at common law or in equity whereby the court could reconstitute the contract or order the defendant to take the plaintiff back into its employment. The plaintiff maintained the section barred his right to damages at common law but was silent about his other claims at common law or equity which were left intact.

[10.72] The High Court (Carroll J) and the Supreme Court (Barrington J, Hamilton CJ and Lynch J concurring) struck out the claim. Thus Barrington J observed:114 ‘The traditional relief at common law for unfair [sic] dismissal was a claim for damages. The plaintiff may also have been entitled to declarations in certain circumstances such as, for instance, that there was an implied term in his contract entitling him to fair procedures before he was dismissed. But such declarations were in aid of his common law remedy and had no independent existence apart from it. If the plaintiff loses his right to sue for damages at common law the heart is gone out of his claim and there is no other freestanding relief which he can claim at law or in equity.’

The Supreme Court appeared to be taking a strict approach not only to a plaintiff attempting two bites of the cherry but also to bringing free-standing applications for declarations where a remedy was being sought under the statute. Significantly it said: ‘What the Unfair Dismissals Act 1977 does is to give the worker who feels he has been unfairly dismissed an additional remedy which may carry with it the very far-reaching relief of reinstatement in his previous employment. It does not limit the workers’ rights; it extends them.’115

[10.73] Parsons was to make the courts wary of a plaintiff who in bringing an application for injunctive relief was in effect by that means seeking to obtain relief for unfair dismissal. The effect of this is vividly shown in the later decision of the High Court (Laffoy J) in Nolan v Emo Oil Services Ltd116 and several later cases,117 which will now be analysed. 114 115 116 117

Parsons v Iarnród Éireann [1997] 2 IR 523 at 529–530. Parsons v Iarnród Éireann [1997] 2 IR 523, at 529. Nolan v Emo Oil Services Ltd [2009] ELR 122. Examples include Mc Grath v Athlone Institute of Technology [2011] IEHC 254; O Domhnaill v Health Service Executive [2011] IEHC 421; Kirwan v The Mental Health Commission [2012] IEHC 217.

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Nolan v Emo Oil: the High Court sounds jurisdictional objection to injunctive reliefs being granted where remedy available pursuant to the Unfair Dismissals Acts [10.74] In Nolan, the High Court firmly rejected an attempt to challenge an employee’s dismissal before the High Court. Laffoy J set out the following in explaining the basis for this approach: ‘In this case, the plaintiff’s employment with the defendant came to an end on 30 November, 2008 and his last day at work was the 28 November, 2008. In essence, what he is trying to achieve by these proceedings is to get his job back. He got the required notice under his contract of employment and his contract of employment was lawfully terminated. If, as he contends, his dismissal was unfair, then the remedy available to him is the remedy provided by statute. As a matter of fact, that is the only remedy he could pursue because, in my view, he had not acquired a cause of action for breach of contract or otherwise prior to his dismissal. In the circumstances, there is no remedy which he can pursue in this Court … In effect, [the plaintiff] is inviting the Court to develop its common law jurisdiction by reference to the statutory concepts of redundancy and unfair dismissal. Specifically, the Court was invited by counsel for the plaintiff to have regard to the statutory definition of “redundancy” in s 7 of the Redundancy Payments Act 1967, as amended. The Oireachtas in enacting the Unfair Dismissal Acts 1977 to 2007 and in introducing the concept of unfair dismissal provided for specific remedies for unfair dismissal and specific procedures for obtaining such remedies in specific forums, before a Rights Commissioner or the Employment Appeals Tribunal. For the courts to expand its common law jurisdiction in parallel to the statutory code in relation to unfair dismissal and redundancy would, to adopt Lord Nicholls’s terminology, end up supplanting part of the code.’118

The effect of Nolan is clear: an employee can only impugn the termination of his or her employment and the fairness and or lawfulness of same within the exclusive jurisdiction of the statutory fora established to determine the lawfulness of the termination of employment pursuant to the Unfair Dismissals Acts – which has, since 2015, comprised the Workplace Relations Commission and, on appeal, the Labour Court. This High Court will not encroach on this jurisdiction.

[10.75] Similar reasoning is evident in Doherty v South Dublin County Council (No 2).119 Charleton J held that: ‘Where, however, an Act creates an entirely new legal norm and provides for a new mechanism for enforcement under its provisions, its purpose is not to oust the jurisdiction of the High Court but, instead, to establish new means for the disposal of controversies connected with those legal norms. In such an instance, administrative norms, and not judicial ones are set: the means of disposal is also administrative and not within the judicial sphere unless it is invoked under the legislative scheme. In the case of the Planning Acts, in employment rights matters and, I would hold, under the Equal Status Acts 2000 to 2004, these new legal norms and a new means of disposal through tribunal are created. This expressly bypasses the courts in dealing with these matters. The High Court retains its supervisory jurisdiction to ensure that hearings take place within 118 119

Nolan v Emo Oil Services Ltd [2009] ELR 122, per Laffoy J at 129–130. Doherty v South Dublin County Council (No 2) [2007] 2 IR 696.

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jurisdiction, operate under constitutional standards of fairness and enjoy outcomes that do not fly in the face of fundamental reason and common sense.’

[10.76] In O’Domhnaill v HSE120 Laffoy J accepted that this reasoning was applicable to the employment relationship, and held: ‘[T]he conferral of specific statutory rights on an employee, such as the right to a contract of indefinite duration under s 9(3) of the Act of 2003, does not give rise to a parallel right which may be enforced at common law.’121

[10.77] More recently, in Duffy v Liffey Meats (Cavan),122 the High Court (Twomey J) said: ‘[I]t would seem to this Court that the substance of the plaintiff’s complaint is that the Company has failed in its obligations under ss 26 and 27 of the Maternity Protection Act, 1994. For this reason, it seems to this Court that the more appropriate forum for the resolution of this matter is the Workplace Relations Commission, particularly when one considers that the costs, for both parties, of a Workplace Relations action are considerably less than High Court litigation, combined of course with the fact that under s 39 of the Workplace Relations Act, 2015, mediation may be offered to the parties, which would increase the chances of an even cheaper resolution of this dispute, at a fraction of High Court litigation costs.’123

[10.78] It is, with respect, questionable whether considerations such as the availability of mediation should be of much relevance in determining whether a litigant should be prevented from gaining access to the civil courts. The approach in Duffy does not sit particularly easily with the decision of the High Court in 2015 in Boyle v An Post124 where Barrett J observed: ‘[The employer] may contend, it might even be right, that Mr Boyle’s best option was and remains to bring a complaint before the Employment Appeals Tribunal; and it is entitled to that belief. But [the employee] has entitlements too; among them is his entitlement to bring what is an arguable claim of wrongful dismissal before the court and to seek related reliefs such as those now sought in the within application. In general, one must tilt with one’s opponents where they seek to joust, and not in an arena of one’s choosing: here the court does not accept any contentions … that the appropriate forum for the dispute between the parties necessarily lies elsewhere and/or that the within proceedings ought not to have been commenced.’125

(i) Dismissal with no or with inadequate notice [10.79] A critical distinction emerged in the early 2000s between cases in which injunctive relief was sought where dismissal had been for reasons given or arising out of disciplinary procedures and those where no disciplinary issues were invoked nor reasons given, in other words, where there was termination only without more. The distinction 120 121 122 123 124 125

O’Domhnaill v HSE [2011] IEHC 421. O’Domhnaill v HSE [2011] IEHC 421 per Laffoy J at [7.10]. Duffy v Liffey Meats (Cavan) [2017] IEHC 103. Duffy v Liffey Meats (Cavan) [2017] IEHC 103 per Twomey J at 17. Boyle v An Post [2015] IEHC 58. Boyle v An Post [2015] IEHC 58 per Barrett J at 26.

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[10.83]

first appeared in Philpott v Ogilvy & Mather Ltd126 where the plaintiff had been dismissed without warning or notice. He alleged that no disciplinary procedures had been followed and that he had been denied natural justice in the manner in which the decision was taken. The plaintiff instituted proceedings seeking, inter alia, a declaration that he was and continued to be creative director in the defendant’s employ pursuant to a contract of service. The plaintiff did not claim damages for wrongful dismissal.

[10.80] The High Court (Murphy J) dismissed the application for interlocutory relief. He affirmed that the traditional relief at common law for dismissal is a claim for damages for wrongful dismissal. It appeared to the court that the plaintiff had been denied a contractual right to notice. Applying the Supreme Court’s reasoning in Parsons v Iarnród Éireann the Court reiterated that: ‘If the traditional relief at common law for unfair [sic] dismissal was a claim for damages then the plaintiff may also have been entitled to declarations and injunctions in aid of his common law remedy. But if such equitable relief has no independent existence apart from the claim for damages for wrongful dismissal then it seems to me that there is no other free standing relief which can be claimed at law or in equity.’127

[10.81] It is curious that the judge described declarations as an equitable remedy along with injunctions when they are not; moreover, one can have an equitable remedy without a claim for damages, ie an injunction restraining breach of a term of a continuing contract. The Court distinguished cases such as Shortt v Data Packaging Ltd and Phelan v BIC (Ireland) Ltd (paras [10.36]–[10.37]) as ‘all apply[ing] to purported dismissal for reasons given or arising out of disciplinary procedures’. Moreover, as the defendant did not choose to dismiss the plaintiff for misconduct the claim in respect of natural justice failed, following Phelan v BIC (Ireland) Ltd128 and Hickey v Eastern Health Board.129 (ii) Dismissal on lawful notice [10.82] In Sheehy v Ryan and Moriarty130 the plaintiff had been employed as diocesan secretary for the Diocese of Kildare and Leighlin. Her employment was terminated on notice for redundancy. Among other things she sought a declaration that the purported termination of her employment was unlawful and an injunction restraining the termination of her contract. Part of her argument related to the duration of her contract (which she alleged was permanent and pensionable until the age of 65). She also claimed she had not been afforded natural justice and fair procedures in the termination of her employment.

[10.83] Carroll J (in the High Court) noted that the plaintiff had chosen to sue at common law and that there were ‘other possibilities open to her’ such as proceedings under the Unfair Dismissals Act. ‘If successful she would have been awarded statutory compensation.’131 The decision to opt for the common law having been made, Carroll J 126 127 128 129 130 131

Philpott v Ogilvy & Mather Ltd [2000] ELR 225. Philpott v Ogilvy & Mather Ltd [2000] ELR 225 per Murphy J at 231. Phelan v BIC (Ireland) Ltd [1997] ELR 208. Hickey v Eastern Health Board [1991] 1 IR 208. Sheehy v Ryan and Moriarty [2004] ELR 87. Sheehy v Ryan and Moriarty [2004] ELR 87 per Carroll J at 94.

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emphasised that the position at common law is that the employer is entitled to dismiss an employee for any reason or no reason, on giving reasonable notice. Although Carroll J accepted the evidence of the defendants that there was a true redundancy, she noted that: ‘Strictly speaking the reason for dismissal is not relevant.’132

[10.84] As no misconduct had been alleged in relation to the plaintiff, the rules of natural justice were found to have no application (following Hickey v Eastern Health Board133). On appeal, the Supreme Court affirmed the decision of Carroll J in the High Court.134 However, Geoghegan J noted that the reason for dismissal is not totally irrelevant; rather, it will depend on the terms of the contract of employment. [10.85] In Orr v Zomax Ltd135 the plaintiff was employed by the defendant as client services manager. Following a re-organisation by the defendant his role was amalgamated into a new position. He applied for the new position, was unsuccessful, and later was dismissed with proper notice on grounds of redundancy. He refused a monetary offer from the defendant and instead instituted proceedings claiming that the purported termination of his employment for reasons of redundancy was invalid. The plaintiff claimed there was a fair issue to be tried as to whether there is an implied term in the contract that the employer must act reasonably and fairly in cases of dismissal. The defendants disputed that there was a fair issue to be tried as unfair dismissal is governed by the Unfair Dismissals Acts and its remedies are mutually exclusive to the common law remedy for damages. They relied, inter alia, on Parsons.

[10.86] The High Court (Carroll J) held, refusing the interlocutory reliefs, that there was no fair issue to be tried as there is no obligation under the common law on the employer to act reasonably and fairly in the case of dismissal. At common law an employer can terminate employment for any reason or no reason provided adequate notice is given. It was not open to the plaintiff to argue that the principles applicable under the statutory scheme should be imported into the common law. Damages would be an adequate remedy. Carroll J was also persuaded by the House of Lords in Johnson v Unisys Ltd136 wherein Lord Millett said: ‘… the creation of the statutory right has made any … development of the common law [to imply terms regarding dismissal into the contract of employment] both unnecessary and undesirable. In the great majority of cases the new common law right would merely replicate the statutory right; and it is obviously unnecessary to imply a term into a contract to give one of the contracting parties a remedy he already has without it ... And, even more importantly, the co-existence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost.’

[10.87] In McGrath v Trintech Technologies Ltd and Trintech Group Plc137 the plaintiff claimed that the method of his selection for redundancy was unfair and invalid and 132 133 134 135 136 137

Sheehy v Ryan and Moriarty [2004] ELR 87 at 95. Hickey v Eastern Health Board [1991] IR 208. Sheehy v Ryan and Moriarty [2008] 4 IR 258. Orr v Zomax Ltd [2004] 1 IR 486. See also Nolan v EMO Oil Services Ltd [2009] ELR 122. Johnson v Unisys Ltd [2003] 1 AC 518; [2001] ICR 480 per Lord Millett at 80. McGrath v Trintech Technologies Ltd and Trintech Group Plc [2005] 4 IR 382 at 5.36.

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[10.91]

relied on the implied duty of mutual trust and confidence in the employment relationship as governing dismissal. This implied term and the approach adopted by the courts in this and other cases are discussed in Chapter 5. The court rejected the plaintiff’s proposition that there should be implied into his contract a term that mere compliance with the express notice provision in the contract would not validly and effectively terminate the contractual relationship at common law. What the implied duty of mutual trust and confidence in its prescriptive form might mean remains to be analysed by the Supreme Court.

[10.88] In Maha Lingham v Health Service Executive138 the applicant was a temporary consultant surgeon from India. He received three months’ notice of termination of his employment, the reason given to the court being that the employer, now the Health Service Executive, had been unable to obtain approval for his continued employment in a temporary consultant post. The plaintiff contended that the act of dismissal was wrong by reason of the way in which his colleagues had behaved. He attributed alleged racist remarks to the defendant in so far as they had been made by persons in its employ. He alleged that other surgeons in effect had brought pressure to bear on the employer to the extent that it overbore the independent decision-making power and will of the employer and for that reason was wrongful.

[10.89] Fennelly J referred to the traditional legal principles governing termination of employment ‘although perhaps modified to some extent in the light of modern developments’, namely, that a contract may be terminated on the giving of reasonable notice. The action before the court was brought at common law for wrongful dismissal in the context of which an injunction had been sought. He reiterated that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of an interlocutory injunction where the injunction sought is mandatory. The applicant needed to show that he had a strong case. [10.90] As noted at para [5.55] the plaintiff had argued that there had developed in parallel with the statutory claim for unfair dismissal ‘the tendency of the courts’ to imply a term of good faith and mutual trust into contracts of employment. Fennelly J observed: ‘This is a development which is perhaps at its early stages and it is not contested in the present case …’

Referring to Eastwood and Johnson, which are discussed at length in Chapter 5 herein and which had been cited by Carroll J in the High Court, he said: ‘… the question is whether the plaintiff has made out the sort of case that would be necessary to show that the contract of employment had been undermined to such an extent by the employer in this case that the employer was deprived of the right to give a proper period of notice of termination.’

The plaintiff would have to make out a strong and clear case and it was held he fell short by a ‘very significant’ gap.

[10.91] The opportunity to make such a case awaits a future occasion. It is worth recalling Lord Steyn in Johnson (para [5.40]) who had compared the interaction of the 138

Maha Lingham v Health Service Executive [2006] ELR 137.

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implied obligation of trust and confidence and express terms of the contract with the relationship between duties of good faith or fair dealing and the express terms of notice in a contract. ‘They can live together.’ That being so, it is difficult to envisage any circumstance in which an employer would be deprived of the right to give proper notice of termination. But while the notice might be valid and effective, were the employer to act in breach of the independent implied obligation by dismissing an employee in a harsh and humiliating manner, the employer might become liable in damages. There would be no conflict between the express and implied terms. The full potential of this over-arching legal principle has yet to be explored in Ireland.

[10.92] Since Maha Lingham, two particular judicial developments should be noted. The first is the unequivocal statement by Laffoy J (in the High Court) in Cronin v Eircom139 to the effect that the implied mutual duty of trust and confidence should be interpreted into every contract of employment ‘as a matter of law’. [10.93] The second development to be noted is the decision of the Irish Court of Appeal in 2017 in Flynn v Breccia140 where the Court of Appeal did not acknowledge the existence of a stand-alone duty of good faith in contract law generally, a decision which only serves to underline the distinctiveness and importance of the implied mutual duty of trust and confidence in the contract of employment. Flynn concerned a shareholders’ agreement. Loan and securities agreements were also entered into with Anglo Irish Bank which included cross security arrangements, the effect of which was that if one shareholder defaulted, the bank was entitled to force every shareholder to sell their shares. Each shareholder was thus required to formally waive any pre-emption rights that might arise. After Anglo collapsed and was taken over by National Asset Loan Management Ltd, the loan portfolio was sold to the first defendant, who sought to enforce it against the first plaintiff. The plaintiffs then instituted proceedings claiming that there was an implied term of good faith in the shareholders’ agreement which prohibited any shareholder from enforcing the rights of a lending institution.

[10.94] The Court of Appeal rejected this argument, holding that in light of the purpose of the shareholders’ agreement – namely, to facilitate the subscription for and redemption of the majority of shares in a company by companies who had a purely commercial interest in the arrangement – such a term would be inconsistent with the commercial nature of the agreement and while certain of the parties to the agreement were related to each other in some way or another, it was not a partnership agreement, to which obligations of good faith would be applicable. In addition, the implication of such a term was not obviously necessary to give effect to the agreement. More generally, however, it is of interest to note the following comments of Hogan J in his concurring judgment: ‘The fact that the Irish courts have not yet recognised such a general principle may over time be seen as simply reflecting the common law’s preference for incremental, step by step change through the case law, coupled with a distaste for reliance on overarching general principles which are not deeply rooted in the continuous, historical fabric of the case law, rather than an objection per se to the substance of such a principle.’141 139 140 141

Cronin v Eircom [2007] 3 IR 104. Flynn v Breccia [2017] IECA 74. Flynn v Breccia [2017] IECA 74 per Hogan J at 8.

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[10.96]

[10.95] Leading employment counsel Tom Mallon142 has observed that a serious flaw in the unfair dismissals legislation is that the statutory forum (now the Workplace Relations Commission) is not empowered to make interim or interlocutory orders. It cannot be right, he argues, that an employer can dismiss an employee in utter disregard of the employee’s rights under the statute and in utter disregard of the employee’s undoubted rights in natural and constitutional justice. An unscrupulous employer could do so secure in the knowledge that in all probability he will be merely ordered to pay compensation for the employee’s actual loss and he will be fortified that the employee must seek to mitigate that loss. Mallon points to cases of great injustice where employees are dismissed without any regard to their rights. While accepting that employment injunctions should be limited, he suggests that one possibility of improving the situation would be to give the statutory forum or perhaps the Circuit Court powers to make interim or interlocutory orders,143 including the continuation of the payment of salary in unfair dismissal cases.

F.

DECLARATORY RELIEF

[10.96] There are grounds for arguing that the remedy of a declaration144 should not be viewed in the same light as that of specific performance or injunctions. A declaration that a dismissal was null and void will not be granted in the case of an ordinary contract of employment.145 However, a declaration will lie to declare a breach of contract.146 It might be useful to seek a declaration as to breach where other rights might be affected,147 or where an employer is guilty of repudiatory conduct which the employee is not willing to accept as terminating the contract.148 The vindicatory power of such a declaration has 142

143

144

145 146

147

148

Paper delivered at the Round Hall/Sweet & Maxwell Employment Law Conference (Dublin, 24 May 2006). The Circuit Court now enjoys such a power in the context of interim relief sought under the Protected Disclosures Act 2014: see Ch 20. Pace Lord Morris of Borth-y-Gest who described the law in Francis v Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411 at 1417: ‘When there has been a purported termination of a contract of service, a declaration to the effect that the contract still subsists will rarely be made. This is a consequence of the general principle that the courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the court.’ See, also, Hill v Parsons Ltd [1972] 1 Ch 305 per Lord Denning and Sachs LJ at 314 and 319. Vine v NDLB [1957] AC 488 at 500 per Viscount Kilmuir LC. Zamir, The Declaratory Judgment (Sweet & Maxwell, 1980) at 129–137. See Gunton v Richmond Upon Thames LBC [1980] ICR 755, [1980] IRLR 321 in relation to breach of a procedural term in the contract of employment, discussed at para [5.03] above. And see Jones v Gwent County Council [1992] IRLR 521. A declaration as to a dismissed person’s rights under a compromise agreement following personal injuries as a result of an accident which happened in the course of work was granted in Kingston v Irish Dunlop Co Ltd [1969] IR 233. As in Taylor v National Union of Seamen [1967] 1 QBD 767 where the plaintiff’s position as a member of his trade union and his prospects of a future career in the union were ‘very seriously’ affected by his wrongful dismissal. He was an official of the union concerned and had been dismissed for alleged insubordination. Ungoed-Thomas J held he ‘should have the protection of a declaration’. See Ch 6 above.

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also recently been adverted to by the Supreme Court in the context of bullying and harassment in the workplace.149 To sue for damages in the latter circumstances would be tantamount to ‘acceptance’; to seek an appropriate declaration would not. The essential point to stress is that to declare a purported dismissal wrongful would not lead to anything like ‘a contract of slavery’. And since an employer can pay wages in lieu of notice a declaration would not require the employee to continue working with the employer in question (see Stevenson v United Road Transport Union150). Once dismissal has taken place, the courts will not grant declarations. The traditional relief at common law for wrongful dismissal is damages. An employee may seek declarations as to entitlements before he is dismissed. But as the Supreme Court held in Parsons v Iarnród Éireann:151 ‘... such declarations were in aid of his common law remedy and had no independent existence apart from it. If the plaintiff loses his right to sue for damages at common law the heart has gone out of his claim and there is no other free standing relief which he can claim at law or in equity.’

[10.97] In Carroll v Dublin Bus152 Clarke J (in the High Court) took the view that there had been significant developments in typical terms of employment of many employees in recent years which had a material effect on the manner in which as a matter of contract they could be dismissed, such that in many cases by virtue of express terms of the contract dismissal can only be for stated grounds and dismissal for misconduct can only take place after due proceedings. These developments were notwithstanding the common law right of an employer to terminate the employee’s employment for no reason. He took the view that it was open to the court to grant declarations concerning breaches of the employment contract notwithstanding the decision in Parsons. He distinguished Parsons on the basis that it imposed a limit in cases where the declaration could not avail the plaintiff in a practical way.153 Clarke J made a declaration that the plaintiff by virtue of his contract of employment was entitled to have been awarded light duties following his absence from sick leave and that Dublin Bus was in continuing breach of his contract of employment by failing to provide him with light duties. He stopped short of making an order requiring the employer to take the employee back into active employment.

[10.98] In Saeed v Inner London Education Authority154 an employee who had been acquitted of a criminal charge and against whom disciplinary proceedings were 149 150

151 152 153 154

Ruffley v Board of Management of St Anne’s School [2017] IESC 33, per O’Donnell J at [72]. Stevenson v United Road Transport Union [1977] ICR 893 at 907 per Buckley LJ. See Elias, Wallington & Napier, Labour Law Cases and Materials (Butterworths, 1980) at 512. It should be added that there are some doubts as to whether an employer is entitled always to pay wages in lieu of notice. There are judicial authorities to the effect that such payment might well be contrary to the actual terms of a given contract; if this were so, a purported termination would be wrongful. This view is described and endorsed by Barmes, ‘The Contract of Employment and the Remedial Dimension’ in Freedland (ed), The Contract of Employment (OUP, 2016) 167 at 181. Parsons v Iarnród Eireann [1997] 2 IR 523, at 530 per Barrington J. Carroll v Bus Átha Cliath [2005] 4 IR 184. Carroll v Bus Átha Cliath [2005] 4 IR 184, per Clarke J at 209. Saeed v Inner London Education Authority [1985] ICR 637.

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[10.99]

subsequently started failed to get a declaration that he was being put in double jeopardy as the facts on which the criminal charge and the disciplinary proceedings were based were identical. Popplewell J held that the rule of double jeopardy has no application as between criminal and civil proceedings or as between criminal and disciplinary proceedings where the disciplinary tribunal applies the civil, not the criminal, standard of proof.

[10.99] The reservations outlined so far in this chapter in regard to equitable remedies have manifested themselves in unfair dismissals legislation. The primary remedies of reinstatement and re-engagement, if awarded in cases of unfair dismissal, cannot be enforced against an employer and in any event are awarded by the WRC (and Labour Court on appeal) only in a small proportion of cases. The importance of a constitutional jurisdiction comes to the fore. The possibility of obtaining ‘whatever redress is appropriate in the circumstances’,155 eg a declaration that the purported dismissal of an ordinary employee is ultra vires the Constitution, hence invalid and of no effect, is all the more significant in light of the common law’s uncertainties.

155

Glover v BLN Ltd [1973] IR 388 at 427 per Walsh J.

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Chapter 11

Damages arising from Wrongful Dismissal A.

GENERAL PRINCIPLES ON WHICH DAMAGES ARE AWARDED

[11.01] The rules governing compensation for termination of employment are fragmented and uncoordinated and it would be misleading to call them a system. The general principle underlying the assessment of damages in contract is that of restitutio in integrum. The courts have applied this principle restrictively both as to the heads of damages which may be considered and as to the assessment of damages under those heads. The underlying aim of the principle of restitutio in integrum is that of restoring the plaintiff to the position he would have been in had he not sustained the wrong.1 The plaintiff is entitled to compensation for damage or loss suffered. Where damages for breach of contract are concerned it is not always easy to determine whether items of actual damage are sufficiently proximate or whether, as consequences of the breach, they are too remote to be the subject of damages. In this respect, as was noted in para [1.38], the Irish courts have accepted the principle of Hadley v Baxendale,2 which requires a plaintiff to prove either that the damage arose naturally from the breach or that it arose from special circumstances contemplated by the parties. [11.02] A basic ambiguity of restitutio in integrum in the context of the law of contract is as between the two meanings of: (1) putting the plaintiff in the position he would have been in had he never made the contract, ie restoring the status quo ante; or (2) putting him in the position he would have been in if the contract had been duly performed. According to Fuller and Perdue,3 it is possible to protect three kinds of interest:

1

2

3

(i)

the restitution interest – the interest in compelling the defendant to disgorge value received when the defendant’s promise was unfulfilled, ie the prevention of unjust enrichment;

(ii)

the reliance interest – the interest in obtaining compensation from the defendant in respect of benefit lost, or of detriment incurred, in reliance upon his promise; and

See Ogus, The Law of Damages (Butterworths, 1973) at 17–21, 282–288; Street, Principles of the Law of Damages (Sweet & Maxwell, 1962), 3; Freedland (ed), The Contract of Employment (OUP, 2016), 245. Hadley v Baxendale (1854) 9 Exch 341; See Irvine v Midland Gt W Rly (Ir) Co (1879) 6 LR Ir 55; Parker v Cathcart (1866) 17 ICLR 778; Boyd v Fitt (1863) 14 ICLR 43. In Duffy v Sutton [1955] IR 248, Lavery and Kingsmill Moore JJ, in the Supreme Court assumed that the principle of Hadley v Baxendale (1854) 9 Ex 341 governed the question of remoteness of damage. Fuller and Perdue, ‘The Reliance Interest in Contract Damages’ (1936) 46 Yale LJ 52 at 73.

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[11.03] (iii)

Redmond on Dismissal Law the expectation interest – the interest in obtaining compensation from the defendant in respect of the benefit lost, or detriment incurred, as a result of non-fulfilment of the promises made by him.

It had long been the position that if the contract were tainted by illegality, there could be no remedy in damages (or otherwise). The essential rationale of the illegality doctrine, as explained by the Supreme Court of Canada in Hall v Hebert,4 is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system.

[11.03] An example of the application of this principle is seen in Hayden v Sean Quinn.5 There, the plaintiff was appointed general manager of a new hotel being constructed by the defendant in July 1990. The plaintiff had previously been working in England when he was approached on behalf of the defendant to ascertain whether or not he would be interested in this post. The remuneration agreed purportedly included a non-taxable allowance to cover expenses. This sum was never intended to cover expenses, of which there were none, but was to enable the plaintiff to have an after-tax salary equal to that which he had received in England. The plaintiff would not have come to the hotel for less than he was getting in England and the device of expenses was for the benefit of the defendant. A number of disagreements arose during the plaintiff’s employment and he was eventually summarily dismissed for dishonesty. The plaintiff instituted proceedings against the defendant claiming damages for wrongful dismissal.

[11.04] The High Court (Barron J) dismissed the plaintiff’s claim, notwithstanding that the Court was satisfied that the defendant was ‘clearly in breach of contract in that the plaintiff’s dismissal was wrongful’. This was because of the Court’s finding that the contract itself was an illegal one as it contained a term, with which the plaintiff concurred, which was designed to lessen the defendant’s liability at the expense of the Revenue. This was contrary to public policy and unenforceable. Barron J relied upon the authority of Napier v National Business Agency Ltd,6 a case on very similar facts, where Sir Raymond Evershed had said: ‘[i]t must surely be that, by making an agreement in that form the parties to it were doing that which they must be taken to know would be liable to defeat the proper claims of the Inland Revenue and to avoid altogether, or at least to postpone, the proper payment of income tax. If that is the right conclusion, it seems to me equally clear … that the agreement must be regarded as contrary to public policy. There is a strong legal obligation placed on all citizens to make true and faithful returns for tax purposes, and, if parties make an agreement which is designed to do the contrary, ie to mislead and to delay, it seems to me impossible for this Court to enforce that contract at the suit of one party to it.’

Adopting this reasoning, Barron J held that the plaintiff in Hayden had allowed himself to agree to something which would benefit the defendant at the expense of the Revenue. The Court’s approach to illegality is captured in the starkness of its conclusion that: ‘Such an agreement is unenforceable and the plaintiff’s claim must therefore fail.’ 4 5 6

Hall v Hebert [1993] 3 SCR 159. Hayden v Sean Quinn [1994] ELR 45. Napier v National Business Agency Ltd [1951] 2 All ER 264 at 266.

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[11.07]

[11.05] In recent years, however, very significant developments in the illegality defence have rendered this proposition far less clearcut. The extent to which involvement in illegality should act as a blanket bar to a claim is now far less straightforward, since a rigid rule-based approach has been increasingly rejected in favour of a more proportionality-focused, discretion-based analysis. The leading example of judicial reflection on this position in recent times is undoubtedly the landmark decision of the United Kingdom Supreme Court in 2016 in Patel v Mirza,7 in which the decision of the House of Lords in Tinsley v Milligan8 was overruled. That case had established a reliance test which barred the claimant if he/she relied on the illegality in order to bring the claim. The Court in Patel regarded this reliance test as highly problematic and held that it should not be followed.9 [11.06] The facts of Patel may be briefly stated. Mr Patel gave Mr Mirza £620,000 to place bets on a bank’s share prices with the benefit of insider information. Mr Mirza expected his contacts to inform him of a government announcement about the bank. His expectation was not fulfilled and the intended betting did not in fact take place. When Mr Mirza did not return the money to Mr Patel, Mr Patel brought a claim against him for the money and Mr Mirza contended that the claim should fail because of the illegality of the arrangement with Mr Patel. The United Kingdom Supreme Court unanimously held that Mr Patel should be allowed to recover the money, notwithstanding the illegality. Significantly, different approaches were adopted by the judges as to how they arrived at this result. Lord Toulson (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agreed) gave the lead judgment. Lord Neuberger, Lord Mance, Lord Clarke and Lord Sumption concurred in the result, but by different processes of reasoning.

[11.07] For Lord Toulson, in assessing whether the public interest would be harmed in that way, it is necessary to consider (a) the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, (b) any other relevant public policy on which the denial of the claim may have an impact, and (c) whether denial of the claim would be a proportionate response to the illegality. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.10 In considering whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, the various factors identified as potentially relevant included the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was marked disparity in the parties’ respective culpability.11 For the majority of the UK Supreme Court, a claimant who 7

8 9 10 11

Patel v Mirza [2016] 3 WLR 399. See Henderson, ‘The Long Arm of the Law’ (2016) 68 Co LJ 14; Goudkamp, ‘The End of an Era? Illegality in Private Law in the Supreme Court’ (2016) 133 LQR 14; Grabiner, ‘Illegality and Restitution explained by the Supreme Court’ (2017) 76 CLJ 18. Tinsley v Milligan [1994] 1 AC 340. Patel v Mirza [2016] 3 WLR 399 at 110. Patel v Mirza [2016] 3 WLR 399 at 120. Patel v Mirza [2016] 3 WLR 399 at 107.

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satisfies the ordinary requirements of a claim should not be debarred from enforcing that claim by reason only of the fact that the money which he or she seeks to recover was paid for an unlawful purpose. The majority acknowledged that there may be rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but held that there were no such circumstances in Patel.12

[11.08] Lord Mance, Lord Clarke and Lord Sumption each delivered separate judgments expressing general agreement with each other, concluding that there was no basis for substituting for the clear-cut principle identified in Hall v Hebert, founded on the need to maintain the integrity of the law, a range of factors as advocated by Lord Toulson, which would not offer the same coherence or certainty. Lord Sumption set out four reasons for rejecting the ‘range of factors’ test as unprincipled: (i)

(ii)

(iii)

(iv)

The illegality principle is ‘manifestly designed to vindicate the public interest as against the interests and legal rights of the parties [and] … cannot therefore depend on an evaluation of the equities as between the parties or the proportionality of its impact upon the claimant’. The ‘range of factors’ test was said to largely devalue the principle of consistency, by relegating it to the status of one of a number of evaluative factors, entitled to no more weight than the judge chooses to give it in the particular case. The main justification for the ‘range of factors’ test has always been that it enables the court to avoid inflicting loss on the claimant disproportionate to the measure of his badness. Lord Sumption held that it is difficult to reconcile with any kind of principle the notion that there may be degrees of illegality. The ‘range of factors’ test discards any requirement for an analytical connection between the illegality and the claim, by making the nature of the connection simply one factor in a broader evaluation of individual cases and offering no guidance as to what sort of connection might be relevant, Lord Sumption was concerned that ‘the possibility is opened up of an altogether wider ambit for the illegality principle, extending to cases where the relevant connection was remote or non-existent but other factors not necessarily involving any connection at all, were thought to be compelling’.

[11.09] The interpretation of restitutio in integrum adopted in the context of contract is that of protecting the expectation interest, and perhaps to a slight extent the reliance interest. Protection of the restitution interest is almost entirely relegated by common law to the sphere of quasi-contract.13 [11.10] Where an employee is wrongfully dismissed he or she is entitled, subject to the rules of mitigation, to compensation for loss of remuneration during notice or an unexpired fixed period of contractual employment;14 generally damages on any other 12 13 14

Patel v Mirza [2016] 3 WLR 399 at 121. See, eg, O’Connell v Listowel UDC (1957) Ir Jur R 43. This proposition from the previous edition of this work was endorsed and applied by the High Court (Laffoy J) in Treacy v Irish Packaging Recycling Ltd [2013] IEHC 41 (per Laffoy J at [16]).

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[11.13]

basis are excluded. This is what Freedland calls the ‘limited damages rule’.15 Most often, a wrongfully dismissed employee is awarded a sum equivalent to the wages he or she would have earned under the contract from the date of dismissal to the end of the contract. There may be benefits in kind such as luncheon vouchers and benefits under pension schemes and by way of stock options, which must be taken into account. Entitlement to payment of commission must also be taken into account.

[11.11] The general principle applied by the courts to fixed-term contracts which cannot be unfixed by notice recognises an employee’s right to damages in respect of loss of employment for the remainder of the fixed term, subject only to the rules concerning mitigation of loss.16 Thus, in Glover v BLN Ltd17 the plaintiff was employed on a fixedterm contract for five years. He was awarded damages, inter alia, for loss of salary over 20 months, the remainder period of his contract. For the more usual contract of indefinite duration, Lord Denning MR described the law as to the measure of damages in Hill v Parsons Ltd:18 ‘[a servant] is left to his own remedy against the master for breach of the contract to continue the relationship for the contractual period. He gets damages for the time he would have served if he had been given proper notice, less, of course, anything he has, or ought to have earned in alternative employment. He does not get damages for the loss of expected benefits to which he had no contractual right.’

[11.12] Limitation of damages in respect of loss of earnings to an employee’s expectation interest, to the period of notice required for proper termination of the contract, is based upon a general principle that damages are to be assessed on the assumption that the defendant would have performed the contract in the manner least disadvantageous to himself. This was originally stated as a rule that: ‘where there are several ways in which the contract may be performed, that mode is adopted which is the least profitable to the plaintiff, and the least burdensome to the defendant.’19

It later appeared in the form that ‘a defendant is not liable in damages for not doing that which he is not bound to do’.20 The principle of performance in the manner least disadvantageous to the defendant has been recognised as applying to an employer’s right to give notice.21

[11.13] Suppose an employee is summarily dismissed. Can he or she claim damages for loss of the right to pursue an unfair dismissal claim which he or she would have acquired 15 16

17 18 19 20

21

Freedland, The Personal Employment Contract (OUP, 2003) at 355–368. In UK see Davis v Marshall (1861) 4 LT 216; Smith v Thompson (1849) 8 CB 44; Re Golomb & William Porter & Co Ltd’s Arbitration (1931) 144 LT 583. Glover v BLN Ltd [1973] IR 388. Hill v Parsons Ltd [1972] 1 Ch 305 at 314. Cockburn v Alexander (1848) 6 CB 791 at 814, per Maule J (charter party). Abrahams v Herbert Reiach Ltd [1922] 1 KB 477 per Scrutton LJ at 482 (contract with author for publication of series of articles). British Guiana Credit Corporation v Da Silva [1965] 1 WLR 248 at 259H–260B per Lord Donovan. See Cerebus Software v Rowley [2001] IRLR 160; Langley v Burbo [2006] IRLR 460. (contd.../)

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[11.14]

Redmond on Dismissal Law

by attaining the requisite service if he had been given the notice of termination to which he was contractually entitled? Albeit that this is a question of entitlements on wrongful dismissal as a matter of the contract of employment as opposed to statutory unfair dismissal which is considered in Part C of this work, this question necessarily raises an important distinction between the statutory position in this jurisdiction and that in Britain. This is because s 1 of the Unfair Dismissals Acts 1977, as amended, provides that ‘dismissal’ means: (a)

(b)

where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which that notice expires, where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates— (i) the earliest date that would be in compliance with the provisions of the contract of employment, (ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Acts 1973 to 2005 …

[11.14] Accordingly, in Irish law, even where an employee is wrongfully dismissed in breach of their contractual notice period prior to their having attained the requisite statutory qualifying period of one year in order to bring an unfair dismissal claim, he or she will still be eligible to pursue a claim for unfair dismissal since dismissal will not be deemed to have occurred until the expiry of the notice period. Consider the following example: the employee has been employed for nine and a half months and has a three month notice period pursuant to her contract of employment. The employer purports to terminate the contract with immediate effect, invoking a contractually-inserted right to pay in lieu of the three month notice period stipulated in the contract. In this situation, somewhat confusingly, the date of ‘dismissal’ is different depending on whether the dismissal is being examined from a common law or statutory perspective. In a common law wrongful dismissal action, the date of dismissal is the date of termination since the employer was contractually entitled to pay in lieu; but for the purposes of the Unfair Dismissals Acts, the date of dismissal is the date on which the contractual notice period would have expired, that is, three months later, thereby giving the employee over one year’s continuous service prior to her ‘dismissal’ within the meaning of the Acts. Put another way, in the context of wrongful dismissal, the ‘termination’ and ‘dismissal’ date are one and the same in this example, whereas in unfair dismissal, the two dates are three months apart. [11.15] This situation in the Irish statutory scheme is to be contrasted with that applying in Britain pursuant to s 97 of the Employment Rights Act 1996 which provides, insfoar as is material: 21

(\...contd) Short-term fluctuation of earnings in ascertaining the week’s wages upon which the damages are to be based were dealt with in Devonald v Rosser & Sons [1906] 2 KB 728; damages were assessed on the basis of ‘the average wages earned by the plaintiffs for some time preceding the stoppage’. This problem arises especially in connection with manual employees where their notice period is likely to consist of weeks rather than months or years.

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[11.18]

(2) Where (a) the contract of employment is terminated by the employer, and (b) the notice required by section 86 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by subsection (1)), for the purposes of section 108(1) … the later date is the effective date of termination. (3) In subsection (2)(b) ‘the material date’ means (b) where no notice was given, the date when the contract of employment was terminated by the employer.

The reference to the notice ‘required by section 86’ in the above subsection makes it clear that all that is being referred to is the statutory, and not contractual, notice period. This is a key point of distinction between Irish and British law.

[11.16] Staying with the example above, what of a situation where, in a wrongful dismissal context, the employer does not have any contractual power to pay in lieu of notice, but nonetheless terminates the employment in breach of the notice provision? Consideration of this question occurred very slowly indeed in British case law. [11.17] Early judicial support for the pro-employee stance on this point was to be found in the judgment of Lord Denning MR in Brindle v Smith22 when he observed: ‘I would add at this point that I do not think the Act can be got round by wrongfully dismissing a person summarily or by giving him a notice that is too short. No person should be able to take advantage of his own wrong in that way. If an employer should try to escape the Act by giving no notice at all or a notice that was too short, I should have thought that the tribunal, by means of a claim for wrongful dismissal (see s 113 of the Act), or by some such way, would see that the employee would get the same compensation as he would have done if he had been given notice of a proper length.’23

Megaw LJ in the same case said that he wanted to reserve consideration on this point, and Sir Gordon Willmer did not express any opinion on the matter. Obiter comments in later judgments of the Court of Appeal appeared to incline towards the view of Lord Denning in Brindle.24

[11.18] In Raspin v United News Shops Ltd25 the UK EAT decided the point which had been discussed in Brindle, Cort and Stapp. Judge Hicks QC described the situation as presenting a ‘perfectly orthodox’ sense in which loss of chance26 principles relating to the recovery of damages for breach of contract could be applied. He said that what must be compared for the purposes of assessing damages was the position in which the employee found herself when dismissed, at a date when she had no right to complain of unfair dismissal, with the position in which she would have found herself had she been dismissed on or after the date at which the right to bring such a complaint arose.27 The 22 23 24

25 26

27

Brindle v Smith [1973] ICR 12. Brindle v Smith [1973] ICR 12 at 22. Robert Cort & Son Ltd v Charman [1981] IRLR 437 at para 14 per Browne-Wilkinson J; Stapp v The Shaftesbury Society [1982] IRLR 326 at paras 40–41, particularly the judgment of Sir David Cairns. Raspin v United News Shops Ltd [1999] IRLR 9. Chadwick LJ did not agree that this scenario could be examined by reference to loss of chance principles. Raspin v United News Shops Ltd [1999] IRLR 9 para 59.

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[11.19]

Redmond on Dismissal Law

EAT therefore remitted the case to the employment tribunal to assess damages in accordance with these principles.

[11.19] Shortly after Raspin, of course, came the decision of the House of Lords in Johnson v Unisys,28 analysed in detail at para [5.32] above. Explaining why the existence of the statutory right to redress for unfair dismissal precluded the development of a common law right to compensation for the manner of dismissal, Lord Millett stated: ‘[T]he creation of the statutory right has made any such development of the common law both unnecessary and undesirable. In the great majority of cases the new common law right would merely replicate the statutory right, and it is obviously unnecessary to imply a term into a contract to give one of the contracting parties a remedy which he already has without it. In other cases, where the common law would be giving a remedy in excess of the statutory limits or to excluded categories of employees, it would be inconsistent with the declared policy of Parliament. In all cases it would allow claims to be entertained by the ordinary courts when it was the policy of Parliament that they should be heard by specialist tribunals with members drawn from both sides of industry. And, even more importantly, the coexistence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos.’29

Lord Hoffmann’s judgment was to similar effect.30

[11.20] The matter was comprehensively addressed by the Court of Appeal in Virgin Net Ltd v Harper.31 The first instance Employment Tribunal found that the claimant had been wrongfully dismissed32 and there was no appeal against that finding. The employer did not dispute the element of the award which amounted to compensation in respect of three months’ net pay, being the amount the claimant would have received during her contractual notice period if she had not been summarily and wrongfully dismissed. The dispute between the parties both on the appeal to the EAT and on the appeal to the Court of Appeal centred around the correctness or otherwise of an additional sum awarded by the Employment Tribunal, namely, the full award the claimant would have received if she had been permitted to bring a claim for unfair dismissal under the terms of the Employment Rights Act 1996.

[11.21] The Employment Tribunal held that she would have succeeded in such a claim because her dismissal was so clearly unfair, but she was precluded from bringing it because she had no statutory right not to be unfairly dismissed by her employer at the time of her summary dismissal. Her employment with the respondent commenced on 4 April 2000 and was summarily terminated on 2 March 2001, 33 days short of the date when she would have completed the (then33) qualifying one-year period of employment 28 29 30 31 32

33

Johnson v Unisys [2001] UKHL 13; [2003] 1 AC 518. Johnson v Unisys [2003] 1 AC 518 at para 80. Johnson v Unisys [2003] 1 AC 518 at paras 54–58 and 66. Virgin Net Ltd v Harper [2014] EWCA Civ 271; [2005] ICR 921. In contrast with the jurisdiction enjoyed by the Workplace Relations Commission in this jurisdiction, the Employment Tribunal in England and Wales enjoys jurisdiction (in addition to its jurisdiction in unfair dismissal claims) to hear and determine wrongful dismissal claims subject to a statutory cap of £25,000 pursuant to the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. The qualifying period in that jurisdiction has since been raised back to two years: Employment Rights Act 1996, as amended, s 108(1).

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[11.22]

needed for a claim for unfair dismissal to be open to her. The Employment Tribunal assessed her damages at £30,844.57 under this head, although it was obliged to cap her total award at the statutory maximum of £25,000. The EAT, for its part, ruled that this extra award was not available as a matter of law, concluding that Johnson precluded them from upholding the Employment Tribunal’s additional award. Judge Peter Clark explained the position in these terms: ‘Parliament has decided that the statutory right not to be unfairly dismissed under section 94(1) ERA will be subject to certain limitations. One restriction on the right, in ordinary unfair dismissal cases (cf the special cases under section 108(3)), is that the complainant must first have completed one year’s continuous service (section 108(1)). The end date of the period of continuous service is the EDT, to be calculated in accordance with section 97 ERA. Originally, that was simply the date on which the termination took effect (see now section 97(1)(b)). However, since the 1975 EPA the EDT has been extended to include, in a case of summary dismissal, the length of statutory notice to which the employee was then entitled under what is now section 86 ERA (see section 97(2)(b)). It was open to Parliament then and has been open to Parliament since in succeeding legislation, to extend the date not simply by reference to the statutory minimum notice entitlement, but by reference to the contractual notice period where that is longer. Parliament has chosen not to do so. That is why, in the present case, Miss Harper is unable to bring a statutory claim of unfair dismissal. In these circumstances, it seems to us, the observations in Johnson v Unisys by Lord Hoffmann (paragraph 66) and Lord Millett (paragraph 80) apply with equal force to the loss of a chance claim advanced by the Applicant in this case. Quite simply, she is seeking to circumvent the restrictions and limits which Parliament has imposed on compensation for unfair dismissal. That is impermissible. To allow such a head of claim would, in the words of Lord Millett, “be a recipe for chaos”. All coherence in our employment laws would be lost.” He continued at paras 39(3) and (4): “(3) As a matter of binding authority, we consider ourselves required to follow the ratio in Johnson v Unisys, as explained by the Court of Appeal in Eastwood and McCabe. Applied to the present case, that means that an Applicant cannot recover, by way of damages for breach of the contract of employment, loss flowing from the fact of and manner of the dismissal itself. The present case is a paradigm example. The Applicant’s complaint is directed solely to Mr Knox’s decision to summarily dismiss her at 5.15 pm on 2 March 2001. Until then she had been subject to disciplinary proceedings which had, only four hours earlier, resulted on internal appeal in a formal written warning, that is action short of dismissal, being upheld. It is solely the fact of dismissal, itself certainly unfair in the view of the Tribunal, which gives rise to this head of loss. (4) True is that had the Applicant received her full three month’s contractual notice she would, following termination, have qualified for unfair dismissal protection. In that sense she has suffered a potential loss. However, in fact she has suffered no loss because the statutory scheme precludes an employee from complaining of unfair dismissal in these circumstances.”‘34

[11.22] On appeal to the Court of Appeal, this reasoning was upheld.35 Brooke LJ said: ‘I cannot fault this reasoning. I agree with the judge that it would have been open to Parliament, when it reviewed the scheme following Lord Denning’s observations in Brindle, to enable someone in Ms Harper’s position to have a statutory right to claim compensation for unfair dismissal by crafting the new sub-paragraph 5(6) in Schedule 1 of TULRA (see para 7 above) and its subsequent re-enactments (see para 9 above) so that the 34 35

Virgin Net Ltd v Harper [2003] IRLR 831 at para 39. Virgin Net Ltd v Harper [2005] ICR 921.

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[11.23]

Redmond on Dismissal Law

EDT in the case of an employee whose contract of employment was terminated by no or inadequate notice would be the date on which a contractual period of notice, if given, would have expired. But Parliament decided not to adopt its statutory scheme in this way, and I do not consider it is open to the courts, through the machinery of an award of damages for wrongful dismissal, to rewrite Parliament’s scheme and to place a financial burden on employers which Parliament decided not to impose on them … Ms Harper did not lose the right to claim compensation for unfair dismissal: she never had such a right because she fell short of the requirement of one year’s continuous service which Parliament has prescribed as the gateway to such a right. To take any other course would be to expose courts and tribunals to something akin to the chaos which Lord Millett feared. Everyone is now familiar with the statutory scheme for claiming compensation for unfair dismissal. The EDT can generally be identified without too much difficulty, and provided that it falls at a time when the employee has attained his/ her statutory right not to be unfairly dismissed (see para 3 above), then an application may be made to an employment tribunal, subject to the observation of the strict time limits for such applications.’36

[11.23] From the perspective of Irish law – and in light of the distinction in the statutory position noted above as between Irish and English law, with the date of dismissal in the Unfair Dismissals Act 1977 being linked to the date on which the contract would have terminated – it is particularly noteworthy that Brooke LJ went on to state: ‘If [the claimant’s] submissions … are well-founded, a wrongfully dismissed employee whose [effective date of termination] predates the end of his/her first year of employment (perhaps by a number of months) will have the benefit of a much longer limitation period in which to make a claim that the dismissal deprived him/her of the chance of continuing in employment for a longer period and then making a claim for compensation for unfair dismissal. In Ms Harper’s case, this claim cannot be based on the actual facts of her actual dismissal because by statute she has no right to claim compensation for unfair dismissal in respect of that dismissal. Instead, the court would have to speculate about the chances of her being unfairly dismissed on some later hypothetical occasion after her statutory right had accrued. This, in my judgment, would be a very unsatisfactory way of proceeding and would attract the justified opprobrium that was of concern to Lord Millett.’37

[11.24] Given that the Irish legislation is so much more employee-friendly on this point, questions can be raised about whether the concerns expressed in Johnson are of as much force in this jurisdiction. This may be an important point to be considered when the status of Johnson falls to be determined at length by the Irish courts. [11.25] An important early example is Morran v Glasgow Council of Tenants Associations38 where the Inner House of the Court of Session decided the issue on the narrow ground that the employers in that case did have an express contractual right to make a payment in lieu of notice. Had the contract been lawfully terminated by pay in 36 37 38

Virgin Net Ltd v Harper [2005] ICR 921 at 925–926. Virgin Net Ltd v Harper [2005] ICR 921. Morran v Glasgow Council of Tenants Associations [1998] IRLR 67. Also Raspin v United News Shops Ltd [1999] IRLR 9, in which it was held that damages could reflect the fact that by being dismissed in breach of a contractual disciplinary procedure, the employee had lost opportunity to meet the qualifying service period for claiming unfair dismissal.

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[11.29]

lieu of notice, the employee would not have gained the necessary service for a statutory claim.

[11.26] A plaintiff may have a cause of action in contract and in tort arising out of the same circumstances, as happened in Carey v Independent Newspapers.39 The case concerned an action for damages, inter alia, for breach of warranty and negligent misrepresentation or misstatement allegedly brought about by a political correspondent headhunted to work for the defendant. Gilligan J found that the plaintiff was entitled to succeed in tort as well as in contract (the plaintiff had also been dismissed). He affirmed that an employer may be liable in both tort and contract and that a plaintiff does not have to elect between remedies. However, where both actions arise out of the same facts, the court ruled that a plaintiff cannot recover for both, but only for her optimum position. On this basis damages were awarded for breach of warranty.

B.

SPECIFIC CASES

(1) Breach of substantive limitations [11.27] The ‘limited damages rule’ described above limits the courts in computing damages where wrongful dismissal takes the form of termination with no or with incorrect notice of the contract of employment, or where summary dismissal is held unlawful. If dismissal were in breach of contract in the sense of being on impermissible substantive grounds (and not, of course, a lawful summary dismissal) it may not always be sufficient to assess damages on the same basis. It may be true that a defendant is not liable in damages for not doing that which he is not bound to do but if, on the contrary, he has in fact bound himself not to do something, he should be liable to compensate the plaintiff if he acts in disregard of this. [11.28] Since by agreeing to substantive limitations an employer may be found to have limited his prerogative to dismiss, it would be illogical to award an amount of damages to compensate the plaintiff for the time he would have served upon the contract if he had been given proper notice. The very giving of notice would impliedly be restricted by the contract. If, for example, a person is employed for life, subject to restrictions on the employer’s power to dismiss for misconduct, there would seem to be no reason in principle why such an employee, if wrongfully dismissed, should not be compensated in respect of the full loss consequent upon breach. This would be subject to the law on mitigation of damages but the significant difference would be that the employee’s expectation interest in the contract would extend beyond the period of reasonable notice to the remainder of the contract term.

[11.29] The question has been posed in Britain, in cases of substantive restriction on the grounds for dismissal: why should not the damages be at large, limited only by prospective factors such as future possibility of death, dismissal by good cause or resignation of the employee?40 39 40

Carey v Independent Newspapers (Ireland) Ltd [2004] 3 IR 52. McMullen, ‘Enforcing Contracts of Employment ‘Going Back to Basics’ in the Resolution of Employment Rights Disputes’ (1995) 24 ILJ 353 at 360.

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[11.30]

Redmond on Dismissal Law

(2) Breach of procedural limitations [11.30] Again, where an employee is dismissed in breach of an express or implied term in the contract as to procedure, the measure of damages may be different. In Taylor v NUS,41 damages were awarded for wrongful dismissal in breach of a contractual duty to hear but the law reports are unhelpful on the question of computation. The approach of the Court of Appeal in Gunton v London Borough of Richmond42 is unequivocal, however. There the plaintiff was held to be entitled to a contractual right not to be dismissed on disciplinary grounds before the contractual disciplinary procedure had been carried out in due order but with reasonable expedition. Consequently, the period by reference to which the amount of damages should be assessed was held to be a reasonable period from the date of dismissal for properly carrying out those procedures, plus the period of notice to which the employee was entitled. The employer’s common law right to dismiss with due notice did not override the contract’s express provisions. The reasoning in Gunton is attractive, superficially, but it may be criticised for failing to take into account the nature or chief purpose of a disciplinary or dismissal procedure, namely, to ensure that, before a dismissal decision is taken, management provides an employee with the opportunity to defend himself or herself. The process of establishing the facts should be distinguished from that of deciding whether dismissal is justified. The facts may indicate a repudiation of such gravity on the employee’s part as to have justified his or her instant dismissal at the time of breach. Alternatively, they may indicate breach of a lesser nature in which case an employer wishing to terminate the employment relationship must give proper notice. Again they may suggest a breach such as would justify instant dismissal once the procedures are exhausted, or they may establish that an employee could not have been dismissed at all.43 Gunton is premised on the assumption that, once the procedures have been gone through, an employer can dismiss lawfully. This is surely unsound. Moreover, the principle of performance in the manner least disadvantageous to the employer is simply inapplicable in the circumstances. Two British decisions are germane. [11.31] In Boyo v Lambeth London Borough Council,44 the employee obtained damages for loss of chance to work his notice (the defendant had conceded a wrongful dismissal) and damages for loss of chance to enjoy the benefit of the disciplinary procedure. The Court of Appeal generously (in its view) assessed that it would have taken five months to carry out the disciplinary procedure and therefore the employee was entitled to damages for loss of five months’ salary. 41 42 43

44

Taylor v NUS [1967] 1 WLR 532. Gunton v London Borough of Richmond [1980] ICR 755. It may yet emerge that damages may be calculated on the basis of loss of chance to remain in employment notwithstanding the wrongful repudiation, as in Barber v Manchester Regional Hospital Board [1958] 1 WLR 181, and in such Australian cases as Byrne v Australian Airlines Ltd (1994) 120 ALR 274; Nicholson v Heaven and Earth Gallery Pty (1994) 126 ALR 233; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20; and see Ewing, ‘Remedies for Breach of the Contract of Employment’ [1993] CLJ 405. Boyo v Lambeth London Borough Council [1994] ICR 72. Also see Fosca Services (UK) Ltd v Birkett [1996] IRLR 325. See, similarly, a narrow view in Dietman v London Borough of Brent [1988] IRLR 299.

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[11.33]

[11.32] A later case confined Boyo in its application to circumstances where an employer can be accused of acting in bad faith: Janciuk v Winerite Ltd.45 The employee in Janciuk was dismissed with pay in lieu of notice without the contractual disciplinary procedure having been operated. He claimed breach of contract and sought damages for loss of a chance that he might not have been dismissed had he had the benefit of the disciplinary procedure. The EAT held that the measure of loss for an employer’s breach of contract in dismissing without first having followed the disciplinary procedure ‘is based upon an assessment of the time which, had the procedure been followed, the employee’s employment would have continued’. Morison J, President of the Employment Appeals Tribunal, set out the applicable principles: ‘(i)

Where a contract of employment is terminable upon notice, the measure of damages … is the amount which the employer would have been bound to pay had his contract been terminated lawfully, less any receipts by the employee during that period earned by way of mitigation of his loss …

(ii)

When, for the purposes of calculating compensation, the court considers what would have been the loss had the contract been performed, the court assumes that the contract breaker would have performed the contract in a way most favourable to himself. This principle prevents the employee from recovering a windfall payment …

(iii)

Some contracts of employment require the employer to follow a disciplinary procedure before notice of dismissal can be given … In such a case, the employer would be acting in breach of contract if he gave notice terminating the contract without first having followed the correct procedure. The measure of the loss for that breach is based upon an assessment of the time which, had the procedure been followed, the employee’s employment would have continued … At this stage the court is engaged on a process of quantifying damage suffered by a dismissed employee. The court is concerned to know what would have happened, contractually, if instead of unlawfully dismissing the employee the employer had not broken the contract….. For this purpose, the assumption that must be made is that the employer would have dismissed the employee at the first available moment open to him; namely after the procedure had been exhausted. The court is not concerned to inquire whether the employee would have been dismissed had the contract been performed, but rather for how long would the employee have been employed before the employer was contractually entitled to give notice. This is on the assumption that the employer has not been accused of acting in bad faith where other principles might apply.46’

[11.33] In the subsequent Royal Jersey Court decision of McDonald v Parish of St Helier,47 the last sentence in the above passage from Janciuk was considered and the Court noted that it could find no authority in support of any bad faith exception. The Court continued: ‘On the contrary, given that the law is clear that an employer may dismiss on notice capriciously, unreasonably or for no reason at all, it seems hard to see where any question of bad faith may be relevant.’48 45 46 47 48

Janciuk v Winerite Ltd [1998] IRLR 63. Janciuk v Winerite Ltd [1998] IRLR 63 at 63–64. McDonald v Parish of St Helier [2005] JRC 074 (3 June 2005). McDonald v Parish of St Helier [2005] JRC 074 (3 June 2005) at [19].

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[11.34]

Redmond on Dismissal Law

[11.34] In Janciuk, Morison J regarded it as ‘heresy’ to attempt to introduce the loss of a chance into the calculation of damages.49 Such a process seeks to ‘overlay contractual questions with concepts of fairness which, in our view, do not apply’. The courts are reluctant to engage in anything akin to enforcing continuation of contractual employment where an employer has de facto terminated the employment relationship by wrongful dismissal. Notwithstanding Morison J’s aversion to ‘loss of chance’ in the calculation of damages, the amount which an employee would have earned under the contract may be subject to the loss of a chance doctrine, as is the computation of damages when this is so, as Ministry of Defence v Wheeler50 shows. McGregor on Damages51 remarks that the doctrine must not be carried too far in wrongful dismissal or in other cases. For example, case law is clear that it is misconceived to adopt the ‘loss of a chance’ approach regarding applications for jobs to be made in the future after the date of the trial. The ‘loss of a chance’ doctrine was recently applied in Ireland regarding termination of a secondment contract, para [11.63]. [11.35] Edwards v Chesterfield52 concerned two joined cases. In the first, a highly paid consultant was accused of wrongdoing. He was brought before the relevant disciplinary committee. However, there was a procedural flaw in the way the committee was formed. The complainant was dismissed. He argued that that the dismissal had been arrived at in breach of contract. In the second case, a care worker had been accused of gross misconduct towards two teenage girls and, following a disciplinary hearing, he was dismissed. The question for the UK Supreme Court was whether the Johnson exclusion zone applies even when an express term of the contract of employment requires the following of a specific disciplinary procedure.

[11.36] A majority of the Supreme Court held that the Johnson exclusion zone did apply, Lord Dyson confirming that ‘Parliament … could not intended that the inclusion of these provisions in a contract would also give rise to a common law claim for damages for all the reasons given by the House of Lords in Johnson’. According to Lord Dyson, the question in each case, following Eastwood v Magnox Engineering plc,53 is ‘whether or not the loss founding the cause of action flows directly from the employer’s “failure to act fairly when taking steps leading to dismissal” and “precedes and is independent of’ the dismissal process”.’ Lady Hale in dissent noted that there was no reason to believe that Parliament had, by passing the unfair dismissal legislation, intended to foreclose any future development of a common law remedy in this area. 49

50

51 52

53

This concern was fully supported and adopted by the UK EAT in The Wise Group v Mitchell [2005] UKEAT 0693_04_1102 (11 February 2005). Ministry of Defence v Wheeler [1998] 1 WLR 637. See, too, Raspin v United News Shops Ltd [1999] IRLR 9. McGregor on Damages (17th edn, Sweet & Maxwell, 2003) at para 28-005. Edwards v Chesterfield [2012] 2 AC 22; and see Collins, ‘Compensation for Dismissal: In Search of Principle’ (2012) 41 ILJ 208; Costello, ‘Edwards v Chesterfield Royal Hospital: Parliamentary Intention and Damages caused by Maladministration of a Contractual Dismissal Procedure’ (2013) 76 MLR 134. Eastwood v Magnox Engineering plc and McCabe v Cornwall County Council [2004] UKHL 35, [2004] ICR 1064.

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C.

[11.39]

DAMAGES AND THE ELECTIVE THEORY OF REPUDIATORY

BREACH

[11.37] In Chapter 6, the approach of the civil courts concerning repudiatory breach and termination of the contract of employment was discussed. In Société Genérale v Geys,54 it may be recalled, the United Kingdom Supreme Court held that wrongful dismissal does not terminate the contract of employment until the employee has accepted the employer’s repudiation of the contract. This theory poses difficulties for the law of damages. Prior to acceptance, for example, could an employee claim in debt rather than in damages? The advantages of a claim in debt would be that the rules on mitigation would not apply. However, to sustain such a claim, it would be necessary to establish that an employee’s willingness to do the work, not his actual performance of it, sufficed to ground his entitlement to wages. [11.38] Suppose an employee is entitled to three months’ notice and his employer dismisses him summarily on a month’s notice and the facts are such as to justify the view that the employee did not accept the employer’s repudiation of the contract until the end of 10 weeks from the employer’s exclusion of him from its employment. Does the contract continue to subsist during the 10 weeks? Alternatively, may one assume the employer is guilty of a breach of contract continuing de die in diem for refusing to offer the employee employment from the date of exclusion down to the date of acceptance, and that it is thereafter liable for damages on the basis of a wrongful repudiation of the contract? If the latter, could the employee properly claim damages under the second head in relation to a period of three months from the date of acceptance as well as damages (or, indeed, debt) under the first head in relation to the 10-week period? The Court of Appeal answered these interrogatories in Gunton. It declared that the employee’s cause of action in such circumstances would arise at the time when he was wrongfully excluded from his employment and his subsequent acceptance of the repudiation would not create a new cause of action, although it might affect the remedy available for it. In the words of Buckley LJ: ‘the question must, I think, be for how long the servant could have insisted at the date of the commencement of his cause of action, upon being continued by the master in his employment.’55

[11.39] From the context, it is clear that this length of time constitutes the employee’s notice period. This particular application of the principle of performance least disadvantageous to the defendant removes what might have been a major problem with the elective theory. Buckley LJ’s remarks were obiter, however, and arguably incorrect. It will be assumed, for present purposes, that the elective theory is correctly applicable to employment contracts (as to doubts in British case law, see Chapter 6). First, as a matter of principle, there is no reason to justify an employer’s non-action in the face of an employee’s refusal to accept breach. If the former is legally entitled to end the contract of employment by giving proper notice and does not do so, either at all or for an inexcusably long time, why should the victim have to bear the brunt of this? Second, if 54 55

Societe Generale v Geys [2013] 1 AC 523. Gunton v London Borough of Richmond [1980] IRLR 321 at 329.

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one’s baseline principle in law is that the expectations created by the contract are protected, it would be at variance with this to award compensation only for the notice period where a plaintiff by his conduct made it abundantly clear that he wished to carry on in employment. What would be the nature of the employee’s claim in respect of the period beginning with the employer’s breach up to his, the employee’s, acceptance of it? Could an employee claim in debt rather than in damages? This question strikes at the core of the contract bargain. Are wages paid in return for work or for willingness to do the work agreed? Case law on entitlement to pay during absence on grounds of illness supports the notion of pay for willingness to work,56 but such cases differ significantly from the example under discussion in that both parties are there willing to continue the relationship of employment. In sick pay cases, the employer is not in breach. Where an employer is in breach, it would be difficult to uphold the argument that the innocent party, in virtue solely of his willingness to work, could insist on payment for ‘performance’. That would be to confuse the correlative nature of the various obligations in the employment contract.

[11.40] At its simplest, performance in the contract of employment is not an independent phenomenon capable of execution without cooperation from the employer. In White and Carter (Councils) Ltd v McGregor,57 the House of Lords held that if a defendant repudiates a contract the plaintiff need not take steps to mitigate until he has decided to treat the repudiation as having by anticipation put an end to the contract. The plaintiffs were always ready to perform the contract. However the case was peculiar in that the plaintiff was able to perform his part without any cooperation from the defendant and it is generally admitted that, if he had been unable to perform for lack of such co-operation, he could not have sued in debt and must have tried to mitigate the damages.58 Because of the importance of dependent and conditional promises, and of trust and cooperation in the employment relationship, it is suggested that an employee’s claim up to the time of acceptance of the breach by him should lie in damages rather than in debt. That the employee would therefore be under a duty to mitigate his loss need not cause concern. In many cases it will be unreasonable to expect a plaintiff employee to mitigate by ‘accepting’ breach in one fashion or another. It is scarcely unreasonable for a plaintiff to want to remain on in his job. [11.41] In contract, no less than in tort, the wrongdoer must take his victim talem qualem. Just as it is nonsense to talk about a suit for wrongful dismissal at any stage prior to termination of the contract of employment, so it should be regarded as objectionable to apply the same measure of damages to breach taking place during that time. In theory, as well as in fairness, if the elective theory is to be logically consistent, there should be no obstacle in the way of recovering (a) damages for breach of contract up to the time of acceptance of the breach (subject, where appropriate, to the rules of mitigation); and (b) damages thereafter for wrongful dismissal. [11.42] The issue was revisited in Britain in Boyo v Lambeth London Borough Council,59 where one of the questions which arose for consideration was, if an employee 56 57 58 59

See a discussion of the authorities in Osman v Saville Sportswear Ltd [1960] 1 WLR 1055. White and Carter (Councils) Ltd v McGregor [1962] AC 413. Lawson, Remedies of English Law (2nd edn, Butterworths, 1980) at 69. Boyo v Lambeth London Borough Council [1994] ICR 72, see para [11.31] above.

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keeps the contract alive following the employer’s wrongful repudiation is he able thereafter to claim arrears of wages in debt until the contract is lawfully determined or is his claim solely in damages? The majority of the Court of Appeal regarded recovery of wages in debt as an impossibility after a wrongful dismissal. However, Staughton LJ made the point that if he were not constrained by Gunton he would have awarded the salary claimed by the plaintiff up to the date of trial, but as he considered that the contract was unilaterally terminated he considered that the employee’s only entitlement lay in damages.

[11.43] In the Australian case of Byrne v Australian Airlines,60 Gray J gave it as his view that in an hypothesis where an employee rejected a wrongful repudiation and tried to keep the contract alive, the employee had: ‘an entitlement either to damages for lost wages, subject to any requirement [to] mitigate loss, or to wages if [he has] remained ready and willing to perform [his] contract and the [employer] has declined to provide [him] with work.’

D.

DISTRESS REGARDING MANNER OF DISMISSAL AND INJURY TO REPUTATION [11.44] The first major difficulty in this respect concerns compensation for loss of reputation and injury to feelings. As Kennedy CJ observed in Kinlan v Ulster Bank Ltd:61 ‘It [was] very clearly settled, both in this country and in England, and affirmed in many cases, that in actions for breach of contract, damages may not be given for such matters as disappointment of mind, humiliation, vexation or the like.’

[11.45] Hurt feelings have no place in traditional commercial relationships and judicial reluctance to award damages for mental distress, or to take into account the way in which the defaulting party acted in breaching the contract flows from the assumption ‘that businessmen have thick skins and care only about compensation for losses to the pocketbook’.62 In the context of damages for the manner of dismissal, it has been pointed out63 that three types of claim should be distinguished: distress or non-pecuniary loss arising from the shock of summary dismissal; psychiatric illness caused by a breach of contract leading to long-term unemployment, presented as either a breach of the implied term of mutual trust and confidence64 or a breach of an employer’s duty of care 60 61

62

63 64

Byrne v Australian Airlines (1994) 120 ALR 274 at 338. Kinlan v Ulster Bank Ltd [1928] IR 171 at 184. See, in a similar vein, Parker v Cathcart (1866) 17 ICLR 778. See Costello, ‘Measuring Damages in Breach of Contract Cases – Some Recent Irish Decisions’ (1978) Lecture No 112, Society of Young Solicitors; Markson, ‘Commercial Contracts: Damages for Distress?’ (1979) 129 NLJ 359. In McGrath v Minister for Justice [2001] ELR 15 the High Court awarded general damages in the case of a wrongful suspension for ‘the stress and anxiety and the general disruption to ... enjoyment of life’. The decision was overturned on appeal: [2003] 1 IR 622. Swinton, ‘Contract Law and the Employment Relationship: the Proper Forum for Reform’ in Reiter and Swan (eds), Studies in Contract Law (Butterworths, 1980) 357 at 364; also by same author, ‘Foreseeability and Where Should the Award of Contract Damages Cease?’ in Reiter and Swan (eds), Studies in Contract Law (Butterworths, 1980) 61. See Cabrelli (2016) 45 ILJ 207, 215–216. On which see Ch 5 above.

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arising in tort;65 and a claim for stigma damages seeking redress for damage to employability resulting from the manner of the dismissal or breach of contract.66

[11.46] The Chief Justice in Kinlan cited a number of authorities in support of his statement, among them Addis v Gramophone Co Ltd,67 which left as its legacy a restrictive approach to the measure of damages for wrongful dismissal. In Addis, the plaintiff was dismissed in a harsh and humiliating manner. It was held that the manner of his dismissal could not affect any damages to which he was entitled. Until recently the decision was looked upon as illustrating that in actions for wrongful dismissal a plaintiff was unlikely to recover exemplary damages, aggravated damages, damages for noneconomic loss consisting of injury to feelings, or damages in respect of loss of reputation caused by the manner of dismissal.68 Four of the five Law Lords rejected the plaintiff’s claim representing injury to his feelings and the increased difficulty he experienced in obtaining other employment as a result of the defamatory nature of his dismissal from employment.69 Addis has been described as encapsulating a view of dismissal that regards it as ‘the totemic contractual prerogative’.70

[11.47] In Britain, damages for loss of reputation have always been recoverable in one exceptional situation – where loss of publicity would be sustained by the plaintiff. This arises where enhancement of a plaintiff’s reputation by publicity was particularly contemplated by the contract, so that it might be regarded as a head of damage 65 66

67

68

69

70

See now Ruffley v Board of Management of St Anne’s School [2017] IESC 33. In this regard see the analysis of the case law from Malik v Bank of Credit and Commerce International SA [1998] AC 20 up to Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 analysed in Ch 5 above. Addis v Gramophone Co Ltd [1909] AC 488 at 495–496 per Lord Atkinson; followed in Shove v Downs Surgical plc [1984] ICR 532 at 542; Bliss v South-East Thames Regional Health Authority [1987] ICR 700; O’Laoire v Jackel International Ltd (No 2) [1991] ICR 718; French v Barclays Bank plc [1998] IRLR 646; Malik v BCCI [1998] AC 20. See British Guiana Credit Corporation v Da Silva [1965] 1 WLR 248, wherein the Privy Council refused to allow damages for wrongful dismissal under the head of ‘humiliation, embarrassment and loss of reputation’. See also Withers v General Theatre Corporation [1933] 2 KB 536, subsequently overruled in part in Malik. However rather than formulating a limited damages rule, the Law Lords articulated several inconsistent propositions about the bases upon which damages should not be awarded: Freedland, The Personal Employment Contract (OUP, 2003) at 358. One aspect of the decision has often been criticised (eg, Freedland, ibid, 248) ie the difficulty of deciding whether the House of Lords went to the further lengths of holding that damages could not be recovered for loss of prospects of other employment resulting from the fact of the dismissal as opposed to the damaging manner of the dismissal. One of the five Law Lords, Lord Loreburn, committed himself to such a proposition (at 491). If that further rule were to result from the case, an employee could not recover damages attributable to the fact that dismissal prevents him from obtaining a qualification or a fund of experience which he would have gained from the employment had he not been dismissed, and which would have increased his ability to obtain, or his earnings in, subsequent employment. A belief that the majority of the House of Lords endorsed that view appears from the Court of Appeal decision in Dunk v George Waller & Son Ltd [1970] 2 QB 163. Bogg and Freedland, ‘The Wrongful Termination of the Contract of Employment’ in Freedland (ed), The Contract of Employment (OUP, 2016) 537 at 543.

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contemplated by the parties themselves when entering into the contract. The proposition was first established with regard to actors in Marbé v Geo Edwardes71 and confirmed by the House of Lords in Clayton v Oliver.72 In the latter, Lord Buckmaster said he thought ‘loss of reputation’ was not the exact expression and ‘loss of publicity’ should be used.73 This head of damage was extended from actors to authors, or at least to the author of a screen play entitled to a screen credit in Tolnay v Criterion Films.74 Goddard J pointed out that: ‘all persons who have to make a living by attracting the public to their works, be they ... painters or ... literary men ... or ... pianists and musicians, must live by getting known to the public.’75

Not all claims for loss of publicity have succeeded. Thus, a chief sub-editor,76 a surveyor to a local authority77 and a company director,78 have failed to establish loss of publicity as a result of dismissal.

[11.48] The law concerning damages for disappointment has undergone some very important developments. It is now well established that in appropriate cases the victim of a breach of contract can claim for mental distress as a result of the breach. In Heywood v Wellers,79 James LJ described the law: ‘if it is within the contemplation of the contracting parties that a foreseeable result of a breach of the contract will be to cause vexation, frustration or distress, then if a breach occurs which does bring about that result, damages are recoverable.’80

[11.49] Cases on damages for disappointment cover two separate lines of development. A high proportion involve spoiled holidays or something akin thereto,81 where the disappointment suffered on breach is the reverse side of the contract (see McMahon J in Johnson v Longleat Properties (Dublin) Ltd,82 a case concerning breach of a building contract). The second category of cases constitutes the most significant development in this area of contract damages.83 Here, pleasure and distress are not so intimately 71 72 73 74 75

76 77 78 79 80 81

82

83

Marbé v Geo Edwardes [1928] 1 KB 269. Clayton v Oliver [1930] AC 209; followed in McLaren v Chalet Club (1951) 1 CLC 2508. Clayton v Oliver [1930] AC 209 at 220. Tolnay v Criterion Films [1936] 2 All ER 1625. Tolnay v Criterion Films [1936] 2 All ER 1625 at 1626–1627. Goddard J thought that the loss of publicity to an actor whose worth the public can only establish by seeing him perform, is more serious that in the case of an author: at 1626. Collier v Sunday Referee Publishing Co [1940] 2 KB 647. Moss v Chesham UDC (1945) 172 LT 301. Re Gollomb (1931) 144 LT 583. Heywood v Wellers [1976] 1 All ER 300. Heywood v Wellers [1976] 1 All ER 300 at 308. The relevant authorities include: Diesen v Samson [1971] SLT 49; Jarvis v Swans Tours Ltd [1973] 1 All ER 71; Jackson v Horizon Holidays Ltd [1975] 3 All ER 92; Cox v Phillips Industries Ltd [1976] 1 WLR 638. Johnson v Longleat Properties (Dublin) Ltd (1978) 13 Ir Jur 186; see, too, Quinn v Quality Homes (21 November 1977) HC. Canadian cases also deal with this head of damages. See Tippett v International Typographical Union Local 226 (1977) 71 DLR (3rd) 146; Newell v Canadian Pacific Airlines (1977) 14 OR 752.

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connected with the contract. Cases have concerned, for example, wrongful demotion (note: not dismissal): Cox v Philips Industries.84 Cox, which came before Lawson J in the EAT, concerned an industrial engineer who had been relegated to a position of lesser responsibility. His salary remained the same but his relegation, which was in breach of a term in his contract whereby the employing company promised him a position of higher responsibility, was held to have exposed him to a good deal of depression, vexation and frustration and to have led to ill health. The question was whether he could be awarded damages in respect of such matters for breach of contract? In the judgment of Lawson J: ‘... this is a case where it was in the contemplation of the parties in all the circumstances that, if that promise of a position of better responsibility without reasonable notice was breached, then the effect of that breach would be to expose the plaintiff to the degree of vexation, frustration and distress which he in fact underwent.’

The judge saw no reason why, if a situation arises which within the contemplation of the parties would have given rise to vexation, distress and general disappointment and frustration, the person who is injured by a contractual breach should not be compensated in damages for that breach. In Cox the emphasis was skilfully placed to rest upon breach of the contract of employment. Since he had already received the appropriate compensation (wages in lieu of notice) to which he was entitled under his contract, the plaintiff would have recovered nothing at all had he brought an action for damages for wrongful dismissal. In Garvey v Ireland,85 the Irish High Court seemed to prefer the decision in Addis to that of Cox.86 McWilliam J accepted that the sole remedy a dismissed employee has (subject to being employed by the State, when punitive damages may be awarded) is an action in defamation. 84 85

86

Cox v Philips Industries [1976] 1 WLR 638 at 644. Garvey v Ireland [1981] IR 75. Garvey was distinguished by Smyth J in Sharkey v Dunnes Stores [2004] IEHC 163, where he noted that in both Garvey and Gunn v Bord an Choláiste Náisiúnta Ealaíne is Deartha [1990] 2 IR 168 the plaintiffs were office holders whereas in the case before him the complainant in the instant case was an employee. He held that whether legal liability should be imposed must be ascertained by reference to the contract of employment. In the instant case, there was no written contract provided in evidence, nor was the complainant an office holder nor did any particular statute govern the employment relationship in question as there had been in O’Donnell v Dun Laoghaire Corporation [1991] 1 ILRM 301. The authority of the judgment in this respect may, however, be doubted. Note that the courts in other common law jurisdictions have from time to time circumvented or disregarded Addis, eg Fitzgibbon v Westpres Publication Ltd (1983) 30 DLR (4th) 366; Brown v Waterloo Regional Board of Commissioners of Police (1982) 136 DLR (3d) 49; Pilon v Peugeot Canada Ltd (1980) 114 DLR (3d) 378; Ogilvy and Mather (New Zealand) v Turner [1996] 1 NZLR 641. The Supreme Court of Canada in Wallace v United Grain Growers Ltd [1977] 3 SCR 701 specifically referred to the duty of good faith it recognised in that case as extending to protection against an unduly insensitive manner of dismissal: per Iacobucci J at [98]. The Court of Appeal in Gogay v Hertfordshire County Council [2000] IRLR 703 awarded damages for breach of the implied obligation of trust and confidence in suspending an employee. It distinguished Addis in that the employee in the case before it suffered psychiatric illness rather than hurt feelings and had been suspended not dismissed. Cox was applied in an ex tempore judgment by Smyth J (High Court) in O’Byrne v Dunnes Stores [2003] ELR 297 where the court found the employee had been bullied by a manager in an attempt to get him to transfer. (contd.../)

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[11.50] Addis was affirmed by the Court of Appeal of England and Wales in Bliss v South East Thames Regional Health Authority.87 Dillon LJ observed that until the House of Lords reconsiders Addis the rule preventing damages for injured feelings in wrongful dismissal cases is too firmly fixed. The Court unanimously overruled Cox. Cox should be viewed as turning on its own particular facts.

(1) Malik undermines Addis [11.51] The House of Lords revisited that aspect of the ratio in Addis regarding damages for injury to future employment prospects, so-called ‘stigma’ damages in Malik and Mahmood v Bank of Credit and Commerce International SA,88 para [5.28]. The litigation arose out of the collapse of the defendant, BCCI. The House of Lords decided that the employees’ contracts contained an implied term that the bank would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or 86

87

88

(\...contd) These actions constituted a breach of contract. The plaintiff had not been dismissed, hence Addis could be distinguished. In Carey v Independent Newspapers (Ireland) Ltd [2004] 3 IR 52, the High Court (Gilligan J) commented that it was ‘interesting to note’ that other jurisdictions had not followed Addis, referring to the decision of the High Court of New Zealand in Stuart v Armourguard Security [1996] 1 NZLR 484. More recently, in Nerney v Thomas Crosbie Holdings Ltd [2013] IEHC 127, Laffoy J in the High Court referred to Addis as having ‘been followed in this jurisdiction’ but proceeded to state (at [60]) that she did ‘not consider it necessary to consider the current status in this jurisdiction of the principle established in … Addis’. More recent case law, however, has indicated staunch support for the Addis orthodoxy: in the Supreme Court decision in Murray v Budds [2017] IESC 4, the Supreme Court unanimously held that Addis ‘remains the law in Ireland’ (per Denham CJ at [49]). It is important to emphasise, however, that Murray was a professional negligence action and not an employment case; nor was any analysis offered in Murray of the case law set out above. Another potentially significant authority in this jurisdiction is Ogieriakhi v Minister for Justice and Equality [2017] IESC 52. There the High Court (Hogan J) had considered Addis and was critical of its impediment towards the vindication of rights of an employee arising from the manner of his dismissal. As Hogan J put it: ‘The act of dismissal … often sends the signal to future employers that the employee is not fit to be re-hired. The gist of the damage to the plaintiff’s good name was the immediate and unlawful termination of his contract of employment with [the employer].’ Hogan J concluded that the plaintiff had been summarily dismissed over his protests that he had a legal entitlement to work in this jurisdiction ‘in circumstances that must have been personally humiliating and undignified. To make matters worse, his dismissal was totally unrelated to his work performance or the necessity for the company to re-structure its business. The summary nature of the dismissal created the impression that he was not lawfully entitled to work and perhaps worse’ (see para. 101). The Court of Appeal strongly disagreed with the approach adopted by the High Court. Whilst the approach of the Court of Appeal was upheld by the Supreme Court, it is interesting for present purposes to note the comment of O’Malley J at [111] suggesting that a freestanding cause of action may exist in this jurisdiction arising from the manner of dismissal. Bliss v South East Thames Regional Health Authority [1987] ICR 700; O’Laorie v Jackel Int Ltd [1991] ICR 718; French v Barclays Bank plc [1998] IRLR 646. Malik and Mahmood v Bank of Credit and Commerce International SA [1998] AC 20. In Husain v BCCI [2002] EWCA Civ 82 former employees of BCCI failed to get stigma damages as the cause of their failure to find work was not the bank; the Court of Appeal agreed.

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seriously damage the relationship of confidence and trust between employer and employee. Moreover, the bank was under an implied obligation not to conduct a dishonest or corrupt business.

[11.52] The two employees had been summarily dismissed on grounds of redundancy. Subsequently it became public knowledge that the bank had been operating in a dishonest manner. The plaintiffs relied on ‘a standardised term implied by law’89 of mutual trust and confidence. The House of Lords did not feel constrained to follow Addis because it had been decided before the implied duty of trust and confidence emerged. Lord Nicholls put it thus: ‘Now that this term exists and is normally implied in every contract of employment, damages for its breach should be assessed in accordance with ordinary contractual principles. This is as much true if the breach occurs before or in connection with the dismissal, as at any other time.’

According to one view:90 ‘... it is possible to envisage successful claims – for example where prior to an imminent wrongful dismissal, an employer alleges incompetence merely to strengthen its hand in negotiating an exit package. If the employee has difficulty in finding future employment and can prove this was caused by the employer’s conduct, there is no reason why damages could not be recovered under the principle in Malik.’

[11.53] Malik did not alter Addis’ finding that there could be no damages for distress caused by dismissal. The Lords were not concerned with damages for distress; the damages sought by the claimants were in respect of financial losses arising after the termination of their employment, they concerned an alleged breach of contract which was not concerned with the termination of their employment but with the way their employer behaved during their employment. McMullen correctly observed: ‘The implied duty of trust and confidence is arguably just as relevant to recovery of damages for distress as for the ability to obtain future employment91 ... In sex, race and disability discrimination law, damages can of course be obtained for distress (albeit of course because damages are to be assessed on a tortious basis). In looking at the employment relationship as a whole, therefore, it does seem wrong to give a worker a claim under statute that arises from his contractual relationship with his employer but at the same time to deny that very same claim under the contract of employment on which the statutory claim is based.’

[11.54] In Malik their Lordships held there is no bar to recovery of damages for breach of the implied term if the breach is discovered only after the employee leaves. Otherwise 89

90

91

Per Lord Steyn at [1997] 3 All ER 15, citing Scally v Southern Health and Social Services Board (British Medical Association) third party [1991] 4 All ER 563 at 572, where the House of Lords implied a term that all employees in a certain category had to be notified by an employer of their entitlement to certain benefits. See also Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 at 670 approved in Lewis v Motorworld Garages Ltd [1986] ICR 157 and Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 2 All ER 597. McMullen, ‘Extending remedies for breach of the employment contract’ (1997) 26 ILJ 245 at 247. On the rejection of Addis in other common law jurisdictions, see above n 86.

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an employer could conceal a breach and benefit from its own wrongdoing. Malik is potentially highly persuasive in Ireland, affording an employee an additional head of claim where his job prospects have been damaged as a result of a breach by the employer of the trust and confidence obligation. McGregor on Damages92 describes Malik as: ‘of great importance as it recognises for the first time that damages may be recoverable for financial loss arising from damage to an employee’s reputation resulting from breach of the employment contract, thereby making an inroad upon the common understanding of Addis. As the law now stands there can be no recovery for mental distress whether regarded as arising from injury to feelings or injury to reputation, even where there is breach of the implied term of trust and confidence ... But this could now change.’

(2) Johnson [11.55] Johnson is discussed in para [5.32]. The applicant claimed that his dismissal was in breach of the implied obligation of mutual trust and confidence as it was effected without a fair hearing and in contravention of the employer’s disciplinary procedure. His subsequent claim of unfair dismissal succeeded. Two years later the employee commenced common law proceedings, claiming that the company was negligent and/or that it had acted in breach of the implied duty of trust and confidence in dismissing him without a proper hearing and in breach of the contractual disciplinary procedure. He contended that the manner of his dismissal had resulted in a psychiatric breakdown, depression, heavy drinking and attempted suicide. He had been admitted to a psychiatric hospital in 1994 and re-admitted since then. He claimed he would be unable to find employment again and sought damages of £400,000 for loss of earnings. [11.56] The House of Lords reasserted the restrictive approach of almost a century earlier. It held that Malik did not justify a breach of contract claim for damages regarding the manner of dismissal and that a common law right embracing the manner of dismissal could not co-exist with the statutory right of unfair dismissal. Addis still stood in the way of recovery of damages for injured feelings, mental distress or damage to reputation arising from the manner of dismissal. Chapter 5 detailed Ireland’s endorsement of Johnson in McGrath v Trintech93 and queried the High Court’s rationale in so far as it was clearly the intention of the Oireachtas when enacting the Unfair Dismissals Act in 1977 that a plaintiff would have a choice between the common law and statute regarding the remedy he or she would pursue: para [5.41]. The substantial criticisms of Lord Nichols and Lord Steyn of Johnson in Eastwood v Magnox Engineering plc94 were detailed in Chapter 5. Significantly, Lord Steyn regarded it as wrong now to assume that Addis reflected settled law which made impossible the developments contended for in Johnson. Referring to observations by the 92 93

94

McGregor on Damages (17th edn, Sweet & Maxwell, 2003) at 28–024. McGrath v Trintech Technologies Limited [2005] 4 IR 382. See also Orr v Zomax Ltd [2004] 1 IR 486. Eastwood v Magnox Engineering plc and McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503; [2004] ICR 1064.

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Law Lords including himself in Malik he asserted that on a careful reading of Addis it will be seen: ‘that there was no majority for ruling out the recovery of financial loss flowing from the manner of a wrongful dismissal ... The reasoning of the majority in Johnson did not reinvigorate the corpse of Addis.’95

[11.57] In Ireland the Superior Courts in an appropriate case could avoid the illogicalities regarding the ‘Johnson demarcation line’ which result in the power to suspend having to be exercised with due regard to trust and confidence (or fairness) but the more drastic power of dismissal being exercised free of any equivalent constraint. There is no reason why the express power of termination and the implied obligation of trust and confidence should not co-exist so that damages might be recoverable for injury caused by a harsh and humiliating dismissal.

(3) Repudiatory act and constructive dismissal [11.58] The plaintiff successfully alleged in the High Court that she was constructively dismissed in Pickering v Microsoft Ireland Operations Ltd96 (for the facts, see para [6.21]). Notwithstanding that the case was one of constructive dismissal Smyth J found that the plaintiff was entitled to ‘reasonable notice’, which, because of her seniority and length of service, he placed at six months. She was thus entitled to six months’ net loss of earnings ‘from which should be deducted the disability benefit received by the plaintiff during that period. The plaintiff is also entitled to one half of her annual car allowance.’ This finding is flawed: in a case of constructive dismissal the employee is terminating the contract in response to the employer’s fundamental breach. No notice arises on the employer’s side. Smyth J unequivocally endorsed Johnson; he was: ‘satisfied that the position at common law continues to be that an employer is entitled to dismiss an employee for any reason or no reason, on giving reasonable notice, and that damages for the manner of a dismissal are confined to those damages to which an employee would be entitled for the notice period and do not include damages for the manner of a dismissal. Furthermore, nor can an implied term, such as for example, an implied term of mutual trust and confidence, be relied on to circumvent that principle.’97

E.

PENSIONS AND PERQUISITES

[11.59] The law concerning damages for wrongful dismissal is neither well developed nor consistent in the matter of protecting an employee against pecuniary loss other than loss of basic earnings. Mere factual expectations in excess of legal rights are not, it would seem, recoverable. Pension rights are perhaps the most important fringe benefits to be considered in calculating damages for wrongful dismissal.98 The general principle applicable to assessing damages for loss of pension rights is the same as that which is 95

96 97 98

Eastwood v Magnox Engineering plc and McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503; [2004] ICR 1064, 48. Pickering v Microsoft Ireland Operations Ltd [2006] ELR 65. Per Smyth J at 114. They form a recognised head of damages in calculating damage for wrongful dismissal: see Bold v Brough, Nicholson & Hall Ltd [1964] 1 WLR 201; cf, Judd v Hammersmith Hospital Board of Governors [1960] 1 WLR 328.

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applied to compensation generally for wrongful dismissal: namely, an employee ought to be put in as good a position as he would have been if the employer had performed the contract, assuming that the employer had performed the contract in the manner least disadvantageous to himself.99 A claim for damages for loss of pension rights resulting from dismissal essentially takes the form of a claim in respect of the loss of the increase in the value of pension rights which would have been enjoyed had it not been for the dismissal. If an employee had remained in employment, his pension would have become more valuable. He is compensated for the fact that this increase in value has not occurred. If, however, the continuation of pension contributions, or the ultimate payment of benefit, is a matter within the discretion of the employer and not a legal obligation upon him, then the rule of least disadvantageous performance may be applied, and no damages are payable under this head.100

[11.60] If there is any question of deprivation of a vested right in a company’s pension scheme the courts adopt a more rigid approach. This was illustrated in Glover v BLN Ltd,101 where the general rules governing the employing company’s pension scheme were to the effect that no damages could be recovered for loss of benefit thereunder. A rule headed ‘Employer’s right to discharge employees’ read: ‘Membership of the scheme shall not in any way restrict the right of the employer to discharge any of his employees and the benefits provided for under the scheme shall not be made the grounds for increasing a claim for damages in any action brought by a member against his employer.’

[11.61] Clause 3 of the declaration of trust executed by the employer’s trust company was also relevant. It provided that the assurances would be held by the trustee (ie the trust company) upon certain trusts and: ‘in the event of the employment being terminated by the employer before normal pension date for any reason other than fraud or misconduct, [the assurances would be held on trust] ... for the member.’

Kenny J held that, as Glover had not been lawfully discharged for fraud or misconduct, he had a vested right in the policy of assurance when his contract was terminated. A rule which is intended to deprive anyone of a vested right must be very clearly worded.102 In his view, the above rule meant that an employee who had been discharged could not include future benefits under the scheme as part of his damages if his dismissal was not lawful. It did not take away Glover’s vested rights in the policy. 99

100

101

102

Elias, Wallington & Napier, Labour Law Cases and Materials (Butterworths, 1980) at 253; Silvey v Pendragon plc [2001] IRLR 685. Beach v Reed Corrugated Cases Ltd [1956] 1 WLR 807 distinguished in Bold v Brough Nicholson & Hall Ltd [1964] 1 WLR 201. Glover v BLN Ltd [1973] IR 432, distinguished in Hickey & Co Ltd v Roches Stores (Dublin) Ltd [1980] ILRM 107. See on share options, exclusion clauses and wrongful dismissal: Micklefield v SAC Technology Ltd [1991] 1 All ER 275. And see Levett v Biotrace Int plc [1999] IRLR 375 and Takacs v Barclays Services Jersey Ltd [2006] IRLR 877.

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[11.62] Where loss of earnings are claimed, pension benefits which may become payable to a plaintiff as a result of the dismissal should not reduce the amount of damages otherwise payable by the employer: Hopkins v Norcross.103 [11.63] Apart from loss of pension rights, a wrongfully dismissed employee is entitled to damages representing loss of earnings in kind,104 but bonus payments, overtime, incentive payments or commission105 may be recovered only if the employee can show that the employer was contractually bound to allow him to earn them. Because the courts have built on the traditional theory of the commercial nature of the employment contract, ex gratia payments and discretionary future financial benefits cannot be secured, no matter how much they may enhance the incentive to work. An employer exercising a discretion which on the face of the contract of employment is unfettered or absolute will be in breach of contract if no reasonable employer would have exercised the discretion in that way: Clark v Nomura International plc.106 [11.64] The provision in a service agreement that ‘the executive’s salary shall be reviewed annually and be increased by such amount, if any, as the board shall in its absolute discretion decide’ was held by the High Court (Walker J) in Britain to amount to a contractual obligation by the employer to provide, and a contractual right in the plaintiff to receive, an annual upward adjustment in salary: Clark v BET plc and Anor.107 It was only the amount which was in the absolute discretion of the board, and if it acted capriciously or in bad faith exercised its discretion so as to determine the increase at nil, that would have been a breach of contract. The contract also provided: ‘The executive will participate in a bonus arrangement providing a maximum of 60% of basic salary in any year.’ The court rejected the employer’s argument that it was entitled to perform the 103 104

105

106

107

Hopkins v Norcross [1992] PLR 109. See, on board and lodgings: Mulcahy v O’Sullivan and Walsh [1944] IR 336; in relation to domestic servants see the anomaly that ‘board wages’ are not recoverable: Gordon v Potter (1859) 1 F & F 644, qualified by Lindsay v Queen’s Hotel Ltd [1919] 1 KB 212; free luncheon vouchers are unlikely to be recoverable: McGrath v de Soissons (1962) 112 LJ 60; expenses for remainder of fixed-term contract are not recoverable: Glover v BLN Ltd [1973] IR 388, 435. The last case makes it clear that a claim may be made for loss of a company car where this was available under a person’s contract of employment. Loss of a company car was considered in detail in Shove v Downs Surgical plc [1984] ICR 532. Bonus payments must be distinguished from separate ‘consensual emoluments’: Cox v ESB [1944] IR 81, 89. ‘Danger money’ was awarded in Byrne v Limerick SS Co [1946] IR 138. Loss of future discretionary bonuses is not recoverable: Lavarack v Woods of Colchester Ltd [1967] 1 QB 278, Pickering v Microsoft Ireland Operations Ltd [2006] 17 ELR 65. See Njoya, ‘The Contract of Employment, Corporate Law and Labour Income’ in Freedland (ed), The Contract of Employment (OUP, 2016) 253 at 259. Re commission see Rhodes v Forwood (1876) 1 App Cas 256 and on the question of commission agents, Ward v Spivack Ltd [1957] IR 40. In Levett v Biotrace Int plc [1999] IRLR 375 share option scheme did not lapse where contract of employment terminated in breach of contract. Scheme did not provide for shares to lapse upon termination of employment ‘howsoever occasioned’. Clark v Nomura International plc [2000] IRLR 766, approved in Horkulak v Cantor Fitzgerald International [2005] ICR 402. Clark v BET plc and Anor [1997] IRLR 342. Cf Commerzbank AG v Keen [2007] IRLR 132; Ridgway v JP Morgan Chase Bank [2007] EWHC 1325 (QB).

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contract in the manner most favourable to it and that the plaintiff would have received no bonus at all or a bonus of only 6%. For the employers to provide bonus arrangements under which in practice it was not possible to achieve a bonus of 60% would be a breach of contract ‘in that it would defeat the purpose of the contract to set targets which were incapable of performance’.

[11.65] It is arguable that there should be recognition in damages of the loss of statutory seniority rights, for example, for the loss of accrued service for purposes of entitlement to a minimum period of notice under the Minimum Notice and Terms of Employment Act 1973 or to remedies for unfair dismissal under the Unfair Dismissals Acts 1977–2005 or for purposes of entitlement to redundancy pay under the Redundancy Payments Acts 1967–2003. In Britain, redundancy payments are not deducted from damages for wrongful dismissal: Basnett v J & A Jackson Ltd.108 In Basnett the court accepted that a redundancy payment is analogous to a pension; it is payable regardless of wrongful dismissal and may be equated with a private insurance scheme paid for by the employer’s work.109

F.

LIABILITY TO INCOME TAX

[11.66] A wrongfully dismissed employee lacks the foresight to engage in tax planning in order to reduce his liability to income tax. The law governing calculation of the effect of tax liability on damages for loss of earnings or earning capacity is unsatisfactory and controversial.110 Liability to income tax is not something which concerns only the plaintiff and the Revenue Commissioners, for the courts have decided that in computing damages for wrongful dismissal regard must be had to the fact that, but for the dismissal, a plaintiff would have had to pay tax in respect of the income which he would have received. The question of deduction for tax purposes came to a head in British Transport Commission v Gourley.111 There, the House of Lords112 held that when a plaintiff’s damages arising out of personal injuries include a sum for loss of future 108

109 110

111

Basnett v J & A Jackson Ltd [1976] ICR 63. See, contra, the earlier case of Stocks v Magna Merchants Ltd [1973] ICR 530, which the NIRC declined to follow in Yorkshire Engineering and Welding Co Ltd v Burnham [1974] ICR 77. See a note on Basnett in (1976) 5 ILJ 180. Parry v Cleaver [1970] AC 1. In Nerney v Thomas Crosbie Holdings Ltd [2013] IEHC 127, this comment from the second edition of this work was said to have been borne out by the evidence and submissions placed before the High Court (per Laffoy J at 47). British Transport Commission v Gourley [1956] AC 185. See a devastating analysis and demolition of Gourley in Bale, ‘British Transport Commission v Gourley Reconsidered’ (1966) 44 Can B R 66; it deals with all the cases and literature. See also Luntz, Assessment of Damages for Personal Injury and Death (Butterworths, 1974) at 159; Street, Principles of the Law of Damages (Sweet & Maxwell, 1962) at 88; Wylie and McGlynn, ‘Taxation, Damages and Compensation for Unfair Dismissal’ (1978) NLJ 550; Samuels, ‘Gourley Revisited and Rejected’ (1967) 30 MLR 83 re rejection of Gourley by Supreme Court of Canada in Ontario v Jennings (1966); Dworkin, ‘Damages and Tax, a Comparative Survey’ [1967] British Tax Review 315; McGregor, ‘Compensation versus Punishment in Damages Awards’ (1965) 28 MLR 629; Hall, ‘Taxation of Compensation for Loss of Income’ (1959) 73 LQR 212; Jolowicz, ‘Damages and Income Tax’ (1959) 17 CLJ 86; Roach, ‘Damages for loss of earnings in personal injury claims’ (1959) 33 ALJ 11; (contd.../)

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earnings and that sum is not chargeable to income tax or sur-tax, a deduction for the tax which the plaintiff would have had to pay if he had received the earnings in the future must be made. When damages had to be computed in the Irish case of Glover v BLN Ltd,113 Kenny J followed the House of Lords. Before that time, deduction of notional tax liability from damages had not been the practice of the Irish courts, although Kenny J had raised the matter in Carvill v Irish Industrial Bank Ltd.114 In Glover, the High Court was prepared to have regard to ‘realities rather than technicalities’115 and, following the reasoning of the House of Lords, it took cognisance of the importance of income tax and (then relevant) sur-tax in the ‘economic lives of so many of our citizens’. Kenny J rejected counsel’s contention that Gourley applied only to loss of remuneration in accident cases and not, as in the case before him, to loss of remuneration arising out of wrongful dismissal. The principle was the same in both instances: ‘the damages are compensation for being deprived of the opportunity to earn.’

[11.67] There could be no logical basis for the application of a different rule in each case.116 In Glover, the House of Lords decision only affected taxation of such amount of the damages as was not in excess of (now) €10,160; the sum above this figure was liable to tax in any event under ss 8 and 9 of the Finance Act 1964 (cf today s 123 of the Taxes Consolidation Act 1997 and the various reliefs set out in s 210 of that Act and Schedule 3 thereto). [11.68] Glover may be criticised on a number of grounds. First, it enables an offender to profit at the expense of an injured party while at the same time, it must be remembered, the Revenue Commissioners do not get the amount by which the damages are reduced. Further, a judicial estimation of the amount of tax is open to the possibility 111

112 113 114

115 116

(\...contd) Powell, ‘Taxation of Payments received on Termination of Employment’ (1981) ILJ 239. PILON is taxable as emolument from employment: EMI Group Electronics Ltd v Coldicott (HM Inspector of Taxes) [1999] IRLR 630. On taxation of settlement agreements, the High Court distinguished payment negotiated prior to termination of employment and payment agreed following dismissal in breach of contract: Richardson (Inspector of Taxes) v Delaney [2001] IRLR 663. Only the latter is tax advantaged. By a majority of 6:1. Glover v BLN Ltd [1973] IR 388. Carvill v Irish Industrial Bank Ltd [1968] IR 325 at 338: ‘I do not think it necessary to express any opinion on whether there should be a deduction for the income tax which the plaintiff would have had to pay on the sum of £2,500 or on the question whether this sum, if awarded to the plaintiff without any deduction for income tax, would have been taxable in his hands’. See, too, Kenny J’s judgment in In re Trusts of Will of Simon Sheil; Browne v Mulligan (23 November 1977) SC, where he noted that no information was put before the court re plaintiff’s income tax and hence the court had no way of assessing the appropriate deduction. Carvill was not followed by the Court of Appeal in Cyril Leonard & Co v Simo Securities Trust Ltd [1972] 1 WLR 80. Parry v Cleaver [1970] AC 1 at 13 per Lord Reid explaining Gourley. Glover v BLN Ltd [1973] IR 388 at 440. The restriction of the rule to damages awarded in accident cases had already been rejected in Britain in Beach v Reed Corrugated Cases [1956] 1 WLR 807; In re Haughton Main Collieries Co [1956] 1 WLR 1219; Parsons v BNM Laboratories Ltd [1964] 1 QB 95; and Bold v Brough, Nicholson & Hall Ltd [1964] 1 WLR 201.

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of being inaccurate and consequently of working injustice to the victim.117 It is arguable that such calculations are inappropriate to a court of law; a plaintiff might be promoted, for instance, or marry a spouse with an income, or move to a country where taxation is lower.118 Further damages should represent compensation for loss of earning capacity, not loss of earnings; they should restore the status quo ante in so far as possible. Nor is the logic of the decision impeccable. Judson J pointed out in the Canadian case of R v Jennings:119 ‘Income tax is not an element of cost in earning income. It is a disposition of a portion of the earned income required by law.’

From the defendant’s point of view it is irrelevant what the plaintiff would have done with his earnings if he had not been injured – tax is a charge on income after it has been received. Lawful tax planning might have enabled a plaintiff to have reduced his liability to tax. It is not surprising that the English Law Reform Committee, following on Gourley, concluded a report on the question of taxation of damages120 as follows: ‘... it may turn out that the difficulties to which the law gives rise in practice are greater than some of us at present are disposed to believe and we are therefore agreed in thinking that it may well become desirable to review the practical implications of the decision in Gourley’s case after a further lapse of time.’

If there is a plain duty to tax damages, and the argument is not altogether convincing that there is, the mode of so doing in circumstances of dismissal requires more subtlety and ingenuity.121

G.

SOCIAL WELFARE BENEFITS

[11.69] The law on deductibility of benefits such as social welfare benefits is uncertain. It is perhaps too much to expect a perfectly interlocking structure when different 117

118 119 120 121

See Kenny J’s example at 441: X earns £4,000 pa and is involved in an accident in 1965. Damages are assessed in February 1967. The estimate of sur-tax would have been made grossly inaccurate by s 10 of the Finance Act 1967 and the extension of that relief by the Finance Act 1968. See Stewart v Glentaggart Ltd [1963] SLT 119. R v Jennings (1966) 57 DLR (2d) 644. Seventh Report, Cmnd 501, last para (1958). One solution might be to make the award of damages itself liable to income tax. Where the damages represent several years’ loss of income it would be necessary to introduce income averaging or ‘top slicing’ provisions to ensure that these damages were not subjected to unduly high rates of tax by virtue of being taxed wholly in one tax year. ‘Top slicing’ provisions are no strangers to the tax code. The Government would then receive the tax it would have received had the person being compensated continued to receive taxable income. The employer could be required to withhold a portion of the award and account for it to the Revenue (it could be subject to the PAYE system). The balance would be paid to the employee and, provided the correct amount of tax had been withheld and paid, the employer’s liability would be discharged. The employee would be liable to tax on the gross award but would be credited with payment of the tax withheld by his employer. The High Court (Laffoy J) in Nerney v Thomas Crosbie Holdings Ltd [2013] IEHC 127 referred to the above suggestion of averaging in the within footnote but concluded: ‘As I understand it no such provisions have been enacted and the plaintiff must bear that consequence’ (per Laffoy J at [45]).

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benefits have different objectives. However, in principle it is clear that an employing entity should not be permitted to break its contract with impunity by enabling it to deduct an assortment of benefits from the damages it would otherwise have to pay. It is equally clear that where a plaintiff by thrift or foresight has contributed the whole or part of the premiums in respect of contingency insurance, a deduction should not be made. In Ireland, a deduction was made from damages in respect of compensation under the old Workmen’s Compensation Acts 1934–1955: Flynn v Great Northern Railway Co (Ir) Ltd.122 In Britain the Court of Appeal has held that a sum in respect of unemployment benefit received should be deducted from an award of damages: Parsons v BNM Laboratories Ltd.123

H.

INCOME CONTINUANCE

[11.70] An employee may be dismissed while absent as a result of illness. Suppose two things. First that the employer has an income continuance scheme in place and that it is operative. At the same time suppose the contract of employment provides a power to dismiss in the event of illness. The exercise of this power may be inconsistent with the income continuance scheme which is likely to provide for payment to the employee of an amount equivalent to a proportion of salary beginning so many weeks after the start of incapacity and ending with the employee’s death, retirement or the date on which he ceases to be an eligible employee (because, say, he was dismissed for cause). Might the law imply an ‘anti-avoidance term’? [11.71] Such an inconsistency lay behind the facts in Aspden v Webbs Poultry & Meat Group (Holdings) Ltd.124 The contract of employment contained a general power to terminate the contract and a specific power to dismiss an employee in the event of prolonged illness. The employee was given notice of dismissal while on sick leave. He claimed damages for wrongful dismissal. He maintained that it was an implied term of his contract of employment that, save for summary dismissal, the employer would not terminate the contract while he was incapacitated for work. Were that not the case his entitlement to benefit under the permanent health insurance scheme could be frustrated by arbitrary dismissal. The company argued that the alleged term was inconsistent with the express provisions of the contract and therefore could not be implied. [11.72] The High Court (Sedley J) upheld the claim. Notwithstanding that the written contract of employment contained an express provision allowing the employer to terminate by reason of prolonged incapacity alone, a term would be implied in order to give effect to the undoubted mutual intention of the parties when the contract was signed that its provisions for dismissal would not be operated so as to remove the employee’s entitlement to benefit under the permanent health insurance scheme already in force. That mutual intent did not impinge upon the ability of the employers at any time to accept the employee’s repudiatory conduct as putting an end to the contract and with it 122 123 124

Flynn v Great Northern Railway Co (Ir) Ltd (1955) 89 ILTR 46. Parsons v BNM Laboratories Ltd [1954] 1 QB 95. Aspden v Webbs Poultry & Meat Group (Holdings) Ltd [1996] IRLR 521. See also Adin v Sedco Forex International Resources Ltd [1997] IRLR 280; Bainbridge v Circuit Foil UK Ltd [1997] IRLR 305; Brompton v AOC International Ltd [1997] IRLR 639.

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the entitlement to insurance benefit. (Equally of course the terms of the scheme might operate to terminate it such as the employee’s retirement.) The plaintiff was held entitled to damages. He had also claimed unfair dismissal and the court held that the full amount the plaintiff had received by way of settlement of that claim could be offset against damages.125

[11.73] Similar cases followed. In Hill v General Accident Fire & Life Assurance Corporation,126 Villella v MFI Furniture Centres Ltd,127 Briscoe v Lubrizol Ltd128 and Jenvey v Australian Broadcasting Corporation129 the main task of the court was to ascertain the terms of the employment contract. [11.74] Hill130 involved the Court of Session finding that the employer was not in breach of the pursuer’s contract of employment in dismissing him on grounds of redundancy whilst he was off work ill and in receipt of short-term sickness benefit with a prospective entitlement to long-term sickness provision. There was no implied term that the employer would not use its contractual powers of dismissal where that would frustrate an accruing or accrued entitlement under the sickness benefit or ill-health retirement pension scheme and that, in consequence, the employee would not be dismissed while incapacitated, except for summary dismissal by reason of his fundamental breach of contract.

[11.75] In Villella131 the novel point was the effect of an express restriction in the insurance policy underwriting the scheme which stipulated that entitlement to benefit would cease on an employee leaving service. The employee’s conditions of service did not repeat such a term and the court declined to treat it as being incorporated by reference. Judge Green QC rejected the company’s submission that the contract came to an end by frustration when the employee was unable to work for three years. Long-term incapacity which is foreseen and provided for by the contract cannot be a frustrating event.

[11.76] Jenvey132 extended a similar principle to imply a limitation on lawful dismissal where this was done to avoid benefits under a contractual redundancy payment scheme. Elias J, having analysed earlier case law, allowed the claim pointing out that it would be contrary to the purpose of the redundancy scheme ‘to permit the employer to exercise his contractual powers so as to deny the employee the very benefits which the scheme 125

126 127 128 129

130 131 132

By parity of reasoning with Stocks v Magna Merchants Ltd [1973] ICR 530 (redundancy payment offset against damages for wrongful dismissal). Hill v General Accident Fire & Life Assurance Corporation [1998] IRLR 641. Villella v MFI Furniture Centres Ltd [1999] IRLR 468. Briscoe v Lubrizol Ltd [2002] IRLR 607. Jenvey v Australian Broadcasting Corporation [2002] IRLR 520. See a recent case in which an implied anti-avoidance term arose re bonuses and executive share scheme: Takacs v Barclays Services Jersey Ltd [2006] IRLR 877. Hill v General Accident Fire & Life Assurance Corporation [1998] IRLR 641. Villella v MFI Furniture Centres Ltd [1999] IRLR 468. Jenvey v Australian Broadcasting Corporation [2002] IRLR 520.

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envisages will be paid’. The employer should not be allowed to negate the employee’s claim to compensation ‘by dismissing him for some other independent reason or indeed no reason at all’. Hence: ‘once an employer has determined that an employee will be dismissed by reason of redundancy such that his dismissal for any other reason will defeat the employee’s right to contractual benefits which accrue when the dismissal is by reason of redundancy, the employer may not lawfully dismiss the employee for any reason other than redundancy unless the dismissal is for good cause.’133

[11.77] Briscoe134 cast light on whether there may be circumstances in which an employee on long-term sick leave and covered under a permanent health insurance scheme can be dismissed. The Court of Appeal approved of Aspden, and emphasised that the implied term does not circumscribe the employer’s right to dismiss for good cause. Save for a genuine redundancy situation the court seemed to think that this was confined to gross misconduct or some other repudiatory breach by the employee. In this case the breach of contract which led to the employee’s summary dismissal was his failure without explanation or excuse to attend a meeting to discuss his position and his failure thereafter to reply to the employer’s requests to contact him. ‘Duties of trust and confidence are mutual’ Lord Justice Ward reiterated. Here the employer was entitled to treat the employee’s behaviour as gross misconduct undermining the implied term of mutual trust and confidence.

[11.78] On the basis of these authorities the plaintiff in McGrath v Trintech Technologies Ltd135 asked the High Court among other things to find there was an implied term of his contractual relationship that the employer would not terminate his contract of employment by notice if two conditions existed: that the employee was on certified sick leave and that he was reliant on the prospect of PHI cover. Laffoy J was of the view that to imply such a term would be inconsistent with the express terms of the contract of employment in that it was expressly provided that the plaintiff’s employment could be terminated on one month’s notice and that, even where payment had commenced under the PHI scheme, it would cease on the termination of the employment. If the plaintiff’s argument were accepted it would mean his exclusion from the pool of employees from which selections for redundancy would be made and, as stated by Lord Hamilton in Hill,136 that would be grossly disadvantageous to fellow employees who were well at the material time.

I.

THE MITIGATION OF LOSS

[11.79] An employee who has suffered damage following breach of contract is not entitled to compensation in respect of any loss he could reasonably have avoided after 133 134 135

136

Per Elias J at [26]. Briscoe v Lubrizol Ltd [2002] IRLR 607. McGrath v Trintech Technologies Ltd [2005] 4 IR 382. See also Elmes v Vedanta Lisheen Mining Ltd [2014] IEHC 73. Hill v General Accident Fire & Life Assurance Corporation [1998] IRLR 641 at para 22.

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the occurrence of the breach. So, for example, in Herman v Owners of SS Vicia,137 seamen who had been wrongfully dismissed were not awarded damages for a period in which they were unemployed and did not seek alternative employment. McGregor on Damages lists the rules of mitigation.138 Two are relevant in an action for damages for wrongful dismissal. They are: (a) the rule as to avoidable loss – no recovery for loss which the plaintiff ought to have avoided; and (b) the rule as to avoided loss – no recovery for loss which the plaintiff has avoided,139 unless the matter is collateral. The first of these presents the greater problem. To assess whether a plaintiff ought to have avoided loss it may have to be determined whether he should have accepted new work which is geographically or occupationally different from his old position. Secondly, it may have to be determined whether and, if so, how far a plaintiff was entitled to insist upon congenial personal relations in new employment.

[11.80] The victim of a breach of contract need do no more by way of mitigation than is reasonable in all the circumstances. An employee is not obliged to strain himself for the benefit of his employer. Lord MacMillan’s words in Banco de Portugal v Waterlow & Sons140 have been cited with approval on a number of occasions.141 In his view: ‘the measures which he [the victim] may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party, whose breach of contract has occasioned the difficulty ... he will not be held disentitled to recover the cost merely because the party in breach can suggest that other measures less burdensome to him [might] have been taken.’

[11.81] Applying the reasonableness test, it has been held that an employee need not mitigate by accepting another offer of employment from his present employer where dismissal has taken place in such a manner as to prejudice good personal relations between the parties.142 Damages are likely to be nominal, however, where an employee’s dismissal comes about technically as a result of a change in the composition of an employing partnership and he refuses an offer of continued employment by the 137

138 139 140 141

142

Herman v Owners of SS Vicia [1942] IR 305; cf Irvine v Midland Gt W Rly (Ir) Co (1879) 6 LR Ir 55. The best known early statement of the principle governing the measure of damages for wrongful dismissal is in Beckham v Drake (1849) 2 HLC 579, 606–7 per Erle J. For the historical developments of the rule see Lawson, ‘Mitigation of Damages: Recent Developments’ (1978) Vol 128 NLJ 1185. McGregor on Damages (17th edn, Sweet & Maxwell, 2003) at para 7-002. See Cotter v Ahern [1976–77] ILRM 248. Banco de Portugal v Waterlow & Sons [1932] AC 452, 506. Examples are Rumsey v Owen White and Catlin (1978) 245 EG 225; Daily Office Cleaning Contractors Ltd v Shefford [1977] RTR 361. Payzu Ltd v Saunders [1919] 2 KB 581 at 588–589 per Bankes LJ; Yetton v Eastwood Froy Ltd [1967] 1 WLR 104; Shindler v Northern Raincoat Co Ltd [1960] 1 WLR 1038. Semble, an employee can properly doubt the genuineness of an offer made by the employer at a time when the relations between them have been handed over to a solicitor, above all when the offer requires the employee to abandon such common law rights as he has already acquired for wrongful dismissal: Shindler.

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reconstituted partnership.143 Again, applying the reasonableness test, refusal of an offer of re-engagement at a lower salary has been held reasonable for the purposes of the rule as to mitigation of loss.144 An employee is entitled to refuse an offer of alternative employment by his existing employer where it involves a demotion.145 Loss of employment will not be treated as avoidable where acceptance of employment would bring an employee into serious conflict with his trade union.146

[11.82] The British case of Clark v BET plc147 contains some interesting findings as to mitigation and the chances of a senior executive aged 55 finding a comparable position.

[11.83] There is a duty to mitigate where the contract provides a choice for the employer to give notice or pay in lieu of notice and it gives neither, according to the Court of Appeal in Cerebus Software Ltd v Rowley.148 The employee’s remedy is damages reduced by any amount earned by way of mitigation of loss.

J.

TERMINATION OF SECONDMENT AGREEMENT

[11.84] Termination of a secondment agreement is not the same as termination of the contract of employment. Nonetheless there are some similarities when it comes to assessment of damages. The decision of the High Court in Cronin v Eircom Ltd149 contains some interesting findings as to damages. The plaintiff had been seconded by the defendant to Eircom Northern Ireland under a secondment agreement for a two-year period, extendable by a further year. The secondment was terminated by Eircom after one year. When the plaintiff returned to Ireland, no position was made available to her by Eircom until three years later. Her principal claim was that Eircom had breached her contract of employment in terminating the secondment early and in failing to provide her with an appropriate role on her return. The issues which arose for the court’s consideration included entitlement to commission; arrears of salary, removal expenses and general damages. Although the plaintiff was still an employee of Eircom, Laffoy J considered that a commentary in McGregor on Damages (17th edn) on the measure of damages for wrongful dismissal was a useful starting point in setting out the legal principles in relation to entitlement to damages for breach by an employer of a contractual obligation to pay commission. ‘The same principles should apply whether a breach of such a contractual obligation arises during the currency of the employment or as a consequence of wrongful dismissal.’ 143 144 145 146

147 148 149

Brace v Calder [1895] 2 QB 253. Jackson v Hayes, Candy & Co Ltd [1938] 4 All ER 587. Yetton v Eastwood Froy Ltd [1967] 1 WLR 104. Morris v CH Bailey Ltd [1969] 2 Lloyd’s Rep 215 which recognised that it was not necessary to mitigate loss where acceptance of employment would have brought the employee into breach of contract of membership with a trade union or have rendered him liable to expulsion therefrom, in a closed shop trade. Clark v BET plc and Anor [1997] IRLR 342. See para [11.64] above. Cerebus Software Ltd v Rowley [2001] ICR 376. Cronin v Eircom Ltd [2007] 3 IR 104.

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Damages arising from Wrongful Dismissal

[11.87]

[11.85] An important proviso regarding entitlement to commission was that the employer’s failure to provide the employee with an opportunity to earn the commission constituted a breach of contract. Laffoy J found the defendant in breach of contract. As a matter of construction of the secondment contract, she found that it was not in the contemplation of the parties, and the contract was not subject to an implied term that the plaintiff’s secondment would continue only as long as the defendant considered that the operations of its subsidiary in the UK were financially and commercially advantageous, which had been the reason for the defendant’s almost total withdrawal from the UK market. Damages for arrears of salary and removal expenses presented no difficulty. [11.86] The judge went on to cite a passage from McGregor (para 28-005) on the normal measure of damages for wrongful dismissal when dealing with the amount which an employee would have earned: ‘That the amount which the employee would have earned under the contract may be subject to the loss of a chance doctrine is shown, as is the computation of the damages when this is so, by Ministry of Defence v Wheeler.150 The loss of a chance doctrine however, must not be carried too far in wrongful dismissal, as indeed in other, cases.’

[11.87] The issue arising in Cronin was whether her employer was under a contractual obligation, beyond the payment of her salary, to provide her with work so that she would have an opportunity to gain experience, pursue promotion in her job and advance her career. The High Court found the employer was under such an obligation if not expressly then under an implied term in the plaintiff’s contract of employment ‘whether as a facet of the obligation to maintain mutual trust and confidence or otherwise’. The plaintiff was awarded €25,000 as loss of chance damages.

150

Ministry of Defence v Wheeler [1998] 1 WLR 637.

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PART C UNFAIR DISMISSAL

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Chapter 12

Statutory Unfair Dismissal A.

THE NEED FOR LEGISLATION: BACKGROUND INFLUENCES

[12.01] Prior to the enactment 40 years ago1 of the Unfair Dismissals Act 1977, there was a great need for legislation in Ireland to deal with dismissal for unjust cause. The common law action for wrongful dismissal was cumbersome, inadequate and very often expensive. It existed for an elite group of workers. Dismissal was also a serious cause of industrial unrest. Of the disputes recorded in the Labour Court Reports for the years 1972–1975 inclusive, 187 were classified as disputes relating to engagement or dismissal, in which 26,299 people were involved, accounting for over a quarter of a million days lost in industry. In 1975, one third of all days lost were due to these reasons.

[12.02] International influences were also at work. During the years leading up to the introduction of the Unfair Dismissals Act, individual dismissal was the subject of an International Labour Organisation Recommendation, a Proposal for Legislation in the European Economic Communities and statutes in individual countries in Western Europe and elsewhere. A number of International Labour Conventions and Recommendations dealt with matters relating to dismissal prior and subsequent to ILO Recommendation No 119 on the Termination of Employment (Geneva 1963).2 However, 1

2

See the Booklet produced in April 2017 by the Employment Appeals Tribunal to mark 50 years since its establishment (originally pursuant to the Redundancy Payments Act 1967 when it was then known as the Redundancy Appeals Tribunal): Fifty Years of the Employment Appeals Tribunal: 1967 to 2017 (April 2017) available at www.workplacerelations.ie. Certain of these instruments provided protection against dismissal in particular circumstances (eg during maternity leave): Maternity Protection Convention 1919 (No 3) Art 4; Maternity Protection Convention (Revised) 1952 (No 103) Art 6; Maternity Protection Recommendation 1952 (No 95) para 5, or for certain reasons (such as union membership or participation in union activities): Right to Organise and Collective Bargaining Convention 1949 (No 98) Art 1; seeking or holding office or acting as workers’ representatives: Workers’ Representatives Convention 1971 (No 135) Art 1 and Workers’ Representatives Recommendation 1971 (No 143) Part III; and grounds constituting racial, religious or other discrimination: Discrimination (Employment and Occupation) Recommendation 1958 (No 111) para 2. Others provided for special measures to be taken in certain cases in the event of dismissal (as in the case of redundancy of migrants during their term of employment: Migration for Employment Recommendation (Revised) 1949 (No 86) Arts 22, 24, 26 of the Annex to the Recommendation) or for certain rights upon dismissal (ie the right to receive holiday pay for the part of holiday entitlement not taken at the time of termination of employment): eg Holidays with Pay Convention (Revised) 1970 (No 132) Art 11. The protection provided by certain of these standards was incorporated in para 3 of ILO Recommendation No 119 which is considered in the text. A list of the relevant instruments and decisions is given in ILO: Termination of Employment (dismissal and lay-off) Report VII(1) International Labour Conference, 46th sess, 1962, Appendix.

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comprehensive treatment of termination of employment was not formally envisaged until the adoption in 1950 by the International Labour Conference of a resolution which noted the absence of international standards on the matter and called for the preparation of a report on the law and practice of different countries in respect of termination of employment.3 The subsequent adoption of the recommendation on Termination of Employment in 1963 marked the culmination, internationally, of a growing recognition that the individual worker required protection against arbitrary and unwarranted termination of his employment and against the economic and social hardship resulting from loss of employment.

[12.03] ILO Recommendation No 119 lays down general standards relating to termination of employment at the initiative of the employer.4 It provides that termination of employment by an employer should not take place unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. The reasons to be considered valid for this purpose are left to be defined nationally. At the same time it is provided that certain enumerated reasons should not constitute valid reasons for termination of employment, namely, union membership or participation in union activities; seeking office as, acting or having acted as a worker’s representative; the filing of a complaint or participating in proceedings against an employer involving an alleged violation of laws or regulations; race, colour, sex, marital status, religion, political opinion, national extraction or social origin.5 In 1963, the Irish Government indicated that it accepted the provisions in the Recommendation, subject to minor reservations. The Irish Congress of Trade Unions made it known that it was in favour of appropriate legislation. In 1963, in accordance with art 19 of the Constitution of the ILO, the Governing Body of the ILO requested the governments of all Member States to supply reports indicating the position of their law and practice in regard to the matters 3

4

5

ILO: Record of Proceedings Int Lab Conf, 33rd Sess, (1950) 579; the Office undertook a series of studies in the field, certain of which formed the basis of discussion at the technical meetings. These are supplemented by a number of further standards applicable to cases of termination of employment involving reduction of the work force. A working party of the ILO was set up in the late 1970s by the Governing Body to carry out a systematic review of all the existing instruments and classify them in a number of categories. The first category comprises instruments whose ratification and application should be promoted on a priority basis; the second, those whose revision would be appropriate; and the third, all other existing instruments. Some instruments were included in both categories 1 and 2. Among them was ILO Recommendation No 119. The Recommendation is therefore to have priority status and, also, to be revised. See Valticos, ‘The future prospects for international labour standards’ (1979) 118 Int Lab Rev, 679. Recommendation No 119 was discussed at the 67th session of the ILO, Geneva 1981. See Report VIII(2) on Termination of Employment at the Initiative of the Employer. ‘... [It] is this provision for protection against unjustified termination of a worker’s employment that represents both the core of the instrument and its major element of impact’: Report n 11 below, para 159.

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Statutory Unfair Dismissal

[12.04]

dealt with by the Recommendation.6 Although the essential principle of the Recommendation had by then been adopted in many countries, Ireland’s report could point only to three areas of statutory activity, namely, redundancy, industrial disputes and minimum notice and terms of employment.7 Speaking generally, the Committee remarked that: ‘... the existence of notice periods or severance allowances, although necessary aspects of the more comprehensive protection aimed at by the Recommendation, [do not] meet [the] fundamental requirement [ie, of general guarantees against unjustified termination].’8

[12.04] The message was clear. Further indirect pressure on Ireland to review its dismissal laws arose on another international front. In connection with the decision taken on the then proposed European Directive on the approximation of the legislation of Member States concerning mass dismissals in December 1974,9 the Council of the European Communities requested the Commission to submit a comprehensive report on legislation on behalf of workers in the event of individual dismissals.10 Part I of the report, which was submitted in 1976,11 gives a comprehensive summary of the legal position in the Member States of the Community. Once more, Ireland could mention only redundancy and minimum notice legislation; at times it was forced to reveal that ‘no special provisions’ existed (as in relation to the grounds for ‘Normal Dismissal’). Ireland submitted that: ‘Disagreements are normally dealt with by means of negotiations between management and workers. To help the negotiations the Government provides mediation offices [sic] and industrial tribunals which management and workers can use.’

‘By means of this procedure’, it was maintained, ‘voluntary continued employment can be achieved.’ At the time, Ireland’s ‘mediation officers’ for individual termination were primarily the rights commissioners, established under the Industrial Relations Act 1969. Its ‘industrial tribunals’ were the Labour Court12 and the Redundancy Appeals Tribunal.13 6

7

8 9 10

11

12 13

Report III: Termination of Employment Int. Lab Conf, 59th Sess, 1974. It was the first occasion on which reports on the Recommendation were requested under Art 19 of the Constitution of the ILO and thus was the first opportunity the Committee had to examine reports of governments on their law and practice relating to termination of employment. Respectively, Redundancy Payments Act 1967, amended 1971 and 1973; Industrial Relations Act 1946, amended 1969; Minimum Notice and Terms of Employment Act 1973. All Acts have since been further amended, if not in part repealed and/or replaced. Para 164. As a result, see in Ireland the Protection of Employment Act 1977. R3632/74 (SOC) 280. The European Parliament was also in favour of the Commission drawing up such proposals, see its Resolution of 12 March 1973; OJC 19 of 12.4.1973; see similarly OJC 95 of 28.4.1975. V/812/75-E; see ‘EC Commission Proposals on Individual Dismissals’: European Industrial Relations Review (No 30) June 1976. Established by the Industrial Relations Act 1946. Established by the Redundancy Payments Act 1967.

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Redmond on Dismissal Law

[12.05] The Anti-Discrimination (Unfair Dismissals) Bill, as it was first styled, was introduced into Dáil Éireann in 1976 by the Minister for Labour in the Coalition Government.14 Omitting any reference to international influences, the Minister stated that: ‘the general impulse for this legislation related to the number of disputes which had been caused in recent years as a result of disagreement on the disciplinary methods used in particular cases. Disputes had arisen because an employee felt aggrieved, and his sense of grievance, in the existing lacuna in our legislation, meant he sought the assistance and support of fellow workers in his agreement with the employer. We had many strikes. We reckon that one-fifth of man days lost in the year before last arose from disputes relating to dismissals …’15

As passed by both Houses of the Oireachtas in April 1977, the Unfair Dismissals Act did not conform in every respect to the requirements of ILO Convention No 119.16

[12.06] In 1993 the Act was amended. The Unfair Dismissals Act (Amendment) Bill was introduced on 26 May 1993 in line with an undertaking in the Programme for a Partnership in Government 1993–1997 ‘to amend and improve the working of the Unfair Dismissals legislation’. It also fulfilled a commitment in the Programme for Economic and Social Progress. Introducing the Second Stage of the Bill, the Minister of State at the Department of Enterprise and Employment paid tribute to the positive impact of the 1977 Act on Irish industrial relations: ‘The proportion of [industrial disputes arising from unfair dismissal] as a percentage of all disputes has fallen from 20 per cent in 1976, the year before the introduction of the Act, to about 10 per cent a year since then and, in some years, the statistic has been as low as 7 or 8 per cent. This fact, taken in conjunction with the number of claims made under provisions of the Act, suggests that the Act has played a major role in reducing industrial relations tensions.’17

B.

THE UNFAIR DISMISSALS ACT 1977

(1) Basic principles [12.07] The Unfair Dismissals Act 1977 (the 1977 Act), as amended, provides for the bringing of claims for redress for unfair dismissal before the Workplace Relations 14 15

16

17

Dáil Debates, 30 June 1976. Dáil Debates, Vol 294, col 503 (23 Nov 1976); see, too, Vol 293, col 1076 (4 November 1976). For example, para 7(2) stipulates that during the notice period the worker should, as far as practicable, be entitled to a reasonable amount of time off without loss in pay for this purpose. Ireland has not made any provision in respect of time off. Nor is the employer required by legislation or otherwise, in accordance with para 8 of the Recommendation, to provide an employee upon termination of his employment with a certificate indicating the dates of entry into and termination of the employment and specifying the type or types of work on which he was employed (nothing unfavourable to the worker should be inserted in such a certificate: para 8(2)). Dáil Debates 26 May 1993. See in similar vein but in detail Murphy, ‘The Impact of the Unfair Dismissals Act 1977 on Workplace Industrial Relations’ in Industrial Relations in Ireland (UCD, 1989), 247.

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Statutory Unfair Dismissal

[12.09]

Commission within six months of the date of dismissal (this may be extended to 12 months where reasonable cause18 is shown). The avowed advantages of a statutory claim reside chiefly in time, costs, informality, and in that those drafting the legislation in 1977 were committed to the necessity of devising a criterion of lawfulness of dismissal which would be at once more exacting and yet more flexible than the implied terms then offered by the law of the contract of employment. They achieved this by the combination of requiring an employer to show good cause for dismissal, and an overriding test of the reasonableness of an employer’s decision to dismiss.19 The test of reasonableness is applied to determine the fairness of the dismissal. Chapter 13 deals with the reasonableness of the employer’s decision to dismiss.

[12.8] The 1977 Act is cast in a pluralist framework. Companies cannot be run solely in the interests of management; employees’ rights must be consulted as well. Section 6(1) deems the dismissal of an employee to be an unfair dismissal for the purposes of the Act: unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The concept of fairness espoused by the unfair dismissals legislation distinguishes it from the common law action for wrongful dismissal. The formal justice of the common law was rejected: instead, the 1977 Act mitigates the harshness of the narrow and often socially inadequate dictates of contract law which make the uniform application of general rules the keystone of justice, and which establish principles whose validity is supposedly independent of choices among conflicting values. Procedural and substantive rules of justice are instead preferred. Where breaches of implied or other contractual terms are concerned, the unfair dismissals legislation imports notions of fairness in order to arrive at an overall assessment of the reasonableness of dismissal. The balance between procedural and substantive justice is in itself crucial – both within the legislation and in its application.

(i) Dismissals deemed not to be unfair [12.09] The burden of proof lies with an employer to establish its reason or reasons for dismissal. To avoid a preliminary finding of unfairness it must establish not only what the reason was, but also that the reason fits within one of the general categories likely to be regarded as ‘fair’ under s 6(4) of the 1977 Act, namely, that it concerns:

18

19

(a)

the capability, competence or qualifications of the employee for performing work of the kind he was employed to do;

(b)

the conduct of the employee;

(c)

the redundancy of the employee; or

One of many notable amendments made by the Workplace Relations Act 2015, which substituted this test of ‘reasonable cause’ for the previously applicable higher test of ‘exceptional circumstances’. For more detail on this point see Ch 25. See Davies and Freedland, Labour Law Texts and Materials (Lexis Nexis Butterworths, 1979) 349; Unger, Law in Modern Society (Free Press, 1976), 194–5; see more generally, Dworkin, Taking Rights Seriously (Harvard University Press, 1977), 134–5.

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[12.10] (d)

Redmond on Dismissal Law that the employer or the employee was prohibited by statute from continuing with the employee’s employment.

If dismissal did not result wholly or mainly from one or more of these matters there must have been other substantial grounds which justified the dismissal: s 6(6) of the 1977 Act.

(ii) Dismissals deemed to be unfair [12.10] Certain reasons for dismissal are deemed unfair under ss 5 and 6 of the 1977 Act. Section 5 concerns dismissal for participation in strike or other industrial action. Subsections (2) and (3) of s 6 (as amended) deem the following grounds unfair, namely: (a) trade union membership or activities; (b) religious or political opinions; (c) the making by the employee of a protected disclosure within the meaning of the Protected Disclosures Act 2014; (d) involvement by an employee in civil proceedings against or involving an employer; (e) involvement by an employee in criminal proceedings against or involving an employer; (f) the exercise or proposed exercise by the employee of the right to parental leave or force majeure leave under and in accordance with the Parental Leave Act 1998 or carer’s leave under the Carer’s Leave Act 2001; (g) race, colour or sexual orientation; (h) age;20 (i) membership of the travelling community; (j) pregnancy, attendance at ante-natal classes, giving birth or breast-feeding or matters connected therewith; (k) the exercise or proposed exercise of a right under the Maternity Protection Act 1994 or the Paternity Leave and Benefit Act 2016 to any form of protective leave or natal care absence; or to time-off from work or a reduction of working hours for breastfeeding under the said Act as amended; (l) the exercise or proposed exercise by an adopting parent of a right under the Adoptive Leave Acts 1995 and 2005 to adoptive leave or additional adoptive leave or to a period of time off to attend certain pre-adoption classes or meetings; and (m) unfair selection for redundancy. These reasons do not automatically constitute unfair grounds for dismissal, because subss (2) and (3) of s 6 begin ‘Without prejudice to the generality of subsection (1) of this section’ and subs (1) deems every dismissal unfair for purposes of the Act unless, having regard to all the circumstances, there are substantive grounds justifying the dismissal. Fairness enters dismissals law at every point. These grounds are dealt with from Ch 14 onwards. 20

This does not affect the provision on age re eligibility to claim under unfair dismissals legislation: see ch 23.

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Statutory Unfair Dismissal

[12.15]

[12.11] In recent years employment statutes have included protection against unfair dismissal for penalisation of an employee in connection with the exercise of rights thereunder. For example the National Minimum Wage Act 2000, s 36(2), provides that the dismissal of an employee for exercising his or her rights under that Act shall be deemed to be an unfair dismissal. In addition the Safety, Health and Welfare at Work Act 2005 deems the dismissal of an employee to be unfair for the purposes of the 1977 Act if it results wholly or mainly from the employee being ‘penalised’ within the meaning of that section. The Employees (Provision of Information and Consultation) Act 2006, s 13, protects employees’ representatives against penalisation including dismissal. The Protected Disclosures Act 2014 also protects employees from penalisation in the context of protected disclosures. [12.12] Not every employee is covered by the Unfair Dismissals Act. A significant exclusion until July 2006 related to civil servants. Following the Civil Service Regulations (Amendment) Act 2005, however, civil servants have been brought within the scope of the Acts. In the case of all dismissed employees there are technical qualifications to be satisfied. An employee must come within the appropriate definitions and must present his or her claim in time. An employee also bears the burden of proving he has been dismissed within the Acts and must establish the date of dismissal. Chapters 22 and 23 examine the portals through which an aggrieved employee must pass in order to qualify for the Act’s protection. [12.13] If a dismissal is found to have been unfair, an employee may be awarded reinstatement, re-engagement or compensation, as appropriate. Chapter 24 looks at remedies for unfair dismissal. The concluding chapter in the book, Ch 25, is about procedural aspects of unfair dismissal and focuses in particular on the very significant amendments introduced by the Workplace Relations Act 2015. [12.14] A rapid development of unfair dismissal law has taken place in the 40 years since the introduction of the Act in 1977. The following chapters chart and analyse that development.

(2) The contract of employment [12.15] The conceptual basis for unfair dismissal law is, as it must be, the contract of employment. The 1977 Act employs and in some cases, defines, terms familiar at common law such as ‘termination’, ‘dismissal’, ‘contract of employment’ and ‘fixedterm contract’. In 1977 the Unfair Dismissals Act did not turn over a leaf so new as to jettison the vast body of common law relating to the contract of employment. This is nowhere stated in the Act and, as a matter of statutory construction, a change or a beginning so fundamental could not be presumed ex silentio. Moreover an intuitive construction of the unfair dismissals legislation would lead to chaos. However artificial and defective it may be it may be in many respects, contract law orthodoxy provides a mechanism for regulating the individual employment relationship. It affords a measure or standard by which critically to assess decisions relating to unfair dismissal. The statutory language is of course the starting point to determine whether a claim may lie for unfair dismissal. A claim for wrongful dismissal at common law may not succeed under the statute and vice versa. The complex inter-relationship between the contract of

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Redmond on Dismissal Law

employment and statutory protection against unfair dismissal is one of the major themes in contemporary employment law scholarship21 and jurisprudence22 and its impact will be repeatedly encountered in the chapters that follow.

21

22

See Freedland (ed), The Contract of Employment (OUP, 2016), ch 1; Davies, ‘The Relationship between the Contract of Employment and Statute’ ch 4 in Freedland (ed), The Contract of Employment (OUP, 2016); Bogg, ‘Common law and statute in the law of employment’ [2016] CLP 1. See eg Johnson v Unisys [2001] UKHL 13; [2003] 1 AC 518, and the treatment of United Kingdom and Irish case law in Chs 5, 6 and 11 of this work.

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Chapter 13

Reasonableness and the Employer’s Role under the Unfair Dismissals Act A.

THE EMPLOYER’S REASON FOR DISMISSAL

[13.01] The concept of fairness is located within a framework which accepts that the employer has the right to dismiss where this is necessary to protect its business interests. To that extent it adopts an employer perspective. At the same time, the law requires that employers should not remorselessly pursue their own interests. The employee’s interests must be considered as well. The function of fairness is to reconcile these interests. It does so in different ways depending on the kind of dismissal involved. There are two stages. First, an employer’s reason for dismissal must be identified. Second, an employer must be able to justify its decision to dismiss. The test of reasonableness is applied to determine the fairness or unfairness of its decision. [13.02] In the first part of this chapter, the employer’s reason for dismissal is discussed. The reasonableness of the decision is then analysed. Fairness in the context of constructive dismissal is considered in Chapter 19, where it will be seen that there exist in Ireland two tests for constructive dismissal, namely, the contract and the reasonableness tests.1 If the reasonableness test is followed initially, the overall question of the employer’s reasonableness is generally merged with the test itself.

(1) Identifying the employer’s reason [13.03] The first step in assessing fairness is to isolate the employer’s reason for dismissal – or the principal reason if there is more than one. In Abernethy v Mott Hay & Anderson,2 Cairns LJ described this in the following terms: ‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be a set of beliefs held by him, which cause him to dismiss the employee.’3

It is not necessary for the reason to be correctly labelled at the time. In the same case, Lord Denning MR declared that: ‘the reason shown for dismissal must be the principal reason which operated on the employer’s mind.’4 1 2 3 4

Unfair Dismissals Act 1977, s 1. Abernethy v Mott Hay & Anderson [1974] ICR 323. Abernethy v Mott Hay & Anderson [1974] ICR 323 at 330. Abernethy v Mott Hay & Anderson [1974] ICR 323 at 329.

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[13.04]

Redmond on Dismissal Law

[13.04] It is the reason which in fact operated on the employer’s mind which is important. The Workplace Relations Commission may not pick out and substitute a reason for dismissal which was neither given nor entertained by the employer at the time, merely because it thinks it a better reason. However, if the facts supported by adequate evidence disclose a reason for dismissal not selected by the employer, the Workplace Relations Commission may properly find that that was the real reason for dismissal, rather than the one proffered by the employer.5 [13.05] It would be wrong to assume that there will always be one, or one principal, reason for dismissal. An employer may have multiple reasons to dismiss an employee, any one of which taken on its own might or might not provide substantial grounds. In such cases the WRC should ask itself how a reasonable employer, in all of these circumstances, would have behaved. Do the multiple reasons together, or a majority of them if some fail to pass an evidential test, provide substantial grounds? [13.06] To assist an employee the 1977 Act lays down that, if requested, an employer must provide a dismissed employee, within 14 days of the request, with a written statement of particulars of the grounds of dismissal: s 14(4). At the same time, however, in determining whether a dismissal was fair or unfair: ‘there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all circumstances, are substantial grounds and which would have justified the dismissal.’6

An employee has no grievance or right to redress under the legislation if an employer unreasonably refuses to provide a written statement or if the written statement is inaccurate or untrue.7 However, failure to comply with s 14(4) may assist the WRC in 5

6

7

McCrory v Magee [1983] IRLR 414 (NICA). The employer must raise all relevant points at the hearing. It cannot later return to the WRC and ask for a ruling on a ‘new’ reason: Church v West Lancashire NHS Trust (No 2) [1998] IRLR 491 (EAT). In Abernethy’s case, n 2 above, an employer honestly, but wrongly, believed that the facts of the case constituted redundancy. The Tribunal concluded, after looking at the facts, that the employer’s reason related to the capabilities of the employee to do the work he was employed to do. Lord Denning MR commented in the Court of Appeal ‘I do not think that the reason has got to be correctly labelled at the time of dismissal. It may be that the employer is wrong in law in labelling it as a dismissal for redundancy. In that case the wrong label can be set aside.’ Abernethy was extended in Ely v YKK Fasteners (UK) Ltd [1993] IRLR 500 (CA). See in Ireland Hilton v Carrigaline Pottery Co Ltd UD 153/1979 (employer gave vague reasons in response to s 14 request: nevertheless EAT allowed him to present his case in full at the hearing). Contrast Employment Rights Act 1996, s 92. In that jurisdiction, an employee may present a complaint to an industrial tribunal if an employer unreasonably refuses to furnish a written statement or if the written particulars are inadequate or untrue. In decisions involving the precursor to s 92, it was held that a delay by the employer in providing the information may amount to a refusal: eg Keen v Dymo Ltd [1977] IRLR 118; Joines v B and S (Burknale) Ltd [1977] IRLR 83. To meet the statutory test of adequacy ‘the document must be of a kind that the employee, or anyone to whom he may wish to show it, can know from reading the document itself why an employee was dismissed’: Horsley Smith & Sherry Ltd v Dutton [1977] IRLR 172 (EAT). A statement of the main factual grounds must be given, not merely a reference to one or more of the statutory heads in the legislation.

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Reasonableness and the Employer’s Role

[13.10]

assessing the fairness of an employer’s behaviour and in determining the appropriate redress to award an aggrieved employee.

(2) Evidence of the employer’s reason [13.07] In general, the reason an employer shows for dismissal must have been in existence at the time an employee was given notice or was summarily dismissed.8 This may be inferred from the wording of the 1977 Act. Section 6(6) requires 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.

[13.08] Disciplinary procedures often allow for appeal against dismissal. In general, the WRC’s focus will be on the decision to dismiss and not on the appeal decision. Inadequacies at the level of the decision to dismiss cannot be rectified on appeal. An exception to this general principle might arise if, under the employer’s procedures, the appeal constituted a hearing de novo and the ‘first’ decision to dismiss was suspended pending the outcome of the appeal. See further para [13.107] below. [13.09] Any matters which occur or are discovered subsequent to dismissal normally have no relevance in ascertaining the reason for dismissal.9 Since they were not known to an employer at the time they could not have provided a motivation for dismissal. Hence medical evidence concerning a claimant’s health not available to the employer when it took the decision to dismiss will be disregarded by the WRC.10

[13.10] A more nuanced point concerns the coming to light of information that further reinforces the original impression formed by the employer. It is firmly the law in Britain that the EAT must judge matters as they stand at the date of dismissal upon information known or available to the employer at that time.11 In contrast, Ireland has adhered to the common law12 where matters coming to light following dismissal may be taken into account. Under the old regime in Ireland, the EAT had permitted an employer to take prior incidents (good or bad) into account, even when they differed in type from the reason which precipitated the dismissal.13 The EAT had also recognised an employer’s right to introduce evidence, acquired after the date of dismissal, to reinforce or corroborate an act of misconduct of a similar nature which formed part of the decision to dismiss.14 It is likely that these approaches will be followed by the WRC. 8 9 10 11

12 13

14

For a recent example see Dunne v Securitas [2017] ELR 132 (Circuit Court (Judge Fergus)). See Carr, ‘Unfair Dismissal – Exclusion of Subsequent Evidence’ (1977) 127 NLJ 128. Madden v Brown Thomas & Co Ltd UD 263/1992. See W Devis & Sons Ltd v Atkins [1977] 3 All ER 40, [1977] IRLR 314 (HL); Bates Farms & Dairy Ltd v Scott [1976] IRLR 214; Earl v Slater Wheeler (Airlyne) Ltd [1973] 1 All ER 145, [1973] IRLR 115. See Ch 4, para [4.35], above. UD 29/1977. According to the EAT, ‘if [the claimant] could say that he had previously had a very good record it would be surely unjust to ignore it. Therefore, we think that it would be unfair to the employers not to take notice of the previous incidents in this case.’ See, too, Arklow Pottery Ltd v O’Reilly UD 241/1979. Loughran v Bellwood Ltd UD 206/1978.

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[13.11] An employer is not entitled to put forward its subjective view without any supporting evidence that it was its real view. For instance, the opinions and views of management in monitoring the performance of an employee may constitute positive evidence of incompetence, the more so when monitoring is in conjunction with trade union representatives,15 or it may be proved that an employee was not performing his or her work in accordance with a standard in itself reasonable. It will not necessarily be reasonable for the employer to accept explanations of other staff members over that of the claimant.16 Complaints as to performance by outsiders will be taken into account but there must be clear evidence of these.17 In regard to misconduct, while the WRC’s function is not to determine the guilt or innocence of a complainant,18 at the same time it is not sufficient for an employer to dismiss an employee merely because it, the employer, believes him guilty of some offence, eg serious misconduct in the form of fraud. On the evidence, the WRC must be satisfied that the employer has reasonably arrived at that conclusion.19 [13.12] An employer may fail to come forward with any supporting evidence apart from a bare assertion of belief. In such a case, the WRC will be entitled to conclude that the stated reason for dismissal was not the real reason. The evidence itself may cast doubt on the genuineness of an employer’s asserted beliefs and suggest another reason.20 An employer may make misconduct an excuse to dismiss an employee where it would not have treated others in a similar way. If so, the operative cause for dismissal will not be the misconduct even if it would have merited dismissal.21 It is generally possible for the WRC to determine if there is a principal reason where an employer presents a battery of reasons.22 15 16 17

18

19

20

21

22

Gallagher v Linson Ltd UD 87/1979. Hanlon v Smurfit Kappa Ireland Ltd t/a Smurfit Kappa Dublin [2016] ELR 163. Callanan v Messrs Thomas, John and Edward McWilliams UD 299/1978; on the other hand it may be a case of res ipsa loquitur: Kirwan v Northside Motors Ltd UD 12/1979. Hennessy v Read & Write Shop Ltd UD 192/1978; endorsed by Dunne v Harrington UD 166/ 1979. In Abdullah v Tesco Ireland plc UD 1034/2014, one of its final ‘legacy case’ determinations prior to the establishment of the Workplace Relations Commission, the Employment Appeals Tribunal held: ‘What is required of the reasonable employer is to show that s/he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate.’ See further Ch 16. See, in this context, Devlin v Player & Wills (Ireland) Ltd UD 90/1978 (employee accused by management of theft; the EAT looked, inter alia, to definition of theft in Larceny Act 1916, when rejecting the accusation). See, eg, O’Hare v The Curtain Centre Ltd UD 149/1978; McLeish v Ten Pin Bowling Co of Ireland UD 94/1978; Mulcahy v Seaborn Ltd UD 157/1978. See, in UK, Chris v John Lichfield [1975] IRLR 28; Yates v British Leyland [1974] IRLR 367; Castledine v Rothwell Engineering Ltd [1973] IRLR 99; Price v Gourley Bros Ltd [1973] IRLR 11; Raynor v Remploy Ltd [1973] IRLR 3. ASLEF v Brady [2006] IRLR 576 (EAT). Elias J (as he then was) provides an important discussion of evidence and causation. UD 310/1978; see, too, Smith v de Jong UD 207/1978; Clarke v CIÉ UD 104/1978, contrast O’Brien v Int Harvester Co of Great Britain [1974] IRLR 374.

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[13.16]

[13.13] In Byrne v Telecom Éireann,23 the EAT held, by a majority, that in the absence of evidence from the persons who made the decision to dismiss (the board of directors) the employer had failed to discharge the onus of proof under the 1977 Act. This case illustrates the problem where the dismissing authority is a board of directors, or its equivalent, and a decision to dismiss is collective. In such circumstances it may also be difficult to comply with the principles of natural justice. Generally for senior employees, it is appropriate to vest the power to dismiss in the CEO and that officer should be specified in contracts of service.

B.

REASONABLENESS OF THE EMPLOYER’S DECISION TO DISMISS

[13.14] ‘Perfect’ procedural justice has been defined as the ideal of a procedure guaranteed to lead to an outcome where justice is identified by some independent criterion.24 The balance between substantive and procedural justice becomes most crucial in relation to the reasonableness of an employer’s decision to dismiss. Increasingly, procedural justice is being taken for granted by all concerned and the WRC’s function is to decide how exacting its tenets shall be. An employer will be regarded as having fairly dismissed an employee only if it both gave the employee the full benefits of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal. Section 6(7) of the Unfair Dismissals Act 1977 further emphasises the importance of reasonableness. In determining if a dismissal is unfair regard may be had: (a) (b)

to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act [employer must give employee within 28 days of employment its dismissal procedure] or with the provisions of any code of practice [regarding dismissal approved of by the Minister].

[13.15] In Hennessy v Read & Write Shop Ltd,25 the EAT described ‘the test of reasonableness’. It is applied to: (1) (2)

the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the claimant, and the employer’s conclusion following such enquiry that the claimant should be dismissed.

[13.16] The WRC will scrutinise an employer’s conduct very closely where the employer is faced with a problem requiring investigation. In Dunne v Harrington26 its predecessor, the EAT, declared that an employer may investigate either: ‘(a)

23 24 25 26

personally in a fair and reasonable manner, ie as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving

Byrne v Telecom Éireann UD 24/1990. See Rawls, A Theory of Justice (Clarendon Press, 1972), 85. Hennessy v Read & Write Shop Ltd UD 192/1978. Dunne v Harrington UD 166/1979.

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[13.17]

fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence”27 or he may: (b)

rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (ie, the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.’28

An employer should not rely on the reports of others uncritically. An employer should seek to meet any parties specified in reports, as facts may be inaccurate, and conclusions may be incomplete. A report may be flawed. Reports may refer to conversations with third parties and it is undesirable for an employer to accept hearsay evidence.29

[13.17] Where an employer is confronted with information amassed by a fair and reasonable investigation, it should apply itself to it in a fair and reasonable way ‘as a prudent and concerned employer’ and reach its conclusion as to the appropriate disciplinary measure which should relate reasonably to the offence. The terms of ‘a prudent and concerned employer’ reveal an objective standard of fairness. At the same time, this objective standard it requires proportionality between the alleged offence and the disciplinary measure. 27

28

29

The EAT referred to Hennessy, n 25 above, to Murray v Meath Co Council UD 43/1978, and to British Home Stores Ltd v Burchell [1978] ITR 560. The British Burchell test has made its way into the language of the WRC and of representatives appearing before it (see for example An Employee v An Employer ADJ-00001805, 20 June 2017). This test has three elements: (1) there must be established by the employer the fact of the employer’s belief; (2)

it must be shown that the employer had in its mind reasonable grounds upon which to sustain that belief; and

(3)

the employer at the stage at which it formed the belief on those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

This test has been applied in several cases over the years. The British EAT in Boys and Girls Welfare Society v McDonald [1996] IRLR 126 pointed out that Burchell is not to be understood as saying that an employer who fails one or more of the three tests is, without more, guilty of unfair dismissal. The tribunal must ask itself whether dismissal fell within the range of reasonable responses. See too Panama v London Borough of Hackney [2003] IRLR 278 (CA). For detailed discussion of the band of reasonable responses test, see paras. [13.23] et seq below. The EAT pointed out that it was basing its comments on an internal enquiry of an industrial or business nature. Reference was made to White v Fry-Cadbury (Ire) Ltd UD 44/1979. See McArdle v Kingspan Ltd UD 1342/2003.

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[13.21]

[13.18] On the question of proportionality, it is salutary to consider the recent statement from the Workplace Relations Commission on this point: ‘The decision to dismiss is the ultimate sanction an employer can take against an employee. Dismissal has substantial ramifications for an employee and a decision to dismiss should only be taken as a last resort, where no other sanction is possible or suitable.’30

[13.19] An employer must be able to show why a sanction short of dismissal would not have sufficed in the particular case. In this context, it is important to reflect on the reality that several alternative sanctions are open to an employer which can both punish an employee, send a clear message as to the position that the employer will adopt in relation to such wrongdoing, and arguably protect the business given that the sanctioned employee will be vulnerable to dismissal for any further offence. An example of such a sanction is suspension without pay, which clearly contains a strong punitive element for the employee but which the Supreme Court has described as a ‘significantly less draconian measure’ than dismissal.31

(1) Procedural v substantive justice [13.20] When deciding to dismiss an employee, an employer will normally be expected to follow the rules of natural justice. It must observe ‘industrial due process’. Observance of the employer’s disciplinary procedures, if any, will be relevant. Findings of unfair dismissal have been made entirely on the grounds that an employer failed to live up to the rules of natural justice. However, procedural defects will not make a dismissal automatically unfair.32 The legitimacy of the processes adopted by an employer may be subordinated to the substantive merits of a particular case. An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee. The correctness of this proposition was tested in Meath County Council v Creighton33 ‘by an extreme example of a purely hypothetical case’: ‘... two employees are proved to go to the end of a remote field and one comes back seriously and bodily injured and complains to his employer that he was brutally assaulted by his fellow employee and the employer dismisses his fellow employee on the spot without waiting for any explanation.’

[13.21] If, having been convicted of causing grievous bodily harm to his workmate, the dismissed employee claims under the 1977 Act: ‘does that employee, who has been proved beyond all doubt to be guilty of misconduct, have a right to claim compensation for an unfair dismissal merely because his employer failed to give him a hearing in accordance with natural justice? We think not.’ 30 31 32

33

An Employee v An Employer (ADJ 0000381, 12 April 2017). Berber v Dunnes Stores Limited [2009] ELR 61, per Finnegan J at 73. Byrne v Allied Transport Ltd UD 11/1979, unless they are ‘so defective’: Taylor v Thiel Computer Products UD 246/1990; Mooney v Foy UD 657/1989. Meath County Council v Creighton UD 11/1977. The example is similar to the facts in Carr v Alexander Russell Ltd [1976] IRLR 220.

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[13.22]

Redmond on Dismissal Law

The Circuit Court endorsed this view: ‘That the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the Court on an appeal is clear from the provision of section 6(1) [of the 1977 Act], that regard must be had “to all the circumstances”, and not to one circumstance to the exclusion of all others. This is further borne out by section 7(2)(a), where compliance or failure to comply, by employer or employee, with certain agreed procedures is made a factor to be considered in determining compensation where a dismissal has been held to be an ‘unfair dismissal’ under the Act.’34

The Court derived support from a judgment of Barron J in Loftus and Healy v An Bord Telecom35 in which a lack of fair procedures had been alleged to be fatal to the employer’s decision.

[13.22] The High Court in Loftus and Healy restated the issue thus. It was not a question of whether the ex-employees were deprived of procedures to which they were entitled but: ‘whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal.’

[13.23] The challenge facing an employer seeking to justify, having dispensed with or disregarded fair procedures, will of course be considerable. Achieving a balance between procedural and substantive justice is difficult. The functional importance of manifest justice in industrial relations cannot be underestimated: good industrial relations depends upon management not only acting fairly but being seen to do so.36 Breach of a fundamental tenet of natural and constitutional justice will not be condoned by the Workplace Relations Commission or Labour Court on appeal. In Gearon v Dunnes Stores Limited,37 the EAT held: ‘The right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat to her employment is a right of the claimant and is not the gift of the respondent or the Tribunal … As the rights is fundamental one under natural and constitutional justice; it is not open to this Tribunal to forgive its breach.’

This passage was applied and endorsed by the Labour Court in its 2017 determination in Panasov v Pottle Pig Farm38 where the Labour Court concluded: ‘The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.’ 34 35

36

37 38

Elstone v CIÉ (13 March 1987) CC. See, too, McCarthy v CIÉ (10 May 1985) CC. Loftus and Healy v An Bord Telecom (13 February 1987) HC. Followed by the EAT in McCall v An Post UD 132/1994. As Sir John Donaldson rightly indicated in Earl v Slater & Wheeler (Airlyne) Ltd [1972] IRLR 115 (NIRC). Note the importance accorded to procedure both prior to and at the time of termination in the ILO Report, Ch 12, n 4, paras 11–13. Gearon v Dunnes Stores Limited UD367/1988. Panasov v Pottle Pig Farm UDD175 (6 July 2017).

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[13.26]

[13.24] Early on in Britain, a dismissal could be found to be fair if the EAT held that following a fair procedure would not have made any difference to the result: British Labour Pump Co Ltd v Byrne.39 This corrosive decision of the EAT (approved by the Court of Appeal in W & J Wass Ltd v Binns40) was put to rest by the House of Lords in what is regarded in that jurisdiction as the most important unfair dismissal decision of the 1980s: Polkey v AE Dayton Services Ltd.41 The House of Lords affirmed that in considering whether the employer acted reasonably or unreasonably in treating a ground as sufficient for dismissal, there is no scope for the Tribunal to consider whether, if the employer had acted differently, it might have dismissed the employee. It is what the employer did that is to be judged. In 2002, however, legislation partially reversed the decision in Polkey42 thus potentially disadvantaging employees once more in that jurisdiction. In Ireland, a failure to observe procedures does not render a dismissal automatically unfair.43

(2) Reasonableness of the employer’s conclusion in the light of all the circumstances [13.25] An employer has to satisfy the Workplace Relations Commission that its decision to dismiss was reasonable ‘having regard to all the circumstances’. This, as earlier mentioned, may include procedural defects. The employer is allowed some discretion. In Vokes Ltd v Beer44 the English Court of Appeal suggested that the net must be cast fairly wide: ‘The circumstances embrace all relevant matters that should weigh with a good employer when deciding at a given moment in time whether he should dismiss an employee.’

[13.26] The enforcing authorities have considerable latitude in determining as a question of fact whether or not the employer’s decision to dismiss was reasonable in all the circumstances. In this respect, they act as ‘industrial juries’. Any important consideration that mitigates the fault of the employee or which calls into question the wisdom of dismissal must be considered. Although it may be difficult for an employer to 39 40 41

42

43

44

British Labour Pump Co Ltd v Byrne [1979] IRLR 94. W & J Wass Ltd v Binns [1982] IRLR 283. Polkey v AE Dayton Services Ltd [1987] IRLR 503. See King and Others v Eaton Ltd (No 2) [1998] IRLR 686. See Employment Rights Act 2002, s 98A(2), the so-called ‘Policy reversal section’, and Alexander v Brigden Enterprises Ltd [2006] IRLR 422; Mason v Governing Body of Ward End Primary School [2006] IRLR 432. See Maranan v Beechfield Nursing Homes Limited [2017] ELR 51. There the Employment Appeals Tribunal held that the investigation and the disciplinary hearing carried out by an employer should be two separate processes and should be conducted by two individuals. The EAT nevertheless went on to find that this had not prejudiced the claimant in the instant case and declined to find that the dismissal was unfair. Vokes Ltd v Beer [1973] IRLR 363, [1974] ICR 1.

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Redmond on Dismissal Law

succeed in justifying dismissal on this basis, any important circumstance which relates to the business interests of the employer may be taken into account.45

[13.27] Factors concerning the reasonableness of the employer’s decision are dealt with fully in the succeeding chapters where the grounds rendering dismissal fair or unfair are analysed separately.

C.

THE FUNCTION OF THE WORKPLACE RELATIONS COMMISSION: THE BAND OF REASONABLE RESPONSES TEST

[13.28] The Workplace Relations Commission (or the Labour Court on appeal) must not assume the mantle of an employer regarding the facts in any case before it. Its function is to decide whether, within the so-called band of reasonableness of decisionmaking, an employer’s decision is not unfair. The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd v Swift.46 The Court found that there is a band of reasonableness within which one employer might reasonably dismiss an employee whilst another would quite reasonably keep him on. It depends entirely on the circumstances of the case whether dismissal is one of the penalties which a reasonable employer would impose. A dismissal is unfair if no reasonable employer would have dismissed, but it is not unfair if a reasonable employer might reasonably have dismissed. [13.29] The ‘band of reasonable responses’ test was articulated by Lord Denning MR: ‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’47

[13.30] In the judgment of the Circuit Court in Allied Irish Banks plc v Purcell,48 Judge Linnane expressly approved the British Leyland test and she went on to state: ‘It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably 45 46

47 48

Lavery v Irish Silver Ltd UD 68/1977. British Leyland UK Ltd v Swift [1981] IRLR 91; Strouthos v London Underground Ltd [2004] IRLR 636; Bowater v Northwest London Hospitals NHS Trust [2011] 331; Abdullah v Tesco Ireland plc (UD1034/2014). See Freer, ‘The Range of Reasonable Responses Test – from Guidelines to Statute’ (1998) 4 ILJ 335. See further Foley v Post Office [2000] ICR 128; J Sainsbury plc v Hitt [2003] ICR 111; Anglian Home Improvements Limited v Kelly [2005] ICR 242. Some commentators regard the test as bordering on a test of perversity and undermining the effectiveness of the protection against unfair dismissal in all cases (see Freedland and Collins (2000) 29 ILJ 288). For a recent application of Purcell and British Leyland by the Workplace Relations Commission, see A Security Guard Supervisor v A Security Company ADJ-00003427 (30 March 2017). Relevant English authorities were considered in detail and applied by the Workplace Relations Commission in A Check-out Manager v A Retail Chain ADJ-00002115 (2 June 2017. British Leyland UK Ltd v Swift [1981] IRLR 91 at 93. References to the EAT should of course now be read as WRC (Workplace Relations Commission).

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[13.32]

open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.’

In its determination in Smith v RSA Insurance Ireland Limited,49 the EAT clarified that such a test cannot be relevant in considering constructive unfair dismissal claims, which of course relate to the reasonableness (or entitlement) of the employee in resigning his or her employment.

[13.31] It is possible for different responses to be made by an employer in a given set of circumstances. Each of the responses may in its own way be perfectly reasonable. Because of the fact that there are a number of possible responses the Workplace Relations Commission should not substitute its view for that of the employer concerned.50 As Donaldson LJ said in Union of Construction and Allied Trades and Technicians v Brane:51 ‘It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, “Would a reasonable employer in those circumstances dismiss?” However, Tribunals must not fall into the error of asking themselves the question, “Would we dismiss?”, because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as a sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances.’

[13.32] In Bunyan v United Dominions Trust52 the Irish EAT endorsed the view that: ‘“the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.”53 The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.’

The Labour Court, recently citing Bunyan with approval, has confirmed the applicability of the British Leyland test.54 It is important to emphasise, however, that the British Leyland test does not immunise an employer from scrutiny by the Workplace Relations Commission or the Labour Court: such a result would clearly be to set the protections in the Unfair Dismissals Acts at nought. Thus it has been judicially 49 50

51 52 53 54

Smith v RSA Insurance Ireland Limited UD1763/2013. See eg Doyle v Hoyer Ireland Limited [2016] ELR 336; Mahon v Eircom Limited [2017] ELR 78 (High Court, Moriarty J). Union of Construction and Allied Trades and Technicians v Brane [1981] IRLR 224. Bunyan v United Dominions Trust [1982] ILRM 404 at 413. NC Watling & Co Ltd v Richardson [1978] IRLR 225 (EAT). See for example O’Brien v Dunnes Stores Limited UDD1714 (7 April 2017), Labour Court; Morey v Dromina Community Playgroup UDD1715 (7 April 2017), Labour Court.

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Redmond on Dismissal Law

emphasised that ‘the band is not infinitely wide’.55 As the Labour Court has again recently confirmed: ‘If the decision to dismiss was not with the range of reasonable responses then there cannot be substantial grounds justifying the dismissal.’56

[13.33] The temptation to substitute the adjudicating body’s own view for that of the employer must, however, be resisted as seen, for instance, in McGee v Beamount Hospital57 where the EAT sought to ask whether a sanction less far-reaching than dismissal might not have been more appropriate, but it recalled that: ‘the task of the Tribunal is not to consider what sanctions the Tribunal might impose, but rather whether the reaction of the respondent and the sanction imposed lay within the range of reasonable responses.’

[13.34] Similarly, the Circuit Court (which previously enjoyed a de novo appellate function on appeal from the Employment Appeals Tribunal) affirmed that it is not within its power to interfere in any way with the employer’s decision by reducing it to, or substituting for it, some more lenient measure of discipline, such as a period of suspension: ‘If, in all the circumstances, there are substantial grounds to justify the dismissal then the decision of management to that effect is not to be subjected to interference from the Tribunal nor from this Court on appeal. The policy of the [Unfair Dismissals] Act is, as I read it, that if the dismissal is not an excessive or otherwise unjustifiable remedy on the part of the employer in all the circumstances, then it must stand.’58

[13.35] In Allied Irish Banks plc v Purcell,59 Judge Linnane, having expressly approved the British Leyland test, overturned the EAT’s decision to substitute the sanction of dismissal for the lesser sanction of suspension.

D.

THE EMPLOYER’S DISCIPLINARY PROCEDURES

[13.36] The Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) is a useful general guide. The Code, introduced under the Industrial Relations Act 1990, is admissible in evidence in court proceedings. Good disciplinary procedures will assist an employer to observe natural and procedural justice in the employment relationship. 55 56

57 58

59

Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677 per Bean LJ at [61]. Morey v Dromina Community Playgroup UDD1715 (Labour Court, 7 April 2017). See also the 2017 determination of the EAT in Dudoit v Boyne Valley T/A Boyne Valley Group (UD737/ 2015) where the EAT held that dismissal ‘was a disproportionate response and should have been dealt with, at least initially, in a more low-key and constructive way’. McGee v Beamount Hospital UD 136/1984. See, too, Curley v Texaco (Ire) Ltd UD 829/1986. Kelly v CIÉ (11 February 1985) CC (Judge Clarke). For detailed judicial examination of an example of a case where dismissal was held not appropriate see Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241. For analysis see Boughton, ‘Holding Suspensions, Policies, and Remedies in Unfair Dismissal—Bank of Ireland v Reilly’ (2015) 12 IELJ 72. References to the EAT should of course now be read as WRC (Workplace Relations Commission).

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[13.39]

An employer is obliged, under s 14(1) of the 1977 Act, to give an employee a notice in writing not later than 28 days after he enters into a contract of employment: ‘setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.’

Any alterations in the procedure must be notified within 28 days thereof: s 14(2). The ‘procedure’ in question is defined. It is either a procedure agreed collectively or established by custom and practice.

[13.37] Outside of such a context, it is good practice for employers to provide details of their disciplinary procedures to employees. They may be varied or added to from time to time by the employer, and once again good practice dictates that any changes be communicated to employees. In all cases, knowledge and understanding of the mutual responsibilities between employer and employee is conducive to trust and industrial peace. A successful manager will understand responsibilities as well as rights. An employee has the right to expect fair management.

[13.38] Although it may strike a negative tone to insert clauses concerned with discipline and dismissal into contracts of service, experience shows that clear understandings between the parties are more important in these matters than anywhere else in the contract. As has been stated in an American context: ‘Employee discipline is the real drama of labor relations. It is the panorama of industrial conflict. It is the nerve center of a network of interrelationships between management and employee ... On a broader canvas employee discipline is a process of control. It is a method for the maintenance of authority by management.’60

(1) The corrective approach [13.39] Disciplinary procedures traditionally are progressive or corrective. They provide for a series of steps, which may be chosen in that order, or some of which may be passed over, depending on the circumstances. The number of steps varies between three to five, four being the average. Typically, they are:

60

(i)

A verbal warning the fact of which is noted in the personnel file: the employee is told that if an infraction occurs again within a specified period, a written warning will follow.

(ii)

A written warning, which is placed on the personnel file: the employee is told that if an infraction occurs again within a specified period, a second written warning or more severe disciplinary action will follow.

(iii)

Suspension for a period of time without pay, which is placed on the personnel file: the employee is told that if an infraction occurs again within a specified period dismissal will follow.

(iv)

Dismissal.

Stessin, Employee Discipline (Washington DC, 1960) viii.

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[13.40]

Redmond on Dismissal Law

Disciplinary procedure (i) Counselling interview

Keep a note of date and issue discussed.

(ii) Verbal warning

Note confirming verbal warning to individual, copy to file.

(iii) Written warning Offer representation

(iv) Suspension Offer representation

(v) Dismissal Offer representation

Note to individual should state the offence and include reference to the next offence leading to suspension or dismissal. Copy, if relevant, to union. Suspension memo should refer to the necessity and justification for suspension, previous offences and point out that further misconduct will lead to dismissal. Copy, if relevant, to union. Dismissal letter should refer to previous wrongs and to the investigation prior to dismissal. Copy, if relevant, to union.

A typical progressive system for performance-related deficiencies is charted above. It contains the additionally vital element of due process or fairness, according a right to representation at steps (iii) to (v) in the series. A warning is usually cleared if after a specified time, usually six months, there is no recurrence of the wrong.

[13.40] The progressive system relates to issues of competence, capability and conduct other than gross misconduct or other acts entitling an employer to dismiss without notice. In relation to such acts or suspected gross misconduct, a disciplinary procedure will typically involve precautionary suspension of the employee on full pay61 to enable the employer to carry out a full investigation. Depending on the outcome, appropriate disciplinary action will be taken (or it may be appropriate to take no action). A precautionary suspension is to be distinguished from suspension without pay which is a form of disciplinary action. This distinction should be clear in the procedures. The requirements of natural and constitutional fairness apply differently to the latter, a proposition recently confirmed by the High Court in Kinsella v Ulster Bank.62 [13.41] It is crucial for an employer to list all possible forms of disciplinary action in addition to warnings, suspension and dismissal in the contract of employment, eg 61

62

Where part of an employee’s earnings come from commission, the average amount should be paid to the employee while on suspension, otherwise the employee will suffer; see comments in James Ferris v Royal Liver Friendly Society UD 877/1983. On a disciplinary procedure which the EAT sought to incorporate in full in its determination, see Fogarty v Dunnes Stores Munster Company UD 548/1996. Kinsella v Ulster Bank (25 October 2016) HC, Gilligan J. For further discussion of this and suspension-related authorities see Ch 8.

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[13.47]

demotion, transfer, freezing of pay or of promotion prospects, reduction in salary and so on. Otherwise the employer would be in breach of contract if it were to impose such sanctions.63 It is advisable to provide examples of wrongs that will attract the different types of disciplinary action, such lists being explicitly non-exhaustive and illustrative only. Employers will need to have clear policies accompanying these procedures in relation to matters such as Internet access, email use and diversity. HR staff need to be aware of data protection law regarding creating and keeping records.

(2) The constructive approach [13.42] A flaw in traditional disciplinary procedures is their illogical premise: if an employer treats its employees progressively worse, they will get progressively better. Some employers opt for a more constructive approach, although this is yet rare in Ireland. Elements of a constructive approach can be grafted on to the traditional system. [13.43] A typical constructive approach can be summarised briefly. At the time an employee is taken on, an employer spends time ensuring that the employee understands its rules and accepts them. This presupposes the employer is clear about its rules and values. The employee is asked not only to acknowledge receipt of the contractual documents but also to sign a statement of agreement and commitment to the employer’s rules of conduct. Upon completion of probation, this routine is repeated. [13.44] If a disciplinary meeting becomes necessary later on, the employer can refresh the employee’s recollection of its rules. The employee will be asked if she remembers her commitment. At the conclusion of the meeting she will be asked to verbalise that commitment once more. She will be told that continued failure will signify that she no longer wants to be employed by the employer. The employee will probably want to try harder thereafter, in line with the commitment she has made. If she had been dealt with under the traditional system, the employee would feel punished. [13.45] Should a second disciplinary meeting be necessary, the employee will be asked not to verbalise but to sign a reaffirmation statement of agreement and commitment. The employee in so doing is accepting personal responsibility. [13.46] If a final disciplinary meeting takes place, the employee is asked whether she wishes to remain employed with the employer. If she answers in the affirmative, she signs another statement which recognises her infraction, affirms her desire to remain employed, reaffirms her agreement and commitment to the employer’s rules and recognises that a further infraction will constitute, in effect, a self-chosen termination. As in the traditional approach, only one stage will be necessary if the employee is alleged to have committed a serious wrong.

[13.47] The constructive approach places the onus fairly on the employee. She is given a choice to adhere to the employer’s standards of conduct. She is not forced to do so through punishment. In the final analysis, it can be said that an employee dismisses herself. Psychological, behavioural and legal differences exist between the constructive 63

See, eg, Wallace v Irish Aviation Authority [2012] IEHC 178, [2012] 2 ILRM 350, analysed in Ch 10.

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and the traditional approach. The traditional system is, as yet, embedded in Ireland’s labour relations system and the discussion which follows is premised on that fact.

(3) General principles [13.48] Running through the published decisions and determinations of the Workplace Relations Commission (and previously the Employment Appeals Tribunal) are recurring general principles regarding fairness and disciplinary procedures. (i) An employer should be consistent in applying procedures [13.49] Where an employer has tacitly accepted or condoned a particular practice and decides to take a firm disciplinary line, it must give adequate warning to employees that it is taking a new approach. If it has previously tended to interpret a disciplinary rule lightly, a sudden decision to dismiss employees for breaking the rule without adequate warning of the change in approach may be unfair.64 Where management has condoned a certain amount of laxity on the part of employees it is under a clear duty not to act prematurely and to dismiss without adequate warning that a higher standard is expected.65 An employer will need to communicate its ‘amnesty’ regarding employees who may have benefited from previous laxity and make clear to all employees when the higher standard will be required. If a new irregularity is involved, adequate training may be necessary for its employees, for example, if the irregularity arises out of systems or procedures.66 [13.50] Employers should ensure they act consistently in treating anyone whose conduct is unacceptable in the same way. Where a co-employee in a similar situation to the claimant is not dismissed, dismissal will be unfair.67 (ii) Employees must know what is expected of them and what will happen if they fall below expectation [13.51] This applies to employees at all grades. An employer should have a disciplinary procedure and rules providing for the right to be informed of complaints and to be given an opportunity of stating an employee’s case before any decisions are reached. Under the Labour Relations Commission’s Code of Practice on Grievance and Disciplinary Procedures:68 64

65

66 67

68

This passage from the first edition of this work was cited with clear approval by O’ Donnell J, delivering the lead judgment of the Supreme Court, in Ruffley v The Board of Management of Saint Anne’s School [2017] IESC 33, [44]. Cassidy v Batchelors Ltd UD 1098/1996; O’Connell v Garde’s Coffee Shop [1991] ELR 105; O’Neill v RSL (Ire) Ltd [1990] ELR 31; Kelly v Power Supermarkets Ltd [1990] ELR 41; O’Neill v Furlong & Sons Ltd UD 75/1978. Also, Hertz Rent-A-Car Ltd v Hughes UD 10/ 1980. Contrast Redland Purple Ltd v O’Halloran UD 51/1978; WJ Dawn Ltd v Tynan UD 120/1980. Cf also, Hadjioannou v Coral Casinos Ltd [1981] IRLR 352. Garland v Irish Rail UD 125/1992. Kelly v Power Supermarkets Ltd [1990] 1 ELR 141. McAndrew v Eagle Star Life Assurance Co Ltd UD 134/2002. Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (SI No 146/2000).

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[13.54]

‘Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed. Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.’

In certain employments, eg, those involving rehabilitation of people or the care of seriously disturbed children, an employer may require special standards of its employees. If so, it is essential to state these in writing to avoid legal debate later on.69

[13.52] In Harris v PV Doyle Hotels70 the claimant was dismissed for drinking on the premises. The EAT observed that management had not sufficiently made known to employees of the hotel that drinking on the premises would result in instant dismissal and: ‘[a] rule which is not expected to be enforced may be so diluted that its breach per se might not justify dismissal. There was a duty on management to make clear beyond doubt to employees any “house rules” such as the drinking rule in this hotel, the breach of which would result in automatic dismissal.’71

[13.53] When an employee is first taken on, management should spend time explaining the employer’s rules and procedures. Elements of the constructive approach might be adopted. Unfortunately employers often confine themselves to attaching a copy of the disciplinary procedures to the employee’s contract of employment. Spending time on the drafting of employment contracts or manuals and ensuring that these are adequately communicated to employees is crucial. There is no better way of enlightening employees as to what is expected of them.

(iii) An employer must ascertain the full facts before taking disciplinary action [13.54] This principle has been stressed perhaps more than any other in relation to the employer’s decision to dismiss. An employer may have rules or principles, eg, against violence, but these rules must always be applied to the facts before the employer.72 The investigation must be ‘comprehensive to the degree that the outcome could be assured to provide a basis for conclusions to be drawn on the balance of probabilities following the conduct of the Respondent’s disciplinary process’.73 69

70

71

72 73

O’Brien v Good Shepherd Convent UD 342/1991 where the dissenting view is preferable to that of the majority. Harris v PV Doyle Hotels UD 150/1978. See too Kelly v Sheehan’s Cash and Carry UD 925/ 1996; Carroll v The Foxrock Inn [1990] ELR 236; Gavin v Kerry Foods [1990] ELR 162; Byrne v Security Watch (Dublin) Ltd [1991] ELR 35. The fairness of the rules themselves and the question of whether they are binding on an employee would, of course, always be reviewable by the Workplace Relations Commission. Vanfleet Transport Ltd v Mark Murphy (25 November 1988) CC. Ikoro v Woodies DIY Limited UDD1739 (3 August 2017) Labour Court.

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[13.55] An employer will be entitled to take into account inconsistencies in relation to what one or other of the parties may say and it is reasonable in the circumstances for an employer to hold that inconsistency against the party concerned. This arose in Cahill v Trinity College Dublin74 where a security officer of long standing in the College was alleged by a female student to have made improper suggestions to her and to have exposed himself to her while on duty. The student had gone to the Front Gate Lodge, where the claimant was on duty. It was then the offensive actions were alleged to have occurred. The apparent inconsistency in the claimant’s evidence to the employer involved one of the patrol staff on duty in the College on that night. The EAT acknowledged that the case depended entirely on conflicting statements. However, the employer’s enquiry was scrupulously fair and entirely thorough and complete. On the balance of probabilities, therefore, the complaints and evidence of the student were accepted by the EAT as accurate and the dismissal was found not to be unfair.

[13.56] An employee does not have a legal right to remain silent in disciplinary proceedings, unlike a person charged with a criminal offence. As an employee he or she is obliged to cooperate. In Farrell v Minister for Defence75 the plaintiff was dismissed for alleged involvement in attempting to take property belonging to the defendant. Murphy J (High Court) found that: ‘... to refuse any explanation either at the time when the incident occurred or subsequently when called upon in writing to do so, would in any view justify the employer or any third party in drawing the inference that the plaintiff had been involved in an attempted larceny of his property and accordingly was not trustworthy.’

More recently, similar sentiments were expressed by Clarke J (as he then was) in Rowland v An Post 76 in the following passage: ‘A contract of employment or a long term contract such as that with which the Court is concerned in this case will almost inevitably involve a level of confidence and trust. In the context of such a contract it is not appropriate for a party to whom queries relevant to the performance of the contract are addressed to adopt a position which might be characterised as typical of Bart Simpson and demand proof. Rather it is appropriate to address the issues raised as best they can.’77

[13.57] If an incident occurs in a workplace where there are or may have been other employees present, the employer must interview them as part of its quest for the facts. As the EAT put it in Vita Contex Ltd v Dourellan:78 ‘A reasonable investigation requires more than merely seeking to confirm suspicions; it must include an inquiry into all the surrounding circumstances and interviewing all relevant employees on these matters.’ 74 75 76 77 78

Cahill v Trinity College Dublin UD 476/1985. Farrell v Minister for Defence (10 July 1984) HC. Rowland v An Post [2017] IESC 20. Rowland v An Post [2017] IESC 20 per Clarke J at [5.3] et seq. Vita Contex Ltd v Dourellan UD 1031/1992. See, too, Nugent v Queally Pig Slaughtering Ltd UD 865/1991.

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[13.60]

(iv) Employees must be allowed to question the facts and to present their defence [13.58] Natural and constitutional justice demands that alleged misdemeanours of an employee be brought to his notice and that he be given an opportunity to defend himself.79 Although written representations may be regarded as satisfying the test of fairness it is preferable to provide an oral hearing to an employee.80 It is a fundamental requirement of fairness that an accused employee be given a full and reasonable opportunity to examine all relevant witnesses. [13.59] If there is a written report available (eg an audit report), the employee ought to receive a copy of that report in good time before the disciplinary meeting. In Magham v Janssen Pharmaceuticals BV81 the EAT considered that there was a serious and fundamental unfairness in the denial to the claimant of knowledge of the contents of a report made on her by one of her superiors and of the recommendation contained in its covering letter that she was not a suitable person to operate the computer. [13.60] The requirements of natural justice depend on the circumstances of each case and the nature of the particular enquiry. This was emphasised by the High Court (Shanley J) in A Worker v A Hospital.82 The plaintiff (the employee) working for the defendant (the hospital), was accused by a patient in the defendant’s care of sexually abusing her. There were no third-party witnesses to the alleged incidents. The complainant (the patient), who was suffering from a schizophrenic condition, was stated by the defendant’s medical experts to be in a mentally fragile condition. A validation interview with the patient was carried out by the medical experts on behalf of the hospital. The patient’s mental condition was found to be very frail and it was suggested that she be interviewed about the allegations only by a person specially trained in interviewing mentally handicapped people. The employee was permitted to nominate a suitable expert to assess the patient in the presence of the hospital’s experts. However, it was decided that the patient herself would not be produced for questioning by the employee in the course of the investigation. The allegations of the patient would 79

80

81

82

Daly v Somers UD4 95/2005; Wernstrom v Galway Aviation Services Ltd UD 1460/2004; Fitzgerald v Kerry Network of People with Disabilities UD 1037/2003; McGarrigle v Donegal Sports and Golf Centre Ltd UD 680/2002; Moran v Bailey Gibson Ltd UD 69/1977. See, similarly, Garrett v CIÉ UD 177/1980, approving Khanum v Mid-Glamorgan Area Health Authority [1978] IRLR 215; McCarthy v Irish Shipping Ltd UD 100/1978. In this context see Ayanlowo v IRC [1975] IRLR 253. In its 2014 determination in Mary McNulty v Ballyheane Community Sports Club Limited (UD26/2012), the EAT held that it is best practice to provide for an appeal by way of an oral hearing, but that the employer’s failure to offer an oral hearing does not, of itself, render a decision to dismiss unfair. Magham v Janssen Pharmaceuticals BV UD 1127/1984. See, too, Cooke v Carroll UD 239/ 1994 where a video tape showing the claimant removing money from a till was not shown to the claimant and Hussain v Elonex plc [1999] IRLR 420 (CA) – failure to disclose witness statement did not equate to failure of natural justice unless essence of case against employee contained in same and employee not otherwise informed. See further Asda Stores Ltd v Thomson & Ors [2002] IRLR 245 and Now Motor Retailing Ltd v Mulvihill [2015] UKEAT 0052_15_1506 (15 June 2015). A Worker v A Hospital [1997] ELR 214.

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therefore be conveyed by experts and would, of necessity, contain hearsay. The employee sought an interlocutory injunction restraining the hospital from commencing and determining a disciplinary charge against him without affording him an opportunity to hear and test the patient’s evidence by cross-examination.

[13.61] The High Court reaffirmed the principle that, in considering the question of the admissibility of hearsay evidence, all the facts must be examined and the rights and interests of all the parties must, as far as practicable, be safeguarded. The court sought to balance the risk of serious damage to the patient’s health if she were forced to give evidence against the risk that a serious injustice would be done to the employee if she did not. Injustice to the employee could be avoided by directing that further validation of the patient’s complaints be carried out, in the presence of her doctor, by an expert nominated by the employee. The court directed that such validation was to be carried out in advance of the hearing and any report produced was to be the property of the employee. [13.62] Although in theory knowledge of the identity of those making allegations is not necessary for a fair hearing, in general, it is a mistaken strategy for an employer to elicit or accept information from witnesses on a ‘confidential’ basis. The only evidence of value to an employer is evidence which can be put in its entirety to the allegedly offending employee and used if necessary later on before a tribunal or court of law. It is prima facie contrary to natural justice to dismiss a person on the basis of an accusation which is sheltered by a cloak of confidentiality. As was stated by the EAT in a passage that is equally applicable to the WRC: ‘It is most unusual for a Tribunal to accept the word of an employer as to the reliability of its informants when the Tribunal itself has no other evidence of it ... It accepts that serious consequences might result in breaking faith with ... staff in making known the names of the informants.’ 83

[13.63] Persons who give evidence in confidence to an employer may, and perhaps should, have to attend as witnesses before the WRC. It is important for an employer to be aware of this if it decides to proceed on the basis of such evidence. In Kiernan v Our Lady’s Hospital for Sick Children84 the EAT accepted that the employer did not in the circumstances have to divulge the names of its witnesses and said it was not obliged to do so provided it outlined the allegations made by them. If it is unavoidable that witnesses remain confidential (at least before dismissal), an employer must ensure that every opportunity is given to the employee to be informed of and to answer each allegation made. [13.64] At a disciplinary meeting an employee should be offered an opportunity to have the employer’s witnesses brought in to the meeting. In general, an employee’s ‘accuser’ should be named, and an employee should be asked if he wishes to meet his accuser face to face. A fortiori where there is an accusation against him, an employee must be told about it in full.85 It is axiomatic that the person who is empowered to make the decision to dismiss should meet with the employee concerned.86 83 84 85 86

McNamara v Lannit (Ireland) Ltd UD 910/1984. Kiernan v Our Lady’s Hospital for Sick Children UD 1129/1992. Bunyan v UDT [1982] ILRM 404. Moran v Ashford Valley Food Ltd UD 202/1991; Walsh and O’Riordan v Lindville Ltd UD 125 and 6/1990.

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[13.69]

[13.65] The WRC may find a dismissal unfair for breach of procedures even where an employee has consented to the breach. For instance, where the employer consulted after a hearing with inspectors who had not taken part in it, this was described as ‘a serious flaw’ by the EAT which could have resulted in unfairness to the employee as he would have had no opportunity to deal with any prejudicial allegations made against him.87 The fact that the employee had consented to the consultation did not alter the EAT’s view. [13.66] If new facts or representations emerge after what is regarded as the final hearing with an employee, they must be put to the employee (if necessary at another meeting). This is particularly the case if the new facts or representations suggest a further infraction by the employee (or are material to his defence).

(v) Employees are entitled to representation [13.67] A denial of representation will amount to a breach of natural justice. In Devlin v Player & Wills Ltd88 the EAT was satisfied that the denial of trade union representation to the claimant on a matter which the respondent company regarded as serious and on which it intended to take the most serious action of dismissal amounted to ‘unfair industrial practice’. [13.68] The claimant in O’Brien v Asahi Synthetic Fibre89 had been denied representation and time to prepare his defence. The EAT cited with approval Barron J in Flanagan v University College Dublin:90 ‘The present case is one in which the effect of an adverse decision would have far reaching consequences for the applicant. Clearly, the charge of plagiarism is the charge of cheating and as such the most serious academic breach of discipline possible. It is also criminal in its nature. In my view the procedures must approach those of a court hearing, the applicant should have received in writing details of the precise charge being made and the basic facts alleged to constitute the offence. She should equally have been allowed to be represented by someone of her choice and should have been informed, in sufficient time to enable her to prepare her defence, of such right and any other rights given to her by the rules governing the procedure of the disciplinary Tribunal. At the hearing itself, she should have been able to hear the evidence against her, to challenge that evidence on cross-examination and to present her own evidence.’

Flanagan involved an alleged wrong that was potentially criminal in nature. For that reason, the extract above must be treated with caution. There is no authority to the effect that an employer must conduct its in-house investigation in a quasi-judicial way.

[13.69] The question of whether and at what stage an employee may be legally represented in the context of internal proceedings within his or her employment has been the subject of extensive analysis by the Superior Courts in recent years. The leading decision is that of the Supreme Court in Burns v Governor of Castlerea Prison,91 which reveals that this inquiry is intensely fact-specific and depends on a range of 87 88 89 90 91

Boulger v Irish Rail UD 771/1993. Devlin v Player & Wills Ltd UD 90/1978. O’Brien v Asahi Synthetic Fibre UD 25/1992. Flanagan v University College Dublin [1989] ILRM 469 at 475. Burns v Governor of Castlerea Prison [2009] 3 IR 682.

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Redmond on Dismissal Law

factors, as set out in the judgment of the unanimous Court delivered by Geoghegan J. Expressly endorsing and accepting into Irish law the precepts set out by Webster J in Reg v Home Sec ex parte Tarrant,92 Geoghegan J described the criteria set out therein as having ‘stood the test of time’ and as such could ‘safely be adopted in this jurisdiction’, subject to the rider that the criteria merely captured ‘starting points to be considered’93 and that ultimately the question of whether to require legal representation would have to be assessed on the particular facts. Those relevant starting point criteria are the seriousness of the charge and of the potential penalty; whether any points of law are likely to arise; the capacity of a particular employee to present his or her own case; procedural difficulty; the need for reasonable speed in making the adjudication, that being an important consideration; and the need for fairness as between the persons involved.94

[13.70] Certainly, it could be said with confidence in most cases that where procedures do not allow for cross-examination of witnesses, this will not make an investigation fail the required test.95 Regard must now be had, however, to the decision of the High Court in Lyons v Longford Westmeath Education and Training Board96 in which the High Court held on the facts of that case that an entitlement to legal representation and crossexamination was essential at an investigatory stage. There the applicant was accused of bullying a colleague and was submitted to an investigatory process. The procedure followed, which was provided for in a Bullying Prevention Policy, did not provide many procedural safeguards. In particular, the investigatory process was capable of leading to dismissal and prohibited legal representation and the cross-examination of witnesses. Eagar J noted that the procedures adopted clearly violated Article 40.3.1 of the Constitution in failing to allow a legal representative to appear on the applicant’s behalf. According to Eagar J, in principle, whenever a process was initiated which could lead to dismissal, that process must be accompanied by the panoply of fair procedure entitlements. It remains to be seen how this will be applied by future courts, but its implications are potentially very significant. It will not always be possible to draw ‘clear blue water’ between the fact-gathering and decision-making stages and the decision in 92 93 94

95

96

Reg v Home Sec ex parte Tarrant [1985] 1 QB 251. Burns v Governor of Castlerea Prison [2009] 3 IR 682 per Geoghegan J at 688. Burns v Governor of Castlerea Prison [2009] 3 IR 682, citing Reg v Home Sec ex parte Tarrant [1985] 1 QB 251. Ulsterbus Ltd v Henderson [1989] IRLR 251 (NICA) endorsed by Santamera v Express Cargo Forwarding [2003] IRLR 273 (EAT); Aziz v Midland Health Board [1995] ELR 49. See further Yeung v Capstone Care Ltd [2013] UKEAT 0161_13_1302 (13 February 2013). In general see McCrann, ‘Investigations in the workplace’ (2006) 3 IELJ 68. Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272. Contrast Lyons with EG v The Society of Actuaries in Ireland [2017] IEHC 392 and NM v Limerick and Clare Education and Training Board [2015 No 308 JR], where the High Court (McDermott J in both cases) emphasised that the full panoply of fair procedure entitelements does not apply at an investigative stage. Lyons was considered by the WRC in A General Operative v A Manufacturing Company ADJ-00006103 (29 August 2017) where the WRC did not accept that the employer’s attempt at offering cross-examination by correspondence was sufficient to discharge its obligations of natural and constitutional justice (albeit that on the facts the dismissal was upheld as not unfair given that the breach did not taint the entirety of the process).

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[13.73]

Lyons certainly tilts the balance in favour of enabling employees to have legal representation even at the investigation stage. The direct inter-changeability evinced in the judgment between a right to cross-examine and a right to legal representation is also a question that requires clarification by later courts. The relationship between Lyons and cases such as Gallagher v Revenue Commissioners97 and Rowland v An Post,98 analysed in Chapter 7, also requires judicial consideration.

(vi) Employees are entitled to be treated as individuals [13.71] It may be necessary or desirable to take into account individual characteristics, such as health or disability, and matters such as prior service, performance and disciplinary record. An employee who is deaf and dumb, for example, must be given an opportunity to explain himself or herself adequately with whatever assistance may be required before a decision to dismiss is taken.99 Equally it has been held that an employee’s recent clinical depression should have been taken into account by an employer when investigating an incident.100 A punishment that fits the ‘crime’ but not the perpetrator will be counterproductive. (vi) Employers must not augment allegations made against employee during the process of an investigation [13.72] Heavy emphasis has been laid in recent case law on the duty on an employer to set out clearly allegations made against an employee from the outset, with the employer not being permitted to augment the allegations as the investigation progresses. This is because an employee is entitled to be informed at the outset of the complaint(s) being made against him or her in order to ensure he or she has a meaningful opportunity to prepare and to present his or her defence.101 (4)

Warnings

[13.73] With the exception of cases of gross misconduct, serious ill-health, or other circumstances entitling an employer to dismiss without notice, an employer is normally expected to give a final formal warning before dismissing an employee although, as a matter of law, the omission of a warning will not render a dismissal unfair. Where a warning, if duly given, is likely to influence the result, its omission may make a dismissal unfair. In O’Reilly v Dodder Management,102 the EAT stated most 97

98 99 100

101 102

Gallagher v Revenue Commissioners [1995] ILRM 108. The law as stated in Flanagan v University College Dublin [1988] IR 724, para [13.68] was approved in Gallagher, and applied in Sheehan v Commissioner for An Garda Síochána, Minister for Justice, Ireland and The Attorney General [1998] IEHC 202. For consideration of Flanagan and Gallagher see the judgment of the High Court (Irvine J) in Stoskus v Goode Concrete Ltd [2007] IEHC 432. Rowland v An Post [2017] IESC 20. Duke v Sherlock Bros Ltd UD 75/1993. McEvoy v Avery Dennison Ltd [1992] ELR 172. See too Palmer v The Trustees of the Army Canteen Board UD 449/1984 (infant employee); Bastow v Anderson & Co UD 314/1978 (trauma of a family death). Kilsaran Concrete Limited v Vitali Vet [2016] ELR 237. O’Reilly v Dodder Management UD 311/1978.

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emphatically that an employer cannot dismiss without, where appropriate, giving an employee warnings. Where capability and competence are concerned, the standard of job performance that is required must be made clear to an employee and he should be told that failure to reach that standard will result in dismissal: ‘a warning should place the appellant under clear notice of his general103 or particular areas of deficiency, so as to enable him to rectify same, or if aggrieved, to make representations to his employer, either personally or through his trade union representative.’104

[13.74] In particular, a final warning should specify that an infringement will lead to the sanction of dismissal.105 A reasonable employer must ascertain the possibilities of correcting an employee’s behaviour before dismissing him.106 This may be less important in dismissal for ill-health, or for redundancy, where consultation is likely to provide the necessary information for employers; similarly, in dismissal for incapability. In cases of misconduct, an employer is required not only to make reasonable efforts to communicate to an employee that his actions are placing his job in danger, but also to ensure that an employee is given a reasonable opportunity of rectifying his actions to meet the required standards of behaviour.107 Fighting or violence is well established as a category of misconduct for which a single offence may justify dismissal. The general principle is that fighting per se is not a dismissable offence certainly in the first instance but a reasonable employer is expected to indicate in its disciplinary rules that fighting or violence is liable to be punished by instant dismissal, although failure to provide such a rule or to warn will not always make a dismissal unfair. In effect the rule itself may act as a substitute warning. 103

104

105

106

107

In some instances, it seems, notification of a general area of deficiency will not be enough. In Gaffney v Press Knives Ltd UD 304/1978, the EAT expressed a wish to put on record that where vague complaints such as ‘non-cooperation’ are made or found against an employee, specific instances of non-cooperation should be given to the employee, so that the employee will understand clearly the employer’s complaints and also ways should be indicated in which an improvement might reasonably be expected. Kerr v Tower Hotel Group Ltd UD 11/1977; see, too, Richardson v H Williams & Co Ltd UD 17/1979; Newman v TH White Motors Ltd [1972] IRLR 49; Phipps v Laffin UD 18/1979. Kerr v Tower Hotel Group Ltd UD 11/1977. Allen v Wellman International Ltd UD 152/1979; Connolly v Midland Tarmacadam Ltd UD 19/1979; O’Reilly v Dodder Management UD 311/ 1978; Walsh v Smiths (Portlaoise) Ltd UD 164/1978; Corcoran v Kelly & Barry Associates UD 174/1978. Where there is a sudden and uncharacteristic deterioration in an employee’s work performance, the employer should make reasonable efforts to find out the causes of this: McGibbon v Mark Royce Ltd UD 90/1978; also, Belford v Doyle UD 286/1978. The employer cannot rely on expired warnings if it decides to dismiss for a reason later on: Diosynth Ltd v Thomson [2006] IRLR 284; Whelan v IWA Ltd t/a Irish Wheelchair Association UD 436/ 2014. See Fulham v Curragh Knitwear Ltd UD 76/1978; Bartley v Royal Dublin Golf Club UD 151/ 1978; Byrne v North Strand Furniture Ltd UD 12/1980. Healy v Cormeen Construction Ltd UD 98/1978. See, too, Byrne v Bradden Design Centre Ltd UD 176/1978; Redmond v Royal Marine Hotel UD 196/1978 (where the employer had in any event confused the claimant with another employee); O’Reilly v Furlong & Sons Ltd UD 75/1978.

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[13.79]

[13.75] The EAT implicitly accepted in Murphy v Eyrefield House Stud Ltd108 that there may be good reasons to differentiate the position of managers (or executives) and staff in the matter of warnings. If, say, a chief executive falls below agreed performance standards, an entire business may be lost because of the time involved in the process of issuing verbal and then written warnings. Added to that the necessary ingredients of trust and confidence will be damaged to the detriment of the company. In Murphy the EAT accepted the validity of the employer’s view that to have issued the claimant with an oral or written warning would have jeopardised the confidence which is an integral part of an employer–manager relationship. Nonetheless the EAT took the view that the employer’s attempts to convey to the claimant what was expected of her were not clear or sufficiently explicit. Nor was it ever conveyed to her that her job was at risk. Hence the dismissal was found to be unfair.

[13.76] In cases involving competence or capability an employer may decide that the employee’s behaviour equates more to a conduct matter, in which case it may not be appropriate to issue a warning. This could happen where the degree of inadequacy is such that a warning was not necessary (ie, where a warning could or would lead to no improvement).109 [13.77] It is desirable to keep a clear record of the terms of the warning where it is oral or to specify them clearly where it is in writing. The terms should include the time, day and date on which the warning is to commence and the time, day and date on which it is to expire. Where the warning is written it is useful to request the employee to acknowledge receipt. An employee may deny receiving a written warning.110

[13.78] Provided they have not expired, an employer may take previous warnings into account when deciding to dismiss for a particular offence. The fact that the conduct was of a different kind on those occasions when the warnings were given does not render the previous warnings irrelevant.111 As ever, it is essential to have regard to the specific provisions of the employer’s disciplinary policy in relation to previous warnings. Such scrutiny is evident in the decision in Whelan v IWA Ltd t/a Irish Wheelchair Association.112 The employer’s policy in that case had provided that while an employee’s ‘current and relevant disciplinary record’ could be considered, a spent warning could not be. The determination notes the acknowledgement at the hearing by a decision maker that she had ‘erroneously’ taken into account a spent warning given to the claimant. The EAT concluded that giving inappropriate weight to this spent warning ‘[went] to the very core of the decision to dismiss’. [13.79] Warnings, like other aspects of the employer’s behaviour, must be reasonable. If motivated by malice, or because a relationship has broken down, a warning could give rise to a claim of constructive dismissal, or to initiation of the employer’s grievance 108 109 110

111 112

Murphy v Eyrefield House Stud Ltd UD 441/1992. Grant v Ampex Great Britain Ltd [1980] IRLR 461. Kennedy v Avon Arlington Ltd UD 934/1992. ‘Informal’ warning may be regarded as ‘formal’ if it has characteristics of a formal warning: London Underground Ltd v Ferenc-Batchelor [2003] IRLR 252 (EAT). Auguste Noel v Curtis [1990] IRLR 326. Whelan v IWA Ltd t/a Irish Wheelchair Association UD 436/2014.

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system. In Troy v Ennis Handling Systems Ltd113 the EAT considered that the written warnings which issued to the claimant were unreasonable and unwarranted, having regard to the circumstances that resulted in the warnings prior to dismissal. This could be relevant, for example, where unrealistic targets are set for employees.

[13.80] Warnings given in abundance lose their significance. The fact of several warnings points to poor management of the employee, and of his performance, and suggests an indifference to improving the shortcomings of the individual.114

(5) Inquiry and investigation [13.81] Inquiry and investigation will be relevant in cases of alleged gross misconduct, and in other conduct issues entitling an employer to dismiss without notice. Where gross misconduct is suspected, the employee may be suspended on full pay throughout the investigation. This form of suspension is precautionary, not disciplinary. Employers should not operate a knee-jerk reaction of suspension in all cases: there may be other options such as transfer. Suspension may amount in some circumstances to breach of the implied obligation of trust and confidence.115 The implied obligation applies during the stage the employer is investigating and considering whether to dismiss. [13.82] It can happen that following suspension an employee fails or refuses to leave the premises. An example arose, analogously, in Farrell v Minister for Defence116 where the plaintiff (a former employee) was not suspended but his commanding officer refused to re-employ him, following criminal proceedings involving the plaintiff who had been dismissed. The High Court heard that the former employee had remained in the canteen of the barracks for a period and having failed to leave the barracks was escorted out by two military police officers. He complained that this was a matter of ‘very grave embarrassment’ to him. However, Murphy J did not accept that the former employee had any complaint, as a civilian employee ‘rightly or wrongly’ suspended in similar circumstances ‘would properly be escorted from the premises’. [13.83] A suspended employee should be required to be available to the employer during suspension, and, if appropriate, may be instructed not to contact fellow employees, suppliers, customers, and so, on pending the outcome of the employer’s enquiry. The employer may have decided to begin an investigation following receipt and consideration of a report, eg, an audit or a security report. The author of such a report should confine himself to finding facts, and avoid making recommendations as to any disciplinary action he may consider appropriate so that the investigative can be distinguished from the adjudicative function (an employer may itself perform both functions). See para [10.59]. [13.84] The employer, when conducting its investigation, should remain impartial and open-minded. It should be clear as to its objective: it is not to establish guilt or 113 114 115 116

Troy v Ennis Handling Systems Ltd UD 601/1991. Desmond v Hoover Ltd UD 655/1991. See Ch 5. Farrell v Minister for Defence (10 July 1984) HC. On the rapidly developing case law on precautionary suspensions see Ch 8.

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[13.87]

innocence, ie to establish beyond all reasonable doubt that the alleged wrong occurred. At the conclusion of the enquiry the employer will assess the evidence and ask: does it establish a reasonable suspicion117 amounting to a belief of guilt on the part of the employee?

[13.85] The extent of the employer’s investigation will depend on the facts. If an employee’s wrongdoing is undisputed, eg where he is seen by others inflicting serious bodily harm on his line manager, the employer’s inquiry will be confined to issues regarding provocation and the relationship between the two persons concerned. More will be required where the alleged wrong can be attributed to the employee only by inference. In such circumstances an employer may have to hold several meetings. After some meetings an employer may be inclined to take no further action or indeed on the balance of probabilities to accept an employee’s explanation of events, notwithstanding conflicts, because no objective grounds have emerged to support the employer’s suspicion of wrongdoing. Later a fresh question or questions requiring investigation may arise, in which case the employee can again be placed on suspension with full pay.118 [13.86] Where the case against an employee is inferential, no ‘stone’ introduced by the employee’s explanations should be left unturned by the employer. Where appropriate, the employee should be put on proof of all elements of his or her statements. The employer should follow through on explanations or representations made by the employee. If in doubt, advice should be sought by the employer. It will only highlight the inadequacy of the employer’s enquiry if important evidence is not discovered until a defence is being prepared by its lawyers for the WRC hearing. Delay or laches in investigating misconduct will almost certainly render a dismissal unfair.119 (i) Intra-employee complaints [13.87] Where the employer’s investigation arises from a complaint put forward by one employee against another, alleging wrongful behaviour by the latter (an intra-employee wrong), the employer’s role can be particularly difficult. The two employees may be working in the same place of work. The employee who has made the complaint may find it intimidating to continue working alongside the alleged wrongdoer or vice versa. The employer in conducting its investigation must balance the rights of the perceived victim against those of the alleged wrongdoer. In most employer policies against harassment or bullying (which should, incidentally, address the rights of the alleged wrongdoer as well), for example, it is common to provide that if the perceived victim expresses a wish, when asked, not to continue to work in the same place as the alleged harasser, the latter should be placed on special leave or accommodated elsewhere during the investigation. There is no ideal solution. Certainly absence on special leave is to be preferred to transfer, as the latter will make it almost impossible to maintain the confidentiality that should characterise such investigations. Moreover, it may be punitive in itself and therefore potentially unfair. An employer may decide to offer employee assistance and/ or to place both employees on special leave. 117 118 119

See Kelly v An Post UD 974/1986. As happened in Clery v TSB Bank UD 754/1995. Zambra v Duffy UD 154/1978; Sheehan v H & M Keating & Son Ltd UD 534/1991.

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[13.88]

[13.88] When an employer introduces a policy on intra-employee complaints, it should at the same time draft comprehensive management procedures for implementation of the policy. This is because ordinary disciplinary procedures are distinguishable. Issues such as representation need to be considered with the employer’s trade union: will the same union represent both employee parties? And what should happen if the complaint is found to be unsubstantiated? An employer is likely to need a variety of options. [13.89] Intra-employee complaints procedures frequently provide, in the first instance, for non-formal resolution, with the aid of a ‘support counsellor’ or some similarly named individual (typically a fellow employee, specially trained to advise). Non-formal as well as formal procedures co-exist, a further feature to distinguish these procedures from the norm. Only if a formal complaint is found to be justified will the employer’s disciplinary procedures potentially come into play. Experience shows all too often that intra-employee complaints are best resolved non-formally. Many complaints procedures now insist that a non-formal route is tried first, except in extreme circumstances.

(ii) Private investigators [13.90] An employer may engage outside help at a preliminary stage. In some industries private investigators are brought in to assist the employer where stock or till irregularities are occurring. The staff may already have received warnings about irregularities.120 The employer will explain its procedures to the private investigator. When it receives a report or reports from the private investigator it will put them to the employee at a disciplinary meeting. The employee should be given ample time to clarify and to consider the contents of the reports, if he can. Three things require the employer’s attention when engaging a private investigator. It should: (i) (ii) (iii)

choose an investigator with a proven track record and appropriate credentials; not rely either entirely121 or uncritically122 on the investigator’s report in coming to a decision to dismiss; and not allow the investigator to assume the employer’s role at any stage and particularly not during meetings with the employee.

The Workplace Relations Commission will scrutinise closely all of the surrounding circumstances in considering the admissibility of information elicited from private investigators.123

[13.91] Although a private investigator is hired most often in cases involving suspected dishonesty, he or she may also be engaged where an employee is absent on grounds of ill health and/or is suspected of working elsewhere at the same time124 or where doublejobbing is suspected. The employment of a private investigator in circumstances of alleged employee incompetence has been criticised in unfair dismissal cases.125 120 121 122 123

124 125

Dunne v The Drake Inn Ltd UD 97/1987. McGarry v Jury’s Hotel plc UD 775/1992; contrast Hayes v Jury’s Hotel plc UD 683/1992. Harte v Iarnród Éireann UD 149/1990. See Compton and Harkin, ‘The Use of Private Investigators and Photographs in Workplace Investigations’ (2014) 11 IELJ 47 Healy v Alps Electric (Ireland) Ltd UD 699/1994. Matthews v Centre Travel Bureau de Change UD 926/1986.

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[13.95]

[13.92] In White v Dawn Meats Group t/a Dawn Meats,126 there was no suggestion that there had been any breach of the Data Protection Acts. The EAT was, however, asked to rule on whether a collection of photographs the respondent sought to put before it was admissible in evidence. The EAT held that only those photographs shown to the claimant during the course of the investigation and disciplinary processes could be admitted as evidence. The Tribunal stated that should Mr White dispute that any photographs were shown to him during these processes, the dispute could be a matter for crossexamination and submission. The Tribunal did reserve the right to admit any other photographs that it considered to be of assistance in understanding evidence provided, so long as such photographs did not prejudice Mr White.

[13.93] An example of an employer having recourse with undue haste to a private investigator is provided in Clarke v Boliden Tara Mines Limited.127 During the course of the hearing an application was made to view CCTV footage of the claimant, which purported to show him working while on sick leave. The EAT decided the video could not be viewed due to the fact that the action taken by the respondent in employing a private investigator was disproportionate given that it was less than three days from the incident; while the claimant was on a company doctor certificate; and there was no evidence of previous malingering by the claimant. And for the same reasons the EAT decided it could not hear evidence from the private investigator. The EAT criticised the employer’s actions as ‘precipitous to say the least’.128

[13.94] Under the Data Protection Acts 1996–2003, where surveillance data is maintained or accessed by a third party (in this case the private investigator) that third party will ‘process’ the information on behalf of the employer and a written contract must be put in place with them. As highlighted below in the context of surveillance and CCTV, the General Data Protection Regulation of the European Union,129 effective from 25 May 2018, has significant implications for this area of law and specific advice should be taken on its implications. (iv) Test purchasing [13.95] An employer may use ‘test purchasing’ where there are malpractices at cash register points. The ‘test purchaser’ operates as a normal customer, observes a cash sale and reports fully on the details of the purchase made and the manner in which the transaction was conducted. Suspected checking of under-ringing or over-charging is best entrusted to an outside agency specialising in test purchasing. The reports of the test purchases should be made available to a claimant at disciplinary hearings.130 126 127 128 129 130

White v Dawn Meats Group t/a Dawn Meats UD852/2012. Clarke v Boliden Tara Mines Limited [2016] ELR 343. Clarke v Boliden Tara Mines Limited [2016] ELR 343 at 348. Regulation (EU) 2016/679. As in McArdle v Superquinn [1991] ELR 171 (EAT). See also Smith v Baron Johns UD 797/ 1986.

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(v) Surveillance and monitoring [13.96] Technology now provides several devices for employers to monitor staff, which enable them to gather information regarding their employees, directly and indirectly. The range of monitoring equipment is wide, from CCTV to internet and email monitoring, DNA tests, drug tests (on which also see s 13 (1)(c) of the Health, Safety and Welfare at Work Act 2005) and so on. Employers need to strike a balance between protecting their legitimate business interests and respecting the privacy of their employees.131 Where dishonesty is suspected, an employer may install equipment such as CCTV or video cameras to detect the wrongdoer(s) who are, after all, putting their co-workers under suspicion. Great care, however, must be taken to ensure that employers are acting in accordance with the requirements of data protection laws. [13.97] The employer’s failure to produce the tapes of video footage during the hearing (before the EAT) at the request of the claimant’s legal representative was held to be not fatal where the employee had declined the offer to view the tapes during an earlier investigation and had not disputed their contents: Maher v Aim Group.132 [13.98] CCTV and other surveillance clearly raises questions under human rights law as well as data protection legislation. The Data Protection (Amendment) Act 2003 significantly strengthened the right to privacy of employees. This right is also found in the European Convention on Human Rights, implemented by the European Convention on Human Rights Act 2003. In the UK case of McGowan v Scottish Water133 the EAT considered whether covert surveillance of an employee’s home in order to establish whether the employer’s suspicions of dishonesty were justified was in breach of the employee’s right to respect for his private life under art 8 of the European Convention on Human Rights. It found it was not necessarily so: whether a surveillance operation breaches a person’s right to have his private life respected is a question of proportionality. 131

132 133

See Cooke v Carroll UD 239/1994. Also Maguire v Funny Biz Ltd UD 879/1992: content of video tape not put to employee; Martin v Audio Video Services Centre Ltd [1992] ELR 216 (EAT): video film did not show employee handling money; Carey v Docket & Form International Ltd UD 302/2004: claimant would have known his actions were being recorded on CCTV, employer overreacted. And see Shelly-Morris v Dublin Bus [2003] 1 IR 232 and O’Connor v Dublin Bus [2003] 4 IR 459 (per Hardiman J at 502: ‘video surveillance ... is often resorted to as a check or control of the plaintiff’s account’). See constitutional implied right to privacy para [8.19]. Maher v Aim Group UD 398/2004. McGowan v Scottish Water [2005] IRLR 167. A further dimension in Ireland might be the constitutional guarantee of the inviolability of the dwelling of every citizen. On the interception of phone calls and the ECHR see Halford v The United Kingdom [1997] EHRLR 551, [1997] IRLR 471 and Ludi v Switzerland (1993) 15 EHRR 173. On monitoring of communications, Mehigan v Dyflin Publications UD/582/2001 (EAT). In general see Kelleher, Privacy and Data Protection Law in Ireland (2nd edn, Bloomsbury Professional, 2015); McGreal, ‘Workplace Privacy and Data Protection’ in Murphy and Regan (eds), Employment Law (2nd edn, Bloomsbury Professional, 2017) Ch 7; Leland, ‘The right to privacy and surveillance and monitoring in the workplace – striking the balance’ (2004) 1(3) IELJ 75.

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[13.101]

[13.99] The Data Protection Commissioner in Ireland considered the use of CCTV and its privacy implications in Case Study 7 of 2015.134 According to the Commissioner there was no justification from a security perspective for the employer, a supermarket, having a camera installed in the staff canteen area. In a passage containing salutary warnings for employers, the Commissioner said: ‘Data controllers are tempted to use personal information captured on CCTV systems for a whole range of purposes. Many businesses have justifiable reasons, usually related to security, for the deployment of CCTV systems on their premises but any further use of personal data captured in this way is unlawful under the Data Protection Acts unless the data controller has at least made it known at the time of recording that images captured may be used for those additional purposes, as well as balancing the fundamental rights of employees to privacy at work in certain situations, such as staff canteens and changing rooms.’

The Commissioner found that the employer had contravened s 2(1)(c)(iii) of the Data Protection Acts 1988 and 2003.

[13.100] Following the amended Data Protection Act in 2003, an employer must ensure that employees know what information is processed, how it will be used and to whom it will be disclosed. All personal information obtained must be necessary and proportionate to the stated business objectives of the organisation. The employer is required to release personal information when requested unless it is legally privileged or the surveillance was effected to investigate, detect or prevent a criminal offence. It is essential also that the personal information is accurate and up to date and not kept for longer than is necessary. Adequate security measures must also be put in place to protect the information. The General Data Protection Regulation of the European Union135 coming into force on 25 May 2018 will clearly have significant implications in this regard.

[13.101] A Committee known as the ‘Article 29 Data Protection Committee’ was established under the European Data Protection Directive (Directive 95/46/EC) to consider issues arising for employers in surveillance in member countries. The Committee summarised its conclusion thus: ‘Workers do not abandon their right to privacy and data protection every morning at the door of the workplace. However, this right must be balanced with other legitimate rights and interests of the employer, in particular the right to protect himself from the liability or the harm that employees’ actions may create. These rights and interests constitute legitimate grounds that may justify appropriate measures to limit the workers’ right to privacy.’136

The key to lawfulness resides in whether the surveillance is necessary, transparent and proportionate. Regarding internet and email monitoring, the Committee was of the view 134 135 136

Available at www.dataprotection.ie. Regulation (EU) 2016/679. Working document on the surveillance of electronic communications in the workplace, WP 55, 29 May 2002. See also WP29, Opinion 8/2001 on the processing of personal data in the employment context, WP 48, 13 September 2001, and Opinion 2/2017 on data processing at work, 8 June 2017 (WP 249), which considers the implications of the General Data Protection Regulation of the European Union (Regulation (EU) 2016/679).

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[13.102]

that surveillance should be preventative in its aim. Blocking software should be used where possible.

(vi) Handwriting experts [13.102] The views of handwriting experts can be relevant either in establishing or refuting reasonable grounds for the employer’s case, but their assistance (particularly by the employer) should be sought before dismissal137 and, as always, the employee must have an opportunity to rebut any expert’s reports. The employee may engage his own expert or he may allege that the employer’s instructions to the handwriting expert were inadequate or displayed bias. If the employee puts forward such arguments, the onus will shift to him in the ordinary way to prove what he is alleging. An employer’s instructions to an expert should be carefully drafted and they should be available to the employee, as well as the expert’s report. Advice should be taken as to whether data protections issues may arise.

[13.103] In Clery v TSB Bank138 the EAT upheld the employer’s decision to dismiss where its handwriting expert advised that a signature on a third-party withdrawal form was not that of the account-holder (contrary to the claimant’s evidence that he saw the account-holder signing the form). The claimant’s own handwriting expert substantially agreed with the respondent’s, although the latter did not rule out the possibility of medication influencing the signature.

(vii) Garda involvement [13.104] Where the facts suggest a criminal offence, an employer often decides to contact the gardaí. Experience shows, however, that there may be downsides to garda involvement before or at the time of an employer’s investigation. There are at least six reasons why: (i)

(ii)

137 138

139

An employer and a criminal court looking at the same offence have distinguishable roles and objectives taking their tenor from employment law and criminal law respectively. The employer is concerned with rights and obligations in a contract and relationship of employment where the standard of proof is on the balance of probabilities and equally important to the employer may be the interest of other employees, of fairness, and of the employer’s business. The criminal court, on the other hand, is concerned with wrongs which allegedly injure society and are therefore proscribed, and the standard of proof in a criminal court is beyond a reasonable doubt. An employee may be acquitted of a criminal offence because the wrong of which he is accused cannot be proved beyond a reasonable doubt, or there may be a technical reason for acquittal. If this happens in the course of the employer’s investigation, or its postponement, an acquittal will complicate the employer’s task – as will a conviction and/or reference to appeal.139 It will not

O’Connor v Servier (Ireland) Industries Ltd UD 1101/2015. Clery v TSB Bank UD 754/199. Re anonymous defamatory letter, see Byrne v Gaelite Signs Ltd UD 699/1987. Brock v An Post UD 57/1987: there is no onus on an employer to postpone its investigation pending the outcome of appeal.

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(iii)

(iv)

(v)

(vi)

[13.105]

mean that an employer is necessarily precluded from dismissing an employee for reasons properly arising within the employment context but special care will be required to sidestep arguments of double jeopardy.140 Where criminal proceedings are pursued alongside an employer’s investigation, the statutory hearing can be influenced by the former.141 If an employee is charged with a criminal offence he will probably be advised by his solicitor not to comment on any matter raised by his employer in a disciplinary meeting; he will claim privilege against self-incrimination.142 This may force the employer to await the outcome of the criminal trial – meanwhile the employer will be obliged to pay the employee in full – with all the hazards set out in (ii) above. Involvement of the gardaí in a criminal investigation may unavoidably result in suspension/postponement of the employer’s internal investigations in so far as they require the employee accused to comment on allegations the subject of the criminal charge, unless the employee consents with the knowledge of his legal representative.143 The employee may insist on legal representation throughout the employer’s investigation which is, after all, a fundamental right of a person accused of a criminal offence.144 The gardaí involved will be unable to offer any evidence to the WRC regarding their investigations if there are pending criminal proceedings – this may be fatal to an employer’s case if it has no other evidence to adduce.145 And an unfair dismissals claim will not be adjourned to enable a garda investigation to be completed first.146

The best advice to an employer must be, unless the circumstances clearly warrant otherwise, or the matter is no longer in the employer’s control, to investigate an employee’s alleged wrongdoing as his employer in the light of rights and obligations within the employment relationship. At the conclusion of this investigation garda involvement will be considered.

Identity of decision-maker should be clear and unambiguous [13.105] The identity of the decision-maker should be clear and unambiguous. In particular, where human resources staff liaise with disciplinary decision-makers, their input should not go beyond that of clarifying HR principles and policies. Although a 140 141

142 143 144 145

146

See para [9.66] for cases dealing with double jeopardy. In Mahon v Cummins Graphics Supplies Ltd [1991] ELR 53 the EAT made it clear that it had not accorded any weight to any evidence which ‘found its way’ in to the hearing which was linked with criminal proceedings and instead focused on the employment relationship. This approval, which is obviously correct, is also found in Kavanagh v Eurosnax International Ltd UD 319/1985. Recognised by the EAT in Cousins v Brookes Thomas Ltd UD 45/1988. Kelly v CIÉ UD 28/1978. And note the attitude of the EAT in Brock v An Post UD 57/1987. As in Murphy v Berger Paints Ltd UD 818/1985. Contrast Kelly v Braun Ireland Ltd UD 703/ 1992. Dignam v MEW Tullamore Ltd UD 775/1985.

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dismissing or investigating officer is entitled to seek guidance from human resources or others, such advice should be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed and achieve clarity. Two particularly instructive cases in this regard are Chhabra v West London Mental Health NHS Trust147 and Ramphal v Department For Transport.148 In Chhabra, the claimant was a psychiatric consultant employed by the respondent. She was investigated under the respondent’s disciplinary procedure and, in response to concerns expressed on behalf of the claimant about the involvement of a consultant, W, from another trust being appointed to investigate the respondent, it was agreed that W would play no further part in the investigation. He did in fact become involved in the disciplinary process and in fact proposed extensive amendments to the investigator’s draft report, which were prejudicial to the claimant. Lord Hodge summarised the position thus: ‘There would generally be no impropriety in a case investigator seeking advice from an employer’s human resources department, for example on questions of procedure. I do not think that it is illegitimate for an employer, through its human resources department or a similar function, to assist a case investigator in the presentation of a report, for example to ensure that all necessary matters have been addressed and achieve clarity. But, in this case, Dr Taylor’s report was altered in ways which went beyond clarifying its conclusions. The amendment of the draft report by a member of the employer’s management which occurred in this case is not within the agreed procedure. The report had to be the product of the case investigator. It was not.’149

Lord Hodge also deemed the reneging by the employer of its undertaking to be a breach of the duty of good faith it owed to the claimant as its employee, as well as a breach of her implied right to a fair procedure. This is referred to separately in Chapter 10 of this work.

[13.106] Relying heavily on Chhabra in Ramphal, Judge Serota QC held that whilst a dismissing or investigating officer is entitled to seek guidance from human resources or others, such advice cannot go too far so as to interfere with the deliberations of the person designated to conduct them. Instead any such advice should be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed and achieve clarity.

(6) Appeal [13.107] An employer’s disciplinary procedures may be ‘final and inappellable’. There is no automatic right in natural justice to appeal an employer’s decision to dismiss or to take disciplinary action short of dismissal. However, single no-recourse procedures are generally not conducive to an atmosphere of trust in the workplace. They have, moreover, been criticised by the WRC and it is strongly advisable to have an appeal mechanism in place which an employee can avail of following a decision to dismiss. 147 148

149

Chhabra v West London Mental Health NHS Trust [2014] ICR 194. Ramphal v Department For Transport [2015] UKEAT 0352_14_0409 (4 September 2015) (His Honour Judge Serota QC). Chhabra v West London Mental Health NHS Trust [2014] ICR 194 per Lord Hodge at [37].

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[13.109]

Thus, in the decision of the WRC in April 2017 in An Employee v An Employer150 the Adjudication Officer commented as follows: ‘An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.’

[13.108] Most disciplinary procedures provide a right of appeal. They are all too often scant on detail, however, and frequently also leave important questions unanswered, such as: (i) (ii) (iii)

(iv) (v) (vi)

(vii)

Is the appeal a hearing de novo at which new facts and new witnesses may be introduced? Is the person whose decision is being appealed, as well as the employee, obliged to make a submission as part of the appeal process? Does the dismissal or other disciplinary action take effect at the time of the relevant decision or only after the outcome of the appeal – and if the latter, does the employee continue between the two decisions as though on suspension with full pay?151 May the appeal person or body of its own initiative seek new evidence or interview new witnesses, ie exercise an investigative role? Is the appeal person or body limited to written evidence or submissions? Is the appeal person or body limited to assessing the decision under appeal against the facts known at the time to the person who made the disciplinary decision? Can the appeal look again at the wrong allegedly committed, the disciplinary action taken, and the procedure followed?

[13.109] Complex issues can arise in relation to internal appeals, particularly because of the uncertain status of the employee at the appeal stage. In Roberts v West Coast Trains Ltd152 the English Court of Appeal held that where an appeal was successful against dismissal, it revived the contract of employment. Ideally, an appeal procedure should be kept simple, thus approximating to (v) above, and the ‘date of dismissal’, or of other disciplinary actions, if appropriate, should be that of the decision at first instance. It is not uncommon, or objectionable, for the disciplinary decision to be implemented only on the outcome of the appeal. Keeping the procedure simple means that a heavy onus correctly falls on the person who first decides to dismiss or take disciplinary action. 150 151

152

An Employee v An Employer ADJ 0000381 (12 April 2017). In this regard see the decision of the High Court (Hogan J) in Wallace v Irish Aviation Authority [2012] IEHC 178; [2012] 2 ILRM 350, Wallace is discussed in detail in both Ch 8 and Ch 10 of this work. Roberts v West Coast Trains Ltd [2004] IRLR 788. In G4S Justice Services (UK) Ltd v Anstey [2006] IRLR 588, Clark J held that the employees’ employment was preserved for the purposes only of determining their appeals where the appeals were pending at the time of a TUPE transfer.

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[13.110] Self-evidently, an appeal cannot be to the same person who made the decision to dismiss. It is equally undesirable that an appeal should be heard by a person junior to the original decision maker.153 And no appeal will succeed in putting ‘a stamp of respectability’ on a decision to dismiss which was flawed in the first place.154 It can also emerge in evidence that the decision maker had sought the advice of the appeal person prior to dismissing. On balance it is likely to be concluded in such circumstances that the appeal person, tacitly or otherwise, approved of the decision to dismiss.155 It has been held that an employer’s appeal is ‘compromised’ when it does not involve a detached independent body to hear the employee’s appeal.156

[13.111] In Kurfey v Dublin Gas Company157 the question of whether an intermediate stage of the procedure was biased and offended the principle of nemo iudex in causa sua was raised on behalf of the claimant. An officer of the company partook in a previous hearing at a lower level of the case which had found that the claimant’s actions warranted dismissal and made a recommendation to that effect. The EAT said: ‘It is desirable that, where possible, no one should hear an appeal from his own decision.’ However, at the final stage of the disciplinary procedure, the claimant was allowed to put his position to a deciding officer who had not partaken in the previous hearing and who alone had the power to take the decision to dismiss the claimant. For that reason, the EAT found that the abuse of the intermediate stage was not an essential procedural defect and did not invalidate the procedure as a whole.

[13.112] In McMillan v Airedale NHS Foundation Trust,158 the English Court of Appeal held that a sanction cannot be increased on appeal, unless the employer’s disciplinary procedures specifically allow it. The rationale for the Court’s decision was that the right of appeal exists to benefit employees and not employers. In McMillan, the employer’s disciplinary procedures did not allow for a further right of appeal. Therefore, should a sanction be increased on appeal, for example to dismissal, an employee who received a written warning at first instance could be dismissed for the first time on appeal. If this were to happen, the employee would not have any right of appeal against this most serious sanction. The Court of Appeal held that the silence in the disciplinary procedures prevented the Trust from increasing on appeal the sanction imposed on Ms McMillan. The Trust could not agree with employees’ appeal procedures which provided for increase of a sanction. 153 154

155 156 157 158

Jameson v Harris Calorific Ltd UD 372/1991. O’Hora v Dakota Packaging Ltd UD 372/1991. Although the English Court of Appeal has held that what matters is not whether the internal appeal is technically a rehearing or a review but whether the disciplinary process as a whole was fair: Taylor v OCS Group Ltd [2006] IRLR 613. Quinn v Tennants (Ireland) Ltd UD 249/1992. Hobson v Liebherr Great Britain Ltd UD 451/2004. Kurfey v Dublin Gas Company UD 483/1986. McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031. For comment see Compton and Harkin, ‘Disciplinary Proceedings – Can a Sanction be Increased on Appeal?’ (2014) 11 IELJ 127.

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[13.118]

[13.113] It is submitted that the approach adopted in McMillan is compelling and should be followed in this jurisdiction. Employers should have comprehensive disciplinary procedures in place which expressly address the question of whether there is a power to increase a sanction on appeal, ideally providing a further right of appeal in the event of any increase in sanction. In general, such a power should be exercised cautiously.

(7) Disciplinary procedures for non-union employees [13.114] Disciplinary procedures for non-union employees are relevant in a workforce which is partly unionised and partly non-unionised, or entirely non-unionised. Disciplinary procedures for non-union employees must be credible. It is possible for such procedures to satisfy employee rights. Maintaining high productivity levels and avoiding unionisation are the two main reasons for an employer of unorganised employees to have a credible disciplinary procedure. To this must be added the undoubted influence of unfair dismissals legislation which makes it a requirement of law that an employer dismiss fairly and for substantial grounds.

[13.115] Two areas of difficulty for employers of unorganised employees are: the right to be represented and review of the decision to dismiss on appeal by an impartial body. These two employee ‘rights’ appear most to encroach on managerial prerogative. To assist an employee in responding to a charge against him, he should be permitted to select any uninvolved supervisor (or fellow employee) to represent him. A carefully thought out corporate system will probably give special training to a panel of senior employees in the preparation and handling of disciplinary matters or grievances affecting employees. Representation needs to be taken seriously as the procedure’s effectiveness will depend on the trust employees have in the quality and impartiality of their representation. Procedures may allow an employee to designate a representative from the panel or the employer may operate a system of rotation.

[13.116] The final review or appeal should likewise allow for representation. If at that point an employee wishes to retain outside expertise that should be permitted and the costs either paid by the employer (within limits; eg they should not cover the costs of litigation against the employer) or split between the parties. This need not apply to earlier stages. The review may not comprise arbitration as an employee’s rights under unfair dismissals legislation cannot be excluded or limited.159 However an employer may, and often does, agree to be bound on appeal.

[13.117] Third parties resorted to on review or appeal can comprise rights commissioners, members of the Institute of Arbitration in Ireland, lawyers of repute in employment law, and so on. There is a need in Ireland for an extra-statutory association offering expertise exclusively in employment matters.

[13.118] As an alternative to review by an outside person, an employer may provide for appeal to a committee of employees and supervisors/managers. The employee and personnel might suggest the composition of this committee, in equal proportions, and the chairman might be the head of personnel, the director of personnel, or some other 159

Unfair Dismissals Act 1977, s 13.

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high-ranking official in the company. The committee would examine all of the facts, and conduct a hearing in the normal way at which the employee would be represented. There should be provision for a casting vote of the chairman, if numbers on the committee are even.

[13.119] This system can be used as a step prior to further appeal to a third party or as a final stage in the procedures. Used as a final stage it has the advantage of economy. It is sometimes referred to as a ‘Peer Grievance Committee procedure’.

(8) Disciplinary procedures for probationary employees160 [13.120] An employee on probation is, or should be, undergoing training. The period of probation can vary from three months to as long as two years. It is important to draft probationary clauses carefully, particularly regarding issues such as disciplinary procedures. An employer with a contractual disciplinary procedure will be in breach of contract if it dismisses in breach of the procedure, unless the probationary employee is subject to different or modified rules. As in any case of alleged breach of procedures, the employee could (somewhat improbably) seek an injunction or damages in the High Court. The quantum of damages would not be limited to the notice period but to the length of time that the employee would have been employed whilst the procedure was properly executed (subject to the general duty to mitigate).

[13.121] Most often an employer will reserve the right to extend the probationary period for (minor) disciplinary reasons or where performance has been below standard. An employer may also insert a clause such as the following: ‘During your probationary period, the company reserves the right to reduce the number of warnings set out in the disciplinary procedure or to dispense with warnings and instead at its discretion give you notice or pay in lieu thereof. In all cases the company reserves the right to terminate your employment without notice should the circumstances warrant it.’

The rationale behind such clauses from the employer’s perspective lies in the practical difficulty of operating disciplinary procedures while an employee is still being trained. Added to that, the full operation of procedures may take an employee over the 52 weeks’ threshold. This latter consideration is not relevant, of course, to claims under the Industrial Relations Act 1969.

[13.122] A probationary employee should be treated fairly and although he is not entitled to know why he is being let go, good practice suggests that where appropriate, the employer should so advise him and afford him an opportunity to put forward any evidence he can in his own defence.

E. THE EFFECT OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 [13.123] So far the European Convention on Human Rights Act 2003 does not appear to have exerted much influence on dismissal litigation in this jurisdiction, a sign perhaps that Ireland’s existing legal system serves employees well. In the event that a Convention 160

See also para [23.68].

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right might be relevant, Mummery LJ’ s observations in the British case of X v Y161 are useful. According to Mummery, whenever Human Rights Act points are raised in unfair dismissal cases, an employment tribunal should properly review their relevance, dealing with them in a structured way, even if it is ultimately decided that they do not affect the outcome of the unfair dismissal claim. The following framework, suggested by the judge, might recommend itself equally in Ireland. The Unfair Dismissals Act is substituted for the Employment Rights Act: (i)

(ii)

(iii) (iv)

(v)

Do the circumstances of the dismissal fall within the ambit of one or more of the articles of the Convention? If they do not, the Convention right is not engaged and need not be considered. If they do, does the State have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer. If it does, is the interference with the employee’s Convention right by dismissal justified? If it is, proceed to (v) below. If it is not, was there a permissible reason for the dismissal under the Unfair Dismissals Act which does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it. If there was, is the dismissal fair, tested by the provisions of the Unfair Dismissals Act reading and giving effect to them … so as to be compatible with the Convention right?

[13.124] The Court of Appeal took the view that an employment tribunal so far as it is possible to do so must read and give effect to the law on unfair dismissal in a way that is compatible with Convention rights. Ireland’s European Convention on Human Rights Act 2003, like its UK counterpart, draws no distinction between legislation governing public authorities and that governing private individuals. With the extension of unfair dismissals legislation to civil servants, the grounds for treating public and private employees differently in respect of unfair dismissal are diminishing.

[13.125] One of the first UK cases to raise the obligation to interpret legislation to comply with the Convention in the context of unfair dismissal and human rights was Pay v Lancashire Probation Service.162 The dismissed employee was a probation officer. He was dismissed for participation in a business venture involving sado-masochistic activity, on the basis that his activities were incompatible with his duties as a probation officer. He unsuccessfully challenged the fairness of his dismissal in the Employment Tribunal. The employer contended that the decision to dismiss came within the range of reasonable responses that an employer might take and any interference with the employee’s rights could be justified. The EAT upheld the Tribunal’s decision. It accepted 161 162

X v Y [2004] IRLR 625 CA. See on the Irish Constitution and the ECHR para [8.35]. Pay v Lancashire Probation Service [2004] IRLR 129 EAT. An interesting case in the context of this chapter is R (Malik) v Waltham Forest Primary Care Trust [2006] IRLR 526 (HC) involving allegedly unlawful suspension of claimant general practitioner. Held an interference with right to peaceful enjoyment of possession contrary to art 1 of First Protocol to ECHR.

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the argument that in unfair dismissal cases in which Convention rights are engaged, the test of fairness must be interpreted in the light of ECHR case law. This had already been accepted in X v Y above, although in that case the employee’s Convention rights had not been engaged. The EAT considered two potential human rights infringements. In relation to the right to privacy under art 8 of the Convention the EAT was of the view that as the employee’s activities took place in public the right to privacy was not engaged. The EAT accepted, however, that the dismissal infringed the right to freedom of expression protected by art 10, but ruled that this was justified: in sum, dismissal was prescribed by law, served the legitimate aim of protecting the interests and reputation of the probation service, and was proportionate.163 In allowing the test of fairness to be thus adjusted in human rights cases Pay is regarded as departing from the ‘range of reasonable responses’ test.

[13.126] In Pay the EAT confined its comments to public sector bodies. However the argument from X v Y (para [13.123]) is still capable of being relied on regarding private sector employees, as the EAT declined to consider the issue.

[13.127] Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust164 concerned a medical consultant’s re-skilling process which had failed to include certain skills which the consultant was contractually obligated to provide, namely research. The consultant refused to cooperate with the process on this basis and, under a disciplinary review chaired by a person who was not impartial, was dismissed. The majority of the Court of Appeal of England and Wales noted that if art 6 is applicable to a decision by an employer to dismiss an employee, then, unless the decision is made in an independent and impartial manner, it shall not be Convention compliant. The Court then went on to consider whether such a decision determined a civil right of an employee. In the instant case, the Court concluded that as the power exercised was purely contractual and did not affect the applicant’s ability to practise his profession in another hospital or in private practice, no civil right was affected. Rather, it is ‘the determination of the claimed right to redress for alleged breach of the contractual right (or the right to compensation for an alleged unfair dismissal) that engages article 6’.165

[13.128] In addition to public employees, the areas in which the ECHR Act was expected to have greatest effect regarding dismissal was in relation to rights to privacy166 (especially the right of employers to conduct surveillance in the workplace) and to access to email and other electronic communications.167 Indeed, it is clear that the 163

164 165

166

167

As to relevant case law under the ECHR on these articles, see Vickers, ‘Unfair Dismissal and Human Rights’ (2004) 33 ILJ 52; generally Kilkelly, ECHR and Irish Law (2nd edn, Jordans, 2009). Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] ICR 270. Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] ICR 270 para 76. See Copland v United Kingdom [2007] ECHR 253; Kopke v Germany [2010] ECHR 1725; Bărbulescu v Romania, App No 61496/08 (12 January 2016), ECtHR; Canny, Martin and Lowry, ‘The European Convention on Human Rights Act 2003: A Cause Celebre for Privacy Rights in Ireland?’ (2004) 9 Bar Rev 73 and 114; and para [8.19]. See Bărbulescu v Romania [2017] ECHR 754, (Application 61496/08, Grand Chamber, 5 September 2017).

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European Court of Human Rights is now developing jurisprudence in at least some such areas. In Sidabras and Dziautas v Lithuania,168 the ECtHR considered the case of two former KGB officers who subsequently worked in the public sector in Lithuania. The Lithuanian Parliament passed legislation which prohibited the employment of, amongst others, KGB officers in the civil service for 10 years after the entry into force of the law. The ECtHR cited from its decision in Niemietz v Germany,169 where it observed: ‘Respect for private life must ... comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of “private life” should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world.’

In the instant case, the Court found that the wide-ranging prohibition on public employment for such a lengthy period of time would infringe the applicants’ art 8 rights.170 It has also been suggested that: ‘Dismissal or the threat of dismissal from one’s job, or conduct liable to make working life difficult is liable to constitute a debilitating obstacle to one’s enjoyment of private life [art 8(1)].’171

[13.129] More recently, in its decision in September 2017 in Bărbulescu v Romania,172 the Grand Chamber of the European Court of Human Rights held, by eleven votes to six, that a violation of art 8 had occurred in circumstances where the applicant had been dismissed after his employer had monitored his electronic communications and assessed their contents. The important judgment of the Grand Chamber identified173 the following factors requiring consideration in assessing the reasonableness of an employer’s decision to monitor employees’ electronic communications:

168 169 170

171

172

173

(i)

whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence and other communications, and of the implementation of such measures. While in practice employees may be notified in various ways depending on the particular factual circumstances of each case, the Court considered that for the measures to be deemed compatible with the requirements of art 8 of the Convention, the notification should normally be clear about the nature of the monitoring and be given in advance;

(ii)

the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy. In this regard, the Court emphasised that a distinction

Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104. Niemietz v Germany (1992) 16 EHRR 97. See Mantouvalou, ‘Work and Private Life: Sidabras and Dziautas v Lithuania’ (2005) 30 EL Rev 573. Bowers and Lightman, ‘Incorporation of the ECHR and its impact on Employment Law’ (1998) 5 EHRLR 560. Bărbulescu v Romania [2017] ECHR 754 (Application 61496/08, Grand Chamber, 5 September 2017). Bărbulescu v Romania [2017] ECHR 754 at para 121.

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(iii)

(iv)

(v)

(vi)

Redmond on Dismissal Law should be made between monitoring of the flow of communications and of their content. Whether all communications or only part of them have been monitored should also be taken into account, as should the question whether the monitoring was limited in time and the number of people who had access to the results. The same applies to the spatial limits to the monitoring; whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content. Since monitoring of the content of communications is by nature a distinctly more invasive method, it requires weightier justification; whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications. In this connection, there should be an assessment in the light of the particular circumstances of each case of whether the aim pursued by the employer could have been achieved without directly accessing the full contents of the employee’s communications; the consequences of the monitoring for the employee subjected to it; and the use made by the employer of the results of the monitoring operation, in particular whether the results were used to achieve the declared aim of the measure; whether the employee had been provided with adequate safeguards, especially when the employer’s monitoring operations were of an intrusive nature. Such safeguards should in particular ensure that the employer cannot access the actual content of the communications concerned unless the employee has been notified in advance of that eventuality.

Bărbulescu thus constitutes an important addition to the art 8 jurisprudence of the European Court of Human Rights in this rapidly developing area.

[13.130] Article 3 protects against torture, humiliation and degrading treatment. The definition of ‘degrading’ is ‘treatment which arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing him …’. Whether or not treatment is ‘degrading’ depends on whether a reasonable person of the same age, sex, and health would have felt degraded. Severe discrimination based on, for example, race might constitute degrading treatment and this might extend to other forms of acute mistreatment in the workplace. Article 4 prohibits servitude and forced and compulsory labour and this has already been used in a labour law context.174 The issue of whistleblowing in maintaining accountability is acknowledged. While initially the ECtHR appeared to find that the disciplinary action taken against whistleblowers was 174

See Siliadin v France (2006) 43 EHRR 16; Mantovalou, ‘Servitude and Forced Labour in the 21st Century: The Human Rights of Domestic Workers’ (2006) 35 ILJ 395; Rantsev v Cyprus & Russia (2010) 51 EHRR 1; Costello, ‘Migrants and Forced Labour: A Labour Law Response’ in Bogg, Costello, Davies and Prassl (eds), The Autonomy of Labour Law (2014) 189; and LE v Greece, App No 71554/12 (21 January 2016) ECtHR.

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justified,175 more recent jurisprudence has shifted a more employee-friendly position.176 In addition, the Court has provided some protection of the freedom of association,177 the right to strike178 and the exercise of freedom of expression179 and freedom of religion180 in the workplace.

175

176

177

178

179

180

More often than not, the Court and the Commission have found the disciplining of employees who have spoken out to have been justified, eg Tucht v West Germany App No 9336/81 (1982) ECtHR. See Lewis and Bowers, ‘Whistleblowing: Freedom of Expression in the Workplace’ [1996] 6 EHRLR 637. See Guja v Moldova [2008] ECHR 144; Heinisch v Germany [2011] IRLR 922; and Kudeshkina v Russia [2009] ECHR 342. On protected disclosures generally in Irish law, see Ch 20. Sorensen and Rasmussen v Denmark (2008) 46 EHRR 29; Wilson and NUJ v UK [2002] IRLR 568; ASLEF v UK (2007) 45 EHRR 34; and Demir and Baykara v Turkey [2009] IRLR 766. Demir and Baykara v Turkey [2009] IRLR 766; RMT v United Kingdom App no 31045/10; Veniamin Tymoshenko v Ukraine App no 48408/12 (2 October 2014) ECtHR; and Hrvatski liječnički sindikat v Croatia App no 36701/09. Palomo Sanchez v Spain [2011] ECHR 1319; Vogt v Germany (1996) 21 EHRR 205; Redfearn v UK [2012] ECHR 1878; ASLEF v United Kingdom [2007] IRLR 361. Eweida v United Kingdom [2013] ECHR 37; Ebrahimian v France, App No 64846/01 (26 November 2015) ECtHR.

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Chapter 14

Involvement in Proceedings; Age; Pregnancy and Maternity and Paternity INTRODUCTION [14.01] The Unfair Dismissals Act as amended1 deems certain reasons for dismissal unfair (ss 5 and 6). This chapter considers eight of the grounds deemed ‘unfair’, that is, where dismissal results wholly or mainly from: (i)

(ii)

(iii) (iv) (v)

(vi)

(vii)

(viii)

A.

civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness; criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness; the age of the employee; the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith; the exercise or proposed exercise by the employee of a right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence, within the meaning of Part IV of that Act or to time-off from work or a reduction of working hours for breastfeeding under the said Act as amended; the exercise or contemplated exercise by an adopting parent of her right under the Adoptive Leave Act 1995 to adoptive leave or additional adoptive leave or a period of time off to attend certain pre-adoption classes or meetings; the exercise or proposed exercise by the employee of the right to parental leave or force majeure leave under and in accordance with the Parental Leave Act 1998 or carer’s leave under the Carer’s Leave Act 2001; and the exercise or proposed exercise by the employee of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act.

INVOLVEMENT IN CIVIL OR CRIMINAL PROCEEDINGS

[14.02] The first two deemed grounds above have very rarely arisen directly or indirectly2 before employment law fora in this jurisdiction. It will be difficult to defend 1 2

See para [12.10] above. See Nicoll v CLG Builders Ltd UD 554/1995; Daly v Hanson Industries Ltd UD 719/1986, para [17.10].

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an employer’s decision to dismiss where an employee attended court to give evidence, following receipt of a summons. This happened in Hanon v Prendergast3 where the respondent, unfairly in the EAT’s view, put pressure on the claimant not to go to court to testify in a case concerning an assault which took place in the respondent’s yard involving the head lad and one of the stable lads. The following day the claimant received a letter terminating his employment effective seven days later. The respondent’s defence of redundancy was rejected.

B.

AGE

[14.03] Although ageism as a ground for dismissal has been outlawed since 1993, the first case to rely on the statutory prohibition was only decided in early 1998: Kerrigan v Peter Owens Advertising and Marketing Ltd.4 The claimant was aged 62. He had worked for the respondent for nine years before being made redundant. He had received statutory redundancy moneys and other entitlements. The respondent gave evidence that it had decided to select the claimant for redundancy after making ‘an analysis of account directors portfolios’. There were no agreed procedures in place to select people for redundancy. The claimant told the EAT that he had been advised by the company secretary that his age was a factor in letting him go. The EAT held that there was no redundancy in existence on the evidence and that the claimant’s dismissal arose wholly or mainly from his age. Since the coming into effect of the Employment Equality Acts from 1998 onwards – and particularly in light of the amendment effected by s 10 of the Equality (Miscellaneous Provisions) Act 2015 – dismissals allegedly connected with the employee’s age are much more likely to be brought pursuant to the Employment Equality Acts.5

C.

PROTECTIVE LEAVE ENTITLEMENTS

(1) General [14.04] EC Council Directive 92/85/EEC introduced measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. It provides for necessary measures to adjust the working conditions for pregnant and nursing mothers; they may move to another job within the same employment or, if that is not feasible, be granted health and safety leave for the entire period. Equally, such employees may not have their employment terminated from the beginning of their pregnancy to the end of the maternity leave ‘save in exceptional circumstances, not connected with their condition’.6 3 4

5

6

Hanon v Prendergast UD 274/1985. The Irish award of (then) IR£27,000 compensation is indicative of seriousness with which ageism-related dismissal is regarded. See also s 6(2) of the Employment Equality Act 1998, as amended. The first age-related dismissal case under the said Act was A Firm of Solicitors v A Worker [2002] ELR 305. On age and eligibility to claim see para [23.53]. For detailed treatment see Bolger, Kimber and Bruton, Employment Equality Law (Round Hall, 2012) Ch 8. Article 10.

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Moreover, pregnant employees may not do nightwork. Two annexes to the Directive set out various agents and processes that may cause a danger to these categories of working women. The Directive was implemented in national law by the Maternity Protection Act 1994 which in turn amended some provisions in the Unfair Dismissals Act, as well as replacing and repealing the Maternity Protection of Employees Acts 1981 and 1991. The Maternity Protection (Amendment) Act 2004 amended the Act of 1994 as well as the Unfair Dismissals Act 1977, and the Redundancy Payments Act 1967.

[14.05] The jurisdiction of the EAT was considerably widened in 1981 under the Maternity Protection of Employees Act, an Act of great social significance and of legal complexity. The 1981 Act introduced two rights for female employees: the right to maternity leave, and the right to return to work after such leave. It also entitled them to time off work for ante-natal and post-natal care. In the event of an employee’s not being permitted to return to work, the 1981 Act laid down that for the purposes of the Unfair Dismissals Act she was to be ‘deemed to have been dismissed’ and the dismissal ‘deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal’. [14.06] Special eligibility rules apply to unfair dismissal claims in cases of pregnancy, giving birth, breastfeeding or any matters connected therewith. Employees on probation, training or apprenticeships are not excluded from the scope of the Unfair Dismissals Act if they are dismissed for any of these grounds. In particular a claimant is not required to have 52 weeks’ continuous service before she is eligible to claim. This and other relevant special provisions are dealt with in Chapter 23.

(2) The impact of national and European anti-discrimination law [14.07] In considering this aspect of dismissal, regard must be had to the statutory regime on anti-discrimination in relation to pregnancy and maternity. The Employment Equality Act 19987 renders discriminatory dismissals unlawful where reasons, inter alia, of sex or marital status provide the grounds for the dismissal. Redress may be sought under the Act either via the Workplace Relations Commission or the Circuit Court (in the latter context the compensation recoverable is unlimited). Whilst there is no reason as a matter of principle why a dismissed worker might not claim that the termination of her employment was unfair as being unlawfully discriminatory, there have been two significant changes in the law in recent years which must be noted. First, there is the significant statutory change introduced by the Credit Guarantee (Amendment) Act 2016. Section 17 thereof amends s 101 of the Employment Equality Act 1998 by providing that where an employee refers both a claim for unlawful discrimination in respect of a dismissal under s 77 of the Act and a claim for unfair dismissal under the Unfair Dismissals Act 1977, then the discrimination claim shall 7

Employment Equality Act 1998, s 6(6)(c). See Curtin, Irish Employment Equality Law (Round Hall, 1989) for comprehensive treatment of Employment Equality Act 1977 and AntiDiscrimination (Pay) Act 1974 which predated the 1998 Act. On the Employment Equality Act 1998, see Bolger and Kimber, Sex Discrimination Law (Round Hall, 2000) and Bolger, Kimber and Bruton, Employment Equality Law (Round Hall, 2012) Ch 4.

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automatically be deemed to have been withdrawn unless the employee withdraws the unfair dismissal claim. Quite apart from this statutory change, the many recent decisions in this jurisdiction concerning parallel proceedings would in general suggest that careful thought should be given before a choice of proceedings is made.8

[14.08] There are many important decisions of the European Court of Justice regarding pregnancy and maternity. A comprehensive treatment of this vital area of employment equality law is beyond the scope of the present work on dismissal, but the seminal authorities can be identified. Dekker v Stichting Vormingscentrum vor Jonge Volwassenen9 involved an employer’s decision not to recruit because of pregnancy which the European Court found to be directly discriminatory on grounds of sex. In HandelsOg Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening10 the European Court held that the dismissal of a female worker because of her pregnancy also constituted direct discrimination on grounds of sex. The result of these two cases was to ensure that pregnant women became a protected group. Pregnancy was recognised as inextricably linked with gender. It provides what Rubenstein described as ‘a badge of protection’.11 This approach heralded the demise of the comparative approach (comparing a pregnant female worker with, say, an ill male worker) in pregnancy discrimination cases although occasional ‘sightings’ of this approach continued. The protective approach has been applied in Ireland under employment equality law in cases such as Department of Defence v An Employee.12 [14.09] In European anti-discrimination law ‘there are no circumstances in which a pregnant woman can be lawfully dismissed for a reason relating to her pregnancy, even if she is no longer capable of performing her job’.13 This has potentially far-reaching implications for the interpretation of the pregnancy ground in the Unfair Dismissals Acts. Moreover, Rubenstein proposed that if a woman wishes to return to work, it would be discriminatory not to continue her employment until she is capable of returning to work after childbirth.14 If it is directly discriminatory not to keep a woman’s job open for her because she is having a baby, it follows, in his view, that it must be discriminatory also not to permit such a woman to return to her job when she is capable of so doing. 8

9 10

11 12 13 14

See Culkin v Sligo County Council [2017] IECA 104 (overturning the High Court decision [2015] IEHC 46 and effectively over-ruling the earlier High Court decision in Cunningham v Intel Ireland Ltd [2013] IEHC 207); for commentary on the relevant High Court decisions see Ryan, ‘Parallel Proceedings in Employment Law: An Analysis of the High Court Judgments in Cunningham and Culkin’ (2015) 38(1) DULJ 219. Dekker v Stichting Vormingscentrum vor Jonge Volwassenen 177/88 [1994] IRLR 27. Handels-OG Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening 179/ 88 [1991] IRLR 31. Also Gillespie v Northern Health and Social Services Board [1996] IRLR 214 (ECJ); Boyle v EOC [1998] IRLR 717 (ECJ). Equal Opportunities Review No 42 (1992) at 25. Department of Defence v An Employee EE 4/1992; DEE 1492. Rubenstein, Equal Opportunities Review No 21 (1992) at 25. Rubenstein, Equal Opportunities Review No 21 (1992).

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[14.11]

Correctly understood, sex discrimination law must require that employers permit all women to take maternity leave. The amount of leave which is necessary is that required by the woman because of her pregnancy. What this will be may not always be easy to determine. Physical, emotional and psychological well-being must all be taken into account. A claim that a woman on maternity leave is entitled to return to her job when she is capable of so doing, or a claim that she must be permitted not to lose her status as employee through pregnancy or maternity, might be taken on the basis of EU law and national employment equality law, quite apart from or in addition to unfair dismissals legislation.

[14.10] An important early European decision in this area is Webb v EMO Air Cargo (UK) Ltd,15 which concerned the Equal Treatment Directive EC 76/207/EEC. The European Court of Justice held that the dismissal of a pregnant woman recruited for an indefinite period could not be justified on grounds relating to her inability on a temporary basis to fulfil a fundamental condition of her employment contract, namely, to perform the work for which she had been engaged. The Court emphasised that the protection afforded by Community law to a woman during pregnancy could not be dependant on whether her presence at work during maternity was essential to the proper functioning of the undertaking in which she was employed. According to the court, the Equal Treatment Directive:16 ‘precludes dismissal of an employee who is recruited for an unlimited term with a view, initially, to replacing another employee during the latter’s maternity leave and who cannot do so because, shortly after her recruitment, she is herself found to be pregnant.’

That the employer would treat a sick man in the same manner was irrelevant in European law. Similarly, the Employment Appeals Tribunal in Ireland has held that ‘[a] period analogous to maternity leave is not equivalent to a period of disability’ for the purposes of assessing an employee’s duty to mitigate her losses having been unfairly dismissed.17

[14.11] The clarity in Webb became somewhat clouded in the ensuing half decade but was unequivocally re-established in Brown v Rentokil Ltd.18 The European Court of Justice held that dismissal of a woman at any time during her pregnancy for absences due to incapacity for work, caused by an illness resulting from that pregnancy, is direct discrimination on grounds of sex contrary to the Equal Treatment Directive. If a woman is dismissed for a reason which results from her pregnancy, she will be entitled to claim sex discrimination. This is so even if the true cause is not the pregnancy itself but the fact and amount of absence she has had, or the consequence of her pregnancy on her ability to do the job, or the unusual nature of a pregnancy-related illness. 15 16

17 18

Webb v EMO Air Cargo (UK) Ltd C–32/93, [1994] IRLR 482, [1985] IRLR 645 (HL). Equal Treatment Directive 76/207/EEC, arts 2(1) and 5(1); cited at para 31 of the ECJ’s judgment. O’Kelly v WYG Engineering Limited [2013] ELR 279. Brown v Rentokil Ltd [1998] IRLR 445.

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[14.12] Section 6(2)(f) of the Unfair Dismissals Act 1977 was overhauled significantly because of European law.19 The defence under the original provision that a woman’s performance could justify dismissal by reason of her pregnancy or matters connected therewith did not survive.20 If, therefore, the real reason for dismissal is a woman’s pregnancy, a determination of unfairness will automatically follow.

(3) Pregnancy [14.13] The employee must discharge the onus of proof that she was dismissed by reason of pregnancy. It will be for the employer to establish that the real reason for dismissal was not pregnancy. Pregnancy is rarely the sole ground of dismissal. Most often there are surrounding circumstances. Was pregnancy an effective cause of the dismissal or other treatment of which the employee complains? There is a fundamental difference between the treatment of a woman in the context of dismissal and the treatment of a woman while on maternity leave when the law deems her to be specially protected (Gillespie [14.08]). An employee dismissed for pregnancy can take a case under either the Unfair Dismissals Act 1977 or the Employment Equality Act 1998, but not both: see [14.07]. [14.14] An employer who claimed that an employee had been unsatisfactory in her work, and had received no warnings as she was temporary, failed to establish that the real reason for the claimant’s dismissal was other than pregnancy: Maxwell v English Language Institute.21 Similarly, an employer who, according to the claimant’s evidence, informed her that in order for her employment to be viable she would have to quadruple her sales within a week and if she failed to do this her employment would be terminated, was found to have dismissed the claimant by reason of her pregnancy as a new target was set the day following the date on which the employee had informed her employer that she was pregnant: Woods v Monkscombe Ltd.22 But in McGrath v Burke,23 the employer’s defence of misconduct in the form of a bad atmosphere at work and abusive language defeated a claim of dismissal by reason of pregnancy. [14.15] It follows that since, as EU law affirms, it is discriminatory not to recruit a woman because she is pregnant, in general a woman who does not reveal her pregnancy at interview cannot lawfully be dismissed for non-disclosure. There is no obligation on a woman to disclose the fact of pregnancy to a prospective employer. 19 20

21 22

23

Hence most pregnancy decisions before 1993 are not reliable. As in Matthews v Ophardt Products Ltd UD 550/1983 (claimant’s dismissal upheld where, because of pregnancy, she could not do overtime), similarly McCarthy v Sunbeam Ltd [1991] ELR 38. Maxwell v English Language Institute UD 580 P17/1989. Woods v Monkscombe Ltd UD 585/1990; other claims where employee succeeded are McDermott v The Carpet Mills UD 1124/1995 and Keating v Customs Clearance (Service) Dundalk UD 825 P14/1991; Carter v Ballsbridge Ltd UD 718/1996; Kirk v Irish Holemasters Ltd UD 601/1997. Doyle v Law Associates Ltd UD 448/2004. McGrath v Burke 957 P23/1988; also Browne v Conran UD 380/1992; Bollard v Ridgeway UD 1018/1988; Hallissey v Pretty Polly (Killarney) Ltd UD 362/1984.

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[14.20]

[14.16] For a finding of unfair dismissal on grounds of a woman’s pregnancy it must be shown that the employer knew or believed either that the woman was pregnant or that it was dismissing her for a reason connected with her pregnancy.24

[14.17] As to the meaning of ‘matters connected therewith’ in s 6(2)(f), it is undeniable that the selection of a woman for redundancy because she is pregnant and will require maternity leave is dismissal for a ‘reason connected with her pregnancy’: Brown v Stockton-on-Tees Borough Council.25 [14.18] The EAT in Britain has taken the view that the words mean ‘associated with’ rather than ‘causally connected with’ pregnancy. Therefore, where a woman who intended to take maternity leave was dismissed because the employer was unable to find a temporary replacement for her, it was held there was a dismissal for a reason connected with pregnancy: Clayton v Vigers.26

(4) Maternity [14.19] Section 6(2)(g) of the Unfair Dismissals Act 1977 deems a dismissal unfair if it results wholly or mainly from the exercise or the proposed exercise by an employee of a right under the Maternity Protection Act 1994 to any form of protective or natal care absence or to time-off from work or a reduction of working hours for breastfeeding under that Act. ‘Protective leave’ means maternity leave, additional maternity leave, leave to which a father is entitled on the death of a mother and leave on health and safety grounds,27 para [23.82] et seq. [14.20] Maternity leave consists of not less than 26 weeks for those who take maternity leave.28 The right is subject to an employee having done two things. First, as soon as reasonably practicable but not later than four weeks before the commencement of maternity leave, she must notify her employer in writing of her intention to take maternity leave. Second, at the time of this notification, she must give her employer or produce for its inspection a medical or other appropriate certificate confirming the pregnancy and specifying the expected week of confinement.29 An employee may, if she wishes, take ‘additional maternity leave’ for a maximum of 16 consecutive weeks commencing immediately after the end of her maternity leave and where applicable, any 24

25

26 27 28

29

Johnston v Redwood Hydraulics Ltd UD 800/1990; Cloran v SCI Ireland Ltd UD 95/1990; Del Monte Foods v Mundon [1980] IRLR 224 (EAT). Under the Pregnant Workers Directive 92/85/EEC, art 2, a ‘pregnant worker’ means ‘a pregnant worker who informs her employer of her condition in accordance with national legislation and/or national practice’. Brown v Stockton-on-Tees Borough Council [1988] IRLR 263, within ERA, s 99 which refers to dismissal where the reason is that the woman ‘is pregnant or any other reason connected with her pregnancy’. Clayton v Vigers [1990] IRLR 177. Maternity Protection Act 1994, s 21(1). Maternity Protection Act 1994, s 8, most recently amended by the Maternity Protection Act 1991 (Extension of Periods of Leave) Order 2006 (SI 51/2006). The Parental Leave Act 1998 provides rights to leave and to return to work. Section 9(1)(a) and (b).

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Redmond on Dismissal Law

period of paternal leave transferred to her, or 16 weeks all or part of which has been postponed in addition to any period of paternal leave transferred to her.30

[14.21] Section 6(2)(g) is unlikely to be invoked in the vast majority of cases. The reason for this is found in s 23 of the 1994 Act which makes void: (a) any purported termination of an employee’s employment while she is absent from work on protective leave;31 (b) any purported termination of an employee’s employment during a period of natal care absence; (bb)

any purported termination of an employee’s employment during a period of absence from work to attend ante-natal classes in accordance with s 15A;

(bbb)

any purported termination on an employee’s employment during a period of absence from work for breastfeeding in accordance with s 15B; any notice of termination of an employee’s employment given while the employee is absent from work on protective leave and expiring subsequent to such a period of absence; any notice of termination of an employee’s employment given during a period of natal care absence and expiring subsequent to such a period; any notice of termination of an employee’s employment given during a period of absence from work to attend ante-natal classes in accordance with s 15A; any notice of termination of an employee’s employment given during a period of absence from work for breastfeeding in accordance with s 15B and expiring subsequent to such a period; and any purported suspension from an employee’s employment imposed while she is absent from her work on protective leave, during a period of natal care absence or during a period of absence from work to attend ante-natal classes in accordance with s 15A or for breastfeeding in accordance with s 15B.

(c)

(d) (dd) (ddd)

(e)

The EAT noted the difficulties which flow from this section in Toner v ESAT Telecommunications Ltd.32 Similar provisions apply, mutatis mutandis, in respect of adoptive leave33 and paternal leave.34

[14.22] A termination of employment which is void, ironically perhaps, cannot be challenged as unfair. This was the outcome in Bartley v Rathgordon Enterprises Ltd35 30

31

32

33 34 35

Section 14(1). Amended by SI 51/2006, n 28 above and Paternity Leave and Benefit Act 2016, s 34. Defined in s 21 as maternity leave; additional maternity leave; leave to which a father is entitled under subs (1) or (4) of s 16 (on death of mother) or leave granted under s 18 (on health and safety grounds). Toner v ESAT Telecommunications Ltd UD 135/2003. It is arguable that it could qualify as ‘a dispute’ under Part V. There is no mechanism for declaring a purported termination void. Adoptive Leave Act 1995, s 16. Paternity Leave and Benefits Act 2016, s 20. Bartley v Rathgordon Enterprises Ltd [1997] ELR 41. An opportunity to consider the implications of s 28’s precursor (s 17 of the 1981 Act) arose but was not taken up by the EAT in Dunne v Brooklyn Engineering Service (Dublin) Ltd UD 392 P11/1988.

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[14.24]

where the claimant was dismissed whilst on maternity leave. The EAT found it had no jurisdiction in the matter as the dismissal was void.

Possibility of employee instituting proceedings in the civil courts for breach by employer of EU law [14.23] It is important to note that an employee who alleges less favourable treatment on the grounds of her pregnancy and/or maternity leave may be able to institute civil proceedings in the High Court directly for breach of Directive 2006/54/EC on the implementation the principle of equal opportunities and the equal treatment of men and women in matters of employment. A prominent example of this is Byrne v Minister for Defence,36 in which the plaintiff was awarded very substantial compensation by the High Court based on its finding that she had been excluded from access to promotion opportunities as a result of her being on maternity leave. Analysing the judgment in Byrne, it does not appear that the High Court was in any way concerned about the potential jurisdictional difficulty of a claim for discriminatory treatment being pursued in the High Court. This may, with respect, be somewhat at odds with the many High Court authorities on the permissibility of pursuing civil proceedings where the Oireachtas has enacted a specific statutory regime for the determination of such claims.37

(5) Right to return to work and leave-related issues potentially pertaining to dismissal claims [14.24] Beginning with maternity legislation, dismissal may occur where an employee attempts to exercise her right to return to work following maternity leave under Part IV of the 1994 Act. This right is provided on the basis of compliance with the provisions of the 1994 Act as amended. Section 16 of the 1994 Act, as amended by the Maternity Protection (Amendment) Act 2004, introduced a new provision entitling the father to leave if the mother dies within 32 weeks of the birth of the child. The employed father is entitled to leave for the balance of the period of 32 weeks after the mother’s death. Leave must commence within seven days of the death of the mother. A father who has taken such leave is also entitled to a further period of leave for a maximum period of 16 weeks commencing immediately after the prior period of leave or, where applicable, paternity leave; or 16 weeks, all or part of which has been postponed, commencing at a later date or immediately after the prior period of leave.38 The Act further provides for termination of leave in the event of sickness of the father, and of hospitalisation of the child. 36

37

38

Byrne v Minister for Defence [2017] IEHC 453. The High Court (Eagar J) awarded the plaintiff damages for loss of earnings in the sum of €824,794. Contrast, for example, the decision of the High Court (Twomey J) in Duffy v Liffey Meats (Cavan) [2017] IEHC 103, considered in Ch 10. An earlier judgment in Byrne v Minister for Defence ([2016] IEHC 464) refers to objections made on behalf of the respondent concerning non-justiciability in light of the specific statutory measures applicable in the context of the Defence Forces; the High Court was not convinced by these objections, citing adequacy of remedy grounds and concluding that judicial review was appropriate. The matter was later converted to a plenary action. Maternity Protection Act 1994, s 16 as amended.

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[14.25] On the expiry of the period of protective leave, the employee (male or female, as appropriate) under s 26 is entitled to return to work: (a)

(b) (c)

with the employer with whom she or he was working immediately before the start of that period or, where during her absence from work there was a change of ownership of the undertaking in which she or he was employed immediately before her or his absence, with the owner (referred to as ‘the successor’) of the undertaking at the expiry of the period of absence; to the job which she or he held immediately before the start of that period; and under the contract of employment under which she or he was employed immediately before the start of that period, or, where a change of ownership such as is referred to in para (a) has occurred, under a contract of employment with the successor which is identical to the contract under which she or he was employed immediately before the start of that period, and (in either case) under terms or conditions not less favourable than those that would have been applicable to her or him if she or he had not been so absent from work and that incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled, if she or he had not been so absent from work.

[14.26] If she or he was not doing her normal job before protective leave, she or he is entitled to return to work in her or his normal or usual job or in that job as soon as is practicable and lawful.39 ‘Job’ means: the nature of the work which she or he is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed.40

[14.27] If it is ‘not reasonably practicable’ for her or his employer to permit an employee to return to work as provided, the employee is entitled to be offered ‘suitable alternative employment under a new contract of employment’ by her or his employer, its successor or an associated employer.41 The work must be suitable in relation to the employee concerned and appropriate for her or him to do in the circumstances and the terms and conditions relating to the place where the work is to be done, the capacity in which she or he is to be employed and any other terms and conditions must be ‘not less favourable’ than those of her or his contract of employment immediately before the protective leave and they must incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled if she or he had not been so absent from work during that period.42

[14.28] The words ‘suitable in relation to the employee concerned’ have been construed subjectively from the employee’s standpoint, including the general nature of the work which suited their domestic considerations. If the Workplace Relations Commission finds that the work concerned was not suitable or appropriate, there will be a finding of breach by the employer of the 1994 Act. This breach will amount to conduct by it which 39 40 41 42

Maternity Protection Act 1994, s 26(2). Maternity Protection Act 1994, s 26(3). Maternity Protection Act 1994, s 27(1). Maternity Protection Act 1994, s 27(2) amended by Maternity Protection (Amendment) Act 2004, s 19.

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[14.33]

entitles the employee to terminate the contract, thus bringing about a possible constructive dismissal under the Unfair Dismissals Acts. In Savino v Gardner Merchant (Ireland) Ltd,43 the claimant returned to work after maternity leave and was engaged on the understanding that she was subject to a 60-day working probationary period in her new position. The new position arose out of the fact that the manager for whom she had been working before going on maternity leave had been replaced and the new manager had informed her that there was no job for her in the old premises where she had worked. Notwithstanding the fact that the claimant did not raise her grievance internally in the way which is usually expected for the purposes of constructive dismissal, the EAT found that she had been unfairly dismissed and awarded her compensation.

[14.29] These entitlements, to return to work and to be offered suitable alternative work, are subject to notification requirements under s 28 of the 1994 Act. An employee is obliged, not later than four weeks before the date on which she or he expects to return to work, to have notified in writing (or caused to be so notified) her or his employer or, where she or he is aware of a change of ownership of the undertaking concerned, the successor, of her or his intention to return to work and of the date on which she or he expects to return to work. [14.30] This time limit is not absolute or mandatory and can be extended by the Workplace Relations Commission or the Labour Court where in their opinion there are reasonable grounds for an employee’s failure to give notification either at all, or otherwise than within the specified time.44 A failure to comply with s 28 is not fatal to the exercise of the right, however. It is a matter ‘that may be taken into account’ when determining an employee’s rights to unfair dismissal protection under the 1977 Act, the 1994 Act or any other relevant enactment so far as remedies are concerned. [14.31] It is good practice for an employer to advise an employee in writing before going on protective leave as to when and how to notify it if she or he wishes to exercise their statutory right to return to work. [14.32] The 1994 Act with its straightforward notification requirements renders of historical interest many of the questions which dogged its predecessor such as whether the requirements as to notification of intention to return to work were mandatory (or otherwise), and whether a woman dismissed when attempting to exercise her right to return to work was confined to her remedy under maternity legislation.45 [14.33] Section 40 of the 1994 Act applies to a woman who has duly complied with s 28 and is therefore entitled to return to work following absence on protective leave but 43

44 45

Savino v Gardner Merchant (Ireland) Ltd UD 122 P7/1990; see Tighe v Travenol Laboratories Ltd P14/1986: any rationalisation involving the demise of a pregnant employee’s job while on maternity leave can be overridden where she dislikes the new work assigned. Also Midland International Ltd v Cooney P15/1990; McCormack v Brady P30/1992. Maternity Protection Act 1994, s 28(3). See Grennan v Carty RP161/2004. Typified in the ‘Ivory saga’ and later determinations. See Ivory v Ski-Line Ltd UD 744/1986, (26 February 1988) HC, Egan J.

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Redmond on Dismissal Law

is not permitted to do so by the relevant employer. For the purposes of the 1994 Act, s 40(4) provides that: (a)

an employee to whom [s 40] applies who is also an employee to whom the Act applies46 shall be deemed to have been dismissed on the expected date of return; and

(b)

the dismissal shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

[14.34] Similar provision is made under s 26 of the Adoptive Leave Act 1995 which applies to an ‘adopting parent’ who, having duly observed the obligations in s 20 of that Act, is entitled to return to work but is not permitted to do so by the relevant employer. Likewise provision is made under s 25 of the Parental Leave Act 1998 to protect an employee on ‘parental leave’ who, having duly observed the obligations in s 15 of the Act, is entitled to return to work but is not permitted to do so. Coordinate provision is also made in s 26 of the Paternity Leave and Benefits Act 2016 to protect an employee taking paternal leave who, having duly observed the obligations in s 24 of the Act, is entitled to return to work but is not permitted to do so. Similar provisions are found in the Carer’s Leave Act 2001 which protects employment rights and in s 14 entitles a carer to return to work. For the purposes of the 1977 Act, an adopting parent, an employee on parental or paternal or carer leave is deemed to have been dismissed on the date he or she is expected to return to work and the dismissal is deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. The general principle is that an employee in continuous employment for 12 months is entitled to leave for the purpose of providing full-time care for a period not exceeding 65 weeks. The issues considered in this section apply, mutatis mutandis, to dismissal of an adoptive parent or an employee who has been absent on parental, paternal or carer leave.

(6) The effect of a more favourable agreement [14.35] It is possible for an employer and an employee in Ireland to make an express agreement between them that the contract of employment of an employee who is on maternity leave shall continue to subsist during her absence. In such circumstances, the employee will have both a statutory and a contractual right to return to work. Section 4(3) of the 1994 Act permits more favourable agreements between the parties on maternity leave or the right to return to work than the statute enacts. An ‘agreement’ refers to any agreement whether a contract of employment or not and whether made before or after the commencement of the Act. Where there was an agreement to the effect that an employee’s contract of employment continued to subsist during maternity leave, an employee who was party to such agreement and whose employment was terminated when attempting to return to work at the end of such leave, without having observed the provisions of the 1994 Act, could seek relief under the general provisions of the 1977 Act. 46

‘Employee’ means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment.

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[14.36]

[14.36] Section 4(1) of the 1994 Act does not require such agreements to be in writing and an agreement may be implied as well as expressed.47 However, if a woman is dismissed and can avail of both the specific pregnancy claim and the general statutory claim, then she must be careful to pursue one or the other.48 Coordinate provision is made for parental leave,49 adoptive leave,50 carer leave51 and paternal leave.52

47

48

49 50 51 52

See, on the UK Act, Kolfor Plant Ltd v Wright [1982] IRLR 311 (EAT) and Lavery v Plessey Telecommunications Ltd [1983] IRLR 202 (Court of Appeal). Kolfor Plant Ltd v Wright [1982] IRLR 311 (EAT) and Lavery v Plessey Telecommunications Ltd [1983] IRLR 202 (Court of Appeal). Parental Leave Act 1998, s 4. Maternity Protection Act 1994, s 4. Carers Leave Act 2001, s 4. Paternity Leave and Benefits Act 2016, s 4.

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Chapter 15

Capability, Competence or Qualifications, Contravention of Statute INTRODUCTION [15.01] The grounds ‘capability, competence or qualifications’ are not sui generis. They combine factors which attribute fault to an employee as well as those which do not. An employee may be rendered incapable of performing the work he or she is employed to do as a result of ill health or alcoholism, for example. He or she may be incompetent to do the work, either inherently or because of culpable negligence. The terms ‘capability’ and ‘competence’ are not defined in the 1977 Act. They are not, therefore, terms of art and are at times used interchangeably. As recently confirmed by the Labour Court, it is not the function of the Workplace Relations Commission or the Labour Court to establish whether the employee is in fact incompetent or incapable: if an employee is dismissed for such reasons, it is sufficient that the employer honestly believes on reasonable grounds that the employee is incompetent or incapable.1 In a still leading statement of the law of dismissal on the grounds of ill health almost 30 years ago in Bolger v Showerings (Ireland) Ltd2 Lardner J explained: ‘In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that: (1)

It was the ill-health which was the reason for his dismissal;

(2)

That this was a substantial reason;

(3)

That the employee received fair notice that the question of his dismissal for incapacity was being considered;

(4)

That the employee was afforded an opportunity of being heard.’

[15.02] A person who falls below the standards required of an employer may be committing an act of gross misconduct. Some cases of inadequate performance are more correctly classified as cases of gross misconduct. Such was the outcome in O’Connor v Brewster,3 where the claimant was dismissed for neglect of duties amounting to gross misconduct. The claimant knew of his job requirements as a result of experience and he knew that neglect of his duties amounted to gross misconduct. In general, cases where a person has not come up to standard through his own carelessness, negligence or idleness 1 2

3

O’Brien v Dunnes Stores Limited (UDD1714) (7 April 2017) Labour Court. Bolger v Showerings (Ireland) Ltd [1990] ELR 184. For a recent example of consideration of Bolger see Hoey (claimant) v White Horse Insurance Ireland Limited [2016] ELR 30. O’Connor v Brewster [1992] ELR 10. Dismissal could be classified under ‘conduct’ or ‘capability, competence ...’ in Nugent v CIÉ [1990] ELR 15.

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are more appropriately dealt with as cases of misconduct rather than of capability or competence. Conversely, where an employer dismisses an employee for misconduct surrounding his or her performance, the employer must give due regard to the extent to which the employee’s ill-health may have offered extenuation for the performance.4

[15.03] Once the adjudicating body is satisfied that there were grounds for the belief that an employee was incompetent, the procedures adopted in arriving at that belief are only relevant to distinguish the realities of the employer’s belief: O’Neill v Bus Éireann.5

A.

CAPABILITY

[15.04] Dismissal is deemed not to be unfair under s 6(4)(a) of the 1977 Act where it results wholly or mainly from an employee’s capability to perform work ‘of the kind which he was employed by the employer to do’. These are mostly no-fault dismissals, giving rise to various ‘defences’ on the part of the employee. Absence from work or absenteeism is often a significant factor. In this context alcoholism must be distinguished from alcohol-related conduct. The latter is dealt with in Chapter 16 regarding conduct dismissals. Although alcoholism is a form of ill health it is treated separately in this chapter. Absenteeism which affects an employee’s attitude to his or her employer is likewise a conduct issue.

(1) Ill health [15.05] Ill health embraces several sets of circumstances, ranging from minor ailments to recurring health problems to major illnesses. They, or their effects on the job, may be grounds for dismissal under s 6(4)(a). Threaded through ill health cases may be issues on absenteeism, malingering, procedures on certification of illness and so on. An employer will need careful advice if there are or have been civil proceedings by an employee injured at work. The most frequent types of ill health which feature in dismissal cases include back problems, heart conditions and mental illness including psychiatric illness arising from workplace stress. In addition to unfair dismissals legislation, the Employment Equality Act 1998 obliges an employer not to discriminate between employees on the ground of ‘disability’ as defined in s 2(1) of the Act. [15.06] Ill health is not, of course, associated with the attribution of fault to the employee, except in cases where it is fraudulently alleged. However, employment may be terminated if ill health prevents a person from performing his job or attending for work on a regular basis.6 This is because, as the Labour Court has stated, ‘[i]t is an 4

5 6

Thus in Collins v HP CDS Ireland Limited UD1713/2010 the employee was awarded €30,000 compensation for unfair dismissal on the basis that the investigation carried out by the employer was insufficient as the employer did not explore the nature of the employee’s illness and the extent, if any, to which it may have offered an explanation for his conduct. O’Neill v Bus Éireann [1990] ELR 135. An employee is entitled to a reasonable and fair hearing for the purpose of ascertaining whether he is medically capable to perform the duties he was employed to do: Heelan v Irish Rail UD 360/1994. (contd.../)

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[15.09]

implied term in any contract of employment that an employee will remain fully fit to perform the duties for which he or she is employed and the loss of that capability can give rise to dismissal’.7 Equally, although infrequently, ill health may place the employee8 or fellow employees in danger, for example where medicine to control illness causes drowsiness and the employee is, say, a forklift driver.

[15.07] In the context of the unfair dismissals legislation, an employer is not obliged to create a new job for an ill employee9 or to provide lighter duties where this would be unreasonable. This general principle can, according to Clarke J (in the High Court) in Carroll v Dublin Bus,10 ‘be displaced by the existence of an express term, or perhaps a well established custom and practice amounting to a term of the contract’. The High Court ruled that a bus driver, who suffered from a back complaint, was entitled as a term of his employment on the basis of established custom and practice to be given the opportunity to be assigned to rehabilitative work. Evidence was given of the existence of such rehabilitative routes within the company. It is very important that this line of case law in the context of the Unfair Dismissals Acts and the contract of employment respectively be contrasted with developments pursuant to the Employment Equality Acts, most notably the recent decision of the High Court in Nano Nagle School v Daly.11 [15.08] In that case the complainant, a special needs assistant with the respondent school, suffered serious spinal injuries in an accident which left her paralysed from the waist down. A report of an occupational therapist concluded that the complainant would be able to fulfil some but not all of her duties on her return to work. The respondent claimed that as the complainant could not fulfil certain work duties, there was no possibility of accommodating her. This resulted in her effective dismissal from the school. The Labour Court found that the school had acted erroneously in failing to adapt the working times and task distribution of the complainant and other special needs assistants to accommodate the complainant. This finding was upheld on appeal to the High Court by Noonan J, who confirmed that the respondent had not given adequate consideration to all the possibilities of accommodating the complainant. [15.09] If an employer disputes the medical certificate, or still has doubts, it should have the employee examined by its own medical expert by way of verification.12 6

7 8 9

10

11 12

(\...contd) An employer should not act with undue haste thereby denying the claimant the benefit of the company’s sickness/disability scheme: Morrison v Verbatim Ltd UD 624/1994. On this, see the implied contractual approach developed in Britain analysed in Ch 11. On suspension in cases of ill health, see Becker v The Board of Management of St Dominic’s Secondary School Cabra [2005] IEHC 122 (Clarke J). O’Brien v Dunnes Stores Limited (UDD1714) (7 April 2017) Labour Court. O’Neill v Fr Eugene McCarthy UD 371/1991. Rogers v Dublin Corporation [1998] ELR 59. It is unreasonable to expect an employee to return to work without medical clearance and to suggest that there are other jobs he could do: Allman v Hoddler UD 576/1986. Carroll v Dublin Bus [2005] 4 IR 184 at 195. See similarly Allman v Bus Éireann UD 472/ 2005. Nano Nagle School v Daly [2015] IEHC 785. Eamonn Blair v Coverall Courier Services Ltd (UD 1263/2013).

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Redmond on Dismissal Law

Where dismissal is being contemplated at any time during sick leave, the employer must inform the employee of that possibility in the clearest of terms.13

[15.10] It may be more appropriate for an employer not to have dismissed an employee but instead to have allowed her to retire and avail of her entitlement under the employer’s superannuation scheme; the employer’s decision, however, will be upheld if the claimant is unable due to illness to perform the work she is required to do.14 The jurisdiction of the Workplace Relations Commission does not stretch to pension or disability continuance schemes, a regrettable shortcoming in the case of employees suffering from ill health. [15.11] An employer may contend that an employee was working elsewhere while absent on sick leave. An employer’s investigation may reasonably involve surveillance in such circumstances and the nature and frequency of the other work will be more important in deciding to dismiss than whether the employee is being remunerated for it.15 An employer is obliged to put all the facts to the employee. This sort of investigation equates with one involving a conduct issue. The employee will be informed of the suspected wrong. Where she is receiving sick pay from the company it goes without saying that this should not normally be discontinued pending the outcome of the employer’s investigation. [15.12] Much time and argument can be taken up before the Workplace Relations Commission if an employer’s rules on ill health are unclear. These may be formulated by the employer in the contract or may be agreed between union and management.16 An employer should try to ensure that employees have a clear articulation of the following in their contract or in an employee manual: (i)

13 14

15

16

The employer’s rules and procedures on absenteeism: they should be reasonable.

Kearney v Tesco (UD86/2010). Victory v Leopardstown Park Hospital UD 9/1987. Similarly, where the employer operated a panel of employees for rehabilitation vacancies: Wall v Bus Átha Cliath UD 460/1995. In Britain, an implied contractual right has been recognised by the High Court that, save for summary dismissal, the employer would not terminate the contract while the employee was incapacitated for work in circumstances in which the employer’s permanent health insurance scheme was dependent upon the continuance of the employment relationship: Aspden v Webbs Poultry & Meat Group (Holdings) Ltd [1996] IRLR 521. See similarly Adin v Sedco Forex International Resources Ltd [1997] IRLR 280. These and other cases are analysed in Ch 11 along with McGrath v Trintech Technologies Ltd [2005] 4 IR 382 in which an argument purportedly based on Aspden, et al failed. Contrast Brady v AO Smith Electric Motors Ireland Ltd UD 647/1990 and Henry Denny & Sons (Ireland) Ltd v Hamill UD 105/1991. See, too, Roy v Wavin Pipes Ltd UD 119/1983; Murphy v Tesco Stores (Ireland) Ltd UD 1242/1983; Mulraney v Group4 Securities (Ireland) Ltd UD 841/1985. A case involving a private investigator where dismissal was found to be unfair is O’Mahony v Kerry Ingredients (Ireland) Ltd UD 1421/2003. See further Ch 13. In which case the Workplace Relations Commission will interfere only reluctantly if the agreement is oppressive: see the approach of the Employment Appeals Tribunal in Dalton v Krups Engineering Ltd UD 942/1986. See in general Greene, ‘Terminating Employment on Incapacity Grounds’ (2016) 13 IELJ 43.

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[15.12]

(ii)

Sick leave regulations: if and when medical certificates are required by the employer and the consequences of disregarding these regulations.17 The employer should have a right to seek further information where a medical certificate is unspecific on its face or where an employee is returning to work after a long absence due to illness18 or in other appropriate circumstances.

(iii)

Medical examination: in addition to a pre-medical examination and a medical examination by an independent doctor at any stage during employment, it should also be explicit that examination may be for the purpose of detecting inappropriate drug use, including use of alcohol, and the employee should be given appropriate assurances as to the confidentiality and use of medical records.

The Workplace Relations Commission – like the Employment Appeals Tribunal before its abolition – tends to be sympathetic towards claimants in ill health dismissals.19 It places a great deal of reliance on medical opinion.20 The decision to dismiss is not, however, a medical decision. It is an employment decision made by an employer in the light of all the circumstances. Such circumstances include available medical evidence.21 If there is a conflict between doctors as to an employee’s likely date of return to work, the employer may resolve the conflict in accordance with established guidelines including the interests of its business. If, for insurance reasons, a specialist’s clearance is needed, the employer ought not to put the onus on the employee to obtain clearance.22 17

18

19

20

21

22

Failure to comply will often be dealt with as a disciplinary offence, attracting warnings and, if persistent, dismissal. See Torpie v Post Publications Ltd UD 420/1995; Carmody v Aughinish Alumina Ltd UD 25/1986; Toohey v Molex SA UD 976/1986. Submitting medical certificates as required will not preclude an employer from dismissing and dismissal will not necessarily be unfair: O’Riordan v Lombard & Ulster Banking Ltd UD 25/1988. Equally, failure to submit medical certificates will not necessarily justify dismissal: Byrne v Corporation of Dún Laoghaire UD 820/1986. In Wilson v Post Office [2000] IRLR 834 ill health was found to be the cause of a poor attendance record but the reason for dismissal was that the applicant’s attendance record had not met the requirements of the agreed attendance procedure. Respectively, see Hutchinson v Enfield Rolling Mills [1981] IRLR 318; Flanagan v Auto Conversions Ltd UD 134/1996. See Walsh v A Guinness & Co Dublin Ltd UD 871/1985; Fleming v DS UD 322/1989; Walsh v Iarnród Éireann UD 27/1987; Daniels v Packard Electric (Ireland) Ltd UD 842/1986; Bentley v An Post UD 954/1988 and Edwards v Governors of Hanson School [2001] IRLR 733 (EAT): if the employer has caused illness which results in dismissal, then there is no reason why-no matter how fair the procedures-that should not lead to a finding of unfair dismissal. A single medical report was inadequate: Lawless v Dublin County Council [1990] ELR 101 (EAT). See, on the availability of medical evidence: Gavin v Bus Éireann [1990] ELR 103 (EAT); on the lack of it, see Mulhern v An Post [1990] ELR 131 and on medical opinion generally: Devine v Pharmacia Medical Devices Ltd UD 903/1994; Bentley v An Post UD 954/1988; Shannon v Michael Flannery Car Sales Ltd UD 120/1992. E Lindsay DC v Daubney [1977] IRLR 181 (EAT). In Bolger v Showerings (Ire) Ltd [1990] ELR 184, in the light of all the circumstances, the High Court (Lardner J) held that where there is no dispute between employer and employee as to the incapacity of the employee because of ill health it is not necessary for the employer to await the results of medical tests before deciding to dismiss the employee. Hogan v Wavin Ireland Ltd UD 89/1986.

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[15.13]

(i) Frustration [15.13] Frustration is a term of art to the lawyer.23 It may be loosely used by nonlawyers in connection with the effects of ill health on a contract of employment. The word should be used with caution.

[15.14] The doctrine of frustration is imported from contract law. A contract comes to an end through frustration and ceases to bind the parties if, through no fault of either of them, circumstances not provided for by the contract arise in which a contractual obligation becomes impossible to perform or in which performance of the obligation is rendered a thing radically different from that which was undertaken by the parties to the contract. When frustration is applied to cases of illness an employer must be able to establish that further performance of an employee’s obligations in the future would either be impossible or would be a thing radically different from that undertaken by the employer. [15.15] The Workplace Relations Commission should ask itself, borrowing from the language of Marshall v Harland & Wolff Ltd and the Secretary of State for Employment:24 ‘Was the employee’s incapacity, looked at before the purported dismissal, of such a nature, or did it appear likely to continue for such a period, that further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertaken by him and agreed to be accepted by the employer under the agreed terms of his employment?’

In considering the answer to this the WRC should take account of: (i) (ii)

the terms of the contract including the provisions as to sick pay; how long the employment was likely to last in the absence of sickness;

(iii)

the nature of the employment – whether the employee is one of many in the same category or occupies a key part; the nature of the illness or injury, how long it has already continued and the prospects for recovery;

(iv) (v)

the period of past employment.

The employer bears the onus of proof.

[15.16] Frustration normally arises where an employee has suffered a serious injury or illness. When is the employer justified in terminating what appears to be an almost hopeless situation? Or, when can it be said that the employer has reached the point when it can declare it a hopeless situation and dismiss? Has the time come when the employer can no longer reasonably be expected to keep the absent employee’s post open for her? 23

24

See interesting criticisms by Collins, ‘Unfair Dismissal and Redundancy: Frustration of the Contract of Employment’ (1977) 6 ILJ 185; and Manchester, ‘Frustration or Dismissal’ (1978) 128 NILJ 674. Marshall v Harland & Wolff Ltd and the Secretary of State for Employment [1972] IRLR 90 adopted cf in Nolan v Brooks Thomas Ltd UD 179/1979; Aylward v Lawler Products BV UD 1117/1993; Adlum v Longford Textile Ltd UD 353/1993.

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[15.18]

[15.17] Even where a contract is declared to be frustrated, a conclusion which is always reached reluctantly, the Workplace Relations Commission (illogically from a strictly legal point of view) may consider the reasonableness of the employer’s decision to dismiss.25 [15.18] The British EAT listed useful guidelines in The Egg Stores (Stamford Hill) Ltd v Leibovici26 which were in large measure adopted and added to in this jurisdiction in Donegal County Council v Langan.27 This last-mentioned decision emphasises that frustration can be used only very selectively. The Employment Appeals Tribunal noted that in most cases of ill health before it, the employer’s defence is of fair dismissal due to sickness, not frustration. Where frustration is the defence entered, the ‘impossible to perform’ test applies. ‘It is possible to divide into two kinds the events relied upon as bringing about the frustration of a short-term periodic contract of employment. There may be an event (eg, a crippling accident) so dramatic and shattering that everyone concerned will realise immediately that to all intents and purposes the contract must be regarded as at an end. Or there may be an event, where an employee becomes incapacitated by an incurable disease, or an illness or accident, the course and outcome of which is uncertain. It may be a long process before one is able to say whether the event is such as to bring about the frustration of the contract and that it is no longer possible to regard the contract as still subsisting.’

The EAT gave its own interpretation of the Egg Stores case, adding a number of its own factors into its assessment. Thus, among the matters to be taken into account (by, now, the Workplace Relations Commission) in deciding whether a contract is frustrated, according to the EAT in Ireland, are: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x)

25

26

27

the length of the previous employment; how long it has been expected that the employment would last; the nature of the job; the nature, length and effect of the illness or disabling event; the need of the employer for the work to be done; whether wages have continued to be paid; the actions of the employer in relation to the employment; whether consideration was given to retaining the employee on the books but not in employment; whether the employer discussed with the employee and his trade union the employee’s problems and prospects; whether adequate medical investigation was carried out (eg employers should ask their own or their employee’s doctor for reports to establish the real medical facts and if there is conflicting medical evidence, seek an independent source); and

An example in the case law of its predecessor, the EAT, is De Sousa v Kepak Group (UD 964/ 2011). The Egg Stores (Stamford Hill) Ltd v Leibovici [1976] IRLR 376. See, too, Williams v Watson Luxury Coaches Ltd [1990] IRLR 164. Donegal County Council v Langan UD 143/1989. See Adlum v Longford Textile Ltd UD 353/ 1993; Boyle v Marathon Petroleum (Ireland) Ltd [1995] ELR 200.

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[15.19] (xi)

Redmond on Dismissal Law whether, in all the circumstances, a reasonable employer could be expected to wait any longer.

The EAT warned that where there is a prospect of recovery for an employee, a lengthy absence does not necessarily frustrate the contract. The clearest evidence is needed.

[15.19] A contract of employment cannot be frustrated by the risk of an employee’s health deteriorating.28 A contract which is still capable of being performed, but becomes subject to an unforeseen risk, is not frustrated. The Workplace Relations Commission will look at what has happened rather than what might happen.

(ii) Ill health and civil litigation [15.20] Complexities may arise where an employee has taken civil proceedings, whether against his employer or a third party, arising out of an accident at work. The parties, particularly the employee, will be advised by their lawyers with the civil proceedings in mind. An employer may find, for example, that an employee refuses to be examined by a doctor on behalf of the company: as the claimant did, acting on the advice of her solicitor, in Langan v Abbott (Ireland) Ltd.29 While no one would dispute that the constitutional right to litigate must embrace the right to take such steps as are ancillary and antecedent to such litigation, nonetheless that right cannot, pace the majority of the Employment Appeals Tribunal in Langan, take away the employer’s contractual right to investigate the circumstances of an employee absent due to illness. The obligations of reasonableness and fairness are not solely the burden of the employer. In Crotty v Merriott Radiators Ltd30 the claimant had an ongoing case in relation to back injury when he was dismissed. He was not willing to let the Employment Appeals Tribunal view any medical reports prepared for his personal injury claim. The dismissal was found to be not unfair. [15.21] It is not unknown for an employee to present for work once the civil proceedings have been settled or completed. This happened in Duffy v Meath County Council31 where the Employment Appeals Tribunal determined that the claimant’s extremely long absence from work for more than six years was in itself grounds to justify his dismissal. When he did present for work it was on his doctor’s advice that he was available only for light work, ie to do work different from that for which he was employed. He also presented on the day of his settlement in the High Court. [15.22] An employee’s case in court may involve submissions that he will be unable to return to his pre-accident employment. The civil proceedings may be compromised on that basis, and therefore include a sum of money for future loss of income or of the 28

29 30 31

Converfoam (Darwen) Ltd v Bell [1981] IRLR 195. Frustration is also inappropriate in cases of intermittent absences due to minor ailments: Mooney v Rowntree Mackintosh Ltd UD 473/ 1980. The duration of a disabling event is not determinative in deciding whether the contract of employment is frustrated: Gryf-Lowczowski v Hinchingbrooke Healthcase NHS Trust [2006] ICR 425. Langan v Abbott (Ireland) Ltd UD 120/1989. Crotty v Merriott Radiators Ltd UD 985/2004. Duffy v Meath County Council UD 270/1994.

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[15.27]

employee’s loss of market opportunity. The employer in Aylward v Lawler Products BV32 was told by its insurance company that settlement had included money for future loss of income. The relevant claims manager gave evidence to that effect before the Employment Appeals Tribunal. The employer had written to the claimant, sending him his P45 to assist him to claim his entitlements.

[15.23] The claimant alleged that he did not know if his settlement contained a clause about not being able to return to work. He contended that he had never instructed his legal representatives to insert such a clause. He affirmed that he was in receipt of a disability pension from the Department of Social Welfare: he knew that it meant he was unable to work. [15.24] The Employment Appeals Tribunal accepted the respondent’s argument33 that the contract of employment had been frustrated by the claimant’s illness. There was therefore no dismissal.

(2) Alcoholism [15.25] Alcoholism is not a cause for dismissal nor indeed disciplinary action. Rather it is an employee’s defence arising either in the context of absenteeism or incapacity. Alcoholism is to be distinguished from alcohol-related conduct,34 although both may give rise to similar concerns, eg, for the safety of fellow employees if dangerous machinery is involved. [15.26] When alcoholism is raised as a defence it will be important for an employer to take into account the past history of the employee: for example, has this defence been raised before? The gravity of the acts giving rise to the employer’s concern will also be important; if dangerous machinery is left running, that may be accorded considerable significance. An employer faced with an employee who has a problem with alcohol should try to find out whether or not the employee is willing to undergo professional treatment. To that extent alcoholism has similarities with many illnesses. If an employee is willing to undergo professional treatment, the employer will wait to see how that treatment works out, and the likelihood of rehabilitation. [15.27] Alcoholism may be in dispute between the parties and conflicting expert/ medical evidence may be given on the dismissed employee’s condition, as happened in Peppard v Tara Mines Ltd.35 In such a case the Workplace Relations Commission is unlikely to make a finding in relation to the claimant’s condition. In Peppard the Employment Appeals Tribunal considered: ‘… the respondent was well motivated in its approach to this problem as perceived. However, the alcohol rehabilitation programme once applied to the appellant dictated all the actions and thinking of the respondent’s representatives in spite of the appellant’s36 32 33 34 35 36

Aylward v Lawler Products BV UD 1117/1993. Relying on Nolan v Brooks Thomas UD 179/1979. See Ch 16 below. Peppard v Tara Mines Ltd UD 268/1992. The case was by way of appeal by the claimant from a recommendation of the rights commissioner.

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[15.28]

Redmond on Dismissal Law

denials that his drinking constituted a problem or that he was suffering from alcoholism. The appellant’s unwilling participation in the programme and his refusal to accept the recommendation of total abstinence, are as consistent with his not being an alcoholic as otherwise.’

And, significantly to the fairness of a decision to dismiss: ‘Whether he is an alcoholic or not he did not appear to have a drink problem in the context of his employment either from the point of view of safety or attendance such as would render his continuing employment undesirable.’

[15.28] Peppard illustrates how complex these cases can be and how the decision to dismiss may be dictated by third party programmes/reports, which an employer should guard against. More recent case law reveals that an employer will be expected to take proactive inquiries as to alcohol-related problems and the Workplace Relations Commission will likely deem a decision to dismiss unfair in circumstances where the employer does not make the inquiries it should.37

[15.29] In a case where ‘alcohol dependence syndrome’ was indicated by a hospital to which the claimant had admitted himself on a voluntary basis during his employment, dismissal was found unfair as the claimant had not been interviewed by the respondent before the decision to dismiss was taken: Dolan v J McGettigan Ltd.38 The decision was taken by the respondent without having tried to establish the nature of the claimant’s illness or the up-to-date state of his health. Fair procedures are of the essence, as always. [15.30] Where every effort has been made by an employer, and alcoholism is known and remains as a problem, it will not be unfair to dismiss. In Mahony v Department of Defence39 the employee received 10 written warnings and had attended nine meetings with the employer. He had been allowed to return to work after a long bout of absenteeism, during which he was hospitalised, provided that he signed a contract undertaking to furnish certificates of his attendance for anti-abuse treatment and at meetings of Alcoholics Anonymous. However, the employee lapsed into periods of alcoholism again and was absent from work over long periods. The employer treated his condition as a medical one. Medical reports were sought and the employee’s problems and his prospects for his future employment were fully discussed with him. The employer was found to have acted reasonably in dismissing the claimant. [15.31] In some cases it is unclear whether alcoholism is being alleged or not. In Lawless v RTV National Vision Ltd40 the employee admitted that she had been drinking on the employer’s premises on a particular occasion. She was told that if she partook of alcohol again during company hours she would be dismissed. She received a final warning by letter. The employer also offered to assist her with any difficulties she had. She did not take up this offer. Reports came approximately three months later that she 37

38 39 40

See the 2016 determination of the Employment Appeals Tribunal in Employer v Employee UD230/2014. This case was also by way of appeal by the claimant from a recommendation of the rights commissioner. Dolan v J McGettigan Ltd UD 670/1991. Mahony v Department of Defence UD 28/1989; also O’Callaghan v Aer Lingus UD 189/1990. Lawless v RTV National Vision Ltd [1990] ELR 47.

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[15.34]

had been under the influence of alcohol once more while at work. This was denied by the employee. Other members of staff had come to the opinion that she was under the influence of alcohol and evidence was given to the Employment Appeals Tribunal about this. The claimant gave no evidence to the EAT. Her union representative on her behalf emphasised that there was no evidence that alcohol was consumed, only opinions. The EAT divided. By a majority it found the employer had reasonable grounds for acting as it did and that the dismissal was not unfair. It noted that the claimant had been given a clear warning earlier in the year after which she must have known the consequences in relation to the consumption of alcohol. The dissenting opinion emphasised the fact that in ‘present-day industry it is recognised that alcohol-related problems are effectively illness and employers give an opportunity to employees to seek professional advice before considering dismissal’.

B.

COMPETENCE

[15.32] ‘Competence’ in the sense used here concerns the employee’s inherent ability to carry out his work. Corrective discipline will be critical in such cases before an employee is dismissed. ‘Incompetence is a very serious charge’ as the Employment Appeals Tribunal emphasised in McGrath and Restrick v Fisher Field Construction & Farm Machines Ltd.41 [15.33] A common error of employers is to start the first stage of disciplinary procedures when competence becomes an issue. However there are important stages to go through before that. First it is necessary for the employer: (i)

to establish a reasonable performance standard prior to the issue becoming a disciplinary one; and

(ii)

to communicate this to the employee.

Only then will it be possible to monitor whether an employee’s performance is below standard. There should be provision for coaching and advice when poor performance first manifests itself. This provides the opportunity, if necessary, to communicate reasonable performance standards. Should an employee dispute the performance standards expected this must be resolved. There is no point in monitoring disputed standards. Assuming the foregoing stages have been gone through, an employer may begin to monitor competence and the employee must be accorded progressive discipline as outlined in the employer’s disciplinary procedures. They will often provide separately for procedures where work performance or standards are concerned, distinguishing misconduct issues.

[15.34] Procedures (see para [13.36]) are likely to provide for a formal verbal warning; a first written warning; final written warning/suspension; dismissal. All will be noted on or copied to the employee’s personnel file, including the verbal warning, and confirmed by letter to the employee. The opportunity of representation is generally provided for disciplinary action at least from the first written warning on. 41

McGrath and Restrick v Fisher Field Construction & Farm Machines Ltd UD 927 and 928/ 1982.

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[15.35]

Redmond on Dismissal Law

[15.35] Progressive discipline as detailed by the Employment Appeals Tribunal in Richardson v H Williams & Co Ltd42 means that an employee has been given a justified warning that unless his or her work improved in a specific area then his or her job would be in jeopardy. The employee is entitled to: (i)

a reasonable time in which to effect improvement;

(ii)

a reasonable work situation within which to concentrate on such defects; and

(iii)

expect that, if an employee improves in the complained of area to the reasonable satisfaction of the employer, and such defect is not repeated, then such a warning cannot be solely relied on in relation to a dismissal for other reasons.

[15.36] The yardstick of reasonableness comes in, of course, at every stage. Thus, where work standards are unreasonable, an employer will not be able to justify dismissal for failure to meet them. In Hanlon v Smiths’ Dolphin’s Barn Ltd43 the Employment Appeals Tribunal remarked: ‘While we accept that an employer is entitled to set targets for a salesman, and to increase such targets, such increases must be reasonable having regard to all the circumstances.’

[15.37] The employer apparently had not given any reason why the agreed target should be increased to a level two and a half times that set less than a year earlier. Moreover, the claimant did exceed the original target set from a particular date. [15.38] An employer’s own duties may have a bearing on whether the employee has met his responsibilities. Management is under a general duty not only to define the work, as earlier described, but also to provide adequate supervision: it may be that an employee’s incompetence is more apparent than real and that proper training by the employer would have produced more efficient work performance: Bux v Toohey & Co Ltd.44

[15.39] An employer’s decision to dismiss is not likely to be upheld where it took on an employee knowing he was not better than other applicants for the position: McGrath v Short.45 The same position applies where an employer may have mistakenly overpromoted an employee: Lavery v Irish Silver Ltd.46 If an employee’s appointment is probationary, the test of fairness is adjusted to take into account a duty on the employee’s part to establish himself or herself, as well as the employer’s duty to give him or her a reasonable opportunity to do this. 42

43

44

45 46

Richardson v H Williams & Co Ltd UD 17/1979. On employee evaluations and data protection law see Kelleher, Privacy and Protection Law in Ireland (2nd edn, Bloomsbury Professional, 2015) Ch 20. Hanlon v Smiths’ Dolphin’s Barn Ltd UD 883/1982. See, too, McCabe v Unimade Ltd UD 549/1995 (targets were discussed in such a vague and aspirational manner that failure to adhere to them did not represent incompetence). Bux v Toohey & Co Ltd UD 137/1978; Bell v DEVTEC Ltd UD 340/1988; Hilton v Carrigaline Pottery Ltd UD 153/1979. McGrath v Short UD 315/1978. Lavery v Irish Silver Ltd UD 68/1977; also Sweeney v Gallaghers Hotel (Letterkenny) Ltd UD 566/1983.

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Capability, Competence or Qualifications

C.

[15.44]

QUALIFICATIONS

[15.40] ‘Qualifications’ are not defined in the 1997 Act, but they must be ‘for performing work of the kind which [the employee] was employed by the employer to do’. [15.41] Self-evidently they cover formal qualifications, technical or professional. They relate to an employee’s aptitude and ability. Thus, an employer’s aptitude tests can constitute ‘qualifications’47 but it is unlikely that, for example, honesty or trustworthiness would ever be regarded as ‘qualifications’ for a job.48 In any event an employer will be able to justify these requirements under other aspects of the legislation, to say nothing of the common law. [15.42] The qualification must relate to performing work of the kind an employee was employed to do. Hence a permit or authorisation would not be a ‘qualification’ unless it was substantially concerned with work performance and therefore with the aptitude or ability of the person to do the job.49 [15.43] Perhaps the most difficult problems in relation to competence and qualifications arise where an employee’s original qualification is no longer good or sufficient owing to new machines or techniques or to a desire on the employer’s part to improve work standards.50 Employees should be given a reasonable opportunity to obtain any necessary qualifications to improve up-skill.51 However, problems may arise where employees cannot acquire the technical expertise expected of them or a particular piece of paper to accompany their practical ability; or where paper qualifications are not accompanied by real and developing ability; or where someone with good qualifications is ‘outgrown’ by his or her job. The reasonableness of the employer’s approach in all these situations will be the determining element as to the fairness of dismissal. Redundancy may well be involved, depending on the extent to which the employer can demonstrate change in the organisational or industrial context52 that is relevant to these matters. [15.44] Qualifications will be subjected to the test of reasonableness. This was demonstrated, for example, when the Department of Education came in for serious criticism regarding its regulations as to qualifications for woodwork teaching in O’Brien v County Dublin Vocational Education Committee.53 The claimant had been working in a 47

48 49

50

51 52

53

Blackman v The Post Office [1974] IRLR 46. Dismissal for lack of qualifications essential for the job not unfair: Murphy v Dept of Education and Science and Others UD 66/2005; also O’Reilly v Laois County Council UD 1327/2005. Singh v London Country Bus Services Ltd [1976] IRLR 176. Blue Star Ship Management Ltd v Williams [1979] IRLR 16. On employment permits for nonnationals. see para [15.45] et seq. See Ryder & Byrne v The Commissioner of Irish Lights UD 81 and 8/1977, the first case under the UDA to be appealed to the High Court (16 April 1980). Coyle v Dun Laoghaire Vocational Educational Committee UD 993/1996. In the sense that, to survive within a given industry, the employer may need to adapt its workforce, rather than purely organisational issues: see Collins, Employment Law (2nd edn, OUP, 2010) Ch 9. O’Brien v County Dublin Vocational Education Committee UD 959/1995.

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[15.45]

Redmond on Dismissal Law

part-time capacity. The full-time employee whom he was temporarily replacing resigned. The claimant’s qualifications did not meet the requirements set down by the Department of Education and he could not therefore be appointed as a full-time teacher. He was later told that he (and certain other part-time teachers) were surplus to requirements. The EAT described the Department’s requirements as ‘unfair and totally unreasonable’: ‘If such standards and such regulations were made by employers in the private sector, they would be castigated for them. Here we have a Government Department setting down standards for a post, a necessary pre-condition for obtaining these standards being that somebody attend and qualify at a college in Limerick or in Gorey.’

The claimant was held to have been unfairly dismissed.

D.

CONTRAVENTION OF STATUTE

[15.45] The Unfair Dismissals Act deems a dismissal not to be unfair where it results wholly or mainly from the employee being unable to work or continue to work in the position which he or she held without contravention by him or by his employer of a duty or restriction imposed by or under any statute or instrument made under statute. This is subject to the general provision requiring substantial grounds justifying the dismissal. A straightforward example would be the loss of a driving licence by an employee whose job required him to drive, eg a traveling salesperson.54 [15.46] With the increase of migrant labour into Ireland, currently making up approximately 19% of the workforce,55 a number of cases in the last 15 years have concerned work permits. The Employment Permits Acts 2003 and 2006, the Employment Permits (Amendment) Act 2014 and associated statutory instruments56 govern applications, grants and renewals of employment permits for persons coming from outside the EU, the EEA, Switzerland except nationals from such states who are recognised refugees or other non-nationals whose permission to remain in the State includes a condition that they may work without an employment permit. A foreign national may not enter the service of an employer in the State or be in employment in the State except in accordance with an employment permit granted by the Minister for Jobs, 54 55

56

See Haugh and Haugh v Atlanta Nursing Home Ltd UD 490 and 491/1994. By the final quarter of 2015, there were 374,466 employed foreign nationals aged 15 years and over who had received a PPSN in the period 2002–2015 out of 1,983,000 workers in employment in Ireland: see Central Statistics Office, ‘Foreign Nationals: PPSN Allocations, Employment and Social Welfare Activity 2015’ Table 4 ; Central Statistics Office, ‘Quarterly National Household Survey: Quarter 4 2015’ . Employment Permits Act 2006 (Prescribed Fees and Miscellaneous Procedures) Regulations 2006 (SI 683/2006); Employment Permit Regulations 2014 (SI 432/2014); Employment Permits (Amendment) Regulations 2015 (SI 349/2015); Employment Permits (Amendment) Regulations 2016 (SI 33/2016); Employment Permits (Amendment) (No 2) Regulations 2016 (SI 363/2016); Employment Permits Regulations 2017 (SI 95/2017).

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Capability, Competence or Qualifications

[15.48]

Enterprise and Innovation under s 8 of the Act of 2006.57 An employer is prohibited from employing a foreign national in the State except in accordance with an employment permit so granted. There are nine types of employment permit outlined in the Employment Permits Regulations 2017. It was formerly the case that an employee had no ability to make an application for an employment permit while an employer could. However, since the introduction of the 2006 Act, it has been possible for employees to apply for and renew employment permits. Section 4 of the Employment Permits Act 2006 permits either the putative employer or the employee to apply for the permit.

[15.47] It was thus in the context of the pre-2006 regime that dismissal by an employer following its failure to renew a work permit almost certainly constituted unfair dismissal.58 However, it is likely that this shall no longer be the case for at least two reasons. First, under the former regime, the employee was dependent on the employer’s cooperation but now that an employee has the same right to apply for a permit, strictly speaking, the employer is not obliged to do anything. Second, and relatedly, the Employment Appeal Tribunal had found that it was an implied term in the contract of employment that employers are required to assist and cooperate in the work permit application process for employees.59 However, post-2006 Act the EAT repeatedly held that there is no obligation on the part of employer to apply for a work permit, even though the Tribunal recognised that the employer’s failure to cooperate caused an insurmountable burden.60 This indicates a shift in approach, suggesting greater responsibility on the part of the employee in this area. [15.48] Finally, the issue of illegality has been prominent in labour migration case law of late in this jurisdiction and in the United Kingdom. In Hussein v Labour Court,61 the High Court confirmed that a foreign national whose contract of employment had become void by virtue of an illegality – in this case, the illegality arose out of the worker’s lack of an employment permit – resulted in the unenforceability of employment protection.62 By contrast, in Hounga v Allen,63 the UK Supreme Court found that the application of the defence of illegality in the context of what was considered to be illegal trafficking of a minor for the purposes of unlawful employment would lead to injustice. 57 58 59

60 61 62

63

Employment Permits Act 2003, s 2. Dzenkaityte v Allied Stores Ltd UD505/2004. Dubyna v Hourican Hygiene Services Ltd T/A Master Clean Services UD781/2004; Golovan v Portulin Shellfish Limited UD428/2006. Dooky v Baxter Storey Ireland Ltd [2012] 23 ELR 336. Hussein v Labour Court [2012] 2 ILRM 508. Hussein v Labour Court [2012] 2 ILRM 508. See Dewhurst, ‘The Denial of Labour Rights to Irregular Immigrants under Irish Labour Law’ (2012) 3 ELLJ 300; Dewhurst, ‘Exclusionary or Inclusionary Constitutional Protection: Protecting the Rights of Citizens, Non-Citizens and Irregular Immigrants under Articles 40–44 of the Irish Constitution’ (2013) 49 Ir Jur (ns) 98. The decision in Hussein was subsequently overturned on appeal to the Supreme Court on the narrow basis that there was no ground for judicial review of the Labour Court’s decision: [2016] 1 ILRM 508. Hounga v Allen [2014] 1 WLR 2889; and see Bogg and Green, ‘Rights are not just for the Virtuous: what Hounga means for the Illegality Defence in Discrimination Torts’ (2015) 44 ILJ 101.

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[15.48]

Redmond on Dismissal Law

A majority of the Court applied the following three step test to consider whether the defence of illegality would defeat other policy issues: Whether the claimant’s illegality ‘inextricably bound up’ with the claim; (i) (ii)

the public policy considerations underlying illegality in the area of the law in question (in that case, anti-discrimination law); whether public policy considerations countervail against the denial of claims on the basis of illegality.

The Court concluded that, first, the claimant’s illegality was not inextricably bound up with the claim given that it merely formed part of the context of racial abuse and the claimant’s vulnerability; second, the necessary balancing exercise favoured the claimant insofar as the claimant had not intentionally acted unlawfully and it was not implausible that employers would not be deterred from employing illegal migrants if the claimant’s case was dismissed; and, finally, the public policy considerations overwhelmingly favoured the claimant in light of the ILO and ECHR law and policy on trafficking and anti-discrimination. The judicial consideration of the illegality questions in both Hussein and Hounga indicates the complexity of the various factors at stake in such cases: these questions are likely to loom large in future litigation and legislation.

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Chapter 16

Conduct A.

GENERAL

[16.01] The 1977 Act uses the term ‘conduct’, not ‘misconduct’. The phrase need not mean anything that would amount to ‘misconduct’ in the ordinary sense.1 The conduct must, however, refer to actions of such a nature, whether done within the course of employment or outside thereof, that reflect in some way on the employer/employee relationship.2 As the term is not legally defined, the employee’s conduct is a matter of fact to be determined by the Workplace Relations Commission. An employee may be dismissed for gross misconduct,3 for a single breach of discipline or for misconduct consisting of a series of acts and following a series of warnings/suspension. [16.02] The High Court has summarised the legal framework governing conduct-based dismissals under the Unfair Dismissals Acts in the following terms: ‘The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal.’4 1

2 3

4

Waters v Kentredder (Irl) Ltd UD 3/1977. During the Report Stage of the Bill in Dáil Éireann the Opposition spokesman (later Minister for Labour) attempted unsuccessfully to have the relevant subsection modified to read: ‘the conduct of the employee which results in damage to the business or is detrimental to the business of the employer or to the performance of the employee in the execution of his duties.’: Dáil Debates 2 March 1977, Vol 297, Cols 657–9. The Deputy was reassured by the Minister that ‘We are talking in an individual relations context and the conduct of the employee has a relatively narrow application in that context.’: Col 658. See discussions on Committee Stage also: Vol 296 (25 January 1977) Cols 86–98. Thomson v Alloa Motor Co Ltd [1983] IRLR 403. In contrast to the Irish Act, summary dismissal for serious misconduct is dealt with separately in para 11 of ILO Recommendation No 119. The Recommendation provides on the one hand that the worker concerned may be deprived of certain rights (period of notice, or compensation in lieu thereof, separation benefits) and on the other hand that certain additional safeguards and procedures should be observed. For instance, dismissal should take place only where the employer cannot be expected in good faith to take any other course; there is an implied waiver by the employer of the right to dismiss and by the worker of the right to appeal if such action has not been taken within a reasonable time; further, the worker has a right before dismissal becomes finally effective to state his case promptly and to be appropriately assisted. JVC Europe Ltd v Panisi [2011] IEHC 279, [2012] ELR 70 at para 5, p 74.

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[16.03]

Redmond on Dismissal Law

[16.03] Gross misconduct has recently been described by the Workplace Relations Commission as being ‘at the zenith of possible charges relating to a disciplinary procedure;’5 similarly the Labour Court in a 2016 determination referred to summary dismissal as being ‘the nuclear weapon of the employers arsenal of disciplinary sanctions’.6 The Employment Appeals Tribunal in Lennon v Bredin7 referred to serious misconduct in the following terms: ‘We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category.’

[16.04] An employer’s honest belief will be of influence. In one of its final ‘legacy case’ determinations prior to the establishment of the Workplace Relations Commission, the Employment Appeals Tribunal held: ‘What is required of the reasonable employer is to show that s/ he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate.’8

[16.05] It is generally possible to justify dismissal for a first offence of gross misconduct. Many disciplinary procedures provide that an employee can be dismissed instantly for ‘gross misconduct’ although this will not be conclusive for the purposes of the legislation and the adverb ‘instantly’ (or ‘summarily’) is not to be literally interpreted. Whether behaviour constitutes gross misconduct is far less likely to ground an appeal from a determination of the Workplace Relations Commission (WRC), than the broader issue of reasonableness. Gross misconduct generally presupposes intentional and deliberate misconduct,9 but gross negligence may also amount to gross misconduct.10 As the English Court of Appeal has recently stated: ‘The focus is on the damage to the relationship between the parties. Dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence.’11

[16.06] The High Court has provided a list of ‘premises’ which must be established to support an employer’s decision to terminate employment for misconduct in Frizelle v New Ross Credit Union Ltd:12 ‘1

5 6 7 8

9

10 11

12

The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

A Security Guard Supervisor v A Security Company ADJ-00003427 (30 March 2017). Vitalie Vet v Kilsaran Concrete, Kilsaran International Ltd [2016] ELR 237. M160/1978. Abdullah v Tesco Ireland plc UD 1034/2014, citing Noritake (Irl) Ltd v Kenna UD 88/1983 and Martin v Audio Video Services Centre Ltd UD 617/1991. Doyle v JJ Carron & Co Ltd UD 236/1978. Also Devlin v Player & Wills (Irl) Ltd UD 90/ 1978. Adesokan v Sainsbury’s Supermarkets Ltd [2017] ICR 590. Adesokan v Sainsbury’s Supermarkets Ltd [2017] ICR 590 at para 23 per Elias LJ with whom David Richards and Longmore LLJ agreed. Frizelle v New Ross Credit Union Ltd [1997] IEHC 137.

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Conduct

[16.08]

2

Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3

The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment.

4

The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.’

(1) The common law [16.07] The common law can provide useful categorisations of (mis)conduct, eg theft,13 assault, deliberate refusal to obey a legitimate order, gross negligence. It can assist the WRC in determining the reasonableness of the employer’s attitude:14 the basic core of recognised categories of gross misconduct derives from the duties of employees which the common law applies in the contract of employment.

[16.08] However, it must be stressed that the role of the common law is one of assistance only. This is nowhere more apparent than in relation to employee conduct amounting to a criminal offence. Where there are serious allegations of criminal misbehaviour, at least where they are disputed, these must always be the subject of the most careful investigation. The investigation must focus no less on any potential evidence that may exculpate or point to the innocence of the employee as on evidence directed towards proving the charges against him: A v B.15 This applies above all where an employee is suspended and unable to contact potentially relevant witnesses. The employer’s role in the context of potential Garda involvement is discussed at para [13.104]. The particular situation of crimes committed outside the employer’s workplace is considered later in this chapter at para [16.21]. The function of the WRC is not to determine the employee’s guilt or innocence of the alleged crime but to consider the behaviour of the employer in terms of the statutory test of fairness. 13

14

15

It may also be consulted as a standard in the absence of disciplinary rules on the grounds that certain acts of serious misconduct are known or understood to be such by employees: see Fulham v Curragh Knitwear Ltd UD 76/1978. For instance, the duty of mutual trust and confidence, duty of care, duty of honesty, duty of obedience to lawful orders, duty of faithful service. If an employee breaks any of these wilfully this may be viewed as a breach of an essential contractual condition. A v B [2003] IRLR 405.

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Redmond on Dismissal Law

[16.09]

(2) ‘Last straw’ dismissals [16.09] A dismissal for conduct may be a ‘last straw’ dismissal, ie the conduct which immediately preceded the dismissal, together with prior incidents of misconduct, constitute ‘the straw that breaks the camel’s back’ for the employer. In Donnelly v Arklow Pottery Ltd16 the Employment Appeals Tribunal said: ‘For there to be a “last straw” dismissal there has to be a blameworthy act on behalf of the employee established to the satisfaction of the employer judged by the standards which incorporate the following aspects: (i) (ii)

the employer must believe that there was misconduct on the part of the employee; such a belief must be sustained by evidence to establish the fact as existing on the balance of probabilities. Any investigation required to establish such facts must be reasonably full and fair, judged by the standard of a reasonable employer acting in a bona fide way within his resources to establish the truth or otherwise of any allegation and such of course involves giving to the employee knowledge of what he or she is accused of and giving to the employee a reasonable opportunity to defend herself with such representation as may be reasonable having regard to procedure, agreements and the realities of good industrial practice.’

To which needs to be added that the ‘blameworthy act’ need not be such as, of itself, provides a substantial ground for the dismissal. It will be the accumulation of blameworthy acts over time that, taken together, make the employee’s most recent conduct the ‘last straw’. The following sections detail the most frequently encountered forms of conduct in employment for which an employee may be discharged.

B.

DISHONESTY

[16.10] Dishonesty, no less than ‘misconduct’, is not a term of art. The phrase covers a multitude of activities from wrongs which are criminal in character, such as theft, embezzlement, industrial espionage and falsification of company records, to wrongs comprising untruths, misleading statements and so on. An act of dishonesty ruptures trust. The UK EAT takes a two-stage approach to dishonesty. First, it must be decided whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If so, then second, consideration must be given to whether the person concerned must have realised that what he or she was doing was by those standards dishonest.17 [16.11] It is not for the employer, nor the WRC, to establish the guilt or innocence of the employee. The WRC will look to see whether there are reasonable grounds to sustain the employer’s suspicion that an employee has acted dishonestly. There is no question of 16

17

Donnelly v Arklow Pottery Ltd UD 572/1990. See London Borough of Waltham Forest v Omilaju [2005] IRLR 35 on final straws in the context of the implied term of trust and confidence. Omilaju was referred to the by the Irish Supreme Court in Berber v Dunnes Stores Limited [2009] ELR 61 at 71. John Lewis plc v Coyne [2001] IRLR 139. ‘For all professional persons ... a finding of dishonesty lies at the top end in the spectrum of gravity of misconduct’: Patel v General Medical Council [2003] IRLR 316 at para 10 per Lord Steyn.

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Conduct

[16.14]

establishing mens rea. In Looney and Co Ltd v Looney18 the EAT summarised as follows: ‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.’

[16.12] Relevant considerations in assessing the employer’s reasonableness may include whether the employee’s behaviour was deliberate, whether the employer delayed its investigation,19 whether the employee attempted to cover up the conduct, or denied it, or attempted to change his story during the employer’s investigation, whether the employer’s rules, expressed in the contract of employment or otherwise, adverted to the wrong in question so that the employee knew that what he was doing was a disciplinary matter, whether the employee was unable to explain his behaviour,20 or did not immediately refute an allegation of dishonesty when put to him by his employer.21 [16.13] A blemish-free record in the past, or long service, are unlikely to render a dismissal for dishonesty unfair, as it is regarded as a serious infraction. It may not be relevant in judging the employer’s decision that an employee has not personally gained from his behaviour or that there is no proof that an employee has personally gained from the dishonesty.22 Equally it need not be the employer who suffers; it could be a customer or supplier which is affected by the employee’s dishonesty.23 Although trust must be regarded as integral to all employer/employee relationships, sometimes an employee is described as belonging to a ‘high trust’ category, as in Hevey v Dublin Port & Docks Board24 where the claimant was dismissed for taking six tins of fruit. However, ‘high trust’ should be expected from all employees: one cannot differentiate between degrees of trust.

(1) Employee admission [16.14] Where an employee admits to dishonest conduct self-evidently it will not be necessary for an employer to embark upon the sort of investigation that would be 18

19 20 21

22 23 24

Looney and Co Ltd v Looney UD 843/1984. See also Higgins v Iarnród Éireann UD 57/1991; Kelly v An Post UD 974/1986; Curley v Texaco (Irl) Ltd UD 829/1986. In John Lewis v Coyne [2001] IRLR 139 the EAT described the test for dishonesty as ‘not simply objective’. Burchill v Irish Printed Circuits UD 175/1987. Larkin v Irish Rail UD 603/1988; see, too, Hestor v Dunne Stores Ltd [1990] ELR 13. Something the EAT described as ‘incredulous’ to it, in Mullen v Monaghan Mushrooms UD 794/1994. Walshe v Hill Ltd UD 501/1989. Hardyside v Tesco Stores (Irl) Ltd UD 932/1982. Hevey v Dublin Port & Docks Board UD 161/1978; see, too, White v Cadbury (Irl) Ltd UD 44/ 1979; Devlin v Player & Wills (Irl) Ltd UD 90/1978; Williams Transport Group Ltd v McCafferty UD 152/1978; Sloan & Co v Dunne UD 69/1978; Caffrey v Avonmore Creameries Ltd [1991] ELR 51; McDermott v Kemek Ltd/Irish Industrial Explosives Ltd [1996] ELR 233.

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[16.15]

Redmond on Dismissal Law

necessary if reasonable grounds were needed to confirm its suspicions.25 However, it will still be advisable to allow an employee the opportunity to show cause as to why the employer should not dismiss. This will enable the employer to form a view on the reasonableness of its decision to dismiss in the light of all the circumstances.26

[16.15] An employer should not equate video footage, for example, of an employee taking money from the till with an admission of dishonesty by him such that it remains only for the employer to speak the words of dismissal. In the event of video evidence, an impugned employee should be suspended pending investigation in the normal way.27 In addition to using CCTV, video cameras, test purchases, private investigators, handwriting experts and other aides (subject to data protection legislation) in its investigation of dishonesty, the circumstances may require that an employer ‘entrap’ an employee: Adams v Farrell.28

(2) Employer suspicions regarding more than one employee [16.16] It may be impossible for an employer to direct its suspicions against one employee, because the alleged dishonesty may be the work of one or more employees, or possibly all. In circumstances where an employer reasonably suspected that one or possibly two employees must have acted dishonestly, the employer was held not to have dismissed unfairly when it let them both go.29 It is not necessary for the employer in such circumstances to believe that either of them acted dishonestly. [16.17] Where a group of employees or any one or more of them could have committed a particular offence, it will be advisable for the employer to call them together, outline its concerns, and require the perpetrator(s) to desist forthwith. The employer should advise the group that if the dishonesty continues, and its investigations fail to identify the wrongdoer(s), it will be forced to dismiss every employee who is a member of the group. [16.18] The UK EAT described five pre-conditions for entitlement to dismiss a group of employees. Provided the employer’s beliefs are based on solid and sensible grounds at the date of dismissal, the employer may dismiss each member of the group if:

25 26

27

28

29

(i)

an act was committed which would justify dismissal if committed by an individual;

(ii)

there was a sufficiently thorough investigation by the employer, with appropriate procedures;

The Royal Society for the Protection of Birds v Croucher [1984] IRLR 425. O’Callaghan v Dunnes Stores [2014] ELR 213; Kilsaran Concrete v Vitalie Vet [2016] ELR 237; and Dunne v Securitas [2017] ELR 132. Maguire v Funny Biz Ltd UD 879/1992; Martin v Audio Video Services Centre Ltd [1992] ELR 216; MacLehose v R & G Taverns Ltd [1999] ELR 180; Pacelli v Irish Distillers Ltd [2004] ELR 25; Farrell v Kepak Group (Meat Division) UD 1202/2013; Kearney v Flexhaven Ltd UD 463/2013. Adams v Farrell UD 64/1993; Meighan v Power Supermarkets Ltd UD 610/1995. See para [13.90] et seq, above. Monie v Coral Racing Ltd [1980] IRLR 464.

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Conduct (iii) (iv)

(v)

[16.21]

as a result of that investigation the employer reasonably believed that more than one person could have committed the act; the employer acted reasonably in identifying the group of employees who could have committed the act and each member of the group was individually capable of doing so; and as between the members of the group, the employer could not reasonably identify the individual perpetrator.30

In sum, an employer will be slow to dismiss a group of employees and will do so only after very careful and thorough investigation.31

(3) Secret profits/false expenses [16.19] The WRC is likely to take a very strict line on secret profits. Where a claimant was found to have accepted at least one gift without the employer’s knowledge and led sales representatives to believe that their product would not be installed unless a gift was forthcoming, its predecessor, the EAT, had no hesitation in finding substantial grounds justifying dismissal: Connaughton v Ryan’s Hotel plc.32 Another way of putting this is that there was a serious breach of trust, the language used by the employer in Murray v Michael Grant Ltd t/a Michael Grant Opel Centre33 where the employer suspected that ‘backhanders’ for sub-contract work were being paid to some staff. Dismissal was upheld. [16.20] Where an employee is dismissed for falsifying business expenses it is no justification to contend, for example, that the expenses claimed were to reimburse friends with whom the employee stayed on the dates in question; nor that it was the practice of other employees to write out false ‘receipts’ for meals. An individual who is dismissed for falsifying business expenses and who admitted that he did not stay or dine in the hotels on the dates in question was held to have been not unfairly dismissed, notwithstanding that warnings had not been issued to him and that he was not given the opportunity to have representation at the two meetings with management prior to his dismissal: McDonald v Flanagan and Co Ltd.34

(4) Crimes outside employment [16.21] If what could be described as a criminal offence is committed by an employee during the course of employment it may be dealt with as an alleged wrong in the context of the employment relationship.35 Criminal offences attempted or committed outside employment are to be distinguished. They can present particular difficulty, although 30

31 32 33

34 35

Parr v Whitbread plc [1990] IRLR 39. There is no ‘all or none’ principle in the dismissal of a group: Frames Snooker Centre v Boyce [1992] IRLR 472. Hubbard v McMullen and Gillen Ltd UD 580 at 607. Connaughton v Ryan’s Hotel plc UD 391/1987. Murray v Michael Grant Ltd t/a Michael Grant Opel Centre UD 559/1987. The High Court of England and Wales held there was a duty of disclosure by an employee fiduciary in Tesco Stores Ltd v Pook [2004] IRLR 618. See also Re Baumler (UK) Ltd [2005] BCC 181. McDonald v Flanagan and Co Ltd UD 648/1990. See, in particular, the caveats described at para [13.104] above.

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there is evidence of an acceptance of the view that trust is the underlying legitimate concern of an employer in these cases.

[16.22] An early view appeared in Clarke v CIÉ.36 There the EAT found a dismissal unfair where the employee, a carriage cleaner, was found guilty of house breaking and larceny and given a suspended sentence. The EAT was mindful of a criminal court’s tendency towards leniency for first offenders. If an employer dismisses a person immediately after a court has exercised leniency ‘because of the fact of employment’ the intention of the court might be frustrated. Moreover ‘a blanket policy of dismissal upon conviction for an offence unconnected with employment is at variance with the wider public good’. The EAT gave short shrift to the argument based on the need to trust an employee. The claimant’s job was ‘about as menial as any job could be, and if his was a position of trust, it is difficult to think of any job that is not’.37

[16.23] This line of reasoning is not without difficulty. It is, in fact, difficult to think of any job that does not involve trust. Opportunities to betray trust exist in every employment. For example, an unencrypted memory stick containing market-sensitive data, or a set of papers left lying around a boardroom or discarded in a wastepaper bin, may be accessed by anyone. [16.24] More recently, in Crowe v An Post38 the Employment Appeals Tribunal gave detailed consideration to how an adjudicating body should approach an unfair dismissal claim arising from criminal conduct of an employee outside of work. It is worth setting out its analysis in full: ‘There is considerable uncertainty as to whether an employee’s conviction for a crime committed outside the workplace would entitle the employer to dismiss the employee. In such circumstances the employer would argue that the bond of trust had broken down. The matter is not that straightforward. The basic principle is that usually an employer’s jurisdiction over misconduct of the employee ends at the company gate. A dismissal for misconduct outside the workplace can only be justified where there is sufficient connection between the crime committed and the employee’s work, in such a way that would render the employee unsuitable or capable of damaging the employer’s reputation. The guiding principle in cases involving misconduct outside the workplace is that the employer must be able to show a connection between the misconduct and the company’s operational requirements. As a general rule the employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some legitimate interest in the conduct of the employee. An interest would normally exist where there is some nexus between the employee’s conduct and the employer’s business. The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to business, employee relations or affects the reputation of the company. The test is: has the out of work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer’s business? If it has then the employer has the right to institute disciplinary proceedings. Whether this gives the employer the right to impose sanctions, up to and including dismissal, will depend on the particular circumstances of each case. No two cases are the same and each case must be decided on its own particular merits.’39 36 37 38 39

Clarke v CIÉ UD 104/1978. Clarke was appealed to the Circuit Court where it was settled prior to hearing. Crowe v An Post [2016] ELR 93. Crowe v An Post [2016] ELR 93 at 97.

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[16.27]

Some connection to the employee’s work or work environment is generally required before an employer can legitimately discipline or dismiss an employee charged with or convicted of a crime outside employment. Where an employee commits a crime outside employment which affects a neighbouring employer, and could seriously undermine the relationship between the two employees that could be a legitimate concern in deciding whether or not to dismiss: Owen v Superquinn Ltd.40 The mutual bond of trust between employer and employee is arguably broken. Similarly in Martin v Dunnes Stores (Enniscorthy)41 the claimant was one of four defendants who having drink taken, broke into, entered and stole from the premises of another retailer in the town. The offences were relayed in the local newspaper. The dismissal was upheld as not unfair.

[16.25] Where a neighbouring garda sergeant was assaulted by an employee in the early hours of the morning, the employer had difficulty establishing that the criminal conduct affected the proper relationship between the parties: Noonan v Dunnes Stores (Mullingar).42 The Circuit Court (Judge Neery) was influenced by the fact that the employer heard of the assault some time after the event, by which time the matter had died down. Moreover, the assault was not of a ‘very serious’ nature, and the employee had no previous involvement with the gardaí. Nonetheless, Judge Neery found it ‘probably undesirable that [the employee] should be returned to the employment’ even though the court found the dismissal was unfair. The court made an award of damages, modifying the EAT’s determination of reinstatement. [16.26] An employer may potentially fairly regard drug or drug-related offences by an employee as grounds for dismissal. In Mathewson v RB Wilson Dental Laboratory Ltd43 the British EAT upheld a decision by an Industrial Tribunal that an employer had not acted unreasonably in dismissing a dental technician on grounds that he had been arrested and charged during his lunch break after purchasing a small amount of cannabis. Among the factors that could be considered were the possible influence on other members of staff and the suitability of continuing to employ the employee in the job for which he was employed. The decision to dismiss came within the band of reasonable responses for the employer.44 [16.27] Mathewson must be contrasted with a more recent decision of the Workplace Relations Commission in this jurisdiction in April 201645 which also contains detailed analysis of the permissibility of dismissal for out-of-work conduct the subject of criminal action. In this case the employee was a seasonal worker employed as a general operative with the respondent company. He appeared in court on charges of possession of drugs for his own personal use and when asked by the District Judge if he was employed, his solicitor identified the name of his employer. This was subsequently 40 41 42 43 44

45

Owen v Superquinn Ltd UD 932/1982. Martin v Dunnes Stores (Enniscorthy) UD 571/1988. Noonan v Dunnes Stores (Mullingar) (14 July 1989) CC. Mathewson v RB Wilson Dental Laboratory Ltd [1988] IRLR 512. See, too, Keyes v B & I Line plc UD 959/1991; the decision in White v Irish Rail UD 364/1993 is distinguishable on its facts: the employer was found not to have conducted its own investigation of the alleged possession of cannabis by the employee. ADJ-00000403 (12 April 2016). See also Browne v The Mountview/Blakestown/Hartstown/ Community Drugs Team UD 1447/2014.

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reported in a local newspaper. The company regarded this action as breaching the trust between employee and employer and bringing the employer into disrepute and the claimant was dismissed. Referring to Crowe, above, the Adjudication Officer noted that the criminal case had not come to the District Court until March 2015, which was some two years after the commission of the drugs offence. During that two year period, the claimant continued as an employee of the respondent. The Adjudication Officer noted that the claimant concentrated on his job and indeed he was complimented by his supervisor on his improved attitude, focus and the standard of his work.

[16.28] Finding in favour of the claimant and directing that he be re-engaged, the Adjudication Officer emphasised the fact that the offence for which the claimant was convicted had taken place approximately two years earlier and the complainant had worked without any problems in the intervening period. Furthermore, at no stage during that period or after the publication of the article in the local newspaper did any member of the public contact the respondent to voice concern at the incident or to suggest that the reputation of the respondent was tarnished. There was no evidence that his continued employment would have affected co-workers or his supervisor negatively – in fact, his supervisor was supportive. The Adjudication Officer also emphasised that the claimant worked as a general operative and could not reasonably have been considered to be the public face of the organisation. The Adjudication Officer was accordingly satisfied that there was no reputational damage to the respondent. [16.29] An example of a crime committed outside employment with a clear nexus with the employment is Barry and French v Irish Linen Service Ltd,46 in which the claimants were dismissed because of their involvement in an attempted robbery of a public house. The company had received a report naming certain of its employees as being involved in the attempted robbery, and management’s investigation received confirmation that the claimants had been involved, from two different sources. One of the company’s vehicles had been used in the attempted robbery. This factor provided a link between the attempted offence and the employment. Management also discovered that statements had been made to the gardaí by two persons implicating, among others, the claimants. The employer gave evidence that the matter was viewed as extremely serious by the company and as something that could bring it into disrepute. The EAT found that the decision to dismiss was not unreasonable as the company ‘had substantial grounds for believing the claimants were involved in the attempted robbery’. [16.30] In Aer Rianta v Greene47 fund irregularities were uncovered in the Airport Police Fire Service Sports and Social Club. An employment nexus was there. The general manager felt the company should get involved as members of the club were members of the Airport Police who were required to conform to the highest standards of trust. The company’s case was that the claimant was fairly dismissed for conduct which shattered the trust and confidence necessary between employer and employee. The EAT determined that the nature of the employment was such that mutual trust and confidence were implicit between employer and employee; that having been put on notice of the 46 47

Barry and French v Irish Linen Service Ltd UD 905 and 906/1986. Aer Rianta v Greene UD 598/1987.

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[16.33]

disquiet among members concerning affairs of the club, the employer was entitled and indeed obliged to investigate; and moreover, its investigations were unbiased and fair from a procedural perspective.

[16.31] In contrast, the absence of a work nexus in Brady v An Post48 was fatal to the employer’s defence. The claimant had been convicted of criminal assault. The EAT took the view that as a cleaner he was ‘not in a position of special trust’. There was no evidence that the conviction made him unacceptable to others or that the employer’s reputation had been adversely affected.

[16.32] Where an alleged crime is committed outside employment, an employer will have no control over whether and, if so, when criminal proceedings will be initiated. The negative aspects of garda involvement at the time when an employer is considering disciplinary procedures, described at para [13.104], will also apply here. The employer may learn of the crime only after a court decision. The EAT had the following observations to make in Brock v An Post:49 ‘The circumstances in this case should be distinguished from other situations where matters of this kind are sub judice. Clearly where criminal proceedings are pending before the courts a defendant/claimant would not be obliged to do or say anything which might prejudice his/her position in respect of such proceedings. This case, however, differs in that the proceedings had been brought and dealt with and a determination had been made prior to the completion of An Post’s investigation of the affair … An Post were entitled to rely on [the record of the District Court] on its face value notwithstanding claims as to its authenticity. In these circumstances it is the view of the EAT that at that point in time the onus to disclose information and give an explanation to the complaints made against him shifted onto the claimant’s own shoulders. His omission to offer any assistance to his employers in their investigation made him in this instance very much the author of his own misfortunes. Thus, while the respondent acted in the absence of any explanation from the claimant, their investigation of the matter was not unfair in that respect.’

[16.33] The EAT also tackled the suggestion that the investigation should have been postponed until completion of the criminal proceedings: ‘Clearly the matter had been determined and the record was correct upon its face until such time as the Circuit Court overturned the District Court order in respect of the larceny conviction. This it is noted occurred some three months after the date of dismissal and indeed nearly two years after the District Court conviction was first recorded. In this respect this case may be contrasted with the case of Kelly v CIÉ50 where the dismissal took place while proceedings were pending. This is clearly not the case here. There was therefore no onus upon An Post to postpone the matter further than they did. Finally the EAT are satisfied that the argument that the claimant should not be penalised for relying upon his legal advice is one without merit in this case. Whether he takes advice or not, the claimant at all times is accountable for his own acts and omissions. It is clearly a matter for the claimant himself whether or not to rely upon such advices as are tendered. The responsibility for his actions however, remains at all times his own.’

The EAT was satisfied that the dismissal of the claimant was not unfair. 48

49 50

Brady v An Post UD 463/1991. This case subsequently came before the High and the Supreme Courts on the question of remedies. Brock v An Post UD 57/1987. Kelly v CIÉ UD 28/1978.

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[16.34] The potential difficulties for an employer regarding dismissal for crimes outside employment is illustrated by the Circuit Court decision in Rochford v Royale Alarms Ltd.51 The EAT had upheld the employer’s decision to dismiss an employee for failure to comply with a pre-contract condition of employment that he should fully inform the employer (a security company) if he had ever been in trouble with the police. The claimant had replied ‘no’ to the question as to whether he had ‘ever been in trouble with the police either in Ireland or England’. Later it came to the employer’s notice that the claimant had been convicted of a criminal offence in England (of which he had later been acquitted on appeal). The claimant conceded this before the EAT but argued that as he had been acquitted on appeal, he should not therefore have been dismissed. The EAT construed the employer’s question (‘Have you ever been in trouble with the police?’) not in a legalistic way but as one legitimately requiring full disclosure by the claimant. In not fully informing the employer the claimant had brought about a breach of trust. [16.35] The Circuit Court (Judge Clarke) upheld the claimant’s appeal. The judge was not prepared to hold that the question asked by the employer covered someone charged with a criminal offence and acquitted ‘the more so where the [Unfair Dismissals] Act puts such an onus on the employer’. The claimant had spent 14 months in prison while awaiting his appeal. The court described the employer’s inquiries as ‘far from complete if that fact was not elicited’. It could only have remained undisclosed ‘because of an inadequate hearing’. The judge remarked: ‘It may be that if the whole of the facts as now known were taken into account, my decision would be different.’

An employer in phrasing pre-employment questions must give very careful consideration to their formulation, and ideally should seek advice.

[16.36] A crime committed outside work may not impact on trust but may lead to an employee’s dismissal for quite a different reason, because the consequences make it impossible for her to do the job for which she is hired, for example, where a driving licence is suspended: O’Connor v Astra Pumps Ltd.52 The dismissal was found to be not unfair as the claimant was unable to carry out the work for which she was employed.53 Where an employer’s disciplinary procedure provided for dismissal when an employee had been convicted of an offence, the EAT found that dismissal of a criminal charge under the Probation of Offenders Act was distinguishable and that it was unfair of the employer to have dismissed the employee in such circumstances: Dowling v AO Smith Electric Motors (Ireland) Ltd.54

(5) Social welfare fraud [16.37] Where social welfare fraud may be perpetrated by an employee, there is arguably a sufficient employment nexus (at its simplest, the employee is misrepresenting 51

52 53 54

Rochford v Royale Alarms Ltd UD 218/1988 (15 November 1988) CC. Procedural matters as ever are critical: Grimes v Graham O Sullivan UD 425/2001. O’Connor v Astra Pumps Ltd UD 486/1986. See s 6(4)(d) of the Unfair Dismissals Act 1977, para [12.09]. Dowling v AO Smith Electric Motors (Ireland) Ltd UD 1074/1995.

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[16.40]

his contractual status to a third party linked inextricably to the employer by virtue of PRSI rights and obligations). This has been an area of inconsistency and perplexity in the jurisprudence to date. Some decisions in upholding the employee’s dismissal stress the importance of trust. In McEvoy v International Contract Cleaners (Ireland) Ltd55 the claimant was dismissed because he was allegedly involved in a social welfare fraud. The employer had spoken to the claimant who had told him ‘it was thirteen days he had claimed for and that he was paying it back’. It was subsequently discovered by the employer that this information was incorrect and according to the employer at a further meeting the claimant conceded this. The claimant told his employer he had received an amnesty from the Department of Social Welfare and was paying back the money. This too was found to be false according to the employer. The employer’s defence rested on the fact that it did contract work for the public sector including Government Departments and would have to be seen to enforce the law in relation to its employees; also, it contended, the trustworthiness of the claimant was in question. The claimant told the EAT he was currently making repayments to the Department. By a majority the claim was dismissed. In a similar vein, a claim was dismissed where the employee’s contract of employment was terminated because over a four-year period while he was working he claimed and received disability benefit: Higgins v McNaughton Twisteel Reinforcements Ltd.56 The employee was dismissed because ‘the trustworthiness had gone from the relationship with him’.

[16.38] An employer faced by such circumstances may request the employee to sign an authorisation letter allowing the Department of Social and Family Affairs to release information regarding claims made by him. If the employee refuses, this can be taken into account by the employer in a disciplinary enquiry: Lynch v Dublin Corporation.57

[16.39] In Kiernan v Dublin Corporation58 it was alleged by the employer that the claimant had been drawing disability benefit from the (then styled) Department of Social Welfare while at the same time working for the Corporation. An official from the Department confirmed to the EAT that medical certificates had been received by the Department on behalf of the claimant for the periods in question and, on foot of these certificates, disability benefit had been paid out. The employer successfully contended that the fraud in which the claimant was involved was fraud against the State (mainly) but also, the taxpayer, and the Corporation. It argued that the Corporation should not employ persons who have defrauded the State as it brings an odium on the Corporation and on the rest of its employees. Trust between the claimant and the respondent was wholly destroyed.

[16.40] A contrary, and unsatisfactory, view has been expressed in determinations such as Wasser v Dublin Corporation59 where the EAT did not consider that an alleged fraud 55 56 57 58 59

McEvoy v International Contract Cleaners (Ireland) Ltd UD 830/1986. Higgins v McNaughton Twisteel Reinforcements Ltd UD 478/1987. Lynch v Dublin Corporation UD 193/1985. Kiernan v Dublin Corporation UD 436/1988. Wasser v Dublin Corporation UD 42/1989.

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on the Minister for Social Welfare was employment-related ‘such as would entitle an employer to discipline the employee for such conduct’. According to the EAT: ‘It is for the Minister for Social Welfare to cause charges to be brought and ascertain whether any offence has arisen and penalties arising therefrom may be imposed in accordance with social welfare legislation. It is the view of this EAT that it is not for the respondent or any employer to substitute his own enquiries and penalty for that laid down by the relevant legislation, in this case section 115 of the Social Welfare (Consolidation) Act 1981. The EAT sees no public policy which would require or entitle the respondent or any employer to act outside of the proper legislative process and in fact considers that public policy would turn its face against what the respondent did in this case.’

[16.41] This decision fails to make the necessary distinctions. No one would dispute that there is relevant legislation dealing with social welfare fraud. However its existence cannot preclude an employer from legitimately pursuing investigations in a quite different context, as appropriate to the employment relationship.60 Employers with sensitivity and exposure to social welfare fraud by their employees should take the precaution of naming such wrongs as offences which strike at the trust relationship between the parties, thereby attracting dismissal in their disciplinary code. [16.42] The EAT adopted a novel approach, which does not seem to have been repeated, in Austin Morris v Peter Keogh (Upholsters) Ltd.61 The employee on the evidence had obtained unemployment benefit over approximately the last 12 months while still in fulltime employment. He had obtained it on the basis of a declaration that he was unemployed when he was in full-time employment. According to the EAT the contract of employment in all respects was a lawful and valid one and not itself tainted with any illegality. However, the EAT went on to say that it: ‘... considers that the valid contract of employment is unenforceable at the suit of the claimant/employee by virtue of public policy setting its face against such enforcement. … Public policy does not permit the person who wrongfully declares that he is unemployed during a particular period and thereby gains monetary benefit from the State, contrary to law, to found a claim of statutory or constitutional right on the fact that he was gainfully employed during that same period. The EAT determines that the contract of employment in this case is unenforceable at the suit of the claimant for the purposes of this legislation and we dismiss his claim under the Unfair Dismissals Act and the Minimum Notice and Terms of Employment Act 1973.’

This decision is without precedent. It does not belong to the class of ‘illegality cases’ as the contract of employment was itself valid and enforceable. There was no collusion with the employer. The doctrine of public policy is strictly limited by precedent. It was very novel for the EAT to have rejected the claim – not the contract – because it thought that to hear it would be contrary to public policy. Whether the decision would have been upheld on appeal or would be decided similarly today62 must, of course, be doubted. 60 61 62

See further para [13.104]. Austin Morris v Peter Keogh (Upholsters) Ltd UD 947/1984. On illegality see the decision of the United Kingdom Supreme Court in Patel v Mirza [2016] 3 WLR 399 discussed in detail in Ch 11.

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C.

[16.45]

REFUSAL TO COMPLY WITH AN ORDER/PERFORM A TASK

[16.43] An employee may be disciplined or dismissed for refusing to comply with a reasonable and lawful order, or to carry out a reasonable and lawful task, for her supervisor. In Brewster v Burke and the Minister for Labour63 the High Court pointed out that: ‘It has long been part of our law that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his master. Such a refusal justifies an employer in dismissing an employee summarily.’

If the instruction is illegal or unlawful, refusal to carry it out will not give rise to fair dismissal: Brown v McNamara Freight.64

[16.44] The directive or order must itself be lawful and reasonable in the circumstances and the employee must have understood the directive or by his behaviour evidence an understanding thereof. The reason for the employee’s insubordination will be examined. For instance, is the subject matter of the directive currently on the agenda for negotiation between the collective parties? Was the employee provoked? Is there a safety consideration? [16.45] For senior employees, their obligation to adhere to policies under their control may even extend to ensuring that colleagues do not contravene same, as seen in the 2017 decision of the English Court of Appeal in Adesokan v Sainsbury’s Supermarkets Ltd.65 In this harsh but arguably fair decision, the dismissal of the claimant was upheld in the following circumstances. The claimant was a regional operations manager with the respondent, and he worked alongside a human resources partner who sent what was described as ‘a wholly inappropriate email’ to five relevant store managers under the claimant’s jurisdiction urging them to manipulate a survey that was an important part of the respondent’s strategic practices, ‘Talkback’. The trial judge found that the email offended the philosophy of this practice and risked compromising the results. When the claimant eventually became aware of the email, he told the HR partner to ‘clarify what he meant with the store managers’. The HR partner did not do this and the appellant did not check to ensure that he had done so. In fact, the offending email was re-circulated twice as part of a chain of emails. Even when the claimant learnt of this, he did nothing to remedy the problem. He failed to contact the store managers themselves, who were directly answerable to him, to contradict the approach suggested by the HR partner, nor did he alert more senior management to what had occurred. When the respondent’s CEO was anonymously informed, he caused an investigation to be carried out by the claimant’s line manager which led to disciplinary charges being instigated against the appellant. It was eventually accepted that the claimant was not complicit in any way with the HR business partner. 63

64

65

Brewster v Burke and the Minister for Labour (1985) 4 JISLL 98; followed in Kellett v Dublin Providers Ltd UD 728/1986. Brown v McNamara Freight UD 745/1987. Equally if lawful instruction issued in bad faith to harm an employee, they might be justified to ignore it: Macari v Celtic Football and Athletic Co [1999] IRLR 787. Adesokan v Sainsbury’s Supermarkets Ltd [2017] ICR 590.

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Redmond on Dismissal Law

At the conclusion of the disciplinary process, the claimant was told that he was being summarily dismissed on the basis that he acted with gross negligence amounting to gross misconduct.

[16.46] The English Court of Appeal ultimately upheld the decision to dismiss. For Elias LJ (with whom David Richards and Longmore LLJ agreed), the ‘critical feature’ justifying this conclusion was that the claimant, as regional manager, was responsible for ensuring the successful implementation of the relevant policy in his region. Elias LJ continued: ‘[The claimant] was not the person who would carry out the exercise – that would have been the responsibility of the [HR partner] – but once it became known to him that the integrity of the process was being undermined or at least was at risk of being undermined as a result of the email, it was his duty to ensure that this was remedied. Given the significance placed by the company on the [the procedure], the judge was entitled to find that this was a serious dereliction of his duty. He found that this failing constituted gross misconduct because it had the effect of undermining the trust and confidence in the employment relationship. The [claimant] seems to have been indifferent to what in the company’s eyes was a very serious breach of an important procedure.’66

Adesokan is therefore a timely reminder, particularly for senior employees, that where their responsibilities include the overseeing of the performance of a particular policy, they have a positive obligation to ensure that that policy is implemented. It is submitted that Adesokan may well be distinguishable in cases where the particular policy or procedure may not be capable of being shown to be as critical to the organisation’s culture as was found to be the case there.

[16.47] A case in which the EAT in this jurisdiction made a particularly high award of compensation involved an alleged refusal to carry out an employer’s instruction. In Cavanagh v Dunnes Stores67 the employee was group head of security. There was an attempt to move him from Head Office; no one of his standing within the employer company had ever been moved from Head Office before. The employee was at first receptive to the idea of moving. When he went to the store to which it was intended he should move, however, there was no available office space, only a small area under a staircase. This was insufficient for the employee, his assistant and files, and for the proper discharge of his group functions. The employee became concerned and sought assurances from the employer that his terms and conditions would remain unchanged. The EAT could not accept the assurances he received as sufficient. An unsatisfactory and short meeting had taken place between the claimant and the managing director of the employer. The EAT found that the employee had been unfairly dismissed for alleged misconduct in refusing to obey the orders of his employer. The issue then arose as to whether the employee had refused to obey a legitimate or reasonable instruction: ‘Taking into account the circumstances surrounding the issue of the instruction, the attempts made to satisfy the claimant’s concerns and the nature of the meeting ... the Tribunal is not satisfied that the respondent has discharged the onus of proof required under the Act ... 66 67

Adesokan v Sainsbury’s Supermarkets Ltd [2017] ICR 590 at paras 25-26. Cavanagh v Dunnes Stores UD 820/1994 and see Ch 24 on remedies.

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[16.50]

Even if it has been established that the claimant’s refusal to obey the instruction amounted to a refusal to obey a legitimate instruction justifying a dismissal, the dismissal would have been unfair by reason of the failure to accord to the claimant his right to fair procedures.’

The EAT found that the employee’s right to fair procedures had been violated because of the failure to furnish a warning of dismissal and because of the failure to afford the claimant a fair and effective hearing to deal with the matters that concerned him.

[16.48] An employer’s directive may involve a change in working days, particularly in days off, or a requirement to work overtime. In general, an employer will need to ensure that there is a power in the contract of employment enabling these terms to be changed. Changing a person’s day off, for example, will be decided within the scope of the contract. If a contract contains no express term regarding a specific day off, and it is within its scope that the employer should decide which is to be the day off, the issue then becomes one of obedience on the part of an employee and reasonableness on the part of the employer. In Harkin v Caplin,68 the nature and requirements of the business were such that flexibility in working hours was essential and in the EAT’s opinion it was not unreasonable for the employer to expect cooperation from a senior employee who was capable of taking charge in its absence.

[16.49] Many claims involving refusal to work under changed contractual terms are heard in the context of ‘some other substantial grounds’ rather than ‘conduct’ dismissals. [16.50] An employer must be specific as to what an employee is asked, and therefore refuses, to do. In Merriman v St James’s Hospital Board69 the employer told the EAT that the claimant was dismissed because of her refusal to give an undertaking to carry out the full range of her duties as a hospital attendant. The EAT noted that there had been no evidence before it of an incident or of meetings detailing what in fact the claimant refused to do. As there was no tangible evidence before it, the EAT could only hold that the dismissal was unfair on its face. A shop steward gave evidence that staff were expected to work as instructed and that if there was a problem about a particular instruction representations could be made after it had been carried out. The only other evidence given on behalf of the employer was that the claimant was obliged to carry religious objects to the bedside locker in a religious ceremony. The claimant was 68

69

Harkin v Caplin UD 15/1986; see, too, Ashmore v O’Hara UD 60/1991 (same – no overtime in contract); Horgate v Coolock Foods t/a Silvervrest [1990] ELR 91 (overtime in contract – employer’s request reasonable but so was employee’s refusal); McKenna v Farrell Bros [1991] ELR 77 (refusal to work overtime in breach of contract); Thorton v Coolock Foods Ltd t/a Silvercrest Foods [1990] ELR 40 (overtime in excess of Protection of Young Persons (Employment) Act 1977 unlawful); Sweeney v Otis Elevator (Irl) Ltd UD 587/1988 (dismissal unfair for employees refusal to work overtime – overtime voluntary). Merriman v St James’s Hospital Board UD 365/1986. In Copsey v WWB Devon Clays Ltd [2005] IRLR 811 a practising Christian was dismissed because of refusal on religious grounds to agree to vary his contract of employment so he could be required to work on Sundays. The Court of Appeal held that the dismissal was fair regardless of whether art 9 ECHR was engaged.

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reinstated. The Circuit Court (Judge Clarke) on appeal re-engaged the claimant on the basis of a clear and firm undertaking by the claimant: ‘to carry out all her duties in the Hospital in accordance with the contract, including every necessary assistance to patients in relation to the religious rites and services which are provided for them and as is the practice in the hospital; but on the admitted basis that she need not participate in any religious ceremony or rite; and allowing that her particular scruple as to the actual erection of crucifix or candles should be respected and this be dispensed with in her case.’

[16.51] Dismissal for smoking in breach of company rules can be justified particularly where smoking constitutes a hazard in the place of employment: Redmond v Superwood Ltd.70 [16.52] In Furlong v Telectron Ltd71 the employee had refused to take substituted work (production instead of prototype work) during a shortage without a written assurance from his employer to be returned to skilled work when it arose. He was dismissed following suspension because of his stand on this. The High Court (McCarthy J) refused to accept the employee’s refusal as constituting a ‘substantial’ reason justifying dismissal. He described the onus on the employer under s 6 of the 1977 Act as ‘a heavy one’.

[16.53] The WRC may hold it unfair to dismiss for disobedience to a legitimate instruction if it was unreasonable for an employer to issue the order in the first place and to insist on obedience to the point of dismissal.72 The boundary line is thin between this sort of situation and one where an employee is deemed to have ‘terminated’ his employment himself by wilful disobedience.73 Further, an employee’s refusal to obey may be looked upon as unreasonable if he ought to have foreseen that his action could produce adverse consequences, for instance, a worsening of the company’s financial position.74

D.

BAD LANGUAGE

[16.54] An employee may be disciplined or dismissed for bad language. ‘Bad language’ may be obscene, profane or downright abusive. It may be directed to a supervisor or 70

71 72

73 74

Redmond v Superwood Ltd UD 93/1985; or where food is being prepared: Byrne v Readibake Ltd [1993] ELR 136. Furlong v Telectron Ltd (1986) 5 JISLL 167. See the approach of the EAT in Fergus O’Farrell Ltd v Nugent UD 120/1978; UD 123/1978; also McGowan v Kelleher Public Works Ltd UD 9/1980; Nolan v Steel and Engineering Supplies Ltd UD 34/1981; Durnin v Building & Engineering Co Ltd UD 159/1978. Contrast Canavan v KA Burke (Carriers) Supplies Ltd UD 15/1977; see, further, in relation to disobedience Cannon v John Bolton Motors Ltd UD 58/1979; Fitzgerald v Williams Transport Ltd UD 15/1978; UD 165/1978; Stamp v AN Stamp Ltd UD 11/1978; Galway Crystal Ltd v McMorrow UD 1/1977. Walsh v FN Woolworth & Co Ltd UD 296/1978 may be criticised for a failure by the EAT to apply the test of reasonableness to a mobility clause in the employee manager’s contract of employment. Floody v Charles Dougherty & Co Ltd UD 46/1980. Fulham v Curragh Knitwear Ltd UD 76/1978.

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other superior or may be used and directed at fellow employees, or at customers, or at members of the public.75 An important consideration is whether the bad language caused a disruption in the work or, as far as co-employees are concerned, whether it adversely affected a working atmosphere.

[16.55] If bad language is commonly heard on the premises and is in the nature of ‘shop talk’ it will not be possible to discipline, let alone dismiss, unless it is made clear to all employees that, notwithstanding tolerance in the past, abusive and profane language will not be tolerated in the future and that disciplinary action will follow. If the supervisor, or superior, also uses bad language then it would be normal to place no great significance on evidence of profanity: Tierney v Cleere.76 [16.56] Where an employee uses abusive language to an important customer of the employer, the WRC will expect the employer to carry out a thorough investigation into the matter before taking action to dismiss. This can be particularly difficult for an employer as it will most often be loathe to involve customers or clients in an investigation of this nature. In the end of the day, it will often be a matter of choice for an employer as to whether it will bow to pressure from third party suppliers, or not.77 [16.57] Resorting to screaming and using bad language on the factory floor can be hazardous if people working in the vicinity are engaged on heavy machinery: Paul v Earraí Miotail Teoranta.78 Abuse and threats by the claimants towards persons entering the employer’s premises during strike action, among other things, resulted in a determination that their dismissal was not unfair: Fitzpatrick and Fitzpatrick v Overseas Publications Ltd.79

E.

PHYSICAL INJURY TO PERSON OR PROPERTY, INCLUDING HORSEPLAY [16.58] An employee can be dismissed or disciplined for misconduct where conduct has physically injured another person or has damaged property, or is capable of doing either of those things. ‘When a person in authority strikes a subordinate it is very difficult, if not impossible, to justify’ as the EAT asserted in Reid v Roadspeed International (Ireland) Ltd.80 Not all cases are so clear-cut, however. 75

76

77

78 79 80

As in the case of a traffic warden found to be fairly dismissed for abusive language which attracted numerous complaints: Donavan v Dungarvan UDC UD 1077/1993; or a bus conductor who allegedly made offensive comments to female passengers: Nugent v CIÉ [1990] ELR 15. Tierney v Cleere UD 812/1984. In such circumstances it can be a challenge to determine whether the words spoken are words of dismissal: Sharos v Fluid Controls (Ire) Ltd UD 824/ 2004. For instance, in O’Hagan v Pat the Baker Ltd UD 518/1986 the employer was found to have been preoccupied with the possible loss of a very large contract. The employer dismissed the employee as there was no alternative employment for him. Compensation was awarded by the EAT. Paul v Earraí Miotail Teoranta UD 200/1986. Fitzpatrick and Fitzpatrick v Overseas Publications Ltd UD 86 and 887/1989. Reid v Roadspeed International (Ireland) Ltd UD 258/1992.

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[16.59] Where there is the danger of risk of injury to another or to the claimant, horseplay will entitle an employer to dismiss: Creed v KMP Co-op Society Ltd.81 In that case horseplay took place in an abattoir. Knives were habitually used by the employees in the course of work and consequently safety was a preoccupation in the workplace. All employees were issued with steel gloves and safety helmets. The claimant had been stabbed in the final incident leading to his dismissal. He had a history of horseplay and one of the terms of the contract of employment stated that ‘fighting, provoking or instigating a fight when on the company premises’ warranted ‘immediate dismissal’. In reaching the conclusion that the employer had not dismissed unfairly the EAT had regard to the dangerous environment in which the claimant worked. [16.60] It is important for an employer to have clear rules about horseplay on the premises. If there is a general atmosphere of insubordination where horseplay is the norm, it will be very difficult to dismiss within the Act: Grimes v Cabinpac Ltd.82 And, depending on the circumstances, an employer may be found to have unfairly dismissed where it has overstated the seriousness of horseplay.83 [16.61] Where there are allegations of physical injury to another employee, particularly to a supervisor, that fact alone is often regarded as sufficient by an employer to support a decision to dismiss. However an employer here as in all cases must be astute to obtain accounts and explanations from other witnesses to the alleged incident. An employee may, for example, have been provoked. Once this is established, the question for the WRC is, was the action permissible: Yore v Tara Mines Ltd.84 The standard of proof required to establish provocation is generally high.

[16.62] The time of the alleged wrong may be critical. If it occurred outside working hours, the dismissing employer will need to adduce evidence to show it is work-related. Thus, the dismissal of an employee solely because of behaviour in the early hours of the morning at a staff dance was found to be unfair: Murray v LFS & P Enterprises.85 The EAT was satisfied that the employee was dismissed at around 5.30 am and ‘bearing in mind the night it was’ the EAT considered it was not the climate to make an appraisal of the employee’s conduct. [16.63] In contrast, Keane v Westinghouse Electric Ireland Ltd86 concerned a company function attended by most of its employees. Beginning at approximately 11 pm a number of scuffles occurred between the claimant and a supervisor. The EAT considered 81

82

83

84 85 86

Creed v KMP Co-op Society Ltd [1991] ELR 140; see too Dunphy v Largo Food Export Ltd [1992] ELR 179 (horseplay an ongoing problem not brought under control by management, dismissal unfair); O’Mahony v Whelan t/a Pallet Providers [1992] ELR 117; Barry v Gardeur (Ireland) Ltd [1991] ELR 31. Grimes v Cabinpac Ltd UD 692/1986; see similarly Dunphy v Largo Food Exports Ltd [1992] ELR 179. As in A Production Operative v A Medical Devices Producer ADJ-00006307 (12 June 2017), where the Adjudication Officer found the allegations to have been ‘formulated in exaggerated terms’ and held that this had ‘infected the investigation and disciplinary process’. Yore v Tara Mines Ltd UD 326/1986. Murray v LFS & P Enterprises UD 11/1986. Keane v Westinghouse Electric Ireland Ltd UD 633/1986.

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whether the assault was work-related. It did not doubt that an assault took place, nor that the assault was a serious one. But it took the view, having heard the evidence, that the assault occurred because the employee had been suspended as a result of his supervisor reporting him on a particular occasion. The EAT found the assault workrelated. The dismissal was found not unfair.

[16.64] Assault on a fellow-employee may be due to a medical problem rather than misconduct. Mitigating circumstances were found in a situation where the claimant was unwell on the day the assault occurred and had asked five times during the course of the day to be relieved from duty but had been told that this was not possible due to a shortage of staff. Furthermore, the employee had taken a considerable amount of medication on the day of the assault: Bergin v Bus Atha Cliath.87 [16.65] Horseplay which does not physically injure someone or injure property may enjoy a higher margin of tolerance.88 [16.66] In Byrne v Kevin Laing Ltd89 the employee, a 16-year-old storeman, was dismissed for striking a young boy three times. In sworn evidence, uncontradicted by the respondent, the EAT was told the employee had been requested by his employer to remove the boy from the premises. Similar requests regarding other boys had been made to the employee and other young workers from time to time. Although satisfied there was an element of contribution by the employee, the EAT found his dismissal unfair in the circumstances. He had a previous good record. The EAT was anxious to emphasise that this finding was exceptional: ‘It must be strongly emphasised that the EAT, in coming to its determination, is not endorsing violence in the workplace but we feel, however, that in this particular case the claimant was sent to do a man’s job.’

[16.67] Needless to say, the Workplace Relations Commission will regard it as material if the facts disclose provocation or intimidation of the employee. Dismissal in such circumstances was found to be unfair in Byrne v International Contract Cleaners90 where the EAT was satisfied that management had been aware of problems in the working relationship between the claimant and the co-worker he struck. It is the responsibility of management to prevent intimidation of employees in the workplace and where it occurs to take appropriate action. [16.68] The circumstances of strike or industrial action can facilitate, if not provoke, ‘abnormal’ conduct, even on the part of an employee against whom no suggestion of previous misconduct exists. In Kelly v CIÉ,91 the alleged conduct, even in the context of a protracted strike, ‘could not be regarded otherwise than as substantial’ in the words of 87 88 89 90

91

Bergin v Bus Atha Cliath UD 61/1987. Eg Brennan v St Luke’s Home Incorporated UD 643/1988. Byrne v Kevin Laing Ltd UD 82/1991. Byrne v International Contract Cleaners UD 538/1993; this case was appealed to the Circuit Court where it was settled before hearing. And see Grealish v Alumina Ltd UD 378, 379 and 380/1987. Self-defence will render a dismissal unfair: Ivory v Arthur B Brennan Ltd UD 895/ 1984. Kelly v CIÉ (11 February 1985) CC.

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Judge Clarke (Circuit Court) involving as it did a personal threat to a garage superintendent and his family, threatened picketing of his home, a damaging attack on the car of a foreman as he left work, the disruption of the company’s night servicing operations at Donnybrook garage, and damage to the company’s property in an attempted break-in at the CIÉ Club. To Judge Clarke: ‘It would be hard to envisage anything like trust and confidence, or any kind of genuinely harmonious relationship, or mutual respect as between employer and employee, after this kind of conduct. And if the precedent were established of using some less drastic measure than dismissal in the circumstances of this case, would it not form a precedent for others in similar circumstances to commit the same kind of misconduct in the expectation that such misconduct would not be sufficient to justify their dismissal?’

F.

HARASSMENT OR BULLYING92

[16.69] It is inadequate for an employer to label a complaint of bullying as an ‘interpersonal problem’ where on the evidence it is not. In Doran v Community Games93 the EAT found that numerous problems had arisen between the claimant and the CEO. It concluded that there was ‘a clash of personalities’ between the parties. ‘Where such a clash arises the onus is on the [employer] to resolve it. However there is also an onus on the other party to contribute to its resolution …’. It is incumbent on all employers especially with a large workplace to draw up a policy dealing with bullying to provide a work environment free of this all too common impediment. It is part of the employer’s common law obligation to provide a safe system of work. A policy on bullying may also include sexual harassment and the same principles (support colleagues, informal/nonformal and formal approaches) may be espoused in all cases of alleged harassment. Because bullying involves an intra-employee dispute rather than one between employer and employee, see para [13.78], it can give rise to claims of constructive dismissal as well as unfair dismissal. In the former, the perceived victim resigns, eg because of the way the complaint is handled. In the latter the alleged perpetrator is dismissed. [16.70] A well drafted policy on harassment will do more than proclaim its unacceptability to the employer: it will provide procedures for investigation and for actions by the employer in the event of a finding of harassment. These actions will offer a wide range of options to the employer, not all of which will be disciplinary. For example, the alleged harasser may need counselling and monitoring. ‘ [16.71] In King v Cummins & Sons94 the claimant failed to convince the EAT she had been sexually harassed in the workplace. There was no evidence of such complaints by 92

93

94

On bullying in the workplace see the Supreme Court decision in Ruffley v Board of Management of St Anne’s School [2017] IESC 33 (on appeal from the Court of Appeal [2015] IECA 87). Doran v Community Games UD 1388/2003. Equally it is inadequate to tell the two employees to ‘sort it out among themselves’: Keohane v Douglas Nursing and Retirement Home Ltd UD 246/1996. King v Cummins & Sons UD 123/2004.

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her against any of her co-workers or her employer. Moreover there was a large lapse of time between her allegations and the date her employment ended.

[16.72] The WRC will be influenced by the employer’s response to its obligations regarding workplace bullying. In Allen v Dunnes Stores Ltd95 it proclaimed: ‘Whether behaviour amounts to sexual harassment in a particular instance is determined from the point of view of the victim and what she/he regards as acceptable behaviour. Behaviour regarded as acceptable and innocent by the perpetrator, his colleagues and others may nonetheless be unacceptable to the victim and so could constitute sexual harassment. The EAT, by majority on this point, holds that this puts an onus on the respondent to put in place a programme to inform, educate and instruct its employees on the issue of sexual harassment. The failure of the respondent to discharge that onus in this case was fatal.’

It went on: ‘Sexual harassment is a broad category of offence and comprises conduct of varying degrees of seriousness. There should be a range of penalties commensurate with the seriousness of the offence which can be imposed in a particular instance.’

[16.73] If an employer receives a complaint of sexual harassment, that often acts as a stimulus for it to produce a policy. In Regan v Killarney Hotels Ltd96 complaints of alleged sexual harassment had been made against the claimant in 1989, and were dealt with by the employer at that time. The claimant received a letter of warning to expire after 12 months. ‘The EAT noted that there was no evidence to show that following that incident the company put in place a programme to inform and educate its employees about sexual harassment so as to ensure a stress-free work environment for them.’

Further complaints were made in 1993. On the evidence the EAT found sexual harassment occurred in at least one case. The general manager had decided to carry out an investigation. Staff members were interviewed, their complaints recorded in writing and signed by the complainants. However, the claimant had not been informed of the case against him nor provided with an opportunity to be heard in his own defence. The employer offered to read the complaints to the claimant, but this offer was ‘illusory because of the refusal to identify the complainants’. The dismissal was found to be unfair. This case illustrates a potential difficulty in sexual and other harassment claims, namely, the complainant’s fear of being identified. Well drafted, detailed procedures represent the best way of allaying this fear and of protecting bona fide complainants in an area of growing legal significance to employers and employees.97 95 96 97

Allen v Dunnes Stores Ltd [1996] ELR 203. Regan v Killarney Hotels Ltd UD 786/1993. According to the Irish Human Rights and Equality Commission, Annual Report 2016 (Dublin, 2017) at 31 the number of ‘queries’ received by the Commission concerning sexual harassment was 40 out of 368 under the Employment Equality Acts 1998-2015.

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ABSENTEEISM

[16.74] Regularity of attendance is a basic employee responsibility98 and is an implied employee obligation. An employer will traditionally resort to disciplinary rules for the absentee employee but it should also lay down employment rules setting out what is required. Tardiness or ‘lates’ can be a form of absenteeism. Ill-health or alcohol can be a cause of it.99 So too can double-jobbing or moonlighting.100 Or absenteeism may stand alone, without any underlying cause. Absenteeism differs from misconduct in that, before dismissal, the employer will have resorted to progressive discipline. Because of the nature of absenteeism, prevention rather than detection is the best route.

[16.75] Most employments have a fairly set formula for absenteeism: for example, if an employee is absent twice or more in six weeks, he receives a written warning; if absent twice or more in the next six weeks, a final warning; if absent twice or more in the next six weeks, he is dismissed. If suspension enters the disciplinary progression, it will be without pay and therefore punitive, not precautionary (as in the case of alleged gross misconduct). See para [13.39]. The reasonableness of the employer’s rules will be relevant: they should be flexible and intended to correct behaviour rather than to punish it. The employee will need to be aware of the rules and of the consequences of breaking them. As always, they should be consistently applied and enforced. If an employer has absentee programmes they must be effectively maintained. Mitigating circumstances may be revealed which would justify the employee’s absence or justify a reduction in the degree of discipline. It will generally be unfair if an employer leapfrogs from the stage of a first written warning to dismissal. This again distinguishes absenteeism from gross misconduct.

[16.76] As a rule, mitigating circumstances should form part of the facts that come to light prior to dismissal. It will not assist an employee to reveal, for example, that alcohol was the cause of his absenteeism after he has been dismissed. Mitigation might be suggested by an employee’s age, family circumstances, general attitude, or likelihood of improvement. Even if there are genuine reasons or explanations for absences there is a band of reasonableness which an employer can invoke to justify dismissal: an employer cannot reasonably be expected to employ someone with an unacceptable level of absences, notwithstanding that the reasons for his absences are genuine.101 98

99

100 101

The Small Firms Association, Absenteeism Report 2014 (Dublin, 2015) found that the national average absenteeism rate was 2.34% (5.4 days) in large businesses and 2.06% (4.7 days) in small businesses. The overall cost of such absenteeism is estimated to be in excess of €490m. In which case, see paras [15.05]–[15.31]; Rigney v Offaly County Council [1990] ELR 38 (claimant in public law); and Hynes v GEC Distributions (Ireland) Ltd [1992] ELR 95 (claimant alleged absenteeism a result of an injury sustained during employment: in all the circumstances dismissal not unfair). See paras [16.85]–[16.89]. Flood v Bus Átha Cliath UD 91/1993.

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[16.79]

ALCOHOL-RELATED CONDUCT AND DRUGS

[16.77] Alcohol or drug-related conduct involves the taking or possession of alcohol or drugs on the employer’s premises, while working or at times close to the working schedule. Most disciplinary rules proscribe the use or possession of alcohol or drugs. The Health Safety and Welfare at Work Act 2005, s 13(1)(c) states that an employee shall ‘if reasonably requested by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed.’

If there are no rules, an employer can still discipline where there are safety risks or where a legitimate employer interest is infringed. Alcohol-related conduct is to be distinguished from alcoholism, which is dealt with earlier.102

[16.78] It is preferable to have rules carefully drafted on the subject of alcohol-related conduct, to ensure that they cover all situations over which an employer wishes to have control. A rule which prohibits ‘being under the influence of alcohol’ or ‘intoxication’ presents considerable difficulty as to proof, and may do so even more before the WRC, because it requires proof of a specific condition. It is preferable, for example, to proscribe attendance at work ‘having drink taken’. That having been said, case law illustrates that dismissal may be upheld as not unfair, particularly where the work the claimant is employed to do has safety-critical implications. Thus in its 2015 determination in Serikovs v Litec Moulding Limited103 the Employment Appeals Tribunal rejected the claimant’s claim for unfair dismissal in circumstances where he had been dismissed for gross misconduct when he presented himself for work in a state of incapacity while under the influence of alcohol. The claimant had a position of responsibility as a machine operator in a hazardous work environment with machines processing very hot materials, and high pressure plastics being produced at temperatures three times the boiling point of water. The Tribunal accepted the employer’s arguments that it had a duty of to ensure that the health, safety and welfare of all its employees should not be compromised. Significantly, in the employee handbook, the rules covering gross misconduct expressly referred to ‘incapacity at work or poor performance caused by intoxicants or drugs’ as amounting to gross misconduct liable to summary dismissal. [16.79] The Labour Court has uttered the following guidance to employers when dealing with an employee with an alcohol dependency problem: ‘The Court is of the view that generally speaking when dealing with an employee who has an alcohol dependency problem, employers should give such employees an opportunity to seek professional treatment before considering dismissal. However, each case must be judged on its merits. Factors such as risk to safety, the level of responsibility the employee has and contact with the public are taken into account when deciding whether or not the penalty of dismissal was within the range of reasonable responses an employer might take.’104 102 103 104

See paras [15.25]–[15.31]. Serikovs v Litec Moulding Ltd UD 525/2015. Irish Aviation Authority v Christopher Reddin UDD1710.

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On the facts of Reddin, the Labour Court emphasised that the employer had on a number of occasions referred the complainant to occupational health to establish the nature of his dependency and to update itself on his state of health. The Court further noted that there was a clear policy in place for all employees which had been agreed with the staff unions on managing workplace intoxicants, supported by a protocol on random resting. The Court concluded that dismissal in all the circumstances was not unfair.

[16.80] To assist the employer in gaining clear and convincing evidence, allegations that an employee has come on duty having drink taken should be put to him at the time, unless there are solid reasons why this cannot be done: Murray v Cara Cheshire Home.105 [16.81] Dismissal may not be regarded as within the band of reasonable responses for an employer for a first offence regarding alcohol-related conduct.106 Hence if an employer wishes to have strict enforcement of no-alcohol rules, it should be explicit that a first offence will be the last one. An employer may have house rules enabling it to require employees to submit to tests to detect drug (including alcohol) abuse.107 [16.82] As earlier stated108 an employer may fairly regard drug or drug-related offences as grounds for dismissal. The following principles are likely to be relevant in any given set of circumstances: (i) (ii) (iii) (iv) (v)

whether the alleged wrong took place on the employer’s premises or while working for the employer; whether the employee sold drugs or possessed them with intent to sell; whether use/possession of drugs would impact on the business or reputation of the employer or its efficient operation; whether the employer has rules on drugs which have been communicated; and whether the drugs are ‘hard’ drugs.

[16.83] ‘Drugs’ should be defined in any rules prescribed by the employer. The term may be used to refer to illegal or street drugs such as heroin, morphine, cocaine, cannabis, marijuana, codeine or opium additives, ecstasy, LSD (lysergic acid diethylamide), DMT (dimethyltryptamine), STP (dimethoxyamphetamine), 105

106

107

108

Murray v Cara Cheshire Home UD 753/1986; also on alcohol-related conduct see Quinn v B&I Line [1990] ELR 175; Melia v Security Wardens Ltd UD 805/1986; O’Brien v Verbatim Ltd UD 320/1986. Grainger v WJ Dwans & Sons Ltd UD 906/1987. On mitigating circumstances: Mulroy v Jurys Hotel Group plc UD 877/1995. Re security officer on duty: Glancy v Noonan Services UD 973/2005. The more specific the rule, the more likely a decision to dismiss will be upheld: see Connolly v Arramara Teo UD 132/1987. Also Kennedy v Veolia Transport (Ire) Ltd UD 240/2006. Paragraph [16.26]. See, too, s 13(1)(c) of the Health Safety and Welfare at Work Act 2005. Alcohol and drug testing is ‘sensitive personal data’ under the Data Protection Act 1988 as amended and is given particular protection. An employer should seek legal advice on the principles and procedures to follow. See Doran, ‘Drug and Alcohol Testing under the Health, Safety and Welfare at Work Act 2005’ (2005) 2 IELJ 36; Shannon, Health and Safety: Law and Practice (Round Hall, 2007) at 28; the Labour Court’s consideration of this duty in Alstom Ireland Ltd v A Worker CD 07/413; and Kennedy v Veolia Transport Ltd UD 240/2006.

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amphetamines, methamphetamines and barbiturates. Or an employer may wish its rules to extend to all drugs, ie all controlled substances which when ingested cause physical or behavioural change. In this context medically prescribed drugs would come within the employer’s rules as well as street drugs. There is no evidence in this jurisdiction or in Britain that habitual drug-taking merits treatment by an employer in a way akin to illness. Here ‘street’ drug addiction parts company from alcoholism, a reflection of the added and grave factor of illegality in the case of the former.

I.

DOUBLE-JOBBING/LOYALTY AND FIDELITY

[16.84] In the absence of an express prohibition in the contract of employment, there is no reason in principle why an employee should not ‘moonlight’. There may, however, be independent grounds for discipline or discharge arising out of an employee’s second job. Many employees have a code of conduct or ethics, laying down boundaries for their workplace regarding outside work. This may be supplemented by restrictive covenants in the contract of employment.

(1) Second job [16.85] A second job may impact on implied terms in the contract of employment, most notably fidelity and loyalty. Carrying out work for a customer of the employer in one’s private time may lead to discharge, but it will almost certainly be necessary for an employer first to give a clear warning to the employee that continuing to work in direct competition to the employer will result in dismissal. This is because such cases invariably reveal a conflict of evidence and a lack of clarity as to rules and expectations.109 Provided it is stated unambiguously,110 the moonlighting employee whose conduct is potentially, and not actually, in conflict with the interests of his employer may be discharged and it will not be unfair. [16.86] Other considerations that may be relevant include the effect on the employment of the moonlighting.111 Working after hours may make an employee late for work, reduce his productivity or efficiency, or otherwise impact adversely upon his duties. Or the moonlighting may be damaging to the employer’s best interests because of, say, the nature, reputation or clientele of the second job. Dishonesty may enter the equation. An employee may deny either outright or in selective detail the fact of his employment elsewhere, or enter into subterfuge to enable him to perform it. This deception then 109

110

111

See Linehan and Murphy v Jeremiah Fitzpatrick Ltd UD 555 and 556/1992 (breach of implied term of fidelity and loyalty not sufficient to warrant summary dismissal in the circumstances); also Murphy v Wm Doherty & Co (Printers) Ltd UD 282/1987; Shortt v Smurfit Corrugated Ireland Ltd UD 540/1986. Where the employer’s stance is not clearly communicated it will have difficulty in defending dismissal in these circumstances: see the decision of the WRC in An Office Administrator v A Community Arts Centre ADJ 00000381 (12 April 2017) where the adjudication officer deemed dismissal disproportionate and held that a final written warning based on a direction to desist from all outside work that could be deemed to be in conflict with the respondent’s services would have been appropriate. O’Flynn v Berkel (Ireland) Ltd [1990] ELR 19.

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becomes the focus of the employer’s disciplinary inquiry, irrespective of whether the other employment is in actual or potential conflict with the employer’s interests.

(2) Acting in competition with employer [16.87] In Fairbrother v Steifel Laboratories (Ireland)112 the employee was dismissed on the grounds that the employment relationship between the parties was completely undermined by the actions of the employee in permitting his wife to promote and launch a competitive pharmaceutical product. The terms and conditions of the employee’s appointment demonstrated that secrecy and confidentiality were of the utmost concern to the employer. While the company did not at any stage allege that he had disclosed confidential information to his wife, the EAT found that it was nevertheless entitled to conclude that the involvement of the employee’s wife in a product related to the range of products offered by it was in direct conflict with the company’s interests. Whether or not there was a conflict of interest did not have to be decided. The EAT narrowed the issue to whether the company acted reasonably in treating the employee’s failure to have his wife’s product withdrawn as a reason for the dismissal. As he had been made aware of the likely consequences, the EAT was satisfied that his dismissal was not unfair. Thus the activities of a spouse may be relevant, particularly in the case of senior or high trust employees.

[16.88] In Higgins v Aer Lingus,113 the employee was dismissed for involvement as managing director with a new Irish airline. Outside activities were not permitted under the employer’s regulations as provided in the staff manual and the employee had apparently failed to report such activity. Evidence was given of the employee’s appeal against the decision to dismiss. The EAT found that: ‘an employer is entitled to insist that an employee does not interest himself in a company which will compete with the business of his employer … The failure of the claimant to commit himself not to do anything while in the respondent’s employment in pursuit of his own interests which might conflict with the interest of his employer was reasonably construed as a breach of the duty of loyalty.’

[16.89] An employer is entitled to defend itself against unfair competition from its employee and to take whatever reasonable steps are necessary in order to achieve that end.114 For an employee merely to seek employment with a competitor is an insufficient reason for dismissal unless there are reasonable grounds for the employer to fear that the employee is doing so to abuse confidential information pertaining to the employer’s business.115 Suppose the employee is keen to leave and to work on his own account, in competition with his employer. There may be a restrictive clause prohibiting this in the 112

113

114 115

Fairbrother v Steifel Laboratories (Ireland) UD 665/1985; see Dinan v First Southern Bank Ltd UD 32/1989. Higgins v Aer Lingus UD 410/1986; see similarly Fitzgerald v Regsimn Ltd UD 307/1995; Connachey v Little Chic Knitwear Ltd UD 342/1985, (1986) 4 ILT (ns) 90 and Graham and Kennedy v De Gee Ltd UD 861 and 862/1982. Davidson and Maillon v Comparisons [1980] IRLR. Harris & Russell v Slingsby [1973] IRLR 221.

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contract116 but if not, an employee cannot be dismissed for nurturing this intention, provided of course that he will not abuse his employer’s confidential information in the process.117 The ‘general principles’ relating to this situation were described by the EAT in McDermott v Kemek Ltd/Irish Industrial Explosives Ltd:118 ‘1. 2.

3.

4.

It is perfectly legitimate for an employee to aspire to set up in business on his own account. Such a person would consider it normal to work in the industry with which he was familiar. It would be contrary to public policy to prevent someone from setting up in competition with his existing employer. However, an employee’s duty of fidelity continues so long as he remains in employment. There may be a point at which preparations to set up a new business might be incompatible with continuing to serve the existing employer. If an employer believes that an employee’s actions in pursuit of his ambition have so become incompatible, he owes the same duty not to dismiss unfairly as he would in any other type of case.’

Acting on an intention to set up in competition with one’s employer while still employed, eg soliciting the business of the employer’s customers, would clearly be in breach of the implied duty of fidelity, and dismissal in such circumstances would not be unfair.

(3) Confidential information [16.90] Accessing an employer’s confidential files is a breach of loyalty and fidelity and may also involve a breach of trust. In Mullins v Digital Equipment International,119 the employee was dismissed for allegedly attempting to gain access to privileged data on the respondent company’s control computer systems. It came to the attention of the company that he had attempted to access the accounts of various people in the company. According to the company he had also tried to access a master directory which contained confidential data. The employee told the EAT that he had no interest in any confidential information in the company and that he was merely experimenting with the system. It had never occurred to him that he could be dismissed for experimenting. The EAT found that the employee was aware at all times that what he was doing was 116

117 118

119

See further para [16.114]. Note these covenants continue to apply during garden leave: Symbien Ltd v Christensen [2001] IRLR 77. However, if the combined effect of a garden leave clause and a restrictive covenant proves unreasonably restrictive, then the terms may not be enforced: see Credit Suisse Asset Management v Armstrong [1996] ICR 882. McDermott v Kemek Ltd/Irish Industrial Explosives Ltd [1996] ELR 233. McDermott v Kemek Ltd/Irish Industrial Explosives Ltd [1996] ELR 233. See Laughton & Hanley v Bapp Industrial Supplies Ltd [1986] IRLR 245; Faccenda Chicken v Fowler [1986] 1 All ER 617. Two important cases on an employee’s fiduciary duties and duty of fidelity and the degree to which these limit an employee preparing to go into competition with an employer are Helmet Integrated Systems Ltd v Tunnard [2007] IRLR 126 and Shepherds Investments Ltd v Walters [2007] IRLR 110. See also Murgitroyd & Co Ltd v Purdy [2005] 3 IR 12; Net Affinity Ltd v Conaghan [2012] 3 IR 67; and Hernandez v Vodafone Ireland Ltd [2013] ELR 194. In Net Affinity Ltd, the High Court (Dunne J) provided injunctive relief to an employer where a breach of the duty of confidentiality by the employee was imminent. Mullins v Digital Equipment International UD 329/1989. See similarly McDermott v NEC Semiconductors Ireland Ltd UD 146/2001. Unauthorised use of or tampering with computers can be compared with dishonesty: Denco Ltd v Jainson [1991] IRLR 63.

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attempting to access the confidential files of the supervisors and employees in question. The employer was entitled to view the unauthorised access attempts as serious misconduct on the part of the employee. The claim of unfair dismissal therefore failed.

J.

GROOMING/PERSONAL HYGIENE

[16.91] An employer may have rules in relation to grooming or dress. If it has a legitimate business interest therefor, and provided the rules are reasonable, consistently applied, and communicated to employees, breach may fairly lead to dismissal. Circumstances may arise where there are no employment rules dealing with a problem such as poor personal hygiene. This relates by implication to an employer’s obligation to provide a working environment for employees which conforms to health and safety standards. Good personal hygiene goes without saying, the officious bystander would no doubt pronounce. But how to deal with poor personal hygiene? To deal with it informally, it seems, is fraught. In Sheedy v Therm-o-Disc (Ireland)120 a group leader on an assembly line approached an employee to mention to her that other females on the assembly line had complained that she allegedly had a personal hygiene problem. The employee had been very upset and had left the building crying. The EAT found that: ‘Having regard to the length of time [the group leader] was aware of the problem, the serious sensitive nature of the allegations and the likely consequences of making the claimant aware of such allegations given her age, sex and sensitive nature ... [the group leader] should have brought the matter to the attention of management and sought their advice as to how best to approach the problem.’

Had the management been appraised of the problem it would have carried out a full investigation and given the matter the consideration it deserved.

K.

POOR ATTITUDE

[16.92] An employee’s attitude may give rise to dismissal if the employer’s work or its customers, or the morale of other employees, or the employee’s performance record, suffer as a result. In addition, it will be relevant whether an employer has applied corrective action under its disciplinary procedures. In Dermott v Lightstar Catering Ltd121 the employee was alleged by another staff member (the co-worker) to be involved in a relationship with a married member of staff. He allegedly had an argument with his accuser in front of a customer, to whom he later apologised. The employee’s solicitor wrote to the co-worker who had made the allegation seeking an apology. The employer wrote to all staff thereafter outlining to them that it expected them to be on talking terms with each other and to be courteous to each other at all times while working together. According to the employer there was no improvement in relations between the claimant employee and his co-worker after this letter. They continued to communicate through a third party and customers suffered as a result. Following a particular incident the employer told the two workers to go and sort out their differences. The co-worker 120 121

Sheedy v Therm-o-Disc (Ireland) UD 494/1991. Dermott v Lightstar Catering Ltd UD 349/1991. An employee’s ‘personality’ of itself cannot be a ground for dismissal: Perkin v St George’s Healthcare NHS Trust [2005] IRLR 934; however, an employee’s personality may manifest itself in such a way as to bring his/her activities within a potential conduct case.

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returned and told the employer that what had been asked of him was reasonable. The claimant, on the other hand, took it that he was dismissed. The EAT having considered all the evidence found that there was a dismissal and the dismissal was not unfair: the evidence showed ‘a very poor relationship’ and the ‘business was suffering as a result of this’.

[16.93] Negligence may be alleged in such circumstances. When the claimant, a farm labourer, left a gate open (as a result of which deer escaped), the EAT described this as ‘gross negligence’ amounting to misconduct.122

L.

INTERNET/EMAIL/SOCIAL MEDIA ABUSE

[16.94] The growth of social media platforms has transformed almost all workplaces and therefore has significant consequences for dismissal.123 An employer is entitled to ensure that internet and email facilities in the workplace are not used inappropriately in order, inter alia, to avoid liability for wrongs such as harassment. Excessive use for personal purposes can also lead to significant losses in the employer’s business and affect employee performance. [16.95] Several cases have failed to be defended successfully because the employer did not have a policy on internet access/email usage. The employer should specify the procedures it will follow to detect abuse. As ever, employees will need to be made aware of the employer’s policy and procedures. An employer’s lack of compliance with Data Protection legislation (para [13.96] et seq) could influence the WRC in deciding on the reasonableness of the employer’s conduct under the Unfair Dismissals Act. For example, in the circumstances it may emerge that the employer’s monitoring was neither proportionate nor necessary.124 This is particularly important in light of the ruling of the Grand Chamber of the European Court of Human Rights in September 2017 in Bărbulescu v Romania,125 where the Court held, by eleven votes to six, that a violation of art 8 had occurred in circumstances where the applicant had been dismissed after his employer had monitored his electronic communications and assessed their contents. The important judgment of the Grand Chamber identified126 the following factors requiring consideration in assessing the reasonableness of an employer’s decision to monitor employees’ electronic communications: 122 123

124 125

126

O’Connor v Brewster [1992] ELR 10; O’Brien v Heinz Pollmeier [1991] ELR 157. See generally Walley and Kimber, Cyber Law and Employment (Round Hall, 2016); Kimber and Smith, ‘Social Media and Employees—Use and Abuse’ (2013) 10 IELJ 4; Walley, ‘Monitoring Employee Online Activity and the ECHR’ (2016) 13 IELJ 4; and McGreal, ‘Workplace Privacy and Data Protection’ in Murphy and Regan (eds), Employment Law (2nd edn, Bloomsbury Professional, 2017) Ch 7. The William Fry, Employment Snapshot 2016: Social Media in the Workplace (Dublin, 2016) reports that employees spend on average 29 minutes on social media during the working day and that only 39% of employers surveyed had a social media policy in place. See generally Kimber and Smith, ‘Surveillance and Employment Law’ (2012) 9 IELJ 14. Bărbulescu v Romania [2017] ECHR 754, Application 61496/08 (5 September 2017), Grand Chamber. Bărbulescu v Romania [2017] ECHR 754 at para 121.

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(i)

whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence and other communications, and of the implementation of such measures. While in practice employees may be notified in various ways depending on the particular factual circumstances of each case, the Court considered that for the measures to be deemed compatible with the requirements of art 8 of the Convention, the notification should normally be clear about the nature of the monitoring and be given in advance;

(ii)

the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy. In this regard, the Court emphasised that a distinction should be made between monitoring of the flow of communications and of their content. Whether all communications or only part of them have been monitored should also be taken into account, as should the question whether the monitoring was limited in time and the number of people who had access to the results. The same applies to the spatial limits to the monitoring;

(iii)

whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content. Since monitoring of the content of communications is by nature a distinctly more invasive method, it requires weightier justification;

(iv)

whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications. In this connection, there should be an assessment in the light of the particular circumstances of each case of whether the aim pursued by the employer could have been achieved without directly accessing the full contents of the employee’s communications;

(v)

the consequences of the monitoring for the employee subjected to it; and the use made by the employer of the results of the monitoring operation, in particular whether the results were used to achieve the declared aim of the measure;

(vi)

whether the employee had been provided with adequate safeguards, especially when the employer’s monitoring operations were of an intrusive nature. Such safeguards should in particular ensure that the employer cannot access the actual content of the communications concerned unless the employee has been notified in advance of that eventuality.

Bărbulescu thus constitutes an important addition to the art 8 jurisprudence of the European Court of Human Rights in this rapidly developing area.

[16.96] An early Irish example of inappropriate IT usage is Mehigan v Dyflin Publications.127 The claimant was dismissed for disseminating pornographic images via his work email account on a company computer. He denied downloading the images, claiming that they had been sent to him by email and that he had then passed them on. In finding the claimant’s dismissal unfair, the tribunal said that there was no breach of company policy such as to justify the claimant’s summary dismissal. The respondent 127

Mehigan v Dyflin Publications UD 582/2001.

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had failed to circulate a policy on the appropriate use of its IT facilities. The EAT commented: ‘It is unlikely that the use of the internet for unauthorised purposes will amount to a sufficient reason justifying an employer from dismissing an employee without notice in the absence of a clear written statement to this effect in the company’s policy.’

It is interesting to note, however, in finding that the claimant made ‘an enormous contribution’ to his own dismissal, compensation of only €2,000 was awarded. This very indulgent approach to the claimant underlines the importance of having in place a clear social media and IT policy that is clearly located within the context of the employer’s disciplinary procedures. A key part of any such policy documentation is the requirement that employees be placed very clearly on notice of the possible sanctions flowing from its breach.128 A social media policy that places limits on the nature or content of online communications by employees should, of course, be introduced only after careful consideration of the proportionality of such measures in the context of curtailing employees’ freedom of expression. Where there are specific business reasons for such curtailment, the Workplace Relations Commission has emphasised that the relevant social media policy must be specific about what it does and does not allow.129

[16.97] It is clear that communications or postings made by an employee on social media outside of working hours and/or away from the workplace may still warrant disciplinary action up to and including dismissal. A relevant early authority on this point is Kiernan v A Wear Limited130 where the claimant made abusive comments regarding her boss on her Bebo page, posting the comments outside of working hours. The claimant, when confronted, claimed that she was having a bad day and was responding online to false allegations by her superior. The post was found to constitute gross misconduct and she was dismissed. The EAT held that the procedures were fair, and that the claimant’s conduct warranted ‘strong censure’, but concluded that her dismissal had been disproportionate. It is noteworthy, however, that the EAT decided that the relatively low award of €4,000 was appropriate. The EAT accepted that an employee’s online activities outside work can constitute misconduct and that the employee ‘deserved a strong reprimand and possibly disciplinary action’. [16.98] The perils of navigating the use of so-called ‘private’ settings on social media platforms were revealed in Preece v JD Weatherspoons Plc.131 There the claimant posted derogatory comments about a customer on Facebook during work after that customer had been rude to her. The claimant, in so posting, considered that her comments were accessible only to her Facebook ‘friends’; in fact, the customer’s daughter viewed the claimant’s comments and complained to the respondent. The respondent instigated its disciplinary process on the ground that the claimant had breached its internet usage policy. The claimant was dismissed on the basis of this breach, the respondent concluding that her conduct had damaged its reputation and the claimant had breached 128

129 130 131

See Fogarty and O’Connor v IBM International Holdings BV UD 771/2000 & UD 661/2000; O’Leary v Eagle Star [2003] ELR 223; Walker v Bausch & Lomb Limited UD 179/2008. See A Beauty Therapist v A Beauty Salon ADJ-00004584 (20 July 2017). Kiernan v A Wear Ltd UD643/2007. Preece v JD Weatherspoons Plc ET/2104806/10. See also Whitham v Club 24 Limited t/a Ventura ET1810462/2010; and Benning v British Airways ET2703528/2010.

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its policy and the duty of trust and confidence. The UK Employment Tribunal found that the dismissal had been not been unfair and that the claimant’s claim that art 10(2) ECHR had been breached was unfounded.

[16.99] A similarly salutary lesson for employees is to be gleaned from O’Mahony v PJF Insurance,132 where the claimant had referred to her female superior in derogatory language in a Facebook message. Her employers discovered this accidentally when they saw the complainant’s Facebook profile open on her computer in the office. The claimant was suspended pending investigation and subsequently dismissed on the grounds that she had spent too much time online and breached the mutual duty of trust and confidence. The EAT upheld the respondent’s decision to dismiss in light of the grossly offensive language used by the claimant. [16.100] The judgment of the English High Court in Smith v Trafford Housing Trust133 provides detailed guidance on consideration of the implications of comments made on social media by an employee in the context of potential dismissal. In that case, the claimant posted a link to a news article concerning same-sex marriages in churches on his Facebook page, observing that they involved ‘an equality too far’. The claimant subsequently clarified his views in a sub-comment, noting, inter alia, that ‘the Bible is quite specific that marriage is for men and women’. The claimant was suspended from his job with pay, subjected to a disciplinary procedure and demoted for gross misconduct. The respondent’s code of conduct, referred to in the claimant’s contract of employment, specifically noted that: ‘Employees should not engage in any activities which may bring the Trust into disrepute, either at work or outside work. This includes not engaging in any unruly or unlawful conduct where you are or can be identified as an employee, making derogatory comment about the Trust, its customers, clients or partners or services, in person, in writing or via any web-based media such as a personal blog, Facebook, YouTube or other such site.’

[16.101] Briggs J concluded that the respondent acted in breach of the claimant’s contract of employment in demoting him. His Lordship reasoned that the claimant had not acted in breach of contract by making derogatory comments on his Facebook profile because his conduct thereon did not engage the respondent’s reputation. Notwithstanding that the claimant had described, on his Facebook profile, his employment status, no reasonable reader would have read the claimant’s statement of employment and the comments he made on his profile as being made on behalf of the respondent. In addition, the fact that 45 of the claimant’s 201 friends were his colleagues did not in itself mean that the claimant’s entire Facebook profile fell within the terms of the respondent’s code of conduct. From this it followed that the claimant’s Facebook profile was insufficiently linked to work to attract the full application of the code of conduct. Far more egregious conduct would be required for code of conduct to apply in full. For example, Briggs J suggested that sending an email targeted at certain colleagues promoting religious or political views would plainly fall within the remit of the code of conduct. 132 133

O’Mahony v PJF Insurance [2012] ELR 86. Smith v Trafford Housing Trust [2013] IRLR 86.

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[16.102] In Crisp v Apple Retail (UK) Ltd,134 the claimant had made a number of negative comments about his employer on his Facebook profile. Significantly, his Facebook profile did not refer to his employment with the respondent and was accessible only to his Facebook ‘friends’. When his manager became aware of these, the claimant was immediately suspended. The claimant then deleted the negative comments. The claimant was subjected to a disciplinary process, during which he provided limited answers to questions put to him concerning his conduct. The claimant was subsequently dismissed. Interestingly, the UK Employment Tribunal found that the claimant’s dismissal was not unfair and fell within a range of reasonable responses open to the respondent. The Tribunal noted that the fact that the claimant had not specifically stated his employment status on his Facebook profile was not strictly relevant given that most of his Facebook ‘friends’ would have been able to gather from his posts that he was an employee of the respondent; and that, notwithstanding his attempt to ensure the privacy of his Facebook account, it was nonetheless easy for information to be passed on from one person to another – in this case, a Facebook ‘friend’ to a non-friend or even coworker.

M.

EMPLOYER’S RULES

[16.103] This chapter concludes with some observations on an employer’s rules. Every contract should be drafted by an employer with the details and needs of the particular employment in mind and pro forma contracts should be avoided. It is foolhardy to neglect the proper vetting of prospective employees, particularly those applying for managerial posts or positions of special trust or confidentiality. Employers have become increasingly aware of the limitations of background investigation and in particular of the traditional reference letter which means less as time goes on. Former employers may be afraid because of possible law suits to give information in relation to an employee other than stating his date of employment, job title and salary level.

[16.104] An employer might list ‘false or misleading information on application forms for employment, whenever discovered’ as among employee conduct meriting disciplinary action.135 It might also request applicants, particularly for managerial positions, to sign a consent in the following terms: ‘In connection with this application for employment, I authorise all corporations, companies, credit agencies, educational institutions, persons, law enforcement agencies and former employers to release information they may have about me to the person or company to which this application has been made and I release them from any liability and responsibility from doing so.’

Information sought by an employer from an applicant regarding prior criminal convictions, if any, should be worded comprehensively so as to ensure full disclosure by him. 134

135

Crisp v Apple Retail (UK) Ltd ET/2104806/10. See also Whitman v Club 24 Ltd t/a Ventura ET/1810462/10, in which the UK Employment Tribunal found that, as the respondent had not proven any actual damage to its reputation by the claimant’s online conduct, the claimant’s dismissal was unfair. See Hobbert v Dunnes Stores (Tralee) UD 8/1989 (failure to provide full account of previous employment on application form brings about fundamental breach of trust).

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[16.105] A company’s disciplinary procedures provide an opportunity to highlight the principles of the employer. When ‘dishonesty’ is specified (a term preferable to, for example, theft or embezzlement) it should be modified by the words ‘irrespective of the amount or value involved’.136

[16.106] It is always wise in drawing up disciplinary rules to refer to crimes outside employment. A blanket policy of dismissal for criminal convictions in respect of wrongs committed outside employment will be unfair. The normal clause will indicate that an employee may be dismissed for arrest or conviction on a criminal charge, whether the alleged wrong is committed inside or outside employment, where it makes the employee unsuitable for the work he is employed to do, unacceptable to fellow employees or is inimical to the best interests and reputation of the employer. Where an employer is vulnerable to social welfare frauds being committed outside employment, special mention of these should be made.

[16.107] There are no accurate estimates of actual losses from internal crime, and many internal thefts are never reported to the gardaí. Employee dishonesty is a serious drain on industry. Dishonesty is best dealt with by an employer in a preventive way. In so far as this has legal implications, it will involve screening of job applicants and their applications, monitoring employee conduct, the level of stocks, of valuable and portable goods, and regularly searching or inspecting outgoing employees, customers, their property and possessions. The contract of employment might involve the right to search, by reserving to the employer the right to search all employees leaving or entering the premises and to inspect any parcel, package, handbag or motor vehicle. Such a clause should not activate the right to search ‘should pilfering be suspected’ or similar language. Regular searches properly carried out on a random basis of all employees including the chief executive are generally perceived to have a deterrent effect. The employer should seek legal advice on the requirements of Data Protection legislation; para [13.84].

[16.108] Secret profits are ideally dealt with in the employer’s contract of employment or house rules. Gifts from suppliers, customers and clients are a fact of life but where difficulty arises it is because they are given and retained without the knowledge of the employer. The risks here are obvious. Technically, any such property is the property of the employer when accepted. Hence, in addition to a clause requiring an employee to inform his supervisor or manager if he is offered a gift, opportunity or facility by a supplier customer or client, it may be useful to add that: ‘An employee who uses property, facilities, time or opportunities provided by the company shall hold the benefit resulting therefrom upon trust for the company, said benefit to include money, investments, and property, for the time being representing the same.’ 136

To attempt to avoid WRC determinations based on the sort of opinion expressed by the EAT in Murphy v Whelan UD 673/1994 (giving out items for sale, such as chips and tea, without charge would not afford grounds for dismissal ‘because of their trivial nature and would not be a matter which would import moral blameworthiness’). Such an opinion is highly questionable but, as with all dismissal cases, the context will be crucial.

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[16.109] Every contract of employment should provide for flexibility, particularly in regard to the functions of the job and the time and mode of its performance. Nor should reporting relationships be set in stone. A reorganisation can involve re-profiling of jobs and hence of reporting relationships, and it is very often this aspect which causes grief to employees and employers.

[16.110] Among the implied terms in the contract of employment are mutual trust and confidence, cooperation, trust, loyalty and fidelity. These are the rationale behind many of the employer’s express terms. An employer should lead by the example of its own behaviour. Loyalty and fidelity are often protected by clauses requiring that an employee devote himself full-time to the work of his employer and undertake not to work directly or indirectly, remunerated or otherwise, in any form of employment or self-employment, without the employer’s consent. If this clause is of particular significance to the employer, the employee may be asked to sign a yearly statement disclosing outside interests including directorships, if any. Restrictive covenants as to confidential information, competition, business contracts and so on need careful drafting137 with a legal adviser to ensure, so far as possible, that the clauses are not at risk of being held to be void for unreasonableness by a court (particularly as to time and/or territory). Restraint of trade clauses are deemed contrary to public policy and if challenged the employer bears the onus of establishing that they are reasonable and necessary to protect its interest and are not unreasonable in regard to the employee.

[16.111] A further factor is competition legislation.138 Section 4(1) of the Competition Act 2002 prohibits and makes void all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in goods or services in the State, or in any part of the State. The Act applies to ‘undertakings’ defined in s 3 as: ‘a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production supply or distribution of goods or the provision of a service.’

[16.112] Restraint of trade clauses in employment agreements began to be notified to the Competition Authority under the Act. However the Authority issued a Notice139 in respect of employment agreements, stating that employees are not undertakings, for the reason that they carry on business not on their own behalf but for their employer. It also states that an employee who has left an employer and is in business on his own account may thereby be constituted an undertaking and his contract with the erstwhile employer comes within the scope of the Act. The Competition Act 2002 abolished the system of ex ante notification. The Competition Authority takes the view that undertakings must satisfy themselves that agreements they enter into are compliant. 137

138

139

See, inter alia, Kimber, ‘Restrictive covenants in employment law’ (2006) 3 IELJ 85; Compton and Dillon, ‘Competition Authority revokes Guidance Note in relation to NonCompete Clauses in Employment Agreements’ (2007) 4 IELJ 22; McNamara, ‘Restraint of Trade’ in Murphy and Regan (eds), Employment Law (2nd edn, Bloomsbury Professional, 2017) Ch 11. See generally McCarthy and Power, Irish Competition Law: The Competition Act 2002 (Butterworths, 2003). Iris Oifigiúil (18 September 1992) at 632–633.

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[16.113] In Apex Fire Protection Ltd v Murtagh,140 having held that the business of the former employee was ‘an undertaking’, the Competition Authority held, inter alia: ‘A restriction which seeks to prevent a former employee entering the market as a competitor offends against s 4(1) of the Act of 1991; A restriction on soliciting a former employer’s customers must not exceed what is absolutely necessary to protect the employer’s interests or it would be regarded as an attempt to prevent competition.’

[16.114] Restrictive covenants are often drafted to apply after termination of employment. The extent to which they will be regarded as valid and enforceable subsequent to an unlawful termination, ie a termination in breach of contract (as opposed to statutory unfairness) requires careful scrutiny on a case by case basis.141

140 141

Apex Fire Protection Ltd v Murtagh [1993] ELR 201. See Cabrelli, ‘The Effect of Termination upon Post-Employment Obligations’, ch 26 in Freedland (ed), The Contract of Employment (OUP, 2016). The drafting of restrictive covenants was at issue in PR Consultants Scotland Ltd v Mann [1996] IRLR 188. A covenant provided that it would operate following an employee’s termination of employment ‘howsoever caused’. The Court of Session held that the phrase did not cover unlawful termination but could be relied on by the employer in the circumstances of the case. The Court distinguished Living Design (Home Improvements) Ltd v Davidson [1994] IRLR 69, where the clause, which was held to be invalid, purported to apply to termination ‘however that comes about and whether lawful or not’. Similarly, in D v M [1996] IRLR 192, restrictions applying after ‘termination for any reason whatsoever’ and ‘irrespective of the cause or manner’ were held to be unreasonable and unenforceable. It was held that the phrase ‘for any reason whatsoever’ was not capable of being severed from the contract. The tortuous process of determining whether or not provisions within a restrictive covenant are capable of severance was examined fully in Marshall v NM Management Ltd [1996] IRLR 20. The potential reasonableness of non-solicitation and non-poaching covenants was demonstrated in Alliance Paper Group plc v Prestwich [1996] IRLR 25. See Murgitroyd and Co Ltd v Purdy [2005] 3 IR 12 and European Paint Importers v O’Callaghan [2005] IEHC 280 for consideration of non-solicitation clauses in this jurisdiction. And on non-poaching covenants, see further Dawnay Day & Co Ltd v De Braconier D’Alphen [1997] IRLR 442 and SBJ Stephenson v Mandy [2000] IRLR 233.

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Chapter 17

Redundancy A.

MEANING

[17.01] The dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy (s 6(4)(c)) but redundancy situations can be complex because s 6(3) of the 1977 Act creates a presumption of unfairness where there has been an unfair selection for redundancy.1 Even if s 6(3) does not apply, the onus is on the employer to justify selection of employees for redundancy, and the dismissals will be considered under s 6(1) of the 1977 Act.2 A dismissed employee may therefore be entitled to an award for unfairness on top of his or her redundancy pay. Unfair selection for redundancy is dealt with in Chapter 21. [17.02] ‘Redundancy’ has the same meaning for unfair dismissal as for the Redundancy Payments Acts 1967 to 2014. Section 7(2) of the Redundancy Payments Act 1967, as amended by s 4 of the Redundancy Payments Act 1971, provides that a person who is dismissed shall be deemed to have been dismissed by reason of redundancy if his dismissal results ‘wholly or mainly’ from one of the following:

1

2

(a)

the fact that the employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)

the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

There are specific provisions for purposes of the Redundancy Payments Acts where employees are not permitted to return to work under the Maternity Protection Act 1994, s 40(2), the Parental Leave Act 1995, s 23(3)(b), the Adoptive Leave Act 1995, s 29, the Carer’s Leave Act 2001, s 26 and the Paternity Leave and Benefit Act 2016, s 26(4). The date of termination is the expected date of return. On the ‘right not to be made redundant’ see Kaur v MG Rover Group Ltd [2005] ICR 624 (collective agreement provided for no compulsory redundancies but the Court of Appeal (overturning the High Court on this point) found that this was not a contractual right as it had not been incorporated into the contract employment. The relevant language used in the collective agreement was regarded as ‘expressing an aspiration rather than a binding contractual term’ (per Keene LJ at para 32)). Kaur was applied albeit in the different context of working time in George v The Ministry of Justice [2013] EWCA Civ 324. Boucher v Irish Productivity Centre UD 882, 969, 970 and 1005/1992. Boucher was unsuccessfully relied on by the complainant in Complainant v Respondent ADJ-00004482 (12 April 2017).

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[17.03] (c)

(d)

(e)

the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

[17.03] The burden of proving dismissal for a redundancy reason in unfair dismissal claims is the opposite of that under redundancy payments legislation. In the latter, redundancy is presumed unless the employer proves otherwise.3 In resisting an unfair dismissal claim, an employer may wish to do the opposite, ie to establish the fact of redundancy as a defence to an unfair dismissal claim. [17.04] Paragraphs (a) and (b) are impersonal, relating to the requirements of the business. Paragraph (c), by its very nature, will involve selection or de-selection of employees and can be vital in a programme aimed at securing numerical flexibility for an employer. Paragraphs (d) and (e) are focused on job and person specifications or on the needs of the business for change.4

B.

NEED FOR PROOF

[17.05] To satisfy the Workplace Relations Commission or the Labour Court that an employee was dismissed by reason of redundancy under s 6(3) there must be a redundancy situation and redundancy must be the main reason for dismissal. If the employer cannot prove both, and cannot prove one of the other potentially fair reasons, dismissal will be unfair. Redundancy has become a common justification for dismissal. For this reason strict proof is required.5 The importance of this point was memorably captured by the High Court (Charleton J) in the leading case of Panisi:6 ‘In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is 3 4

5

6

Redundancy Payments Act 1971, s 10. On the impersonality of redundancy, see Moloney v W Deacon & Sons Ltd [1996] ELR 230; Panisi v JVC Europe Ltd [2012] ELR 70. Eg McDonnell v The Drawing Centre Ltd UD 715/1993; Elbay v Iona National Airways Ltd [1993] ELR 166; Flood v Vanguard Plastics (Ire) Ltd UD 575/1990; O’Brien v Truvale Contractors Ltd UD 264/1990; O’Neill v Murphy UD 122/1980; O’Byrne v Orchard Insurance Ltd UD 172/1979; O’Dowd v Collis Lee Ire Ltd UD 170/1979; Carroll v Condons Cash & Carry Ltd UD 160/1979; Kennedy v Cappincur Joinery Ltd UD 38/1977; McGinn v Murnaghan Bros Ltd UD 13/2009; Elark Developments Ltd v Flanagan UD 16/97. Panisi v JVC Europe Ltd [2012] ELR 70 at para 5. Followed in Employee v Adrian Lee Services Ltd UD 2073/2009 and A Housing Aid Manager v A Local Partnership Development Company ADJ-00004920 (11 July 2017).

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[17.07]

apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.’

[17.06] In O’Hare v Rotaprint Ltd,7 Kilner Brown J criticised the way the original intention of redundancy legislation in the UK had been ‘clouded by a slipshod acceptance of a bottomless purse’. In his view the public has a right to insist that entitlement to redundancy payment be properly and strictly challenged; the right stems from the fact that the relevant Department (in Ireland – Enterprise, Trade and Employment) partly refunded an employer where it had made redundancy payments.8 This situation has now altered in Ireland and rebates are no longer made. Notwithstanding this, however, a similar normative argument can, of course be advanced for transparency in the context of redundancy payments: employers should not be able to classify a dismissal as a redundancy unless that is genuinely the case.

[17.07] When a redundancy is challenged, the Workplace Relations Commission, like its predecessors the Rights Commissioner Service and the EAT, must examine closely the motivation of the employer, being particularly alive to the risk of a contrived redundancy situation masking a targeted dismissal of the complainant for other reasons.9 In Capaldi v C-Step Shoes Ltd,10 for example, the EAT found on the basis of the evidence before it that: ‘... despite the many responsibilities placed on [the claimant], the Managing Director did threaten to let her go at his first interview with her. In our view he would have done so if he could but ... instead, he contrived a redundancy so as to get rid of her.’

Similarly, in Melroy v Floraville Nurseries Ltd11 the EAT was not satisfied on the evidence that a genuine redundancy existed. A particular service which was part of the employee’s duties had diminished but the remaining areas of work where she was employed, and for which other employees were recruited on a part-time basis, continued. 7

8 9

10

11

O’Hare v Rotaprint Ltd [1980] ICR 44; further see Forrest, ‘Political Values in Individual Employment Law’ (1980) 43 MLR 361, 375; and Hyman and Brough, Social Values and Industrial Relations (Basil Blackwell, 1975) at 9. Redundancy Payments Act 1967, s 29(1). A leading authority on point in recent years is the decision of the High Court (Charleton J) in Panisi v JVC Europe Ltd [2012] ELR 70. Capaldi v C-Step Shoes Ltd UD 806/1989. Other cases where no redundancy was found include Smurfit (Ire) Ltd v O’Brien UD 640/1992; Rodgers v Linde Refrigeration Ltd UD 613/ 1989; Costello v Kellys Carpetdrome UD 78/1980; Garrett v The Botany Weaving Mill Ltd UD 355/1979; Gallivan v Irish Commercial Society Ltd UD 319/1979; Byrne v PJ Hegarty & Sons Ltd UD 126/1978; Employee v Employer RP 119/2012; Gowie v Citibank Europe UD 1128/2013; Neary v C&F Automotive Ltd UD 1245/2014, TE 52/2015. Melroy v Floraville Nurseries Ltd UD 703/1993.

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[17.08]

Redmond on Dismissal Law

[17.08] Not surprisingly, statements made by a Minister in Dáil Éireann regarding security of employment in a particular workplace and promises that redundancy would not take place constitute, in the opinion of the WRC, ‘unilateral statements’ that cannot be taken to amount to a guarantee by an employer that, if an employee’s job comes to an end, he or she will be assured of suitable alternative employment, and if such employment is not secured that there will be an entitlement to redress for unfair dismissal.12

C.

‘WHOLLY OR MAINLY’

[17.09] Redundancy must be the main reason (at least) for the dismissal. Thus, in Flanagan v MW Wallpaper Specialists Ltd,13 the claimants sought to establish that their dismissal was by reason of joining a trade union. The EAT accepted that ‘at least some of the evidence’ adduced before it pointed in the direction of that being so. However, on the facts of the case, there was an inescapable conclusion that a branch of the respondent had been totally closed down. No one had since been employed to work at the relevant branch. Notwithstanding reservations about the reasons adduced for the closure, namely, the alleged failure of the branch to achieve company targets for individual branches, there was a redundancy situation which the EAT was obliged to acknowledge. [17.10] By contrast, in Daly v Hanson Industries Ltd,14 the EAT found that there was ‘a redundancy element’ in the circumstances before it but the dismissal did not result ‘mainly’ from it. The proximate cause of the claimant’s dismissal lay elsewhere. The facts revealed that the employee had been dismissed on the morning after she had given evidence before another division of the EAT in the hearing of a claim by the former general manager of the company. In Daly, the EAT suggested that when considering a redundancy defence raised by an employer, the defence may be tested in two ways: (a) (b)

was the redundancy genuine, or did the dismissal take place under the cloak of redundancy? was there a cause and effect relationship between the redundancy and the dismissal?

[17.11] It noted that s 6(4) of the Unfair Dismissals Act 1977 which provides, inter alia, for the redundancy defence, is expressed to be ‘without prejudice to the generality of subs (1) [of s 6]’. Therefore, even if a cause-and-effect relationship had been shown (and the EAT was not concluding that it had) the WRC (as was the case formerly with the EAT) is still required to have ‘regard to all the circumstances’ in considering whether the dismissal is unfair. In Daly, the EAT was obliged to have regard to ‘the circumstance that the dismissal took place when it did’, at the first available opportunity after the claimant had left the witness box. It also had to have regard to the circumstances of a 12

13

14

Riordan v Dairy Disposal Co Ltd UD 55/1979 (the EAT suggested the claimant might have some redress at common law). Flanagan v MW Wallpaper Specialists Ltd UD 153, 154, 155, 156/1989. In the UK see Hindle v Percival Boats Ltd [1969] 1 WLR 174. Daly v Hanson Industries Ltd UD 719/1986. Daly was successfully relied on by the complainant in A Cookery Retail Manager v A Cookery Retailer ADJ-00004428 (25 April 2017).

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[17.13]

transatlantic call made by the employer’s works manager to his superior in America after the claimant had given her evidence, in which, according to his evidence, he had been instructed to ‘go ahead with the redundancy now’.

[17.12] When advising a company on a reorganisation, it is essential to know whether there may be other background factors regarding employees whose jobs will become redundant. If so, this will probably result in a company failing the cause-and-effect test. A good example is provided in Edwards v Aerials and Electronics (Ireland) Ltd.15 The claimant was managing director of the Irish subsidiary of a company based in Belfast. The Dublin company was experiencing losses. It was decided to cut the latter’s overheads by removing a layer of management and running the company from Belfast. The managing director gave evidence of disagreements at board level and of other matters regarding attitude and disregard of his authority. He succeeded in convincing the EAT that there were ‘major doubts’ as to whether the redundancy was genuine. It said: ‘We recognise that the function of a full time managing director no longer exists but we must direct our minds to the cause and effect relationship between redundancy and dismissal ... In other words, was the reorganisation a cause or a consequence? On balance, we are inclined to the latter view.’

This passage was recently expressly cited and referred to by the Workplace Relations Commission as ‘thought provoking’16 and it requires careful consideration in the context of bringing or defending any redundancy case. There may, on the evidence, be an overall situation of redundancy in a particular workplace but the cause-and-effect approach necessitates that an employee’s own job must be directly affected.17 [17.13] The notion of change runs through all the five paragraphs which define redundancy. This was emphasised by the EAT in its leading determination in St Ledger v Frontline Distribution Ltd:18 ‘This means change in the workplace. The most dramatic change of all is a complete close down. Change may also mean a reduction in needs for employees, or a reduction in numbers. Definitions (d) and (e) involve change in the way the work is done or some other form of change in the nature of the job. Under these two definitions change in the job must mean qualitative change. Definition (e) must involve, partly at least, work of a different kind, and that is the only meaning we can put on the words “other work”. More work or less work of the same kind does not mean “other work” and is only quantitative change. In any event the quantitative change in this case is in the wrong direction. A downward change in the volume of work might imply redundancy under another definition, (b), but an upward change would not.’ 15 16 17 18

Edwards v Aerials and Electronics (Ireland) Ltd UD 236/1985. An Employee v An Employer ADJ-00002352 (25 November 2016). Elbay v Iona National Airways Ltd [1993] ELR 166. St Ledger v Frontline Distribution Ltd [1995] ELR 160, followed in Lefever v The Trustees of the Irish Wheelchair Association UD 492/1995; Hurley v Royal Cork Yacht Club [1997] ELR 225.

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[17.14]

D.

Redmond on Dismissal Law

STRIKE OR INDUSTRIAL ACTION

[17.14] A complete close-down may take place in circumstances involving strike or industrial action. The EAT will be required to embark on ‘an exact analysis of the facts’,19 to determine whether dismissal was attributable wholly or mainly to the closure of the business or to the industrial action. The direct cause of closure may be the industrial action. Might this be classified as ‘self-induced redundancy’ thereby disentitling an employee to redundancy pay? No, according to the logical approach of the British National Industrial Relations Court in Sanders v Ernest A Neale Ltd:20 ‘We should like to take this opportunity of exorcising the ghost of “self-induced redundancy”. It can certainly occur, but as such it has no legal significance. Interruption of service due to industrial action can cause customers to look to competitors or to turn to substitute materials or services. This can lead to a diminution in the requirements of the business for employees to carry out work of a particular kind and to workers being dismissed. But the mere fact that employees’ action created the redundancy situation does not disentitle them to a redundancy payment. The entitlement depends upon the words of a statute and there is no room for any general consideration of whether it is equitable that the employee should receive a payment.’

[17.15] In Sanders it was the dismissal resulting from industrial action which closed the business. In Bates v Model Bakery Ltd,21 the defendant argued that the plaintiffs had been informed the day following commencement of strike action that continuation of the action would result in certain permanent closure of the business before week’s end; as they therefore knew the effect of continuing to strike, they had, it was contended, frustrated their contract of employment. Frustration, of course, cannot be self-induced. The Supreme Court rejected the defendant’s argument. There was ‘no authority or legal principle which would justify’ it.22 Instead, s 7(2)(a) of the Redundancy Payments Act 1967 was applied to the circumstances. The dismissals were attributed to the statutory reason. Around the time the bakery wrote to the plaintiffs alleging that they had effectively frustrated their contracts as a result of their unauthorised withdrawal of labour, the bakery closed down.

[17.16] An employer may cease to carry on business ‘in the place’ where the employee was employed. If an employee is normally employed in one place, and the contract does not expressly or impliedly involve mobility, there will be redundancy if the employer ceases business in the place of his employment. Such an employee cannot be instructed to transfer to another place of work (unless the change would be insignificant23) as this might constitute a breach of the contract of employment entitling the employee to resign and claim constructive dismissal.24 19 20 21

22 23

24

Sanders v Ernest A Neale Ltd [1974] IRLR 236 at 240. Sanders v Ernest A Neale Ltd [1974] IRLR 236 at 239. Bates v Model Bakery Ltd [1992] ELR 193; similarly in E & J Davis Transport Ltd v Chattaway [1972] ITR 361 (NIRC). Bates v Model Bakery Ltd [1992] ELR 193 at 202 per Egan J. As, involving a relatively small area, see Margiotta v Mount Charlotte Investments Ltd [1966] ITR 465. Chapter 19.

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E.

[17.19]

REORGANISATION

[17.17] Many of the changes underlying redundancy cases come under the heading of reorganisation. New technology may replace manual dexterity: hence the requirements of the business for employees to operate in the older way will cease.25 Or the statutory ground at (d) may apply ([17.02]). The EAT in Britain held that an employee passes the low hurdle of showing that dismissal of an employee for refusing to agree to proposed changes in terms and conditions of employment was for some other substantial reason for dismissal where some advantage to the business can be shown. Quantification thereof was not necessary: Kerry Foods Ltd v Lynch.26 [17.18] Where the employer’s requirements are expected to diminish, the diminution must be expected to occur at or within a very short time after the alleged redundancy (the cause-and-effect principle). Otherwise, as the EAT pointed out in Keenan v The Gresham Hotel Ltd,27 an employer could greatly reduce the redundancy entitlements of its employees by serving the relevant statutory forms (RP50 Forms) on them prematurely.

[17.19] ‘Work of a particular kind’ referred to in s 7(2)(b) is likely to be interpreted qualitatively. In Dinworth v Southern Health Board,28 the question was whether day work was different to night work. The EAT said: ‘In any contract of employment, whether written or verbal, either party is entitled to stipulate for what either party considers to be essential terms. In the case of most daily occupations, such as work in offices and shops, night work does not enter into the parties’ considerations. In such cases, it would be a radical departure from the parties’ understanding of their contractual responsibilities if an employer was to say, for instance, to his office secretary, “from now on I will want you to work from midnight to eight o’clock in the morning two nights a week”. In our view that would entitle the employee, when she refuses the change and is dismissed, to assert that her dismissal was due to redundancy on the basis that the employer’s requirements for a secretary to work the conventional office hours had ceased and that what he wanted in future was someone who would be prepared to work a night shift. If, on the other hand, the same employer, when advertising for a secretary had stipulated that he wanted someone who would work two nights per week, the situation would be 25 26 27 28

Sartin v Cooperative Retail Services [1969] ITR 392. Kerry Foods Ltd v Lynch [2005] IRLR 680. Keenan v The Gresham Hotel Ltd UD 478/1988. Dinworth v Southern Health Board UD 284/1977. Different considerations will apply to a CEO than to a secretary. In Cobley v Forward Technology Industries plc [2003] IRLR 706, the English Court of Appeal, affirming the EAT on this point, held that dismissal of a company’s chief executive following a hostile take-over of the business may be for ‘some other substantial reason’. As Mummery LJ stated at para 28: ‘The tribunal treated as relevant to the fairness of [the claimant’s] dismissal the fact that he would have been aware, as an experienced businessman, that he risked being removed from the board, if he lost the take-over battle. He was likely to have to go. They were the commercial realities relevant to his position as chief executive with a seat on the board and they were relevant to the issue of the fairness of the dismissal of someone in his position in those circumstances.’

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[17.20]

Redmond on Dismissal Law

different and the employee who is dismissed for refusing to keep to her contract would fail because the employer’s requirements have not changed. In considering the phrase “work of a particular kind” in s 7(2) of the Act as amended, we are of the opinion that in the hypothetical cases mentioned, day work is work of a different kind from night work.’

[17.20] This was repeated, and approved, in Kelleher v St James Hospital Board,29 where ‘on call’, as against part-time, work was concerned. The employer hospital experienced no change in the actual volume of nursing work in the area concerned but decided that it should be performed by one full-time nurse rather than two part-time nurses, which included the claimant. The EAT considered whether the employer’s requirements for part-time nurses to carry out work of a particular kind had ceased or diminished. The claimant had been told that, as she had been replaced by a full-time nurse, she would be ‘on call’ thereafter. The EAT concluded, applying Dinworth above, that work of a part-time nature was work of a different kind from ‘on call’ work. The employee was therefore successful in her claim for a redundancy payment. One of the commonest forms of reorganisation arises from downsizing (or ‘rightsizing’ as it is sometimes called), ground (c). In such circumstances an employee’s work is likely to be absorbed by fellow employees.

F.

REDEPLOYMENT

[17.21] A company may prefer to redeploy staff whose jobs are redundant.30 This may have employment equality implications, as where a job which would be a promotion post is not advertised within the company but instead is offered to a redeployed employee. An employee surplus to requirements that is transferred to another section or unit may also displace another employee who is in consequence dismissed. The employer’s defence will also be redundancy regarding the second employee.31 Again, the essential issue will be the proximate cause of the employee’s dismissal and the WRC will need to analyse the facts very carefully. It will not be automatically assumed that because an employee is replaced by an employee whose role was also redundant that his or her dismissal is wholly or mainly for reasons of redundancy. Where an employee’s position is at risk of redundancy, the employee has a duty meaningfully to engage with the employer to explore alternative roles.32

G.

CHANGE OF EMPLOYMENT STATUS

[17.22] An employer may reorganise its business so as to minimise liability under employment protection statutes. This may involve a switch for its employees from 29 30 31

32

Kelleher v St James Hospital Board UD 59/1977. See Harris v Southwest Doctors On Call Ltd UD 2012/2011, RP 2594/2011. So called ‘bumped redundancy’: see W Gimber & Sons Ltd v Spurrett [1967] ITR 308; Gordon v Adams (Dalkeith) Ltd [1972] ITR 81 (MRC). In Church v West Lancashire NHS Trust (No 2) [1998] IRLR 491 the EAT held that ‘bumping’ does not fall within the statutory definition of redundancy in British law. O’Rourke v Valcroft Limited t/a Mr Binman [2015] ELR 209.

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[17.25]

employment to self-employment. Provided other matters do not come into play,33 an employee in such circumstances will be dismissed for redundancy since the requirements of the business for ‘employees’ to carry out work of the particular kind will have ceased or diminished. But the facts will be important. For example, a transformation in employment status may be primarily motivated by a wish on the employer’s part to divest itself of someone with a poor timekeeping record.

[17.23] In Collinge v Turned Parts Ltd,34 the employer offered the claimant employee along with others a transformation to sub-contract work. The company was incurring heavy losses and all employees were put on protective notice. Some employees advised the employer that they would be unable to work on a sub-contract basis. The employer agreed to retain them as employees and to pay them as piece workers. The claimant had not discussed the offer of sub-contract work with his employer but, according to the evidence, sought his termination papers. He was not prepared to sign a contract engaging him as a sub-contractor. The EAT found that the claimant was dismissed by virtue of the change in his contract of employment from that of employee to subcontractor. It went on to find the dismissal unfair because fellow employees of the claimant were given the option of continuing as pieceworkers, an option not given to the claimant. The EAT appears to have decided against finding that the dismissal was for redundancy.

H.

FAIRNESS

[17.24] The question arises whether, if a genuine redundancy exists, fairness may be raised. It would be difficult to deny fairness a role in any dismissal under an Act the intention of which is to provide redress for employees unfairly dismissed from their employment. Inflexible rules of automatic (deemed) fairness or unfairness would be contrary to the spirit and purpose of the legislation and would be capable of producing unfairness in certain circumstances. The WRC should adopt a balanced assessment of the overall interactions between the parties surrounding the redundancy process. Thus, even where the employer can be criticised for some elements of its interaction with the individual whose role is ultimately made redundant, the redundancy when looked at in its totality may not necessarily amount to an unfair dismissal.35 [17.25] The preceding chapters have referred to the governing principle set out in s 6(1) of the 1977 Act wherein a dismissal is deemed unfair: unless having regard to all the circumstances, there were substantial grounds justifying dismissal.

Section 6(4) enjoys the same preamble as its fellow sub-paragraphs: Without prejudice to the generality of sub-s (1) ....

Just as a capability or conduct dismissal is not automatically fair, neither should a dismissal wholly or mainly for redundancy be automatically fair.36 To be consistent with 33 34 35

As in Brennan v Foley UD 277/1991. Collinge v Turned Parts Ltd UD 660/1990. Nigrell v Graham UD 690/2013; O’Rourke v Valcroft Limited t/a Mr Binman [2015] ELR 209; A Complainant v A Technology Company ADJ-00000020 (2 June 2016).

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[17.26]

case law it must follow that a dismissal on grounds of statutory redundancy is capable of being unfair (admittedly this will happen only infrequently). For example, a redundancy might be effected at a particular time deliberately chosen by the employer to ensure that implementation of an enhanced pension scheme (which would have impacted on an employee’s financial future) did not apply. Or a redundancy might be effected in a harsh manner, leaving an employee five minutes to clear his desk and surrender company property.

[17.26] An opportunity was afforded the EAT to endorse the view that redundancy dismissal must also be fair in Phillips v International Health Benefits (Irl) Ltd.37 The opportunity, however, was not taken up. The employee did not dispute the redundancy of his job but he argued it was unfair under the 1977 Act because: (i)

there had been a breach of explicit assurances of full consultation;

(ii)

by virtue of his being de facto managing director of the company, there had been a breach of an implicit assurance of consultation;

(iii)

there had been deception about what was happening with regard to the company’s intentions;

(iv)

the board never addressed the adverse impact of redundancy on the employees nor the means of minimising them; and

(v)

the timing and manner of his redundancy, and its sequel, gravely damaged his standing in the insurance community and in public agencies and seriously damaged his prospects of obtaining other employment at his then level. If he had been consulted and the time, manner and follow through had been more sensitively arranged, he would not have been so damaged and a fair and reasonable employer would not have acted so abruptly and in disregard of the claimant’s reputation.

The EAT cited an extract from s 6(1) of the 1977 Act emphasising not the pertinent phrase ‘having regard to all the circumstances’, but, the requirement of ‘substantial grounds justifying dismissal’. As redundancy is ‘a substantial ground’ and the claimant was dismissed by reason of a ‘genuine’ redundancy the EAT found that the respondent had discharged the onus of proof.

[17.27] An important factor of influence in this regard is s 6(7) of the 1977 Act inserted by the amending 1993 Act, which permits the WRC, in determining if a dismissal is unfair, to have regard if ‘appropriate to do so’ to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.38 The EAT remarked in Barton v Newsfast Freight Ltd39 that the claimant would have failed 36

37

38 39

This has been accepted regarding dismissals allegedly involving unfair selection for redundancy: Boucher v IPC UD 882/1992. See also Shortt v Data Packaging Ltd [1996] ELR 7. See para [17.02] and para [21.45]. Phillips v International Health Benefits (Irl) Ltd UD 331/1993. See Forde, ‘Beyond what is deemed unfair redundancy’ [1994] ELR xxiii. Contrast the holistic approach of the EAT to fairness in Jeffers v DCC Ireland Ltd UD 169/2000 as against the narrower view in Hayes v O’Kelly Bros Civil Eng Ltd UD 208/2001. See also Saul v Mahoney Manufactured Signs UD 37/2003. Cited where facts involved redundancy: Farrell v Newmans Athboy Ltd UD 613/1996. Barton v Newsfast Freight Ltd UD 1269/2005.

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[17.29]

‘except for this provision’. While it understood the trading difficulties of the employer, it took the view that it had kept the employee claimant in the dark and had handled the dismissal badly.

[17.28] It is important that employers identify and explore the feasibility of pursuing less drastic measures to redundancy. Failure to do so may result in a dismissal in an alleged redundancy situation being deemed unfair. This is illustrated, for example, in the approach of the EAT in Keogh v Mentroy Limited.40 There the claimant was promoted from his position as sales assistant to that of manager in the employer’s store. A downturn in business demand prompted the decision to make the position of manager redundant, as this position was the most financially costly for the employer. The employer had also received complaints from other staff members about the employee and his management style. The employee was not given the option of returning to his former role. In the days immediately following the employee’s redundancy another staff member resigned and a notice advertising full- or part-time positions was placed in the employer’s shop window. The EAT held that in deciding to make the employee redundant the employer had taken into account factors other than the decline in business, namely the complaints from other staff members. The EAT also found, however, that the employer did not adequately consider other alternatives to redundancy and that the reasons given by him were not in fact the reasons for the dismissal. Accordingly, the EAT found that the employee had been unfairly dismissed. [17.29] In Sheehan and O’Brien v Vintners Federation of Ireland Ltd41 the EAT held that the claimants had been unfairly dismissed even though the redundancy was found to be genuine. The employees provided proposals to the company on how their jobs could be retained and the company did not take these into consideration. The tribunal was critical of, inter alia, the employer’s failure to ‘consider earnestly the claimants’ proposals regarding the reorganisation of the work which would have realised significant savings’.42 Finally, an important point to be noted regarding alternative employment is that, pursuant to s 15 of the Redundancy Payments Act 1967 as amended, an employee will lose his or her entitlement to redundancy payment where [s]he unreasonably refuses an offer of alternative employment.

40 41 42

Keogh v Mentroy Ltd UD 209/2009. Sheehan and O’Brien v Vintners Federation of Ireland Ltd [2009] ELR 155. Sheehan and O’Brien v Vintners Federation of Ireland Ltd [2009] ELR 155 at 168.

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Chapter 18

Other Substantial Grounds A.

INTRODUCTION

[18.01] The category of ‘other substantial grounds’ is a general residual category of reasons justifying dismissal, not restricted to those otherwise listed in subs (4) of s 6 of the Unfair Dismissals Act 1977. It is envisaged by the wording of s 6(6), which requires the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in s 6(4) ‘or that there were other substantial grounds justifying the dismissal’. The requirement of a ‘substantial’ ground deters employers from dismissing for a trivial reason. [18.02] This category of defence is particularly relevant to cases of termination where the employer’s interests or requirements are concerned. Thus, a reorganisation of the business, or a transfer of the whole or part thereof, or a contracting out, may be the context of such dismissals. There is authority for the proposition that an irreparable breakdown of the mutual duty of trust and confidence1 may constitute a substantial ground justifying dismissal;2 in this context, however, it is salutary to recall the words of the High Court (Barrett J) in Boyle v An Post:3 ‘On a general note, the court would observe that employers ought to be careful before they claim in court, or allow their advisors to so claim, that they have no confidence in a particular individual. No confidence? None? It is a very powerful assertion to make, and not one that ought lightly to be made. We all make mistakes; if and when we do it is well for those in a position of authority to remember Lincoln’s adage that ‘mercy bears richer fruits than strict justice.’

(1) Employer’s interests [18.03] The financial security of the employer may be involved. An example is provided in Brennan v Bluegas Ltd,4 a case taken by an employee who allegedly had three accidents within six months. The employer’s two underwriters had refused to 1 2

3 4

Considered in detail in Ch 5 of this work. Perkins v St George’s Health Care NHS Trust [2005] IRLR 934 (which involved an employee with whom colleagues could not work), considered recently in Express Medicals Ltd v O’Donnell [2016] UKEAT 0263_15_0902 (9 February 2016). Boyle v An Post [2015] IEHC 589 at para 20. Brennan v Bluegas Ltd UD 591/1993. An unusual example of employer’s interests is found in Willow Oak Developments Ltd v Silverwood [2006] IRLR 28 (EAT), 607 (CA) (refusal to sign restrictive covenant, whether covenant reasonable a factor to be taken into account in determining whether dismissal unfair and thus subject to band of reasonableness test). Similarly see Forshaw v Archcraft Ltd [2005] IRLR 600.

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provide cover as a result and substantially increased the existing premium. The employer told the EAT it had failed to secure alternative insurance cover from six other insurance companies. Accordingly, the EAT found the dismissal was not unfair.

[18.04] If the circumstances render it appropriate, however, an employer must look at possible alternative positions for the employee.5 And in all cases, there must be evidence before the WRC in support of the view that the employer cannot effectively insure the claimant.6 [18.05] The employer’s interests may be non-financial concerning, for example, the maintenance of a particular ethos.7 In Flynn v Power,8 the appellant school teacher who was involved in a relationship with a married man was employed by nuns at a convent school in a country town. She had been asked to end the relationship as the nuns feared she was giving a bad example to the school students. Costello J in the High Court was referred to, among other cases, a Canadian authority, Re Caldwell and Stuart.9 In that case the Supreme Court of Canada was concerned with a contract of employment of a Roman Catholic teacher in a Roman Catholic school which was not renewed after she had married a divorced man in a civil ceremony. At issue was whether or not it was contrary to the Human Rights Code of British Columbia for a denominational school to refuse to employ a teacher who had personally disregarded the teaching of the Church. The court posed the question: is the requirement of religious conformance by Roman Catholic teachers, objectively viewed, reasonably necessary to assure the accomplishment of the objectives of the church in operating a Roman Catholic school with its distinct characteristics for the purposes of providing a Roman Catholic education for its students? Answering this in the affirmative, McIntyre J said, delivering judgment for the court:10 ‘The Board [ie the Board of Inquiry under the Human Rights Code] found that the Roman Catholic school differed from the public school. This difference does not consist in the mere addition of religious training to the academic curriculum. The religious or doctrinal aspect of the school lies at its very heart and colours all its activities and programmes. The role of the teacher in this respect is fundamental to the whole effort of the school, as much in its spiritual nature as in the academic. It is my opinion that objectively viewed, having in mind the special nature and objectives of the school, the requirement of religious conformance including the acceptance and observance of the Church’s rules regarding marriage is reasonably necessary to assure the achievement of the objective of the school.’

[18.06] The appellant in Flynn claimed that her private life was her own and that she had not ‘openly’ rejected the school’s norms, as alleged. In response the High Court saw two important circumstances in the appeal before it. First, the appellant was employed in a religious, not a lay school ‘with long established and well known aims and objectives’. 5 6 7 8

9 10

McConnon v Sligo Dairies Ltd UD 1104/1993. Rabbette v BOPA (Ire) Ltd UD 123/1985; Manning v Indigo Holdings Ltd UD 1001/1994. See Ch 13. Flynn v Power [1985] IR 648; similarly Berrisford v Woodward Schools (Midland Division) Ltd [1991] ICR 564. Re Caldwell and Stuart (1985) 15 DLR (4th) 1. Re Caldwell and Stuart (1985) 15 DLR (4th) 1 at 18.

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Second, dismissal had occurred, not as a punishment for breach of the school’s code of conduct but from an assessment of the effect on the school and its pupils of a continued breach of that code. The school was entitled to conclude that the appellant’s conduct was capable of damaging their efforts to foster in their pupils ‘norms of behaviour and religious tenets’ which the school had been established to promote.

[18.07] The contract of employment in Flynn had been a very informal one. Costello J recognised that in certain circumstances it could be unreasonable to dismiss an employee for conduct which is not prohibited by the terms of the contract of employment. But, as the judge pointed out, the Act asks whether there are substantial grounds to justify the dismissal, not whether the conduct relied on to justify the dismissal is prohibited by the contract. The appellant: (a) (b)

must have known that objection could be taken that her conduct violated her obligations to the school; and she was in any event given an opportunity to alter it.

Her appeal was therefore dismissed. A constructive approach to discipline11 would better have facilitated the employer’s decision in Flynn.

[18.08] Section 37(1) of the Employment Equality Bill 1996 permitted the favouring of an employee on religious grounds in certain circumstances (‘where it is reasonable to do so in order to maintain the religious ethos of the institution’ or the taking of action ‘which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution’). Its constitutionality (and that of the Bill) was considered following reference by the President to the Supreme Court pursuant to Article 26 of the Constitution: In the Matter of Article 26 of the Constitution of Ireland and In The Matter of The Employment Equality Bill 1996.12 The Supreme Court asserted the general principle that it is not permissible to make any discrimination, or even to make any distinction, between citizens on the grounds of religious profession, belief or status. However, it is constitutionally permissible to make distinctions and discriminations on such grounds in so far as this may be necessary ‘to give life and reality to the guarantee of free profession and practice of religion’ contained in Article 44.2 of the Constitution.13 Hence the Supreme Court found that s 37(1) represented a reasonable balancing between the right to the profession and practice of religion on the one hand and the right to equality before the law and the right to earn one’s livelihood on the other.14 [18.09] However, s 37 has since been amended in light of the recent campaign to abolish the exemption provided therein. Section 11 of the Equality (Miscellaneous Provisions) Act 2015 amended s 37 by providing for a presumption of unlawful 11 12

13

14

See Ch 13. In the Matter of Article 26 of the Constitution of Ireland and In The Matter of The Employment Equality Bill 1996 [1997] ELR 132. In the Matter of Article 26 of the Constitution of Ireland and In The Matter of The Employment Equality Bill 1996 [1997] ELR 132 at 161. See, now, s 37 of the Employment Equality Act 1998 as amended by s 25 of the Equality Act 2004 and s 11 of the Equality (Miscellaneous Provisions) Act 2015.

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[18.10]

discrimination where more favourable treatment on the religious ground is granted in an educational, religious or medical institution maintained, wholly or in part, by monies provided by the Oireachtas. Additionally, if an employer takes action to prevent an employee from undermining its religious ethos, then such action must satisfy a narrowly drawn test of proportionality. Specifically, actions taken by an employer in such a case must be: (a) (b)

(c)

rationally and strictly related to the institution’s religious ethos, a response to conduct of the employee or prospective employee undermining the religious ethos of the institution rather than a response to that employee’s or prospective employee’s gender, civil status, family status, sexual orientation, age, disability, race or membership of the Traveller community, and proportionate to the conduct of the employee or prospective employee, as the case may be, having due regard to— (i)

any other action the employer may take in the circumstances,

(ii)

the consequence of that action for that employee or prospective employee,

(iii)

the employee’s or prospective employee’s right to privacy, and

(iv)

the actual damage caused to the religious ethos of the institution by the conduct of that employee or prospective employee.15

[18.10] It is also necessary to consider the Equality and Human Rights law dimensions of this aspect of the ‘some other substantial grounds’ analysis. Recent CJEU case law on religious discrimination in the workplace is helpful. In the cases of Bougnaoui16 and Achbita,17 the CJEU held that an internal rule of an employer which prohibits the wearing of visible religious, philosophical or political symbols does not constitute direct discrimination. However, there are two important caveats to this holding. Firstly, it is possible that national courts may nonetheless find such a rule to be indirectly discriminatory. Secondly, in the absence of such a rule, it is impermissible for an employer to take account of its customers’ discriminatory wishes not to be served or attended to by persons wearing religious, philosophical or political symbols.

(2) Third party pressure18 [18.11] An employer may have no reason itself to dismiss an employee. However, a third party, eg a customer or a client, may threaten to remove its business unless a particular employee is dismissed. As a result, the employer’s own business may suffer 15 16

17 18

Employment Equality Act 1998, s 37(1C). Bougnaoui Case C-157/15 ECLI:EU:C:2017:203. For analysis see Hogan, ‘Accommodation of Faith in the Workplace: European and Irish Perspectives’ (2017) 14 IELJ 37. Achbita Case C-188/15 ECLI:EU:C:2017:204. See, in a related context, Sengupta v Health Service Executive [2012] ELR 205. In addition to a remedy under the Unfair Dismissals Acts, an employee may have remedies for breach of various economic torts. See McMahon and Binchy, Law of Torts (4th edn, Bloomsbury Professional, 2013) Ch 32. Some other substantial reason may arise where an acquisition follows a hostile takeover bidding war and the MD/CEO cannot remain in place and is dismissed in accordance with his contact: Cobley v Forward Technology Industries plc [2003] IRLR 706.

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unless there is compliance. In such cases, the employer is not absolved from carrying out a full investigation into the reasons behind the third party’s concerns to see if there are reasonable grounds for their apprehension. As the EAT put it in Merrigan v Home Counties Cleaning Ireland Ltd:19 ‘The job of an employee cannot be at risk on the mere whim of a third party to the employment relationship.’

A real concern in such cases is that an employer will ‘[allow] its concern to satisfy the customer to cloud its judgment’.20

[18.12] In Kavanagh v Cooney Jennings Ltd,21 the employee pleaded guilty to charges of indecent assault. His employer approached him directly and told him he considered the nature of the charges were such that they could interfere with and damage the employer’s relationship with its customers and reduce its acceptability to them. The EAT upheld the right of the employer to dismiss and felt that it had acted as a reasonable employer. Conviction of a criminal offence which can clearly be shown to be a threat to the employer’s business comes squarely within the category of dismissals regarding which other substantial grounds may successfully be alleged by an employee.22

[18.13] The threat to the employer’s business must be real, not remote.23 In Merrigan, above, no evidence was found or indeed put forward against the employee that she was any danger or threat to her employer’s customer, a hospital. The employer was a contract cleaner. The employee was a widow with seven children, three of whom were heroin addicts. She and her family had been featured in a newspaper article. The day following its publication the secretary of the hospital contacted her employer to say that it seemed to the hospital that ‘it would look bad’ for it to have the claimant continue working there. Later, according to the employer’s evidence, it was strongly implied that the company would lose the cleaning contract when it came up for renewal if the employee was not removed. The employer offered to place the employee in two other locations, both of which she refused. Eventually she was dismissed and her letter of dismissal made it clear that it was at the request of the management of the hospital.

[18.14] The EAT by a majority held that the claimant should be re-engaged. It described the threat to the hospital as ‘at best remote’. The link between the claimant and the hospital had not been disclosed in the article. It appeared from the evidence that no effort had been made by the hospital or her employer to investigate the risk, if any, of employing the claimant. The fact that the employer had strongly requested the claimant not to approach the hospital about the newspaper article made it: ‘all the more incumbent on him to defend her interests, vindicate her good name and protect her livelihood.’ 19

20 21 22 23

Merrigan v Home Counties Cleaning Ireland Ltd UD 904/1984. See, similarly, Coutts v ISS Contract Cleaners Ltd UD 429/1996, and compare its minority finding with that in Merrigan. Collins v HP CDS Ireland Limited UD1713/2010. Kavanagh v Cooney Jennings Ltd UD 175/1983. In certain circumstances it may not be necessary to have a conviction. As in Jackson v John J McCarthy & Co Ltd UD 297/1978.

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[18.15] There is a strong contrast between the majority and minority view in Merrigan with regard to the employer’s position. To the former it was ‘a dilemma’ and the employer had ‘a strong inducement’ to terminate the employee’s contract. To the dissenting member the employer was ‘faced by an impossible alternative’ and had acted as it did ‘for their own good reasons and the protection of the positions of the other employees’. The company had had ‘no alternative’. [18.16] In sum, if a grave allegation is made by a third party regarding an employee, a ‘very high duty’ is placed on the employer in its obligations to that employee before deciding whether to terminate or continue the employee’s contract of employment. The employer should take steps ‘such as requesting a meeting at the highest level with the third party to have the details of the allegation clarified’.24 [18.17] The case law makes clear that an employer cannot abdicate its responsibility of properly investigating complaints in circumstances where a third party is the source of the complaint. In An Employee v An Employer25 the employee was employed to test the roadworthiness of commercial vehicles. Cavan County Council was responsible for policing, authorising and overseeing the testing and licensing of vehicles and an authorising officer regularly attended the employer’s business for this purpose. In April 2010, on receipt of a complaint from the Road Safety Authority, the authorising officer attended the employer’s premises and advised the employee’s supervisor that the employee had certified a commercial vehicle that was in fact not roadworthy. The vehicle had subsequently been partly burnt out and was the subject of an investigation by an insurance company. The authorising officer told the employee’s supervisor that the employee’s testing licence was suspended and that he was under investigation. He instructed that the employee was not to test or certify vehicles. The employee referred a claim to the Employment Appeals Tribunal when the employer advised him that if he could not test vehicles then he could not work. The employer maintained before the EAT that it had to comply with what Cavan County Council directed in relation to the employee’s licence or it would potentially lose its own licence. Rejecting this argument and deeming the dismissal to be unfair, the EAT was of the view that the employer had accepted the suspension imposed by Cavan County Council as a virtual dismissal and had consequently abdicated its responsibility to the employee in not investigating the matter fully and following a fair and just procedure, and in particular by not allowing the employee every opportunity to save his job. [18.18] The EAT cited Merrigan, referred to above, and stated that 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 concluding that the employer had not acted reasonably in dismissing the employee, the EAT stated that an employer is expected to show that it has conducted an investigation into the reason for the pressure being exerted by the third party and if the 24

25

Sheehan v Keatings Bakery UD 738/1989; McGuirk v Shamrock Oil Supplies Ltd UD 528/ 1996. An Employee v An Employer UD 1181/2010.

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[18.22]

enquiry reveals no valid reason for the pressure, the employer should try to persuade the third party to change his/her mind. It is significant to note that, on the basis of the employee’s satisfactory employment record, the EAT held that the most appropriate remedy was re-instatement.

[18.19] Pressure to dismiss may come from within the workforce. There may be a threat of industrial action by fellow employees, perhaps as a result of a ‘private’ dispute on the shop floor. Once more, an employer must not give in to such threats but rather treat such a dispute as of ‘vital concern’: ‘and employees, self respecting and diligent, should cooperate in every reasonable way to restore harmony between worker and worker and worker and management and also ... assist their union representative in an effort to achieve this.’26

(3) Reorganisations [18.20] Company reorganisations often involve dismissals. It is advisable for an employer to take legal counsel sufficiently early in a reorganisation so that impending dismissals can be analysed. Termination in some circumstances may be for reasons of redundancy;27 in others, it may constitute some other substantial reason. Because the statutory definition of redundancy is broad,28 more cases are likely to come within that ground. The need for legal analysis is self-evident; an employee who refuses to accept the consequences of reorganisation may resign and claim constructive dismissal or may have to be dismissed. If the reason for dismissal is redundancy it is imperative to ensure that the employee has not been selected unfairly.29 At all stages, the employer will be advised to use appropriate legal terminology, so as not to compromise the situation in any way. [18.21] A reorganisation may stop short of causing a termination of employment for reasons of redundancy. It may simply effect change. The most frequent example of this involves the introduction of new technology. Unless new systems cause a diminution in the requirements of the business for an employee to do work of a particular kind or some other redundancy ground, such changes come within managerial prerogative (they may also be the subject of collective agreements). Any resulting termination will be defended on other substantial grounds (and possibly, depending on the relevant contractual terms, disobedience to lawful and reasonable instructions).30 [18.22] A reorganisation may be in the interests of efficiency, eg where hours31 or duties are rescheduled. The Workplace Relations Commission and the courts will strive to balance the employer’s needs for improved efficiency and flexibility against the need to protect employees. 26 27 28 29 30 31

McSweeney v OK Garages Ltd UD 107/1978. See Ch 17 generally. See Ch 17. See Ch 21. Subject to a requirement for adequate training, if necessary, being provided for employees. Johnson v Nottinghamshire Combined Police Authority [1974] ITR 164.

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[18.23] In Purser v Rent-A-Tool Ltd,32 the company gave evidence to the EAT on financial difficulty. One of the employees was let go on redundancy. The claimant had been retained in employment. It was hoped to take on a part-time employee and in the period before that, the claimant was asked if he would work one extra day per week. For this he would receive additional payment. The claimant refused. [18.24] The EAT found that the claimant had been dismissed ‘because there was a unilateral and radical change’ in his conditions of employment brought about by the financial circumstances of the employer company. However, in view of the offer made to the claimant of an increase in remuneration and the stated fact that the six-day working arrangement was to be short term: ‘it was unreasonable of the claimant not to work under those conditions in the short term.’

Accordingly, his claim for unfair dismissal failed.

[18.25] Re-profiling or reclassification of jobs as a result of collective bargaining may be defended under other substantial grounds. It is not uncommon for employees, under their contracts of employment, expressly or impliedly to agree to be bound by the terms of collective agreements made ‘from time to time between the company and the trade union(s)’. As a result of collective bargaining, jobs or salaries may be reorganised. If an employee disagrees and refuses to work under the re-profiled systems, it will almost certainly not be a constructive dismissal if he resigns. Neither will it be a redundancy because the employees, through their unions, have agreed to ‘work as collectively agreed from time to time’.33

B.

TRANSFER OF UNDERTAKING

(1) General34 [18.26] Business transfers, whether of the whole or part of an undertaking, are becoming increasingly common. They may also involve contracting out of particular functions or services. It can happen that employees’ rights and duties in business transfers are dealt with by way of special contractual arrangements, or statutory provisions may be relevant.35 The European Communities (Safeguarding of Employees Rights on Transfer of Undertakings) Regulations 1980 transposed Council Directive No 77/187/EEC (often called the Acquired Rights Directive) into national law. In June 1998 the Social Affairs Council reached political agreement on a Directive (No 98/50/EC) to amend the Acquired Rights Directive, which was effected in Council Directive 2001/23/ EC. The law in Ireland is now found in the European Communities (Protection of 32 33 34

35

Purser v Rent-A-Tool Ltd UD 391/1994. A good example is Callison v Ford Motors Ltd [1969] ITR 74. See generally Collins, Employment Law (2nd edn, OUP, 2010) Ch 9; Davies and Freedland, Transfer of Employment (Sweet and Maxwell, 1982); Forde and Byrne, Employment Law (3rd edn, Round Hall, 2009) Ch 9; Barrett, ‘Rights Acquired on Acquired Rights’ (2005) 42 CML Rev 1053; Blackstone’s Guide to the New Transfer of Undertakings Regulations (OUP, 2006); Barnard, EU Employment Law (4th edn, OUP, 2012) Ch 13. For eg, the Postal and Telecommunications Services Act 1983, s 45; the Transport Act 1964, s 9; the Health Act 1970, s 37; the Insurance Act 1990, s 6.

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[18.28]

Employees on Transfer of Undertakings) Regulations (SI 131/2003). The new Regulations introduced significant changes in two areas. First employers are now subject to more onerous obligations to notify and consult employees in advance of proposed business sales. The transferor and transferee must inform representatives of their respective employees of the date or proposed date of the transfer; the reasons for same; the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them; and any measures envisaged in relation to them. This must be done where practicable within 30 days and in any event in good time before the transfer. Where measures are envisaged as a result of the transfer, eg redundancies or changes in work conditions, the transferor must consult the employee representatives with a view to reaching agreement, again within the time limit in the Regulations. Second, employees have more effective enforcement mechanisms under the Regulations. Cases under the Regulations are often referred to as ‘TUPE’ cases.

[18.27] Under current law, a dismissal connected with a business transfer is treated as being for some other substantial ground, but as in the case of other dismissals, it will not be automatically fair. The WRC will have regard to all the circumstances. It will ask questions such as whether there was consultation, or adequate information, or adequate warnings, or whether there were adequate attempts to ensure that other options besides dismissal were explored. [18.28] Where a change of employer occurs as a result of a transfer, the Transfer Regulations provide that the rights and obligations arising from an employment contract existing on the date of a transfer36 are transferred from the original owner to the new one 36

The ‘date of a transfer’ may mean one thing to a conveyancing lawyer, and another to an employment lawyer. In European law, the latter’s view is what counts and given the (in many ways unsatisfactory) verbatim incorporation of the Directive into Irish law the ‘European’ interpretation is the guiding one in Ireland. Adopting a purposive approach, the European Court of Justice has held that Directive 77/187 applies as soon as there is a change, resulting from a conventional sale or merger, of the natural or legal person responsible for operating the undertaking, who consequently enters into obligations as an employer towards employees working in the undertaking, and it is of no importance to know whether the ownership of the undertaking has been transferred: see Foreningen Af Arbejdsledere I Danmark v Daddy’s Dance Hall ApS [1988] IRLR 314; P Bork International A/S v Foreningen af Arbejdsledere I Danmark [1990] 3 CMLR 701; Ny Molle Kro [1989] IRLR 37; Abler v Sodexho MM Catering GmbH [2003] ECR I-14023. In Celtec v Astley [2006] IRLR 635 the House of Lords applied the ECJ’s ruling [2005] IRLR 647 that a transfer cannot take place over a period of time, and that the transfer takes place on the date responsibility for carrying on the business passes to the transferee, regardless of contrary agreement between the parties. The House, applying that decision to the facts before it, held that the employees were transferred from the Department of Employment to Celtec when it took over responsibility for vocational training in 1990, despite the fact that the parties believed that they were only seconded on a voluntary basis to Celtec until 1993. See further Royal Mail Group Ltd v Communication Workers Union [2010] ICR 83; J Heathman Ltd (t/a County Contractors) v Quadron Property Services Ltd & Ors [2016] UKEAT 0451_15_2201 (22 January 2016); and the determination of the Irish EAT in January 2017 in Morawska and others v Dublin Airport Authority, PLC (DAA) and ASC Airport Services Consolidated Limited TU39/2014, TU40/2014, TU41/2014, TU42/2014, TU43/2014, TU44/2014, TU45/2014.

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(reg 4). There is a clear obligation on the new employer to determine the status of each employee employed by its immediate predecessor. In Lyons v Gallagher and Others37 the EAT found there had been a chain of transfers. The evidence showed that the last transferee had made no effort to establish the number of employees, and particularly whether the claimant had been an employee of the employer immediately preceding the last transferee. The Employees (Provision of Information and Consultation) Act 2006, s 21(3) is significant here: it imposes an obligation on the old employer to notify the new employer: ‘of all the rights and obligations, arising from a contract of employment existing on the date of a transfer, which will be transferred to the transferee, so far as those rights and obligations are, or ought to have been, known to the transferor at the time of transfer.’

And: ‘A failure by the transferor to notify the tranferee of any such right or obligation shall not affect the transfer of that right or obligation …’.

[18.29] The new owner must continue to observe the terms and conditions of any collective agreement until it expires or is superseded (reg 4(2)). TUPE entitlements do not apply to employee’s rights to old age, invalidity or survivors’ benefits under supplementary company or inter-company pension schemes outside the Social Welfare Acts. The interests of employees and of persons no longer employed in the transferor’s business at the time of the transfer in respect of rights conferring immediate or prospective entitlement to old-age benefits including survivors’ benefits under a supplementary pension scheme within the meaning of the Pensions Acts are protected under those Acts (reg 4(4)(a)).38 The transferee must ensure that the interests of employees and of persons no longer employed in the transferor’s business at the time of the transfer in respect of rights conferring immediate or prospective entitlement to oldage benefits, including survivors’ benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts are protected: reg 4(4)(b).

(2) Regulation 5 [18.30] Regulation 5 of the Transfer Regulations is the core provision for the purposes of the present text. It provides that: (1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a 37

38

Lyons v Gallagher and Others UD 1531/2003. Also Keogh v McGettigan and Newsfast Freight RP 505/2004; Cowley v (1) Noonan Services Ltd and (2) Lantern Securities Ltd UD 1053/2004. MITIE Managed Services Ltd v French [2002] IRLR 512 involved profit sharing or share option schemes, and a right to participate in a scheme of substantial equivalence. See also Cetinsoy & Ors v London United Busways Ltd [2014] UKEAT 0042_14_2305 (23 May 2014). These exceptions are construed strictly: Beckmann v Dynamco Whicheloe Macfarlane Ltd [2002] ECR 1–4893. The list does not encompass early retirement benefits: Martin v South Bank University [2004] IRLR 74, considered in Smith v Trustees Of Brooklands College [2011] UKEAT 0128_11_0509 (5 September 2011).

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dismissal, the grounds for which are such a transfer, by a transferor or a transferee, is hereby prohibited. (2) Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce. (3) If a contract of employment is terminated because a transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment. (4) If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2005, relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.

The effect is to create ‘an elite of labour’: persons employed in a business or part thereof which is being transferred are automatically entitled to continue in employment with the transferee unless there are economic, technical or organisational reasons (‘ETO’ reasons) for the termination. The paramount importance attached to the principle of ‘automatic transfer’ of contracts of employment was emphasised by the European Court in Rotsart de Hertaing v J Benoidt SA (in liq) and IGC Housing Service SA.39 The mere fact of the transfer activates the rights and obligations of Directive 77/187 (now Directive 2001/23), notwithstanding a transferee’s refusal to fulfil its obligations and despite any contrary intention on the part either of the transferor or the transferee. The transferee does not have to ‘do’ anything to employ the transferor’s employees. Because transfer is automatic, it must follow that knowledge regarding the transfer on the part of the transferor, transferee or employee is irrelevant. The UK EAT has held that an employee in a business transfer does not need to be given notice of the fact of the transfer nor of the identity of the transferee.40

[18.31] The principle of automatic transfer was dramatically illustrated in a case where the date of transfer was in issue. In Celtec Ltd v Astley41 civil servants had been seconded to a newly-formed Training and Enterprise Council (TEC) for three years, at which point they were offered the opportunity to return to the civil service or to stay with the TEC. The claimants resigned from the civil service and took up employment directly with the TEC. It was accepted that there was a TUPE transfer from the civil service to the TEC but the date was debatable. The ECJ was asked whether a transfer of an undertaking can take place over a period of time as the claimants contended or whether there was a particular point in time at which the undertaking transferred. The ECJ ruled that the ‘date of a transfer’ is a particular point in time. The only date that qualified was the date on which the employees had originally been seconded. When the case returned to the House of Lords it was held that, notwithstanding the secondment arrangements, the claimant’s contracts of employment must be deemed to have been handed over to the transferee at the date of the transfer. This was so even though the employees assumed in the following three years that they were employed by the 39 40

41

Rotsart de Hertaing v J Benoidt SA (in liq) and IGC Housing Service SA [1997] IRLR 127. Secretary of State for Trade and Industry v Cook [1997] IRLR 150 criticising Photostatic Copiers (Southern) Ltd v Okuda [1991] IRLR 11. Celtec Ltd v Astley [2006] IRLR 635.

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transferor, the civil service. The legal consequences of a TUPE transfer take effect immediately, irrespective of the parties’ agreement. Secondment arrangements need careful attention as liabilities may flow for which agreement needs to be made between transferor and transferee. The effect of automatic transfer was also illustrated in G4S Justice Services (UK) Ltd v Anstey.42 Employees had been dismissed for gross misconduct but their internal appeals against dismissal were pending at the time of a TUPE transfer. Clark J found that the employees’ employment was preserved for the purposes only of determining their appeals. If they were successful then the employees would continue in employment with the transferee.

[18.32] At common law, the contracts of employment of the transferor’s employees would have been deemed to have come to an end. Such employees, because of the doctrine of privity of contract, would have had no enforceable rights against a transferee. The transfer regulations overturned the common law. As Barrington J remarked in Mythen v The Employment Appeals Tribunal and Ors:43 ‘[T]hese provisions have revolutionary implications for the relationship between employees and employers.’44

[18.33] The regulations define ‘employee’, ‘employer’ and other key terms. An employee is a person of any age, which differs from Unfair Dismissals law. The European Court held in Mikkelsen v Danmols Inventar A/S45 that Directive 77/187 aims only at partial harmonisation.

(3) Employee objection to transfer [18.34] At common law an employee has the right not to agree to a change in employer. That has long been acknowledged to be ‘the main difference between a servant and a serf’ as Lord Gower put it in Noakes v Doncaster Amalgamated Collieries Ltd.46 Notwithstanding the principle of automatic transfer under the Regulations, the Directive does not prevent an employee employed by the transferor at the date of the transfer of the undertaking from objecting to the transfer to the transferee of his contract of employment or of his employment relationship: Katsikas v Konstantinidis.47 The 42 43 44 45

46 47

G4S Justice Services (UK) Ltd v Anstey [2006] IRLR 588. Mythen v The Employment Appeals Tribunal and Ors [1990] ELR 1. Mythen v The Employment Appeals Tribunal and Ors [1990] ELR 1 at 6. Mikkelsen v Danmols Inventar A/S [1985] ECR 2639. In Viggósdóttin v Islandspóstur HF [2002] IRLR 425 civil servants were transferred to a State-owned company. The European Free Trade Area Court held that the Directive is applicable only to ‘employees’ and not to those with special protection against dismissal by virtue of their civil service status. See Mayeur v APIM [2002] ICR 1316: the Directive applies to any transfer of economic activities whether or not operating for profit. Collino v Telecom Italia [2000] IRLR 788 involved reorganisation of Italian telecom services and transfer of employees from a State body to a State-owned company. The Court of Justice held TUPE protected them. However, the Court pointed out persons concerned must be ‘workers’ subject to national employment law. Noakes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014. Katsikas v Konstantinidis [1993] IRLR 1979. In the UK, see reg 5(4A) of TUPE inserted by the Trade Union Reform and Employment Rights Act 1993. Self-evidently an employee who has resigned before the transfer cannot claim the benefit of the Transfer Regulations: Cave v Vehicle Maintenance (Dublin) Ltd and Ors [1998] ELR 319.

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European Court in Katsikas made it clear that this does not mean that the Directive requires a Member State to provide that the contract of employment must be continued with the transferor. Nor does it preclude it. It is up to the Member State. Ireland has not chosen to grant an employee a statutory right of objection (unlike some other European countries). It is strongly arguable that it should, as the current situation may deprive an employee of his common law right to refuse to accept a new employer, which could be particularly relevant where only a part of the business is being transferred. As things stand, an employee who objects to a change in employer has rights only to unfair dismissal, but this will require a change in terms and conditions adverse to the employee and will almost certainly necessitate his resignation. Where the employee is unwilling to transfer because of, for example, human resource strategies of the transferee, he will have no option but to tender his resignation which may or may not pass the test of constructive dismissal. This situation is compounded by the decision of the High Court (Edwards J) in Symantec v Leddy.48 In Symantec, Edwards J declined to recognise a ‘right to redundancy’ claim in circumstances where two employees objected to a transfer, observing that he was ‘completely satisfied’ that there was no such right in Irish law. Edwards J observed: ‘If the Irish legislature had wished the employment relationship with the transferor to continue so as to facilitate the employee in making a claim for redundancy it could have enacted legislation to that effect. It has not done so.’

(4) Jurisdiction of the Workplace Relations Commission and the civil courts [18.35] The 2003 Regulations, as amended by the Workplace Relations Act 2015, provide for a complaints procedure involving the Workplace Relations Commission and, on appeal, the Labour Court (reg 11) and the High Court (reg 12). The result is not altogether satisfactory as the Transfer Regulations are by no means limited to employees covered by the Unfair Dismissals Acts. Prior to the introduction of the Workplace Relations Act 2015, reg 10(6) provided that complaints were to be made to the Rights Commissioner within six months beginning on the date of the alleged breach of the regulations or, in exceptional circumstances, within 12 months thereof as the Rights Commissioner considers reasonable. This position, and its strictness, was recently confirmed by the EAT.49 In accordance with s 41 of the Workplace Relations Act 2015, a general period of six month now applies, subject to the discretionary power of an adjudication officer to extend the limitation to a maximum period of 12 months where the delay in submitting the complaint was due to ‘reasonable cause’. [18.36] In the UK, where the TUPE Regulations implement the Directive via statutory unfair dismissal claims, the High Court of England and Wales took the view that there is no jurisdiction to grant an injunction restraining dismissal following a transfer of the undertaking in which individuals have been employed: Betts v Brintel Helicopters Ltd 48 49

Symantec v Leddy [2009] IEHC 256. Morawksa and others v Dublin Airport Authority TU 39/2014, TU40/2014, TU41/2014, TU42/2014, TU43/2014, TU44/2014, TU45/2014.

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and KLM Era Helicopters (UK) Ltd.50 The Court could not accept the plaintiff’s argument that, in addition to statutory unfair dismissal rights, he could rely on a separate right arising from the Directive.

[18.37] Since a dismissal by reason of a transfer comes within the Unfair Dismissals Acts, the ‘prohibition’ in reg 5(2) of the Regulations of a dismissal ‘the grounds for which are such a transfer’51 does not allow or require that such a dismissal be treated as a nullity.52

(5) ‘Transfer’– early uncertainty [18.38] Article 1(1)(a) of the Directive refers to: the transfer of an undertaking, business or part of an undertaking or business to another employer as a result of a legal transfer or merger.

The type of undertaking or business was not defined in the original Directive or the transposing Irish regulations. It gave rise to continuing and considerable interpretative difficulties. The European Court of Justice proclaimed in Landsorganisationen Denmark v Ny Mølle Kro53 that: ‘The Directive ... is applicable where, following a legal transfer or merger, there is a change in the legal or natural person who is responsible for carrying on the business, and who, by virtue of that fact incurs the obligations of an employer vis-à-vis employees of the undertaking, regardless of whether or not ownership of the undertaking is transferred.’

The court found there was a legal transfer in circumstances where the owner of a restaurant had leased it to someone else but took it back following the breach of one of the terms of the lease, and operated it herself.

[18.39] In Spijkers v Gebroeders Benedik Abbattoir CV,54 the court affirmed that: ‘... it was necessary to consider whether, having regard to all the facts characterising the transaction, the business was disposed of as a going concern, as would be indicated, inter alia, by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities.’ 50

51

52

53

54

Betts v Brintel Helicopters Ltd and KLM Era Helicopters (UK) Ltd [1996] IRLR 45. The decision was reversed on appeal on different grounds: [1997] IRLR 361. European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, reg 5(1). Confirmed by the House of Lords in British Fuels Ltd v Baxendale and Meade [1998] IRLR 706. This argument was raised unsuccessfully in Wright v Hoyer Ireland Ltd UD 501/1996. Landsorganisationen Denmark v Ny Mølle Kro [1987] ECR 5465 at 5, and see too Berg v Besselsen [1988] ECR 25; followed in Guidon v Farrington [1993] ELR 98. Spijkers v Gebroeders Benedik Abbattoir CV [1986] 2 CMLR 296 at 304; also Foreningen Af arbejdsledere I Danmark v Daddy’s Dance Hall A/S [1989] 2 CMLR 517; Dr Sophie Redmond Stichting v Bartoland [1992] IRLR 366 (ECJ). This was taken to an extreme in Schmidt v Spar und Leihkasse der Fruherer Amter Bordesholm Kiel und Cronshagen [1994] IRLR 302 where the European Court held that an activity carried on by a single employee falls within the Directive. The Directive covers transfers in the context of takeovers and mergers, including a changeover of lessees running a restaurant (Daddy’s Dance Hall [1989] 2 CMLR 517) ECJ; a reversion of a tavern to the proprietor from a lessee (Ny Mølle Kro [1987] ECR 5465); the forfeiture of sale of a business under a conditional sale agreement (Berg and Busschers v Besselsen [1988] ECR 25). (contd.../)

412

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[18.42]

Self-evidently a mere sale of the transferor’s assets without more would lie outside the Transfer Regulations.55

[18.40] The European Court excluded from the scope of the Directive a transfer of administrative functions which relate purely to the exercise of public powers and which do not involve any economic activity: Henke v Gemeinde Schierke und Verwaltungsgemeinschaft ‘Brocken’.56 The transfer took place as part of a local government reorganisation. The activities transferred involved the exercise of public authority and were, according to the court, outside the concept of a ‘transfer of an undertaking, business or part of a business’. [18.41] Decisions in Ireland adhered to the test formulated by the European Court of Justice (has the business in question retained its economic identity?) to determine whether there was a transfer.57 A transfer was found in atypical circumstances such as where a lease was surrendered back to the lessor and regranted to a different lessee.58 That the business must be a going concern might be indicated by such factors as transfer of good will, trade customers and the benefit of contracts between the parties.59

(6) Change of contractors [18.42] More than any other context, difficulties regarding the meaning of a ‘transfer’ manifested themselves in relation to contracting out, or outsourcing, the process whereby specialist providers of services contract with an enterprise to perform services for it which it formerly performed itself through its own direct labour. The High Court (Barrington J) applied Ny Mølle Kro and Spijkers to contracting out in Bannon v 54

55

56

57

58 59

(\...contd) The European Court held that the Directive does not apply to a sale by a liquidator (see in particular Case 135/83 Abels v Bedrijfsverenigning voor de Metaalindustrie en de Electotechnische Industrie [1985] ECR 469). But an important finding in the High Court in Mythen, n 40 above, is that it cannot as a result be assumed that the Directive would not apply to a sale by a receiver appointed by a debenture holder. See Brett v Niall Collins Ltd (In Receivership) [1995] ELR 69; Kelly v Cavanagh, Cavanagh, Heigher Ltd (in liq) and Dubshad Ltd UD 222, 223, 224/1996 (voluntary liquidation). TUPE does not apply where there is a winding-up order the company has gone into compulsory liquidation: Perth & Kinross Council v Donaldson [2004] IRLR 121. Transfer by way of sale of shares is not covered: Print Factory (London) 1991 Ltd v Millam [2006] IRLR 923 (EAT). This barrier cannot be overcome by piercing the corporate veil. For valuable analysis by the CJEU of asset transfers see for eg Aira Pascual C-509/14 [2015] EUECJ C-509/14, [2016] IRLR 156. Henke v Gemeinde Schierke und Verwaltungsgemeinschaft ‘Brocken’ [1996] IRLR 701. Henke has been restricted by Mayeur v APIM [2002] IRLR 783. Some examples include Ryan v Kelleher UD 496/1991; Roche v Salthill Hotel Ltd UD 35/ 1995; Cannon v Noonan Cleaning Ltd UD 461/1997; Harte v Tender Meats Ltd RP 499/2001; Lyons v Gallagher and Others UD 1531/2003; Ryan v O’Flaherty [2004] ELR 180; Scanlon v Kelly UD 134/2004; Dignan v Sheehan Security Corporation Ltd [2005] ELR 222; Sposato v Aircraft Purchase Fleet Ltd ADJ-00001968. Guidon v Farrington [1993] ELR 98; Murphy v Brokencross Ltd RP 507/1995, RP 118/1996. Nova Colour Graphic Supplies Ltd v EAT and Spain [1987] IR 426; see also the determination of the Irish EAT in May 2014 in Bligh v Stobart Ireland Driver Services Ltd (TU29/2011, TU30/2011, TU31/2011).

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Employment Appeals Tribunal.60 The Court held that there was a legal transfer of a business or part of a business when the owner of a shopping centre, who employed five security staff, decided to have security duties carried out by an outside security firm on a contract basis. The business had retained its identity: ‘There has been a change in the legal or natural person who is responsible for the carrying on of the business. [The outside company] is now responsible for the carrying on of the business instead of the company.’

Implied in the foregoing is an important principle, namely, that an asset transfer is not necessary to satisfy the Transfer Regulations.

[18.43] The contracting out of management services was held to constitute a legal transfer by the European Court in Rask and Christensen v ISS Kontinenservice A/S,61 repeating the language and test of Spijkers. It acknowledged that: ‘when an undertaking entrusts by a contract the responsibility for operating one of its services, such as a canteen, to another undertaking which thereby assumes the obligations of an employer towards employees assigned to those duties, that operation may come within the scope of the Directive ... The fact that in such a case the activity transferred is for the transferor merely an ancillary activity not necessarily connected with its objects cannot have the effect of excluding that operation from the scope of the Directive.’

[18.44] A transfer must relate to a ‘stable economic entity’ ‘whose activity was not limited to performing one specific works contract’ according to the European Court in Ledernes Hovedorganisation acting for Rygaard v Danks Arbejdsgiverforening acting for Strø Mølle Akustik A/S.62 Thus there would be no transfer from one undertaking to another of, say, building works with a view to their completion where the transferor undertaking merely made available to the new contractor certain workers and material for carrying out the works in question. It could only come within the Directive, said the Court, if it included the transfer of a body of assets enabling activities of the transferor undertaking to be carried on in a stable way. The Court’s decision on the facts was the only one it could have reached if an ‘economic entity’ is to have any real meaning. [18.45] Jurisprudence under the former Directive showed the wide scope of the term ‘transfer’ in relation to contracting. Thus: the switch by a local authority of a grant from one charitable foundation to another (Dr Sophie Redmond Stichting);63 the outsourcing of management of a canteen facility (Rask);64 the contracting out of the function of refuse collecting and street cleaning to a private contractor from a local authority (UK Waste Control Ltd v (1) Wren and (2) Eastbourne Borough Council);65 the changeover of 60

61 62

63 64 65

Bannon v Employment Appeals Tribunal [1993] 1 IR 500; applied in Roche v Salthill Hotel Ltd [1996] ELR 15; Malone v Galway Shopping Centre Management Ltd UD 515/1994 and Walsh and Cotter v Denford Taverns Ltd and Bowler [1998] ELR 315; Doyle v Rimac Ltd RP 434/2004. Rask and Christensen v ISS Kontinenservice A/S [1992] ECR 1–5755. Ledernes Hovedorganisation acting for Rygaard v Danks Arbejdsgiverforening acting for Strø Mølle Akustik A/S [1996] IRLR 51. Dr Sophie Redmond Stichting [1992] IRLR 366 (ECJ). Rask and Christensen v ISS Kontinenservice A/S [1992] ECR 1-5755. UK Waste Control Ltd v (1) Wren and (2) Eastbourne Borough Council [1995] ICR 974.

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contractors to provide prison education services from a local education authority to a further education college (Kenny v South Manchester College);66 the changeover in provider of paediatric services to a local health authority (Porter v Queen’s Medical Centre Nottingham University Hospital);67 the outsourcing of the function of cleaning of the premises of a branch of a bank (Schmidt);68 the reversion to the customer from an external contractor of the functions of firefighting and baggage handling at an airport (Council of the Isles of Scilly v Brintel Helicopters Ltd);69 the outsourcing of management of a sports and leisure centre (Birch v (1) Nuneaton and Bedworth Borough Council (2) Sports and Leisure Management Ltd);70 the switch by a motor manufacturer of car dealership within the same municipality (Merckx);71 the termination of a contract for the management of hospital catering services and the conclusion of a contract for the supply of same with a second contractor where the latter used substantial parts of the tangible assets used by the first contractor (Abler);72 and the bringing in-house of a service provided by a contractor (Vidal).73

[18.46] In the first decision to signal a restrictive approach to interpretation of the Directive, the European Court of Justice held that a transfer of activities is not enough to amount to a transfer of an undertaking under EC law. In Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice,74 the Court was given an opportunity to determine whether the Directive extended to changes of contractor. While reiterating that the ‘entity’ in question must retain its identity, the Court went on to state that the fact that the service provided by the old and new contractor is similar does not mean that an economic entity has been transferred. An entity cannot be reduced to the activity entrusted to it. Consequently, said the Court, the mere loss of a service contract to a competitor cannot by itself indicate the existence of a transfer within the Directive. ‘In order to determine whether the conditions for the transfer of an entity are met, it is necessary to consider all the facts characterising the transaction in question, including in particular the type of undertaking or business, whether or not its tangible assets, such as buildings and moveable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred, the degree of similarity between 66 67 68 69 70

71 72 73 74

Kenny v South Manchester College [1993] ICR 934. Porter v Queen’s Medical Centre Nottingham University Hospital [1993] IRLR 486. Schmidt [1994] IRLR 302. Council of the Isles of Scilly v Brintel Helicopters Ltd [1995] IRLR 6. Birch v (1) Nuneaton and Bedworth Borough Council and (2) Sports and Leisure Management Ltd [1995] IRLR 518. Merckx [1996] IRLR 467. Abler [2003] ECR 1–14023. Vidal [1998] ECR 1–8179. Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice [1997] IRLR 255; distinguished in Power and Ors v St Paul’s Nursing Home and T & M Cleaning Ltd [1998] ELR 212. Süzen was applied by the EAT in Cannon v Noonan Cleaning Ltd [1998] ELR 153. A case similar to Power is Roche v Salthill Hotel Ltd [1996] ELR 15.

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the activities carried on before and after the transfer, and the period, if any, for which those activities were suspended.’75

[18.47] The Court reaffirmed that a transfer of assets is not required for the Directive to apply. However, in certain circumstances, the new employer may take over a body of assets, enabling it to carry on activities of the transferor undertaking on a regular basis: ‘In labour-intensive sectors a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, and such an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by its predecessor to that task.’

Two subsequent references to the Court of Justice illustrate the malleability of this principle. The first, Oy Liikenne,76 concerned contracting out of bus services. No vehicles or other assets were transferred; only two buses were leased for a period of three months from the transferor while waiting for new buses to be delivered. A number of drivers’ uniforms were also purchased from the alleged transferor. At the time of the transfer, the alleged transferor dismissed 45 of its bus drivers, 33 of whom were subsequently recruited by the alleged transferee under conditions less favourable than those enjoyed with their former employer.

[18.48] The Court of Justice found that in the absence of a transfer of significant tangible assets, the Directive was inapplicable. The Court affirmed Süzen but went on to hold that ‘bus transport cannot be regarded as an activity based essentially on manpower, as it requires substantial plant and equipment’. Therefore, no transfer of an undertaking had occurred and the protection offered by the Directive was avoided. [18.49] The second decision, Abler,77 concerned the contracting out of hospital catering services where the work was to be completed on site with hospital-owned equipment. The Court found that, while catering was not an activity based essentially on manpower, on the facts the company to which the catering service was outsourced had taken over control and use of substantial assets, namely the premises, water and energy and small and large equipment. The Court considered a ‘defining feature’ of the case was the requirement to prepare meals on site and thus to take over those assets.

[18.50] The Labour Relations Commission has also confirmed this multi-factorial approach in Shiels and others v Integrate Ireland Language & Training Limited.78 In that case, the Rights Commissioner found that there had been no transfer where teaching activities had moved from the first respondent to a number of individual Vocational 75

76 77 78

Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice [1997] IRLR 255, para 14. The distinction in Süzen between ‘asset reliant’ and ‘labour intensive’ business was central to the ECJ’s decision in Abler v Sodexho MM Catering Gesellschaft [2004] IRLR 168. See too Balfour Beatty Networks Ltd v Wilax [2006] IRLR 258, where plant and equipment were leased by contractors. The EAT rejected the submission that there was no transfer unless the equipment was transferred where it was essential that the undertaking used certain equipment. Oy Liikenne [2001] ECR I-745. Abler [2003] ECR I-14023. Shiels and others v Integrate Ireland Language & Training Limited [2010] ELR 41.

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Educational Committees but no property, teaching materials or training aids were transferred.79

(7) Collective Agreements [18.51] Regulation 4(2) provides that where there is a collective agreement in place at the time of the transfer, then the transferee is required to observe the terms and conditions thereof until the agreement expires, is terminated or amended. Byrne suggests that while this is the case, as some collective agreements apply generally across an industry, such as in the public sector, if the transferee is not part of that group, it is possible that the collective agreement shall not then apply to the transferee after the transfer.80 [18.52] Decisions of the Court of Justice have borne this analysis out in part. Alemo Herron81 is illuminating in this respect. In that case, a local authority (A) had transferred part of its business to a private sector employer (B). The employees who were transferred to B continued to enjoy the same terms and conditions by virtue of the public sector collective agreement. B then transferred its business to another private sector employer (C). After the transfer of the business from B to C, a new agreement was reached by the relevant local authority collective bargaining body which applied retrospectively and covered the workers employed by C by virtue of a dynamic reference clause in their contract of employment. The Court of Justice found that this agreement could not bind C. If it were to bind C, C’s freedom to conduct a business, as guaranteed by art 16 of the Charter of Fundamental Rights of the European Union, would be compromised. As the Court observed: ‘Since the transfer is of an undertaking from the public sector to the private sector, the continuation of the transferee’s operations will require significant adjustments and changes, given the inevitable differences in working conditions that exist between those two sectors. However, a dynamic clause referring to collective agreements negotiated and agreed after the date of transfer of the undertaking concerned that are intended to regulate changes in working conditions in the public sector is liable to limit considerably the room for manoeuvre necessary for a private transferee to make such adjustments and changes.’82 79

80

81 82

See also the judgment of the European Court of Justice in Klarenberg Case C-466/07, [2009] IRLR 301, [2009] ICR 1263, [2009] EUECJ C-466/07 where the Court held that Council Directive 2001/23/EC must be interpreted as applying in a situation where the part of the undertaking or business transferred does not retain its organisational autonomy, provided that the functional link between the various elements of production transferred is preserved, and that that link enables the transferee to use those elements to pursue an identical or analogous economic activity, a matter which it is for the national court to determine. For more recent Irish decisions see Winters v Strategic Arts Management Co Ltd [2012] ELR 286; Bligh and others v Stobart Ireland Driver Services Ltd [2015] ELR 32; Electric Skyline Ltd v Mullen and others [2017] ELR 91. Byrne, ‘Transfer of Undertakings’ in Regan (ed), Employment Law (Tottel Publishing, 2009) at para [19.27]. Alemo Herron [2013] ICR 1116. Alemo Herron [2013] ICR 1116 at paras 27–28.

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[18.53]

[18.53] While the Irish regulations are in principle consistent with the Directive’s permissive approach in allowing the application of more favourable provisions, the Court rejected dynamic reference clauses as such a measure to be inconsistent with the freedom to conduct a business.

[18.54] More recently, in OGB,83 the Court of Justice held that, despite the rescission of a collective agreement in a parent company after the transfer of its employees to a subsidiary where a separate collective agreement with less favourable terms remained extant, the terms and conditions of the agreement rescinded remained legally enforceable such that the transferred employees could still benefit from them.

(8) Definition of ‘transfer’ in Regulations [18.55] Regulation 3(2) of the 2003 Regulations defines ‘transfer’ as ‘the transfer of an economic entity which retains its identity’. According to the same provision, an ‘economic entity’ means: an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.

Regulation 3 also provides: (3) These Regulations shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain. (4) An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a transfer for the purposes of these Regulations.

[18.56] Unfortunately the long awaited and necessary (from employer and employee perspectives) definition of transfer merely brings together and reiterates the jurisprudence of the European Court of Justice. Hence inconsistencies will continue to dog TUPE Regulations. As is evident from Süzen (para [18.43]) all the facts will be relevant. Cox, Corbett and Ryan provide a non-exhaustive list of seven factors:

83 84

–

the type of business or undertaking concerned;

–

the extent to which the undertaking/part of the undertaking has sufficient structural organisation to enable it properly to be termed an economic entity;

–

whether machinery that was formerly used is still being used;

–

whether goodwill has been transferred;

–

the degree of similarity of activities between the original and allegedly transferred undertaking and the duration of any interruption of the activities; and

–

whether or not customers and/or employees are transferred.84

OGB [2014] ICR 1152. Cox, Corbett and Ryan, Employment Law in Ireland (Clarus Press, 2009) at 810.

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[18.60]

(9) Transferor and transferee [18.57] A claim for unfair dismissal can be brought against either transferor or transferee or both of them and an employee is not estopped from claiming relief against one of them because he has claimed relief against the other.85 If the new owner of a business does not engage an employee, his failure to do so constitutes a ‘dismissal’: it is irrelevant that the employee was never formally engaged let alone dismissed by the transferee. The doctrine of automatic transfer of the contract of employment (which is irrespective even of the transferee’s or of the employee’s intentions) removes any conceptual difficulty.86 [18.58] The EAT observed in Morris v Smart Bros87 that neither the Directive nor the Regulations define dismissal but it seems that what they contemplate is: ‘some failure to provide continuous employment. If the entire of a business is transferred, that continuous employment can only be under the transferee.’

An involuntary resignation by an employee because of, for example, reduced terms and conditions of employment must also be within the remit of the Regulations. In Morris the EAT went to considerable lengths to analyse the law and to highlight many of the conceptual difficulties which arise under the Regulations. Its analysis, however, has been overtaken by subsequent European Court decisions, above all those giving prominence to the principle of automatic transfer.88

[18.59] After the date of the transfer the transferor is relieved of its obligations arising from the contract or relationship of employment even if the employees do not consent to this: so claims for back pay or for personal injury transfer to the transferee (and it must follow that the transferor is correspondingly deprived of any claims it may have had against its employees before the transfer): Berg and Busschers v Besselsen.89 However, no transfer will take place if the employment is validly terminated before the transfer for a reason unconnected with it.

(10) Termination of employment before the transfer date [18.60] In 1989, the House of Lords in Litster v Forth Dry Dock and Engineering Co Ltd,90 adopting a purposive approach to the then Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE), held that it was not open to the seller and buyer of a business to arrange for the seller to dismiss the employees of the business shortly before the transfer became operative so that the buyer could avoid liability in respect of unfair dismissal or redundancy claims which would accrue if the dismissals were made after the transfer. Translating the House’s reasoning for this jurisdiction, the 85 86 87 88 89 90

Affirmed by Barrington J in Mythen v EAT and Ors [1990] ELR 1. Rotsart [1997] IRLR 127. Morris v Smart Bros UD 688, 739, 741, 1045, 1046 and 1047/1991. Such as Rotsart [1997] IRLR 127, see para [18.30] above. Berg and Busschers v Besselen [1988] ECR 25. Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546. If the main reason for dismissal by the transferor is an ETO reason, the Litster principle will not apply: Kerry Foods Ltd v Creber [2000] IRLR 10. Cf TGWU v McKinnon [2001] IRLR 597.

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Redmond on Dismissal Law

Regulations apply not only to employees who were employed in the business on the date of the transfer but also to employees who would have been so employed but for being unfairly dismissed before the transfer for a reason connected with the transfer. The House gave effect to European law as interpreted thus in Bork P International A/S v Foreningen of Arbejdsledere I Danmark:91 ‘The workers employed by the undertaking whose contract of employment relationship has been terminated with effect on a date before that of the transfer, in breach of Article 4(1) of the Directive, must be considered as still employed by the undertaking on the date of the transfer with the consequence, in particular, that the obligations of an employer towards them are fully transferred from the transferor to the transferee, in accordance with Article 3(1) of the Directive.’

[18.61] This reasoning does not apply where ‘economic technical or organisational reasons’ exist (para [18.66]). In Purcell and McHugh v Bewleys Manufacturing Ltd and Felwood Manufacturing Ltd,92 the appellants had been employed by a bakery run by Bewleys Manufacturing Ltd (B Ltd). The company had run into difficulties and after negotiations with the appellants’ union, the appellants were made redundant. It was decided to change the business operation, and Felwood Manufacturing Ltd (F Ltd) was brought in on a sub-contracting basis. The EAT in its determination held that a genuine redundancy situation existed and that the employees were dismissed by reason of redundancy. [18.62] In their appeal to the Circuit Court, the employee appellants submitted that there had been a transfer of undertakings, and that they were protected by reg 3 of the Transfer Regulations. O’Malley J found that it was accepted that the transfer was effected by two documents, both signed after the redundancies came into force. Therefore, the transfer, if it was a transfer, took place after the termination of the relevant employments. At the time there was no contract of employment or employment relationship existing.

[18.63] A purposive approach as in Litster, would not have affected the result, for the judge was satisfied that if the appellants were still in some way employed by B Ltd on that date, the whole operation was done ‘for the purpose of shedding an uneconomic operation and saving money’. The change was done for ‘economic, technical or organisational reasons entailing changes in the workforce’. The transferor (B Ltd) had been losing substantial money every month.

(11) Contracting out of TUPE rights [18.64] Under reg 9 an employee cannot contract out of his or her rights under the Transfer Regulations (if the employee has received and retained redundancy moneys 91 92

Bork P International A/S v Foreningen of Arbejdsledere I Danmark [1989] IRLR 41 at 44. Purcell and McHugh v Bewleys Manufacturing Ltd and Felwood Manufacturing Ltd [1990] ILR 68. See too Meikle v McPhail (Charleston Arms) [1983] IRLR 351: dismissal for economic reason entailing changes to the workforce; analogous to redundancy. And Thompson v SCS Consulting Ltd [2001] IRLR 801 (EAT).

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[18.66]

then he or she forfeits continuity of service93). In Mulqueen and Mulqueen v Verit Hotel and Leisure (Ireland) Ltd,94 the claimants had been directors of a company which negotiated the sale of an hotel. It was a condition of sale that on or before the closing date the vendor would terminate the employment of all its staff which included the claimants. Notice of termination was given to all employees. When the contract of sale was agreed, the claimants were re-employed by the respondent purchaser. In response to their claims for unfair dismissal it was alleged by the new owner that the employees had agreed to terminate their contracts with the old owner and that, inter alia, they therefore lacked continuity of service. The EAT accepted that the Transfer Regulations applied together with ss 13 (rendering void provisions limiting or excluding the 1977 Act) and 2095 (preservation of continuity of service on transfer) of the Unfair Dismissals Act. And: ‘... even if the Tribunal were to find that there had been no agreement on the part of the respondent to employ the claimants, the Tribunal holds that the respondent is not entitled to rely on the ‘dismissal’ effected [by the vendor].’

[18.65] A recent Workplace Relations Commission decision threw up the possibility of waiving these rights. In An Employee v A Credit Union,96 the employee had signed a waiver of his rights under the Directive as part of a voluntary redundancy package. The Adjudication Officer, while recognising the distinct prohibition of waiver under the Directive and Regulations, drew an analogy with s 13 of the Unfair Dismissals Act which similarly prohibits waiver. However, the civil courts have interpreted s 13 to permit waiver.97 It is submitted that the analogy drawn between Irish and European law in this respect is unfounded. The Court of Justice has confirmed that it is not possible to validly agree to a waiver of the rights provided for under the Directive.98

(12) Economic, technical or organisational reasons for dismissal (ETO) [18.66] The exception contained in the Transfer Regulations for dismissal ‘for economic, technical or organisational reasons entailing changes in the workforce’ is important, if ambiguous.99 The three reasons are not mutually exclusive. See para [18.50]. As the Transfer Regulations did not state that these words satisfied the statutory test of redundancy it is therefore reasonable to regard them as wider than 93 94 95

96 97

98 99

See para [23.43]. Mulqueen and Mulqueen v Verit Hotel and Leisure (Ireland) Ltd [1993] ELR 162. Amending the First Schedule to Minimum Notice and Terms of Employment Act 1973 as amended by s 15 Unfair Dismissals (Amendment) Act 1993. An Employee v A Credit Union ADJ-00002731 (9 June 2017). Hurley v Royal Yacht Club [1997] ELR 225 (Circuit Court, Judge Buckley); Sunday Newspapers Ltd v Kinsella [2007] IEHC 324 (Smyth J). Foreningen v Daddy’s Dance Hall [1988] IRLR 314. See Wheeler v Patel [1987] ICR 631; Gateway Hotels Ltd v Steward [1988] IRLR 287; Berriman v Delabole Slate Ltd [1985] ICR 546; Anderson and McAlonie v Dalkeith Engineering Ltd (In Receivership) [1984] IRLR 429; Crawford v Swinton Insurance Brokers Ltd [1990] IRLR 42.

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[18.67]

Redmond on Dismissal Law

‘redundancy’.100 Equally, it seems that a reason cannot be an ‘economic’ one where it results from negotiations between the transferor and the transferee, eg an attempt to wipe the slate clean in order to enhance the business consideration for the transfer.101

[18.67] Having established the reasons, the employer must go on to show that the reasons ‘entail’ changes in the workforce. This is an unusual word to find in employment law. ‘Changes’ can relate, it seems, not just to numbers but also to job functions. It is probably the case that the less these changes follow as a consequence of the transfer, and the more they exist as an objective of the business, irrespective of transfer, the more likely they are to be acceptable by way of justification for dismissals.

[18.68] Thus the Court of Appeal of England and Wales has held that where an employee resigned following a transfer because the transferee proposed to reduce his wages to that of its existing employees, the reason for the employer’s ultimatum was to produce standard rates of pay and was not in any way to reduce the numbers in the workforce: Delabole Slate Ltd v Berriman.102 Nor does the dismissal of one employee followed by the engagement of another in his place constitute a change in the workforce. The court looked upon the word ‘workforce’ as connoting the whole body of employees as an entity; it corresponds to the ‘strength’ of the ‘establishment’. Accordingly, changes in identity will not constitute changes in the workforce, but changes in work functions or in the method of providing services will.103 [18.69] The construction of ‘entail’ above is supported by another consideration. Changes in job functions, which are unreasonable or unacceptable to transferred employees and which lead to their resignation, cannot conceivably come within the exception being discussed. The normal contractual principle is that all changes in contract terms must proceed on the basis of consent (unless there is provision to the contrary). This would continue to apply on transfer. When changes are effected without consent by the transferee, they are not ‘entailed’. [18.70] In Cunningham and O’Connor v Oasis Stores Ltd,104 the claimants (formerly chief executive and area manager respectively) sought the protection of the Transfer Regulations. In managing two separate companies the claimants had been involved in managing the business as a whole. They were not retained in employment by the new owner, Oasis (O Ltd), despite their evidence that they had been led to believe that they would be engaged by O Ltd’s management and that they had played a major part in facilitating the transfer of existing staff. O Ltd argued that because it had most of its 100

101 102 103

104

That a dismissal is defended under the Transfer Regulations as being for some other substantial grounds does not prevent it from constituting a dismissal by reason of redundancy; Gorictree Ltd v Jenkinson [1984] IRLR 391 (EAT). In Pitt v Meath Thoroughbred Breeders UD 763/1999 the EAT found the claimant had not been ‘the subject of any plausible selection process’ for redundancy. Wheeler v Patel [1987] ICR 631; Gateway Hotels Ltd v Steward [1988] IRLR 287. Delabole Slate Ltd v Berriman [1985] IRLR 305. Crawford v Swinton Insurance Brokers Ltd [1990] IRLR 42; Porter and Nanayakkara v Queen’s Medical Centre [1993] IRLR 486. Cunningham and O’Connor v Oasis Stores Ltd [1995] ELR 183. See too Ebbs and Healy v Oasis Stores plc UD 1020/1994.

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[18.73]

clothing stock specially manufactured to its own specifications, there was no transfer within the meaning of the Directive. If there was, it was not a transfer of the entire of the business, and the claimants’ work was not referable solely to the part transferred.105 Further, it argued that the business was conducted by O Ltd within a different organisational structure and there were therefore economic, technical and organisational reasons as envisaged by the Directive.

[18.71] The EAT was satisfied that if there was a transfer of nearly the whole of the business (leaving aside complications regarding one of the companies which managed the UK and NI shops) O Ltd had shown ‘economic, technical or organisational changes as contemplated by the Directive’. There were three grounds for this: ‘[O Ltd] conducts the general management of the business not from a Dublin head office, but from an area office in the North of England, which was already providing the overall management of several other shops. The organisation’s structure is different from that of [the transferor operating in the Republic of Ireland] and on the transfer O Ltd integrated the four shops into the existing structure. There was no need for a chief executive or area manager because of the organisational change in the way the four shops were managed.’

[18.72] The EAT did not think it necessary to go beyond the reasons permitted by the Directive for dismissals to consider whether the alleged organisational change also ‘entail[ed] changes in the workforce’. Neither of the first two grounds given above on the face of it entailed changes in the workforce. The third ground, probably, led the EAT to remark: ‘In a sense, the two claimants were redundant in that the requirements in Dublin for employees in their kind of work had ceased or diminished.’

However, even a redundancy, to come within the Directive, must entail changes in the workforce.

[18.73] It is evident from the wording of reg 5 that it will be for the dismissing employer to establish economic, technical or organisational reasons entailing changes in the workforce. It may happen that the notice to dismiss given by a transferor expires after the date of the transfer. The British EAT has held that in such circumstances it is the transferor who dismisses and it is the transferor’s reason for the dismissal notice which is relevant even though liability in connection with the notice to terminate is transferred to the transferee: BSG Property Services v Tuck.106 Accordingly, the notice of termination given by the transferor for the transferor’s reason was deemed to have been a notice given by the transferee for that reason. The date for determining the reason for dismissal was the date when notice of termination was given rather than the date of termination of the contract. The transferor in this case was found as a fact not to have any economic, technical or organisational reason entailing changes in the workforce 105

106

See Securicor Guarding Services Ltd v Fraser Security Services Ltd [1996] IRLR 552; Buchanan-Smith v Schleider [1996] IRLR 547 applying Botzen [1986] 2 CMLR 50 on which the EAT relied in Cunningham and O’Connor, n 104 above. BSG Property Services v Tuck [1996] IRLR 134.

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Redmond on Dismissal Law

because it did not believe national law transposing the Directive applied. The only possible decision therefore was that the dismissals were unfair.

[18.74] If notice to terminate is given by the transferor and expires before the transfer and the reason for the dismissal is the transfer, an employee’s claim may primarily lie against the transferee.107 It is a counsel of prudence, of course, to proceed against transferor and transferee.

(13) Transfer of part of business or of group [18.75] Cunningham and O’Connor108 raised the complex issue, inter alia, of transfers of parts of the business (or of parts of groups of companies). The EAT followed the approach of the European Court in Botzen v Rotterdamsche Droogdok Maatschappij BV,109 which determined the issue of employment by the transferor by reference to whether or not the department or branch of the organisation in which the employment relation took effect was the one which had been transferred. Groups of companies, or parts of businesses, are of concern to lawyers in many fields, not least labour law. A corporate group presents a problem for employees when it comes to enforcement of employment rights. Whether groups of companies can be manipulated in order to avoid the Directive has been considered. The question has been thus formulated by Collins:110 ‘[Suppose] a company approaching insolvency establishes a subsidiary, which is a shell company with no employees, and this subsidiary acquires the “goodwill” of the business together with moveable equipment. The subsidiary then sells the goodwill and equipment to another company in the form of a business as a going concern. All the employees are dismissed for redundancy by the parent company entering liquidation. Some of the employees are hired by the new owners of the business on different terms and conditions. Would [the Transfer Regulations] apply in order to render the dismissal unfair (under regulation 5)? Although it is clear that a transfer of an undertaking has taken place, the transferor had no employees, being merely a shell company, so there were no employees to be transferred or dismissed. Could the Regulations apply to the original move of the insolvent parent company to transfer the goodwill and equipment to the subsidiary? This would be regarded as a hiving down of part of the undertaking with the effect that the employees would be transferred to the final purchaser. A difficulty would arise in applying this reasoning, however, if the subsidiary shell company already had some claim to the goodwill and equipment of the business of the group of companies. If the subsidiary already possessed this part of the business, yet as a shell had no employees, it could transfer the business of the group without any application of [the Transfer Regulations]. 107 108

109

110

Wright v Hoyer Ireland Ltd UD 501/1996. All will depend on the facts. Cunningham and O’Connor v Oasis Stores Ltd [1995] ELR 183, para [18.70]. See similarly Brophy v ASTG and OKI (Systems) Ireland UD 548/99. Botzen v Rotterdamsche Droogdok Maatschappij BV [1986] 2 CMLR 50. See also the judgment of the European Court of Justice in Klarenberg Case C–466/07, [2009] IRLR 301, [2009] ICR 1263, [2009] EUECJ C-466/07. Collins, ‘Employment Rights in connection with transfers of parts of groups of companies’ (1996) 25 ILJ 55; McMullen, ‘Atypical Transfers, Atypical Workers and Atypical Employment Structures – A Case for Greater Transparency in Transfer of Employment Issues’ (1996) 25 ILJ 286. Any apparent TUPE avoidance will be scrutinised. See Re Maxwell Fleet and Facilities Management Ltd [2000] IRLR 368; ECM (Vehicle Delivery Service) Ltd v Cox [1999] IRLR 559; Lightways (Contractors) Ltd v Associated Holdings [2000] IRLR 247.

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[18.79]

Can shell companies in groups offer this mother of all pearls, the avoidance of employees’ acquired rights?’

[18.76] This appears to have happened in Michael Peters Ltd v (1) Fanfield and (2) Michael Peters Group plc,111 but the decision must be contrasted with a different approach taken by the Scottish EAT in Sunley Turriff Holdings v Thomson.112 There the EAT ignored the formal legal position that the defendant’s contract was with the parent company not the subsidiary which was the transferor, thus following Botzen’s approach. [18.77] The two decisions present sharply different views on whether groups of companies (or, by analogy, parts of businesses) offer flexibility to manipulate employees’ rights on transfer. The application of the principles in Botzen, according to Collins: ‘... does not require a piercing of the corporate veil as the EAT seemed to think in Michael Peters v Fanfield. We neither have to regard the group as a single economic entity, nor tear aside the veil, to hold the directors and shareholders personally responsible for the acts of the company. The better approach adopted in Sunley Turriff Holdings Ltd v Thomson simply requires a tribunal to ask in a practical way if the employee was actually working for that part of the business which was transferred, whether or not his formal contract of employment was with the formal transferor or some other legal entity in the business group. We should remember that a central purpose of this law is to protect job security as far as possible despite the shocks of insolvency, acquisitions and mergers. Corporate group structures designed for purposes of tax avoidance, leverage in borrowing, or asset protection should not be permitted to obstruct this objective.’

(14) Post-transfer changes in terms and conditions of employment [18.78] It was widely assumed and it made business sense that a transferee could negotiate and agree changes in terms and conditions of employment with employees following a transfer. Indeed this was often seen as the objective of the Directive’s mandatory information and consultation process. It was always clear that agreed changes were distinguishable from the unilateral imposition of change by a transferee (the result of which would probably be a claim for constructive dismissal). [18.79] The assumption that a transferee can agree changes with its acquired employees was dealt a severe blow in the British case Wilson v St Helen’s Borough Council,113 in which the EAT decided that an employer cannot change the terms and conditions of employees to their detriment after a transfer even if the employees consent to the change. In Wilson there was a dismissal by the transferor and re-engagement by the transferee on 111 112

113

Michael Peters Ltd v (1) Fanfield and (2) Michael Peters Group plc [1995] IRLR 190. Sunley Turriff Holdings v Thomson [1995] IRLR 184. See too Re Maxwell Fleet and Facilities Management Ltd [2000] IRLR 368. Wilson v St Helen’s Borough Council [1996] IRLR 320; noted (1996) 25 ILJ 230. In so far as the issue has arisen in Ireland the EAT in Brett v Niall Collins Ltd (in Rec) [1995] ELR 69 expressed the view that after a transfer a new form of rights can be agreed between the parties but not imposed by the employer as the Directive preserves the conditions of employment that existed prior to the transfer. On change of fixed term employees’ terms and conditions of employment post-transfer, see Ralton v Havering College of Further and Higher Education [2001] IRLR 738.

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Redmond on Dismissal Law

agreed less favourable terms. A claim was brought under the UK Wages Act 1986 alleging that the reduced salary constituted a breach of TUPE. The EAT cited the European Court’s decision in Foreningen v Daddy’s Dance Hall114 which states: ‘Employees are not entitled to waive the rights conferred on them by the Directive and ... it is not permissible to diminish these rights even with their consent. This ... is not affected by the fact that ... the employee obtains new benefits in compensation for the disadvantages resulting from an amendment to his contract so that, taking the matter as a whole, he is not placed in a worse position than before ... Nevertheless, the Directive does not preclude alteration in the working relationship agreed between the new proprietor of the undertaking insofar as such an alteration is permitted by the applicable national law in cases other than transfers of undertakings.’

[18.80] The EAT concluded as a result of this that the Directive as implemented in national law precludes even a consensual variation in the terms of a contract if it is to an employee’s detriment and the transfer is the reason for the variation – variations in favour of employees would seem to be valid. [18.81] The decision was at once viewed as highly controversial, undermining, as it did, the practice of employers who harmonise the terms of the transferring workforce with those of their existing workforce by agreement (often involving a buy-out of certain rights of the transferring workforce). [18.82] A later decision of the EAT showed another division taking by a majority a significantly different approach: Baxendale and Meade v British Fuels Ltd.115 In Baxendale there was a dismissal by a transferor followed immediately by a transfer and the re-engagement on different terms of staff who had worked for the transferor. The new terms were the subject of written confirmation some eight months later. As in Wilson these new changes were challenged some months into the new arrangements, but here the challenge took the form of a complaint116 that the new employer’s statement of terms and conditions of employment was inaccurate.

[18.83] The industrial tribunal found that the old terms had been effectively replaced by the new, so that the claims failed. The EAT upheld these decisions. Central to the EAT’s analysis was a finding that nothing in domestic or community law required a dismissal by the transferor to be ignored in a transfer of undertaking context. Dismissal might or might not be unfair, but it was valid and effective in bringing the old terms of employment to an end. Where Wilson appeared to suggest the contrary, an explanation offered in Baxendale was that perhaps in the earlier case there had not been any payment and acceptance of redundancy compensation, a point of difference with Baxendale where such payments took place. [18.84] All members of the EAT were agreed that if the dismissal was held to be invalid by reason of Community law (ie contrary to the majority view) then the purported agreement of the employee to new terms was ineffective by reason of TUPE, reg 12. 114

115 116

Foreningen v Daddy’s Dance Hall [1988] IRLR 314. See, following this authority, Credit Suisse First Boston (Europe) Ltd v Padiachy and Ors [1998] IRLR 504. Baxendale and Meade v British Fuels Ltd [1996] IRLR 541. Under the Employment Protection (Consolidation) Act 1978, s 11.

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[18.88]

[18.85] The Court of Appeal117 allowed the appeals in Wilson and Baxendale. The court held that a dismissal because of a transfer of an undertaking is prohibited and a legal nullity unless the dismissal is for economic, technical or organisational reasons entailing changes in the workforce. In Baxendale the transfer of the undertaking itself was the reason for dismissal and the EAT should have concluded that the purported dismissal was ineffective so that the contracts of employment continued as if made with the transferee. In Wilson the EAT was entitled to find that there was an economic or organisational reason for the variation in the terms and conditions of employment which occurred on the transfer and that the termination of the employees’ contracts was not simply due to the transfer. [18.86] The House of Lords118 in joined appeals allowed the appeal in Baxendale and dismissed the appeal in Wilson. The House rejected the Court of Appeal’s holding (notwithstanding the ambiguous language of the European Court of Justice in Daddy’s Dance Hall, para [18.79]) that a dismissal because of a transfer of an undertaking is a legal nullity unless for ‘eto’ reasons. A dismissal for a reason connected with a transfer is legally effective, not a nullity. A dismissed employee, said the House of Lords, cannot compel the transferee to employ him. The liability which is transferred to the transferee is to pay damages for wrongful dismissal or to comply with an order under the relevant employment legislation for unfair dismissal compensation or reinstatement.

[18.87] The decision answers some vital questions. The main holding is that dismissal for a transfer-related reason cannot be a legal nullity. This removes the illogicality of treating a dismissal as both void and unfair. However, the position remains unclear as to post-transfer changes in terms and conditions of employment. According to Lord Slynn obiter: ‘The question as to whether and in what situations, where there has been a transfer and employees have accepted the dismissal, claimed compensation based on it and worked for a long period after the transfer, there can be a valid variation by conduct is not an easy one. The variation may still be due to the transfer and for no other reason even if it comes later. However, it seems to me that there must, or at least may, come a time when the link with the transfer is broken or can be treated as no longer effective. ... although on a transfer the employees’ rights previously existing against the transferor are enforceable against the transferee and cannot be amended by the transfer itself, it does not follow that there cannot be a variation of the terms of the contract for reasons which are not due to the transfer or attributable to some separate cause. If, however, the variation is not due to the transfer it can ... validly be made.’

[18.88] Rubenstein asks whether: ‘... it [is] open to a tribunal to find that where terms were varied in order to save jobs or money, or in order to achieve harmonisation, with existing practices, that these are reasons which are not “due to” the transfer? The House of Lords provided us with the questions, but not the answers.’ 117

118

Wilson and Others v St Helens Borough; Council Meade and Baxendale v British Fuels Ltd [1997] IRLR 505. Wilson and Others v St Helens Borough; Council Meade and Baxendale v British Fuels Ltd [1998] IRLR 706. The decision is likely to be highly persuasive in Ireland where specific performance of contracts of employment will not be ordered.

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Redmond on Dismissal Law

[18.89] The question is often asked whether a new employer may use a compromise agreement to facilitate harmonising terms and conditions of employees transferred to it. In Solectron Scotland Ltd v Roper119 the EAT held that a compromise agreement can be used to settle a financial claim that an employee has on termination of the contract, such as enhanced redundancy terms that employees in this case brought with them following a TUPE transfer. As Elias J put it: ‘[T]he effect of the compromise agreement is solely to compromise a financial claim that an employee has on termination of his employment contract. The employer is not purporting to vary the contract but merely to compromise a dispute as to its value. Moreover, there is no change in terms and conditions for the future by reason of the obvious fact that the contract has come to an end.’

A rather more pragmatic approach is taken in Ireland where post-transfer terms and conditions are often varied by consent with no debate as to whether the changes are ‘due to’ the transfer or not.120

[18.90] In Ireland’s Transfer Regulations there is a curiously worded reg 5.3: If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

This is to be contrasted with the wording of the equivalent provision in art 4.2 of the Directive: If the contract of employment or the employment relationship is terminated because the transfer ... involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for termination of the contract of employment or of the employment relationship.

[18.91] The substantial change in working conditions to the detriment of the employee must refer to unilaterally imposed changes resulting in termination by the employee. It would be illogical to regard ‘termination’ here as being by the employer, whether transferor or transferee.121 The unilateral nature of the change follows from the context of constructive dismissal. The ‘employee’ remains an employee throughout, before and after the transfer. Unlike elsewhere in their texts both the Directive and reg 5.3 refer to ‘the employer’ rather than to the transferor or transferee (or both). What is less helpful, perhaps, is Ireland’s addition of the qualifying modifier ‘concerned’. [18.92] If the substantial change in working conditions to the detriment of the employee comes about or will come about not before but after the transfer, which seems the most probable chronology, then the Directive imposes liability for termination on the transferee: under art 2 thereof the transferee is the person who, by reason of a transfer, ‘becomes the employer in respect of the undertaking, business or part of the undertaking or business’. It will be in its working conditions that substantial change will emerge to 119 120

121

Solectron Scotland Ltd v Roper [2004] IRLR 4. Bateman v Gillrock Ltd t/a Centra Quick Shop referred to in J McMullen IRN 08 22/02/2006. See too para [19.32]. Constructive dismissal does not have a wider meaning under TUPE than unfair dismissal law: Rossiter v Pendragon plc and Air Foyle Ltd v Crosby-Clarke [2002] IRLR 483.

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the employee’s detriment. Regulation 5(2) leaves the question open as to who might be responsible for termination of the contract: in the event of a transferor imposing such changes, it would be liable for constructive dismissal.

[18.93] Cowley v (1) Noonan Services Ltd and (2) Lantern Securities Ltd122 concerned a transferred employee whose contract of employment contained a flexibility clause. The EAT found that the new employer was entitled to issue the instructions it did. The employee’s claim for constructive dismissal failed. As McMullen points out:123 ‘The EAT appears to have assumed that for a constructive dismissal case to arise in the circumstances of Cowley the transferee employer would have to have been in breach of contract … as the British Court of Appeal held in Rossiter v Pendragon plc.’124

Given the definition of constructive dismissal in the Irish Act, however, which covers ‘unreasonableness’ as well as breach of contract, as the next chapter shows, the EAT, if McMullen’s assumption is correct, was in error.

122 123 124

Cowley v (1) Noonan Services Ltd and (2) Lantern Securities Ltd UD 1053/2004. ‘Analysis of recent Transfer of Undertaking Cases’ IRN 05 22.02/2006. Rossiter v Pendragon plc [2002] IRLR 483.

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Chapter 19

Constructive Dismissal A.

DEFINITION

[19.01] In constructive dismissal claims, because the employee has terminated his or her contract of employment, the fact of dismissal will be in dispute. Chapter 22 deals with ‘dismissal’ in so far as termination by an employer of fixed term and specified purpose contracts are concerned. It also deals with doubt surrounding the fact of resignation. Constructive dismissal may be either a contractual or a statutory claim.1 The focus of this chapter is on the statutory claim but the preceding chapters dealing with wrongful dismissal are of course highly relevant to contractual claims.

[19.02] This chapter considers the fact of dismissal as well as the issues that may arise in the process of investigating claims of constructive dismissal. It mirrors what happens in practice in the hearing of such claims: the bulk of a statutory constructive unfair dismissal hearing is likely to concern the employee’s proof of dismissal and that in turn is tantamount to requiring the employee to prove that his dismissal was unfair. Rarely, if ever, does it become clear in the course of the hearing that the burden of proof has shifted to the employer to show the dismissal was reasonable in the light of all the circumstances. [19.03] In cases alleging statutory constructive dismissal the employee goes into evidence first as he or she bears the burden of proof as to dismissal. He or she must persuade the Workplace Relations Commission that resignation was not voluntary. Constructive dismissal is defined in s 1 of the 1977 Act as: the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer.

Circumstances in which notice of termination can or may be dispensed with are indeed rare and set a high standard of proof for an employee. This has been repeatedly 1

For insightful analysis of the conceptual distinction between these claims see Thai, ‘Constructive dismissal: a re-examination’ (2014) 27 Australian Journal of Labour Law 137.

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illustrated in a series of decisions of the Employment Appeals Tribunal2 and, more recently, the Workplace Relations Commission.3

B.

TWO TESTS

[19.04] There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment but its conduct may be nonetheless unreasonable. [19.05] In the statutory scheme in English law, the option of a reasonableness test is not open, either in s 95(1)(c) of the Employment Rights Act 1996 or in its predecessor s 55(2)(c) of the Employment Protection (Consolidation) Act 1978. Paradoxically, both a contract and a reasonableness test emerged from British case law before the important decision of the Court of Appeal for England and Wales in Western Excavating (ECC) Ltd v Sharp4 (it had not been delivered at the time of the Irish Act’s introduction). The Court considered the criterion which ought to be applied to ascertain whether an employee was ‘entitled’ to put an end to the contract without notice. The contract test was summarised by Lord Denning MR: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.’5 2

3 4

5

Allen v Independent Newspapers (Ireland) Ltd [2002] ELR 84; Harrold v St Michael’s House [2008] ELR 1; Joyce v Brothers of Charity Services [2009] ELR 328; O’Sullivan v O’Sullivan [2009] ELR 334; An Employee v An Employer [2010] ELR 205; O’Carroll v Sovereign Security Ltd [2011] ELR 281; Murray v Rockabill Shellfish Ltd [2012] ELR 331; Bodziach owska v Douglas & Kaldi @ Dundrum Ltd [2013] ELR 108; Mannion v Noughton and Noughton [2014] ELR 36; O’Donoghue v Watchford Ltd [2016] ELR 216; Barry-Ralph v HSE [2016] ELR 268; Hoban v Kildare County Council [2017] ELR 54; Benitime Ltd v Onit [2017] ELR 157; Noonan v O’Leary UD1369/2014; Wandoch v Aldi Stores (Ireland) Ltd UD897/2015; O’Brien v Liberty Insurance Ltd UD163/2015; O’Connor v Sugardolls Nail Bar and Beauty Ltd UD902/2015. As above. Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, [1978] IRLR 332; followed by the Irish EAT in relation to unilateral alteration of a term of employment in O’Brien v Murphy Plastics (Dublin) Ltd UD 142–4/1980. Regarding a ‘last straw’ constructive dismissal see London Borough of Waltham Forest v Omilaju [2005] IRLR 35 (CA): last straw must be an act in a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence. This was applied by the Supreme Court in Berber v Dunnes Stores Ltd [2009] IESC 10. For an instructive recent example of a last straw constructive dismissal see the decision of the Court of Appeal in Northern Ireland in Knox v Henderson Retail Ltd [2017] NICA 17 (10 March 2017). Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 at 226. (contd.../)

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The alternative reasonableness test asks whether the employer: ‘conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving.’6

The Court of Appeal rejected this test in favour of the contract test which it felt was the more stringent of the two. The reasonableness test had led to findings of constructive dismissal on the most whimsical grounds.7 In English law, therefore, only cases where an employer’s conduct amounts to a breach of contract can be looked upon as authoritative.

[19.06] The difference between the two tests was perhaps more significant then than today. It was thought that the contract test made a vertical division of type between one kind of conduct and another, as distinct from a mere horizontal division of degree. Elias expressed a preference for the reasonableness test because: ‘To adopt a reasonableness test directly rather than, as is tending to happen at present, indirectly through the contract, would seem to be a more secure foundation for regulating constructive dismissals and also more in keeping with the general framework of unfair dismissal laws which are designed to subject managerial prerogative to a reasonableness standard.’8

The Employment Appeals Tribunal in the UK led the way in finding a means to bring ‘reasonableness’ cases within the scope of unfair dismissal legislation. From the common law duty of loyalty and faithfulness it was a short step to recognise that both parties to an employment contract owe a duty to conduct themselves in a way which will enable the contract to be performed. The development of implied terms at common law, in particular in the late 1970s and 1980s and most importantly the implied term of mutual trust and confidence, in the contract of employment diminished the significance of the contract as opposed to the reasonableness test. Many forms of unreasonable conduct can be accommodated under the contract test. Indeed it has been arguably the development of unfair dismissal law (and constructive dismissal law in particular) which provided the impetus for the courts in the United Kingdom and Ireland to examine carefully the implied obligations which an employer owes to an employee.

[19.07] Under Irish law, either test may be applied by the Workplace Relations Commission, although it may be a matter of inference which test is followed in the circumstances. Whereas sometimes the Adjudication Officer will expressly delineate 5

6 7

8

(\...contd) See Pickering v Microsoft Operations Ltd [2006] ELR 65; Pedersen v London Borough of Camden [1979] IRLR 377 (EAT), [1981] IRLR 173 (CA); and Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347. Failure to make ‘reasonable adjustments’ regarding disability was held to amount to breach of mutual obligation of trust and confidence in Greenhof v Barnsley Metropolitan Council [2006] IRLR 98. Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 at 226. The Court of Appeal in Sharp, n 4 above, also argued that the language of para 5(2)(c) of the Trade Union and Labour Relations Act 1994 was more consistent with the contractual test, and it is to be inferred, according to Elias (‘Unravelling the Concept of Dismissal-II’ (1978) 7 ILJ 100 at 101) that when the statute talks of the employee being entitled to terminate, it means ‘legally entitled’ to terminate in response to the employer’s repudiatory conduct. Elias, ‘Unravelling the Concept of Dismissal-II’ (1978) 7 ILJ 100.

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between his or her treatment of the tests,9 in general, the two tests are frequently regarded as interchangeable. In a 2017 decision of the Workplace Relations Commission,10 for example, the Adjudication Officer stated of claims of constructive dismissal: ‘In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment. … In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.’11

The contract test is more stringent than the test of reasonableness. Yet they have been provided in the form of alternatives. Whichever test is applied, as was observed by the Employment Appeals Tribunal in one of its last constructive unfair dismissal determinations, ‘[t]he bar for constructive dismissal is very high’.12

(1) The contract test [19.08] The breach of contract being alleged must be either a significant breach going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.13 In Higgins v Donnelly Mirrors Ltd14 it was argued that a contract of service includes an implied obligation of mutual respect which might be broken by abusive or unreasonable treatment by the employer. However the EAT rejected the employee’s claim of constructive dismissal, showing the heavy onus of proof she bore. The EAT said she had ‘painted a harrowing picture’ of various meetings. On the other hand her employer had denied the meetings were as she described. In the EAT’s view ‘she was unduly sensitive and she overreacted’. Implied terms are further discussed below, para [19.10] et seq. [19.09] Breach may not be actual, but anticipatory. Where there is a contract already being performed between the parties but the relevant obligation remains executory either wholly or in part, the law is the same as in a situation of anticipatory breach where the time for performance of the contract has not yet arrived. The party anticipating breach has an opportunity before the repudiation is accepted to cure the breach (a locus poenitentiae) by withdrawing the threat not to perform the contract. Thus there was no repudiatory breach in the English case of Harrison v Norwest Holst Group 9 10 11

12 13

14

See, for eg, An Employee v An Employer ADJ-00004851 (25 May 2017). A General Operative v A Religious Society ADJ-00002814 (28 March 2017). The Adjudication Officer referred in this regard to the decision of the Supreme Court in Berber v Dunnes Stores Limited [2009] IESC 10. Nicola Coffey v Connect Family Resource Centre Ltd (UD 1126/2014). Cosgrave v Kavanagh Meat Products Ltd UD 6/1988; Harrison v National Engineering and Electrical Trade Union UD 406/1987. In the UK an unjustified imposition of a final warning was held to be capable of amounting to a repudiatory breach of contract by the employee: Stanley Cole Wainfleet Ltd v Sheridan [2003] IRLR 52. Higgins v Donnelly Mirrors Ltd UD 104/1979. On the level of proof see Dillon v Castle Hyperstore Ltd UD 52/2004.

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Administration Ltd,15 where the employer informed an employee that he would lose his directorship in a fortnight’s time. The obligation to continue the directorship was to be performed in the future and the employer could be said to have a locus poenitentiae before acceptance was communicated. Fortunately, such legal technicalities can be sidestepped in Ireland under the ‘reasonableness’ test.

Express/implied terms [19.10] Where an employee relies on the contract test, it will be of cardinal importance to ascertain the precise scope of the contract. Express terms present little difficulty.16 Thus constructive dismissal may arise where an employer unjustifiably reduces an employee’s remuneration,17 or insists upon a change in the nature of the employee’s contractual performance or obligations such as the kind of work he is required to perform, the hours of work he is required to do,18 and the place at which he is required to do the work.19 Difficulties may arise, however, where constructive dismissal is alleged in the face of breach of an implied term. An employee may encounter problems in identifying such terms, although the process has been facilitated by a change in judicial attitude to the status of the employment relationship.20 Examples of terms21 which have 15 16

17

18

19

20

21

Harrison v Norwest Holst Group Administration Ltd [1985] IRLR 240. Occasionally the EAT’s interpretation of express contract terms had allowed perhaps too wide a scope for managerial prerogative. See, eg, Riddell v Mid-West Metals Ltd UD 687/1980. As happened in Owens v Ramsbottom UD 103/1980 although the point was not taken up. See Murco Petroleum Ltd v Forge [1987] IRLR 50 (no implied contractual term there will always be a pay rise); White v Reflecting Roadstuds Ltd [1991] IRLR 331 (loss of income to employee caused by employer’s behaviour within the contract does not effect breach of contract); Judge v Crown Leisure Ltd [2005] IRLR 823 (promise to increase an employee’s salary so as to achieve parity with other employees ‘in due course’ not a binding contractual promise). Kennan v Raheny and District Credit Union Ltd UD 111/1980; McGuire v McElvaney Motors Ltd [1990] ELR 153; Land Securities Trilliam Ltd v Thornley [2005] IRLR 765 EAT. In Britain, in RS Components Ltd v Irwin [1973] IRLR 239, [1973] ICR 535 the National Industrial Relations Court accepted the possibility that dismissal for refusal to accept a unilateral variation in a contractual condition which restricted an employee from acting in competition could count as ‘some other substantial reason’. Since Irwin, an employer’s business interests have been accepted as a substantial ground justifying dismissal in several cases: see Ch 18. Equally, the contract of employment may define the conditions of employment concerning working hours and type or place of work in such a way that insistence upon some change in these would not amount to a constructive dismissal. If a woman is contractually described as a ‘waitress’, for instance, she cannot complain if she is asked to work in the canteen rather than the directors’ dining room: Grace v Northgate Group Ltd [1972] IRLR 53. Cf Managers (Holborn) Ltd v Hohne [1977] IRLR 230; Bass Leisure Ltd v Thomas [1994] IRLR 104; Curling and Ors v Securicor Ltd [1992] IRLR 549; Aparau v Iceland Frozen Foods plc [1996] IRLR 119, overturned on appeal [2000] ICR 341; Wilson v Lamb [2007] All ER (D) 485. Elias, ‘Unravelling the Concept of Dismissal-II’ (1978) 7 ILJ 100 at 107. See, too, Napier, ‘Judicial Attitudes towards the Employment Relationship – Some Recent Developments’ (1977) 6 ILJ 1, 6; Platt, ‘Out for the Count!’ (2010) NLJ 1209; Coveney, ‘Constructive Dismissal, Successful Claims and the EAT’ (2010) 7 IELJ 99. These terms have never formed the basis of extensive comment by the EAT or the WRC: their existence is generally assumed.

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been implied include the maintenance of mutual trust and confidence by an employer,22 the provision of managerial support and security for an employee23 and of a safe place of work,24 the payment by an employer of the statutory wage for workers in the industry,25 non-competition on the part of an employee26 and the right to be treated with respect by an employer and not to have to endure physical violence and humiliation.27 Mere doubts and misunderstandings concerning, for example, an employee’s holiday position or other terms and conditions of employment, would not justify resignation.28 [19.11] In BAC Ltd v Austin29 the UK EAT observed that it must ordinarily be an implied term of the contract ‘that employers do not behave in any way which is intolerable or in a way which employees cannot be expected to put up with any longer’ and that that would include any serious departure from ‘good industrial practice’.30 This appeal to good industrial practice invokes a very wide-ranging criterion which could apply to a variety of individual circumstances. In fact, United Kingdom case law on constructive 22

23

24

25 26 27

28 29 30

On which see para [5.21] earlier. Also O’Kane v Dunnes Stores Ltd UD 1547/2003; Byrne v RHM Foods (Ire) Ltd UD 69/1979; Smith v Tobin [1992] ELR 253 (onus on employer to ensure staff comfortable in place of work); O’Reilly v Oxford Ireland Ltd UD 814/1994 (onus on employer to address problems in relationship with employee); see Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84; Donovan v Invicta Airways [1969] 2 Lloyds Rep 413. McGrath v CA Jenkins & Sons Ltd UD 227/1978; see, similarly, Wigan Borough Council v Davies [1979] IRLR 127. Maddy v Duffner Bros Ltd UD 803/86. The introduction of ‘no smoking’ rules is intended for the legitimate purpose of providing a safe place of work and if they bear hardly on some employees this will not justify resignation: cf Dryden v Greater Glasgow Health Board [1992] IRLR 469. Walton & Morse v Dorrington [1997] IRLR articulated a new contractual implied term that ‘the employer will provide and monitor for his employees, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties’. The context involved a resignation because of smoking habits of fellow employees but the principle can be extended to an employer’s duty to protect employees from violence, harassment, and bullying. See Bourke v Victor Collins Enterprises Ltd [1993] ELR 37 (employer’s failure to provide extractor fans justified resignation). The employer’s duty here extends to risk of injury to an employee’s mental health: an employer owes a duty not to cause psychiatric damage by the volume or character of the work they are required to perform: Walker v Northumberland County Council [1995] IRLR 35. For acceptance of Walker in this jurisdiction, see, inter alia, McGrath v Trintech Technologies [2005] 4 IR 382; Quigley v Complex Tooling and Moulding Ltd [2009] 1 IR 349. McGrory v Campbell UD 49/1979. O’Neil v Flynns Garage UD 122/1981. O’Leary v Cranehire Ltd UD 167/1979; Higgins v Donnelly Mirrors Ltd UD 104/1979 (although no violence was involved). The right to be treated with respect would not necessarily be violated if, eg, an employee were passed over for promotion: Corcoran v Central Remedial Clinic UD 7/1978; although in the context of employment equality see the decision of the High Court (Eagar J) in Byrne v Minister for Defence [2017] IEHC 453. O’Grady v Cornelscourt Shopping Centre Ltd UD 210/1979. BAC Ltd v Austin [1978] IRLR 332. Albeit this pronouncement was obiter and subject to the express reservation that industrial tribunals must apply the judgment in Western Excavating Ltd v Sharp, fn 4.

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dismissal for breach of an implied term covers a very wide variety of circumstances.31 There are many forms of distasteful and unreasonable behaviour on the part of employers which, although not amounting to breach of an express term in the contract of employment, may find a remedy in the doctrine of the implied term. The UK EAT recognised early on that contractual repudiation could include abusive, intolerable and unreasonable treatment by an employer: ‘What is conduct on the part of the employer showing an intention not to be bound by the contract will depend on the circumstances of each case, and upon the terms of the contract, express or to be implied, in each case; these terms will reflect the changes in the relationship between employer and employee as social standards change.’32

Not all findings by employment tribunals in the UK may be justified. It is difficult to agree, for example, that the use of abusive language by an employer evinces an intention 31

32

They include instances of persistent and unwanted amorous advances: Western Excavating Ltd v Sharp [1978] ICR 221, obiter: prematurely calling in the police to investigate an employee: Fyfe & McGrouther Ltd v Byrne [1977] IRLR 29; refusal to pay commission: Logabox v Titherley [1977] IRLR 97; reduction in pay: Industrial Rubber Products v Gillon [1977] IRLR 389; Gilles v R Daniels & Co Ltd [1980] IRLR 457; malice in excluding employee from promotion: Turner v London Transport Executive [1977] IRLR 441; employer’s refusal to move to a new place of work: George Wimpey & Co Ltd v Cooper [1977] IRLR 205; Little v Charterhouse Magna Assurance Co Ltd [1980] IRLR 19; requirement to drive overloaded vehicle: Wilkins v Cantrell & Cochrane Ltd [1978] IRLR 483; failure to take action on a safety complaint: BAC v Austin [1978] IRLR 332; Keys v Shoefayre Ltd [1978] IRLR 476; allegations of inefficiency and incompetence of employee: Wetherall (Bond St WI) v Lynn [1977] IRLR 333; change in emphasis in job duties: London Borough of Camden v Pedersen [1979] IRLR 377; deductions from pay of cash deficiencies caused by dishonesty: Bristol Garage (Brighton) Ltd v Lowen [1979] IRLR 86; false accusations that employee is guilty of theft: Robinson v Crompton Parkinson Ltd [1979] IRLR 61; arbitrary and discriminatory refusal to offer employee a pay rise: FC Gardner Ltd v Beresford [1978] IRLR 63; refusal to allow time off in an emergency: Warner v Barbers Stores [1978] IRLR 109; foul language by employer: Palmanor Ltd v Cedron [1978] IRLR 303; employee underemployed: VA Hemmings v International Computers Ltd [1976] IRLR 37; conduct of workmates: McCabe v Chicpack Ltd [1976] IRLR 38; change of job content, demotion: JB Robson v Cambrian Electric Products Ltd [1976] IRLR 109; Ford v Milthorn Ltd [1980] IRLR 30; demotion as a disciplinary sanction (no repudiation): Theedom v British Railways Board [1976] IRLR 137; no suitable work for employee: FT Breach v Epsylon Industries Ltd [1976] IRLR 180; unreasonable overtime: Gilbert v Goldstone [1976] IRLR 257; lay-off without pay: Burroughs Machines Ltd v Timmoney [1976] IRLR 343; suspension: D&J McKenzie Ltd v Smith [1976] IRLR 345 (Court of Session); lack of management support: Associated Tyre Specialists (Eastern) Ltd v Waterhouse [1976] IRLR 386; rudeness to secretary: Isle of Wight Tourist Board v Coombes [1976] IRLR 413; employer’s rights and powers under a pension scheme: Imperial Group Pension Ltd and Ors v Imperial Tobacco Ltd and Ors [1991] IRLR 66; employer operating the business in a dishonest and corrupt manner: Malik v BCCI [1997] IRLR 462; employer failing to take adequate steps in light of complaint made by employee of theft by delivery person: Knox v Henderson Retail Ltd [2017] NICA 17 (10 March 2017). Wetherall v Lynn [1978] IR 205. If an employee is abused by other employees this would not amount to constructive dismissal unless the employer condoned the behaviour or failed to take reasonable steps to prevent it: McCabe v Chicpack Ltd [1976] IRLR 38. See too Lewis v Motorworld Garages Ltd [1985] IRLR 465.

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not to be bound by the contract. If the contract test is applied with too broad a brush,33 its supposed basis in contract law becomes little more than a formality.

[19.12] The requirement that an employee must resign in order to claim constructive dismissal could assume considerable importance in relation to claims based on breach of implied terms. In Western Excavating (ECC) Ltd v Sharp,34 Lord Denning MR said that an employee must decide to leave soon after the conduct of which he complains. But if an employee were to stay on for a few weeks after, say, demotion, it should still be possible for him to claim under the legislation provided he has never agreed to the demotion but in fact protested about it: Marriot v Oxford and District Co-Op Soc (No 2).35 Evidence will be required that the employee objected to the employer’s treatment. In Walton & Morse v Dorrington36 the employee did not lose her right to claim constructive dismissal by reason that she delayed a few weeks in order to find alternative employment before resigning on grounds that the employer refused to change its policy on smoking. The effect of delay between the final breach and resignation was the central issue in Jones v F Sirl & Son (Furnishers) Ltd.37 Merely because the employee did not resign until she was offered a new job did not mean she could not claim constructive dismissal. What is important is whether the repudiating breach was the main (not sole) cause of the resignation.

(2) The reasonableness test [19.13] In adjudicating on claims involving this test, the Workplace Relations Commission will look at the conduct of employer as well as of employee, although the greater emphasis will be on the former. As earlier referred to, it will be relevant whether the dismissal was reasonable in the light of all the circumstances. The initial test of reasonableness may obscure the test of reasonableness overall. If an employee seeks to argue that his constructive dismissal satisfies the test of reasonableness, in practice this 33

34

35

36 37

See earlier cases in which it was suggested it may be ‘the tone in which the words are delivered which is as important as the words themselves and we find that they were intended to be, and in fact were, abusive and insulting to the employee [“bloody fat sod – stupid stuckup bitch”]’: Mac Neilage v Arthur Roye (Turf Accountants) Ltd [1976] IRLR 88. See, further, Wares v Caithness Leather Products [1974] IRLR 162. It seems that case law in Britain has distinguished between male and female employees: words like ‘fuck off’ may not amount to dismissal: Witham v Hills Shopfitters Ltd (1976) IT 17091/76/B; Davy v JA Sollins (Builders) Ltd [1974] IRLR 324. (Contrast Irish case, Carroll v Peter Lyons Ltd UD 229/1979). But abusive behaviour of other sorts may amount to constructive dismissal: Bariamis v John Stephen of London Ltd [1975] IRLR 237; Fanshaw v Robinsons & Sons Ltd [1975] IRLR 165. Western Excavating (ECC) Ltd v Sharp [1978] QB 761, [1978] ICR 221. In Marshall Specialist Vehicles Ltd v Osborne [2003] IRLR 672 EAT considered similarities and differences between legal test for personal injury claims re stress and for claims of constructive dismissal where employee resigns for stress. More recently, the EAT confirmed that the two causes of action are separate and distinct: see Whyte v Phonewatch Ltd (UD 685/ 2015). Marriot v Oxford and District Co-Op Soc (No 2) [1970] 1 QB 186, [1969] 3 All ER 1126 (CA). Walton & Morse v Dorrington [1997] IRLR 488. Jones v F Sirl & Son (Furnishers) Ltd [1997] IRLR 493.

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may be tantamount to requiring him to prove that his dismissal was unfair.38 Although it is generally very difficult to state whether the Workplace Relations Commission (and the Employment Appeals Tribunal formerly) applies one test rather than the other in relation to constructive dismissal, where it has applied the reasonableness test, it has not always avoided the danger of merging the two notions of reasonableness.

[19.14] There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster Bank Ltd.39 In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’. Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning.40 [19.15] As is set out in detail in Chapter 13 of this work, the standard of review adopted in unfair dismissal cases generally is the so-called ‘band of reasonable responses’ test laid down in British Leyland UK Ltd v Swift.41 In that case Lord Denning MR observed: ‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’42 38

39

40

41 42

But in Buckland v Bournemouth University Higher Education Corporation [2011] QB 323, the Court of Appeal held that a constructive dismissal would be established following a fundamental or repudiatory breach of contract and not by assessing whether the employer’s behaviour fell within a band of reasonable responses. Conway v Ulster Bank Ltd UD 474/1981. The EAT found there had been a consistent pattern of lack of engagement by the claimant with the respondent’s grievance process and hence no constructive dismissal in Harrold v St Michael’s House [2008] ELR 1 – also Byrne v Safety Solutions Ltd UD 563/2003; see Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000); also McCormack v Hanlon Exports Ltd UD 460/1986; Ray v Kerry Group plc UD 25/1991; Beatty v Bayside Supermarket Ltd UD 142/1987; Gregory v Cannon Hygienic Products Ltd UD 283/1992. Knowledge that a grievance procedure exists is germane: Kean v Western Health Board UD 940/1988. Not to invoke the grievance procedure might not be fatal in exceptional circumstances, eg where behaviour of employer intolerable, according to EAT obiter in Hennessy v Abernethy’s Bakery Ltd UD 582/1994. An employer must reasonably and promptly afford a reasonable opportunity to its employees to obtain redress of any grievance: WA Goold (Pearmak) Ltd v McConnell [1995] IRLR 516 (EAT). Also, Tolson v Governing Body of Mixenden Community School [2003] IRLR 842. Power v University of Limerick UD 654/1991. See also Morans v Electricity Supply Board UD 347/1997. British Leyland UK Ltd v Swift [1981] IRLR 91, discussed in Ch 13 of this work. British Leyland UK Ltd v Swift [1981] IRLR 91 at 93; affirmed in Allied Irish Banks plc v Purcell [2012] ELR 189.

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However, the EAT has recently rejected this position as the proper test in Irish law relating to constructive dismissal. In Smith,43 the EAT confirmed that such a test cannot be relevant in considering constructive unfair dismissal claims, which of course relate to the reasonableness (or entitlement) of the employee in resigning his or her employment and not the employer’s behaviour.

(3) Flexibility, mobility clauses [19.16] An employer may seek to justify an alleged constructive dismissal by pointing to an express or implied ‘flexibility’ or ‘mobility’ clause in the employee’s contract of service. For instance it may have included a clause to the following effect: ‘Should the interests of the company demand it, you may be required to serve at various offices of the company’s headquarters in Dublin, and the particular nature of your job may be changed.’44

Similarly a clause could be inserted: ‘If you are employed [eg on the site] you may be required to work overtime on being given reasonable notice.’45

[19.17] In the latter case, an employer’s insistence that his employee work overtime following due notice could not be regarded as being a breach of contract. Managerial prerogative in drawing up flexibility clauses is not unbridled, however. If an employer is given wide discretion by contract to alter the conditions of employment of employees, it is likely that the courts or the Workplace Relations Commission would imply a term limiting the scope of that discretion. For instance, if a clause enabled an employer to transfer an employee to another job with a higher or lower rate of pay, whether day work, night work or shift work, it is unlikely that this would be interpreted so as to allow an employer to behave unreasonably, for example, to transfer a carpenter to a plumber’s job or to transfer a process worker in a Dublin factory to a factory in Co Kerry.46 43

44

45

46

Smith v RSA Insurance Ltd UD1673/2013. And see Buckland v Bournemouth University Higher Education Corporation [2011] QB 323. A similar clause defeated an employee’s claim for constructive dismissal in Bex v Securicor Transport Ltd [1972] IRLR 68 (business manager transferred to position of customer liaison officer). See McDonagh v Galway Corporation [1991] ELR 33 (refusal to transfer unreasonable, express provision in contract enabling transfer); Nolan v Hermans Ltd UD 423/ 1987 (unreasonable to expect claimant who lived in Monkstown, Dublin to transfer to Kimmage when she had worked in Dun Laoghaire salon for 10 years). Contrast Osam v Mahon UD 625/1986 (once-off transfer from Rathmines to Capel Street Dublin). Dowsett Engineering Construction Ltd v Fowler (1977) EAT 425/76. Where an employer alleges that an employee’s original contract has been widened by agreement of the employee, he must clearly establish that the employee consented to the change. On flexibility in the context of transfer of undertakings, see Cowley v (1) Noonan Services Ltd and (2) Lantern Securities Ltd UD 1053/2004. Cf Briggs v Imperial Chemical Industries (1968) 3 ITR 276. It is impossible to say where the line limiting managerial prerogative would be drawn. One could argue that the employer is under a duty not to exercise his prerogative powers in a way which undermines the trust and confidence in the employment relationship, so that if he habitually insists on a particular employee changing jobs under a flexibility agreement, or transferring under a mobility clause, or being required to work overtime, or being refused overtime, this may in certain circumstances constitute a repudiation of the contract. See Curling v Securicor Ltd [1992] IRLR 549 (EAT) on mobility clauses when part of a business is to be closed down.

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[19.20]

[19.18] Where there is an express contractual term allowing an employer to transfer an employee to another location at its discretion, has the employee a right to be heard in relation to such a decision? The High Court (Murphy J) was not convinced in Allied Irish Banks Ltd v Lupton47 that there was any justification in such circumstances to infer an intention on behalf of either employer or employee that the decision to transfer should be subject to the employee’s right to be heard in respect of the decision generally or the particular location chosen on the employee’s behalf. ‘The system as applied involves the bank and its Personnel Officers in building up a fund of knowledge with regard to the needs and circumstances of each official on the one hand and the possible vacancies which would afford the best opportunity of meeting those needs and at the same time promoting the best interests of the bank.’

The transfer in Lupton was not inspired by an animus towards the employee, the court held, but was reached with a view to promoting his career prospects. In reaching that view the judge did not wish to be taken as accepting that a decision to transfer for an improper motive ‘would necessarily involve a breach of contract’. Such an abuse could no doubt be processed via the bank’s grievance procedure.

[19.19] In Conway48 the employee was unhappy at what she regarded as a unilaterally imposed transfer about which she had not been consulted, made for reasons she could not accept as reasonable or necessary (impending marriage to an account holder at the branch where she worked), and which she regarded as effectively making it impossible or unacceptably difficult for her to continue working for the employer. The EAT took the view that the right to transfer in the bank employee’s contract gave ‘no absolute power to transfer’. It said: ‘Any concept of absolute power is an illusion and such power as exists cannot be exercised outside the law of this land which compels the recognition of personal fundamental rights.’

The EAT declined to find for the employee. She failed both on the contract test and on the reasonableness test. In the light of Murphy the EAT’s finding that the employee did not act reasonably in resigning without having first substantially utilised the grievance procedure to try to remedy her complaints is not surprising.

[19.20] Variation clauses are unlikely to come to an employer’s aid. In Brannigan v O’Connors Jeans Ltd49 the employer sought to rely on a clause in the claimant’s contract of employment which gave it the right to vary ‘from time to time’ the employee’s conditions of employment among them her place of work. The EAT held that the clause could not be read in isolation and in the particular context of the employee’s ‘place of work’ clause, under which she was normally or mainly to work at a particular location 47

48

49

Allied Irish Banks Ltd v Lupton (1984) 3 JISSL 107. Lupton was distinguished by Smyth J in O’Byrne v Dunnes Stores [2003] ELR 297, where the plaintiff had been given no notice of the need to move from the Tallaght to Blanchardstown branch of the respondent, nor any opportunity to make representations, in spite of a written request by him for the reasons for the move and for a meeting in the presence of an independent witness. Conway v Ulster Bank Ltd UD 474/1981; para [19.19]. See too O’Kane v Dunnes Stores Ltd UD 1547/2003 (‘The policy of transferring an employee from one store to another by telephone call does not reflect sound industrial relations practice’). Brannigan v O’Connors Jeans Ltd UD 1030/2005.

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[19.21]

but could ‘from time to time’ be required to work at the employer’s other place of work, she could not be transferred to work mainly in that other work location.

(4) Miscellaneous [19.21] An employee may resign as a result of a disciplinary inquiry, arguing that the circumstances leading to the initiation of disciplinary action (eg failure to meet set targets) were themselves unreasonable or he might argue that the disciplinary action resulting was out of proportion to the alleged wrong.50 [19.22] The question of the propriety and necessity of a precautionary/holding suspension is one which should be considered carefully by an employer before it is adopted, as revealed by the high-profile determination of the Employment Appeals Tribunal in Smith v RSA Insurance Ireland Limited,51 in which the Tribunal awarded what is believed at the time of writing52 to be the largest ever award of compensation in an unfair dismissal case. The EAT expressly relied on the passages on suspension in the judgment of the High Court (Noonan J) in Governor and Company of the Bank of Ireland v Reilly53 – although apparently the difficulties identified by the EAT concerned not the fact but the manner of the suspension. Suspending on national television was ‘the equivalent of taking a sledge hammer to his reputation, to his prospects of ever securing employment in this industry again in Ireland, in Europe and very possibly beyond and it sealed his fate with the respondent. There was no going back from that point.’

[19.23] A clear recent example of the impact of Reilly can be seen in the decision of the Workplace Relations Commission in A Store Manager v A DIY Store54 where the Adjudication Officer stated: ‘[T]he Complainant’s suspension on the basis of the knowledge that her manager had on the 28th of April 2015 (which related only to the borrowing of the machine only) and considering her position in the organisation, was somewhat trigger happy. Her manager had only been store manager for three weeks before the suspension … taking the keys from the Complainant and walking her out of the shop was heavy handed in the circumstances that the Complainant was suspected of at the time. SI 146 of 2000 sets out the general principle that: “procedures should be reviewed and updated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practise generally.” … since 2015 there is the requirement for the Respondent to apply a test of necessity in making the decision to suspend. I find that there was no consideration 50

51 52 53 54

As in BBC v Beckett [1983] IRLR 43. See too The Post Office v Strange [1981] IRLR 515. Suspension pending investigation is unlikely to amount to constructive dismissal: Seaman and Seaman v Denver Motors Ltd UD 186 and 187/1997; Moran v The Christina Noble Children’s Foundation (Ire) Ltd UD 24/2005. See, however, the determination of the EAT in Smith analysed above at para [19.22]. Smith v RSA Insurance Ireland Limited UD1673/2013. April 2017. Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241. A Store Manager v A DIY Store ADJ-00002684 (23 May 2017).

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[19.25]

of whether it was necessary to suspend the Complainant in the decision to suspend her and as such is in breach of natural justice and fair procedures … In this case, I can find no justification for the suspension. The acting manager was new to the store and appears only to have been in his position for up to three weeks. The Complainant would have been his second in command. I find that if she had been aware of her new managers zero tolerance attitude on the store use policy, she would not have taken the machine. I also find that the suspension was unnecessary in order to proceed with the disciplinary process. The Respondent’s loss prevention manager was on site taking statements on the date of suspension and the investigation was well under way. I further find that the decision to suspend should be applied equally to all staff members concerned. The Complainant raised issues with regard to enforcement of the store in use policy. The Complainant’s colleague who borrowed the machine with the Complainant’s sanction was not disciplined. To suspend one member but not another whether the allegations are the same (albeit the staff were at different levels in the organisation) taints the suspension process.’

It is clear, therefore, that the impact of the Reilly decision is already being strongly felt in the jurisprudence of the statutory employment bodies and it looks likely that this will continue in the determinations of the Workplace Relations Commission on unfair dismissal.

[19.24] An employer cannot seek to abdicate responsibility by arguing that the behaviour complained of by an employee in relation to the employer was not authorised55 or was in some way invalid.56 The option to ‘resign or be dismissed’ is sometimes extended by employers for varying motivations. This option should be avoided as a general rule, as a resignation in such circumstances is involuntary and provides the classic stuff of a constructive dismissal claim. Similarly, where an employee clearly resigns in a hasty fashion against the backdrop of investigation and disciplinary procedures, reasonableness demands that the employer consider carefully whether this resignation should be set aside.57 However, if the evidence is that the claimant instigated the option of resigning from the company to avoid the possibility of prosecution and adverse publicity (or, presumably, for any other personal reason) such resignation will not amount to constructive dismissal.58 Constructive dismissal cases can involve a clash of personalities which in itself does not justify resignation.59 The employer’s conduct in investigating and following up any complaints will be crucial.60 [19.25] It can be difficult to achieve a balance between commercial reality and the requirements of the 1977 Act. Suppose a company needs an influx of capital, 55 56 57

58 59 60

Hilton International Hotels (UK) Ltd v Protopapa [1990] IRLR 316. Warnes and Anor v Trustees of Cheriton Oddfellows Social Club [1993] IRLR 58. For a recent example see An Employee v An Employer ADJ-00003442 (8 March 2017) in which the Adjudication Officer held that a one line email of resignation was ‘obviously written in a very distressed state and should have been set aside’ on the grounds of reasonableness. McConville v ESB [1997] ELR 46. Carthy v Clydavale Investments Ltd UD 1091/2004. Fay v AHP Manufacturing BV t/a Wyeth Medica Ire UD 386/2004.

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shareholders have concerns about management and a condition of investment is the appointment of a new acting chief executive and a reduction in the duration of executive service contracts. These facts characterised McManamon v Videpro International Products Ltd61 where the majority and dissenting decisions of the EAT illustrate the difficulty of achieving unanimity in such complex circumstances – and thus the difficulty of predicting the outcome of such a case before the WRC. The dissenting view recorded that: ‘... the board lost confidence in the ability of the executive directors to manage the company effectively. Accordingly it was not alone sensible but essential in discharging responsibility to the shareholders to effect such changes as they deemed necessary ... In my opinion the company acted properly and fairly in all the circumstances and [the claimant financial director] was not justified in withdrawing his services from the company by virtue of the conduct of the employer.’

However the majority took the view that it had been made clear to the claimant that his presence in the company was not required and that the alternative position offered to him was untenable. There was, said the EAT, no evidence to justify lack of confidence in the claimant. Accordingly it ordered that he be reinstated. Clearly, the WRC will need to be convinced that there is a case justifying loss of confidence in the particular executive, not in management generally.

C.

EMPLOYMENT EQUALITY

[19.26] It is a matter for advice as to whether an employee who feels forced to resign because, say, of alleged sexual harassment or discrimination on any of the proscribed grounds, should proceed under the 1977 Act or the Employment Equality Act 1998 as amended.62 There may be advantages in choosing the former route in particular circumstances. However, as noted at para [14.07], s 17 of the Credit Guarantee (Amendment) Act 2016 amends s 101 of the Employment Equality Act 1998 by providing that where an employee refers both a claim for unlawful discrimination in respect of a dismissal under s 77 of the Act and a claim for unfair dismissal under the Unfair Dismissals Act 1977, then the discrimination claim shall automatically be deemed to have been withdrawn unless the employee withdraws the unfair dismissal claim. [19.27] In Mitchell v Grier Electric and WJ Grier63 the claimant alleged she was forced to leave her employment because of the attitude adopted by her employer. She had returned to work after maternity leave on a part-time basis by agreement with her employer. He subsequently handed her a letter which indicated that she would have to work a full five-day week from then on. The EAT found that the claimant, a highly satisfactory and competent employee of almost 10 years standing, deserved better treatment than to be given what amounted to an ultimatum in relation to her working hours at extremely short notice. Her claim for unfair dismissal was upheld. 61 62 63

McManamon v Videpro International Products Ltd UD 250/1991. Eg A Company v A Worker ED/04/13 Det No 51 (9 February 2005) (disability ground). Mitchell v Grier Electric and WJ Grier UD 1012/1992.

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[19.32]

[19.28] Sexual (or other) harassment can force an employee to resign. In O’Doherty v John Paul Hennessy Junior and Harrow Holdings Ltd64 the claimant resigned allegedly due to sexual harassment by a member of the first respondent’s family. The EAT found the claimant was reasonable in terminating her employment in the circumstances. The claimant and her mother had approached the first respondent, which was also found to be reasonable.

D.

TRANSFER OF UNDERTAKINGS

[19.29] In O’Donovan v Ryanair and Servisair (Irl) Ltd65 the employee’s employment transferred from the first to the second respondent in a manner which fell within the TUPE regulations.66 He submitted that he had not been consulted regarding transfer of the business. He stated that he and his co-workers were given travel concessions by the first defendant and that these were removed when their employment transferred. In addition the method in which his remuneration was calculated was changed without consultation. The claim was dismissed. The EAT was satisfied on the evidence that the employee would not have suffered a reduction in pay, but on balance an increase. While accepting that he had a grievance regarding withdrawal of travel concessions the EAT found his resignation was not warranted by any act or omission of the second respondent.

[19.30] In Cave v Vehicle Maintenance (Dublin) Ltd,67 the EAT held that an employer is not obliged to inform an employee that a business is being taken over or transferred where an employee has given notice of his resignation prior to such arrangement or transfer being reached.

[19.31] In the British case of Sita (GB) Ltd v Bruton68 several local authority employees resigned after hearing remarks from the transferees about how their terms and conditions would be damaged once they took over a service contract. The EAT held that the transferees could not be held directly liable since they were never the employers. Nor could the employee’s fears be treated as a breach by the local authority of its implied duty of trust and confidence and good faith. The conduct of a potential transferee cannot be regarded as sufficiently affecting the employer’s obligation of mutual trust and goodwill where the employee’s complaints or fears relate solely to the terms and conditions of the contract, because the substance of those complaints and fears are totally protected by the remedies available to the employee under relevant Transfer of Undertakings Regulations.

[19.32] This point is borne out in the Irish secondary legislation implementing the Transfer of Undertakings Directive. In accordance with reg 5(4) of the European 64

65 66

67 68

O’Doherty v John Paul Hennessy Junior and Harrow Holdings Ltd UD 857/1991. See too Bracebridge Engineering Ltd v Darby [1990] IRLR 3. O’Donovan v Ryanair and Servisair (Irl) Ltd [1997] ELR 63. Then the European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) Regulations 1980 (SI 306/1980); now the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131/2003). Cave v Vehicle Maintenance (Dublin) Ltd [1998] ELR 319. Sita (GB) Ltd v Bruton [1997] IRLR 501.

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Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, if dismissal of an employee who has been dismissed on the grounds of transfer constitutes a dismissal under the Unfair Dismissal Acts, then relief may not be granted under both the regulations and the Unfair Dismissal Acts.

[19.33] It is thus important to clearly delineate the different avenues through which an employee might seek relief. In relation to the intersection of the TUPE regulations and Unfair Dismissal Acts, the timing of an objection to a transfer by an employee is crucial. In Humphreys v University of Oxford,69 the Court of Appeal held that an objection by an employee to a transfer on the ground that the transfer would involve a substantial and detrimental change in his or her terms and conditions of employment prevented the transfer taking place and the employee’s right to terminate his or her contract at common law in respect of a detrimental change in his working conditions and to sue and seek compensation for wrongful dismissal as against the transferor remained intact. [19.34] The timing of making a constructive dismissal claim will also be key in this context. In Rossiter v Pendragon plc,70 the Court of Appeal confirmed that where an employee claimed a constructive dismissal, there must have been a fundamental breach of contract by the employer. In the instant case, the tribunal had concluded that there had not been a fundamental change in the employee’s working conditions and, in any event, the employee had affirmed the contract by remaining in employment with the transferee for over a year after the date of transfer before claiming constructive dismissal.

69 70

Humphreys v University of Oxford [2000] ICR 405. Rossiter v Pendragon plc [2002] ICR 1063.

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Chapter 20

Protected Disclosures A.

BACKGROUND

[20.01] The introduction of the Protected Disclosures Act 2014 marks a landmark development in employment law and has, of course, particular implications for dismissal law.1 The 2014 Act specifically amends the Unfair Dismissals Acts, as set out in detail below. At the time of writing (mid-2017), the 2014 Act has only been in force for three years yet it has already exerted a significant impact on employment litigation. This is likely to increase further in light of the extensive protections contained in the legislation and the contemporary focus on concerns about protected disclosures and consequences for those who are associated with them.

(1) Overall relevance of whistleblowing in Irish employment law [20.02] Legislative reform on the subject of whistleblowing was long overdue in Irish employment law. Underpinning the legislative proposals that ultimately became the 2014 Act was the need to provide comprehensive protection for whistleblowers across all sectors of the economy, replacing what had hitherto been a piecemeal, sector-specific patchwork of protections that had left significant lacunae in the legal regime. A number of very prominent public controversies regarding whistleblowing, particularly in the context of An Garda Síochána, further increased the momentum for legislative change in this context.

(2) The legal basis for the protection of whistleblowers in Ireland [20.03] The 2014 Act transforms the legal position concerning whistleblower protection in this jurisdiction. One of the most significant features of the new legislation is the breadth of its coverage (set out in more detail below). This stands in marked contrast to the previous position in Irish employment law, where protection for whisteblowers had developed on an ad hoc sectoral-specific basis and was frequently linked to mandatory reporting obligations rather than being viewed as a substantive protection in its own right. Thus, for example, s 8A of the Prevention of Corruption Act 2001 provides that a person shall not be liable in damages in respect of communicating to an appropriate person his or her opinion that an offence under the Prevention of Corruption Acts 1889–2010 may have been or was being committed, unless the 1

For analysis see Kierans, ‘Protected Disclosures’, ch 10 in Murphy and Regan (eds) Employment Law (2nd edn, Bloomsbury Professional, 2017); Hyde, ‘The Protected Disclosures Act 2014: An Overview’ (2014) 11 IELJ 114; O’Riordan, ‘The Protected Disclosures Act 2014—Practicalities and Recent Developments’ (2017) 14 IELJ 10.

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communication was made knowing it to be, or recklessly as to whether it was, false, misleading, frivolous or vexatious.

[20.04] Similarly, s 59(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001 provides that a mandatory report made in good faith by an auditor to An Garda Síochána, where the accounts of the audited firm or person indicated that an offence under the 2001 Act may have been committed, shall not be treated as a breach of any restriction imposed by statute or otherwise expose the person making the report to legal liability for so doing. The precise legislative impact of the coming into force of the 2014 Act upon the existing piecemeal statutes concerning whistleblowing can be gleaned from Schedule 4 of the 2014 Act. More generally, a range of other domestic statutes provides protection to employees against penalisation/victimisation in circumstances where an employee complains that a relevant legal obligation has not been complied with.2 [20.05] As can be seen from the foregoing, the legal framework in Ireland was, until 2014, severely lacking in being confined either to specific sectors or dealing only with certain types of wrongdoing intimately connected with the very purpose of the legislation enshrining the penalisation/victimisation provisions in the first place. The introduction of the 2014 Act therefore represents a watershed in Irish law in terms of the level of protection afforded to whistleblowers.

B.

THE SCOPE OF PERSONS PROTECTED UNDER THE 2014 ACT

[20.06] A striking feature of the 2014 Act in Ireland is the very broad range of persons who enjoy protection. Unlike a great many pieces of protective employment legislation in Ireland, the 2014 Act affords its protections to ‘workers’3 rather than ‘employees’ and the definition of worker contained in s 3 of the Act is extremely broad, being a person who is an employee, a person who entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business, a person who works in circumstances in which the individual is introduced or supplied to do the work by a third person, and the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them. 2

3

Examples include the Employment Equality Act 1998 as amended; National Minimum Wage Act 2000 as amended; Carers’ Leave Act 2001; Protection of Employees (Part-Time Work) Act 2001; Protection of Employees (Fixed-Term Work) Act 2003; Safety, Health and Welfare at Work Act 2005; Employees (Provision of Information and Consultation) Act 2006; Protection of Employees (Temporary Agency Work) Act 2012. The reader is referred in this regard to the analysis of employment status provided in Ch 3 of this work and the focus therein on the definition of ‘worker’ in English law as laid down in the Employment Rights Act 1996, s 230. See Prassl (2017) 133 LQR 366.

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[20.10]

[20.07] The range of persons afforded legal protection under the 2014 Act is further considerably widened by virtue of s 13 of the 2014 Act, which enshrines a new cause of action in tort for persons who have been adversely treated as a result of a protected disclosure made either by them or by another: ‘If a person causes detriment to another person because the other person or a third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused.’

This potentially very significant provision is another new protection for employees and non-employees alike and could be of potential relevance to, for example, persons who encourage or affirm the disclosures made by the whistleblower.

C.

KEY PROVISIONS OF THE 2014 ACT CONCERNING DISMISSAL

[20.08] Under s 5 of the 2014 Act, a worker may make a protected disclosure of ‘relevant information’. Information is relevant if, in the reasonable belief of the worker, it tends to show one or more ‘relevant wrongdoings’, and it came to the attention of the worker in connection with the worker’s employment. Very significantly, the protection for the whistleblower remains available even if the information disclosed, on examination, does not, in fact, reveal wrongdoing. This constitutes a very important illustration of the level of protection afforded in Ireland to whistleblowers who are making allegations erroneously or in the face of an uncertainty of the relevant facts. It is important to note in this regard, however, that deliberate false reporting will fail the ‘reasonable belief’ test and is not protected under the 2014 Act. In a significant determination of the Workplace Relations Commission, it has been held that a matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.4

(1) Three key amendments to the Unfair Dismissals Acts [20.09] For present purposes, a crucial feature of the 2014 Act is that it amends the Unfair Dismissals Acts in three key respects. First, it expressly deems a dismissal to be unfair where that dismissal flows from the employee’s having made a protected disclosure. As with regular unfair dismissal cases, the onus is on the employer to satisfy the Workplace Relations Commission that it can justify the dismissal: the employee does not have any onus in this respect, save where the fact of dismissal is in issue. [20.10] Second, the 2014 Acts amends and significantly enhances the redress which could otherwise be awarded for unfair dismissal by allowing an employee who is dismissed for having made a protected disclosure to obtain compensation of up to a maximum of five years’ remuneration.5 This is a striking development in the law on unfair dismissal and one that sits in marked contrast to other unfair dismissal cases in 4 5

A Senior Platform Developer v A Software Service Provider ADJ-00001930 (31 May 2017). Although it is noteworthy that the compensation may be reduced by up to 25% if the investigation of the wrongdoing concerned was not the sole or main motivation for making the disclosure.

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which the financial redress available is capped at two years’ remuneration. An important point to be noted in this regard, however, is that s 11(2) of the 2014 Act expressly clarifies that an unfair dismissal claim in the context of a protected disclosure relates to ‘a dismissal which is an unfair dismissal by virtue of section 6(2)(ba) of the Unfair Dismissals Act 1977’. The significance of this point lies in the fact that s 7(1)(c) of the 1977 Act expressly limits the award of compensation to financial loss atttributable to the dismissal.

[20.11] The third key change brought about by the 2014 Act to the existing unfair dismissals regime in Ireland is that the qualifying service requirement which applies to most unfair dismissal cases – whereby employees must have one year’s continuous service before they may bring an unfair dismissal claim – is expressly waived in the context of protected disclosures.

[20.12] It is also noteworthy that under the Irish whistleblowing regime, the motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.6 Thus, even where the worker makes the disclosure with a view to causing embarassment or difficulty for the employer, this will be irrelevant: what is required is that the worker has a reasonable belief that the information disclosed tends to show one or more relevant wrongdoing(s). This is very effectively illustrated in the Labour Court decision in Monaghan v Aidan and Henrietta Hayes Partnership,7 which was the first award of compensation for penalisation under the 2014 Act. There, a care assistant at a nursing home in Galway brought concerns regarding the treatment of patients to the attention of the matron at the nursing home. When subsequently penalised by, inter alia, the mechanism of suspension, she successfully brought a claim under the Act and obtained substantial compensation from the Labour Court notwithstanding that the employer had alleged that her disclosure was motivated by malice. [20.13] The 2014 Act sets out, in s 5(3), a list of ‘relevant wrongdoings’. These include the commission of an offence; failure to perform a legal obligation (other than one arising under a worker’s contract of employment); a miscarriage of justice; endangerment of people’s health and safety; environmental damage; improper use of public money; an act or omission by a public body that is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement; and concealment of any of these wrongs. Clearly, this list is so broad as to potentially capture an extremely wide range of allegations. [20.14] The 2014 Act seeks to encourage the making of the vast majority of dislosures to the employer or another responsible person in the first instance. Under s 6 of the 2014 Act, the worker is permitted to disclose to a responsible person where the worker reasonably believes that this person has legal responsibility for the relevant wrongdoing or the wrongdoing does not relate solely or mainly to the worker’s employer. The 2014 Act provides (in s 6(2)) that a disclosure will be treated as a disclosure to an employer where it is done in accordance with a procedure authorised by the employer, such as, for example, an internal whistleblowing procedure. 6 7

Protected Disclosures Act 2014, s 5(7). Monaghan v Aidan and Henrietta Hayes Partnership [2017] ELR 8.

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Alternatively, s 7 of the 2014 Act provides that a worker may make a protected disclosure to a ‘prescribed person’. The Minister for Public Expenditure and Reform may, by order and taking into account defined criteria, prescribe certain appropriate persons to be recipients of disclosures of relevant wrongdoings. Section 7(1)(b) of the 2014 Act provides that, in making the disclosure to the prescribed person, the worker must hold a reasonable belief that the wrongdoing falls within the description of matters over which the prescribed person has responsibility and the worker must also reasonably believe that the information disclosed and any allegations therein are substantially true. Section 8 of the 2014 Act provides that, in the context of public bodies, a worker may make a protected disclosure to a Minister exercising any function relating to the public body. A protected disclosure may be made by a worker in the course of obtaining legal advice from a barrister, solicitor or trade union official (or official of a statutorily identified body).8

[20.15] Under s 10 the 2014 Act, a worker may make a protected disclosure in other circumstances if the worker ‘reasonably believes’ that the information disclosed and any allegation contained in it are substantially true. The disclosure must not, however, be made for personal gain (although this excludes any reward payable under or by virtue of any enactment). In all the circumstances of the case, it must be reasonable for the worker to make the disclosure. One or more of the following conditions must also be satisfied: •

•

• •

at the time the worker makes the disclosure, the worker reasonably believes that he or she will be subjected to penalisation by the employer if a disclosure is made in circumstances other than to a legal adviser; where no relevant person is prescribed in relation to the relevant wrongdoing, the worker reasonably believes that it is likely that evidence relating to the relevant wrongdoing will be concealed or destroyed if the worker makes a disclosure to an employer or responsible person; the worker has previously made a disclosure of substantially the same information other than to a legal adviser; the relevant wrongdoing is of an exceptionally serious nature.

[20.16] Section 10(3) of the 2014 Act also sets out certain criteria which may be considered in determining whether it was reasonable in all of the circumstances of the case for the disclosure to be made. These include: • • • • •

•

8

the identity of the recipient of the disclosure; the seriousness of the relevant wrongdoing; whether the wrongdoing is continuing or likely to occur again; any breach of confidentiality; in respect of a previous disclosure, any previous action taken or which might reasonably be expected to have been taken by the recipient of the disclosure; and whether a worker complied with any procedures authorised by an employer when making a disclosure to that employer or another responsible person.

Protected Disclosures Act 2014, s 9.

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A subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.9 [20.17] Section 16 of the 2014 Act provides that a person to whom a protected disclosure is made, and any person to whom a protected disclosure is referred in the performance of that person’s duties, shall not disclose to another person any information that might identify the person by whom the protected disclosure was made. There are various qualifications to this provision, but it does demonstrate an important identity protection for whistleblowers under Irish law.

(2) Robust protections evidenced in the emerging case law of the Workplace Relations Commission and Labour Court [20.18] In its determination in March 2017 in An Employee v An Employer,10 the Workplace Relations Commission awarded two years’ salary to an employee who was dismissed after making a protected disclosure to the Health Information and Quality Authority (HIQA) over practices at a nursing home. The complainant made the protected disclosure after one incident where she found a resident ‘tied with a walking belt into an ordinary chair in her room with the door closed and in a very distressed state’. The complainant completed an incident report in the nursing home’s incident book, the patient file and the communications book, only to discover later that her entry on the incident in the communication book had been removed. Following the entry removal, the complainant perceived a marked change in attitude of management towards her and began to feel ‘frozen out’. She was left uninformed about policy changes and other relevant information that was communicated to other members of staff. For example, she learned from a colleague that a staff nurse – who was also the former owner and also the mother of the current owners – had told staff that the complainant ‘made mistakes’ and carers ‘should be careful when on duty with her’. The complainant further claimed that she was ‘verbally attacked’ by the mother of the owners in full view of passers-by including other staff and family members of residents. Due to the nurse’s ongoing concerns regarding practice in the nursing home and the lack of response or action taken regarding her concerns, she made contact with HIQA and made a protected disclosure in a written submission to HIQA. Following this, HIQA made an unannounced inspection. Within approximately three months, the complainant was informed of disciplinary proceedings against her which ultimately led to her being dismissed. The WRC adjudicator expressly found that the nursing home commenced and instigated the disciplinary procedure in an attempt to dismiss the nurse in advance of her reaching her 12 months of service with the company as a result of her protected disclosure to HIQA. Finding that the dismissal was ‘clearly linked’ to the disclosure, the WRC awarded two years’ compensation. 9 10

Protected Disclosures Act 2014, s 10(4). An Employee v An Employer ADJ-00000456 (22 March 2017).

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D.

[20.22]

ROBUST PROTECTION AGAINST PENALISATION

[20.19] Quite apart from the protection against dismissal, the employee who is a whistleblower in Ireland is also protected against penalisation. Penalisation is very broadly defined in s 3 of the 2014 Act and includes any act or omission that affects a worker to the worker’s detriment (to include, inter alia, suspension, lay-off, dismissal, demotion and loss of opportunity for promotion, transfer of duties or alteration of terms and conditions; unfair treatment; coercion, intimidation or harassment; discrimination, disadvantage, injury, damage or loss or threat of reprisal). Pursuant to Schedule 2 of the 2014 Act, the very strong redress of up to five years’ remuneration is again possible here. [20.20] Another example of robust vindication of a complainant’s rights in the context of penalisation under the 2014 Act is the Labour Court decision in Monaghan v Aidan and Henrietta Hayes Partnership,11 which was the first award of compensation for penalisation under the 2014 Act. There, a care assistant at a nursing home in Galway brought concerns regarding the treatment of patients to the attention of the matron at the nursing home. When subsequently penalised by, inter alia, the mechanism of suspension, she successfully brought a claim under the Act and obtained substantial compensation from the Labour Court notwithstanding that the employer had alleged that her disclosure was motivated by malice. [20.21] The complainant’s daughter also worked in the nursing home. Some difficulties arose with a named supervisor regarding the rostering of the complainant’s daughter’s hours. The complainant called a meeting of other care staff in a pub. The issues discussed included reference to the supervisor and her instructions regarding the care of residents. The complainant alleged that she was isolated and supervised in the course of her work after that meeting. She also claimed that she had made telephone calls to HIQA during this period. She was subsequently called to an appraisal meeting where she raised the issue of her daughter’s hours with the respondent. She also raised concerns regarding the care of the residents and alleged abuse by the supervisor. The complainant was asked to put her concerns in writing and she did so. The respondent notified HIQA of the written complaint and initiated an investigation into the matters raised and placed the alleged abuser on leave. The result of the investigation was that there was no evidence to substantiate the allegations made against the supervisor and she was recalled to work. Several allegations of malice had been made against the complainant by other staff members and it was determined that these should be dealt with in a separate investigation. The complainant was suspended on pay pending further investigation. During her suspension, the complainant was requested to complete certain regulatory forms. When she failed to do so over an extended period and despite repeated requests, the complainant was placed on a further suspension pending a disciplinary investigation. [20.22] The Court declined to hold that the telephone calls to HIQA constituted a protected disclosure but it held that a protected disclosure within the meaning of the 2014 Act had occurred at the appraisal meeting where the complainant had informed the 11

Monaghan v Aidan and Henrietta Hayes Partnership [2017] ELR 8.

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respondent of the alleged abuse by the supervisor. In so doing, she had thereby conveyed information concerning alleged wrongdoings regarding patient care which she reasonably believed were occurring within the nursing home and which had come to her attention in connection with her employment. Considering the question of whether or not the complainant was penalised for having made this protected disclosure, the Court applied its own case law arising under the Safety Health and Welfare at Work Act 2005 to the question of causation. This is an important feature of the reasoning in Monaghan which will be significant for future cases. The Court cited its well-known determination in the context of the 2005 Act in O’Neill v Toni & Guy Blackrock Ltd12 and applied the test set out in that case, namely whether the detriment in question was imposed for having committed the protected act: ‘Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned [detriment].’13

[20.23] Applying this test, the Court arrived at differing responses regarding the allegations of penalisation made by the complainant. The Court held that the alleged isolation which the complainant had suffered following the meeting in the pub did not constitute penalisation since the meeting in the pub did not constitute a protected disclosure. Whilst the telephone calls to HIQA could have constituted a protected disclosure, in light of the conflict of evidence as to whether the respondent was aware of those phone calls, the court held that there was insufficient evidence to support the complainant’s allegation that she was penalised following the making of those phone calls. [20.24] By contrast, the Court held that the suspension of the complainant following the investigation into allegations did constitute penalisation. The Court referred in particular to evidence given by a colleague of the complainant’s that during her suspension the colleague asked the matron when the complainant would be returning to work and the matron said ‘over my dead body will she be in this home again’. The Court further noted that no investigation into the allegations of malice had taken place, notwithstanding that the complainant remained on suspension arising out of those allegations for approximately four months when she was placed on further suspension for different reasons. The respondent later wrote to the complainant’s solicitors to inform them that having taken time to consider the matter the complainant had no case to answer in respect of the matters giving rise to the first suspension. The Court concluded that the making of the protected disclosure was an operative reason for placing the complainant on suspension and that the detriment giving rise to the complaint was incurred because of or in retaliation for the disclosure of information related to the alleged abuse and alleged wrongdoings regarding patient care made by the complainant at the appraisal meeting. The Court found that the subsequent period of 12 13

O’Neill v Toni & Guy Blackrock Ltd [2010] ELR 1. O’Neill v Toni & Guy Blackrock Ltd [2010] ELR 1 at 5.

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suspension, arising out of the complainant’s failure to fill in the forms, did not constitute penalisation under the 2014 Act. Monaghan is thus a very instructive determination which reveals the careful analysis to which the Labour Court will subject claims of penalisation under the 2014 Act, the nature of the but for causation inquiry to be applied in that context, and the intense factspecificity of penalisation claims.

E.

DISTINCTIVE NEW REMEDIES AVAILABLE UNDER THE 2014 ACT

(1) Introduction of a new tort [20.25] As already set out above, the 2014 Act (s 13) creates a new tort action that is open to a person who sustains ‘detriment’ as a result of whistleblowing, with detriment being defined to include coercion, intimidation, harassment, discrimination, disadvantage or adverse treatment in relation to employment (or prospective employment), injury, damage or loss, and threat of reprisal.

(2) Availability of urgent interim relief in the Circuit Court [20.26] Another radical new provision in the 2014 Act is the entitlement it confers upon employees to seek interim relief in the Circuit Court to restrain their dismissal. Section 11(2) of the Act sets out a relatively low threshold for the granting of such interim relief, with employees merely being required to demonstrate to the Court that there are ‘substantial grounds’ for contending that the dismissal results wholly or mainly from the employee having made a disclosure within the meaning of the Act. This threshold sits, of course, in marked contrast with the Maha Lingham14 strong case threshold for mandatory reliefs in employment injunctions generally as set out in detail earlier in this work.15 [20.27] The initial case law concerning Circuit Court applications under the 2014 reveals the relative ease with which employees who characterise themselves as whistleblowers may surmount this low threshold in order to avail of this urgent injunctive relief. Thus, in Dougan and Clarke v Lifeline Ambulance Service16 the applicants had been dismissed on the grounds of redundancy. They contended that this was in retaliation for a protected disclosure to the Revenue Commissioners earlier that year. The respondent did not dispute that the employees had made such a protected disclosure. Judge Comerford found that the employees had established substantial grounds for the contention that their dismissal was wholly or mainly due to the protected disclosure. Although the respondent offered to re-engage each employee, one on garden leave and the other as a paramedic, the employees rejected these offers and the Court found that their rejection of the offers was reasonable. The Court therefore made an order for the continuation of the contract of employment. Significantly, Judge Comerford did not conclude that the dismissals were wholly or mainly due to the 14 15 16

Maha Lingham [2006] ELR 137. See Ch 10. See Dougan and Clarke v Lifeline Ambulance Service (2016) The Irish Times, 30 July.

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protected disclosures but rather emphasised that the applicants had met the threshold of establishing substantial grounds for that contention.

[20.28] In Kelly v Alienvault Ireland Ltd17 the applicant asserted that she had raised a number of health and safety issues relating to sewage and persons being locked in toilets for three hours. She reported the issues to head office in Texas and was subsequently dismissed over the telephone. The respondent asserted that the decision to terminate the complainant’s employment had been made a number of days before she made the protected disclosure. Judge O’Donnabháin held that the complainant had made out a substantial case that she was dismissed because of the protected disclosure and granted an order for the continuation of the contract of employment.

(3) Effect of interim reliefs on ultimate compensatory award in the context of unfair dismissal within the meaning of the amendments introduced by the 2014 Act [20.29] n important practical point to be borne in mind, here, however, is that para 3 of Schedule 1 of the 2014 Act states that the interim relief mechanism set out in the Act is designed to compensate an employee for ‘loss of pay or any other benefit derived from the employment from the date of its termination until the determination or settlement of the claim’. Paragraph 3(3) of Schedule 1 expressly states that the court will make an order for the continued payment of an amount ‘which the employee could reasonably have been expected to earn during that period’. The Schedule goes on18 to state that any payment that is ordered by the Circuit Court whereby the employer must continue paying the employee between the date of dismissal and the date of the disposal of his/her unfair dismissal claim ‘goes towards discharging any liability of the employer under, or in respect of breach of, the terms or conditions of employment or contract of employment in respect of that period’. Whilst this wording is perhaps not as clear as could be desired, it is submitted that the better view is that this interim payment must be deducted from the calculation of the ultimate unfair dismissals award. The specific reference to ‘any liability’ for ‘breach’, given that it refers to the terms or conditions of employment or contract of employment,19 cannot be limited simply to contractual liabilities of the employer but also embraces statutory liabilities to include liability for breach of the Unfair Dismissals Acts.20 [20.30] Even if the ambiguity in the wording were construed differently, however, it is submitted that the argument for deducting the interim payment ought to still prevail as the complainant in the subsequent unfair dismissal claim simply would not have the same level of financial loss attributable to the dismissal as he or she would have had if no interim payment had been awarded. In almost all instances, this should lead to a 17 18 19 20

See Kelly v Alienvault Ireland Ltd (2016) The Irish Examiner, 3 November. At para 3(5). Emphasis added. It is instructive to note in this respect the approach adopted by the UK Employment Appeals Tribunal in Parsons v Airplus International Ltd (UKEAT/0023/16/JOJ, 4 March 2016) in which the relatively high test for granting relief in that jurisdiction – that the plaintiff is likely to win at the substantive hearing – was justified on the ground that ‘there is no provision for re-payment in the event that she ultimately fails’.

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deduction. The only real exception to this would be in a scenario where the Workplace Relations Commission or Labour Court could be satisfied that the future loss of earnings for the complainant would likely exceed the statutory maximum of five years’ remuneration, in which case an argument could be made to state that the interim payment should not be deducted. Such cases, however, must presumably be exceedingly rare. At the time of writing, the highest compensatory award made for unfair dismissal arising from a protected disclosure has been two years’ remuneration,21 and under the orthodox Unfair Dismissals regime (outside the 2014 Act) even the two year maximum award has been awarded very sparingly. In order for an adjudicator or the Labour Court to be satisfied that five years’ financial loss is likely to flow from the complainant’s dismissal it will likely have to be satisfied that the complainant would never again secure employment as a result of having been so severely reputationally damaged by the protected disclosure. Even in such a context, however, the complainant’s duty to mitigate will, of course, continue to apply.

21

An Employee v An Employer ADJ-00000456 (22 March 2017).

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Chapter 21

Collective Aspects of Unfair Dismissal A.

THE INDIVIDUALISATION OF COLLECTIVE ISSUES IN UNFAIR

DISMISSALS LEGISLATION

[21.01] ‘Where labour is weak – and its strength or weakness depends largely on factors outside the control of the law – Acts of Parliament, however well intentioned and well designed, can do something, but cannot do much to modify the power relation between labour and management.’1

A highly significant feature of unfair dismissals legislation is its individualisation of dismissal, which may also be a collective issue.2 The concern of the legislators was that dismissal should be taken out of the arena of industrial conflict, thus separating discipline and dismissal from the wider issue of collective control. Dismissal is treated in relative isolation from the bargaining context. The authorities are resorted to after dismissal has taken place, not when it is apprehended or threatened. Those who seek not selective but universal job protection through the extension of collective organisation and collective action find this unsatisfactory but their arguments, it is suggested, are irreconcilable with substantive justice.

[21.02] Unfair dismissals legislation is often used by workers within the so-called ‘secondary’ sector of the labour market where ‘labour is weak’ and pay and job security relatively low.3 Where trade unions are involved, the Unfair Dismissals Acts have strengthened collective bargaining. Management and trade unions are aware of the legal norms of fairness and unfairness. The potential for conflict is reduced and in practice both sides reach agreement more speedily. [21.03] More than four decades after the introduction of the unfair dismissals legislation, collective issues have remained collective issues4 and bargaining control has 1

2

3 4

Davies and Freedland (eds), Kahn-Freund’s Labour and the Law (The Hamlyn Lectures, 3rd edn, Stevens, 1983) at 18. On the general question of individualisation of collective issues, see Mellish and CollisSquires, ‘Legal and Social Norms in Discipline and Dismissal’ (1976) 5 ILJ 164; Cusack, ‘Too Many Cooks: Overcrowding in the Labour Law Landscape and the Decline of Collective Negotiations’ (2012) 9 IELJ 45; O’Sullivan, Turner, Kennedy and Wallace, ‘Is Individual Employment Law Displacing the Role of Trade Unions?’ (2015) 44 ILJ 222; Bogg, ‘“Individualism” and “Collectivism” in Collective Labour Law’ (2017) 46 ILJ 72. Hepple, ‘A Right to Work?’ (1981) 10 ILJ 65 at 68. Where industrial disputes concern dismissal they may end up before the Workplace Relations Commission and Labour Court pursuant to the statutory scheme established under the Industrial Relations Acts. (contd.../)

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been enhanced. The improvement in levels of strike activity over dismissal confirms that there is a large silent statistic relating to the number of collective disputes which have been resolved, or resolved more speedily, because of the legislation and an awareness of its potential effects.

B.

THE INDUSTRIAL RELATIONS ACT 1990 AND DISMISSAL

[21.04] Workers who engage in strike or industrial action are granted immunity from civil suit for civil and criminal conspiracy, picketing, inducing breaches of employment contracts, intimidation, or interference with trade, business or employment. These immunities are provided under the Industrial Relations Act 1990 (‘the 1990 Act’ which repealed and in large measure replaced the Trade Disputes Act 1906) but only if workers are acting ‘in contemplation or furtherance of a trade dispute’. Outside the 1990 Act, the workers’ action must not be inconsistent with the Constitution.5 [21.05] The definition of ‘trade dispute’ for the purposes of Part II of the 1990 Act (s 8) covers disputes relating to dismissal and also disputes which might give rise to a claim of constructive dismissal under unfair dismissals law. A ‘trade dispute’ means: any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person.

and a ‘worker’ means: any person who is or was employed whether or not in the employment of the employer with whom a trade dispute arises, but does not include a member of the Defence Forces or of the Garda Síochána.

[21.06] The ‘golden formula’ (‘in contemplation or furtherance of a trade dispute’) has been restrictively interpreted in Ireland in the past.6 It must be predictable that pre-1990 decisions will enjoy persuasive authority, however, eg there will be a ‘trade dispute’ where an employer relies upon its common law right of dismissal and is not prepared to 4

5

6

(\...contd) For some recent examples see A Worker v Therapie Clinic LCR 21396 (February 2017), and EFG Zest v A Worker (LCR21432, 10 April 2017) where the Labour Court ordered compensation in each case for workers dismissed who pursed claims pursuant to the Industrial Relations Act 1969. Educational Co of Ireland v Fitzpatrick [1961] IR 345. See Ahern, ‘The Industrial Relations Act 1990’ (1990–1993) JISLL 25. See Nolan Transport (Oaklands) Ltd v Halligan, Nolan, Ayton & SIPTU [1998] ELR 117. Interpretation was strict under the 1906 Act, particularly so in relation to the parties to a trade dispute: see B & I Steam Packet Co Ltd v Branigan [1958] IR 29; Smith v Beirne (1955) 89 ILTR 24. The courts were less restrictive concerning the issues involved in a trade dispute, see Becton Dickinson Ltd v Lee [1973] IR 1; Esplanade Pharmacy Ltd v Larkin [1957] IR 285. However the Supreme Court decision in Talbot (Ireland) Ltd v Merrigan (1 May 1981) SC was looked upon as reducing considerably the scope of the 1906 Act. See in general re the 1906 Act, Abrahamson, ‘Trade Disputes Act – Strict Interpretation in Ireland’ (1961) 24 MLR 596.

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[21.10]

state or to discuss its reasons therefor.7 The immunities apply only to authorised trade unions which for the time being are holders of negotiation licences under the Trade Union Acts 1941–1990, and to the members and officials of authorised trade unions.

[21.07] A crucial restriction has been imposed as a result of s 9 of the 1990 Act. Strike or industrial action arising out of one-worker disputes (highly relevant to dismissal) no longer enjoy statutory immunity where agreed procedures have not been resorted to and exhausted. The relevant procedures need not be trade union agreed procedures. They can be those availed of by custom or in practice in the employment concerned, or provided in a collective agreement. Both disciplinary and grievance procedures are relevant, as the Act refers to procedures ‘for the resolution of individual grievances, including dismissals’. [21.08] This section removes protection from individuals taking wildcat action, eg in relation to dismissal, and from those supporting them. During the Dáil debate on the Industrial Relations Bill prior to its enactment in 1990, the position of vulnerable categories of workers was emphasised in the light of the provision as it was then drafted, which referred only to ‘procedures’ without a modifier. The Minister amended the relevant section to make it clear that the procedures referred to were agreed procedures.

[21.09] If employees fail or refuse to comply with procedures, the penalty will be loss of statutory immunity. If employers frustrate the exhaustion of procedures by disregarding them in some way, the Act provides the answer. An employee, or ‘worker’, cannot be deprived of his immunity because his employer fails or refuses to comply with procedures, for if either event transpires at any stage, procedures ‘shall be deemed to be exhausted’. This section would apply to a dismissal by the employer and would be equally relevant to a dispute relating to an employee grievance resulting in her resignation. [21.10] Disciplinary (more than grievance) procedures often provide for resort to the Workplace Relations Commission and/or the Labour Court. These stages, no less than others, must be followed in full, if statutory immunities are to be enjoyed. This provides compelling reasons for an employer to include resort to such bodies in disciplinary and 7

Quigley v Beirne [1955] IR 62. Two employees were given notice of termination. The employer declined to provide the reasons for dismissal and picketing began at the premises the day after notice expired. The Supreme Court accepted that the dispute did not concern the legal rights of the men (at 76). There is no right at common law to know the reason for one’s dismissal once correct notice has been given. Lavery J described the Trade Disputes Act as designed to permit, within carefully defined lines, certain actions to secure recognition of extra-legal claims of a particular nature and to bring pressure to bear on employers to observe certain principles and standards which the law does not impose. Trade disputes may involve matters of legal right but ordinarily they are concerned with other matters. Lavery J held that the trial judge was wrong in so far as he had based his conclusion that there was no trade dispute on the fact that no legal right had been infringed. Analogous cases concerning wrongful dismissal and the Trade Disputes Act 1906 are Riordan v Butler [1940] IR 347; Doran v Lennon and O’Kelly [1945] IR 315; Corry v NUVGATA [1950] IR 315; Silver Tassie Co Ltd v Cleary and Same v Beirne (1958) 91 ILTR 27; Maher v Beirne (1959) 93 ILTR 101.

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[21.11]

grievance procedures. The 1990 Act specifies the relevant persons or bodies8 but, not surprisingly, procedures ‘shall not include an appeal to a court’. The 1990 Act individualises dismissal disputes until agreed procedures are exhausted, an approach which echoes that of the unfair dismissals legislation.

C.

EXPRESS LIMITATIONS ON MANAGERIAL PREROGATIVE

[21.11] In the Unfair Dismissals Act 1977 (as amended) collective aspects of unfair dismissal law are found among the express limitations on an employer’s power to dismiss. In subss (2) and (3) of s 6 of the 1977 Act, trade union membership or activities, and unfair selection for redundancy are deemed, respectively, to constitute unfair reasons for dismissal. Section 5, as amended, concerns unfair dismissal for participation in strike or other industrial action. The aim of these provisions, apart from providing a refuge for workers where there is an irreconcilable conflict of interests, is to strengthen collective bargaining by encouraging trade union membership and activities and by forcing employers to take due regard of collective agreements where they exist, eg in relation to redundancy. During the Dáil debate on the draft Bill which was to become the 1977 Act, the Minister for Labour said that ‘... anybody who looks over the history of unfair dismissals will realise that membership of a trade union has been one of the commonest reasons for it’.9 [21.12] It is appropriate to begin by examining this ground. None of the grounds discussed in this chapter automatically constitutes an unfair reason for dismissal. Section 6(1) of the 1977 Act is relevant, ie it is always open to an employer to adduce evidence that it had substantial grounds justifying the dismissal. If it succeeds in convincing the Workplace Relations Commission, dismissal will be adjudged not to be unfair. There is a common misunderstanding about the nature of the 1977 Act’s presumptions in the matter of unfairness. Particularly where collective issues are involved, such as trade union membership or activities or dismissal for participation in strike action, it is believed that the unfair dismissals legislation provides complete protection. The fact is that it does not.

(1) Trade union membership or activities [21.13] Under the Unfair Dismissals Act 1977, s 6(2)(a), dismissal is deemed unfair if it results wholly or mainly from: the employee’s membership, or proposal that he or another person become a member of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 to 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage. Without prejudice to s 6(2)(a), a dismissal is also deemed unfair if it results wholly or mainly from: (i)

8 9

being a member of a trade union which made a request referred to in section 2(1) of the Industrial Relations (Amendment) Act 2001;

Industrial Relations Act 1990, s 9(4) as amended by the Workplace Relations Act 2015, s 66. Dáil Debates, Vol 298, col 840 (11 March 1977).

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Collective Aspects of Unfair Dismissal (ii) (iii)

[21.17]

being in the employment of the employer concerned in the grade, group or category to which the trade dispute, referred to in that section, relates; and having provided evidence or other information or assistance to any person, for the purposes of the examination of that request by the Labour Court or in respect of an investigation made by it under that Act pursuant to that request.10

(i) Eligibility [21.14] Section 14 of the amending 1993 Act replaces what was formerly in s 6(7) of the 1977 Act. The wording is clearer, but the import is the same. The section gives universal access to unfair dismissals legislation to employees who feel they have been dismissed due to trade union membership or activities, ie employees are not excluded because they have less than one year’s service, are beyond retiring age, or are dismissed during probation, training or apprenticeship. As a quid pro quo the provision removes the presumption of unfairness on the part of an employer and purports to put employer and employee on an equal basis. It is worth setting out the specific wording on this point included in s 14 of the Unfair Dismissals (Amendment) Act 1993: Sections 2(1), 3 and 4 and subsections (1) and (6) of section 6 of the Principal Act shall not apply to a person referred to in paragraph (a) or (b) of the said section 2(1) or the said section 3 or 4 who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2)(a) of the said section 6.

[21.15] The effect of this section is that the burden of proving an unfair union dismissal in such circumstances rests with an employee, and unless a company’s motives are glaringly obvious, and sufficient knowledge and awareness can be attributed to it,11 the onus will be very difficult to discharge.12 [21.16] The non-application to such dismissals of the requirement of one year’s service implies a further consequence, namely that it is irrelevant how many hours a week the individual works. Not even a minimum of eight hours is required. [21.17] In Reid v Oxx13 the claimant had more than one year’s continuous service. Judge Sheridan in the Circuit Court recognised that the Act ‘left a person in the appellant’s position ... in a position of some doubt as to where the onus of proof lies’. The judge interpreted s 6(7), now s 14, as imposing the onus of proving the real reason for the dismissal on the employee. This decision is probably correct given the wording of s 1414 10 11

12

13 14

Industrial Relations (Amendment) Act 2015, s 39. Unlike O’Riordan and Others v Killine Eyewear Ltd [1991] ELR 89; and Quinn and Delaney v Friends of the Elderly [1991] ELR 225. And compare Wixted v Sang Mann [1991] ELR 208 and White v Betson [1992] ELR 120. See, eg, A La Francaise Ltd v Monaghan UD 13/1977; Grassick v TP O’Connor & Sons Ltd UD 114/1979 (the claimant appeared in person; a dismissed employee is unlikely, without the benefit of advice or representation, to appreciate the way in which the burden of proof operates in trade union dismissals). See also Quinn v Friends of the Elderly [1991] ELR 225; O’Callaghan v Energy Sealants Ltd [1992] ELR 230. Reid v Oxx (1986) 4 ILT (ns) 207. See contra Smith v Hayle Town Council [1978] ICR 996; Maund v Penwith DC [1984] ICR 143; Shannon v Michelin (Belfast) Ltd [1981] IRLR 505. In the context of whistleblowing in English law, see the analogous approach of the UK EAT in Ross v Eddie Stobart Ltd [2013] UKEAT 0068_13_0808 (8 August 2013).

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[21.18]

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but its effect is undesirable. It must be doubtful whether in 1993 the Oireachtas intended to remove the presumption of unfairness in a blanket way, rather than restricting its nonapplication expressly to persons whose claims would otherwise be ineligible under the legislation. If an employee has worked for over 52 weeks with the requisite continuity and he or she alleges that the dismissal was for trade union membership or activities, s 14 should not need to arise. In such circumstances, as elsewhere, the employer should bear the burden of proof.

(ii) Trade unions [21.18] ‘Trade unions’ must be holders of a negotiation licence under the Trade Union Acts 1941–1990. The statutory definition of a trade union in the Trade Union Act 1871, as amended by the Trade Union Amendment Act 1876 and the Trade Union Act 1913, is very far-reaching. A temporary coming together, for instance, of employees with the principal constitutional object of regulating the relations between ‘workmen and masters’ constitutes a trade union. Unofficial strikers, in the same way, can form a trade union, if their ‘constitution’ has the principal object above, which it inevitably will.15 However, unfair dismissals legislation concerns only authorised trade unions and excepted bodies. Since 1941 it is an offence for any body of persons, not being an excepted body, to carry on negotiations for the fixing of wages or other conditions of employment unless it is authorised, as the holder of a negotiation licence. An ‘excepted body’ is defined in s 6(3) of the Trade Union Act 1941, as amended, and there are many examples of these.16

(iii) ‘Membership’ [21.19] Section 6(2)(a) of the 1977 Act covers dismissal for union membership only (unlike the British Act17), although presumably dismissal for non-membership as for refusal to become a member – if it could not be accommodated within the subsection – could be dealt with as an ‘other substantial ground’ under s 6(1) of the 1977 Act. [21.20] A proposal that a person become a member of a trade union or excepted body is likely to have to be more than a mere inquiry.18 A clear intention to join a trade union, 15

16

17

18

Although the combination will need to be ‘sufficiently stable and well defined’: Hickling (ed), Citrine’s Trade Union Law (3rd edn, Stevens, 1967) at 396; Kerr and Whyte, Irish Trade Union Law (Professional Books, 1985) at 99–142. An ‘excepted body’ means a body which carries on negotiations for the fixing of the wages or other conditions of employment of its own (but no other) employees; a civil service staff association recognised by the Minister for Finance; an organisation of teachers recognised by the Minister for Education; the Agricultural Wages Board; a trade board established under the Trade Board Acts 1909 and 1918; and a body in respect of which an order under s 6(b) of the Trade Union Act 1941 is for the time being in force. Cf ss 152, 153 of the Trade Union and Labour Relations (Consolidation) Act 1992 as amended. Niven v Galleria Ltd UD 409/82. Cf O’Connell v Building and Allied Trades Union [2015] ELR 173.

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[21.23]

known to the employer at the time of dismissal, has been found to suffice.19 A threat to consult a union about an employer might also be sufficient.20

[21.21] In an appropriate case, the WRC could find that an employee was dismissed for trade union membership when he or she was in fact invoking the assistance of a trade union in relation to his or her employment. Making use of the essential services of a union and union membership are not readily distinguishable.21 Constitutional issues [21.22] The right to join a trade union is guaranteed and protected under Art 40.6.1°(iii) of the Constitution and the right not to join also enjoys constitutional protection.22 Because these rights are constitutionally protected, an employee dismissed for union membership (or non-membership) could rely not only on the Unfair Dismissals Act, as amended, but also on the Constitution.23 Because of its constitutional ramifications, dismissal for trade union membership is likely to render a dismissal automatically unfair. While recognising that no right under the Constitution is absolute, it would almost certainly be contrary to Art 40.6.1°(iii) to construe the 1977 Act in such a way as to permit an employer to adduce substantial grounds justifying dismissal within s 6(1). To penalise an employee for exercising a right which under the Constitution he is entitled to do would be likely to be unlawful, no matter what the circumstances.

[21.23] Freedom of association may be waived or forfeited by the individual citizen.24 If employment is offered to someone on condition they join a trade union in a pre-entry closed shop this is constitutionally permissible, in principle.25 If such a person subsequently reneges on this and is dismissed for that reason, the employer should have a good defence provided the circumstances do not bring into question the validity of the waiver. Such an arrangement may, however, be unlawful if the trade union effectively has a monopoly in a particular area of work.26 It will also require scrutiny to ensure that it is not potentially indirectly discriminatory in excluding certain groups from the labour market.27 19 20

21 22 23 24

25 26

27

O’Riordan v Killine Eyewear Ltd [1991] ELR 89. Gordon v Dealgan Amusement Enterprise Ltd UD 221/81. See Wixted v Sang Mann [1991] ELR 208 (union wrote to management requesting meeting to discuss wages and conditions of staff, claimant member dismissed; dismissal unfair). Similarly White v Betson [1992] ELR 120; A Catering Assistant v A Café ADJ-00002734; Boyle v Dom O’Donnell UD 324/2015, MN 160/2015. Wilson v Associated Newspapers and Palmer v Associated British Ports [1993] IRLR 336. Educational Co of Ireland v Fitzpatrick (No 2) [1961] IR 345. Constitutional protection of freedom of association is discussed in Ch 2. McL v An Bord Uchtála [1975] IR 81; G v An Bord Uchtála [1980] IR 32. See White v Aluset Ltd UD 259/1988 where freedom of dissociation was endorsed by the EAT which, inter alia, remarked ‘Th[e] general standard of acting reasonably [required of employer and employee under unfair dismissals legislation] does not require an employee to unwillingly waive his constitutional rights’. As Henchy J indicated in Becton Dickinson Ltd v Lee [1973] IR 1. Murphy v Stewart [1973] IR 97; O’Connell v Building and Allied Trades Union [2015] ELR 173. Nathan v Bailey Gibson [1998] 2 IR 162.

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A post-entry closed shop, by contrast, cannot lawfully be imposed upon an employee against his or her will, due to the individual’s right to dissociate.28

Transfer of undertakings [21.24] Transfers can prove difficult this context. The two (or more) undertakings may already have different trade unions for their employees. The employees of the transferor may not wish to join the trade union of the transferee’s employees. The transferee may have a sole union agreement which it does not wish to qualify. If affiliated to the Irish Congress of Trade Unions the unions are likely to try to resolve their differences by referring the matter to the Congress Disputes Committee which has jurisdiction to make a ruling. [21.25] What if a transferred employee continues to maintain his right of free association? This occurred in White v Aluset Ltd29 in which the Disputes Committee of Congress ruled that transferred employees should join the trade union of the transferee’s employees (IPU). The claimant refused to accept this and was suspended with pay indefinitely. He subsequently claimed constructive dismissal. The case is probably the first one in which constitutional rights were discussed and found to be germane by the EAT. (As a matter of law, of course, the EAT (and now the WRC) could not determine a constitutional issue.) The EAT concluded that the employer’s insistence that the claimant join the IPU was not justifiable as it was in conflict with the claimant’s constitutional right not to associate. The dismissal was therefore unfair. The EAT then considered the remedy. It found that the right of representation of the claimant by his own union was clearly uppermost in his mind, dominated his thinking and was the reason for his action. The EAT distinguished membership of a trade union from insisting on representation by it. The claimant was mistaken in believing he had such an entitlement or his employer such an obligation. Hence the appropriate remedy for the claimant lay in compensation which was reduced by 25%. The decision was appealed to the Circuit Court on the quantum of compensation but was later settled. From White, a claimant may refuse to waive his constitutional right in a transfer (or any) situation and to dismiss him for that reason is unfair. If such an employee is also insisting on recognition, which he is not entitled to do, this will at the very least amount to contributory conduct. (iv) ‘Activities’ [21.26] ‘Trade union activities’ cannot be defined with precision. The activities must come within the lawful scope of the person concerned. Probably, they must also be trade union activities that are in some way connected with the employment relationship between the employer, the employee and the union. This would exclude, for example, attendance at lobby meetings intended to convey only political or ideological objections to legislation.30 [21.27] From British cases, it may not be enough for the activities to be ‘matters which people associate with trade union activities’ but which are basically individual 28 29 30

Educational Co of Ireland v Fitzpatrick (No 2) [1961] IR 345; Meskell v CIÉ [1973] IR 121. White v Aluset Ltd UD 259/1988. Luce v London Borough of Bexley [1990] IRLR 422.

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[21.29]

grievances treated as such by the individual concerned.31 The activity should be connected with the more institutional aspects of trade union organisational activity, such as taking part in trade union meetings;32 attempts to recruit a fellow employee;33 consulting a shop steward or full-time trade union representative; or attempting to form a workplace union group.34 The British EAT has pointed to the need to distinguish the activities of a trade union from the activities of an individual trade unionist. Only the union’s activities fall within the statutory protection against dismissal or lesser penalty.35 However, this distinction cannot be followed too rigidly. Pre-employment union involvement is unlikely to be protected.36 Presumably the activities may be at national, branch or sectional level.

[21.28] Quite clearly a trade union member cannot expect statutory protection when he is acting in a personal capacity or on a frolic of his own without his trade union’s involvement.37 Individual postings on Facebook or other social media, even though pertaining to matters related to trade union activity, are unlikely to meet this test.38 The section is explicit in that the employee must be engaging in activities ‘on behalf of’ a trade union. [21.29] It is quite irrelevant whether the employer likes or loathes the trade union concerned. It is the employer’s reaction to an individual employee’s activities on behalf of a trade union that is material. Selection of trade unionists or shop stewards for redundancy because of a fear that they would engage in trade union activities in the future would be unfair.39 The influence of past disruptions, however disturbing, is unlikely to temper the unfairness. Similarly, as stated, an employer cannot dismiss an employee because of trade union activities in a previous employment although if the employer has been deceived by the claimant as to those activities and has employed him or her on the basis of that deception, the argument would revolve around different grounds and dismissal might well not be unfair.40 31 32 33

34

35 36

37

38

39 40

Gardner v Peeks Retail Ltd [1975] IRLR 244. Miller v Rafique [1975] IRLR 70. Brennan & Ging v Ellward (Lancs) Ltd [1976] IRLR 378; Dixon v West Ella Developments Ltd [1978] ICR 856; and Simmette Ltd v Pedelty [1993] UKEAT 13_91_2004. Lyon v St James’ Press Ltd [1976] ICR 413. See also Crouch v The Post Office [1973] 3 All ER 225 at 244. Chant v Acquaboats [1978] ICR 643. City of Birmingham DC v Beyer [1977] IRLR 211; McKendry v Avery Hardoll [1977] IRLR 369/77. Chant v Aquaboats Limited [1978] ICR 643; Drew v St Edmundsbury Borough Council [1980] IRLR 459; Yewdall v Secretary of State For Work & Pensions [2005] UKEAT 0071_05_1907 (19 July 2005). See McCrossan v Department for Social Development [2016] NIIT 00062_15FET (3 November 2016) (claimant propounding views which were aligned with her trade union but there was insufficient connection with the trade union for the expression of those views on the claimant’s personal Facebook page to amount to engagement in trade union activities). Port of London Authority v Payne [1992] IRLR 447. Fitzpatrick v British Railways Board [1991] IRLR 376.

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[21.30]

[21.30] While s 6(2)(a) protects those engaging in activities on behalf of a trade union, it does not prevent an employee being lawfully dismissed for activities where he or she is in fact abusing his or her position. The employee may, for instance, abuse the employer’s grievance procedure, or disrupt production, or abuse privileges enjoyed as a trade union official or shop steward. In such circumstances the WRC will consider a number of factors such as: (i)

the style of the claimant: what is assertive to one can be aggressive to another;

(ii)

whether there is a history of harassment of the employer; and

(iii)

whether the activities necessarily disrupted operations.

When activities take place [21.31] The activities must take place outside the claimant’s hours of work or at times during hours of work in which he or she is contractually permitted to be so engaged. Preliminary planning or organisation of strike or industrial action could constitute trade union activities but it is clear that actual participation in strike or industrial action cannot be a protected activity under s 6(2)(a). Dismissal in such contexts is explicitly covered elsewhere in the legislation. An employee cannot fall under both provisions.41

[21.32] A person’s ‘hours of work’ are literally that, it is suggested, ie the hours he or she is required to be at work. Rest-time, breaks or lunch-hours, should not constitute hours of work.42 The position of employees on call is clearly distinguishable.43 If the activities take place within working hours, this must be contractually permitted, that is, between employer and employee.44 The 1977 Act does not say ‘between the employer and the trade union’ but refers to the individual relationship of employment. A collective agreement may contain provisions on facilities for trade union officials or shop stewards and, if so, the question of express or implied incorporation of the provisions of that agreement into the contract of employment will arise.45 [21.33] If an employer is informed of trade union activities during working hours and does not object, the section cannot be applied to dismissal(s) for those reasons. In some cases, consent of an employer to trade union activities can be implied. If members’ grievances are regularly raised with management during working hours, consent should be able to be implied. Presumably also management’s permission can be implied in cases where an employer raises an unusual and unexpected problem which goes to the root of the union’s standing at the workplace such as a refusal by management to accredit a properly elected shop steward. Silence on the part of an employer at the time of an announcement that the activity was going to take place would not imply consent.46 41 42

43 44 45 46

Drew v St Edmundsbury Borough Council [1980] IRLR 459. Post Office v UPOW [1974] IRLR 22; Zucker v Astuid Jewels Ltd [1978] IRLR 385; semble the onus is on the employer to show activity is taking place during working hours if it occurs during lunch or other breaks: McCormac v PH Ross Ltd UD 206/1979. Limerick Health Authority v Ryan [1969] IR 194. See, eg, Miller v Rafique [1975] IRLR 70. Duggan v Galco Steel Ltd UD 507/80. The Marley Tile Co Ltd v Shaw [1980] IRLR 25.

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[21.35]

(2) Unfair selection for redundancy [21.34] Once a decision is taken by the employer as to the precise reason for the dismissal of employees within the statutory definition of redundancy, the next hurdle is that of selection. There is a distinction to be made here. It is that redundancy applies to jobs; selection applies to people. An employer must be able to justify why that employee was selected for redundancy – and it must do so, in so far as possible, on objective grounds. The Unfair Dismissals Acts, as amended, make it potentially unfair to select for redundancy in certain circumstances, and the attendant risk for an employer is that an employee found to have been unfairly selected will be reinstated. It is by no means unknown reinstatement to be granted as a remedy to an unfairly selected worker in redundancy circumstances, notwithstanding that it may mean for the employer concerned the dismissal of another worker. This threat may be potentially more serious for an employer than having to meet an award of compensation. [21.35] Under s 6(3) of the 1977 Act there can be a finding of unfair selection and hence of unfair dismissal if an employee is dismissed due to redundancy but the circumstances constituting the redundancy: apply equally to one or more other employees in similar employment with the same employer who have not been dismissed

and either: (a)

the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in sub-section (2) of this section or another matter that would not be a ground justifying dismissal, or

(b)

he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union or an excepted body under the Trade Union Acts 1941 and 1971 representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure.

Where neither of the foregoing paragraphs apply, the WRC will consider the fairness or otherwise of selection for redundancy under s 6(1) and 6(6) of the 1977 Act: Boucher v Irish Productivity Centre.47 47

Boucher v Irish Productivity Centre UD 882, 969, 1005/1992; Kelly v Langarth Properties UD 742/1993; Clancy v Moysteel CME Teo UD 1029/1993; Jeffers v DDC Ireland Ltd UD 169/2000. Although there is some inconsistency in EAT (now WRC) determinations it is submitted that the approach in Boucher et al is correct. Provisions on redundancy selection in a staff handbook, incorporated by reference in employee contracts, are legally binding according to the English Court of Appeal decision in Keeley v Fosroc Int Ltd [2006] IRLR 961. For detailed treatment of the Keeley principles see Department for Transport v Sparks [2016] ICR 695; for a recent example of the application of Keeley in Northern Ireland see Glendinning v Mid Ulster District Council Dungannon & South Tyrone Borough Council [2017] NIIT 01375_15IT.

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(i) Eligibility [21.36] A claim of unfair selection for redundancy can be initiated provided there is sufficient eligibility under the 1977 Act, notwithstanding that there may not be sufficient eligibility for purposes of statutory redundancy.

(ii) Inadmissible grounds [21.37] Subsection (2) of s 6 referred to in para (a) above specifies a number of grounds which, if relevant, will result in the dismissal of an employee being deemed to be unfair where the dismissal results wholly or mainly from one or more of the grounds. These ‘inadmissible’ grounds, it will be recalled, concern trade union membership or activities; religious or political opinions of the employee; dismissal because of actual or threatened participation in civil or criminal proceedings against the employer; race, colour or sexual orientation of the employee; age; membership of the travelling community; pregnancy; and exercising a right to maternity leave, parental leave, adoptive leave or carer’s leave. Trade union ‘activities’ as defined in s 6(2) would not cover strike or industrial action, see para [21.04] above. [21.38] Where dismissal is wholly or mainly for any of these reasons then, notwithstanding that redundancy may exist, selection for redundancy will be unfair. The list is not exhaustive, as it is still open to the WRC to find that there was ‘another matter that would not be a ground justifying dismissal’. (iii) Comparators [21.39] For the two unfair selection paragraphs, it is necessary to have comparators. Why these are needed in relation to the first paragraph is curious: the clause could have stood on its own. But the paragraph does warn against an employer having an ulterior motive in selecting for redundancy. The dismissed employee must compare himself to an employee ‘in similar employment’ with the same employer. This will generally refer to a retained employee of the same grade or status. Otherwise there can be no unfair selection.48 Employees with a high degree of flexibility and interchangeability will more easily come within the meaning of ‘similar employment’. Clearly if employees in category A can also perform the duties in category B, but the reverse is not the case, it cannot be said that the employees concerned are in similar employment.49 The fact that one employee may be able to do another’s job does not in itself mean that the employees hold similar positions. (iv) Procedures [21.40] The second paragraph raises the question as to whether there was an agreed or customary procedure for redundancy. Generally if there is an agreed procedure, it is difficult to justify selection for redundancy on grounds other than those set out in the procedures. Express agreement should not be necessary; it should be possible to have an 48

49

O’Doherty v System Dynamics Ltd UD 803/1995; McCormick v DA Ellison [1990] ELR 170; O’Doherty v O’Connolly Food Services Ltd UD 225/1991. Powers and Villiers v A Clarke and Company (Smethwick) Ltd [1981] IRLR 483.

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[21.42]

implied agreement.50 In practice the most important procedures will be those agreed between employers and trade unions, although such agreements may be incorporated into the contract of employment of individual employees.

[21.41] If there is no agreed procedure there may be a custom and practice in the particular employment which has created expectations as to the criteria to be used in selection for redundancy. Custom and practice must be proved as a question of fact.51 In Bessenden Properties Ltd v Corness52 the National Industrial Relations Court53 suggested that the term ‘customary arrangement’ (the British equivalent of ‘custom and practice’, then found in s 59(b) of EPCA 1978) referred to something which is so well known, so certain and so clear as to amount in effect to an implied agreed procedure, as contrasted with the express agreed procedure which is the alternative contemplated by the statutory provision in question (in this respect s 6(3) of the Irish Act is similar to s 105 of the Employment Rights Act 1996, the successor to s 59(b) above). The EAT in Britain later softened this approach,54 but it is clear that something more is needed to prove a customary arrangement than the fact that, on one or two occasions, a particular policy has been adopted. A single precedent, even if applicable to the circumstances before the WRC, is not sufficient by itself to constitute a custom and practice.55 Moreover, custom and practice will vary between industries – to say nothing of parts of industries. It is usual in the manufacturing industry, both under agreed procedures and custom and practice, for the ‘last in first out’ rule to apply when selective redundancies occur, but this does not apply, for example, in the building industry.56 Here the ‘custom and practice’ is generally for the foreman to make the selection for whatever reasons seem justifiable.57 [21.42] Redundancies are sometimes initiated on a voluntary basis, with compulsory redundancies being introduced only if the number of volunteers is insufficient. If this is the customary approach to redundancy in an organisation, it is unlikely in itself to be regarded as a ‘procedure ... relating to redundancy established by custom and practice’. The key words in s 6(3)(a) are ‘selected’, ‘dismissal’ and ‘procedure ... relating to redundancy’. The agreement or custom must relate to the selection process, not to preliminaries,58 in other words it must relate to what is actually done when selections for redundancy are made. 50 51

52 53 54

55

56 57 58

Henry v Ellerman City Liners Ltd [1984] 409. On custom and practice in employment contracts generally see the approach of the High Court (Ryan J) in Elmes v Vedanta Lisheen Mining Ltd [2014] IEHC 73, applying the approach of the English Court of Appeal (in the context of redundancy payments) in Albion Automative Ltd v Walker [2002] EWCA Civ 946. See further (also in the context of redundancy payments) Park Cakes Ltd v Shumba [2013] EWCA Civ 974; Peacock Stores v Peregrine [2014] UKEAT 0315_13_2503 (25 March 2014). Bessenden Properties Ltd v Corness [1973] IRLR 338. Affirmed by the Court of Appeal: [1977] ICR 821. Kyle Steward Contractors v Stainrod (1977) EAT 406/77. See also the later Court of Appeal decision in Henry v Ellerman Lines plc [1985] ICR 57. For EAT decisions on point under the previous adjudicative regime see Moloney v J & F Goodbody Ltd UD 6/1978; Kennedy v Same UD 8/1978. Daly v CLG Builders Ltd UD 685/1996; Flanagan v Collen Bros (Dublin) Ltd UD 72/1980. James v Western Contractors Ltd UD 132/1980; Gould v O’Shea’s Ltd UD 323/1978. Rogers v Vosper Thornycroft (UK) Ltd [1989] IRLR 82.

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Special reasons for departing from procedure [21.43] Employers have a defence for not following a procedure where there is a special reason for departing from what is customary or agreed. A ‘special reason’ will depend on the circumstances of each case. It may justify dismissal, equally it may justify retention of an employee in breach of procedure where another or others are dismissed. The WRC is likely to place considerable importance on the need to keep a company running efficiently in times of crisis or redundancy. [21.44] In the British case of Cross International v Reid,59 the Court of Appeal distinguished the application of an employer’s ‘reasonable range of responses’ in relation to special reasons justifying a departure from redundancy selection procedures. O’Neill LJ said there were no grounds for putting a gloss on the statutory words which refer to ‘special reasons justifying a departure’, not to reasons ‘which could justify a departure’.

(v) Reasonableness [21.45] Where there is no agreed procedure or custom and practice relating to employment, and selection for redundancy does not result wholly or mainly from one or more of the grounds deemed unfair in s 6(2) of the Unfair Dismissals Act as amended, the WRC or Labour Court will ask whether the employer has acted reasonably in the light of all the circumstances.60 Two aspects are likely to be considered: the reasonableness of selection and the reasonableness of the manner of dismissal. Clearly the WRC should not be hasty to substitute another view for that of the employer. At the same time, the WRC is required to apply a reasonableness analysis, that is, one that should be judged ‘by the objective standard of the way in which a reasonable employer in these circumstances, in that line of business, would have behaved’.61 [21.46] Employers will be required (where appropriate) to have thought about the problem of redundancy in good time so as to have formulated a policy. They will be required to have identified factors crucial to selection in their particular circumstances. This is discussed further below. An employee may have a constructive contribution to make to an employer regarding his possible selection for redundancy. In Boucher62 the EAT reiterated that any fair assessment would ‘have the characteristics of an inquiry with the right to the threatened person to make a contribution in defence of any allegation against him or ... any unfair or unbalanced view being held by the [employer]’. 59 60

61

62

Cross International v Reid [1985] IRLR 387. See, for eg, the approach of the Labour Court in its 2016 determination in Kohinoor Ltd v Ali UDD1629. Watling & Co Ltd v Richardson (1978) EAT 774/77. This test was endorsed by the EAT in Boucher v Irish Productivity Centre UD 882, 969, 1005/1992 with the added insertion of the words ‘and at that time’ after ‘line of business’. See too Kelly v Langarth Properties Ltd UD 742/1993; Clancy v Productivity Centre UD 882/1992. Not all decision-makers with this approach, however; it may be that in a collective redundancy the requirement of reasonableness is facilitated by collective redundancies legislation. Boucher v Irish Productivity Centre UD 882, 969, 1005/1992.

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[21.49]

(vi) Analysis of selection [21.47] The best analysis of selection is found in the ‘classic’63 analysis contained in the British case of Williams v CompAir Maxam Ltd.64 In it the EAT described a tribunal as an industrial jury which brings to its task a knowledge of industrial relations both from the viewpoint of the employer and the employee. Matters of good industrial relations are not proved before an industrial tribunal as they would be proved before an ordinary court: the lay members are taken to know them. Therefore, said the EAT, in considering whether the decision of a tribunal is perverse it is not safe to rely solely on the common sense and knowledge of those who have no experience in the field of industrial relations. A course of conduct which to those who have no practical experience with industrial relations might appear unfair or unreasonable, and vice versa might appear fair and reasonable to those with specialist knowledge and experience.

[21.48] As a matter of law, the EAT said it must be satisfied that it was reasonable to dismiss each of the applicants on the grounds of redundancy. It is not enough to show that it is reasonable to dismiss an employee. It must be shown that the employer acted reasonably in treating redundancy as the reason for dismissing the employee. Therefore if the circumstances of the employer make it inevitable that some employees must be dismissed it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal. [21.49] The EAT continued to say that although it would be impossible to lay down detailed procedures which all reasonable employers would follow in all circumstances, in the experience of the lay members of the EAT in the case: ‘There is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:

63

64

1.

The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2.

The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3.

Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection

A description given by the Employment Tribunal in MS K Green v London Borough of Barking & Dagenham (as referred to on appeal by the Employment Appeals Tribunal in the same case: Appeal No UKEAT/0157/16/DM, 10 March 2017 2017 WL 01291456). Williams v CompAir Maxam Ltd [1982] IRLR 83.

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[21.50]

4.

5.

but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representation the union may make as to such selection. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment. These principles should be departed from only where some good reason is shown to justify such departure.’

[21.50] The statutory obligation to consult trade unions in Britain under the Trade Union and Labour Relations (Consolidation) Act 1992, s 188, is more comprehensively drafted. There is no jurisdiction in this country for a trade union to apply to an industrial tribunal for a ‘protective award’ in the event of non-compliance with the obligation to consult; nonetheless the approach in this country would be likely to accord very closely to Williams both on account of the Protection of Employment Act 1977,65 below, the European Communities (Protection of Employment) Regulations 2000 and because of the way the WRC treats the question of selection. [21.51] The principles described in Williams by Browne-Wilkinson J are not supposed to be ‘immutable’ but they are largely followed. In Rolls Royce Motors Ltd v Dewhurst,66 the EAT held that an act contrary to any of the principles in Williams does not necessarily lead to a prima facie conclusion that a dismissal is unfair. It had been alleged in Rolls Royce that on the evidence there had been a breach of the third principle set out above. However the EAT found that there was no evidence to support any allegation that the managers responsible for making the selection in the case were not given any guidance as to the meaning of various expressions such as ‘experience’, ‘capability’ and ‘flexibility’ in the selection procedure. The industrial tribunal had observed that in a large undertaking such as Rolls Royce it was little short of amazing that written guidelines had not been issued. The EAT commented that this was totally unreasonable. The difficulties of so doing were self-evident and it would have caused substantially more problems than it solved. Some examples from case law [21.52] An employer is well advised to look at alternatives to redundancy.67 Equally, if appropriate, an employee might be offered redeployment even if the work involves a loss of status and pay.68 Because of the objective test adopted by the WRC and Labour Court,69 as a general principle, selection criteria should not be based on subjective 65 66

67 68 69

Paragraphs [21.66]–[21.70]. Rolls Royce Motors Ltd v Dewhurst [1985] IRLR 184. See John Brown Engineering Ltd v Brown [1997] IRLR 90 (policy decision to withhold all marks in a selection process may result in individual unfairness if no opportunity given to individuals to know how they have been assessed). O’Connor v Power Securities Ltd UD 344/89. O’Doherty v O’Connolly Food Services Ltd UD 225/1991. See, for eg, the approach of the Labour Court in its 2016 determination in Kohinoor Ltd v Ali UDD1629.

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[21.56]

assessments of the employee. For example, it has been found that ‘attitude to work’ as a criterion for redundancy selection is a highly relative term involving personal and subjective judgments and is dangerously ambiguous and vague.70

[21.53] If the reasons for selection relate to faults on the part of the employee it is difficult for an employer to justify selection where those faults have not been brought to the attention of the employee in a meaningful way.71 Moreover it is unlikely to be enough for an employer to give evidence of attendance records without showing that it has looked at the reasons why employees have been absent. If an employee happens to be still absent at the time when redundancies have to be put into effect, an employer should try to find out when he is likely to return to work.72 [21.54] The risk an employer will run where disciplinary reasons form part of selection criteria will be that the dismissed employee will argue that redundancy is a sham and merely a pretext for getting rid of him.73 If, notwithstanding this risk, an employer takes fault reasons into account it is not incumbent upon such employer to administer warnings to an employee, for example, whose attendance is less than satisfactory, that in the event of a redundancy situation he will be the first to go.74 [21.55] Selecting individuals can involve other considerations. Where a claimant held a more senior post than other employees and was paid a higher wage, his selection for redundancy was not unfair75 although an employer should probably discuss a reduction in salary first with such an individual. It scarcely needs to be asserted that to exercise a choice in favour of one individual because, for example, she is an unmarried mother and needs the work, is unfair on the dismissed employee.76 Last in first out [21.56] ‘Last in first out’ (LIFO) is a revered principle in redundancy selection, and continues to be respected. Collective agreements providing for LIFO may or may not describe it as absolute. Practically speaking few employers will agree to such an inflexible principle as in difficult times it could defeat an employer’s legitimate objective of carrying forward the business. Even if it is agreed in inflexible form the particular circumstances of a case may justify departure from it.77 Aside from collectively agreed criteria, if an employer wants to maintain a balanced workforce and decides that in making redundancy selections length of service, occupation and skill are all to be taken 70

71 72 73 74 75 76 77

Graham v ABF Ltd [1986] IRLR 90. Or where employment continued after alleged misconduct: Fox v Des Kelly Carpets Ltd [1992] ELR 182. Gallagher v Grove Turkeys Ltd UD 559/1991. Paine and Moore v Grundy (Teddington) Ltd [1981] IRLR 267. Timex Corporation v Thomson [1981] IRLR 522. Gray v Shetland Knorrs Preserving Ltd [1985] IRLR 53. Whelan v Dempsey UD 557/1990. Kennedy Gartry v Dr Andrew Laserian McDermot UD 20/1990. Rolls Royce Motor Cars Ltd v Price [1993] IRLR 203.

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into account, it is improper for an adjudicator to give priority to length of service.78 The EAT expressed itself as ‘surprised’ when a normal policy of LIFO was not operated.79

[21.57] The computation of service for the purposes of LIFO can be critical. In Britain the principle is firmly established, from industrial relations practice, that it is continuous rather than cumulative employment that counts.80 In Ireland, service has been aggregated in decisions of the EAT under the former adjudication regime, allowing time to run from the earliest commencement date, ignoring intervening periods when the employee left the employment.81 If the circumstances reveal a customary way of computing service, this should be applied by the WRC. LIFO can, however, be regarded as a somewhat ‘blunt tool’.82 Under the Employment Equality Acts1998–2015 the principle of LIFO could be indirectly discriminatory on gender or age grounds. Discriminatory criteria [21.58] Choosing part-time or fixed-term workers, or temporary workers, if most or all of whom belong to a protected category such as women, is potentially indirectly discriminatory.83 As stated above, by reason of childbearing and other domestic commitments, fewer women than men have long service, the redundancy criterion of LIFO may itself be unlawfully discriminatory. Under the Protection of Employees (Part Time Work) Act 2001, the Protection of Employees (Fixed-Term Work) Act 2003, and the Protection of Employees (Temporary Agency Work) Act 2012 part-time and fixedterm employees may not, in respect of their conditions of employment, be treated in a less favourable manner than comparable employees in the absence of objective grounds. An employer faced with deciding which of several employees to make redundant must disregard the inconvenience that inevitably will result from the fact that one of them is pregnant and will require maternity leave.84 Selection and industrial action [21.59] The reasonableness of dismissal for redundancy in circumstances involving strike action is likely to present interpretative problems. In the British case of Cruikshank v Hobbs,85 for example, the overall reasonableness of the dismissal had to be determined in accordance with the then relevant Schedule 1 of the Trade Union and 78

79

80 81

82 83

84 85

BL Cars Ltd v Lewis [1983] IRLR 58; Cassidy v L M Ericcson Ltd UD 934/2004 (selection on grounds of technical competency held not unfair). Gallagher v Dept of the Marine UD 491/1990. LIFD was applied in Moore and Others v Menzies World Cargo (Ireland) Ltd UD 1361/2005 (together with criterion that employees should have had an accreditation training) selection not unfair. International Paint Ltd v Cameron [1979] IRLR 62. Byrne v Gypsum Industries plc UD 57/1990. In McMillan v Comreof Ltd UD 237/1995, the EAT applied the notion of ‘sectional service’. See, for eg, Rolls-Royce Plc v Unite the Union [2009] EWCA Civ 387, [2010] ICR 1. Clarke v Eley (IMI) Kynoch Ltd; Eley (IMI) Kynoch Ltd v Powell [1982] IRLR 482. Re fixedterm employees the Court of Appeal held redundancy selection policy dismissing such employees first unlawful indirect sex discrimination: Whiffen v Milham Ford Girls’ School [2001] IRLR 468. Brown v Stockton-on-Tees Borough Council [1988] IRLR 263. Cruikshank v Hobbs [1977] ICR 725.

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[21.62]

Labour Relations Act 1974. The employer dismissed five of the six strikers for redundancy and the question was whether it was unfair in accordance with the relevant legislation to select those strikers for redundancy. The EAT rejected the submission that striking was irrelevant to the issue of selection for redundancy on the grounds: (i) that the strike might have contributed to the need for redundancies; and (ii) that if the strike had been long enough there might be technical or administrative difficulties in taking the men back; and (iii) that to take back strikers and dismiss those who had remained at work would cause friction, impairing the efficiency of the undertaking.

[21.60] Accordingly, by a majority, the EAT held the dismissals to be fair.86 However, depending on the circumstances, dismissal of strikers may be found unfair. In Laffin and Callaghan v Fashion Industries (Hartlepool) Ltd87 supervisors during an unofficial strike had been asked to keep work going to finish a particular order. Some agreed and some refused including the second claimant (C) who was suspended without pay. When the strike was over there proved to be foreseeable work for only five out of the ten supervisors. C was made redundant. Management had taken a decision that only supervisors who had supported the company during the strike would be retained for the reason that, had they not so cooperated, there would no longer have been work to supervise. However, the employer had failed to consult anyone and two employees retained had shorter service than C. It was held that her selection for dismissal was unfair and that this was ‘precisely the kind of case where consultation could help’.

[21.61] There are few Irish cases on the subject of selection of strikers.88 Some insight can be gained from decisions such as Jordan v McKenna Ltd,89 a case in which all strikers had been dismissed. The EAT accepted that management was faced with the prospect of industrial action by employees who had not joined the strike if the claimants had been re-employed and that they did not feel obliged to work at reconciling the ‘loyal’ staff to the taking back of the claimants. The dismissals were upheld. This common-sense approach suggests an employer can have regard to the sensibilities of loyal staff following industrial action. If redundancies can be said to have been caused by industrial action, in some measure, this would be an even stronger possibility.

Summary [21.62] In sum, criteria to avoid are unreasonable criteria, subjective criteria, and directly or indirectly discriminatory criteria. The cases referred to earlier are useful as once selection criteria are drafted, their application to individual officials raises fresh issues. Selection criteria to consider might be length of service, skills, technical 86

87 88

89

Cruikshank’s case is perhaps unique in that someone allegedly had to be dismissed and the choice was between strikers, returned strikers and those who had stayed at work. It may not have been unreasonable to select strikers over workers who remained but this does not suggest a general principle that it is reasonable to dismiss a person who has been on strike. Laffin and Callaghan v Fashion Industries (Hartlepool) Ltd [1978] IRLR 488. Redmond and Mallon, Strikes: An Essential Guide to Industrial Action and the Law (Bloomsbury Professional, 2010) at paras 3.29–3.33. The authors refer to Power v National Corrugated Products UD 336/1980 and Becton Dickinson & Co Ltd v Lee [1973] IR 1. Jordan v McKenna Ltd UD 577/1982.

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competency, qualifications or training, occupation, experience, future business needs and, to be used on an entirely objective basis, capability and flexibility. An employer’s checklist is advisable when dealing with collective redundancies, to ensure transparency. It should be drawn up with legal advice. Finally, an employer’s failure to provide a right to appeal against a decision to dismiss for redundancy will probably not render dismissals unfair.90

(vii) Collective redundancies: Protection of Employment Act 1977 [21.63] Procedures relating to collective redundancies can be central to judging an employer’s conduct.91 In unfair selection claims, the WRC will regard it as relevant that the Protection of Employment Act 1977 should be observed by an employer. [21.64] The Protection of Employment Act 1977 which concerns collective redundancies was necessitated by this country’s membership of the EU and more particularly by EU Council Directive 75/129 on Collective Redundancies (now replaced by Council Directive 98/59/EC on Collective Redundancies, following which the European Communities (Protection of Employment) Regulations 2000 (SI 488/2000) were passed). The purpose of the Directive is to ensure that an employer observes certain procedures where it dismisses a certain number of workers within a specified period. The main obligations are consultation with the workers’ representatives and the notification of the proposed redundancies to the relevant authorities in the State.92 On notification see Protection of Employment Act 1977 (Notification of Proposed Collective Redundancies) Regulations 1977 (SI 140/1977). Criminal sanctions can be applied pursuant to the Act.93 [21.65] In the event of failure by an employer to comply with its information and consultation obligations, an appeal lies to the Labour Court from a decision of the adjudication officer with a further right of appeal on a point of law only to the High Court. [21.66] In the Protection of Employment Act 1977, ‘collective redundancies’ means dismissals which are effected for redundancy (it seems logical to deduce that terminations by employees cannot come within the scope of the Act) where in any period of 30 consecutive days the number of such dismissals is: (a) at least five in an establishment normally employing more than 20 and less than 50 employees; (b) at least 10 in an establishment normally employing at least 50 but less than 100 employees; 90 91

92

93

Robinson v Ulster Carpet Mills Ltd [1991] IRLR 349. Dorian v Dundalk Golf Club plc UD 237/1987; Hayden v McCormick McNaughton Ltd UD 303/80. As and from 1 September 2017, collective redundancy notifications should be made to the Minister for Employment Affairs and Social Protection: Labour Affairs and Labour Law (Transfer of Departmental Administration and Ministerial Functions) Order 2017 (SI No 361 of 2017). See Foley and D2 Private Limited v Workplace Relations Commission [2016] IEHC 585, at the time of writing under appeal to the Court of Appeal.

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[21.70]

at least 10% of the number of employees in an establishment normally employing at least 100 but less than 300 employees; and at least 30 in an establishment normally employing 300 or more employees.

The word ‘establishment’ allows room for argument. It means where an employer carries on business at a particular location, that location, or where an employer carries on business at more than one location, each such location. Each workplace is to be taken to be a separate location. Collective redundancies may arise in a transfer context and are analogous to economic, technical and organisation reasons entailing changes in the workforce under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

[21.67] The main obligations of an employer are consultation and notification. Where an employer proposes to create collective redundancies it is supposed ‘with a view to reaching an agreement’ to initiate consultations with employees’ representatives. Consultations are to include the following: (a) (b)

the possibility of avoiding the proposed redundancies, reducing the number of employees affected by them or otherwise mitigating their consequences; the basis on which it will be decided which particular employees will be made redundant.

[21.68] Consultations are to be initiated at the earliest opportunity and in any event at least 30 days before the first dismissal takes effect. Although consultations must be genuinely carried out, the duty of ‘negotiation’ is not found anywhere in the Act. The CJEU held in Junk v Kuehnel94 that the consultation process required by the Directive must take place before employees are given notice of dismissal, rather than after individual notices of dismissal have been issued but before they take effect. The rationale is that redundancy for purposes of the Directive means the declaration by the employer of its intention to terminate the contract of employment rather than the actual cessation of the employment relationship upon expiry of the notice period. [21.69] The employer is required under the Act to supply the employee’s representatives with all relevant information including: (a) (b) (c) (d)

the reasons for the proposed redundancies; the number and descriptions or categories of employees whom it is proposed to make redundant; the number of employees normally employed; and the period during which it is proposed to effect the proposed redundancies.

[21.70] This obligation preserves the employer’s prerogative in several important respects. In Stonearch Branch Randstone Ltd v O’Brien and Others95 the employer appealed a recommendation of the Rights Commissioner who had found that by their failure to initiate discussions with the employers’ representatives the respondent had given them no opportunity to negotiate enhanced severance terms that might mitigate the consequences of their being made redundant. The employer was required to pay each 94 95

Junk v Kuehnel [2005] IRLR 310. Stonearch Branch Randstone Ltd v O’Brien and Others PE1/2003-PE44/2003.

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of the employees compensation of four weeks’ wages, the maximum allowable under the regulations. The EAT agreed with the Rights Commissioner that the employer had by and large complied with its duties to supply information under the Act. It then considered the duty to consult which it described as a collective, not an individual, right. ‘Meaningful consultation does of course require that information be provided but employees are entitled to information anyway ... the employer must tell the employees what is happening … but then must discuss it … and such discussions must be meaningful.’

The employer argued that the Act of 1977 did not apply to it as the company was insolvent. However the EAT ruled that this exception did not apply as it arose only when insolvency has been decided by a court.

(3) Dismissal for participating in strike or other industrial action [21.71] Union bargaining power will generally ensure that there is no discrimination where workers are dismissed for participating in strike or other industrial action. Yet there is a need for a default option to protect workers against loss of their jobs,96 not least because of the common law’s view as to the effect of industrial action on individual contracts of employment. The amended s 5(2) of the Unfair Dismissals Act provides that: the dismissal of an employee for taking part in a strike or other industrial action shall be deemed, for the purposes of this Act, to be an unfair dismissal, if (a)

one or more employees of the same employer who took part in the strike or other industrial action were not dismissed for so taking part, or

(b)

one or more of such employees who were dismissed for so taking part were subsequently permitted to resume their employment on terms and conditions at least as favourable to the employees as those specified in paragraph (a) or (b) [of s 7(1) of the Act which deal with reinstatement and re-engagement respectively] and the employee was not.97

The amendment also contains a reference in s 5(3) to the date upon which reinstatement or re-engagement is to take effect being the earliest date agreed upon by the parties or the earliest date from which reinstatement or re-engagement was offered to a majority of the other employees.

[21.72] Prima facie, s 5 protects the freedom to strike. It is consonant with the theory that Ireland recognises a positive right to strike in domestic and international law.98 The 96

97

98

See, in general, Redmond and Mallon, Strikes: An Essential Guide to Industrial Action and the Law (Bloomsbury Professional, 2010) at para 3.29. Note that, unlike under s 7, reinstatement under s 5 can be by the original employer, a successor of his, or an associated employer: s 5(4). In the constitutional sense, the right to strike would seem to be a personal right protected by Art 40.3.1° although it has not been analysed in any depth or conclusively and the Supreme Court decision in Talbot (Ire) Ltd v Merrigan (1 May 1981) SC may render the right virtually meaningless. The right of workers ‘to deal with and dispose of their ... labour as they will without interference, unless such interference be made legitimate by law’ was first referred to by Budd J in Brendan Dunne Ltd v Fitzpatrick [1958] IR 29, 34 but only by a generous extension of the words used could this right be taken to include a right to strike. (contd.../)

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[21.73]

subsection’s predecessor has been described as ‘extremely obscure and technical’.99 Its technicalities have not been explored on the very rare occasions s 5(2) has been invoked in case law.100 In 1977 during the Committee Stage of the Unfair Dismissals Bill in Dáil Éireann, the Minister for Labour explained the intention behind s 5(2): ‘... that no individual victimisation would result from a return to work after a trade dispute.’

Further: ‘[the] section would cover a number of employees who would collectively feel themselves victims of unfair treatment at the hands of the employer.’101

[21.73] Contrary to a belief that s 5(2) concerns automatically unfair dismissal, s 6(1) of the 1977 Act applies, ie dismissal in the circumstances of s 5(2) is deemed to be 98

99 100 101

(\...contd) More to the point were the obiter dicta of Kingsmill Moore J in Educational Co of Ireland v Fitzpatrick [1961] IR 345, 397. He described the ‘right to dispose of one’s labour and to withdraw it’ as a fundamental right. It was a right which the judge did not see to have been adversely affected by anything within the intendment of the Constitution. But a right to strike was doubted in Crowley v Ireland [1980] IR 102. If such a right did exist, said O’Higgins CJ, ‘it is not a right which could be exercised for the purpose of frustrating, infringing or destroying the constitutional rights of others’. The Chief Justice delivered a minority judgment in Crowley but it is clear from Talbot, above, that the court shares his view on the right to strike. It seems the court held that, notwithstanding the Trade Disputes Act, a striking body or bodies must operate within the constitutional framework and the constitutional guarantee in Article 40. Innocent persons cannot be damnified as a result of industrial action: a trade dispute will not be protected in so far as it affects dealers who have no dispute with anyone or the owners of vehicles not in dispute or who, because of an embargo, cannot get their vehicles serviced where they are entitled to such service under contract. For what is (necessarily) a dated account, see McCartney, ‘Strike Law and Constitution of Eire’ in Kahn-Freund (ed), Labour Relations and the Law: A Comparative Study (Stevens, 1965) at 154. See Hogan and Whyte, JM Kelly: The Irish Constitution (4th edn, Tottel Publishing, 2003) at 783. In relation to international law, the right to strike is found in the UN International Convention on Economic, Social and Cultural Rights adopted in 1966. In addition Ireland is a party to the European Social Charter which, in art 6, recognises the right of workers to strike in cases of conflicts of interests. In 1955, as a member of the ILO, Ireland ratified ILO Convention No 87 (1948) concerning Freedom of Association and Protection of the Right to Organise and Convention No 98 (1949) concerning the Application of the Principles of the Right to Organise and to Bargain Collectively. The Governing Body’s Committee on Freedom of Association has frequently reiterated that, although there is no express reference to strike action in the two Conventions, they impliedly guarantee a right to strike: Freedom of Assembly: Digest of Decisions of the Freedom of Assembly Committee of the Governing Body of the ILO, Geneva, 1972, paras 240, 292. See O’Higgins, ‘The Right to Strike – Some International Reflections’ in Carby-Hall (ed), Studies in Labour Law (MCB Books, 1976) at 110, which contains some disturbing reflections on s 63 of the EPCA, the equivalent of Ireland’s s 5 of the Unfair Dismissals Act 1977. See, on Viking [2006] 1 CMLR 27 and Laval [2008] 2 CMLR 9, Freedland and Prassl (eds), EU Law in the Member States: Viking, Laval and Beyond (Hart, 2014). Wayne, Labour Law in Ireland: A Guide to Worker’s Rights (Kincora Publishing, 1980) at 93. Eg Tara Mines Ltd v Duffy UD 50/1980. Dáil Debates, Vol 296 (25 Jan 1977) Cols 59 and 60. The philosophy behind the equivalent s 62 of the British EPCA 1978, may be contrasted. (contd.../)

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unfair unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal.102 Employers, it is true, are no less vulnerable than employees to victimisation on account of industrial action. The present law may be unsatisfactory in as much as it calls upon the enforcing authorities to consider the merits of collective industrial disputes (contrast Trade Union and Labour Relations (Consolidation) Act 1992, s 237) but the concept of fairness which lies at the root of the legislation would have to rule out any inflexible ‘automatic’ findings.

(i) Dismissal for misconduct [21.74] Freedom to strike, although it may be exercised in what amounts to a very complicated situation in law and in fact, should be distinguished from the various incidents or results which may accompany strike action. Even if s 5(2) embodies a conclusive presumption of unfairness, that does not preclude the possibility of an employer dismissing workers because they used unlawful acts or methods in connection with strike action. [21.75] An employer may dismiss for misconduct during the course of a strike. The normal strictures apply: the circumstances surrounding the alleged wrong must be investigated (or every method used towards that end) and natural justice must be respected. The misconduct, as ever, will need to be substantial to render a dismissal not unfair. Examples of grave misconduct might be causing damage to person or property or using abusive and profane language.103 The effect of the strike on the contract of employment is also likely to feature in the employer’s legal arguments. (ii) Non-selective dismissals [21.76] It has been argued that there is a contrary principle implied in s 5(2), ie that non-selective or non-discriminatory dismissals in circumstances of strike or other industrial action are completely outside the jurisdiction of the Act. When the Act first came into effect it was believed that the sub-section afforded complete liberty for an employer to dismiss all of its workforce during a dispute and that the question of unfair 101

102

103

(\...contd) The section was prompted by the need to give the employer protection when its business is faced with ruin by industrial action. As Sir Hugh Griffiths put it in Heath v Longman Ltd [1973] 2 All ER 1228 at 1230–1231: ‘[it provides] a measure of protection to an employer if his business is faced with ruin by a strike. It enables him in these circumstances, if he cannot carry on the business without a labour force, to dismiss the labour force on strike; to take on another labour force without the stigma of it being an unfair dismissal.’ In Thompson v Eaton [1976] 3 All ER 383 at 388 Phillips J expressed a similar view saying that, but for the legislation ‘an employer must either submit to the demands of the strikers, go out of business, or pay compensation for unfair dismissal’. In reality, it is unlikely that an employer will wish to dismiss all those on strike, or that many strikes threaten an employer with ruin. A contrary view is maintained by Forde, Industrial Relations Law (Round Hall, 1991) at 116 (but subsequently abandoned in Forde and Byrne, Industrial Relations Law (2nd edn, Round Hall, 2001) at 141) and in EAT decisions such as Tuke and Ors v Coillte Teoranta [1998] ELR 324. See too Folan v Dunnes Stores (Terryland) Ltd UD56/2000. See, eg, Grogan v CIÉ UD 28/1984; McCarthy v CIÉ UD 172/1984; Moore v CIÉ UD 355/ 1984 (1985) CC; Kelly v CIÉ UD 214/1984 (11 February 1985) CC; Tierney and Dalton v CIÉ UD 81/1984 (15 July 1985) CC. See para [16.54] et seq.

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[21.79]

dismissal arose only where work was resumed and the employer was selective in its treatment of the employees. The Trade Union and Labour Relations (Consolidation) Act 1992, s 237 provides for an exclusion of jurisdiction where all the workforce has been dismissed.104

[21.77] The belief that s 5(2) of the Irish Act was so restrictive may have sprung in some measure from a mistaken assumption that s 5(2) re-echoed the predecessor of s 237 of the 1992 Act above, s 62 of the Employment Protection (Consolidation) Act 1978. In fact, there is a significant difference in the wording of the two provisions. Section 5(2) of the Unfair Dismissals Act deems it unfair for an employer selectively to dismiss in an industrial dispute situation – no more, no less. If one bears in mind not only Ireland’s obligations in international law, but also that by striking, a person may be exercising a fundamental constitutional right, it would be ultra vires the Constitution to grant an immunity to employers who penalised their entire workforce by dismissing each and every employee who had taken part in strike action.105 It is clear that s 6(1) applies to non-selective dismissals, and that they come within the Act’s jurisdiction. [21.78] This view was endorsed by the EAT in Jordan v Walter D McKenna Ltd106 in which all employees who had participated in a strike were dismissed. The claim of three former employees failed. Industrial or strike action may be such that the entire enterprise is closed as a consequence in which case termination will be for redundancy.107

(iii) ‘Strike’ action [21.79] The strike in s 5 is solely the phenomenon of industrial relations. It retains its traditional link with the process of collective bargaining. Consumer or political strikes are not covered. ‘Strike’ is defined in s 1 to mean: ... the cessation of work by any number or body of employees acting in combination or a concerted refusal or a refusal under a common understanding of any number of employees to continue to work for an employer, in consequence of a dispute, done as a means of compelling the employer or any employee or body of employees, or to aid other employees in compelling their employer or any employee or body of employees to accept or not to accept terms or conditions of or affecting employment.108

Within industrial relations, there are many classifications of strike; they are all covered by this definition. 104

105 106 107 108

See Kidner, ‘Dismissing Strikers’ (1978) 128 NLJ 203; McMullen, ‘Unfair Dismissal and the Merits of an Industrial Dispute’ (1980) 130 NLJ 670; Ford and Novitz, ‘Legislating for Control: the Trade Union Act 2016’ (2016) 45 ILJ 277. Policy considerations are also relevant although they fall outside the present compass. Jordan v Walter D McKenna Ltd UD 577/1982. Bates v Model Bakery Ltd [1992] ELR 193. See a similar definition in s 6 of the Redundancy Payments Act 1967. Contrast the definition in the Industrial Relations Act 1990.

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(iv) The effect of strike action on the contract of employment [21.80] The common law in Ireland, influenced by British law, has spawned a doctrine of ‘suspension’, ie provided strikers give notice of at least the length required to terminate their contracts, their employment rights and obligations are suspended. The implications are uncertain and the doctrine is limited in the range of situations to which it applies. [21.81] Strike action may be preceded by some form of notice or by none. The notice given may be in terms of a notice to terminate the contract. If it is of the required length and the employee works out the notice before ceasing work, the contract is fulfilled according to its terms. No question of dismissal can arise. In practice, notice of termination is rarely given. Where no notice, or notice of intention to strike is given, there is likely to be a breach of contract. Only exceptionally has either side involved in a strike any expectation or wish that at the end of the strike relations between them will have been severed. The view appears to have been that the law of contract should give effect to the intention of the parties if the intention is not to break or terminate the contract for the period of the strike.109 [21.82] The doctrine of suspension was endorsed by a majority of the Supreme Court in Becton Dickinson Ltd v Lee.110 Having expressed his agreement with Lord Denning in Morgan v Fry,111 Walsh J observed that: ‘there is to be read into every contract of employment an implied term that the service of a strike notice of a length not shorter than would be required for notice to terminate the contract would not in itself amount to notice to terminate the contract and would not in itself constitute a breach of the contract and that to take industrial action on foot of the strike notice would likewise not be a breach of the contract. Such an implied provision, of course, could not be read into a contract where there is an express provision in the contract to the contrary, or where by necessary implication a provision to the contrary must be read into the contract.’112

Lord Denning had said that in the circumstances of strike action: ‘the truth is that neither employer nor workmen wish to take the drastic action of termination if it can be avoided. The men do not wish to leave their work forever. The employers do not wish to scatter their labour force to the four winds. Each side is therefore content to accept a strike notice of proper length as lawful. It is by implication read into the contract by the modern law as to trade disputes. If a strike takes place, the contract of employment is not terminated. It is suspended during the strike and revived again when the strike is over.’113 109

110 111

112 113

Report of the Royal Commission on Trade Unions and Employers’ Associations (Cmnd 3623, 1968) at paras 939-40. Becton Dickinson Ltd v Lee [1973] IR 1. Morgan v Fry [1968] 2 QB 710. Before Morgan v Fry, see Devlin and O’Donovan LJJ in Rookes v Barnard [1963] 1 QB 623 at 682–83, [1964] AC 1204; Denning LJ in Stratford v Lindley [1965] AC 307 at 322. See, for further consideration, Simmons v Hoover [1977] QB 284; and Pete’s Towing Services v Northern Industrial Union of Workers [1970] NZLR 32. Becton Dickinson Ltd v Lee [1973] IR 1 at 35–36. Morgan v Fry [1968] 2 QB 710 at 728.

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[21.86]

The theory of suspension was severely doubted in Britain not long after Morgan v Fry, and what to many was a more reasonable approach was adopted by the EAT in Simmons v Hoover Ltd.114

[21.83] Suspension presents considerable technical difficulties, many of which were identified by the Donovan Commission in Britain.115 For example, is an employer still allowed instantly to dismiss an employee for grave misconduct or some other substantial reason during the strike? Are strikers free to take up other employment while the contract is suspended? What exactly does suspension mean? [21.84] The Unfair Dismissals Act, s 5, was drafted without heed to the suspension doctrine (likewise the Industrial Relations Act 1990). In other words, strikers who in law have repudiated their contracts and strikers who are lawfully acting in accordance with an implied term in their contracts are equally protected. If a strike is preceded by strike notice of a length sufficient to terminate the contract, Irish law will find the contract is suspended. If so, can the employer dismiss? If the contract is not suspended in its entirety, but suspension is limited, say, to work/wages, the answer must be yes. There are two reasons why suspension must be restricted in its application. First, the doctrine of suspension cannot limit the common law right of either party to terminate the contract of employment. Second, as the relationship of employment continues during suspension, so too must the many important incidents of this relationship. [21.85] The Supreme Court by implication endorsed a work/wages interpretation of suspension in Bates v Model Bakery Ltd.116 It held that by going on strike preceded by notice sufficient to terminate the contract, the plaintiffs had neither frustrated nor repudiated their contracts of employment. Becton Dickinson was expressly followed. At the time of the plaintiffs’ dismissal, their employer had ceased carrying on business. Accordingly the Supreme Court held that the statutory presumption of redundancy applied. The Supreme Court did not review the implications of Becton Dickinson. (v) ‘Industrial action’ [21.86] ‘Industrial action’ is defined in s 1 to mean: Lawful action taken by any number or body of employees acting in combination or under a common understanding, in consequence of a dispute, as a means of compelling their employers or any employee or body of employees, or to aid other employees in compelling their employer or any employee or body of employees, to accept or not to accept terms or conditions of or affecting employment.117 114

115

116 117

Simmons v Hoover Ltd [1977] ICR 61. See also Sandhu & Ors v Gate Gourmet London Ltd [2009] IRLR 807. Report of the Royal Commission on Trade Unions and Employers’ Associations (Cmnd 3623, 1968) at paras 936–952. Bates v Model Bakery Ltd [1992] ELR 193. See Tuke and Ors v Coillte Teoranta [1998] ELR 324 for a liberal interpretation. In Britain, industrial action is not defined. It is generally held open to complainants to argue that ‘lawful action’ by employees is not encompassed. There, industrial action applies to action short of a strike, such as picketing within the works or a collective refusal to obey instructions to work on a particular machine: Thompson v Eaton Ltd [1976] ICR 336. It also applies to an unlawful go-slow, work to rule, or ban on overtime: Derving v Kilvington (1973) 8 ITR 266.

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It is impossible to explain why ‘lawfulness’ should be required for industrial action and not for strikes (nor indeed for the definition of ‘industrial action’ under the Industrial Relations Act 1990). ‘Lawfulness’ may refer to the consequences of industrial action or to the acts per se. The Act is not explicit as to the meaning intended. Several different branches of the law – criminal law, contract, constitutional law, tort – may be involved in assessing lawfulness. Statute law is frequently relevant. Given the increasing importance of implied rights and obligations in the contract of employment, no form of industrial action can safely be described as ‘lawful’. However, the limited meaning of ‘industrial action’ does not strike a complete blow to employees’ rights, as dismissal for taking part in ‘unlawful’ industrial action could be dealt with under s 6(1) of the 1977 Act.

[21.87] In Power v National Corrugated Products118 it was argued that the dismissed workers did not come within s 5 because their industrial action, namely a sit-in, constituted unlawful action, but the EAT seem to have turned a blind eye to this argument. There, 128 employees were dismissed for taking part in a sit-in. The EAT’s decision is not specific in regard to the legislation. It held by a unanimous decision that the dismissals were unfair ‘within the meaning’ of the Act. If, as seems reasonable, the EAT’s determination was based on s 5(2), then not only did it not operate a conclusive presumption of fairness within the contrary implied meaning of s 5(2) (all employees taking part in the sit-in had been dismissed) but it also interpreted reasonableness in the same broad way in which it has been interpreted in relation to individual dismissal. The EAT took into account that management made no serious effort to contact the chief claimant’s union during the sit-in; that the employer’s action in issuing dismissal notices prior to a union meeting to discuss the sit-in was ‘inconsiderate and irresponsible’; and that the decision to dismiss the claimants came from a person whom the EAT felt was not involved sufficiently to make such a decision without consultation. At the same time, the claimants’ action in participating in the sit-in without their union’s advice was found to be unjustified and they were held to have contributed to their own dismissals.

(vi) ‘Participating’ in strike or industrial action [21.88] British case law deals with a number of issues which could be relevant.119 On the question of selectiveness, for instance, the House of Lords in Stock v Frank Jones120 declared that in deciding whether employers had picked and chosen all those who ‘had taken part in’ the strike or industrial action, not just those still taking part at the date of dismissal should be considered. Under the amending Act it may be relevant that some strikers have been taken back before others.121 If an employer warns strikers that they will be dismissed unless they return by a certain date, and if, for example, two return but the rest remain on strike and are dismissed, s 5(2) could be invoked by the dismissed employees: the workers who were taken back were nevertheless workers who ‘took part in’ the strike. This may put an employer in a difficult position since, if he issues an 118 119

120 121

Power v National Corrugated Products UD 336/1980. One must remember that s 5(2) of the 1977 Act, does not involve a conclusive presumption of unfairness. Contrast this with the stark exclusion of jurisdiction found in s 237 of the Trade Union and Labour Relations (Consolidation) Act 1992. Stock v Frank Jones [1978] ICR 347. See contra in the UK, Stock v Frank Jones (Tipton) Ltd [1978] ICR 347.

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Collective Aspects of Unfair Dismissal

[21.93]

ultimatum that the strikers must return or be dismissed, the ultimatum is valueless if even one of the strikers returns. It would then be impossible for him fairly to dismiss the remainder (within s 5(2)).122

[21.89] The Court of Appeal has judiciously described the meaning of ‘taking part in a strike’ as just the sort of question which an industrial jury is best fitted to decide: Coates and Venables v Modern Methods & Materials Ltd.123 Members of the Court ventured some views, however: ‘if an employee stops work when his workmates come out on strike and does not say or do anything to make plain his disagreement, or which could amount to a refusal to join them, he takes part in their strike.’ 124

If a person chooses not to go to work during a strike, it is reasonable for an employer to regard him as taking part in it. In other words, what counts is what the employee does and not what he thinks or why he does it.

[21.90] The EAT in Britain developed this further in Manifold Industries v Sims.125 Taking part in industrial action must be determined as an objective fact and not by reference to the employer’s knowledge or whether it acted properly in seeking to gather information on the topic.

[21.91] An employee may be absent from work for reasons of sickness or holidays. He can nonetheless be capable of taking part in strike or industrial action if he associates himself with the collective action such as by attending a picket line.126 [21.92] ‘Long ago it was said that no man can serve two masters.’127 In the employment relationship this old principle can mean that an employee ready and willing to do his union’s bidding where the union is in dispute with his employer could be said to be taking part in industrial action, notwithstanding the fact that he may be carrying out the same work functions as he did before the dispute. Most modern forms of industrial action are ‘rolling’, with various numbers of employees affected in their work at any given time.

[21.93] Potential confusion can arise because the interaction between ‘work/wages’ and fundamental contractual doctrines is unclear. The relationship of employment needs to be distinguished as involving more than a cluster of exchanges as to work and wages. And ‘work’ no longer means physical acts in employment law. It means service. The potential role of the implied obligation of mutual trust and confidence has yet to be explored from the perspective of an employee’s obligations in a context such as the present. 122

123 124

125 126 127

Ways of neutralising the decision are suggested by Collins, ‘Industrial Conflict: Dismissal in Connection with a Strike’ (1979) 8 ILJ 109. Coates and Venables v Modern Methods & Materials Ltd [1982] IRLR 318. Coates and Venables v Modern Methods & Materials Ltd [1982] IRLR 318 at 323 per Stephenson LJ. Manifold Industries v Sims [1991] IRLR 242. Bolton Roadways Ltd v Edwards [1987] IRLR 392. Chappell v The Times Newspapers Ltd [1975] 2 All ER 233 per Lord Denning MR.

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[21.94] ‘Service’ implies a degree of trust and of discretion. It means that to be ready and willing to do whatever work is assigned is an implied part of the consideration on which the employer’s promise to pay wages is based. In circumstances of industrial upheaval, the work which is assigned may be different from one’s normal ‘peacetime’ service. Refusal to sign a ‘loyalty pledge’ on the instructions of one’s union may result in a person ‘participating’ in industrial action.

(vii) Lock-out or strike? [21.95] Section 5(1) of the Unfair Dismissals Act 1977 (as amended) deems a lock-out to be a dismissal (notwithstanding that a lock-out can be instituted without a breach of contract128) and deems the dismissal unfair, if after the lock-out is terminated, the employee was not permitted to resume his employment on terms and conditions at least as favourable as those specified in s 7(1)(a) and (b) (which describe reinstatement and re-engagement) and one or more other employees in the same employment were so permitted. [21.96] This amendment altered the previous s 5(1) significantly. Before October 1993, a lock-out was not deemed to be a dismissal. If an employee was actually dismissed by way of a lock-out the dismissal was deemed not to be unfair if the employee was offered reinstatement or re-engagement as from the date of resumption of work. Now, however, the exact terms of the offer and the position of other employees are relevant. Does it matter that, for example, another employee is permitted to resume employment on terms of reinstatement while the claimant’s return is as a re-engaged employee? Presumably a claim of unfair dismissal could be sustained only if the terms of the latter were not reasonable and therefore not as favourable as those described in s 7(1)(b).

[21.97] ‘Lock-out’ is defined in s 5(5) in a way which incorporates the ‘golden formula’ of trade disputes law, see para [21.06] above, and which could give rise to very interesting arguments where the ‘suspension doctrine’129 was relevant: ‘lock-out means an action which, in contemplation or furtherance of a trade dispute (within the meaning of the Industrial Relations Act 1946) is taken by one or more employers, whether parties to the dispute or not, and which consists of the exclusion of one or more employees from one or more factories, offices or other places of work or of the suspension of work in one or more such places or of the collective, simultaneous or otherwise connected termination or suspension of employment of a group of employees.’

[21.98] It will be for the WRC to decide whether there is a lock-out or a strike, and on occasion their task will be difficult. Suppose notice of strike as described in Becton Dickinson. The contract by implication of law is suspended: no work, no wages. The employer recognises this and closes the premises. Although this behaviour would come within the definition above, it cannot be a lock-out because this is now deemed to be a dismissal and that would be contrary to the doctrine in Becton Dickinson. 128 129

Express and Star Ltd v Bunday [1987] IRLR 422. Paragraphs [21.82]–[21.87].

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Chapter 22

Fact and Date of Dismissal [22.01] This chapter concentrates on two aspects of statutory dismissal law: the meaning of ‘dismissal’ and the date thereof. That an employee has been dismissed is a jurisdictional requirement under the Unfair Dismissals Acts. Once that is established, the date of dismissal needs to be ascertained. This can be critical for employees when computing continuous service. Almost all challenges to dismissal require a claimant to have at least 52 weeks’ continuous service.1

A.

THE FACT OF DISMISSAL

(1) Definition of dismissal [22.02] Before the enforcing authorities will examine the fairness or unfairness of dismissal, they must be satisfied that an employee has been ‘dismissed’ in accordance with the Unfair Dismissals Act 1977. ‘Dismissal’ is defined in s 1 to mean: (a)

the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee;

(b)

the termination by the employee of his contract of employment with his employer, whether notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer; or

(c)

the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.

These three events constitute an exhaustive list.

(i) Fixed-term and specified purpose contracts [22.03] When a contract for a fixed term or specified purpose expires, it has not been ‘terminated’ by either the employer or employee but terminates in accordance with its terms. At common law there will be no remedy. For this reason, fixed-term and specified purpose contracts were included within the Act, thereby removing what might otherwise have been a useful device for employers to avoid responsibility.2 At the same 1

See Ch 23.

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time, however, the Act recognises that genuine fixed-term or specified purpose contracts, eg for temporary, once-off jobs, are an important part of the range of employment relationships: hence, s 2(2), [23.75]–[23.81].

[22.04] A ‘fixed-term employee’ is defined for purposes of the Protection of Employees (Fixed-Term Work) Act 2003, s 2, as ‘a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event’. However, a ‘fixed-term contract’ is not defined in the Unfair Dismissals Act, and in Britain (where, incidentally, specified purpose contracts do not constitute statutory dismissal3) experience shows that it may be interpreted with varying degrees of narrowness or breadth. If the same degree is adopted both in relation to s 1 and to s 2(2), a dilemma arises. A wide meaning broadens the range of situations where the employee may validly contract out of his statutory rights. On the other hand, a narrow meaning removes many forms of dismissal from the Act’s protection and a major loophole is opened. The latter became apparent from British Broadcasting Corporation v Ioannou,4 although the loophole was subsequently removed by the Court of Appeal decision in Dixon v British Broadcasting Corporation.5 The Court made it clear that a fixed-term contract is not limited to a contract for a term which cannot be unfixed by notice within its terms.6 [22.05] Whether s 1(c) covers employees who stand for annual re-election was central to Kenny v Named Trustees of the Operative Plasterers & Allied Trades Society of Ireland.7 The claimant was assistant secretary and delegate of the respondent trade union. He stood for re-election annually until 1989 when his re-election was defeated. He contended that his job was permanent and not, as the employer contended, an office subject to a yearly term and annual election. Alternatively the employee contended that if his contract of employment was a fixed-term contract then the failure to re-elect him was a term of his contract which constituted a dismissal within s 1(c). The EAT determined that the claimant’s job was an office in the legal sense, which existed for a fixed term of one year from each meeting at which the annual election of officers took place and terminated at the annual election of officers. Where an office is for a fixed term and must be filled by the election of a new office holder at the expiration of this term the Unfair Dismissals Act does not apply. 2 3

4 5

6

7

See Fitzgerald v St Patrick’s College UD 244/1978. Wiltshire County Council v NATFHE and Guy [1980] IRLR 198; Ironmonger v Morefield Ltd [1988] IRLR 461. British Broadcasting Corporation v Ioannou [1975] ICR 267. Dixon v British Broadcasting Corporation [1979] QB 546, [1979] ICR 281, [1979] 2 All ER 112, [1979] 2 WLR 647, [1979] IRLR 114. See too Allen v National Australia Group Europe Ltd [2004] IRLR 847 (termination earlier does not prevent contract being a ‘fixed-term contract’). For difficulties surviving Dixon, see Elias, Napier & Wallington, Labour Law: Cases and Materials (Butterworths, 1980) at 559. Dixon and Ioannou were endorsed by the Irish EAT in O’Mahony v College of the Most Holy Trinity [1998] ELR 159. Kenny v Named Trustees of the Operative Plasterers & Allied Trades Society of Ireland [1991] ELR 152.

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[22.07]

‘If [s 1(c)] did apply, it would have the practical effect that the electors who participated in the [last] election would have their role changed from electors participating in a secret ballot to that of a disciplinary tribunal. [The respondent] would have to adduce evidence of what was in the minds of the majority who voted for the other candidate.’

The claimant’s appeal to the Circuit Court was dismissed.

(ii) Elective or automatic theory? [22.06] The definition of dismissal in (a) and (b) above, para [22.02] constitutes the conceptual core of the legislation. In Chapter 6, various difficulties surrounding the concept of termination at common law were discussed. An attempt was made to describe the effect of breach of the employment contract on the concept of termination, having particular regard to the recent decision of the United Kingdom Supreme Court in Société Générale (London Branch) v Geys.8 The latter raised the question of whether repudiatory conduct automatically terminates the contract or whether, on the other hand, termination depends upon some further act or election by the injured party.9 It was unclear as to whether this question would be relevant to unfair dismissal because the Unfair Dismissals Act rests on an edifice of common law contract principles. [22.07] First and foremost one begins with the language of the statute and its internal grammar. Phillips J once described statutory unfair dismissal as an artificial creature not easily to be understood by laypersons – it is ‘dismissal contrary to the statute’.10 Dismissal requires communication to the employee to be effective.11 Where dismissal is communicated to the employee in a letter the contract of employment ends when the employee has read the letter or had a reasonable opportunity of reading it: Brown v Southall & Knight.12 The UK EAT reaffirmed a preference for a distinction between repudiation which does not strike at the root of the employment relationship and which requires acceptance, and out and out dismissal or ‘sending away’ of an employee, involving precisely such a consequence for the relationship between the parties. A straightforward dismissal was regarded as falling squarely within the statutory definition of employer-initiated, such dismissal (or so it appears from the statutory 8

9

10 11 12

Société Générale (London Branch) v Geys [2013] 1 AC 523, [2013] ICR 117, noted by Burrows (2013) 42 ILJ 281, Aitken (2013) 129 LQR 335 and Cabrelli and Zahn (2013) 76 MLR 1106. It will be recalled that in the British case of Gunton v Richmond upon Thames LBC [1980] ICR 755 the Court of Appeal by a majority decision rejected the automatic theory. The Court of Appeal in Boyo v Lambeth LBC [1991] ICR 727 demonstrated just how uncomfortable it was in applying Gunton. Staughton LJ remarked at 748: ‘It is unusual, and perhaps improper, for this court to be so critical of a decision by which we are bound ... the law cannot stand in a white sheet, and in this area is distinctly lacking in rhyme and reason.’ For detailed recent analysis see the judgments of both the majority and the dissenting judgment of Lord Sumption in Geys, note 8 above. W Devis & Sons Ltd v Atkins [1977] AC 931. See Newcastle Upon Tyne NHS Foundation Trust v Haywood [2017] EWCA Civ 153. Brown v Southall & Knight [1980] IRLR 130.

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wording) being effective, whether or not a dismissal in breach, immediately to terminate the contract.13

[22.08] In Brown, a letter of summary dismissal in breach of contract was delivered to the appellant’s home while he was away on holiday. It was argued unsuccessfully that this repudiation was ineffective unless and until accepted, ie until it was time to return to work, or alternatively, until the moment the employers were required to do something to enable him to do his work, eg admitting him to the premises at the end of the holiday period. The EAT held that ‘termination’ of the contract does not necessarily depend on whether there has been repudiation. Further, there is no absolute rule either way that there is always automatic termination after a fundamental breach or that there is always an option which the employee must accept before the employer can dismiss. [22.09] Very much the same approach has been applied to self-dismissal. In Britain, a so-called doctrine of ‘employee repudiation’ threatened for a time to drive a coach and four through unfair dismissals legislation. There were decisions to the effect that an employee in fundamental breach of the contract of employment dismissed himself, thereby relieving the employer of all managerial responsibility.14 Self-dismissals did not come within the Act but a timely fatal blow to this theory was delivered by the EAT in Rasool v Hepworth Pipe Co Ltd.15 In a manner foreshadowing Brown, Waterhouse J analysed ‘two groups of fundamental breach’: ‘(i)

those which being or entailing a deliberate curtailment of the contract effectively terminate it without more; and

(ii)

those which merely entitle the other party at his option to treat it as discharged by “accepting” the repudiation.’

[22.10] In Rasool, the employee’s fundamental breach (unauthorised attendance at mass meetings during working hours at the employer’s factory) fell into the latter category. The common-sense reality was that the employer did have an option which he exercised to terminate the contract. The first type of breach referred to above relates to those breaches where ‘effectively’ an aggrieved party cannot elect to ignore the breach and carry on under the contract; the relationship of mutual trust and confidence has broken down or is completely severed. Thus, some breaches will, while others will not, end the contract depending on their seriousness – contrast wrongful dismissal and wrongful repudiation. [22.11] A strong argument can certainly be made that, in the context of statutory unfair dismissal, the automatic theory adheres more closely to the reality of the employment relationship and the scheme of statutory redress provided for dismissal. There is an implied suggestion, based on the internal language of the Irish 1977 Act (specifically the definition of ‘date of dismissal’, see paras beginning [22.72]) that the automatic 13 14

15

Brown v Southall & Knight [1980] IRLR 130 at 133 per Slynn J. See Gannon v Firth [1976] IRLR 415; Thompson v Eaton (GB) Ltd [1978] IRLR 483; Marsden v Fairey Stainless Ltd [1979] IRLR 103; Smith v Arana Bakeries Ltd [1979] IRLR 423; Kallinos v London Electric Wire [1980] IRLR 11. Rasool v Hepworth Pipe Co Ltd [1980] IRLR 80. See, too, London Transport Executive v Clarke [1981] IRLR 166.

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[22.14]

theory was intended by the Oireachtas. That is the basis on which jurisprudence under the legislation has developed to date.

(iii) Constructive dismissal: reasonableness and repudiatory breach [22.12] In the preceding discussion, constructive dismissal was explored to the extent that the circumstances ‘entitle’ an employee to terminate the contract of employment on account of the employer’s breach of contract. An employee may also terminate the contract where it is reasonable to do so. The two ‘tests’ for constructive dismissal, the ‘contract’ and the ‘reasonableness’ test, are analysed in Chapter 19.

(2) Doubt as to dismissal (i) General [22.13] In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or it may reasonably be inferred16 as having been intended. Because of the presumption of unfairness in relation to dismissal it might be thought that the benefit of any doubt surrounding the fact of dismissal would accrue to an employee. However, in determinations in Ireland,17 the trend is often in the other direction.18 The employer likewise frequently benefits where there is a conflict of evidence as to dismissal and the adjudicating body has to make up its mind which side to believe, or which evidence seems more credible.19 [22.14] Employers may attempt to avoid the consequences of dismissal, eg by providing in the works rules that on a particular breach employees will be ‘assumed’ to have left their employment or to have dismissed themselves. Breach of such a rule does not automatically exclude a claim under the Act.20 An employer may, for example, instruct an employee to perform the contract and tell him that if he fails to do so he will be deemed to have resigned. 16 17

18

19

20

Duggan v A&T Drain Services UDD 1737 (28 July 2017), Labour Court. At the time of writing (2017), the case law of the Workplace Relations Commission and the Labour Court exercising their new jurisdictions pursuant to the Workplace Relations Act 2015 is not sufficiently developed on this point. Particularly if the employer’s account is supported by a memorandum which he prepared on the day of the alleged dismissal: Glass v Lissadell Towels Ltd UD 320/1979. See, on conflict of evidence, O’Connor and O’Connor v Guiry UD 65/1978; Freeman v O’Flaherty UD 9/ 1978. Hyland v Balmoral Dublin Ltd UD 63/1978; Casey v Dunnes Stores [2003] ELR 313. For an example of the Labour Court finding the employer’s evidence not to be credible on this point see Duggan v A&T Drain Services UDD 1737 (28 July 2017) Labour Court. Corrigan v Rowntree Mackintosh (Ireland) Ltd UD 39/1978. If the rule-book indicated that an employee would be ‘deemed to have terminated his employment’ upon breach, this would most probably contravene s 13 of the Unfair Dismissals Act 1977 (being a provision in an agreement purporting to exclude or limit the application of the Act). See also McKenna v Bursey Peppard Ltd [1997] ELR 87 (contract not brought to an end by either party).

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[22.15] Where the employee actually resigns, everything will depend on whether the instruction issued by the employer was one which it could lawfully issue under the contract of employment. If the employer was acting dehors the contract, its conduct may constitute a breach which is sufficient to justify the employee leaving and claiming constructive dismissal. The so-called doctrine of employee repudiation was mentioned earlier, para [22.09]. It is only exceptionally, it is suggested, that employee repudiation should be held to amount to a termination of the contract by the employee.

[22.16] Much of the hearing time at the Workplace Relations Commission or the Labour Court may be engaged in determining a dispute as to dismissal. As the EAT put it in Devaney v DNT Distribution Company Ltd:21 ‘... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention. We find, having regard to the relationship that existed between the parties prior to the termination and the claimant’s evidence that [the director of the respondent company] often expressed his feelings in very strong language, that the words uttered by [him] in an angry mood, did not amount to a dismissal and were never intended as such.’

The test, therefore, is objective.22

[22.17] On the evidence, the adjudicator may find an employee did not give notice to leave but rather was issuing an ultimatum: Smyth v Thomas Montgomery Ltd.23 [22.18] Alcohol may play a part. In Walsh v Sweeney,24 the circumstances of the alleged dismissal occurred at 11.30pm on a day during which both the claimant and respondent had consumed a considerable amount of alcohol. While strong words had been used prior to the impugned ‘termination’ there was no corroborative evidence presented to the EAT that the respondent used words that explicitly terminated the claimant’s employment. The EAT declared: ‘... When an employer speaks sharply to an employee particularly in such circumstances ... where both parties have consumed a considerable amount of alcohol and outside of the work environment and hours, it is not sufficient reason for an employee without just and proper cause to refuse to attend for work. The terms of the dismissal would certainly have to be clear and unambiguous and the onus is on the employee to take such steps as are necessary to establish that he was dismissed. In this case, that would involve turning up for work the next day or at the earliest date thereafter to verify the alleged dismissal.’

On the balance of probabilities the EAT found there was no dismissal. 21 22

23 24

Devaney v DNT Distribution Company Ltd UD 412/1993. See, too, North Bowl Ltd v Maxime II [1993] ELR 228; Cooke v Ashmore Hotels Ltd [1992] ELR 1; Wallace-Hayes v Skolars Hairdressing School Ltd [1991] ELR 108; Woods v Greaney UD 285/1990. Smyth v Thomas Montgomery Ltd UD 87/1992. Walsh v Sweeney UD 751/1992.

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[22.19] An employee on lay-off has not had his contract of employment terminated and in such circumstances the issuing of a P45 does not necessarily constitute a termination: Farrell v Farcourt Foods Ltd.25 [22.20] The phrase ‘we must now ask you to find alternative employment’ could only be interpreted as a ‘dismissal’ even though the word ‘dismissal’ was not used, the EAT held in Connolly v PR Reilly Ltd.26 As the respondent used the word ‘now’ the EAT considered the claimant’s dismissal was effective from the date he received the letter.

[22.21] In Mansour v Romansa Ltd27 the claimant told the EAT (through a translator) that his manager had said ‘Leave now’ to him. The EAT was confronted by conflicting evidence but concluded it was reasonable for the employee to believe he had been dismissed. It found support for its conclusion in the fact that no effort had been made by the manager to contact the employee to resolve their dispute.

(ii) Resignation [22.22] Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned. The contract is terminated in accordance with its terms and as there is no repudiation, acceptance is not required by the employer. However, context is everything. A resignation should not be taken at face value where in the circumstances there were heated exchanges28 or where the employee was unwell at the time. The intellectual make-up of the employee may also be relevant. [22.23] In Geraghty v Industrial Credit Corporation29 the EAT concluded on the evidence that the respondent did not regard the claimant’s ‘resignation’ at the relevant time ‘as a real resignation’. The EAT has also given guidance on circumstances where an employee resigns but later communicates to his employer that he wishes to withdraw his resignation: Keane v Western Health Board.30 The claimant had resigned in Keane, apparently unaware of her employer’s grievance procedures. She attempted to invoke the procedures during the notice period. The respondent’s evidence was that it did not reconsider a letter of resignation as a matter of policy. The EAT held that the claimant, notwithstanding the grievance procedure, genuinely believed that the difficulties and 25

26

27 28

29

30

Farrell v Farcourt Foods Ltd UD 610/1989. Also Crampton v Butlers Engineering International Ltd (In Receivership) UD 599–605/1995; McElarney v QMI Ltd UD 141/1992. Contrast Industrial Yarns Ltd v Greene [1984] ILRM 15 where the statutory condition for the initiation of lay-off procedures did not exit. Connolly v PR Reilly Ltd UD 768/1989. See also Haseltine Lake & Co v Dowler [1981] IRLR 25 and Hardie Grant London Ltd v Aspden [2011] UKEAT 0242_11_0311. Mansour v Romansa Ltd UD 360/2004. See Martin v Yeomen Aggregates Ltd [1983] IRLR 49; Cafferkey v Metrotech Services UD 932/1998; May v Moog Ltd [2002] ELR 261; Millett v Shinkwin UD 4/2004. Geraghty v Industrial Credit Corporation UD 396/1989. See analogously A Worker v An Employer (No 2) [2005] ELR 132. Keane v Western Health Board UD 940/1988.

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stress she was experiencing presented her with no alternative other than to resign from her employment: ‘The letter of resignation viewed against the background in which it was made could not be deemed a fully informed decision or notice by her to terminate her contract of employment. The Tribunal, accordingly, is of the opinion that the notice of resignation is tainted by reason of the confused state of her mind at the time it was tendered coupled with her obvious lack of appreciation of the grievance procedure.’

[22.24] It was also relevant that the claimant had sought to withdraw her resignation as soon as she learned of the alternative remedies available to her. The EAT regarded the employer’s blanket policy never to reconsider a letter of resignation as unreasonable. It was: ‘... not suggesting that in every situation where an employee purports to withdraw a notice of resignation that there is a concomitant obligation on the employer to not only accede to such a request but also to consider it. There may, for example, be circumstances where an employee resigns against a background of obvious stable and satisfactory conditions of employment and who subsequently purports to withdraw his notice.’

The EAT asked whether, if the board had reconsidered the claimant’s resignation, it would ‘as a reasonable employer’ have permitted her to revoke her notice. On the weight of the evidence, this question could be answered only in the affirmative.

[22.25] If, therefore, an employee tries to withdraw a notice of resignation, an employer should ask itself whether special circumstances exist. If so, they may cast doubt on whether the resignation was really intended. The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.31 (iii) Internal appeals [22.26] When does termination – and hence dismissal – take place if there is an internal appeal? This question, when analysed, shows that the date of dismissal for purposes of the employer’s evidence regarding the facts present to its mind when deciding to dismiss, and the statutory ‘date of dismissal’ discussed below, are distinguishable and not necessarily the same. The WRC’s practice in claims involving internal appeals is to hear evidence relevant to the first decision to dismiss. [22.27] Disciplinary procedures often fail to be precise on important details involving appeals. Examples of procedural importance are referred to at para [13.95]. The same matters may be relevant to the legal issue of termination. In particular, it will be necessary to know whether the appeal is a hearing de novo, a rehearing enabling a fresh look at facts and witnesses, or an appeal limited to the original decision to dismiss. In the case of a hearing de novo, the first decision to dismiss may be described as ‘provisional’. It becomes ‘final’ if the appeal/rehearing is not availed of within the 31

See Kwik-Fit (GB) Ltd v Linehan [1992] IRLR 156; Maher v Greyhound Waste Disposal Ltd UD 705/2005. In Cunningham v Ryan UD 163/2004 the EAT found it was ‘unfortunately forced to make a finding of fact ... in all probability [that] the claimant in fact resigned’.

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relevant period or if and when the decision on rehearing is to dismiss. The same cannot be said of an appeal against a decision to dismiss. The decision to dismiss and notice thereof means that the employment relationship cannot be unilaterally reconstituted by the employer.32 What is the contractual position when an employee appeals? It is possible to argue that, in effect, he or she offers to be continued in employment, an offer which the employer accepts in allowing the appeal. This offer, to be continued in employment, may have immediate effect pending the outcome of the appeal if, according to the employer’s disciplinary rules, dismissal is not effective until an appeal (if any) is determined. Or it may be an offer relating to a condition subsequent, that is,

success on appeal. This will arise where an employee goes off the payroll after dismissal. The dismissal will stand until confirmed or overturned on appeal but the employee consents to its unconditional withdrawal when he or she exercises a right to appeal. The appeal is akin to a prerogative of mercy. The dismissal if confirmed on appeal takes effect as at the time of the first decision, unless otherwise stated in the contract.33 [22.28] The question of whether there has been a termination may also arise following success on appeal. The decision on appeal, while successful for the employee, may involve the imposition of conditions. An employee may be retained in employment subject to a requirement, eg that he or she undergo technological training. The employee may refuse this, and be dismissed. The first issue to consider will be whether the employer has existing contractual authority to require the training concerned. If so, the employee cannot reasonably decline as his or her offer on initiating the appeal was to continue in employment according to the status quo ante before dismissal. Suppose, on the other hand, the employer lacks contractual authority. As the employee by appealing has consented only to an unconditional withdrawal, the employer cannot impose a training requirement without the employee’s consent.

[22.29] Assume in each of the foregoing examples that the employee refused to undergo training and was, in consequence, removed from the employer’s payroll. In both, the employer’s offer following appeal was to retain the employee in employment subject to a condition. Technically the appeal against the original decision to dismiss was successful. It must follow, therefore, that the termination in both cases is caused by the employee’s refusal to carry out a requirement of the employer. The lawfulness of the requirement will be significant, but not determinant of the fairness of the dismissal.34 The reason for the dismissal will be different from that for which notice was originally given.35 The contractual model facilitates argument which distorts the reality of what may be believed to be occurring between employer and employee in an appeal against dismissal. An employer should be made aware of the permutations of appeal 32 33 34

35

Harris & Russell Ltd v Slingsby [1973] ICR 454. As in O’Neill v Bank of Ireland [1993] ELR 145, para [22.66]. A failure to accept new terms can result in a fair dismissal: RS Components v Irwin [1973] ICR 535; Hollister v National Farmers Union [1979] ICR 542. National Heart and Chest Hospital Board of Governors v Nambiar [1981] ICR 441, upheld in West Midlands Co-Operative Society v Tipton [1986] ICR 192.

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procedures and seek to ensure by careful drafting of procedures that they can be avoided.36

(3) Examples of termination which may or may not constitute dismissal (i) Consensual termination [22.30] Termination by agreement, ie, consensual termination, is not challengeable as dismissal.37 A frequently encountered example arises in voluntary redundancy schemes. The crucial distinction in cases of voluntary separation as against cases of dismissal/ involuntary resignation is that termination of the contract of employment is by agreement of the parties. First an employer will make it known, generally by way of an informative brochure, that a scheme is available to employees which will enable them to leave employment on attractive terms. In such schemes, and this is significant legally, there is (or should be) a right reserved to the employer not to release employees at its discretion. Obviously, highly skilled employees would be less easily let go.

[22.31] The brochure is not an offer by the employer. It is an invitation to treat, in legal terms. It does not contain an offer which is capable of acceptance, but invites employees either to enquire in confidence as to the application of the scheme in their case and/or to make formal application to have the terms of the scheme applied to them. On the principles involved here, see Gibson v Manchester City Council.38 [22.32] In contract law, the employee’s application constitutes an offer to go by agreement. He will not be resigning: resignation operates by virtue of law on the expiry of the notice period (whether accepted by the employer or not). In Birch v University of Liverpool,39 the question was whether an employee who responded to the employer’s invitation to apply for early retirement and whose application was approved could claim to have been dismissed. In that case, there had been no withdrawal of the offer and employment had terminated on the agreed terms. Nonetheless, the claimant was anxious to claim redundancy payments. One of the important factors of the early retirement scheme was that the employee’s application was subject to final approval by the employer. The Court of Appeal held that the contract had been terminated by the parties by mutual agreement. The fact that the employee’s application was subject to the 36

37 38 39

See Boulton & Paul Ltd v Arnold [1994] IRLR 532 and a note thereon by Hough and SpowartTaylor (1995) 24 ILJ 166. See Roberts v West Coast Trains Ltd [2004] IRLR 788: successful appeal against dismissal revives contract of employment. Even where no express decision to reinstate has been made, following a successful appeal the contract of employment can be regarded as having been revived: Salmon v Castlebeck Care (Teesdale) Ltd [2015] ICR 735; Folkestone Nursing Home Ltd v Patel [2016] UKEAT 0348_15_0106. Ó Loinsigh v Community Technical Aid UD 678/2004. Gibson v Manchester City Council [1979] 1 All ER 972. Birch v University of Liverpool [1985] ICR 470. The decision in Birch did not alter the law as the EAT in Britain affirmed in Scott v Coalite Fuels and Chemicals Ltd [1988] ICR 355. It merely involved applying existing legal principles to a concept that was a relatively emergent one in industrial relations. See more recently Khan v HGS Global Ltd [2015] UKEAT 0176_15_1611; Glendinning v Mid Ulster District Council Dungannon & South Tyrone Borough Council [2017] NIIT 01375_15IT (Northern Ireland Industrial Tribunal).

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approval of the employer and that there might even have been a redundancy situation present in the employment did not mean that the final approval, if given, amounted to a dismissal within the statutory definition. The reasoning in this case is, incidentally, why many employers do not make statutory redundancy payments to employees who opt for voluntary severance under schemes reserving an option in the employer to accept or reject applications. Technically to do so would be an abuse of the legislation. This situation is distinguishable from one where the employer decides to carry on its business with fewer employees (redundancy) and asks for volunteers, without any reservation as to acceptance. Redundancy payments would then fall due.

[22.33] Where a contract is terminated by mutual agreement it is the combined effect of the offer and acceptance which terminates the contract, not the unilateral act of either party. In Griffin v Telecom Éireann,40 the employee sent in an application under the employer’s voluntary severance scheme. Before it was accepted he withdrew it. The company declined to allow withdrawal of his application. The Circuit Court found that the employer’s behaviour constituted unfair dismissal.41 By contrast, in Nugent v University College Dublin,42 the employee’s application for early retirement had already been accepted and processed when the claimant attempted to reverse his decision. A cheque had already been drawn and issued and, according to the employer’s evidence, the relevant paperwork had been sent to the Higher Education Authority. The EAT found that there was no dismissal. [22.34] Therefore, an employee wishing to change his mind regarding voluntary severance must act before the application is accepted. The position was well summarised by the EAT in Bennett and Murphy v Hartman Ireland Ltd:43 ‘In voluntary redundancy situations, a contract is entered into by the parties which is based on certain representations made by both sides and these along with the monetary compensation package form a contract. Subsequent disputes arising from that contract are not within the jurisdiction of the Tribunal.’

[22.35] Where an employee wishes to go early in a redundancy before notice expires or following a period of lay-off, the effect of serving Form RP9 on his employer will mean that he ‘is deemed to have voluntarily left his employment’. This is explicit on the Form,44 and no termination by the employer occurs. The critical legal element in voluntary parting cases is the employer’s discretion to accept or reject the employee’s application to go. This supplies the elements of offer and acceptance, resulting in mutual agreement. It is probably the case in Ireland that where an employee has agreed to be dismissed on grounds of redundancy or has volunteered for redundancy that will not mean that the termination is by mutual consent. It will be a unilateral act of termination, ie a dismissal.45 40 41 42 43 44 45

Griffin v Telecom Éireann UD 148/1991. Griffin v Telecom Éireann (3 March 1992) CC. Nugent v University College Dublin UD 224/1992. Bennett and Murphy v Hartman Ireland Ltd UD 506 and 507/1992. And supported by cases such as Lawlor v House of Names Ltd UD 12/1991. As in Burton Allton & Johnson Ltd v Peck [1975] IRLR 87.

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(ii) Resignation [22.36] It is a principle of law that where an employee resigns because the employer has threatened that if he does not resign he will be dismissed, the mechanics of the resignation do not cause that to be other than a dismissal, as the British EAT in Sheffield v Oxford Controls Company Ltd46 reiterated. It is the threat which causes the employee to resign. [22.37] However, where terms of resignation satisfactory to an employee emerge, the threat of dismissal is no longer the operative factor in the employee’s decision to resign. He resigns because he is willing to resign and because he is offered terms which are satisfactory to him. The causation of the resignation is no longer the threat of dismissal. Notwithstanding that he has been threatened with dismissal, if he does not resign, an employee is not dismissed in law if he agrees to terminate his employment on terms satisfactory to him.

[22.38] The absence of duress will clearly be important.47 Irish determinations bear this out. For example, in Rogers v Irish Helicopters Ltd,48 the employee suffered an accident. Following an enquiry, the company wrote to him requesting that he terminate his employment and offered him monetary compensation in settlement. He later wrote to the company conveying his resignation and accepting the sum in full settlement. When the employee sought redress under the 1977 Act, the EAT was satisfied that there had been no dismissal. The contract had been brought to an end by mutual agreement. When drafting a severance agreement, the contract of employment may be described as terminating by ‘mutual consent’ if this is supported by the facts.

(iii) Frustration [22.39] A contract of employment may end as a result of the legal doctrine of frustration, that is, where performance of the employee’s duties in the future would become radically different from that undertaken by him. Frustration mainly arises in the context of illness or incapacity. This is discussed beginning at para [15.13]. A party who is at fault cannot rely on frustration as to their own act. The imposition of a custodial sentence on an employee is capable in law of frustrating a contract of employment: FC Shepherd & Co Ltd v Jerrom,49 but the party asserting frustration must prove that the frustrating event was not caused by any fault or default on his part. [22.40] Irish judges have only rarely considered the basic principles of the doctrine of frustration. In Re the Trusts of the Will of Simon Sheil,50 Kenny J in the Supreme Court 46 47

48 49

50

Sheffield v Oxford Controls Co Ltd [1979] IRLR 133. See Logan Salton v Durham County Council [1989] IRLR 99; Staffordshire County Council v Donovan [1981] IRLR 108. Rogers v Irish Helicopters Ltd UD 358/1982. FC Shepherd & Co Ltd v Jerrom [1986] IRLR 358 supporting Chakki v United Yeast [1982] 2 All ER 446 and casting doubt on Morris v Southampton City Council [1982] ICR 177. See Purcell v Carey UD 883/1995 (contract frustrated by three-year prison sentence) and Zuphen v & Ors v Kelly Technical Services (Ire) Ltd [2000] ELR 277. A period of bail could not be considered a frustrating event in Four Seasons Ltd v Maughen [2005] IRLR 324. Re the Trusts of the Will of Simon Sheil (23 November 1977) SC.

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outlined three possible bases upon which the doctrine of frustration might be said to rest: ‘(i) (ii) (iii)

where there has been such a change in the circumstances that the performance of the contract has become unlawful; or where events make it physically impossible for the contract to be performed;51 or where, although performance is physically possible, there has been such a change as to destroy the whole object of the contract to make performance no longer viable in commercial terms.’

It is, of course, frequently far from easy to determine whether there has been such a change in circumstances as to frustrate the contract.

(iv) Death of employer or employee [22.41] The death of either party to the contract of employment will terminate it. An employer in this situation would be an individual. The Unfair Dismissals Acts allow a claim for unfair dismissal to be brought by the personal representative of a deceased employee.52 This has always been possible for common law claims.

(v) Retirement or death of a partner [22.42] The retirement or death of an existing partner, where the employer is a partnership, will generally terminate the contracts of employment of its employees, at least in the absence of an express or implied contractual provision to the contrary. A dissolution of a partnership caused by the retirement of a partner will constitute a dismissal at common law.53 In all cases of retirement or of the death of a partner, it will be important to examine the contracts and the circumstances of the dissolution.54 It is generally thought that retirement or death will cause a termination where the contract is dependent on the continued existence of the partner.

(vi) Insolvency [22.43] The question of an employer’s insolvency is rarely dealt with in the written contract of employment but if not, common law principles or the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 200355 generally supply the answers. In many circumstances, the latter (Acquired Rights Directive) negates what would otherwise be a harsh result for employees at common law. However, there remain situations referred to in this section where an employee’s contract terminates by operation of law. (a) Bankruptcy [22.44] A person’s property vests in the Official Assignee (whose obligations are similar to those of a liquidator of a company) once they are adjudicated bankrupt by the 51

52 53 54 55

As in Kearney v Saorstát and Continental Shipping (1943) Ir Jur Rep 8 (sinking of vessel upon which employee was serving). Unfair Dismissals Act 1977, s 1(1). Paragraph [23.01]. Brace v Calder [1895] 2 QB 253, also Briggs v Oates [1990] ICR 473. Phillips v Alhambra Palace Co [1901] 1 QB 59; Tunstall v Condon [1980] ICR 786. SI 131/2003, see para [18.26] et seq.

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High Court.56 Rights under a contract of employment do not vest in the Official Assignee, however, as they are not regarded as proprietary.57 [22.45] It is often provided in a contract of employment that the employment will terminate without notice if the employee is adjudicated bankrupt or makes an arrangement or composition with his creditors. Without becoming a bankrupt, a person may seek the protection of the court to protect his property and person at the suit of creditors until such time as he submits an offer of composition. If the contract comes to an end in such circumstances, there is a termination by the employer.

[22.46] If it is the employer who is adjudicated bankrupt, all will depend on the facts and the terms of the contract, if any, as to whether the bankruptcy is a frustrating event, or brings the contract to an end by operation of law, or lawfully terminates it. (b) Liquidation or winding up58 [22.47] The winding-up of a company can be compulsory by the court, voluntary by the members or voluntary by the creditors.59 A compulsory winding up can be imposed by the court at the instigation of any member, or contributor, or creditor, or the Minister in certain circumstances. The court appoints the liquidator. In general, an order for compulsory winding up will operate as a matter of law to terminate the contracts of employment of the employees concerned. If the liquidator wishes to carry on the business of the company he may waive the deemed notice of dismissal and continue to employ some or all of the employees.60 Before ordering a winding up the court may appoint a provisional liquidator to safeguard the assets of the company. If he is authorised to carry on the business of the company, the employment contracts are not discharged.61 Continuity of service for purposes of statutory protection regarding unfair dismissal, redundancy and minimum notice is not broken.62 [22.48] The legal position of employees whose contracts have been terminated by the appointment of a liquidator following a winding up order but who continue on in the same employment on similar terms has resulted in a difference of approach between the EAT and the High Court. Before the High Court’s decision in Irish Shipping Ltd v Byrne63 which is detailed in the next paragraph, the EAT had taken the view that where a receiver was appointed or a company was being wound up, any employees retained in employment by a receiver or liquidator had the continuity of their employment 56 57 58

59 60 61 62 63

See Bankruptcy Act 1988. Re Collins [1925] Ch 536. See Graham, ‘The Effect of Liquidation on Contracts of Service’ (1952) 15 MLR 48; Forde, Kennedy and Simms, The Law of Company Insolvency (3rd edn, Round Hall, 2015) Chs 7– 10. Companies Act 2014, Part 11 (Chs 1–4 and 8). Re Collins [1925] Ch 536. Donnelly v Gleeson (11 July 1978) HC; Re McEvanhenry Ltd (15 May 1986) HC. Collman v Construction Industry Training Board [1966] 1 ITR 52. Irish Shipping Ltd v Byrne [1987] IR 486. Followed in Transaer International Airlines Ltd (In Liquidation) v Delaney and Two Hundred and Nine Others [2004] ELR 1 must deal with real and actual loss; hence credit must be given for payments received by employees following date of termination).

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preserved. It recognised that an order for winding up made by the court had the effect of terminating all contracts, including employment contracts. Further, it recognised that employees who were continued in employment by a court-appointed liquidator were, in law, working under new contracts of employment. It took the view that continuity of service was not broken because of paras 6 and 7 of the First Schedule to the Minimum Notice and Terms of Employment Act which provide respectively: 6. The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate employment of the employee. 7. If a trade or business is transferred from one person to another (whether such transfer took place before or after the commencement of this Act) the continuous service of an employee in the trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transfer shall not operate to break the continuity of the service of the employee.

Because para 6 was silent as to who re-employed the employee, the view was that it did not necessarily have to be the former employer, and that re-employment by an official liquidator would be covered by the provision. Paragraph 7 also seemed to cover the situation where a liquidator continued any economic activity in the company, including or involving any employees.

[22.49] Irish Shipping changed this analysis, as the EAT observed in Dodd v Local Stores (Trading Ltd).64 The High Court decision in Irish Shipping came by way of appeal from the EAT under the Minimum Notice and Terms of Employment Act 1973. The EAT had awarded compensation to shore-based employees of Irish Shipping Ltd which was in liquidation as a result of a winding up order by the court. The claim originated in the purported termination by the liquidator of the employees’ contracts of employment as a result of the order. It was not disputed that in communicating the termination of their employment to the employees the liquidator had failed to give the notice required under the Act of 1973. In such circumstances the said Act provides for referral to the Tribunal for arbitration and it may award compensation to the employee ‘for any loss sustained by him by reason of the default of the employer’. It was common case that for a continuous period of more than eight weeks after the date of their dismissal the employees had been re-employed by the liquidator on a day-to-day basis at the same wages and on substantially the same terms as in their original employment. The liquidator argued that as each employee had been re-employed on similar terms and conditions for periods longer than the periods of notice of termination which should have been given, their loss had been fully mitigated and there was no basis on which the EAT could have awarded compensation. The High Court (Lardner J) held that the EAT had erred: its function had been to deal with real and actual loss sustained by loss of wages. ‘Actual loss must be established, and where as here there is no evidence of any actual loss because the respondents were all re-employed by the liquidator and paid their full wages for a period longer than the prescribed period of notice, the Tribunal should have taken that fact into consideration.’ 64

Dodd v Local Stores (Trading Ltd) [1992] ELR 61.

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It was also submitted by one employee who appeared in person that his employment had not been terminated by the order for winding up made by the court or the liquidator’s letter but had continued until the ultimate termination by the liquidator of the day-to-day employment. He contended that notice accrued from that date. Lardner J dismissed this argument as ‘unfounded’.

[22.50] In Dodd the claimants were employed in a number of retail shops. A receiver was appointed and under him the shops remained open for trade. About a month later a liquidator was appointed by the High Court. The shops continued to trade pending their sale as going concerns and the claimants worked on as before. The liquidator left all matters relating to staff to be dealt with by the receiver. The claimants’ trade union had dealings with the receiver and requested to be kept informed of developments. The union and its members only heard of the appointment of the liquidator unofficially, ‘through the grapevine’. The claimants were all dismissed without notice over a twomonth period. When the claims were brought before the Tribunal the liquidator submitted that the High Court order for the winding-up of the company had automatically terminated all contracts including the contracts of the claimants, relying on Irish Shipping. The claimants had suffered no loss under minimum notice legislation as a result of that summary termination because they had been given work at the same rate of pay and under the same conditions after the liquidation. Again, relying on Irish Shipping, it was argued that the work carried out by the claimants after that date was under a new contract of employment altogether so that the liquidator was not obliged to have regard to past service before his appointment.

[22.51] The employees submitted that circumstances may oust the ordinary presumption as to termination and that the appropriate legal principles applying to the circumstances before the EAT had been considered in two earlier High Court cases. In Donnelly v Gleeson65 it was laid down by the High Court (Hamilton J) that: ‘A court order for the winding up of a company is, in the ordinary case, deemed to be a discharge of the company’s employees. An employee can be kept on, however, on the same terms as his original contract by being specifically requested to stay on. The effect of a winding up order as a notice of discharge can be waived.’

[22.52] In the second authority, Re Evanhenry Ltd66 the High Court held that, while a winding up order is usually notice of discharge to all employees, circumstances could justify rejecting the ‘ordinary presumption as to termination’. In that case two employees continued to work for the liquidator for a fairly lengthy period. The High Court (Murphy J) thought it: ‘reasonable to infer that either expressly or by implication some new arrangement or agreement was entered into between the official liquidator and the two employees concerned.’

Continuity of the employees’ employment had not, therefore, been broken. 65 66

Donnelly v Gleeson (11 July 1978) HC. Re Evanhenry Ltd (15 May 1986) HC.

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[22.53] In summary, the employees in Dodd67 argued that notice can be waived, and was in fact waived, by the liquidator, who seemed never to have communicated with the employees. Alternatively, they argued that the employees were retained under their original contracts and that their employment had continued. The EAT concluded, following Evanhenry, that the presumption as to termination could be rejected under the circumstances before it. Following Donnelly68 the notice of discharge on the winding up order was waived. The employees had continued working as before and their continuity of service was held to have been preserved. All the claimants were found to have been dismissed without notice. Loss having been established, awards were made in accordance with a schedule attached to the EAT’s determination. [22.54] The European Court of Justice held in Abels v Administrative Board of the Bedrifsvereniging voor de Metaalindustrie en de Electrotechnische Industrie69 that the Acquired Rights Directive did not apply to transfers: ‘taking place in the context of insolvency proceedings instituted with a view to the liquidation of the assets of the transferor under the supervision of the competent judicial authority.’

The Court said, however, that a legal mechanism for giving an insolvent company protection from its creditors, but which fell short of liquidation proceedings, did not take a transfer occurring at that time outside the Directive. In d’Urso v Ercole Marelli Electromeccanica Generale SpA,70 the Court further clarified and restricted the scope of the exclusion. If the purpose of the procedure is ‘to liquidate the debtor’s assets in order to pay off collective creditors’ then ‘transfers effected in this legal context are consequently excluded from the scope of the Directive’. But a transfer will be covered: ‘where the primary purpose of that procedure is to ensure that that undertaking achieves the stability necessary to secure its future.’

[22.55] A significant recent development in this regard is the judgment of the Court of Appeal (upholding Gilligan J in the High Court) in Brennan v Irish Pride Bakeries,71 where the parties agreed that the TUPE regulations would apply in the context of a receivership arrangement whereby the business was to be sold to a new buyer who would take on the employees. However, the respondent employee was informed that he would be dismissed by reason of redundancy and was given one week’s notice of same. The respondent obtained an interim and subsequently interlocutory order restraining his dismissal and requiring the appellant company to continue paying his salary on the basis that termination by reason of redundancy was not a valid reason for departing from the three-month notice period given in his contract of employment and the appellant was 67 68 69

70 71

Dodd v Local Stores (Trading Ltd) [1992] ELR 61. Donnelly v Gleeson (11 July 1978) HC. Abels v Administrative Board of the Bedrifsvereniging voor de Metaalindustrie en de Electrotechnische Industrie [1985] ECR 469, point 23; repeated in Wendelboe v LJ Music ApS [1985] ECR 511; Industriebond FNV v The Netherlands [1985] ECR 511; Botzen v Rotterdamsche Droogdok Maatschappij BV [1985] ECR 520; and Danmols Inventar A/S [1985] ECR 2639. And see Perth & Kinross Council v Donaldson [2004] IRLR 121. d’Urso v Ercole Marelli Electromeccanica Generale SpA [1992] ECR 1–4105. Brennan v Irish Pride Bakeries [2017] IECA 107.

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continuing to operate as a business, notwithstanding its financial difficulties. The approach of the High Court on this point was upheld by the Court of Appeal.

(c) Receivership [22.56] The appointment of a receiver out of court by the debenture holders does not, as such, terminate contracts of employment. At common law, where the continuance of the employment of a particular employee was inconsistent with the role to be assumed by the receiver as, for example, where the appointment was accompanied by a sale of the business, the relevant employment contract came to an end. The Directive on Safeguarding of Employees’ Rights on Transfer of Undertakings72 (the Acquired Rights Directive) has altered the common law.

[22.57] In Mythen v Buttercrust Ltd,73 a receiver was appointed to Joseph Downes Ltd (D Ltd). He negotiated a sale of a portion of the company’s assets to Buttercrust Ltd (B Ltd). The applicant received four days’ notice of dismissal for redundancy. The notice was signed by the receiver and on the date of expiry of the notice the receiver executed a contract for sale of the assets. The applicant was one of six or so employees let go. He claimed against D Ltd and B Ltd for unfair dismissal.74 It was submitted on his behalf that, relying on Abels, para [22.54], the Acquired Rights Directive was never intended to apply to a situation such as his. Barrington J gave his considered view, however, that it could not be assumed the Directive would not apply to a sale by a receiver appointed by a debenture holder just because the Court of Justice had held that the Directive did not apply to a sale by a liquidator.75 Therefore, where a receiver appointed by a debenture holder sells to a third party part of the assets of a company, an employee made redundant as a result is not estopped from claiming unfair dismissal under the Directive.

(d) Examinership [22.58] The High Court may appoint an examiner when a company is in financial trouble under the Companies (Amendment) Act 1990. This will not affect contracts of employment, even if the court directs that the examiner take over the function of the company’s directors. An examiner may be a prelude, ultimately, to liquidation.

B.

DATE OF DISMISSAL

[22.59] The final hurdle for an employee at the preliminary stage of a claim under the Act is to ascertain the ‘date of dismissal’.76 This date establishes the end of an employee’s length of continuous service and hence the qualifying period of service for a complaint and the period for the calculation of an award of compensation. The date is also important in order to establish the time when an employee is entitled to a written statement of reasons, his age at the time of dismissal, the particular version of the 72 73 74 75 76

Council Directive No 77/187/EEC currently transposed into Irish law by SI 131/2003. Mythen v Buttercrust Ltd [1990] 1 IR 98. See para [18.32]. See, too, Harrison Bowden Ltd v Bowden [1994] ICR 186. For analysis see Compton and Harkin, ‘Determining the Date of Dismissal’ (2014) 11 IELJ 59.

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statutory enactment that is applicable and whether an employee’s claim has been presented within the six-month time limit.

[22.60] Under s 1 of the Unfair Dismissals Act 1977, the date of dismissal is defined as the date on which a notice of termination expires or would have expired where the notice is, or would have been, in accordance with the contract of employment or with the Minimum Notice and Terms of Employment Act 1973, whichever is the greater. For fixed-term or specified purpose contracts the date of dismissal is the date of the expiry or cesser. Special provisions apply under the Maternity Protection Act 1994, s 40(4), the Adoptive Leave Act 1995, s 26(2), the Parental Leave Act 1998, s 25(3)(a), the Carer’s Leave Act 2001, s 16(4) and the Paternity Leave and Benefit Act 2016, s 26(4).

(1) Notice [22.61] A notice to terminate will be construed strictly against the employer and the contra proferendum rule will apply, that is, any ambiguity will be resolved in favour of the employee.77 Notice should therefore be specific, or make it possible for the date to be deduced with certainty from what is said: Morton Sundour Fabrics Ltd v Shaw.78 This can be particularly relevant in redundancy circumstances. The date of, say, closure of a business may be precisely ascertainable but the relevant date which has to be ascertained is the date of termination of the employee’s employment. [22.62] It is essential to distinguish mere warnings from a notice to terminate. Once an employer has given notice to terminate, it cannot revoke the notice unless the employee consents: Murphy v Binchy & Sons Ltd.79 The same is true, mutatis mutandis, where an employee gives notice and provided special circumstances do not exist:80 O’Looney v Roderick Hogan & Associates;81 White v Power Supermarket Ltd.82 The giving of notice per se does not constitute dismissal within the meaning of the Act as such notice, by agreement between the parties, may be withdrawn prior to its expiration. [22.63] If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms.83 If there is no right to give pay in lieu of notice in the contract, the EAT will treat the case as a ‘no notice’ one and will add on the contractual or statutory notice, whichever is greater. 77 78

79 80 81 82 83

Stapp v The Shaftsbury Society [1982] IRLR 326. Morton Sundour Fabrics Ltd v Shaw (1968) ITR 84. The date of dismissal can be varied if employer agrees to request of employee under notice of dismissal that date of termination be brought forward: Palfrey v Transco plc [2004] IRLR 916: effective date brought forward. Murphy v Binchy & Sons Ltd UD 243/1978. See para [22.25] et seq. O’Looney v Roderick Hogan & Associates UD 447/1987. White v Power Supermarket Ltd UD 312/1985. This passage from the previous edition of this work was cited and applied by the Workplace Relations Commission in its 2017 determination in A Sales Director v A Food Company ADJ00002798 (5 April 2017).

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[22.64] The EAT explained in O’Reilly v Pulmann Kellogg Ltd:84 ‘The “date of dismissal” is relevant both for actual and constructive dismissal; there is no ambiguity in s 1(a), (b) and (c) suggesting otherwise.’85

Whether notice complying with the implied provisions of a contract comes within the definition awaits consideration. There is no reason why it should not be covered. This question would arise where a contract was silent as to notice. A notice entitlement is not taken into account in cases of constructive dismissal: Stamp v McGrath.86

(2) Holidays [22.65] Section 1 makes no reference to annual leave entitlement ‘pre-booked or otherwise’ as extending the date of dismissal, whether prior notice of dismissal was or was not given. Hence a claimant’s remaining annual leave entitlement will not be taken into account when determining the date of dismissal: Twomey v O’Leary Office Supplies Ltd.87

(3) Internal appeals [22.66] The date of dismissal may be critical to issues such as whether a claimant has sufficient continuity of service for purposes of eligibility to claim, or whether the claim has been submitted in time. The latter was disputed in O’Neill v Bank of Ireland,88 a case which raised an important issue as to the date of dismissal where there are one or more appeals against the original decision to dismiss. In the respondent’s agreed disciplinary procedure, there was a right of appeal against a decision to dismiss, and the statement that ‘Disciplinary action will not be taken pending the outcome of the hearing of the appeal’. This meant the employee remained on full pay, as though suspended. If the employee was dissatisfied with the decision on appeal, he was entitled to appeal further to an independent person agreed between the employer and the Irish Bank Officials Association.

[22.67] A decision to dismiss the employee was conveyed to him by letter dated 4 December 1989. The claimant appealed and the decision on appeal upheld the employer’s decision. However, the letter communicating this decision said: ‘I recommend that the Bank should accept [the employee’s] resignation if submitted within ten days – failing this, the dismissal decision should stand.’

This was communicated to the employee in a letter dated 26 January 1990. On 31 January 1990 he sought clarification of a number of points, including the nature of a reference the employer would issue and the date from which a resignation would be effective. The employer replied on 1 February 1990. On 9 February 1990, the employee 84 85 86 87

88

O’Reilly v Pulmann Kellogg Ltd UD 340/1979. Pace the EAT in Stamp v McGrath UD 1243/1983. Stamp v McGrath UD 1243/1983. Twomey v O’Leary Office Supplies Ltd [1997] ELR 42; similarly Maher v B & I Line UD 271/ 1978. O’Neill v Bank of Ireland [1993] ELR 145. See too Drage v Governors of Greenford High School [2000] IRLR 314: date of dismissal not until employee notified of result of appeal. And para [22.26] et seq.

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wrote to the employer, inter alia, tendering his resignation. This was accepted with immediate effect by letter of 12 February 1990. Confusion arose as to the nature of the reference and on 14 February 1990 the employee wrote expressing his dissatisfaction. He stated that his resignation had been based on a certain understanding as to his reference. He was therefore taking his case on appeal to the independent third party. The employer’s reply noted this intention and advised the employee formally that he stood dismissed with effect from 12 February 1990, the date of the letter earlier accepting his resignation but, more crucially, 10 working days from communication of the decision on his appeal.

[22.68] The EAT, following lengthy argument, found that the decision to dismiss was communicated to the employee on 26 January 1990, a letter which contained an option exercisable by him within 10 days. This option, on the evidence, was not exercised. Therefore the dismissal was found to take effect on 12 February 1990. The EAT felt supported in its view by the fact that the employee, in his letter of 14 February 1990, implicitly accepted he had been dismissed when he indicated he was appealing to the independent tribunal.

[22.69] This being so, the application to the EAT was one day out of time.89 The case highlights an important issue which should not remain opaque in disciplinary procedures. Where an internal or external appeal is provided, there should be no doubt as to whether the contract is saved in all the circumstances pending conclusion of the appeal. In O’Neill, the EAT was influenced by the statement in the agreed procedures following the first decision to dismiss that disciplinary action would not be taken pending the outcome of the hearing of an appeal (presuming the right to appeal was exercised) and evidence was adduced to show adherence to this principle. In the absence of such a provision or of a practice to the contrary, the effective date of dismissal will be the date on which termination is communicated to the employee and not the date on which he or she is informed that his appeal against dismissal failed.90 [22.70] It is important to note, however, the contrasting approach of the EAT in Ryan v UPC Communications,91 where the employee appealed the decision to terminate her employment but the internal appeal process rejecting her appeal did not conclude for nearly 11 months. The employee’s contract of employment was silent as to whether the lodging of an appeal stayed the date of termination of employment. On these facts, the EAT held that this silence created an ambiguity which gave rise to a belief that a stay on dismissal was in place. In light of its finding that the delays in processing the internal 89

90

91

Unless the claimant had been dismissed in circumstances where notice should have been given (ie gross misconduct). Hence, the EAT proceeded to hear evidence on this. It concluded that the conduct of the claimant justified dismissal without notice. Savage v J Sainsbury Ltd [1980] IRLR 109 approved by the House of Lords in West Midlands Cooperative Society Ltd v Tipton [1986] IRLR 112. This line of authorities was adopted and applied by the Employment Appeals Tribunal in this jurisdiction in Gabor v NVD Limited UD 2436/2011. Ryan v UPC Communications [2015] ELR 217. The complainant in An Employee v A Fish Processing Company ADJ-00002653 successfully relied on Ryan in relation to a preliminary issue concerning an ambiguity in the identification of the correct date of dismissal on the complainant’s WRC complaint form.

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appeal were mainly attributable to the respondent, the EAT concluded that the date of dismissal was the date of the outcome of the internal appeal and not the original dismissal date such that the claim was lodged within time.

[22.71] It is submitted that Ryan is somewhat of an outlier authority distinguishable on its facts in light of the extremely lengthy delay on the part of the employer in that case which would clearly have prejudiced the employee in the pursuit of her claim through no fault of her own. Outside of such extreme circumstances, however, the better view from the case law is that where the contract of employment contains no provision staying the date of termination of employment until the outcome of the internal appeals process, the date of termination is the date on which the notice period expires on the basis of the original date of termination of employment prior to the internal appeal.

(4) Date of dismissal and elective/automatic theory [22.72] Implicit in the Act’s definition of the ‘date of dismissal’ is the notion that statutory dismissal operates automatically to terminate the contract.92 In s 1(b), when dealing with situations where no notice is given to an employee, the Act defines the date of dismissal as the date on which notice (as set out thereafter) would have expired ‘if it had been given on the date of such termination’. [22.73] Although it is an unsatisfactory way to resolve the interpretative difficulties surrounding ‘termination’ it would be difficult, arguably, to accommodate a theory within these statutory words enabling an employee purportedly dismissed without notice to ‘sit in the sun’. ‘Termination’ is taken to have occurred when the employee was sent away.

(5) Clarification of correct legal position where claimant lodges claim prematurely [22.74] For many years, confusion surrounded the correct legal position concerning premature lodging of an unfair dismissal claim prior to the date of dismissal. Determinations of the Employment Appeals Tribunal on this question lacked consistency. For example, in Barry v Newbridge Silverware Ltd,93 the respondent contended in a preliminary application to the EAT that the claimant’s unfair dismissal claim was pre-emptive as it was lodged prior to the date of dismissal. The claimant had been informed that her employment was being terminated for gross misconduct on 10 September 2012. The termination letter stated that the payroll department had been instructed to pay eight weeks’ basic salary from the date of the letter. The respondent argued that since payment was made in lieu of the claimant’s statutory notice period, the actual date of termination was 12 November 2012; the date of expiry of the notice period for which the claimant was being paid in lieu. The claimant sought to refute this argument by claiming that as she was summarily dismissed for gross misconduct, the payment of eight weeks basic salary constituted a ‘goodwill gesture of some sort’ and contended that the date of dismissal was 10 September 2012. The EAT held that ‘it is long recognised … and is prescriptively 92 93

See discussion para [22.06]. Barry v Newbridge Silverware Ltd UD 1517/2012.

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imposed by the legislation that the date of dismissal will be the date on which notice expires (whether notice is imposed by contract or statute)’. The EAT interpreted the payment of eight weeks’ basic salary as ‘an intention to dispose of obligations arising under the Minimum Notice and Terms of Employment Act 1973’ and held that the date of termination of employment was 12 November 2012. The EAT concluded, therefore, that the unfair dismissal claim was lodged too early and ‘in the course of her ongoing employment’. In these circumstances, the Tribunal did not have jurisdiction to hear the claim.

[22.75] Confusingly, a contrasting approach was adopted by the EAT in Matthews v Sandisk International Ltd.94 In that case, the Tribunal similarly held that the filing of a notice prior to the date of termination of employment constitutes the giving of notice for the purposes of s 8(2) of the Acts. The EAT found that by lodging a claim prior to the commencement of the prescribed time period, the claim was with the Tribunal at the commencement of, and throughout the prescribed period.

[22.76] This approach, however, must be considered afresh in light of the clarification brought about by the 2014 High Court decision in Brady v Employment Appeals Tribunal and Bohemian Football Club.95 The claimant was employed as a bar manager of the second respondent. On 16 December 2011, he was dismissed by reason of redundancy. After being informed of his dismissal, the claimant asked when his dismissal was effective, and was informed ‘Now’. The employer did not provide a notice of dismissal nor did a P45 issue. The claimant lodged an unfair dismissal claim on 23 December 2011 and cited his date of redundancy as 16 December 2011. When the matter came before the Tribunal, the employer claimed that the claimant’s claim had not been validly brought in time, contending that the claim was lodged before the expiration of the two-week redundancy notice period and hence, before the dismissal took effect. The Tribunal accepted this argument and held that as the claimant filed his claim before the date of dismissal, it did not have jurisdiction to hear the claim. The claimant instituted proceedings by way of judicial review of the EAT’s decision.

[22.77] The High Court (Barrett J) quashed the decision of the EAT and held that it did indeed have jurisdiction to hear the claim. Barrett J emphasised that the EAT had notice of the claim at the commencement of, and throughout, the six-month period postdismissal within which the claimant was permitted to institute the proceedings. The High Court stated that it would be absurd to find that a claimant should be denied the opportunity to bring a claim for unfair dismissal simply because the adjudicating body had notice of the claim immediately prior to the applicable six-month period. Barrett J drew support for this conclusion from the equitable principle that ‘Equity aids the vigilant, not the indolent’.96 [22.78] Barrett J was further satisfied that this conclusion was in keeping with the language of s 8(2) of the Unfair Dismissals Acts which provides that notice must be given within six months ‘beginning from the date of the relevant dismissal’. The High 94 95 96

Matthews v Sandisk International Ltd UD 331/2010. Brady v Employment Appeals Tribunal and Bohemian Football Club [2015] ELR 1. Brady v Employment Appeals Tribunal and Bohemian Football Club [2015] ELR 1 at para 8 per Barrett J, citing Smith v Clay (1761) 3 Bro CC 639n.

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Court held that in circumstances such as those in this case, giving notice to the Tribunal on one date such that it has notice on another date complies with the requirements of the Acts. The High Court noted that prescribed time periods are typically intended to ‘thwart the tardy, not punish the prompt’97 and held that the Tribunal did have jurisdiction to hear the claimant’s claim. The High Court directed that a different division of the Tribunal hear the claim. The decision of the High Court in Brady thus provides a welcome and pragmatic clarification of this area of Irish dismissal law and the WRC now has clear guidance from the High Court on this question.

97

Brady v Employment Appeals Tribunal and Bohemian Football Club [2015] ELR 1 at para 8.

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Chapter 23

Express Qualifications and Exclusions A.

THE PARTIES

(1) Employee [23.01] The right not to be unfairly dismissed applies to every ‘employee’ except in so far as its application is qualified or excluded by or under the unfair dismissals legislation. In this respect, the 1977 Act falls below the standards of ILO Recommendation No 119.1 To be a qualified employee, an individual must: (i) (ii)

be an employee as defined in s 1 of the Act; and have the requisite continuous service of not less than one year with the employer except where dismissal is related to pregnancy, maternity or matters concerned therewith or is connected with trade union membership or activities or has made a protected disclosure within the meaning of the Protected Disclosures Act 2014.

An ‘employee’ means: An individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for dismissal under this Act, includes, in the case of the death of an employee concerned at any time following the dismissal, his personal representative.

[23.02] The legal meaning of ‘employee’ is considered earlier in this book, chiefly in the context of the common law, and reference should be made to that analysis.2 If a complainant is not an ‘employee’ then his or her claim will fail. The WRC will, if necessary, give extensive analysis of the true status of the complainant in order to ascertain whether he or she is an employee or an independent contractor. A useful illustration of such an approach adopted by its predecessor, the EAT, is the determination in Campbell and Glennon v EBS.3 Having previously been employees of large financial institutions and then self-employed for a number of years thereafter, the 1

2 3

Para 2 of ILO Recommendation No 166 provides that the Recommendation should apply to all branches of economic activity and to all categories of workers, except three which may be excluded, namely, (a) workers engaged for a specified period of time or for a specified task, (b) workers serving a period of probation or a qualifying period of employment determined in advance and of a reasonable duration, (c) workers engaged on a casual basis for a short period. The list of excepted categories in the Irish Act is wider than that encompassed by the Recommendation or in Convention 158 on Termination of Employment at the Initiative of the Employer (not ratified by Ireland, although it is currently under review), see Ch 12. See paras beginning [3.03]. Campbell and Glennon v EBS [2016] ELR 99.

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claimants agreed to act as financial consultants for the respondent and entered into formal agreements in that regard. The claimants argued that their terms and conditions were reflected in these documents in circumstances where they did not execute any further agreements but continued to work, uninterrupted, for the respondent. In support of their employee status the claimants asserted that they could not sub-contract their work, held staff identity badges, had to meet with a line manager weekly to receive files and work duties, could not profit from their endeavours, always had their mileage and accommodation expenses refunded by the respondent, attended briefings at the respondent’s offices, went to social events, and used the staff canteen.

[23.03] The EAT found that the claimants were engaged on an independent contractor basis. Among the relevant factors identified by the EAT in assisting it in arriving at this determination was the fact that the claimants had been offering their services as independent contractors for some time and operated their own independent contracting business as financial consultants prior to engaging with the respondent and were aware of the differences between a contract for and a contract of services. The EAT held that the issuing to the claimants of a staff badge for identification purposes on entering nonpublic areas, the assignment of a staff invoice number and the presentation of a letter of introduction on the respondent’s headed notepaper are matters of practicality rather than matters indicative of employment status. [23.04] Noting that the claimants retained autonomy in relation to work and there was no restriction imposed on the working hours once the file was dealt with, the EAT also regarded it as significant that the claimants’ attendance at the respondent’s premises was limited to one day per week but they did not hold an office desk or a telephone line. Although the claimants attended training, this was obligatory due to relevant regulations, and as such was not inconsistent with their status as independent contractors. The EAT also held, inter alia, that there was no mutuality of obligation, a concept discussed at length in Chapter 3 of this work.

(i) Death of employee [23.05] The term ‘employee’ is so defined in s 1(1) of the 1977 Act as to remove any doubt that, in the case of the death of an employee at any time following dismissal, the term applies to his personal representative. Where an employee died following initiation of proceedings the EAT permitted his personal representative to carry on the case: Williams v Duffy & Co.4 Self-evidently there will be practical obstacles to surmount in such circumstances. It will be helpful if the deceased claimant’s representative can produce a signed proof, or at least have taken contemporaneous notes at a consultation. In Williams, the employer did not attend the hearing. 4

Williams v Duffy & Co UD 687/1986. See also, in the context of the Employment Equality Act 1998 as amended, the decision of the Equality Tribunal in Ibidunni v Boston Scientific (Ireland) Limited [2011] ELR 158.

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[23.08]

(ii) Employment Agency Worker [23.06] Since 1 October 19935 the 1977 Act, as amended, provides that an individual supplied by an employment agency within the meaning of the Employment Agency Act 1971 and acting in the course of that business, is deemed to be ‘an employee’ employed under a contract of employment by the third-party user of the labour for purposes of the 1977 Act and any redress under that Act shall be awarded against the third party.6 Although the scope of this new provision extends only to the 1977 Act, it brings in redundancy legislation to the extent that a claimant may contend unfair selection for redundancy or an employer may plead redundancy in its defence. It is irrelevant whether the third party is a party to the contract and whether or not it pays the wages or salary of the individual in respect of the work or service he has agreed to do. Before this provision, employment agency workers were generally not regarded as employees either of the agency or of the user of the labour.7 [23.07] The amendment, it will be noted, does not refer to the other side of the equation by deeming the third party the ‘employer’. The 1977 Act does not recognise or treat of any circumstance where an employee works under a contract of employment with ‘a third person’. For the purposes of interpreting s 1 on ‘dismissal’, it is not always clear who, in law, is ‘the employer’.8

(iii) FÁS and equivalent workers [23.08] A person working under a FÁS scheme is not regarded as ‘an employee’: Dempsey v Grant Shopfitting Ltd.9 In principle, the same reasoning applies to schemes instituted by SOLAS, the body which has replaced FÁS. A person kept on after the expiry of such a scheme will become an employee but it should be noted that, under s 4 5

6

7

8

9

Unfair Dismissals (Amendment) Act 1993, s 13. See Kimber, ‘Agency workers and employers’ responsibilities’ (2005) 2 IELJ 79; Protection of Employees (Temporary Agency Work) Act 2012; Regan, ‘Agency Workers Act—the Right of Agency Workers’ (2012) 9 IELJ 85. Applied in Bourton v Narcea Ltd and Anglo Irish Beef Processors UD 186/1994; Archbold v ESB UD 642/2003. See The Minister for Labour v PMPA Insurance Co Ltd (HC) No 674SS/1985 (1986) 5 JISLL 215; Construction Industry Training Board v Labour Force Ltd [1970] 3 All ER 220; O’Sullivan v Thomson-Coot [1973] 14 KIR 108; and British Industrial Tribunal decisions in Franks v MEP Personnel Ltd (No 20708/77); Bolshaw v The Pentemps Group Ltd (No 10536/ 79); Evans v Rangebray Ltd (No 26793/79); Campbell v Press & Sons Ltd (No 12500/80); Wickers v Champion Employment [1984] ICR 365; since 1993 see McMeechan v Secretary of State for Employment [1995] IRLR 461. According to s 2 of the Protection of Employees (Temporary Agency Workers) Act 2012, the employer is not the employment agency. Dempsey v Grant Shopfitting Ltd [1990] ELR 43. See also Brennan v Mamselle Ltd UD 1028/ 1995; Fallon v Athlone Bowl and Leisure Ltd [1997] ELR 67 (claimant on job placement scheme not an employee); Morey v Rock Foundation [1997] ELR 236. The fact that FÁS had regular ongoing contact with the claimant and provided him with information and help did not mean FÁS was the claimant’s employer: Hyde v Kelleher and FAS [2004] ELR 145.

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of the Unfair Dismissals Act 1977, the protection of the Act is denied to a person a person who is or was employed under a statutory apprenticeship if the dismissal takes place within six months after the commencement of the apprenticeship or within one month after the completion of the apprenticeship. State subsidies of the employment relationship will not negate the status of an employee.

(2) Office-holder [23.09] An office-holder will be eligible to claim if he also works under a contract of employment. There are exceptions to this principle. An important one can arise in the context of trade union officers. In Kenny v Trustees of the Operative Plasterers & Allied Trades Society of Ireland10 the assistant secretary and delegate of a trade union whose post is subject to annual election at the annual general meeting of the relevant branch was held to be an office-holder. The office was permanent and had been in existence for 40 years before the claimant obtained it. Created by the members of the branch in general meeting, it existed for a fixed term of one year from each meeting at which the annual election of officers took place and terminated at the next annual election of officers.

[23.10] The claimant argued that, notwithstanding the existence of the office, he was also employed under a contract of employment for a fixed term of one year; hence s 1(c) of the 1977 Act applied in that the failure of the members of the relevant branch to reelect him was a termination of his contract of employment and therefore constituted a ‘dismissal’ within the meaning of the Act. There are difficulties with such an approach, however. If a failure to re-elect constitutes a dismissal, this places the members at annual conference in the role of ‘employer’ and before deciding not to vote for a candidate they would have to have ‘substantial grounds’ for their decision. Could procedural fairness be observed? Who would defend the decision to dismiss in a subsequent challenge? What about the secrecy of the ballot? In addition, a person taking office on terms of yearly re-election is aware of the uncertainty of continuing in the job. The risk of not being re-elected is voluntarily assumed. [23.11] Not surprisingly, the EAT held that where an office is for a fixed term and at the expiration of this term must be filled by the election of a new officer-holder, s 1(c) of the Act does not apply. The inappropriateness of this was criticised by the EAT, which recommended that such office-holders be re-employed on a permanent basis.

(3) Employer [23.12] The definition of ‘employer’ is as follows: ‘Employer’ in relation to an employee means the person by whom the employee is (or, in the case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014) shall be deemed to be employed by the local authority. 10

Kenny v Trustees of the Operative Plasterers & Allied Trades Society of Ireland UD 14/1990. See [21.05].

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The definition is not explicit regarding what is to happen should the employer die. By interpretation it has been assumed that common law principles apply, ie contract claims enforceable against a person in his lifetime are enforceable against his personal representative after death: Hutton v Major George Phillippi.11

[23.13] A receiver’s obligations have been held to be the same as an employer’s: Lynch v Jim Dwyer Motors Ltd (In receivership).12 Most recently, this point was central to the decision of the Court of Appeal in Brennan v Irish Pride Bakeries,13 considered in Chapter 22. A liquidation on the other hand may mean redundancy: Farrell v Donabate Steelworks Ltd.14 [23.14] It is crucial that the correct employer is named and if in doubt any person or entity likely to have been a claimant’s employer should be named in the proceedings: Kavanagh v PARC.15

(i) Secondment [23.15] A secondment arrangement (ie where an employee is ‘loaned’ temporarily from a general employer to a temporary employer) all too often is poorly documented. It is advisable to agree critical terms in advance of secondment, eg, has the temporary employer disciplinary powers, what is to happen if the temporary employer wishes prematurely to terminate the secondment? The respective employers should lay down their legal liabilities and the employee must be agreeable to the terms of secondment. Although the employers, as between themselves, may determine legal responsibilities, the contractual relationship between the general employer and the employee cannot be affected without the employee’s express agreement. In the absence of agreement, it is the general employer, not the temporary employer, who is the employer for the purpose of unfair dismissal and redundancy payment obligations.16 [23.16] A termination by the temporary employer will not result in liability under unfair dismissals legislation as the contract of employment of the employee is not terminated. The secondment agreement will, however, have terminated. 11

12

13 14

15

16

Hutton v Major George Phillippi UD 291/1980. On the subject of shadow employers see Kimber and Lowry O’Reilly, ‘The Emergence of the Shadow Employer’ (2014) 11 IELJ 75. Lynch v Jim Dwyer Motors Ltd (In receivership) UD 1025/1984; likewise a company under administration: McCarthy v Du Buisson and Sykes UD 325/1990. Brennan v Irish Pride Bakeries [2017] IECA 107; [2017] ELR 181. Farrell v Donabate Steelworks Ltd UD 273/1987. See para [22.43] et seq on the effects of insolvency on the contract of employment. Kavanagh v PARC (1989) 7 ILT (ns) 180; Walsh v Oliver Freaney & Co and Dunnes Stores Ltd [1995] ELR 209. See Daly v Sheehan Security Corporation Ltd UD 481/2005, [24.35]. A claim under equality legislation was allowed against a company that had been struck off: BH v A Named Company (DEC E2006/026) relying on Top Creation v St Albans District Council [1998] BCC 999. Where employer an unincorporated association correct procedure is to name one member of committee as respondent on his own behalf and on behalf of all other members of the executive committee at the relevant time: Affleck v Newcastle Mind [1999] IRLR 405. Cross v Redpath Dorman Long Ltd [1978] ICR 730; Whelan v RTÉ UD 1056/1993.

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[23.17]

[23.17] A secondment arrangement, so styled, may have to be scrutinised carefully by the WRC as the connection between an employee and a temporary employer may be tenuous, with the temporary employer being no more than a paying agent for the real employer. In such cases the WRC will apply the common law tests to determine whether the facts disclose a continuing contract of service between the employee and the real employer, as in Walsh v Oliver Freaney & Co and Dunnes Stores Ltd.17 (ii) Foreign company [23.18] There is no provision excluding a non-Irish national nor is the dismissal by a foreign employer of a non-Irish employee working in Ireland excluded, a sentiment expressed in the first edition of this book and cited with approval by the Circuit Court (Judge Clarke) in Kay v Nobrac Carbon Ltd.18 In the case of employees working for subsidiary companies, the parent company outside the jurisdiction is often the real dismissing authority. In Kay a preliminary point before the court related to who the employer was – Nobrac Carbon Ltd (NC Ltd), an English company, or its wholly owned subsidiary, Irish Carbon Ltd (IC Ltd). The claimant had regarded himself as an employee of the subsidiary and had received his remuneration from it. After his dismissal: ‘he got some doubts about that company’s ability to pay him what might be found to be due to him and before the Employment Appeals Tribunal he opted to take his award against [NC Ltd].’

The judge regarded some correspondence, in particular the letter terminating the employee’s contract, as stamped with the authority and decision of NC Ltd. He considered IC Ltd had been a cipher, not a decision-making entity. It was dealt with by NC Ltd as a department of its business enterprise: ‘a mere agent or conduit-pipe for their decisions.’

[23.19] Clarke J cited company law principles to endorse the view that there is no reason why a company should not act as an agent of its shareholders. He applied six relevant questions formulated by Atkinson J in Smith v Birmingham Corporation,19 namely: (i) (ii) (iii) (iv)

17

18

19

were the profits treated as those of the parent company? were the persons conducting the business appointed by the parent company? was the parent company the head and brain of the trading venture? did the parent company govern the adventure and decide what should be done and what capital should be embarked on it?

Walsh v Oliver Freaney & Co and Dunnes Stores Ltd [1995] ELR 209. See too Fitton v City of Edinburgh Council UKEATS/0010/07/MT. On the potential interrelationship between secondment and transfer of undertakings law: Celtec Ltd v Astley [2006] IRLR 635, para [18.31]. Kay v Nobrac Carbon Ltd (18 December 1985) CC. See more recently (albeit in the context of the Employment Equality Act 1998) the judgment of the High Court (Clarke J) in Whooley v Millipore Ireland BV [2010] IEHC 314. Smith v Birmingham Corporation [1939] 4 All ER 16.

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[23.22]

were the profits made by its skill and direction? was the parent company in effectual and constant control?

To all of these in the case before the court, the answer was ‘Yes’. NC Ltd was therefore held to be the employer for purposes of the 1977 Act. The case has implications for constructive dismissal also, as an employee’s grievance should be put before the ‘real’ employer. The case illustrates that a person’s employer is not necessarily the person who is paying the salary.

B.

CONTINUITY OF SERVICE

(1) Length of service and hours normally worked [23.20] With stated exceptions, an employee must have at least 52 weeks’ continuous service with the employer before he can claim unfair dismissal.20 ‘Continuous service’ is calculated by reference to the First Schedule to the Minimum Notice and Terms of Employment Act 1973, as amended. In general the WRC takes a generous view regarding continuity. Continuity involves both length of service and the number of hours normally worked per week. Fifty-two weeks means that if, say, the year begins on 1 January it ends on 31 December the following year, not on the anniversary of the first day. [23.21] There are various exceptions to the requirement to have continuous service with the dismissing employer: employees dismissed for trade union membership or activity;21 employees dismissed for pregnancy, maternity, or matters connected therewith;22 employees dismissed for the exercise or proposed exercise of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act; employees dismissed for exercising their rights to parental or force majeure leave;23 employees dismissed for exercising their rights to adoptive leave;24 employees dismissed for exercising their rights under the National Minimum Wage Act 2000; employees dismissed for exercising their rights to carer’s leave, and employees whose dismissal results from them having made a protected disclosure25 under the Protected Disclosures Act 2014. [23.22] Previously it had been thought that employees whose dismissal results wholly or mainly from ‘penalisation’ as referred to in the Safety, Health and Welfare at Work Act 2005 were exempted from the requirement of 12 months’ continuous service, 20

21 22 23 24 25

Unfair Dismissals Act 1977, s 2(1)(a) as amended. See Brennan v Religious of the Sacred Heart [2000] ELR 297; Pacitti Jones v O’Brien [2005] CSIH 56; and Kenny v Tegral Building Products Ltd [2006] ELR 309. See too Sarkatzis Herrero v Instituto Madrileño de la Salud [2006] IRLR 298; continuity for seniority and other contractual purposes runs from date employee is hired rather than date she is able to take up her duties. Unfair Dismissals (Amendment) Act 1993, s 14. Unfair Dismissals Act 1977, s 6(2A) inserted Maternity Protection Act 1994, s 38(5). Parental Leave Act 1998, s 25(2). Adoptive Leave Act 1995, s 25. Protected Disclosures Act 2014, s 11(1)(c).

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however the decision of Hedigan J in Sharma v Employment Appeals Tribunal26 changed this position. This decision confirmed that employees whose dismissal results wholly or mainly from ‘penalisation’, as referred to in s 27(2)(a) of the Safety, Health and Welfare at Work Act 2005, must have one year’s continuous service if they wish to bring a complaint under the Unfair Dismissals legislation. The decision did distinguish, however, that there was no service requirement on employees presenting complaints to an Adjudication Officer under s 28(1) of the 2005 Act.

[23.23] Under para 8 of the Schedule to the Act of 1973, an employee must have been normally expected to work for at least 18 hours a week. This must now be read in the light of the Protection of Employees (Part-Time Work) Act 2001, considered below. [23.24] The Worker Protection (Regular Part-time Employees) Act 1991 extended the provisions of unfair dismissals legislation to employees who were normally expected to work not less than eight hours per week for an employer and who had been in the continuous service of the employer for not less than 13 weeks. The European Commission utilised the procedure agreed under the Treaty on European Union (which then excluded the United Kingdom) and in 1997 entered into ‘A Framework Agreement’ between the Union of Industrial and Employers’ Confederation of Europe (UNICE) and the European Trades Union Confederation (ETUC) and the European Centre of Enterprises with Public Participation (CEEP). This agreement was later adopted as Directive 97/81/EC and was extended to the UK by Directive 98/29/EC. The Directive is transposed into Irish law by the Protection of Employees (Part-Time Work) Act 2001. It repealed the Worker Protection (Regular Part-Time Employees) Act 1991. ‘Part-time employee’ is defined in in s 7 to mean: an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her.

Under s 8, the Unfair Dismissals Act shall apply to a part-time employee in the same manner as it does to an employee to whom the Act relates. The basic principle is set out in s 9: a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

[23.25] The exceptions to the requirement of continuity in the 1977 Act apply irrespective of the number of hours worked per week. Hence, a worker within the excepted categories, eg a part-time employee or any female employee, acquires the right to challenge dismissal, say for pregnancy, at any time following commencement of his or her contract of employment. [23.26] The method of computing length of service has been challenged in a number of cases, most notably those involving seasonal work. In Slevin v Edenderry Swimming Pool Ltd27 the respondent contended that the employee worked only from April to September/October each year. He would sign on at the labour exchange when not working. Following the appointment of a new committee, his position was advertised. 26 27

Sharma v Employment Appeals Tribunal [2010] ELR 262. Slevin v Edenderry Swimming Pool Ltd UD 180/1989.

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[23.29]

[23.27] The claimant was not selected, although he applied for the post. The claimant told the EAT that he had been told that he was ‘permanently employed with seasonal lay-off’. He cleaned the pool and held the keys during the period. The EAT ruled unanimously that the claimant lacked continuity.28 Similarly, a caretaker/assistant employed at a school from September to June each year was held to lack continuity of service: Uzunov v Board of Management of Coolmine Community School.29

[23.28] An employee’s holiday entitlement cannot be added to a period of service in order to qualify for a statutory unfair dismissal claim: Maher v B & I Line.30 However in appropriate circumstances the notice to which an employee is entitled when added to actual service may result in the employee acquiring the requisite continuity of service.31 Where it is alleged as a preliminary point that an employee lacks continuity and entitlement to notice is germane, the WRC will have to hear the full case reserving its determination on the preliminary point as the evidence may disclose that the employer had a right to terminate the employee’s contract without notice.32

(2) The First Schedule [23.29] The First Schedule of the 1973 Act (as amended) provides that service shall be deemed to be continuous unless it is terminated either by the dismissal of the employee by his employer or the employee voluntarily leaving his employment.33 A lock-out does not constitute ‘a dismissal’ nor does a lay-off amount to a termination by an employer of an employee’s service.34 A strike does not amount to an employee’s voluntarily leaving employment,35 but if in any week or part of a week an employee is absent from employment because he was taking part in a strike in relation to the trade or business ‘in which he is employed’, that week shall not count as a period of service.36 The contrary applies to absence on account of lock-out,37 or on account of strike or lock-out in a trade or business other than that in which the person is employed.38 Continuity is preserved. 28

29 30 31 32 33 34

35 36 37 38

Contrast McGuirk v WP Keeling & Sons Ltd UD 325/1985 (failure to re-employ seasonal worker held to constitute dismissal). See also, in the context of the Protection of Employees (Fixed-Term Work) Act 2003, the decision of the Labour Court in Beary v Revenue Commissioners [2011] ELR 137. Uzunov v Board of Management of Coolmine Community School UD 1147/1992. Maher v B & I Line UD 271/1978. See ‘date of dismissal’, para [22.59] et seq. As in O’Neill v Bank of Ireland [1993] ELR 145. Paragraph 1; eg Oakes v Lynch UD 214/1978. Paragraphs 2 and 3; in the case of disputed lay-off, all the facts will be analysed to distinguish between lay-off and termination: see Barr and Fallon v Blood Transfusion Service Board UD 313 and 341/1986 and contrast Daly v Wessel Cable Ltd UD 651/1986. Continuity of service was held to have been preserved where there was an ongoing and structured method over time of laying off and calling back employees: Kilgannon and Hegarty v Peamount Hospital UD 722 and 723/1987. Paragraph 4. Paragraph 11. Paragraph 12. Paragraph 13.

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[23.30] An employee who claims and receives redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his employment.39 [23.31] The continuous service of an employee is not broken by his dismissal ‘followed by the immediate re-employment of the employee’.40 The word ‘immediate’ is not literally construed. The space of one week between dismissal and re-employment made the latter ‘immediate’ in Howard v Breton Ltd.41 But a break of four months between two periods of employment interrupted continuity in Myles v O’Kane.42 In the Unfair Dismissals Act ‘re-employment’ has a particular meaning and is to be distinguished from ‘reinstatement’.43 [23.32] If an employee is absent from his employment for not more than 26 weeks between consecutive periods of employment because of: (a) a lay-off; (b) sickness or injury; or (c) by agreement with his employer such period shall count as a period of service.44 To keep a person’s job open will be tantamount to agreement with the employer to be absent, as the EAT found in Regan v Rossview Ltd.45 The EAT found on the balance of probabilities that when the claimant told her employer she wanted to work in Germany she was told her job would be kept for her until she returned.

(3) Temporary employees on successive fixed-term contracts [23.33] Temporary employees are protected against unfair dismissal46 unless they fall within the category of employees whose contracts are terminated under s 2(2)(b) of the 1977 Act and who have signed a waiver of rights. An important amendment regarding temporary fixed-term contracts was introduced in 1993. Section 3 of the Unfair Dismissals (Amendment) Act 1993 amended s 2 of the 1977 Act. The amendment was intended to deal with temporary contracts entered into for less than 52 weeks, followed by a second or subsequent contract (generally after a short absence) also for a term which fell short of 52 weeks. If the entry by the employer into the subsequent contract 39 40 41

42

43 44

45 46

Paragraph 5. Paragraph 6. Howard v Breton Ltd UD 486/1984. Contrast Mulhall & Sons Builders v Dunphy UD 710/ 1981 (break of a similar length held to rupture continuity). Myles v O’Kane [1991] ELR 181. In Kenny v Tegral Building Products Ltd UD 837/2004 a break of three weeks and three days did not break continuity. Section 7(1)(a) and (b). Paragraph 10. As Kerr observes in his commentary on Termination of Employment Statutes (5th edn, 2016) at AB.153 the converse situation, namely periods of absence in excess of 26 weeks because of lay off, sickness, injury or by agreement, is not explicitly dealt with. Semble they are not computable, but is the whole of the period to be discounted or only that which exceeds the 26 weeks? O’Flaherty v Rowntree Mackintosh (Ireland) Ltd M4140/1987 took the former view, but that is not regarded as the better one. Regan v Rossview Ltd UD 636/1991. Sinclair v City of Dublin Vocational Education Committee UD 349/1986.

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[23.37]

was wholly or partly to avoid liability for unfair dismissal – in the opinion of the adjudication officer or the Labour Court, as the case may be – then the term of the prior contract and of any antecedent contracts is added to that of the subsequent contract and the period so ascertained is deemed to be one of continuous service. The amended Act requires: first that the re-employment must take place within three months of the expiry of the prior contract; the nature of the employment must be the same or similar; the employer must be the same; and the dismissal complained of must consist only of the expiry of the term of the subsequent contract.

[23.34] The amendment will not apply if dismissal occurs within the term of the subsequent contract. If the term of the subsequent contract exceeds 52 weeks, it will be difficult for the relevant authorities to conclude that the employer’s purpose was to avoid liability. As a result of the amendment, employees on temporary contracts are sometimes given ‘three months’ holidays’ between contracts. [23.35] The amendment is a proviso to s 2(2)(b) of the 1977 Act. Section 2(2)(b) relates to temporary contracts for a fixed-term or specified purpose47 which are in writing, signed by or on behalf of the employer and by the employee and which provide that the 1977 Act shall not apply to a dismissal consisting only of the expiry of the term or cesser of the purpose. Such temporary contracts are outside the jurisdiction of the Act. The Oireachtas in 1993 attempted to bring fixed-term contracts back in again provided the requirements above were met. The proviso begins: ‘Provided that where, following dismissal consisting only of the expiry of the term of a contract of employment such as aforesaid ...’. (emphasis added).

[23.36] The contract ‘aforesaid’ is a temporary contract for a fixed term (note: not for a specified purpose) in writing, containing a waiver. A temporary contract without a waiver is not the target of the amending legislation. But this does not mean that an employer could offer a series of fixed-term contracts to employees (without waiver) with (or without) absences in between and avoid liability.

(4) Dismissal followed by re-employment within 26 weeks [23.37] Dismissal, other than a dismissal covered by the proviso, of an employee followed by his re-employment by the same employer not later than 26 weeks afterwards will not break continuity of service if the dismissal was wholly or partly for or was connected with the purposes of avoiding liability under the 1977 Act.48 The ‘dismissal’ here relates to termination of the prior contract and, if it was for a period in excess of 52 weeks or was open ended and had lasted in excess of such a period, it will be difficult to establish a motive of avoidance. In contrast to the proviso, the test here seems to be more demanding. It will not be a question of opinion, but a finding of fact. 47

48

See further para [21.03]. The Protection of Employees (Fixed-Term Work) Act 2003 provides that where a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which the Act was passed (14 July 2003), the aggregate duration of such contracts cannot exceed four years unless there are objective grounds for renewal. Unfair Dismissals Act 1977, s 2(5) inserted by s 3(c) of the Amending Act 1993.

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(5) Transfer of undertaking [23.38] An important amendment to the First Schedule to the Minimum Notice and Terms of Employment Act 1973 was added by the 1993 Act which amended the Unfair Dismissals Act.49 Under the new paragraph, the transfer of the whole or part of a trade, business or undertaking to another person will not operate to break the continuity of service of the employee and his service before the transfer in the trade, business or undertaking will be reckoned as part of his service with the transferee. This followed from Council Directive No 77/187/EEC first transposed into Irish law as the European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) Regulations 1980 and currently the European Communities (Protection of Employees on Transfer of Undertakings) Regulations.50 However, the amendment continues by providing an exception: unless the employee received and retained redundancy payment from the transferor at the time of and by reason of the transfer.

[23.39] The amendment will cease to have effect if an employee hands back the redundancy payment to his employer and it is a moot question whether the phrase ‘redundancy payment’ covers an ex gratia payment paid by an employer on the occasion of a termination described as a redundancy. ‘Redundancy payment’ is a statutory phrase, first used in the Redundancy Payments Act 1967.

[23.40] A further question may be asked. Is there a ‘redundancy’ on the facts? ‘Redundancy’ is a creature of statute, defined in s 7(2) of the 1967 Act, as amended. Redundancy may be used artificially in the circumstances of a transfer.51 The whole purpose of the 2003 Regulations is to preserve employment rights, including continuity. If the circumstances reveal that jobs continue with the transferee it is difficult to see how redundancy could have any place in the scheme of things. If an employee wished to pursue a claim for constructive dismissal against the transferee, it is arguably open to him to contend that the moneys he received and retained at the time of the transfer were on account of the transfer but were not ‘redundancy’ moneys.

[23.41] A transferor employer who pays redundancy payments will not escape potential liability under unfair dismissals legislation. Regulation 5(3)52 of the Transfer Regulations 2003 provides: If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

The paragraph fails to specify the party by whom the contract or relationship of employment might be terminated. Would the transferor employer, who had terminated relevant contracts and paid redundancy moneys, become a target for legal action in the event of a transfer being unacceptable to the employees concerned? The best view seems 49 50 51 52

Section 15, substituting new para 7. SI 131/2003. See the EAT’s comments in Brett v Niall Collins Ltd [1995] ELR 69. See further Ch 18.

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[23.43]

to be that it would not and that the respondent in such proceedings would be the transferee as the paragraph most probably refers to a constructive termination or dismissal by the employee ‘because’ the transfer involved a substantial change in working conditions. An employee wishing to assert the Regulations before the WRC would probably have no option but to hand back whatever ‘redundancy payment’ had already been received.

[23.42] The meaning of a ‘transfer’ was considered by the High Court in Nova Colour Graphic Supplies Ltd.53 Barron J expressed the view that there is no ‘hard and fast rule’. This has been borne out by decisions relating to the 1980 Regulations and the definition of ‘transfer’ in Council Directive 2001/23/EC repeated in the European Communities (Protection of Employees on Transfer of Undertakings) Regulations (SI 131/2003) merely consolidates these decisions. See further para [18.45].

(6) Illegality [23.43] A contract tainted with illegality is unenforceable. Most cases involving illegality are about non-payment of tax and PRSI. Continuity is one of the most difficult aspects of illegality in so far as it affects the contract of employment. Suppose an employee receives and accepts a Christmas bonus which is untaxed, knowing it to be untaxed. Does this illegality taint the entire contract continuously from then on?54 It does not affect the consideration for the work. It has seemed less unjust to turn away a claimant who is receiving untaxed weekly payments or bonuses, than a claimant in receipt of a yearly, or once-off untaxed payment. In Kyne v Irish Grain Board Ltd (In receivership)55 the employee received a significant cheque payment from the company. The cheque was co-signed by him. He gave evidence that he understood it to be moneys owed to him on account under his contract of employment. He received a letter from the receiver referring to the cheque and stating that no deduction for income tax had been made. The claimant agreed the cheque had been paid gross. The EAT held that this 53 54

55

Nova Colour Graphic Supplies Ltd [1987] IR 426. In St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267 at 288, it was questioned ‘whether public policy is well served by driving from the seat of judgment everyone who has been guilty of a minor transgression’. See Colen v Cebrian (UK) Ltd [2004] IRLR 210; stopping litigation on grounds contract illegal does not contravene Art 6 ECHR: not a ‘procedural’ bar such as to engage art 6: Soteriou v Ultrachem Ltd [2004] IRLR 870; see Redmond, ‘Illegality and the Contract of Employment’ (1987) 6 JISLL 17. But see, more recently, Hounga v Allen [2014] 1 WLR 2889; Patel v Murza [2017] AC 467; and Bogg and Green, ‘Rights Are Not Just for the Virtuous: What Hounga Means for the Illegality Defence in the Discrimination Torts’ (2015) 44 ILJ 101. In Quinn v IBRC Ltd [2015] IESC 29 at [7] et seq, Clarke J held that the proper approach to illegality is ‘statute specific but not case specific’. See paras [11.02] and [15.48]. Kyne v Irish Grain Board Ltd (In receivership) UD 366/1985. See Collins v Geo O’Dwyer UD 746/1986; Hayden Sean Quinn Properties Ltd [1991] ELR 45; Soterion v Urtrachem Ltd [2004] IRLR 871. See Dubyna v Hourican Hygiene Services Ltd T/A Master Clean Services UD 781/2004 on illegality in the context of Employment Permits legislation, distinguished in light of the altered statutory regime in Dooky v Baxter Storey Ireland Limited [2012] ELR 336, para [15.45] et seq.

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once-off payment, which the claimant in his evidence believed to be moneys owed to him by his employer under his contract of employment, did not taint the contract.

[23.44] The decision is probably best placed alongside other determinations wherein the EAT admitted a claim notwithstanding illegality where the employee contended ignorance or innocence of the wrong. A term of the contract of employment which perpetrates a fraud on the Revenue cannot be severed from the whole on grounds of public policy notwithstanding that its removal would not have altered the substance of the contract. [23.45] This established principle was applied by the British EAT in Hyland v J H Barker (North-West) Ltd.56 In May 1982 the employee was asked by the contracts manager to go and work for a short period at another site. It was agreed that while there he would receive a tax-free lodging allowance in addition to his weekly wage even though he would in fact travel daily from his home to the site by means of a vehicle hired at the company’s expense. When his employment was terminated in May 1983 the employee made a complaint of unfair dismissal. The industrial tribunal held that he did not have the requisite period of continuous service for making a complaint. The period at the other site did not count as part of his continuous employment. Thus he had not been continuously employed for one year, the period then needed in Britain to qualify for unfair dismissal protection. [23.46] On appeal it was argued for the appellant that the agreement to pay the lodging allowance was a collateral one which should be severed and set apart from the contract of employment. The EAT dismissed the appeal, and rejected the argument. [23.47] It held that the phrase ‘continuously employed’ in s 64(1)(a) of the Employment Protection (Consolidation) Act 1978 means continuously employed under a legal contract of employment. If a contract is an illegal one, and for a period of time is such as to affect the statutory continuity of employment, then for that period the contract cannot be relied on and the necessary continuity of legal employment is not established. The employee’s severance argument was not accepted. The Tribunal cited Miller v Karlinski and Napier v National Business Agency Ltd57 as authority for rejecting any attempt to sever the illegal part of a contract from the rest of the contract. It would not be accepted that there were two separate agreements supported by two separate documents and the payment of the tax-free lodging allowance was not part of the appellant’s wages. [23.48] The amending Act in 1993 introduced two new paras in s 8 of the Unfair Dismissals Act 1977. Paragraph 11 provides: Where ... a term or condition of the contract of employment concerned contravened any provision of or made under the Income Tax Acts or the [Social Welfare (Consolidation) Acts 2005], the employee shall, notwithstanding the contravention, be entitled to redress under this Act, in respect of the dismissal.

Paragraph 12 makes it mandatory on the WRC to refer the matter to the Revenue Commissioners or the Department dealing with Social Welfare where it is shown that a 56 57

Hyland v J H Barker (North-West) Ltd [1985] IRLR 403. Miller v Karlinski [1945] 62 TLR 85 and Napier v National Business Agency Ltd [1951] 2 All ER 264.

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term or condition of a contract of employment contravened the Acts aforesaid. The phrase in para 11 ‘shall ... be entitled to redress’ refers to remedy and does not address the effect of illegality or continuity of employment. It could be suggested that effect cannot be given to para 11 unless such claims are admitted for continuity purposes (bearing in mind that culpability, if any, can be adjudged by the Revenue or social welfare authorities, as appropriate, under the new para 12). But to interpret para 11 as having this effect, reversing established legal authority sub silentio, is to read into the text something the Oireachtas did not say (and could have said, had it so wished).58 This interpretation would exclude employees who have continually received their salary in a way involving some breach of revenue and social welfare law but would include an employee who received a cash bonus at some time before a period of 52 continuous weeks preceding his dismissal.

C.

EXCLUSIONS

(1) Types of employee [23.49] An employee qualified in terms of continuous service may be excluded if he falls into any one of the categories set out in s 2(1) of the 1977 Act as amended by the 1993 Act: (i)

employees who on or before the date of dismissal have reached the normal retiring age for employees of the same employer in similar employment or who on that date had not attained the age of 16 years;59

(ii)

persons employed by a close relative or spouse/civil partner in a private house or on a farm where both reside;60

(iii)

members of the Defence Forces and of the Garda Síochána;

(iv)

FÁS trainees and apprentices;

(v)

persons employed by or under the State who are dismissed by the Government;61

(vi)

managers of a local authority for purposes of the Local Government Act 2001, s 144 (as amended by the Local Government Reform Act 2014);

(vii)

the director general of the Health Services Executive for purposes of the Health Act 2004, s 17;

(viii)

the chief executive officer of the Child and Family Agency appointed under s 28 of the Child and Family Agency Act 2013.

58 59 60

61

Kerr, Termination of Employment Statutes (5th edn, Round Hall, 2016) at JB.136. Employment Equality Act 1998, s 4. Dáil Debates, Vol 294, cols 489–92 (23 November 1976). An opposition amendment to exclude small employments of less than 5 persons was not agreed to; ibid, cols 492–8. Civil Service Regulation (Amendment) Act 2005, s 2. See Redmond, ‘Accountability and Dismissal in Ireland’s Civil Service’ (2005) 2 IELJ 114; Redmond, ‘Major change in employment law on way for civil service’ (May 2005) Public Affairs Ireland 22; and Redmond, ‘The New Civil Service Disciplinary Code’ (2007) 4(2) IELJ 42. The Act was brought into effect by SI 363/2006; SI 355/2006 and SI 763/2006.

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[23.50] Much discussion during the parliamentary debates on the draft Unfair Dismissals Bill concerned excluded and special categories of applicants. Some excluded categories were and are already covered by other statutory provisions, eg members of the Defence Forces and of the Garda Síochána. In recent years the tendency has been to extend the scope of the Act and to decrease the exceptions thereto. [23.51] A notable example, since 2006, is the inclusion of civil servants within the scope of the Act. Part 6 of the Civil Service Regulation (Amendment) Act 2005 applies the statutory code of unfair dismissal to thousands of officers whose remedies theretofore lay exclusively in public law. The 2005 Act extended the application of the 1977 Act to civil servants other than those who are dismissed by the Government. While preserving the principle that civil servants hold office at the will and pleasure of the Government, the Act provides for the delegation of power in this respect from the Government to Ministers and to Secretaries General.

[23.52] Section 22 inserts a new s 2A into the Unfair Dismissals Act which provides that an ‘employee’ under the Act of 1977 ‘shall be construed as including a civil servant who held office in the Civil Service of the Government or in the Civil Service of the State’. Reference to an ‘employer’ ‘shall be construed as including the State, a Minister of the Government, a Department ...’. The contract of employment shall mean ‘such arrangements as are made by the Minister for Finance under section 17 of the Civil Service Regulation Act 1956 …’. (i) Normal retiring age [23.53] There is no single fixed retirement age for employees in Ireland. Some contracts have a mandatory retirement age and they may also allow for earlier retirement. The usual retirement age in contracts of employment is 65. Many have provision for early retirement from age 60 or in some cases from age 55. There may also be a statutory retirement age. The retirement age in the public sector for those who joined before 1 April 2004 is 65 years. Some occupations such as firefighters have provision for earlier retirement. For those who joined the public service after 1 April 2004 but before 1 January 2013, the minimum retirement age is now 65. New entrants to the public service will not have to retire at 65 but can continue working, subject to suitability and health requirements. However, for those new entrants who join after 1 January 2013, the minimum retirement age is 66 and the maximum retirement age is 70. If a contract contains no ‘normal retiring age’ for an employee the Tribunal will look at the normal retiring age of employees of the same employer in similar employment. [23.54] If there is a ‘normal retiring age’62 that will be the relevant age for the exclusion. In Cole v Press O Matric Ltd63 the respondent told the EAT that its employment ended at age 65, as required by the pension scheme. Another employee had sought and been granted an extension from the time he reached 65 to the following 62 63

Delaney v Electrical Contractors Safety Standards Association Ltd UD 1322/2003. Cole v Press O Matric Ltd UD 678/1992. See also O’Neill v Breffni Proteins Ltd UD 78/1981; Stenson v Fluid Dynamics UD 251/1978; Delaney v Electrical Contractors Safety Standards Association Ltd UD 1322/2003; Gallagher v Robert Smyth & Sons Ltd UD 1063/2004; Raymond v Dennis UD 1149/2005; O’Mahony v McCarthy [2014] IEHC 682 (White J).

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Christmas. The claimant, prior to reaching 65, had requested an extension of six months until Christmas 1992. His evidence was that this was rejected ‘on the spot in colourful terms’. He said he only became aware that 65 was the retirement age after the other employee had left. The EAT found in favour of the claimant.

[23.55] In Donegal County Council v Porter and Ors64 all four employees were employed as part-time retained firemen. They were dismissed on the date each one of them respectively attained the age of 55 years. They challenged their dismissal under the 1977 Act. The EAT upheld their contentions but its determination was reversed by the Circuit Court. The matter came on appeal before the High Court.

[23.56] Both sides agreed on one central fact, namely, that when the employees joined, beginning in 1960, there was no formal written contract in use and no reference to a specific date of retirement. The employees contended that it was an accepted fact by senior council officials that if they were capable of performing their duties and did in fact perform them they were entitled to look forward to service with the council up to the age of 60. This was not seriously contested and Flood J found it to be a fact. [23.57] During the 1970s the policy of the county council and other fire authorities began to change in favour of compulsory retirement at age 55 for firemen. Firemen engaged in the 1980s had these terms incorporated in a written contract. The county council argued in favour of a retirement age of 55 because the task of firemen had become more hazardous and stressful. They required employees who were more agile and flexible. In December 1985, a directive issued from the Department of the Environment recommending: (a) (b)

introduction of retirement at age 55; and compulsory annual medical examination on a uniform basis for all operational personnel.

The circular contemplated a transitional period of two years from 1 January 1986. The impugned dismissals arose from its implementation.

[23.58] The High Court (Flood J) was satisfied that each employee was employed on the basis of an expectation that, all things being equal, he would continue in the fire brigade service until 60 years. Nothing had occurred in the intervening years to alter that state of affairs by consent. That was the ‘normal retiring age’, not the age of 55. The attempt to force the firemen into retirement at 55 was an attempt to alter their contractual situation unilaterally and the court found that there was no lawful way in which it could be justified. The same issue has arisen in several other county councils. Where relevant to the circumstances, Porter was followed.65 64

65

Donegal County Council v Porter and Ors [1993] ELR 101. See Wall v British Compressed Air Society [2004] IRLR 147, where an employee was in a unique position with a contractual retiring age, that is normal retiring age; and Royal & Sun Alliance Group v Payne [2005] IRLR 848, there was a difference between the normal retiring age and the contractual retiring age. Eg Tipperary (North Riding) County Council v Doyle [1996] ELR 93; Tipperary (North Riding) County Council v Treacy [1996] ELR 4; Greenan v Cavan County Council UD 1000/ 1995; Scally v Westmeath County Council UD 304/1994; Bredin v Donegal County Council [1992] ELR 222; Ahearne v Tipperary SR County Council UD 664/1997.

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[23.59] Section 14 of the Unfair Dismissals (Amendment) Act 1993 provides that the exclusion as to normal retirement age does not apply where dismissal is for trade union membership or activity.

(ii) Members of the defence forces [23.60] The meaning of ‘a member of the defence forces’ was considered in Martin v Permanent Defence Force Other Ranks Representative Association.66 The claimant was employed as general secretary of the respondent. Prior to his secondment to the respondent he was a warrant officer in the naval section of the defence forces and remained at all times under the control of the Minister for Defence. While on secondment to the respondent the claimant received his military pay as a warrant officer in addition to his salary as general secretary and, on occasions, he wore his military uniform. It was also a condition that the person to be appointed to the position of general secretary would be a serving member of the defence forces. It was therefore contended that the claimant was at all times a member of the defence forces, a category excluded under the 1977 Act.

[23.61] The claimant contended that while on secondment he was not a member of the defence forces. He worked full-time as general secretary and was precluded by the constitution of the respondent from holding another position. His contract with the respondent, he argued, impliedly endorsed this view as it contained a waiver of liability under the 1977 Act.

[23.62] The EAT found that it lacked jurisdiction to entertain the claim as the position of general secretary was ‘so integrated into employment in the Defence Forces that it is impossible to separate the two’. It could have arrived at the same conclusion as against the respondent by regarding termination of the secondment arrangement as just that, rather than as a dismissal. When such a secondment arrangement terminates, the ‘real’ employer resumes responsibility for the employee and the contract of employment with that employer becomes active once more.

(iii) Persons employed by or under the State who were dismissed by the Government [23.63] The phrase ‘persons employed by or under the State’ was considered in several cases in the past67 but the critical qualifier since the Civil Service Regulation (Amendment) Act 2005 is that such persons must have been dismissed by the Government. This relates to the very small category of civil servants who are appointed by the Government. 66

67

Martin v Permanent Defence Force Other Ranks Representative Association [1995] ELR 158. On secondment see para [23.15] above. Hayes & Caffrey v B & I Line UD 192/1979; O’Loughlin v Minister for Social Welfare [1958] IR 1; Central Bank of Ireland v Gildea [1997] ELR 238.

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(iv) Managers for a local authority for the purposes of the Local Authority Act 2001, s 144 [23.64] Chapter 2 of the Local Authority Act 2001, s 144 deals with the position of manager. For every county and city subs (1) provides that there shall be a manager who holds office under the relevant county council or city council. The position of manager is an office to which the Local Authorities (Officers and Employees) Act 1926 applies. (v) Officers of a vocational education committee established by the Vocational Education Act 1930 [23.65] Vocational education committees (now replaced by Education and Training Boards)68 were set up as bodies corporate with perpetual succession with the duty to supply or aid the supply of technical education in their area and to establish and maintain a suitable system of continuing education in the area. Non-officers are covered. [23.66] In Phipps v South Western Area Health Board69 the EAT held that a permanent officer of the Board could not bring an unfair dismissal application in respect of the termination of the temporary clerical employment she had obtained with the Board while on a career break. The Circuit Court (Judge Lindsay) upheld this determination.70

(vi) The chief executive officer of the Health Service Executive for the purposes of s 17 of the Health Act 2004 [23.67] The Health Act 2004 established the Health Service Executive and provided for the dissolution of the various Health Authorities and Boards established under the Health Act 1970. Under s 17 the appointed members of the Board of the Health Service Executive are empowered to appoint a person recruited in accordance with the Public Service Management (Recruitment and Appointments) Act 2004 to be the chief executive officer. A person holding such office does so on terms and conditions determined by the Board with the approval of the Minister for Health and the consent of the Minister for Finance. (vii) Employees on probation or training [23.68] Employees serving a period of probation or training are dealt with in s 3(1) of the 1977 Act.71 The Act does not apply to the dismissal of an employee during a period at the commencement of employment when he is on probation or undergoing training if the contract is in writing and the duration of probation or training is one year or less and 68 69 70

71

See Education and Training Boards Act 2013. Phipps v South Western Area Health Board UD 232/2003. See Hanly v County Mayo VEC [1999] ELR 10 re whether part-time teacher an officer or servant of a VEC and comment (2005) 2 IELJ 154. See also O’Farrell v Dublin VEC UD 114/ 2012. See Dáil Debates, Vol 295, cols 174–83 (8 December 1976); also, Vol 297, cols 593–600 (2 March 1977). Also Stevenson v Dalton Secondary & Preparatory Schools UD 10/1978; Fleming v Athlone Manufacturing Co Ltd UD 148/1978; Marsh v UCD UD 27/1977; Doyle v Nitrigin Éireann Teo UD 148/1978.

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is specified in the contract. The Act (s 3(2)) also excludes dismissal during training for qualification or registration as a nurse, pharmacist, health inspector, medical laboratory technician, occupational therapist, physiotherapist, speech therapist, radiographer or social worker.

[23.69] Employers should be aware of the implications of making an offer of employment ‘subject to a probationary period of x months’. Such an offer, if accepted, constitutes an offer for a fixed term with the consequence that any termination prior to the expiry of probation would lead to a common law claim for payment of the unexpired amount. A probation clause should be so worded as to allow for termination within the probationary period (a ‘break clause’). [23.70] Section 3 does not apply to a person dismissed for trade union membership or activity, to an employee dismissed on grounds of maternity, pregnancy or matters related therewith, nor to an employee dismissed for exercising the right to adoptive leave or parental leave or employees dismissed for having made a protected disclosure. (vi) Statutory apprentices [23.71] Persons engaged under a statutory apprenticeship in an industrial activity designated by SOLAS within the meaning of the Industrial Training Act 1967 are covered except in the circumstances outlined in s 4: during (i) the six months after commencement of the apprenticeship and (ii) the period of one month following completion of the apprenticeship.72 [23.72] In Boal v IMED Ireland Ltd73 the employee was employed by the respondent from 1987 to 1993 when he alleged he was unfairly dismissed. The employer counterclaimed that the employee was employed under a statutory apprenticeship and that his employment was properly and fairly terminated within one month after the completion of the apprenticeship. Therefore, relying on s 4, it was contended that the EAT lacked jurisdiction. The evidence showed that subsequent to the commencement of his employment the claimant had signed a contract of apprenticeship in 1989 and that the apprenticeship was 72

73

Dáil Debates vol 295, cols 183–88 (8 December 1976); Ibid, Vol 296, cols 50–58 (25 January 1977); Ibid, Vol 297, cols 601–2 (2 March 1977); s 4 Unfair Dismissals Act 1977. In Carroll v Ryan UD 488/1994 the EAT dismissed a claim by a solicitor’s apprentice whose employment ended at the termination of his apprenticeship. It said ‘The general effect of the exclusion provision in the Unfair Dismissals Act [s 4] is based on the common understanding in industry that an apprentice is taken for a specified period to be trained and is not entitled as of right, at the end of that period of training, to receive a new contract of employment of a different nature.’ On SOLAS, see the Further Education and Training Act 2013. Boal v IMED Ireland Ltd UD 327/1994; similarly Drury v Goodhill Ltd UD 502/1991; O’Callaghan v Denis Mahony Ltd UD 117/1979; Quinn v Ken David Ltd UD 264/1979; Farell v J B Brian Motors t/a Belgard Motors UD 341/1987. In Kenny v Tegral Building Products Ltd UD 837/2004 the claimant was re-employed three weeks and three days after termination of his apprenticeship. His re-employment was on a fixed-term contract, extended on a week-to-week basis lasting no more than seven months approximately. The EAT regarded this as an avoidance of liability. It found the claimant’s service continuous from the date of commencement of the apprenticeship.

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registered with FÁS. The termination of his employment occurred within one month of the apprenticeship being completed. The EAT unanimously ruled that the contention that the claimant’s dismissal came within s 4 had not been refuted by the evidence.

[23.73] Section 4 does not apply to a person dismissed for trade union membership or activities, to an employee dismissed on the grounds of maternity, pregnancy or matters related therewith, nor to an employee dismissed for exercising the right to adoptive leave or parental leave, nor an employee dismissed for having made a protected disclosure. [23.74] The Industrial Training Act 1967, s 27(5)(c) provides that where apprenticeship rules have been made: a person shall neither dismiss nor suspend a person employed by him as an apprentice ... save in accordance with the rules.

The Labour Services Act Apprenticeship Rules 1993, rule 7, provides: (1)

Subject to s 7(2), no employer shall dismiss any apprentice save in strict accordance with the provisions of the Unfair Dismissals Act 1977, the Minimum Notice and Terms of Employment Act 1973 and the Redundancy Payments Acts 1967 to 1990.

(2)

Where it is no longer possible for reasons of redundancy for an employer to continue an apprenticeship the employer shall give written prior notice to An Foras [FÁS] accordingly and shall take all reasonable steps to have his/her obligations under the contract of apprenticeship transferred to another employer.

(2) Types of contract (i) Fixed-term/specified purpose [23.75] A contract is for a fixed term when at the time it is entered into74 the date of commencement and of termination respectively are capable of being ascertained. A contract is for a specified purpose where, at the time of its making, the duration of the contract is limited but incapable of precise ascertainment. An example of a specified purpose contract would be to fill in for a named employee while he is absent on sick leave, or to work on a named project of road construction.75

[23.76] Where such contracts expire either because the term expires and the contract is not renewed in the case of a fixed-term contract or the specified purpose is completed, the Unfair Dismissals Act shall not apply76 if: (i) the contract is in writing; (ii) it was signed by both parties; and (iii) it contains a statement that the Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid. 74

75

76

This is implicit in the Act and consistent with what ought to be strict construction of an exclusion clause. Walsh and Long v Kilkenny County Council UD 824 and 836/1992; also Donnelly v Bray Urban District Council UD 235/1993. Unfair Dismissals Act 1977, s 2(2)(b).

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The formula is straightforward and must be followed. The conditions should be satisfied at the time the contract is made. Without a waiver in the terms above, the Unfair Dismissals Act applies to all temporary contracts, requiring the employer to adduce substantial grounds to justify termination. A waiver only excludes liability that would otherwise attach to termination upon expiry of the term or cesser of the purpose. An employee whose fixed term is ‘unfixed’ within the term or before the completion of the purpose, say, for poor performance or misconduct, will be eligible to challenge dismissal provided the other requirements of the legislation are satisfied.77

[23.77] The amending Act in 1993 introduced a proviso which is discussed earlier.78 When reviewing liability in connection with a temporary contract, the history of other similar working arrangements involving the employee, if any, must also be considered. Before 1 October 1993, a series of temporary contracts with waivers removed the protection of the legislation in respect of termination upon expiry.79

[23.78] The operation of the proviso will require reasonable grounds to sustain an ‘opinion’ by an adjudicating person or body as to the purpose of the employer’s contractual obligations. Initially, the onus will be on the employer to invoke the benefit of an exclusion clause or waiver; it will shift to an employee (if and when appropriate) to contend that the employer’s purpose was to avoid liability. The WRC will act on the evidence before it and it will be mindful of the fact that s 2(2)(b) of the 1977 Act was enacted precisely so as to provide a mechanism for no liability regarding temporary contracts. [23.79] The proviso, when enacted, unsurprisingly resulted in a change in policy on the part of some employers who decided never to re-engage an employee on the expiry of a fixed term. The EAT described the claimant in O’Mahony v Trinity College Dublin80 as ‘the ironic victim of a change in the law, which was designed to improve the position of employees on fixed-term contracts’. [23.80] Cahill v Teagasc81 was an early case in which the proviso was invoked successfully. The employee was employed as a student supervisor in an agricultural college in the absence of any contract for a fixed term. He signed two successive fixedterm contracts and his employment was terminated on the expiry of the second contract. It had been his intention to remain in the job for a number of years. The employer did not consider the claimant’s job as a permanent position and it was their policy that employees took the job for one or two years while looking for a permanent job. Teagasc 77

78 79 80 81

O’Mahony v Trinity College Dublin [1998] 9 ELR 159. For temporary contracts expiring without waivers, see, eg, O’Connor v Kilnamanagh Family Recreation Centre Ltd UD 1102/ 1993; Sheehan v Dublin Tribune Ltd [1992] ELR 239. See para [23.35]. Eg Howard v Ennis Urban District Council [1991] ELR 40. O’Mahony v Trinity College Dublin [1998] ELR 159. Cahill v Teagasc [1996] ELR 215; similarly Clarke v Teagasc UD 984/1995; Killgren v Teagasc UD 929/1995. In Kierse v NUIG UD 219/2000 use of successive fixed-term contracts was held not to evade requirements of Act. See also Ambrose v Serono Ltd [2007] ELR 184 concerning agency workers; and Kemmy v Amgen Technology (Ireland) t/a Amgen UD 1979/ 2013.

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claimed that the provisions of the 1993 amending Act did not apply because the dismissal resulted from the termination of a fixed-term contract in accordance with s 2(2)(b) of the 1977 Act. The employee submitted that the 1993 Act did apply and that the intention of the fixed-term contract was to frustrate the terms of the Act. The EAT found that Teagasc had entered into the contract with the purpose of avoiding liability under the Unfair Dismissals Acts. What started out as an ‘ordinary’ employment became a ‘fixed-term’ employment. The employee’s dismissal was held to be unfair.

[23.81] Temporary contracts are becoming more commonplace, particularly among employer companies operating in a globalised market. Financial, functional and numerical flexibility are necessary to Ireland’s competitive survival. New recruits may be offered ‘employability’ rather than the prospect of long-term employment. (ii) Covering for employees on protective leave or natal care absence [23.82] A particular type of specified purpose contract is named in s 2(2)(c) as amended.82 Whether or not a waiver is added, the expiry of this form of temporary contract lies outside unfair dismissals law. The circumstances concern covering for an employee on maternity leave. The employer must inform the employee at the commencement of the employment, in writing, that the employment will terminate on the return to work with it of another employee who is absent from work while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act 1994. The dismissal lies outside the Act if and only if it occurs for the purpose of facilitating the return to work of the other employee.

[23.83] ‘Protective leave’ is defined in s 21 of the Maternity Protection Act 1994. It means: (a) (b) (c) (d)

maternity leave; additional maternity leave; leave to which a father is entitled under s 16(1) or (4); and leave granted under s 18.

[23.84] ‘Maternity leave’ is not confined to the concept of ‘the minimum period of maternity leave’ of not less than 26 consecutive weeks. It will not be necessary for an employer to spell out the envisaged length of the leave.

[23.85] ‘Additional Maternity Leave’ is described in s 14. It refers to a maximum period of 16 consecutive weeks commencing immediately after the end of maternity leave. There is no social welfare payment during this period. [23.86] The father’s leave under s 16(1) refers to leave granted where a mother who, having given birth to a living child, dies at any time before the expiry of the fortieth week following the week of her confinement. Leave is granted for a period ending as follows: (a) if the mother dies before the expiry of the twenty-fourth week following the week of her confinement, the period ends at the end of that twenty-fourth week; and 82

Maternity Protection Act 1994, s 38(2).

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Redmond on Dismissal Law if the mother dies at any time after the expiry of that twenty-fourth week, the period ends at the end of the fortieth week following the week of her confinement.

[23.87] Under sub-s 4, a father who has taken leave as aforesaid may opt to take further leave for a maximum period of 16 consecutive weeks commencing immediately after the end of the first leave period, or paternity leave under s 13(1) of the Paternity Leave and Benefit Act 2016, as may be appropriate. [23.88] ‘Section 18 leave’ relates to leave on health and safety grounds. The employee taking such leave will be pregnant or recently have given birth or she will be breastfeeding.83 Section 18 provides that if an employer is required to move an employee to other work (the Act is silent on whether her remuneration must stay the same), whether because of a risk assessment or because the employee cannot be required to perform night work, but if: (a)

it is not technically or objectively feasible for the employer to move the employee as required by the regulations; or

(b)

such a move cannot reasonably be required on duly substantiated grounds; or

(c)

the other work to which the employer proposes to move the employee is not suitable for her;84

then the employee is entitled to leave on health and safety grounds.

[23.89] ‘Natal care absence’ means a period of absence from her work to which an employee is entitled under s 15 of the 1994 Act. This relates to time off from work, without loss of pay, for the purpose of receiving ante-natal and post-natal care.85 [23.90] The Maternity Protection Act 1994 contains much detail (particularly regarding notification) in connection with the types of leave referred to in s 2(2)(c) of the Unfair Dismissals Act. For example, if an employee ceases breastfeeding she must notify her employer in writing at the earliest practical time.86 Where the employer has no reason to believe there will be a vulnerability to risk on her return to work, the ‘s 18’ leave ends seven days after the woman’s notification in writing is received. Suppose the woman returns to work on a day which falls after the ending of her s 18 leave. While absent between the ending of her statutory leave and her return to work, the employee will not come within the meaning of the Maternity Protection Act 1994. Might a temporary replacement employee, let go on the return to work of an employee in such circumstances, invoke the protection of unfair dismissals legislation? Any provisions excluding employment rights will be strictly construed. There is nothing to prevent an employer, of course, from double-bolting the door by inserting a waiver, in compliance with s 2(2)(b). 83 84 85

86

Maternity Protection Act 1994, s 17. An objective test is applied, s 18(3). See Maternity Protection (Time-off for Ante-natal and Post-natal Care) Regulations 1981 (SI 358/1981). Maternity Protection Act 1994, s 20(1).

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[23.97]

(iii) Covering for employees on adoptive or carer’s leave [23.91] A further exclusion relates to an employee taken on for the specified purpose of covering for someone on adoptive leave. Again the employer must inform the employee in writing at the commencement of the employment that employment will terminate on the return to work with that employer of an adopting parent who is absent from work while on adoptive leave or additional adoptive leave under the Adoptive Leave Act 1995. The dismissal must occur for the purpose of facilitating the return to work of the adopting parent. [23.92] Under s 6 of the 1995 Act, an employed adopting mother is entitled to leave for a period (the minimum period), beginning on the day of placement, of not less than 24 consecutive weeks. This entitlement is also afforded to a sole male adopter. An ‘employed adopting mother’ is defined in s 1(2) as: a female employee in whose care a child (of whom she is not the natural mother) has been placed or is to be placed with a view to the making of an adoption order, or to the effecting of a foreign adoption or following any such adoption.

[23.93] A ‘sole male adopter’ is defined in the same sub-section to mean: a male employee who is not an adopting father within the meaning of this Act and in whose sole care a child has been placed or is to be placed with a view to the making of an adoption order, or to the effecting of a foreign adoption or following any such adoption.

[23.94] An ‘adopting father’ means: a male employee in whose care a child has been placed or is to be placed with a view to the making of an adoption order, or to the effecting of a foreign adoption or following any such adoption, where the adopting mother has died.

[23.95] And an ‘adopting mother’ means: a woman including an employed adopting mother, in whose care a child (of whom she is not the natural mother) has been placed or is to be placed with a view to the making of an adoption order, or to the effecting of a foreign adoption or following any such adoption.

[23.96] As in maternity legislation, an employed adopting mother (or sole male adopter) who has taken adoptive leave is entitled to further additional adoptive leave for a maximum of 16 consecutive weeks.87 The additional adoptive leave commences immediately after the adoptive leave or, where applicable, any period of transferred paternity leave. [23.97] Where an adopting mother dies, the adopting father is entitled to adoptive leave for one of the following periods, as appropriate: (a) where the adopting mother dies on or after the day of placement, 24 weeks less a period equivalent to the period beginning on the day of placement and ending on the date of her death; or (b) in any other case, 24 weeks; or (c) such other period or may be prescribed by order.88 87 88

Adoptive Leave Act 1995, s 8. Adoptive Leave Act 1995, s 9.

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[23.98]

[23.98] Similar provisions are found regarding dismissal where the employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of an employee who is absent from work while on carer’s leave under the Carer’s Leave Act 2001 and the dismissal of the employee duly occurs for the purpose of facilitating the return to work of the employee who has been on carer’s leave.89 (viii) Employees ordinarily working outside the State [23.99] The 1977 Act endorses the generally recognised principle that an employee cannot seek the protection of the laws of a state as regards a contract which is performed outside it. The principle, captured in legislation that is now over 40 years old, is becoming increasingly outdated in the world of e-commerce. The EAT ruefully remarked in Buckle v Lee Overlay Partners Ltd90 that such a world was not likely to have been ‘to the forefront of the legislators’ when enacting this subsection.

[23.100] An employee who ‘ordinarily worked’ outside the State cannot challenge his or her dismissal unless: (a) he or she was ordinarily resident in the State during the term of the contract; or (b) he or she was domiciled in the State during the term of the contract, and the employer: (i)

was ordinarily resident in the State (if an individual), or

(ii)

had its principal place of business in the State during the term of the contract (if a body corporate or an unincorporated body of persons).91

The ‘term of the contract’ means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal.92

[23.101] The most contentious application of s 2(3) has concerned employees working in cross-channel employment. The employer contended that the claimants lay outside the jurisdiction of the unfair dismissals legislation in Roche and Ors v Sealink Stena Line Ltd93 in circumstances where: (a) the respondent was a British registered company and the employees on board the respondent’s ship were subject to British law; (b) the base port for the claimants was Fishguard; (c) their contracts of employment were made in the United Kingdom, their wages were paid in sterling, they paid Irish tax but United Kingdom national insurance; 89 90

91

92 93

See, relatedly, the Paternity Leave and Benefit Act 2016. Buckle v Lee Overlay Partners Ltd UD 1509/2003. See too McElroy v GE Capital Aviation Services Ltd UD 713/2004. On the peripatetic employee and territorial jurisdiction see Lawson v Serco Ltd [2006] IRLR 289, Regional Claims Manager v An Insurance Company ADJ-00000680 and Duncombe v Children, Schools and Families Secretary [2011] ICR 1312. Unfair Dismissals Act 1977, s 2(3)(a); Kelly v Aer Rianta International CPT [1998] ELR 170 and McElroy v GE Capital Aviation Services Ltd UD 713/2004. Unfair Dismissals Act 1977, s 2(3)(b). Roche and Ors v Sealink Stena Line Ltd [1993] ELR 89 and Breheny v Sealink Stena Line Ltd UD 559/1992.

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[23.104]

the claimants received their redundancy entitlements from the United Kingdom authorities; and they had addresses in Ireland.

The employees responded that as Irish citizens they had a right to have their cases heard in Ireland (which, per se, would not be decisive) but they also gave evidence that each one lived in Ireland, two of them owned their own houses in Ireland and two lived with their parents. This satisfied the EAT that the employees were ‘ordinarily resident’ in the State during the period of their contracts.

[23.102] A different scenario was presented in Davis v Sealink Stena Line Ltd.94 There, the employee lived in Dublin and worked on a vessel that plied between Larne in Northern Ireland and Stranraer in Scotland. He spent 24 weeks a year on the vessel and worked on a week on/week off basis. He was paid in sterling into a bank account in Belfast; he paid UK national insurance contributions; he had UK tax deducted; the contract of employment was performed, made and terminated in the UK; and the vessel on which he worked did not come into port in the Republic of Ireland. The employee’s representative claimed he was ordinarily resident in the State during the term of his contract of employment.

[23.103] The EAT determined in a closely worded paragraph without expanding on its reasons: ‘... that the claimant was resident in the State during the term of his contract.95 It does not necessarily follow that he is entitled to take a claim in this jurisdiction. While the Act does not exclude the claimant, it does not admit him. If, however, the claim could be heard in this jurisdiction, it is quite clear that the proper law governing the contract of employment is either Scottish or Northern Ireland law. This Tribunal is not competent to decide questions of foreign law. Its jurisdiction is confined to such matters as the Irish parliament bestows upon it.’

The key to the distinction between Davis and Roche may lie in the evidence as to ‘ordinarily resident’ upon which the determination in the former casts little light.

[23.104] The employer in McIlraith v Seitz Filtration (GB) Ltd96 argued that the employee’s contract had been compiled in the UK and was therefore subject to the laws of the UK. In so far as his written contract was concerned it contained a reference to the laws of the UK governing termination. It was submitted on behalf of the employee that notwithstanding this he could bring his claim for unfair dismissal in this jurisdiction. In furtherance of this, the employee asserted that he could rely on the Convention on the Law Applicable to Contractual Obligations in force since 1980 and to which the UK was a contracting party. He referred to art 3 thereof which provides, inter alia, that ‘a 94

95 96

Davis v Sealink Stena Line Ltd UD 874/1993. See Kaufman v RMF (NI) Ltd [1996] ELR 219, where the EAT dismissed the claims because of the extra-territorial nature of contract. Note not ‘ordinarily resident’. McIlraith v Seitz Filtration (GB) Ltd [1998] ELR 105. See Rutten v Cross Medical Ltd [1997] IRLR 249 in re which national courts have jurisdiction to adjudicate on disputes arising out of employment where an employee works in more than country. Article 5(1) of the Brussels Convention interpreted. See also Zimmerman v Der Deutsche Schulverein [1999] ELR 211.

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contract shall be governed by the law chosen by the parties’. The Convention includes a number of exceptions to this fundamental principle of party autonomy. The employee contended that one of these, art 6, applied. In its first paragraph, art 6 states: Notwithstanding the provisions of article 3, in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice.

[23.105] Its second paragraph provides as follows: Notwithstanding the provisions of article 4,97 a contract of employment shall, in the absence of choice in accordance with article 3, be governed: (a) by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country or (b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business to which he was engaged is situated; unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country.

[23.106] From the evidence it was clear to the EAT that the employee not only carried out his work in Ireland but also could be considered to be employed in this jurisdiction. It seemed to the EAT therefore that notwithstanding the provision in the contract of employment that it was governed by UK law, the employee was entitled to seek the benefits of the Unfair Dismissals Acts. The EAT also came to the view that even if it were to be the case that the claimant was found to be employed in another country (in the UK) he would be entitled to invoke art 6 of the Convention, above, in his support. The Convention was brought into force in Ireland by the Contractual Obligations (Applicable Law) Act 1991.

[23.107] There appears to have been some confusion in McIlraith between the issue of jurisdiction (ie whether the matter could properly be heard by the EAT) and the choice of law to be applied to the contract. The EAT consistently referred to the ‘jurisdiction’ issue (about which, following the Lugano Convention, brought into Irish law by the Jurisdiction of Courts and Enforcement of Judgments Act 1993, there was no doubt). Regarding the issue of the proper law to be applied to the employment contract, which is determined by the 1980 Convention and the transposing Irish 1991 Act, the EAT at no stage found that unfair dismissals legislation was a ‘mandatory rule’98 of Irish law and therefore, as a result of art 6(1) and 6(2) of the 1991 Act, applicable to the claimant. This finding must, however, be regarded as implicit in the determination. The EAT’s decision is undoubtedly correct. 97

98

‘To the extent that the law applicable to the contract has not been chosen in accordance with article 3, the contract shall be governed by the law of the country with which it is most closely connected. Nevertheless, a severable part of the contract which has a closer connection with another country may by way of exception be governed by the law of that other country.’ See generally on mandatory rules Briggs, The Conflict of Laws (3rd edn, Clarendon Press, 2013) at 43-44.

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Express Qualifications and Exclusions

[23.111]

[23.108] In A Regional Claims Manager v An Insurance Company,99 it was alleged by the respondent that the complainant was ordinarily resident and/or domiciled outside the State. The Adjudication Officer found that by virtue of the Recast Brussels I Regulation,100 the complainant worker was entitled to sue the respondent employer in either (i) the jurisdiction in which the worker habitually carried out his/her work or (ii) in the jurisdiction in which his/her employer is domiciled. In the Adjudication Officer’s view, the Recast Brussels I Regulation trumped the prohibition contained in s 2(3) of the Unfair Dismissals Act. However, as above, the Recast Brussels I Regulation concerns jurisdiction only and does not provide which law is to apply in the forum.

D.

JURISDICTION

[23.109] Eligibility concerns the jurisdiction of the WRC under the Unfair Dismissals Acts. Jurisdiction can be equated with power but the word is used in preference to power in respect of officers or bodies who may be said to hear and determine disputes or complaints. Jurisdiction is a difficult legal concept.

[23.110] Jurisdiction can be illustrated in the following way in the context of unfair dismissal and the WRC. The Adjudication Officer is given authority under s 8, as amended, to ‘inquire into the claim, give the parties to the claim an opportunity to be heard by the adjudication officer and to present to the adjudication officer any evidence relevant to the claim’ and to ‘make a decision in relation to the claim’. The WRC is given power to decide on the existence of certain conditions. Therefore, there are preliminary questions that it must decide before it can proceed to hear the merits of a claim. While the WRC has affirmed its power to determine a preliminary issue separately and prior to the hearing of a substantive claim,101 it has also sought to indicate in a Guidance Note published in 2017 that the vast majority of preliminary points will be subsumed within the overall hearing and will not be the subject of an initial, prior decision.102 It is submitted that it may be somewhat premature to indicate that the ‘vast majority’ of preliminary points can be dealt with in this fashion. In the event that a significant number of cases in a given month or year before the WRC were to present preliminary issues as to continuity of service, for example, or other jurisdictional matters involving legal analysis, each of these cases may well require an initial preliminary determination on that point before proceeding to embark upon a full hearing. To press ahead to a hearing could itself prove needlessly wasteful of resources – to say nothing of the adverse consequences for the parties themselves – in the event that it were ultimately to be found that the WRC had no jurisdiction to hear the claim.

[23.111] Most of the elements in this chapter concern jurisdiction. A preliminary decision by the WRC as to jurisdiction is not a determination on the merits of the case. 99 100

101

102

A Regional Claims Manager v An Insurance Company ADJ-00000680 (12 April 2017). Regulation 1215/2012/EU of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), s 5. See Workplace Relations Commission Annual Report 2016, Appendix 2, relying on the Supreme Court decision in Adigun v Equality Tribunal [2015] IESC 91, per Charleton J at 15. Workplace Relations Commission, Guidance Note for a WRC Adjudication Hearing (issued August 2017, available at workplacerelations.ie).

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Section 8 assumes the WRC’s ‘decision’ is on the evidence in exercise of jurisdiction. A decision that jurisdiction exists is a logically necessary pre-condition to its exercise: because logically prior to such exercise it cannot in itself be part of the exercise of jurisdiction envisaged in s 8.103 A preliminary decision on, say, continuity of service can be judicially reviewed. If, for example, the High Court on review believes that the statutory criteria are not met, contrary to the view of the Adjudication Officer or Labour Court, its determination will be quashed.104

[23.112] In Roche and Ors v Sealink Stena Line Ltd105 the employer argued that the claimants were excluded from jurisdiction by s 2(3) of the 1977 Act as they ordinarily worked outside the State. The EAT rejected this contention. When counsel for the employer received the EAT’s decision on this preliminary point, an adjournment was sought to enable the respondent to seek leave before the High Court for a judicial review of the EAT’s decision. The claimants objected to the adjournment application. The EAT considered the application and the objection to it and refused the application: ‘as only one determination can issue in a case and at that point in time no determination had issued’. This, however, was to confuse a s 8 determination in exercise of jurisdiction and a ‘decision’ as to the existence of jurisdiction. The two are not and cannot be equated.

103

104

105

See Craig, Administrative Law (8th edn, Sweet & Maxwell, 2016) at para 16-002 et seq; and Hogan and Morgan, Administrative Law in Ireland (4th edn, Round Hall, 2010) at 472 et seq. See, for eg under the ‘old’ system involving s 15(3) of the 1977 Act, The State (Ferris) v EAT (1985) 4 JISSL 100 where the EAT had declined jurisdiction, quashed on review by the High Court. Roche and Ors v Sealink Stena Line Ltd [1993] ELR 89. See Leonard v Willie’s Restaurant [2004] ELR 14 (claimant failed to establish jurisdiction where claim form had been misdirected).

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Chapter 24

Remedies for Unfair Dismissal A.

INTRODUCTION: PROPRIETARY RIGHT TO EMPLOYMENT

[24.01] Very shortly after the coming into force of the Unfair Dismissals Act some 40 years ago1 it was declared that: ‘The Unfair Dismissals Act 1977, establishes for an employee a proprietary right to his employment, which, if taken away without there being substantial grounds justifying his dismissal, entitles him to redress for unfair dismissal.’2

In Wynes v Southrepps Hall Broiler Farm Ltd,3 Sir Diarmuid Conroy explained the concept of job ownership in redundancy legislation: ‘Just as a property owner has a right in his property and when he is deprived he is entitled to compensation, so a long term employee is considered to have a right analogous to a right of property in his job, he has a right to security, and his rights gain in value with the years ...’.

[24.02] The purpose, he said, is to compensate a worker for loss of his or her job, irrespective of whether that loss leads to unemployment. It is to compensate him or her for loss of security, possible loss of earnings and fringe benefits, and the uncertainty and anxiety of change of a job. These may all be present even if a person gets a fresh job immediately. The claim that a worker has something akin to a property right in his or her job is not an enforceable claim-right. Nor can a job be bought, sold or left to one’s dependants. The property analogy belongs more to the sphere of morality or of social ethics. Legal manifestation of the rule ‘that he who sacrifices an asset should receive a fair amount of compensation’4 is confined mostly to the question of remedies. The property analogy explains why an unfairly dismissed worker’s chief remedy is reinstatement, not re-engagement or compensation. Reinstatement recognises that, where a job has been wrongly expropriated, the person divested of his ‘property’ is entitled to recover what he has lost or had taken from him. Again, as in Ireland or 1

2

3

4

On proprietary rights in employment see Kirwan, “Wild Card or Trump Card? The Effects of a Consideration of Employment as a Property Right” (2017) 14 IELJ 4. McBride v Midland Electrical Co Ltd UD 37/1979; similarly, O’Connor v Heat Recovery Ltd UD 105/1980; Barley v Royal Dublin Golf Club UD 151/1978. Wynes v Southrepps Hall Broiler Farm Ltd (1968) ITR 407 at 407–8. Kahn-Freund was of the opinion that the property analogy could be taken too far. He saw it as a rule of social ethics that he who sacrifices an asset should receive a fair amount of compensation: Labour Law: Old Traditions and New Developments (Toronto, 1967), 38. Although he admitted ‘there is something in the analogy’ as ‘for the large majority of people their job is their principal asset. They have invested their skill and their strength in the job’. Kahn-Freund, Labour Law: Old Traditions and New Developments (1967), 38.

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Britain, compensation is provided as an alternative to the primary remedies of reinstatement and re-engagement. In Part B of this chapter, the property analogy is measured against the extent to which an employee who is unfairly dismissed can insist upon returning to his or her job. It will be seen that, in Ireland, the statutory attempt to create a legal right to remain in one’s job has not succeeded over the last 40 years. In Part C the part played by compensation in the evolution of proprietas5 in employment will be contrasted.

B.

PRIMARY REMEDIES UNDER THE 1977 ACT

(1) The Constitution [24.03] From an individual employee’s point of view, as the preceding chapters make apparent, the Constitution may be highly beneficial. It is ironic, therefore, that when it came to formulating the primary remedies for unfair dismissal, the Constitution was presented as a stumbling block. It was alleged that reinstatement and re-engagement were inconsistent with an employer’s right to freedom of association under Article 40.6.1°(iii).6 Since freedom of association carries with it a right not to associate, it was argued that statutory provision for compulsory reinstatement or re-engagement would be ultra vires. The freedom of association it most frequently protects is an employee’s right to join, or to form, unions or associations. To argue that an employer is constitutionally entitled, on account of a freedom, to take advantage of its own wrong, is indefensible, the more so as the wrong in question is likely to involve a violation of the constitutional rights of former employees. The presumed ‘right’ or freedom of a former employer not to associate with its wrongfully dismissed employee is hardly more worthy of protection than the latter’s right to continue to earn a livelihood. Besides, an employer’s right in this respect, if it exists, may be subjected to regulatory legislation. In its final clause, Article 40.6.1°(iii) says that: ‘Laws ... may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.’

[24.04] There is no doubt, in principle, that legislation regulating the right of association (such as the Unfair Dismissals Act) is constitutional.7 In the end, primary remedies were included in the Act, the Constitution notwithstanding. On the second stage reading of the Bill in Seanad Éireann the Minister for Labour asserted that: ‘It would be tragic to think that legislation that deputies and Senators in both Houses agreed is desirable should be held back or rendered less strong because of legal advice that 5

6

7

For insightful analysis of the potential for greater emphasis to be placed on proprietary rights in one’s employment through the lens of the Constitution, see Kirwan, ‘Wild Card or Trump Card? The Effects of a Consideration of Employment as a Property Right’ (2017) 14 IELJ 4. See para [8.10]. A right to reinstatement is afforded by the constitutions and national legislation of other European countries without the suspicion that by so doing an employer’s constitutional rights are being infringed. The right to reinstatement has been recognised in international documents such as the European Social Charter and ILO Recommendation No 119 on the Termination of Employment (Geneva 1963). See NUR v Sullivan [1947] IR 77, 78 for discussion of ‘regulation’ in Art 40.6.1°(iii). And see Walsh J’s balancing exercise in Meskell v CIÉ [1973] IR 121.

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[24.07]

the Constitution could be cited against these provisions. It would be nonsense to think that legislation did not offer the option to the aggrieved party of reinstatement ... [We] have accepted the possibility of certain elements of the Constitution being cited against the legislation before us. On the other hand, there is conflict in relation to this advice.’8

In the 40 years since the introduction of the Unfair Dismissals Act 1977, no employer has taken a constitutional objection to the primary remedies.

(2) Reinstatement and re-engagement defined [24.05] Section 7 of the 1977 Act, as amended by s 6 of the 1993 Amendment Act, sets out the primary remedies. An employee unfairly dismissed under the Act is entitled to redress consisting of whichever of the following primary remedies the Workplace Relations Commission, considers appropriate having regard to all the circumstances: (a)

reinstatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the reinstatement shall be deemed to have commenced on the day of the dismissal; or

(b)

re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances.9

[24.06] References to ‘an employer’ are construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (This could have implications in a transfer of undertaking dismissal where, in theory, either transferor or transferee may be proceeded against.) [24.07] Reinstatement requires an employer to treat an employee in all respects as if he had not been dismissed. The remedy is granted, as a general rule, where the employee is found not to have contributed to the dismissal in any significant way and/or where the interests of justice so require.10 The EAT found a clear breach of the audi alteram partem made in Foley v Calview Investments Ltd.11 The claimant was a 50 per cent 8 9

10

11

Seanad Debates, Vol 86, Cols 540–41 (March 1977). When the Irish Unfair Dismissals Bill first appeared, it provided for one primary remedy only, namely, re-engagement. During the second stage reading of the Bill the Minister for Labour’s attention was drawn to the legal difference between reinstatement and re-engagement: Dáil Debates, 25 January 1977, Col 67. The solitary inclusion in the Bill of the latter was questioned; an amendment was moved to delete the word ‘re-engagement’ and to substitute ‘reinstatement’ instead (ibid, col 115). Ultimately both remedies appeared in the Bill: ibid, 2 March 1977, Col 661. For a prominent recent example of reinstatement being awarded see Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241, considered in detail in Ch 8 above, applied in An Accounts Manager v A Provider of Payroll and HR Support ADJ-00002369 (20 March 2017). See also Stapleton v St Colman’s (Claremorris) Credit Union Ltd UD 1776/ 2012. Foley v Calview Investments Ltd UD 1228/2003; see Williams, ‘Job Security and Unfair Dismissal’ (1975) 38 MLR 292.

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shareholder and continued to be one of the directors of the employer: he stood therefore on both sides of the relationship of employer and employee. He was also a significant creditor of the respondent. Of the two primary remedies, the Tribunal considered reinstatement to be the more appropriate. It gave its reasons thus: ‘The case took almost precisely one year from the date of dismissal to reach its first hearing date. The case was one of the longest running in the history of the Tribunal and was unusually involved. Reinstatement can impose significant costs upon a respondent. However, the Tribunal is satisfied that a claimant ought not be deprived of the appropriate remedy through no fault of the claimant and further that a respondent who unfairly deprives a claimant of his employment does so at his own risk ... An employer who refuses to remedy the continuing wrong done to a unfairly dismissed employee by refusing to readmit to employment a willing employee until ordered by a Tribunal exacerbates this liability by the continuing wrong done to the employee until the order is made.’

[24.08] Any potential disciplinary issue raised in the context of defending the unfair dismissals action and not forming part of the original decision to dismiss could be dealt with by disciplinary proceeding upon the claimant’s return to work. An unfairly dismissed employee is entitled to any arrears of salary from the date of dismissal to the date of implementation.12 It has been stressed on a number of occasions13 that the term ‘salary’ includes any benefits, including any salary increases which a claimant might reasonably be expected to have but for the dismissal. [24.09] This was made explicit in s 1(2) of the 1977 Act, inserted by s 2 of the Amendment Act 1993. Reinstatement must be granted on terms and conditions not less favourable than those of other employees of the same employer who occupy positions similar to that from which the employee was dismissed, or if there are no such employees, the terms and conditions on which employees of the same employer are generally employed. [24.10] A claimant will have restored to him all rights and privileges (including seniority and pension rights, if applicable) which he might reasonably be expected to have had but for the dismissal. In Rapple v Irish Press Newspapers,14 there was a significant adverse difference in the terms of the trust deed governing an employee’s pension where he had been dismissed as against those for a person whose job had been made redundant. The company had gone into liquidation and all of the claimant’s fellow employees were made redundant some months after his dismissal. A trustee of the pension fund gave evidence to the EAT that, due to legal advice, the scheme had been wound up before the date of the redundancies for the good of the members. The claimant had been advised by the trustees that if he was deemed to have been dismissed at the time the pension fund was wound up he would get one figure, whereas if he was 12

13

14

This used to involve deducting social welfare benefits which allowed an employer to benefit at the expense of the State. The 1993 Amendment Act changed the law; it is discussed more fully at para [24.48]. Eg Clarke v Hogan UD 135/1978; Kelly v CIÉ UD 28/1978, (implied by) McMahon v Cootehill Livestock Sales Ltd UD 102/1980. A case involving pension benefits is Rapple v Irish Press Newspapers (in Receivership and in Liquidation) UD 841/1995, para [24.10]. Rapple v Irish Press Newspapers UD 841/1995.

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[24.14]

considered to have been in employment, he would receive a better figure. There were also implications for the setting up of a future pension scheme which were detailed in evidence.

[24.11] The claimant was seeking reinstatement. In reality, as the EAT observed, he had no job to go back to. However, it ordered reinstatement which had the result that the claimant was deemed to be in employment with the respondent (which did not attend the hearing) until the date of liquidation. It followed: ‘... that the claimant will then be in a position to avail of not just the more attractive pension benefits which are at present available to his fellow employees but he will also be in a position to avail of the opportunity in the future to participate in the distribution of whatever monies are held in reserve by the Pension Fund, if and when such monies become available for distribution amongst the members of the Pension Fund.’

[24.12] Re-engagement, on the other hand, may be in a different job provided it is comparable to the old one or is otherwise suitable.15 This remedy provides the WRC (or Labour Court) with considerable latitude. The stated terms of re-engagement, if sufficiently wide, could in effect amount to reinstatement. Where re-engagement is a likely remedy, it would appear desirable, inter alia, for the employer to provide information about relevant vacancies in its own or any associated organisation either before or at the hearing.16

[24.13] The Workplace Relations Commission lays down the precise terms and dates for re-engagement. It may preserve continuity of employment from the date of dismissal to the date of re-engagement.17 Continuous service for purposes of the Minimum Notice and Terms of Employment Act 1973 and of the Unfair Dismissals Acts is preserved where the dismissal of the employee is ‘followed by the immediate “re-employment” of the employee.’18 It is possible to salvage seniority rights under an earlier contract.19 Sometimes it will describe the interim period as one of deemed suspension without pay, as in Murphy v E Mooney & Co.20 The status of such a deemed suspension is unclear. It is probably distinguishable from suspension under an employer’s disciplinary procedures.

[24.14] In Murphy the claimant was re-engaged subject to production of a medical certificate of full fitness to return to work. The EAT ruled that the company could also 15

16

17

18

19 20

As first drafted and debated in Dáil Éireann, if a position were offered to an employee, it had to be one that was ‘reasonably suitable to him’ (emphasis added). The revised paragraph substituted ‘for’ for ‘to’. Further, in the earlier definition, one of the terms and conditions expressly required was ‘a term that the re-engagement shall be deemed to have commenced on the day of the dismissal or on any subsequent day’. A statutory penalty might also be envisaged for an employer who fails to adduce reasonable evidence as to the availability of the job from which the complainant was dismissed or of comparable or suitable employment. For examples of this approach, see Donegal Rubber Co Ltd v Berrigan UD 252/1989; Borgan v Two Wheels Ltd UD 563/1991. Minimum Notice and Terms of Employment 1973, First Schedule, Rule 6; Unfair Dismissals Act 1977, s 2(4). See Mason v The Post Office [1973] IRLR 51. Murphy v E Mooney & Co UD 224/1985.

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refer the claimant to its own medical adviser and in the event of a conflict between the parties in relation to medical evidence, the matter was to be referred to an agreed third medical referee, and in the event of a failure there, the matter was to be referred once more to the EAT by the parties.

[24.15] Re-engagement may have disciplinary connotations where it is, by direction of the Workplace Relations Commission, to be regarded as a final warning to the claimant. This happened under the former EAT regime in O’Connell v CTF Ltd,21 where the claimant had a record of absenting himself from the workplace. The EAT ruled that his record should be monitored for six months and, if found satisfactory at that time, should revert back to normal. [24.16] In Rigney v Offaly County Council,22 the EAT declared itself not satisfied that the behaviour of the claimant in absenting himself in the manner in which he did and without notification to his superior was compatible with his position as foreman. Accordingly, being mindful of this, the EAT determined that he be re-engaged as an ordinary labourer.

[24.17] In such cases the adjudicating officer (or the Labour Court on appeal) must be particularly careful to avoid stepping into the employer’s role which would be at variance with its role in determining the fairness or otherwise of a dismissal. The award of a primary remedy may, of course, be varied on appeal.23

(3) No right to primary remedies [24.18] A fundamental point about the legislation in both jurisdictions is that there is no right to insist on keeping one’s job – the award of one or other of the primary remedies must be appropriate in the light of all the circumstances.24 As the High Court observed in 2015: ‘At the end of the day, the court has to grant the remedy which will do justice between the parties.’25 In determining the appropriateness of reinstatement or re-engagement the Workplace Relations Commission will take a number of factors into account. The adjudicator or Labour Court must hear the parties – see para [25.07] et seq below. An employee’s wishes are important – though not 21 22 23

24 25

O’Connell v CTF Ltd UD 588/1991. Rigney v Offaly County Council [1990] ELR 38. As in Dromina Community Playgroup/Dromina Community Council Limited v Morey (Labour Court, UDD 1715, 7 April 2017). Memorex World Trade Corporation v Employment Appeals Tribunal [1990] 2 IR 184. Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241, per Noonan J at [65]. It should be noted that the word ‘court’ in the above quotation referred to the fact that the Circuit Court and High Court previously enjoyed de novo appeals from the Employment Appeals Tribunal, in contrast with the situation which now prevails under the Workplace Relations Act 2015 which allows for a right of appeal on point of law only from the Labour Court to the High Court. Accordingly, the word ‘court’ in the above quotation should now be read as ‘Workplace Relations Commission or Labour Court, or High Court on a point of law appeal’.

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[24.20]

overriding.26 At times those wishes may be tempered by those of his or her trade union.27 They may be overruled by the Workplace Relations Commission, eg where an employee’s reluctance to request reinstatement was put down to his tender years.28 A long family association with a company may influence a decision-maker in opting for one of the primary remedies.29 Normally if one party – and certainly if both – are opposed to reinstatement or re-engagement, the decision-maker will respect this.30 Employer opposition may be treated somewhat sceptically, however. Reinstatement has frequently been described as being suitable only in exceptional circumstances.31

[24.19] Given the nature of a constructive dismissal claim, it is extremely difficult to conceive of circumstances in which reinstatement could be an appropriate remedy. Consider, however, the decision of the South African Labour Court in Western Cape Education Department v Julian John Gordon & Others32 was faced with such a question. The Court was of the view that, ‘at first glance an employee seeking reinstatement would be destructive to his/her claim for constructive dismissal’. The Court considered the two positions to be mutually exclusive. On these facts, however, the finding of reinstatement essentially turned on the employer’s failure to present evidence that were the employee to be reinstated, the situation would remain the same. In those circumstances, the Court was satisfied that the decision-making body had to accept the employee’s evidence that were he to be reinstated then he would not be subjected to the same circumstances that prevailed before he resigned. The Court therefore concluded that the employee’s desire to be reinstated was not destructive to the finding that the Department had made his continued employment intolerable. The Court held that an employer defending a constructive dismissal claim should show that it was not culpably responsible for the termination of the employment relationship, that the employer’s conduct did not lack reasonable and proper cause, and that it would be the situation to which an employee would return to were the employee to be reinstated. The Court indicated that the conclusion arrived at in this case was limited to the ‘very peculiar and unusual circumstances of the case’, due mainly to the employer’s failure to oppose the employee’s evidence that the workplace had changed and that, should he be reinstated, the circumstances would no longer be intolerable. [24.20] It is submitted that the approach in Western Cape Education Department has the potential only very seldom to arise in this jurisdiction. Clearly, much of the court’s willingness to countenance reinstatement was based on the fact that the evidence of the 26

27 28 29 30

31 32

See Marsh v University College Dublin UD 27/1997; McBridge v Midland Electrical Co Ltd UD 48/1979; Gahan v Lalor UD 326/1979. McSweeney v Sunbeam Ltd UD 62/1978. Healy v Joseph Brennan Bakeries Ltd UD 622/1980. Wynne v The Ormond Printing Co Ltd UD 669/1993. Fitzmaurice v Hele PVC Windows UD 385/1990; McArdle v Kingspan Ltd UD 1342/2003; Duffy Meats Ltd t/a Kerry Foods v Ryan UDD1631. See for eg Boylan v United Parcel Service of Ireland Limited UD464/2011. Western Cape Education Department v Julian John Gordon & Others (18 March 2013), Labour Court, Johannesburg, Steenkamp J. This decision was upheld on appeal to the Labour Appeal Court of South Africa on 24 June 2014: http://www.justice.gov.za/labourcourt/jdgmlbac/2014lbac/ca11-13.pdf.

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employee was uncontested and it was only this evidence that could he relied upon. In the great majority of cases coming before the WRC or Labour Court in this jurisdiction where reinstatement is sought, it tends to be strongly resisted by respondents. Quite apart from this, it does appear extremely difficult to reconcile the remedy of reinstatement with the essential character of a constructive unfair dismissal claim.

[24.21] Where it was impracticable to let a dismissed employee’s replacement go, eg for industrial relations reasons,33 or where the replacement’s standard of work was higher and therefore better for the enterprise,34 compensation was awarded to an unfairly dismissed employee rather than to order reinstatement or re-engagement.35 Again, industrial relations practice may determine the exact nature of the remedy.36 A university teaching post might be regarded as one where service was of a special or personal nature. Although good staff relations are desirable in a university department, in the opinion of the EAT they are not necessary: ‘The good of the department should not prevent a proper examination of the fairness of the dismissal, no matter how inconvenient the result.’37

[24.22] In ordinary circumstances, there will be no basis for an order of reinstatement where a job has disappeared owing to redundancy or where the workplace has closed down. The circumstances in Ferenka Ltd v Lewis38 were unusual. The company ceased to operate between the date of the rights commissioner’s recommendation and the hearing of the appeal before the EAT. The EAT held that the applicant was entitled to reinstatement from the date of dismissal to the date the factory closed. He was to be treated as an employee in continuous employment for all purposes up to that time. [24.23] There may be a question of contributory conduct. Although the Unfair Dismissals Act, as amended, deals with contributory action in the specific context of compensation awards (s 7(2)) it is clear from the Act that this factor may be reflected in the terms of an order for re-engagement. Section 7(1)(b) enables the Workplace Relations Commission, when ordering re-engagement, to set such terms and conditions ‘as are reasonable having regard to all the circumstances’. In relation to reinstatement, the adjudicating officer may take into account the employee’s degree of ‘fault’ only when considering whether or not to order reinstatement; it has no discretion otherwise to 33 34 35

36 37 38

McSweeney v Sunbeam Ltd UD 62/1978. Lavery v Irish Silver Ltd UD 68/1977. The longer the delay between dismissal and hearing, the more likely it is that a replacement will have been hired, and the less likely it is that a person will be offered reinstatement or reengagement. With this in mind, employees wanting a primary remedy should take the opportunity to lodge a complaint of unfair dismissal as soon as notice of that dismissal is received. Given the dramatically reduced waiting times achieved by the introduction of the Workplace Relations Commission pursuant to the Workplace Relations Act 2015 as compared with the delays in getting a case on for hearing before the Employment Appeals Tribunal, it remains to be seen whether this will result in an increase in orders for reinstatement or reengagement. Doyle v Nitrigin Éireann Teo UD 148/1978. Marsh v UCD UD 27/1977. Ferenka Ltd v Lewis UD 26/1977. See similarly Rapple v Irish Press Newspapers UD 841/ 1995, paras [24.10]–[24.11].

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[24.26]

do so: s 7(1)(a). As a general rule, however, misconduct is likely to defeat an employee’s claim for unfair dismissal altogether.

[24.24] In all cases, regard will be had to the industrial relations realities of the situation. It is improbable that either of the primary remedies will be awarded where shop floor feeling would be against it or if strikes or industrial action would follow.39 The size of the business will have an important influence on industrial relations aspects. Where the enterprise is small, the Workplace Relations Commission will probably conclude that compensation is the more appropriate remedy.40 On the other hand, if a complainant had worked for a large company in a relatively impersonal employer/ employee relationship, particularly in a less senior position, either of the primary remedies might be appropriate.41 In contrast, the primary remedies are unlikely to be appropriate for a senior employee.42

[24.25] Where an employee is reinstated or re-engaged by an employer in pursuance of a determination or order under the Unfair Dismissals Act, he or she is obliged to repay any moneys received from his employer under the Redundancy Payments Acts.43 The moneys may be recovered as a simple contract debt in a court of competent jurisdiction. Likewise, any moneys due and owing to an employee under those Acts in relation to dismissal cease to be due or owing.44 [24.26] The fact that either of the primary remedies will generally be awarded only where it is practicable represents a serious qualification to the view that unfair dismissals legislation protects a worker’s proprietas in employment, thus negating a supposed new balance in the employment relationship. The vast majority of complainants before the Workplace Relations Commission who are declared to have been unfairly dismissed do not receive their jobs back. This is amply documented in the Annual Reports of the Workplace Relations Commission and its predecessor, the EAT. It is instructive to assess the trends in the 40 years since the Unfair Dismissals Act was 39

40 41

42 43 44

Cf Bateman v British Leyland UK Ltd [1974] IRLR 101, [1974] ICR 403, KIR 284, 9 ITR 266. This is likely to be the case with dismissals in a closed shop situation: Sarvent v Central Electricity Board [1976] IRLR 66. But even in such circumstances an order for reinstatement may be made where a tribunal finds that ‘there is not likely to be any difficulty in the parties agreeing the terms of that reinstatement’: Goodbody v British Railways Board [1977] IRLR 84. Walsh v East Link Ltd UD 90/1988. See Clarke v CIÉ UD 104/1978; contrast Todd v NE Electricity Board [1975] IRLR 130. Collins v Board of Management of the Holy Trinity School UD 1520/2003 (award of reinstatement in a primary school). Gibney v Riverside Manufacturing Co (Ire) Ltd UD 732/1987. Unfair Dismissals Act 1977, s 19. Unfair Dismissals Act 1977, s 19 was inserted when the situation in regard to reinstatement and re-engagement was strengthened in the Bill. Section 16 of the Unfair Dismissals Act 1977 provides that unfair selection for redundancy will constitute unfair dismissal under the Act. It is conceivable that an employee who has already been paid redundancy money could later be awarded reinstatement or re-engagement on an unfair dismissal claim based on unfair selection for redundancy. The section reasonably requires redundancy payments to be refunded in such circumstances.

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Redmond on Dismissal Law

introduced in 1977. There is a deterioration in the pattern since the first Annual Report for 1978. In 1978 out of a total of 65 successful claims the EAT made 10 awards of reinstatement and four of re-engagement. In 2005, the EAT made three awards of reinstatement and two of re-engagement, while awarding compensation in 191 cases.45 In 2016, the EAT made awards of compensation in 156 cases but ordered reinstatement in only one case and did not order re-engagement in a single case.46 That having been said, there have been a number of orders of re-instatement47 and re-engagement48 made by the Workplace Relations Commission since the new regime came into effect on 1 October 2015.

[24.27] Section 8(1A), inserted by s 7 of the 1993 Amendment Act, requires inclusion in a determination of the Workplace Relations Commission (under s 11 of the Amendment Act) under which specified redress is awarded, of a statement of the reasons why either of the other forms of redress specified in s 7(1) was not awarded. This is, however, seldom adhered to in determinations. The Workplace Relations Commission continues to have effectively an absolute discretion in the matter. Even when a statement is made regarding the non-awarding of primary remedies, unfortunately the statement is most often scant (with some notable exceptions: see for example Foley v Calview Investments Ltd para [24.07]). The primary remedies are not awarded because they are deemed ‘not feasible’, ‘inappropriate’, ‘not viable’, or words to that effect.

C.

COMPENSATION

(1) Broad approach of the Workplace Relations Commission [24.28] In assessing contemporary and future trends in the awarding of compensation for unfair dismissal by the Workplace Relations Commission, it is necessary to review the approach which had previously been taken by the EAT. From the start, the EAT has preferred a broad approach in awarding compensation. An employer is required to compensate an employee fully if it cannot prove the reason for dismissal and cannot show that it acted reasonably in treating the alleged reason as ‘a substantial ground’ for dismissing a particular employee. There is no doubt that the deterrent effect of this upon employers gives an employee greater job security.49 In 2016 the EAT awarded what 45 46 47

48

49

Annual Report of the Employment Appeals Tribunal 2005. Annual Report of the Employment Appeals Tribunal 2016. An examples of an award of reinstatement includes A Former Employee v An Excavation Company ADJ-00001194 (1 June 2016) (dismissal staged to avoid redundancy obligations). Examples of awards of re-engagement include An Accounts Officer v A Public Body ADJ00002707 (7 July 2017); An Employee v An Employer ADJ-00004559 (25 April 2017); An Employer v An Employee UD 230/ 2014 (WRC ruled that period between dismissal and reengagement be deemed a period of unpaid leave with no entitlements accruing during that time). The ILO Committee of Experts in their Report (Report III: Termination of Employment Int Lab Conf 59th Sess, 1974, para 169) observed that compensation ‘is most effective as a remedy when it can act as a deterrent against unjustified termination’ and added the following reservation: (contd..../)

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[24.32]

is now believed to be the highest award to date for unfair dismissal: Philip Smith v RSA Insurance Ltd.50

[24.29] The Workplace Relations Commission can face difficulty in calculating the amount of compensation under s 7(1)(c) of the 1977 Act. Regulations under s 17 of the Unfair Dismissals Act deal only with the calculation of weekly remuneration. The Workplace Relations Commission is therefore faced with imponderables; it is required to put immediate cash values on items such as pension rights, future loss of wages and the likelihood of re-employment.

(2) Compensation described [24.30] The remedy of compensation is described in s 7(1)(c), as amended by s 6(a) of the 1993 Act, as: (i)

if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under s 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii)

if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to ‘an employer’ shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

[24.31] The High Court has said of the above provision that: ‘The legislation does not envisage the deciding body being required to always, or perhaps ever, engage in a calculation or mathematical formula by which it determines the extent of the financial loss exclusively by reference to the weekly remuneration of an employee.’51 [24.32] The statute gives no power to award exemplary damages. The High Court (MacMenamin J) in Stephens v Archaeological Development Services Ltd,52 explained that the parameters within which an award is made must be ‘strictly within the realm of financial loss and still do not encompass any scope for a claim under any heading in the law of torts, nor for the awarding of punitive or exemplary damages’. ‘Financial loss’ is defined by s 7(3) of the 1977 Act to include:

49

50 51 52

(i)

any actual loss, and

(ii)

any estimated prospective loss of income attributable to the dismissal, and

(\...contd) ‘In some cases, where the amount of compensation is limited to the amount of loss that the worker can show that he has suffered, a question may arise as to whether such compensation would be sufficient to afford the protection required.’ Philip Smith v RSA Insurance Ltd UD1763/2013. Brady v Minister for Social Protection [2016] IEHC 553 per Baker J at [23]. Stephens v Archaeological Development Services Ltd [2010] IEHC 540, at para 41.

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[24.33] (iii)

the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts; or the value of any loss or diminution in relation to superannuation.

‘Remuneration’ includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

[24.33] The object of compensation is to make reparation fully for the loss suffered by a dismissed employee. It is for the applicant to prove his or her loss but it is not necessary to bring precise and detailed proof of every item of loss. The Workplace Relations Commission makes allowance for the fact that proceedings are informal and that claims are sometimes presented by laypersons. [24.34] Subsection (2), as amended by s 6(b) of the 1993 Act, provides clarification regarding the calculation of compensation. Regard shall be had to: (a)

the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer;

(b)

the extent (if any) to which the said financial loss was attributable to an act, omission or conduct by or on behalf of the employee;

(c)

the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid; and

(d)

the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subs (1) of s 14 of this Act53 or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister;

(e)

the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said s 14; and

(f)

the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

[24.35] The employee is entitled to compensation only if there has been a finding of unfair dismissal. This may seem all too obvious but some rights commissioners, in the early days of the 1977 Act, recommended ex gratia severance payments54 while not holding a dismissal unfair. Where these recommendations were appealed to the EAT, they were overruled.55 [24.36] Section 7(1)(c) of the Unfair Dismissals Act places a limitation on the amount of compensation a claimant can receive. It cannot exceed 104 weeks’ gross pay in respect of the employment from which he was dismissed. Remuneration is calculated in accordance with statutory regulations SI 287/1977. The regulations cover certain categories of employee; those on hourly time rates or fixed wages or salary, employees 53

54

55

Unfair Dismissals Act 1977, s 7(2)(d) was intended, inter alia, to promote the use of procedures in relation to disciplinary and dismissal grievances. Eg A la Francaise Ltd v Monaghan UD 13/1977; Wheatley v Ulster Bank Ltd UD 18/1977; Warren v Cross Channel Carriers Ltd UD 44/1977; Chevalier v Herve Mahy, Ty Ar Mor Restaurant UD 60/1977; Sheils v Bonner Engineering Ltd UD 67/1977. Warren v Cross Channel Carriers Ltd UD 44/1977; Chevalier v Herve Mahy, Ty Ar Mor Restaurant UD 60/1977.

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[24.39]

on piecework, commission or bonuses. They also deal with ‘normal working hours’, work related payments and shift work.

[24.37] In Brady v Minister for Social Protection,56 the High Court (Baker J) observed of the above section: ‘Financial loss … is the determining factor in the amount of the award that may be made, not remuneration as such. An applicant may claim compensation for financial loss in respect of any period in the future, and the statutory maximum of 104 weeks’ remuneration is a limit in the amount that will be awarded, and not in respect of the time for which loss may be claimed. This is apparent from the fact that an employee may claim for financial loss in the form of a loss of pension rights or loss of superannuation entitlements, and the quantitative limit imposed by the Act of 104 weeks’ remuneration is a limit on the quantum of the award and not on the nature of the loss which may be compensated.’57

[24.38] In brief, the Workplace Relations Commission computes an employee’s net loss from dismissal to the date of the hearing, taking into account basic pay, average bonuses and average overtime pay. Loss of commission may also be relevant and recoverable, as may be vested stock options.58 If an employee has sustained no loss by reason of the dismissal, as for example, by obtaining immediate employment without injuring pension or other rights, he or she will be entitled to compensation of not greater than four weeks’ remuneration (in recognition, arguably, of his or her proprietas in his or her job) under the Unfair Dismissals Act. An employee’s prospective loss of income also has to be estimated; this involves computing any reduction the complainant is likely to suffer in future net earnings and fringe benefits. Loss of protection in respect of statutory rights under Unfair Dismissals, Redundancy and Minimum Notice Acts will also be computed and an assessment made as to any expenses, perquisites or pension rights lost by an employee as a result of dismissal. These items are now considered in more detail. (i) Actual loss [24.39] An important aspect of actual loss, to begin with, concerns notice. The Workplace Relations Commission will want to know whether an ex-employee has received adequate notice, or wages in lieu thereof. If the complainant has been summarily dismissed, and there are no relevant contractual provisions, the Workplace Relations Commission will have recourse to the Minimum Notice and Terms of Employment Act 1973, to determine the ex-employee’s entitlement to notice.59 The former employee may also make a claim in express terms under other legislation within 56 57 58

59

Brady v Minister for Social Protection [2016] IEHC 553. Brady v Minister for Social Protection [2016] IEHC 553 per Baker J at [26]. The EAT drew a distinction between vested and unvested stock options for this purpose in Florish v Alienvault Inc [2017] ELR 224. The EAT concluded (at 227) that ‘the unvested stock options at the time of the dismissal should not and do not form part of the assessment of loss in this case’. O’Farrell Ltd v Nugent UD 120/1978; UD 123/1978; see, also, Evode Industries Ltd v Hearst UD 396–8/1979.

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the jurisdiction of the WRC such as the Minimum Notice and Terms of Employment Act 1973 or the Organisation of Working Time Act 1997 when the individual is claiming unfair dismissal.

[24.40] The calculation of actual loss is based on net figures.60 Where a dismissed employee refuses suitable employment elsewhere immediately after his dismissal on the grounds that he will be paid for his due notice period anyway, this may be regarded as a breach of the employee’s duty to mitigate. According to a British authority,61 in calculating an unfairly dismissed employee’s compensation an employee who is dismissed without a full payment in lieu of notice does not have to give credit for sums earned from other employers during the notice period.

[24.41] Where a figure is being computed for immediate loss of wages, and the claimant is ill for the relevant period, his loss of earnings may be assessed as nil if, under his contract of employment, an employee is not entitled to wages during sick leave. In such circumstances, assessment of compensation will be based on availability for work.62 [24.42] In Maryland v Citywest Golf and Country Club63 the claimant invited the Tribunal to make an award in respect of the loss she suffered and was continuing to 60

61

62

63

Healy v Cormeen Construction Ltd M 263; UD 98/1978; see too Murtagh v O’Connor Breen Ltd UD 186/1978; O’Hare v The Curtain Centre Ltd UD 149/1978. From Healy, it is clear that any bonus and average overtime pay to which the employee is entitled is taken into account (see regs 4, 5 and 6 of SI 287/1977); also Ledwidge v Peter Mark Ltd UD 70/1978 (average weekly bonus); Greely v Baker UD 96/1978, UD 130/1978 (commission of about IR£10 per week); but see Eate v Semperit (Ireland) Ltd UD 46/1977 (claim for overtime in the circumstances not legally sustainable). Accrued holiday entitlements will also be awarded: Byrne v Bradden Design Centre Ltd UD 176/1978. Burlo v Langley [2006] EWCA Civ 1778, [2007] ICR 390 (CA) thus reversing the trend in cases such as Hardy v Polk (Leeds) Ltd [2004] IRLR 420 (EAT). The Court of Appeal has held that this does not apply, however, to cases of constructive dismissal, where credit must be given: Stuart Peters Ltd v Bell [2009] EWCA Civ 938 [2010] 1 WLR 10; [2009] ICR 1556. Murray v Reilly M 137; UD 3/1978; similarly McSweeney v Sunbeam Ltd UD 62/1978. However where it was a term of the employee’s contract of employment that he be paid under permanent health insurance, loss of payments under the said plan was a loss attributable to his dismissal: Fox v Europ Assistance Holdings Ltd UD 538/2004. Contrast Murray with Kerr v Marley Extrusions (Ireland) Ltd UD 78/1978 where the employee’s loss to date in respect of wages was assessed at nil as he had been in continuous receipt of disability benefit from the date of dismissal to the date of hearing. See, also, O’Shea v PJ Cullen & Sons UD 17/1977 – where the claimant whose jaw had been broken in an argument with a fellow employee was incapacitated for work for the first five weeks of his unemployment. No compensation was given in respect of that period. On the face of the decisions above, the EAT did not scrutinise the employee’s contractual entitlement to pay during sick leave, rather it assumed an absence of such entitlement. Maryland v Citywest Golf and Country Club UD 1438/2004. The EAT gave detailed consideration to decisions such as Eastwood v Magnox [2004] IRLR 733 and Johnson v Unisys [2001] UKHL 13; [2003] 1 AC 518. Contrast a situation where claimant’s illness resulted from factors which had led to her constructive dismissal: Allen v Independent Newspapers (Ireland) Ltd [2002] ELR 84, para [24.70].

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[24.44]

suffer due to depression resulting from her dismissal. She had continued to be in receipt of a disability allowance over that period. The EAT concluded that a claim for psychological injuries resulting in financial loss constituted a claim for personal injuries at common law and was not properly within its jurisdiction.

[24.43] An employee in receipt of disability benefit may be compensated in accordance with s 7(1)(c)(ii), as happened in O’Meara v AIBP (Nenagh) Ltd.64 At the hearing, the claimant declared himself unable to return to his normal work because of his medical and orthopaedic condition and it was likely that he would be left with some disability in the long term based on the evidence of his consultant orthopaedic surgeon. It followed that he had suffered no loss. Accordingly, he was awarded four weeks’ remuneration. The mere receipt of disability benefit should not, however, be automatically determinative of the outcome of a claim. The EAT will be required to look at all the circumstances; in particular, whether the disability was attributable to the action of the employer, see Carney para [24.67]. [24.44] O’Meara also clarified the figure to be taken for calculating compensation when an employee is on short-time. It is not the net figure being received by the employee while on short-time working but the figure he receives on normal working hours. The EAT took this view having considered legal submissions, accepting that the appropriate reference was to be found in reg 4 of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 which states that: ... his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked the number of hours that was normal for the employment.

Expenses and perquisites may also be taken into account.65 Legal costs will not be granted by the WRC although a party may be ordered to pay costs for having acted frivolously or vexatiously.66 64 65

66

O’Meara v AIBP (Nenagh) Ltd UD 1099/1993. Examples of the sort of expenses which may be taken into account are private use of a company car, but not the use of a colour television: Murray v CTV Services Ltd UD 109/1978; free meals, Kerr v Tower Hotel Group Ltd UD 12/1977; expenses incurred in looking for another job; compensation for loss of income from shares bought by an ex-employee under a scheme for employees providing that on dismissal such shares had to be sold back at par; removal expenses: Doheny v Allplast Ltd UD 120/1979; the cost of printing a curriculum vitae. It is unlikely that gratuities will be recovered. See Purdy, ‘Employers beware! Stock options could be considered remuneration when defining compensation in an unfair dismissal case’ (2005) 2 IELJ 17. Redundancy (Redundancy Appeals Tribunal) Regulations 1968 (SI 24/1968), reg 19(3). May legal costs be claimed as ‘expenses’ on the basis that costs and expenses are not the same? The British case of Hill v AUEF (1973) Industrial Tribunal 509/73 gave an affirmative answer to this question. In what was a highly complex case, the EAT held that the applicant had acted reasonably in employing a solicitor and counsel. The expense of paying his lawyers was regarded as an expense reasonably incurred in consequence of the matters to which the complaint related.

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[24.45] Because of the definition of ‘financial loss’, ‘actual loss’ at present does not cover loss relating to the manner of dismissal where it involves injury to pride or feelings. A strict approach was adopted in Vaughan v Weighpack,67 wherein Sir Hugh Griffiths stated the view that it is only if there is cogent evidence that the manner of the dismissal caused financial loss, as, for example, by making it more difficult to find future employment: ‘that the manner of dismissal becomes relevant to the assessment of compensation ... The court believes that it will only be on the very rarest occasions that it will be found that the evidence justifies an award under this head.’

The possibility was not altogether ruled out. In Johnson v Unisys paras [5.32] and [11.35] the employee’s claim for damages covering the manner of his dismissal was struck out by the House of Lords. In his speech Lord Hoffmann observed, regarding prior judicial authority, that only financial loss can be compensated: ‘But I think that is too narrow a construction. The emphasis is upon the tribunal awarding such compensation as it thinks just and equitable. So I see no reason why in an appropriate case it should not include compensation for distress, humiliation, damage to reputation in the community or to family life.’

Given the statutory wording in s 7(1)(c) it is unlikely the WRC would develop a concept of compensation akin to compensation for injury to feelings such as the Labour Court awards in cases under the Employment Equality Act 1998. In the UK it has been ruled out by the House of Lords in Dunnachie v Kingston Upon Hull City Council.68 However there is scope for interpretation of the words ‘just and equitable’ in s 7(1)(c)(i). They were emphasised in Knowles v Puresafe Ltd69 where it seemed to the EAT that only a nominal award should be made to the claimant.

[24.46] Bunyan v United Dominions Trust (Ireland) Ltd70 illustrates how many items can be covered under ‘actual loss’. There, ‘remuneration’ was assessed on the basis of 67

68 69

70

Vaughan v Weighpack [1974] ICR 261. See, too, Brittains Arborfield Ltd v Van Uden [1977] ICR 211. In Norton Tool Co Ltd v Tewson [1973] 1 All ER 183, Sir John Donaldson P indicated that if the manner and circumstances of dismissal could give rise to any risk of financial loss at a later stage by, eg, making the dismissed employee ‘less acceptable to potential employers or exceptionally liable to selection for dismissal’ then account should be taken of such circumstance and assessment of compensation increased accordingly (at 188). But note Sir John Donaldson in the same case: ‘‘Loss’ [in the context of s 116 of the Industrial Relations Act 1971] does not include injury to pride or feelings.’ (at 187). See further, at common law, para [11.44] et seq. Dunnachie v Kingston Upon Hull City Council [2004] IRLR 727. Knowles v Puresafe Ltd UD 435/2006. UK cases emphasising the words ‘just and equitable’ include O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615 (claimant’s attitude towards colleagues such it was inevitable she would be fairly dismissed within 6 months); Skiggs v South West Trains Ltd [2005] IRLR 459 (time-off for trade union membership and activities); Dignity Funerals Ltd v Brace [2005] IRLR 189 (Ct S) (any application of the ‘just and equitable’ test must be underpinned by findings of fact that the loss was caused to a material extent by the dismissal). Bunyan v United Dominions Trust (Ireland) Ltd [1982] ILRM 404.

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salary, annual bonus, employer’s annual contribution to the pension scheme in relation to the claimant, the annual value to the claimant of private use of the company car, the value of lunches and subscriptions, and employee’s PRSI and State pension contribution. The EAT excluded the value of a house mortgage subsidy and a personal loan subsidy as not constituting a reward for the claimant’s services but being a consequence of the exercise of a discretion in his favour. It was a discretionary matter for the employer as to whether any loan would be made to the claimant.

[24.47] The EAT placed considerable emphasis on the discretionary aspect of the employer’s lending policy. In different circumstances, a mortgage or subsidy could qualify as ‘remuneration’ being ‘a benefit’ in addition to pay. (ii) Deductions [24.48] Before the 1993 Amendment Act, the most important deductions from actual loss were social welfare benefits. These were subtracted from compensatory sums for loss of earnings other than those which related to an award of wages in lieu of notice. It could happen that a dismissed employee was receiving a higher sum in social welfare benefits than his or her take-home pay prior to dismissal – if so, the loss would be nil. If an employee contributed to his or her loss he would not be compensated. For example, where a dismissed employee did not sign on at the local employment exchange and was not in receipt of social welfare benefits during unemployment, the maximum personal rate of unemployment benefit which he could have received was deducted from his compensation. But where an employee received no social welfare payments because of difficulties in obtaining his P45 from his employer, no deductions were made.71 [24.49] On a strict construction of s 7 of the 1977 Act, it was difficult to justify deduction of social welfare benefits. Deduction effectively permitted an employer who had acted unfairly to benefit from the State’s contribution by way of social welfare payments. For years dissatisfaction with the deduction of social welfare benefits was expressed in unfair dismissal cases by individual members of the EAT. [24.50] Section 7(2A) inserted by the 1993 Amendment Act provides that in calculating financial loss, payments to the employee under Social Welfare Acts in respect of any period following the dismissal, and payments under the Income Tax Acts arising by reason of the dismissal, shall be disregarded. (iii) Prospective or future loss [24.51] Having assessed an employee’s actual loss on account of dismissal, the WRC is required under s 7 to award a sum for prospective loss of income. The assessment of future loss of earnings is inevitably speculative. The WRC’s task when deciding what compensation is just and equitable for future loss of earnings will almost inevitably involve a consideration of uncertainties. Net figures are used. If a dismissed employee has found other employment, the WRC will calculate the actual difference between his present and former wage. However if he is still out of work it will have the more difficult 71

Trans Irish Lines Ltd v Delaney UD 6/1977; and Doheny v Allplast Ltd UD 120/1979 respectively.

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task of assessing the claimant’s chances of obtaining employment in the future.72 This requires knowledge and information as to the particular employment situation. Expert evidence may be called. If future employment is likely to be intermittent this will be taken into account.73 In Bux v Toohey & Co Ltd,74 the EAT awarded a sum which took into account the likelihood of the claimant not being able to commence new employment at his previous level of wage. Normally, inflation and increases due, for example, to National Wage Agreements or their successors may be taken into account.75

[24.52] The less skilled the nature of the job, the less likely it will be that an exemployee will find it difficult to find new employment.76 If an ex-employee succeeds in getting a new job and is secure in that job, and if his qualifications and job opportunities are very good, the EAT will make no award in respect of future loss of earnings.77 [24.53] If an unfairly dismissed employee would probably have lost his old job in any event by reason of redundancy, this will be reflected in computing his entitlement to compensation.78 Likewise where a job is likely to become redundant in the foreseeable future, loss will be calculated up to that date but an amount will be included to take account of any redundancy lump sum which would have then been received: McDermott v Allied Irish Banks.79 Receipt of disability benefit in general disentitles an employee to compensation in respect of future or prospective loss.80 It has been clarified, however, that this does not apply in a situation where an individual is unable to mitigate due to maternity-related leave or similar leave. Referring to the present passage in the second edition of this work, the EAT held that ‘[a] period analogous to maternity leave is not 72

73 74

75

76

77 78

79 80

In Dunne v Duignan UD 261/1979 the EAT had to assess future loss of earnings for a claimant who was pregnant. On the evidence it was found she would have returned to work after the birth had she not been dismissed. Accordingly, she was entitled to compensation for the loss of future income (although the EAT did not think she would have returned immediately after the six weeks post-natal maternity benefit ended). See, too, Ennis v Donabate Golf Club Ltd UD 118/1978; O’Callaghan v Quinnsworth UD 68/1978 (EAT called upon to assess compensation against background of former employee’s ill health). See too O’Donoghue v Redcar and Cleveland Borough Council, n 69 above. McDonnell v Carpenter Energy Savers UD 491/1988. Bux v Toohey & Co Ltd UD 137/1978; see, similarly, McCarthy v Irish Shipping Ltd UD 100/ 1978. In Byrne v Board of Management Scoil Mhichil Naofa UD 757/2002 the EAT affirmed it could have regard to the implications of a dismissal based on allegations of sexually inappropriate behaviour and the difficulty such a claimant would have in finding new employment. National wage increases were taken into account in Mullins v Standard Shoe Co Ltd UD 134/ 1979. Buckley v Disabled Artists Ltd UD 3/1978; see too Ahern v Ahern Fabrics Ltd UD 74/1977; O’Shea v P J Cullen & Sons UD 17/1977. Healy v Cormeen Construction Ltd UD 98/1978. Branigan v Collins (Godolfin Gallery) UD 28/1977, also Trans Irish Lines Ltd v Delaney UD 6/1977. Contrast the British case of Young’s of Gosport Ltd v Kendell [1977] ICR 907 in which the EAT considered there was a chance that Kendell would have been made redundant and the future loss aspect would have been reduced from 12 months to nine months. McDermott v Allied Irish Banks UD 166/1978. Corcoran v Kelly & Barry Associates UD 174/1978; see paras [24.43]–[24.44].

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equivalent to a period of disability’ for the purposes of assessing an employee’s duty to mitigate her losses having been unfairly dismissed.81

[24.54] The task of assessing future loss may be very difficult for the Workplace Relations Commission. If an employee is in poor health, for example, compensation will be higher as he is less likely to get fresh employment. At the same time, if he or she is so ill as to be liable to be fairly dismissed in the near future, that factor too must be taken into account. The employee may be tainted by allegations of dishonesty arising out of the dismissal: if so, this too will be taken into account.82 [24.55] It very often happens that an unfairly dismissed employee receives no reference from his employer. This is likely to be a significant impediment in the search for new work. The WRC has no power to award a reference, self-evidently, but its predecessor the EAT did on occasion expressed the hope, for example, that its order would ‘to some extent take the place of a reference in satisfying would-be employers that [the claimant] is a good and conscientious [employee]’.83 Loss or diminution of rights due to dismissal [24.56] When, in its definition of ‘financial loss’, the 1977 Act refers to the value of any loss or diminution, attributable to the dismissal, of an employee’s statutory rights, it mentions only the Redundancy Payments Acts. There is no reference to loss of protection in respect of unfair dismissal or minimum notice legislation. Notwithstanding this, the WRC may consider loss of protection under each of these as well. With regard to compensation for unfair dismissal rights, the amount awarded is generally nominal.84 Loss of protection concerning rights in any new employment under the Minimum Notice and Terms of Employment Act 1973 during the qualifying period under the Act (13 weeks continuous service) is also likely to be nominal. No allowance is made where a claimant has re-established his rights under the Act in new employment.85 Loss of protection under the Redundancy Payments Acts is more complex. The WRC may have to take into account that an unfairly dismissed employee will receive no redundancy payments if he or she is dismissed on account of redundancy within the first two years of employment. It may have to examine whether a redundancy situation is likely to arise in the new employment and, if so, whether an employee will be more likely to be made redundant in the new employment on the normal practice of ‘last in first out’. The amount of compensation will be affected by evidence of the likelihood that, had the exemployee not been dismissed at the relevant time, he or she might thereafter have been 81 82 83

84

85

O’Kelly v WYG Engineering Limited [2013] ELR 279. Parnell v McCullough Piggott Ltd UD 359/1987. Loughran v Bearcroft Caterers, UD 61/1978. See, too, Greeley v Baker UD 96/1978, UD 130/ 1978 and contrast Kerr v Tower Hotel Group Ltd UD 12/1977. This may be defended, since the very fact that a dismissed employee is before the WRC and is receiving compensation manifests that the employee is exercising this ‘protection’ right. His or her future losses will be catered for. See Murtagh v O’Connor & Breen Ltd UD 186/1978; Healy v Cormeen Construction Ltd UD 98/1978; Rossiter v Sisters of La Sagesse UD 92/ 1978; O’Rourke v Ryan’s Meat Market Ltd UD 112/1978. See Healy v Cormeen Construction Ltd UD 98/1978.

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dismissed by reason of redundancy. Each case differs in its treatment of this item.86 Although it has not often been done, the EAT has awarded a sum in respect of accrued rights under social welfare legislation as a result of dismissal.87

(iv) Superannuation [24.57] Assessment of the ‘value of any loss or diminution in relation to superannuation’ represents a further task for the WRC under s 7. The assessment of loss of pension rights is exceptionally difficult.88 It straddles time present and time future. It is essential for the WRC to adopt a ‘forward-looking’ approach. The return of an employee’s own contributions to a pension scheme (less tax plus interest) is not sufficient per se to compensate for lost pension rights, because an employee is entitled to these as a matter of course. It is not sufficient to put the applicant in the same position as if he had not been dismissed. What the applicant loses is ‘the value of the employer’s contributions from the date of his dismissal ... He is also entitled to the value of the employer’s contributions from the date of the dismissal until such time as he finds further employment.’89 The WRC will have to estimate the length of this period. [24.58] For some claimants before the WRC the absence of appropriate professional advice enhances their difficulties. In some cases, details of pension schemes have been obtained from claimants and sent to an independent actuary for assessment of estimated 86

87 88

89

Contrast Murtagh v O’Connor & Breen Ltd UD 186/1978; Healy v Cormeen Construction Ltd UD 98/1978; Rossiter v Sisters of La Sagesse UD 92/1978; Fergus O’Farrell Ltd v Nugent UD 120/1978; UD 123/1978; McSweeney v Sunbeam Ltd UD 62/1978; Madigan v Yvonne Models Ltd UD 295/1978; Geraghty v Abouds Pages Ltd UD 46/1978; UD 50/1978; O’Rourke v Ryans Meat Market Ltd UD 112/1978; Byrne v P J Hegarty & Sons Ltd UD 126/1978; Ahern v Ahern Fabrics Ltd UD 74/1977. Cannon v John Meagher Ltd UD 32/1988; Murray v Lavelles (Achill) Ltd UD 528/1988. In Copson v Eversure Accessories Ltd [1974] ICR 636, Sir John Donaldson summarised the principles involved in assessing loss of pension rights under various headings, inter alia, burden of proof, types of loss, loss of pension position, loss of future pension opportunity. He stressed that it was impossible: ‘... to cover every eventuality and permutation and that there is no single right way of assessing the loss in respect of pension.’ In Eate v Semperit (Ireland) Ltd UD 46/1977, the applicant agreed to accept a sum on severance of his employment in full settlement of all outstanding claims he might have had. Later he initiated proceedings under the 1977 Act. The EAT found the claimant’s dismissal unfair. A breakdown of his lump sum compensation included a figure for ‘Return of Superannuation contributions’ – assessed at €314.52. Contrast the British case of Scottish Co-Op Wholesale Society Ltd v Lloyd [1973] ICR 137. Lord Thomson made it plain that, in assessing the loss of superannuation rights, there was no one right way of assessing the loss to the exclusion of all other methods of approach. Actuarial evidence, he said, might be properly regarded as not only not conclusive but also quite unnecessary. The ‘broad common sense approach’ should be adopted. He emphasised that the former employee was entitled to the return of his contributions to the superannuation fund and also to compensation for future loss of benefits: ‘Another approach, and one favoured by us, is to think of the employer’s future contribution to the superannuation fund as an addition to the employee’s salary. The result is virtually the same.’

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loss in regard to superannuation,90 the actuary being agreed between the parties.91 The same course was adopted where a claimant produced his own actuarial report and this was disputed by his employer.92

[24.59] The figure awarded for loss of pension rights is increasingly becoming the greatest single item in the assessment of compensation for unfair dismissal. Pension rights have also become a very important bargaining factor where claims are settled before a hearing. Even if a dismissed employee obtains new employment immediately following dismissal, and has been repaid his contributions, less tax, to the pension fund – and above all, if he has armed himself with an actuarial assessment – he may be able to negotiate a sum in settlement of prospective loss of pension rights. Many cases are settled or resolved following agreement on pension rights. [24.60] Transferable pensions present no problems. Where a pension scheme in new employment has a lower rate of benefit compared to that in the old, a sum will be given as compensation for loss of expected benefit. This is likely to take the form of a loss of benefit period. For example, the WRC might consider the difference between the benefits offered by the two schemes and discount the difference by the possibility that an employee might not live to enjoy them. Where an employee chooses to draw a pension early following dismissal, early payments received do not fall to be offset against an award of compensation.93 If an employee is unfairly dismissed from a job with a non-contributory scheme and moves to a job with a contributory scheme the additional cost of the new scheme would be a further basis for compensation.94 [24.61] If an employee is successful in claiming that he was unfairly dismissed and as a result becomes entitled to an early retirement pension, this will be taken into account in assessing his financial loss. (v) Contributory action by complainant or by employer: s 7(2)(a) and (b) [24.62] An employer bears the burden of satisfying the WRC that an employee contributed to his or her own loss.95 The EAT has interpreted s 7(2)(a) and (b) as 90

91

92 93 94

95

O’Neill and O’Connor v PMPA Ins Co Ltd UD 124 and 130/1980; Fox v Ashling Hotel Ltd UD 108/1978. Leggett v Barrys Tea Ltd UD 207/1989. See also O’Donoghue v Emerson Electric (Ireland) Ltd UD 177/1986 where the EAT heard the evidence of two actuaries. Maguire v Ofrex Group (Ireland) Ltd UD 90/1980. Knapton v ECC Card Clothing [2006] IRLR 756 (EAT). The amount will be based upon the annual costs of contribution times a multiplier applicable to the individual: see, eg, Powrmatic Ltd v Bull [1977] IRLR 145, [1977] ICR 469, in which a multiplier of 15 years was allowed. See too Bunyan v United Dominion Trust (Ireland) Ltd [1982] ILRM 404 and Leggett v Barry’s Teas Ltd UD 207/1989. See Clancy v Cannock Chase Technical College [2001] IRLR 331 (pension scheme yielding not only annual pension but also lump sum as of right rather than by commutation). Per Sir John Donaldson in AG Bracey Ltd v Iles [1973] IRLR 210 – the same principle holds in Ireland. A rare example of the EAT’s alluding to employer’s contributory action is Hennessy v McCann Nurseries Ltd UD 7/1979 (a minority view). Clearly, if the determination of the WRC is one of unfair dismissal, any contribution on the employer’s part will go towards that finding and have no significance on its own. It is difficult to see the point of s 7(2)(a).

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requiring action that is ‘blameworthy’ in some way. The conduct, competence, and so on, of the employee must be known to the employer at the time of the dismissal in order to rank as contributory action: s 7(2)(b). If the employer is unaware of, for example, certain misconduct of the employee until after it has decided to dismiss him, it is obvious that that conduct, although it occurred prior to the decision to dismiss, could not have contributed to the dismissal. However, the EAT might well have regard to subsequently discovered facts when assessing compensation under s 7(1)(c). Any deduction made thereunder would not be made under the contributory action provisions but under the general provision in s 7(1)(c) and, particularly, taking into account the words ‘such compensation ... as is just and equitable having regard to all the circumstances’.96

[24.63] In McCabe v Lisney & Son,97 counsel for the claimant appellant submitted that s 7(2)(b) should be construed so as to relate only to conduct affecting the amount of the employee’s financial loss after dismissal and not to conduct relating to his employment before then. The argument was, not surprisingly, rejected.

[24.64] The percentage of an employee’s contributory action is often high where the dismissal is found unfair solely or chiefly because of a denial of natural justice.98 In such cases procedural justice is regarded by the WRC as of paramount importance. At the same time, substantive justice is subtly achieved by adjusting a claimant’s compensatory award. It will sometimes be difficult for the WRC to arrive at the percentage to be deducted on account of contributory action. In McCabe v Lisney & Son,99 for an example of a case decided under the pre-2015 Act regime, this was variously assessed at 25%, 50% and 75% by the three members of the EAT. In the end, 50% was held to represent a fair percentage. McCabe brought to light an ambiguity in s 7 of the Unfair Dismissals Act. The net question related to the proper stage at which the reduction allowed under s 7(2)(b) should be made: should it be in respect of a dismissed employee’s overall loss or in respect of the maximum amount of compensation he is allowed under s 7(1)(c), namely, 104 weeks’ remuneration? Section 7(1)(c) refers to compensation in respect of ‘any financial loss’, and the repetition of this phrase and its definition in s 7(2) and (3) respectively suggest that the figure to be reduced is the overall one. On the wording of the Act a majority of the EAT applied the reducing factor to the claimant’s overall loss, not to the lesser figure of 104 weeks’ remuneration (the difference being between €50,790 and €24,379). The claimant was therefore awarded the full figure of two years’ remuneration by way of compensation. McCabe was appealed to the Circuit Court by the employers where the amount of compensation was reduced, with the court completely side-stepping the EAT’s interpretative dilemma by making no reference at all to overall loss. But the EAT’s earlier interpretation was 96

97 98

99

See House of Lords in W Devis & Sons Ltd v Atkins [1977] 3 All ER 40, [1977] IRLR 314, particularly Viscount Dilhorne. See, too, common law position, in Carvill v Irish Industrial Bank [1968] IR 325, 345–46. McCabe v Lisney & Son [1981] ILRM 289. Eg, Barr v Marley Extrusions (Ire) Ltd UD 78/1978; also, Kerr v Hotel Group Ltd UD 12/ 1977. McCabe v Lisney & Son UD 5/1977.

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restored on appeal to the High Court (Ellis J).100 It is clear that deductions are to be made from the full financial loss if it exceeds the maximum permitted sum, and any resulting excess over this must then be reduced, waived or abandoned to this maximum level.

[24.65] Whether large deductions are just and equitable has been questioned. In Britain the opinion was expressed, prior to Devis v Atkins,101 that a contributory factor of more than 80% was verging on the inconsistent. In Devis, Viscount Dilhorne observed that: ‘The Act requires the tribunal to consider whether a dismissal was “to any extent” caused by action of the employee. It does not preclude the tribunal from coming to the conclusion that the dismissal was wholly caused by his conduct and, in the light of that conclusion, thinking it just and equitable to reduce the compensation it otherwise would have awarded to a nominal or nil amount.’102

[24.66] Viscount Dilhorne referred to Phillips J who thought there was an inconsistency in finding a dismissal unfair and then not awarding compensation.103 He disagreed: ‘... a man may bring about his dismissal wholly by his own misconduct and yet ... that dismissal may be unfair through failure to warn him that his employment was in jeopardy. In such a case, and there may be others, there is no inconsistency [in holding that] the just and equitable award might be of nil compensation.’104

The Irish case law has tacitly approved Viscount Dilhorne’s dicta on a number of occasions.105

(vi) Conduct of the parties prior to dismissal [24.67] When determining compensation, the WRC must take into account all the circumstances of the case, according to the Supreme Court in Carney v Balkan Tours Ltd.106 Section 7(1) coupled with s 7(2)(d) allow the adjudication body to look at all the circumstances including the conduct of the parties prior to dismissal. In Carney the appellant was employed by the respondent in its Dublin office. Her work included making bank lodgments. It was contended by the respondent that she failed to adhere to specific instructions with regard to lodgments, as a result of which she was summarily dismissed. The appellant applied to the EAT which determined that the respondent had been procedurally at fault in dismissing the appellant and that as a result the appellant had been unfairly dismissed, but that she had contributed substantially to her own 100 101 102 103

104 105

106

McCabe v Lisney & Son [1981] ILRM 289. Devis v Atkins [1977] AC 931. Devis v Atkins [1977] AC 931 at 957. He referred to Kemp v Shipton Automation Ltd [1976] IRLR 305, [1976] ICR 514, 11 ITR 232, where the opinion was expressed that to award less than 20% (ie a contribution of more than 80%) was likely to be seen as verging on the inconsistent and that the EAT would feel free to vary the award if satisfied that it is based on a wrong principle, eg is inconsistent with the finding of unfair dismissal. Devis v Atkins [1977] AC 931 at 958. See White v Cadbury (Ireland) Ltd UD 44/1979; Condon v Rowntree Mackintosh Ltd UD 195/ 1979; Murray v Meath Co Council UD 43/1978. See, too, Dáil Question No 403, 31 October 1979, Col 1007. Carney v Balkan Tours Ltd (20 January 1997) 34/96.

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dismissal in that she had not followed laid down procedures. The EAT awarded the appellant compensation.

[24.68] The employer appealed against the EAT’s findings to the Circuit Court. The appeal was confined to the net question as to the proper interpretation of s 7 of the 1977 Act. Section 7(1) of the 1977 Act expressly required the EAT to have regard to all the circumstances in determining the redress appropriate in any given case, and in particular expressly provided in relation to redress consisting of a payment by way of compensation, that such payment was to be just and equitable having regard to all the circumstances. These words, the employer contended, gave to the EAT a sufficiently wide discretion to take into account the pre-dismissal conduct of the appellant independently of any amendment introduced by the 1993 Act. [24.69] The Supreme Court107 held on a case stated from the Circuit Court that: (1) (2)

There was no doubt that the conduct of an employee was material in determining his or her rights to redress under the 1977 Act. Under s 6 of the 1977 Act, if the dismissal resulted wholly or mainly from the conduct of the employee there would be no right to redress whether by way of reinstatement or compensation. The Court remarked: ‘Indeed one of the surprising features of the present case is that the EAT having found that the claimant “contributed substantially towards her dismissal” ... had satisfied themselves that the employee had not contributed wholly or mainly to her dismissal.’

(3)

(4)

(5)

The discretion conferred upon the tribunal (or other adjudicating body) by s 7 of the 1977 Act in relation to the computation of a payment by way of compensation was very wide. Whilst the specific directives in paras (a), (b) and, more particularly, (c) of s 7(1) may be interpreted as referring to events subsequent to dismissal, s 7(2)(d) of the 1977 Act coupled with wide discretion conferred upon the adjudicating tribunal seemed to the court compelling reason for inferring that the legislature intended that the body determining the nature or extent of the redress to which the employee was entitled should look at all of the circumstances of the case including the conduct of the parties prior to the dismissal.108 The EAT in determining the payment to be made by the respondent to the appellant by way of compensation for her unfair dismissal in respect of financial loss incurred by her and attributable to that dismissal was entitled to have regard to her contribution to the dismissal as one of the relevant circumstances in determining the amount so paid.

[24.70] Carney influenced the EAT in finding that it could consider the extent to which a claimant’s financial loss was attributable to any act or omission or conduct by or on behalf of the employer prior to dismissal in Allen v Independent Newspapers (Ireland) 107 108

Murphy J nem diss. McCabe v Lisney & Son [1981] ILRM 289.

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Ltd.109 The claimant since dismissal had been unfit for work by reason of illness. The Tribunal found the claimant’s illness was attributable wholly to the factors which led her to resign her employment and claim constructive dismissal. Her illness had led to her financial loss. It followed that the EAT must hold that the claimant’s financial loss was attributable to the conduct of the employer. There was dispute between the parties’ medical experts not just in relation to the claimant’s illness but also its likely duration. On balance the Tribunal accepted the evidence of the claimant’s medical witness as to diagnosis and prognosis. She was awarded compensation equivalent to 78 weeks’ remuneration.

(vii) Non-compliance with procedures [24.71] In line with the Act’s policy of promoting procedural fairness and of encouraging collective bargaining in this respect, s 7(2)(d) enables the WRC to take into account the extent, if any, of compliance or failure to comply by an employer or employee with any procedure of the kind referred to in s 14(3) of the Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister for Enterprise and Employment. The Code of Practice on Grievance and Disciplinary Procedures issued by the Labour Relations Commission in 2000 has proven extremely important in this regard. Procedures in s 14(3) relate to procedures agreed upon by or on behalf of the employer concerned and by the employee concerned or a trade union,110 or an excepted body under the Trade Union Acts, representing him or procedures that have been established by custom and practice in the employment concerned. (viii) The duty to mitigate: s 7(2)(c) [24.72] The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss.111 Sir John Donaldson explained the duty in AG Bracey Ltd v Iles:112 ‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay ...’. 109

110

111

112

Allen v Independent Newspapers (Ireland) Ltd [2002] ELR 84. It also accepted as persuasive the English EAT decision in Devine v Designer Flowers Wholesale Florist Sundries Ltd [1993] IRLR 517. See also Edwards v Governors of Hanson School [2001] IRLR 733; the broader question of fairness in this context is considered in McAdie v Royal Bank of Scotland [2007] EWCA Civ 806. Kerr v Tower Hotel Group Ltd UD 12/1977; O’Connor v Marley Extensions (Irl) Ltd UD 135/ 1979. Bessenden Properties Ltd v Corness [1974] IRLR 338 (CA). See Fay v The Order of Hospitalers of St John of God UD 92/1980. AG Bracey Ltd v Iles [1973] IRLR 210; Flynn v McFarlane Plastics Ltd UD 553/2005.

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[24.73] These principles are illustrated in decisions of the Workplace Relations Commission and the Labour Court (and, under the former regime, the EAT). It is clear that an employee must produce evidence at the unfair dismissal hearing that he or she has made a ‘determined effort to find work’.113 [24.74] In Sheehan v Continental Administration Co Ltd114 the EAT endorsed the position set out in the second edition of this work that ‘[a] claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss.’115 This passage was recently adopted and applied by the Workplace Relations Commission in deeming a claimant to have made insufficient effort to mitigate his loss.116 Where the complainant has been unavailable for work and thereby has not availed of opportunities to mitigate his or her loss, compensation will normally be reduced accordingly.117

[24.75] A dismissed employee is generally expected to register with an employment agency such as FÁS. Otherwise, compensation may be reduced.118 But more than mere registering with an agency is required. If he or she attends a training course during unemployment and receives a training allowance, it seems that compensation will be reduced thereby.119 Where an employee attends a full-time course following his dismissal and this effectively withdraws him or her from the labour market, he or she is likely to receive no compensation at all for loss during that period.120 Paradoxically, if the claimant attends a relatively short course with the aspiration of finding work again as soon as possible, he or she is likely to be compensated for loss during this period. If an unfairly dismissed employee cashes in a life assurance policy in an effort to alleviate loss, the Workplace Relations Commission may allow the difference between the amount actually paid to the assurance company and the surrender value the claimant receives. An employee’s efforts to mitigate loss can be severely impeded without a reference121 and an employer who persists in refusing to give a reference may have to ‘pay’ for its intransigence before the WRC. 113 114 115 116

117 118 119

120

121

Duggan v A&T Drain Services UDD 1737 (Labour Court, 28 July 2017). Sheehan v Continental Administration Co Ltd UD 858/1999. Redmond, Dismissal Law in Ireland (2nd edn, Tottel Publishing, 2007), [23.71]. An Employee dismissed while on long term sick leave v An Employer ADJ-00005398 (6 July 2017). Ikoro v Woodies DIY Limited (UDD1739, Labour Court, 3 August 2017). Kearney v Standard (1938) Ltd UD 138/1978; Tormey v Display Development Ltd UD 2/1977. Martin v Weldon Ltd UD 30/1978 where the claimant attended an AnCO training course during unemployment and received a training allowance. He was awarded the difference between his earnings and the allowance by the EAT. The decision as to dismissal was reversed on appeal to the Circuit Court (23 November 1978). See, too, Ledwidge v Peter Mark Ltd UD 70/1978. See Pagano v HGS [1976] IRLR 9 – where the claimant took up full-time study three months after dismissal. His loss was assessed at his net wage loss prior to going to college. See ILO Recommendation No 119, Ch 5, page 120, fn 16 in relation to certificates of character.

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[24.76] Refusing other employment merely because it involves lower wages can be a breach of the duty to mitigate.122 Conversely, accepting other employment which is very much lower paid can be a breach of the duty. The test is one of reasonableness.123 In the same way, an employee must not unreasonably restrict his or her search solely within a narrow field and must be open to finding work in a broader sphere.124 If an employee is close to retiring age, he should be ready to consider favourably work he would not normally have considered, in order to mitigate his loss.125 An employee’s reluctance in regard to seeking alternative employment may be regarded as reasonable in certain circumstances if, for example, he wishes first of all to clear his name.126 Where it is reasonable for an employee to become self-employed straightaway or within a short time after dismissal, any fall in income is likely to be taken into account.127 The duty to mitigate ceases when an order of reinstatement or re-engagement is made by the WRC. It does not revive unless and until an employee is informed that the employer is unwilling to take him back.128

[24.77] The duty to mitigate succeeds the heading of contributory action in s 7(2) of the Unfair Dismissals Act. In a case where deductions were made in respect of each such 122

123

124 125 126 127

128

As in the British case of Connolly v Robinson (1946/72). Refusal of an offer of reemployment with the same employer was held to be a failure to mitigate loss and hence a disentitlement to compensation in Murphy v Valley Investment Ltd UD 112/1980. See too Wilding v British Telecommunications plc [2002] EWCA Civ 349, [2002] IRLR 525 (CA) (guidance re dismissed employee who has refused offer of re-engagement and duty to mitigate). But note the subsequent comments of EAT President Langstaff J, Cupar Contracting Limited v Lindsey UKEAT/0184/15 where the Wilding principles were restated with a warning of the considerable dangers in an approach that suggests that the duty to mitigate is to take all these little steps to lessen the loss. Langstaff J emphasised that there is a difference between acting reasonably and not acting unreasonably – the claimant does not have to show that what he did was reasonable. The central cause is the act of the wrongdoer and the claimant is not to be put on trial. For further analysis of Wilding and Cupar see Wright v Silverline Care Caledonia Ltd [2016] UKEAT 0008_16_1210 (12 October 2016). See dicta of Sir John Donaldson in Archbold Freigtage v Wilson [1974] IRLR 10; and in Ireland McCabe v Lisney & Son UD 5/1977; Eate v Semperit (Ireland) Ltd UD 46/1977. In Riordans Travel Ltd v Acres Co Ltd (17 January 1979) HC McWilliam J referred to the following words from Mayne on Damages which were approved by Davies LJ in Moore v Der Ltd [1971] 1 WLR 1476 at 1479: ‘Although the plaintiff must act with the defendant’s as well as his own interests in mind, he is only required to act reasonably, and the standard of reasonableness is not too high in view of the fact that the defendant is an admitted wrongdoer.’ Murphy v Independent News & Media (UD 841/2013). As in Lloyd v Standard Pulverised Fuel Co Ltd [1976] IRLR 115. Zambra v Duffy UD 154/1978. Dowling v WB Peat & Co Ltd UD 93/1978; Cavanagh v Dunnes Stores Ltd UD 820/1994; Bunyan v United Dominion Trusts (Ireland) Ltd [1982] ILRM 404. ‘Where re-engagement is recommended on different terms, the employee can do no more than wait for the offer’ per Sir Hugh Griffiths in Curtis v Paterson (Darlington) Ltd [1973] ICR 496 at 502. See Dobson & Heather v KP Morritt Ltd [1972] IRLR 99; Williams v Lloyds Retailers Ltd [1973] IRLR 262; How v Tesco Stores Ltd [1974] IRLR 194; Kendrick v Aerduct Productions [1974] IRLR 322; Crampton v Dacorum Motors Ltd [1975] IRLR 169.

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heading the statutory order was reversed.129 The EAT considered this more equitable: 30% of the compensatory award was deducted for failure to mitigate and 75% deducted from the remainder for contributory conduct.

D.

NATURAL JUSTICE

[24.78] It can happen that a claimant selects one of the three remedies on the Workplace Relations Complaint Form but changes his or her mind during the proceedings. Typically, a claim for reinstatement may become less attractive to an employee where accusations are made by the employer which, however the case is resolved, would make a return to work almost impossible. Or a claimant may look for compensation and the WRC may prescribe one of the primary remedies. This transpired under the former EAT system in State (Irish Pharmaceutical Union) v Employment Appeals Tribunal.130 The EAT made a compensatory award at the same time that it made it a term of the re-engagement order that the claimant should commence work on a date within three weeks of the date of the order and be compensated for the loss between the date of her dismissal and the date of re-engagement at a loss differential calculated as the difference between her net salary and the unemployment benefit received. This they reduced by 30 per cent, finding that the claimant had contributed to her dismissal (relying upon s 7(2)(b) of the 1977 Act). [24.79] Neither the employee nor the employer, both of whom were represented by solicitor and counsel throughout the hearing, raised any issue as to reinstatement or reengagement. In the premises, the employer applied to the High Court contending that the determination of the EAT should be quashed by order of certiorari. Barrington J in an ex tempore judgment held that the EAT had acted outside its jurisdiction. The claimant had set ‘the parameters of the hearing’ when she filled in Form RP51A (the predecessor to Form TI-A131). As far as the employer was concerned there had been ‘a genuine miscarriage of justice’. [24.80] On appeal to the Supreme Court, McCarthy J132 elaborated on the role of natural justice or preferably, as he put it, the right to fair procedures under the Constitution in all judicial or quasi-judicial proceedings: ‘... it is a fundamental requirement of justice that person or property should not be at risk without the party charged being given an adequate opportunity of meeting the claim, as identified and pursued. If the proceedings derive from statute, then, in the absence of any set or fixed procedure, the relevant authority must create and carry out the necessary procedures; if the set or fixed procedure is not comprehensive, the authority must supplement it in such a fashion as to ensure compliance with constitutional justice, for which proposition there is a wealth of authority.133 In the instant appeal, it is argued for the Tribunal and the employee that the employer and its legal advisors were aware of the powers of the Tribunal and s 7 of the Act; consequently, they had adequate and ample 129 130 131 132 133

Lissadel Towels Ltd v O’Halloran UD 203/1978. State (Irish Pharmaceutical Union) v Employment Appeals Tribunal [1987] ILRM 36. Which itself has now been replaced by the Workplace Relations Complaint Form. Finlay CJ, Walsh, Henchy and Hederman JJ concurring. O’Brien v Bord na Móna [1983] IR 255; Loftus v The Attorney General [1979] IR 221; East Donegal Co-Operative v The Attorney General [1971] IR 317.

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[24.83]

opportunity to call such evidence and to make such representations as they saw fit on the appropriate redress, if and when the question arose. Such an argument might be sustainable if the redress sought were not specified other than being under the Act and the “run” of the hearing had been at large. Such was not the case. The hearing was directed towards two substantial issues, the dismissal and a remedy by way of compensation. That part of the determination by the Tribunal, albeit within the terms of s 7 which prescribed re-engagement as the appropriate redress, was one made without affording the other party, the employer, any adequate or real opportunity of meeting the case. Consequently, it was in breach of that fundamental principle which the employer calls in aid.’134

[24.81] The Supreme Court also considered the application of severability to the determination. It was submitted that the finding of contribution by the employee could be severed and the matter remitted to the EAT solely for the purpose of the mathematical calculation of loss. The court would not, however: ‘... accept that the calculation of the percentage of contribution can be made apart from the calculation of compensation; they are bound up with each other and different considerations may apply than those appropriate where the main redress afforded is reengagement. The employer also argues that, since the time for appeal (six weeks) from the original determination has long since gone, that any further appeal can only be from the assessment of compensation and not from the finding of the dismissal being unfair. This is so, but it is a direct result from the wider scope of the application made to quash the determination.’135

[24.82] Following this decision it became standard practice in a hearing for both sides to be asked their view on the statutory remedies, whether sought or not sought by the claimant, without prejudice to any eventual finding the could be made. The Workplace Relations Commission should adopt the same approach.

E.

INSOLVENCY OF EMPLOYER AND RECOURSE TO SOCIAL INSURANCE FUND [24.83] A very significant recent development in the context of the employer’s insolvency is the decision of the Irish Court of Appeal in Glegola v Minister for Social Protection.136 In Glegola the Court of Appeal held that Ireland had not properly transposed the requirements of art 2(1)(b) of Directive 2008/94/EC on the protection of employees in the event of the insolvency of their employer. This was because of the the definition in s 1(3) of the Protection of Employees (Employers’ Insolvency) Act 1984 and its provision that ‘an employer which is a company will be taken to have become insolvent, if but only if, a winding up order is made or a resolution for voluntary winding up is passed or a receiver or manager of its undertaking is duly appointed’. As Finlay Geoghegan J sumarised the position: ‘[t]he requirement that a winding up order is made in order that a company will be taken to have become insolvent has the effect that the 1984 Act does not permit a person to 134

135 136

State (Irish Pharmaceutical Union) v Employment Appeals Tribunal [1987] ILRM 36 at 40– 41. State (Irish Pharmaceutical Union) v Employment Appeals Tribunal [1987] ILRM 36 at 41. Glegola v Minister for Social Protection [2017] IECA 37, [2017] ELR 117. For analysis see Kerr, ‘Employers’ Insolvency: Recent Developments’ (2017) 14 IELJ 32.

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make a claim against the Social Insurance Fund in circumstances of a deemed state of insolvency following an application and decision by a court of a type specified in Article 2(1)(b) of the Directive.’137

[24.84] Finlay Geoghegan J went on to make an award of Francovich138 damages for failure to implement the Directive, awarding the precise amount that the plaintiff had originally been awarded in her Unfair Dismissal claim before the Rights Commissioner service (the claim having pre-dated the introduction of the WRC).

137 138

Glegola v Minister for Social Protection [2017] IECA 37, [2017] ELR 117 at 127. Joined Cases C–6/90 and C–9/90 Francovich and Bonifaci v Italy.

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Chapter 25

Procedural Aspects of Unfair Dismissal A.

GENERAL

[25.01] At its introduction some 40 years ago, a major aspiration of the Unfair Dismissals Act 1977 was the provision of an adjudicatory service which would be speedy and free. Until 2015, that service used to comprise the Rights Commissioners and the EAT, with appeal lying to the ordinary courts from a decision of the EAT. 20 May 2015 marked the enactment of the long-awaited Workplace Relations Act 2015, the key provisions of which for present purposes were commenced on 1 October 2015. The 2015 Act embodied an overhaul of the employment law fora in Ireland, including the eventual abolition of the EAT, and the incorporation of the Rights Commissioners, Equality Tribunal, the Labour Relations Commission and NERA into one centralised body: the Workplace Relations Commission (WRC). [25.02] The process under the 2015 Act is streamlined and from 1 October 2015, all claims across the full spectrum of employment rights legislation are now heard by an Adjudication Officer of the WRC. Appeals of the decisions of the adjudication officer are heard by the Labour Court. The only appeal from the Labour Court under the 2015 Act is to the High Court on a point of law. [25.03] Proceedings before an adjudication officer are held ‘otherwise than in public’1 before a single Adjudication Officer. These are two fundamental changes in first instance adjudication when compared with the former system of public hearing in the Employment Appeals Tribunal with the identity of the parties being revealed. Under the new system, written decisions are to be issued within 28 days of the hearing and are anonymised. Decisions of the Adjudication Officer may be appealed to the Labour Court within 42 days of the date of the decision.

[25.04] When it comes to determinations of the Labour Court, and previously the decisions of the EAT, the position is marginally better. Labour Court decisions are publicised on the WRC website and hearings of the Labour Court are in public, unless there are special circumstances which require the hearing to be in private.

B.

ADJUDICATION OFFICERS

[25.05] Prior to the establishment of Adjudication Officers, Rights Commissioners adopted an informal, inquisitorial approach and enjoyed a wide discretion concerning 1

Unfair Dismissal Act 1977, s 8(6).

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procedures. The EAT adopted a considerably more formal approach, but still exercised far greater latitude than procedural constraints in litigation in the civil courts.

[25.06] All employment complaints under the WRC are referred to the Director General of the WRC, who then may refer the complaint to a mediation officer for mediation. Mediation is a service provided as part of the Early Resolution Service and is typically carried out by a case officer and the relevant parties over the telephone, or in person. If the complaint cannot be resolved by mediation, or if the complaint is deemed to be one which is not suitable for mediation by the Director General of the WRC, it is then referred to an adjudication officer for adjudication. [25.07] Proceedings before an adjudication officer are conducted ‘otherwise than in public’. The adjudication officer gives the parties the opportunity to be heard and present relevant evidence, and can also require any person to attend, give evidence and produce documents. The adjudication officer may dismiss a complaint which is frivolous or vexatious. The hearing shall be conducted in private and the adjudication officer is required to issue a written decision which shall be available on the internet in anonymised form. As with the former regime prior to 2015, it is intended that parties should not require legal representation but it very important to note that where a party is represented by a non-lawyer, very limited litigation privilege will apply and legal advice privilege cannot apply.2 Evidence given at an adjudication officer hearing is not given under oath. Decisions should issue within 28 days of the hearing or as soon as possible. Further information regarding adjudications may be found on the website of the WRC: www.workplacerelations.ie.

C.

THE LABOUR COURT

[25.08] The appeal before the Labour Court is by way of de novo appeal. The nature of a de novo appeal has been analysed by Clarke J (as he then was) in the Supreme Court decision of Fitzgibbon v Law Society3 in a passage worth setting out in full: ‘It seems to me that the critical characteristics of a de novo appeal are two fold. First, the decision taken by the first instance body against whose decision an appeal is brought is wholly irrelevant. Second, the appeal body is required to come to its own conclusions on the evidence and materials properly available to it … However, the matter does not end there. It is sometimes argued that, by providing for a de novo appeal, what happened at first instance becomes entirely irrelevant and, indeed, inadmissible. That is not necessarily the case. First, it is important to recognise that the process at first instance may narrow the issues which truly remain alive in whatever 2

3

Carron v Fastcom Broadband Limited t/a Fastcom [2017] ELR 44. The EAT held that litigation privilege attached to communications between the respondent and Peninsula Business Services (Ireland) Limited from the time that they were notified of the complaint of unfair dismissal being made. Litigation privilege did not attach to communications between the respondent and Peninsula prior to the date the claimant’s claim was filed under the Unfair Dismissals Act. Fitzgibbon v Law Society [2014] IESC 48.

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adjudicative proceedings are under consideration. To take a simple example from the appellate structure of the courts, there is available what is in substance a de novo appeal to the High Court from almost all civil decisions of the Circuit Court. The High Court judge considers the case afresh on the basis of the evidence presented on the appeal and without attaching any weight to the decision made by the Circuit judge. However, what happened in the Circuit Court is not, in those circumstances, necessarily entirely irrelevant. The pleadings which were exchanged pre-trial in the Circuit Court may well have narrowed the issues between the parties so that, at least in the absence of leave to amend, the issues remain thus narrowed on any appeal. An appeal may not, by its terms, extend to the entirety of the decision made at first instance so that, in the example of an appeal from the Circuit Court to the High Court, the appeal may be brought only against the quantum of an award of damages made by a Circuit judge and not against that judge’s finding on liability. Second, and apart from such matters of form and process, evidence given in the first instance proceedings will not, necessarily, be entirely irrelevant to the process on appeal. It seems to me that the default position, in the absence of any specific rule to the contrary, must be that, in the case of a de novo appeal, it remains for the parties to again present to the appellate body whatever evidence or materials may be considered necessary for their case. Likewise, if, and to the extent that, the process may be inquisitorial, then, again in the absence of rules to the contrary, the inquisitorial process must start afresh before the appellate body. However, there are obvious exceptions to that position even in the absence of specific rules. First, it is always open to a party to question the credibility of an account being given or a position being taken on an appeal by reference to evidence given or a position taken at first instance. Just as a previous inconsistent account can always be put to a witness in court proceedings, so also can a previous inconsistent account given at first instance be put to a witness at a de novo appeal hearing for the purposes of testing the credibility of any new account given. It will, of course, be a matter for the appellate body to form its own judgment on the credibility of the new account in the light of the extent to which any difference may be established between the account given to that appellate body and the account given to the first instance body and also having regard to any explanation given for any change of position. Likewise, it is always possible to place before any adjudicative body evidence of previous admissions made by any party against whom an adverse finding on appeal might be made. In the law of evidence as applied in the courts, previous admissions amount to a well recognised exception to the hearsay rule. It seems to me that the default position, in the absence to any rule to the contrary, must be that an admission, made by a party at a first instance hearing or otherwise made during the first instance process, can be the subject of evidence at a de novo appeal. It is not that the party concerned is, necessarily, bound by an admission previously made. It is, on a de novo appeal, a matter for the appellate body to make its own mind up based on the evidence and materials before it. However, just as an admission made by a party against its own interest outside the context of hearings altogether can be the subject of evidence, so also can a similar admission made at first instance be the subject of evidence. The weight to be attached to that evidence in the overall assessment of the issues before the appeal body will, of course, be a matter for it. In summary, therefore, it seems to me that the use of the term “de novo appeal” or similar terminology, carries with it a requirement that the appellate body exercise its own judgment on the issues before it without any regard to the decision made by the first instance body against whom the appeal lies. 4.8 In addition, and in the absence of any specific rules to the contrary, the default position will be that it will be necessary that all materials on which the appellate body is to reach its adjudication are properly re-presented to that body in whatever form may be appropriate to the type of proceedings concerned. Where the proceedings involve oral evidence, then witnesses will have to be called again. Where the proceedings involve enquiries by the decision maker

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then those enquiries will have to be made afresh. 4.9 However, even in the absence of specific rules, that latter proposition is subject to some qualification. The process at first instance may have reduced the scope of issues which are properly before the appeal body. Likewise, that scope may be influenced by the terms of any appeal brought. Furthermore, there may be circumstances, such as those which I have identified, where statements made, evidence given or positions adopted at the first instance hearing may, in themselves, be properly admissible as part of the appellate process.’4

The approach of Clarke J has been adopted and applied by the Labour Court5 as setting out ‘with commendable clarity’ the nature of a de novo appeal in an unfair dismissal context.

[25.09] The conduct of an appeal hearing will be regulated by the Chairman of the division of the Labour Court before which the appeal is being heard, along with the assistance of two lay members (one of which is an employer’s member and the other is worker’s member) and the Labour Court secretary. Recourse should be had to the detailed procedural requirements set out by the Court.6 The Labour Court secretary function processes applications, acts as secretary at hearings and notifies parties of dates of meetings, as well as of decisions of the Court. A person may represent him or herself before the Labour Court or be represented by counsel or solicitor or by a representative of a trade union or of an employers’ association or with the leave of the Court, by any other person. As with proceedings before the WRC, however, it very important to note that where a party is represented by a non-lawyer, very limited litigation privilege will apply and legal advice privilege cannot apply.7 [25.10] The Labour Court’s decision on appeal cases may uphold the original decision of the adjudication officer, or vary or overturn it. Recommendations of the Labour Court are published on www.workplacerelations.ie. The Labour Court has the power to summons witnesses, take evidence on oath and require any summoned witness to produce documents. Proceedings before the Labour Court are in public except where a party successfully proves the existence of “special circumstances” which require a private hearing. The Labour Court has discretion as to how the hearings are conducted, as long as it complies with the Labour Court (Employment Rights Enactments) Rules 2015, which are available on www.workplacerelations.ie. The Director General of the WRC may choose to deal with a complaint, and the Labour Court may deal with an appeal, through written submissions and no actual 4 5 6

7

Fitzgibbon v Law Society [2014] IESC 48, at 4.2–4.5. Cuala Developments Limited v Gamble EDA 174 (15 February 2017). Labour Court (Employment Rights Enactments) Rules 2016 (available at www.workplacerelations.ie.) In Carron v Fastcom Broadband Limited t/a Fastcom [2017] ELR 44 the EAT held that litigation privilege attached to communications between the respondent and Peninsula Business Services (Ireland) Limited from the time that they were notified of the complaint of unfair dismissal being made. Litigation privilege did not attach to communications between the respondent and Peninsula prior to the date the claimant’s claim was filed under the Unfair Dismissals Act.

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[25.14]

hearing. If either of the parties objects to this process, then a hearing will take place as usual.

D.

ALTERNATIVE REMEDIES

[25.11] A number of statutes ensure that a complainant will not succeed under their provisions and also under the Unfair Dismissals Acts, with some examples including the Protection of Employees (Fixed-Term Work) Act 2003, the Protection of Employees (Part-time Work) Act 2001, the Employees (Provision of Information and Consultation) Act 2006, and the Protected Disclosures Act 2014.

[25.12] The Unfair Dismissals Act regulates alternative remedies as between the common law and itself in s 15 of the 1977 Act. After a general disclaimer that nothing in the 1977 Act, apart from s 15, shall prejudice a person’s right to recover damages at common law for wrongful dismissal, s 15, as amended, continues: (2) Where a decision has been made by an adjudication officer in respect of a claim by an employee for redress under this Act, the employee shall not be entitled to recover damages at common law for wrongful dismissal in respect of the dismissal concerned. (3) Where the hearing by a court of proceedings for damages at common law for wrongful dismissal of an employee has commenced, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.

The constitutionality of this section was sometimes doubted. In Mid-Western Health Board v Ponnampalam8 Gleeson J did not regard it as: ‘a matter for this court to decide whether it is constitutional for the legislature to enact, as it did in s 15(2) of the Unfair Dismissals Act, that because he embarked on the present procedure [under the Unfair Dismissals Act] the claimant is not entitled to damages at common law.’

[25.13] Where a claimant, suspended on pay, applied in writing to the High Court seeking to have the suspension overturned, the EAT held it had no jurisdiction: The State (Ferris) v EAT and Royal Liver Friendly Society.9 The High Court agreed, but the Supreme Court did not. Once it was established that no relevant proceedings for ‘wrongful dismissal’ had been initiated, the court held that the EAT’s decision was ultra vires. [25.14] In The State (Dublin Corporation) v EAT and Mooney10 the employee was dismissed for alleged misconduct. A plenary summons was issued on his behalf seeking, inter alia, a declaration that he had not been validly dismissed and an injunction restraining his dismissal. It also sought ‘damages for breach of contract’. In addition, the employee applied under the 1977 Act to the EAT. At the hearing the employer relied on 8 9

10

Mid-Western Health Board v Ponnampalam (26 March 1980) CC. The State (Ferris) v EAT and Royal Liver Friendly Society (1985) 4 JISLL 100. The High Court in Tammegami v Employment Appeals Tribunal and Tullow Oil plc and Tullow Oil Company Ltd (27 November 1987) Blayney J considered the relevant factors to be taken into account in establishing that proceedings amount to a claim at common law for damages for wrongful dismissal. The State (Dublin Corporation) v EAT and Mooney (20 October 1986) HC.

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s 15(3) (slightly differently drafted then, but the point is not relevant for present purposes). The EAT accepted the claimant’s argument that the sole purpose of initiating proceedings was to prevent his dismissal. ‘Damages for breach of contract’ did not mean damages for wrongful dismissal. The employer sought an order of prohibition in the High Court. The employee contended that a claim for damages for breach of contract is not necessarily a claim for wrongful dismissal. Thus, it was argued, the true nature of the claim was a matter of doubt which was properly resolved by the EAT. The High Court was convinced. The EAT, it held, had acted within jurisdiction.

[25.15] Latitude on the part of the statutory body (now the WRC) was, however, considerably reduced by the Supreme Court in Parsons v Iarnród Éireann,11 where the plaintiff who had been dismissed embarked upon Unfair Dismissal proceedings before a Rights Commissioner. The Rights Commissioner recommended that the employee have recourse to an ad misericoridam internal appeal within the employer without prejudice to either party’s rights: having been unsuccesful at this ad misericoridam stage, the employee then instituted proceedings in the High Court seeking various declaratory reliefs relating to his dismissal. The Supreme Court accepted the employer’s argument that this was impermissible and that the employee, having chosen to commence his proceedings in the Rights Commissioner Service, could not subsequently seek to embark on High Court litigation – even though he had been awarded no redress by the Rights Commissioner Service. Mr Parsons had made his election and was bound by it. In explaining the statutory framework, Barrington J, with whom the other two Judges of the Supreme Court agreed, stated as follows: ‘… [Section] 15 of the Unfair Dismissals Act 1977 provides that the worker must choose between suing for damages at common law and claiming relief under the new Act [the Unfair Dismissals Act 1977].’12

[25.16] In the more recent High Court case of O’Domhnaill v Health Service Executive13 the High Court (Laffoy J) cited the above passage from Parsons before stating that: ‘The effect of s 15, as applied by the Supreme Court, is that an employee who may have an action at common law for wrongful dismissal, as well as a statutory right to relief under the Unfair Dismissals Acts 1977 to 2007 for unfair dismissal, must elect whether to pursue his statutory entitlement or his common law entitlement.’

[25.17] Regard must also be had to the significant statutory change introduced by the Credit Guarantee (Amendment) Act 2016. Section 17 thereof amends s 101 of the Employment Equality Act 1998 by providing that where an employee refers both a claim for unlawful discrimination in respect of a dismissal under s 77 of the Act and a claim for unfair dismissal under the Unfair Dismissals Act 1977, then the discrimination claim shall automatically be deemed to have been withdrawn unless the employee withdraws the unfair dismissal claim. 11 12 13

Parsons v Iarnród Éireann [1997] 2 IR 523. Parsons v Iarnród Éireann [1997] 2 IR 523 per Barrington J at 529. O’Domhnaill v Health Service Executive [2011] IEHC 421.

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[25.22]

[25.18] Quite apart from this statutory change, the many recent decisions in this jurisdiction concerning parallel proceedings would in general suggest that careful thought should be given before such dual proceedings are launched.14

E.

APPLICATION: TIME LIMIT

[25.19] A dismissed employee must present his or her claim in time. This means a claim must be initiated in writing to the WRC within six months beginning on the date of the relevant dismissal. The six-month time limit may be extended by a further six months where the employee can prove that their failure to present that claim within six months from the date of dismissal was due to ‘reasonable cause’. 15 [25.20] What constitutes ‘reasonable cause’ is a question of fact for the WRC to decide, taking all the circumstances of the case into account. Under the previous regime, the EAT required the employee to prove the existence of ‘exceptional circumstances’ which prevented them from lodging their complaint, and so the requirement to show ‘reasonable cause’ is a considerably lower threshold for employees to meet. The Adjudication Officer is likely to consider the substantial cause of the employee’s failure to comply with the six-month time limit; was he prevented, for example, by illness or industrial action, from complying? Did the complainant know he had a right to complain at the time of the dismissal? Was he or she being advised at the material time? If so, by whom and what was the nature and quality of the advice? [25.21] The case law consistently reveals that inadvertence on the part of a firm of solicitors will not be accepted as excusing a delay.16 There is no allowance for the time limit within which a claim must be lodged to be extended beyond 12 months from the date of dismissal. Preliminary issues, such as whether reasonable cause exists to extend the six-month time limit, can be raised by way of a written statement to the WRC within 21 days of the date on which the complaint form is sent to the employer, instead of at the actual hearing of the complaint (which was the case under the old regime).

[25.22] ‘The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression “reasonable cause” appears in statute it suggests an objective standard but it must be applied to the facts and circumstances known to the claimant at the material time.’ 14

15 16

See Culkin v Sligo County Council [2017] IECA 104 (overturning the High Court decision [2015] IEHC 46 and effectively over-ruling the earlier High Court decision in Cunningham v Intel Ireland Ltd [2013] IEHC 207); for commentary on the relevant High Court decisions see Ryan, ‘Parallel Proceedings in Employment Law: An Analysis of the High Court Judgments in Cunningham and Culkin’ (2015) 38(1) DULJ 219. For an example of detailed consideration to whether a constructive unfair dismissal hearing should be postponed pending the outcome personal injuries proceedings, see Whyte v Phonewatch Limited UD685/2015 (EAT ultimately held that postponement should not be granted). Workplace Relations Act 2015, s 41(8). For a recent example (delay cause by inadvertence of trainee solicitor) see ADJ-00001568 (10 April 2017).

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Related considerations in this context will include the length of the delay as well as possible prejudice to the opposing party.17 [25.23] The cause for delay must be shown either at the time of the submission of the complaint form or as quickly as possible afterwards. The WRC Procedures18 state that ‘detailed reasons’ must be given, as well as the submission of any supporting documents.

(1) Appeals from and enforcement of decisions of the Workplace Relations Commission [25.24] Section 44 of the Workplace Relations Act 2015 provides for an appeal mechanism to the Labour Court by either party. A notice of appeal must be furnished in writing to the Labour Court within 42 days of the date of the decision to which the appeal relates. A copy of this notice is then given by the Labour Court to the other party concerned ‘as soon as may be after the receipt of the notice by the Labour Court’. Under s 46 of the 2015 Act, a party to proceedings before the Labour Court may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.19

(2) Notice of Appeal to the Labour Court – extension in exceptional circumstances [25.25] A significant change introduced by the Workplace Relations Act 2015 is in s 44(4), which provides: The Labour Court may direct that a notice under subsection (2) may be given to it after the expiration of the period specified in subsection (3) if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.

This provision is potentially very significant in that it does not lay down any cut-off period after which an appeal could not be considered. It is clear, therefore, that the interpretation adopted by the Labour Court to the question of ‘exceptional circumstances’ is going to be crucial in determining whether and when out-of-time appeals will be entertained. At the time of writing in mid-2017, the indications from the emerging case law on point are that the Labour Court will be extremely slow to find that a delay is capable of being overlooked due to exceptional circumstances. From an analysis of this case law it is clear that the Labour Court consistently takes the view that the application of the expression ‘exceptional circumstances’ within s 44(4) falls to be 17

18

19

See further the judgment of the High Court (Laffoy J) in Minister for Finance v Civil and Public Service Union [2007] ELR 36. Workplace Relations Commission, Procedures for the Investigation of Employment and Equality Complaints (www.workplacerelations.ie). Regard must, of course, be had to the decision of the Supreme Court in Stokes v Christian Brothers High School Clonmel [2015] IESC 13 in the context of what is meant by ‘final and conclusive’ in this context. Hardiman J (with whom McKechnie J agreed) held that this wording in the Equal Status Acts precluded any further appeal from the High Court to the Supreme Court, whereas Clarke J (with whom Murray and O’Donnell JJ agreed) held that an appeal could indeed lie.

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[25.29]

considered having regard to the circumstances arising in each individual case where the matter arises. The Labour Court has emphasised that previously decided cases can only serve as a ‘rough guide’ to how any subsequent dispute on this point should be determined.20 As the Labour Court has further stated in one such determination on the point: ‘No two cases present the same set of facts and therefore the matter has to be considered on the merits of the circumstances arising in each case.’21 [25.26] This is again shown in the oft-cited decision of the Labour Court in Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg22 where the Labour Court gave detailed consideration to the meaning of the expression ‘exceptional circumstances’ when it stated: ‘That [expression] is pre-eminently a question of fact and degree. Each case must be decided on its own circumstances and the improbability of any two cases falling under the same set of circumstances makes it unlikely that the decision in any one case can be more than a rough guide to the decision in another. Whilst the Court has considered the earlier decisions to which it was referred, they are of limited assistance since the circumstances of neither of them correspond to those of the instant case’.

[25.27] The meaning of ‘exceptional circumstances’ was also considered by the Court in its recommendation in Murphy v Aldi Stores (Ireland) Ltd.23 There the Court identified its role in considering an application for an extension on the basis of the exceptional circumstances test as being, first, to consider the circumstances relied upon by the appellant and whether they can be regarded as exceptional; and, second, if it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time. [25.28] In considering the meaning of ‘exceptional’, the Labour Court in Murphy expressly cited the leading judgment of R v Kelly.24 That authority emphasised that in order to be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.25 The Labour Court has repeatedly emphasised that the term ‘exceptional’ is ‘an ordinary familiar English adjective and not a term of art’.26 [25.29] It is also apparent from the emerging case law that the Labour Court gives serious consideration to the period of the delay. In its recent determination in Kylemore Services Group v Clarke,27 for example, the Court attached significance to the fact that the appeal was lodged just one working day after the appeal deadline. The Court stated: ‘The delay in this case was extremely short. In practical terms, given that the time limit provided for in the Act of 2015 expired on Sunday 31st January 2016 and the appeal was received by the Court at 9.41 am on the first working day following there can be no 20 21 22 23 24 25 26 27

Benitime Limited v Ioan Vlad Onit [2017] ELR 157, 161. Kylemore Services Group v Terrie Clarke (EDA 169, 16 May 2016). Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110. Murphy v Aldi Stores (Ireland) Limited EET043 (2 December 2004). R v Kelly [1999] 2 All ER 13. R v Kelly [1999] 2 All ER 13 at 20 per Lord Bingham CJ. Jennifer Murphy v Aldi Stores (Ireland) Limited EET043 (2 December 2004). Kylemore Services Group v Clarke EDA 169 (16 May 2016).

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reasonable conclusion drawn in those circumstances that the Respondent has suffered prejudice by the delay.’

(3) Right of Appeal to High Court on point of law [25.30] Under the new scheme of redress for unfair dismissal introduced by the 2015 Act, it is possible to institute a further appeal on a point of law only to the High Court. Section 44(6) of the 2015 Act provides as follows: The Labour Court may refer a question of law arising in proceedings before it under this section to the High Court for determination by the High Court and the determination of the High Court shall be final and conclusive.

The above wording implies that an appeal to the High Court under this section may be instituted at the discretion of the Labour Court when asked to do so by either party or the Labour Court itself, of its own volition.

[25.31] The High Court has repeatedly confirmed that its jurisdiction in this regard is necessarily a very focused one. As Noonan J recently stated in a decision on a point of law appeal:28 ‘This Court is confined to considering points of law only and whether an identifiable error of law was made by the Labour Court in reaching its determination … [T]his court on appeal cannot revisit findings of fact made by the Labour Court, unless they can be shown to have been unsupported by any evidence or are irrational or unreasonable in the light of the evidence before the Labour Court.’

[25.32] The rarity of the circumstances in which the High Court will overturn a decision of a specialist tribunal such as the Labour Court has been emphasised by the superior courts in many cases, of which the best-known example is Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare.29 In that case Hamilton CJ warned that: ‘… the courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review.’30

[25.33] This principle of curial deference has been very frequently repeated by the Superior Courts in recent years. Thus, in the context of a point of law appeal under the Protection of Employees (Fixed-Term Work) Act 2003, in University College Cork v Bushin31 Kearns P stated that ‘[b]odies such as the Labour Court are, in my view, entitled to a significant degree of curial deference with regard to the way in which they 28 29

30 31

Health Service Executive v Doherty [2015] IEHC 611, [28]–[29]. Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34. See also the judgment of the High Court (Edwards J) in Minister for Agriculture & Food v Barry & Ors [2008] IEHC 216, [2009] 1 IR 215, [2008] ELR 245. Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34, 37. University College Cork v Bushin [2012] IEHC 76.

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[25.35]

conduct their business’. More recently, in the context of an appeal against a decision of the Employment Appeals Tribunal pursuant to the Payment of Wages Act 1991 in Earagail Eisc Teoranta v Doherty,32 Kearns P stated: ‘… the Court is required to have regard to the doctrine of curial deference when considering appeals from the decisions expert administrative Tribunals and quasi-judicial bodies as set out by Hamilton CJ in Henry Denny & Sons. This Court must confine itself to a consideration of a point of law only and may only interfere with a finding of fact when it is entirely unsustainable based on the information before the Tribunal.’

(4) Mixed questions of fact and law [25.34] The above passage from Henry Denny cited so frequently in the more recent cases invites consideration of another fundamental question: when will an aspect of a determination of the Labour Court under the Unfair Dismissals Acts properly be characterised as amounting to a matter of law, and when one of fact? On this point, it is instructive to have regard to the Supreme Court decision in National University of Ireland Cork v Ahern33 where the Supreme Court considered what was meant by a ‘question of law’ in the context of an appeal from the Labour Court (in that case, under s 8(3) of the Anti-Discrimination Pay Act 1974). McCracken J, with whom the other members of the Supreme Court agreed, stated: ‘The respondents submit that the matters determined by the Labour Court were largely questions of fact and that matters of fact as found by the Labour Court must be accepted by the High Court in any appeal from its findings. As a statement of principle, this is certainly correct. However, this is not to say that the High Court or this court cannot examine the basis upon which the Labour Court found certain facts. The relevance, or indeed admissibility, of the matters relied on by the Labour Court in determining the facts is a question of law. In particular, the question of whether certain matters ought or ought not to have been considered by the Labour Court and ought or ought not to have been taken into account by it in determining the facts, is clearly a question of law, and can be considered on an appeal …’.34

In considering whether to allow an appeal against a decision of the Labour Court, the High Court must consider whether that court based its decision on an identifiable error of law or on a finding of fact that is not sustainable.

(5) Whether arguments not pursued below can be advanced on High Court point of law appeal [25.35] An important point for consideration concerning High Court appeals on points of law is whether legal arguments not pursued in the Labour Court can be advanced on appeal to the High Court. In the leading High Court case of Minister for Finance v McArdle,35 a case concerning the Protection of Employees (Fixed-Term Work) Act 2003, this issue arose in circumstances where the employer sought to advance legal arguments as to the jurisdiction of the fora below. Laffoy J described as ‘correct in point of 32 33 34 35

Earagail Eisc Teoranta v Doherty [2015] IEHC 342. National University of Ireland Cork v Ahern [2005] 2 IR 577. National University of Ireland Cork v Ahern [2005] 2 IR 577, 580. Minister for Finance v McArdle [2007] 2 ILRM 438.

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principle’ the proposition that such legal arguments not presented before the Labour Court could not properly be canvassed on appeal to the High Court. She further emphasised the necessity for ‘precision as to the points of law for determination by this Court … and the grounds on which it [is] asserted the Labour Court erred’ in the special summons. More recently, in Health Service Executive v Doherty, Noonan J stated firmly that: ‘I cannot see how this court can entertain a submission based on evidence never put before the Labour Court.’36

(6) Enforcement of decisions of the Workplace Relations Commission and the Labour Court [25.36] Sections 43 and 45 of the Workplace Relations Act 2015 deal with enforcement of determinations of the Workplace Relations Commission and the Labour Court respectively. The sections provide that, if an employer fails to carry out in accordance with its terms a decision of either the Workplace Relations Commission or the Labour Court within the timeframe stipulated therein (before the expiration of 56 days in the context of the Workplace Relations Commission and before the expriation of 42 days in the context of the Labour Court) from the date on which notice of the decision is given to the parties, then the District Court shall, on application to it either by the employee concerned, his or her trade union, or by the Workplace Relations Commission, without hearing the employer or any evidence make an order directing the employer to carry out the decision in accordance with its terms.

F.

WORKPLACE RELATIONS COMPLAINT FORM

[25.37] All complaints for unfair dismissal must be made via the Workplace Relations Complaint Form which is available at www.workplacerelations.ie. This single complaint form requires more detail than the form T1-A which preceded it under the old regime. Issues can arise which are capable of affecting the six-month time limit. The ‘date of dismissal’ is obviously critical; it is dealt with fully beginning at para [22.72].

[25.38] The single complaint form requires a complainant to fill in various boxes, including the legislation under which a claim is being made, the complainant’s name and address, the name and address of the employer, the full legal name and address of the complainant’s representative, the town or nearest town to the place of employment, relevant dates in relation to the employment, normal weekly pay, the reasons for the application and the remedy sought. The complaint form needs to be filled out carefully. For example, if the employer’s name is incorrectly given, the claim could fail as by the time the point is made by the purported respondent, the time limit may well be past. Providing as much information as possible and ensuring that the complainant has completed all relevant sections of the form will assist the office of the WRC in processing and progressing the complaint without the need to revert to the complainant seeking further details. 36

Health Service Executive v Doherty [2015] IEHC 611, 28. Further valuable judicial guidance on the nature of appeals on a point of law can be gleaned from the High Court decision in Blackrock College v Browne [2013] IEHC 607, a case concerning an appeal pursuant to the Protection of Employees (Part-Time) Work Act 2001.

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[25.43]

[25.39] At the outset of a hearing the Adjudication Officer goes through the application form. The parties are asked whether any item on the form is in dispute. It is important for an employer to have scrutinised every detail beforehand. Parties should endeavour to reach agreement on uncontroversial issues of fact (wages, length of service, etc) to enable the Adjudication Officer or Labour Court to focus on the issues to be decided. Where a matter of fact presented on the WRC complaint form is being disputed, parties should ensure that they have adequate evidence (which must be submitted to the WRC in advance of the hearing) to support their factual position. For example, where the complainant’s pay is in dispute, parties should be in a position to produce a payslip from around the time of termination of employment or the P45 which was issued following the termination.

G.

WRITTEN SUBMISSIONS AND RELEVANT DOCUMENTATION

[25.40] In an unfair dismissal claim, the respondent is required to prepare and deliver a written submission within 21 days of receipt of the WRC complaint form which must set out the events leading to the termination including details of any disciplinary meetings, any investigation which was undertaken, any disciplinary hearings conducted, any internal appeals conducted and any other relevant information and, where appropriate, summarise any evidence and any legal points which the employer may wish to make. In exceptional circumstances, the Director General of the WRC may extend the time limit for the receipt of a written submission. [25.41] Where the claim is one for constructive dismissal, the employee or his or her representative must submit a clear statement setting out the details of the complaint when submitting the WRC complaint form. The statement must set out the facts leading to the alleged constructive dismissal including, where relevant, details of any grievance procedure followed, investigation undertaken by the employer, and any legal points the complainant wishes to make. In the event that the complainant does not submit a statement then the Director General may decide to dismiss the complaint for nonpursuit. The number of witnesses required to give evidence by the parties should also be included within the relevant written submission. [25.42] The WRC Procedures outline that a ‘mere assertion or denial of the complaint without details’ does not comply with the procedures and can impact on the processing of the complaint or the defence of the complaint. As against this, however, it must be borne in mind that the Unfair Dismissals Act normally presumes a dismissal to be unfair unless and until the employer demonstrates otherwise and it is therefore essential that the procedures adopted by the WRC to do not subvert this position. Once a written submission has been submitted by either party, the other party has a further 21 days in which to submit a reply. [25.43] The written submission should contain as much relevant detail as possible, to enable the WRC, as well as the other side, to know as much as possible about the employer’s defence or the employee’s claim, in the case of a constructive dismissal complaint. Any preliminary points which the employer may wish to raise should be described in the written submission as well. The Supreme Court has confirmed that ‘[i]t is within the scope of fair procedures before any judicial or quasi-judicial body for an

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issue to be isolated and tried in advance of the main hearing provided that can be done fairly’.37 The WRC confirmed in its 2016 Annual Report that adjudication officers may choose to hear and determine preliminary points in a discrete stand-alone manner, as they see fit.38 There is little point, and little justice, in surprising the other side and the WRC by raising a preliminary point which can often be quite complex. Under the former pre-2015 regime, in Kelly v Murphy39 the respondent raised a preliminary jurisdictional point for the first time before the EAT. The EAT noted, inter alia, that the issue had not been cited in the notice of appearance. In the previous regime, it was usual for the employer to reserve the right to make further submissions in its defence and to say that the notice of appearance (Form T2) may be amended at any stage. Due to the stricter requirements of the current regime, it would appear that an attempt by either party to make a submission other than that of which they have already notified the WRC in advance of the hearing, at best may be unlikely to be well received by the WRC and at worst may not be admitted in evidence by the relevant adjudication officer or division of the Labour Court, as appropriate.

H.

ADJOURNMENTS

[25.44] Adjournments cause delay and are unwelcome. The WRC fixes dates, times and places from time to time for the hearing of claims and appeals by the relevant officer. The secretary function of the WRC gives notice to the parties or to their representatives. If a party or its representative is aware of dates which are impossible for the party or a witness, eg because they will be out of the country, it is advisable to furnish a list of such dates to the secretary as soon as possible, ideally when sending in the complaint form or written submission, as the case may be. [25.45] Cases are set down for hearing and dates notified to the parties on average three to four weeks beforehand. There is no strict notice requirement set down, however the WRC Procedures outline that ‘reasonable notice’ of the hearing date will be provided. If an adjournment or postponement is being sought, the consent of the other side should be looked for. All requests must be made in writing as soon as possible to the WRC, and the requesting party must give details of the reasons the adjournment is required, along with all relevant documentation. A postponement of the hearing date will only be granted by the WRC in exceptional circumstances and where it is satisfied that there are substantial reasons for doing so. [25.46] It is the responsibility of the parties and their representatives to ensure that all relevant information has been sent to the WRC prior to the hearing and all witnesses are available on the day of the hearing. The Adjudication Officer will only grant an adjournment on the day of the hearing in exceptional circumstances and only for substantial reasons. 37 38

39

Adigun v Equality Tribunal [2015] IESC 91, per Charleton J at 15. See Workplace Relations Commission Annual Report 2016, Appendix 2, relying on the Supreme Court decision in Adigun v Equality Tribunal [2015] IESC 91. Kelly v Murphy UD 144/1993.

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I.

[25.51]

NON-ATTENDANCE AT HEARINGS

[25.47] If a complainant does not attend a hearing, the adjudication officer may find that the complaint fails for want of prosecution. If the respondent does not attend the adjudication officer may proceed and make a decision based on the information and evidence available. [25.48] In Mitchell v Louie Fagan Ltd40 the respondent was not represented at the hearing. Subsequently it made representations that it had not received notice of the hearing. The matter came before a further division of the EAT. The claimant, by his solicitor, insisted that the EAT had already decided the matter in his favour on the date first appointed and that it was not now capable of reconsidering the matter. The EAT, in view of the opposition of the claimant to reconsidering the case, refused to re-open the facts. It informed the respondent that it was open to it to appeal the earlier determination when it issued or to take such other proceedings in relation to it as might be advised. [25.49] The approach of the WRC, where the respondent has failed to attend or be represented, is clearcut. Section 6(1) of the 1977 Act is cited: it provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless there are substantial grounds justifying the dismissal. Section 6(6) of the Act provides that in determining whether the dismissal of an employee was an unfair dismissal or not it shall be for the employer to show whether there were substantial grounds justifying the dismissal. In the absence of evidence from the respondent adducing substantial grounds, the WRC should determine that the dismissal was unfair.41 [25.50] What of sudden illness? In Cannon v Dunnion Ltd42 neither the respondent nor its legal representative turned up on time. The latter arrived late, and explained that the respondent had been taken ill and would not be attending. He asked for an adjournment. The request was refused. The chairman referred to the fact that an application for an adjournment had been made to him on behalf of the respondent the previous Friday which had also been refused. The legal representative then told the EAT that he was leaving for another location where he had other clients to represent. The chairman pointed out that it was: ‘not normal for the EAT to grant adjournments on grounds of the unavailability of a representative.’

[25.51] In its determination the EAT emphasised that the employer’s illness was not given as a reason for the application to adjourn, nor for the previous application. The EAT refused the application. The respondent’s representative withdrew from the proceedings and the EAT proceeded to hear the evidence of the claimant under oath in relation to his dismissal and loss. In ordinary circumstances, sudden illness would 40 41

42

Mitchell v Louie Fagan Ltd UD 370/1985. For some of the many examples from the body of EAT decisions under the former regime, see, eg, Conran v Smyth t/a Salad Bowl Restaurant UD 239/1987; Ryan v Beltrims Ltd UD 607/ 1986; Brunt and Keenan v Sancerre Ltd t/a Top Security UD 305/1986; Ryan v Weekes UD 498/1986. Cannon v Dunnion Ltd UD 361/1991.

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almost certainly result in a case being adjourned, although the WRC would reasonably expect proof of illness including symptoms, causes and severity.

J.

SETTLEMENTS

[25.52] Many claims for statutory unfair dismissal are settled, with the preponderance of settlements being made on the day of the hearing before the WRC. Some claims are withdrawn before or during hearing with many of these, presumably, being settled. In Caffrey v Argus Security Ltd43 the claimant told the EAT when his case came on for hearing that the matter was settled. However, he argued that he had only agreed to settle on condition that he would be paid arrears of wages. He received his lump sum and signed a full waiver. He requested a re-listing as he believed the settlement had not been implemented since he had not received arrears of wages. The employer denied that there was any prior condition to the settlement figure. The EAT found it had no jurisdiction to re-list the case for hearing as the claims before it were settled for a sum with which the claimant indicated to the EAT he was satisfied. [25.53] In Duffy-Finn v Lundbeck Ltd44 agreement to settle on certain terms was reached between the representatives of the parties. The claimant’s representative, a trade unionist, had ostensible authority to settle the matter on his behalf. The claimant then changed his mind and tried to reject the settlement. The EAT would not allow it and determined that in the circumstances the settlement was binding on the parties. As one of its terms was that the claimant would be deemed to have resigned the EAT found it had no jurisdiction in the absence of a dismissal.

[25.54] Section 13 of the 1977 Act renders void any provision in an agreement, whether a contract of employment or not, and whether made before or after the commencement of the Act, to the extent that it purports to exclude or limit the application of, or is inconsistent with, any provision in the Act. This may be relevant where a settlement has been negotiated between an employer and employee. It will not apply, however, where the complainant has had independent advice. An agreement should be regarded as valid where it is entered into by a complainant with full knowledge of the legal position, where statutory entitlements are discussed in the negotiations leading up to the making of the agreement and the compromised settlement can be objectively described as adequate.45 Apart from a s 13 argument, a settlement arrived at on termination of 43 44

45

Caffrey v Argus Security Ltd UD 233/1988. Duffy-Finn v Lundbeck Ltd [1990] ELR 224. See similarly, Fowler and Bergin v Hardware Distributions Dublin Ltd [1996] ELR 240; Kiely v Leo Laboratories Ltd [1998] ELR 172; Geary v Fannin Ireland Ltd t/a Talbot Pharmacy UD 197/1987; Maxwell v Hickey & Co Ltd UD 5/1991. By analogy with Talbot (Ireland) Ltd v Minister for Labour (1983 No 407 Sp); see too The Minister for Labour v Daniel P O’Connor and Irish Dunlop Co Ltd (6 March 1973) HC, and PMPA Insurance Co Ltd v Keenan (27 July 1983) SC. Note the strict approach of the Supreme Court in the last mentioned: the consideration in such agreements must be ‘adequate’. These cases involved liquidated sums by way of compensation under either redundancy or equal pay legislation. Compensation in unfair dismissal cases cannot be predicted in advance. (contd.../)

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[25.58]

employment may be the result of duress.46 If an employee feels that he or she has been forced to sign an agreement, he or she should make a contemporaneous note recording all relevant details.

[25.55] A settlement may also be reached where a claim has been referred to an adjudication officer. If so, it is important to be aware that an appeal cannot be brought to the Labour Court: the case is over. In one such case under the old regime47 a compromise was reached between the parties before the Rights Commissioner, after the evidence had been heard, and the rights commissioner recorded the agreement on his headed paper. The document was signed by the parties, including the claimant. The terms of the agreement were subsequently acted on by the company and accepted by the claimant. The agreement had provided for withdrawal of the claim by the claimant and for the payment of an ex gratia sum by the company and the acknowledgement by the claimant that this sum was accepted in full and final settlement. The claimant attempted to refer the case to the EAT. The EAT took the view that as the claimant had brought the matter before the Rights Commissioner under the Act he could only bring it before the EAT on foot of an appeal against the Rights Commissioner’s recommendation. As no recommendation had been issued in the case, the appeal was held to have failed for want of jurisdiction.

K.

ENFORCEMENT

[25.56] Where a decision has been made and not complied with, it is legally enforceable in the District Court. Under s 43(1) of the 2015 Act, an application for the enforcement of a WRC decision can be made after 56 days have elapsed from the date that notice of the decision was given to the parties. In dealing with such an application, the District Court will not entertain any evidence other than that which relates to the employer’s non-compliance with the WRC decision. [25.57] Where the District Court is satisfied with the evidence of non-compliance, it may make an order directing the employer to carry out the decision of the WRC in accordance with its terms. Additionally, the District Court has the power to add Courts Act interest to any compensation which has not been paid by the employer. [25.58] Only in relation to decisions of adjudication officers, and not the Labour Court, may the District Court substitute an order for reinstatement or re-engagement with an order of compensation of up to 104 weeks ‘having regard to all the circumstances’. This power is controversial in that it is not possible for the District Court to make a decision based on ‘all the circumstances’ where the only evidence it has heard relates to non45

46 47

(\...contd) See Hurley v Royal Yacht Club [1997] ELR 225 (Circuit Court, Judge Buckley) agreement declared void; inter alia, claimant entitled to be advised of rights under employment protection legislation and advised in writing to take appropriate advice as to his rights. Court accepted that it cannot have been the intention of the legislature to prevent employers and employees from compromising claims under the UDA. For detailed judicial treatment of the enforceability of settlement agreements see the judgment of the High Court (Smyth J) in Sunday Newspapers Ltd v Kinsella [2007] IEHC 324. Kehoe v Memorex Media Products UD 222/1987. Hoban v Nitrigin Éireann Teoranta UD 522/1987.

589

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[25.59]

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compliance with a decision and not relating to the actual dispute. This power of the District Court may also be abused by an employer who has received an order of reinstatement or re-engagement against it, in that it may seek to ignore the initial decision of the adjudication officer and await the District Court’s substitution of that decision for compensation.

L.

IN CAMERA HEARING/IMMUNITY

[25.59] Hearings of an adjudication officer are in private, and access to the hearing is not permitted to members of the public or the press. Hearings of the Labour Court are in public, other than in exception circumstances. Requests may be made for an in camera hearing. There must be strong grounds to oust the obligation to hold a public hearing. Ideally there should be consent by both parties. Where proceedings are held in camera the details of the evidence are omitted from the decision. Requests to hold a hearing in camera might be made if, for instance, customer names or details were to feature materially in the evidence and the use of code references alone would not guarantee anonymity. In XXX v YYY48 the British EAT ruled that video evidence if played in public would infringe a child’s right to protection of his private and family life contrary to art 8(1) of the ECHR. The Court of Appeal restored the employment tribunal’s decision that the video had no probative value.

[25.60] In Burke v Canadian Embassy49 a preliminary issue was put by the representative of the Embassy who requested the EAT to hold the case in private session. The reason given was that the publicity might damage relations between Ireland and the Commonwealth of Canada. The EAT considered this but felt that the public interest would not be hurt by complying with its duty to hear the matter in public.

[25.61] A second application was made by the employer to the EAT to refuse jurisdiction on the ground that the respondent was a sovereign state and as such could not be sued as it was protected from such suit by sovereign immunity. It was stated that there was no law allowing a sovereign state to be sued in Ireland. In response the employee stated that he was ordinarily resident in Ireland and that he was a driver for the Embassy. He did not have a diplomatic function nor did he have diplomatic immunity. The EAT in a reasoned decision took the view that it had authority to hear the issue. The appearance by the respondent was conditional and its instructions were to withdraw if the EAT decided to hear the case in an open forum. The EAT proceeded to hear the case. As the respondent was not present, the EAT found it had not discharged the burden of proof upon it. The claimant was awarded compensation. [25.62] The Canadian government sought to have the determination quashed by way of judicial review: The Government of Canada v Employment Appeals Tribunal.50 MacKenzie J refused the relief sought. He found the EAT was justified in proceeding to 48

49 50

XXX v YYY [2004] IRLR 137 (EAT), [2004] IRLR 471 (CA). And see Abbott Ireland Ltd v Henderson UD 233/1986. Burke v Canadian Embassy UD 523/1988. The Government of Canada v Employment Appeals Tribunal [1991] ELR 57.

590

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[25.64]

hear the claims since the doctrine of absolute sovereign immunity had no application in the modern world. MacKenzie J commented obiter: ‘... the activities of such Tribunals [the EAT] border on the unconstitutional and appear to be acting in a judicial way and to award sums of money of a very substantial manner while conducting the proceedings in such a way that the claimant need not prove his case but once it is stated the defendant has to justify his actions and in fact prove his defence. This method of procedure is hardly consistent with constitutional justice. They appear to resolve conflicts more appropriate and which should be reserved to the courts established by the Constitution.’

[25.63] The Supreme Court on appeal51 agreed that the doctrine of absolute sovereign immunity no longer existed but found that a restricted form of state immunity existed and that it applied to the case before it.52 It held that where an activity touches the actual business of policy of a foreign government, immunity should be accorded to that activity, notwithstanding the fact that the doctrine of absolute sovereign immunity has now expired. Further, the element of trust and confidentiality that is reposed in an embassy driver creates a bond with his employer which effectively involves the driver in the employing government’s public business organisation and interests. Accordingly, the doctrine of restrictive state immunity applies in such a case.

[25.64] In Caffrey v Instituto Cervantes53 the EAT received a certificate under the seal of the Ambassador of Spain to Ireland that the employer was part of the Spanish Embassy and enjoyed immunity from jurisdiction. The Department of Foreign Affairs confirmed that: ‘in accordance with the provisions of Article 31 of the Vienna Convention on Diplomatic Relations, which is contained in the First Schedule to the Diplomatic Relations and Immunities (No 8) Act 1967, the Instituto Cervantes is entitled to enjoy immunity of jurisdiction of the Employment Appeals Tribunal.’

By a majority the EAT found that it had no jurisdiction to hear the claim. The dissenting opinion relied on the Supreme Court in The Government of Canada v The Employment Appeals Tribunal in so far as the court had held that where a state engages in the business of trade, direct or indirect, the rule of absolute immunity is not appropriate. In Caffrey the EAT had been told that the Spanish Embassy had acquired an ordinary commercial enterprise in which the claimant was employed and in respect of that activity it was the dissenting member’s view that the doctrine of sovereign immunity did 51

52

53

Hederman, McCarthy and O’Flaherty JJ, Finlay CJ and Egan J concurring. Followed in Geraghty v Embassy of Mexico and Daniel Duetzin [1998] ELR 310 (EAT) and Buthelezi v Dlamini and Dlamini and Republic of South Africa [2017] ELR 24. See Fogarty v UK [2002] IRLR 148 (ECtHR): immunity in civil proceedings which reflects generally recognised rules of public international law does not exceed margin of appreciation allowed to States in limiting individual’s access to court. Employment Appeals Tribunal v The Government of Canada [1992] ELR 29. In Raymond v Embassy of Nigeria UD 636/2004 the EAT found for the claimant as the employer had not turned up for the hearing nor made any representations as to sovereign immunity and the EAT felt it would be inappropriate to step into the shoes of the Embassy. The same approach was adopted in Asha Abdullahi Adan v Embassy of The Republic of Kenya UD 2163/ 2011. Caffrey v Instituto Cervantes UD 567/1996.

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not apply. This dissenting approach seems, with respect, compelling and indeed is more consistent with subsequent case law of the European Court of Justice.54

M.

FEES

[25.65] The 2015 Act gives the Minister for Jobs, Enterprise and Innovation the power to charge fees to employees wishing to bring claims against their employer. In light of the decision of the United Kingdom Supreme Court in July 201755 in which tribunal fees there were deemed unlawful as being a dispropotionate interference with an individual’s right to access to justice, it can be predicted that fees will not be introduced in this jurisdiction.

N.

JUDICIAL REVIEW

[25.66] Although it is inconsistent on the face of it, appeal against a Labour Court decision can be instituted in the High Court on a point of law and, at the same time, the same decision can be challenged as unlawful by way of judicial review proceedings. This occurred under the old regime in Halal Meat Packers (Ballyhaunis) Ltd v EAT56 where it was contended by the notice party that relief should not be granted in the High Court as an alternative remedy of appeal had also been invoked. This is ultimately a matter for the court’s discretion and among other things it will consider the adequacy of the alternative remedy. In Halal the question was raised as to whether the employer could appeal an EAT determination where the EAT had not heard the employer’s evidence. Thus the Supreme Court (McCarthy J): ‘... I am far from concluding that the existence of a Circuit Court appeal in any circumstance negatives the duty of the High Court, and consequently this court to embark on an inquiry as to whether or not an order of an inferior tribunal ... was made within jurisdiction. The Circuit Court appeal cannot cure a defect that was fundamental to the procedure itself.’57

[25.67] In judicially reviewing a decision of the WRC or the Labour Court, it is very important to note the Supreme Court decision in Miley v Employment Appeals Tribunal58 which is authority for the proposition that as a matter of public policy, and arising from its function, a body such as the WRC or Labour Court should not be liable 54

55 56 57 58

See for example Mahamdia (Case C–154/11) where the CJEU rejected the argument of the Algerian Embassy in Germany that it enjoyed immunity from jurisdiction when a driver contested his dismissal before the German courts. The Court noted that the functions of the claimant did not involve the exercise of public powers, stating that an embassy “like any other public entity, can act iure gestionis and acquire rights and obligations of a civil nature…. where it concludes contracts of employment with persons who do not perform functions which fall within the exercise of public powers’ at [49]). Mahamdia was followed by the EAT in Asha Abdullahi Adan v Embassy of The Republic of Kenya (UD 2163/ 2011). R (on the application of Unison) v Lord Chancellor [2017] UKSC 51. Halal Meat Packers (Ballyhaunis) Ltd v EAT [1990] ELR 49. Halal Meat Packers (Ballyhaunis) Ltd v EAT [1990] ELR 49 at 63. Miley v Employment Appeals Tribunal [2016] IESC 20.

592

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[25.67]

for an order of costs in judicial review proceedings when it has not participated in such proceedings, and has indicated such a position initially in the judicial review proceedings. According to the Supreme Court (Denham CJ), a rule similar to that stated in McIlwraith v His Honour Judge Fawsitt,59 applies such that the WRC would not in the first instance be liable for costs, save that such an immunity would be lost if the WRC acted with mala fides or with impropriety.

59

McIlwraith v His Honour Judge Fawsitt [1990] 1 IR 343.

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Index Note: references are to paragraph number

A Absenteeism conduct, and, 16.74–16.76 Abusive language conduct, and, 16.54–16.57 Acting in competition with employer conduct, and, 16.87–16.89 Action short of dismissal injunctions, and, 10.51–10.57 Actual loss compensation for unfair dismissal, and, 24.39–24.50 Additional maternity leave see also Maternity persons covering for employee, and, 23.82–23.90 Adjournments unfair dismissal proceedings, and, 25.47–25.49 Adjudication officers unfair dismissal proceedings, and, 25.05–25.07 Adoption leave persons covering for employee on leave, and, 23.91–23.98 unfair dismissal, and, 14.34 Age unfair dismissal, and, 14.03 Agency workers unfair dismissal claims, and, 23.06– 23.07 Agreement between parties due notice, and, 4.20 maternity leave, and, 14.35–14.36 Alcoholism capability, and, 15.25–15.31 Alcohol-related actions conduct, and, 16.77–16.83

Ante-natal care persons covering for employee on leave, and, 23.82–23.90 unfair dismissal, and, 14.24 Ante-natal classes unfair dismissal, and, 14.25 Appeals disciplinary procedures, and, 13.107– 13.113 High Court on point of law, to arguments not pursued below, 25.36 decision of WRC and Labour Court, 25.37 generally, 25.31–25.34 mixed questions of fact and law, 25.35 Application forms generally, 25.38–25.40 precedents, Appendix K Apprentices unfair dismissal, and, 23.71–23.74 Army forces personnel unfair dismissal, and, 23.60–23.62 wrongful dismissal, and, 3.45 Assault conduct, and, 16.07 Association, freedom of infringement of constitutional provisions, and, 8.10–8.13 Attitude conduct, and, 16.92–16.93 Audi alteram partem adequate notice of an inquiry, 7.13– 7.27 advice to tribunal or disciplinary panel, 7.54–7.55 cross-examination of one’s accusers, 7.41–7.48 generally, 7.09–7.12 information as to the charge, 7.13–7.27 interference by courts, 7.50–7.51

595

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Redmond on Dismissal Law Audi alteram partem (contd) introduction, 7.06–7.08 legal advice to tribunal or disciplinary panel, 7.54–7.55 legal representation, 7.32–7.40 office-holders, 7.11–7.13 ‘open-and-shut cases’, 7.52–7.53 oral hearing, 7.28–7.31 plaintiff’s conduct, and, 7.49 professional persons, 7.15 receipt by tribunal of legal advice, 7.54–7.55 representation, 7.32–7.40 standard of proof, 7.56–7.59 unmeritorious conduct, 7.49 Automatic theory see also Elective theory date of dismissal, and, 22.72–22.73 fact of dismissal, and, 22.06–22.11 ‘Automatic transfer’ principle business transfers, and, 18.30–18.31 Automatically unfair dismissals adoptive leave, 14.34 age, 14.03 ante-natal care, 14.24 civil or criminal proceedings, 14.02 generally, 12.10–12.14 introduction, 14.01 involvement in civil or criminal proceedings, 14.02 maternity ante-natal care, 14.24 ante-natal classes, 14.25 background, 14.04 contractual agreement, 14.35–14.36 eligibility rules, 14.06 generally, 14.19–14.22 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 leave, 14.20 post-natal care, 14.24 proceedings for breach by employer of EU law, 14.23 right to return to work, 14.26–14.34 time off, 14.24–14.25

parental leave, 14.34 paternity leave, 14.26–14.34 post-natal care, 14.24 pregnancy background, 14.04 eligibility rules, 14.06 generally, 14.13–14.18 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 protective leave ante-natal care, 14.24 ante-natal classes, 14.25 background, 14.04 contractual agreement, 14.35–14.36 eligibility rules, 14.06 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 leave, 14.20 maternity, 14.19–14.22 persons covering for employee, and, 23.82–23.90 post-natal care, 14.24 pregnancy, 14.13–14.18 proceedings for breach by employer of EU law, 14.23 right to return to work, 14.26–14.34 time off, 14.24–14.25 time off for ante-natal care, 14.24 time off for breastfeeding, 14.25

B Bad language conduct, and, 16.54–16.57 Balance of convenience injunctions, and, 10.19 Bankruptcy fact of dismissal, and, 22.44–22.46 Benefits in kind damages for wrongful dismissal, and, 11.59–11.65 Bias generally, 7.60–7.70 introduction, 7.06–7.08

596

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Index Bias (contd) necessity, and, 7.60 probationers, 7.71–7.76 Breach of contract effect, 6.01–6.27 elective theory 6.28–6.33 generally, 5.01–5.03 implied term of fairness, 5.07–5.15 implied terms, 5.17–5.71 procedural limitations, 5.04–5.06 substantive limitations, 5.16 Breach of procedural limitations damages for wrongful dismissal, and, 11.30–11.36 generally, 5.04–5.06 injunctions, and, 10.42–10.58 Breach of substantive limitations damages for wrongful dismissal, and, 11.27–11.29 generally, 5.16 injunctions, and, 10.33–10.34 Bullying conduct, and, 16.69–16.73 Burden of proof constructive dismissal, and, 19.03 redundancy, and, 17.03 unfair dismissal, and, 12.09 Business transfers ‘automatic transfer’ principle, 18.30– 18.31 change of contractors, 18.42–18.50 changes in terms and conditions of employment, 18.78–18.93 collective agreements, and generally, 18.51–18.54 introduction, 18.29 constructive dismissal, and, 19.29– 19.34 contracting out, 18.64–18.65 core provision, 18.30–18.33 definitions, 18.33 early case law, 18.38–18.41 ‘economic entity’, 18.55

economic, technical and organisational reasons generally, 18.66–18.74 introduction, 18.30 ‘employee’, 18.33 ‘employer’, 18.33 general, 18.26–18.29 jurisdiction of WRC, 18.35–18.37 legislative framework, 18.26 objection by employee, 18.34 part of business or of group, 18.75– 18.77 ‘stable economic entity’, 18.44 summary, 18.29 termination before transfer date, 18.60–18.63 trade union membership or activities, and, 21.24–21.25 ‘transfer’, 18.55–18.56 transferor and transferee, 18.57–18.59 undertakings, 18.38–18.41

C Capability alcoholism, 15.25–15.31 civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.04 ill-health, 15.05–15.24 introduction, 15.01–15.03 Carelessness unfair dismissal, and, 15.02 CCTV disciplinary procedures, and, 13.96– 13.101 Certiorari judicial review, and, 9.41–9.45 Change of contractors business transfers, and, 18.42–18.50 Change of employment status redundancy, and, 17.22–17.23 Circuit Court Rules 1950 text, Appendix C

597

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Redmond on Dismissal Law non-selective dismissals, 21.76– 21.78 ‘participating’ in, 21.88–21.94 ‘strike’ action, 21.79 unfair selection for redundancy, and, 21.59 introduction, 21.01–21.03 limitations on managerial prerogative industrial action, 21.71–21.092 introduction, 21.11–21.12 strikes, 21.71–21.092 trade union membership or activities, 21.13–21.33 unfair selection for redundancy, 21.34–21.70 one-worker disputes, 21.07 strikes effect on contract of employment, 21.80–21.85 generally, 21.71–21.73 immunity from civil action, 21.04– 21.10 ‘industrial action’, 21.86–21.87 lock-outs, 21.95–21.98 misconduct, 21.74–21.75 non-selective dismissals, 21.76– 21.78 ‘participating’ in, 21.88–21.94 ‘strike’ action, 21.79 unfair selection for redundancy, and, 21.59 trade union membership or activities ‘activities’, 21.26–21.33 constitutional issues, 21.22–21.23 eligibility to claim, 21.14–21.17 generally, 21.13 introduction, 21.11–21.12 ‘membership’, 21.19–21.25 ‘trade unions’, 21.18 transfer of undertakings, 21.24– 21.25 unfair selection for redundancy analysis of selection 21.47–21.61 collective redundancies, and, 21.63– 21.70 comparators, 21.39 discriminatory criteria, 21.58–21.58

Civil proceedings involving employer ill-health, and, 15.20–15.24 generally, 14.02 Civil servants employment status, and 3.42–3.50 unfair dismissal, and eligibility, 23.63 generally, 12.12 wrongful dismissal, and, 3.42–3.50 Claims and Appeals Regulations 1977 text, Appendix D Closed shop agreements infringement of constitutional provisions, and, 8.12–8.13 injunctions, and, 10.20 Codes of Practice disciplinary procedures, and, 13.36 Collective agreements transfer of undertakings, and, generally, 18.51–18.54 introduction, 18.29 Collective dismissals collective redundancies, and, 21.63– 21.70 disciplinary procedures, 21.09–21.10 immunity from civil action failure of comply with procedures, 21.09–21.10 ‘in contemplation or furtherance’, 21.04–21.06 introduction, 21.04 one-worker disputes, 21.07 ‘trade dispute’, 21.06 wild cat action, 21.08 ‘worker’, 21.06 industrial action effect on contract of employment, 21.80–21.85 generally, 21.71–21.73 immunity from civil action, 21.04– 21.10 lock-outs, 21.95–21.98 meaning, 21.86–21.87 misconduct, 21.74–21.75

598

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Index Collective dismissals (contd) eligibility to claim, 21.36 inadmissible grounds, 21.37–21.38 industrial action, and, 21.59 introduction, 21.34–21.35 ‘last in first out’, 21.56–21.57 procedures, 21.40–21.44 reasonableness, 21.45–21.46 special reasons for departing from procedure, 21.43–21.44 summary, 21.62 wild cat action, and, 21.08 Comparators unfair selection for redundancy, and, 21.39 Compensation see also Damages actual loss, 24.39–24.47 amount, 24.36 approach of the WRC, 24.28–24.29 calculation, 24.34–24.38 conduct of parties prior to dismissal, and, 24.67–24.70 contributory action, and, 24.62–24.66 deductions from actual loss, 24.48– 24.50 determining factors, 24.34 diminution of rights due to dismissal, 24.56 ex gratia payments, 24.35 exemplary sums, 24.32 ‘financial loss’, 24.32 future loss, 24.51–24.56 generally, 24.30–24.38 introduction, 24.28–24.29 loss of pension rights, 24.57–24.61 loss of rights due to dismissal, 24.56 mitigation duty, 24.72–24.77 non-compliance with procedures, and, 24.71 prospective loss, 24.51–24.56 purpose, 24.33 ‘remuneration’, 24.32 severance payments, 24.35 social welfare benefits, 24.48–24.50

superannuation, 24.57–24.61 tax liability, 24.50 Competence generally, 15.32–15.39 introduction, 15.01–15.03 Competition law employer’s rules, and, 16.111 Competition with employer conduct, and, 16.87–16.89 Conduct absenteeism, 16.74–16.76 abusive language, 16.54–16.57 acting in competition with employer, 16.87–16.89 alcohol-related conduct, 16.77–16.83 assault, 16.07 attitude, 16.92–16.93 bad language, 16.54–16.57 bullying, 16.69–16.73 common law, 16.07–16.08 confidential information, 16.90 crimes outside employment dishonesty, and, 16.21–16.37 employer’s rules, and, 16.106 criminal convictions, and, 16.104 criteria to support decision, 16.06 dishonesty admission by employee, 16.14–16.15 crimes outside employment, 16.21– 16.37 employer’s rules, and, 16.105–16.107 falsifying business expenses, 16.20 generally, 16.10–16.13 secret profits, 16.19–16.20 social welfare fraud, 16.38–16.42 suspicions over more than one employee, 16.16–16.18 disloyalty and infidelity acting in competition with employer, 16.87–16.89 confidential information, 16.90 introduction, 16.84 second jobs, 16.85–16.86 double-jobbing, 16.84–16.90 drug-related conduct, 16.77–16.83

599

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Redmond on Dismissal Law Conduct (contd) e-mail abuse, 16.94–16.102 employer’s rules, and competition law, 16.111 crimes outside employment, 16.106 criminal convictions, 16.104 dishonesty, 16.105–16.107 generally, 16.103–16.114 loyalty and fidelity, 16.110 mutual trust and confidence, 16.110 previous criminal convictions, 16.104 references, 16.104 restraint of trade clauses, 16.112– 16.114 secret profits, 16.108 failure to comply with an order, 16.43– 16.53 false information on application forms, 16.104 falsifying business expenses, 16.20 general, 16.01–16.06 grooming, 16.91 gross misconduct absenteeism, and, 16.75 alcohol-related behaviour, and, 16.78 introduction, 16.01 justification, 16.05 refusal to comply with order, 16.45 role, 16.03 social media, and, 16.97 honest belief of employer, and, 16.01 harassment, 16.69–16.73 honest belief, and, 16.04 horseplay, 16.58–16.68 industrial action, and, 21.74–21.75 Internet abuse, 16.94–16.102 ‘last straw’, 16.09 loyalty and fidelity acting in competition with employer, 16.87–16.89 confidential information, 16.90 introduction, 16.84 second jobs, 16.85–16.86 non-performance of task, 16.43–16.53 obscene language, 16.54–16.57 personal hygiene, 16.91

physical injury to another person or property, 16.58–16.68 poor attitude, 16.92–16.93 ‘premises’ to support decision, 16.06 refusal to comply with an order, 16.43– 16.53 requirements, 16.06 second jobs, 16.85–16.86 secret profits dishonesty, and, 16.19–16.20 employer’s rules, and, 16.108 smoking, and, 16.51 social welfare fraud, 16.38–16.42 suspicions over more than one employee, 16.16–16.18 theft, 16.10 Conduct of parties compensation for unfair dismissal, and, 24.67–24.70 injunctions, and, 10.17 Confidential information wrongful dismissal, and, 5.19 Confidential information conduct, and, 16.90 Consensual termination fact of dismissal, and, 22.30–22.35 Consistency disciplinary procedures, and, 13.49– 13.50 Conspiracy see also Industrial action immunity from civil action, and, 21.04 Constitution of Ireland European Convention on Human Rights, and, 8.48–8.54 historical development of the law, and, 1.01–1.05 infringement of provisions closed shop agreements, 8.12–8.13 delay, 8.21–8.32 fair procedures, 8.16–8.18 freedom of association, 8.10–8.13 freedom of expression, 8.05 freedom of religion, 8.05 good name, 8.20

600

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Index Constitution of Ireland (contd) introduction, 8.04–8.09 privacy, 8.19 property rights, 8.05 right to fair procedures, 8.16–8.18 right to good name, 8.20 right to privacy, 8.19 right to speedy trial, 8.21–8.32 right to work, 8.14–8.15 surveillance in workplace, 8.19 union membership agreements, 8.12 unreasonable length of suspension, 8.21–8.32 inter partes actions, 8.01–8.03 locus standi, 8.03 personal rights, 8.06–8.07 private law rights, 8.01–8.02 remedies damages, 8.33–8.42 other, 8.43–8.47 reinstatement, 8.43–8.47 unfair dismissal claims, 24.03–24.04 wrongful dismissal, and, 2.05 Constitutional justice audi alteram partem adequate notice of an inquiry, 7.13– 7.27 advice to tribunal or disciplinary panel, 7.54–7.55 cross-examination of one’s accusers, 7.41–7.48 generally, 7.09–7.12 information as to the charge, 7.13– 7.27 interference by courts, 7.50–7.51 introduction, 7.06–7.08 legal advice to tribunal or disciplinary panel, 7.54–7.55 legal representation, 7.32–7.40 office-holders, 7.11–7.13 ‘open-and-shut cases’, 7.52–7.53 oral hearing, 7.28–7.31 plaintiff’s conduct, and, 7.49 professional persons, 7.15 receipt by tribunal of legal advice, 7.54–7.55 representation, 7.32–7.40

standard of proof, 7.56–7.59 unmeritorious conduct, 7.49 bias generally, 7.60–7.70 introduction, 7.06–7.08 necessity, and, 7.60 probationers, 7.71–7.76 generally, 7.02–7.08 introduction 7.01 natural justice, and, 7.02–7.08 nemo judex in causa sua generally, 7.60–7.70 introduction, 7.06–7.08 necessity, and, 7.60 probationers, 7.71–7.76 Constructive approach disciplinary procedures, and, 13.42– 13.47 Constructive dismissal burden of proof, 19.03 contract test express/implied terms, 19.10–19.12 generally, 19.08–19.09 introduction, 19.04–19.07 definition, 19.01–19.03 disciplinary proceedings, and, 19.21 elective theory, and, 6.30 employment equality, 19.26–19.28 fact of dismissal, and, 22.12 fairness, and, 13.01 flexibility clauses, 19.16–19.20 loss of reputation, and, 11.58 mobility clauses, 19.16–19.20 notice, and 22.64 reasonableness test fact of dismissal, and, 22.12 generally, 19.13–19.15 introduction, 19.04–19.07 reinstatement, and, 24.19–24.27 repudiatory breach, and, 22.12 ‘resign or be dismissed’ ultimatum, 19.24 sex discrimination, and, 19.26 sexual harassment, and, 19.26–19.28 tests contract test, 19.08–19.12

601

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Redmond on Dismissal Law Constructive dismissal (contd) flexibility clauses, 19.16–19.20 introduction, 19.04–19.07 miscellaneous, 19.21–19.25 mobility clauses, 19.16–19.20 reasonableness test, 19.13–19.15 transfer of undertakings, 19.29–19.34 Consultants judicial review, and, 9.28–9.29 Continuity of service excluded employees, and, 23.49 First Schedule, 23.29–23.32 hours worked, 23.20–23.28 illegal contracts, 23.43–23.48 length of service, 23.20–23.28 part-time workers, 23.23 re-employment within 26 weeks, 23.37 temporary workers, 23.33–23.36 transferred employees, 23.38–23.42 Contra proferentum notice to terminate, and, 22.61 Contract test express/implied terms, 19.10–19.12 generally, 19.08–19.09 introduction, 19.04–19.07 Contracting out business transfers, and, 18.64–18.65 Contracts of employment industrial action, and, 21.80–21.85 unfair dismissal, and, 12.15 wrongful dismissal, and breach of implied term of fairness, 5.07–5.15 breach of implied terms, 5.17–5.71 breach of procedural limitations, 5.04–5.06 breach of substantive limitations, 5.16 effect of breach, 6.01–6.27 elective theory 6.28–6.33 introduction, 2.01–2.04 Contravention of statute unfair dismissal, and, 15.45–15.48

Contributory conduct compensation for unfair dismissal, and, 24.62–24.66 reinstatement, and, 24.23 Control test employment status, and, 3.09 Co-operation wrongful dismissal, and, 5.19 Corrective approach disciplinary procedures, and, 13.39– 13.41 Costs judicial review proceedings, and, 25.71 Crimes outside employment dishonesty, and, 16.21–16.37 employer’s rules, and, 16.106 Criminal convictions employer’s rules, and, 16.104 Criminal proceedings involving employer unfair dismissal, and, 14.02 Cross-examination audi alteram partem, and, 7.41–7.48 disciplinary procedures, and, 13.58– 13.66

D Damage to another person or property conduct, and, 16.58–16.68 Damages benefits in kind, 11.59–11.65 breach of procedural limitations, 11.30–11.36 breach of substantive limitations, 11.27–11.29 disappointment, 11.48–11.49 distress, 11.44–11.58 elective theory, and, 11.37–11.43 fixed-term contracts, and, 11.11 general principles, 11.01–11.26 income continuance, 11.70–11.78 income tax liability, 11.66–11.68

602

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Index Damages (contd) infringement of constitutional provisions, and, 8.33–8.42 injunctions, and, 10.16–10.17 injury to feelings, 11.44–11.58 judicial review, and additional remedy, as, 9.35–9.36 alternative remedy, as, 9.33–9.34 quantum, 9.37–9.40 liability to income tax, 11.66–11.68 ‘limited damages rule’ breach of substantive limitations, 11.27 generally, 11.10 loss of chance, 11.18 loss of earnings, 11.12 loss of pension rights, 11.59–11.65 loss of reputation constructive dismissal, 11.58 disappointment, 11.48–11.49 generally, 11.44–11.50 Johnson decision, 11.55–11.57 Malik and Mahmood decision, 11.51–11.54 mental distress, 11.45 repudiatory act, 11.58 loss of seniority rights, 11.65 loss of statutory rights, 11.13–11.26 mental distress, 11.45 mitigation of loss, 11.79–11.83 pensions and benefits, 11.59–11.65 restitutio in integrum, and, 11.01–11.09 social welfare benefits, 11.69 tax liability, 11.66–11.68 termination of secondment agreement, 11.84–11.87 wrongful dismissal, for breach of procedural limitations, 11.30–11.36 breach of substantive limitations, 11.27–11.29 distress, 11.44–11.58 elective theory, and, 11.37–11.43 general principles, 11.01–11.26 income continuance, 11.70–11.78 income tax liability, 11.66–11.68 injury to reputation, 11.44–11.58

mitigation of loss, 11.79–11.83 pensions and benefits, 11.59–11.65 social welfare benefits, 11.69 tax liability, 11.66–11.68 termination of secondment agreement, 11.84–11.87 Date of dismissal automatic theory, 22.72–22.73 elective theory, 22.72–22.73 generally, 22.59–22.60 holidays, 22.65 internal appeals, 22.66–22.71 notice, 22.61–22.64 premature lodging of claim, 22.74– 22.78 Death of employee unfair dismissal claims, and fact of dismissal, 22.41 generally, 23.05 Death of employer fact of dismissal, and, 22.41 Death of partner fact of dismissal, and, 22.42 Decision to dismiss disciplinary procedures, and appeals, 13.107–13.113 ascertaining facts before taking action, 13.54–13.57 augmenting allegations made during investigation, 13.72 consistency in application, 13.49– 13.50 constructive approach, 13.42–13.47 corrective approach, 13.39–13.41 cross-examination, 13.58–13.66 employees to be treated as individuals, 13.71 employees to know what expected of them, 13.51–13.53 Garda involvement, 13.104 general principles, 13.48–13.72 handwriting experts, 13.102–13.103 identity of decision maker to be clear, 13.105–13.106 impartiality, 13.84

603

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Redmond on Dismissal Law Decision to dismiss (contd) informants, 13.87–13.89 inquiry and investigation, 13.81– 13.106 intra-employee complaints, 13.87– 13.89 introduction, 13.36–13.38 investigation, 13.81–13.106 legal representation, 13.67–13.70 non-union employees, for, 13.114– 13.119 presentation of defence, 13.58–13.66 private investigators, and, 13.90– 13.94 probationary employees, for, 13.120– 13.122 questioning facts, 13.58–13.66 representation, 13.67–13.70 suspension, 13.81–13.83 surveillance and monitoring, 13.96– 13.101 test purchasing, 13.95 warnings, 13.73–13.80 grounds discovered subsequent to dismissal, 13.09–13.10 previous incidents, 13.11 reason for dismissal evidence, 13.07–13.13 identification, 13.03–13.06 introduction, 13.01–13.02 reasonableness, and generally, 13.14–13.19 procedural justice, 13.20–13.24 regard to all the circumstances, 13.25–13.27 substantive justice, 13.20–13.24 subjective opinions, 13.11 written statement of particulars of grounds for dismissal, 13.06 Declaratory relief generally, 10.96–10.99 judicial review, and, 9.31–9.32 Deemed unfair dismissals adoptive leave, 14.34 age, 14.03 ante-natal care, 14.24

604

civil or criminal proceedings, 14.02 generally, 12.10–12.14 introduction, 14.01 involvement in civil or criminal proceedings, 14.02 maternity ante-natal care, 14.24 ante-natal classes, 14.25 background, 14.04 contractual agreement, 14.35–14.36 proceedings for breach by employer of EU law, 14.23 eligibility rules, 14.06 generally, 14.19–14.22 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 leave, 14.20 post-natal care, 14.24 right to return to work, 14.26–14.34 time off, 14.24–14.25 parental leave, 14.34 paternity leave, 14.26–14.34 post-natal care, 14.24 pregnancy background, 14.04 eligibility rules, 14.06 generally, 14.13–14.18 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 protective leave ante-natal care, 14.24 ante-natal classes, 14.25 background, 14.04 contractual agreement, 14.35–14.36 eligibility rules, 14.06 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 leave, 14.20 maternity, 14.19–14.22 persons covering for employee, and, 23.82–23.90 post-natal care, 14.24 pregnancy, 14.13–14.18

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Index Deemed unfair dismissals (contd) proceedings for breach by employer of EU law, 14.23 right to return to work, 14.26–14.34 time off, 14.24–14.25 time off for ante-natal care, 14.24 time off for breastfeeding, 14.25 Defence disciplinary procedures, and, 13.58– 13.66 Defence force members unfair dismissal, and, 23.60–23.62 wrongful dismissal, and, 3.45 Delay infringement of constitutional provisions, and, 8.21–8.32 Dependent contractor employment status, and, 3.01 Diminution of rights due to dismissal compensation for unfair dismissal, and, 24.56 Disappointment damages for wrongful dismissal, and, 11.48–11.49 Disciplinary bodies judicial review, and, 9.12 Disciplinary procedures appeals, 13.107–13.113 ascertaining facts before taking action, 13.54–13.57 augmenting allegations made during investigation, 13.72 CCTV, 13.96–13.101 Code of Practice, 13.36 collective issues, and, 21.09–21.10 consistency in application, 13.49–13.50 constructive approach, 13.42–13.47 constructive dismissal, and, 19.21 corrective approach, 13.39–13.41 cross-examination, 13.58–13.66 employees to be treated as individuals, 13.71 employees to know what expected of them, 13.51–13.53

605

employers augmenting allegations made during investigation, 13.72 Garda involvement, 13.104 general principles ascertaining facts, 13.54–13.57 augmenting allegations made during investigation, 13.72 consistency, 13.49–13.50 cross-examination, 13.58–13.66 employees to be treated as individuals, 13.71 employees to know what expected of them, 13.51–13.53 introduction, 13.48 legal representation, 13.67–13.70 presentation of defence, 13.58–13.66 questioning facts, 13.58–13.66 handwriting experts, 13.102–13.103 identity of decision maker to be clear, 13.105–13.106 impartiality, 13.84 informants, 13.87–13.89 injunctions, and, 10.21 inquiry and investigation extent, 13.85 Garda involvement, 13.104 handwriting experts, 13.102–13.103 identity of decision maker to be clear, 13.105–13.106 impartiality, 13.84 informants, 13.87–13.89 intra-employee complaints, 13.87– 13.89 introduction, 13.81–13.86 private investigators, 13.90–13.94 surveillance and monitoring, 13.96– 13.101 suspension, 13.81–13.83 test purchasing, 13.95 intra-employee complaints, 13.87– 13.89 introduction, 13.36–13.38 investigation, 13.81–13.106 legal representation, 13.67–13.70 non-union employees, for, 13.114– 13.119 Order 2000, Appendix J

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Redmond on Dismissal Law Disciplinary procedures (contd) presentation of defence, 13.58–13.66 private investigators, and, 13.90–13.94 probationary employees, for, 13.120– 13.122 progressive approach, 13.39–13.41 questioning facts, 13.58–13.66 representation, 13.67–13.70 surveillance and monitoring, 13.96– 13.101 suspension, 13.81–13.83 test purchasing, 13.95 warnings, 13.73–13.80 Discretion injunctions, and, 10.08 Dishonesty admission by employee, 16.14–16.15 crimes outside employment, 16.21– 16.37 employer’s rules, and, 16.105–16.107 falsifying business expenses, 16.20 generally, 16.10–16.13 secret profits, 16.19–16.20 social welfare fraud, 16.38–16.42 suspicions over more than one employee, 16.16–16.18 Disloyalty and infidelity acting in competition with employer, 16.87–16.89 confidential information, 16.90 employer’s rules, and, 16.110 introduction, 16.84 second jobs, 16.85–16.86 ‘Dismissal’ automatic theory, 22.06–22.11 bankruptcy, 22.44–22.46 consensual termination, 22.30–22.35 constructive dismissal, 22.12 date of automatic theory, 22.72–22.73 elective theory, 22.72–22.73 generally, 22.59–22.60 holidays, 22.65 internal appeals, 22.66–22.71 notice, 22.61–22.64

premature lodging of claim, 22.74– 22.78 death of employee, 22.41 death of employer, 22.41 death of partner, 22.42 definition automatic theory, 22.06–22.11 constructive dismissal, 22.12 elective theory, 22.06–22.11 fixed-term contracts, 22.03–22.05 introduction, 22.02 specified purpose contracts, 22.03– 22.05 doubts as to dismissal general, 22.13–22.21 internal appeals, 22.26–22.29 resignation, 22.22–22.25 elective theory, 22.06–22.11 examinership, 22.58 fixed-term contracts, 22.03–22.05 frustration, 22.39–22.40 insolvency bankruptcy, 22.44–22.46 examinership, 22.58 generally, 22.43 liquidation, 22.47–22.55 receivership, 22.56–22.57 winding-up, 22.47–22.55 internal appeals, 22.26–22.29 introduction, 22.01 liquidation, 22.47–22.55 meaning automatic theory, 22.06–22.11 constructive dismissal, 22.12 elective theory, 22.06–22.11 fixed-term contracts, 22.03–22.05 introduction, 22.02 specified purpose contracts, 22.03– 22.05 premature lodging of claim, 22.74– 22.78 receivership, 22.56–22.57 resignation doubts as to dismissal, 22.22–22.25 generally, 22.36–22.38 retirement of partner, 22.42

606

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Index ‘Dismissal’ (contd) specified purpose contracts, 22.03– 22.05 winding-up, 22.47–22.55 Dismissals deemed not to be unfair alcoholism, 15.25–15.31 capability alcoholism, 15.25–15.31 civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.04 ill-health, 15.05–15.24 introduction, 15.01–15.03 carelessness, 15.02 civil proceedings involving employer, 15.20–15.24 competence generally, 15.32–15.39 introduction, 15.01–15.03 conduct absenteeism, 16.74–16.76 acting in competition with employer, 16.87–16.89 alcohol-related conduct, 16.77–16.83 attitude, 16.92–16.93 bad language, 16.54–16.57 bullying, 16.69–16.73 common law, 16.07–16.08 confidential information, 16.90 dishonesty, 16.10–16.42 double-jobbing, 16.84–16.90 drug-related conduct, 16.77–16.83 e-mail abuse, 16.94–16.102 employer’s rules, and, 16.103–16.114 general, 16.01–16.06 grooming, 16.91 harassment, 16.69–16.73 honest belief, and, 16.04 horseplay, 16.58–16.68 Internet abuse, 16.94–16.102 ‘last straw’, 16.09 loyalty and fidelity, 16.84–16.90 personal hygiene, 16.91 physical injury to another person or property, 16.58–16.68 poor attitude, 16.92–16.93

refusal to comply with an order, 16.43–16.53 second jobs, 16.85–16.86 contravention of statute, 15.45–15.48 frustration, 15.13–15.19 generally, 12.09 gross misconduct, 15.02 idleness, 15.02 ill-health civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.05–15.12 negligence, 15.02 ‘other substantial grounds’ employer’s interests, 18.03–18.10 introduction, 18.01–18.02 reorganisation, 18.20–18.25 third party pressure, 18.11–18.19 transfer of undertakings, 18.26– 18.93 qualifications, 15.40–15.44 redundancy change of employment status, 17.22– 17.23 fairness, 17.24–17.29 industrial action, 17.14–17.16 introduction, 12.10 meaning, 17.01–17.04 proof, 17.05–17.08 redeployment, 17.21 reorganisation, 17.17–17.20 strikes, 17.14–17.16 ‘wholly or mainly’, 17.09–17.13 Dismissals deemed unfair adoptive leave, 14.34 age, 14.03 ante-natal care, 14.24 civil or criminal proceedings, 14.02 generally, 12.10–12.14 introduction, 14.01 involvement in civil or criminal proceedings, 14.02 maternity ante-natal care, 14.24 ante-natal classes, 14.25 background, 14.04

607

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Redmond on Dismissal Law Dismissals deemed unfair (contd) contractual agreement, 14.35–14.36 eligibility rules, 14.06 generally, 14.19–14.22 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 leave, 14.20 post-natal care, 14.24 proceedings for breach by employer of EU law, 14.23 right to return to work, 14.26–14.34 time off, 14.24–14.25 parental leave, 14.34 paternity leave, 14.26–14.34 post-natal care, 14.24 pregnancy background, 14.04 eligibility rules, 14.06 generally, 14.13–14.18 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 protective leave ante-natal care, 14.24 ante-natal classes, 14.25 background, 14.04 contractual agreement, 14.35–14.36 eligibility rules, 14.06 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 leave, 14.20 maternity, 14.19–14.22 persons covering for employee, and, 23.82–23.90 post-natal care, 14.24 pregnancy, 14.13–14.18 proceedings for breach by employer of EU law, 14.23 right to return to work, 14.26–14.34 time off, 14.24–14.25 time off for ante-natal care, 14.24 time off for breastfeeding, 14.25 Dispute procedures injunctions, and, 10.22

Distress damages for wrongful dismissal, and, 11.44–11.58 Documentation and information unfair dismissal proceedings, and, 25.46 Double jeopardy judicial review, and, 9.66–9.80 Double-jobbing conduct, and, 16.84–16.90 Downsizing redundancy, and, 17.20 Drug-related conduct conduct, and, 16.77–16.83 Due notice anti-avoidance cases, 4.13–4.18 common law, at, 4.03–4.09 contracts apparently incapable of termination anti-avoidance cases, 4.13–4.18 generally, 4.10–4.12 no right to work during notice, 4.19 date of dismissal, and, 22.61–22.64 frustration, and, 4.03 mutual consent, 4.20 no right to work during notice, 4.18 pay in lieu of notice, 4.25–4.27 resignation, 4.22–4.24 statutory notice, 4.21 waiver, 4.25–4.26

E Economic, technical and organisational reasons business transfers, and, 18.66–18.74 Economic torts immunity from civil action, and, 21.04 Elective theory constructive dismissal, and, 6.30 damages for wrongful dismissal, and, 11.37–11.43 date of dismissal, and, 22.72–22.73 fact of dismissal, and, 22.06–22.11 generally, 6.01–6.27 Ireland, in, 6.28–6.33 608

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Index Eligibility to claim (unfair dismissal) agency workers, 23.06–23.07 continuity of service First Schedule, 23.29–23.32 hours worked, 23.20–23.28 illegal contracts, 23.43–23.48 length of service, 23.20–23.28 part-time workers, 23.23 re-employment within 26 weeks, 23.37 temporary workers, 23.33–23.36 transferred employees, 23.38–23.42 death of employee, 23.05 employee agency workers, 23.06–23.07 death, 23.05 definition, 23.02 FÁS worker, 23.08 generally, 23.01–23.04 employer definition, 23.12 foreign workers, 23.18–23.19 generally, 23.12–23.14 secondment arrangements, 23.15– 23.17 hours worked, 23.20–23.28 FÁS worker, 23.08 foreign workers, 23.18–23.19 illegal contracts, 23.43–23.48 length of service, 23.20–23.28 office-holders, 23.09–23.11 parties agency workers, 23.06–23.08 employee, 23.01–23.08 employer, 23.12–23.19 qualified employee, 23.01 re-employment within 26 weeks, 23.37 secondment arrangements, 23.15– 23.17 successive fixed-term contracts, 23.33– 23.36 transferred employees, 23.38–23.42 E-mail abuse conduct, and, 16.94–16.102 Employees business transfers, and, 18.33

constitutional justice, and, 7.01 employment status, and changes in job market, 3.08 control test, 3.06–3.09 generally, 3.06–3.27 independent contactors, 3.10 integration test, 3.06 ‘mixed’ test, 3.06–3.07 mutuality of obligation, 3.14–3.27 self-employed person, 3.11–3.13 status test, 3.07 immunity from civil action, and, 21.06 unfair dismissal claims, and agency workers, 23.06–23.07 death, 23.05 definition, 23.02 FÁS worker, 23.08 generally, 23.01–23.04 wrongful dismissal, and generally, 3.06–3.27 position regulated by statute, 3.42– 3.50 Employees’ representatives unfair dismissal, and, 12.11 Employer’s interests ‘other substantial grounds’, and, 18.03– 18.10 Employers unfair dismissal claims, and definition, 23.12 foreign workers, 23.18–23.19 generally, 23.12–23.14 secondment arrangements, 23.15– 23.17 Employer’s rules see also Conduct competition law, 16.111 crimes outside employment, 16.106 criminal convictions, 16.104 dishonesty, 16.105–16.107 generally, 16.103–16.114 loyalty and fidelity, 16.110 mutual trust and confidence, 16.110 previous criminal convictions, 16.104 references, 16.104

609

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Redmond on Dismissal Law Employer’s rules (contd) restraint of trade clauses, 16.112– 16.114 secret profits, 16.108 Employment Appeals Tribunal see Workplace Relations Commission Employment equality constructive dismissal, and, 19.26– 19.28 Employment for life due notice, and, 4.10 Employment status civil servants, 3.42–3.50 control test, 3.06–3.09 ‘dependent contractor’, 3.01 employees changes in job market, 3.08 control test, 3.06–3.09 generally, 3.06–3.27 independent contactors, 3.10 integration test, 3.06 ‘mixed’ test, 3.06–3.07 mutuality of obligation, 3.14–3.27 self-employed person, 3.11–3.13 status test, 3.07 generally, 1.09 ‘gig economy’, and, 3.01 independent contractors, 3.10 integration test, 3.06 introduction, 3.01–3.05 master-servant relationship, 1.31–1.36 office-holders consequential powers, 3.34–3.41 co-operation in exercise of office, 3.33 generally, 3.28–3.32 incidental powers, 3.34–3.41 ‘office’, 3.29 pleasure of the government, at, 3.32 respect in exercise of office, 3.33 special status, 3.41 redundancy, and, 17.22–17.23 self-employed person, 3.11–3.13 status-holder, 3.41

statutorily-regulated workers, 3.42– 3.50 ‘worker’, 3.01 Enforcement unfair dismissal proceedings, and, 25.59–25.62 Equitable remedies declaratory relief, 10.96–10.99 injunctions balance of convenience, 10.19 closed shop agreements, and, 10.20 common characteristics, 10.29 conduct of parties, 10.17 damages, and, 10.16–10.17 developing jurisprudence, 10.30– 10.95 disciplinary procedures, and, 10.21 discretion, 10.08 dispute procedures, and, 10.22 exceptions to general rule, 10.20– 10.29 generally, 10.07–10.09 mutual trust and confidence, and, 10.22–10.26 obligations imposed, 10.09 principles, 10.10–10.19 redundancy selection, and, 10.27 introduction, 10.01–10.02 reinstatement, 10.05 specific performance, 10.03–10.06 European Convention on Human Rights and see Human rights Constitution of Ireland, and, 8.48–8.54 Evidence reason for dismissal, and, 13.07–13.13 Ex gratia payments compensation for unfair dismissal, and, 24.35 Examinership fact of dismissal, and, 22.58 Exemplary sums compensation for unfair dismissal, and, 24.32

610

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Index Express terms constructive dismissal, and, 19.10– 19.12 wrongful dismissal, and generally, 5.01–5.03 procedural limitations, 5.04–5.06 substantive limitations, 5.16 Expression, freedom of infringement of constitutional provisions, and, 8.05

F Fact of dismissal automatic theory, 22.06–22.11 bankruptcy, 22.44–22.46 consensual termination, 22.30–22.35 constructive dismissal, 22.12 death of employee, 22.41 death of employer, 22.41 death of partner, 22.42 ‘dismissal’ automatic theory, 22.06–22.11 constructive dismissal, 22.12 elective theory, 22.06–22.11 fixed-term contracts, 22.03–22.05 introduction, 22.02 specified purpose contracts, 22.03– 22.05 doubts as to dismissal general, 22.13–22.21 internal appeals, 22.26–22.29 resignation, 22.22–22.25 elective theory, 22.06–22.11 examinership, 22.58 fixed-term contracts, 22.03–22.05 frustration, 22.39–22.40 insolvency bankruptcy, 22.44–22.46 examinership, 22.58 generally, 22.43 liquidation, 22.47–22.55 receivership, 22.56–22.57 winding-up, 22.47–22.55 internal appeals, 22.26–22.29 liquidation, 22.47–22.55 receivership, 22.56–22.57

resignation doubts as to dismissal, 22.22–22.25 generally, 22.36–22.38 retirement of partner, 22.42 specified purpose contracts, 22.03– 22.05 winding-up, 22.47–22.55 Failure to comply with an order conduct, and, 16.43–16.53 Fair hearing, right to adequate notice of an inquiry, 7.13– 7.27 advice to tribunal or disciplinary panel, 7.54–7.55 cross-examination of one’s accusers, 7.41–7.48 generally, 7.09–7.12 information as to the charge, 7.13–7.27 interference by courts, 7.50–7.51 introduction, 7.06–7.08 legal advice to tribunal or disciplinary panel, 7.54–7.55 legal representation, 7.32–7.40 office-holders, 7.11–7.13 ‘open-and-shut cases’, 7.52–7.53 oral hearing, 7.28–7.31 plaintiff’s conduct, and, 7.49 professional persons, 7.15 receipt by tribunal of legal advice, 7.54–7.55 representation, 7.32–7.40 standard of proof, 7.56–7.59 unmeritorious conduct, 7.49 Fair procedures infringement of constitutional provisions, and, 8.16–8.18 Fair reasons for dismissal alcoholism, 15.25–15.31 capability alcoholism, 15.25–15.31 civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.04 ill-health, 15.05–15.24 introduction, 15.01–15.03

611

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Redmond on Dismissal Law Fair reasons for dismissal (contd) carelessness, 15.02 civil proceedings involving employer, 15.20–15.24 competence generally, 15.32–15.39 introduction, 15.01–15.03 conduct absenteeism, 16.74–16.76 acting in competition with employer, 16.87–16.89 alcohol-related conduct, 16.77–16.83 attitude, 16.92–16.93 bad language, 16.54–16.57 bullying, 16.69–16.73 common law, 16.07–16.08 confidential information, 16.90 dishonesty, 16.10–16.42 double-jobbing, 16.84–16.90 drug-related conduct, 16.77–16.83 e-mail abuse, 16.94–16.102 employer’s rules, and, 16.103–16.114 general, 16.01–16.06 grooming, 16.91 harassment, 16.69–16.73 honest belief, and, 16.04 horseplay, 16.58–16.68 Internet abuse, 16.94–16.102 ‘last straw’, 16.09 loyalty and fidelity, 16.84–16.90 personal hygiene, 16.91 physical injury to another person or property, 16.58–16.68 poor attitude, 16.92–16.93 refusal to comply with an order, 16.43–16.53 second jobs, 16.85–16.86 contravention of statute, 15.45–15.48 frustration, 15.13–15.19 generally, 12.09 gross misconduct, 15.02 idleness, 15.02 ill-health civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.05–15.12

negligence, 15.02 ‘other substantial grounds’ employer’s interests, 18.03–18.10 introduction, 18.01–18.02 reorganisation, 18.20–18.25 third party pressure, 18.11–18.19 transfer of undertakings, 18.26– 18.93 qualifications, 15.40–15.44 redundancy change of employment status, 17.22– 17.23 fairness, 17.24–17.29 industrial action, 17.14–17.16 introduction, 12.10 meaning, 17.01–17.04 proof, 17.05–17.08 redeployment, 17.21 reorganisation, 17.17–17.20 strikes, 17.14–17.16 ‘wholly or mainly’, 17.09–17.13 Fairness constructive dismissal, and, 13.02 injunctions, and, 10.42–10.58 redundancy, and, 17.24–17.29 unfair dismissal, and reason for dismissal, 13.01 introduction, 12.08 wrongful dismissal, and, 5.07–5.15 Faithful service wrongful dismissal, and, 5.19 False information on application forms conduct, and, 16.104 Falsifying business expenses conduct, and, 16.20 FÁS worker excluded employees, and, 23.49 status of employment, and, 23.08 Fees unfair dismissal proceedings, and, 25.69 Financial loss compensation for unfair dismissal, and, 24.32

612

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Index Financial security ‘other substantial grounds’, and, 18.03 Fixed-term contracts damages for wrongful dismissal, and, 11.11 due notice, and, 4.20 fact of dismissal, and, 22.03–22.05 unfair dismissal claims, and, 23.75– 23.81 unfair selection for redundancy, and, 21.58–21.58 Flexibility clauses constructive dismissal, and, 19.16– 19.20 Force majeure leave unfair dismissal, and, 12.10 Foreign companies unfair dismissal claims, and, 23.18– 23.19 Foreign workers unfair dismissal claims, and employers, 23.18–23.19 generally, 23.99–23.108 Freedom of association infringement of constitutional provisions, and, 8.10–8.13 Freedom of expression infringement of constitutional provisions, and, 8.05 Freedom of religion infringement of constitutional provisions, and, 8.05 Frustration due notice, and, 4.03 fact of dismissal, and, 22.39–22.40 ill-health, and, 15.13–15.19 Future loss compensation for unfair dismissal, and, 24.51–24.56

G Garda disciplinary procedures, and, 13.104

employment status, and, 3.45 unfair dismissal, and, 23.49–23.50 wrongful dismissal, and, 3.45 ‘Gig economy’ employment status, and, 3.01 Good faith see also Mutual trust and confidence wrongful dismissal, and, 2.07 Good name infringement of constitutional provisions, and, 8.20 Grooming and hygiene conduct, and, 16.91 Gross misconduct see also Conduct absenteeism, and, 16.75 alcohol-related behaviour, and, 16.78 introduction, 16.01 justification, 16.05 overview, 15.02 refusal to comply with order, 16.45 role, 16.03 social media, and, 16.97 Gross negligence conduct, and, 16.07 Grounds discovered subsequent to dismissal summary dismissal, and, 4.35–4.38 unfair dismissal, and, 13.09–13.10

H Hours worked unfair dismissal claims, and, 23.20– 23.28 Handwriting experts disciplinary procedures, and, 13.102– 13.103 Harassment conduct, and, 16.69–16.73 Health and safety at work persons covering for employee, and, 23.82–23.90 unfair dismissal, and, 12.11

613

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Redmond on Dismissal Law Hearings unfair dismissal proceedings, and adjournments, 25.47–25.49 in camera, 25.59–25.68 non-attendance, 25.50–25.54 Historical development of the law common law master-servant relationship, 1.31– 1.36 wrongful dismissal, 1.37–1.38 individual employment rights, 1.39– 1.44 introduction, 1.01–1.05 organised activity, 1.39–1.44 statute law, 1.06–1.30 Holidays date of dismissal, and, 22.65 Honest belief of employer conduct, and, 16.04 Horseplay conduct, and, 16.58–16.68 HSE chief executive officer unfair dismissal, and, 23.67 Human rights Constitution of Ireland, and, 8.48–8.54 reasonableness, and, 13.123–13.130

I Idleness unfair dismissal, and, 15.02 Illegal contracts unfair dismissal claims, and, 23.43– 23.48 Illegality judicial review, and, 9.08 Ill-health civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.05–15.12 Immunity from civil action failure of comply with procedures, 21.09–21.10

‘in contemplation or furtherance’, 21.04–21.06 introduction, 21.04 one-worker disputes, 21.07 ‘trade dispute’, 21.06 wild cat action, 21.08 ‘worker’, 21.06 Impartiality disciplinary procedures, and, 13.84 Implied terms constructive dismissal, and, 19.10– 19.12 fairness, of generally, 5.07–5.15 injunctions, and, 10.42–10.58 wrongful dismissal, and fairness, 5.07–5.15 generally, 5.17–5.20 introduction, 2.08 In camera hearings unfair dismissal proceedings, and, 25.59–25.68 Incapability alcoholism, 15.25–15.31 civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.04 ill-health, 15.05–15.24 introduction, 15.01–15.03 Income continuance damages for wrongful dismissal, and, 11.70–11.78 Income tax liability compensation for unfair dismissal, and, 24.50 damages for wrongful dismissal, and, 11.66–11.68 Incompetence generally, 15.32–15.39 introduction, 15.01–15.03 Inducing breach of employment contract see also Industrial action immunity from civil action, and, 21.04 614

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Index Industrial action effect on contract of employment, 21.80–21.85 generally, 21.71–21.73 immunity from civil action, 21.04– 21.10 lock-outs, 21.95–21.98 meaning, 21.86–21.87 misconduct, 21.74–21.75 non-selective dismissals, 21.76–21.78 ‘participating’ in, 21.88–21.94 redundancy, and, 17.14–17.16 ‘strike’ action, 21.79 suspension, 21.80–21.85 unfair selection for redundancy, and, 21.59 Informants disciplinary procedures, and, 13.87– 13.89 Injunctions action short of dismissal, 10.51–10.57 balance of convenience, 10.19 breach of procedural limitation, 10.42– 10.58 breach of substantive limitation, 10.33– 10.34 closed shop agreements, and, 10.20 common characteristics generally, 10.29 where granted, 10.31–10.58 where refused, 10.59–10.95 common characteristics where granted action short of dismissal, 10.51– 10.57 breach of procedural limitation, 10.42–10.58 breach of substantive limitation, 10.33–10.34 introduction, 10.31–10.32 implied term of fairness, 10.42– 10.58 office-holder with contract of employment, 10.35–10.41 suspension, 10.51–10.57 common characteristics where refused

615

dismissal on lawful notice, 10.82– 10.95 dismissal with no or inadequate notice, 10.79–10.81 introduction, 10.59 investigations, 10.60–10.69 no allegations made against employee, 10.70–10.95 reports on the facts, 10.60–10.69 summary dismissal, 10.79–10.81 conduct of parties, 10.17 constitutional justice, and, 7.04 damages, and, 10.16–10.17 developing jurisprudence action short of dismissal, 10.51– 10.57 breach of procedural limitation, 10.42–10.58 breach of substantive limitation, 10.33–10.34 common characteristics where injunction granted, 10.31–10.58 common characteristics where injunction refused, 10.59–10.95 dismissal on lawful notice, 10.82– 10.95 dismissal with no or inadequate notice, 10.79–10.81 implied term of fairness, 10.42– 10.58 introduction, 10.30–10.30 no allegations made against employee, 10.70–10.95 office-holder with contract of employment, 10.35–10.41 summary dismissal, 10.79–10.81 suspension, 10.51–10.57 disciplinary procedures, and, 10.21 dismissal on lawful notice, 10.82– 10.95 dismissal with no or inadequate notice, 10.79–10.81 discretion, 10.08 dispute procedures, and, 10.22 exceptions to general rule, 10.20–10.29 generally, 10.07–10.09 implied term of fairness, 10.42–10.58

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Redmond on Dismissal Law investigations, 10.60–10.69 judicial review, and, 9.46 mutual trust and confidence, and, 10.22–10.26 no allegations made against employee, 10.70–10.95 obligations imposed, 10.09 office-holder with contract of employment, 10.35–10.41 principles, 10.10–10.19 redundancy selection, and, 10.27 reports on the facts, 10.60–10.69 summary dismissal, 10.79–10.81 suspension, 10.51–10.57 Injury to another person or property conduct, and, 16.58–16.68 Injury to feelings damages for wrongful dismissal, and, 11.44–11.58 Inquiry and investigation and see Disciplinary procedures extent, 13.85 Garda involvement, 13.104 handwriting experts, 13.102–13.103 identity of decision maker to be clear, 13.105–13.106 impartiality, 13.84 informants, 13.87–13.89 intra-employee complaints, 13.87– 13.89 introduction, 13.81–13.86 private investigators, 13.90–13.94 surveillance and monitoring, 13.96– 13.101 suspension, 13.81–13.83 test purchasing, 13.95 Insolvency bankruptcy, 22.44–22.46 examinership, 22.58 generally, 22.43 liquidation, 22.47–22.55 recourse to Social Insurance Fund, and, 24.83–24.84 receivership, 22.56–22.57 winding-up, 22.47–22.55

Insurance ‘other substantial grounds’, and, 18.03 Integration test employment status, and, 3.06 Inter partes actions infringement of constitutional provisions, and, 8.01–8.03 Interference with trade see also Industrial action immunity from civil action, and, 21.04 Internal appeals date of dismissal, and, 22.66–22.71 fact of dismissal, and, 22.26–22.29 Internet abuse conduct, and, 16.94–16.102 Intimidation see also Industrial action immunity from civil action, and, 21.04 Intra-employee complaints disciplinary procedures, and, 13.87– 13.89 Investigation and see Disciplinary procedures extent, 13.85 Garda involvement, 13.104 handwriting experts, 13.102–13.103 identity of decision maker to be clear, 13.105–13.106 impartiality, 13.84 informants, 13.87–13.89 intra-employee complaints, 13.87– 13.89 introduction, 13.81–13.86 private investigators, 13.90–13.94 surveillance and monitoring, 13.96– 13.101 suspension, 13.81–13.83 test purchasing, 13.95 Involvement in civil or criminal proceedings unfair dismissal, and, 14.02 Irrationality judicial review, and, 9.08

616

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Index

J Judicial review certiorari, 9.41–9.45 damages additional remedy, as, 9.35–9.36 alternative remedy, as, 9.33–9.34 quantum, 9.37–9.40 declaratory relief, 9.31–9.32 double jeopardy, 9.66–9.80 employment decisions, of, 9.09–9.29 grounds of application, 9.07 hypothetical conduct, 9.08 injunctions, 9.46 introduction 9.01–9.08 leave by motion, 9.06 legitimate expectation, 9.47–9.65 moot points, 9.08 nature, 9.05 recommendations by Labour Court, 9.08 remedies certiorari, 9.41–9.45 damages, 9.33–9.40 declaratory relief, 9.31–9.32 injunctions, 9.46 introduction, 9.30 unfair dismissal proceedings, and, 25.70–25.71 Jurisdiction unfair dismissal claims, and, 23.075– 23.078

L Labour Court unfair dismissal proceedings, and generally, 25.08–25.11 jurisdiction, 23.075–23.078 Lack of capability alcoholism, 15.25–15.31 civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.04 ill-health, 15.05–15.24 introduction, 15.01–15.03

Lack of competence generally, 15.32–15.39 introduction, 15.01–15.03 ‘Last in first out’ (LIFO) unfair selection for redundancy, and, 21.56–21.57 ‘Last straw’ conduct, and, 16.09 Legal representation audi alteram partem, and, 7.32–7.40 disciplinary procedures, and, 13.67– 13.70 Legitimate expectation judicial review, and, 9.47–9.65 Length of service unfair dismissal claims, and, 23.20– 23.28 Liability to tax compensation for unfair dismissal, and, 24.50 damages for wrongful dismissal, and, 11.66–11.68 ‘Limited damages rule’ wrongful dismissal, and breach of substantive limitations, 11.27 generally, 11.10 Liquidation fact of dismissal, and, 22.47–22.55 Local authority managers unfair dismissal, and, 23.64 Lock-outs and see Industrial action generally, 21.95–21.98 Locus standi constitutional provisions, and, 8.03 Loss of earnings damages for wrongful dismissal, and, 11.12 Loss of pension rights compensation for unfair dismissal, and, 24.57–24.61

617

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Redmond on Dismissal Law Loss of pension rights (contd) damages for wrongful dismissal, and, 11.59–11.65 Loss of reputation constructive dismissal, 11.58 disappointment, 11.48–11.49 generally, 11.44–11.50 Johnson decision, 11.55–11.57 Malik and Mahmood decision, 11.51– 11.54 mental distress, 11.45 repudiatory act, 11.58 Loss of rights due to dismissal compensation for unfair dismissal, and, 24.56 Loss of seniority rights damages for wrongful dismissal, and, 11.65 Loss of statutory rights damages for wrongful dismissal, and, 11.13–11.26 Loyalty and fidelity acting in competition with employer, 16.87–16.89 confidential information, 16.90 employer’s rules, and, 16.110 introduction, 16.84 second jobs, 16.85–16.86

M Maintenance of ethos ‘other substantial grounds’, and, 18.05– 18.10 Mandamus judicial review, and, 9.02 Master-servant relationship common law, 1.31–1.36 statute law, 1.06–1.30 Maternity (unfair dismissal) ante-natal care, 14.24 ante-natal classes, 14.25 background, 14.04 contractual agreement, 14.35–14.36 eligibility rules, 14.06

generally, 14.19–14.22 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 leave, 14.20 persons covering for employee on leave, and, 23.82–23.90 post-natal care, 14.24 proceedings for breach by employer of EU law, 14.23 Regulations, Appendix I right to return to work, 14.26–14.34 time off, 14.24–14.25 Mental distress damages for wrongful dismissal, and, 11.45 Minimum notice wrongful dismissal, and, 5.06 Minimum Notice and Terms of Employment Act 1973 text, Appendix G Minimum wage unfair dismissal, and, 12.11 Misconduct absenteeism, 16.74–16.76 abusive language, 16.54–16.57 acting in competition with employer, 16.87–16.89 alcohol-related conduct, 16.77–16.83 assault, 16.07 attitude, 16.92–16.93 bad language, 16.54–16.57 bullying, 16.69–16.73 common law, 16.07–16.08 confidential information, 16.90 crimes outside employment dishonesty, and, 16.21–16.37 employer’s rules, and, 16.106 criminal convictions, and, 16.104 criteria to support decision, 16.06 dishonesty admission by employee, 16.14–16.15 crimes outside employment, 16.21– 16.37 employer’s rules, and, 16.105–16.107

618

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Index Misconduct (contd) falsifying business expenses, 16.20 generally, 16.10–16.13 secret profits, 16.19–16.20 social welfare fraud, 16.38–16.42 suspicions over more than one employee, 16.16–16.18 disloyalty and infidelity acting in competition with employer, 16.87–16.89 confidential information, 16.90 introduction, 16.84 second jobs, 16.85–16.86 double-jobbing, 16.84–16.90 drug-related conduct, 16.77–16.83 e-mail abuse, 16.94–16.102 employer’s rules, and competition law, 16.111 crimes outside employment, 16.106 criminal convictions, 16.104 dishonesty, 16.105–16.107 generally, 16.103–16.114 loyalty and fidelity, 16.110 mutual trust and confidence, 16.110 previous criminal convictions, 16.104 references, 16.104 restraint of trade clauses, 16.112– 16.114 secret profits, 16.108 failure to comply with an order, 16.43– 16.53 false information on application forms, 16.104 falsifying business expenses, 16.20 general, 16.01–16.06 grooming, 16.91 gross misconduct absenteeism, and, 16.75 alcohol-related behaviour, and, 16.78 introduction, 16.01 justification, 16.05 refusal to comply with order, 16.45 role, 16.03 social media, and, 16.97 honest belief of employer, and, 16.01 harassment, 16.69–16.73

honest belief, and, 16.04 horseplay, 16.58–16.68 industrial action, and, 21.74–21.75 Internet abuse, 16.94–16.102 ‘last straw’, 16.09 loyalty and fidelity acting in competition with employer, 16.87–16.89 confidential information, 16.90 introduction, 16.84 second jobs, 16.85–16.86 non-performance of task, 16.43–16.53 obscene language, 16.54–16.57 personal hygiene, 16.91 physical injury to another person or property, 16.58–16.68 poor attitude, 16.92–16.93 ‘premises’ to support decision, 16.06 refusal to comply with an order, 16.43– 16.53 requirements, 16.06 second jobs, 16.85–16.86 secret profits dishonesty, and, 16.19–16.20 employer’s rules, and, 16.108 smoking, and, 16.51 social welfare fraud, 16.38–16.42 suspicions over more than one employee, 16.16–16.18 theft, 16.10 wrongful dismissal, and, 5.16 Mitigation of loss compensation for unfair dismissal, and, 24.72–24.77 damages for wrongful dismissal, and, 11.79–11.83 Mobility clauses constructive dismissal, and, 19.16– 19.20 Mutual consent due notice, and, 4.20 Mutual trust and confidence characteristics, 5.22–5.26 Commonwealth Bank of Australia v Barker decision, 5.65–5.67 conclusions, 5.68–5.71

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Redmond on Dismissal Law Mutual trust and confidence (contd) Eastwood decision, 5.44–5.55 Edwards v Chesterfield decision, 5.56– 5.64 employer’s rules, and, 16.110 generally, 5.21 injunctions, and, 10.22–10.26 interaction between common law and statute, 5.27 introduction, 2.06 Johnson decision, 5.32–5.37 McGrath v Trintech decision, 5.38– 5.43 Malik and Mahmood decision, 5.28– 5.31 overarching term, and, 5.68–5.71 Western Excavating decision, 5.27

N Natal care leave see also Maternity persons covering for employee, and, 23.82–23.90 unfair dismissal, and, 14.24 National minimum wage unfair dismissal, and, 12.11 Natural justice audi alteram partem adequate notice of an inquiry, 7.13– 7.27 advice to tribunal or disciplinary panel, 7.54–7.55 cross-examination of one’s accusers, 7.41–7.48 generally, 7.09–7.12 information as to the charge, 7.13– 7.27 interference by courts, 7.50–7.51 introduction, 7.06–7.08 legal advice to tribunal or disciplinary panel, 7.54–7.55 legal representation, 7.32–7.40 office-holders, 7.11–7.13 ‘open-and-shut cases’, 7.52–7.53 oral hearing, 7.28–7.31 plaintiff’s conduct, and, 7.49

professional persons, 7.15 receipt by tribunal of legal advice, 7.54–7.55 representation, 7.32–7.40 standard of proof, 7.56–7.59 unmeritorious conduct, 7.49 bias generally, 7.60–7.70 introduction, 7.06–7.08 necessity, and, 7.60 probationers, 7.71–7.76 generally, 7.02–7.08 introduction 7.01 unfair dismissal claims, and, 24.78– 24.82 Negligence unfair dismissal, and, 15.02 Nemo judex in causa sua generally, 7.60–7.70 introduction, 7.06–7.08 necessity, and, 7.60 probationers, 7.71–7. Non-attendance at hearings unfair dismissal proceedings, and, 25.50–25.54 Non-compliance with procedures compensation for unfair dismissal, and, 24.71 Non-performance of task conduct, and, 16.43–16.53 Non-union employees disciplinary procedures, and, 13.114– 13.119 Normal retiring age unfair dismissal, and, 23.53–23.59 Notice common law, at, 4.03–4.09 contracts apparently incapable of termination anti-avoidance cases, 4.13–4.18 generally, 4.10–4.12 no right to work during notice, 4.19 date of dismissal, and, 22.61–22.64 frustration, and, 4.03

620

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Index Notice (contd) mutual consent, 4.20 pay in lieu of notice, 4.25–4.27 resignation, 4.22–4.24 statutory notice, 4.21 waiver, 4.25–4.26 Notice of appearance unfair dismissal proceedings, and, 25.44

changes in terms and conditions of employment, 18.78–18.93 collective agreements, and, 18.29 contracting out, 18.64–18.65 core provision, 18.30–18.33 definitions, 18.33 economic, technical and organisational reasons, 18.66–18.74 general, 18.26–18.29 jurisdiction of EAT, 18.35–18.37 objection by employee, 18.34 part of business or of group, 18.75– 18.77 termination before transfer date, 18.60–18.63 ‘transfer’, 18.55–18.56 transferor and transferee, 18.57– 18.59 employer’s interests, 18.03–18.10 financial security of employer, 18.03 insurance, and, 18.03 introduction, 18.01–18.02 maintenance of ethos, 18.05–18.10 religious ethosm 18.10 reorganisation, 18.20–18.25 third party pressure, 18.11–18.19

O Obedience to lawful instructions wrongful dismissal, and, 5.19 Obscene language conduct, and, 16.54–16.57 Office-holders audi alteram partem, and, 7.11–7.13 consequential powers, 3.34–3.41 constitutional justice, and, 7.01 co-operation in exercise of office, 3.33 employment status, and consequential powers, 3.34–3.41 exercise of office, 3.33 generally, 3.28–3.32 incidental powers, 3.34–3.41 incidental powers, 3.34–3.41 injunctions, and, 10.35–10.41 ‘office’, 3.29 pleasure of the government, at, 3.32 respect in exercise of office, 3.33 special status, 3.41 unfair dismissal claims, and, 23.09– 23.11 One-worker disputes industrial action, and, 21.07 ‘Open-and-shut cases’ audi alteram partem, and, 7.52–7.53 Oral hearing audi alteram partem, and, 7.28–7.31 Organised activity historical background, 1.39–1.44 ‘Other substantial grounds’ business transfers change of contractors, 18.42–18.50

P Parental leave unfair dismissal, and, 14.34 Part-time work unfair selection for redundancy, and, 21.58–21.58 Paternity leave persons covering for employee on leave, and, 23.82–23.90 unfair dismissal, and, 14.26–14.34 Pay in lieu of notice due notice, and, 4.25–4.27 Pensions and benefits compensation for unfair dismissal, and, 24.57–24.61 damages for wrongful dismissal, and, 11.59–11.65

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Redmond on Dismissal Law Personal hygiene conduct, and, 16.91 Personal rights constitutional provisions, and, 8.06– 8.07 Physical injury to another person or property conduct, and, 16.58–16.68 Picketing see also Industrial action immunity from civil action, and, 21.04 Police wrongful dismissal, and, 3.45 Political opinions unfair dismissal and, 12.10 Poor attitude conduct, and, 16.92–16.93 Post-natal care persons covering for employee on leave, and, 23.82–23.90 unfair dismissal, and, 14.24 Potentially fair dismissals alcoholism, 15.25–15.31 capability alcoholism, 15.25–15.31 civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.04 ill-health, 15.05–15.24 introduction, 15.01–15.03 carelessness, 15.02 civil proceedings involving employer, 15.20–15.24 competence generally, 15.32–15.39 introduction, 15.01–15.03 conduct absenteeism, 16.74–16.76 acting in competition with employer, 16.87–16.89 alcohol-related conduct, 16.77–16.83 attitude, 16.92–16.93 bad language, 16.54–16.57

622

bullying, 16.69–16.73 common law, 16.07–16.08 confidential information, 16.90 dishonesty, 16.10–16.42 double-jobbing, 16.84–16.90 drug-related conduct, 16.77–16.83 e-mail abuse, 16.94–16.102 employer’s rules, and, 16.103–16.114 general, 16.01–16.06 grooming, 16.91 harassment, 16.69–16.73 honest belief, and, 16.04 horseplay, 16.58–16.68 Internet abuse, 16.94–16.102 ‘last straw’, 16.09 loyalty and fidelity, 16.84–16.90 personal hygiene, 16.91 physical injury to another person or property, 16.58–16.68 poor attitude, 16.92–16.93 refusal to comply with an order, 16.43–16.53 second jobs, 16.85–16.86 contravention of statute, 15.45–15.48 frustration, 15.13–15.19 generally, 12.09 gross misconduct, 15.02 idleness, 15.02 ill-health civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.05–15.12 negligence, 15.02 ‘other substantial grounds’ employer’s interests, 18.03–18.10 introduction, 18.01–18.02 reorganisation, 18.20–18.25 third party pressure, 18.11–18.19 transfer of undertakings, 18.26– 18.93 qualifications, 15.40–15.44 redundancy change of employment status, 17.22– 17.23 fairness, 17.24–17.29 industrial action, 17.14–17.16

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Index Potentially fair dismissals (contd) introduction, 12.10 meaning, 17.01–17.04 proof, 17.05–17.08 redeployment, 17.21 reorganisation, 17.17–17.20 strikes, 17.14–17.16 ‘wholly or mainly’, 17.09–17.13 Pregnancy (unfair dismissal) background, 14.04 eligibility rules, 14.06 generally, 14.13–14.18 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 persons covering for employee, and, 23.82–23.90 time off for ante-natal care, 14.24 time off for breastfeeding, 14.25 Premature lodging of claims date of dismissal, and, 22.74–22.78 Pressure from third party ‘other substantial grounds’, and, 18.11– 18.19 Previous criminal convictions employer’s rules, and, 16.104 Previous incidents reason for dismissal, and, 13.11 Privacy, right to infringement of constitutional provisions, and 8.19 Private investigators disciplinary procedures, and, 13.90– 13.94 Private law rights constitutional provisions, and, 8.01– 8.02 Probationary employees disciplinary procedures, and, 13.120– 13.122 unfair dismissal, and, 23.68–23.70

Procedural fairness wrongful dismissal, and, 5.07–5.15 Procedural impropriety judicial review, and, 9.08 Procedural justice decision to dismiss, and, 13.20–13.24 Procedural safeguards wrongful dismissal, and, 5.04–5.06 Professional persons audi alteram partem, and, 7.15 Progressive approach disciplinary procedures, and, 13.39– 13.41 Prohibition judicial review, and, 9.02 Property rights infringement of constitutional provisions, and, 8.05 Prospective loss compensation for unfair dismissal, and, 24.51–24.56 Protective leave ante-natal care, 14.24 ante-natal classes, 14.25 background, 14.04 contractual agreement, 14.35–14.36 eligibility rules, 14.06 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 leave, 14.20 maternity, 14.19–14.22 persons covering for employee, and, 23.82–23.90 post-natal care, 14.24 pregnancy, 14.13–14.18 proceedings for breach by employer of EU law, 14.23 right to return to work, 14.26–14.34 time off, 14.24–14.25 Provision of work wrongful dismissal, and, 5.19

623

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Redmond on Dismissal Law

Q Qualifications unfair dismissal, and, 15.40–15.44

R Race unfair dismissal, and, 12.10 Reason for dismissal evidence, 13.07–13.13 identification, 13.03–13.06 introduction, 13.01–13.02 reasonableness, 13.14–13.27 Reasonableness constructive dismissal, and fact of dismissal, and, 22.12 generally, 19.13–19.15 introduction, 19.04–19.07 decision to dismiss, of generally, 13.14–13.19 procedural justice, 13.20–13.24 regard to all the circumstances, 13.25–13.27 substantive justice, 13.20–13.24 disciplinary procedures appeals, 13.107–13.113 ascertaining facts before taking action, 13.54–13.57 augmenting allegations made during investigation, 13.72 consistency in application, 13.49– 13.50 constructive approach, 13.42–13.47 corrective approach, 13.39–13.41 cross-examination, 13.58–13.66 employees to be treated as individuals, 13.71 employees to know what expected of them, 13.51–13.53 Garda involvement, 13.104 general principles, 13.48–13.72 handwriting experts, 13.102–13.103 identity of decision maker to be clear, 13.105–13.106 impartiality, 13.84 informants, 13.87–13.89

inquiry and investigation, 13.81– 13.106 intra-employee complaints, 13.87– 13.89 introduction, 13.36–13.38 investigation, 13.81–13.106 legal representation, 13.67–13.70 non-union employees, for, 13.114– 13.119 presentation of defence, 13.58–13.66 private investigators, and, 13.90– 13.94 probationary employees, for, 13.120– 13.122 questioning facts, 13.58–13.66 representation, 13.67–13.70 suspension, 13.81–13.83 surveillance and monitoring, 13.96– 13.101 test purchasing, 13.95 warnings, 13.73–13.80 European Convention on Human Rights Act 2000, and, 13.123–13.130 fairness, and, 13.01 function of WRC, 13.28–13.35 grounds discovered subsequent to dismissal, 13.09–13.10 grounds for dismissal, and, 13.08 human rights, and, 13.123–13.130 introduction, 12.07 reason for dismissal evidence, 13.07–13.13 grounds discovered subsequent to dismissal, 13.09–13.10 identification, 13.03–13.06 introduction, 13.01–13.02 previous incidents, 13.11 subjective opinions, 13.11 unfair selection for redundancy, and, 21.45–21.46 written statement of particulars of grounds for dismissal, 13.06 Reasonable care wrongful dismissal, and, 5.19 Receivership fact of dismissal, and, 22.56–22.57

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Index Redeployment redundancy, and, 17.21 Redundancy burden of proof, 17.03 cessation of place of business, 17.16 change of employment status, 17.22– 17.23 collective redundancies, 21.63–21.70 ‘downsizing’, 17.20 fairness, 17.24–17.29 industrial action, 17.14–17.16 introduction, 12.10 meaning, 17.01–17.04 proof, 17.05–17.08 redeployment, 17.21 reorganisation, 17.17–17.20 requirements, 17.05–17.08 strikes, 17.14–17.16 technology changes, 17.17 unfair selection analysis of selection 21.47–21.61 collective redundancies, and, 21.63– 21.70 comparators, 21.39 discriminatory criteria, 21.58–21.58 eligibility to claim, 21.36 generally, 17.01 inadmissible grounds, 21.37–21.38 industrial action, and, 21.59 injunctions, 10.27 introduction, 21.34–21.35 ‘last in first out’, 21.56–21.57 procedures, 21.40–21.44 reasonableness, 21.45–21.46 special reasons for departing from procedure, 21.43–21.44 summary, 21.62 ‘wholly or mainly’, 17.09–17.13 ‘work of a particular kind’, 17.19 Redundancy Appeals Tribunal Regulations 1968 text, Appendix F Re-employment within 26 weeks unfair dismissal claims, and, 23.37 Re-engagement contributory conduct, 24.23

definition, 24.12–24.17 introduction, 24.01–24.02 limitations, 24.18–24.18 References employer’s rules, and, 16.104 Refusal to comply with an order conduct, and, 16.43–16.53 Reinstatement constructive dismissal, and, 24.19– 24.27 contributory conduct, 24.23 definition, 24.05–24.11 generally, 10.05 infringement of constitutional provisions, and, 8.43–8.47 introduction, 24.01–24.02 limitations, 24.18–24.27 Religion, freedom of infringement of constitutional provisions, and 8.05 Religious ethos ‘other substantial grounds’, and, 18.10 Religious opinions unfair dismissal, and, 12.10 Remedies certiorari, 9.41–9.45 compensation actual loss, 24.39–24.47 amount, 24.36 approach of the WRC, 24.28–24.29 calculation, 24.34–24.38 conduct of parties prior to dismissal, and, 24.67–24.70 contributory action, and, 24.62– 24.66 deductions from actual loss, 24.48– 24.50 determining factors, 24.34 diminution of rights due to dismissal, 24.56 ex gratia payments, 24.35 exemplary sums, 24.32 ‘financial loss’, 24.32 future loss, 24.51–24.56 generally, 24.30–24.38

625

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Redmond on Dismissal Law Remedies (contd) introduction, 24.28–24.29 loss of pension rights, 24.57–24.61 loss of rights due to dismissal, 24.56 mitigation duty, 24.72–24.77 non-compliance with procedures, and, 24.71 prospective loss, 24.51–24.56 purpose, 24.33 ‘remuneration’, 24.32 severance payments, 24.35 social welfare benefits, 24.48–24.50 superannuation, 24.57–24.61 tax liability, 24.50 damages breach of procedural limitations, 11.30–11.36 breach of substantive limitations, 11.27–11.29 distress, 11.44–11.58 elective theory, and, 11.37–11.43 general principles, 11.01–11.26 income continuance, 11.70–11.78 income tax liability, 11.66–11.68 infringement of constitutional provisions, for, 8.33–8.42 injury to reputation, 11.44–11.58 judicial review, and, 9.37–9.40 liability to income tax, 11.66–11.68 mitigation of loss, 11.79–11.83 pensions and benefits, 11.59–11.65 social welfare benefits, 11.69 tax liability, 11.66–11.68 termination of secondment agreement, 11.84–11.87 declaratory relief judicial review, and, 9.31–9.32 wrongful dismissal, for, 10.96–10.99 equitable remedies, 10.01–10.06 infringement of constitutional provisions, for damages, 8.33–8.42 other, 8.43–8.47 reinstatement, 8.43–8.47 injunctions balance of convenience, 10.19 closed shop agreements, and, 10.20

common characteristics, 10.29 conduct of parties, 10.17 damages, and, 10.16–10.17 developing jurisprudence, 10.30– 10.95 disciplinary procedures, and, 10.21 discretion, 10.08 dispute procedures, and, 10.22 exceptions to general rule, 10.20– 10.29 generally, 10.07–10.09 mutual trust and confidence, and, 10.22–10.26 obligations imposed, 10.09 principles, 10.10–10.19 redundancy selection, and, 10.27 judicial review, and certiorari, 9.41–9.45 damages, 9.33–9.40 declaratory relief, 9.31–9.32 generally, 9.30 injunctions, 9.46 introduction 9.01–9.08 recourse to Social Insurance Fund, 24.83–24.84 re-engagement contributory conduct, 24.23 definition, 24.12–24.17 introduction, 24.01–24z-02 limitations, 24.18–24.27 reinstatement constructive dismissal, and, 24.19– 24.27 contributory conduct, 24.23 definition, 24.05–24.11 infringement of constitutional provisions, for, 8.43–8.47 introduction, 24.01–24z-02 limitations, 24.18–24.27 specific performance, and, 10.05 unfair dismissal, and, 24.05–24.27 specific performance, 10.03–10.06 unfair dismissal, for compensation, 24.28–24.77 constitution, under, 24.03–24.04 generally, 12.13

626

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Index Remedies (contd) insolvency of employer, and, 24.83– 24.84 introduction, 24.01–24.02 natural justice, 24.78–24.82 recourse to Social Insurance Fund, 24.83–24.84 re-engagement, 24.05–24.18 reinstatement, 24.05–24.27 right to employment, 24.01–24.02 wrongful dismissal, for damages, 11.01–11.87 declaratory relief, 10.96–10.99 equitable, 10.01–10.06 injunctions, 10.07–10.95 judicial review, 9.30–9.45 reinstatement, 10.05 specific performance, 10.03–10.06 Remuneration compensation for unfair dismissal, and, 24.32 Reorganisation ‘other substantial grounds’, and, 18.20– 18.25 redundancy, and, 17.17–17.20 Representation audi alteram partem, and, 7.32–7.40 disciplinary procedures, and, 13.67– 13.70 Repudiatory breach of contract constructive dismissal, and, 22.12 effect, 6.01–6.27 elective theory 6.28–6.33 generally, 5.01–5.03 implied term of fairness, 5.07–5.15 implied terms, 5.17–5.71 procedural limitations, 5.04–5.06 substantive limitations, 5.16 ‘Resign or be dismissed’ ultimatum constructive dismissal, and, 19.24 Resignation and see Constructive dismissal due notice, and, 4.22–4.24 fact of dismissal, and doubts as to dismissal, 22.22–22.25 generally, 22.36–22.38

Restitutio in integrum damages for wrongful dismissal, and, 11.01–11.09 Restraint of trade clauses employer’s rules, and, 16.112–16.114 Retirement of partner fact of dismissal, and, 22.42 Right to be heard adequate notice of an inquiry, 7.13– 7.27 advice to tribunal or disciplinary panel, 7.54–7.55 cross-examination of one’s accusers, 7.41–7.48 generally, 7.09–7.12 information as to the charge, 7.13–7.27 interference by courts, 7.50–7.51 introduction, 7.06–7.08 legal advice to tribunal or disciplinary panel, 7.54–7.55 legal representation, 7.32–7.40 office-holders, 7.11–7.13 ‘open-and-shut cases’, 7.52–7.53 oral hearing, 7.28–7.31 plaintiff’s conduct, and, 7.49 professional persons, 7.15 receipt by tribunal of legal advice, 7.54–7.55 representation, 7.32–7.40 standard of proof, 7.56–7.59 unmeritorious conduct, 7.49 Right to employment unfair dismissal claims, and, 24.01– 24.02 Right to fair procedures infringement of constitutional provisions, and, 8.16–8.18 Right to good name infringement of constitutional provisions, and, 8.20 Right to privacy infringement of constitutional provisions, and, 8.19 Right to speedy trial infringement of constitutional provisions, and, 8.21–8.32

627

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Redmond on Dismissal Law Right to work infringement of constitutional provisions, and, 8.14–8.15 Rights commissioners unfair dismissal proceedings, and, 25.05

S Safety, health and welfare at work unfair dismissal, and, 12.11 Second jobs conduct, and, 16.85–16.86 Secondment agreement damages for wrongful dismissal, and, 11.84–11.87 unfair dismissal claims, and, 23.15– 23.17 Secret profits dishonesty, and, 16.19–16.20 employer’s rules, and, 16.108 Secrets wrongful dismissal, and, 5.19 Section 18 leave see also Maternity persons covering for employee, and, 23.82–23.90 Self-employed persons employment status, and, 3.11–3.13 Serious misconduct wrongful dismissal, and, 5.16 Services personnel unfair dismissal, and, 23.60–23.62 wrongful dismissal, and, 3.45 Settlements unfair dismissal proceedings, and, 25.55–25.58 Severance payments compensation for unfair dismissal, and, 24.35 Sex discrimination constructive dismissal, and, 19.26

Sexual harassment constructive dismissal, and, 19.26– 19.28 Sexual orientation unfair dismissal, and, 12.10 Sickness and ill-health civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.05–15.12 Smoking conduct, and, 16.51 Social Insurance Fund insolvency of employer, and, 24.83– 24.84 Social welfare benefits compensation for unfair dismissal, and, 24.48–24.50 damages for wrongful dismissal, and, 11.69 Social welfare fraud conduct, and, 16.38–16.42 Specific performance generally, 10.03–10.06 Specified purpose contracts fact of dismissal, and, 22.03–22.05 Standard of proof audi alteram partem, and, 7.56–7.59 State immunity unfair dismissal proceedings, and, 25.59–25.68 Statute law historical development, 1.06–1.30 Statutory apprentices unfair dismissal, and, 23.71–23.74 Statutory notice due notice, and, 4.21 Statutory waiver due notice, and, 4.25–4.26 Strikes effect on contract of employment, 21.80–21.85

628

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Index Strikes (contd) generally, 21.71–21.73 immunity from civil action, 21.04– 21.10 ‘industrial action’, 21.86–21.87 lock-outs, 21.95–21.98 misconduct, 21.74–21.75 non-selective dismissals, 21.76–21.78 ‘participating’ in, 21.88–21.94 redundancy, and, 17.14–17.16 ‘strike’ action, 21.79 unfair selection for redundancy, and, 21.59 Subjective opinions reason for dismissal, and, 13.11 Submissions unfair dismissal proceedings, and, 25.41–25.45 Substantive justice decision to dismiss, and, 13.20–13.24 Successive fixed-term contracts unfair dismissal claims, and, 23.33– 23.36 Summary dismissal grounds discovered subsequent to dismissal, 4.35–4.38 grounds existing at time of dismissal, 4.28–4.34 injunctions, and, 10.79–10.81 Superannuation compensation for unfair dismissal, and, 24.57–24.61 Surveillance in workplace disciplinary procedures, and, 13.96– 13.101 infringement of constitutional provisions, and, 8.19 Suspension disciplinary procedures, and, 13.81– 13.83 industrial action, and, 21.80–21.85 injunctions, and, 10.51–10.57

Suspicions over more than one employee conduct, and, 16.16–16.18

T Tax liability compensation for unfair dismissal, and, 24.50 damages for wrongful dismissal, and, 11.66–11.68 Technology changes redundancy, and, 17.17 Termination due notice anti-avoidance cases, 4.13–4.18 common law, at, 4.03–4.09 contracts apparently incapable of termination, 4.10–4.19 mutual consent, 4.20 no right to work during notice, 4.19 pay in lieu of notice, 4.25–4.27 resignation, 4.22–4.24 statutory notice, 4.21 waiver, 4.25–4.26 secondment agreement, and, 11.84– 11.87 summary dismissal grounds discovered subsequent to dismissal, 4.35–4.38 grounds existing at time of dismissal, 4.28–4.34 wrongful dismissal, and due notice, 4.03–4.27 introduction, 4.01–4.02 summary dismissal, 4.28–4.38 Terms and conditions of employment business transfers, and, 18.78–18.93 wrongful dismissal, and breach of implied term of fairness, 5.07–5.15 breach of implied terms, 5.17–5.71 breach of procedural limitations, 5.04–5.06 breach of substantive limitations, 5.16

629

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Redmond on Dismissal Law Terms and conditions of employment (contd) effect of breach, 6.01–6.27 elective theory 6.28–6.33 generally, 5.01–5.03 Test purchasing disciplinary procedures, and, 13.95 Theft conduct, and, 16.07 Third party pressure ‘other substantial grounds’, and, 18.11– 18.19 Time limits unfair dismissal proceedings, and appeals from WRC, 25.25–25.30 appeals to High Court on point of law, 25.31–25.37 enforcement of decisions of WRC, 25.25–25.30 generally, 25.20–25.24 Time off ante-natal care, and, 14.24 breastfeeding, and, 14.25 post-natal care, and, 14.25 Trade dispute see also Industrial action immunity from civil action, and, , 21.06 Trade secrets wrongful dismissal, and, 5.19 Trade union membership or activities ‘activities’ generally, 21.26–21.30 timing, 21.31–21.33 business transfers, 21.24–21.25 eligibility to claim, 21.14–21.17 generally, 21.13 introduction, 12.10 ‘membership’ business transfers, 21.24–21.25 constitutional issues, 21.22–21.23 generally, 21.19–21.21 ‘trade unions’, 21.18 transfer of undertakings, 21.24–21.25

Trainees unfair dismissal, and, 23.68–23.70 Transfer of undertakings ‘automatic transfer’ principle, 18.30– 18.31 change of contractors, 18.42–18.50 changes in terms and conditions of employment, 18.78–18.93 collective agreements, and generally, 18.51–18.54 introduction, 18.29 constructive dismissal, and, 19.29– 19.34 contracting out, 18.64–18.65 core provision, 18.30–18.33 definitions, 18.33 early case law, 18.38–18.41 ‘economic entity’, 18.55 economic, technical and organisational reasons generally, 18.66–18.74 introduction, 18.30 ‘employee’, 18.33 ‘employer’, 18.33 general, 18.26–18.29 jurisdiction of EAT, 18.35–18.37 legislative framework, 18.26 objection by employee, 18.34 part of business or of group, 18.75– 18.77 Regulations 2003, Appendix H ‘stable economic entity’, 18.44 summary, 18.29 termination before transfer date, 18.60–18.63 trade union membership or activities, and, 21.24–21.25 ‘transfer’, 18.55–18.56 transferor and transferee, 18.57–18.59 undertakings, 18.38–18.41 unfair dismissal claims, and, 23.38– 23.42 Travellers unfair dismissal, and, 12.10

630

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Index alcoholism, 15.25–15.31 civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.04 ill-health, 15.05–15.24 introduction, 15.01–15.03 carelessness, 15.02 civil proceedings involving employer capability, and, 15.20–15.24 generally, 14.02 civil servants, and eligibility to claim, 23.63 generally, 12.12 collective aspects industrial action, 21.71–21.092 Industrial Relations Act 1990, 21.04–21.10 introduction, 21.01–21.03 limitations on managerial prerogative, 21.11–21.092 strikes, 21.71–21.092 trade union membership or activities, 21.13–21.33 unfair selection for redundancy, 21.34–21.70 compensation actual loss, 24.39–24.47 amount, 24.36 approach of the WRC, 24.28–24.29 calculation, 24.34–24.38 conduct of parties prior to dismissal, and, 24.67–24.70 contributory action, and, 24.62– 24.66 deductions from actual loss, 24.48– 24.50 determining factors, 24.34 diminution of rights due to dismissal, 24.56 ex gratia payments, 24.35 exemplary sums, 24.32 ‘financial loss’, 24.32 future loss, 24.51–24.56 generally, 24.30–24.38 introduction, 24.28–24.29 loss of pension rights, 24.57–24.61

U UK law introduction, 1.02–1.03 Unfair dismissal adjournments, 25.47–25.49 adjudication officers, 25.05–25.07 adoption leave, and generally, 14.34 persons covering for person on leave, 23.91–23.98 age, and, 14.03 ante-natal care, and, 14.24 ante-natal classes, and, 14.25 appeals to High Court on point of law arguments not pursued below, 25.36 decision of WRC and Labour Court, 25.37 generally, 25.31–25.34 mixed questions of fact and law, 25.35 application forms, 25.38–25.40 apprentices, 23.71–23.74 armed forces personnel, 23.60–23.62 automatically unfair dismissals adoptive leave, 14.34 age, 14.03 ante-natal care, 14.24 civil or criminal proceedings, 14.02 generally, 12.10–12.14 introduction, 14.01 involvement in civil or criminal proceedings, 14.02 maternity, 14.19–14.50 post-natal care, 14.24 pregnancy, 14.04–14.18 time off for ante-natal care, 14.24 time off for breastfeeding, 14.25 background, 12.01–12.06 bankruptcy, and, 22.44–22.46 basic principles dismissals deemed not unfair, 12.09 dismissals deemed unfair, 12.10– 12.14 introduction, 12.07–12.08 burden of proof, 12.09 capability

631

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Redmond on Dismissal Law Unfair dismissal (contd) loss of rights due to dismissal, 24.56 mitigation duty, 24.72–24.77 non-compliance with procedures, and, 24.71 prospective loss, 24.51–24.56 purpose, 24.33 ‘remuneration’, 24.32 severance payments, 24.35 social welfare benefits, 24.48–24.50 superannuation, 24.57–24.61 tax liability, 24.50 competence generally, 15.32–15.39 introduction, 15.01–15.03 complaint form, 25.38–25.40 conduct absenteeism, 16.74–16.76 acting in competition with employer, 16.87–16.89 alcohol-related conduct, 16.77–16.83 attitude, 16.92–16.93 bad language, 16.54–16.57 bullying, 16.69–16.73 common law, 16.07–16.08 confidential information, 16.90 dishonesty, 16.10–16.42 double-jobbing, 16.84–16.90 drug-related conduct, 16.77–16.83 e-mail abuse, 16.94–16.102 employer’s rules, and, 16.103–16.114 general, 16.01–16.06 grooming, 16.91 harassment, 16.69–16.73 horseplay, 16.58–16.68 Internet abuse, 16.94–16.102 ‘last straw’, 16.09 loyalty and fidelity, 16.84–16.90 personal hygiene, 16.91 physical injury to another person or property, 16.58–16.68 poor attitude, 16.92–16.93 refusal to comply with an order, 16.43–16.53 second jobs, 16.85–16.86 consensual termination, and, 22.30– 22.35

632

constructive dismissal and see Constructive dismissal definition, 19.01–19.03 employment equality, 19.26–19.28 reinstatement, and, 24.19–24.27 tests, 19.04–19.25 transfer of undertakings, 19.29– 19.34 continuity of service First Schedule, 23.29–23.32 hours worked, 23.20–23.28 illegal contracts, 23.43–23.48 length of service, 23.20–23.28 part-time workers, 23.23 re-employment within 26 weeks, 23.37 temporary workers, 23.33–23.36 transferred employees, 23.38–23.42 contract of employment, 12.15 contravention of statute, 15.45–15.48 criminal proceedings involving employer, and, 14.02 death of employee, 22.41 death of employer, 22.41 death of partner, 22.42 decision to dismiss generally, 13.14–13.19 procedural justice, 13.20–13.24 regard to all the circumstances, 13.25–13.27 substantive justice, 13.20–13.24 deemed-unfair dismissals adoptive leave, 14.34 age, 14.03 ante-natal care, 14.24 civil or criminal proceedings, 14.02 generally, 12.10–12.14 introduction, 14.01 involvement in civil or criminal proceedings, 14.02 maternity, 14.19–14.50 post-natal care, 14.24 pregnancy, 14.04–14.18 time off for ante-natal care, 14.24 time off for breastfeeding, 14.25 disciplinary procedures, and appeals, 13.107–13.113

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Index Unfair dismissal (contd) ascertaining facts before taking action, 13.54–13.57 augmenting allegations made during investigation, 13.72 consistency in application, 13.49– 13.50 constructive approach, 13.42–13.47 corrective approach, 13.39–13.41 cross-examination, 13.58–13.66 employees to be treated as individuals, 13.71 employees to know what expected of them, 13.51–13.53 Garda involvement, 13.104 general principles, 13.48–13.72 handwriting experts, 13.102–13.103 identity of decision maker to be clear, 13.105–13.106 impartiality, 13.84 informants, 13.87–13.89 inquiry and investigation, 13.81– 13.106 intra-employee complaints, 13.87– 13.89 introduction, 13.36–13.38 investigation, 13.81–13.106 legal representation, 13.67–13.70 non-union employees, for, 13.114– 13.119 presentation of defence, 13.58–13.66 private investigators, and, 13.90– 13.94 probationary employees, for, 13.120– 13.122 questioning facts, 13.58–13.66 representation, 13.67–13.70 suspension, 13.81–13.83 surveillance and monitoring, 13.96– 13.101 test purchasing, 13.95 warnings, 13.73–13.80 dismissals deemed not to be unfair capability, 15.01–15.31 competence, 15.32–15.39 conduct, 16.01–16.114 contravention of statute, 15.45–15.48

633

generally, 12.09 other substantial reasons, 18.01– 18.93 qualifications, 15.40–15.44 redundancy, 17.01–17.29 dismissals deemed unfair adoptive leave, 14.34 age, 14.03 ante-natal care, 14.24 civil or criminal proceedings, 14.02 generally, 12.10–12.14 introduction, 14.01 involvement in civil or criminal proceedings, 14.02 maternity, 14.19–14.50 post-natal care, 14.24 pregnancy, 14.04–14.18 time off for ante-natal care, 14.24 time off for breastfeeding, 14.25 documentation and information, 25.46 eligibility to claim agency workers, 23.06–23.08 continuity of service, 23.20–23.48 death of employee, 23.05 employee, 23.01–23.08 employer, 23.12–23.19 hours worked, 23.20–23.28 FÁS worker, 23.08 foreign workers, 23.18–23.19 illegal contracts, 23.43–23.48 length of service, 23.20–23.28 office-holders, 23.09–23.11 parties, 23.01–23.19 re-employment within 26 weeks, 23.37 secondment arrangements, 23.15– 23.17 successive fixed-term contracts, 23.33–23.36 transferred employees, 23.38–23.42 employee agency workers, 23.06–23.07 death, 23.05 definition, 23.02 FÁS worker, 23.08 generally, 23.01–23.04 employees’ representatives, and, 12.11

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Redmond on Dismissal Law Unfair dismissal (contd) employer definition, 23.12 foreign workers, 23.18–23.19 generally, 23.12–23.14 secondment arrangements, 23.15– 23.17 enforcement, 25.59–25.62 European Convention on Human Rights Act 2000, and, 13.123–13.130 examinership, and, 22.58 excluded contracts adoption leave cover, 23.91–23.98 fixed-term, 23.75–23.81 foreign workers, 23.99–23.108 health and safety leave, 23.88 maternity leave, 23.82–23.90 natal care absence, 23.89 ordinarily working outside the state, 23.99–23.108 paternity leave, 23.86–23.87 protective leave, 23.82–23.90 section 18 leave, 23.88 specified purpose, 23.75–23.81 excluded employees armed forces personnel, 23.60–23.62 apprentices, 23.71–23.74 civil servants, 23.63 defence forces, 23.60–23.62 generally, 23.49–23.52 HSE chief executive officer, 23.67 local authority managers, 23.64 normal retiring age, 23.53–23.59 probationary employees, 23.68– 23.70 statutory apprentices, 23.71–23.74 trainees, 23.68–23.70 vocational education committee officers, 23.65–23.66 exclusions contracts, 23.75–23.108 employees, 23.49–23.74 jurisdiction, 23.109–23.111 fact of dismissal bankruptcy, 22.44–22.46 consensual termination, 22.30–22.35 death of employee, 22.41

death of employer, 22.41 death of partner, 22.42 ‘dismissal’, 22.02–22.12 doubts as to dismissal, 22.13–22.29 examinership, 22.58 frustration, 22.39–22.40 insolvency, 22.43–22.58 liquidation, 22.47–22.55 receivership, 22.56–22.57 resignation, 22.36–22.38 retirement of partner, 22.42 winding-up, 22.47–22.55 fairness, 12.08 fees, 25.69 fixed-term contracts, 23.75–23.81 force majeure leave, and, 12.10 foreign workers, 23.99–23.108 frustration, and, 22.39–22.40 gross misconduct, 15.02 health and safety at work, and, 12.11 health and safety leave, 23.88 hearings adjournments, 25.47–25.49 in camera, 25.59–25.68 non-attendance, 25.50–25.54 HSE chief executive officer, 23.67 human rights, and, 13.123–13.130 idleness, 15.02 ill-health civil proceedings involving employer, 15.20–15.24 frustration, 15.13–15.19 generally, 15.05–15.12 in camera hearings, 25.59–25.68 industrial action effect on contract of employment, 21.80–21.85 generally, 21.71–21.73 immunity from civil action, 21.04– 21.10 lock-outs, 21.95–21.98 meaning, 21.86–21.87 misconduct, 21.74–21.75 non-selective dismissals, 21.76– 21.78 ‘participating’ in, 21.88–21.94 ‘strike’ action, 21.79

634

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Index Unfair dismissal (contd) unfair selection for redundancy, and, 21.59 insolvency, and bankruptcy, 22.44–22.46 examinership, 22.58 generally, 22.43 liquidation, 22.47–22.55 receivership, 22.56–22.57 recourse to Social Insurance Fund, 24.83–24.84 winding-up, 22.47–22.55 involvement in civil or criminal proceedings, and, 14.02 judicial review, 25.70–25.71 jurisdiction, 23.109–23.111 Labour Court, 25.08–25.11 legislative background, 12.01–12.06 liquidation, and, 22.47–22.55 local authority managers, 23.64 maternity, and ante-natal care, 14.24 ante-natal classes, 14.25 background, 14.04 contractual agreement, 14.35–14.36 eligibility rules, 14.06 generally, 14.19–14.22 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 leave, 14.20 post-natal care, 14.24 proceedings for breach by employer of EU law, 14.23 persons covering for employee, and, 23.82–23.90 right to return to work, 14.26–14.34 time off, 14.24–14.25 minimum wage, and, 12.11 misconduct, and absenteeism, 16.74–16.76 acting in competition with employer, 16.87–16.89 alcohol-related conduct, 16.77–16.83 attitude, 16.92–16.93 bad language, 16.54–16.57 bullying, 16.69–16.73

635

common law, 16.07–16.08 confidential information, 16.90 dishonesty, 16.10–16.42 double-jobbing, 16.84–16.90 drug-related conduct, 16.77–16.83 e-mail abuse, 16.94–16.102 employer’s rules, and, 16.103–16.114 general, 16.01–16.06 grooming, 16.91 harassment, 16.69–16.73 horseplay, 16.58–16.68 Internet abuse, 16.94–16.102 ‘last straw’, 16.09 loyalty and fidelity, 16.84–16.90 personal hygiene, 16.91 physical injury to another person or property, 16.58–16.68 poor attitude, 16.92–16.93 refusal to comply with an order, 16.43–16.53 second jobs, 16.85–16.86 natal care absence, 23.89 negligence, 15.02 non-attendance at hearings, 25.50– 25.54 normal retiring age, 23.53–23.59 notice of appearance, 25.44 ordinarily working outside the state, 23.99–23.108 ‘other substantial grounds’ employer’s interests, 18.03–18.10 introduction, 18.01–18.02 reorganisation, 18.20–18.25 third party pressure, 18.11–18.19 transfer of undertakings, 18.26– 18.93 parental leave, and, 14.34 paternity, and, 14.26–14.34 paternity leave, 23.86–23.87 political opinions, and, 12.10 post-natal care, 14.24 pregnancy, and background, 14.04 eligibility rules, 14.06 generally, 14.13–14.18 impact of national and European law, 14.07–14.12

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Redmond on Dismissal Law Unfair dismissal (contd) introduction, 14.05–14.06 persons covering for employee, and, 23.82–23.90 probationary employees, 23.68–23.70 procedure adjournments, 25.47–25.49 adjudication officers, 25.05–25.07 alternative remedies, 25.12–25.19 appeals to High Court on point of law, 25.31–25.37 application forms, 25.38–25.40 complaint form, 25.38–25.40 documentation and information, 25.46 enforcement, 25.59–25.62 fees, 25.69 general, 25.01–25.04 in camera hearings, 25.59–25.68 judicial review, 25.70–25.71 Labour Court, 25.08–25.11 non-attendance at hearings, 25.50– 25.54 notice of appearance, 25.44 rights commissioners, 25.05 settlements, 25.55–25.58 state immunity, 25.59–25.68 submissions, 25.41–25.45 time limits, 25.20–25.37 written submissions, 25.41–25.45 protective leave ante-natal care, 14.24 ante-natal classes, 14.25 background, 14.04 contractual agreement, 14.35–14.36 eligibility rules, 14.06 impact of national and European law, 14.07–14.12 introduction, 14.05–14.06 leave, 14.20 maternity, 14.19–14.22 persons covering for employee, and, 23.82–23.90 post-natal care, 14.24 pregnancy, 14.13–14.18 proceedings for breach by employer of EU law, 14.23

right to return to work, 14.26–14.34 time off, 14.24–14.25 qualifications, 15.40–15.44 race, and, 12.10 reason for dismissal evidence, 13.07–13.13 grounds discovered subsequent to dismissal, 13.09–13.10 identification, 13.03–13.06 introduction, 13.01–13.02 previous incidents, 13.11 subjective opinions, 13.11 reasonableness decision to dismiss, 13.14–13.27 disciplinary procedures, 13.36– 13.122 European Convention on Human Rights Act 2000, and, 13.123– 13.130 function of WRC, 13.28–13.35 introduction, 12.07 reason for dismissal, 13.01–13.13 reasons justifying dismissal capability, 15.01–15.31 competence, 15.32–15.39 conduct, 16.01–16.114 contravention of statute, 15.45–15.48 generally, 12.09 other substantial reasons, 18.01– 18.93 qualifications, 15.40–15.44 redundancy, 17.01–17.29 receivership, and, 22.56–22.57 recourse to Social Insurance Fund, 24.83–24.84 redundancy change of employment status, 17.22– 17.23 fairness, 17.24–17.29 industrial action, 17.14–17.16 introduction, 12.10 meaning, 17.01–17.04 proof, 17.05–17.08 redeployment, 17.21 reorganisation, 17.17–17.20 strikes, 17.14–17.16 ‘wholly or mainly’, 17.09–17.13

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Index Unfair dismissal (contd) re-engagement contributory conduct, 24.23 definition, 24.12–24.17 introduction, 24.01–24.02 limitations, 24.18–24.27 reinstatement constructive dismissal, and, 24.19– 24.27 contributory conduct, 24.23 definition, 24.05–24.11 introduction, 24.01–24.02 limitations, 24.18–24.27 religious opinions, and, 12.10 remedies compensation, 24.28–24.77 constitution, under, 24.03–24.04 generally, 12.13 insolvency of employer, and, 24.83– 24.84 introduction, 24.01–24.02 natural justice, 24.78–24.82 recourse to Social Insurance Fund, 24.83–24.84 re-engagement, 24.05–24.18 reinstatement, 24.05–24.27 right to employment, 24.01–24.02 resignation, and, 22.36–22.38 retirement of partner, and, 22.42 rights commissioners, 25.05 safety, health and welfare at work, and, 12.11 section 18 leave, 23.88 settlements, 25.55–25.58 sexual orientation, and, 12.10 Social Insurance Fund, and, 24.83– 24.84 state immunity, 25.59–25.68 statement of particulars of grounds for dismissal, 13.06 statutory apprentices, 23.71–23.74 submissions, 25.41–25.45 time limits appeals from WRC, 25.25–25.30 appeals to High Court on point of law, 25.31–25.37

enforcement of decisions of WRC, 25.25–25.30 generally, 25.20–25.24 time off for ante-natal care, 14.24 time off for breastfeeding, 14.25 trade union membership or activities ‘activities’, 21.26–21.33 constitutional issues, 21.22–21.23 eligibility to claim, 21.14–21.17 generally, 21.13 introduction, 12.10 ‘membership’, 21.19–21.25 ‘trade unions’, 21.18 transfer of undertakings, 21.24– 21.25 trainees, 23.68–23.70 travellers, and, 12.10 unfair selection for redundancy analysis of selection 21.47–21.61 collective redundancies, and, 21.63– 21.70 comparators, 21.39 discriminatory criteria, 21.58–21.58 eligibility to claim, 21.36 inadmissible grounds, 21.37–21.38 industrial action, and, 21.59 introduction, 21.34–21.35 ‘last in first out’, 21.56–21.57 procedures, 21.40–21.44 reasonableness, 21.45–21.46 special reasons for departing from procedure, 21.43–21.44 summary, 21.62 vocational education committee officers, 23.65–23.66 winding-up, and, 22.47–22.55 written statement of particulars of grounds for dismissal, 13.06 written submissions, 25.41–25.45 Unfair Dismissals Act 1977 amendments, Appendix B text, Appendix A Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 text, Appendix E

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Redmond on Dismissal Law Unfair Dismissals (Claims and Appeals) Regulations 1977 text, Appendix D Unfair selection for redundancy analysis of selection 21.47–21.61 collective redundancies, and, 21.63– 21.70 comparators, 21.39 discriminatory criteria, 21.58–21.58 eligibility to claim, 21.36 generally, 17.01 inadmissible grounds, 21.37–21.38 industrial action, and, 21.59 injunctions, 10.27 introduction, 21.34–21.35 ‘last in first out’, 21.56–21.57 procedures generally, 21.40–21.42 special reasons for departure, 21.43– 21.44 reasonableness, 21.45–21.46 summary, 21.62 Union membership agreements infringement of constitutional provisions, and, 8.12 Unreasonable length of suspension infringement of constitutional provisions, and, 8.21–8.32

V Vocational education committee officers unfair dismissal, and, 23.65–23.66

W Waiver due notice, and, 4.25–4.26 Warnings disciplinary procedures, and, 13.73– 13.80 Whistleblowing background, 20.01 basis of protection, 20.03–20.05 case law, 20.18

compensation, 20.10 continuous service, and, 20.11 detriment caused to another person, 20.07 dismissal of worker, and case law, 20.18 generally, 20.09–20.17 ‘employees’, 20.06 false reporting, 20.08 identity protection, 20.17 interaction with Unfair Dismissal Acts, 20.09–20.17 internal procedure, 20.14 lawyers, to, 20.14 legal basis, 20.03–20.05 ministers of state, to, 20.14 motivation of disclosure, 20.11–20.12 non-employees, 20.06–20.07 penalisation of worker, and, 20.19– 20.24 prescribed person, to, 20.14 protected persons, 20.06–20.07 qualifying service, and, 20.11 ‘reasonable belief’ test generally, 20.15–20.16 introduction, 20.08 relevance in Irish law, 20.02 ‘relevant information’, 20.08 ‘relevant wrongdoings’ generally, 20.13 introduction, 20.08 remedies continuation of earnings, 20.29– 20.30 interim relief, 20.26–20.28 introduction, 20.25 restraint of dismissal, 20.26–20.28 scope of protection, 20.06–20.07 statutory provisions, 20.08 trade union officials, to, 20.14 unfair dismissal of worker, and case law, 20.18 generally, 20.09–20.17 ‘workers’, 20.06 ‘Wholly or mainly’ redundancy, and, 17.09–17.13

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Index Constitution of Ireland, and, 2.05 constitutional actions European Convention on Human Rights, 8.48–8.54 infringement of provisions, 8.04– 8.32 introduction, 8.01–8.03 remedies, 8.33–8.47 constitutional justice audi alteram partem, 7.09–7.59 generally, 7.02–7.08 introduction 7.01 natural justice, and, 7.02–7.08 nemo judex in causa sua, 7.60–7.76 contracts of employment, and, 2.01– 2.04 contractual limitations breach of implied term of fairness, 5.07–5.15 breach of implied terms, 5.17–5.71 breach of procedural limitations, 5.04–5.06 breach of substantive limitations, 5.16 generally, 5.01–5.03 co-operation, and, 5.19 damages breach of procedural limitations, 11.30–11.36 breach of substantive limitations, 11.27–11.29 distress, 11.44–11.58 elective theory, and, 11.37–11.43 general principles, 11.01–11.26 income continuance, 11.70–11.78 income tax liability, 11.66–11.68 infringement of constitutional provisions, for, 8.33–8.42 injury to reputation, 11.44–11.58 judicial review, and, 9.33–9.40 liability to income tax, 11.66–11.68 mitigation of loss, 11.79–11.83 pensions and benefits, 11.59–11.65 social welfare benefits, 11.69 tax liability, 11.66–11.68 termination of secondment agreement, 11.84–11.87

‘Wild cat action’ see also Industrial action immunity from civil action, and, 21.08 Winding-up fact of dismissal, and, 22.47–22.55 ‘Work of a particular kind’ redundancy, and, 17.19 Worker collective dismissals immunity from civil action, 21.06 employment status, and, 3.01 Workplace Rights Commission (WRC) appeals to High Court on point of law, and, 25.37 business transfers, and, 18.35–18.37 enforcement of decisions, and, 25.25– 25.30 reasonableness, and, 13.28–13.35 unfair dismissal proceedings, and appeals to High Court on point of law, 25.37 compensation, 24.28–24.29 jurisdiction, 23.109–23.111 time limits, 25.25–25.30 Written statement of particulars of grounds unfair dismissal, and, 13.06 Written submissions unfair dismissal proceedings, and, 25.41–25.45 Wrongful dismissal army officers, and, 3.45 background, 1.37–1.38 breach of contract, and effect, 6.01–6.27 elective theory 6.28–6.33 generally, 5.01–5.03 implied term of fairness, 5.07–5.15 implied terms, 5.17–5.71 procedural limitations, 5.04–5.06 substantive limitations, 5.16 categorisation of employees, and, 2.10 certiorari, 9.41–9.45 civil servants, and, 3.42–3.50 confidential information, and, 5.19

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Redmond on Dismissal Law Wrongful dismissal (contd) declaratory relief judicial review, and, 9.31–9.32 wrongful dismissal, for, 10.96–10.99 due notice anti-avoidance cases, 4.13–4.18 common law, at, 4.03–4.09 contracts apparently incapable of termination, 4.10–4.19 mutual consent, 4.20 no right to work during notice, 4.19 pay in lieu of notice, 4.25–4.27 resignation, 4.22–4.24 statutory notice, 4.21 waiver, 4.25–4.26 employees generally, 3.06–3.27 position regulated by statute, 3.42– 3.50 employment status control test, 3.06–3.09 employees, 3.06–3.27 integration test, 3.06 introduction, 3.01–3.05 ‘mixed’ test, 3.06–3.07 mutuality of obligation, 3.14–3.27 office-holders, 3.28–3.41 position regulated by statute, 3.42– 3.50 self-employed persons, 3.11–3.13 status test, 3.07 equitable remedies, 10.01–10.06 express terms, and generally, 5.01–5.03 procedural limitations, 5.04–5.06 substantive limitations, 5.16 fairness, 5.07–5.15 faithful service, and, 5.19 Garda, and, 3.45 good faith, and, 2.07 historical background, 1.37–1.38 implied terms, and fairness, 5.07–5.15 generally, 5.17–5.20 introduction, 2.08 injunctions balance of convenience, 10.19

closed shop agreements, and, 10.20 common characteristics, 10.29 conduct of parties, 10.17 damages, and, 10.16–10.17 developing jurisprudence, 10.30– 10.95 disciplinary procedures, and, 10.21 discretion, 10.08 dispute procedures, and, 10.22 exceptions to general rule, 10.20– 10.29 generally, 10.07–10.09 mutual trust and confidence, and, 10.22–10.26 obligations imposed, 10.09 principles, 10.10–10.19 redundancy selection, and, 10.27 judicial review double jeopardy, 9.66–9.80 employment decisions, of, 9.09–9.29 introduction 9.01–9.08 legitimate expectation, 9.47–9.65 remedies, 9.30–9.46 minimum notice, 5.06 misconduct, and, 5.16 mutual trust and confidence, and characteristics, 5.22–5.26 Commonwealth Bank of Australia v Barker decision, 5.65–5.67 conclusions, 5.68–5.71 Eastwood decision, 5.44–5.55 Edwards v Chesterfield decision, 5.56–5.64 generally, 5.21 interaction between common law and statute, 5.27 introduction, 2.06 Johnson decision, 5.32–5.37 McGrath v Trintech decision, 5.38– 5.43 Malik and Mahmood decision, 5.28– 5.31 overarching term, and, 5.68–5.71 Western Excavating decision, 5.27 obedience to lawful instructions, and, 5.19 office-holders

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Index Wrongful dismissal (contd) consequential powers, 3.34–3.41 co-operation in exercise of office, 3.33 generally, 3.28–3.32 incidental powers, 3.34–3.41 ‘office’, 3.29 pleasure of the government, at, 3.32 respect in exercise of office, 3.33 special status, 3.41 overarching principle, 2.06–2.14 police, and, 3.45 procedural fairness, 5.07–5.15 procedural safeguards, 5.04–5.06 provision of work, and, 5.19 rationale, 2.04 reasonable care, and, 5.19 reinstatement infringement of constitutional provisions, for, 8.43–8.47 specific performance, and, 10.05 remedies Constitution, under, 8.33–8.47 damages, 11.01–11.87 declaratory relief, 10.96–10.99 equitable, 10.01–10.06 injunctions, 10.07–10.95 judicial review, 9.01–9.80

reinstatement, 10.05 specific performance, 10.03–10.06 self-employed persons, 3.11–3.13 serious misconduct, and, 5.16 services personnel, 3.45 specific performance, 10.03–10.06 substantive limitations, 5.16 summary, 2.01 summary dismissal grounds discovered subsequent to dismissal, 4.35–4.38 grounds existing at time of dismissal, 4.28–4.34 termination due notice, 4.03–4.27 introduction, 4.01–4.02 summary dismissal, 4.28–4.38 terms and conditions of employment, and breach of implied term of fairness, 5.07–5.15 breach of implied terms, 5.17–5.71 breach of procedural limitations, 5.04–5.06 breach of substantive limitations, 5.16 generally, 5.01–5.03 trade secrets, and, 5.19

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