Discrimination
In a highly publicised decision of the Equality Tribunal in March 2012, O’Callaghan Hotels was ordered to pay €315,000 to a former employee after the Tribunal ruled she had been harassed, victimised and discriminatorily dismissed during her pregnancy. While pregnant with her third child, the employee claimed she was informed it would be better for her to take redundancy rather than go on maternity leave again. She was advised by letter that her P45 would issue the day her maternity leave commenced. Read our previous article on this case here.
Agency Workers
As previously reported (view here), 2012 brought about considerable change to the law on agency workers. New legislation was enacted in May, granting agency workers equal treatment, from day one of their assignment, to employees directly employed by the business to which they are assigned. Pay-related provisions were given retrospective effect from 5 December 2011, meaning any agency worker who has not received equal pay must be reimbursed the difference from that date.
Fitness & Probity
As we brought to your attention in June (click here), the Central Bank of Ireland’s ‘Fitness and Probity’ regime, which applies to financially regulated undertakings, came into effect on 1 December 2011. The regime was to be fully implemented by 1 December 2012. Where applicable, employers are required to ensure that employees performing certain “controlled functions” meet prescribed fitness and probity standards, including in relation to competence, capability, honesty and financial soundness.
The High Court considered these standards in May 2012 when granting an Ulster Bank employee a temporary injunction restraining the Bank from taking any steps to dismiss him on grounds of his alleged poor finances. The case highlights the obligation on financially regulated employers to follow fair procedures and established employment law principles when implementing the new regime.
Injunctions
2012 saw a number of High Court injunction applications in employment related cases. In Wallace v Irish Aviation Authority an employee sought an injunction preventing her employer putting her on administrative leave with full pay pending the outcome of an appeal against the decision to dismiss her. The High Court granted the injunction on the basis that the particular wording of the employment contract gave the employee a contractual entitlement to remain in her position pending the outcome of the appeal. This serves as a warning to employers to adhere to contractual disciplinary procedures to avoid having expensive court actions on their hands.
Re-Instatement
It is worth remembering that under the Unfair Dismissals Acts a dismissed employee may, as an alternative to an award of compensation, be re-instated to his or her former position. There were a number of cases in 2012 where re-instatement was the remedy awarded by the Employment Appeals Tribunal. One such case was Bourke v South Tipperary VEC, where an employee who was made redundant on her return from sick leave was re-instated to her position when the Tribunal found that her role still existed.
Employment Regulation Orders & Registered Employment Agreements
As reported in September (click here), changes were made to the system of making Employment Regulation Orders (EROs) and Registered Employment Agreements (REAs). The changes followed a High Court ruling in July 2011 which held that Joint Labour Committee (JLC) wage-setting mechanisms were unconstitutional. The Industrial Relations (Amendment) Act 2012 requires the Labour Court to review the scope of each JLC every five years to ensure its operation continues to be appropriate. New provisions include the possibility of an exemption for employers, for a maximum of 24 months, from paying the ERO or REA rate of pay where it can show its business is “experiencing severe economic difficulties”.
Social Media
An incident in November 2012 involving the Twitter account of a café in Dublin is illustrative of the importance of clear and robust policies governing the use of social media accounts in the workplace. A customer of Cinnamon Café in Ranelagh posted a complaint on Twitter about the café’s standard of service. An employee responded using the café’s official Twitter account, calling the customer an “a**h*le”. The tweet went viral and became the subject of much debate in the national press and on social media sites. Management issued an apology, stating that the person responsible had been dealt with and that disciplinary action had been taken.
Articles contributed by Catherine O’Flynn and Maryrose Dillon
Click here to see what’s on the horizon for 2013
