I think employment law in general is so fluid and there are so many changes happening literally as we speak, so every edition is kind of a work in progress. It’s always difficult to tie down an area as complex as this, and indeed over the last 16 years since the first edition we’ve had various changes to employment equality legislation: we've had the Workplace Relations Act, we've had the Protected Disclosures Act, and in addition to that we've got a whole lot of case law.
This edition builds on things that have happened over the last number of years. Since the last edition there have been significant changes in employment law, particularly to the Employment Equality Act, Protected Disclosures Act, the Workplace Relations Act, and changes to collective redundancies. There has also been a lot of case law over that time, particularly around the issue of fair procedures, natural justice representation, legal representation and no fault nomination. So hopefully all those items are dealt with in the book.
Well, the book is very much aimed at practitioners. Its whole purpose from the very start was for practitioners to be able to pick up the book and say ‘I have a problem, where do I get an answer to that’ so from a practitioner's perspective I would recommend it. Certainly, if you have an issue around the transfer of undertakings, an issue about fair procedures, natural justice, collective redundancies etc. There are practical guides in the book which guide you through the various dilemmas that HR practitioners and solicitors encounter on a daily basis.
That is the question, ‘if due process was followed’. If you look at the number of cases coming through, particularly in termination of employment cases, mostly those cases are lost by employers for breaches of fair procedures: so they didn't do their investigation correctly; or there was a conflation between the investigation and disciplinary procedure; there was no right of appeal; or there were issues around representation and so forth, so employers very rarely win cases for the reason for dismissal.
It's generally around how they actually affected the dismissal, and in particular that is dealt with, I think extensively, in the book. It's a very complex area, particularly for small employers who don't have the resources around HR and so forth. That, to my mind, is the area where most people fall into difficulty; it's not around the egregious manner in which they behaved in the workplace or something like that, it’s to do with the procedure and the process around affecting the termination.
Well, I guess it's an unusual case in so far as how it was processed, but ultimately it dealt with two significant issues. Prior to Zalewski most cases were heard in private but the Zalewski decision did two things.
First of all, it said that because the WRC are involved in administration of justice, all cases bar those under s 13 of the Industrial Relations Act must be heard in public. Secondly, because again, there's an administration of justice issue, there must be sworn testimony. So to the public hearings is a significant issue.
It's very hard to see the data on this, but my own sense of the issue of public hearings is that it has had a significant effect on the amount of cases that are probably going to WRC in terms of termination cases, particularly for senior executives, because if you're dismissed as a senior executive, you're not that inclined to make it public. It will be interesting to see just how that plays out. I don't think there's any detriment in terms of taking evidence under oath, and that's probably a good thing. Of course, in special circumstances, it can be heard in private, but they're generally to do with medical issues.
Another interesting case, to do with three gardaí who applied for An Garda Síochána and weren't successful on the grounds of age. They challenged that and it went to the High Court where it was then referred to Europe and effectively what it said was, and it's kind of similar to the Zalewski decision, but ultimately it was determined that the WRC could overturn elements of national law where it conflicted with EU law. If you think about the logic in the Zalewski decision where the WRC is involved in administration of justice; that is a similar decision in so far as the Minister for Justice, Equality and Law Reform is now saying that the WRC can overturn national law where it conflicts with European law and I suppose it gives additional powers to the WRC.
Yeah, this is also an interesting case. Mr Grenet had a very short service with Electronic Arts Ireland. When he was on a call with a US colleague and made an inappropriate comment which he himself described as rather inelegant, he was suspended and then brought to a meeting where he was dismissed. Mr Grenet sought to injunct that process, was successful in doing so, and the company then decided, well, what do we do?
Given that he was sort of reinstated into his job by virtue of the injunction, they decided to dismiss him on a no-fault termination basis. This decision is ultimately why the company failed - there was also an issue as to who actually terminated him because he was terminated by somebody who wasn't part of the Irish entity. The case is a lesson for employers in the sense that you can dismiss somebody on a no-fault basis (in other words, simply terminating you on notice) however, if you have already raised performance issues as they had in this Grenet case then it's very difficult to resile from that and simply terminate on a no-fault basis.
So you either choose to go down a no-fault route, or you choose to go down a performance route. You can't really conflate both of those, so again, this case is interesting because it shows the level of detail that the whole issue of fair procedure and natural justice has been looked at in courts over the last number of years. It's a sort of a salutary lesson to employers.
This was another case where I acted for the company. This case is interesting insofar as Mr Baranya, a butcher in Rosderra, claimed that he had been dismissed for making protected disclosures related to health and safety in the workplace. Ultimately, the WRC, the Labour Court and the High Court determined that he hadn't made a protected disclosure.
The Supreme Court looked at the long version of the Protected Disclosures Act, which speaks to the public interest, and concluded that if you look at the Act, particularly the code of practice, a personal grievance could constitute a protected disclosure. That has led to the Act being amended slightly in 2022 (it was due to be amended in any event prior to that) and the whole issue of what constitutes a grievance versus what constitutes a protected disclosure has now been somewhat tidied up in the Act, although it remains to be seen by how much.
This case shows the difficulty around the whole issue with what constitutes a grievance and what constitutes protected disclosure. To be quite honest with you, even with the amendment, I don't think it's still that clear.
I always enjoy research and looking at cases and so forth. The writing is difficult because you know you're spending every night and all of your weekends updating the text, and I personally find it quite stressful because you never know when to stop! It's very difficult to say, ‘Yeah, I'm happy with that’.
You never actually will be satisfied with anything really, because there is always more to do and to say. It's a sort of nerve wracking affair really, to be honest with you. There's an element of stress that you bring upon yourself in terms of getting it finished and then when it's published there's a bit of trepidation as to how it'll be received. I suppose the answer to the question is that I didn't enjoy it any more or less than the last time!
The Protected Disclosures Act 2014 as amended in 2022 is a very significant piece of new legislation. Firstly, what constitutes a protected disclosure and how you're penalised is now very, very broad and certainly through my own practice we're seeing a lot of people claiming to have made protected disclosures. I think it's going be one of those areas that's going to be growing significantly and it's going to see a lot of claims over the next number of years. There's also many prescriptive things you must do under the Act if you're a company in terms of policies and processes and procedures and so forth, so it's important for all practitioners to really get a grip on that. I think it merits its own chapter because of the complexity and the seriousness of it.
Secondly, the penalty of five years pay is three years greater than the Unfair Dismissals Act, which is limited to two years. It's something that you don't want to get wrong as a practitioner and it's something we're seeing a lot of claims coming through for.
