A review of case law in 2016

Following the introduction of the Workplace Relations Act 2015 the Tribunal system was reformed. Since the reform the waiting time for complaints being heard in Tribunal has significantly reduced. The below is a summary of some of the most topical cases of 2016 to date:

1. Collective Bargaining - Freshway Foods Company -and- SIPTU (LCR21242)

 The first binding Labour Court decision under the new collective bargaining legislation. The WRC imposed pay rises for 63 SIPTU members, effectively boosting their pay up to the ‘Living Wage’ of €11.50 in a series of staggered pay rises. The employer employs 250 workers, 170 of whom are general operatives. The group of workers who are party to the dispute under investigation are in that latter category. In order to hear the dispute it must concern a significant number of employees. The Court were satisfied that the number of workers who were party to the dispute is not insignificant relative to the total number of general operatives employed by the employer. Under the legislation the Labour Court will only consider the dispute where it is not the practice of the employer to engage in collective bargaining. In this case the Labour Court stated “one-off orad hococcurrence of collective bargaining could not amount to ‘‘practice’ and would be insufficient to oust the Court’s jurisdiction.” Lastly, the Labour Court looked to see if an “excepted body” was in place. The court determined that this had not been satisfied as the SRG was a general negotiation body which negotiated on behalf of all employees and not just general operatives. This is an interesting conclusion as it suggests that a single negotiation body in a company may not be sufficient to meet the definition of an ‘excepted body’.

2. Discretionary bonuses - in Cleary -v- B & Q Ireland Limited [2016] IEHC 119

The bonus was deemed “discretionary” and capable of withdrawal at any time. The High Court ruled that this did not give the employer a unilateral right to withdraw the bonus scheme whenever they wanted and that such discretion needs to be exercised reasonably. They specifically drew a distinction between withdrawing a prospective bonus as compared to withdrawing a bonus in respect of a retrospective period where the terms of the scheme have already been satisfied by the employees. Based on the above when stopping payment for discretionary bonus it should only be done for prospective bonuses.

3. Retirement – Nevins –v-Portroe Stebedores Ltd

The question as to whether or not it is discriminatory to enforce retirement has come up regularly since the amendment to the Employment Equality Act 2015. The below cases reinforce the importance of having an objective justification in place. In the above case it was held that a retirement age of 65 was justified for the physically demanding role of a “docker” at Dublin Port. In the case of Saunders -v- CHC Ireland Limited (DEC-E2011-142) it was held that a retirement age of 55 was justified for the physically demanding role of a “helicopter winch man”. Clearly this justification will not apply to roles that are not physically demanding. Equally this principle might apply to scenarios where a role requires a lot of visual acuity or manual dexterity. If employers can show the retirement policy has a legitimate objective, the means used to achieve the objective are appropriate, necessary and proportionate it will help mitigate against an equality claim on the grounds of age.

4. Reasonable accommodation – Tom Moloney Limited trading as Squire Maguires v Mr Thomas Keogh [2016]

We have seen an increase of the number of complainants winning claims due to the respondents’ failure to provide reasonable accommodation. In the above the complainant was employed as a bar man and went on sick leave to undergo treatment for psychological issues. On return the respondent requested him to provide a certificate to confirm he was “100% sane”. His medical advisor agreed to provide a certificate confirming he was “fit for work”. The respondent refused to allow the employee to return on that basis, the complainant took this as his dismissal. The Labour Court stated that the employer “took no steps to have him return to work after he was certified fit to do so. Instead he prevaricated and delayed and sought to put him off doing so. He placed obstacles in his way and frustrated him in his efforts to resume normal work. He suggests that he was seeking to accommodate the disability but he appeared to be simply putting off the Complainant’s return date and seeking to frustrate him in that regard.” Court awarded the employee €16,000 in compensation. The above case sets out the importance of ensuring we make reasonable accommodations for employees on sick leave. Tribunals have been critical of employers who will not allow employees return until they are 100% fit. In cases where an employee is fit for light duties we need to ensure we give due consideration to reasonable accommodations. If you have any questions regarding any of the above please do not hesitate to contact the advice line on 01-8555050