Recent Developments in
Employment Law
Desmond Ryan B.L.
CPD Briefing to Limerick Solicitors’ Bar Association
Thursday 10 November 2011
Overview
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The Employment Injunction: Where are we Now?
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Fixed-Term and Part-Time Employees: Emerging Principles from Litigation
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Injunctive Relief sought in Fixed-Term Work Act context: judgments of the High Court (Hogan J) in July 2011 in McGrath and
Holland
The High Court decision in HSE v Umar (April 2011)
Part-Time Workers and the European Dimension to Catholic University School v Dooley (July 2010 and May 2011)
Key recent case law concerning bullying, harassment and stress at work
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Rules of the Superior Courts (Costs) 2008 (S.I. No. 12 2008)
Fall-out from Emo Oil and Burke: what are the new tests?
Recent Article by Charleton J on injunctions and ‘over-loose discretion’: an important insight into High Court judicial thinking in
this area
Restrictive Covenants and Injunctive Relief: this year’s High Court judgment (Dunne J) in Net Affinity (March 2011)
The ‘Springboard’ Injunction: AIB v Diamond (High Court, Clarke J, October 2011)
Recent examples of injunction proceedings
The High Court Judgments in Sweeney (March 2011) and Delaney (April 2011)
The relevance of penalisation claims under s.27 of the Safety, Health and Welfare at Work Act 2005
Developments concerning Dismissal and Redundancy
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Relevance of Croke Park Deal in attempts to injunct termination in public sector
The High Court judgment in Panisi (July 2011)
Large Awards in EAT as claimants’ losses mount
S.I. No. 12 of 2008 and Costs
Implications
• Rules of the Superior Courts (Costs) 2008 (S.I. No. 12
2008)
• Rule 1 inserts an amendment to Order 99 (4A) RSC which
now includes the following provision:
– “The High Court or the Supreme Court, upon
determining any interlocutory application, shall make
an award of costs save where it is not possible justly
to adjudicate upon liability for costs on the basis of
the interlocutory application.”
• Implications – chilling effect on injunction applications?
Impact of Emo Oil and Burke
• In Nolan v Emo Oil [2009] 20 ELR 122 the employee claimed that he had
been unfairly selected for redundancy and he sought interlocutory relief
restraining the implementation by the employer of this decision. Laffoy J,
emphasising that the question of whether a redundancy was valid was one
that was to be determined by the specialist statutory jurisdiction of the
Employment Appeals Tribunal, concluded that, on that basis, the High
Court had no jurisdiction to consider any aspects of that issue.
• Following on from Emo Oil came Burke v Independent Colleges Ltd (t/a
Independent Colleges) [2010] IEHC 412 (High Court, 5 November 2010) –
this is amongst the most significant employment injunction cases in the
past year.
• Burke , by contrast to Emo Oil, involved a situation where an employee
sought injunctive relief in the context not of the fact of redundancy itself,
but of the procedures involved in that decision-making process.
(…./)
The Burke Judgment
• The key passage of the judgment of Laffoy J in Burke is that in which
Emo Oil is distinguished:
– “If the plaintiff was constrained to argue that there was no basis, or
that he was improperly selected, for redundancy, for the reasons set
out in the Nolan case, I consider that the argument would not form
the basis of a remedy at common law or in equity and that he would
be constrained to pursue a remedy in accordance with the statutory
code. However, given that he can rely on the argument that [the
putative termination letter] was not effective to terminate his
employment either on a contractual basis or on the basis of statutory
redundancy, he is not so constrained as regards pursuing relief outside
the statutory redundancy code.”
• Comments and discussion
Article on Injunctions by Mr. Justice
Charleton
• This article is available at www.jsijournal.ie
• Citation: Mr. Justice Peter Charleton, “Employment Injunctions: An OverLoose Discretion” [2009] 2 JSIJ 1
• Key passages in analysis of Charleton J (pp. 24-25):
– “My conclusion, therefore, is that those who choose the wrongful dismissal
option, part of and preliminary to an application for an interlocutory
injunction in the High Court, are possibly not choosing the best remedy. …The
remedies under the Unfair Dismissals Acts, 1977 to 2007 are much more
satisfactory.”
– “In granting injunctions in respect of a breach of fair procedures, the High
Court should take a real view as to what procedures are available to personnel
managers: to continue the move towards the direction of a plenary hearing as
a means of resolving internal employment issues is perhaps to do a disservice
to the proper administration of business. Those who have suffered such
unfairness have a clear statutory remedy.”
– Comment and analysis
Injunctions and Restrictive Covenants
• Net Affinity Ltd v Conaghan and Revmac Limited t/a Avvio
[2011] IEHC 160 (High Court, Dunne J, 22 March 2011)
– Non-compete clause considered in light of principles articulated
in Murgitroyd v Purdy [2005] 3 IR 12
– Reference also made to TFS Derivatives Ltd. v Morgan [2004]
EWHC 3181 (QB) (15 November 2004)
– Clause impugned on basis of no geographical limitation
– Injunctive relief granted preventing the former employee from
breaching her duty of confidentiality to the employer as set out
in express terms in her contract of employment, and preventing
both defendants from approaching, soliciting or dealing with
any existing customers of the plaintiff employer.
– Comments and analysis
‘Springboard’ Injunctions
• The approach of the High Court (Clarke J) last
month in AIB v Diamond (14 October 2011,
Record No. 2011 No. 8022 P)
• Nature of ‘springboard’ injunctions
• Fiduciary elements of employment
relationship
• Application of Net Affinity v Conaghan
• Comments and Analysis
Other Recent Examples of Injunction
Proceedings
– Other Recent injunction proceedings before the High
Court have included:
• Mullin v Brown Thomas (See The Irish Times, 25 August
2011)
• McSorley v Kilkenny City Vocational School (See The Irish
Times, 25 August 2011)
• O’Domhnaill v HSE (See The Irish Times, 10 June 2011)
• Scanlon v Irish Canoe Union Ltd (See The Irish Times, 14 May
2011)
• Long v Harvey Norman Ltd. (See The Irish Times, 2 April
2011)
• Craig v FÁS (See The Irish Times, 12 October 2011)
Injunctions and the Fixed-Term Work
Act
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McGrath v Athlone Institute of Technology [2011] IEHC 254 (High Court, Hogan J,
14 June 2011): Plaintiff sought interlocutory injunction to restrain termination in
circumstances where he had Labour Court proceedings in being to determine
whether he should be awarded a CID.
Key passage in Hogan J’s judgment entitled “The Appropriate Test for an
Interlocutory Judgment in Employment Matters”:
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– “[L]et us assume that the Labour Court were ultimately to find for the plaintiff and that the
practical effect of such a ruling was that his employment could not be terminated at will. If
that were indeed the situation, then it would follow that as the Labour Court has no
jurisdiction to grant him interim relief, there might be a risk that a favourable decision with
the consequence of precluding termination in the manner presently proposed would come
too late to be of any practical benefit to the plaintiff, given that the termination is imminent.
The real question is whether this Court would enjoy a jurisdiction to grant an injunction in aid
of the Labour Court in circumstances where the plaintiff’s right to secure the benefit of that
decision would otherwise have been wholly undermined.
– In my judgment, in that situation this Court would enjoy such a jurisdiction, not least by
reason of the inherent full original jurisdiction which this Court enjoys to determine all
questions of law and fact by virtue of Article 34.3.1 of the Constitution.”
– Potential of the above passage for future cases?
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(…./)
Injunctions and the Fixed-Term Work
Act
• Hogan J then turned to consider whether this was an appropriate case in
which to grant injunctive relief. Referring to both Maha Lingham v HSE
[2006] ELR 137 and Sheehy v Ryan [2008] 4 IR 258. Hogan J concluded that
even if the Labour Court were to deem the plaintiff to have attained a CID,
this would place him in the same situation as if he were a permanent
employee whose “contract can be terminated at will….If the fairness of
that dismissal is to be adjudicated, this can only be done through the
mechanism of the Unfair Dismissals Acts” (per Hogan J, at [24]).
• Three days later, the Labour Court granted a CID in this and three other
lecturers’ cases in…
• Athlone Institute of Technology v Hogan FTC/10/38 (Labour Court, 17 June
2011)
• A second judgment of Hogan J then followed in:
• Holland v Athlone Institute of Technology [2011] IEHC 254 (High Court,
Hogan J, 27 July 2011): Hogan J ruled that the Croke Park Deal does not
create enforceable legal rights for an individual public sector employee.
Conclusions on Injunctions
• Mounting judicial caution expressed towards
injunctive relief being granted in employment
cases – evident both in judgments and extrajudicial writing
• Costs implications have intensified
• Case law demonstrates high threshold to be met
• And yet….
– “As Gene Wilder in Mel Brooks’ Young Frankenstein
says when he sees the monster stirring on his lab
table: “It’s alive”” (Oisin Quinn S.C., paper delivered to
Employment Bar Association, 5 May 2011).
Managing Fixed-Term Contracts
• The approach of the High Court in HSE v Umar [2011] IEHC 146 (07 April
2011)
• Defence of objective justification for use of successive fixed term
contracts in context of appointment of consultants.
• Hedigan J analysed in detail the approach of the Labour Court in
Health Service Executive v Khan [2006] ELR 313, where the Labour
Court adopted a “purposive” interpretation of s.9 of the 2003 Act,
holding that employer must establish that the reason relied upon as
constituting objective grounds was the operative reason for the
failure to offer a CID at the time the fixed-term contract was
renewed. This approach was expressly disavowed by Hedigan J in
Umar, and the Court allowed the appeal on a point of law, declaring
that objective justification did provide a defence in this case.
• Key lessons from the case law
Part-Time Workers
• Key European-related developments this year include the treatment
afforded to the Part-Time Work Directive in Catholic University
School v Dooley [2010] IEHC 496 (20 July 2010)
• High Court held that part-time privately paid teachers could not
compare themselves pursuant to the Protection of Employees (PartTime Work) Act 2001 with full-time Department-paid teachers.
• In a second judgment delivered on 13 May 2011 Dunne J has ruled
that the question at issue in the case concerning the choice of
comparator cannot be referred by means of preliminary reference
under Art 267 TFEU on the basis that the issue is no longer
‘pending’ before the national court.
• Comments and Discussion
Recent Cases concerning Bullying,
Harassment and Stress at Work
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The judgment in Sweeney v Ballinteer Community School [2011]IEHC 131 (High
Court, Herbert J, 24 March 2011): another plaintiff win in this area
– Vicarious Liability
– Aggravated damages
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The above case can be contrasted with...
O’Toole v County Offaly VEC (O’Neill J) [2011] IEHC 141 (15 April 2011): plaintiff
lost on all grounds, with O’Neill J rejecting claims of harassment but also finding
that plaintiff failed to put employer on notice of complaints
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Delaney v Central Bank of Ireland [2011] IEHC 212 (High Court, Laffoy J, 15 April
2011)
– Employer had prohibited plaintiff from returning to work on basis of Report
obtained from Consultant Forensic Psychiatrist.
– High Court declared the decision of the Bank in this respect to be null and void
on basis of lack of fair procedures.
Comments and Analysis
The Relevance of Penalisation claims under s. 27 of the 2005 Act
– St John’s National School v Akduman [2010] 21 ELR 301
Key Developments concerning
Dismissal and Redundancy
• Link to discussion above of the judgment of Hogan J in
Holland v Athlone IT (Croke Park Deal does not create
enforceable legal rights for an individual public sector
employee)
• High Court judgment in Sharma and Saharan [2010]
ELR 262: one year’s service requirement deemed to
apply to penalisation cases under 2005 Act
• Redundancy: The High Court judgment in Panisi v JVC
Europe Ltd ([2011] IEHC 279, 27 July 2011, Charleton J)
• Large Awards in EAT as claimants’ losses mount:
managing expectations on both sides...
Remedies in UD litigation
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Compensation
Re-instatement
Re-engagement
Re-engagement awarded this year in Purcell v AIB (See
The Irish Times, 10 February 2011)
• EAT Annual Report 2010:
– The Tribunal awarded compensation amounting to
€3,485,898.25 in 217 cases last year.
– The average compensation awarded by the Tribunal was
€16,064.05.
– Re-instatement was ordered in just 6 cases.
– Re-engagement was ordered in just 3 cases.
Thank You!
• Follow-up questions are very welcome:
• e: desmondryan@lawlibrary.ie
• t: +353 1 817 2378
• m: 086 341 2589
Desmond Ryan B.L.
10 November 2011