Employment & Benefits Update: Further Clarification of the Ground Rules for Employers

07 December 2018

Two of the most common areas of the employment relationship that we are asked to advise on are dealing with employees with disabilities and how to manage a disciplinary process. Both areas were the subject of major higher court decisions in 2018. The Labour Court also dealt with the importance of monitoring employees’ working time. This includes answering emails out of hours, a common occurrence in many workplaces. Common though these queries are, they are still subject to fresh analysis by the courts. The requirement for up to date, accurate advice for employers has never been more important.

Nano Nagle School case continues

The case of Daly and Nano Nagle Special National School has been on-going for several years. Ms Daly, the plaintiff in this case, sought to return to work as a Special Needs Assistant following a serious injury in a road traffic accident. The School told her it could not reasonably accommodate her in that role. Ms Daly filed a complaint with the Equality Tribunal on the basis that the School had failed to take appropriate measures to enable her to resume employment.

The case went to the Labour Court where Ms Daly was awarded €40,000. An appeal to the High Court saw that award upheld. However, following a further appeal, the Court of Appeal found that Ms Daly could not perform the essential tasks of her role and that no amount of accommodation could change this. The Court also found that there is no obligation on employers to strip away essential tasks of a position that an employee can no longer perform or to redistribute those tasks to others. Employers should be prepared to justify what they classify as “essential” tasks.

The Court of Appeal’s decision has been appealed to the Supreme Court, so this story has at least one more chapter before it concludes. 

For a more detailed account see Court of Appeal Overturns High Court Nano Nagle School Judgment

Answering emails out of business hours problematic

In August, the Labour Court awarded an employee €7,500 for breaches by her employer of the Organisation of Working Time Act, 1997. She claimed her employer allowed her to work in excess of the 48 hour limit set down by the Act.

Her contract provided for a 40 hour work week. She gave evidence that she regularly checked emails between 5pm and midnight and that her employer regularly sent her emails before her designated start time of 8am. She claimed to have worked close to a 60 hour week on a regular basis.

The employer argued that she should have been able to complete her work in the agreed contract hours and that she was simply inefficient. However, it had not kept records of her working time and could not refute that the emails had been sent when she said they had.

The Court found that the employer had breached the legislation. This outcome highlights the importance to employers of not only enforcing the working time limits in the legislation, but also of keeping the records to prove it. Employers should take note that defending these claims in the absence of appropriate working time records is almost impossible.

See more detail: The Limits to Checking Emails Out of Business Hours

Employees do not always get to bring a lawyer

The debate on the role of legal representatives in internal disciplinary proceedings was clarified in October 2018 when the Court of Appeal issued its decision in Iarnród Éireann v Barry McKelvey.

McKelvey was investigated by his employer for issues with the use of a company fuel card. Following the investigation, he was invited to a disciplinary meeting. McKelvey had the assistance of an experienced trade union official but requested legal representation for the meeting. The company refused.

He then went to the High Court to halt the disciplinary process until he was allowed legal representation. The High Court granted the order, taking into account factors such as the complexity and imprecision of the charge, the impact on the employee’s reputation and future employment, and whether or not issues would arise that needed legal advice.

The Employer appealed and the Court of Appeal reversed the High Court’s decision, finding that the High Court had identified the correct principles, but had misapplied them. It said that legal representation would only be appropriate in exceptional circumstances, even where those factors were present. It would be open to the employee to apply for legal representation if a more complex matter arose in the course of the hearing. The Court did not define what “exceptional circumstances” might be for all cases, so there is room for fresh debate on that point. 

For more detail see: Disciplinary Proceedings – A Cold House for Lawyers?


It is worth noting that basic aspects of the employment relationship such as reasonable accommodation and disciplinary procedures are still capable of restatement and clarification. The field of employment law is fluid and complex. Therefore, it is vital that employers keep up to date with developments and seek the assistance of our Employment Law & Benefits Team for advice tailored to their business during the coming year.

For 2019, one big issue to watch will be the Employment (Miscellaneous Provisions) Bill 2017 as it moves towards being passed. While amendments criminalising the misclassification of employees as independent contractors have been flagged as unacceptable to the Government, the impact on employers of the banded hours provisions and other aspects of this piece of legislation will still be significant. 

The content of this article is provided for information purposes only and does not constitute legal or other advice.

Discuss your employment law queries now with Melanie Crowley.


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