Arthur Cox Employment Law Yearbook 2016

Arthur Cox Employment Law Group

• Publisher: Bloomsbury Professional
• Year: 2017
• ISBN:
  9781784514570
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

This annual Irish publication contains selected cases and materials relevant to Employment Law. Practitioners need to be up to date and this annual publication provides that service. By being selective, and having that selection carried out by experienced lawyers, practitioners are pointed in the right direction. The book also covers the significant reforms under new Workplace Relations Act 2015. Comprises of:
Irish law: decisions of the superior courts, Labour Court, Equality Tribunal, Employment Appeals Tribunal and the Workplace Relations Commission etc;
Irish legislation and statutory instruments;
English law so far as relevant eg common law decisions;
EU law: decisions of the Court of Justice of the European Communities and relevant Directives/Regulations;
Other material such as Annual Reports of employment bodies.

Chapter 1

INTRODUCTION

CONTRACT OF EMPLOYMENT

[1.01] Chapter 2 covers decisions on the contract of employment.

Length of Service Requirement

[1.02] In Boufoy-Bastick v University of the West Indies,¹ the Privy Council decided that the claimant had been contractually entitled to receive supplementary pension benefits which were payable to members who had completed 10 years’ continuous service immediately prior to retirement. Although the claimant’s total length of service technically fell short by 36 days, the Privy Council adopted a reasonable and practical interpretation of the terms of his contract. It found that over the years, the defendant had in fact acted, in accordance with its own rules and the contract between the parties, as if the claimant had the requisite amount of service to receive the entitlement to the supplementary pension benefits.

Restrictive Covenant

[1.03] In D v P,² the Court of Appeal of England and Wales upheld the decision of Snowden J in the High Court to award an injunction enforcing a restrictive covenant in the appellant’s contract of employment with the respondent. The Court of Appeal cautioned that the exercise of discretion involved in granting an injunction was not a ‘mechanistic’ one and each case would turn on its own facts.

In Bartholomews Agri Food Ltd v Thornton,³ McKenna J in the High Court of England and Wales refused to grant the interim injunction sought by the claimant to enforce a restrictive covenant contained in the respondent’s contract of employment. This clause prevented the respondent from having dealings with any of the claimant’s customers for six months after the termination of his employment, regardless of whether he had dealt with them during the course of his employment. McKenna J held that the clause was in restraint of trade and unenforceable. McKenna J was critical of the fact that the clause had been imposed upon the respondent when he was a trainee, with no experience and no customer contracts.

In Rush Hair Ltd v Gibson-Forbes & Anor,⁴ the High Court of England and Wales was required to construe restrictive covenants contained in a share purchase agreement (SPA) entered into between the claimant and the first defendant. The Court noted that the SPA had been an agreement for the sale of a business, which included its goodwill, and that if it were not possible to protect that goodwill through the enforcement of its covenants, the business would be worthless. Particularly in the context of the hairdressing business, the claimant was entitled to protect the value of the personal connection between the individual stylists employed by them and the regular customers of those stylists. The Court held that a two-year restriction in this regard was not unreasonable.

Fiduciary Duty

[1.04] In Reuse Collections Ltd v Sendall & Anor,⁵ the High Court of England and Wales found in favour of the plaintiff that the first respondent had acted in breach of his duty of fidelity and good faith to the plaintiff when he set up a business in direct competition with it while he was still employed by the plaintiff and carried out work in furtherance of this new business during his working hours with the plaintiff. However, the Court declined to find that the first respondent owed a fiduciary duty to the plaintiff on the basis of his status within the company. The Court also found that the plaintiff had made out the tort of unlawful means conspiracy against the second respondent, ie the company set up by the first respondent and his sons.

Temporary Re-Assignment

[1.05] In Earley v Health Service Executive,⁶ the plaintiff sought a declaration that the decision of the HSE to temporarily reassign her in order to facilitate a national review of its services, following allegations of sexual abuse within the defendant’s mental health facilities in Roscommon, was unlawful. O’Connor J noted the urgent and grave concern regarding the welfare of service users and stated that while parties have a constitutional right to litigate disputes, ‘this Court takes the opportunity to exhort all professionals in the future to recognise that the most vulnerable in society … have rights which they … and the courts ought not allow to be affected by the litigation process if at all possible’. O’Connor J found that the plaintiff’s terms of employment remained precisely the same.

In McEneaney v Cavan and Monaghan Education and Training Board & Anor,⁷ the Court of Appeal held that the decision of the respondent Board to transfer the plaintiff to another school was entirely reasonable in the circumstances. In arriving at this conclusion, the Court noted that the transfer was not a punishment and that what had started as an informal disciplinary process turned to a HR matter once concerns had been expressed regarding the applicant’s mental health.

Terms of Employment (Information) Acts

[1.06] In Irish Water v Hall,⁸ the Labour Court affirmed the decision of a Rights Commissioner that, although there had been a technical breach of s 3 of the Terms of Employment (Information) Acts 1994 to 2014, this did not warrant an award of compensation. The Labour Court found that the issues which the claimant raised could have been rectified by making ‘a simple request’ to the respondent and was critical of what it deemed to be an ‘unacceptable squandering of public resources’ in taking this case.

Unilateral Amendment to Contract

[1.07] In Reid & Anor v HSE,⁹ the Supreme Court dismissed the appeal by the plaintiff dentists and upheld the findings of Murphy J in the High Court. The plaintiffs claimed that the HSE had not been entitled, by virtue of a Circular, to alter the entitlements of medical cardholders to certain dental treatments, for which the plaintiffs had previously been compensated by the HSE. The High Court found that the HSE was entitled to unilaterally alter the provisions of a contract, which had been collectively negotiated by the Irish Dental Association with the then Health Boards, when one took into account the relevant factual matrix surrounding the amendment to the contract in 1999. It found that it is be a matter of fact in each case whether an individual employee is bound by a change in their terms and conditions of employment which have been negotiated collectively between a union and an employer. In coming to its conclusion, the Supreme Court emphasised the fact that the plaintiffs had worked for a number of years without complaint under the contract they sought to impugn in the instant proceedings.

DATA PROTECTION

[1.08] Misuse of private information is one of the topics addressed in Chapter 3. In Brown v The Commissioner of Police of the Metropolis¹⁰ and Brown v The Chief Constable of Greater Manchester Claim¹¹ (heard together), the County Court gave a judgment on remedy arising out of admitted breaches on the part of the two defendants of the Data Protection Act 1998 and the Human Rights Act 1998. The Metropolitan Police Service had made a request for information from the National Border Targeting Centre regarding the travel details of the claimant (and her daughter), while on sick leave, to be used for disciplinary purposes. The Court also found both defendants to be guilty of the tort of misuse of personal information.

[1.09] In Dr DB v The General Medical Council,¹² the High Court of England and Wales considered the application for declaratory relief sought by the claimant GP in respect of the decision by the defendant to release to his former patient an expert report which had been compiled into his fitness to practice and which dealt specifically with complaints made by the patient, P, against him. The Court considere...

Table of contents

• Cover
• Title Page
• Introduction
• Practice Areas Involved in the Arthur Cox Employment Law Yearbook 2016
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Table of European Legislation
• Table of Constitutions
• Contents
• Chapter 1: Introduction
• Chapter 2: Contract of Employment
• Chapter 3: Data Protection Law
• Chapter 4: Employment Equality
• Chapter 5: Employment Litigation: Preliminary Issues
• Chapter 6: Employment Related Torts
• Chapter 7: European Union Law
• Chapter 8: Fixed-Term Workers
• Chapter 9: Health and Safety
• Chapter 10: Human Rights
• Chapter 11: Immigration
• Chapter 12: Industrial Relations
• Chapter 13: Injunctions
• Chapter 14: Insolvency
• Chapter 15: Judicial Review
• Chapter 16: Legislation
• Chapter 17: Litigation
• Chapter 18: Part-Time Work
• Chapter 19: Pensions
• Chapter 20: Protective Leave
• Chapter 21: Public Servants
• Chapter 22: Redundancy
• Chapter 23: Taxation Relating to Employment
• Chapter 24: Transfer of Undertakings
• Chapter 25: Unfair Dismissal
• Chapter 26: Wages
• Chapter 27: Whistleblowing
• Chapter 28: Working Time
• Chapter 29: Northern Ireland—2016 in Outline
• Chapter 30: Industrial Relations—A Changing Landscape
• Index
• eCopyright