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Daniel Spring

Employment Law Update

On 15 May, the Supreme Court delivered its judgment on this appeal. The Supreme Court’s decision was eagerly awaited to provide clarification of the law in relation to mandatory retirement ages. The issue of whether a mandatory retirement age is lawful has been complicated. This Supreme Court decision clarifies the law and upholds mandatory retirement ages as lawful, provided they are for a legitimate aim and are proportionate and necessary.

Importantly, the Supreme Court rejected the proposition that unless it is not possible to do so, a retirement age should only be imposed after an assessment in each individual case. The Supreme Court said that such individual assessment is not necessary for a mandatory retirement age rule to be lawful. This is a very important clarification of the law in this area.

Mr Mallon, was appointed, under s 12 of the Court Officers Act 1945, to the position of Revenue sheriff for Cavan and Monaghan, in January 1987. Under s 12 of the Act he was required to retire upon reaching the age of 70, in May 2022. Mr Mallon challenged the legality of the imposition of this retirement age upon him.

Mr Mallon challenged the lawfulness of the mandatory retirement age by way of judicial review before the High Court. He claimed that the section of the Act setting out the retirement age was incompatible with the Employment Equality Directive (Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation) and was, therefore, void and of no legal effect. Under the Directive, and as established by Court of Justice of the European Union (CJEU) case law, the imposition of a mandatory retirement age constitutes age discrimination. Such discrimination may be justified provided it is for a legitimate aim and the means used to achieve that aim are appropriate and necessary.

He claimed that the mandatory retirement age was objectively discriminatory on the grounds of age and that there were no sufficient objective and reasonable grounds capable of justifying it. He also claimed that the mandatory retirement age for sheriffs was unlawfully discriminatory when compared with the mandatory retirement age for coroners (which is 72) under the Coroners (Amendment) Act 2019.

The High Court (Phelan J) upheld the section imposing the mandatory retirement age. Mr Mallon appealed to the Supreme Court. The Supreme Court upheld the High Court decision. In doing so, the Court reviewed the case law relating to mandatory retirement ages, including a seminal decision, Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467 and decisions of the CJEU.

In Donnellan, the High Court (McKechnie J) had held that a blanket mandatory retirement age will not be justifiable where individual assessment is possible, i.e. where it can be assessed for an individual employee whether it is appropriate to impose the retirement age. McKechnie J in the High Court (at paragraph 104) said: “[w]here there are a large number of people involved and it would be impractical to test every person then it may be proportional to use some form of age-proxy. Conversely, where there are few people to assess and such could be done relatively easily it would not be proportionate to use blanket proxies so as to determine personal characteristics.”

Supreme Court – individual assessment is not necessary for a mandatory retirement age rule to be lawful

Mr Mallon relied on this principle in support of his claim. The Supreme Court rejected this principle. The Court held (at para 74) “the post-Donnellan CJEU jurisprudence does not support any general proposition in the terms articulated in paragraph 104.” The Supreme Court noted that, in fact, the CJEU has recognised that it is reasonable for Member States to adopt generally applicable mandatory retirement rules without any requirement for individual capacity assessment and that the consistent and systematic and coherent application of those rules is an important part of the analysis of whether the rules are proportionate.

The Supreme Court said at para 110(4): “It is not the case that the Directive presumptively requires case by case or role by role assessment or that such individual assessment must be shown to be impractical if a generally applicable retirement age is to be justified. Provided that the aim sought is legitimate and the means of achieving that aim are “appropriate and necessary” (proportionate), a mandatory retirement rule does not offend the prohibition on age discrimination in the Directive, notwithstanding that it does not entail an individual assessment of those subject to the rule.”

Standardising retirement age – legitimate objective

The Supreme Court upheld the section imposing a retirement age of 70 on Mr Mallon, as revenue sheriff. The Court held that the aim of the section, standardising the retirement age at 70 across the public service and public agencies and offices, including the office of sheriff, is a legitimate objective. The imposition of the retirement age of 70 is not disproportionate, generally or with particular reference to sheriffs.

Mandatory retirement age of 70 for sheriffs – proportionate

The Court noted that a retirement age of 70 is higher, and in many cases considerably higher, than the thresholds for mandatory retirement (at para 110(6) “considered without criticism or condemnation by the CJEU”. The Court noted that it is considerably higher than the pensionable age for the State pension. The Court also noted that as regards the position of sheriffs, the fact that people appointed to that office are free to combine it with continuing practice as a solicitor or barrister is (at para 110(7) “a highly significant factor in assessing the proportionality of requiring their retirement at age 70.”

The Supreme Court said that the State may provide for the application of a different retirement age to a specific category of public servants where there is a rational and objective basis for doing so. One of the considerations that the State can take into account for that is the need to maintain the effective delivery of public services in that area. The Court found that there was a rational and objective basis for the decision to increase the retirement age for coroners from 70 to 72 -the highly specialised nature of the role of coroner and the purpose to retain experience and expertise within the coroner system.

The Supreme Court concluded that the s 12 of the 1945 Act, imposing the mandatory retirement age of 70, was justified under the Directive.

Key contacts:

For further information on this topic, please contact Aileen Fleming, partner or Laura Dillon, solicitor.

This update is provided for information purposes only and is not legal or other advice.

On 24 April 2024, the Platform Work Directive was finally agreed. This Directive was introduced as a proposal in December 2021. Agreement appeared to have been finally reached in December 2023, only to have collapsed after behind the scenes negotiations. Finally, on 8 February, the European Parliament and Council struck a new provisional deal on the draft law. On 11 March, the European Parliament confirmed the agreement on the Directive.

The Directive must now be formally adopted by the Council. After its publication in the Official Journal of the EU, Member States will have two years to incorporate the provisions of the Directive into their national legislation.

Platform work is a form of employment in which organisations or individuals use an online platform to access other organisations or individuals to solve specific problems or to provide specific services in exchange for payment. Deliveroo and Uber drivers are examples of platform workers.

This Directive is to provide protections for platform workers and regulate the area of platform work.

Background to the Directive

Eurofound, European Foundation for the Improvement of Living and Working Conditions, describes platform work very clearly:

“Platform work is the matching of demand and supply of paid work through an online platform using an algorithm. Three parties are involved in the matching process: the client demanding work, the platform which manages the algorithm and the person who provides the work through the platform. It is work based on the performance of individual tasks or projects rather than a continuous employment relationship. A larger task is usually divided up into smaller subtasks, or ‘micro tasks’, that are independent, homogenous and contribute to producing a specific output. These tasks are carried out separately, resulting in a widespread, even global, division of tasks.”

Eurofound also notes that platform work has been dynamically developing over the last 15 years and is expected to continue to do so.

The issues that arise in relation to platform working are as to the true employment status of the workers and the use of algorithms that lack transparency to manage workers.

The Directive

Key provisions

The Directive contains provisions in relation to three areas: the status of platform workers, promoting transparency in algorithmic management in platform work and improving transparency in platform work.

Definition of platform work

The Directive provides that “ ‘platform work’ means any work organised through a digital labour platform and performed in the Union by an individual on the basis of a contractual relationship between the digital labour platform or an intermediary and the individual, irrespective of whether a contractual relationship exists between the individual or an intermediary and the recipient of the service.”

“Digital labour platform” means any natural or legal person providing a service which is provided, at least in part, at a distance through electronic means, such as a website or mobile app; at the request of a recipient of the service; involves, as a necessary and essential component, the organisation of work performed by individuals in return for payment, irrespective of whether the work is performed online or in a certain location; and involves the use of automated monitoring or decision-making systems. The Directive provides that this definition does not include providers of a service whose primary purpose is to exploit or share assets or which allow individuals who are not professionals to resell goods. This means that platforms such as AirBnB and Etsy are not covered by the Directive.

The status of platform workers

The Directive provides that “platform worker” means any person performing platform work who has an employment contract or is deemed to have an employment relationship as defined by the law, collective agreements or practice in force in the Member States with consideration to the case-law of the EU Court of Justice.

The question of the employment status of a platform worker is to be determined by each Member State in accordance with its law, collective agreements or practice. Importantly the Directive introduces a presumption of an employment relationship. Article 5. 1 provides that “the contractual relationship between a digital labour platform and a person performing platform work through that platform shall be legally presumed to be an employment relationship when facts indicating control and direction, according to national law, collective agreements or practice in force in the Member States and with consideration to the case-law of the Court of Justice, are found.”

This legal presumption is to apply in all administrative or judicial proceedings where the correct determination of the employment status of the person performing platform work is at stake. It does not apply in tax, criminal and social security matters unless the Member State applies it in law to such proceedings.

“Persons performing platform work” (which includes platform workers and anyone performing platform work irrespective of their employment status) will have the right to initiate proceedings to ascertain their correct employment status. Also, where competent national authority considers that a person performing platform work might be wrongly classified, it must initiate appropriate actions or proceedings to ascertain the employment status of that person.

Obligation to give guidance

Member States must, under Article 6, establish supporting measures to ensure effective compliance with the legal presumption including: developing appropriate guidance for workers, platforms and the social platforms on the understanding and implementing the legal presumption; and procedures for competent national authorities to “proactively identify, target and pursue” digital labour platforms which do not comply with the rules on the correct determination of employment status.

Management by algorithm – transparency and human oversight (Articles 7-11)

The Directive places clear limits on the ability of platforms to manage workers by algorithm. Included in these limits are the following provisions.

Limits on processing personal data

Digital labour platforms are forbidden to use automated monitoring or decision making in relation to certain data of platform workers, including processing personal data on their emotional or psychological state, and processing personal date to predict the exercise of fundamental rights, including the right of association, the right of collective bargaining and action or the right to information and consultation.

Transparency on automated monitoring or decision-making systems; human oversight of automated systems

Member States must require digital platforms to inform people performing platform work, their representatives and, upon request, competent national authorities, of the use of automated monitoring or decision-making systems. Article 9 details the kind of information that must be included in this.

Member States must ensure that labour platforms oversee and, with the involvement of workers’ representatives, regularly, and in any event every two years, carry out an evaluation of the impact of individual decisions taken or supported by automated monitoring and decision-making systems, on people performing platform work. Article 10.5 provides that any decision to restrict, suspend or terminate the contractual relationship or the account of a person performing platform work or any other decision of equivalent detriment “shall be taken by a human being”.

Human review of decisions

Article 11 requires platforms to provide a human review of important decisions regarding people providing platform work. Member States must ensure that people performing platform work have the right to obtain a clear explanation from the digital labour platform for any decision taken or supported by an automated decision-making system without undue delay. Member States must also ensure that the platforms give people performing platform work access to a contact person designated by the platform to discuss and clarify the facts, circumstances and reasons having led to the decision.

Health and safety (Article 12)

Digital labour platforms must carry out health and safety assessments in relation to platform workers. These obligations are detailed in Article 12.

Information and consultation (Articles 13, 14)

Member States must ensure that information and consultation under the Information and Consultation Directive (Directive 2002/14/EC) with workers’ representatives by digital labour platforms also covers decisions likely to lead to the introduction of or to substantial changes in the use of automated monitoring or decision-making systems. Where there are no representatives of platform workers, Member States must ensure that labour platforms directly inform the platform workers concerned on decisions likely to lead to the introduction of substantial changes in the use of automated monitoring or decision-making systems.

Transparency on platform work (Articles 16, 17)

Member States must require labour platforms to declare work performed by platform workers to the competent authorities of the Member State in which work is performed.

Remedies and enforcement (Articles 18-24)

Member States must ensure that people performing platform work, including those whose employment or other contractual relationship has ended, have access to timely, effective and impartial dispute resolution and a right to redress, including adequate compensation. Member States must introduce measures to protect people performing platform work from being penalised for attempting to enforce their rights under the Directive.

Collective bargaining in platform work (Article 25)

Member States must take adequate measures to promote the role of the social partners and encourage the exercise of the right to collective bargaining in platform work.

What’s next

Key contacts:

For further information on this topic, please contact Evelyn Gilson, Partner, or Neil McCann, Solicitor.

This update is provided for information purposes only and is not legal or other advice.

Daniel Spring

Employment Law Update

13 June 2024

In May, Revenue published new guidelines for determining employment status for taxation purposes. These guidelines were drafted in light of the October 2023 Supreme Court decision in Karshan (Midlands) Ltd t/a Domino’s Pizza v The Revenue Commissioners (“Karshan”).

The guidelines are clear and comprehensive and contain 16 examples of the assessment of whether a person is engaged as an employee or not. The guidelines state in the introduction: “As outlined throughout these guidelines, there are a number of workers across a number of sectors who will need to be treated as employees for tax purposes, where previously they have been treated as self-employed. It is essential that businesses urgently and comprehensively review arrangements with all workers and determine their employment status for taxation purposes.” The guidelines are available here: https://www.revenue.ie/en/tax-professionals/tdm/income-tax-capital-gains-tax-corporation-tax/part-05/05-01-30.pdf

Supreme Court decision in Karshan – five stage test for employment status

The question before the Supreme Court in Karshan was whether delivery drivers engaged by Karshan (Midlands) Ltd t/a Domino’s Pizza were “employees” or independent contractors for the purposes of the Taxes Consolidation Act 1997. The Act does not contain a definition of “employee”. The gig economy, where workers, such as the drivers in this case, are providing their work intermittently, has posed difficulties in ascertaining the true employment status of such workers. While the relevant contract might state that such workers are “independent” contractors, they may in fact be very “dependent”.

Karshan contended that drivers who provided delivery services for its pizza business were engaged as independent contractors. Revenue contended that they were employees. The Supreme Court in this lengthy and detailed decision provided welcome clarification on the test to be applied to determine if a person is an employee. It set out a five-stage test for the assessment of employment status:

Does the contract involve the exchange of wage or other remuneration for work?
Personal service

Is the agreement one under which the worker is agreeing to provide their own services, and not those of a third party, to the employer? This, the Court said, is “the essence of an employment agreement.” It said also that “some degree of limited substitution is permissible.”

Control

Does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

All the circumstances of employment

The Court said that the first three questions are filters. If any of those three questions are answered negatively, there can be no contract of employment. If the arrangement passes the first three questions, then all the circumstances must then be considered.

The Court said that this means (i) the contract must be interpreted in light of the factual matrix in which it was concluded; (ii) the actual dealings of the parties must be taken into account; (iii) this requirement is free standing, in that no presumption can be drawn from the answers to the first three questions. The onus of proof is the ordinary one on the party who asserts any proposition of fact, law or mixed fact and law; (iv) if the contract is not of employment, it is something else. To resolve the question of whether it is an employment contract, the answer must be established what kind of contract it actually is, e.g, independent contractor, partner, licence agreement. It will be appropriate to consider the question of control again at this stage.

The Supreme Court said that single stints of work are capable in law of comprising contracts of employment.

The legislative context

Finally, the Court said it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of these considerations.

Updated Code of Practice on Determining Employment Status awaited

Separately to these guidelines, Revenue, the Workplace Relations Commission and the Department of Social Protection are working on an update to the existing Code of Practice on Determining Employment Status. That Code is particularly helpful in relation to the question of a person’s employment status in relation to employment rights. The updated Code is now awaited.

Key contacts:

For further information on this topic, please contact Feidhlim Mac Róibín, solicitor or Jennifer McCarthy, Partner.

This update is provided for information purposes only and is not legal or other advice.

On 6 March, the Supreme Court delivered its judgment in H.A. O’Neil Limited v Unite the Union and others. This is a very important decision as the Supreme Court gave detailed consideration and clarification of the law in relation to restraining industrial action. It made clear that due to the protection in the Constitution of trade unions and s.19 of the Industrial Relations Act 1990, it is “extremely difficult” for an employer to obtain an injunction to restrain industrial action. The Supreme Court held that the High Court had been incorrect in this case in granting an injunction restraining industrial action.

The Supreme Court considered in detail the law in relation to obtaining an interlocutory injunction to prevent industrial action. As the Chief Justice noted, the High Court in considering such applications is often under “considerable pressure of time” and must sometimes resolve very difficult issues of fact and law. The Chief Justice said that this case gave the Supreme Court “an opportunity to take a more measured and comprehensive survey of the applicable law than may be possible in the course of an urgent application” (at para 21).

Supreme Court consideration of section 19 of the Industrial Relations Act 1990 and the Constitution

Section 19(1) of the Industrial Relations Act 1990 provides that where a secret ballot has been held in accordance with the rules of the trade union, the ballot outcome favours strike or other industrial action and one week’s notice is given to the employer, the employer cannot apply for an ex parte (without notice to the other side) injunction. Section 19(2) provides that a court cannot grant an injunction restraining the strike or industrial action where the respondent establishes a fair case that the he was acting in contemplation or furtherance of a trade dispute. Article Article 40.6.1°(iii) of the Constitution provides that the State guarantees liberty for the exercise of the following rights, subject to public order and morality, the right of the citizens to form associations and unions.

The Supreme Court considered these provisions in detail. The Supreme Court emphasised the fundamental importance of the constitutional protection of the right to form a union. The Court said that there would be little benefit in joining a trade union if the actions of the union are not also protected. The Court noted the “simplicity and the power” of s.19.

The Supreme Court made clear that s. 19 utterly changed the status quo that had existed before its enactment. The Chief Justice stated (at para 64):

“It reverses the balance of the pre-existing law. Where it was once easy to obtain an interlocutory injunction, it should now be extremely difficult to, even where an employer may have an arguable, indeed strong case, that the industrial action is unlawful. The uncertainty of the application of the law to the facts of a case which was a factor weighing strongly in favour of the grant of an injunction, has now been neutralised in the hands of the employer, and instead becomes a factor which weighs strongly against the grant of an injunction.”

The Court set out the law in relation to such applications and the conditions which must be satisfied to obtain such an injunction or defend such an injunction application.

Background to the Supreme Court decision

The appellant in this appeal, Unite the Union, is a British/Irish trade union which organises workers in areas including the mechanical engineering industry. H.A. O’Neil, the respondent in this appeal, is a mechanical engineering firm engaged in the construction industry. On 28 February 2023, the union, having balloted its members employed by H.A. O’Neil wrote to the company giving notice of industrial action to take place ten days later. This was due to a dispute about payment for travel time. That proposed action involved targeted strikes on a rolling basis.

The first such strike took place on 10 March 2023. It was clear that further targeted action was intended which at that stage involved further days of industrial action. On 8 March, the company brought an application for an interlocutory injunction restraining the defendants from picketing, and other related orders. In summary, the company claimed that the industrial action was in breach of a no strike clause in the contracts of employment because the dispute had not been submitted to the dispute resolution mechanism contained in the applicable Sectoral Employment Agreement. The union claimed that the SEO procedure did not apply to the dispute or, if it did, it had been complied with.

The High Court heard the application on 21 March and granted the injunction on 23 March. The union appealed this decision. The Supreme Court granted a leapfrog appeal directly to the Supreme Court as it found that the case raised important issues in respect of the law relating to the grant of injunctions in respect of industrial disputes, and of the application of s.19(2), the general rules for granting injunctions and the nature of the ballot required to satisfy the test in s.19.

The background to s. 19 of the Industrial Relations Act 1990

The Supreme Court noted that “it is both remarkable and unfortunate” (O’Donnell CJ at para 22) that in order to understand the law relating to trade disputes, picketing and injunctions, it is necessary to consider the development of the law since towards the end of the 19^th century. The Court set out this history very clearly. It noted that during the 19^th century, the UK governments and courts were mainly representative of interests hostile to organised labour. Initially trade union activity was a crime and a civil wrong.

Legislation was introduced in the early 1900s to change this – granting criminal and civil immunity to unions and their members for certain acts, e.g. peaceful picketing, when done in contemplation or furtherance of a trade dispute. The law as it applied meant that there wasn’t a positive right to take industrial action but rather such action was essentially unlawful except where limited statutory immunity applied. The Supreme Court noted that as the law was structured in this way, the courts, based on traditional principles, construed the immunities in a narrow way (at para 29, O’Donnell CJ).

The Industrial Relations Act 1990 amended and extended the traditional immunity for trade union activity and industrial action. Section 19 of the Act deals expressly with the grant of injunctions. The Court noted that s.19(1) means that an ex parte injunction cannot be granted (i.e. an application without notice to the opposing party) where a secret ballot has been held in accordance with s.14(1) of the Act, the outcome of which favours the strike or industrial action.

The Court noted that section 19(2) was “central” (para 39, O’Donnell CJ) to this case. The Chief Justice noted that traditionally the industrial action immunities have been narrowly interpreted (at paras 56 and 57):

“In my view, it is profoundly unsatisfactory that proceedings in this area should still hark back to cases decided between half a century and a century ago….Nor do I consider it correct to approach this area of law on the basis that industrial action is presumptively wrongful and tortious and that the 1906 and 1990 Acts should be viewed as providing islands of immunity which are exceptions to the general rule, and which must accordingly be strictly construed. This, in my view, would be to ignore the clear objective of the legislation, the history against which it is to be understood, and indeed the constitutional context in which it is to be read.”

O’Donnell CJ stated that such a narrow interpretation of the immunities is not correct (at para 58):

“The [Trade Disputes Act 1906] …. as reenacted, refined and extended in the 1990 Act was intended to alter that balance to recognise in law, the legitimate views of the men and women who went on strike, and to protect what was increasingly seen as a right to engage in industrial action and neither it nor the 1990 Act can be properly be seen as limited exceptions to a general principle that industrial action is wrongful.”

The Chief Justice stated that the constitutional the right to form trade unions supports a generous interpretation of the protections in the 1990 Act (at para 59):

“Article 40.6.1(iii) of the Constitution does not itself expressly guarantee a right to strike. However, it does guarantee the right of citizens to form associations and unions. As such it must be understood to recognise the legitimacy of trade union activity……The right to form unions would be of little benefit if the activities of the union and its members were to be regarded as presumptively unlawful….[T]he organisation of employees in a trade union gave the possibility of balancing the collective power of the employees and the economic power of the employer…. The 1990 Act should not, therefore, be read narrowly or restrictively, but should be read to give effect to the protection of unions and their members which the Acts were clearly intended to provide…..If anything given the constitutional context just discussed, it would be appropriate to read the provisions of the Act generously to give full effect to the rights sought to be protected.”

The s. 19(2) test for an interlocutory injunction to restrain industrial action

The Court noted that, while the approach of the court in an application for an interlocutory injunction to restrain industrial action as to the order in which to address the issues will depend on the circumstances, s.19 could in some cases be usefully used at the outset to come to a decision.

The Court said that a trade union, assuming that it is a registered trade union, must establish four things to rely on s.19(2) in defending an application for an interlocutory injunction:

That a secret ballot has been held in accordance with the rules of the trade union as provided for in s.14 of the 1990 Act (rules in relation to secret ballots).
That the outcome of the ballot favoured a strike or other industrial action.
That not less than one week’s notice has been given to the employer concerned of the intention to engage in the strike.
That the respondent to the application has established a fair case that they were acting in contemplation or furtherance of a trade dispute. The respondent must establish this on the balance of probabitlies.

The Court found that these conditions were satisfied here (there was no argument before the Court as to the first condition not being satisfied). Accordingly s.19(2) precluded the granting of an interlocutory injunction restraining the industrial action.

The test for an interlocutory injunction restraining industrial action if s.19(2) does not apply

The Supreme Court went on to consider whether, if s.19(2) did not apply, the company would have been entitled to the grant of an interlocutory injunction. It did so, even though, s.19 “provides a full answer to the plaintiff company’s claim for an interlocutory injunction in this case” (at para 65, O’Donnell CJ) because of “the range of arguments raised in the case and their detail and sophistication.” The Court held that the company would not have been so entitled.

The Supreme Court said (at para 69, O’Donnell CJ) that, “History has shown that it is exceedingly rare for a claim in relation to a trade dispute to go to a full hearing…..it is in the nature of such disputes that that they are immediate, time and fact sensitive and the grant or refusal of an interlocutory injunction is likely to be dispositive.” The Supreme Court said:

“The default position in applications for injunctions restraining industrial action should be therefore, that it should be assumed that the case will not go to trial, and the NWL/Merck criteria should apply, unless there are particular features in the claim which may make it probable that the case will proceed to trial on the issue and in relatively early course. It should be a matter for the party seeking the injunction to displace that presumption.”

The court, therefore must (i) make its best estimate of the strength of the respective parties’ case; (ii) assess the balance of convenience; and (iii) assess “in particular” the adequacy of damages to either party in the event the injunction is granted or not (para 70, O’Donnell CJ).

The question of the adequacy of damages

The Supreme Court did not consider that the High Court’s assessment of the adequacy of damages was correct. The High Court had found that the company would suffer damage which could not be easily quantified in monetary terms and could not be compensated for by the award of damages. This damage was claimed to be the damage done to the company’s reputation. The Supreme Court rejected this. It stated (at para 71, O’Donnell CJ):

“The claim for damage to reputation, not protected by defamation or another tort, but said to be a loss not capable of being addressed by damages is somewhat ephemeral and will in all but the most exceptional circumstances be too vague to justify interlocutory relief, particularly given the availability of a claim for damages for defamation in an appropriate case.”

The Supreme Court held that this was not such an exceptional case.

The High Court had held that the loss to the defendants of being restrained would be de minimis. The Supreme Court disagreed. It said (at para 72, O’ Donnell CJ):

“The ability to engaged in lawful industrial action is an important right in civic, societal, legal and constitutional terms (and one which is much valued by employees and trade unionists). An important part of the value of any such right is that the individuals concerned choose when to exercise it. It is not, for example, an answer to a person who seeks to exercise their right to free speech in public on a given occasion, to tell them that they cannot express their views now or here and to those they wish to address, but may be allowed to speak much later in a different place and perhaps in private or at least to a different audience. The loss of that opportunity to exercise a lawful entitlement when one chooses to do so is at the level of principle precisely the type of loss which cannot be compensated for by the award of monetary damages, or indeed, even assessed in monetary terms. In the context of an industrial dispute there is the additional consideration that the postponement of an ability to engage in industrial action may empty that right, not just of theoretical, but also practical value.”

Lack of clarity in relation to the law on industrial action

The Supreme Court noted the lack of clarity in the law regarding the right to take industrial action, the limits on such a right and the role of the courts in enforcing any of these matters e.g. whether industrial action is in breach of contract, the legal effect of a no strike clause. It said that if the social partners and the Oireachtas are unwilling to address these matters by legislation, (at para 84, O’Donnell CJ) “it will not be surprising if fractious industrial disputes continue to find their way into court.”

Key contacts:

For further information on this topic, please contact Jennifer McCarthy, Partner or Evelyn Gilson, Partner.

This update is provided for information purposes only and is not legal or other advice.

On 6 March, entitlements to request flexible working and remote working came into effect. On the same day, the Workplace Relations Commission (WRC) Code of Practicefor Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working was published.

The Code can be accessed here:

https://www.workplacerelations.ie/en/what_you_should_know/codes_practice/code-of-practice-for-employers-and-employees-right-to-request-flexible-working-and-right-to-request-remote-working/code-of-practice-for-employers-and-employees.pdf

The Workplace Relations Commission Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Workingcontains clear guidance and practical explanation of the obligations and entitlements in relation to these arrangements.

Background to the entitlements and the Code of Practice

The Work Life Balance and Miscellaneous Provisions Act 2023 transposed the EU Work-life Balance Directive (Directive (EU) 2019/1158.) The Directive was due to be transposed by August 2022. The Act introduced important changes, including:

the entitlement to request flexible working (commenced on 6 March 2024).
the entitlement to request remote working (commenced on 6 March 2024).
up to five days unpaid leave where for “serious medical reasons” the employee needs to give personal care or support to a family member or person who lives in the same household as the employee (commenced 3 July 2023).
an extension of the application of the maternity protection legislation to transgender males who become pregnant (commenced 3 July 2023).
an increase in the entitlement to paid time off work for employees for the purpose of breastfeeding (commenced 3 July 2023).
domestic violence leave (commenced 27 November 2023).

Under Part 4 of the Act, the Department of Enterprise, Trade and Employment had directed the WRC to prepare a Code of Practice for the purpose of practical guidance to employers, employees and others on the steps that may be taken for complying with the provisions. The WRC received and fully considered, as noted in the Code, over 50 submissions as part of the consultation process in the development of the Code. In finalising the Code, the WRC engaged with representatives of representatives of the Irish Business and Employers Confederation (IBEC) and the Irish Congress for Trade Unions (ICTU).

On 6 March, the Department of Enterprise, Trade and Employment declared it as an approved Code of Practice for the purposes of the provisions in relation to the right to request flexible working and the right to request remote working arrangements (SI 92 of 2024).

The right to request flexible working arrangements

The Work Life Balance and Miscellaneous Provisions Act 2023 introduced the right to request a flexible working arrangement for caring purposes, by inserting a new Part IIA into the Parental Leave Act 1998.

Entitlement to request flexible working

Under the Act, to be entitled to request flexible working, an employee must be:

the parent, adoptive parent or adopting parent or acting in loco parentis to a child under 12 or under 16, if the child has a disability or long-term illness, for the purpose of providing the care to the child, or
providing or will be providing personal care or support to a person, namely the employee’s child, spouse or civil partner, cohabitant, parent or grandparent, brother or sister, for the purpose of providing such care or support to that person. The person must be in need of significant care or support for a serious medical reason.

An employee’s flexible working arrangement cannot start until the employee has completed 6 months continuous employment. Breaks in employment – periods when an employee is not an employee of the employer – of less than 26 weeks will not break that calculation period for continuous employment. The Code notes that an employee can request flexible working from their first day at a new job, but cannot start the arrangement until they have completed 6 months continuous employment.

The Act contains provisions in relation to submitting a request for flexible working, the right to a response to such a request, the employer’s obligations in relation to considering the request, changes to a flexible working arrangement, termination of a flexible working arrangement, return to the previous working arrangement, abuse of a flexible working arrangement, and protection of employees from penalisation. These provisions are usefully and clearly summarised in the Code

The Code also notes:

practical examples of flexible working, e.g, part-time work, term-time work, job-sharing, flexi-time, compressed working hours, and remote working.
that in considering termination of a flexible working arrangement, an employer should consider whether their reasons for terminating are “objective, fair and reasonable.” The Code outlines in clear terms how the decision can be assessed and reached in an objective, fair and reasonable manner.

Resolving issues regarding requests for flexible working arrangements

The Code notes that “situations may arise where an employee feels that the FW (flexible working) request has not been considered in line with the legislation and/or with this Code of Practice.” The Code states in relation to this:

employers and employees should try to resolve any issues at local level.
where there is a collective agreement between a trade union and an employer, the parties should refer to those terms for raising grievances.
larger organisations with discrete HR units could consider designating a member of the HR team to be the point of contact for FW issues.
if an informal process has not been successful in resolving the issue, then the formal company grievance procedure may be used.
a breach of the Act may be referred to the WRC at any stage. If the matter is addressed through the company grievance procedure and remains unresolved on completion, the employee can refer it to the WRC citing the Code.

The right to request remote working arrangements

Part 3 of the Work Life Balance and Miscellaneous Provisions Act 2023 provides entitlements in relation to requests for remote working arrangements.

Entitlement to request remote working

Under the Act, a “remote working arrangement” means an arrangement whereby some or all of the work ordinarily carried out by an employee at the employer’s place of business is provided at a location other than at the employer’s place of business without change to the employer’s ordinary working hours or duties.

All employees have the right to request remote working arrangements but the remote working arrangement cannot start until the employee has completed 6 months continuous employment. Breaks in employment – periods when an employee is not an employee of the employer – of less than 26 weeks will not break that calculation period for continuous employment. The Code notes that an employee can request remote working from their first day at a new job, but cannot start the arrangement until they have completed 6 months continuous employment.

The Act contains provisions in relation to submitting a request for remote working, the right to a response to such a request, the employer’s obligations in relation to considering the request, changes to a remote working arrangement, termination of a remote working arrangement, return to the previous working arrangement, abuse of a remote working arrangement, and protection of employees from penalisation. These provisions are also usefully and clearly summarised in the Code.

The Code also contains practical guidance:

for employees on making requests for remote working including:
- examples of reasons for requesting remote working, e.g. reducing the daily commute and carbon foot-print, optimising quality of life outside normal working hours, personal or domestic circumstances, neurodiversity or special medical circumstances.
- information which should be included, where relevant, as to the suitability of the proposed remote working location e.g. the workstation suitability and distance from the workplace.
for employers on how to carry out an assessment of the request, and how to decide on termination of a remote working arrangement in an “objective, fair and reasonable manner”. The Code contains clear and useful detail on this.

Resolving issues regarding requests for remote working arrangements

The Code notes that “situations may arise where an employee feels that the RW (remote working) request has not been considered in line with the legislation and/or with this Code of Practice.” The Code states in relation to this:

employers and employees should try to resolve any issues at local level.
Where there is a collective agreement between a trade union and an employer, the parties should refer to those terms for raising grievances.
larger organisations with discrete HR units could consider designating a member of the HR team to be the point of contact for FW issues.
If an informal process has not been successful in resolving the issue, then the formal company grievance procedure may be used.
A breach of the Act may be referred to the WRC at any stage. If the matter is addressed through the company grievance procedure and remains unresolved on completion, the employee can refer it to the WRC citing the Code.

Redress in relation to flexible working and remote working arrangements

An employee can bring a claim to the WRC of breach of the employer’s obligation to consider a request for flexible or remote working. The claim must be referred within 6 months of the breach. The WRC may extend that 6 months to 12 months where there is reasonable cause for the delay.

The WRC, and Labour Court on appeal, cannot assess the merits of the employer’s decision, rather the process for such decisions, in adjudicating on claims in relation to the employer’s decision on a request for flexible or remote working, termination of such arrangements and requests to return to previous working arrangements.

The WRC, or Labour Court on appeal may direct the employer to comply with specific sections of the Act and/or award compensation of up to 20 weeks’ remuneration.

Requirement to keep records

An employer must keep a record of approved flexible working arrangements for three years. An employer who fails to do so is liable on summary conviction to a fine of up to €2,500. An employer and employee must also keep all notices, or copies of notices, in relation to the arrangements, given or received by them for one year.

Effect of Code

Nothing in the Code of Practice prevents an employer adopting more favourable entitlements in relation to flexible working than those contained in the Act. Failure to follow the Code is not an offence. However, the Work Life Balance and Miscellaneous Provisions Act 2023 and the Workplace Relations Act 2015 provide that in any proceedings before a Court, the Labour Court or an Adjudication Officer of the WRC, a Code of Practice shall be admissible in evidence.

Templates

The Code contains very useful templates of a Work-Life Balance Policy, request for flexible working arrangements and request for remote working arrangements.

This update is provided for information purposes only and is not legal or other advice.