29/11/2022

Legislation

The Right to Request Remote Working

The Right to Request Remote Working Bill has been heavily criticised since its publication. In particular, there are many who believe it heavily favours employers as it gives broad discretion to refuse a request and includes a non-exhaustive list of 13 possible reasons. In addition, there is no recourse for employees if their request is refused.

The Government has recently announced that the right to request remote working will be introduced through the Work Life Balance Bill (rather than progressing the draft legislation published earlier this year), which includes a more general right to request flexible work for parents and carers. We reported on the Work Life Balance Bill in our September newsletter.

The Work Life Balance Bill is currently being debated by the Dáil. It is now expected that it will include a right for all employees to request remote working, but the right to request any other type of flexible working will remain limited to parents and carers. The proposed timeline of introducing the Bill before the end of 2022 seems optimistic, but we will keep Members updated.

New Bill on Hate Speech and Hate Crimes

The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 will repeal and replace the Prohibition on Incitement to Hatred Act 1989.

The aim of the Bill is to criminalise any intentional or reckless communication or behaviour likely to incite violence or hatred against a person/persons because they are associated with a protected characteristic. It has been drafted to ensure that it captures hate speech in an online context. The Bill proposes a term of imprisonment of up to 5 years for persons convicted of such an offence.

The protected characteristics under the Bill are much wider than under the existing Act and cover:

1. Race;
2. Colour;
3. Nationality;
4. Religion;
5. National or Ethnic Origin;
6. Descent;
7. Gender;
8. Sex Characteristics;
9. Sexual Orientation; and
10. Disability.

Under the Equality Acts employees are protected from less favourable treatment, harassment (including sexual harassment), and victimisation on equality grounds: gender; civil status; family status; sexual orientation; religion; age; disability; race; membership of the Traveller community. Many, but not all, of these equality grounds are also covered by the Bill.

The Department of Justice states that “Descent” is distinct from race and that it would be relevant, for example, in the context of the Jewish community, where a person may have Jewish ancestry but does not practice the religion.

In the employment context the Bill raises the possibility of an employee, who engages in certain forms of discriminatory/harassing behaviour potentially also committing a criminal offence if the nature of their conduct is likely to incite violence/hatred.

As Members will be aware, employers are vicariously liable for the acts of their employees carried out in the course of employment. The Bill provides that a “body corporate” will have a defence where it has reasonable and effective measures in place to prevent the communication generally of material inciting violence or hatred against a person/a group of persons on account of their protected characteristics and took all reasonable steps and exercised all due diligence to avoid the commission of the offence.

The Bill is a further reminder to employers of the importance of having effective and up to date equality and social media policies in place that are backed up by effective training.

Case law

Eamon Murphy v Michael Connolly & Sons Ltd SuperValu Supermarket

Facts: The Complainant was employed by the Respondent as a Store Manager. We had worked for the Respondent for approximately 15 years when he was dismissed after being seriously intoxicated at work.

The Complainant was an alcoholic. He had a number of alcoholic related issues culminating in a serious incident at work in December 2019.  He was sent home, but he was declared fit and returned to work in January 2020.  The Complainant undertook to attend at AA with no repeat of the alcoholic incidents. The Respondent was very sympathetic and did not take any disciplinary action on that occasion.

However, a further serious alcoholic incident took place at work in October 2020. The Complainant had been left in sole charge of the store that weekend when he brought in a considerable quantity of vodka and consumed it on the premises. The Complainant became completely unconscious and had to be assisted home by his colleagues. He immediately entered the Asiri residential alcoholic treatment programme and remained for a 28-day treatment programme.

At an investigation meeting the Complainant admitted he had been seriously intoxicated; however, he said the treatment programme had been successful and he was a “changed man.” The Complainant was invited to a disciplinary hearing following which he was dismissed. At this stage the Respondent was of the view that the breach of trust was incalculable. In making the decision to dismiss the decision maker had regard to 2 matters: the risk to a large business from an intoxicated manager; and the personal breach of trust that had arisen – the breach of trust was the crucial factor.

The Complainant alleged his dismissal meant he was refused a reasonable accommodation because he was an alcoholic.

Decision: Unlike the position in the UK, in Ireland alcoholism is a well-recognised disability.

The Adjudication Officer found the Complainant had been discriminatorily sacked because he was an alcoholic, and that in the absence of precedent in the area, it could not accept the breach of trust as a defence for discrimination. He also found the Respondent had failed to provide reasonable accommodation. The Adjudication Officer ordered €39,750 to be paid to the Complainant.

In reaching this Decision the Adjudication Officer agreed with the Complainant’s argument that the Respondent never held any realistic discussion with the Complainant about whether he could resume the duties of the Store Manager. In addition, no independent medical or addiction advice (including from the Asiri counselling/addiction service) was sought to review the Complainant and whether or not it was likely that his alcoholic incidents might re-occur.

Whilst the Respondent placed considerable emphasis on the “risk” factor his proposed return to work posed, the Adjudication Officer stated, “in the absence of Independent Medical/Addiction advice it has to be seen as simply speculation on the Respondent behalf.” (emphasis added.) 

Finally, the WRC found that breach of trust is a matter for the Unfair Dismissal Act and that, unless and until tested in a Higher Court, breach of contract/breach of trust cannot stand as an effective employer defence in an Equality Discrimination Dismissal case.

Was an employer’s decision to increase sanction on appeal from a Final Written Warning to summary dismissal fair?

Facts: In Martin Browne v Egis Road and Tunnel Operation Ireland Limited the Complainant was employed as a Duty Manager in the Tunnel Control Room at the Dublin Port Tunnel. In his role he was responsible for overseeing the Control Room which monitors the maintenance, safety and security of the tunnel.

During the evening shift an employee (not the Complainant) decided to play a “prank” on his colleague whereby he pretended there had been a serious incident in the tunnel that he would need to attend in his emergency vehicle. The other employee believed the call was genuine and, during rush hour traffic, drove at speed to attend the alleged incident.

Following an investigation the Complainant was invited to a disciplinary hearing. The disciplinary manager found that the Complainant had lost control of the Tunnel Control Room and was aware of the prank which placed the employee and other drivers in potential danger. However the disciplinary manager accepted the Complainant’s contention that had not been feeling well and issued him with a Final Written Warning and a two-week unpaid suspension from work. The Complainant was informed of his right of appeal and notified that an appeal could result in the disciplinary sanction being upheld, removed, reduced or increased.

The Complainant appealed and ultimately the appeals manager found that a Final Written Warning was not the appropriate sanction in all the circumstances. The Complainant was summarily dismissed for gross misconduct.

Decision: The WRC found the employer had conducted and fair and reasonable process and that the decision to dismiss the Complainant was reasonable and proportionate in light of his conduct. The Adjudicator found the Complainant had failed to stop this “prank” could have resulted in injury and even loss of life to employees of the Respondent and members of the public who were using the tunnel at that time.

The Complainant argued that he could not be dismissed and that a sanction could not be increased on appeal. He also argued that it was unfair for a sanction to be increased on appeal as it denied him the opportunity to appeal against the termination of his employment. However, at the Hearing it was not disputed that the Respondent’s Employee Handbook had been agreed with SIPTU and the WRC found that the Respondent had acted in accordance with the Employee Handbook and the outcome was in line with its provisions.

This case is highly unusual in that the decision to dismiss the Complainant was only made on appeal. Here the fact that there was provision within the disciplinary procedure for the possibility of an increased sanction on appeal, appears to have saved the fairness of the dismissal. As a rule, employers should act with extreme caution before increasing a sanction on appeal and ensure the express right has been reserved in the disciplinary procedure and clearly brought to the attention of the employee. Further, had this case been heard in Northern Ireland it is unlikely the dismissal would have been upheld as fair if the employee had not been advised of the potential outcome in the Step 1 invite.