The Cost of Workplace Bullying – Personal and Economic

 

The Cost of Workplace Bullying – Personal and Economic

A recent study by NUI Galway has highlighted the significant economic cost of workplace bullying and work related stress;

  • 7 million days million days lost per year equating to,
  • €239 million

A link to the study can be viewed here:

https://academic.oup.com/occmed/advance-article-abstract/doi/10.1093/occmed/kqaa067/5839678?redirectedFrom=fulltext

It is clear that not only are the impacts of bullying and work relates stress affecting people’s health and well-being but it also has a substantial economic cost. The value of lost productivity is serious and every employer should review their policies to ensure they have a robust process in place to not only address these issues but also to prevent them. These policies should ensure staff know that workplace bullying is entirely unacceptable.

These economic statistics should not deflect from the person who may suffer personally from any workplace bullying or work related stress which may require medical intervention and certified work absence. Unfortunately, this seems to be an ever increasing issue.

Employers have a significant duty of care to employees and failure to be proactive in addressing these obviously real issues could prove very costly. A regular review of policies should be implemented and advice sought as required. The Workplace Relations Commission have set out a helpful Code of Practice (see link) as have the Health & Safety Authority:

https://www.workplacerelations.ie/en/what_you_should_know/codes_practice/cop6/

https://www.hsa.ie/eng/Publications_and_Forms/Publications/Occupational_Health/CoP_Bullying.pdf

An employee who is a victim of workplace bullying where the employer fails to act promptly, fairly or at all may elect to pursue a claim(s) in the Workplace Relations Commission and/or a Personal Injuries Action.

If you have any queries on this topic or any employment law matter, please contact Niall MacCarthy or Brendan Dillon by email info@dillon.ie or by phone (01) 2960666.

Termination of Wardship

 

 

Termination of Wardship

 

  • Until the commencement of the Assistant Decision Making Capacity Act 2015, Part 6 Ward of Court applications continue to be made in the same way as they currently are. Once part 6 of the Act is enacted all future ward ship applications will be made to the Circuit Court.

 

  • If you have been appointed to act as Committee for a Ward it is important to note that if you are aware of the existence of a Will for the Ward that Will should be lodged with the Registrar of the Wards of Court office for safe keeping. On the death of the ward the registrar of the Wards of Court office should be notified and the Registrar may open and read the Will so they know who has been appointed as Executor and any funeral requests made by the deceased. The original Will, will not be given to the Executors but rather will be passed to the Probate Office for safe keeping where the Executor can request a certified copy of the Will in order for them to proceed with obtaining a Grant of Probate.

 

  • If the Ward did not make a Will and the funds held by the Wards of Court office are under €25,000 an application can be made to administer the Estate without having to take out Probate.  Where the amount is over €25,000 a Grant of Administration/Probate will be required.

 

  • The Committee need to apply to the Court to have the Wards Estate dismissed from Wardship. A statement of facts is lodged in the Wards of Court office which details the assets and liabilities of the Ward as of the date of death.

 

  • It is important that the Committee contact any parties that they would have engaged with during the wardship to notify them of the death and that the wardship has ended. This would include utility companies and financial institutions as well as other government bodies.

 

  • The Ward of Court office will draft a Court Order based on the statement of facts in order to end the wardship.

 

  • Once the Ward has died and the committee have obtained a Dismissal Order the Wards of Court Office will pay any monies held to the legal personal representative of the deceased on production of a Grant of Probate/Administration having deducted any outstanding fees or monies due to the Court.

 

If you require any further assistance in relation to this please do not hesitate to contact us on 01-2960666 or email info@dillon.ie

Cyber Crime

 

 

 

 

Cyber Crime

 

Cyber-attacks affect businesses daily as people try to benefit from vulnerable business systems.

In Ireland the Commission for Communications Regulation is responsible for communication security and regularly issues warnings about cybercrime. It is important that all businesses have effective IT systems and cyber security policies in place to prevent the risk of cybercrime.

Common types of cyber attacks

Malware is a term used to describe malicious software, which breaches a network through a vulnerability, typically when a user clicks a dangerous link or email attachment that then installs dangerous software. Once inside the system, malware can; block access to key components of the network (ransomware), covertly obtains information by transmitting data from the hard drive (spyware), disrupts certain components and renders the system inoperable.

Phishing is the practice of sending fraudulent communications that appear to come from a reputable source, usually through email. The goal is to steal sensitive data like credit card and login information or to install malware.

Motive

Often, attackers are looking for ransom. They may steal data and threaten to publish it if the Ransom is not met. They may also encrypt Company systems and demand ransom for the encrypted files.

Other times, fraudulent emails may be sent from what appear to be company email addresses requesting transfer of funds to an account. However the email is from the hackers and the account is also that of the hackers.

Legal Reliefs

If hackers have demanded money, the following may be of benefit;

  • An Order compelling the defendants to deliver up or delete all data stolen by the defendants from the Plaintiff
  • An Order directing the defendants to remove all data relating to the Plaintiff and its customers from the website with the domain name;
  • An Order providing for restrictions on the reporting of the proceedings by media and/or an order that the plaintiff be anonymized in reports of the proceedings. The reasons for protecting the identity of the Plaintiff is that if the issue was reported the business would be damaged by the publicity of it and so the damage the hackers sought to cause would be caused anyway.
  • A freezing Order. This is useful if funds have been transferred to a hackers account. The Plaintiff could seek freezing injunctions. These could then be notified to the banks and disclosure Orders could be obtained against them. The Banks could then assist in identifying the Defendant.

In terms of commencing proceedings it may be appropriate to seek damages for fraud etc. as well as for unlawful interference with business relations and economic interests.

Identifying the Plaintiff

The name of the defendant can be ‘persons unknown’ but they must be described in detail, for example, persons unknown who demanded ransom from x company on x date. If any of the defendants are known they must be named.

Service

Where the address of the defendant is unknown, Orders have been granted for alternative means of service for example to an email address, by whatsapp, facebook, twitter or by phone, where there are reasonable grounds to believe that this method will bring matters to the defendants attention.

Jurisdiction

If the damage occurred in the jurisdiction and the IP address being used by the hackers is in the Jurisdiction then the Irish Courts can deal with same. However when the IP address is outside the Jurisdiction this can cause difficulties.

Conclusion

While effective IT systems and cyber security policies may be more beneficial to prevent the attacks occurring. Having a Legal reliefs to deal with same may hopefully also deter hackers.

 

If you wish to discuss any of the above please contact Lorna Mc Ardle on 01 2960666.

 

Return To Work Safely Protocol – Some Key Features

 

Return To Work Safely Protocol – Some Key Features

 

The Return to Work Safely Protocol was published by the Government on the 8th of May 2020 and is available from the gov.ie website. The protocol is the result of a collaborative effort by the HSE, HSA and the Department of Health. It is a document designed to assist employers and workers in the safe return to work following the COVID-19 pandemic and is described as a “living document” which means it is subject to change. It is a general document applicable to all industry sectors. The following are a non exhaustive list of the key features:

 

  1. The document stresses the need for strong communication and a shared collaborative approach between employers and workers and requires regular engagement.
  2. Each workplace will appoint at least one lead worker representative charged with ensuring that COVID-19 measures are strictly adhered to in the place of work. This person must receive the necessary training and they will have regular and meaningful engagement with their employer and/or trade union etc.
  3. Employers must provide COVID-19 induction training for all workers.
  4. Employers must develop a business COVID-19 Response Plan.
  5. Employers must update their occupational health and safety risk assessment and safety statement.
  6. Employers must take into account workers individual risk factors such as age and health etc.
  7. Employers must include a response plan to deal with a suspected case of COVID-19.
  8. Employers must keep a log of contact/group work to facilitate contact tracing.
  9. Employers should review and revise existing sick leave policies and amended as appropriate.
  10. Employers must estimate and issue a pre-return to work form for workers to complete at least three days in advance of the return to work. The protocol includes five questions that should be included in the return to work form that require a yes/no answer from the employee.
  11. Employers must provide induction training for all workers.
  12. Employers must implement temperature testing in line with public health advice.
  13. In relation to dealing with a suspected case of COVID-19 in the workplace, employers must identify a designated isolation area in advance.
  14. The employer must also include a defined response structure to deal with a suspected case.
  15. Employers must provide enhanced advice to employees with regard to hand hygiene and respiratory hygiene.
  16. The employer must ensure and provide for physical distancing across all work activities to include a no handshaking policy, organise workers into teams who consistently work and take breaks together, organise breaks to ensure maintained of physical distancing, conduct meetings as much as possible using online remote means, provide one way systems for access/egress routes in the workplace.
  17. Cleaning of work areas must be conducted at regular intervals and the employer must provide workers with essential cleaning materials to keep their own workspace clean.
  18. With regard to customer facing roles, the employer must eliminate physical interaction between workers and customers as much is as reasonably practicable and provide hand sanitisers at entry and exits points.
  19. Employers should also put in place support for workers who may be suffering from anxiety or stress and provide information to employees returning to work.
  20. The protocol also states that air conditioning is not generally considered as contributing to significantly to the spread of COVID-19 and switching off air conditioning is not required to manage the risk but they are encouraging adequate ventilation and to open windows were feasible.

 

The protocol is helpful and should not be regarded as a non-exhaustive list of what to do. There are many additional requirements for employers and workers to ensure a safe return to the workplace.

 

If you have any queries in relation to employment law please do not hesitate to contact Niall MacCarthy or Brendan Dillon on info@dillon.ie or by telephone on 01 2960666.

EMPLOYMENT EQUALITY ACTS EXTEND TO CERTAIN CONTRACTORS

 

EMPLOYMENT EQUALITY ACTS EXTEND TO CERTAIN CONTRACTORS

Employment discrimination is a well litigated area in the Workplace Relations Commission and the courts. The Equality Acts set out the grounds for which discrimination is not allowed as follows; gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.

What is a Contractor?

This is a question to which entire books have been dedicated! It is a question to be explored on a case by case basis and the courts have put forward a number of tests and criteria to establish an answer. The “control” test is one example which explores the level of control the “employer” has over the work of the employee/contractor. One could look at the contractors own situation and ask whether they supply their own tools; whether they are responsible for their own tax returns and insurance; whether they determine hours and place of work. The purpose of this note is not to explore this question in detail.

An employee is usually deemed to have a contract of employment and a contractor usually deemed to have a contract for employment.

Extension of the Equality Acts to Contractors

What is clear is that the Equality Acts do not just apply to employees. The issue was dealt with by the Labour Court in the decision of Moyne Veterinary Clinic / Natasha Nowacki. The Claimant was a surgeon and claimed discrimination on grounds of gender and family status by the partners in the Clinic. It was initially held that the Claimant was not an employee so could not avail of relief under the Acts. However, the Labour Court allowed the appeal and held that the Section 2 of the Acts (defining a contract of employment) was broad enough and referenced a person being employed on “any other contract” which they held to extend to a person employed by a contract for employment.

Who personally executes the work / services

They did include in their decision the fact that the Claimant was required to “personally execute” the work assigned to her by the Clinic which is a noteworthy point.

Partnerships are also expressly included in the Equality Acts.

If you have any queries relating to employment law please do not hesitate to contact Niall MacCarthy or Brendan Dillon on info@dillon.ie or by phone (01) 2960666.

Darkness into Light

 

Darkness into Light

 

As we were not able to walk together this year, we at Dillon Solicitors decided we would do a walk on our own/with family members in our 5km radius to spread awareness for Darkness into Light.

 

Without the funds raised by this event, all of Pieta’s services are now facing an immediate and devastating financial crisis. More than 80% of their funds come from the public, and they need you to help them today to keep our lifesaving services available to those who need them most, especially during these darkest days.

 

If you could, please donate https://www.darknessintolight.ie/sunrise-appeal

 

To redact or not redact ?- That is the question

 

UPDATE ON REDACTION IN DISCOVERY – EXPLANATION REQUIRED

Redaction in discovery can be the source of further contention between parties to litigation especially when that redaction of documents is significant. There is no automatic right to see the whole document and the right to redact is well enshrined for a variety of reasons to include confidentiality, commercial sensitivities or perhaps if the information is regarded as irrelevant.

The burden is on the party seeking to remove the redaction to prove why same is necessary. However, there has been a slight shift in focus arising out of a recent High Court case.

Little v IBRC (2019)

The recent High Court decision in Little v IBRC has brought some interesting focus on the issue of redaction. The case involved the transfer of loans and the reason for redaction of documents, the subject matter of the discovery application, was because the documents contained information that did not relate to the loans in the case.

Mr. Justice O’Connor directed that the party relying on the redaction must categorise the redactions on affidavit and provide explanations for each redaction. The affidavit must contain a description grounding the position that parts redacted were irrelevant and/or confidential.

The court appeared to shift some of the focus on the party who was required to give a clear explanation on why the redaction is present as opposed to general assertions under broad headings as outlined above.

OUTCOME

Although the burden remains on the party seeking to remove redaction to show why it should be lifted, this decision does provide some relief to parties frustrated by general or broad arguments by the party who has redacted the documents. Equally, the redacting party should be careful in redacting and ensure that a clear explanation can be given to court.

If you have any queries on this or any aspect of litigation, please contact Niall MacCarthy or Brendan Dillon on info@dillon.ie or by telephone on 01 2960666.

Covid-19 Temporary Wage Subsidy Scheme

 

Employers will not be deemed insolvent if they avail of the Covid-19 Temporary Wage Subsidy Scheme

 

The Emergency Measures in the Public Interest (Covid-19) Act 2020 set out the main provision of the Government’s temporary wage subsidy scheme.

 

In order for an employer to qualify for the subsidy scheme, they must submit a declaration to Revenue that all of the following conditions are met:

 

  1. That the business is experiencing significant negative economic disruption due to Covid-19,
  2. That they can demonstrate, to the satisfaction of Revenue, that the negative disruption is leading to:
  • A minimum of 25% decline in actual or expected turnover, and
  • An inability to pay normal wages and outgoings and,
  • Other circumstances as set out in published Revenue Guidelines.

The ‘inability to pay normal wages and outgoings’ criterion raised concerns as to whether it was virtually the same as an admission that the business was trading while insolvent. This further raised fears that any company directors that availed of the scheme could be potentially exposed to a claim for fraudulent or reckless trading.

 

The Revenue Commissioners have recently addressed these concerns and clarified that employers will not be deemed insolvent if they avail of the temporary wage subsidy scheme. Therefore, availing of the subsidy scheme will not of itself expose a director to a claim for reckless or fraudulent trading.

 

In Revenue’s opinion the declaration by the employer is not a declaration of insolvency. The declaration is a declaration which states that, based on reasonable projections, there will be, as a result of disruption to the business caused or to be caused by the Covid-19 pandemic, a decline of at least 25% in the future turnover of, or customer orders for, the business for the duration of the pandemic and that as a result the employer cannot pay normal wages and outgoings fully but nonetheless wants to retain its employees on the payroll.

 

In order to avoid having any future issues with the Revenue, employers that avail of the subsidy scheme, should ensure that they keep a supporting record to show the negative affect Covid-19 has had on their business.

If you have any queries, please do not hesitate to contact us on info@dillon.ie or by telephone on 01 2960666.

Will Covid-19 affect performance of your contract?

 

Will Covid-19 affect performance of your contract?

Issues with Contracts

Given the current unprecedented times it is probable that many contracts, entered into prior to any knowledge of the pandemic and its severe implications, cannot now be performed. There are a variety of reasons for this stemming from the Covid-19 restrictions such as the ban on public gatherings, supply issues or travel bans that could make the performance of a contract impossible.

Force Majeure Clause in Contract

The contract may include a Force Majeure clause. This is a clause that refers to an unanticipated or unforeseen event and if that occurs and prevents performance of the contract, then it will not constitute a breach of that contract. The wording of the clause and the contract must be reviewed before being invoked.

Frustration

If the contract does not contain a Force Majeure clause, then it may be claimed that the contract has been frustrated. Frustration may be relied upon where:

1)            A significant supervening event occurs;

2)            That neither party is responsible for;

3)            That was not envisaged at the time the contract was entered into.

Each application of this doctrine is on a case by case basis and can be difficult to prove. Frustration will not succeed where it is simply more expensive to perform the contract or simply because there is a decline in economic conditions. Also, supply chain issues may not frustrate a contract. However, delay or a supervening illegality may frustrate a contract and this may be particularly relevant given the emergency legislation the Government enacted to deal with the crisis. It is also worth noting that Frustration discharges future obligations and not accrued rights under the contract. Each case must be looked at on a case by case basis and of course the frustration of some contracts may be more obvious than others.

What Should I do?

The first step is to review the contract to determine what clauses it contains that may address the issue. If there are no such clauses, then detailed instructions must be taken to determine if the contract has been frustrated to an extent that may allow non-performance and therefore will not be regarded as a breach of contract.

If you are a party to a contract that has been affected by the Covid-19 pandemic, please do not hesitate to contact Niall MacCarthy or Brendan Dillon on info@dillon.ie or (01) 2960666 for further assistance.

 

 

Some useful tips if changing your mortgage

 

Some useful Tips if changing your Mortgage

 

The main reasons why people choose to re-mortgage are:

  1. To get a better interest rate
  2. Debt Consolidation
  3. Home Improvements
  4. Changing financial situation
  5. Equity release

Usually the main reason to re-mortgage is to save money. You may also want to re-mortgage because the value of your property has risen or you have paid off a certain amount whereby you are in a lower loan to value band and therefore eligible for lower rates. You may also decide that certain banks are offering more competitive interest rates or better rates for more energy efficient properties.

 

It is important to check the terms of your current mortgage before you look to re-mortgage as if you are on a fixed rate there may be exit fees or penalties for requesting a re-mortgage but you may still be able to negotiate with your existing lender to get a more competitive interest rate on your existing loan.

 

Many of the banks will now pay a contribution to legal fees as an incentive to borrowers to switch mortgages and make further savings. In the current climate it is worth looking at re-mortgaging as a means of reducing your monthly outgoings given that mortgages tend to be people’s largest outgoing.

 

Useful Tips if you are Remortgaging

 

  1. Contact us at an early stage so we can get your deeds from your existing Bank to avoid delays
  2. Let us know if you have carried out any work to your house as we will have to check that the planning documents are in order and if not we can advise how you can remedy the situation
  3. If you are using the money to carry out works let us know as you may need to draw down the money in stages
  4. If you are doing works make sure you have a written contract with the builder/architect which clearly specifies the works agreed.
  5. If you are re-mortgaging it might be a good time to make a will if you have not done so or to update your current Will.

 

For further information on this please do not hesitate to contact our office on 01-2960666 or email us on info@dillon.ie.