Restrictive Covenants in Employment Agreements

 

 

Restrictive Covenants in Employment Agreements

We are often asked to advise clients both from an employer and an employee perspective as to whether a particular restrictive covenant is enforceable.

 

What is a restrictive covenant?

 

A restrictive covenant is a clause which is usually inserted in an employee’s contract and is designed to exert some measure of control over the employee’s actions after they leave employment. In particular it is usually designed to prevent the employee from competing with the employer’s business or from taking clients/customers. It can also be designed to prevent the employee from soliciting clients or employees from their former employer.

 

The enforceability of such clauses has to be placed in context with the right of every employee to earn a livelihood. If a restriction unfairly impinges upon that right and prevents the employee from earning a livelihood then there is a string possibility that the Courts will be unwilling to uphold the restriction in question. For instance, a clause that prohibits an employee from working for a competitor at all could prevent the employee from earning a livelihood and is unlikely to survive the Court’s scrutiny.

 

A recent example of where a restrictive covenant fell foul of the test of reasonableness was in the case of Ryanair –v- Bellew which came before the High Court in January 2019.

 

The Court was asked to consider a twelve month non-compete clause in relation to Mr. Bellew who was a COO and who resigned to take up a position with a rival low cost airline. Ryanair sought an injunction to prevent Mr. Bellew from taking up the position because they felt that he had substantial information as part of their inner strategy group which could have been passed on to his new employer.

 

The Court felt that a twelve month non-compete clause was reasonable. However, it held that the clause had to be limited reasonably to reflect the role which the employee was carrying out. In this case, the restrictive covenant prevented Mr. Bellew from working any role with any airline i.e. it prevented him from taking up a lower position such as a baggage handler or a member of cabin crew and it also prevented him taking up a role with a “legacy airline” i.e. a non-low cost carrier.

 

Mr. Bellew argued that he was subject to a confidentiality clause and that it was his intention to be bound by that clause ,ie that this was a sufficient defence to the fear expressed by Ryanair that he would share some of the crucial information/strategy he had learnt while in the employment of Ryanair. The High Court felt however that such a clause would be very difficult to enforce and that if the restrictive covenant was reasonable and enforceable that it would supersede any confidentiality clause.

 

In the circumstances of this particular case however it found that the restrictive covenant was unreasonable in that impeded Mr. Bellew taking up any position within the airline industry even though Ryanair argued that they would not have brought the application if Mr. Bellew had sought a position with a legacy airline. The case is currently under appeal.

 

In summary, in order for an employer to be able to enforce a restrictive covenant it must be able to demonstrate that the covenant is  fair, reasonable necessary and proportionate.

 

It must protect an identifiable business interest of the Applicant from unjust attack.

 

It must be reasonable in relation to the geographical limits to which it wishes to restrict the employee.

 

It must be reasonable and the test of reasonableness will be assessed with reference to when the contract was entered into.

 

What is very clear from all of the case law is that the Court will not rewrite a restrictive covenant. They will either uphold it or strike it down.

 

Accordingly, it is very important to take legal advice in relation to the preparation of such restrictive covenants and both employers and employees alike should take legal advice at the time when they are proposing to enter into these agreements.

 

For any advice in relation to such matters please do not hesitate to contact any of the employment solicitors in Dillon Solicitors on 01-2960666

What Constitutes Proper Provision In Family Law Cases

 

 

What Constitutes Proper Provision In Family Law Cases

Proper provision is a concept provided for in the 1996 Family Law Divorce Act. It is a test which the Court must apply when making decisions either in the context of Judicial Separation or a Divorce.

In order to assist the Courts the Family Law Act 1995 and the Family Law Divorce Act 1996 set out an identical set of factors which the Court must have regard to when deciding what constitutes “proper provision” .

These factors include the following:

1. The income earning capacity and resources of the parties now and into the future
2. The accommodation needs of the parties
3. The reasonable expectation of the parties as to their standard of living into the future
4. The length of the marriage and the time they were living together with the age of the parties
5. The ages and needs of the children
6. If either of the parties suffer from any mental disability
7. Whether either party made any sacrifice to their career should be taken into account
8. Any statutory benefits which either party may be in receipt of

There have been several cases in the High Court which have established certain principles in what are known as “ample resources” cases. These would include the principle that inherited assets or indeed assets brought into the marriage are not to be regarded as assets of the marriage and are not be considered by the Court unless it would be unjust to exclude them.

It should be borne in mind however that in most Circuit Court cases the reality is that if the Court were to adopt this position i.e. exclude inherited assets/assets brought into the marriage in many cases it would in fact be unjust to exclude them as it would disadvantage one of the parties significantly through no fault of theirs and might impact on their ability to achieve suitable accommodation for them/the children of the marriage or a suitable and reasonable income going into the future.

It is a matter for the Court to try and assess what is objectively fair taking into account the contributions that each party has made to the marriage and also any sacrifices that any party might have made such as one of the spouses remaining at home to look after the children while the other spouses earned substantial income. It has to be borne in mind that for the spouse that has stayed at home it would be much more difficult to kick start his/her career from that point onwards particularly if he or she is still looking after the children whereas the spouse who has cultivated a successful career can continue in that vein.

Ultimately, every case must be judged on its own circumstances and the facts of the particular case. For this reason, advice of an experienced Practitioner should always be sought.

For further advice on this or any Family Law Matter please do not hesitate to contact Brendan Dillon or Lorna McArdle on 01-2960666

Legal issues arising from a broken engagement

 

 

Legal issues arising from a broken engagement

 

It is still customary that parties get engaged to married before they get married. This gives rise to issues that may arise where that engagement is broken and where the parties have entered into agreements on foot of that engagement.

 

The purpose of this article is to highlight some issues that arise from a broken engagement.

 

  1. Property of engaged couples

Where a couple have purchased property together then any dispute in relation to that property is to be determined under Section 44 of the Family Law (divorce) Act, 1996 which states that any disputes about property between a couple who engagement has ended is treated the same way as if the couple were separated or divorced. This only applies to property where one or both of the spouses have a legal or beneficial interest and it does not apply to property which either party acquire after the engagement has ended. If one of the parties wishes to make a claim to property owned by the other party and where he or she is claiming a beneficial interest this action must be instituted within three years of the engagement ending.

 

2.  Preparations for the marriage

When an engagement and one of the couple has incurred substantial expenses in preparing for the marriage and application can be made for a reimbursement of these expenses by the ex-fiancé.

 

3. Gifts from third parties

Sometimes the parties to an engagement may have receive gifts and there is a presumption that is given to both of them as joint owners. There is a further presumption that the gifts will be returned if the marriage does not go ahead and the donor of the gifts could seek the gifts back.

 

4. Gifts between an exchanged couple

Where gifts have been exchanged and particularly an engagement ring there is a presumption there given on the condition that the gifts including the engagement ring will be returned if the engagement ends. However if one of the engaged couple’s dies then it is assumed that the gifts were given without conditions and the surviving fiancé shall be entitled to keep any such gifts unless such rebutted is rebutted.

 

For any further information or if you have any queries on any family law matter please do not hesitate to contact Brendan Dillon or Lorna McArdle on 01 296 0666.

EXECUTOR’S DUTIES

 

EXECUTOR’S DUTIES

 

Being appointed as an Executor can be a daunting task.  We have set out below a summary of matters which you as Executor would be responsible for.

 

These would include the following:

  1. You must gather together all information in relation to any assets held by the Deceased as well as details of any liabilities.
  2. You must make sure that any outstanding debts and taxes are paid and file an income tax return.
  3. You must pay the funeral expenses.  Financial institutions will usually allow for the funeral expenses to be paid without a Grant of Probate having been obtained where you provide them with the receipt.
  4. The Executor must make sure the spouse (or civil partner) and any children are aware of any legal rights they may have from the Deceased’s Estate.
  5. You must insure any property held by the Deceased as it is a duty of the Executors to maintain the Deceased’s assets pending distribution.  It is particularly important to make sure that you notify any insurance company that is insuring any property held by the Deceased if the properties are now vacant as this would be a change to the terms of the policy.  Usually when you notify the insurance company they will change the policy to fire cover only.  You should also seek to have public liability insurance put in place also
  6. You must ensure that social welfare are notified of the death of the Deceased and that any payments being made by social welfare are stopped and any overpayments refunded to them.
  7. Where there are beneficiaries living abroad it is particularly important that you are aware as Executor that there is a secondary liability on you regarding any tax payable by the beneficiary living abroad.  No funds should be paid to beneficiaries living abroad until they have filed a tax return and any monies due to Revenue have been paid and you have received confirmation from Revenue that you can distribute the monies to any beneficiaries living abroad.

 

Should you have any queries in relation to the above or if you wish to enquire about taking out a Grant of Probate please do not hesitate to contact us at info@dillon.ie or by contacting us on 01 2960666.

Annual Licensing Renewals 2020

 

 

Annual Licensing Renewals 2020

 

It’s that time of year again!

Even in the midst of these current strange times, the annual licensing dates cannot be forgotten. Here are the relevant dates for Dublin District Court:

  • Thursday 24thSeptember, 2020 –  Confirmations and Certificates of Transfer, Objections and General Exemptions
  • Monday 28th September 2020 –  Clubs
  • Wednesday 30th September 2020 – Dance
  • Friday 2nd October 2020 – Music and Singing
  • Friday 2nd October 2020 – Restaurants

The courts have requested that stamped and filed documents be lodged as early as possible but, no later than 1 September.

Given that many of the applications require a newspaper advertisement published at least 21 days in advance, now is the opportune time to begin preparations with a view to finalising everything in good time and avoid any delays.

We would be delighted to advise you and move your application.

Please contact us by email at info@dillon.ie or call us on (01) 2960666 for more information on what is required and the costs involved.

 

Domestic Violence Act 2018

 

 

Domestic Violence Act 2018

 

Domestic violence or abuse can happen to anyone and it includes physical, emotional, sexual, financial and psychological abuse.

 

Domestic violence can happen against women, men and children.

 

The Domestic Violence Act 2018 commenced on the 1st January 2019 and brought significant changes to Ireland’s law on domestic abuse; ; including the introduction of the offence of coercive control, express consideration of the victim’s psychological and emotional welfare and extension of the eligibility for Safety and Protection Orders to all partners in an intimate relationship.

 

There are Orders available from the Courts to protect people from Domestic Violence and I will outline some of them below.

 

Safety and Protection Orders

A safety order is an order of the court which prohibits the violent person (the respondent) from committing further violence or threats of violence but does not exclude the respondent from a residence. If the person is not living with you, the safety order prohibits them from watching or being near your home and following or communicating (including electronically) with you or a dependent person. A Safety Order lasts up to 5 years.

 

The Act facilitated the making of temporary (interim) Orders by way of Protection Order during the period between the initial application for an Order and the final determination of the matter and has the same effect as the Safety Order. A Protection Order ceases when the Court decides on an application for a Safety Order or a Barring Order.

 

The most important change is that now all partners in an intimate relationship are eligible for Safety and Protection Orders, with no need of cohabitation.

 

The following are eligible for Safety Orders and Protection Orders and include former partners also;

 

  • Spouses and civil partners;
  • Parents with a child in common;
  • Partners in an intimate relationship (including cohabitants and dating partners);
  • Parents of an abusive child, when the abuser is non-dependent i.e. an adult;
  • People residing with the respondent in an non contractual relationship;

 

Barring Order

A barring order requires the violent person to leave the home and prohibits the person from entering the home. The order also prohibits the person from further violence or threats of violence, watching or being near your home, or following or communicating (including electronically) with you or a dependent person.  A barring order can last up to 3 years.

 

A temporary (interim) Barring Order can be granted, during the period between the initial application for an Order and the final determination of the matter and the Interim Order had the same effect as a Barring Order. An Interim Barring Order lasts up to 8 working days

 

The following applicants are eligible for Barring Orders and Interim Barring Orders and include former partners:

  • Spouses and Civil Partners
  • Cohabitants who live in an intimate relationship

NO minimum period of cohabitation required.

NO need for the relationship to be “committed”.

  • Parents when the abuser is a non-dependent child (i.e. if the abusive son/daughter is an adult).

 

It must be noted that the “property test” still applies; which means that an applicant who is neither a spouse nor a civil partner must have an equal or greater interest in the property than the violent person (respondent) to obtain the relief.

 

Emergency Barring Order

 

An Emergency Barring Order, pursuant to Section 9 of the 2018 Act is a new relief that gives time-limited protection where there is an immediate risk of significant harm to cohabitants who do NOT satisfy the property test. It lasts a maximum of 8 working days and a further Emergency Barring Order, between the same parties, cannot be applied for until one month after the expiration of the previous Order, unless there are exceptional circumstances.

 

Special sitting of the District Court

 

Section 24 of the Act provides, , that a member of An Garda Síochána, not below the rank of Sergeant, may request the Courts Service to arrange a special sitting of the District Court for the purposes of an out of hours application for an Interim Barring Order, Protection Order or Emergency Barring Order. It is not limited to cases where a Garda attends an incident, it includes cases where a victim of domestic abuse walks into a Garda station and seeks assistance.

 

How to Apply

To obtain a Safety or Barring Order you must attend a District Court hearing. While you are waiting for the court to hear your application, the court can give you an immediate order.

 

A Safety Order or Barring Order can be renewed by applying for a further order before the previous one expires.

 

It is an offence to breach the Order

It is an offence to breach the Order under Section 33 of the Domestic Violence Act 2018. A breach is punishable by a class B fine, a prison term of 12 months, or both.

Section 35 of the Domestic Violence Act, 2018 empowers members of the Garda Síochána to make an arrest upon a breach of an Order.

 

Should you require any further information or assistance in making an application, please contact Lorna Mc Ardle, Solicitor, on 01 2960666 to make an appointment.

Recent Personal Injuries Settlement by Dillon Solicitors

 

 

Recent Personal Injuries Settlement by Dillon Solicitors

 

Dillon Solicitors recently secured a substantial five figure settlement for a client in a personal injuries action against a now former employer.

The action arose due to defective work boots supplied to our client. Our client had raised the issue with the employer at the time but no steps were taken to rectify the problem and/or replace the defective work boots. Employers owe a duty of care to employees to provide a safe system of work and to provide proper equipment to include work wear, among other obligations.

During the course of employment, our client was caused to trip and fall on steps which was directly caused by the defective boots. Our client sustained injuries to the knee, back and hip which had more long term effects than expected and had a significant impact on day to day life and in particular curbed recreational activities for a prolonged period of time. Our client also missed 2 months from work due to the injuries.

The case was handled by Niall MacCarthy assisted by Justyne Moran. Niall handles a significant caseload of personal injuries, medical negligence and employment law files in the office.

Our client was delighted with the outcome and settlement achieved relatively early in the proceedings. The referral of a friend in need to legal advice was the best compliment paid and very much appreciated.

If you have any queries regarding a personal injuries matter, please do not hesitate to contact Niall MacCarthy on niallmaccarthy@dillon.ie or by phone on (01) 2960666.

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.