Recent case on employer’s duty to protect employees

Recent case on employer’s duty to protect employees 

 

The Court of Appeal recently ruled a case involving the relatively unusual idea of “upwards bullying”. In McCarthy v ISS Ireland Ltd and HSE, the High Court had previously decided that the threshold required for legal bullying had not been met on the facts. In an interesting decision, the Court of Appeal found that, while the threshold for legal bullying had not been met, the employer had breached its duty of care to the complainant. The Court of Appeal ruled that what was at issue was not workplace bullying, but negligence on the part of the employer.

Writing in The Parchment magazine, Ailbhe Dennehy provides a useful overview of the facts of the case. The plaintiff reported five separate incidents of staff acting in an, “aggressive, threatening and abusive manner”, causing her, “severe stress and anxiety, humiliation, pain, and suffering”. Further, the plaintiff alleged that, “no particular action was taken to prevent a recurrence”.

In the first instance, the High Court approached this case as one of workplace bullying. Three markers of bullying were identified, namely: repetition, duration, and indications of escalation of the activity. The Court noted, “temporal gaps between each incident”, and that each of the five incidents involved a different employee.

The High Court dismissed the case, noting that, “ordinary human life is full of upsets large and small… which don’t necessarily give rise to legal liability”. The trial Judge felt that the incidents complained of would not “in the ordinary course cause a person to suffer as the plaintiff claims to have suffered”.

On appeal, the plaintiff argued that she had never presented her case as one of workplace bullying, and that the trial Judge had erred in characterising it as such. Rather, the plaintiff was presenting her case as one of negligence on two grounds:

  1. The alleged individual tortious acts by employees committed in the course of their employment which caused her injury and for which the employer was vicariously liable; and
  2. The alleged negligence by the employer by failing to provide a safe place of work by taking no reasonable or effective action to prevent recurrence of the behaviour and thereby “negligently permitting” an atmosphere to exist in the workplace whereby staff felt free to “speak and act abusively” towards the plaintiff “without fear of sanction”.

The Court stated that the concept of vicarious liability would be stretched “beyond its limits if an employer was to be found liable for every individual aggressive verbal outburst by one employee to another during the course of a day’s work, even where that outburst has caused distress”.

The plaintiff had authority over the employees in question, which could “bring her into conflict with those under her supervision”. In the Court’s view, it was reasonable for her employer to have a “particular duty of care” towards the plaintiff and to “anticipate that such conflict might occur”. This is in line with an employer’s general duty to “take all reasonable steps to protect an employee”. The Court ruled that, in the present case, “nothing was done to protect the plaintiff”.

The Court of Appeal found the employer liable in negligence for the injuries, loss and damages attributable to its negligence by:

  1. Not having policies and procedures in place to deal with issues of this nature; and
  2. Failing to provide the plaintiff with a safe place of work.

The Court of Appeal remitted the case to the High Court for a determination of the issues of causation and damages.

The idea of liability for negligence in the workplace is something that all Irish employers should now be aware of. Prompt and effective action should be taken when on notice of any employee behaviour so as to avoid any accusation that the employer is allowing such behaviour to continue in the workplace.

For any further information on employment matters please contact Niall MacCarthy on 012960666.

 

Wording for Divorce Referendum announced by Government

 

Wording for Divorce Referendum announced by Government:

 

The Government have announced that the provision that separating parties must be living separate and apart for 4 years during the previous 5 years in order to qualify for a divorce is to be removed from the constitution.

Instead the Government intend to pass legislation which will reduce the “living apart” requirement from 4 years to 2 years.

Furthermore, it is proposed that the wording in the constitution in article 41.3 which deals with the recognition of foreign divorces is also to be removed and it is to be replaced by wording which will state that provision “may be made by law for the recognition under the law of the state of a dissolution of marriage granted under the civil law of another state” i.e. the government intends to deal with the recognition of foreign divorces by way of legislation rather than it being dealt with in the constitution.

The provision in the constitution which require there to be no prospect of reconciliation and that the Court must make proper provision for the spouse and the children in relation to Divorce cases will remain in the constitution.

The divorce referendum is due to take place on the same day as the local and European elections on the 24th of May.

This proposed change by the Government is long overdue and allows couples ,who for various reasons, can no longer stay together as a married couple move on with their lives.

If you require any information or advice in relation to any family law matter please do not hesitate to contact Brendan Dillon on 01-2960666.

Factors to be considered when appointing a Trustee of your Will

 

Factors to be considered when appointing someone as a Trustee of your Will:

 

Firstly what is a trustee? – A Trustee is a person(s) who is appointed by a Testator, (the person making a will), who has the responsibility of administering the Testator’s trust, solely in the interest of the trust beneficiaries.

 

Fiduciary Duty – Each appointed Trustee has a fiduciary duty imposed by law on the trustee meaning that he/she/they have a legal obligation to act in the best interest of another party. He/she/they must avoid conflicts of interest and achieve a high standard of care in the administration of a trust. The trustee has a duty to safeguard the assets which are the subject matter of the trust and to ensure that the property is insured.

 

Conflict – The Trustee must carefully consider the nature and extent of the trust assets and any potential for conflicts of interest, meaning he/she/they, cannot place their own interest in conflict with the beneficiaries. Trust assets must be held separately from the assets that a trustee holds in his/her/their own capacity.

 

Caselaw Wild v Wild, 2013 High Court British Case

Facts – Three trustees were appointed, a wife, a daughter and a son for a Mr. Wild’s estate. Mr. Wild’s wife and daughter brought an application to have his son removed as trustee as he had refused to consent to a distribution to his mother.

Findings – Mr. Justice Arnold ordered that the son be removed as a Trustee as the son had become conflicted by his own concern that should a distribution be made from the trust to his mother, he would receive little or nothing of his parent’s wealth. Costs were awarded against the son and a distribution was made to Mrs. Wild immediately.

Conflict fundamental – Mr. Wild’s son had allowed his personal interests to influence his decisions as a trustee.

 

Standard of Care – A trustee is imposed with a duty to administer a trust with the skill and care that a reasonably prudent business person would extend to their own affairs and apply any special knowledge he/she/they may have.

 

CaselawBartlett v. Barclay’s Bank Trust Co Ltd (No.1)(1980)

Facts – Barclays Bank Trust Company was the sole Trustee of a settlement which consisted of a 99.8% shareholding in a private company. The Bank did not actively or regularly seek information on the management of the company and the beneficiaries took action against the bank for breach of trust and loss of funds.

Findings – The Court held in favour of the Beneficiaries as the bank had failed to supervise the business of the company.

Standard of Care Fundamental – The bank was a Trust Company and therefore owed a higher duty of care to the beneficiaries as it was a trust corporation which carried on the specialised business of trust management.

“Absolute discretion” – A term quite commonly used in Trust Deeds

 

Caselaw – Stacey v. Branch (1995)

Facts – The Beneficiary brought a claim against a trustee alleging breach of trust on the grounds that the trustee had failed to exercise the necessary degree of care in managing the trust property. A house which formed part of the trust had not been rented out by the trustee, thus generating a rental income for the trust, but had instead been occupied by a caretaker.

Findings – As the trust deed conferred a power on the Trustee to deal with the trust “ as he in his absolute discretion shall think fit”, although the use of the terminology “absolute discretion” did not relieve a trustee from his duty to exercise reasonable care and prudence, the Court held that the Trustee’s decision to place the caretaker in occupation of the property was one made bone fide in the exercise of his discretion. The Beneficiary’s claim was dismissed.

 

Duties of a Trustee:

  • To keep proper books of accounts
  • To properly distribute the trust property as per the trust instrument
  • To maintain equality between different types of beneficiaries
  • Not to transfer their duties under the trust to third parties

 

Factors to be considered when appointing as Trustee:

  • Consider the skills and knowledge and experience of the Trustee in advance of appointment
  • Consider the time constraints that will be involved in a trustee acting out their duties
  • Consider the nature and extents of the trust assets
  • Consider any potentials for conflict of interest
  • Consider whether a family member, friend or whoever you have in mind, is a suitable person to act as a trustee
  • Consider whether it might be more appropriate to appoint a professionally qualified and regulated trustee.

 

For further information please do not hesitate to contact Valerie Byrne on 01-2960666

Temporary break in relationship can damage cohabitation claim

 

Temporary break in relationship can damage cohabitation claim

 

In a recent case brought under the Civil Partnership and the Civil Rights of Co-habitants Act which was heard very recently by the High Court a Women failed in her bid to receive financial support from her Ex- Fiancé after the judge found that they had split up for two significant periods during the time of their relationship.

Under the Cohabitants Act, if the party can demonstrate to the court that he/she has been left in an economically vulnerable position as a result of the ending of relationship where the couple were living in a non-marital relationship for more than 5 years (2 years if they had children together) they can an seek order from the court in relation to maintenance relating to property, pensions, and inheritance. In order to qualify as a “Qualified Cohabitant” the applicant must be able to show that the couple lived together in an intimate and committed relationship for the requisite period.

The case came before Judge Donald Binchy. The applicant claimed that herself and her ex Fiancé had been together between 2007 and 2016. She claimed that even though there were certain breaks in the relationship the relationship had not ended and she offered evidence in support of this that she continued to wear her engagement ring during the breaks.

Her former fiancé claimed on the other hand that there were significant periods when the couple split up and that when they did split up this was done without an intention to become reconciled. In his ruling Mr Justice Binchy, having considered all the evidence concluded that there were two periods, one in the region of 6 months and another of 4 months where the relationship had ended. He relied on evidence provided by the fiancé (respondent) and accepted evidence which related to an account of a conversation between the applicant and her former fiancé’s sister. There were also other witnesses to support the man’s version of events.

Mr Justice Binchy referred to a previous decision of the court of appeal in which it was held that it was not necessary to prove that the couple had spent every day under the same roof to qualify for redress but he concluded that she had to prove that their relationship had been intact even during the time that they had broken up. He said that she had not been in a position to offer any witnesses to support her version of events and he concluded that she had failed to meet the tests set out in the legislation i.e. that there had to be a continuous period of intimate and committed relationship for five years and accordingly the claim fell.

In summary, if there are any significant breaks in a non-marital relationship this may be fatal to claim for redress under the scheme.

For further information on any family law matter please do not hesitate to contact Brendan Dillon on 01-2960666

Rights of People suffering from Dementia

 

Rights of People suffering from Dementia

 

With the increasing rates of Dementia being diagnosed, it is important for people to be aware of issues that can arise and that should be considered:

 

  1. Dementia is a form of disability and as such people with dementia are protected by the 1998-2015 Employment Equality Acts.
  2. A person cannot be dismissed from their work just on the basis of a diagnosis of dementia. Their Employer is obliged to try and take appropriate measures to accommodate the person at work provided that it does not create a disproportionate burden on the employer. This could include offering flexible working hours or assigning the person different work.
  3. The Equal Status Act also bans discrimination or harassment and promotes the reasonable accommodation of people with disabilities.
  4. Where someone is diagnosed with Dementia any life policies /Assurance policies or mortgage protection policies should be reviewed as some may pay out early on a diagnosis of dementia. Other policies which have illness cover or critical illness cover may also pay out on the basis of a diagnosis.   For people who are still in employment there may be some form of income protection cover available depending on the terms of their policy.
  5. A diagnosis of dementia does not automatically exclude a person from driving but they should inform their insurance company of their diagnosis to exclude any risk of having no cover in the event of an accident. Alternatively, it may be prudent to have a formal driving assessment by a suitably qualified driver before making a decision on the individual’s fitness to drive.

 

If you require any further information please so not hesitate to contact Pauline Horrkan on 01-2960666 or email info@dillon.ie

 

 

 

 

Statement of Terms of Employment – New Requirement

 

Statement of Terms of Employment – New Requirement

The Employment (Miscellaneous Provisions) Act 2018 came into force on 4th March 2019. The main change is to the Terms of Employment (Information) Act 1994 and in this regard, an employer must now provide a statement of the core terms of employment within 5 days of commencement of employment and these core terms are:

  1. Full name of Employer and Employee
  2. Address of Employer
  3. Expected duration of employment, in the case of a temporary contract of the end date if a fixed term contract
  4. Rate or method of calculation of employee’s pay
  5. Number of hours the employer reasonably expects the employee to work per normal working day and per normal working week

The other terms must be provided within 2 months as per existing legislation. If the above is not complied with an employee may submit a complaint to the WRC and may be awarded up to 4 weeks remuneration.

 

If you have any queries in relation to employment law, please do not hesitate to contact Brendan Dillon or Niall MacCarthy of this office on (01) 2960666 or info@dillon.ie

Medical Negligence Claims – The Practical Steps

 

 

 

Medical Negligence Claims – The Practical Steps

In order to pursue a claim for medical negligence in Ireland, you must have expert reports from suitably qualified doctors/consultants.

The first step is to obtain your medical records which involves signing letters of authority addressed to each treating doctor / hospital. A detailed statement is also taken from you regarding what happened. The medical records are shared with the Defendant with the consent of the patient.

Reports:

There are 3 categories of expert report required as follows:

  1. Breach of Duty – this is a report from a doctor of like qualification who will be asked to provide an opinion on negligence or breach of duty i.e. that the standard of care provided fell short of what would be expected of a reasonable doctor of like speciality;
  2. Causation – this is a report from a specialist in the relevant area of medicine to give an opinion on the link between the breach of duty and the injuries or ultimate outcome. There may have been a breach of duty, but if this did not adversely affect you, then there may not be a stateable case. Such an example would be a delay in diagnosis where the delay had no material impact on the patients ultimate outcome;
  3. Condition / Prognosis (quantum reports) – these are reports commissioned to quantify the claim and can vary from case to case depending on the circumstances.

All 3 of the above categories must produce supportive reports in order to pursue a stateable case to court. These reports can be expensive and are payable up front by the patient. The experts may be based in Ireland or the UK. The costs for the reports are generally recoverable if the case settles or if you succeed in your claim in court.

The Defendant will also be obliged to obtain their own expert reports if they wish to formally defend the claim. If they cannot obtain supportive reports for Breach of Duty and Causation, they may concede either or both points and the only issue may be quantum i.e. the value of the case, to include general damages for pain and suffering and special damages (out of pocket expenses to include loss of earnings, medical bills etc).

 

If you have any queries on medical negligence or litigation generally, please do not hesitate to contact Niall MacCarthy or Brendan Dillon of this office on 01 2960666 or niallmaccarthy@dillon.ie

New Domestic Violence Act extends eligibility to apply for orders

The Domestic Violence Act, 2018 commenced on the 1st of January 2019 and has made significant changes in extending the eligibility to apply for Safety, Protection and Barring orders notably:

Section 6(1)(a)(iii) of the Act removes the previous requirement of cohabitation between the parties to apply for a Safety/Protection Order and now requires that the parties have been in an intimate relationship at the time of the application without any requirement of living together.

Section 7(1)(c) of the Act requires that the parties have been living together in an intimate relationship to make an application for a Barring Order.

Prior to the 2018 Act, parties must have been living together six out of the previous nine months in an intimate relationship to apply for a Barring Order. This minimum period of cohabitation has been removed.

The 2018 Act has introduced an Emergency Barring Order, this new order provides a time-limited protection where there is an immediate risk of significant harm. Crucially, cohabitants who do not satisfy the property test for a Barring Order are eligible to apply for this order provided they have lived in an intimate and committed relationship with the respondent prior to their application (Section 9(1)(a)).

 

If you have any query of a family Law nature please contact Brendan Dillon on 01 2960666.

Minister seeks to take Divorce out of the Constitution

Minister seeks to take Divorce out of the Constitution

 

The Minister for Arts Josepha Madigan who is an experienced Family Law Solicitor had previously sought all parties support for a change to the Constitutional requirement that parties must be living separate and apart for four years before they can apply for a Divorce. The proposal was to reduce this waiting period for Divorce from four years to two.

 

The Minister is now seeking all party support to repeal Article 41.3.2 in its entirety on that basis that Divorce would be dealt with by way of legislation only.

 

Only time will tell whether this significant change to the manner in which Divorce is dealt with in this country will be received. Even if it does not receive all party’s support it is hoped that the time frame for allowing parties to apply for a Divorce will go ahead next May as proposed and reduce the time frame from 4 years to 2 years.

 

If you require any information or advice in any Family Law Matter please do not hesitate to contact Brendan Dillon at 01-2960666 or BrendanDillon@Dillon.ie

Changes in Personal Injury Awards

 

Changes in Personal Injury Awards

 

The Government set up a Personal Injuries Commission some time ago and it second a final report issued in September. This will establish a Judicial Council which will establish guidelines for Judges as to the nature of personal injury awards to be made.    This is to address the uncertainty which exists at present in relation to the award of damages for personal injury claims.

 

If you require advice in relation to any of the topics or indeed any other legal topics, please do not hesitate to contact on 01 2960666 or info@dillon.ie.