Setanta Solicitors

Are Employees Entitled to Legal Representation at Disciplinary Hearings?

kevin — Wed, 15 Oct 2025 21:51:48 +0000

A frequent issue that arises in practice is the right to legal representation at workplace investigations and disciplinary hearings.

It is typical for an employee to have the right to be accompanied by a colleague or a trade union representative but the right or other wise to legal representation has been canvassed in the Supreme Court in McKelvey v Iarnród Éireann (2019).

Background to Case

Mr McKelvey was employed by Iarnród Éireann and was subject to disciplinary hearings in relation to irregular purchases on a company fuel card. Mr McKelvey requested legal representation for his disciplinary hearings. but Iarnród Eireann denied this request.

Iarnród Éireann’s Disciplinary Code only allowed an employee to be represented in disciplinary hearings by a fellow employee or trade union representative. This was ostensibly put forward on the rationale that the persons involved will all have a similar level of competence, as they are all aware of the ongoings within their place of employment.

Mr McKelvey sought to bring an injunction in the High Court against these disciplinary proceedings on the basis that he should be entitled to legal representation.

Journey through the Superior Courts

In an unreported judgement, the High Court reached the conclusion that Mr McKelvey was entitled to legal representation in his disciplinary hearing with Iarnród Eireann.

The Court of Appeal reversed the decision of the High Court. The case was then appealed to the Supreme Court, as it was considered to be a matter of general public importance.

Decision of the Supreme Court

In the Supreme Court, Chief Justice Clarke upheld the decision of the Court of Appeal that persons were not automatically entitled to legal representation in employment situations.

He based his decision of the case Burns v Governor Castlerea Prison, where the same question was raised. The point was made that no person is entitled to legal representation in disciplinary hearings unless, “in all circumstances it would be required by the principles of constitutional justice.”

Judgement of Mr Justice Clarke, Chief Justice

Legal Principles

In Burns v Governor of Castlerea Prison, it was held that there was no entitlement to legal representation in disciplinary hearings, unless in certain circumstances where, the process is producing a completely unfair outcome for that person.

Geoghegan J in the Burns case set out a 6 point test that may allow entitlement to legal representation:

“The seriousness of the charge and the potential penalty;
Whether any points of law are likely to arise;
The capacity of a particular prisoner to present his own case;
Procedural difficulty;
The need for reasonable speed in making the adjudication, that being an important consideration;
The need for fairness as between prisoners and as between prisoner officers.”

The court will only intervene in disciplinary hearings if the legal representation is required due to the above factors.

In Burns, Geoghegan states that is “it is wholly undesirable to involve legal representation unless in all the circumstances it would be required by the principles of constitutional justice.” This falls in line with the WRC Code of Practice.

Chief Justice Clarke emphasised that legal representation may only be allowed if it is necessary to ensure a fair legal process. He made it clear that the legal representation is not allowed if it is only adding some value to an already fairly followed disciplinary hearing. It is only permitted when the person is not being represented fairly within their disciplinary hearing.

He also mades the point that disciplinary processes should not be treated as a criminal trial. It is, however, essential that the person subjected to the disciplinary hearing is given the opportunity, along with their trade union representative to challenge the evidence issued at the hearing. In Mr McKelvey’s situation, Chief Justice Clarke was confident that there are no difficulties in law or complicated facts. Therefore, there was no need for him to have legal representation.

Conclusion

The principle as set out does not disentitle legal representation. It will be permissible where it is necessary to ensure a fair procedure and outcome.

Section 42 of the Industrial Relations Act 1990 sets out a code of practice on disciplinary proceedings.

An employee has the right to know the allegations of which they are accused.
An employee has the right to respond to and challenge any of the allegations.
They have the right to be represented but the code does not mention any right to legal representation.
This is the code of practice the WRC follows.

It is important to note that the decisions in Burns and McKelvey relate to the right to be accompanied by a legal representative in a hearing, and not to the right to seek legal advice to assist you with a disciplinary matter. Again, we have seen in practice employers seek to ignore solicitors’ correspondence and to seek to communicate with the employee solely. The WRC in stated decisions have adopted a dim view of such practices. Being excluded from a meeting and being excluded from being represented in correspondence are distinct matters.

It also does not stop an employer at their discretion allowing a legal representative to attend a hearing.

If you are going through a disciplinary or grievance procedure at work, Setanta Solicitors can assist. Please contact a member of our team to book a consultation with one of our specialist Employment Law solicitors (info@setantasolicitors.ie).

Note: This blog post is for information purposes only and does not constitute legal advice.

Book a Consultation

Enter your details below and we will contact you about your consultation.

[contact-form-7]

The post Are Employees Entitled to Legal Representation at Disciplinary Hearings? appeared first on Setanta Solicitors.

Professional Negligence

kevin — Mon, 13 Oct 2025 12:32:31 +0000

Professionals owe both contractual duties and a duty of care to their clients. In Ireland, a professional negligence claim arises when a professional breaches the duty of care owed to a client, resulting in loss or damage. Such a breach may occur if the professional fails to fulfil their responsibilities, whether by providing incorrect advice, not following instructions correctly, or making errors in legal documents. It is important to note that claims must be brought within 6 years of the date the breach occurred.

Elements of a Claim

For a professional negligence claim to succeed, a claimant must demonstrate:

The professional owed them a duty of care;
This duty of care was breached;
Actual financial loss was suffered because of the breach.

The burden of proof rests with the claimant in these circumstances.

Key Elements of a Professional Negligence Claim

Existence of a Duty of Care

The professional must owe a duty of care to the claimant. This duty arises when the law recognises that one party has a responsibility towards the other. This is established by the existence of a contractual or professional relationship.

Standard of Care

The standard of care expected is that of a reasonably careful member in that profession. In Roche v Peilow[1], the Supreme Court confirmed that compliance with usual professional standards is an important factor when assessing if a professional has met the required standard of care. If a professional can show that they followed what is normally done in their profession, they may not be held liable for professional negligence.

Breach of Duty

The claimant must prove the professional breached the standard of care of a competent practitioner in their field. This is judged against the standards of a reasonable, competent professional in that field.

Causation

In a professional negligence claim, it is not enough to show that the professional just made a mistake. The client must also prove that the professional’s mistake caused the harm. The claimant must prove that, ‘but for’ the professional’s mistake, the loss would not have occurred. If the loss would have happened anyway, the claim will likely fail.

Loss or Damage

The client must have suffered actual reasonably foreseeable harm or financial loss as a direct result of the professional’s conduct. The client must demonstrate that if the professional had not breached the standard of care, the loss or harm would not have happened.

[1] Roche v Peilow [1986] ILRM 189 (SC

Defences

A professional may defend a professional negligence claim by establishing that one or more elements of negligence were absent.

Contributory Negligence

The defence of contributory negligence applies when the client has contributed to their own loss. After suffering a loss, a claimant is expected to act reasonably to mitigate or reduce further harm. Failure to do so can reduce the damages awarded.

The burden of proving that a claimant has failed to take reasonable steps to reduce their losses lies with the professional.

To succeed, the professional must demonstrate:

The claimant could have taken reasonable steps to reduce the loss;
The claimant unreasonably failed to do so;
This failure caused avoidable or additional losses.

This arose in the case of Conway v Irish National Teachers’ Organisation[2], where the court found a failure to mitigate when the claimant, who was dismissed from their job, failed to seek alternative work.

If the professional can prove that the claimant would have acted the same way, regardless of the advice given, their liability may be negated.

[2] Conway v Irish National Teachers’ Organisation [1991] 2 IR 305.

Expert Opinion

Expert opinions are often sought to assess whether the professional met the required standard of care. Experts prepare reports which may be provided as evidence in court, and they may be called to give oral testimony.

Alternative Dispute Resolution (ADR)

To avoid costly litigation, professional negligence claims often use ADR methods such as mediation, adjudication and arbitration.

Frequent Professional Negligence Claims against Solicitors

Solicitors could find themselves being sued for professional negligence in several instances. Understanding the common pitfalls can assist both clients and solicitors be aware of the risks involved.

Giving Advice

A solicitor may be liable if they give incorrect advice on a clear and established point of law. If the law is more complex, the advice provided may not lead to liability.

Breach of a contractual obligation may give rise to a claim for breach of contract, rather than negligence.

Failing to give advice

Solicitors may be held liable for failing to provide relevant and timely advice, especially when the advice is critical to the client’s decision-making. This also includes failing to make appropriate enquiries that would have revealed important information.

Negligence in Litigation

If a solicitor fails to commence proceedings within the statute of limitations, they may be held liable for professional negligence.

Probate Matters

Many claims arise from mistakes in probate. A solicitor may be held liable for failing to properly administer an estate, or for failing to draft or protect a will. These oversights can lead to delays and financial losses for beneficiaries.

A Solicitor’s Undertaking

Undertakings are a common source of professional negligence claims, and solicitors must exercise extreme care when giving them. An undertaking is a formal promise by a solicitor to another party, often to another solicitor or financial institution, to perform a specific task on behalf of their client. Undertakings include holding funds on trust or discharging a mortgage.

Buying and Selling Property

Conveyancing is a frequent area where professional negligence claims arise. Mistakes such as losing title deeds, failing to advise clients about planning permission or neglecting to register charges on a property with the Land Registry can cause severe financial harm. For example, if a solicitor misplaces the title deeds for a property being sold, the client may experience serious delays or even lose the opportunity to purchase their next home.

If you have any issue as to how professional negligence could affect you or your company, or how future changes will, please do not hesitate to contact Setanta Solicitors (info@setantasolicitors.ie).

Note: This blog post is for information purposes only and does not constitute legal advice.

Book a Consultation

Enter your details below and we will contact you about your consultation.

[contact-form-7]

The post Professional Negligence appeared first on Setanta Solicitors.

Debt Collection and Enforcement Proceedings

kevin — Thu, 28 Aug 2025 14:54:42 +0000

If a Creditor is owed money, they can request that money, from their Debtor. A creditor should not harass or intimidate the Debtor in pursuit of a debt. Creditors who do so may be exposed to criticism which could undermine their recovery.

The Courts are available to a Creditor seeking repayment. Generally a creditor has six years to enforce a contractual agreement from the date of the contract.

Consumer Credit legislation

Consumer Credit Legislation exists in Ireland. The main legislation is The Consumer Credit Act 1995 and the European Communities (Consumer Credit Agreements) Regulations 2010.

This is a law designed to protect consumers. It regulates certain agreements such as hire-purchase agreements, and other credit related services. It is regulated by the Central bank of Ireland. There is a Director of Consumer Affairs to enforce the rules.

Court Procedures

Court procedures differ depending on the Court.

In the District Court if the amount at issue is under €15,000,
In the Circuit Court if the amount at issue is under €75,000,
In the High Court if the amount at issue is over €75,000.

Judgment

If successful, a Creditor obtains a judgment in their favour.

Enforcing a Judgment – Types of Enforcement

Statute of Limitations for enforcement of a judgment.

Creditors have 12 years from the date of a judgment to enforce the judgment.

1. Registration of a judgment

A Creditor can register a judgment in the Court Office. Judgments from the District Court, the Circuit Court and the High Court may all be registered. Registering a judgment does not directly enforce a judgment. It publicises the fact that there is a judgment registered against a Debtor. The Debtor may find it difficult to borrow once a judgment is registered and it will appear in searches against that Debtor.

Lists of judgments are published by credit reference agencies (for example, in Stubbs Gazette and some newspapers).

Before registering a judgment, the Creditor must inform the Debtor that they intend to register a judgment and give the Debtor an opportunity to pay the debt subject to the judgment.

2. Execution against goods

Execution against goods is one of the main ways of enforcing a judgment. A Creditor may direct the Sheriff or County Registrar to seize the Debtor’s goods and sell them in order to satisfy the debt.

In the High Court, the order directing the seizure of goods is known as an order of “fieri facias” or “fifa”,
In the Circuit Court, the order is known as an execution order against goods,
In the District Court, the court’s judgment or decree itself is sent to the Sheriff or County Registrar for execution.

3. Instalment orders

Instalment orders are governed by the Enforcement of Court Orders Acts 1926 – 2009 and Order 53 of the District Court Rules.

A Creditor may apply to the District Court, in the district where the Debtor lives, to have the Debtor attend the Court in order to establish their means. The Judge may then order payment in full or payment in instalments, taking account of the Debtors’ financial circumstances.

4. Failure to meet an Instalment order

If the Debtor fails to pay an instalment order, the Creditor may seek a committal order. This is an application to Court to commit the Debtor to prison.

5. Attachment of earnings

Attachment of earnings is used only in family law contexts They apply to orders of maintenance of spouses and children.

6. Judgment mortgage

The Creditor may register a charge against a property owned by a Debtor. A Debtor will have to pay off the judgment mortgage when the property is sold.

7. Attachment of a debt/Garnishee

If a Debtor owes money to a Creditor, and a third party owes money to a Debtor, then the Creditor may apply for an order which assigns to the Creditor that third party obligation to the benefit of the Creditor. This is known as a garnishee order. Generally, it is used only in cases where there are no goods to be seized to satisfy the judgment.

8. Appointment of a Receiver

A Receiver may be appointed over assets or over future income such as rents, income of a trust fund or a pension. The law in this area is complex but it seems that a Receiver cannot be appointed over future earnings.

9. Bankruptcy

If the Debtor is unable to pay their debts, they may petition the High Court to be declared bankrupt. Alternatively, the Creditor may apply to have the Debtor declared bankrupt if certain conditions are met.

If you have any queries as to enforcing a debt or are subject to an enforcement application please do not hesitate to contact Setanta Solicitors (info@setantasolicitors.ie).

Note: This blog post is for information purposes only and does not constitute legal advice.

Book a Consultation

Enter your details below and we will contact you about your consultation.

[contact-form-7]

The post Debt Collection and Enforcement Proceedings appeared first on Setanta Solicitors.

Shareholders’ Agreements

kevin — Tue, 12 Aug 2025 16:56:19 +0000

What is a Shareholders Agreement?

Companies are owned by shareholders. Shareholders have a percentage of the issued shares. The shareholders vote in proportion to their shareholding. In business it is common to have more than one shareholder. However, if the shareholders disagree it is very important to have a shareholders agreement to reduce any disputes. It is advisable to set this up early (in or around the incorporation of the company) when the parties are optimistic and will be in a relaxed position to agree the terms of business between them.

A Shareholders’ agreement is a contract which creates rights and obligations for shareholders beyond the basic rights in company law or in a company’s constitution and it is designed to safeguard the rights and interests of the shareholders within a company.

This agreement is legally binding and applies only to the parties involved, creating a formal contractual relationship between them. The parties to a shareholders’ agreement may be all a company’s shareholders. The company itself is often joined as a party to the agreement.

Multiple Shareholders Agreements

A company can have more than one Shareholders’ agreement in place at the same time. In such circumstances, the agreements should not conflict with each other.

The content of a shareholders’ agreement changes considerably depending on the nature of the company. A shareholders’ agreement for a venture capital backed start-up company is very different to a shareholders’ agreement for a joint venture company.

What is the difference between a Shareholders’ Agreement and company by-laws?

A Shareholder Agreement is a private contract among the shareholders of a company and its content can be kept confidential. On the other hand, the Company Constitution is a public document that outlines the broader internal rules and regulations of a company and applies to everyone associated with the company. Unlike company by-laws, which are mandatory under the law, the Shareholders’ Agreement is an optional agreement entered into between some or all of the shareholders in a company.

Aim of a Shareholders’ Agreement?

The goal of a Shareholders’ Agreement is to provide a framework for decision-making, protect minority shareholders, regulate the transfer of shares, and ensure the smooth operation of the company.

When to create a Shareholders’ Agreement?

The Shareholders can enter into this Agreement at any time before or after the commencement of the Company.

What can be the duration of a Shareholders’ Agreement?

There is no fixed duration for the Shareholder Agreement. The duration can be fixed under the Shareholder Agreement such as for a fixed period, conditional termination, or upon closure of the company.

Who can enter into a Shareholder Agreement?

Any individual above the age of 18 years or legal entity who is also a shareholder in the company the Shareholder Agreement is related to.

Is it mandatory to have a Shareholder Agreement?

No, it is not mandatory. However, it provides clarity on the roles, responsibilities, and expectations of shareholders and helps prevent disputes in future.

What to include in a Shareholders’ Agreement?

Common rights and obligations in shareholders’ agreements include:

Shareholder investment and Director Loans
Salaries for the Shareholders if any
Provision for Dividends
Incapacity/ Probate / Legacy Clauses
the issue and transfer of shares,
the composition of the board of directors,
minority investor blocking rights,
restrictive covenants and
dispute resolution mechanisms.

A number of other clauses can also be entered into the Shareholders’ Agreement, such as:

A “First Refusal” clause:

This means that Shareholders are not allowed to sell their shares to an outsider without first offering them to the other parties involved in this Agreement.

A Drag-Along clause:

This gives majority Shareholders (a pre-determined percentage of Shareholders) who wish to sell their shares to an unrelated third-party, the right to force the remaining shareholders to sell their shares on the same terms.

A Tag-Along Rights clause:

This provides “co-sale rights” to the Shareholders. Generally, this clause is used to protect the minority shareholders of the Company. Thus, if majority shareholders sell their stake, it gives the minority shareholder the right to join the transaction and sell their minority stake in the Company.

An anti-dilution provision:

This helps protect the shareholders of a company by maintaining the size of their ownership stake in the company when new shares are issued. Without an anti-dilution clause, existing shareholders may experience a decrease in their ownership percentage and a decrease in the value of their shares.

Is it necessary to have witnesses for a Shareholders’ Agreement?

No, it is not mandatory under the law. However, having two witnesses above the age of 18 years will add to the credibility of the Shareholders’ Agreement and help in resolving the disputes in future.

Can a Shareholders’ Agreement be terminated?

Yes, a Shareholder Agreement can be terminated. The Shareholder Agreement is mainly terminated on the following grounds:

Mutual agreement between parties.
A material breach of the agreement by one or more shareholders
Dissolution of the company
Unforeseen circumstances where the agreement cannot be continued (force majeure event).

If you have any issue as to how current Media law affects you or your company, or how future changes will, please do not hesitate to contact Setanta Solicitors (info@setantasolicitors.ie).

Note: This blog post is for information purposes only and does not constitute legal advice.

Book a Consultation

Enter your details below and we will contact you about your consultation.

[contact-form-7]

The post Shareholders’ Agreements appeared first on Setanta Solicitors.

A Closer Look at the 2024 Defamation Reform Bill

kevin — Fri, 06 Jun 2025 10:24:52 +0000

A Closer Look at the 2024 Defamation Reform Bill, Which Completed the Committee Stage on April 30th, 2025.

The Defamation (Amendment) Bill 2024 represents a significant shift in Irish Media Law. As of 30 April 2025, the Bill has completed Committee Stage in Dáil Éireann, clearing a major legislative hurdle.

Despite opposition efforts to retain jury trials, an amendment to preserve them was defeated by 86 votes to 64 in the Dáil. The Bill now proceeds toward its Fourth Stage, with strong Government backing and the Minister for Justice confirming that additional reforms may yet be added.

In this article, our legal team at Setanta Solicitors will explain the significance of this reform and provide a brief overview of the debate sparked by the Bill.

Abolishing Juries; The Support and The Criticism

The most drastic reform under the 2024 Defamation Reform Bill is the abolition of jury trials in High Court defamation actions. The Bill (Section 4) proposes that all defamation actions in the High Court, and any issue of fact arising from them, be tried without a jury if they are instituted after the law’s commencement. It also explicitly amends or removes references to jury trials across the current 2009 Act^[1], signalling a complete procedural shift toward judge-only adjudication.

Under current Irish law, defamation is the only area of civil law where jury trials are still the default. Going back to 19th-century legal practice, juries have made the decisions as to whether a statement is defamatory, whether defences such as truth or malice apply, and what number of damages should be awarded. A change as radical as this took a lot of political momentum which reflects growing concern about the spiralling costs and delays of defamation litigation in Ireland.

The Law Reform Commission^[2], have argued that juries often lack the expertise needed to navigate complex defamation principles and therefore damage awards can be imprecise, inconsistent and sometimes excessive. These critics cite cases such as Leech v Independent Newspapers ^[3], where the Supreme Court overturned a jury award of €1.87 million, characterising it as disproportionate. Furthermore, the European Court of Human Rights has echoed this concern, noting that unpredictably large damages’ awards in Irish defamation cases are considered capable of having a chilling effect on freedom of expression and therefore require the most careful scrutiny.^[4]

Furthermore, concerns arise from a core feature of the jury system: the anonymity of jury deliberations. While this preserves the independence of juries, the absence of reasoned verdicts makes appellate review more difficult and can lead to inconsistency. Critics argue that this opacity has undermined the principled development of Irish defamation law.

Proponents of the Defamation (Amendment) Bill 2024 also often cite the prohibitive cost of jury trials as a key reason to remove juries from defamation proceedings. According to the Index on Censorship, a typical High Court defamation trial can cost each party between €100,000 and €500,000.^[5] Factors such as voir dire, prolonged pre-trial preparation, and multi-day jury trials undeniably contribute to inflated legal fees and pressure parties toward late-stage settlements, sometimes irrespective of a claim’s actual merits.

However, the assumption that abolishing juries will significantly reduce litigation costs is highly contestable. Rising legal costs are not unique to defamation trials but represent a systemic trend across Irish civil litigation. From personal injuries and commercial disputes to family law cases, expenses have continued to escalate even though these matters are already tried without juries. The presence of a jury, therefore, is not the primary driver of unaffordability. Indeed, this trend runs in parallel with broader government efforts to curb liability and compensation levels.^[6] A clear example is the Judicial Council’s Personal Injuries Guidelines (2021), which substantially reduced damages in personal injuries cases, yet legal costs in that field remain high. This suggests that reducing awards and removing juries may do little to alleviate the financial burdens on litigants. Instead, such measures may simply diminish access to justice without delivering meaningful cost savings.

Therefore, looking at the jury reform in Defamation cases within the trend of reducing damages and rising legal fees across civil litigation raises important questions about access to justice. While the more modest judge-decided awards may serve the State’s interest in deterring vexatious litigation, they also risk failing to recognise the full impact on genuine claimants. This tension is particularly acute in defamation, where harm often extends beyond the financial and strikes at a person’s dignity, identity, and public standing.

Beyond issues with damages, critics, including former High Court judge Bernard Barton, have labelled the change “inherently undemocratic,” arguing that the public should play a role in judging reputational harm, as it is something inherently linked to societal values.^[7] Therefore, there is genuine concern that the move may erode public trust in the fairness of defamation law. If judges alone decide what counts as reputational harm, and how much it’s worth, there may be a perceived (or real) loss of neutrality, especially in politically sensitive or media-driven cases.

Importantly, the 2024 defamation refom Bill also introduces formal alternative dispute resolution (ADR) mechanisms, encouraging pre-litigation resolution of claims outside of the courtroom, including via mediation. This echoes developments across European jurisdictions where defamation is increasingly treated as a rights-balancing issue rather than a vehicle for punitive damage. While ADR can promote efficiency and avoid adversarial courtroom battles, it also raises a deeper question: Should a person who is publicly defamed be diverted into a system designed for compromise, rather than vindication?

The Gerry Adams Case: A Timely Example of the debate

The recent High Court defamation case involving Gerry Adams highlights the issues the Bill aims to address. Adams was awarded €250,000 in legal costs and €50,000 in damages after a jury found a national broadcaster had defamed him.^[8] However, this was later subject to criticism and review, with many seeing these awards as excessive.

Critics of the current system argue that such outcomes reflect the unpredictability and volatility of jury awards, which can vary widely even in similar cases and contend that judge-led assessments would offer greater consistency, transparency, and proportionality, leading to less controversy.

However, others point out that this case, like many defamation actions, spanned multiple years, with extensive pre-trial preparation and courtroom time. Legal fees in such drawn-out cases can easily eclipse the high damages awarded, meaning that even a claimant who “wins” may do so at significant cost. From this perspective, the problem lies not with the jury, but with the structure and economics of modern litigation.

If the Bill is enacted, high-profile cases like Adams’s would no longer be subject to headline-grabbing jury awards, but instead to more modest and judicially reasoned assessments. While this may enhance predictability, it raises questions about whether such streamlined justice comes at the cost of public participation and the symbolic weight juries carry in vindicating a person’s reputation.

The Adams case underscores both sides of the reform debate: the need for greater procedural control and cost management on the one hand, and the risk of diluting the expressive, democratic function of defamation law on the other.

Other Provisions, introduced by the Bill; SLAPP Protection and Corporate Defamation Claims

While much of the discussion surrounding the bill has surrounded the reform of the jury trial, the Bill also introduces key reforms aimed at protecting public participation and reducing abuse of legal process through Strategic Lawsuits Against Public Participation (SLAPPs). These are legal threats or actions designed not to vindicate reputation but to intimidate critics, particularly journalists, NGOs, and whistleblowers.

The Bill adopts provisions from the EU’s anti-SLAPP Directive (EU 2024/1069), allowing courts to strike out clearly unfounded claims early and declare them SLAPPs where bad-faith tactics are evident, such as harassment, delay, or disproportionate claims. Further amendments are also expected as the Bill progresses to ensure full transposition of the directive, including the potential to provide for damages in favour of SLAPP targets, where they have suffered personal, reputational or financial harm due to vexatious litigation tactics.^[9]

In addition, the Bill introduces a “serious harm” test for corporate defamation claims, requiring companies to show not just reputational damage but the likelihood of serious financial loss. This test aims to act as an early filtering mechanism, preventing large commercial entities from using defamation law to suppress scrutiny or debate, particularly in cases involving journalists, consumer advocates, or campaigners.

In line with a broader emphasis on reducing adversarial litigation, the Bill introduces a measure to support alternative dispute resolution (ADR). Specifically, it provides that any time spent pursuing ADR will now be disregarded for the purpose of limitation periods under the Bill. This ensures that parties who opt for ADR are not penalised by delay in filing formal defamation actions.

Finally, the Bill addresses the increasing prevalence of online defamation and anonymity, particularly on social media platforms and comment sections. A new Section 45 of the Defamation Act will empower the Circuit Court (only) to grant identification orders, enabling the unmasking of anonymous online users where necessary.

However, the provision also contains procedural safeguards to ensure that the right to anonymity is not undermined lightly. Courts must be satisfied that the applicant has a prima facie defamation case and that the disclosure is necessary and proportionate, in line with rights under the Constitution and the European Convention on Human Rights.

^[1]The Defamation Act 2009

^[2] Law Reform Commission’s 1991 Report on the Civil Law of Defamation (LRC 38-1991) Ch 11.

^[3] Leech v Independent Newspapers [2015] IESC 79

^[4] Independent Newspapers (Ireland) Ltd v Ireland App no 28199/15 (ECtHR, 15 June 2017) para 85.

^[5] New report: Juries in defamation cases in Ireland – Index on Censorship

^[6] https://www.independent.ie/business/irish/insurance-report-shows-legal-costs-rising-even-as-awards-fall/a1794424793.html

^[7] https://www.irishexaminer.com/news/arid-41165959.html

^[8] BBC must pay €50,000 damages and €250,000 legal costs to Gerry Adams pending appeal in defamation case – The Irish Times

^[9] See Minister for Justice Helen McEntee TD Defamation (Amendment) Bill 2024: Committee Stage – Dáil Éireann (34th Dáil) – Wednesday, 30 Apr 2025 – Houses of the Oireachtas

Conclusion

With the Committee Stage complete and a Dáil vote supporting the abolition of juries, the Defamation (Amendment) Bill 2024 is on track to become law in 2025, marking a decisive shift in Irish defamation law. The abolition of juries, tighter regulation of corporate claims, anti-SLAPP protections, and expanded ADR options represent a movement aimed at modernising media law. However, whether this shift will erode or enhance public confidence in the justice system remains to be seen.

If you have any issue as to how current Media law affects you or your company, or how future changes will, please do not hesitate to contact Setanta Solicitors (info@setantasolicitors.ie).

Note: This blog post is for information purposes only and does not constitute legal advice.

Book a Consultation

Enter your details below and we will contact you about your consultation.

[contact-form-7]

The post A Closer Look at the 2024 Defamation Reform Bill appeared first on Setanta Solicitors.

Irish Whistleblowing Law After 2023: Impacts and Insights from Recent Government Reports

kevin — Thu, 22 May 2025 16:25:17 +0000

Irish whistleblowing law has undergone a significant transformation with the Protected Disclosures (Amendment) Act 2022, which took effect on January 1, 2023. These reforms have improved protections for whistle blowers and aim to increase transparency and accountability across both the public and private sectors.

These changes have also led to substantial real-world impacts. In this article, Setanta Solicitors breaks down key developments through case studies and recent reports, highlighting how the strengthened whistle blower protections are shaping workplaces and regulatory enforcement in Ireland. We’ll also examine what these changes mean for both employers and employees, whether they are handling whistleblowing claims or considering making a disclosure themselves.

The Evolution of Irish Whistle Blower Protection Framework

Background

Ireland created its first proper whistle blower protection framework with the Protected Disclosures Act 2014. This legislation aimed to encourage and protect those who speak up about potential wrongdoing in their workplace. There was then further development with the introduction of the Protected Disclosures (Amendment) Act 2022, which transposed to the EU Directive (EU) 2019/1937 into Irish law. This further improved the protections available to whistle blowers and created new obligations for employers.

Key Changes in the 2022 Amendment Act

Introduction of the Office of the Protected Disclosures Commissioner

A key reform introduced by the 2022 Act was the creation of the Office of the Protected Disclosures Commissioner (OPDC). This new body plays a vital role in ensuring that protected disclosures are directed to the appropriate regulatory authority or the most competent entity to take action. This was part of a larger effort to improve the efficiency and effectiveness of whistle blower protections.

Expanded Definition of “Worker”

The 2022 Amendment Act expands who qualifies for whistle blower protection. While the 2014 Act already defined “worker” broadly to include employees, contractors, and agency staff, the 2022 Act expanded this further to encompass:

Trainees and volunteers
Shareholders
Individuals who acquire information on wrongdoing during recruitment processes
Board members and those in administrative or management positions
Former workers

This expansion sought to recognise that wrongdoing can be identified by individuals in various roles, outside of just traditional employees. In other words, Ireland’s approach now recognizes that all individuals in a work-setting can whistle blow and deserve adequate protection so they can voice their concerns safely.

Relevant Wrongdoings

Under the legislation, a “relevant wrongdoing” that can be the subject of a protected disclosure includes:

Criminal offenses
Failures to comply with legal obligations
Miscarriages of justice
Endangerment of health and safety
Environmental damage
Unlawful or improper use of public funds
Acts of oppression, discrimination, or gross negligence
Concealment of any of the above

Clarifying Personal Grievances vs. Whistleblowing

One notable refinement in the 2022 Act was increased clarity regarding the distinction between protected disclosures and personal grievances. Although the 2014 Act had excluded personal grievances from the scope of protected disclosures, this exclusion had faced criticism from the Supreme Court in Baranya v Rosderra Irish Meats Group Ltd for lacking clarity. In particular, grievances raised in the workplace regarding contractual claims were expressly exempted from the 2014 Act, but crucially this did not extend to cover matters of personal health. Per Charleton J’s judgement, this led to the protections of the Act being ‘routinely applied to those involved in simple disputes in the workplace which have no public involvement and which may not even extend to the revelation of issues whereby others working on the same task may be better protected.’

In response to this call for clarification, the 2022 Act explicitly excludes matters relating exclusively to interpersonal conflicts between a reporting person and another worker, as well as complaints by a reporting person exclusively concerning themselves in relation to their employer. Such matters are directed toward standard grievance procedures rather than protected disclosure channels.

This distinction is important but still requires careful judgment, as if a complaint potentially affects others beyond the reporting person, it may still qualify as a protected disclosure.

The Impact of Irish Whistleblowers Law Changes in Ireland

1. Increased Use of Whistleblowing Channels across the Public Sector

Public bodies received 1,162 protected disclosures in 2023 under the updated law, according to the Department of Public Expenditure’s January 2025 report. This volume of reports suggests high levels of awareness and use of whistleblowing mechanisms across Ireland’s public sector.

2. Significant Financial Recoveries

One of the most striking findings was the recovery of €3.7 million for the government in 2023 due to whistle blower reports. This sum stemmed from a single investigation within the HSE, underscoring the financial benefits of effective whistleblowing mechanisms in uncovering mismanagement, fraud, or regulatory breaches.

3. High Rate of Actionable Reports in the Public Sector

Out of 1,162 reports, against public bodies, 734 required further follow-up, and 161 progressed to formal investigations or proceedings. These figures suggest that a significant portion of disclosures contain credible allegations that warrant regulatory intervention.

4. Preference for External Reporting

Another key takeaway is that most whistle blowers within the public sector prefer external reporting channels. While only 173 reports were made internally to public bodies, 989 were submitted externally to government ministers, senior officials, prescribed persons, or handled by the OPDC. This trend raises concerns about trust in internal reporting mechanisms and suggests that many whistle blowers may fear retaliation or lack confidence in their employer’s response.

5. Sectoral Trends in Whistleblowing Reports in the Public Sector

The distribution of reports varied significantly across regulatory bodies:

Health Information and Quality Authority (HIQA): 373 reports
Food Safety Authority of Ireland (FSAI): 89 reports
Central Bank of Ireland: 68 reports

These figures indicate heightened whistleblowing activity in sectors with stringent regulatory oversight, particularly in healthcare, food safety, and financial services.

6. Rising Legal Cases and Complaints, across all sectors

The Workplace Relations Commission (WRC) reported a 201% increase in whistleblowing complaints in 2023, with 301 cases compared to just 96 in 2022. This rise suggests greater awareness of legal protections and a potential increase in workplace issues being reported.

Practical Implications for Organisations

1. Strengthening Internal Reporting Mechanisms

Given the strong preference for external reporting, organisations should evaluate their internal whistleblowing channels and address possible barriers to their use. Key strategies could include:

Conducting anonymous employee surveys to assess confidence in internal reporting
Strengthening anti-retaliation measures
Communicating whistleblowing protections clearly to staff

2. Sector-Specific Vigilance

Organizations in highly regulated sectors (such as healthcare, finance, and food safety) must be particularly diligent in ensuring their whistleblowing procedures meet compliance requirements and encourage safe reporting.

3. Fostering a Speak-Up Culture

To encourage internal reporting and reduce reliance on external channels, organizations should:

Provide regular whistle blower training sessions
Ensure senior leadership openly supports speaking up
Monitor and address any trends in retaliatory behaviour
Communicate the outcomes of investigations to demonstrate reports are taken seriously

Potential Challenges and Concerns for Whistle blowers

1. Uncertainty Around the Grievance v. Protected Disclosure Distinction

In some cases it may still be difficult for whistleblowers to predict whether their complaint will be found to be a protected disclosure or dismissed as a personal grievance, even after the clarifications made in the 2022 Act. This lack of clarity could deter individuals from coming forward with genuine concerns.

2. Compensation Caps for Whistle blowers

Whistle blowers facing retaliation can be awarded compensation up to five years’ pay for employees or €15,000 for non-employees. Critics such as Lauren Keirans argue that this cap is inadequate given the career risks involved in whistleblowing.

Conclusion

In summary, Ireland’s strengthened whistle blower protection framework represents a major step forward in promoting transparency and accountability.

However, the impact of the changes remains to be seen and navigating the changing legal landscape remains challenging for both employees and employers. For expert guidance on whistle blower law compliance, workplace policies, or legal representation, contact Setanta Solicitors today and our team will provide the legal support you need.

Book a Consultation

Enter your details below and we will contact you about your consultation.

[contact-form-7]

The post Irish Whistleblowing Law After 2023: Impacts and Insights from Recent Government Reports appeared first on Setanta Solicitors.

Irish Law Awards 2025

kevin — Tue, 20 May 2025 11:22:48 +0000

Irish Law Awards 2025. Setanta Solicitors are delighted to be nominated as a finalist in:

Employment Law Team of the Year
Lawyer of the year (Setanta Landers)
Sole Principal of the year (Setanta Laaders)

https://irishlawawards.ie

In their 13th year, these awards aim to identify, honour, and publicise outstanding achievements, while also recognising those who have dedicated their lives to serving in the legal profession. This annual event is designed to recognise excellence in the legal profession of Ireland, commending the achievements of lawyers.

2025 LEAP Irish Law Awards gala awards ceremony will take place on the 6th of June in the Clayton Hotel, Burlington Road, Dublin, and wil be hosted by Anton Savage

Book a Consultation

Enter your details below and we will contact you about your consultation.

[contact-form-7]

The post Irish Law Awards 2025 appeared first on Setanta Solicitors.

Planning Enforcement and Timelines for Actions

kevin — Fri, 31 Jan 2025 16:29:03 +0000

A planning enforcement action may be taken against unauthorised development. Enforcement Action is most commonly taken by local authorities such as County Councils but can be taken by any person under Section 160 of the Planning and Development Act 2000 (soon to be section 351 of the Planning and Development Act 2024). Enforcement action under Section 160 is more commonly known as a planning injunction.

Unauthorised development is defined in the Planning Acts as the carrying out of any unauthorised works or the carrying out of any unauthorised use for which planning permission is required.

Planning Enforcement action is taken to

prevent an unauthorised development or
use or
to return the land to its original state.
It is an offence to carry out any unauthorised development under Section 151 of the 2000 Act.
Enforcement action cannot be taken against development which is considered ‘exempt’ under Section 4 of the 2000 Act.

STEP 1 – WARNING LETTER

The first step to taking planning enforcement action for the local authority is to issue a warning letter.
Where a complaint in writing in relation to unauthorised development is made to the local authority, or if the local authority becomes aware of any unauthorised development, they must issue a warning letter to the owner or occupier of the land or any other person carrying out the development.

If the development is trivial or minor in nature, the local authority may, in their discretion, decide not to issue the warning letter.
If the warning letter is being issued on foot of a written complaint, the warning must be issued within 6 weeks of the complaint.

The landowner/occupier/person carrying out the development has 4 weeks to make submissions or observations in relation to the warning letter.

The local authority does not have to issue a warning letter and may proceed directly to enforcement action under section 153(5) of the 2000 Act in cases of urgency. However, where the local authority has commenced with a warning letter, it must follow the statutory timelines set out in the Act.

STEP 2 – ENFORCEMENT NOTICE

Where a warning letter has issued, the local authority has 12 weeks to decide whether to issue an enforcement notice or make an application for an injunction under section 160.

The local authority must take into consideration any representations and submissions received in relation to the development.

The enforcement notice takes effect from the date it is served on the owner/occupier/person carrying out the development.

The planning enforcement notice will require that steps be taken within a specified period. This period cannot be longer than 6 months.

The enforcement notice must contain certain information as set out in the 2000 Act.

If, after serving the enforcement notice, the local authority becomes aware of another person involved in the unauthorised development, the notice must be served on the new person and the time period for compliance must be extended as necessary to a maximum of 6 months.

The enforcement notice ceases to have effect 10 years after the date of service.

STEP 3 – COURT ENFORCEMENT

If the planning enforcement notice is not complied with within the period specified, the person on whom it is served may be prosecuted. Any person who knowingly assists or permits a failure by another to comply with the enforcement notice may also be prosecured. This offence is criminal in nature.

The local authority may bring summary proceedings in the District Court on foot of failure to comply with the enforcement notice.

Summary proceedings must be commenced within 6 months of the date the offence was committed or within 6 months of the date there was sufficient evidence to justify proceedings, whichever is later.

Where the offence is committed by a body corporate and it is proven that the offence was committed with the consent/approval of a director, manager, secretary, member or other officer of the body corporate, that person may be prosecuted personally.

SECTION 160 PLANNING INJUNCTION

Where unauthorised development has been, is being or is likely to be carried out, an application can be made by any person (whether or not they have an interest in the land) to the High Court or Circuit Court to require the person carrying out the development to do or cease to do anything the Court considers necessary.

The Court may order that the unauthorised development is not carried out, that land is restored to its original condition (as far as is practicable) or that the development is carried out in conformity with any permission.

An application under Section 160 must be made within 7 years of the date of commencement of the development or use.

STATUTE OF LIMITATIONS – THE SEVEN YEAR RULE

No enforcement action (i.e. warning letter, enforcement notice or court proceedings) can be taken against a development which commenced seven years prior. (Section 157)

CHANGES PROPOSED BY THE PLANNING AND DEVELOPMENT ACT 2024

Enforcement procedure is largely the same under the 2024 Act as in the 2000 Act but some additions have been made:

The new Act specifically makes provision that the warning letter shall be withdrawn if no enforcement notice is served after the expiry of 12 weeks, however this does not preclude the service of a subsequent warning letter or an urgent enforcement notice.
The new Act makes provision for the withdrawal of an enforcement notice by virtue of a grant of permission or other compelling reasons, however a withdrawal is without prejudice to the right of the local authority to recover their costs and expenses.
The local authority may provide an extension of time to comply with the enforcement notice at the request of the person served with the notice if they are satisfied that the person has taken all reasonable steps to comply with the enforcement notice, that the notice will be complied with in a reasonable period and the extension is reasonable in all the circumstances.

The provisions of the 2024 Act relating to enforcement have not yet commenced. The 2000 Act will continue to apply until repealed.

The above is not legal advice and is for informational purposes only. We do not accept any liability for any reliance on this article and legal advice should be sought in all circumstances.

Please email info@setantasolicitors.ie or 01 215 0168 to book a consultation.

Book a Consultation

Enter your details below and we will contact you about your consultation.

[contact-form-7]

The post Planning Enforcement and Timelines for Actions appeared first on Setanta Solicitors.

Rewind the clock – Proposed new legislation extends time limits for equality claims

kevin — Wed, 29 Jan 2025 20:07:29 +0000

The Equality (Miscellaneous Provisions) Bill 2024 was published by the Department of Children, Equality, Disability and Youth on 15 January 2025. This complements the Maternity Protection (Amendment) (Miscellaneous Provisions) Bill which appeared on the Legislation for priority publication in the 2024 Autum Session.

The Bill is at a very early stage and will have to take its place in the legislation programme.

However, it is worth noting, even at this stage amendments contemplated by the Bill.

1. The Equality (Miscellaneous Provisions) Bill 2024. Employers will be obligated to provide salary ranges in job advertisements or prior to an interview.

This pay transparency mechanism gives effect to the EU Pay Transparency Directive seems to have followed suit from various US states that had enacted similar legislation in September 2023, such as New York, Washington and California.

It may be that this requirement could be undermined in practice, as one could assume recruiters and employers will use the required pay scale as a means of potentially softening the effect of the aim of the legislation. For example, a job which may be budgeted for €50,000 may be advertised as being up for grabs for €50,000-€100,000 per annum, “depending on experience”, of course. This marketing probe seems to be a common practice in the US recruitment sphere.

2. Employers must not ask interviewees about their current and previous rate of pay.

Employers are now not in a position to ask potential employees what their current salary is, or what it had been, in a previous role during salary negotiations. Proposed in The Equality (Miscellaneous Provisions) Bill 2024. This mechanism should prevent employees from being put in an awkward position whereby they could under pitch themselves in such negotiations.

3. Extension of time for bringing a claim under the Employment Equality Act.

Currently an adjudication officer in the WRC only has the jurisdiction to hear an employment claim brought within 6 months of a discriminatory event in the workplace (save for exceptional circumstances).

This time limit is particularly tight for an applicant who has emotionally suffered as a result of the discriminatory event, who may not be aware they are against the clock to seek redress. The 6-month period does not give applicants sufficient grace to seek legal advice, particularly in situations where employees are out of work because of the contents on their claim, where legal costs can be a deterrent for potential claimants and their focus may be on stabilising their employment before turning their attention to any potential claims.

The applicable time limit for bringing a general claim under the Equality Act has been extended to 12 months, which is a welcomed development. Therefore, for example, if you were dismissed on the basis of your religious beliefs, you are now still entitled to bring a claim up to 12 months from the date of your dismissal.

4. Extension of time for bringing claims under the Maternity Protection Act

Under Section 41(7) (c) of the Workplace Relations Act 20, an adjudication officer does not have the authority to hear a claim after the expiration of 6 months from when an employee

Has notified their employer they are pregnant
Has given birth
Has ceased breastfeeding

Under the Amended Employment Equality Act, an additional 6 months have been provided to bring a claim under the Maternity Protection Act.

This extension is more nuanced than the extension afforded under the Equality Act as the time limit to bring a claim is now 12 months from when an employee

Has notified their employer they are pregnant
Has given birth
Has ceased breastfeeding

Therefore, an employee may be entitled to bring a claim under the Maternity Act 2 years after raising her pregnancy with her employer if she had been breastfeeding 12 months before that claim had been raised. This is a previous recommendation from the September 2024 joint committee on Children, Equality, Disability, Integration and Youth that has now become law, and which cured an anomaly that a mother could be breastfeeding or denied breastfeeding and be out of time to take a discrimination claim.

It is the proposed position a claimant mother may bring a claim under the Maternity Act 2 years after notifying her employer that she was pregnant. But a claimant can only raise claims in respect of matters that happened within the 12 months of that claim being raised.
For example, if an expectant mother notified her employer that she was pregnant in January 2025 and on her return to work after six months is denied pregnancy related accommodations she is still within time (15 months after notifying of pregnancy) and the act of discrimination occurred within the last 12 months.

As a further example, if, after returning from Maternity leave she was placed in a completely different role than she had been in prior to her Maternity Leave, she will have 12 months from the date she returned to raise a claim.

All in all, it is still preferential to raise a claim as soon as possible to ensure one’s claims within the statute. It is possible to raise multiple claims on multiple WRC forms, therefore there is no need to wait up to the 12-month mark to file your claims. It is a cut off point and not a suggested timeline to raise complaints.

This development is welcomed as it still affords claimants, during one of the transformative and emotionally trying times in their lives to bring a maternity discrimination claim under far less time pressure when they may have more space to consider their treatment.

5. The redefinition of “victimisation”.

Under The Equality (Miscellaneous Provisions) Bill 2024, “victimisation” has been inserted as a statutory tort in situations where one raises a claim under the Equality Acts or assists a claimant in bringing a claim under the Acts.

The amendment provides for further redress where a claimant makes a claim under the Equality Acts, and they are subsequently victimised for raising that claim. If such a situation does arise, a claimant should file a separate claim after that victimisation took place, having raised a claim under the Equality Acts.

Witnessing or attending a claimant in a WRC hearing when one is still an employee of the Respondent employer is now expressly protected. Where a witness is victimised for attending a WRC hearing in support of a colleague, such a situation amounts to victimization under Section 11A (b) of the Equal Status Act 2000. If an employee is victimised for the above reasons they may raise their own claim for victimisation in the WRC.

Please be aware that we offer a free consultation in Setanta Solicitors for women who believe they may have been discriminated by their employer on the basis of their pregnancy/ maternity leave.

Please email info@setantasolicitors.ie or 01 215 0168 to book a consultation.

Book a Consultation

Enter your details below and we will contact you about your consultation.

[contact-form-7]

The post Rewind the clock – Proposed new legislation extends time limits for equality claims appeared first on Setanta Solicitors.

Performance Improvement Plans as precursors to termination offers held to be grounds for Constructive Dismissal

kevin — Fri, 01 Nov 2024 12:37:00 +0000

It has been the experience of this office, of a number of Irish employers adopting performance improvement plans (PIP) and whilst employees are in the currency of performance improvement plans making termination offers to the employees. The WRC has helpfully clarified that such circumstances can be grounds for a constructive dismissal claim in a case skilfully advanced by Mr Conor McCrave of Setanta Solicitors.

Danica Gutierrez -v- Cafico Corporate Services Limited

https://www.workplacerelations.ie/en/cases/2024/october/adj-00050330.html

In a recent decision in the WRC Adjudication officer Eileen Campbell set out the law on Constructive Dismissal and held that where an employee had attended a meeting after a PIP had been activated and offered a redundancy that was held to be behaviour that went to the heart of the contract such as it was reasonable for the employee to treat the contract as repudiated to entitle them to a claim for constructive dismissal. The relevant extract is below followed by the larger extract of the full case.

I find that it was reasonable for the Complainant to terminate her employment because of the Respondent’s conduct in and around its decision to offer her an exit package three working days after she has been placed on a PIP in an action taken by the Respondent which any reasonable person would consider to be so serious or significant that it goes to the root of the contract of employment between the employer and employee. I find the Complainant has met and the Respondent has breached the contract test. For completeness I find the Complainant has met and the Respondent has breached the reasonableness test also

CA-00061841-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties. I have carefully considered the oral evidence adduced at hearing. I have carefully considered the caselaw to which I have been directed by the parties. I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

I have two versions of events before me that are entirely at odds in most respects having regard to what was said at the meeting that took place on 3 October 2023 attended by the Complainant, ROR and ML.

The fact that the meeting did take place is the singular fact that is not in dispute.

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances. The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing. Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities. In my decision-making role I am constrained both by statute and by precedent.

The Relevant Law:

Constructive dismissal is included in the definition of “dismissal” at section 1(b) of the Acts, as follows:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”

There are therefore two situations envisaged in which a resignation may be considered a constructive dismissal; where the employer’s conduct amounts to breach of contract or repudiation of the contract (the “contract test”) or is such in relation to the employee that it was reasonable for the employee to resign (the “reasonableness test”).

The Contract Test

The accepted statement of this test is by Lord Denning MR in Western Excavating v Sharp [1978] ICR 221 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. … [T]he conduct must … be sufficiently serious to entitle him to leave at once …”

The Reasonableness Test

Constructive dismissal may arise where the employer’s conduct was such that it was reasonable for the employee to terminate his or her employment. Lord Denning MR addresses this concept in the same case as follows:

“It is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving.”

It is well-established in this context that there is a reciprocal duty on an employee to act reasonably in terms of affording an employer the opportunity to address any issues. This is clearly set out in Reid v.Oracle EMEA Ltd [UD1350/2014] where the EAT stated:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.” [emphasis added]

In this regard, the Employment Appeals Tribunal in Conway v Ulster Bank Ltd (UD474/1981) held that a complainant had not acted reasonably in resigning “without first having substantially utilised the grievance procedure to attempt to remedy her complaints.

In Mary Kirrane v Barncarroll Area Development Co Ltd[UDD1635] the Labour Court held that the person complaining of constructive dismissal must also access available grievance procedures to deal with the circumstances which led him/her to resign. [emphasis added]

In Berber v. Dunnes Stores[2009] 20 ELR, the Supreme Court held as follows:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the Respondent, or, if there has been no repudiatory breach, whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate her contract.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The proofs which the complainant must advance to prove her case are that the behaviour of the respondent and of which she complains corresponds with the requirements laid out in one or both of the two tests and was behaviour which left her with no option other than resignation.

The question I have to consider in the within case is whether the effect of the interactions between the employee and employer at the meeting on 3 October 2023 crossed a threshold so as to damage the relationship to such an extent that it was reasonable for the Complainant to resign.

The Relevant Facts

I must consider whether there has been a repudiatory breach of the contract of employment. The Complainant advances a number of reasons to ground her claim of constructive dismissal. I note the Complainant seeks to rely on the Respondent’s actions, namely the explicit threat of termination of employment, failure to investigate or provide the alleged client complaint, breach of fair procedures with respect to the PIP and the conduct of the meeting of 3 October 2023 all of which are cited as being in breach of the contract test.

I do not accept the Complainant’s reliance on the failure of the Respondent to investigate the client complaint to ground her complaint. I am perplexed as to the manner in which this matter became the pivotal focus of the numerous legal exchanges between the parties. It is an unfortunate reality of such commercial arrangements that a client may simply insist that a certain individual no longer handle their business and they are perfectly entitled to do so if they are not satisfied with the level of service they receive.

Furthermore, I note that when RE offered to provide evidence of the complaint from the client to the Complainant she said she did not want to hear it.

It was not made clear to me why the Complainant envisaged there would be an investigation into a client complaint in the first instance particularly as she submitted in evidence that she had worked at a senior level in many Irish companies for 9 years and I would have thought at such a senior level she would have had an understanding of the fundamental importance of customer service and of the expeditious nature of the actions required by a company to address and to rectify deficiencies in same.

Notwithstanding, I am of the view that the pursuit of customer appeasement does not occur in a vacuum and it cannot be advanced without consideration of the employee.

I do not accept the Complainant’s reliance on a breach of fair procedures in respect of the PIP to ground this element of her complaint. I am of the view there was a great deal of confusion in respect of the PIP and in some way the PIP appeared to have morphed into a disciplinary procedure in the Complainant’s understanding or lack thereof.

It was clarified at hearing that these are two completely different procedures. The Complainant adduced in evidence that performance issues had never been addressed with her and I note this was not a view shared by the Respondent. I note the Complainant did accept that performance deficits had in fact been raised with her under cross-examination when a number of specific examples of same were put to her.

I am of the view there was further confusion on the part of the Complainant on the difference between performance review and performance improvement.

I note the Labour Court in Luke Glogoski v Boots [UDD 187] held as follows:

”However, in the Court’s view it is for an employer to determine its own standards in terms of what it considers are priority tasks, duties and processes, the importance it attaches to particular tasks, duties and processes and the performance objectives that it sets, subject to those standards being consistently applied and not being unachievable.”

Applying Glogoski to the facts of this case I accept the Respondent was entitled to put their requirements to the Complainant. It is noteworthy that for the most part areas requiring improvement focus on the Complainant’s responsiveness or lack thereof which is borne out by the evidence adduced by the Complainant herself when she submitted at hearing that she sent in her medical certs “eventually” and when she stated she did not make a call to the Respondent that she had committed to when the Respondent had contacted her.

I am of the view a PIP is a business driven and a business led initiative. It is not standard practice that the full panoply of fair procedures afforded in the context of a disciplinary procedure apply in regard to the conduct of a PIP. I am satisfied it would be extremely rare if not unprecedented that an employee would he provided with the right of accompaniment to a PIP meeting.

A PIP meeting is between an employee and his/her line manager and it would be most unusual that any employee and in particular an employee at such a senior level as the Complainant would be comfortable discussing perceived performance deficits in the presence of a work colleague. I am of the view prior notice of the PIP meeting should have been provided to the Complainant so that she herself could have prepared in advance but I am unable to find that failure to do so constitutes a repudiatory breach of contract or behaviour such that it was reasonable for the Complainant to terminate her employment.

It is not in dispute between the parties that a meeting took place on 3 October 2023. It is not in dispute the Complainant was offered 2 months’ salary and an ex-gratia payment of €5000 to exit the company. The terms ‘voluntary severance’ and ‘voluntary redundancy’ were used interchangeably. For the purposes of this investigation the terminology used is irrelevant. In fact nothing turns on it.

I note the words spoken at aforesaid meeting after the proposal was put to the Complainant that she exit from the company are in dispute. The Respondent submits the Complainant was given until that evening to accept or reject and if she rejected she would go back on the PIP. The Complainant submits she was given until lunch time to make a decision.

The Complainant provided three different accounts of the words that were spoken after the offer was made to her. I note the Complainant instructed her solicitor that she was told by ROR “that even if she refused to take the redundancy package that it would only be a matter of time and that she would be exited regardless.”

The Complainant’s WRC complaint form provides the “employee has advanced commentary from the Chief Executive Officer that she would be exited through an artificial process that did not respect employment law.”

The Complainant submits in direct evidence that when asked what would happen if she did not accept the offer she submits she was told “you will be made redundant eventually anyway.”

It is irrelevant for the purposes of this investigation whether I prefer the evidence of the Respondent or the evidence of the Complainant in respect of the words that were spoken in this meeting after the exit terms were put to the Complainant. I am of the view it is not necessary for me to resolve the inconsistencies in the Complainant’s account nor is it necessary for me to resolve the conflict in evidence between the parties.

What is not in dispute and on which there is neither conflict nor inconsistency is the fact the Complainant was offered two months’ notice and €5000 to exit the company. This is the plain undisputed fact.

In terms of my careful consideration of this matter it is difficult to escape the conclusion the aforesaid undisputed fact is the defining moment where the employment relationship between the Complainant and the Respondent was unequivocally and unambiguously damaged by the undisputed action of the Respondent.

On the evidence before me I am satisfied that the Respondent’s conduct in terms of the subject matter in the first instance and in terms of the timing of the meeting on 3 October in the second instance is and of itself such as to justify the Complainant’s termination of her employment. I find the Complainant has satisfied the contract test in terms of the former instance and the reasonableness test in terms of the latter instance.

I find an employer blindsiding an employee by inviting her to a meeting at short notice, unaccompanied, and offering two months’ pay and €5000 to exit the company to be an action that goes to the very root of the relationship between an employer and employee and utterly undermines the implied term of trust and confidence.

Furthermore, for completeness, I find the summoning of the Complainant by the Respondent to the meeting on Monday 3 October, which is three working days after she has been placed on a PIP on 26 September, to be the embodiment of unreasonable behaviour on the part of the Respondent.

I note the Complainant did not raise a grievance. However, I also note the Respondent’s very comprehensive employee handbook that seemed to cover every eventuality did not contain a grievance procedure. The Complainant’s contract makes no reference to a grievance procedure.

I am satisfied the Complainant’s failure to raise a grievance cannot be found to be fatal to her complaint in circumstances where there were no“internal remedies made available to her.”

I note Statutory Codes of Practice specifically S.I. 146 of 2000 provide that employers should have grievance policies available to their employees. It is well established that an employee has a contractual, constitutional, and statutory entitlement to fair procedures. S.I. No. 146/2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000, provides that employers should have written procedures for dealing with grievance issues and disciplinary issues reflecting the varying circumstances and outlines the principles of fair procedures for employers and employees generally.

I find the omission of a grievance procedure from the comprehensive suite of policies and procedures in the employee handbook exhibited by the Respondent to be a striking omission. In such circumstances it is not unreasonable that the Complainant was unable to initiate a grievance procedure where she did not have access to one as such a procedure did not in fact exist.

On the evidence before me, I find that the Complainant was unfairly dismissed within the meaning of the Acts. In terms of remedy in accordance with the provisions of section 7(1) of the Act I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case.

In the circumstances, and in light of the fundamental breakdown of the relationship between the parties, I have decided that reinstatement or re-engagement of the Complainant are not practical options in this case. Instead, I take the view that compensation is the appropriate redress in this case.

In awarding compensation, I am obliged to award a “just and equitable” amount of compensation in the full circumstances of the case.

The Relevant Law

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Section 7(3) of the Act further states that:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”;

As is clear from the Act, section 7 (1) (c) (i) compensation is for “any financial loss attributable to the dismissal”. Financial loss is defined as including, actual loss, estimated prospective loss of income and loss or diminution of the rights of the employee under the Redundancy Payments Acts.

The Complainant’s submits her actual loss amounts to €48,548.55. The Complainant had not acquired a right to a redundancy payment as she was employed by the Respondent for less than two years. However, the benefit of one year qualification period for redundancy pay was lost due to her unfair dismissal. I am also bound to consider that the Complainant by her own admission submits she remained on medical certificate for a further month post resignation.

In calculating the level of compensation, I take into consideration the efforts of the Complainant to mitigate her losses as I am required to do by section 7(2)(c) of the Act. In considering the amount of redress to award I must bear in mind the lack of effort by the Complainant to mitigate her loss in the instant case and in particular her lack of effort at securing employment in her proven area of expertise in a market that has no scarcity of such positions as evidenced by the number of vacancies advertised on any given day in a trend in the Complainant’s particular profession that has continued unabated for some time.

I find the Complainant has failed to produce credible evidence to me that she has made sufficiently rigorous efforts attempts to mitigate her loss when I apply that which is set out hereunder.

The decision of Coad v Eurobase [UD1138/2013] outlines the duty to mitigate loss under the Act where the Tribunal noted:

“In calculating the level of compensation, the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. “It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

Taking all of the factors set out above into account, I award redress of €17,917.50 as just and equitable compensation for the unfair dismissal. As this is compensation for loss of remuneration arising from the Complainant’s unfair dismissal it is subject to taxation in the normal way.

Setanta Solicitors advise employees and employers on employment law. Please contact us to schedule a no obligation consultation at info@setantasolicitors.ie or 01 215 0168

Book a Consultation

Enter your details below and we will contact you about your consultation.

[contact-form-7]

The post Performance Improvement Plans as precursors to termination offers held to be grounds for Constructive Dismissal appeared first on Setanta Solicitors.