Employment Matters - Easter 2012

In Employment Matters, the Arthur Cox Employment Law Group Newsletter, we look at a range of issues across our practice area and some recent and prospective developments in law. We had hoped the Protection of Employees (Temporary Agency Work) Bill 2011 would by now be signed into law but it still has to be passed by the Seanad. The next edition of our Newsletter will contain a full analysis of the new legislation, and we are designing an employer's Toolkit which will be available to clients on request.

Arthur Cox has Ireland's largest employment and industrial relations law practice, consistently top ranked in the area, with considerable experience in advising on a vast range of complex employment and industrial relations issues for a wide variety of clients at both national and global levels. The Employment Law Group provides an extensive range of legal services to clients on all aspects of national and EU employment law and industrial relations. The group also provides a skilled mediation service.

Employee References

Jackson v Liverpool City Council [2011] IRLR 1009 answers an interesting question on employee references: what happens if an employee leaves, non-disciplinary allegations come to light then, and a prospective employer asks the former employer whether they would re-employ him? What does the employer's duty of care mean in such circumstances? Jackson throws further light on Spring v Guardian Assurance plc [1994] IRLR 460 HL and Bartholomew v London Borough of Hackney [1999] IRLR 246 authorities which reflect the view that in general, an employer is under no legal duty to provide a character reference for an employee or ex-employee. But if he does provide a reference, then he should take care to provide a reference which is true, accurate and fair, otherwise he may incur liability.

Replacement of Deferred Stock Scheme with Deferred Cash Scheme

Lichters and Hass v DEPFA Bank [2012] IEHC 10 concerned non-payment of deferred bonus awards. The company replaced its deferred stock scheme with a deferred cash scheme. It was no longer possible to award stock by reason of the takeover of the bank by Hypo Real Estate in 2007. The cash award under its terms would vest provided employees remained in employment for a period of 2 years from the date of the award. The changes were implemented without negotiation with employees or their representatives. The High Court found in favour of DEPFA Bank. In the circumstances prevailing in the Defendant's business, it was fair and reasonable to replace its deferred stock scheme with a deferred cash scheme. The Court adopted the test in Clark v Nomura [2000] IRLR 766 (CA), the plaintiff must prove that "no reasonable employer" would have exercised its discretion in that manner.

Disciplinary Proceedings and Public Interest

The public interest featured prominently in Gillen v The Commissioner of An Garda Siochana, Ireland, and the Attorney General [2012] IESC 3. The applicant garda sought and obtained leave ex parte to apply for judicial review preventing a disciplinary enquiry, submitting that the chronology of events disclosed inordinate and unreasonable delay by the respondent. The Supreme Court acknowledged that the Garda Siochána Discipline Regulations 1989 envisage that there should be no unnecessary delay in the...