Northern Ireland Case Law Revision with Emma McIlveen BL

Posted in : Supplementary Articles NI on 10 February 2022
Emma McIlveen
Barrister
Issues covered: Unfair Dismissal; Discrimination and Harassment; Reasonable Adjustments; Unlawful Deductions from Wages; Restrictive Covenants

In this webinar, held in association with the NI Employment Lawyers’ Group, employment specialist Emma McIlveen BL and Scott Alexander from Legal Island discuss important Northern Ireland employment cases and outline how they are relevant to other employers. The cases discussed in this webinar include:

  • Wahab v Four Seasons (No.7) Limited (unfair dismissal; unlawful deductions from wages; race discrimination)
  • Campbell v Lisburn & Castlereagh City Council (Religious belief/political opinion discrimination; agency worker)
  • Anonymised Claimant v Anonymised Respondent (Sexual harassment and assault in the workplace)
  • McNicholl v Bank of Ireland & Cummins (Sexual harassment and joint and several liability)
  • Nevin McEldowney v Randox Farming Limited trading as Cherryvalley Farms (Unfair dismissal; Reasonable Adjustments; Registered Intermediary)
  • Byrne v Aware Defeat Depression Ltd (Disability Discrimination; Constructive Dismissal)

In addition, Emma and Scott discuss other NI developments including injunctions, restrictive covenants, stay applications, early conciliation, costs for non-compliance with covid protocol. 

You can view a detailed paper prepared by Emma for this webinar here:
https://www.legal-island.com/globalassets/pdf-documents/Northern-Ireland-Employment-Case-Review-2021.pdf

The Recording

Note: If you enjoyed this webinar recording, you can watch our Northern Ireland Employment Law Revision Day webinar with Mark McAllister, Director of Employment Relations at the LRA.

Transcript

Scott: Good afternoon, everybody. Welcome to the Northern Ireland Case Law Review Revision Day with Emma McIlveen. Emma is an employment barrister. She's qualified to practise in Northern Ireland, Republic of Ireland, and GB, and New York if you have any cases across there.

Emma is well known in the field, and she's been retained on a number of cases that we're going to deal with today. This is a follow-on for anyone that was at the Annual Review of Employment Law. Jason Elliott covered the Irish case law, and he covers a couple cases every week for the employment updates.

As you can see, we have Emma here. She's also a committee member of the Employment Lawyers Group in Northern Ireland. This is kind of a joint effort between ELG. I know a number of your colleagues are here as well, Emma.

Welcome. How are you?

Emma: I'm good, thank you. I'm just noticing there somebody's put me down as the Head of the ELG. That's not right. I'm only a committee member, and our current chair is Orlagh O'Neill from Carson McDowell. I think I've got an unexpected promotion there on the slide. But I'm doing well and I'm glad to be with you this afternoon, Scott. Thank you for having me.

Scott: Thanks very much. I'm sure Orlagh will be listening today, so apologies, Orlagh. We love Orlagh at Legal-Island.

Just before we get started on the cases, a very simple process today. We're going to be going through a number of Northern Ireland cases. We're going to look at the background, why they're important, and as a result of those, is there anything that you the listeners today should do?

Before I do that, we do have an offer on eLearning from our eTeam in Legal-Island. I hope the slide is going to pop up there and you'll see it. It's an HR Toolkit that's coming forward.

Just looking here, there seems to be a problem with people coming in. There are some people waiting offline, so I'm assuming that might be a bit of an issue there at the moment. I'm just going to check my phone. There are people a bit concerned about this here, Emma. This doesn't normally happen. It's a lunchtime thing. The slides seem to have frozen, and we seem to have quite a few dozen people who are waiting to get in.

Katie, can I ask you to come in and tell me what's happening here rather than me continuing? It's not getting recorded.

Katie: Hi, Scott. Sorry. I'm just having a wee look. I'm not too sure why the slides aren't moving on.

Scott: They've just done it now.

Katie: There, they just moved now. In terms of people getting in, I'm going to contact them on the chat and see what I can do as best I can. As far as I can tell, we are live and everything is going.

Scott: Oh, good. Thank you. Alistair has just been in touch saying he can see both presenters and the slides are all working. That's splendid, so let's get on.

You can see there's an HR Toolkit. If you would like a demo of that, we'll follow up with a follow-up email.

Now, we're going to look at those cases. Just to let you know, Emma has written a paper, and we'll follow on that paper. All the cases you've got today, you don't have to take too many notes. She's written notes on all of those and the takeaways for people as well.

We're going to have the first cases coming up here. Katie, that would be brilliant. It doesn't like working at lunch. We don't normally do lunchtime updates. It's usually morning updates. We've been on today already with Republic of Ireland stuff, Emma.

I'm waiting on the first cases coming up. It hasn't popped up, but it's Wahab v Four Seasons. Maybe while we're waiting on that to pop up, you can tell us about that particular case, why it's important, and what the listeners today could maybe do as a result. There we go. There's the case law. Let's look at the first case, Wahab v Four Seasons.

 

Wahab v Four Seasons

Emma: Great, Scott. I'm glad you're handling the tech side of things. Takes the pressure off me. Let's get stuck in.

In terms of the background of this, the claimant of that case was employed by the respondent as a healthcare worker. She commenced employment on October 2018 and her employment came to an end in September 2019. They put her through a disciplinary process, and she was dismissed with the effect from 22 September due to a failure to adhere to policies and procedures within the home.

The claimant subsequently appealed her dismissal, and her dismissal was actually overturned on appeal. She was offered the opportunity of returning, and effectively given the opportunity of reengagement.

But having been given that opportunity, the claimant acknowledged the outcome of appeal, but said that she would not be returning because in the meantime she had secured alternative employment.

So in the face of that case, when it lands on your desk, you look at it and you think, "Okay, she doesn't have the years' service to enable her to claim the unfair dismissal". But an interesting legal point that came up in that case was the impact of a successful appeal upon a dismissal.

It was argued on behalf of the respondent that a successful appeal actually leads to an automatic reinstatement of the contract. And as a result of that, the argument was advanced that because the employee refused to take up the offer of reinstatement, they therefore couldn't bring an unfair dismissal claim because there was no dismissal.

That was the first time that I'd ever come across that legal point in a case, so I thought it was important to highlight. I appreciate it's not something you come across every day, but it's an interesting recent case to be aware of.

The tribunal in that case ultimately agreed with the respondent, and the unfair dismissal complaint was dismissed. The key paragraph containing the tribunal's views in that regard is Paragraph 31 of the decision. I've included that paragraph in my hand-out for ease of reference for those attending today.

Scott: I used to work for the Labour Relations Agency and kind of called up one of the codes of practice. It was one of the issues that we used to worry about, was the impact when you've got somebody who's reinstated or reengaged, but not through a tribunal process, just internally, that they win their appeal against dismissal.

The impact is pretty logical. Why shouldn't you go back to work? Why should there be a break? Therefore, you've got to consider what happens with the period in between. Do you repay the money and such like?

It's been a thorny issue, but it's pretty much settled on now. It gets rid of that. There is no dismissal claim. If she leaves, there's no right to take that claim. But she would be entitled to be paid because there was no dismissal. There's a reinstatement case there unless there's some kind of agreement otherwise

That was a very interesting case. It's a Northern Ireland tribunal case, but it referred back to other cases, and that's in your notes, I think.

Emma: Yes. There's authority from the Northern Ireland Court of Appeal on it, which is highlighted in the Paragraph 31. It's the case of McMaster v Antrim Borough Council. That's referenced there as well.

As you say, Scott, that's exactly what happened in that case, and you will see it. Although the claimant's claim for unfair dismissal was ultimately dismissed, there was a concession by the respondent that she should be paid for the period from the date of termination to the date where she basically notified the respondent that she had alternative employment elsewhere.

Scott: Okay. So there's a lesson, folks. If you reinstate people, if you've dismissed them and they go back to work on appeal, then it will restart or continue the contract and the period in between will count as continuous service.

Now, if you do have any questions, there's a little question box on your right-hand side, so you can drop them in there. We'll deal with them as we go along, hopefully.

The next one is Campbell v Lisburn. It's a religious belief case, political opinion, and it regards an agency worker. So it's a little bit complex there. Tell us about that, Emma, and why people listening today should find that of importance.

 

Campbell v Lisburn

Emma: This is a recent decision that came out in the last few weeks. The claimant in this one was a Roman Catholic, and she contended that by virtue of her name, she would be perceived as a nationalist.

The claimant worked for the respondent as an agency worker via a placement arranged by Grafton Recruitment. She was placed as a receptionist in Castlereagh Hills Golf Club. She alleged that she was harassed contrary to the Fair Employment Treatment Order as a result of the conduct of a member of the respondent's golf course. He is referred in the decision to Mr A.

There were two instances relied upon. Basically, both of them involved verbal comments that were made by Mr A to the claimant in an aggressive manner. From the decision, it appears the first incident related to comments made with respect to the Union Flag, and then the second incident concerned the claimant complaining about that Union Flag incident and the actions that were being taken by the respondent.

The interesting point there is that Mr A in this scenario was neither an employee nor a worker of the respondent. So this case looks at the issue of third-party harassment within an employment setting. The claimant had reported both of these incidents to her employer, and she was alleging that the respondent had failed to effectively deal with her complaints.

Interestingly, from the decision, you will see that the respondent conceded that the conduct met the legal definition of harassment, but they argued that legally, on the basis of authority, they should not be liable for the conduct in this case because the conduct came from a third party and not from somebody they had control of, effectively, within the workplace setting.

The outcome of that, the claimant ultimately failed, and her claims were dismissed. But that's not the end of the story, and I felt it was really important to highlight this case because there are a number of key takeaways, in my view, that could be helpful, both from an HR perspective and in relation to other cases.

Essentially, in terms of what the claimant was saying, she pointed out a number of key failings in relation to the handling of her complaint. She alleged that the respondent abdicated responsibility for dealing with it. She complained about the delay. She complained about the failure of the respondent to recognise and apply its lone working policy. She stated that it was dealt with in a very informal manner, and ultimately made allegations about the respondent's alleged failure to properly investigate her complaint and communicate the outcome to her.

It does provide a good overview of the authorities which are relevant in respect of liability for third-party harassment. I have included the reference in my hand-out to the paragraphs that you need to look at.

Another point there to note, and this comes up on a regular basis in discrimination cases, is it does establish that agency workers do have protection under the Fair Employment Treatment Order, under the legislation. It was just the fact that it doesn't extend to cover the claimant, to give her the rights to be successful where the harassment is coming from a third party.

A key paragraph of that decision is Paragraph 63. The tribunal judge in that decision said, "To establish liability for the alleged conduct of Mr A, the claimant would need to show that either the respondent directly discriminated against her in its treatment of her handling of Mr A, or that their actions failure to address her complaints against Mr A itself amounted to harassment following within the definition of the order".

Essentially, the problem which the claimant encountered was the fact that she couldn't link the criticisms of the handling to a protected ground. It's not enough for an agency worker in a situation like that, it appears on the basis of this decision, to basically point out procedural flaws or failures in the handling of this type of situation. They must go a step further and be able to link it to a protective ground in order for liability to fall at the door of the respondent.

Scott: The difficulty, I suppose, for this is that the third-party harassment protections only apply to sex discrimination in Northern Ireland, I think I'm right in saying. You've covered that in your note as well. If you haven't seen the note, it's in your hand-outs on the right-hand side. If you click that tab, you'll see the hand-out from Emma.

I could go into a bar and harass somebody because of their religion, and there's very little anyone, an employee or otherwise, could do about that. But if I harass somebody because of their sex, they could take a claim against their employer because the employer could be held vicariously liable or liable for that as a result of my actions as a customer.

But on the religious and the foetal arguments, it just doesn't apply, really, there unfortunately. Unless you can show, which is what you're saying, that the employer . . . not quite colluded, but their actions were also discriminatory on those grounds, like, "Yeah, I don't mind you picking on the Catholics or the Protestants". You'd have to link it there and show that that act was also discriminatory. Is that right?

Emma: Yeah, and that appears to be the case on the basis of that. But that being said, and my take on that decision, employers that are faced with that scenario still need to be aware of how they handle situations like this. Even though there may not be liability under this particular legislation, in this form, they still have a duty of care to their employees.

I think whenever you read the full decision, the tribunal judge in that case did find that the claimant's remarks or concerns about the way that her situation was handled ware well-founded. And there were a number of things, which I've included in my hand-out, that I would deem practical lessons.

Firstly, I would say that if you're faced with a scenario like that, you need to really look and see is there any relevant policy that you have that would potentially apply? The tribunal was critical of the fact that management in this case appeared to recognise and identify a potential policy that should have been applied in the circumstance.

The tribunal, if you read it, is quite critical about the procedural failings and makes reference to tips with regards to good procedure and common sense in dealing with scenarios like this.

For example, reading the remarks, it appears that the tribunal was of the view that it would be good practice in a scenario like this to properly investigate it and inform the employee of the outcome that was decided in the end. There appeared to be issues given the tribunal's remarks about how that was done in this scenario.

Scott: Had this been another employee . . . because we're going to go on to a couple of rather disturbing cases, I think, particularly the next one. If it's done by an employee, then the employer could be held liable or joint and severally liable, as we'll find out in the case after this one.

Really, it would have to be taken seriously, and I think a reasonable employer would be under a duty of care. Well, they may not be under the Fair Employment Treatment Order, but there would be other areas where an employer should be taking action.

Of course, if somebody is getting picked on, you've also got the reality that other staff are going to say, "You're not looking after us", and so on. It's not great industrial relations to let somebody get picked on by a third party, whether it's an employee or others.

We move on to the Anonymised Claimant v Anonymised Respondent because these are sexual harassment as opposed to religious claims.

Emma: Just to flag, there seems to be a recurring theme in a lot of these cases. The issue of anonymisation is now coming up a lot in cases before the Northern Ireland tribunal.

For example, in Kiera Campbell, there are various paragraphs that discuss whether the harasser in that case should have been anonymised. The tribunal did ultimately decide to anonymise the identity of the harasser, and that's why he's referred to as Mr A. Again, I've highlighted the specific paragraphs.

But before we move on to the next one, it's coming up repeatedly, so it's something to keep in mind across the spectrum when you're dealing with allegations of discrimination, and particularly harassment and sexual offences cases.

Scott: Okay. Thank you very much. If you have any questions, folks, drop them into the question box and we'll deal with them. We'll speak to Emma.

If you've just joined us, we have Emma McIlveen here, who's an employment barrister, and she's going through a number of Northern Ireland cases that we think are of interest to employers. We're recording everything, and it's also going to be put on Spotify and other podcast areas as well.

This Anonymised Claimant and Anonymised Respondent, like I say, it's a disturbing case that happened. I dealt with a claim when I was at the LRA that would be not dissimilar to this, where somebody was being effectively stalked by their employer.

Let's have a look at this Anonymised Claimant v Anonymised Respondent. Tell us the background and why it's important for employers particularly.

 

Anonymised Claimant v Anonymised Respondent

Emma: This case was taken by the Equality Commission. They supported the claimant in this case. The claimant had worked for the respondent as an assistant in an ice cream shop. She had started part-time employment with the respondent when she was 15 years old. The claimant complained about the suggestive and lewd remarks which the respondent had made towards her. This case also involved allegations of touching and feeling within the workplace setting.

I'm not going to go into the details of the allegations, but they are contained in Paragraph 15 of the decision if anybody wants further details in terms of the specifics of what happened there.

The complainant had reported this to the PSNI, and this ultimately led to prosecution. The respondent was charged with several counts of sexual offences, and he ultimately pleaded guilty to two charges of common assault, and he agreed to the imposition of a Risk of Sexual Harm Order.

A key challenge which the tribunal appeared to have faced in this case was the fact that the respondent was representing himself. The tribunal was faced with a scenario where the respondent had no lawyer. Therefore, logistically, as part of the hearing, what do you do in that scenario where there is a Sexual Harm Order in place and the respondent needs to be able to cross-examine the claimant? The claimant obviously has the right to pursue her hearing, so how does a tribunal deal with that scenario? So it's interesting from that perspective.

It's also interesting that the claimant was ultimately successful and secured one of the highest ever awards, to the best of my knowledge and certainly in my time, before the Northern Ireland tribunal. She was awarded over £71,000.

This is a good decision to have regard to in terms of remedies in discrimination cases and how that's calculated and broken down. You will see that that is made up of £41,500 for injury to feelings, £20,000 in respect of psychiatric injury, £6,000 in respect of aggravated damages, and interest was added on top of that as well

A practical tip in terms of practice: In discrimination cases of this nature, it's very important that in the schedule of losses, you're breaking it down and including figures, where appropriate obviously, for injury to feelings, the psychiatric, and the aggravated damages.

I find in practice that the issue of interest is often left off schedule of losses for discrimination claims. I think that decision just reinforces the importance of properly assessing and putting down the claimant's loss as part of the procedure.

Also, in my hand-out, I went through other practical takeaways. Firstly, the impact of criminal proceedings and how they operate or the impact they have upon tribunal claims.

You will see in that decision that this case was actually effectively delayed to give the criminal side of things an opportunity to complete. The tribunal had, it seems, secured permission from the Offender Management Unit of the PSNI to enable the hearing to actually proceed, given the fact that this sexual order was in place.

You're on mute.

Scott: Better unmute myself. That often happens with me.

I think there are some interesting lessons there when it comes to employers dealing with such a thing in the workplace. Before it got to tribunal, the employer should have been looking at these types of things and saying, "How do we handle it?"

Some of the things that the tribunal did, keeping them in separate rooms, and the questions were asked by the chair or the judge rather than by the respondent who was unrepresented, because that would impinge and it could be seen as a further act of harassment and such. There were some interesting ways that you do it, so that case is worth looking at just for that reason alone. An injury to feelings award of £41,000 for a shop worker is sizeable, if you were to look at that in another circumstance.

Emma: In terms of the measures that were put in place, that's a lesson as well. If you do have a vulnerable claimant, it is possible to consider measures to protect the claimant. As you say, even practical things that happened in that case. The hearing took place in Killymeal so they could all be separated out. There were staggered arrival and departure times. The respondent had to provide the cross-examination questions to the judge in advance, and the judge effectively filtered the questions and the judge asked the questions to the claimant in order to protect the claimant as far as possible, but also to give the respondent an opportunity to put his case, where it was appropriate to do so.

Scott: That's an interesting case. Now, that one was anonymised. The next case that's coming up is McNicholl v Bank of Ireland. It's another harassment case, and it wasn't anonymised. Tell us a little bit about that background and what that case is about and why it's important today. We've got this point here, joint and several liability. The Bank and the protagonist were both found to be liable in this particular case.

 

McNicholl v Bank of Ireland

Emma: Well, the key point that I wanted to highlight both in respect to the anonymised case and then McNicholl is the discussion in both the cases in relation to where anonymisation is appropriate. The key thing to highlight is that there has been a change in the procedural rules from the old rules of procedure and the new rules of procedure.

Historically, the position appears to be that if there was a sexual harassment case coming before the tribunal, automatically both parties were anonymised. Now, as a result of the introduction of the 2020 rules of procedure, specifically Rule 44, that position has changed.

In the anonymised case, the tribunal acknowledged that Rule 44 of the new rules involves a discretion on the part of the tribunal in terms of whether the parties should be anonymised or not. That deals with not just the parties, but also other individuals that are named or involved in the case. For example, the Kiera Campbell one where the harasser is not a party, but he was named as part of it and they decided in that circumstance it was appropriate to anonymise that. I think it's important when considering Rule 44 to look at both of them decisions.

In the McNicholl case, they describe at Paragraph 1.10 what the tribunal has to do in respect of Rule 44. If I can just find the reference here. They say in terms of Rule 44, "It is clear under the rule that the restriction on public disclosure can only be imposed insofar as the tribunal considers it necessary". So it's not automatic anymore that automatically everything is just closed off and shut down.

They need to consider whether, one, it's in the interest of justice to do so, or secondly, it's necessary to protect the convention rights of any person.

They acknowledge there that such an order is not restricted to the parties or witnesses, and a tribunal is therefore required when determining this issue to consider the competing rights and balance one against the other before reaching a decision.

I imagine going forward we will see more battles in this area. Obviously, it depends on the circumstances of each case, but it does appear that there are arguments that can be made in the appropriate case for anonymisation to be lifted. You can argue that it's not necessary and it should be disclosed.

Also, other lessons coming from McNicholl is the importance of proper training for staff. Indeed, the tribunal acknowledged in that that there was a complete failure to train one of the harassers, identified as F, in relation to the harassment policy, or even to provide him with a copy, despite the events that had happened within the workplace.

Practically, it is very important for employers to have their training up to date and ensure that all staff are aware if they want to be able to rely upon any statutory defence. And if they don't have that in order, it will be difficult for them to do so and you can end up with a decision like this where ultimately it was joint and several liability of an award of over £18,000.

Scott: I suppose that statutory defence is that the employer's done as much as they possibly can, including training staff and up to date. There will be lessons to be learned from this. The alternative is you end up with people like us talking about it and sending around all of these different employers, which isn't great.

That anonymity was always a big issue when it came to trying to settle claims, because if people thought their name wasn't going to be in there, they might be more inclined to let the case run. But if the respondent's name and such are going to be exposed and then picked up by people like Legal-Island, then they might be more inclined to settle. So it has a practical impact there whenever you're considering what you're going to do with a case.

Emma: Yeah. Also, when it comes to settlements, I know lately some claimants have been less likely or more reluctant at times to accept confidentiality clauses in these types of cases when it comes to settlements. I think there are interesting debates and issues around that in terms of the appropriateness or otherwise and the practicalities and ramifications of that.

Scott: Okay. I've got a question here you may or may not know the answer to, Emma.

 

In the Campbell case, was the claimant advised against naming the harasser as a respondent?

Emma: I don't know. I wouldn't be party to what the claimant was advised or what she wasn't, so I simply can't answer what she was advised.

Scott: Okay. No problem. Thank you very much. Any other questions, send them in, folks.

We have this next case, which is the Randox case, which is another interesting case, the McEldowney one. What's that about, Emma, and why is it important to the listeners?

 

Nevin McEldowney v Randox Farming Limited trading as Cherryvalley Farms 

Emma: This is an interesting one because this was the first case in Northern Ireland where the tribunal appointed a registered intermediary to assist the claimant. You would automatically think before reading a case like this that it was maybe a disability discrimination case or failure to make reasonable adjustments, but it was not. It was a claim involving unfair dismissal.

Basically, what happened was that on the third day of the substantive hearing, during the claimant's cross-examination, the claimant's representative raised concerns whether the claimant was effectively participating in the hearing. Up until this point, no application for reasonable adjustments or special adjustments had been made.

Following enquiries by the tribunal, an application was then made to adjourn the hearing to allow for further enquiries to be made. A medical report from John Eakin, an educational psychologist, was obtained, and he had recommended a series of adjustments to enable the claimant to effectively participate in the hearing.

The two that I want to highlight that were requested were that written cross-examinations be provided to the claimant in advance, and secondly that the claimant should be provided with a registered intermediary.

In terms of what happened logistically in the case, the respondent initially objected to providing written cross-exanimations to the claimant in advance. But following a case management hearing, the parties agreed that the President should appoint a registered intermediary and that the intermediary should meet with the claimant in order to further assess his needs when given evidence.

The RI that was appointed in that case was called Suzanne Smith, who prepared a report to assist the tribunal. The report confirmed what Ms Smith's role would be, and that role was to assist the claimant to effectively communicate and to assist the legal representatives and the tribunal with their communication to the claimant.

There were a number of ground rules hearings, which were arranged in advance, to clarify how exactly that would operate in practice. Both parties were given the opportunity also to lodge written submissions dealing with the issue of whether evidence should be restarted.

The claimant's representative relied upon authorities from the Advocate's Gateway because basically this was the first time that this had been requested in an employment setting. So parallels had to be drawn from other areas of law, and the other areas of law where steps similar to this had been taken were . . . the most obvious being criminal law and also immigration.

The respondent ultimately confirmed that they accepted the contents of both Dr Eakin's and Ms Smith's reports, and accepted the recommendations save for the provision of written questions to the claimant in advance.

But what happened logistically in the case was that the respondent's barrister had to submit his cross-examinations in advance to the tribunal and to the registered intermediary so that they could be reviewed for appropriateness before they were put. That was logistically how the tribunal got around that.

It was commented in the decision that the respondent had tried to argue that the steps taken in this case were extraordinary, but the tribunal was keen to point out their obligations as a result of the Equal Treatment Bench Book, which applies across the board, both in tribunals and courts, and also in light of the well-known case of Galo in Northern Ireland.

That really was the first case to the best of my knowledge that we have a decision from the tribunal where we can really see how Galo is being applied in practice and practically, on the ground, an example of a step that the tribunal can take to assist someone to effectively participate in a hearing.

I'm also aware that there are a number of other cases now currently pending that RIs are being requested in. I would say that it is a step that will not be taken in every case, and there needs to be the medical evidence to be able to make such an application. But it's an interesting decision that I thought would be helpful for the audience today to be aware of.

Scott: Yeah, so I suppose in this one, although it wasn't a discrimination case per se, the tribunal has this overriding objective that they've got to provide fairness in the process.

From a practical point of view, this case would have taken a long time, would have been very costly for Randox to defend presumably because they'd be paying lawyers, and prepping all the stuff in advance, and sending them backwards and forwards, and making sure that they're happy with everything. It would just take much longer

So if the tribunal does have somebody who's vulnerable or has difficulty putting their case, if you like, this is an option open to the tribunal and is likely to increase over time.

They're concerned, presumably, if they don't provide those reasonable adjustments, that a claim could be taken against the tribunal or the courts. That's what that bench order means, really, isn't it? They could be challenged themselves, providing a public service without making reasonable adjustments.

Emma: I think it's important to highlight the need to consider adjustments in every single employment case. This is not something that is just solely for the claimant. In the right case, it's open for the respondent to make an application for adjustments to be made for their witnesses if they're aware that any particular witness that's going to be called will experience some difficulty.

My view would be that on the basis of this, it highlights the question of adjustments. It's not just for disability discrimination cases. You should be assessing from the outset of every case the need for adjustments on both sides.

Scott: Okay. Thank you very much. We've seen various things coming in there about the way that the tribunals operate, keeping the parties apart, putting in other reasonable adjustments, registered intermediaries, and all that kind of stuff.

What about Byrne v Aware Defeat Depression? What's that case about? It's disability and constructive dismissal. What's the background and why is that one important?

 

Byrne v Aware Defeat Depression

Emma: The claimant in this one was employed as a communications officer, and the claimant suffered from colitis. The respondent in this one accepted that she was disabled for the purposes of the Disability Discrimination Act.

The claimant sought a variation of her working pattern. The respondent maintained that this was granted on a temporary basis only, and under this temporary variation, the claimant worked for four days a week, with one of those days being from home. This case was pre-COVID pandemic, where that would have been essentially the done thing.

The respondent then subsequently informed the claimant that it viewed her role as a full-time position, which required five days a week working in the office. The claimant was then invited to apply for a variation of full-time office working under an internal flexible working policy. The claimant ultimately resigned and claimed constructive dismissal.

This case, I think, touched on a number of interesting issues: the relationship between disability discrimination claims, and then claims in respect of handling flexible working requests.

In terms of what's also interesting about it, the claimant was ultimately successful. The Vice President, Judge Kelly, does provide a really useful overview of the law in this decision on the elements that need to be proved for disability claims. He breaks it down and he deals with direct discrimination and discrimination for a disability-related reason. So I would really encourage the audience to look at that decision, because it really provides an excellent outline of that

It also provides an insight in terms of the level of injury to feelings. In that one, in respect of how they dealt with the claimant's request and the failure to make reasonable adjustments, the claimant was awarded £7,000 for injury to feelings. So it's useful to have a decision and understand why and how the tribunal place cases at certain points.

A real takeaway, and if you read the decision something that jumped out to me, was the criticisms that the tribunal made about the recordkeeping in that scenario. Really, if you read it, particularly Paragraph 45, the judge noted that no notes were taken, no record was kept, and no outcome was written down and issued to the claimant.

The importance of good recordkeeping and also dealing with difficulties as they arise should not be underestimated. It appears that as a result of the lack of good documentation and paperwork trail there, it created difficulties for the respondent, and ultimately the claimant was successful on all grounds in that decision.

Scott: It was also an issue for employers. If you don't keep records, you've really nothing to back up your case. As an employer, you're expected to do things correctly, particularly the bigger employers. I know that's a charity. They're not an unsubstantial charity there. Not keeping records is a penalty kick for an employee, basically, when it comes to things like that.

Noel Kelly, you mentioned him there, the Vice President, he's come up with some terrific decisions over the years. He's just been vindicated in the holiday pay claim there as well with another GB case that's just come through. Always worth reading his decisions.

You've one or two other things before we finish at 1:00, Emma, that are coming up. Trends you wanted to highlight as well. Let's see if we can see those come up. There we go.

You've got five things we're going to rattle through here, folks. Injunctions, restrictive covenants, stay applications, early conciliation, and costs for non-compliance with the COVID protocol. Let's zip through those in order, Emma, and see why you think there are trends coming along or developments in Northern Ireland.

 

Injunctions

Emma: Really, the purpose of this slide was just to briefly before we close highlight things that I'm regularly seeing in practice. Again, I thought that would be useful given our audience today.

Firstly, I am seeing an increase in injunctions being brought, mainly on behalf of employees that are seeking to enforce various provisions of their contract of employment.

In other jurisdictions, such as GB and ROI, this has been more common. Historically, within Northern Ireland, the courts appeared reluctant to intervene with injunctions in the employment context. But given the issues that are coming forward, there are definitely more cases that are going on in the background in this regard. So it's something to bear in mind.

I find that on a practical level, useful at times to bring things to a head if there's basically loggerheads between parties. Often, injunctions are brought in very challenging situations within workplaces, so it's another remedy or form to consider for both employees and employers.

 

Restrictive Covenants

Another thing that I'm regularly seeing coming out the back of the pandemic are issues around restrictive covenants, both, again, on the employee and employer side.

The employer basically trying to enforce the restrictive covenants. I think the COVID pandemic and some of the challenges in terms of recruitment and finding the right people, employers are investing a lot of energy into that. Therefore, to lose particular employees is particularly challenging. We're seeing that and injunction applications being brought off the back of that.

 

Stay Applications

Thirdly, then, stay applications. Historically, it seemed to be the case that if there were parallel proceedings, for example, where there's an employment tribunal and there's also a High Court matter, if there's an application made to stay the tribunal proceedings, historically in practice it appeared to be that it was pretty much automatically granted.

In recent months, that doesn't appear to be the case, and if you want to apply to stay your tribunal proceedings . . . There are hearings being held currently on several cases about whether a stay is appropriate. You really have to justify, in my experience and practice, why that is necessary and appropriate in the circumstances of that case.

 

Early Conciliation

Fourthly, just to flag, early conciliation. I find at times early conciliation points in terms of time points are being missed. Particularly if you're on the respondent side, it is very important to check that the early conciliation requirements have been complied with. Sometimes they're not and they're missed, and that could be an easy point that the respondent could be flagging at an early stage.

 

Costs for Non-Compliance

Then, finally, costs for non-compliance with COVID protocol. Obviously, we're still trying to deal with the aftermath of COVID-19. The logistics of we still have to comply with the COVID protocol in relation to bundles. It is challenging if the relevant and necessary documentation aren't all in the bundle.

I'm aware of at least one occasion recently where a hearing had to be adjourned as a result of key documents not being in a bundle. As a result of that, that is listed for a costs hearing to determine whether costs will be ordered against the party that was basically trying to get the extra documents in and resulted in an adjournment

It is happening in practice, so for those that maybe don't regularly practise employment law, it's critical to make sure that the bundles are right and all the key documents are in. If they're not, it can be costly and result in cost applications.

I thought that was just useful to give you my thoughts on some of the things that are happening on the ground in practice within the employment law world.

Scott :Thank you very much, Emma. You're looking at some of those ones here. Just finished at lunchtime a Republic of Ireland webinar with A&L Goodbody. Those injunctions . . . There was a very, I suppose, clever case where an employee got an injunction. It took 32 months to get to the adjudication hearing, at which point the claimant withdrew the claim after being paid for 32 months. Again, restrictive covenants and waivers and such like where the employer had automatically put in that the person had been legally represented or had advice and they hadn't and just told them to sign. Those issues are across this island as well.

I don't know if it's to do with the last one there, with the COVID situation, that people are looking at different ways to progress things because they're not down at the courtroom. They're not down at Killymeal House as often as they might have been, so they're looking at different issues and working with different things.

Almost all of those things there, to me, indicate that there are potential additional costs and complications within the tribunal system. There are already delays, obviously, because other than Adelaide House, you've only got Killymeal House dealing with things and everything is still distant and so on. There must be big problems in the system, I take it, you're coming across as well, Emma.

Emma: Yeah. Another interesting one that occurs to me that I haven't included there in that list are jurisdiction issues where increasingly . . . And perhaps it's because I'm qualified in each of the jurisdictions, but I am coming across more cases where because employees are now availing of home-working, there are interesting questions in terms of can claims be brought under the new jurisdiction rules of procedure here in Northern Ireland.

Perhaps that wouldn't have been possible before if somebody from Northern Ireland was flying back and forward every week to England. The argument perhaps wouldn't have been as strong.

There are going to be interesting, I imagine, decisions on that in the months, and years potentially, ahead.

In terms of the tribunal, hearings are now back in full swing. In-person hearings are happening, both at Killymeal and Adelaide. It's definitely good to be back into the swing of things and out of the home-working every day, as we were doing during the pandemic. Hopefully we're getting near the end, and hopefully into COVID recovery stage.

Scott: Well, thank you very much, Emma. Thanks, everybody, for listening. We will be sending out Emma's paper. I know it was down there in the hand-outs, but we'll get it out to you so you've got references for all the cases that we've dealt with today. If you've any questions, you can send them in.

Remember the offer that we have on The HR Toolkit. There should be a little slide coming up, I'm hoping, to tell you of it. There you go. There's the Toolkit. Just launched. If you want a trial of that, then we'll send out details on the post-event email.

Remember that we do record it, so if you're a subscriber to the Employment Law Hub, you can listen back or watch back all these webinars that we have. You can also get it on Spotify as well.

Somebody has just written in. Thank you very much. "The HR Toolkit is very useful. I completed it before Christmas". Thank you very much to . . . I'm keeping it all anonymous, but it did start with D. You know who you are. Thanks very much for that one there.

Like I said, if you like to move and listen at the same time, you can get them as podcasts. You'll find all the "Employment Law at 11" stuff, all the things with Seamus McGranaghan, down there as well.

The next webinar. Look at that one there. This is one that was postponed because the speaker wasn't well when it was supposed to be on. But it's back on, 3 March. It's "The Impact of COVID-19 on Children's Mental Health" with Northern Ireland's mental health champion, Professor Siobhan O'Neill. We've a panel of people, including principals from top schools in Northern Ireland, who will be looking at that issue.

I'm sure a few of you will be interested. It's not an employment law thing. It's an education event. But that's running at 4:00 there on 3 March.

Seamus and Christine will be back on 4 March, which is the next "Employment Law at 11".

Thanks, everybody. We'll see you next time. Enjoy yourselves. Thanks very much, Emma. See you again.

Emma: Thank you, Scott.

This article is correct at 10/02/2022
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Emma McIlveen
Barrister

The main content of this article was provided by Emma McIlveen. Email emma.mcilveen@barlibrary.com

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