Ireland

In the recent decision of Mark Alcock v Knights Tower Trading (ADJ-00049112), the Workplace Relations Commission (“WRC”) made an award of €34,999.99 for multiple breaches of the Organisation of Working Time Act 1997 (the “Act”). Facts: In September 2019, the Complainant commenced work as a Sous Chef with the Respondent Hotel and was promoted to the role of Head Chef in June 2022. The Complainant subsequently resigned, and his employment ended on 12th November 2023. The Complainant referred three complaints to the WRC in December 2023 claiming that the Respondent had breached section 11 of the Act dealing with daily rest periods, section 13 dealing with weekly rest periods, and section 15 in respect of maximum weekly working hours. The Complainant’s position was that on a number of occasions he was not afforded his daily and/or weekly rest periods and that he worked far in excess of his contracted hours and in excess of the maximum weekly working hours provided for under the Act. The Respondent refuted the complaints and submitted as a preliminary point that Part II of the Act did not apply to the Complainant as he had complete control over his working hours and was in fact responsible for rostering his own hours and those of the other kitchen staff. The Respondent’s Managing Director gave evidence on behalf of the Respondent and stated that the General Manager’s role was to monitor the Complainant’s hours and that he would have seen what hours were and were not being worked. The Managing Director also stated that the Complainant would not have been approved for overtime. The Complainant gave evidence agreeing that it was his responsibility to roster all kitchen staff, including himself. The Complainant also accepted that his contract provided for a 39-hour working week, however he stated in his evidence that he could not simply leave after eight hours when there were a large number of guests in the hotel and a number of functions taking place. Decision: On the preliminary issue the Adjudicator, Ms Christina Ryan, considered section 3(2)(c) of the Act which provides as follows: Non-application of Act or provisions thereof (2) Subject to subsection (4), Part II shall not apply to— (c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment. The Adjudicator also considered the decisions of the Labour Court in M & J Gleeson & Company v. Robert Maloney DWT 1395. The Labour Court determined that: “[b]ased on the evidence provided the Court cannot accept that the Complainant was a person the duration of whose working time is determined by him. The times when he was required to perform his work were essentially dictated by fulfilling customer orders which was the main function of the business”. On that basis, the Labour Court found that the Complainant’s employment was not the type envisaged by section 3(2)(c) of the 1997 Act. Further, in Erac Ireland Limited v. Eddie Murphy DWT 1583 the Labour Court found that the Complainant was employed to work hours as determined by the business needs of the Respondent and consequently was not a person in control of his own working hours. Taking into consideration the provisions of section 3(2)(c), the case law from the Labour Court and the evidence of the parties, the Adjudicator concluded that the Complainant did not determine his working time and found that the business needs of the Respondent determined the hours worked by him. On that basis, the Adjudicator found that Part II of the 1997 Act applied to the Complainant’s employment with the Respondent. Therefore, the minimum daily rest periods, weekly rest periods and weekly working hours provided in the Act applied to his employment. In relation to the complaints in respect of breaches of the daily rest period and weekly rest period, the Adjudicator found that the Complainant gave credible evidence that he was not afforded his daily and/or weekly rest periods. The Adjudicator considered the case law and the EU Directive, Directive 93/104/EC (the “Working Time Directive”) from which the right to rest breaks is derived. The Adjudicator ordered the Respondent to pay the Complainant compensation in the amount of €5,833.33 being one month’s pay for the breach of section 11 of the Act and a further month’s pay of €5,833.33 for the breach of section 13 of the Act. In relation to the complaint in respect of a breach of section 15 of the Act, the Adjudicator found that the Complainant gave credible evidence that he not only worked in excess of his contracted working hours, but also in excess of the maximum weekly working hours set out under the Act. Under section 15, “An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours…” The Adjudicator ordered the Respondent to pay the Complainant compensation in the amount of €23,333.33 being four months’ pay for the breach of section 15 of the Act. Takeaway for Employers: In this case, the total award of compensation was €34,999.99 for breaches of the relevant sections of the Act. While the Complainant’s contract of employment provided that he had control over his own working hours, the Adjudicator was satisfied that it was in fact the business that determined his working time. It is incumbent on employers to ensure that their employees take their minimum rest periods and that they do not work in excess of the maximum weekly working hours. Employers intending to rely on an employee’s ability to control his or her own working hours need to ensure that the employee genuinely has such control. This decision is particularly noteworthy in circumstances where the Adjudicator found that the Complainant’s working hours were determined by the needs of the business notwithstanding that the Complainant was responsible for rostering his own hours. Link – WRC Decision  Authors – Ethna Dillon & Jenny Wakely 6 May 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

This article discusses a recent Workplace Relations Commission “WRC” decision and a recent Labour Court decision on the knotty subject of mandatory retirement ages. Case 1: Tom Kitterick v Mayo County Fire Service (ADJ-00050808) Facts: Mr. Kitterick (the “Complainant”) commenced working for the Respondent in 2008 as a fire fighter at the Westport Fire Service in County Mayo. In 2019 he was promoted to Station Officer. The Complainant had been granted two extensions of his employment, from age 55 to 58 and from 58 to 60. Both occurred after he completed a successful medical assessment. The Complainant then requested to be retained beyond his 60th birthday.  However, his employment terminated on the 18th December 2023, his 60th birthday. The Complainant sued under the Employment Equality Acts 1998-2015 as amended (hereinafter the “EEA”) on the basis of discrimination on the grounds of age. Of note is the fact that the refusal to extend the Complainant’s contract beyond retirement age came just three months prior to the introduction of a new circular which extended mandatory retirement age to 62. This proposed extension had been flagged in August 2023 and unions and management were supporting it, although the circular did not issue or take effect until May 2024. Decision: The WRC Adjudicator’s decision is interesting as it goes through and applies the principles laid down by the Supreme Court in last year’s landmark judgement on mandatory retirement ages in the case of Mallon v the Minister for Justice & Ors [2024] IESC 20. See our previous article on the Mallon decision here (https://aocsolicitors.ie/supreme-court-clarifies-law-on-mandatory-retirement-ages/ ). Having gone through the Mallon principles the Adjudicator determined that the Complainant had clearly established a prima facie case that an act of discrimination took place in relation to mandatory retirement on his 60th birthday. However, an employer can still successfully defend such act of discrimination if it can establish that the relevant mandatory retirement age was objectively and reasonably justified by a legitimate aim; and the means of achieving that aim were appropriate and necessary. The Adjudicator acknowledged the principle determined in Mallon that the relevant competent authority is better placed than the courts to assess what is necessary or appropriate for the effective operation of the role. The Adjudicator also accepted that the physical and mental abilities of retained firefighters are crucial for the role and the proper functioning of the fire service and that the Respondent acted in accordance with the ciruclar that was in place at the time. Therefore, the mandatory retirement age was objectively and reasonably justified by a “legitimate aim”. However, the Adjudicator then went on to examine whether the means of achieving that aim were appropriate and necessary.  The Adjudicator found there was no evidence of consideration of the means that were appropriate and necessary. The Adjudicator distinguished this case from Mallon on the basis that the legislation in Mallon was clear and in place from the outset on mandatory retirement at age 70 years. In Mr. Ketterick’s case, the age was moving incrementally and there was a custom of joint engagement on the means of implementation. The Adjudicator commented that it was regrettable no consideration had been given to using the normal medical assessment on an interim basis pending the “imminent” extension of the retirement age to 62. Th Adjudicator determined that while she remained conscious of Mallon and the margin of appreciation to be afforded to the appropriate authority, she nevertheless viewed the lack of consideration of any appropriate means as unreasonable. She determined that the Complainant was left in limbo with no consideration on his extension request, either nationally or locally. The Adjudicator was critical of the fact that unlike the previous occasions when the retirement age increased, there was no lead in period considered; there was no interim extension of his contract considered; and there was no consideration to facilitate his return or apply the circular retrospectively once the new circular extending the age to 62 issued. The Adudicator found the Complainant was discriminated against on the grounds of age. The Adjudicator made an award of €9,500 by way of compensation to the Complainant. The Adjudicator commented that she would have considered awarding re-instatement but the Complainant had sought compensation. This WRC decision is the latest in a string of WRC decisions on the issue of mandatory retirement ages for retained fire fighters. The WRC arrived at a similar decision to the decision issued in Ketterick in the previous cases of Jim Murphy v Carlow County Council ADJ- 00052056 available here (https://www.workplacerelations.ie/en/cases/2024/december/adj-00052056.html) and Paul Curran v Carlow County Council ADJ–00052052 (https://www.workplacerelations.ie/en/cases/2024/december/adj-00052052.html ). Case 2: John Murphy v Bausch Health Ireland Limited (EDA2534) The Complainant commenced employment with the Respondent on 9th April 2011 as a General Operative. The Respondent operates a normal retirement age of sixty-five. In May 2021, prior to reaching the Respondent’s retirement age, the Complainant had requested to work beyond the normal retirement age. This request was initially refused and the Complainant retired in October 2021 upon reaching the age of sixty-five. The Complainant and Respondent subsequently reached an agreement under which the Respondent offered the Complainant a one-year fixed term contract which commenced on 29 October 2022 and was due to expire on 29 October 2023. The Complainant made written requests on 19 July 2023 and 21 August 2023 for a further one-year post retirement fixed term contract which were refused by the Respondent. The Complainant then submitted a complaint to the WRC, alleging discrimination on the grounds of age. The Complainant was unsuccessful in his complaint of age discrimination to the WRC. The Adjudicating Officer held that the complaint was not well-founded and determined that “the Complainant’s employment ended because of the expiry of fixed term contract and for no other reason.” The Complainant appealed to the Labour Court. During the Labour Court hearing a member of the Respondent’s Human Resources team confirmed that the Respondent employs staff, including general operatives, on fixed term contracts from time-to-time. She also confirmed that on occasion these fixed-term contracts have been renewed. The Labour Court determined it was self-evident the employees so engaged on fixed term contracts – including those that were extended or renewed – were hired when of an age that is under the Respondent’s normal retirement age and were, at the material time, therefore, younger than the Complainant when he was offered and accepted a fixed-term contract which was not extended notwithstanding his request to do so. Decision: The Labour Court determined that the Complainant was prima facie treated less favourably than younger comparators on the age ground. The Court allowed the Complainant’s appeal and awarded €2,000 to the Complainant by way of compensation, equivalent to one month’s gross pay. Interestingly, this case seems to have turned on the availability of comparator employees who were younger than the Complainant and had been on fixed term contracts which had been renewed. It appears that had there been no such comparators, the employer may have been able to successfully defend the Complainant’s age discrimination claim on the basis that the Complainant’s employment expired by reason only of the expiry of his post-retirement fixed term contract. This defence has worked successfully for employers before the WRC in the past. By way of example, in the cases of Carl Davidson v Amari Ireland Limited – (ADJ00037279) and Peter O’Loughlin and the Health Service Executive (ADJ-00026333). See our previous article last year which reviewed the Davidson case (along with a number of other retirement age cases) – https://aocsolicitors.ie/recent-wrc-decisions-on-retirement-age/ Takeaway for Employers: The above mentioned cases add to evolving caselaw on mandatory retirement ages. The following are the key takeaways for employers: If you wish to enforce a mandatory retirement age, you need to be able to demonstrate it serves a legitimate aim and that the means of achieving that aim are appropriate and necessary. Where an employer gives an employee a post-retirement fixed term contract of one year, for example, this may be sufficient to provide the employer with a defence to any subsequent age discrimination claim on the part of the employee so long as the only reason for the subsequent termination of the employment is the expiry of the post termination fixed term contract. However, this defence may not work where there are other younger staff members in comparable roles who were on fixed term contracts and had them renewed. While the giving of a one year post-retirement age fixed term contract might assist the employer in defending an age discrimination claim from that particular employee, where employers routinely give post-retirement fixed term contracts this could risk undermining the general mandatory retirement age in the organisation. For example, in the WRC case of Doreen Nolan v Alsaa, ADJ-00029859, the Adjudicator determined that there appeared to be a ‘rule of thumb’ that staff would be allowed to work on for a further two years which in effect was ignoring the employer’s stated retirement age of 65 in that case and bringing in a retirement age of 67. Employers should note this is a complex area of law that can be challenging to navigate. It is advisable to seek legal advice around the question of enforcing mandatory retirement ages in order to mitigate (in so far as possible) exposure to claims of age discrimination under the Acts. One final point of interest is the fact the WRC Adjudicator in the Ketterick case (and indeed the Adjudicators in the Curran and Murphy cases) confirmed a willingness to consider ordering reinstatement had the employee sought it. This is noteworthy in light of last year’s Supreme Court Judgement in the An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38 where the Supreme Court determined that reinstatement is only to be ordered in “exceptional” circumstances. See our previous article on that Supreme Court decision here (https://aocsolicitors.ie/supreme-court-rules-high-court-erred-in-re-engaging-school-principal-in-a-manner-that-meant-he-was-effectively-reinstated/ ). See also our previous article here (https://aocsolicitors.ie/wrc-orders-reinstatement-of-employee-who-was-unfairly-dismissed/ )  on a recent WRC award of reinstatement. Links – https://www.workplacerelations.ie/en/cases/2025/april/adj-00050808.html https://www.workplacerelations.ie/en/cases/2024/december/adj-00052056.html https://www.workplacerelations.ie/en/cases/2024/december/adj-00052052.html https://www.workplacerelations.ie/en/cases/2025/april/eda2534.html https://www.workplacerelations.ie/en/cases/2020/december/adj-00026333.html Authors – Lia Berkery & Laura Killelea 17th June 2024 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

In the recent decision of Thomas Farrell v Salesforce (ADJ-00052842), the Workplace Relations Commission (“WRC”) found that the Respondent’s failure to respond to a request for remote working within the four-week deadline breached the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”). Our previous article on the Act can be found here. Facts: With the agreement of the Respondent, the Complainant had worked fully remotely since June 2023, only attending the office when needed. In May 2024, the Complainant’s line manager informed her team members that employees would be required to attend the office between three and four days per week. The Complainant submitted a formal request on 10th June 2024 to continue working fully remotely. On 11th July 2024, the Respondent responded to the request seeking more time to consider the matter. However, this was outside the four-week timeframe stipulated in the Act for an employer’s response to such a request. It was submitted by the Respondent that the delay was due to human error. Decision: The Adjudicator, Breiffni O’Neill, upheld the Complainant’s complaint. When considering the amount of compensation to award, he noted that the Respondent had not provided any compelling reasons for their failure to respond to the Complainant’s request within the time period which had expired on 9th July 2024. On the other hand, he noted that the delay was minor, being only two days outside the four-week period prescribed by the Act. He made an award of €1,000. Takeaway for Employers: This decision is a reminder to employers to pay careful attention to the strict time limits provided for under the Act when dealing with remote working requests. The award of €1,000 was not insignificant for such a minor delay of only two days. Employers should familiarise themselves with the relevant time periods and their obligations when presented with a formal request for remote working. Further details are provided below in the WRC Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working. Links WRC Decision  AOC Solicitors – Work Life Balance and Miscellaneous Provisions Act 2023  Code of Practice for Employers and Employees Work Life Balance and Miscellaneous Provisions Act 2023 Authors – Ethna Dillon & Jenny Wakely 3 May 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

Francisco Martin Santano v Enable Ireland Sandymount School (ADJ-00050049) concerned a complaint under the Unfair Dismissals Acts 1977-2015. The Complainant claimed that he was unfairly dismissed when the Respondent refused his request to take a career break, needed due to loss of his accommodation in Dublin, and subsequently refused to allow him to return to his role when he finally secured accommodation months later. The Respondent claimed that his employment contract was frustrated when he left Dublin and he was not dismissed. Facts: The Complainant commenced employment with the Respondent on 1st September 2019 as a Special Needs Assistant. On 29th January 2023 the Complainant requested a one-year career break as he had to move out from his home by 22nd March 2023. His lease had been terminated by his landlord after 10 years. The Complainant described the effects of the cost of living and accommodation crisis in Dublin to the WRC; that he was unable to secure a property to rent in Dublin and was unable to purchase a property. He managed to agree an extension with his landlord to stay in his current home until the end of June 2023, meaning he could finish his work commitments for the current academic year. However, the Complainant submitted he was then left with no option but to relocate home to Spain ahead of the 2023/2024 academic year. His request for a career break was denied by the Board of Management of the School on grounds that only a certain number of teachers and special needs assistants were eligible for a career break at any one time, to ensure the school meets its obligations to its pupils, and the quota had been reached. The Complainant contacted the Department of Education who advised him that it was a matter for the Board of Management at the Respondent to resolve and that he could appeal the decision. The Complainant submitted his appeal, but it was unsuccessful. The Board of Management expressed to him that they recognised it was not the solution he was hoping for but that they were willing to engage with the Complainant if he was to apply for a role again in the future. The Complainant sent a letter to the Chairperson of the Board of Management in July 2023 outlining the exceptional circumstances that he faced, that he had to move home to Spain but would keep the school informed of any change if he secured accommodation. In December 2023 the Complainant informed the school that he would returning as he secured accommodation in Dublin as of 1st January 2024. The Respondent notified the Complainant that his contract of indefinite duration had been frustrated by his failure to return to work for the new academic year. The school had no choice but to recruit new applicants for his position as special needs assistants are critical to the support and education of the children in the school’s care. Separately the Complainant also described his frustrations with trying to access his personal data over a number of months after he submitted a data subject access request (“DSAR”) to the Respondent. In particular he requested minutes of meetings where his career break was discussed. The Complainant raised a complaint with the Data Protection Commission due to the Respondent’s failure to engage with his DSAR. Decision: The Adjudicator, Mr Jim Dolan, determined that he did not have jurisdiction to investigate the complaints concerning the Complainant’s personal data/potential breaches of the General Data Protection Regulation, as these should be referred to the Office of the Data Protection Commissioner. In relation to the complaint under the Unfair Dismissal Acts, the Adjudicator found no dismissal had taken place and therefore the complaint was not well-founded. In relation to the refusal to grant the Complainant a career break, the Adjudicator had regard to the Department of Education’s circular on the topic which states “in drawing up this policy, the welfare and educational needs of the pupils shall take precedence over all other considerations. The sole discretion as whether to grant an application for a career break rests with the employer”. The Adjudicator also considered the Respondent’s position that the contract had been frustrated. He referred to the following explanation of the doctrine of frustration in Redmond on Dismissal Law: “a contract of employment may end as a result of the legal doctrine of frustration, that is, where performance of the employee’s duties in the future would become radically different from that undertaken by him”. The Adjudicator found it impossible to disagree with the Respondent’s position, that the employee’s act of returning to Spain frustrated the employment contract. Takeaway for Employers: This is an interesting WRC decision as it is very rare that a contract of employment is held to be terminated by frustration. The decision quotes useful authorities on the doctrine of frustration. Separately, the decision also demonstrates the very real impact of the Irish housing crisis on industrial relations and employment law matters in Ireland. It is likely that similar cases will arise in the future, as employees may experience difficulty finding affordable accommodation in Dublin. Employers should be mindful of their policies and procedures in place concerning career breaks and/or requests for remote working or working from abroad. Any decisions made under these policies and the reasons for those decisions should be well documented. Indeed, if an employer can demonstrate they treated the employee experiencing this hardship with fairness and compassion and duly considered their request in line with established procedures (with the option to appeal), they will be better placed to defend potential claims. Link – https://www.workplacerelations.ie/en/cases/2025/april/adj-00050049.html Authors – Tara Kelly and Anne O’Connell 6th June 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie