Month: February 2022

Miss Congeniality – A HR Nightmare?

An article in the latest issue of People Management Magazine casts a light on the HR and Employment law ramifications raised by plot elements of the hit film Miss Congeniality.

In the movie, agent Eric Matthews, in an attempt to identify which member of his team would be the best choice to go undercover at a beauty contest, uses his computer to simulate what his colleagues would look like in a bikini. When his coworkers gather at the computer to jeer at the results which include mock-ups of older women and senior leadership, we run into a problematic area.

They pose the question: Could this be classed as workplace bullying and discrimination? Could and should his employers have stopped this with proper training?

People Management spoke to Amo Bains, HR advisor at University Hospitals of Leicester NHS Trust.

“Jeering at what senior leadership and older female colleagues would look like in bikinis could potentially be classed as direct discrimination on the grounds of the protected characteristics of age and sex.”

Bains goes on to point out that, in lieu of a clearly defined policy on what constitutes bullying in the workplace, it is often characterised as “behaviour that is offensive, intimidating, malicious or insulting and is often intended to humiliate or injure the recipient.”

The lesson to be learned is this: Employers should have a clear policy and procedure in place that outlines what constitutes bullying and discrimination in the workplace and how it will be dealt with. What is banter for one person crosses the line into bullying for another and everyone deserves to work in an environment where they are respected and valued for their knowledge and skills regardless of their age, sex, or other protected characteristic.

PIAB to be ‘enhanced and reformed’ through new legislation

Plans to enhance and reform the Personal Injuries Assessment Board (PIAB) in a bid to encourage more claimants and respondents to use it have been given the go-ahead by ministers.

https://www.irishlegal.com/articles/piab-to-be-enhanced-and-reformed-through-new-legislation#:~:text=Under%20the%20legislation%2C%20the%20new,identity%20on%20application%20and%20disclose

The government has approved the general scheme of the Personal Injuries Resolution Board Bill and has now given the green light to the drafting of the bill, which will change PIAB’s name to the Personal Injuries Resolution Board (PIRB).

Robert Troy, minister of state for trade promotion, digital and company regulation, said: “Insurance reform is a continued priority for government and as minister responsible for PIAB, I am committed to delivering effective and impactful reform of the PIAB model that will reduce the cost of litigation and ultimately premiums.

“We know PIAB provides a time and cost-efficient alternative to litigating personal injury claims. The proposals approved by government this week focus on enhancing the PIAB model to not only encourage more claimants and respondents to avail of its service but crucially to have their claims resolved also, thereby reducing the need to go to court.”

Under the legislation, the new PIRB will offer mediation as a means of resolving a claim; will retain claims of a wholly psychological nature; will have additional time to assess claims where an injury is yet to settle rather than releasing to litigation; will seek proof of identity on application and disclose information to An Garda Síochána to reduce fraud; and will deepen its analysis and public information roles. The court’s discretion regarding costs in litigation will be tightened.

Mr Troy said: “In developing these proposals, I met regularly with PIAB and a range of representative bodies to assess the role of PIAB itself and address how best to enhance and reform the Agency. I also closely considered the wide range of proposals submitted to the public consultation I launched last year and the suggestions raised by stakeholders in my meetings with them.

“While there is no one simple solution to resolve the high cost of insurance in Ireland, it is my ambition that the new PIRB model will have more cases resolved through it in a timely, cost-effective way. I look forward to engaging with stakeholders as we progress to drafting and through the legislative process to ensure our reforms are robust and effective.”

Employment Case Review: Application to dismiss personal injury claim refused

https://thoughtleadership.leman.ie/post/102higt/employment-case-review-application-to-dismiss-personal-injury-claim-refused

By Amy McNicholas, 10th February 2022

BACKGROUND

Ms Hennessy (the “Plaintiff”) was employed by Ladbrokes (Ireland) Limited (the “Defendant”) as a customer service manager from 22 April 1998 until her employment ended, due to redundancy, on 11 August 2015.

At the time, the Plaintiff signed a Compromise Agreement (the “Agreement”) which included a clause that precluded her from issuing or pursuing “any proceedings or claim of any nature whatsoever” against the Defendant.

On 6 April 2016, some eight months after signing the Agreement, the Plaintiff lodged an application with the Personal Injuries Assessment Board (PIAB). A personal injury summons subsequently issued against the Defendant claiming damages for injuries to the Plaintiff’s shoulders. The Plaintiff alleged that she was repeatedly required to engage in repetitive movements and worked in unsuitable conditions.

MOTION SEEKING TO STRIKE OUT CLAIM

The Defendant issued a motion seeking to strike out the Plaintiff’s proceedings on three grounds:

Firstly, that the Plaintiff’s case would fail at full trial on the basis that she had signed the Agreement waiving any right of action against the Defendant. The Defendant described this as providing it with an unanswerable defence to the proceedings.
Secondly, the Defendant argued that the Plaintiff’s proceedings were statute-barred. This was on the basis that the Plaintiff’s medical evidence showed the injury occurred more than 2 years before she lodged the claim with PIAB.
Finally, the Defendant submitted that the proceedings should be dismissed based on the delay in the commencement and conduct of proceedings. In this regard, the Defendant relied on a seven-year delay from when the Plaintiff first experienced shoulder pain in 2009, to when she issued proceedings in 2016. It was also argued that there were three periods of delay of 12 months, 15 months and 12 months respectively, after the personal injuries summons issued.

HIGH COURT (THE “COURT”) PROCEEDINGS

In considering the Agreement, Ms Justice Marguerite Bolger (Bolger J) noted that the Defendant confirmed in an affidavit of discovery that it never had any documentation relating to pre-agreement negotiations for the Agreement.

The Court also considered the clause contained within the Agreement which stated that the Plaintiff had taken independent legal advice prior to signing the Agreement. In her replying affidavit, the Plaintiff submitted that she had not received legal advice as to the term or effect of the Agreement and was not advised to do so by the Defendant. The Plaintiff also claimed that the Defendant presented the Agreement to her on a “take it or leave basis.” The Court held that the absence of any pre-negotiation documents supported the view that the Agreement was put to the Plaintiff on a “take it or leave it basis”. In this regard, the Court found that the Agreement contained an untrue statement that the Plaintiff had taken independent legal advice.

Considering the judgement made in Board of Management of Malahide Community School v. Conaty [1] Bolger J held that there was an obligation on employers to explain the legal effects of agreements signed by employees, particularly in circumstances where the agreement involved the loss of statutory rights.

Bolger J also held that there was an implied obligation of mutual trust and confidence in the employment relationship and the Defendant could not rely on case law which states that a signatory was bound by what they signed.

In relation to the issue regarding the statute of limitations, Bolger J accepted that the Plaintiff had suffered from issues with her shoulder since 2009 and this was supported by the medical reports of her general practitioner and consultant rheumatologist. However, the Court accepted the Plaintiff’s submission that she did not realise the injuries to her shoulder were significant until she was advised to have surgery in 2015. In this regard, Bolger J held that this issue could not be fairly determined without further evidence from the Plaintiff and her medical team. Bolger J was of the view that the evidence relied upon by the Defendant was not sufficiently clear to dismiss the Plaintiff’s proceedings as being statute barred.

Finally, in relation to the issue of delay, Bolger J rejected the Defendant’s claim that the pre-action delay was seven-years. In fact, she commented on the fact that the Defendant had delayed in bringing the motion to dismiss and held that this could factor into the Court’s discretion to grant relief. In this regard and having consideration to Mangan v. Dockeray [2] the Court held that there was not a serious risk of injustice if the case continued. However, there would be an enormous prejudice to the Plaintiff if the case was dismissed.

THE COURT’S CONCLUSION

Bolger J was not satisfied on evidence that the claim was bound to fail and held that the Plaintiff was entitled to call evidence to deal with the issues surrounding the Agreement and the statute of limitations point.

GUIDANCE FOR EMPLOYERS IN RESPECT OF THE COURT’S FINDING RELATING TO THE AGREEMENT

Settlement agreements purporting to be full and final settlements, capturing all causes of action, including claims in tort, may not be as full and final as employers may have thought. In these circumstances, it is advisable that employers ensure that employees are making informed decisions by actively encouraging them (and keeping a record of doing so) to receive independent legal advice. In this regard, employer’s should ensure that the employee is informed in writing of their right to get legal advice and given sufficient time to obtain that advice. Without this evidence at a minimum, the enforceability of a waiver agreement could be brought into question.

The full judgement can be viewed here.

[1] [2019] IEHC

[2] [1995] 2 IRM 561