Employment Law in Ireland - Case Study Example

Question The first question relates to Antonia. She is pregnant and apparently is being exposed to chemicals at Pisces that might be harmful to her baby. The first relevant law the must be examined is the Safety, Health and Welfare at Work Act 2005. Under this law, the employer is obliged to ensure the safety, health and welfare of its employees. This includes the obligation to manage and conduct work activities in a way that ensures the safety, health and welfare of its employees; and 菟roviding and maintaining facilities and arrangements for the welfare of his or her employees at work(Safety, Health and Welfare at Work Act 2005 (1)(8)). What this means to Pisces is that Pisces is obligated to ensure Antonias safety, health and welfare. It also means that it has the obligation to conduct work activities in such a way that ensures her safety and to provide arrangements for her welfare and safety. In other words, if Antonias doctor states that the chemicals that she is exposed to on the job is hazardous to her health or the health of her baby, Pisces must make arrangements to ensure her welfare and safety. This does not necessarily mean that Antonia is automatically entitled to a desk job; there could be other arrangements that can be made, and it would be up to Pisces to discover what these are. If Pisces can find a way for Antonia to safely work in her current job, then this what they may be able to do, assuming that there might not be a desk job for Antonia. But, if there is a desk job for her, and she is qualified for it, then this would be best, for this would be safest and there would be no question that Pisces has made accommodations and arrangements the ensure her safety. What they cannot do is summarily dismiss her. Lets assume that Pisces does not have a desk job for Antonia and there is no accommodation that can be made for her otherwise. Antonia is protected to some extent by the Sex Discrimination Order 1976, which states that an employer cannot treat an employee less favorably if she becomes pregnant than she would be treated if not pregnant (Sex Discrimination Order 1976). Antonia can arguably use this Order in her favor if Pisces decides to fire her, for, on its face, Pisces cannot fire her simply because she is pregnant (Hitch v. Smyth). Moreover, she might be covered by the Employment Equality Acts 1998-2008, which states that employers must take appropriate measures to enable a person with a disability access to employment (Employment Equality Acts 1998-2008 (1.7)). Although Antonia is not disabled, she might be able to use this provision of the Acts because she is disabled in regards to this particular job she cannot work this particular job, while other people can. If she can use this provision, then Pisces needs to adapt measures to accommodate her. However, these measures must not present a disproportionate burden, which it would if it is too costly to accommodate her. So, they might be able to say that, if there is not a desk job for her that she is qualified for and she cannot work in her current job that accommodating her would be too costly. This would be their defense. As for Mike, there does not seem to be any recourse for him or a reason not to dismiss him. He drives a van for Pisces, and now, because he got caught driving drunk, he does not have the license to drive anymore. Therefore, he is no longer qualified for his stated job. As his situation is not protected by any laws he is not disabled, and there is not a discrimination issue there is not a reason not to fire him. While Pisces may provide Mike with a desk job, if there is one for which Mike is qualified, Pisces is not obliged to do so. Question 2 The first question is what must be established to show that Tom is guilty of harassment. First off, harassment is unwanted conduct that 塗as the purpose or effect of violating a persons dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person(The Equal Status Acts 2000 to 2004). However, the Employment Equality Acts makes a distinction harassment is unwanted conduct related to any of the discriminatory grounds ((Employment Equality Acts 1998-2008 (1.6)). The discriminatory grounds are further defined as gender, marital status, family status, sexual orientation, religion, age, race, Traveller community and disability. Traveller community appears to refer to nomadic people. And, sexual harassment was the subject of the case A Worker v. Garage Proprietor. In that case, the court states that 吐reedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect. The Court will, accordingly, treat any denial of that freedom as discrimination within the meaning of the Employment Equality Act 1977(A Worker v. Garage Proprietor (EEO/2/1985). Therefore, sexual discrimination is handled under the Employment Equality Act 1977. Here, it is unclear exactly what was the harassment. Moreover, the facts do not specify what gender the alleged harassed is. More facts are necessary is the harassed part of a protected class? Was the harassment sexual in nature? These are the crucial questions to determine if there is a breach of either the Equal Status Acts 2000 to 2004 or the Employment Equality Acts 1998-2008. However, Pisces also has an obligation under the Safety, Health and Welfare at Work Act 2005 to ensure that the workplace is safety, healthy and conducive to the welfare of the employee. Arguably, a workplace where there is bullying and harassment is injurious to the harassed person, so Pisces has an obligation to stop it. In order to establish if Tom did harass the employee, it must be shown that Tom acted in a way that has the purpose or effect of violating the harassed individuals dignity, and if he created an intimidating and hostile environment. The harassment may take the form of 殿cts, requests, spoken words and gestures, or the production, display or circulation of written words, e-mails, text messages, pictures or other material(Employment Equality Acts 1998-2008). If it can be established that Tom did act in this way, then it can be established that he harassed or bullied the subordinate, and Pisces is obliged to do something about this. The question is whether Pisces has acted appropriately. They suspended Tom pending an investigation, with full pay. I would advise Pisces that this would be an appropriate act, but that the investigation should not be lengthy and Tom should not be suspended for an indefinite period of time. It is important that Tom be paid while the investigation is on-going and he is suspended, or else he might have a grievance related to a violation of his due process. The company should definitely invite Tom to give input to the investigation. It is crucial that they get both sides of the story, and, if they are not allowing Tom to participate in their investigation, they will only be getting the alleged victims side. As the investigation must be fair and impartial, both Tom and the accuser must participate in the investigation. Moreover, as the company really should have their policies regarding harassment and bullying spelled out in their employee handbook, and they apparently do not, then they need to sit down with Tom and give him, in writing, what its policy is regarding Toms situation, and what Tom can expect from the procedures that will be occurring. Moreover, they need to involve both Tom and the accuser in the process, every step of the way, to give each side a fair and impartial hearing on the matter. If Tom is improperly dismissed, then he may bring suit against Pisces under the Unfair Dismissals Act 1977, which states that if there is an unfair dismissal, 鍍he employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances(Unfair Dismissals Act 1977 (7)). The Act then goes on to say that the employee is entitled to re-instatement or re-engagement of his prior position, or payment of a sum of money. Whats more, the dismissal would be considered unfair if unless there were substantial grounds justifying the dismissal. Tom can argue that, if the employer violate procedure in firing him that there was not substantial grounds for firing him, which means that he can seek redress under the Unfair Dismissal Act. Question 3 This question is governed by the seminal case Faccenda Chicken Ltd v. Fowler [1986] IRLR 69. In this case, Mr. Fowler was the sales manager of a company that deals with chickens. After being fired, Fowler went into business for himself selling fresh chickens, and this business directly competed with Faccenda. Whats more, many of Faccendas employees left and went to work for Fowler. Faccenda sued, and his case was dismissed by the High Court Chancery Division and the Court of Appeal. The House of Lords refused the appeal. The reason was that the obligation not to use or disclose information pertained to trade secrets, but not information that given or acquired by the employee during the course of his employment, and does not extend to information that is only considered to be confidential because the disclosure of such would constitute a breach of good faith (Faccenda Chicken Ltd. v. Fowler [1986]IRLR 69. Whats more, the Competition Act 1991 states that any agreement that has 殿s their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State are prohibited and void(Competition Act 1991). The Fowler decision, taken in conjunction with the Competition Act 1991, mean that the restraint of trade clause and confidentiality clause are probably void. Fowler would seem to argue that confidential information extends only to trade secrets, and does not cover other information that the employee gains during the employment. As there is no indication that there are any trade secrets that were revealed by Alan, then the confidentiality clause probably cannot protect Pisces. And, the restraint of trade clause would have to be carefully drawn so that it does not violate the Competition Act 1991. Therefore, the steps that should be taken by Pisces is to evaluate whether there was a violation of the contract between the two parties, and, if there is, whether the provisions that dictate this situation are void or not. In evaluating this, it can be determined that Alans using the information in the company database to get new clients would not be considered to be a violation of confidential information. What they now need to determine is if Alan is using confidential information in his new business. Does he have information regarding Pisces pharmaceuticals that is confidential and trade secrets, and, if he does have this information, is he using it in an improper manner? If he is, then the company has a right to sue him and get an injunction to stop him from doing this. That said, the clauses will be evaluated according to following principles does the confidentiality clause cover only trade secrets, or does it cover any information that the employee gains during the course of his employment, such as a client database? If the confidentiality clause is overbroad and covers situations that are not considered to be confidential under Fowler, then those parts of the clause that cover information that is not considered trade secrets would be void. The parts of the clause that do cover trade secrets would still be valid. And the restraint of trade clause needs to be evaluated according the Competition Act 1991. If this clause has the effect of preventing, restricting or distorting competition, then it is void. In other words, it cannot state that employees do not have the right to not compete when they leave employment, because these clauses necessarily prevent competition. So, the wording of this clause needs to be done carefully so that it does not prevent this competition. Sources Used A Worker v. Garage Proprietor, EEO/2/1985 Competition Act 1991 Employment Equality Acts 1998-2008 Equal Status Acts 2000 to 2004 Faccenda Chicken Ltd. v. Fowler [1986] IRLR 69 Hitch v. Smyth, Industrial Tribunal, 2009. Safety, Health and Welfare at Work Act 2005 Sex Discrimination Order 1976 Unfair Dismissals Act, 1977 Read More