McGrath v. Trintech

In 2004 one of the most significant developments in employment law was the decision of the High Court in the case of McGrath v Trintech. In that case an employee made a claim against his employer for stress caused to him while working in Uruguay.  Laffoy J held that the risk of psychological harm to the employee could not have been reasonably foreseen by the employers as the employee had failed to complain directly to his employers. As a result, the employee's claim was unsuccessful. Laffoy J directly approved of the reasoning of Lady Hale in the Hatton Vs Sutherland line of cases.

ESB Networks v David Kickham

In this case the Labour Court considered the status of apprenticeships' contracts with their employer. In the past it had generally been accepted that non-statutory apprentices, i.e. apprentices in industries that were not regulated by FAS, were in fact employed on a fixed term contract and that if they were dismissed after completing one year's service they could bring a claim under the Unfair Dismissals Act 1977.

The employee in question had been employed on a fixed term contract with the ESB before starting his apprenticeship. Upon completion of his apprenticeship he claimed that he could not be offered another fixed term contact as the terms of the Protection of Employees (Fixed-Term Work) Act 2003 provided that a fixed term employee who had completed three years service could only have his contract renewed on one further occasion for a term of one year. The Labour Court overturned the earlier decision of the Rights Commissioner and held that the characteristics of a contact of apprenticeship "are significantly different from those of a normal contract of service." As a result, the employee had not completed a number of consecutive fixed-term contracts and was not covered by the terms of the 2003 Act.

The Future Awaits

Employment law is a complex area. There is the LRC, the Labour Court, the Rights Commissioners, the Equality Tribunal, the Employment Appeals Tribunal, the Labour Inspectorate, the HSA, various Implementation Bodies. There are District Court Cases, Circuit Court Cases, High Court cases, Supreme Court cases, European Court of Justice cases, Advocate General's opinions, etc. Then there is the daily reality encountered in smoke filled rooms (smoke filled no longer) when Industrial Relations realpolitik, which often has only a passing acquaintance with the actual law of the land, is taken into consideration.

There are over 25 Statutes, and countless Statutory Regulations which impinge on this area of law.

In order to simplify this, and following on from a Review Group recommendation the Government has now agreed to a programme of action to simplify employment law and relevant litigation.

Thank you to David Fagan, Director of Employment Law, O'Donnell Sweeney Solicitors for the main content of this email.