Duncan Inverarity, Head of Employment, A&L Goodbody, was a massive hit at our Annual Reviews of Employment Law in November. In this webinar recording, Duncan revises what he considers to be the top employment cases of the last year (including any post-November 2020) and sets out learning points and takeaway actions to put into practice.

Duncan and Scott Alexander from Legal Island discuss the top cases and why they are important to employers in Ireland. Duncan sets out the factual background, what the relevant court decided and what this means from a practical perspective for employers.

In this webinar, Duncan discusses:

• Probationary Periods
• Legal Representation at Disciplinary Hearings
• Enforceability of Restrictive Covenants
• Constitutionality of WRC Hearings
• Protected Disclosures
• Use of CCTV in Disciplinary Proceedings

The Recording

Transcript

Scott: Good morning, everybody. My name is Scott Alexander. Welcome to the second of our post-Annual Review of Employment Law webinars that we're having in January. Last week, we had Caroline McEnery chatting about remote investigations. Next week, we have Jennifer Cashman looking at her review of employment law changes throughout the year. And today, we have the wonderful Duncan Inverarity who is head of the employment group at A&L Goodbody. And we are going to be looking at case law, case law that he discussed at the Annual Review, and maybe one or two other issues that have come up since.

So before we get into the webinar and the questions and how you can take part, just a little reminder for you. We are doing a completely new course than we've done. You can see it there, "Re-Skilling HR for the Virtual Employee". That's to do with remote and, I suppose, hybrid working environment that we're in at the moment. It's three half-days. You can see the dates there, the 4th, 9th, and 10th of February. The early bird ends tomorrow, so if you want to click on and come and join us in February for that course, we'll send you a link afterwards and you can sign up for that particular course.

Now, today, we are going to be looking at case law developments that have happened in 2020, the tail end of 2019, and into 2021 with Duncan Inverarity. As I explained, he is the head of employment. There he is there. His camera has come on like a miracle that we didn't expect there. I am not going to put my camera on because I live in deepest, darkest County Armagh and my Wi-Fi is not brilliant, Duncan. But welcome to you. How are you?

Duncan: Welcome. Thank you very much. Yes, the camera wasn't working up until 10 seconds ago, so great. Everyone can see where I am spending my lockdown. So welcome, everybody. Great to have you on.

Scott: They've come to see you, Duncan, and hear you rather than me, so that's quite good.

Now, if you haven't been on one of these webinars before, just to let you know, you can ask questions. There's a little question box there on your right-hand side of your screen. So, if you ask questions, what we're going to do is we're going to go through each of those cases in turn, and then if you've asked any questions, I will ask them anonymously to Duncan at the end once we've finished discussing each of the cases.

So it's fairly simple. I'm going to ask Duncan a few questions about each of the cases, I'm going to ask him to give a bit of background, why he thinks it's important and why he's chosen those cases out of the many that he discussed at the Annual Review in November. And what should you do next as an employer or as a representative listening here today? What should you do? And then we'll go through any your specific questions that you might have on that particular topic as they come through.

We're due to run until about 11:45. If we get lots of questions, then we'll run over a little bit. Don't worry, you can listen back on the website after today's broadcast. In fact, you can listen to Caroline's and the other webinars on our website if you go into the Employment Law Hub. If you're not a subscriber, you can take out a free subscription.

Probationary Periods ⚓︎

So, Duncan, let's have a look at this first case here. It's O'Donovan and it's to do with probation periods and more. So tell us a little bit about the background and then we'll discuss some other issues.

Duncan: Thanks, Scott, and good morning to everyone on a beautiful sunny day here in Dublin. Scott and I were just having a bit of a laugh before we came on about what does a Scotsman and Australian know about Irish employment law. It sounds like the first line of a very bad joke, but hopefully, we can impart some knowledge to you this morning.

So the cases that I've chosen for today's presentation I think are the most important and indeed the most interesting from 2020. Some arrived at the tail end of 2019 and another case that I didn't discuss at the Annual Review of case of Conway, which you'll see there at number five, is at the back end of 2020. So I've tried to squeeze in as much as I can in my 12-month period. And certainly, they post-date the presentation that you got in 2019, which seems like an eternity ago.

So the first case that I want to talk about is the O'Donovan and Over-C Technology. Why am I talking about this? It's a case involving a probationary period, someone with less than 12 months' employment who traditionally we think does not have many employment rights. This is a case which suggests that they do and that in any termination, be it a probationary employee or someone within their initial 12 months, needs to be taken seriously and you need to consider pitfalls, such as Over-C Technology experienced, to avoid the prospect of an injunction.

So what was this case about? So Mr O'Donovan was the financial director of Over-C Technology. He was offered a job in May 2019, probably had to work out a notice period or had a restrictive period imposed upon him, didn't start with Over-C Technology until the August of 2019.

Clearly, things didn't go well for Mr O'Donovan and the relationship with O'Donovan was fraught during that period. He was effectively summarily terminated on the 7th of January for performance issues and was dismissed. He had a contract of employment, which did not exclude him from the application of the disciplinary policy. It had a provision that allowed for an appeal from any decision to terminate. It had a notice period of a month in the first year of employment. So what they did was they terminated him and were paying him a payment of a month in lieu of notice.

So Mr O'Donovan said, "I want to appeal the decision to terminate". The company accepted that he had the right to appeal because it was in his contract. There was some wrangling with Mr O'Donovan and his lawyers about some procedural issues. It got to the appeal hearing and Mr O'Donovan and his lawyers couldn't make the actual appeal hearing. So the company said, "Look, we know you can't make it. We know you don't want to conduct your appeal, so we affirm the decision to dismiss".

So I think stepping back for a second, Over-C Technology did not shower themselves in glory in the way in which they approached this. And that comes across in the High Court judgement, because the judge did not like what he saw. So it's Judge Keane in the High Court.

And he looked at the matter, ignored essentially, as he should, the fact that MrO'Donovan only had a relatively short period of service, but what he said is that irrespective of how long you are employed, you have rights. And what you need to look at is what was Mr O'Donovan's contractual right? His contractual right was to have a disciplinary procedure applied to him.

On the issue of does performance attract a disciplinary procedure versus misconduct, which obviously would, he looked at the cases of Carroll and Dublin Bus, and he looked at the case of Naujoks, which said that where there is a performance issue, so it's a cause issue, it is akin to a misconduct insofar as that there are procedures which must be followed.

Quite clearly, in this case, those procedures were not followed, neither from a contractual point of view, from a constitutional point of view, to the obvious detriment of Mr O'Donovan in that he lost his job.

It's clear from the High Court judgement that Mr Justice Keane wasn't too enamoured with Over-C Technology and, certainly, the way in which they treated Mr O'Donovan.

And in determining whether or not he would grant the injunction, he said that MrO'Donovan had established a strong case that the reason for his dismissal was his performance during the probationary period, and on that basis, he was entitled to fair procedures and that there was an obligation to conduct fair procedures for Mr O'Donovan, if for no other reason than they were in his contract, and finally, that they did not discharge that obligation. So, on that basis, the judge was fairly easily convinced that an injunction should be awarded.

Now, having no regard to the fact that Mr O'Donovan had no other claim, he had no statutory unfair dismissal claim, this was in effect his claim for unfair dismissal.

What the judge did in granting the injunction was that he ordered that MrO'Donovan be paid his salary for a six-month period and any other bonus and benefits applicable during that period. And this was in recognition of the fact that this was, in fact, Mr O'Donovan's case and the only opportunity that he would have to get any compensation as a consequence of his termination.

So he had to undertake to discharge his duties as the financial director, and if the company didn't want him to, that was okay as well. And the company had clearly given an undertaking before the case was heard that they would not fill the position, so that undertaking was discharged and they could then go and fill the position. So it was like a de facto unfair dismissal award for Mr O'Donovan via the injunction procedure.

That's effectively what the case was about, and insofar as what are the lessons learned, what are the takeaways from this particular case, the obvious takeaway, as I said at the beginning, is you must treat people who are on a probationary period or during a probationary period or in their first 12 months of employment in a manner which will reduce and minimise the risk of these types of proceedings. So you do have to apply fair procedure. You do have to have regard to what the individual's contract of employment said.

Even if the contract of employment says that those on probation are excluded from the application of disciplinary procedure, that is dangerous. It's very dangerous territory, because there is nothing to suggest that someone who is in a probationary period is not entitled to fair procedures. And this case reaffirms that proposition. So anyone in a probationary period, if you are to terminate their employment for performance issues, must be afforded fair procedure.

So it begs the question . . . and I know when I gave this line in the Annual Review that a couple of people took exception or raised the issue with me that if you don't give any reason, are you better off? There's an argument to say, yes, you are better off, because if you give a reason . . . if it's misconduct, clearly, they have fair procedure rights. If it's performance, they clearly have fair procedure rights on foot of this decision and also the Naujoks decision, which was a High Court decision of Ms Justice Laffoy a few years ago.

So, if you don't give any reason, how does that attract fair procedure? I leave that as a question rather than as an answer, but I do think there is an argument to say that if you do not give reasons, then you do not attract fair procedures. And I know some people may disagree with that as a proposition, but I'm just putting it out there that you need to think about that as an alternative to reasons.

It is human nature for all of us to give reasons as to why someone is being terminated, and clearly, once you get or attract employment rights, it's a good idea that you do that. But in circumstances where people with less than 12 months' service and/or are in probation have very limited employment rights, by giving reasons and the reasons that are given, you attach to those people significant employment rights. And Mr O'Donovan is a classic example of that.

So the takeaway is follow your procedure if the contract provides for it, as in MrO'Donovan's case, it clearly did. Employees with less than 12 months' employment clearly have employment rights. Don't think they don't, and you need to approach it along those lines. And poor performance is akin to misconduct for the purposes of attracting employment rights. And finally, just think about the reason why you are giving someone for the termination of their employment.

So, Scott, that's probably enough from me on the first case.

Scott: Okay. Thanks, Duncan.

Duncan: If you have questions . . .

Scott: No problem. Thanks very much, Duncan. That one there was to do with procedures, obviously, internal procedures. The next one, McKelvey, which is a long-running case, is also effectively about the constitutional right to fair representation and legal representation as discussed within the procedures.

So these cases, and the O'Donovan case in particular, you're right, it caused a bit of controversy at the Annual Review with the fact that if you don't give a reason and you're positing that as a possible way, then presumably, as happened in O'Donovan . . . If O'Donovan can show there was a reason, the employer really can't come up with a defence at the High Court either. They just have to rely on the fact that we are terminating him as part of the contract and that's it. We don't give anything. But if the courts look behind that, that's when it becomes a dangerous position today. Is that what you're saying?

Duncan: Yeah, and courts will only look behind it really if a reason is given, or no reason is given, but you can almost impute a reason. So the Naujoks case, for example, was a good example of that where Mr Naujoks, who was a researcher, from memory, was let go and he was given no reason.

So it was termination by notice, which you are entitled to do because it's a contract and you terminate contracts by giving notice. But in the employment context, that doesn't remove the obligation of the employer to follow due process, particularly and obviously where employees have more than 12 months of service, and for those with less than 12 months of service, as O'Donovan and Naujoks suggest, where there is a reason.

So, if you can impute a reason . . . so if there had been discussions with MrO'Donovan about his performance and then he was brought into a room and said, "Mr O'Donovan, you're being terminated", full stop and nothing more was said, I'm sure the court was entitled or could be entitled to impute that there was reason. It just wasn't said.

Whereas if you just don't give anyone a reason, you can have performance discussions and so on during the course of someone's probation, but the more you give reason, the more reasons you provide as to why someone is being terminated or may be terminated, there is no doubt that the employee attracts employment rights, as O'Donovan, as I said, suggests.

So, again, I don't want to be giving legal advice, but I'm just saying stop and think about the reasons why you are terminating someone in the first 12 months of their employment. Once they get beyond 12 months, if you don't give a reason, there is no doubt there is an unfair dismissal case there.

And I think just the other thing to say about O'Donovan, the way in which the company conducted itself was less than ideal. There is no doubt about that. They simply got him into the room, they terminated him, and they didn't allow his appeal. They didn't allow his appeals because of procedural issues and diarising meetings and so on. They did not do the right thing.

But if you do the right thing and you do go through fair procedures, notwithstanding the fact that it's performance issues, fine. I think that's what the court wants to see, and that's not what they saw in this case.

Scott: Okay. There are a few questions coming in. Don't know that we'll get through them all, but there's an interesting one here that ties in with the pandemic. "With regards to the current pandemic and staff being on temporary layoffs, etc., where does that leave employees with their probationary periods? Are they suspended?"

So I presume the caller here is saying, "Look, we put somebody on a six-month probation, say, but after three months, they've been laid off. They've only really worked for three months and they haven't been back at work for the last nine". So are they still on probation? They now have more than a year's service. What happens contractually or legally within that situation, Duncan?

Duncan: Yeah, good question and very relevant question. I mean, as far as their probation is concerned, provided you have the ability to extend the probation, you can extend the probation. You don't need to give reasons necessarily why you're extending the probation. But even if you were to give a reason that, "We are in COVID. You're laid off as opposed to in lockdown and working from home", that's sufficient.

So I have no problem saying that you could extend the probation provided your contractual provisions allow for you doing that and extending the probation on the basis of COVID ad layoff.

So distinguishing that cohort from those who are on probation but working from home, it's as if they were working in the office and the same rules apply insofar as if they were in the office how can you extend their probation. And you should judge your employees on the basis of their probationary period whether they're working from home or working from the office.

So the two cohorts, which I think are quite distinct, are the ones who are laid off and who are not working, and the ones who are working from home and not laid off. And I think, as I say, with the second category, which are those who are working from home, it's business as usual both in terms of probation and in terms of the 12 months.

So let's look at those who have been laid off. As I say, I think you can extend their probation period subject to what the contract says. Insofar as the 12 months is concerned, their employment will be continuous. So, if they get beyond the 12 months, they get beyond the 12 months. It's not as if their employment is frozen while they're laid off.

The whole idea of the pandemic unemployment payment and laying off is to keep the employment relationship alive. That is the basis of the payment and the government's policy, because otherwise, people would be making their employees redundant, which is what they're trying to avoid.

People will recall under the Redundancy Payments Act that if you did lay someone off, it could lead to an automatic redundancy if you didn't put them back to work. And that's been removed from the act for the time being, so it is all about keeping that employment relationship open. So that's to say they will get beyond the 12 months, even if they're laid off.

Scott: Okay. Thank you very much, Duncan. The questions are piling in, but I want to move on to the next case and maybe we will come back to some of those later.

Legal Representation at Disciplinary Hearings ⚓︎

The McKelvey case has been going on for a number of years and it's well known to most of the listeners. But at the tail end of 2019, the Supreme Court gave, hopefully, the final word on this. So maybe just explain quickly the background and the outcome and what that means for employers listening today.

Duncan: McKelvey is a really interesting case. Apologies if people know about this case, but I've put it in here because it's extremely important. I had a case this year where McKelvey is argued from both sides of the table, and I'll get into why that was the case. But it's a very live and very real case and very current, insofar as it's in people's psyches and people are using it to argue for legal representation and to argue against legal representation.

So while McKelvey has settled the point, it's settled the point to the extent that it is still debatable and debated at length. But it does in fairness tip the argument on one side insofar as legal representation is not as of right, and that's the default.

So what is McKelvey? Mr McKelvey worked for Irish Rail. My Irish is appalling, which is why I'm not going to give you the Irish version of Irish Rail. So MrMcKelvey worked for Irish Rail. There was an allegation that he had misused a company fuel card. So potentially criminal, just to set the scene. Potentially criminal action on Mr McKelvey's this part, theft. So Mr McKelvey was brought through a disciplinary process. Mr McKelvey was represented by a trade union official.

During the course or in advance of the disciplinary process, he requested that he be represented by a lawyer and by counsel. And Irish Rail said, "No, that's not going to happen. Our policy as in SI-146 says you can be represented by a work colleague or a trade union official. You have a trade union official. That is sufficient".

Mr McKelvey ran off to the High Court to injunct the disciplinary process on the basis that he was being denied legal representation. So that's the genesis of the case and that's how it worked its way through the courts.

It got to the Court of Appeal after the High Court. It got to the Court of Appeal, and the Court of Appeal said there have to be exceptional circumstances before you are entitled to legal representation. So that was the law following the Court of Appeal decision.

Then there was leave to appeal granted to the Supreme Court on the basis that there's a significant issue to be determined by the Supreme Court, that being the right to legal representation.

McKelvey stands for a number of prepositions, but the one that it's most known for is this issue of right to legal representation. So what did the Supreme Court decide? So Chief Justice Clark said in the Supreme Court, insofar as repeating a number of propositions that Supreme Court has already come up with insofar as employment law is concerned, that the courts should not and should be very reluctant to get involved unless the process has gone off the rails to such an extent that the disciplinary process is fundamentally flawed.

Now, the decision that really underpins that is the decision of Rowland and An Post. And that's quite encouraging for employers. You don't need to be absolutely right. As the Supreme Court has said, you don't need to be judged by the standard of angels, and that's kind of along that that line. You need to give it a good fist, you need to give it a good go, that it is something which has been done to the best of your ability, and that it's not so fundamentally flawed that it cannot be recovered.

Now, while that's encouraging, if you think of things like investigations, which precede the disciplinary process, if your investigation is so fundamentally flawed that whatever follows afterwards cannot be remedied, it just highlights the fact that you've got to get it as right as you possibly can as you go along to include the initial investigation.

So the High Court said, "Unless it's fundamentally flawed, we don't want to intervene".

Insofar as the right to legal representation is concerned, they made a big distinction between a necessity to have legal representation and "it's nice to have legal representation". So they said, "It falls way short of the standard or the requirement if it's just a better way of presenting your case". That does not justify legal representation. What justifies legal representation is it's a necessity to have a lawyer present or for you to be represented by a lawyer.

So when does that necessity arise? It's where there are exceptional circumstances, so the exceptional circumstances come into play again. They effectively affirmed the decision of the Court of Appeal, and what they said is that, "What do exceptional circumstances mean? We're not going to tell you precisely what they mean. Every case will depend on its facts and every request will depend on its merits. And insofar as Mr McKelvey is concerned, while we are not saying he's entitled to legal representation now, we're not saying that as this progresses or as the process continues, he won't be entitled to legal representation".

So it's very fact-specific, but it does set down a marker that legal representation is certainly not as of right.

They looked at things like how complex is the matter, both from an evidentiary point of view and from a legal point of view. Clearly, what they're saying is the more complex, the more likely you're to fit into the category of exceptional circumstances.

When I'm asked what I think an exceptional circumstance is, it's very difficult to say definitively what it would be, but I think one area that you should look at in terms of an exceptional circumstance is where it's involving someone's vocation. And by that, I mean, if you look at the Medical Tribunal, where a nurse could lose their vocation if they are terminated, or a doctor.

Probably more commonly in the financial reg space where if someone's fitness and probity is brought into question and the ultimate result may mean that they can never be a controlled function or a pre-approved controlled function. That may push it towards exceptional circumstances.

But if you look at Mr McKelvey possible criminal prosecution, losing his job, and so on, it's a serious issue, but yet the court did not say that he should have legal representation. I think that was swayed by the fact that he was represented by a trade union official.

I query whether we would have had the same result if there was no trade union official, if he'd been unrepresented, if he wasn't a member of a union, or he didn't have a work colleague.

Now, often in the more senior cases, the more senior executive type cases, the senior executive will say, "I don't have a work colleague. I'm chief executive. I can't bring my CFO or my COO into the meeting. It's just not appropriate. So I have no one. And I'm not a member of trade union. I have no one". So I think if there was a situation like that, perhaps there'd be some different considerations as to whether or not the person is entitled to legal representation.

In terms of takeaways from this case, as I said, legal representation is not the default in any employment case. It's not. There must be exceptional circumstances, which are incredibly fact-specific.

Back to my point about this is used in cases that I've had during 2020 where people said, "These are exceptional circumstances. We need to represent our client by way of legal representation", and the response is, "No, you don't. There are no exceptional circumstances". So it just generates that debate.

I had a case which settled last year but one of the issues was . . . again, it's COVID-related. It was a remote hearing. It was a disciplinary hearing that ultimately may have led to the termination of a very senior executive. And one of the reasons cited as to why legal representation was appropriate was because of the remote nature of the hearing, and the decision was taken by the client that this is not an exceptional circumstance. But it was the subject of an injunction before the High Court, the High Court were going to hear the matter, and then it's settled.

So it's very much a live issue and I think the debate is alive and well. So while settled insofar as the default is no legal representation, that's not an absolute.

Scott: Okay. Thank you very much, Duncan. If you've just joined us, you're listening to Duncan Inverarity from A&L Goodbody and he's chatting about various employment cases. He's just covered the McKelvey case there.

If you put in questions about probation, and there are many, what we'll do is we'll take those away and . . . A&L Goodbody also write our first Tuesday articles there, so we'll gather them together and maybe ask your colleagues, Duncan, to do a little article for people on the probation issues, because there are quite a few that have come in.

Just on McKelvey and what people should do, is it best to change your procedures or just ignore it? Because quite a lot of procedures I've seen would say you have no entitlement to legal representation or they would have, as part of the code, you have the right to be represented by a trade union representative or a colleague. Is it better to put something in or just leave it blank?

And if you're putting something in, would it be, "You may have the right to legal representation in very exceptional circumstances"? Or is it better to just not the raise the hair and just let it sit?

Duncan: I wouldn't raise the hair because I think you create an expectation of "You mean I do have the prospect of legal representation?" if you put it in the policy. I think the policy should, at minimum, follow SI-146 of 2000, which says work colleague or trade union official but no one unrelated to the business, i.e. lawyers. So I think you just stick with work colleague or trade union official.

Now, look, I am sympathetic to the argument from the very, very senior people that say, "I have no appropriate work colleague. I'm the top of the pyramid. I have no one that I could bring along with me and I'm not a member of a trade union".

The advantage of them having a lawyer there is, if the company has their lawyer there, you can have the discussions and the debates about due process and fair procedure as the matter goes on.

And if they continue participating in the matter, at the end of the day, they can't easily turn around and say, "Look, your process was flawed. We argued about this. You continued on with the process not knowing that we didn't agree with you or we agreed with your in part". So there's that advantage to having lawyers in there.

But in answering your question, Scott, or the answer to the question, I would keep . . . I mean, the policy should be as a minimum what is contained in the statutory instrument and leave it at that. I wouldn't raise the expectation of legal representation, and it's a discussion and debate you can have if and when it occurs.

Scott: Yeah. You might find the code changes over time and maybe explains some of the exceptional circumstances. I've done that in Northern Ireland.

Duncan: Yeah. I mean, we've had it for 20 years and it hasn't changed a lot in 20 years.

Enforceability of Restrictive Covenants ⚓︎

Scott: Well, let's move on because time is flying, Duncan. Your time is flying. We have this Bellew case here on restrictive covenants, another big case that has come through. And a lot of employers listening today would have restrictive covenants there. Maybe explain a little bit of the background and then why it's important and what we should do.

Duncan: Again, this squeaked into 2019. It was December of 2019 for those who remember. The hearing was right at the end of 2019. It's a case involving restrictive covenants. And like many people on this call, I'm often told rather than asked, "Restrictive covenants are not enforceable. They're not". Some people now say, "I told you restrictive covenants weren't enforceable. Look at the Bellew case". That's not what it says. So that's important to understand.

What Bellew does say is that restrictive covenants are enforceable. So it's certainly authority for the proposition that if you have a well-drafted restrictive covenant, they're enforceable.

Unfortunately, for Ryanair, in this particular case, they didn't. So what was it about? For those who don't know, Mr Bellew was the chief operations officer at Ryanair. In July 2019, he handed in his resignation and was due to work for EasyJet as their chief operations officer.

So that set the litigation running because Ryanair became the plaintiff. They injuncted him or applied to injunct Mr Bellew from working for EasyJet. Not from leaving, you can't do that, but for working for EasyJet.

Why did they do that? They did that because Mr Bellew signed post-employment restraints in 2018 separate to his contract of employment. So, in fairness, this isn't the normal restrictive covenant which is tied up into a contract of employment. He executed a separate non-compete provision for share options in 2018. Ryanair were relying on that separate document to enforce the non-competes and was the basis for the injunction to the High Court.

What did Mr Bellew say? Mr Bellew said a number of things. First of all, he said there was no consideration because the shares are worthless. So, "There was no consideration for this non-compete. I'm therefore not bound by it". That's the first thing he said.

The second thing he said was, "Ryanair treated me so badly, so badly, they should not be given this injunction". So it's gone back to this concept of if you're going to get an injunction, you need to go with clean hands. It's a lovely concept. So you need to be going without sin to the High Court to get this injunction, and Ryanair were not without sin. That was his second argument.

And the third argument, which was the more traditional argument, is that it's just too excessive. The restriction is too excessive.

What was the restriction? The restriction said a number of things, but importantly, it said, "For a period of 12 months, you cannot compete with Ryanair by working for a legacy or a flag airline".

Now, I don't really know what they were prior to the decision. So a legacy or a low-cost airline is obviously EasyJet. A flagship airline is something like Aer Lingus or one of the more established airlines, shall we say. So that's what it said.

And then it went on to say, "You can't work for a low-cost or flagship airline in any capacity". So it was those two aspects, and I'll come back. But the three aspects of the restrictive covenant were 12 months, any other airline in effect, and in any capacity, and I'll return to those concepts very briefly.

Just to get rid of the first two issues, the first being there was no consideration. The court said, "That's not going to work. The consideration is judged at the time you signed. If you signed because you thought there was some value in the share options, that's your problem. It's good consideration, so we'll throw that argument out".

The second argument, it was about the conduct of Ryanair, and what this Judge Allen said in the High Court, which is interesting but unhelpful, was he said, "Look, you didn't establish that Ryanair behaved particularly badly or so badly that I need to consider this issue. But it does raise the issue if an employer does behave badly, is that something which will effectively prevent them from taking these types of proceedings?" So he said, "You haven't reached any standard, so I'm not going to consider that". So open issue, right? But let's forget that for the purposes of this discussion.

Then the third issue was the three aspects of the restrictive covenant. With respect to 12 months, he said, "Twelve months, given the role that this person has and the confidential information that they retain, 12 months is not unreasonable". That's important. So a 12-month non-compete is potentially okay. That's a big deal. He did say that, "A confidentiality clause is a poor cousin to a non-compete, and a confidentiality clause in itself will not cut it".

So then he looked at the other two issues of the restrictive covenant, which is any other airline and in any capacity, and that's where Ryanair, excuse the pun, crashed and burned. They were clearly too excessive.

In respect of the low-cost and the flagship airline, evidence was given during the course of the injunctions . . . So it went to trial, which is unusual for injunctions. But it went to trial and the evidence was given by Ryanair to say, "If he was going to a flagship airline, we wouldn't have the problem". And he's going, "Well, then it's too excessive, because that's what your contract says and you're looking too restrict him irrespective of where he goes and that's not going to work".

And then secondly, in respect to any capacity, he said, "Well, you could restrict him from working as a pilot or as a steward or as anything, and that is too broad".

So, principally, for those two reasons, Ryanair were unsuccessful in getting their injunction and Mr Bellew went off and worked for, and is working for, EasyJet as far as I know.

So what are the takeaways? The takeaways, as I said, from the top of this chat, restrictive covenants are enforceable, make no mistake, and don't let anyone tell you otherwise. But, and this is a big but, they have to be properly drafted. They have to be drafted fact-specific. It's not one size fits all. It's absolutely not one size fits all, as is clear from Bellew, because you can't just apply this slavish restrictive covenant to all your workforce because it won't work.

So it has to be drafted properly. It has to be drafted to protect the legitimate interests of the employer insofar as that employee is concerned, and it's not going to cut it.

The other thing from the case is that there is a suite of solutions for employees to deal with employees post-employment, things like confidentiality. It's still important to have a good confidentiality provision. Non-solicitation as opposed to a non-compete, because a non-compete is the Holy Grail, but also a non-compete if you can get away with it. But if you're going to have a non-compete, you are effectively stopping the person from working in their chosen area. And courts, as a rule, don't like that, but as is clear from Bellew, it's not impossible to draft them properly. That's Ryanair.

Scott: Okay. Thank you very much, Duncan. So, if you're out there and you use restrictive covenants, get them checked by your lawyer is, basically, the message needs to people. It's going to be very difficult to judge whether it's fair or unfair unless you've had a lawyer look it over. And the wider it is, then the less chance there is that it's going to be lawful and enforceable.

Duncan: Yeah, correct. And sorry, just even getting a good lawyer to look at it, if you want to change it, it's difficult to change with an existing employee because you're sending out a massive red flag to the employees saying, "We don't think this is enforceable, so we're going to give you this one". They're going to say, "I'm not going to sign up for that". So I think let's just bite the bullet. You might want to look at prospective employees as to what the restrictive covenants should look like.

Constitutionality of WRC Hearings ⚓︎

Scott: Okay. Thank you very much, Duncan. Now, time is moving on and I don't know that we're going to get through all of those cases. So the Zalewski one is the WRC. That's the constitutionality one, and the WRC clearly exists and continues to exist, albeit working remotely. So maybe we could move on from that one and come back to it if we have the time.

Update April 2021 - The Supreme Court has ruled that certain aspects of WRC Adjudication hearings are unconstitutional. See here for case review.

But Conway was one that you didn't deal at the Annual Review of Employment Law with, Duncan. So could you maybe explain that one and why it's important? It's a protected disclosures case and they're particularly dangerous for employers.

Duncan: I'm just going to jump to Zalewski and leapfrog to Conway, just simply to say Zalewski is extremely important for practitioners, insofar as it is deciding the entire constitutionality of the WRC and potentially the Labour Court. If Mr Zalewski is right . . . I'll give you the takeaways from this case. If Mr Zalewski is right, we will be going to the district court to have unfair dismissals heard, or we will have an entirely new system and the WRC will be no more. So it's a pretty fundamental decision.

The Supreme Court have heard the appeal and we're just waiting on the judgement. So, absolutely, just watch out for that. It will get a lot of press when it comes out, but that's what it's about.

And for practitioners or employment HR, employment lawyers, whoever we are, it will have a big impact if Mr Zalewski wins the day. It's an interesting judgement if you're a bit of a nerd, a bit of an Anorak to read. It's the High Court judgement.

Protected Disclosures ⚓︎

So, as I say, leaving on then to Conway and Department of Agricultural, Food, and Marine. During the Annual Review, I talked about a number of protected disclosure cases that had made their way essentially to High Court and what did they say. Again, some really interesting stuff.

What Conway is about . . . and I'm raising it for two reasons. One, because I didn't realise it at the Annual Review. Three reasons. That's the first one. Secondly, as to what it says, and thirdly, as to what is coming down the track. Conway is a good example of what is coming down the track.

So, in relation to what it says, Mr Conway was a vet. He applied for a job with the Department of Agricultural, Food, and Marine. In fact, had been employed by them for a considerable period of time. Between the jigs and the reels was unsuccessful, and I think he was 87 on the panel, on the list of appointees.

He made a protected disclosure with respect to veterinary inspectors working in meat plants. Anyway, not getting into the detail of that, but he made a protected disclosure and it gets accepted that it was a protected disclosure.

What happened was he made the disclosure, and it wasn't dealt with. It wasn't dealt with, and I think everybody is in agreement that it wasn't dealt with appropriately for a period of four months. He sent four emails in, essentially ignored, and nothing was done.

So Mr Conway went to the WRC, his complaint being, "I have been penalised and they haven't investigated my complaint", and that was his case. He was successful in the WRC and he got €10,000.

It was appealed to the Labour Court. What the Labour Court said was, "No, that's not right, because we are a creature of statute, we are a body of statute, we are bound by the provisions in the Protected Disclosures Act. Accepting this as a protected disclosure, you haven't established that you've been penalised. What was the penalisation?" And they looked at the act and nothing could be established. No penalisation could have been established.

Then the second issue was his complaint was that, "They have not investigated my protected disclosure properly", and the Labour Court said, "We don't have jurisdiction to consider that. Your employer could not investigate this at all, or badly, or well, but we have no jurisdiction to determine whether or not that's the case because there is no course of action and there is no remedy available to you".

So the decision of the WRC was overturned because there was no penalisation. "There's no penalisation, so there's nothing we can do for you and we have no jurisdiction to determine whether or not they determined your protected disclosure in a timely fashion or at all".

So Mr Conway appealed to the High Court. In effect, Ms Justice Hyland in the High Court agreed with the Labour Court. "Irrespective of what they thought about the way in which Mr Conway was treated by virtue of the way the protected disclosure was progressed, they don't have jurisdiction. The Labour Court does not have jurisdiction to determine that matter. And if the Labour Court determined that you weren't penalised, which they are entitled to do as a matter of fact, then we the High Court are not going to disturb that finding in effect".

Interestingly, the High Court reaffirmed the principles of the Labour Court being a specialist tribunal and all that good stuff that comes up in Zalewski, ironically, but they were very differential . . . or Ms Justice Hyland was very deferential to the Labour Court.

And I think it's the right decision because they are creatures of statute. The statute clearly doesn't give the Labour Court the right to determine whether or not an employer has progressed a protected disclosure, so that's right.

The third reason that I wanted to mention this case is what's coming down the line. And what's coming down the line is the Whistleblowing Directive, which was an EU directive of 2019. We have to have it transposed by, I think, the 17th of December 2021.

Now, what that will mean, and I have no doubt this is what it will mean, is the Protected Disclosure Act will get a good makeover. It'll get a significant makeover.

And there are a number of issues in the directive, which I don't have the time necessarily to go into it now, but again, you should have a look at the directive and see what's coming.

But insofar as this issue is concerned, what it does do is it imposes significant time periods on the investigation of protected disclosure and that employers are required to acknowledge a protected disclosure within seven days. They are required to diligently follow up the protected disclosure within three months, which can be extended to six months, and they are required to provide feedback to the person who made the disclosure. So this will be part of the act.

So, if Conway was decided in 12 months' time, given facts which arose in 12 months' time, it would be decided, I think, very differently.

But just to be aware that this is coming down the line, and when we're all having a chat at the end of this year in person, really looking forward to it, we can talk about the directive and the effect and the changes to the law.

So one to watch. I put that in because it wasn't in the Annual Review and it's a really important aspect of what's happening in the whistleblowing world.

Scott: Thank you very much. And presumably, if Zalewski wins the case, then those types of claims, which will give jurisdiction presumably to the WRC, won't be held at the WRC, but if the WRC win, then they will do it. And what you're indicating is they'll presumably have jurisdiction to deal with procedural breaches by an employer who doesn't investigate properly or timeously a protected disclosure.

Duncan: Yeah, it would be a whole other cause of action, which is not available at the moment.

Scott: And there'll be adequate remedies imposed there as well. So it's five years, obviously, for I suppose what you may call a normal dismissal under a protected disclosure, but you could have whatever those adequate remedies would be for those procedural breaches.

Duncan: Yeah, I think you'll have the penalisation piece, which is, as you say, up to five years' remuneration. In certain circumstances, there will be a separate cause of action. So even if you're not penalised, as Mr Conway wasn't according to the Labour Court and the High Court, and even if you won't be penalised, there was a cause of action if you don't process the protected disclosure as will be required by the act via the directive. So that'll be interesting.

Use of CCTV in Disciplinary Proceedings ⚓︎

Scott: Okay, thank you. Now, technically, we're out of time. But, folks, don't worry, because you'll be able to listen back to anything. If you have to disappear, you can listen back. But just to finish it off, seeing that it's in there, what about the Doolin case? We'll take a couple of extra minutes there, Duncan. The Doolin and Data Protection Commissioner. What's that case about? CCTV in disciplinary proceedings affects quite a lot of people here. But a bit of background and why it's important?

Duncan: With that case, it's, I think, happily just the reaffirmation of common sense and what we should be doing anyway. Doolin involved the employer, which was Our Lady's Hospice. There was a situation where graffiti had been put into, I think, a cantina, a staff room of some description. There was CCTV outside the door, which showed Mr Doolin going in at the time that graffiti was put up, whatever artwork Mr Doolin had engaged in, and it was clear that Mr Doolin was the guilty party insofar as that was concerned.

The right of Our Lady's Hospice to process CCTV was limited to security. So they then used this CCTV to discipline Mr Doolin. Now, interestingly, Mr Doolin was not dismissed. He received a lesser sanction. So this case is interesting in that it was a case involving the Data Protection Commissioner more so than the normal employment rights, shall we say.

But what this case came down to when it did make its way to the High Court was that if you are going to use CCTV for disciplinary proceedings, at the very least, you need to tell your employees that.

Now, again, that's not earth-shattering stuff, but it was a bit odd that the DPC didn't believe that that was necessary. I don't know that I agree with the DPC in coming to that view. It is the case and I think, as I say, it's just a reaffirmation of common sense and what we should all be doing. You need to be absolutely clear what you're using personal data for. And if it's CCTV and it's to be used for disciplinary proceedings, then that's what you should put down in your data privacy notice and your data policy as well.

So what happened was that Our Lady's Hospice, during the course of this, changed its policy to make it clear that it was being used for disciplinary proceedings. Now, on one view, that's a good thing to do because that's getting your house in order. On another view, you're really signalling . . . it's a bit like the restrictive covenant if you want to change it. You're signalling to people that you didn't think you could get away with this in the first place, but you did. And that was used against them, certainly, in the High Court.

So, again, common sense. If you're going to use personal data for whatever reason, you need to tell people why you're going to be using it.

Scott: Duncan, just for the listeners, most of them because they don't have a disciplinary case going on board at the moment, if they wanted to change that particular aspect of the policy, it shouldn't be a huge issue for them, or would it?

Duncan: No, I don't think it'd be a huge issue for you at all. It's interesting. We're getting a lot of inquiries about COVID and data protection and so on. I think the public health exemption . . . I appreciate that it's not the direct answer to your question, Scott, but the public health exemption in Article 9, I think, of GDPR is getting trumped out a lot as reasons as to why people's medical condition is being perhaps circulated more widely than it should be. But data protection is still alive and well, notwithstanding the fact that we're in lockdown. If you don't have an on-going case involving CCTV, of course, you can change your policy whenever you consider it to be appropriate without a doubt.

It's interesting. During lockdown, from an employment law point of view and HR point of view, people aren't together in the same sense as they would be when they're normally in the office, so they're just not upsetting each other in the normal way that we would expect. So the fertile ground of Christmas parties, which is a great source of work for employment lawyers and HR professionals, is missing out this year. So bring them back.

Scott: Yeah, you'll have to bring back all those drunken Zoom parties that we're going to have.

Duncan: Absolutely, yeah.

Scott: There are the contact details that you've got. We'll deal with those probationary questions that you sent in early on through the first Tuesday with A&L Goodbody. Thank you, everybody, for listening. You can listen back. It should be on the website later on this afternoon, and certainly by tomorrow, if you want.

Just a reminder, "Re-Skilling HR for the Virtual Employee", that's our event that starts in February, three half-days. The early bird finishes tomorrow. We'll send you some details.

And our final webinar of this month on the follow-up to the Annual Review of Employment Law, at which Duncan spoke, will be with Jennifer Cashman. She's going to be reviewing the key changes, if you like, that are not case law related. That's on next Thursday, same time, 21st of January with Jennifer.

So thank you very much, Duncan. We'll see you soon.

Duncan: A pleasure. Thanks, everybody.

Scott: We hopefully are going to see you at the Annual Review this year, but maybe not. Thanks, everybody, for listening and we hope to see you next week. Bye-bye.