To appeal or not to appeal is sometimes the question that faces a party to an employment claim when a finding goes against them following the hearing before the initial forum. At least it may be said that the risks associated with appealing are not as great under most pieces of employment legislation, where often (but not always) the appeal is not into the civil courts but to a specialist body outside the courts system such as the Labour Court or the Employment Appeals Tribunal.

In these cases, an award of legal costs against the losing party is highly exceptional and each party carries its own legal costs (if any). However, this is not to say that an appeal may not be without its risks and potential costs, especially from an employer’s perspective.

First, there is the time of salaried employees who may be involved in the preparation for and the giving of evidence at the appeal hearing, such as human resources personnel and members of management. Second, the employer will have to pay the costs of their own legal representation (if any) regardless of the outcome. Finally, the employee in question may decide to cross appeal, for example on the adequacy of the compensation awarded, and that amount may be increased. Thus, all told, it is not a decision to be taken lightly.

* The first case reviewed in today’s email summarises just such an employer appeal and concerns a claim of alleged age-related discriminatory dismissal under the employment equality legislation, where the complainant had been awarded €30,000 in compensation by the Equality Tribunal. On appeal to the Labour Court, the respondent succeeded in having this decision overturned.

Discrimination on grounds of age has become a very hot employment law topic in recent years. It might be said in relation to this appeal that the employer benefited from comparatively weak presentation of the complainant employee’s case and did not ultimately pay the price for its own failure to comprehensively document contracts, meeting notes and discussions related to his employment and its extension beyond retirement age.

An employee may have claims under a number of different pieces of employment legislation arising out of the same set of basic events, for example, unfair dismissal, failure to provide notice or pay in lieu of notice, arrears of wages and holiday pay. However, can an employee bring a subsequent claim under a second piece of legislation having effectively settled a complaint under another Act in relation to the same incident?

* The second case reviewed in today’s mail concerns an employee appeal to the Labour Court from a decision of a Rights Commissioner under the Safety, Health and Welfare at Work Act 2005. The complainant alleged that as a specific response to an allegation of bullying that he had made, he had the benefit of an ‘acting up allowance’ that he was then in receipt of withdrawn by his employer and that this constituted penalisation for raising a health and safety issue.

However, it transpired that the complainant had previously made a complaint on the same matter to a Rights Commissioner under the Industrial Relations Act 1969 and the matter was settled with a payment of €4,000 in full and final settlement of his claim. His subsequent claim was therefore rejected by a Rights Commissioner. On appeal, the Labour Court confirmed this decision in holding that the complaint under the 2005 Act was ‘moot’ from a legal perspective, as it had already been dealt with under the industrial relations legislation.

These cases are:

* St Luke’s Hospital and Woods
* Wicklow County Council and Dunphy


1. St Luke’s Hospital and Woods (ADE/12/19, Determination No.EDA139, 11th March 2013)

The complainant in this case commenced work as a locum medical scientist in the Cytology department with the respondent hospital in November 1998, having retired from his job as a Senior Manager in the Royal Victoria Hospital in Belfast two years previously. Initially his employment was to be temporary, to replace another employee on sick leave.

In fact, it continued until February 2008 when he was approaching his 68th birthday. The respondent contended that his post came to an end as a result of voluntary retirement; the complainant argued that he had been dismissed on grounds of age. His claim of discriminatory dismissal to the Equality Tribunal under the employment equality legislation was successful and resulted in an award of compensation of €30,000. The respondent appealed this decision to the Labour Court.

On appeal, the Court heard that the complainant was an experienced and well reputed scientist in his field, already known to the Chief Medical Laboratory Scientist in the Cytology department of the respondent. When he was first employed on a temporary basis in November 1998, no written contract of employment was put in place as the arrangements were to be temporary and thus informal. Although the normal retirement age in the respondent hospital was 65 years, no retirement age was specified in the complainant’s case and he turned 65 in April 2005.

Later that year, the respondent appointed a new Human Resources Manager who became quite concerned that some employees had no written contracts. Two of these, including the complainant, were over 65 years of age at the time. She set out to redress the situation and a meeting was set up with the complainant, which the Chief Scientist also attended.

The outcome of that meeting was that all parties agreed that the complainant would retire on his 67th birthday in April 2007 and would be issued with a written contract to that effect. Curiously, no agreed note of the meeting was recorded and confirmed to the complainant. However, the Court appears to have accepted this account as the complainant did not dispute it in his evidence.

Before the complainant’s due retirement date in April 2007, the respondent became aware that another cytologist was about to go on maternity leave. Thus, the complainant was asked to delay his retirement and a further fixed term contract was put in place to cover this extra period. In November 2007, he attended a meeting to seek unpaid leave to care for his ill wife and this request was granted.

The respondent gave evidence that the complainant was reminded at that meeting that his employment was to continue until February 2008 when he could retire. However, his version of events was that he was told at that meeting that his fixed term contract would not be renewed when it expired in February 2008. Again no note of the meeting appears to have been produced but the Court concluded that the former was more likely and noted that in any case he appears to have raised no objections at the time.

The complainant also gave evidence that he believed no further work would be available following the return of his colleague from maternity leave. However, the respondent employed two trainee cytologists in January 2008. Given that he was paid at the top of the pay scale and the trainees at the bottom of that scale, the complainant therefore suggested that he was dismissed to make way for younger staff at a reduced cost to the respondent.

The respondent however argued that both were initially employed as trainees but that two permanent posts were subsequently created and advertised internally. The complainant did not apply for either post and the Court was satisfied that he did not express an interest in applying for them as he was due to retire. Thus the two trainees were subsequently appointed to the posts.

Finally, on the date the complainant’s employment ended, he accepted that a retirement party was held in his honour and that he even made a thank you speech. He also subsequently sent a thank you card to the HR Manager. However, by letter of 11th April, he also wrote to the HR Manager asking whether he was entitled to a redundancy lump sum. She replied that no entitlement arose as he had retired.

Reviewing the evidence, the Court concluded that the complainant had agreed to retire on his 67th birthday. Although his employment was subsequently extended, that did not in the Court’s view alter that agreement. It noted that that the complainant had ‘fairly accepted’ in his evidence that it was only after his retirement that he formed the opinion that the respondent was not lawfully entitled to ask him to nominate a retirement date.

The Court concluded that this was a mistaken impression on his part as S.34 (4) of the employment equality legislation provides that it shall not constitute discrimination on the age ground to fix different ages for retirement. However, the Court did acknowledge that ‘the breadth of this saving provision may give rise to concern regarding it’s compatibility with the Equal Treatment Directive’. It referred in this regard to the case law of the Court of Justice of the European Union (CJEU) on the fixing of retirement ages but noted that ‘the relevant authorities were not opened to the Court in this case’.

Apart from CJEU cases, other authorities that perhaps might have been relevant here include two fairly recent decisions of the Equality Tribunal itself; those of Saunders v CHC Ireland Ltd (DEC/2011/142) and Doyle v ESB International Ltd (DEC/2012/086). In both these cases, the respondent employer was required to objectively justify a retirement age in an individual case when challenged, even where that retirement age had been a clearly agreed term in the employee’s contract of employment.

However, it should also be said that the Court was clear in this case that the complainant not only agreed to retire but that at no stage prior to his actual date of retirement did he seek to revisit the issue. Thus, it said that it could not speculate on how the respondent would have reacted had the complainant subsequently withdrawn his agreement to retire. The Court therefore decided that his employment came to an end by agreement and not by discriminatory dismissal on grounds of age. The decision of the Equality Tribunal was set aside.


2. Wicklow County Council and Dunphy (HSC/12/20, Determination No.HSD134, 11th March 2013).

The complainant in this case worked as an Executive Engineer for the respondent. It is also worth noting that he was a safety representative in the workplace. In November 2011, he made complaints of bullying against a colleague. At the time of his complaint he was in receipt of an ‘acting-up’ allowance for working at a higher grade than normal.

An investigation was carried out into his allegations of bullying (curiously the decision does not appear to state what the outcome of that investigation was). In any case, following that investigation, the complainant was returned to his normal grade and lost the benefit of the ‘acting-up’ allowance. He claimed that this decision was directly related to his bullying complaint; the respondent denied that this was the case.

However, the dispute concerning the loss of the allowance was then referred to a Rights Commissioner by the complainant’s union under the Industrial Relations Act 1969, a piece of legislation that, amongst other things, allows individual employees to raise a grievance concerning their treatment at work. In the course of the hearing, the matter was settled and the terms of the settlement were put in writing and signed by the parties. The claimant accepted the sum of €4000 in full and final settlement of his claim under the Industrial Relations Act 1969 and without prejudice on the question of the respondent’s liability.

Subsequently, the complainant made a second complaint, this time under the terms of S.27 of the Safety, Health and Welfare at Work Act 2005. He argued that the loss of the benefit of the ‘acting-up’ allowance amounted to penalisation as a response to him for having raised a health and safety issue at work.

It is clear that making a complaint of bullying is a health and safety issue; for example, see the decision of the Labour Court in the case of Oglaigh Naisiunta Na hEireann Teoranta and McCormack (HSC/09/20, 18th March, 2011). However, having effectively accepted compensation to settle what was essentially the same complaint but under a different piece of legislation, could he try again under a separate heading?

The Rights Commissioner dismissed his complaint and he appealed that decision to the Labour Court. His argument was relatively straightforward. He suggested that the settlement was expressed to be only in respect of his claim under the Industrial Relations Act 1969 and did not bar him from claiming penalisation under another heading. The respondent in turn argued that he was legally prevented from bringing a second claim.

In a short decision, the Labour Court reviewed the case law of the superior courts in relation to ‘mootness’, i.e. where there may have been but there is no longer a legal dispute between two parties. It noted that the complainant now sought a declaration that he had been penalised, having settled his industrial relations complaint on terms that gave him the benefit of a substantial payment which he had accepted.

Thus, it concluded, even if he was not estopped (i.e. legally prevented) from maintaining the claim of penalisation, it could have no practical significance for him in circumstances in which his substantive grievance had already been fully and finally resolved. The Court held that his claim was ‘moot’ and disallowed the appeal.

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