Archived News Articles

August 2017

News and Publications

May 21 2018

William Harvey LLM

william harvey solicitor

Employment Law update: Bullying in the workplace

A recent decision in the case of Catherine Hurley v An Post provides a very helpful and detailed outline as to the steps and duties owed by an employer in circumstances where an employee alleges bullying against a co-worker. The matter came before the High Court and was presided over by Mr. Justice McDermott.

In July 2006, the Plaintiff was involved in an incident where a co-worker became aggressive and came nose to nose with the Plaintiff. The Plaintiff met with her supervisor immediately after the incident and an Incident Report Form was completed. The Plaintiff was later brought home by another employee such was her level of upset. The Plaintiff did not return to work until the 15th of August 2006 by which time the other individual involved in the incident had been suspended. The other party involved in the incident had a long history of disciplinary issues and it later transpired that when he was suspended he refused to leave the premises and the Gardaí were called.

A petition was later signed by 96 of the 132 staff of An Post expressing their disgust at the treatment of the other employee and in August 2006, unofficial action without notice was taken by the members of staff. Mr. Justice McDermott stated that it was clear that the “high level of resentment was also reflected in the staff’s treatment of Mrs. Hurley when she attempted to return to work”.

Mr. Justice McDermott was fully satisfied that management were aware of this continuing isolation which was causing the Plaintiff stress. Mr. Justice McDermott was satisfied that this was subjected on the Plaintiff by her co-workers and it gravely affected her health. When the Plaintiff attempted to deal with the situation, An Post made few or little efforts to engage with her or to caution the work-force as to their treatment of Mrs. Hurley.

An Post later alleged that Mrs. Hurley failed to make a written complaint in accordance with the company’s code, however, Mr. Justice McDermott was of the view that this completely disregarded the advice given to Mrs. Hurley by local management who she attended on. Mrs. Hurley was told by the local management to adopt a wait and see approach.

The Court considered Section 8 of the Safety Health and Welfare at Work Act, 2005 and outlined every employer’s obligation to protect, so far as is reasonably practicable, the safety, health and welfare at work of its employees. An employer’s duty extends to managing and conducting work activities in such a way as to prevent any improper conduct or behaviour likely to put the safety, health or welfare at work of its employees at risk.

In considering the circumstances and the legislation, Mr. Justice McDermott was satisfied that what occurred to the Plaintiff was the legal definition of bullying as found in the Industrial Relations Act, 1990. Workplace Bullying “is repeated, inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and / or in the course of employment, which could reasonably be regarded as undermining the individual’s right to work”.

The Court was fully satisfied that the employer had failed in both his common law duty of care to the Plaintiff and furthermore it’s statutory duty pursuant to Section 8 of the Safety, Health and Welfare at Work Act. In particular, the Court drew reference to the fact that a code existed and while the Plaintiff tried to invoke it, the advice from local management was at all times to see if things would blow over.

This is a very important case for employers and in particular, it is important to have, at a very minimum, a detailed bullying and harassment policy in place which consists of a code of practice. The policy must be enshrined in all employees and in particular managers so as when a complaint is made, the appropriate steps are taken in accordance with the policy.

It is essential for employers to be immediate and proactive when dealing with any issues concerning bullying. Employees should always be encouraged to make a complaint and the procedure should be discussed with them in detail and all employees should be fully comfortable with the process.

An employer’s duty does not stop once a complaint has been made. There are obvious obligations to investigate and to ensure that no further victimisation occurs when an employee makes a complaint

October 03 2017

Fergal O’ Sullivan BCL LLM

fergal o'sullivan solicitor

Harassment and sexual harassment in the workplace: An Employers perspective

Complaints by an employee to their employer regarding harassment or sexual harassment in the workplace are some of the most difficult situations for an employer to handle. Below, we set out some of the guidelines to deal with such allegations:-

(1) Dignity at Work Policy

Employers should have a comprehensive Dignity at Work Policy in place outlining in clear and ordinary language what an employee should do if they feel that they have been subjected to any harassment or sexual harassment. Contained within the policy, there should be three options open to the employee; informal procedure, mediation or the formal procedure. Although most employees would like to see complaints resolved as informally as possible, it must be acknowledged within the policy document that every employee has the right to seek to have their complaint formally investigated where it is appropriate.

(2) Investigation of the Complaint

Where an employee insists upon their rights to have the formal procedure invoked, an investigation will usually be carried out into the alleged offence by a nominated investigator. External consultants may be contracted to undertake an investigation at the discretion of the employer. This is always our recommendation. Once a formal complaint has been made, an investigation should be conducted thoroughly, objectively, with sensitivity, confidentiality and with due respect to the rights of all parties concerned. The investigations should also set out in clear terms the purpose of the investigation which should be communicated to all parties in advance of the commencement of the investigation.

(3) Outcome of Investigation

Where the outcome of a thorough and complete investigation is that an employee has engaged in actions or conduct which constitute harassment or sexual harassment appropriate disciplinary action should be taken, up to and including dismissal, depending on the seriousness of the incidents in question. Equally, if it is found that an employee has made a complaint which is malicious or vexatious, then the complainant should be subject to disciplinary action, up to and including dismissal, depending on the seriousness of the complaint. Again, an employer should defer to the disciplinary policy and procedure which should be followed out in the event of either of the above outcomes. A disciplinary hearing should be held in accordance with the policy document.

In circumstances where an investigation finds that an employee has not engaged in actions or conduct which constitutes harassment or sexual harassment or the investigation is inconclusive, both parties should immediately notify that the investigation has been conducted and there are no grounds to substantiate the complaint.The Dignity at Work Policy should always provide that the outcome of any investigation may by appealed by either party and set out how to do so.


It is important that a complaint of harassment or sexual harassment is dealt with in a serious and prompt manner. Any delay in dealing with a complaint may cause disruption in the workplace and furthermore, an employer may be held liable for the delay. A person raising the complaint of harassment or sexual harassment should not be subject to any adverse treatment provided that the complaint is made in good faith. The alleged perpetrator has the right to challenge a complaint of harassment or sexual harassment.

April 28 2018

Martin A. Harvey BCL LLB

Martin harvey solicitor

Personal Injuries – Appeal of High Court Decision to Court of Appeal

Gore (a minor) suing by his mother and friend –v- Walsh & Anor [2017] IECA278

The Court of Appeal held that an award of €50,000.00 to a minor who fell cutting his back against an unprotected radiator valve was grossly excessive and was later halved by the Court of Appeal. Direction was also given by the Court of Appeal to have the matter retried on the issue of liability.

The above case concerned a four year old who fell from his sister’s bed on to a radiator spindle at the defendant’s premises in December 2011. The infant Plaintiff sued through his mother and friend. The infant Plaintiff’’s mother and friend sued the defendant who had carried out renovation works to the bedroom in which the radiator was located. It was alleged that the Plaintiff was injured as a result of the defendant’s negligence in providing him with accommodation which was dangerous by reason of the presence of an unprotected radiator valve.

The matter came before Mr. Justice Cross where the defendants were found liable on the basis that the damage to the radiator was probably as a result of a sharp blow from a spanner or hammer while the work was being carried out. The defendants asserted that the damage was caused as result of the movement of a bed in the bedroom. This was dismissed by Mr. Justice Cross.

In respect of quantum, Mr. Justice Cross referred to the laceration by the Plaintiff which required suturing and which left him with what was described as a significant scar somewhere between 4.2 and 6 centimetres. Mr. Justice Cross awarded the sum of €25,000.00 for pain and suffering to date and a further sum of €25,000.00 for pain and suffering into the future. The decision was appealed on both the grounds of liability and quantum.

The defendants appealed on the basis that there was no evidential basis to support the trial Judge’s findings and that the inference that the radiator had been damaged through the acts of the defendants was total speculation. The defendants also argued that the act of negligence which formed the basis of the trial Judge’s findings had never been canvassed with the defendant’s expert witnesses at the trial of the action and therefore they had no opportunity to contest the alleged negligence. Finally, the defendants also argued on appeal that the award of damages was excessive having regard to the size and position of the Plaintiff’s scar.

Ms. Justice Irvine of the Court of Appeal sent the case back to the High Court directing that the issue of liability should be reconsidered. Furthermore, Ms. Justice Irvine found that the allegation by the Plaintiff’s legal advisors that the damage to the spindle was as a result of overtightening or striking it with some implement had not been specifically pleaded by the Plaintiff’s nor had the defendants any notice of this allegation as same was not contained within the Plaintiff’s expert engineering report.

In respect of the award of Mr. Justice Cross, Ms. Justice Irvine of the Court of Appeal reduced the award of damages for the personal injuries sustained by the Plaintiff to €25,000.00. The initial award of Mr. Justice Cross was reduced by 50%.

Ms. Justice Irvine outlined the basis for the reduction stating that the injuries sustained to the infant Plaintiff were the “very lowest end of the cosmetic injury spectrum”. Ms. Justice Irvine went on to comment further that as the injury was unaccompanied by any other physical or psychological injury that it “is possibly if not probably the smallest scar I have ever seen from the subject of High Court proceedings in more than thirty five years of legal practice”.

April 23 2018

William Harvey LLM

william harvey solicitor

Personal Injuries - Employer’s may be liable for manufacturers defect

In a recent case where a claim was made for personal injuries, the High Court determined that an employer may be liable for injuries sustained by an employee through the use of a defective product, if adequate preventative care is not taken by the employer.

In the above case, the Plaintiff made a claim for personal injuries arising out of an accident which occurred during the course of his employment. The Plaintiff sustained personal injuries when his left hand came into contact with a saw and sustained lacerations and amputation injuries to the fingers of his left hand. The incident arose when the Plaintiff was carrying an object in his right hand and his path was blocked by a number of trolleys. In an attempt to pass the obstruction, the Plaintiff pushed back a sliding table which was part of a saw machine, catching his fingers in the machine. The personal injuries sustained were significant in nature to the middle finger and ring finger of his left hand.

The matter proceeded before the High Court where the Plaintiff sought damages for personal injuries. There is no dispute between the parties as to the facts surrounding the incident. The facts were accepted by both parties and it was further accepted that the edge of the table presented a hazard. The only question arose as to where liability should be apportioned.

The plaintiff who had sustained personal injuries was an employee of FAS and the company which manufactured the machinery which caused the injuries to the Plaintiff’s hand was Werkhuizen. In respect of the legal submissions by FAS, they accepted that they failed to conduct an adequate risk assessment of the saw to identify the particular hazard. Since the accident, FAS have now fitted a plate to the front of the sliding panel of the saw to neutralise any risk of further harm.

The manufacturer of the saw, Werkhuizen, argued that the machine was in full compliance with European standards as set out in the European Machinery Directive. The Directive was cited and as to any protection requirements for the front and of the sliding panel. Despite this and the machine certification by an independent certification body, Judge Cross found that the company was not exempt from liability under the Act. Under the Defective Products Act, 1991, a product is defective if it fails to provide the safety in which a person is entitled to expect. Judge Cross determined that the saw was defective under the Act and the defect could have been addressed by the insertion of the plate as carried out by FAS subsequent to the incident.

Judge Cross also found that FAS were in breach of their duty to provide a safe system and place of work. Accordingly, the High Court found that both the manufacturer of the machine and FAS to be jointly and severally liable for the Plaintiff’s injuries. He determined that the defendants were liable on a ratio of two-thirds against FAS and one –third against the manufacturer.

There was no finding of contributory negligence against the Plaintiff and Judge Cross awarded a total sum of €281,500.00 in favour of the Plaintiff to include general, special damages and future loss of earnings. Due to the personal injuries suffered by the Plaintiff, he was unable to work as a Carpenter again.

January 02 2018

William Harvey LLM

william harvey solicitor

High Court holds absence of Legal Representative as not a ground for appeal.

A recent High Court decision which resulted from a Plaintiff’s appeal of a Circuit Court Order for possession of his family home found that the absence of legal representation is not a ground for appeal.

The Plaintiff sought to argue that as he was not represented throughout the Circuit Court proceeding, he was not familiar with the process nor did he have legal training and missed a number of Circuit Court hearings. He argued that had he been legally represented at the time, significant proposals would have been made to deal with the financial obligations. It is also argued that repayments were being made after an Order for Possession was granted by the Circuit Court and that a sum of in excess of €30,000.00 had been paid.

The High Court outlined that if it were to overturn the Circuit Court decision on the basis that lay litigants did not have representation, lay litigants could then approach litigation on the basis that the result did not go their way, they could rely on the absence of legal representation in the hope of having a decision overturned by the High Court.

The Court was cognisant of the fact that €30,000.00 had been paid by the Plaintiff since the Order for Possession had been granted and the proposals for payment did appear to be genuine. However, the Court outlined that this was put forward to late in the day.

The above decision shows the importance of uplifting legal advice before engaging in the litigation process be it as a Plaintiff or a Defendant.

November 27 2017

William Harvey LLM

william harvey solicitor

Mr. Justice Irvine delivered a significant judgement in the case of Platt –v- OBH Luxury Accommodation Limited & Anor concerning Section 26 of the Civil Liability Act.

Section 26 of the above 2004 Act prohibits Plaintiffs from knowingly giving evidence that is false or misleading. If an Application under Section 26 is made by Defendant following a Plaintiff giving evidence which is false or misleading, the Plaintiff’s case may be dismissed even if it is accepted that there is liability on the part of the Defendants. However, the court has discretion if it considers that the dismissal of the Plaintiff’s case would result in an injustice.

In this case, Mr. Platt sustained significant life threatening personal injuries when he fell out of a window in the Defendant’s premises. Mr. Platt suffered significant personal injuries to his ribs, spine and hip. Mr. Platt had given evidence and sworn a number of Affidavits before the Court and the effect of this evidence was that he was a man who was in continual and severe pain and effectively incapacitated.

In the High Court, Mr. Justice Barton found the Defendants were 60% liable for the Plaintiff’s injuries but having reviewed a video of the Plaintiff which showed him driving regularly, carrying groceries, closing his boot and walking unaided, the Court was of the view that this video footage was in stark contrast to the way in which the Plaintiff had presented in Court. The case was dismissed and an appeal was lodged in the Court of Appeal.

Mr. Justice Irvine, Court of Appeal, held the Plaintiff had given evidence that was false and misleading in a material aspect. The appeal stated that the very purpose of Section 26 was to operate as a significant deterrent to those people who bring claims which are fraudulent. The Court went on to note that a successful Application under Section 26 by a Defendant will not arise where the Plaintiff has made mere errors. It was also noted that the Plaintiff must be given an opportunity to counter allegations that false or misleading evidence was given by the Plaintiff. This opportunity must be given to the Plaintiff during the course of proceedings.

The Court also noted that if a Section 26 Application is deemed successful by the Judge, the claim must fail as a whole. It cannot be considered as something to reduce damages which the Plaintiff would be otherwise entitled to.

In light of the foregoing, the Court of Appeal upheld the decision of the High Court. It was deemed that the High Court was correct in striking out the Plaintiff’s claim for personal injuries on the grounds of Section 26 of the Civil Liability Act 2004.

The Court refused to accept the argument put forward by Counsel for the Plaintiff who had suggested that by failing to allow the Plaintiff some award of damages would result in an injustice being done to the Plaintiff which is covered by Section 26 (2) of the Act.

November 27 2017

William Harvey LLM

william harvey solicitor

Change in Reporting Regulations of accidents and dangerous occurrences at work

There has been an important change to the safety, health and welfare at work regulations which have been in place since 1993. The regulations will be of relevance to employees who suffer personal injuries during the course of their employment.

The regulations have been in place since 1993 and a number of changes have been introduced which will concern persons who have been involved in an accident at work causing personal injuries. The 2016 regulations have been introduced and include the following changes:

There is no longer a requirement for a family member to report a fatal accident involving a self-employed person.

The requirement for reporting of personal injuries involving members of the public has now changed. The requirement now only pertains to injuries which result in the person needing to be taken to hospital for treatment.

Timeline for making of the reports has now changed. Fatal injuries must be reported within 5 working days and non-fatal injuries to be reported within 10 days.

Fatal accidents in the workplace must be reported immediately to the Health & Safety Authority and also the Gardaí. A formal report must be submitted to the Health & Safety Authority within 5 days of the death.

Non-fatal injuries to employees while at work that result in the employee being unable to carry out their normal work duties for more than 3 consecutive days excluding the day of the accident, must also be reported.

Non-fatal accidents or dangerous occurrences must be reported within 10 days of the event.

A list of dangerous occurrences must be reported to the Health & Safety Authority and such occurrences are listed in detail in Schedule 15 of the regulations and are set out below:

Accidents/Incidents causing personal injuries

  • involving wind turbine
  • concerning the bursting of a revolving vessel (weld, grindstone or grinding wheel moved my mechanical power)
  • concerning locomotives or trains
  • with overhead electrical lines
  • involving breathing apparatus
  • around pipe lines
  • concerning freight containers
  • in the use of explosive substances or fire
  • with the escape or release of any substance which might be liable to cause personal injury
  • concerning collapse of a building or structure or scaffolding
  • with flammable substance
  • concerning pressure vessels
  • concerning vehicles, lifting mobile machinery

November 20 2017

Martin A. Harvey BCL LLB

william harvey solicitor

Forced Retirement – discriminatory or not?

A recent decision in the Work Relations Commission has shed light upon the imposition of a mandatory retirement age by an employer where there is no contractual basis provided.

The decision provides a very welcome reminder for employers that there is no automatic retirement age in the private sector for employees.

This particular case concerned a bookkeeper who was employed by a family business. The bookkeeper had worked without a Contract of Employment for 12 years for the family run business. The bookkeeper at no stage received a statement setting out her terms of employment and most importantly setting out the position with respect to her retirement age. The employer claimed that an oral contract had been agreed with the bookkeeper that she would retire at the age of 65. Also the employer argued that a pension scheme was in place for the bookkeeper which would take effect at the age of 65. Therefore, it was argued that a retirement age of 65 was foreseen by both the employer and the bookkeeper.

It was held by the Work Relations Commission that the forced retirement was discriminatory on the grounds of age. An award of €12,000.00 was made for the breach of the employee’s rights under the Employment Equality Acts 1998 -2015. The Respondent was also found liable for failing to provide a Statement of Terms (Contract of Employment) and a further award of €630.00 was made.

It is very important for employers to note that the Equality (Miscellaneous Provisions) Act 2015 commenced in January 2016 and permits an employer to determine a mandatory retirement age provided the age is objectively and reasonable justified by a legitimate aim and the means of achieving that aim are proportionate and necessary.

Such justifications for the imposition of a mandatory age may include the promoting of access to employment for younger employees by distributing the work between different generations and also ensuring health and safety of employees in physically demanding roles.

It has been our experience at Martin A. Harvey & Co. Solicitors that very few employers are fully aware of the requirements of the 2015 Act.

November 13 2017

William Harvey LLM

william harvey solicitor

Welcome Practice Direction concerning McKenzie Friends

A recent practice direction has been issued by the Presidents of the High Court and the Court of Appeal with respect to the position regarding McKenzie Friends. A McKenzie Friend is a lay person who attends court with a lay litigant to help and provide assistance to the lay litigant throughout the litigation process. There has been calls in the recent past for clarification on the role of the McKenzie Friend.

The practice direction was made following comments by Mr. Justice Peart in a recent Court of Appeal decision. The case of Butler and Butler –v- Nelson & Co. Solicitors concerned an ex-solicitor who was acting as a McKenzie Friend to the above referred Plaintiff. The McKenzie friend was not on record for the Plaintiff as a result of being struck off the Roll of Solicitors. In this particular case, Mr. Justice Peart felt that the McKenzie friend had “overstepped the mark” in respect of the assistance provided to the Plaintiff. Mr. Justice Peart further commented that a McKenzie Friend should only follow a “passive and limited role”. Mr. Justice Peart called for guidelines to be published on the nature and limitations of the role of McKenzie Friends.

The practice direction sets out clearly the position of McKenzie Friends throughout the litigation process.

A McKenzie Friend is entitled to:

  1. Give advice in a discrete and quite manner on any aspect of a case
  2. Take contemporaneous notes
  3. Provide moral support for litigants
  4. Help with the paper load/paper work associated with court litigation. However, a McKenzie Friend must be cognisant of Section 58 of the Solicitor’s Act 1954 which makes it a criminal offence to draw or prepare a document relating to any legal proceedings either directly or indirectly where there is an expectation of any fee or gain or reward.

The practice direction went on to set out what a McKenzie Friend cannot do and this includes:

  1. Receive any payment for their services
  2. A McKenzie Friend does not have a right of audience or a right to engage in the litigation process. Therefore, a McKenzie Friend cannot address the Court, make oral submission or examine witnesses.
  3. Manage litigants’ cases outside of Court
  4. Act as the litigant’s agent in relation to proceedings

The above referred practice direction became effective as of and from the 1st of October 2017.

November 07 2017

Marie O’ Brien BCL

marie o brien solicitor

Paternity leave: What are your entitlements?

The legislation concerning paternity leave is still in its infancy having been introduced and come into effect in Ireland in September 2016. Under the new legislation, a male parent is entitled to two weeks consecutive leave to care for his child. The two week entitlement must be taken within 26 weeks of the birth or adoption of the child. The legislation covers both new born babies and also adoptions.

The employer is not obliged to pay the father during the paternity leave, however, a parent taking paternity leave is entitled to a benefit of €235.00 per week when availing of paternity leave from the state

There have been a number of recent reports suggesting that very few new fathers are availing of their right to take paternity leave. It is estimated that less than 1 in 4 are availing of the leave. This has sparked debate and calls on the Minister for Social Protection to make the leave mandatory.

It is difficult to say with definition the reasons as to why there has not been a greater uptake in the leave. It is worth contrasting the benefits paid in mainland Europe in respect of paternity leave as against that in Ireland. For example, Italy only allows 2 days paternity leave on full pay whereas in Germany there is no statutory entitlement to paternity leave at all. In the UK, the payment while on paternity leave is limited to €160.00 per week and in France, one is entitled to two weeks paternity leave on full pay but this is capped at approximately €3,270.00.

The above clearly sets out that the Irish paternity entitlement is not particularly ungenerous in comparison to the rest of the EU. Any legislative provisions forcing an employer to pay employees during paternity leave is likely to be very unpopular amongst employers. Another alternative available to the State would be to increase the payment on paternity leave but this would also be likely to result in an increase in maternity leave payment.

The above suggests a catch 22 type situation where employers cannot be expected to pay employees when on protracted periods of leave where they do not receive services in exchange but at the same time, employees cannot afford to take the leave in the first place. Any legislative provision to increase the payment of paternity leave is likely to result in an increase across the board in respect of all other leave entitlements.

October 17 2017

William Harvey LLM

william harvey solicitor

Aftermath of Hurricane Ophelia: Insurance Cover

The good news is that, the hurricane is has been and gone but it has left an aftermath of destruction, to businesses, cars and private residences. It is vital that contact is made with your insurers to notify your them of the damage. However, before doing so it is important to consider the following advice.

Your Home & Business

The vast majority of private residential and commercial policies of insurance, fully cover damage whether the damage is significant or minor in nature. The majority of home insurance policies will also cover the contents of your home which have been damaged as a direct result of the hurricane.

The majority of commercial policies will provide for damages sustained to any products, equipment or inventory. It is also worth assessing your policy to ascertain whether the policy covers losses arising from the storm which have caused your business to close temporarily. A number of policies will include loss of turnover / income.

The most common area of damage to one’s property following a hurricane is the roof of the house and in general most policies of insurance will cover for the ultimate cost of repairs but also immediate aftermath repairs which are deemed as an emergency. It is worth reviewing your policy carefully to ascertain whether there is provision for an emergency repair to be carried out, the costs of which should be fully covered by your insurer subject to the usual policy excess.

However, it should be noted that the majority of home insurance policies will not include damage to garden furniture, sheds, gates or any boundary hedges or fences.

Your Car

If you hold a comprehensive policy of insurance with respect to your vehicle, you will be covered for any damage caused by fallen trees, floods or any storm related damage. There are often suggestions that if one drives their car through the middle of a storm, an Insurer may seek to repudiate insurance cover. In our experience, this is not the case and any attempt by an Insurer to repudiate where damage was caused during the course of hurricane Ophelia should be arbitrated under the appropriate clause of the insurance policy.

However, it should be noted that an insurer may have a justifiable ground to repudiate insurance where unreasonable risks are taken such as driving your car through a very heavily flooded road or where you place the car in a situation where there is a very high risk of danger.

The next practical steps to be taken:

It is very important to detail and document the full extent of the damage caused to your property. Only where safe to do so, photographs or videos should be taken of any of the damage to the property. If at all possible, steps should not be taken to repair any damage to your property until an insurance assessor has had an opportunity to view it.

It is very important to detail and document the full extent of the damage caused to your property. Only where safe to do so, photographs or videos should be taken of any of the damage to the property. If at all possible, steps should not be taken to repair any damage to your property until an insurance assessor has had an opportunity to view it.

If there is substantial loss of household contents through storm damage, efforts should be made to retain all items as they may be recoverable under the contents element of insurance.

You should call your Insurer immediately and advise as to the damage caused. Advise of your intention that you wish to make a claim under your policy to recover your losses. It is likely that an Assessor will be sent out to view the property damage but expect delays given the high volume of claims which are likely to be made.

If your property is inhabitable at the moment, it is worth enquiring with your Insurer as to whether the cost of alternative accommodation is covered under the policy.

Please note that all of the above insurance cover is likely to have a deductible excess which will be an amount which you will have to pay to your insurer before any payment is made by your insurer. The amount generally ranges from €200.00 - €500.00 and details can be found on your policy documents. It should be noted that there is no guideline amount in respect of deductible excess as the sum will depend on the nature of the insured property and most importantly, the existing agreement between you and your insurer.

If you have any further queries in relation to the above, please don’t hesitate to contact William Harvey of Martin A. Harvey & Co. Solicitors, Parliament House, 9/10 Georges Quay, Cork City – 021-4963400.

October 11 2017

Martin A. Harvey BCL LLB

martin harvey solicitor

Personal Injuries – High Court confirms limit to employer’s duty of care to employee

The High Court has recently ruled that there are limits to an employer’s duty of care to their employees.

In this particular case, the Plaintiff brought a case arising out of a slip and fall which occurred in the entrance of his employer’s store. A claim for personal injuries was brought by the Plaintiff who was employed by the defendant.

Both the Plaintiff and the Defendant accepted that an accident had occurred where the Plaintiff slipped and fell on a liquid. CCTV showed the Plaintiff had entered and exited the area on numerous occasions prior to the accident but that just before his fall, a liquid had been deposited on the floor causing him to slip and fall. A very short period of time had elapsed between the liquid being deposited on the floor and the Plaintiff falling.

Mr. Justice Barton ultimately held that were the Court to find the defendants liable in circumstances where there is approximately one minute between the depositing of the liquid on the floor and the Plaintiff falling would amount to finding the defendants as an insurer for the Plaintiff in all circumstances. The Court was of the view that this was going too far and that a limit must be placed on an employer’s duty of care.

The High Court dismissed the Plaintiff’s case on the basis that the obligation was too onerous.

October 03 2017

Fergal O’ Sullivan BCL LLM

fergal o'sullivan solicitor

Employment Law Update – Dangers of not following the Disciplinary Process

The Work Relations Commission recently awarded an employee €12,000.00 in compensation for a dismissal which was held to be unreasonable on the basis that it was not within the band of reasonable responses in circumstances where cash totalling €640 went missing from the workplace.

The employee was employed as a store checkout manager and one of the employee’s duties was to collect and return the cash float bags from the shop floor to the cash office. As part of the employer’s procedures, such employees must be accompanied by security personnel when carrying out this task. On the day the cash went missing, security staff had offered to accompany the employee to the cash office but she declined their assistance. The following day, following an extensive but unsuccessful search, the employers discovered that one cash bag containing €640.00 was missing.

On the 5th of January 2016, the employers arranged an investigation meeting and some three days later, 8th of January 2016, a disciplinary meeting was held with the employee and employer. It was at this stage that the employer decided to terminate the employee’s Contract of Employment with immediate effect. The employer informed the employee that the dismissal was not for theft but failure to adhere to Company procedures.

While the employee admitted breaches in procedure such as failing to transport the cash to the office in the company of a security officer and failing to count the bags of cash as she placed them into the cash office safe.

The crux of the Work Relation’s decision in awarding the sum of €12,000.00 concerned the lack of a written procedure confirming the requirement to be accompanied by a security officer. While this was known and acknowledged by the employee, there was no written clause/term in the Company procedures.

The Work Relations Commission were of the view that in circumstances where an employer seeks to impose a zero tolerance policy, the employee is entitled to written notice within the employer’s disciplinary procedures. This should include the serious consequences of not adhering to this procedure up to and including dismissal.

It was also noted by the Work Relations Commission that the investigation process and disciplinary process should not be conducted by the same person as it undoubtedly hinders an employee’s rights to fair procedure.

September 24 2017

Author: Marie O’Brien BCL

Marie O'Brien document author

Employee Dismissed following three driving accidents at work – compensation awarded: €72,000.00

The Labour Court has recently handed down a ruling concerning the unfair dismissal of an employee who had worked for his employer for over 11 years. The employee had been employed for 11 years and was involved in a driving incident in 2012, 2013 and a further accident in 2015. The latter accident cost €2,500.00 in repairs to his work van. The employer commenced a disciplinary hearing on the basis that the employee had failed to protect and safeguard Company property.

Following the incidents in 2012 and 2013, a live warning was placed on the employee’s file for a period of 12 months. The warnings expired before the 2015 incident.

Ultimately, the employee was dismissed with immediately effect for gross misconduct on the basis that he had failed to protect and safeguard Company property.

The matter initially came before the Work Relations Commission and the Adjudicating Officer found that the dismissal was disproportionate and ordered re-instatement. This decision was appealed to the Labour Court where the Labour Court specifically outlined that it was appropriate for Company Management to consider the entirety of the employee’s employment and in particular the fact that the previous warnings had lapsed.

The Labour Court was not of the view that the 2015 incident amounted to gross misconduct when considered in isolation bearing in mind the earlier two warnings had lapsed. The Court also noted the employer failed to consider alternative sanctions and placed undue weight on expired previous warnings.

It is important to note from an employer’s point of view that if disciplinary procedures are in place, the said procedures should be followed and adhered to very carefully by the employer. If procedure provide for a specific time for the placing of warnings on personnel files, these warnings should not be considered in circumstances where the period has expired. Employers should never rush to summary dismissal and efforts should always be made to seek an alternative to dismissal.

September 20 2017

Author Marie O’Brien BCL – Solicitor, Conveyancing and Probate Department

Marie O'Brien document author

Recent Supreme Court Decision – Care Owed to Purchaser in respect of Error within within a Property Sale Brochure

The Supreme Court have recently handed down a judgment which will be of keen interest to all parties involved in both commercial and residential conveyances. The recent Supreme Court ruling has emphasised the principle of “let the buyer beware”. In the case of David Walsh –v– Jones Lang Lasalle Limited, a case was brought by the Plaintiff in respect of errors within a property sale brochure which contained the following disclaimer: “Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending buyers/lessees should satisfy themselves as to the correctness of the information given”.

The Plaintiff purchased a property at 77 Upper Gardiner Street, Dublin 1 and the Defendant was the Auctioneer in respect of the property. The Auctioneer prepared a brochure which mis-described the first floor area as totalling 10,463 square feet but in fact its true area was 8,573.5 square feet. The Purchaser did not check the measurement and claimed to have relied upon the sale brochure in purchasing the property. The error only came to light after the sale had closed when the Plaintiff was preparing to let the property.

The Defendants admitted that there was an error in the brochure but fought the case in the High Court on a number of legal issues concerning the above disclaimer.

The High Court found that the Defendant, Jones Lang Lasalle Limited, were liable as the disclaimer did not operate to protect them. The Plaintiff was awarded the sum of €350,000 in compensation which was the amount by which it was determined the Plaintiff had overpaid for the property relying on the mistake in floor area. The Defendants appealed this decision to the Supreme Court who ultimately overturned the High Court’s decision. The Supreme Court found that the High Court was incorrect in finding a duty of care was owed by the Defendants to the Plaintiff Purchaser. The Supreme Court analysed relevant case law and concluded that disclaimer was important evidence in establishing that the Agent Auctioneer had assumed no responsibility to the Purchaser for the accuracy of the statements contained in the brochure.

The Defendants admitted that there was an error in the brochure but fought the case in the High Court on a number of legal issues concerning the above disclaimer.

The above Supreme Court decision is of critical importance to a number of parties involved in the residential and commercial conveyancing.

  1. Auctioneers/Agents: Should always ensure that all advertising and promotional documentation is accurate but also ensure that a well drafted and water tight disclaimer is included to cover any potential inaccuracies.
  2. Investors/Purchasers: Should always engage the appropriate professional before buying a property and should not rely solely on information provided in any promotional or advertising material. The appropriate Engineer or particular Expert, depending on the property in question, should be engaged to thoroughly investigate all matters concerning the property.
  3. Vendors and their Solicitors: Are reminded of the importance of including in all Contacts for the sale of property , be it commercial or residential, to include an entire Agreement Clause which provides that not statement, measurement or calculation contained in any brochure or any documents in respect of the property whether issued on behalf of the Vendor, the Vendor’s Agents or the Vendor’s Solicitors constitutes a representation inducing the buyer to enter into the purchase of the property.

September 16 2017

Author: Martin A Harvey, Principle of Martin A Harvey & Co. BCL LLB

martin harvey document author

Proposed legislation to be introduced on Zero Hours’ Contracts

The Department of Jobs has announced that it intends to take immediate action to regulate the use of “zero hours” contracts and the Attorney General has given this matter priority.

Zero hour contracts provide that an employee must make him/herself available for work but does not in fact have any specified hours of work. This maintains a constant “on call” situation. It is in these circumstances that employers retain complete discretion as to when an employee works and is free to decline an employee’s services if they wish to do so. These contracts have attracted considerable public criticism both in Ireland and the U.K. in the recent past as it is believed that it leads to an abuse of employees as they have no way of knowing in advance what their income will be in any particular week. This will have obvious knock on affects for employees when trying to secure credit.

In 2015, the Irish Government commissioned a Report which was undertaken by the University of Limerick in relation to zero hours contracts. It was found that over 5% of Irish workers were employed under such contracts. While the legislation proposed is still only in draft format, a number of the suggestions made will have a significant impact on the existence of “zero hours’ Contracts”. Some of the proposals include:

(1) Employers will be obliged to provide certain information to new employees to include an expected contract duration, the manner in which pay will be calculated and what the employer reasonably expects the normal extent of the working day / week to be. (2) It will be an offence if the employer fails / refuses to comply and the above and will ensure that an employee is given the important information concerning their contract of employment at an early stage.

It is also proposed to introduce a new minimum floor payment of three times the national minimum wage where an employee is called into work but is not actually provided with the hours expected. This is a key introduction which should prove to discourage employers for summoning employees to work for very short periods. The legislation will also create a new cause of action where employees can argue that their actual hours worked are not actually reflected in their contracted hours. If a difference arises between the contract and the hours that the employee works, an employee can seek to be placed in a band of hours that is closer to the hours they actually work.

In assessing this, whether an employee works consistently more or less hours than contracted to do so will be determined by examining the previous 18 month reference period which should allow for seasonal fluctuations at busier times of the year. The legislation will also include a clause which will prevent employees being victimised where a claim is made under the new legislation.

This is common place in most recent legislation and serves to protect an employee who makes a complaint where their rights have been breached.


While a published text has yet to be released, it is clear that there is a move towards eliminating zero hours’ contracts in their entirety or to make them very difficult to work on a practical basis from an employer’s prospective.

A further update will be provided once a published text has been released.

September 13 2017

Author: W. Harvey LLM

william harvey document author

Dog owners beware – High Court Judgment

The High Court has recently awarded the sum of €234,557.00 to a woman who was attacked viciously by two dogs as she walked along a quite rural road.

The victim sustained repeated bites to her head, face, arms and legs. The attack was only stopped when another woman came to the scene in her car and sounded the horn which caused the dogs to run away.

The Presiding Judge, Mr. Justice Barr, said liability was not an issue in the case and he was satisfied that the victim had been exposed to a prolonged and very frightening attack by two dogs which had left her with a number of permanent scars on her face and arms.

In awarding the sum of €234,557.00, Mr. Justice Barr, stated that the woman was still very afraid of dogs and if she met them on the street she would avert her eyes and pull her hands into her sleeves and walk away.

The above ruling is an important ruling for dog owners who should always keep their dogs on a secure leash when in a public place. In this particular case, the High Court Justice was satisfied that liability was not in issue and that the dogs were fully responsible for the attack and thereafter injuries suffered to the victim.

September 08 2017

Author: W. Harvey LLM

william harvey document author

Cross Boarder Driving Disqualification to come into effect

Motorists who have been banned from driving in Ireland concerning a number of offences will also have their ban recognised in the U.K. under a new provision brought into force by Minister Shane Ross. Similarly, Motorists who have been banned in the U.K. will also have their ban recognised in Ireland.

The new provision arises from an International Agreement entered into by the two countries and also a number of legislative procedures. The Agreement concerns disqualification arising from a range of traffic offences such as reckless or dangerous driving, drink/drug driving, hit and run offences, speeding, refusal to undertake an alcohol or drug’s test and driving whilst disqualified.

Currently, there is no cross boarder mechanism for the mutual recognition of penalties for road traffic offences such as above.

September 05 2017

Author: Marie O’Brien BCL

Maria O'Brien solicitor

Recent WRC Decision – the importance of an effective and thorough grievance procedure

The Work Relations Commission have recently awarded an Office Manager the sum of €159,705.00 following a grievance which was raised in relation to a health and safety issue within the workplace. This is one of the highest awards made by the Work Relations Commission to date.

The Complainant had been working for the Respondent for an excess of 34 years. The Complainant had raised a grievance concerning difficulties within the workplace which were effecting her health. The Employer took no action in relation to these complaints. The Complainant was summarily dismissed from her employment weeks after raising the grievance.

The Work Relations Commission found that the Respondent’s Employer did not deal with the complaints or issues raised by the employee despite the fact that it was incumbent upon the Employer to do so. The Work Relations Commission also found that the dismissal of the Employee two weeks after making her complaint was a significant issue.

The above decision serves as a useful reminder to Employers that an effective grievance procedure should be implemented where an Employee makes any form of complaint. All complaints should be thoroughly investigated irrespective of the nature of the complaint.

September 01 2017

Fergal O’Sullivan BCLLLM

Fergal O'Sullivan solicitor

Recent Discrimination Ruling – An important reminder for Employers

A recent decision of the High Court in the case of Burn –v- The Minister for Defence and Others, is an important reminder for Employers to ensure that they are fair, clear and consistent with their procedures to deal how Employees are rewarded and promoted within the workplace.

The case concerned alleged unlawful discrimination by an Employee of the Defence Forces whilst on maternity leave. The matter came before the High Court and was ruled upon by Mr. Justice Eagar who found that it was reasonably foreseeable that the Applicant would leave her employment in circumstances where she was treated in a different manner to her work colleagues, all of whom were men.

Usually, a claim for discrimination is dealt with under the Work Relations Commission (WRC) in line with the provisions set out in the Equality Acts of 1998 and 2015. However, this legislation specifically excludes members of the Defence Forces from bringing such a case.

Mr. Justice Eagar ultimately found that the treatment of the Applicant was deemed to be a breach of the 2006 Equal Treatment Directive on the implementation of the principal of equal opportunities and equal treatment of men and women in matters of employment. This directive explicitly prohibits discrimination on grounds of sex in public and private sectors which also includes public bodies such as the Defence Forces.

Mr. Justice Eagar awarded the sum of €824,794.00 to include the Applicant’s loss of earnings, pension loss, gratuity loss and loss of future overseas duties.

August 25 2017

Author: W. Harvey LLM

william harvey document author

Home - D.I.Y’ers’ – Beware – Recent Court of Appeal Decision

The Court of Appeal has recently held that where a homeowner assumes a DIY task in their home, they assume a duty and that duty will be judged as against the standard expected from a reasonably competent tradesman.

The Court of Appeal have set out that a homeowner will not be allowed to rely on a defence of lack of knowledge, ability or craftsmanship in carrying out a particular task.

The case concerned a 22 year old who was present in the Defendant’s house as a guest. The Plaintiff was outside the Defendant’s house when he tripped and fell through a glass panel of a porch door. The glass shattered into tiny pieces and a shard became lodged in the Plaintiff’s eye, causing total loss of sight.

Throughout the course of the proceedings, it came to light that the Defendant had repaired the porch door but used an inappropriate glass for the job.

The case was initially heard in the High Court and the Defendant were not held to be liable on the basis that the Defendant was not expected to perform the fitting of the glass panel to a standard such as that performed by a professional glazier.

The matter was ultimately appealed and came before the Court of Appeal where it was held that the Defendant had failed in his duty of care to visitors by repairing the door to a standard below that of what would have been expected by a reasonably competent tradesman.

The decision of the High Court was overturned and the Defendant was held liable for the injuries suffered to the Plaintiff.

August 16 2017

Patricia O’Sullivan BCL AITI

Patricia O'Sullivan solicitor

Employment Law Update / the right to Legal Representation in the Internal Employment Procedures.

A recent High Court judgement in the case of Michael Lyons – v - Longford Westmeath Education and Training Board has provided welcomed clarity in respect of an employee’s right to have external representation (legal or otherwise) in the internal grievance or disciplinary procedure.

The case concerned a complaint of bullying dating back over several years comprising of several different allegations. The employer retained an outside Company to conduct an investigation into the complaints and the Company did not allow Mr. Lyons the opportunity to cross-examine the colleague who had made the above complaint against him. Mr. Lyons was ultimately informed that the bullying complaint had been upheld and that his Employer would therefore be implementing its disciplinary process. Mr. Lyons applied for injunctive relief to the High Court and ultimately, Mr. Justice Eagar considered a number of recent High and Supreme Court decisions and concluded that the investigation conducted by the Defendants was in breach of his constitutional rights as it failed to allow Mr. Lyons to have legal representation, be it Solicitor or Counsel, who could have cross-examined the Plaintiff.

The above case follows a line of recent authorities dealing with such matters. It has now been accepted by the High and Supreme Court that in circumstances where the potential consequences for an employee are sufficiently serious such as damage to one’s reputation or loss of job, an employee is entitled to benefits of natural justice which include the right to have legal representation and to have a witness cross-examined.

August 09 2017

Author: W. Harvey LLM

william harvey document author

A Welcome Reform to the Insurance (Amendment) Bill 2017

On the 5th of July 2017, the Minister for Finance and Public Expenditure and Reform announced that a Bill will be drafted to bring into force recommendations of the review of the framework of the Motor Insurance compensation industry in Ireland.

The proposed Bill is very much welcomed following the recent Supreme Court Ruling concerning the failed Motor Insurance Company, Setanta.

The main changes proposed concern an increase in the level of the insurance compensation fund coverage for future third party motor claims from 65% to 100%. This increase will be funded by the insurance industry and mechanisms will be in place to protect the industry should a motor insurer be liquidated. The terms will be included to ensure the exchequer is repaid as quickly as possible where there is a shortfall in the industry fund. Other changes will now see the fund administered by the Central Bank of Ireland and the State Claims Agency will also have a role should any Insurance Company fail in the future.

While the Bill is only in its early stages, it is a welcomed development as it is expected to provide further clarity in respect of the insurance compensation framework in Ireland.

August 02 2017

Author: W. Harvey LLM

william harvey document author

Proposed changes the Personal Injuries Assessments Board Acts

The Department of Jobs, Enterprise and Innovation have released a general scheme with respect to the proposed amendments to the current Personal Injuries Board legislation, the Personal Injuries Assessments Board Acts 2003 and 2007.

The new Bill proposes to strengthen the powers of the Injuries Board and it will bring to fruition a number of recommendations included in the Report prepared by the cost of insurance working group.

The Bill includes a number of key proposals which are set out below:

  1. The Injuries Board will enjoy greater discretion in relation to cases of non-compliance such as non-attendance at medical appointments arranged by the Injuries Board or failure to provide Schedule of Special Damages or Loss of Earnings.
  2. The Bill provides that the Book of Quantum will be reviewed every three years and it also gives the Injuries Board the power to obtain relevant data from individuals and organisations to assist in the preparation of the Triennial Book of Quantum.
  3. The Injuries Board will enjoy more discretion to release claims from their remit where claims are not in a position to proceed.
  4. Apply limitation periods under the Acts in a more consistent manner.
  5. The general scheme of the Bill has now been sent to the Office of the Parliamentary Council for drafting and also to the Joint Oireachtas Committee on Jobs, Enterprise and Innovation for Pre-Legislative Scrutiny.