EMPLOYMENT LAW

1.0 The Irish Legal System

Prior to the arrival of the Anglo-Normans in the 12th century, Ireland was governed by a
system of tribal royal families where Brehon law was developed. This was a system of
law based on custom. English law arrived in Ireland in 1169 with the invasion of the
Anglo Normans. As centuries passed and the English system developed, the judges
played a central role in the actual development of English law. They set out the basic
rules of law or common law. These are the rules of law which exist today in Ireland and
our system of law is known as common law.

Sources of Irish Law

 The Irish Constitution of 1937

 The Common Law (also known as the Doctrine of Precedent)

 Legislation (also known as Acts or Statutes)

 European Law

 Individual and Collective labour law

 Custom

1) The Constitution

The 1937 Constitution is a document which was drafted between 1935-1937 by legal
advisors to the government of Eamonn deValera. It is the basic law of the State and it
provides for the principal structures of government: the Executive, the Oireachtas and
the Judiciary. It has a higher status than statute law and any legislation not consistent
with the Constitution is invalid. Article 46.2 provides that “Every proposal for an
amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon
having been passed or deemed to have been passed by both Houses of the Oireachtas,
be submitted by Referendum to the decision of the people in accordance with the law
for the time being in force relating to the Referendum”.

The Constitution is composed of 50 Articles and they provide inter alia for the following;
the right to be treated equally; the right to express freely one’s convictions and
opinions; the right to assemble peacefully; the right to form associations and unions.
Protects fundamental human rights. Some of these rights are expressly recognised and
these are known as Enumerated Rights as they are expressly enumerated in the
Constitution. Human rights expressly protected include the right to private property,
the right to life, the right to a good name, the right to liberty, the right to freedom of
expression, freedom of association and freedom of assembly.

The Constitution also recognises what are known as Unenumerated Rights. These rights
are not expressly provided for, but are interpreted by the Courts from Article 40.3.1°
which says:
"The State guarantees in its laws to respect, and, as far as practicable by its laws
to defend and vindicate the personal rights of the citizen."
From this article, the Courts have found Constitutional rights to marital privacy, the right
to communicate, the right to marry, the right to fair procedures, the right to litigate (i.e.
take a case to court) and many other rights.

2) Common Law

Most of our law derives from decisions of judges and this judge made law is based on a
rule known as the doctrine of binding judicial precedent. This means that a decision
made by a court in a case involving a particular set of circumstances is binding on other
courts in later cases, where the facts are the same or similar.
Decisions of higher courts are binding on all lower courts. A decision of an earlier court
at the same level of the system is binding on a later court unless that court has good
reason not to follow it.
The law is interpreted by judges, applied in the case before him/her and then the
principles developed by the judges are binding on later judges - Judge Made Law. It is
based on the Doctrine of Precedent (also known as the Rule of Stare Decisis) as each
case is a precedent which is then binding in later cases.

The principles and rules established by cases are the law and must be obeyed, until
overruled. They may be overruled by:
- Legislation
- Another court. It must be at least a court of equal jurisdiction, but more usually
will be a court of superior jurisdiction. The different courts in Ireland, from the
bottom up, are:

The District Court:

The Circuit Court:
The High Court:
The Court of Appeal:
The Supreme Court: only deals with appeals from the High Court.
3) Legislation or Statute Law

Article 15.2.1 of the Constitution provides that the “sole and exclusive power of making
laws for the State is … vested in the Oireachtas.” Before a statute becomes law it is
known as a Bill. It must be passed by the Dáil, the Seanad and signed by the President
before it can become law. This type of legislation is known as primary legislation.
A Bill is debated by the Houses of the Oireachtas and, when passed, becomes an Act
and is binding on all citizens, unless it is declared by the Courts to be inconsistent with
the Constitution or EU law.

Subordinate or Secondary Legislation

The Oireachtas may delegate to government ministers or local authorities certain law
making functions. This usually occurs where detailed or technical legislation may be
required. Delegated legislation is in the form of statutory instruments, Orders, Bye Laws,
Regulations.

4 European Union Law

Much of recent Irish Employment law comes from EU directives - e.g. employment
equality legislation, Transfer of Undertakings, Worker participation in state companies.
By the Treaty of Accession, Ireland became a member of the EU from January 1973. By
accession to the Treaty of Rome (EEC Treaty) and other specialist Treaties, states have
created a body of laws which bind their nationals and themselves. The primary law of
the Community which is contained in the Treaties, takes precedence over domestic law.
The secondary law of the EU is contained in Regulations, Directives and Decisions .
A source of Irish law since Ireland joined the EEC (now the EU) in 1973.
Primary source: The Treaty of Rome 1957
Art. 117: Recognises the "need to promote improved working conditions and an
improved standard of living for workers" which will develop from the common market.
Art. 118: Commission responsible for employment matters, labour law and working
conditions, the right of association and collective bargaining between employers and
workers.
Art. 118A (inserted by the Single European Act): Allows health and safety directives to
be passed by a qualified majority - e.g. Pregnancy Directive 1992.
Art. 119: Recognises the principle of equal pay for equal work.

Secondary sources: Regulations, Directives, Decisions, Opinions and Recommendations.

5) Individual and Collective labour law.

- Individual labour/employment law deals with the relationships between the individual
worker and the employer - e.g. unfair dismissal, employment equality etc. Primarily
based on the common law notion of the Contract, but is increasingly regulated by
legislation and EU directives.

- Collective labour law deals with the relationships between trade unions and the
employer - i.e. the law of industrial disputes, picketing, collective bargaining etc. Much
less regulated by legislation, and very little EU involvement, but in Britain there is an
increasing amount of legislation in the area. The main Irish act is the Industrial Relations
Act 1990. The Constitution also plays an important role.

6 Custom

Since the establishment of common law, custom has almost been eliminated as a
source of law. Local customs i.e., customs peculiar to a particular locality, may be
recognised as law.

Criminal and Civil Law

Law is classified in two ways: criminal law and civil law. Criminal law governs relations
between the state and individuals, prohibiting activities that offend against society
ranging from murder to road traffic offences. These offences are prosecuted by public
agencies such as the Gardaí and the Director of Public Prosecutions. Civil law is
concerned with individual relationships and there is generally no public interest. Civil
law and criminal law can overlap and the same incident can give rise to both a criminal
case and a civil one e.g. the OJ Simpson case in the US. The criminal trial was concerned
with the prosecution of Simpson for the murder of his wife. The civil case involved the
families of the victims suing Simpson for the tort of wrongful death.

Remedies

Legal Remedies
When a person initiates legal action he does so with a view to the law providing him
with a remedy to right the civil wrong he perceives has been done to him. If the plaintiff
is seeking to enforce a statutory right i.e. a right which he has under legislation then the
remedy is an order made pursuant to that legislation.

An award of damages is an award of a sum of money designed to compensate an injured

party in civil proceedings. Its purpose is to compensate, not to punish the party guilty of
the civil wrong. Damages are the remedy available in tort and contract primarily. The
basis for the award of damages is different in tort and contract cases. In tort cases the
sum of money is designed to put the person in the position he was in, as far as money
can, before the tort was committed. So, in a negligence action, where the plaintiff
sustained personal injuries, the damages compensate for pain and suffering, loss of
wages and any future loss, suffering or loss of wages.

In contract actions an award of damages is designed to put the injured party in the
position he would have been in had the contract been performed, including any
reasonable foreseeable loss arising as a result of the defendant's breach of his
contractual obligations. In common law, damages were the only remedy available.
Equity, however introduced other legal remedies, the most important being injunctions
and specific performance.

Equitable Remedies

Injunctions

An injunction prevents the person, against whom it is granted, from interfering with the
rights of the party to whom it is granted. Injunctions are granted in a wide variety of
circumstance e.g. to a local resident to prevent a land developer from demolishing a
listed building, to a business to prohibit picketing of its premises where there is no
lawful trade dispute.

 The purpose of the injunction is to maintain the status quo until the
behaviour complained of can be dealt with by way of a full hearing of the
case.
 The application for an injunction is considered on the basis of the plaintiff
making out a prima facie case on the balance of convenience between
the parties, i.e. would the granting of the injunction and any subsequent
wrong done by so granting it, outweigh the damage to the plaintiff if the
injunction should not be granted?
 The plaintiff, seeking the injunction, must undertake to pay damages if at
the full hearing of the case he does not succeed.
There a different types of injunctions:
· An Interim Injunction is granted in emergency situations with only one party,
the plaintiff being heard; it lasts for a very short time
· An Interlocutory Injunction is granted after the judge hears evidence on
affidavit from both sides and lasts until the full hearing of the action or until it
is discharged.
· A Quia Timet Injunction is granted in anticipation of, but before an actual wrong
has been done. Its purpose is preventative.
· A Mandatory Injunction compels the defendant to do some positive act.
· A Negative Injunction directs the defendant to refrain from doing some
wrongful act.
· A Perpetual Injunction is made after the full hearing of the action.

Specific Performance

This is an equitable remedy available in Contract Law. The judge has a discretion in
making such an order.
 An order for specific performance directs the defendant to the contract
to carry out the contract or complete the contract on the terms agreed.
 It would not be granted where damages would be a sufficient remedy or
where the party seeking the order has unduly delayed in bringing the
proceedings.
 Orders for specific performance are most frequently given in relation to
the sale of land.

Judicial Review

Orders for Judicial review are available, where it is considered by the High Court or on
appeal the Supreme Court, that an inferior court tribunal or any person exercising
decision-making powers, affecting an individual has misused its power.

Judicial Review provides a plaintiff with a speedy remedy where the judge is of the
opinion that such an inferior court i.e. District, Circuit, Special Criminal Court or Tribunal
has exceeded its powers. The High Court in exercising its judicial review jurisdiction
does not consider the merits of the particular case - that is the function of a court of
appeal - but rather how the lower court has exercised its powers i.e. did it go outside its
powers. This is described as acting ultra vires.

The High Court has available a range of orders for Judicial Review depending on the
particular circumstances of the case. These are:

(a) Certiorari - This is an order to quash the decision of a lower court or tribunal which
as acted outside its powers
(b) Mandamus - This order directs a tribunal to carry out a function which it is lawfully
bound to do
(c) Prohibition - This directs a tribunal not to exercise its powers until particular
conditions have been met.
 The Irish courts

The highest court in Ireland is the Supreme Court, the lowest is the District Court.

Supreme Court

· Reference of a Bill by the President.

· Hearing of appeals from the High Court.

*Court of Appeal (see explanation below)

High Court

· Constitutional cases.
· Civil Jurisdiction to deal with Claims of €60K – Personal Injury; €75K Other or
more.
 Civil appeals from the Circuit Court
· Criminal Jurisdiction (known as Central Criminal Court).
· Serious Offences such as murder and rape.

Circuit Court

· Civil Jurisdictions.
· Claims of between €15000 – (€60,000 Personal Injury) (€75000 Other)
· Judicial Separations.
· Criminal Jurisdiction (known as the Circuit Criminal Court).
· Serious Offences other than those reserved for the Central Criminal Court.

District Court

· Civil Jurisdiction.
· Claims of up to €15000
· Criminal Jurisdiction.
· Minor Offences such as road traffic offences.

Special Criminal Court

The Special Criminal Court is constitutionally established court under Article 38.3
This is not a permanent court in our criminal justice system. It only comes into operation in
the particular circumstances clearly set out in Article 38.3 The Special Criminal Court
 deals with serious criminal offences but there is no jury. Instead the court sits with
three judges, now invariably a High Court judge, a Circuit Court judge and a District
Justice.

There is provision in the Offences Against the State Act 1939 for military officers to sit on
the Court but, in the current sittings of the Court, only judges have handled cases there.
The Special Criminal Court has jurisdiction to try offences under the Offences Against
the State Act 1939 or in the schedules to the O.A.S. all of which relate to membership of
criminal activities associated with unlawful organisations.

It also has jurisdiction to hear criminal non-scheduled offences channelled to it by the

Director of Public Prosecutions where he is of the view that the ordinary courts are
inadequate to secure the effective administration of justice in the circumstances of this
particular case.

APPEALS

Appellate Civil Jurisdiction of the Courts

District Court - Limited appellate jurisdiction

Circuit Court - Hears appeals from cases from the District Court. Either party in the District
Court has an automatic Right to appeal to the Circuit Court. This appeal is a complete re-
hearing of the case. The Circuit Court judge who hears the appeal may affirm, vary or
revise the decision of the District Justice but is confined to making awards within the
monetary jurisdictional limit of the District Court.

High Court - The High Court hears appeals from cases originally heard in the Circuit Court.
These appeals are a complete re-hearing of the case. They are heard by a High Court
Judge only and at the conclusion of the appeal hearing he may affirm, vary or reverse
the decision of the Circuit Court judge but he cannot exceed in his award the
jurisdictional limits of the Circuit Court.

Case Stated
The High Court also has power to hear a case stated from the District court. This occurs
where a point of law arises in a case in the District Court which requires to be clarified.

The usual procedure is for the parties to the District Court Case to agree that there is this
point of law and the District Justice certifies that this is so by signing a document
requesting the High Court to decide the point of law.

In the High Court, the district court parties will make submissions to the judge on the
meaning of the point. The judge reaches a decision and this decision is communicated to
the District Justice who then hears the remainder of the case in his court applying the
interpretation of the point of law made by the High Court.

*IRELAND’S NEW COURT OF APPEAL

This summer saw the passing of legislation which will effect the most important reform to
the organisation and structure of the Irish court system since the foundation of the State.
The Court of Appeal Act 2014 (“the Act”), which was signed into law on 20 July 2014,
provides for the establishment of a general Court of Appeal which will sit between the High
and Supreme Courts. The Act is largely technical in nature in that its main purpose is to
provide for the establishment of the new Court of Appeal and to accommodate it within the
existing court structure. However, once fully established, the new Court will have a
significant impact on the practical operation of the Irish court system, particularly in terms
of reducing waiting periods and improving overall efficiency.

BUSINESS OF THE COURT OF APPEAL

In broad terms, the Court of Appeal will have the jurisdiction which prior to the Act was
vested in the Supreme Court, the Court of Criminal Appeal and the Courts-Martial Appeal
Court, the latter two courts having been abolished by the Act. As such, it will be the default
court for all appeals from decisions of the High Court and its decision will be final (save in
certain limited circumstances).

BYPASSING THE COURT OF APPEAL

It will be possible in exceptional circumstances to bypass the Court of Appeal and appeal a
ruling of the High Court directly to the Supreme Court (“a Leapfrog Appeal”). Permission to
bring a Leapfrog Appeal must first be obtained from the Supreme Court and will only be
granted if the Supreme Court is satisfied that (i) the High Court decision involves a matter of
general public importance; and/or (ii) the interests of justice require that the appeal be heard
by the Supreme Court. Accordingly, the Supreme Court will determine the type of appeals it
will hear, which will likely be cases which raise constitutional and legal issues of significant
importance only. Going forward, parties wishing to appeal a decision of the High Court will
need to carefully consider whether the decision is one which warrants a Leapfrog Appeal or
whether the more appropriate route is to go directly to the Court of Appeal.
APPEALING A DECISION OF THE COURT OF APPEAL
Decisions of the Court of Appeal will in the ordinary course be final. However, permission to
bring a further appeal may be sought from the Supreme Court. The Supreme Court will only
grant such permission if is satisfied that (i) the decision of the Court of Appeal involves a
matter of general public importance; and/or (ii) the interests of justice require that a further
appeal be heard by it.

APPLICATIONS FOR PERMISSION TO APPEAL TO THE SUPREME COURT

The Supreme Court will decide applications for permission to appeal by reference to the
papers before it and without an oral hearing. However, it has the power to direct an oral
hearing where the circumstances so require
Supreme Court

The Supreme Court hears appeals from cases heard originally in the High Court. This
appeal is confined to appeals on points of law, and is based on the transcript of the
evidence and the hearing in the High Court. The point of law may involve a question
concerning liability or it may involve a question in relation to the amount of damages
awarded. Where a point of law rises, in the course of a case being heard in the Circuit
Court, the case stated procedure may be used in the same manner as if this occurs in the
District Court but sent to the Supreme Court for its decision.

When the High court hears a case sated from the District Court this may be appealed by
either party to the Supreme Court but only with the consent of the High Court.