Employment law now ‘attractive practice area’
The area of employment law has expanded substantially over the last two decades, the Law Society 2025 employment-law update has heard (5 November).
Ireland’s growing population, changing work environments, and employees’ enhanced awareness of their rights have all increased demand, which is being met by growing numbers of employment-law specialists.
This year’s online update, held in conjunction with Law Society Professional Training, was aimed at encouraging a wider range of general practitioners to incorporate the specialist field into their practice.
During a comprehensive overview, Susan Battye (head of Bird & Bird employment team) and Nichola Harkin (head of employment-law services in IBEC) outlined how the mechanisms of employment law had been simplified in the decade since the establishment of the Workplace Relations Commission (WRC).
Harkin also explained that, because the WRC sat all over the country and remotely, it made employment law an attractive practice area for solicitors countrywide.
Other key areas raised were:
- Managing client expectations,
- Importance of section 150 letters, and keeping costs tight and clear,
- The fact that WRC hearings are public and increasingly reported upon, and
- Value in developing networks with specialists in other fields, notably tax advisors.
Compensation data
In cases of unfair dismissal, the WRC offers three remedies: reinstatement, re-engagement, and compensation.
But in all scenarios, compensation is by far the most common remedy granted by the WRC or the Labour Court.
Up to 104 weeks of compensation may be awarded – there is no power to award exemplary damages, nor is there provision to award any form of legal costs.
Harkin highlighted that the amount awarded was based on loss: “If somebody, for example, got a new job immediately after their dismissal, there's no loss there, so a maximum of four weeks would be awarded.”
The onus is on the employee to prove that they took steps to mitigate the loss by seeking alternative employment.
The most recent data published regarding the amount of awards is for 2020, when the average was €11,472.96.
The highest award was for €104,000 and the lowest €440.
Speaking about redundancy, Conor Fynes (Lewis Silkin) advised extra caution regarding due process.
“The WRC takes a dim view of fake redundancy,” he said.
Fynes and moderator Richard Smith (William Fry) also highlighted the recent increase in data and subject-access requests by employees, and the need for employers to fulfil their GDPR obligations.
Discrimination
Employment equality is a frequent cause of litigation covered by a vast amount of legislation and the webinar focused on the two most common equality complaints – discrimination on grounds of disability, and age.
According to sole practitioner Wendy Doyle, the current most common ground for age discrimination cases is retirement age.
A complex area with a wealth of case law, Doyle cited the Mallon Supreme Court action and Holland v HSE as seminal cases worth reading.
Speaking about discrimination on grounds of disability, Catriona McKeating (associate legal director at IBEC) said that the definition was broad and covered not only existing disabilities, but also past and future ones.
Interpretations of disability are equally broad and, in both the WRC and Labour Court, matters such as a heart attack, asthma, or phobias have also been found to be disability.
Penalisation
McKeating and Louise Harrison (William Fry) outlined the definitions and some of the large body of law governing dismissal, one of the most frequent and difficult causes of employment litigation.
The importance of procedure and due process was stressed, and Harrison mentioned the recent increase in employees alleging that dismissal was actually penalisation – for whistleblowing or protected disclosure, for example.
Penalisation, along with discrimination, are among the few exceptions to the 12-month minimum-service rule for challenging a dismissal.
Referencing no-fault dismissal, where no reason for termination is given, Harrison explained that an employer usually mitigated the risk of an unfair-dismissal claim by offering the employee a discretionary severance payment.
“An employer executing that type of termination will typically need to be very careful to disclaim, in particular, any allegation of wrongdoing or misconduct, so that the employee should not have standing to then seek an injunction on the basis of an absence of natural justice,” McKeating said.
Restriction of NDAs
One of the areas where more legal practitioners were needed was in agreements, the webinar heard.
A rapidly expanding area, both sides in an agreement, compromise, exit, settlement, NDA (non-disclosure agreement), or other, will require legal advice.
Conor Fynes stressed that an employee needed to fully understand both the terms to which they ware agreeing, and the rights that they were waiving.
Wendy Doyle flagged the , which amends the Employment Equality Act to restrict the use of NDAs to cover allegations of discrimination, harassment, sexual harassment or victimisation.
Doyle said that with some exceptions, or if reached through mediation, “NDAs that deal with allegations or complaints of victimisation or sexual harassment are generally null and void.”
As a result, solicitors are starting to see challenges to agreements containing such clauses.
Louise Harrison explained a potential complication when a company’s HR function straddles both Ireland and Britain. What is sometimes referred to as a ‘fireside chat’ is regarded as a protected discussion under British law, but does not qualify as a without-prejudice discussion in this jurisdiction.