New Protections for Ireland’s Foreign Workers

EUForeign nationals working in Ireland are now to benefit from an increased range of protections. New legal provisions which have been designed to offer more robust protections to Ireland’s foreign workforce have just been signed into law by the Irish Government.

The new protections are contained within the European Union (Posting of Workers) Regulations 2016. They are aimed not at foreigners now permanently living and working in Ireland, but rather in workers who have been posted in Ireland. In other words, the beneficiaries of the new laws are those who are employed in one member state of the EU, but have been temporarily assigned to temporarily work in another member state – specifically Ireland – by their employer. The rules particularly aim to tackle problems in the construction sector, which has had particular problems with foreign employees’ rights being breached.

These new regulations provide specific rights for foreign workers who have been posted by their employers in Ireland, complete with an improved and expanded route for the enforcement of those rights. The new regulations also include provisions to ensure that foreign employers who have operations within Ireland adhere to the standards that are expected in Ireland when it comes to the rights and treatment of employees.

Foreign service providers who post workers to Ireland are required, under the new regulation, to inform the Workplace Relations Commission (WRC) of the postings. Being made aware, the WRC will then aim to ensure that the necessary rules and regulations are adhered to by the employer in question.

Foreign construction workers who have been posted to Ireland and have not been paid all they were entitled to will now have a stronger route for bringing about a legal complaint. They will be able to bring a claim not just against their employer, but also against the contractor who is above their direct employer in the supply chain. If employers can show that they carried out adequate due diligence, then they will be able to defend themselves on this basis.

The new laws also introduce measures allowing WRC to more effectively enforce the rights of foreign workers posted to Ireland when cross-border legal action is necessary. This includes international financial disputes, fines, and financial penalties.

According to Mary Mitchell O’Connor, Minister for Jobs, Enterprise and Innovation, the new regulations will allow for better enforcement of the rights to which Ireland’s foreign posted workers are already entitled under the EU Posted Workers Directive. Pat Breen, the Minister of state for Employment and Small Business, also welcomed the regulations, stating that they provided stronger protections for workers at only minimal cost to employers who were properly compliant.

Posted in Irish Civil Law, Law Reform | Tagged , , , , , , | Leave a comment

Most Social Welfare Appeals are Successful

Most appeals against refusal to provide social welfare payments are successful, recent data has revealed. In 60% of cases where social welfare is denied and the individual chooses to appeal, that appeal will ultimately prove successful.

The high success rate of social welfare appeals has been revealed through data contained in the Social Welfare Appeals Office’s latest annual report, which was published recently. The organisation, which is responsible for handling these appeals, revealed in its Annual Report 2015 that there were a total of 25,406 appeals made last year, of which 60% resulted in the original decision to refuse payments being successfully reversed.

The revelation has cast doubt over the integrity of the decision making process for social welfare payments. With the majority of appeals against refusals proving successful, some groups have questioned the grounds on which these refusals are being made in the first place.

Free Legal Advice Centere (FLAC), a specialist legal rights group, was one organisation to voice its concern about the figures. The Group’s policy officer, Ciarán Finlay, said that this is not the first time concerns about the social welfare decision-making process have arisen, and that the recent data could indeed potentially show that there is a problem with the way initial applications for social welfare are assessed.

Finlay said that, of the cases assessed last year, “In some 5,2000 cases, the original decision-makers in the Department of Social Protection revised their own initially negative decision, which represents more than 20% of all appeals decided in 2015.”

FLAC also said that more work had to be done to speed up processing times, though the organisation did recognise that the Appeals Office was making progress in this area. Last year, the average appeal processing time was 20.9 weeks, compared to 24.2 weeks in 2014. While FLAC welcomed the progress in appeal processing, the organisation also expressed the view that the handling of initial applications must be sped up.

According to Finlay: “We are particularly concerned by the average processing time of 18 weeks for appeals on Supplementary Welfare Allowance, a payment designed as a safety net for those with no income.”

Concerns over the number of negative decisions being reversed on appeal were previously expressed in June of last year by the UN Committee on Economic, Social and Cultural Rights. The Committee recommended that initial decisions in this area should be made logically and transparently, and suggested that additional training for decision makers may reduce the number of unsound negative decisions and the volume of appeals entering the courts.

Posted in Irish Civil Law, Law Reform | Tagged , , , , , | Leave a comment

Northern Ireland’s Attorney General Appeals High Court Abortion Ruling

John LarkinNorthern Ireland’s Attorney General, John Larkin QC (pictured right), has lodged an appeal against a recent ruling by the High Court regarding the country’s abortion laws. A High Court judge ruled last month that the current laws in force in Northern Ireland were “incompatible” with legislation protecting human rights.

A case against Northern Ireland’s Department of Justice was taken to the High Court by the Human Rights Commission, which believed that current provisions for abortion in Northern Ireland violate the European Convention on Human Rights. Northern Ireland is not subject to the Abortion Act of 1967 which is in force in the other regions of the United Kingdom, and maintains much stricter rules surrounding abortion than the rest of the UK. The termination of a pregnancy is only allowed in Northern Ireland in cases where the mother’s life would otherwise be threatened, or her mental health endangered. In all other circumstances, abortion is strictly prohibited in Northern Ireland. Any individual who is found guilty of illegally carrying out the procedure could face heavy sentences up to life imprisonment.

Ruling on the legal challenge by the Human Rights Commission, Mr Justice Horner, a High Court judge, decided that other exceptions to the ban on abortions should be introduced in order to bring the laws of Northern Ireland in line with human rights legislation. Specifically, it was ruled that cases where developmental abnormalities meant that the foetus would not be able to survive outside of the womb should be eligible for abortion. Women who became pregnant as a result of experiencing sexual crime should also be entitled to terminate the pregnancy, it was ruled. Without these provisions, the judge said, Northern Ireland’s abortion laws do indeed breach the European Convention on Human Rights.

The judge’s ruling does not, in itself, constitute a change in the law. However, it does put the matter of passing legislation to bring Northern Ireland’s laws in line with international human rights legislation into the hands of the Northern Ireland Assembly.

Following the ruling, the Attorney General stated that he was “profoundly disappointed” by the High Court’s decision on the matter, and that he was considering the grounds under which the decision could be appealed. He has since confirmed that his office has indeed lodged such an appeal.

Prominent human rights organisation Amnesty International has expressed its intention to resist the appeal. Patrick Corrigan, the charity’s director for Northern Ireland, said that the Northern Ireland Assembly “must bring Northern Ireland’s abortion laws into the 21st Century and into line with international law as a matter of urgency.”

“It is notable that the Department of Justice, which was the respondent in this case, does not appear to be appealing the court’s decision,” Corrigan said. “The minister clearly recognises that our abortion law must be changed.”

Posted in Irish Civil Law, Irish Criminal Law | Tagged , , , , , , | Leave a comment

400 Left Without Representation by Barrister Strike

Strike action by Northern Ireland’s barristers has left nearly 400 people without their professional legal representation. The strike forms part of the legal industry’s ongoing efforts to protest against significant cuts to legal aid.

The Bar Council of Northern Ireland has criticised the latest proposals for further cuts to legal aid. These cuts would, the Council said, represent a reduction of almost 50% compared to the levels that were originally set ten years ago in 2005.

In protest over these latest proposed cuts, and the effective cuts to pay for legal professionals, a number of Northern Ireland’s barristers along with a smaller number of solicitors are refusing to take on new work for criminal cases. A similar protest was previously held in May this year.

This action has affected 323 different cases, which have been unable to find professional legal representation as a result of the number of barristers who are now on strike. These cases involve 376 individual defendants, who have all seen their proceedings delayed as a result of the protest.

The Bar Council is launching a joint challenge along with the Law Society of Northern Ireland against the Department of Justice over the recent changes to the rules, which affect those providing legal representation for serious cases in the criminal courts. The High Court in Belfast recently launched a judicial review into these new rules.

Gerry McAlinden QC, chair of the Bar Council, said while discussing this challenge “The costs of ineffective criminal defence are significant. The conviction of an innocent person represents a tragedy for everyone.”

He continued: “The risk of miscarriages of justice is more apparent now than ever before due to legal aid cuts.”

However David Ford, the Justice Minister, vehemently defended the decision to slice the funds available for legal aid. He pointed out that Northern Ireland currently offers the highest level of funding to legal aid cases in the UK. Continuing to offer higher legal aid pay than the rest of the country, he said, was simply not sustainable.

McAlinden, however, insists that the decision to take action over the cuts is “not taken lightly by our profession.” Instead, he says, “it is our responsibility to uphold access to justice in the best interest of the public and preserve legal aid as an important social welfare provision for the most vulnerable.”

Cuts to funding for legal representation, he warned, could erode justice in Northern Ireland. “Legal representation cannot be repeatedly economised on while maintaining high standards for vulnerable clients,” he said.

Posted in Irish Criminal Law, Law Reform | Tagged , , , , | Leave a comment

Adoptees Could Gain Right to Access Birth Identities

AdoptionProposals from the Irish government could lead to the introduction of new legislation allowing those adopted in Ireland to access information about their identity at birth. For the first time, the proposed legislation would allow Irish adoptees to gain access to their birth certificates and the information it contains.

Currently, there is no legal right for those who have been brought up by adoptive parents to find out the name of their biological parents, nor the names they themselves were given at birth. Some adoptees will be able to access their birth certificates, but it is not an automatic right. Rather, the wishes of the parents are considered in deciding whether adoptees can access their birth certificates, and adoption agencies can refuse access on the basis that the parent objects to the certificate being granted.

If passed, the government’s proposed Adoption (Information and Tracing) Bill could change this – subject to certain conditions. These conditions are designed to protect the “right to privacy” of the birth parents of adoptees. The proposals suggest that adopted people wishing to find out about their birth identity would first have to put their signature to a “statutory declaration.” Specifically, this would be a declaration stating that they would not make contact with their birth relatives without their biological parents giving their agreement in advance. Furthermore, adoptees would have to be aged 18 or over before requesting access to their birth certificate and benefiting from a legal right to obtain the information.

Where currently the wishes of the parents are essentially the deciding factor in granting access, the proposed new bill would introduce “a presumption in favour of disclosing information, in so far as is legally and constitutionally possible.”

A draft of the bill’s content was published at the start of this week by Dr James Reilly, Minister for Children and Youth Affairs. Dr Reilly admitted that the matter was a “complex” one and also recognised that it would be controversial in some ways, with some parties expressing concerns in the run-up t0 the draft bill’s publication. Nonetheless, he insisted that the government recognises the fact that “it is critical that birth parents’ constitutional right to privacy is protected.”

He continued: “I believe that by allowing birth parents an opportunity to specify the extent of contact, if any, in addition to the other safeguards to be put in place will ensure that this important right is protected.”

If the bill passes, the presumed right to access birth certificates will fully apply to those who were adopted before it came into effect. The government has proposed holding a major awareness campaign, lasting for twelve months, to publicise the changes made by the bill and give birth parents of adoptees plenty of time to register their wishes regarding contact.

Posted in Irish Civil Law, Law Reform | Tagged , , , , , | Leave a comment

Irish Expats Returning Home to Vote on Equal Marriage

Hundreds of Irish people living abroad have been returning to their native country to vote in the referendum on same-sex marriage taking place today. Irish expats around the world are flocking home from locations as far afield as Bangkok, Nairobi and Abu Dhabi just to cast their votes and ensure that their voices are heard.

Expatriates who have left the country within the last eighteen months are allowed to take part in the referendum under Ireland’s voting laws, just so long as they vote in person and on Irish soil Ireland. In other words, they do not use their voting rights by living abroad but they must be in Ireland on the appropriate day in order to exercise that right.

Under these laws, 60,000 expats are eligible to vote in the referendum out of a total eligible electorate of 3 million people.  Overall, expats therefore represent 2% of those who are eligible to vote on the matter.

The last 24 hours have seen hundreds of expats returning to Ireland specifically to take part in this referendum, which seems to have got the Irish public and expat community fired up as few votes have in the past. It has been claimed on social media by those entering the country by air that flights coming into Dublin have been operating at maximum capacity thanks to the extra numbers coming home for the referendum, and Dublin Airport itself has struggled with huge queues at entry gates.

Social media has played a large role in encouraging Irish expatriates to come home and cast their vote. Accounts have been set up to promote the idea, and have amassed large numbers of followers. On Twitter, the hashtag #hometovote has been used more than 23,000 times, both by those who are actually returning home to vote and those who are commenting on the phenomenon. Social media has also been filled with photographs of those returning to vote and of the crowds of Irish citizens on flights and other forms of transport.

Supporters of same sex marriage who are not able to get back to Ireland in order to vote have also been turning to social media. Using the hashtag “BeMyYes” on Twitter, they have been urging the Irish public to vote in favour of allowing same-sex couples to marry.

If the Irish public vote in favour of legalising same sex marriage, Ireland would become the first country to do so through holding a referendum.

Posted in Irish Civil Law, Law Reform | Tagged , , , , , , | Leave a comment

Irish Solicitors Achieve World First for Gender Balance

Female LawyerThe Irish solicitors profession has now reached a landmark situation in the area of gender balance. For the first time ever in the history of not just the Irish legal sector practising female solicitors outnumber their male counterparts. In an industry that has traditionally been male-dominated, this is being hailed as a major achievement.

Furthermore, this is currently believed to be an achievement that goes beyond Ireland’s legal sector. It is currently thought to be the first time that any national group of solicitors has included more female practicing members than male.

The landmark development was announced by Ken Murphy, the Law Society of Ireland’s Director General. It is based on figures for the end of 2014, at which time female practicing solicitors narrowly outnumbered their male peers for the first time.. “There were exactly 4,623 female practising solicitors and exactly 4,609 male practising solicitors,” Murphy said.

He continued: “It was just 92 years ago that the first woman solicitor was admitted to the profession. Since then the race to equality has been incredible.” Murphy was referring to Mary Dorothea Heron, who became Ireland’s first woman solicitor in 1923. Many other countries such as the UK only began appointing female solicitors at around the same time. Up until this time there had been no specific law or policy barring women from working as solicitors, but it had been taken as a matter of fact that women were not suitable for such a profession.

Murphy’s colleague at the Law Society of Ireland, Teri Kelly, also hailed this as a milestone. Kelly, who holds the post of Director of Representation and Member Services, said “To our knowledge, this is the first time a female majority has existed in any legal profession anywhere in the world.”

Since Mary Dorothea Heron became the first woman to qualify as a solicitor in Ireland over 90 years ago, a lot has changed within the Irish legal sector. Women have now for some time represented a significant section of Ireland’s legal industry, particularly within certain areas of legal practise. Furthermore, women are continuing to make progress towards equality within new areas of the sector. As Kelly points out, last year saw the appointment of Ireland’s first female Garda Commissioner, Nóirín O’Sullivan and, in the past few years, Ireland has also witnessed the appointment of:

  • The first female Director of Public Prosecutions, Claire Loftus
  • The first female Chief Justice of the Supreme Court, Susan Denham
  • The first female Attorney General, Máire Whelan
  • The first female Chief State Solicitor, Eileen Creedon

“Women currently dominate the State’s senior appointments in law and justice,” said Kelly.

Posted in Irish Civil Law, Legal News | Tagged , , , , , | Leave a comment

MI5 Alleged to Have Covered up Child Abuse

Kincora Boys HomeIt has been alleged that MI5, the UK’s internal security service, was complicit in covering up abuse at a Northern Ireland children’s home. Victims of sexual abuse at the Kincora Children’s Home in the 1970s are now taking legal action to try and uncover the truth.

It is alleged that extensive sexual abuse was inflicted on vulnerable young people housed in the boys’ home, which was operated by a paramilitary group. Children were regularly taken from the home, it claims, and offered to men for sexual purposes. As long ago as 1981, three men were jailed in connection with these crimes but attempts to investigate supposed British state involvement have repeatedly been stopped.

The victims hope that a full inquiry may be launched into the matter, complete with the power to ensure that relevant parties testify and to require that relevant documents be submitted by MI5 for viewing. According to victims, the cover-up could have taken place over the course of decades, with the help of significant and direct British state involvement.

The goal of the victims is to ensure that the possibility of British state involvement in the cover-up of child sex abuse at the children’s home is not only investigated, but investigated by an agency with full powers and authority. As a recent example of a similar inquiry, they point to the one chaired by Lowell Goddard, a New Zealand judge, which was given full powers and tasked with investigating a number of other scandals relating to allegations of sexual abuse.

The case, which is being launched in Belfast, has won the support of Amnesty International. The human rights organisation described the abuse at Kincora as “one of the biggest scandals of our age” and fully supported the victims’ call for a fully-equipped inquiry.

In a statement, Amnesty International pointed out that “There are longstanding claims that MI5 blocked one or more police investigations into Kincora in the 1970s in order to protect its own intelligence-gathering operation.” If true, this means that MI5 had direct involvement in the case, and as a result of the agency’s actions vulnerable children continued to be subjected to abuse.

“It’s only Justice Goddard’s inquiry,” Amnesty International concluded, “that will be able to ensure that evidence doesn’t remain hidden in Whitehall filing cabinets.”

Parliament’s Home Affairs Committee has also lent its support to the victims’ call for an inquiry with full powers.  Currently, the government is arguing for the inquiry to take place without the power to ensure that relevant documents are handed over and important victims testify.

Posted in Irish Civil Law, Irish Criminal Law | Tagged , , , , , | Leave a comment

Sensitive Evidence Sees Public Excluded From Court

The trial of eight men from Dublin who are charged with membership of the IRA will see members of the public excluded from the courtroom. The Special Criminal Court has decided that no members of the public should be present when six people belonging to the Garda National Surveillance Unit (NSU) provide evidence for the trial.

The decision was reached by Mr Justice Paul Butler, on the grounds that both the identity of the witnesses and certain aspects of their evidence amounted to sensitive information that should not be made public. In particular, some of the evidence will include or allude to details of the NSU’s “tradecraft and methodology” and this, it was felt, should not be evidence made available for potential media publication.

Furthermore, Mr Justice Butler also felt that NSU members should not be named publicly in court, and this was also a strong reason for excluding the public from the courtroom during this part of the trial. The decision was reached by a non-jury court with three judges, with Mr Justice Butler presiding.

Perhaps the most key reason for the decision was concern for the safety of the NSU members. Det Supt Willie Johnson, who heads up the NSU, gave evidence to support the idea that if the names of those belonging to his unit were made public they could be in danger. The court ultimately decided that this was the case, and seemingly reached the decision to exclude the public from the courtroom for this reason in particular, though the sensitive nature of some of the evidence was also an important factor considered.

This is the second recent trial in which it has been decided that the public should not be allowed in the courtroom while certain evidence is given. A similar decision was made when NSU members gave evidence in the trial for the murder of republican dissident Peter Butterly, in which three suspects were tried in proceedings lasting 55 days.

The eight men currently being tried were reportedly arrested after a Gardaí descended on a business selling used cars on Good Friday 2013. According to Tara Burns, the counsel for the prosecution, officers found multiple incriminating items at this site including a Glock firearm, a baseball bat, pepper spray and balaclavas.

The men on trial range in age from 33 to 55, come from various areas within and outside Dublin. The trial is currently still ongoing.

Posted in Irish Criminal Law, Legal News | Tagged , , , , , , | Leave a comment

€50,000 Awarded to Worker Sacked by Gate Gourmet

Chicken WrapFood company Gate Gourmet has been ordered to pay more than €50,000 to a worker who was unfairly dismissed over a stale chicken wrap. The award is the result of an Employment Appeals Tribunal (EAT), which found that the airline food firm sacked Joe Smith from his role as a supervisor unfairly.

Gate Gourmet Ireland Ltd is a major supplier of airline food, and brought in over €12 million in revenue last year from its base at Dublin Airport. In 2012, the firm investigated Mr Smith and dismissed him for gross misconduct following a relatively minor incident involving a chicken wrap. One of the airlines supplied by the company complained in April 2012 that they had been supplied with a chicken wrap that was significantly past its expiration date.

The airline in question accounts for 15% of the revenues generated by Gate Gourmet in that year, which equates to more than €1.65 million. As such a major customer, the airline also accounts for 30 jobs at the food company.

The tribunal heard that Gate Gourmet’s contract with this airline was due to expire soon after, in July 2012. The Managing Director, who told the tribunal that the company takes incidents with outdated food very seriously, was reportedly having a hard time keeping the airline’s business and securing a new contract. Following the complaint, the company carried out an internal investigation and found that Mr Smith had not followed the company’s standard operating procedures. Mr Smith was then dismissed from his role by Gate Gourmet’s production manager for failing to properly carry out his responsibilities in his supervisory role. Final written warnings were also issued to two further employees who had failed to notice the fact that the wrap had expired.

Mr Smith initially launched an appeal against his dismissal internally but was unsuccessful. The company rejected his appeal on the grounds that he had endangered the reputation of the company. Following the failure of the internal appeal, the EAT was launched in an effort to establish that he had been dismissed unfairly.

According to Mr Smith, speaking at the tribunal, another employee had taken responsibility for the failure to check the product properly. Mr Smith had also been employed by Gate Gourmet for nineteen years prior to the incident without a stain on his record. Ultimately, the tribunal found that “it was unfair and unreasonable to conclude that the claimant (Mr Smith) was solely and exclusively responsible for such failure. Termination of employment on the grounds of gross misconduct was a disproportionate sanction in all the circumstances.”

Mr Smith was awarded a total of €50,889. This consisted of €45,000 euros for being dismissed unfairly, and a further €5,889 in lieu of an eight week notice period.

Posted in Irish Civil Law, Legal News | Tagged , , , , , , , , , | Leave a comment