The Mediation Act 2017 recently entered into force. The act's objective is to promote mediation as an attractive alternative to court proceedings, in terms of time, cost, resources and the avoidance of acrimony. Although mediation may not be suitable for all disputes, the act provides a platform for parties to resolve their difficulties without commencing litigation where appropriate (albeit certain classes of case are excluded from its scope).
The minister for justice and equality recently published the long-awaited Mediation Bill 2017. The bill's underlying objective is to promote mediation as a viable, effective and efficient alternative to court proceedings. Doing so should result in reduced legal costs, faster resolution of disputes and a reduction in the stress and acrimony that can sometimes accompany court proceedings.
Two separate bills making their way through the legislative process propose to extend the limitation period for complaints to the Financial Services Ombudsman (FSO). The first bill proposes to strengthen the functions of and amend the limitation period for bringing complaints to the FSO, while the second and more comprehensive bill proposes to amend the limitation period for bringing complaints to the office in certain circumstances.
The Competition and Consumer Protection Commission's (CCPC's) current scrutiny of the Restaurants Association of Ireland serves as a reminder that trade associations must be careful to stay within the lines and avoid encouraging or inadvertently facilitating anti-competitive agreements between their members. Compliance training is an essential tool to prevent unwanted scrutiny from the CCPC and other authorities.
Non-compete clauses can provide important protection for purchasers who have a legitimate interest in maintaining the value of the business they are acquiring. However, careful consideration must be given to the drafting of non-competes in order to avoid allegations of anti-competitive conduct – which is a criminal offence in Ireland – and scrutiny from competition regulators such as the Competition and Consumer Protection Commission and the European Commission.
A new bill has been proposed in the Oireachtas to grant the Competition and Consumer Protection Commission (CCPC) civil enforcement powers. At present, where the CCPC identifies a suspected breach of competition law, it must petition the court to impose criminal penalties. Under the amendment bill, the CCPC would be empowered to levy administrative fines against firms or individuals for anti-competitive practices. This would bring Ireland into line with most other EU member states.
Ireland has recently shown an increased interest in gun jumping, the prohibited practice of implementing a transaction without having first obtained merger control clearance. In February 2018 the Competition and Consumer Protection Commission confirmed that it had launched an investigation into suspected gun jumping by Armalou Holdings Limited of Lillis O'Donnell Motor Company Limited.
The Supreme Court recently found the well-established regime of registered employment agreements to be unconstitutional. Uncertainty regarding the level of protection for wages and benefits of workers in the construction sector followed this decision, but has now been addressed by the Sectoral Employment Order (Construction Sector) 2017 and the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018.
Construction contracting has seen significant change in both the private and public sectors, including the introduction of the long-awaited reform of the Public Works Contracts and a definitive date for the operation of the Construction Contracts Act 2013. The act applies to a wide range of construction contracts, including main contracts, subcontracts and professional team appointments entered into after July 25 2016.
Limitation of liability is a hotly negotiated issue in most commercial construction contracts. Parties often rely on the standard form clauses as being tried and tested and drafted with the benefit of industry knowledge. Such reliance can prove hazardous, as it may not adequately deal with the commercial risks of a particular project. Exclusion clauses that significantly limit parties' liability by way of financial caps are generally useful.
Support for building information modelling (BIM) is gathering pace. BIM is regarded as a powerful risk and cost management tool, encouraging better collaboration and improved project delivery. Contractors are already utilising BIM to help them to gain competitive advantage in the marketplace. Critics believe that specific BIM clauses and terms should be incorporated into the contract to help avoid potential disputes.
It has been a busy time for the construction industry as the economy picks up and growth in activity levels across a range of sectors brings new opportunities. This new wave of development is taking place alongside regulations and changes to industry practice. New regulation in the sector is welcome, but the breadth of the changes means that all players must keep up to speed with them.
Employers cannot be expected to hold positions open indefinitely for employees who are absent on extended sick leave. However, as confirmed in a recent Labour Court determination, where an employer proposes to dismiss an employee on the grounds of incapacity or a disability, it is essential that the decision is made based on up-to-date medical advice. Otherwise, the employer may be exposed to claims of discriminatory dismissal or failure to reasonably accommodate the employee.
The Shared Maternity Leave and Benefit Bill is still at an early stage but, if enacted, it would transform the potential entitlements of fathers, among others, to take time off following the birth of their child. It would also allow pregnant employees to share ordinary maternity leave with a relevant parent. If the bill moves forward, employers will need to update their policies regarding maternity leave and consider how to treat those on shared maternity leave.
The Department of Employment Affairs and Social Protection recently launched an ad campaign on what they term 'false self-employment'. If an individual is deemed to be an employee instead of self-employed following assessment, it could have serious employment law, tax or social welfare implications for the employers concerned. Businesses that engage individuals on a self-employed basis should take steps to ensure that their work practices are appropriate.
Employers that provide references for former employees may be sued for negligent misstatement if the reference is found to be inaccurate. Employers should therefore take reasonable care to ensure that references are not misleading due to omitted information or the inclusion of facts which, although accurate when viewed discretely, either through nuance or innuendo generate a misleading picture when considered overall.
A recent case regarding a claim of unfair dismissal was appealed on a point of law from the Labour Court to the High Court. The Labour Court decided that an employee should have been advised by her employer in advance of signing a fixed-term contract of the effect that the contract would have on her contractual status as an employee. It held that it was insufficient for the employer to simply rely on the fact that the contract had complied with the Unfair Dismissals Acts.