THE PROTECTED DISCLOSURES ACT 2014

The Protected Disclosures Act 2014 was recently enacted and takes a more comprehensive approach in line with international best practice guidelines for the protection of whistleblowers in all sectors of the Irish economy. This new legislation provides a statutory framework within which workers can make disclosures of wrongdoing in the knowledge that they can avail of significant employment protections and avoid penalisation. 

Key features of the Act include:

· The safeguards in the legislation are extended to workers in all sectors. ‘Workers’ has been given a broad definition and includes employees, contractors, trainees, agency staff, former employees, interns, work experience students and members of an Garda Siochana.

A ‘protected disclosure’ means disclosure of information which, in the reasonable belief of the worker, tends to show a ‘relevant wrongdoing’. A ‘relevant wrongdoing’ has been widely drafted and includes criminal offences, breaches of legal obligations, threats to health and safety or the environment, miscarriages of justice, improper use of public funds or any attempt to conceal information in relation to such wrongdoings.

• The motivation for making the disclosure is irrelevant in order to eliminate any deterrents or barriers for people making disclosures.
• There is ‘stepped disclosure system’ which encourages workers to report internally to employers in the first instance, and at the lowest possible level.
• The Act provides protection for whistleblowers for having made a protected disclosure. There is an extension of unfair dismissal law, providing employees with protection from ‘day one’, up to five years’ compensation and interim relief.
• The legislation provides a right of action in tort where a detriment is suffered by a whistleblower. The legislation has been drafted widely enough to bring into scope family members of whistleblowers, who may be able to issue proceedings for damages in their own right.
• The Act includes measures to protect the identity of whistleblowers. The person to whom the disclosure is made shall take all reasonable steps to avoid disclosing the identity of the whistleblower. 

The Protected Disclosures Act 2014 can be seen as providing important protections for whistleblowers. In light of this legislation employers should ensure they are maintaining compliance with the new law. Public sector employers need to put policies in place to comply with the Act's requirements, and for those in the private sector it would certainly be encouraged. 

Catriona Sharkey

THE CENTRAL BANK’S NEW LENDING RESTRICTIONS – HOW WILL THEY IMPACT THE PROPERTY MARKET?

With the Central Banks’ surprise announcement that there will be a serious crack down on mortgage lending from January 2015, it is anticipated that the next ten weeks will see a stampede of new applicants seeking mortgage approval. 

Last week the Central Bank announced that from the 1st January 2015 the vast majority of home buyers will need a 20 % deposit before obtaining a mortgage, which is up from the standard 8-10%. This is just one of the new rules introduced by the Central Bank in an attempt to prevent another property bubble. This means that from the 1st January if you are looking to buy a property for €250,000, for example, you will be required to have a deposit of €50,000. 

From next year, banks will also have to restrict the number of mortgages they issue where buyers use a high multiple of their income to calculate how much they can borrow. Most new buyers will be restricted to using 3.5 times their income to assess how much they qualify to borrow. 

Although these new rules are undoubtedly unpopular amongst new buyers and indeed bankers, they are all the same very necessary. The property market in Dublin has picked up significantly in the past year and has become a sellers’ market compared with last year when I would have said it was a purchasers’ market. This is simply because the demand for property in Dublin is greater than the supply and with that comes a steady increase in property prices. Let’s not forget this is precisely how the last bubble occurred and we all know how that ended. 

According to recent figures published by the Central Statistics Office, in Dublin prices shot up 23.4% since 2013 and by 2.5% for September 2014. Dublin apartment prices were 35% higher when compared with prices in September 2013. Outside of Dublin property prices have increased by 7% in the past year. 

In the past year in Dublin there has been a very significant surge in property sales. I am on average closing two sales every week whereas this time last year, two closings in the month was more the norm. This is notwithstanding the fact that property prices have increased considerably since last year and yet again we see the banks offering mortgages to buyers for 90% and indeed more. Competition between the banks is rife at the moment and certain banks are even offering to pay stamp duty. The property market needs to cool down now before we enter into another credit fuelled market where buyers are taking on the maximum debt they qualify for in order to buy a property that has an increased value based simply on “demand”. 

Although these new rules may appear draconian to many, I am of the view that they are necessary and for once the Central Bank is stepping in and taking steps to prevent another bubble. I also believe that these new rules will cool the market down before it overheats yet again. 

I would be very interested in hearing your views on the Central Bank’s new lending rules. 

Catriona Sharkey

Brophy Solicitors

Building Control (Amendment) Regulations 2014

The Building Control (Amendment) Regulations 2014 came into effect on the 1st March 2014 and are to be read in conjunction with the existing legislation. The new regulations relate to the commencement and certification of construction works and provide for a much more intensive system of monitoring and control of certain building or works. 

There was initially some confusion as to whether the new regulations applied to works where planning permission was granted prior to the 1st March 2014. However, the Department of the Environment, Community and Local Government has since confirmed that the date of receipt of a valid Commencement Notice by the Building Control Authority is the date for determining whether or not the new Regulations apply. Therefore, all Commencement Notices received by the Building Control Authority after the 1st March 2014 must comply with the new Regulations. 

The purpose of the new Regulations is to tighten up compliance with design and building regulations from the commencement of the works and to ensure compliance throughout the construction process. From the 1st March 2014 pursuant to S.I. 9 of 2014, for certain building works, the new Regulations require that Certificates of Compliance and other documents must be submitted with the Commencement Notice. 

The additional requirements also include:-

- The nomination of a competent Assigned Certifier to inspect and certify the works;

- The assignment of a competent builder to carry out the work; and 

- The submission of Certificates of Compliance on completion. 

These additional requirements apply to the construction of dwellings, the extension of a dwelling by more than 40 square metres and for works which require a Fire Safety Certificate.

Commencement Notice and 7 Day Notice 

A Commencement Notice is a notification to a Building Control Authority that a person intends to carry out works or a material change of use to a building which the Building Regulations apply. The notice must be given to the authority not more than 28 days and not less than 14 days before the commencement of works or the change of use. 

A 7 Day Notice is similar to a Commencement Notice and may be used for works which require a Fire Safety Certificate when the works need to start before the certificate is granted. All but very minor works will require a Commencement Notice or a Seven Day Notice.

Any Commencement Notices submitted after the 1st March 2014 and which falls within the scope of the new regulations must accompanied with the following documents:-

- Certificate of Compliance (Design)

- Notice of Assignment of Person to inspect and Certify Works (Assigned Certifier)]

- Undertaking by Assigned Certifier;

- Notice of Assignment of Builder;

- Undertaking by Builder;

- General arrangement drawings for building control purposes – plans, sections and elevations;

- A schedule of design documents currently prepared or to be prepared at a later date;

- The preliminary inspection plan;

- Any other documents deemed appropriate by the Assigned Certifier. 

What is an Assigned Certifier?

An Assigned Certifier is the registered professional you will be required to appoint to be responsible for overseeing the inspection and certification process.

The Assigned Certifier will work in conjunction with your builder as they will both be certifying that a finished building complies with the requirements of the Building

Regulations. The Assigned Certifier will be setting out and ensuring the execution of an inspection plan (incorporating an inspection notification framework), ensuring that all certification is provided, co-ordinating ancillary certification and specialist tests in conjunction with the Builder and providing certification at the completion stage along with the Builder.

Who can act as an Assigned Certifier?

An Assigned certifier must be:-

- An architect named on a Register maintained pursuant to Part 3 of the Building Control Act 2007, or

- A Surveyor named on a register maintained pursuant to Part 5 of the Building Control Act 2007; or

- An Engineer named on a register maintained pursuant to Section 7 of the Institution of Civil Engineers of Ireland (Charter Amendment) Act 1969. 

Certificate of Compliance on Completion 

Before works or a building (to which the 2014 Regulations apply) can be opened, occupied or used, a validly completed Certificate of Compliance on Completion is required to be included on the statutory register maintained by the relevant Building Control Authority. 

The Certificate of Compliance on Completion must be signed by the Builder and the Assigned Certifier and must certify that the building or works have been carried out in accordance with the Building Regulations. 

Penalties for Non Compliance 

It is an offence not to submit a Commencement Notice when required and penalties include a fine and/or imprisonment. 

For works subject to the new regulations, if you fail to submit a Commencement Notice, you will be unable to submit a Certificate of Compliance on Completion, and your building will not be recorded on the national register. This would seriously impact your ability to sell or lease the property at a future date. 

For further information please contact Catriona[at]brophysolicitors.ie

Catriona Sharkey

Brophy Solicitors

DEBT COLLECTION BEST PRACTICES

1. Create a Clear Payment Policy

Manage the expectations of your client from the beginning of the working relationship. Make certain that your client is handed a payment policy that is clearly outlined in writing. 

2. Instil Urgency

Make sure to send an invoice at the earliest opportunity, stating the payment terms clearly on the invoice. Email invoices to clients: this is the best way to ensure that your clients are receiving them. It is a useful tactic if you are regularly in contact with them via email, as they have no way to claim they have not seen the bill.

3. Review Regularly

Staying on top of the situation is essential to reducing overdue accounts. When an account becomes overdue, there is no reason to hesitate in following up with a polite email to your client. If your email goes unanswered, it is time to follow up with a chasing letter and than a phone call.

4. Arm Yourself with the Facts

Review all the paperwork on the debtor before making a follow up phone call. It is critical that you have the specifics of the debt you are calling about. Having the facts in front of you, keeps you in control. This will help to make sure you do not lose sight of your objectives and that you are not derailed by a question you cannot answer. Identify the person who will pay the bill and make sure you speak to the correct individual.

5. Keep Calm

Most of us take our speaking voices for granted. But the tone, pitch, inflection and even the speed at which you talk can have a powerful influence on your listener. Maintain a friendly and professional tone of voice. Remain calm and polite and keep your temper at bay. You will not do yourself any favours getting into an argument. 

6. Be Flexible 

Be ready to adjust to the situation. Think about the customer you are dealing with and adapt to meet the circumstances. Provide options for instalments and payment plans. Remember negotiating is a skill and there is a specific time and place for it. Know what to expect and when to push for more. 

7. Document Everything

Clearly document your payments on account and the circumstances of those payments. Whilst talking to clients about outstanding debts, take careful notes about everything that was discussed, including the client’s comments in case there are any future disputes.

8. Nail things down

Never, ever leave a contact open ended. All contacts should result in a commitment to payment. Once a payment plan has been agreed to, verbally recap the terms and send a written summary to the debtor. This should include specifics of when the debtor will send each payment and what form of payment will be used. Ask the debtor to call or email you once a payment has been made.

9. Hire a Debt Collection Solicitor

If all else fails and you cannot retrieve your debts on your own, its time to hire our debt collection team at Brophy Solicitors. 

To find out more about recovery of your debts, please contact Brophy Solicitors on (01) 679 7930 or email catriona{at}brophysolicitors.ie 

Catriona Sharkey

Brophy Solicitors

WHY CHASE DEBTS WHEN WE CAN DO IT FOR YOU?

Debt recovery can be a time consuming and frustrating process. If you have outstanding invoices, it is crucial that you take immediate action as early intervention means earlier payment. If you delay in taking action you could potentially be diminishing your chances for debt recovery. 

Brophy Solicitors can advise and support on recovering bad debts and over-drawn accounts from debtors. We have an experienced debt collection team, who are aggressive, resourceful and persistent. Our highly trained team provides a full service and can recover debts speedily and cost effectively.

Steps to our Debt Collection Service:

1. Urgent Demand Letter 
We will issue a letter before action to the debtor requiring payment of the outstanding debt. Our letter is short, sharp and serves many purposes:

· It will ensure the debtor is aware of the debt and is advised of any impeding action by the creditor.

· Our letter will give a timeframe of 7 days for the debtor to discharge the outstanding account.

· It warns that costs will be claimed if legal action is necessary and that interest will be payable at 8% per annum from the date of judgement.

This letter may be sufficient to prompt the debtor into payment.

2. Issue Legal Proceedings

Failure to respond or pay this debt within the 7 days will result in legal proceedings being issued and served on the debtor immediately.

Depending on the amount of debt involved, we will then issue proceedings in:

· District Court – Less than €15,000

· Circuit Court – €15,000 - €75,000

· High Court – More than €75,000

The purpose of this action is to encourage the debtor to pay. If the debtor pays at any stage during the process, legal action can be stopped. If the debtor fails to respond to the proceedings, we will make an application for Judgement against the debtor.

3. Enforcement of Judgement

When a judgement has been obtained and the debtor still refuses to pay, we will proceed to effectively and efficiently enforce the judgement through various options. These options will depend on the level and type of debt and include:

· Execution by the Sheriff;

· Registration in the Registry of Judgements and subsequent publication in Trade Gazettes;

· Judgement Mortgage;

· Examination, Instalment and Committal Orders;

· Garnishee Orders;

· Winding Up.

4. European Enforcement Order
This order can now be obtained when Judgement has been obtained from another EU state.

For further information please email me at catriona@brophysolicitors.ie or telephone (01) 679 7930 to make an appointment.

Catriona Sharkey
Brophy Solicitors

WORKPLACE RELATIONS BILL 2014

Landmark reform will see five State workplace relations bodies merged into two.

The recent publication of the Workplace Relations Bill 2014 is a very significant development in Irish Employment Law. It is anticipated that the Bill will be progressed through the Dail and Seanad in the autumn, with a view to enactment before the end of 2014. Once enacted, the Bill will replace the existing outdated system for resolving workplace disputes and industrial relations complaints in Ireland. There are currently five workplace relations bodies in existence, namely the Labour Relations Commission, the Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority.

Under the new framework these bodies will be amalgamated and replaced with just two bodies:-

1. The Workplace Relations Commission, which will deal with all complaints in the first instance; and
2. The Labour Court, which will deal with appeals.

It is hoped that the two bodies will create a more efficient system for resolving employment disputes and will eliminate the need to take multiple claims to multiple workplace relations bodies; which is confusing and costly for both employees and employers.

For more information, please contact catriona@brophysolicitors.ie or for a full copy of the press release of the 8th of July 2014, please click here.

Catriona Sharkey
Brophy Solicitors

DISMISSAL DUE TO SICKNESS

I am frequently meeting clients who are unsure how to deal with employees whose attendance record is poor due to illness. Actually one of the commonest forms of dismissal is that relating to an employee’s attendance record.


Unlike most forms of dismissal, this area does not involve any fault on the part of the employee. In scrutinising such a dismissal a court or tribunal must balance the employee’s welfare against the demands of the business.

Absence dismissal related to illness cannot be dealt with solely under unfair dismissal legislation but must also take account of the Employment Equality Acts 1998-2004 which confers substantial protection on employees suffering from “disability”, a term that is widely defined and cover most if not all, forms of illness which might give, or do, give rise to substantial absence from work. 

Poor attendance records by employees can cause many problems for employers, particularly for smaller businesses. From an employer’s perspective, you need to ensure that you have complied with legislation and be in a position to demonstrate that you have followed “fair procedures”. An employee must be afforded reasonable opportunities to improve their attendance record but if it is clear that it is beyond their capacity to improve their attendance record, an employer may be entitled to inform that employee that they may have to consider letting him/her go.

If an employee’s illness absence is related to one continuing problem or underlying condition, in reviewing the position, an employer would normally be expected to obtain medical advice to find out:-


a) Whether or not the problem will persist; and 

b) What is the likelihood of the employee being able to attend on a more regular basis in the future and being able to perform her work for which he/she is employed to do?

An employer should consider what, if any, special treatment or facilities may be available by which the employee can become fully capable to carry out his or her work.


In the event a decision is taken to terminate that employee’s employment, then the onus of proof is on the employer to show that he has taken all reasonable steps and followed fair procedures. You will have to be able to show that:-

a) The incapacity was the reason for the dismissal;
b) The reason was substantial;
c) The employee received fair notice that the question of her dismissal for incapacity was being considered; and
d) The employee was afforded an opportunity of being heard.

Ultimately, the employer must be able to show that the employee’s dismissal was reasonable in all circumstances and necessary for good commercial reasons.


If you require further information or have any queries please contact Catriona[at]brophysolicitors.ie 

Catriona Sharkey

Brophy Solicitors

SICK PAY – AN IMPLIED ENTITLEMENT?

Over the past number of months I have noticed an influx in queries from clients who are unsure as to what exactly are their legal obligations to employees who are absent from work due to sickness. This is a huge problem particularly for small businesses with limited resources and staff who are struggling to survive in the current climate. I am always asked the same questions by employers – am I obliged to pay an employee who is out sick?

There is no general right in law to be paid while absent from work due to illness. However, employers take note, an entitlement to sick pay may be implied from the custom and practice or may arise in contract.

The leading case in this area is the case of Charlton v HH The Aga Khans Studs Societe Civile [1999]. Here the employer refused to make payments to the Plaintiff in respect of sick pay claiming that they had no contractual obligation to do so and suggested that the Plaintiff rely on her social welfare entitlement.

In the course of her judgement, Laffoy J. commented:-  

“It is a common case that the terms of the Plaintiff’s employment with the Defendant are no contained in a written contract. It is also a common case that it is not an express term of the Plaintiff’s employment that she is entitled to be paid her salary while absent from work due to illness or incapacity. The Plaintiff’s contention is that her entitlement to sick pay is an implied term of her contract of employment. Her case is that it has always been the position in the Defendant’s studs, that longstanding employees were paid their salary in full when they were absent through illness and that this custom is part of her terms of employment”.

In the those circumstance where there had been a custom and practice of payment of full salary while in sick leave, Judge Laffoy found in the Plaintiff’s favour and ordered that her salary be paid for so long as she remained ill provided the Plaintiff furnished a weekly illness report.

To avoid any confusion employers should always ensure that its policy in relation to absence and sick pay is clearly and expressly set out in each and every one of its employees contract of employment. In drafting clauses relating to sick pay entitlement, reference should be made to any health care insurance or to income continuance plans which may cover payment to an employee after the employer’s obligations to pay sick pay have ceased. Such entitlement would usually arise within large companies. Smaller business tend to pay employees a full salary for a specified period of absence provided a medical certificate is furnished and thereafter employees are referred to the Department of Social Welfare. However, some employers do not make any payments during sick leave and provided this has been the policy of the employer throughout and there are no express contractual obligations to pay salary during sick leave, this is absolutely fine. Sick pay polices vary but my advise to all my clients is to set out a clear and concise policy and stick to it.

Next week I will be discussing the issue of sick leave and employers obligations. If you have any queries please contact Catriona[at]brophysolicitors.ie 

Catriona Sharkey

Brophy Solicitors
 

CAN I BE FORCED TO RETIRE?

The answer: maybe.

As of the 1st of January 2014, the State pension age has increased from 65 to 66, with further increases due in the coming years to 67 and then 68. Despite this, there is no statutory mandatory retirement age in Ireland, except for certain Public Sector jobs.

It is not unlawful under the Employment Equality Acts 1998-2011, for an employer or an organisation to impose a compulsory retirement age. However, case law provides that compulsory retirement must be objectively justified by reference to legitimate purpose and aims. 

In Saunders v CHC Ireland Limited DEC-E/2011/142, the Equality Officer found that the mandatory retirement age of 55, was an appropriate and necessary aim, given that the role of winchman required a certain physicality. It was found that the retirement age was necessary to protect the health and safety of employees and customers and that the complainant was not discriminated against on the grounds of age.

In Elizabeth Sweeney v Aer Lingus Teo DEC-E2013-135, the Equality Officer concluded that management had failed to establish that the complainant’s compulsory retirement at 65 years “served a legitimate aim, or purpose”. The Equality Officer noted that a pension entitlement does not necessitate retirement and that in the absence of justification for the age discrimination, the claimant was entitled to succeed in her action. Thus, it is an important reminder to employers to review their retirement policy to include a reference as to why the employer retires workers at a particular age.

In the case of Hospira v Roper & Others LC 29/4/2013; the Labour Court held that differences in redundancy payments paid to complainants, as compared to their younger colleagues, fell within section 34 (3) (d) of the Employment Equality Act, thus permitting an exception to age discrimination. This is a significant break in the recent line of authorities on the requirement for objective justification in age discrimination cases and will have implications for employers in the context of compulsory retirement.

So is there change on the horizon? A new private members bill was recently tabled to prohibit employers from imposing compulsory retirement ages on their employees. The bill, which is based on similar progressive legislation elsewhere, including the UK and US, will introduce a voluntary system of retirement. The employer will however be entitled to provide financial incentives for voluntary retirement at a specified age.

If you are experiencing difficulties in this area or would like to discuss any employment matters further, please contact Catriona Sharkey – Catriona[at]brophysolicitors.ie

 

Catriona Sharkey

Brophy Solicitors

 

RECEIVERSHIP PROPERTIES – “BUYER BEWARE”

Over the past year I have found a huge increase in the number of properties being sold through property receivers. A property receiver is a receiver appointed by a bank over a property, rather than a business, where the mortgage has gone into default. Although appointed by the bank, a receiver acts as an agent for the distressed borrower and he/she will have very little knowledge about the property. A property receiver is not required to be licensed and accountants and chartered surveyors are increasingly appointed in this capacity in Ireland. With the introduction of this new type of sale, the warning Caveat Emptor or "Buyer Beware" has never been more important.

Once appointed, the receiver takes possession of the charged property and the property is usually put on the market and sold, most commonly through auction. The auctioneers/estate agents will have the contracts for sale and copy title documentation available online prior to the auction for viewing by prospective purchasers. 

The special conditions attaching to a receiver contract for sale are extremely onerous and burdensome on the purchaser and it is imperative that perspective purchasers obtain legal advice before bidding at auction. It is also highly advisable to have the property surveyed by a suitable qualified surveyor/engineer to ensure that the property is structurally sound, that there are no issues with boundaries and that there are no third party rights e.g. ensuring that there are no rights of way over the land. It is also essential to take steps to satisfy yourself that the property is in compliance with the Planning Acts and Building Regulations and I would always advise clients to carry out a Planning Search against the property prior to bidding at auction to ensure that no notices have been served by the local authority. 

Most receiver contracts will contain many pages of special conditions, which would not be found in a standard contract for sale, which exclude many of the warranties and representations that a purchaser would generally expect to receive when buying a property.

However, a receiver contract will usually specifically exclude these warranties and the onus is put on the purchaser to ensure that he/she has taken all necessary steps to ensure that the property is in order and has planning permission and has been built in substantial compliance with the Planning Acts and Building Regulations. 

If the purchase is being funded by way of a mortgage, your lending institution must be notified that the property is being sold through a receiver and your lending institution will also have to confirm its agreement to the very onerous provisions contained in the receiver contract before the contract is signed.

Extra caution should be taken when considering purchasing a receiver property. “Buyer beware” has never applied more. Whilst receiver properties can certainly be snapped up for bargain prices, the risks that apply to such sales should also be borne in mind and legal advice obtained in advance of bidding at auction. 

For further information please contact Catriona Sharkey at Catriona[at]brophysolicitors.ie

Catriona Sharkey

Brophy Solicitors