The Disability Discrimination Act 1995 (DDA) imposes a duty on employers to make reasonable adjustments to premises or working practices to take account of the needs of a disabled employee or job applicant.

Where “a provision, criterion or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or physical feature, having that effect” (section 4A(1), DDA).

For more information download http://www.morganmcmanussolicitors.com/blog/?p=179

Mediation, sometimes known as “Alternative Dispute Resolution”, is becoming a well recognised means of resolving all kinds of disputes. By definition Mediation “is a means of resolving disputes by taking the matter to a third party experienced in such cases and allowing the parties to hear the independent view of the Mediator in order to move toward settlement.”
Mediation is part of a system of Alternative Dispute Resolution and is considered to be a key tool for the resolution of disputes between parties. It is a voluntary, non-binding, non-adversarial and without prejudice dispute resolution process that allows the parties involved in the process to find a mutually acceptable outcome. This is unlike an adversarial litigation process in front of an independent third party who has the power to adjudicate on the matters before him/ her and impose an outcome. Whilst a Mediator is an independent third party the role of a Mediator is one of facilitation rather than imposition of an outcome. Therefore Mediation allows parties to avoid the litigation of a dispute in front of a third party. It can be used for the resolution of Employment Law issues. For further information read the Mediation page on the Morgan McManus website – http://bit.ly/hsrjd7 .
In Northern Ireland the Labour Relations Agency (LRA) provides Mediation services. For more information read the Mediation section of that website – http://bit.ly/hXSE1Y . This service is provided free of charge. It is important to bear in mind that this service is available regardless as to whether there is formal Employment Law dispute; eg, where a Claim has been issued before the Tribunal.
One area where such Mediation facilities can be particularly useful is in the resolution of a Bullying Complaint. For example, if you, as an employer, are advised by your employee that he is being bullied by his line manager you must in the normal course set in place formal Grievance procedures where an Investigation is carried out and you must ensure that the complaining employee and the line manager do not come into contact with each other during that Investigation. This can often be very difficult in small workplace. One way to seek an early informal resolution is by way of referral of the complaint to the Mediation service of the LRA, where the dispute could be resolved to the satisfaction of both employees in an informal basis in a short time and, more importantly, at no cost or disruption to the employer`s business. This would generally involve both employees going to the LRA office for a day to take part in the Mediation process. Bearing in mind how, under the principle of Vicarious Liability, an employer could in normal circumstances be liable in compensation for the acts of his line manager where the complainant employee subsequently suffers occupational stress as a result of the actions of the line manager, this service should be availed of in these circumstances where possible.
For an example as to how Mediation works visit the Mediation video on the ACAS website at http://bit.ly/iakZu8 .
The LRA website does however point out some instances when Mediation is not appropriate. Examples are :

• it should not be used as a first resort – because people should be encouraged to speak to each other and talk to their manager before they seek a solution via mediation;
• it should not be used by a manager to avoid their managerial responsibilities;
• a decision about right or wrong is needed, for example where there is possible criminal activity;
• the individual bringing a discrimination or harassment case wants it investigated;
• the parties do not have the power to settle the issue;
• one side is completely intransigent and using mediation will only raise unrealistic expectations of a positive outcome.

There are however examples where Mediation is appropriate; namely :

• for disputes involving colleagues of a similar job or grade, or between a line manager and their staff;
• at any stage in the dispute as long as any ongoing formal procedures are put on hold, or where mediation is included as a stage in the procedures themselves;
• to rebuild relationships after a formal dispute has been resolved;
• to address a range of issues, including relationship breakdown, personality clashes, communication problems, bullying and harassment.

If you, as an employer, are considering using Mediation to resolves a dispute within the workplace be careful to ensure that the process will not prejudice you in the defence of a subsequent claim should the process work. For instance, if an aggrieved employee is intent in having a harassment claim investigated regardless of the facility of Mediation you could be only making matters worse by putting that employee and the other employee (about whom the complaint is made) in face to face meetings in a Mediation process.
If unsure, why not contact Brian Morgan solicitor of Morgan McManus solicitors in advance at bmorgan@morganmcmanus.ie or phone him at 0035347 51011.
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In the recent High Court case of Monica Corrigan –v- HSE – http://bit.ly/p9EB0g , the Plaintiff, who was an inpatient at the Psychiatric Unit at Roscommon County Hospital claimed compensation for personal injuries sustained as a result of a fall in circumstances where she had fallen previously in the hospital premises and where it was claimed that she should have been given one-to-one nursing care.
The Plaintiff`s Claim was dismissed. In considering the applicable law Ms Justice Irvine saw no need to go further than to state that the law in this regard remains as first encapsulated by Finlay C.J. in his decision in Dunne v. The National Maternity Hospital [1989] I.R. 91 at 109 where he stated as follows:-
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.
6. If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.”
These principles still form the basis for consideration of any Medical / Clinical Negligence Claim which is being considered. One must ask whether the failure to provide medical care is “such a failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care”?  If this question cannot be answered positively then a Claimant must seriously consider whether they proceed with a Medical Negligence Claim. Such Claims can be extremely expensive. They should only be taken after due consideration and after advice from a solicitor experienced in issuing Medical Negligence Claims.
For further information visit http://www.morganmcmanus.com/litigation/medical_negligence.html or email bmorgan@morganmcmanus.ie

The Irish Times reported on the 2nd March 2011 that Mr Justice John Quirke of the High Court Dublin is to hold a separate Hearing into whether plumber Leo McKenna of Tullyhall Drive, Lucan, County Dublin gave false evidence in his compensation claim against his employer – see Report http://bit.ly/h4tJV4 . Initially McKenna claimed that he was unable to work for 9½ years but subsequently at the Hearing reduced that period to 6 months.

Section 25 of the Civil Liability & Courts Act 2004 makes it a criminal offence for anyone to knowingly give false or misleading evidence in a Personal Injuries Action. For more information,  see  the Litigation and Accident Claims section of the Morgan McManus website on the Civil Liability & Courts Act 2004 -   http://bit.ly/gYgt74 . There is no doubt that the High Court Judge had this section in mind when he subsequently warned the Plaintiff  Mr McKenna that he did not have to answer in cross-examination any question which might incriminate him.

Other Plaintiffs have in the more recent past had their Claims dismissed for giving false and misleading evidence. A message is now being very clearly sent out that Plaintiffs who give false evidence in their compensation claims risk imprisonment.

In the recent past it has been taking the Employment Appeals Tribunal Office in the Republic of Ireland up to 6 months, from the date of receipt of an Appeal from an employee, to issue and serve the Appeal on the employer. This is not to mention the further 9 to 12 month period which it takes to get the Claim on for Hearing. Needless to say, this can be extremely frustrating for an employee who has been dismissed and seeks an early resolution of his Claim. Neither is it helpful for an employer which also will want a resolution of the Claim sooner, rather than later, so that it can ascertain if it is to be obliged to pay compensation or re-engage / reinstate the employee. Now that may all change with the creation of a new e-form by the EAT office.
A new e-form, to deal with all employment law claims to the Employment Appeals Tribunal (E.A.T.), was published on E.A.T.’s website. This can be found on the Tribunal’s homepage. The form allows for the submission of a claim under the Redundancy Payments, Unfair Dismissals or Minimum Notice Acts and the appeal or application for enforcement of a Rights Commissioner’s recommendation or decision.
As it is a "live" form, the details required will change as the person progresses through the document, which should make for a simpler process for the claimant or appellant and respondent. It is also submitted online, which should reduce the risk of applications going astray and make the reporting process of the Tribunal easier. The form does allow you to save it during the application process, allowing you to come back to it at a later date. It goes without saying that it will be important to save a copy of the final version submitted to the Tribunal for your own records.
Finally, the form provides very useful information on the Tribunal’s process for the applicant and can be found on page two.
The EAT website also states that it will process e-forms quicker than forms which are submitted manually.
For more information on Employment Law visit the Morgan McManus website at http://www.morganmcmanus.com/employment/employment_law_employee.html

The InjuriesBoard.ie (formerly known as the Personal Injuries Assessment Board (PIAB)) aims to have Injuries Claims processed quickly. Where however the InjuriesBoard.ie fails the public is in its complete rejection of the necessity for members of the public to ensure that they have the benefit of independent legal advice. When PIAB was initially launched in 2004 PIAB wanted the submission and resolution of Personal Injury Claims to be a “solicitor free” zone. Members of the public were informed that they did not require a solicitor to submit a PIAB Claim. Now, over 90% of Claimants submit their Claims through their solicitor. Experience has obviously shown that this is necessary. We explain some of the reasons why on our website at http://bit.ly/hYVnlw .

We advise on matters of which you should be aware when submitting your Compensation Claim, the disadvantages of the PIAB Claims process and why you should instruct a Solicitor every occasion before you submit a Claim.

The employer is charged with legal responsibility for the negligence of the employee because the employee is held to be an agent of the employer. If a negligent act is committed by an employee acting within the general scope of her or his employment, the employer will be held liable for damages. For example, if the driver of a gasoline delivery truck runs a red light on the way to a gas station and strikes another car, causing injury, the gasoline delivery company will be responsible for the damages if the driver is found to be negligent. This what is known as the vicarious liability principle.

Managers should never raise their hands to employees but sometimes they feel threatened or nervous and things can get out of hand, as happened in the recent case of Co-Operative Group (CWS) Ltd v Pritchard [2011] EWCA  - http://bit.ly/hCXu8Z .   It involved an employee who was upset at not being given a day off and confronted the manager. She and her sister shouted abuse and used foul language. When the employee refused to leave the store, the manager grabbed her arms and tried to march her out of the store. He was bitten and the employee fell down some steps and was hurt. She argued she had a near complete psychiatric breakdown, depression and agoraphobia. The total sum of damages under all heads awarded to Miss Pritchard was £142,760.77, inclusive of interest.

Had this been a simple employment case and the employee dismissed for unfair dismissal, the employer would have argued contributory fault or negligence to counteract any award. However, the Court of Appeal concluded that there is no such defence of contributory negligence in the case of an "intentional tort" such as assault and battery. The damages could not therefore be reduced on that ground.
This case should be an example to all employers of the liability which can arise on the part of the employer for acts of its employees, even in circumstances where actions undertaken by the employee in defence of the employer`s premises / business may have appeared justified; particularly in circumstances where the third part was making an abusive confrontation.

Thanks to Legal Ireland – www.legal-island.com  for bringing to the case to our attention.