Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes on suing the right party.
Case ADJ303 is a timely reminder of the importance of suing the right party.
In this case, the employee was employed by an agency. The employee contended that they had been dismissed. The employee did not bring the claim against the agency – they brought the claim against the end user, being the supermarket whom the employee worked for. This is absolutely correct.
Normally, people might think that you would bring the claim against the party who pays you or whom your contract of employment is with. That is correct. However, that does not apply in the case of agency workers. In the case of an agency worker, a claim for unfair dismissal will issue against the end user, not the agency the employee is employed by.
Other claims, such as claims under the organisation of Working Time Act or the Terms of Employment (Information) Act, will issue against the agency.
In considering cases for an atypical worker, it is important to check the definition as to who the correct employer is for the purposes of each particular Act. If there is any doubt as to whom the correct employer is, the best advice we can give is sue everybody and work it out later on. Do not, particularly if time is of the essence, try to work matters out first. Just issue the proceedings against everybody that might possibly be liable and then work it out afterwards.
Do not get worried about the fact that there could be any criticism of you doing this. There might be. However, the legislation is far from clear. There are huge issues at the present time under the Payment of Wages Act as to who the correct employer is in the case of a person who would be employed by a school but where the monies for the purposes of paying them would come from the Department of Education. There is an issue as to who the employer is in those circumstances.
There is a view as a result of a recent case that it is, in fact, the Department of Education. You might then have a claim under the Organisation of Working Time Act. It could be for example not getting proper rest intervals. That would be against the school. You might have a claim that the employee did not get their proper holiday pay. Now is that against the school or is it against the Department of Education?
Quite frankly, the whole issue is up in the air. This is a matter covered under the Payment of Wages Act – or is it a separate matter under the Organisation of Working Time Act? And is it the responsibility of the Department to make sure that the person gets paid their proper pay, or is it the responsibility of the school? It is far from clear what the answer to that question is, though we have our suspicions. But pending those proved to be either right or wrong, our view in those circumstances would be that you sue both the Department and the school.
Unfortunately, we have badly drafted legislation in Ireland. That is something we have to work with. It is something the WRC and Labour Court has to work with. The Courts have to work with it.
In a recent case in the Court of Civil Appeal, it was quite clear that the whole issue as to who is an employee and an employer of a particular employee is often far from clear when the legislation is reviewed.
It may well be that for various Acts, an employee may have different “employers” against whom claims might need to be brought. That may seem strange, but unfortunately that appears to be the way legislation has been drafted.
- Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.