Our combined firm will now comprise 20 solicitors and a total team of 35, representing a 40% increase in headcount.

Established in 1931, JW O’Donovan LLP operates throughout Ireland, providing advice in corporate and commercial law, banking, litigation and dispute resolution, commercial and residential property, estate, employment law, and private-client services.

Eamon Murray & Co was founded in 1982 and is a highly regarded Cork firm with a long-standing reputation for integrity and strong client relationships.

Eamon Murray & Co has been involved in a number of landmark and high-value cases across professional negligence, personal injury and family law, including representing the successful party in the first case heard by the Supreme Court sitting outside Dublin. The firm also has extensive experience acting for developers and building companies.

Clients of Eamon Murray & Co will now benefit from access to J.W. O’Donovan LLP’s commercially-focused corporate and banking expertise, while J.W. O’Donovan LLP further strengthens its offering in litigation, real estate and private client services.

The post J.W. O’Donovan LLP merges with Eamon Murray & Co appeared first on JWOD.

Anne-Marie, a law graduate of University College Cork (UCC), joined J.W. O’Donovan in 1996 and became a partner in 2003. She advises both corporate and private clients across property, construction, banking, and finance. She is also a respected lecturer and seminar host on property law topics.

Anne-Marie is also an active member of Cork’s business community for more than 30 years, and served on the board of Cork Chamber for the past three years. She currently chairs the governance and nomination committee and sits on the audit and risk committee. For the past three years, she has also been a judge for the Cork Company of the Year Awards.

Commenting on her appointment, Anne-Marie said: “I’m honoured to take on this role at an exciting time for the firm.

“Our recent expansion to our new offices, and in terms of our team have enhanced our ability to deliver specialist expertise and provide clients with expert, relationship-focused legal services across a wider range of practice areas.

“I look forward to guiding the firm’s next phase of growth while continuing our long-standing commitment to Cork’s business and legal community.”

The post Anne-Marie Linehan appointed Managing Partner of J.W. O’Donovan LLP appeared first on JWOD.

Background

A restriction application was brought by the liquidator of Downtul Limited (“Downtul”) against two directors of the company, brothers, Colum Butler and Ciaran Butler, following the commencement of a creditor’s voluntary liquidation of the company.  The brothers were also directors of a related company, Atercin Liffey Unlimited Company (“Atercin”).

The central issue in this case is that Downtul entered a lease on 19 December 2013 for a ground floor commercial premises at St. Stephen’s Green Dublin, which was subsequently occupied and operated as a Starbucks café by Atercin, on the basis of an informal agreement with no enforceable legal obligation on Atercin to pay rent. Downtul essentially bore all of the obligations of the lease while having no trade, operations, or revenue-earning capacity to meet the obligations of the lease.

Atercin paid a fee to Downtul only when Downtul requested same to cover the cost of the rent. During the covid pandemic, Atercin occupied the property rent free for a period of 2.5 years, while receiving financial support from the Government. Throughout that period, Downtul received no contribution from Atercin towards the rent and was therefore unable to pay its debts as they fell due. As there was no formal arrangement in place, Downtul had no enforceable mechanism to recover monies from Atercin to discharge the rent.

Judgment

Ms Justice Nessa Cahill noted in her judgment that it was irresponsible for Downtul to hand over the property without any enforceable or documented mechanism to secure payment of rent. She also noted the respondents submitted “striking evidence” to the court whereby they disclosed an arrangement in which one company permits another to have the full use and benefit of its one asset with no guarantee of payment and noted that the directors based the arrangement on them personally knowing about the other company’s liquidity and having a confidence or a ‘feeling’ that they can access the money. The court held that this was not a responsible approach to Donwtul’s affairs.

The directors argued that the arrangement comprised a typical structure within the group and insulated both companies from risk. The directors did not have any board meetings or minutes evidencing the arrangement and advised the court that they were common directors and common members of the two companies and that it was like “…taking your right hand to your left hand…”. The Court concluded that on consideration of the evidence, the directors paid “… no attention to the separate legal personality or rights of Downtul or Atercin with regard to the occupation of the Property or the payment of rent, save when convenient to do so.”

The Court held that the asserted arrangement with Atercin had the impact of favouring Atercin at the expense of Downtul and its creditors. The Court further noted that the informal agreement between the two related companies was fundamentally at odds with the need to ensure protection of Downtul as a separate legal entity.

Notably, the Court held that a structure can be used whereby one company is the lessee of a property in which a separate company is the occupier however there needs to be clear and enforceable terms and conditions governing the rights and obligations of such parties to such an arrangement.

In addition to the failure to act responsibly in respect of the lease of the property, the Court held that the director’s failures to keep the minutes of board meetings since 2017 and the omission of material disclosures from financial statements of the companies led to a finding of irresponsibility and the granting of a restriction order against both directors.

The effect of the restriction order is that both directors are now restricted from acting as a director or secretary of a company for a period of five years, unless the company meets certain requirements as laid out in section 819(3) of the Companies Act 2014. This will have significant consequences for the two brothers as they act as directors for 134 and 170 Irish companies respectively.

What Can Company Directors Learn?

Directors of multiple companies within a group should not enter into any informal agreements within the group whereby one company bears all the obligations and risks while the other company enjoys all the benefit with complete insulation from any risk. Being a director of a group of companies does not absolve a director from its duties and obligations and in particular the requirement to separately consider whether transactions are in the interest and for the benefit of each of the individual companies. This case should act as a reminder to directors to ensure that the creditors of each company are offered sufficient protection and that all financial decisions are sufficiently documented and recorded.

Landlords Beware

The decision also acts as an important reminder to landlords of commercial properties that the act of allowing one company to occupy and operate from a premises while another related company holds the lease for the premises is not, in itself, unlawful. Landlords granting commercial leases ought to be mindful to ensure that clauses dealing with sub-leasing, assigning, and sharing of occupation of the premises, whether within a group of companies or not, are carefully drafted. Otherwise, a landlord could find itself in a position of seeking payment from a shell company of little or no means.

Contact Us

Should you require more information on the roles and responsibilities of company directors, please contact Michelle Cross in our Corporate and Commercial department.

About: Michelle Cross

Should you require more information on commercial leases, please contact Colm Tobin in our Commercial Property department.

About: Colm Tobin

The post A timely reminder to both company directors and landlords alike regarding commercial lease arrangements and separate legal entities appeared first on JWOD.

The Act, transposes the EU Directive on work-life balance for parents and carers and introduces new rights for employees in Ireland striving to balance family life, work life and caring responsibilities.

The various elements of the Act will come in to effect in a staggered manner, with the introduction of leave for medical care purposes and extension of breastfeeding breaks to two years coming in to effect from 3^rd July 2023.

1. Parts Coming into effect from the 3^rd of July 2023

Extended Breastfeeding Rights: The Act will amend the Maternity Protection Act 1994 by increasing the breastfeeding facilitation period from 26 weeks following the birth of the child to a total of 104 weeks. In addition, the Act through the deletion of section 7(2) of the Maternity Protection Act 1994, allows transgender male employees who have given birth access to maternity leave.

Leave for Medical Care Purposes: The Act specifies an employee is entitled to unpaid leave of up to 5 days within a consecutive period of 12 months to care for someone in need of “significant care or support for a serious medical reason”. This includes a parent or grandparent, or a spouse or civil partner etc. The employee must inform their employer in writing as soon as reasonably practicable when the leave is to be taken, duration of leave, and of the facts entitling the employee to take leave. The leave may not be taken in periods of less than one day and crucially, there is no minimum service requirement for this leave.

This leave is in addition to Force Majeure Leave of 3 days leave in any 12 consecutive months, or 5 days in any 36 consecutive months. Absence for part of a day is counted as one day of force majeure leave. Force Majeure leave arises under the Parental Leave Act 1998.

2. Part intended to come into effect in the Autumn

Leave for Domestic Violence: The Act provides an additional type of leave, which will provide for 5 days in a 12-month period of paid leave. The employer is required to pay “domestic violence leave pay”, the rate is to be set by the Minister.  Ireland will be one of a very limited number of countries to offer paid domestic violence leave.

3. Remote Working & Flexible Working

The following provisions do not have a tentative deadline for enactment presently.  As the Workplace Relations Commission (WRC) has been tasked with creating a Code of Practice, the commencement of the following sections will depend on the publication of the Code of Practice by the WRC.

Remote working: The Act introduces a statutory right for employees to request approval from their employer for remote working. There are various requirements for this application to be done in accordance with the Act, for example, the application is to be done in writing, the commencement and duration of the arrangement specified, etc. The Act imposes an obligation on the employer to consider the request. If the request is denied, the employer is obligated to provide reasons for such a refusal.

Flexible working arrangements for caring purposes: Parents and carers will have the right to request flexible working.  Flexible working arrangements could include; working hours or patterns, and/or the use of remote working, and/or reduced working hours. Employers in receipt of such requests must consider the request in accordance with its needs and the employee’s needs and must provide reasons if refused.

Conclusion 

The Work Life Balance and Miscellaneous Provisions Act 2023 introduces welcome enhancements to the work-life balance of employees in Ireland.

The parts which come into effect as of the 3^rd of July, namely the extended breastfeeding rights and the leave for medical care purposes will be extremely beneficial to those who wish to avail of such enhancements.

Furthermore, by providing leave for domestic abuse victims/survivors, Ireland will be one of a limited number of countries affording such leave and is setting an example in Europe, come Autumn.

COVID-19 truly changed the landscape of employment in Ireland, with a notable shift to remote working for many. The choice of remote work has continued following the pandemic in many organisations. However, this Act, by way of introducing a statutory right to request remote working coupled with an obligation on employers to consider such requests, ensures consideration for employees whose organisation has requested employee presence in the workplace. The effect of such a right will have to be considered following the publication of the WRC’s Code of Practice.

For more information on this topic please contact Patricia Canty or David Pearson of our Employment Department on 021-7300200 or by email to pcanty@jwod.ie or dpearson@jwod.ie

The post Work Life Balance and Miscellaneous Provisions Act 2023 – New rights for parents and carers come in to effect from the 3rd of July 2023 appeared first on JWOD.

NEW LEGISLATION ON ASSISTED DECISION-MAKING AND ENDURING POWERS OF ATTORNEY IMMINENT

The post New Legislation On Assisted Decision-Making And Enduring Powers Of Attorney Imminent appeared first on JWOD.

Key Components of the Bill:

• Employers will no longer be allowed to use tips to make up statutory or contractual pay entitlements. Tips and gratuities will be distributed only in addition to wages.
• Employees will now be entitled to tips paid electronically by credit or debit card. Employers will be obliged to show the value of tips received in a period and the portion paid to the individual employee for that period.
• The Act only regulates electronic payments. Cash tips are not included as this would not be considered ‘workable’ according to the Workplace Relations Commission (WRC).
• Employers will not be authorised to retain tips for themselves except where the employer can prove they perform, to a substantial degree, the same work performed by the employees who receive a share of electronic tips. The employer may only retain such amount that is fair and reasonable in the circumstances having regard to the amount of work performed during the period specified.
• Any charge labelled as a ‘service charge’ or charge for service must now be dealt with the same as any other electronic tip received.
• The Act requires employers to provide evidence of a clear policy, visible to the public on how the business deals with tips, gratuities and service charges.
• Templates on how to display policy on tips will be circulated to employers.
• The Minister for Enterprise, Trade and Employment must review the legislation after it has been in effect for one year.

Conclusion:

One of the main changes brought about by this Act is that it will eradicate certain bad practices that exist in areas such as parts of the hospitality sector. As society moves further away from regular cash transactions toward contactless payments, this protection for employees is absolutely necessary. The requirement for the employer to display a policy on tips publicly is also a welcome development for the consumer. This prevents any misleading of customers and gives the public the assurance that their money is reaching the person they intended to pay. For example, the Act removes any confusion surrounding the term ‘service charge’ and what this means. Overall, the Act is a positive development as it protects employees, informs the consumer and places little burden or cost on the employer.

For more information on this topic please contact Patricia Canty of our employment department on 021-7300200 or by email to pcanty@jwod.ie

The post Payment of Wages (Amendment) (Tips and Gratuities) Act 2022 Signed into Law by the President to Ensure Employees Receive “Fair Tips” appeared first on JWOD.

This legislation will bring Ireland into line with other developed states across Europe who provide statutory protection for those employees who cannot work due to illness.

The need for such legislation was highlighted during the Covid-19 pandemic as there remained no legal requirement for employers to pay when an employee was out with an illness.

Speaking about the commencement of the Sick Leave Act, the Tánaiste said:

“Nobody should have to go to work when they are sick for fear of having no income. It’s not good for them or their co-workers. For the first time, there will be an entitlement for almost all employees to paid sick leave. The entitlement is based on the calendar year.

“This is a very important new right for all employees and was a personal priority for me as Minister. Given the current challenging business environment and inflation in particular, I have concluded that the fairest and most appropriate approach is to introduce the entitlement on 1 January 2023.”

What the new Legislation entails:

• The scheme will be rolled out over 4 years. Employees will be entitled to 3 days’ paid sick leave per year in year one. This will increase to 5 days in year two, 7 days in year three, and 10 days in year four.
• Employees will receive 70% of their normal daily wage subject to a daily maximum of €110.
• These provisions can be reviewed at Ministerial level in order to deal with inflation rates and increased incomes over time.
• The scheme will be enforced through the Workplace Relations Commission and the Irish Courts system.

Requirements for employees in order to qualify:

• The employee must have worked for the employer for no less than 13 continuous weeks prior to seeking sick pay.
• An employee seeking to avail of sick pay must have a valid medical certificate (i.e. certified by a GP as unfit to work).

Consequences for the employer:

• Employers are not to treat differently those who take or apply for sick pay.
• Employers are advised to review their standard employment contracts urgently.
• If an employer offers a sick pay scheme which is as favourable as the statutory provision, then the employer is not under any new obligation.
• If an employer offers a sick pay scheme more favourable than the statutory provision there is no obligation to adjust their existing scheme.
• If an employer offers a sick pay scheme less favourable than the statutory scheme then it will be “deemed to be so modified” so that it is not less favourable.
• An employer who cannot afford to pay workers in accordance with the scheme can apply to the Labour Court for an exemption. This exemption will last for a minimum of 3 months and up to 1 year.

Conclusion:

The upcoming commencement of the Sick Leave Act 2022 is a further example of Ireland’s commitment to provide a modern statutory framework which will protect the rights of employees. In recent years, the legislature has introduced acts governing paternity benefit, parental leave benefit, enhanced maternity benefit, treatment benefit and the extension of social insurance benefits to the self-employed. The Sick leave Act 2022 will undoubtedly be a significant development in the law protecting workers in this state, particularly those in the low-income sector. The Act aims to not impose any unrealistic obligations on employers through its 4-year implementation period as outlined above. This will give employers sufficient time to plan and budget if they do not have an adequate sick pay scheme in their standard employee contract.

For more information on this topic please contact Patricia Canty of our employment department on 021-7300200 or by email to pcanty@jwod.ie

The post Sick Pay Given Statutory Protection as Sick Leave Bill Passed by Oireachtas appeared first on JWOD.

The proposed reform will include “voluntary assumption of risk” under Head 5 of 1995 Act.  The proposed reform contains four key developments:

• Inserting into primary law a number of recent court decisions which rebalance the duty of care owed by occupiers to visitors and recreational users such as the Court of Appeal ruling in Byrne -v- Ardenheath Company Limited [2017] IECA 293.
• A change in the standard to reckless disregard, i.e., it is the standard of “reckless disregard” which will apply rather than the current standards.
• Limits to the circumstances in which a Court can impose liability on the occupier of a premises where a person has entered onto the premises for the purpose of committing an offence; and
• Allowing for a boarder range of scenarios where it can be shown that a visitor or customer has voluntarily assumed a risk resulting in harm.

It is claimed that the proposed amendments will seek to strike a fairer and more reasonable balance, between the steps an owner or occupier of a premises must take to keep their customers and visitors safe, and what individuals themselves can be expected to take responsibility for when entering such premises. The proposed legislation will be placed before the Oireachtas for enactment as part of the Courts and Civil Law (Miscellaneous Provisions) Bill, 2022 which is currently at committee stage.

If you would like further information in relation to any of the above, please contact Ciara Lehane, Associate Solicitor by email to clehane@jwod.ie or call 021-7300200.

The post Reform of duty-of-care legislation seeks to strike the right balance when considering an Occupier’s Liability appeared first on JWOD.

SHARE is a charitable organisation based in Cork, dedicated to providing housing and other support for the elderly. Over the past 52 years they’ve “brought help and hope, homes and happiness to the lonely old people who have been forgotten by society”.

SHARE provides supported independent living in their 140 comfortable and secure housing units across seven different locations, have piloted a dementia outreach programme which sees vetted volunteers and students visiting people living with dementia, and have up to 125 daycare centre clients, for whom they provide medical and social support services.

J.W. O’Donovan Solicitors LLP will announce as the year continues what we have in store in order for us to be able to support SHARE and how you can help them too. In the meantime, donations are welcome through their website.

The post J.W. O’Donovan Solicitors LLP announces SHARE as its 2022 Charity Partner appeared first on JWOD.