Richard Grogan

In case ADJ-6034, the AO in this case held that a union official, regardless of his/her legal qualification, was quite capable of providing legal advice in respect of employment law issues and associated matters.

The issue arose in relation to whether the employee had obtained adequate legal advice for a settlement agreement in respect of which she waived certain legal rights. The agreement compromised “any and all claims arising from the complainant’s employment relationship”.

In this case it is clear that the employee before the AO was represented by a solicitor. The decision does not specify whom the solicitor was. The solicitor argued strongly that a union could not give legal advice, certainly not independent legal advice.

This case raises a number of interesting issues.

The first is, of course, the issue of a settlement agreement. It is now well settled that a settlement agreement needs to specify all and every Act for which the employee is waiving rights. It is not acceptable any longer to simply have a disclaimer relating to “any and all claims from the complainant’s employment relationship”. It is of course possible to include all the relevant Acts, which is reasonably straightforward, and the important Regulations along with any claim under common law for personal injury or breach of contract.

The second interesting issue is the question as to whether or not a union can give legal advice. Legal advice is giving of a professional or formal opinion regarding the substance of procedure of the law in relation to a particular factual situation. Legal advice is distinguished from legal information which is the reiteration of legal fact. Legal information can be conveyed by anyone. It can equally even be conveyed by way of a sign. A speed limit sign is, in fact, legal information.

A union has full protection, under the law, for any actions undertaken by a union as part and parcel of their normal union activities, which is subject to some legal restrictions such as a ballot for a strike.

It is an interesting issue as to whether union officials give legal advice or whether it is simply legal information. Legal information included in manuals, etc. are not something that somebody can sue on. Legal advice which is incorrect is something that a person can sue on.

The case raises an interesting issue. The first is whether a union official is giving legal advice or legal information. Secondly, if they are giving legal advice and it is incorrect, is it part and parcel of the normal activities of a union, in which case it is exempt from being sued on if it is wrong, or is it outside the remit of the normal activities of a union, in which case, if it is incorrect, it can be sued upon?

It is of course accepted on a day-to-day basis that union officials give legal information. In this case, the union official was not called to give evidence. The issue is whether the union official would have claimed that they were simply giving legal information as opposed to legal advice. This is an interesting issue which may evolve. In our opinion, unions are giving legal information, not legal advice.

In relation to any settlement agreement, it is always advisable to ensure that the employee has been given the opportunity to get independent legal advice from a solicitor. It is now becoming quite normal that a figure of between of €300 and €400 together with VAT will as part of any agreement be payable to the legal advisor by the employer subject to obtaining a VAT invoice addressed to the employee but marked “payable by” the employer. It is now also usual that the agreement would specify the name of the legal advisor and the solicitor firm and that the legal advisor witnesses the signature. This is the safest course of action.

The AO in this case raised an interesting issue. It will probably be one that is going to be litigated upon in the courts in due course.

• Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.