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Login Join NowRedundancy developments
Suspension lifted on employees triggering redundancy
An employee who has been placed on lay-off or short-time working can, provided certain conditions are met, trigger redundancy.
In the Republic of Ireland, as part of the government’s pandemic response, an employee’s ability to trigger redundancy was temporarily suspended. This meant that where an employee was, for example, laid off for four or more consecutive weeks, they could not claim a redundancy payment.
From 30 September 2021 this suspension has been lifted. This means laid off employees once again have the right to trigger redundancy and to claim a statutory redundancy payment, provided they meet the relevant criteria.
Statutory redundancy payments – compensation for loss of reckonable service during lay-off
Employees must have 2 years continuous service to be entitled to a statutory redundancy payment.
Employees continue to accrue continuous service while on lay-off. However, certain absences from work, including lay-off, are not deemed to be “reckonable service” when calculating a statutory redundancy payment.
In recognition of the impact of Covid-19 the Irish Government has announced a new special payment of up to €1,860 to employees who have been made redundant and who have lost out on reckonable service while laid off during the pandemic. This payment will be made available in the first half of 2022.
Case Law Review
Sexual Harassment – important takeaways from the Labour Court
This case attracted a significant level of media attention as it involved a well-known coffee chain and 19-year-old employee who was sexually harassed by her manager.
The acts of harassment arose from posts made by the manager to a group of Respondent employees on Facebook messenger. The employee was part of the Facebook group; she went on sick leave and later resigned.
The Respondent accepted the manager’s conduct, which included the posting of offensive pictures, constituted sexual harassment. In light of this concession the case focussed on whether the Respondent could prove that it had taken adequate steps to prevent the behaviour occurring.
The WRC upheld the complaint and awarded the Complainant €3,500. On appeal the Labour Court expressly disagreed with the WRC’s view that the acts fell in the less serious category and increased the award to €20,000 (approximately 1 year’s earnings.)
In addition to increasing the value of the award the Labour Court noted that whilst the Respondent had a bullying and dignity at work policy, it was shocked that there was no specific sexual harassment policy. The Labour Court ordered the Respondent to:
- Develop a workplace anti-harassment and sexual harassment policy that complies with the relevant statutory Code of Practice;
- Develop a workplace anti-bullying policy that complies with the relevant statutory Code of Practice;
- Develop an appropriate Social Media policy;
- Take the necessary steps to ensure the policies were communicated to, and understood by, all employees. This included raising awareness raising and providing training.
In this case the fact the employer had a bullying and dignity at work policy was not deemed sufficient. The Court stated “The policy on which the Respondent relied in making arguments to the Court is, in fact, a policy on bullying and dignity in the workplace rather than one that covers sexual harassment. This extraordinary oversight meant that not alone was there no training provided to employees on sexual harassment but, it could be argued, there was no express prohibition on such behaviour.”
The Court went on to state: “It hardly needs to be said that the Respondent needs to have a full suite of policies regarding the legal protections that they are required to put in place to ensure that staff are protected from recurrences of this type of incident.”
This decision is another example of the importance placed on employment policies, and their communication and enforcement in the workplace. In addition to setting standards for employees, policies and procedures must also set standards for managers. It is important that employees at all levels of seniority receive appropriate training and guidance in respect of how they must conduct themselves and the standards they will be held to.
Use of CCTV in disciplinary proceedings and “zero tolerance”
This decision was published in late September 2021 and concerns the termination of employment of a bus driver who was caught on CCTV footage on his mobile phone whilst driving. The use of mobile phones whilst driving was strictly forbidden by the Respondent and considered gross misconduct.
There was no dispute the Complaint was guilty of the misconduct. The case before the WRC focussed on procedural issues.
The background to the dismissal was that the Complainant was the subject of a customer complaint (from which he was exonerated). While viewing the CCTV footage as part of that investigation, the Complainant was spotted using the mobile phone. However, that footage was captured an hour after the original incident being investigated.
The Complainant argued the Respondent should not have been viewing that portion of the CCTV footage. He alleged a breach of data protection law and a breach of the employer’s own CCTV policy as there was no provision for its use in disciplinary proceedings.
The WRC accepted it had no jurisdiction in relation to breaches of data protection law. However, it found that it is critical to the operation of fair procedures that an employer follow its own policies and procedures. It found the Respondent did not do so in this case as the CCTV policy did not expressly provide for the use of CCTV in disciplinary procedures. Somewhat harshly, in our view, the WRC did not accept the statement in the CCTV policy that it could be used “for the safety of the organisation’s employees, customers, visitors and contractors” could cover discipline in these circumstances given there was a safety concern. The WRC also stated that had the Respondent tried to rely on “performance and public safety” it would have stretched the scope of the policy beyond what was intended.
The WRC found the most second and most serious issue was the manner in which the “zero tolerance” policy was applied. The Respondent confirmed at the hearing that in all cases mobile phone use will result in termination of employment. The WRC found this “represents a policy on the part of the respondent that constitutes prejudgement in respect of both guilt and of sanction.”
Despite the fact the Complainant, a driver by occupation, did not dispute that he was using the mobile phone whilst driving, his dismissal was held to be unfair. Indeed, whilst the WRC found this was a serious incident, it granted the Complainant’s request for reinstatement and awarded over one year’s back pay.
There are a number of takeaways from this case:
- The importance of a well drafted and comprehensive CCTV policy and employee privacy notice covering the use of CCTV footage for disciplinary purposes;
- Ensuring there is a authorised and legitimate reason to check CCTV footage. In this case the employer could provide no explanation why it continued to view footage after the original purpose had ended. The WRC called this a “speculative fishing expedition”;
- Employees have a constitutional right to a fair and unbiased hearing. It is not unusual for employers, especially those in regulated sectors, to have a “zero tolerance” approach to certain misconduct. However the utmost care must be taken when drafting any disciplinary rules and conducting disciplinary proceedings. Language in an outcome letter such as “I have no option but to dismiss”, or a policy that appears to bind the decision maker to dismiss, will risk a dismissal being found to be unfair.
Two recent redundancy decisions of note
Tanneron Limited v Gerard Conolin is a Labour Court decision in which a redundancy dismissal was found to be unfair on the basis the employer’s process failed to meet the required impersonal and objective test.
In this case the selection was based on fee income and sales over the previous 12 months.
The Respondent’s evidence was that, following application of the criteria, it was surprised the Complainant was scored lowest in respect of both fees and sales in that period. The Complainant argued that when the Respondent set the criteria it was clear who would be the first to go. He submitted he was dismissed for poor performance and his dismissal was “dressed up” as a redundancy thereby denying him the right to be advised of his alleged underperformance and given an opportunity to improve.
The Labour Court considered the size of the organisation and the small number of employees and found it was unlikely that management would not be aware when setting the criteria who was likely to be affected. The Respondent failed to convince the Court that the Complainant had not been singled out on the basis he was a poor performer. The dismissal was found to be unfair. Despite the fact the Complainant was found to have fell short of what was expected in terms of mitigation of loss, he was awarded €23,000 compensation on top of the sums he had already received in respect of his redundancy.
In this case the Respondent had received legal advice to apply a matrix of criteria. Had that advice been followed the outcome of this case may have been different, especially if criteria unconnected to performance had also been used.
In Aoife Murphy v The Sims Clinic Ltd, the WRC found a Complainant had been unfairly dismissed as the Respondent failed to consider all alternatives to making her redundant.
The WRC found the alternatives the employer should have considered included:
- a position in another department of the business as the Complainant had transferable skills;
- unpaid leave or a career break for a few months, to monitor the business with a view to retaining the Complainant for a suitable role in the future; and
- a part-time position supporting a number of departments of the business.
The WRC found “no problem-solving or creative thinking went into coming up with a proposal to retain the complainant in employment.” It stated this could have involved any one or a combination of the options listed.
Unsurprisingly the WRC held that the responsibility rests with the employer, not the employee, to identify alternatives to redundancy. What is of note are the lengths the WRC expected the employer to go to.
The Budget 2022
The Budget 2022 was announced on Tuesday, 12 October 2021. Some of the employment-related highlights are:
Income tax: the rate of income tax will stay the same, but the standard rate income tax band (the amount an employee can earn before they start to pay the higher rate of tax) will be increased by €1,500 for 2022;
Employer’s PRSI: the weekly income threshold for the higher rate of employer’s PRSI will increase from €398 to €410;
Minimum wage: the NMW will increase by €0.30 to €10.50 per hour from 1 January 2022;
Leave for parents: Parent’s Leave and Parent’s Benefit will be extended by 2 weeks to 7 weeks from July 2022;
Remote working tax relief: there will be income tax relief of 30% on heating, electricity and broadband expenses;
Employment Wage Subsidy Scheme (EWSS) changes: the EWSS will remain in place in a graduated form until 30 April 2022. There will be no change to EWSS for the months of October and November, but changes will start to apply from December. The scheme will also close to new employers from 1 January 2022.
What’s on the horizon?
Gender Pay Gap Reporting
The Gender Pay Gap Information Act 2021 was signed into law in July 2021. The Act requires public and private sector organisations (initially those with 250+ employees, but extending over time to organisations with 50+ employees) to analyse, explain and publish certain information on pay differences between male and female employees and information on any measures taken (or proposed to be taken) to eliminate or reduce such differences.
The Regulations bringing the legislation into force are expected any day now and it is anticipated the reporting process will begin early next year. We await the Regulations for the specific details.
We are delighted to announce that our Annual Employment Law and HR Conference will take place on Thursday 10 June 2021.
We are delivering our Conference via an online platform again this year and will share details of the event with you shortly.
Members may recall that we sought views on the proposal to introduce legislation in Northern Ireland proving the right to paid time off following the death of a child. The Department has now been published its Response and as we expected the intention is to introduce the same entitlement to Parental Bereavement Leave and Pay for Northern Ireland employees to that is presently afforded to employees in Great Britain.
The full Departmental Response can be viewed here
Of note, the Department’s Response states was unanimity of purpose that employees in Northern Ireland deserve the same right to Parental Bereavement Leave and Pay as that afforded to employees across the rest of the United Kingdom.
The Department has stated that they will push ahead with securing the progression of Northern Ireland Parental Bereavement Leave and Pay legislation with a minimum of delay. Our views is that such legislation introduced by April 2021.
Disappointingly the Department did not provide any response to its final question on the Consultation Document that sought views on the strategic direction of employment law in Northern Ireland.
A few key points:
- The definition of bereaved parent will mirror that within the corresponding GB legislation and will include those parents who experience the loss of a child through stillbirth after 24 weeks of pregnancy.
The Department resisted calls for the right to be extended to grandparents and parents that lose a child over 18 years.
- The GB Parental Bereavement Leave and Pay legislation allows bereaved parents to choose to take up to 2 weeks leave either consecutively or non-consecutively in weekly blocks. The Department confirmed that it is their intention to make the same provision for bereaved parents in Northern Ireland.
- When considering the appropriate Leave Window the Department agreed with GB that the provision for a two-week block or two discontinuous weeks of leave across a 56-week period maximised the benefit for bereaved parents. The Department intends to replicate GB provisions and legislate for a 56-week period during which parental bereavement leave can be taken.
- The Department intends to follow the GB legislation in respect of Notice Periods. Accordingly, for leave taken shortly after the death of a child, there will still be a requirement for notice to be given. However, in recognition of the impact that such a loss might have in preventing notice being given during the earlier period the legislation will provide for this notice to be given as soon as is practicable following the death if unable to be given prior to the absence.
For leave taken at a later date, for example on a particular anniversary or birthday, a short notice period of one week will be required to will fairly balance the needs of bereaved parents with those of employers.
- The notice for leave will take the form of a self-declaration with an acknowledgement of entitlement and the Response states “it will be recognised as such by employers.” Whilst the Department does not intend to have an evidential requirement for entitlement to parental bereavement leave, there will be a requirement for evidence of entitlement to parental bereavement pay.
- The Department will also follow GB in the level of the statutory pay as they believe it is important to maintain an alignment with existing family related statutory pay provisions. The Department states that disparities between employees in Northern Ireland and the rest of the United Kingdom should be kept to a minimum whenever possible. In addition making a change to the amount payable would also result in a delay to the introduction of this new statutory right, which they want to avoid. The statutory payment for this provision will therefore be paid in line with other statutory payments, which presently is the lower of either £151.20 or 90% of an employee’s average weekly earnings.
- Again, in line with the GB provisions, there will be a requirement for those wishing to avail of parental bereavement pay to notify their employer in writing within 28 days of the commencement of any associated leave. The Department believes this will ensure that employees can commence a parental bereavement leave and pay period in the immediate aftermath of the death of their child without first having to give notice to their employer if it has not been practicable to do so.
- There will be a light-touch requirement for evidence of entitlement – to be given in writing but limited to a declaration of entitlement by way of relationship with the child, the name of the person claiming the payment and the date of their child’s death.
A Template policy on this will be published once the Department has finalised the Regulations.
On 8 December 2020, the Department of Economy (DfE) ran a webinar in conjunction with the Home Office dealing with the issues arising with the workforce following Brexit.
There were a number of questions asked by delegates and DfE committed to responding in writing which they have now done in this 24 page document. We have decided to circulate this as we believe some Members may find the attached information helpful. The answers have been reviewed and cleared by the Home Office and are up to date as at 28 January 2021.
These extensive FAQs cover issues including:
- Points Based System
- EU Settlement Scheme
- Frontier Workers
- Right To Work Checks
- Seasonal Agriculture Workers
- Shortage Occupation List
- Sponsorship & Recruitment
- Visas
In response to what 3 actions should Employers should do now they said:
- Ensure any EU Nationals working for them are aware of the EU Settlement Scheme signpost them to official sources of information and support, and encourage them to apply.
- Make a decision as to whether they need to become a Sponsor, considering their current and planned recruitment practices.
- Take the right action at the right time – consider processing and lead in times.
A useful link document referencing the web pages where applications can be made for Settled Status, Frontier Workers is available below.
If you have any queries, please contact us. Depending on the complexity of the issue we may refer you for further specialist immigration advice.
New Presidential Guidance and Direction has been released confirming that the Tribunal building will now be closed until at least 1 March 2021.
Members may know that the Tribunal building was closed on 19 January 2021 and we were informed at that stage that it would stay closed until at least the 5 February 2021.
The closure was initially to allow a deep clean and therefore it was confirmed that there were a number positive Covid cases and persons having to self-isolate. A further updated Risk Assessment was then commissioned.
The Tribunal has confirmed that it is not yet in a position to provide an indicative date as to when the Tribunal building can safely reopen and will only re-open on 1 March 2021 if it is safe to do so.
The Tribunal’s Risk Assessment is currently being updated which has been described as a ‘significant & substantial piece of work’.
Further guidance (similar to the previous Presidential Directions) has been provided in relation to the management and listing of cases.
If any Member has a case listed on or before 1 March 2021 we will either be in contact with you, or you can contact us to discuss the impact on your case further.
As Members will be aware, an employer can be liable for acts of discrimination or harassment committed by its employees in the course of employment. This means that, even if an employee acts without your knowledge or approval, the business can still be held liable for that employee’s discriminatory acts.
However, there is a defence available to an employer if it can prove that it took such steps as were reasonably practicable (the standard in Northern Ireland) or all reasonable steps (the standard under the Equality Act in GB) to prevent the employee from doing the discriminatory act. This is often referred to as “the statutory defence.”
On 4 February 2021, the EAT in England and Wales delivered its Decision in Allay (UK) Ltd v Gehlen. This was a Claim of race discrimination claim in which the employer argued that it had provided training and therefore should not be held liable for acts of racial harassment carried out by its employee.
The EAT did not accept the employer’s arguments and found the employer could not rely on the statutory defence.
The employer had an equal opportunity policy and an anti-bullying and harassment procedure dating from 2016. Equality and diversity training had been given by the employer at various times, that training included a slide on what could be considered to be harassment.
However, the training had been given over a year before the harassment took place. This led the EAT to describe the training as “stale and no longer effective to prevent harassment.”
The EAT also went on to state “Brief and superficial training is unlikely to have a substantial effect in preventing harassment…Thorough and forcefully presented training is more likely to be effective, and to last longer.”
This case is a timely reminder of the need for employers to keep their equal opportunities training up to date. The EAT focused not only on the frequency of such training, but also the content stating that whilst employees may attend anti-harassment training, they may not understand it. It is therefore important to ensure that the training you provide is comprehensive and is delivered in a way that employees can ask questions so they understand the legal position and your organisation’s rules and standards.
New laws on IR35 were delayed in 2020 due to the pandemic and are now due in from 6 April 2021.
Not all Organisations will be affected but those that need to understand comply with the rules include:
- Medium & large-sized private sector organisations that engage contractors who work through own limited company /other intermediary
- Employment Agencies & third parties that supply contractors
- Public sector that engage contractors who work through own limited co. /other intermediary
Small private sector businesses will be exempt from the new rules. A company is small if it satisfies two or more of the following requirements:
- Its annual turnover is not more than £10.2 million.
- Its balance sheet total is not more than £5.1 million.
- It has not more than 50 employees.
In addition, a company is always small for its first financial year. Where the small company is part of a larger group of companies, the group turnover and revenue will need to be considered. Non-corporate businesses will be treated as “small” for a tax year if their annual turnover in the financial year ending at least nine months before the start of the relevant tax year was not more than £10.2 million.
HMRC has now published a Policy Paper to support organisations in complying with changes to off-payroll working rules IR35. The new briefing explains the approach HMRC will take for new compliance activity from 6/04/21. It builds on the approach explained in ‘Ensuring the correct tax is paid.’
It is divided into 3 sections:
The Compliance principles are:
- We will support customers who are trying to do the right thing and comply with the rules
- We will help customers meet their responsibilities under the off-payroll working rules
- Where customers make a mistake, we will help them correct it
- We will check that mistakes are corrected
- We will identify and correct non-compliance with the off-payroll working rules
- We will challenge deliberately non-compliant customers
- We will challenge tax avoidance schemes that claim to avoid the off-payroll working rules or otherwise reduce the tax payable
- We will use a specialist team to carry out all our off-payroll working compliance activity
The Briefing is not intended to outline compliance approach for contractors who work through their own limited company/other intermediary. There HMRC will apply the principles set out in Ensuring the correct tax is paid and will work with contractors to get their tax right.
HMRC has also produced a toolkit to find out if a worker on a specific engagement, should be classed as employed or self-employed for tax purposes. This is called the Check employment status for tax (CEST tool) that can be accessed here.
On Friday 19 February 2021 the Supreme Court is due to hand down its Judgment in the highly publicized Uber case. This case revolves around whether the Uber drivers were workers or independent third party contractors. Undoubtedly the Uber case could affect this area.