Summer 2025 ROI Update

 LEGISLATIVE UPDATE

1. THE EMPLOYMENT (CONTRACTUAL RETIREMENT AGES) BILL 2025

On 1^st April 2025 the Government initiated the Employment (Contractual Retirement Ages) Bill which is intended to introduce a new statutory right enabling employees to remain in employment until they reach the state retirement age, currently 66.

Background

In ROI, less favourable treatment on grounds of age is prohibited. However, employer’s can still impose a mandatory retirement age provided that it is set out in contractual documentation/policy documentation and can be objectively justified.

In Mallon v Minister for Justice [2024], the Supreme Court affirmed the legality of mandatory retirement ages where they are objectively justified—specifically, if they pursue a legitimate aim and the means of achieving that aim is necessary and proportionate. Crucially, the Court held that such retirement ages can be applied to defined groups without the need for individual assessment. This approach can be based on general probabilities regarding age, health, and competence. Although the case involved public sector employment, its reasoning provided guidance and reassurance for private sector employers who implement contractual retirement ages.

The introduction of the Employment (Contractual Retirement Ages) Bill 2025 however appears to be a move away from principles set out in Mallon. This is perhaps influenced by increasingly age diverse workforces and more requests from employees to work beyond normal retirement age, driven in part by lack of sufficient provisions of a private pension fund (apt with the introduction of auto enrolment.)

The Employment (Contractual Retirement Ages) Bill 2025

The Bill introduces a new statutory right allowing employees to remain in employment until they reach the State Pension Age (currently 66), even if their contract specifies an earlier retirement age. It does not compel employees to work longer—it simply removes the employer’s ability to enforce earlier retirement without the employee’s consent.

A summary of key principles of the draft Bill, which has just completed the third stage in Dail Eireann, is set out below.

Key Provisions

• Employees with a contractual retirement age below the State Pension Age can notify their employer that they do not consent to retire at that age.
• This notification must be made at least 3 months and no more than 12 months before the contractual retirement age.
• Employees may issue no more than two notifications in any six-month period.
• Employer must issue written reply within 1 month either agreeing to the request or confirming the operation of the mandatory retirement age remains and the basis for this.
• An Employer who, without reasonable cause, fails to provide an employee with a reasoned written reply will be guilty of an offence and liable on summary conviction to a class A fine (i.e. a fine not exceeding €5,000) or imprisonment for up to 12 months or both.
• The provisions of the draft Bill do not currently apply to probationary employees

Implications for Employers

The Bill signals a shift toward a consent-based retirement framework, demanding greater transparency and justification from employers when enforcing early retirement clauses.

For employers who operate mandatory retirement ages, they should review employment contracts and HR Policies to determine whether such contractual ages can still be justified.

Employers should also consider what impact the introduction of the new rights may have on current succession planning.

2. Pregnancy Loss (Miscellaneous Provisions) Bill 2024

The Pregnancy Loss (Miscellaneous Provisions) Bill 2025 is a Private Member’s Bill and, as of July 2025, is at the Third Stage in Seanad Éireann.

The legislation introduces significant reforms aimed at supporting employees who experience pregnancy loss.

It is intended that the Organisation of Working Time Act 1997 will be amended to provide for Pregnancy Loss Leave.

 Key provisions include:

• Paid Leave Entitlement: Employees who suffer a pregnancy loss (mother and other parent) will be entitled to a period of paid leave, with the intention that this becomes a day-one right.
• Up to 5 days leave with pay for mother experiencing pregnancy loss in a leave year and 2.5 days leave with pay for the parent of the pregnancy which results in a pregnancy loss or still birth.
• The Bill extends protections under the Unfair Dismissals Acts 1977 to 2015, safeguarding employees from dismissal related to pregnancy loss leave.
• The Bill establishes an opt-in register for recording pregnancy loss, which will be closed to public searches.
• Employees shall notify their employer of the intention to take pregnancy loss leave as soon as is reasonably practicable before the employee is due to start work on the day that is intended to be taken as pregnancy loss related leave.  Where it is not reasonably practicable to notify an employer of an intention to take pregnancy loss related leave before the start of the working day of the employee concerned, the employee shall notify the employer as soon as reasonably practicable after the start of that working day.

We will continue to keep Members updated as the Bill makes its way through the legislative process however employers should prepare for compliance by reviewing internal policies and ensuring HR teams are informed of the proposed changes.

Case Law Update

1. Francisco Martin Santano v Enable Ireland Sandymount School (ADJ-00050049)

Case Summary: Unfair Dismissal, Frustration of Contract,

In Francisco Martin Santano v Enable Ireland Sandymount School, the Workplace Relations Commission (WRC) considered a complaint under the Unfair Dismissals Acts 1977–2015. The complainant, Mr. Santano, a Special Needs Assistant, alleged that he was unfairly dismissed following the denial of a career break linked to a housing crisis and a subsequent refusal by the school to re-engage him once his circumstances changed.

This case is significant because it engages with not only the doctrine of contract frustration, rarely invoked in employment disputes, but also the increasing overlap between economic realities—like Ireland’s housing shortage—and employment law.

Background

Mr. Santano began his role in 2019 and, by early 2023, was facing the loss of his accommodation in Dublin after a decade-long tenancy ended. He sought a one-year career break from his employer to relocate temporarily and manage his housing crisis, noting the unaffordability and scarcity of housing in the capital. He was granted an extension to remain in his home until the end of June 2023, enabling him to complete the school year.

However, the school’s Board of Management refused his career break request, citing policy limits on the number of staff who could be on leave simultaneously. These limits were designed to maintain appropriate levels of support for students. The Department of Education acknowledged the refusal but emphasised it was a matter for the Board, though the complainant could appeal.

He did appeal, but the decision was upheld. After moving to Spain due to lack of housing, Mr. Santano remained in contact with the school and notified them in December 2023 that he had secured housing in Dublin and was ready to return by 1 January 2024.

The Respondent’s position  

The Respondent asserted that the Complainant’s employment had ended, not through dismissal, but because the contract had been frustrated. This meant that the employment agreement had ceased due to unforeseen circumstances—his departure from Dublin and inability to return at the beginning of the new academic year—rendering his role effectively terminated.

Given the vital nature of Special Needs Assistant positions, the school argued it was compelled to recruit a replacement before the school year began.

The Data Access Dispute

In addition to the unfair dismissal claim, Mr. Santano raised concerns about his Data Subject Access Request (DSAR). He had sought access to records such as minutes from Board meetings where his situation was discussed. The Respondent did not respond to this request adequately, prompting him to raise a complaint with the Data Protection Commission (DPC). The WRC held that it had no jurisdiction to adjudicate data protection matters, appropriately referring the issue to the DPC.

Decision

Adjudication Officer (AO) Jim Dolan dismissed the unfair dismissal claim, concluding that there had been no dismissal. Instead, he accepted the Respondent’s argument that the employment contract had been frustrated by the employee’s inability to perform his role in Dublin at the start of the school year.

The Adjudicator confirmed frustration occurs when continued performance of the contract becomes radically different from what was originally agreed. The Complainant’s extended absence and subsequent relocation to another country fundamentally altered the employment arrangement.

Regarding the career break denial, the Adjudicator referred to the Department of Education’s circular which grants sole discretion to employers on such matters, emphasising that students’ welfare must take precedence over employee requests. The Board of Management had complied with the relevant procedures and offered the complainant the opportunity to reapply in the future.

Takeaways for Employers

This decision is noteworthy for several reasons:

• Rare Use of Frustration: Employment law rarely relies on contract frustration, but this case shows that extraordinary circumstances—like international relocation and inability to return to work—can satisfy the doctrine’s criteria.
• Policy-Based Discretion Validated: The case affirms that well-established and consistently applied workplace policies—particularly those founded on statutory guidance—can protect employers from claims of unfair dismissal when decisions are made transparently and fairly.
• Impact of Societal Factors: The ruling reflects the growing influence of societal and economic forces (like the housing crisis) on employment relationships. Employers should consider how broader challenges affect their staff and develop supportive, documented procedures in response.
• Documentation and Process Integrity: The employer’s detailed documentation of the decision-making process and their willingness to engage with the employee even after rejecting his request significantly bolstered their legal defence.
• The decision also clarifies that the WRC is not the correct venue to handle data protection grievances, reinforcing the separation between employment and data protection law.

Conclusion

Francisco Martin Santano v Enable Ireland Sandymount School illustrates how legal principles such as contract frustration can intersect with personal hardship and systemic challenges like unaffordable housing. While the WRC ultimately sided with the employer, the decision serves as a valuable guide for balancing operational needs with employee support and fairness.

2. Danica Gutierrez v Cafico Corporate Services Ltd (ADJ-00050330)

Constructive Unfair Dismissal- without prejudice conversation

Ms. Gutierrez, employed as a Senior Client Manager, began her role on 15 August 2022 and resigned on 30 January 2024. The WRC upheld her complaint that she had been constructively unfairly dismissed by the Respondent, having regard to both the contract test and the reasonableness test required for a constructive dismissal under Irish employment law.

Background

The Complainant had been working in her role for a little over a year when, on 26 September 2023, she was unexpectedly placed on a Performance Improvement Plan (PIP) by the company’s Chief Accounting Officer. Gutierrez contended that the plan was imposed without any warning or previous indication of dissatisfaction with her performance. She claimed that the PIP lacked measurable goals, tangible performance indicators, and specific examples of underperformance—making the process vague and ambiguous and that fair procedures were not applied.

She further argued that the employer’s failure to investigate a client complaint against her was unfair.

The employer disputed this account, arguing that the PIP was clearly structured with identifiable benchmarks, review milestones, and a follow-up meeting scheduled for 25 October 2023.

Only three working days after being put on the PIP, Gutierrez was called to another meeting on 3 October 2023, where she was offered an exit package consisting of two months’ notice pay and an ex-gratia payment of €5,000. Notably, her contractual notice period was three months, not two. The details of this meeting were hotly disputed by both parties.

Legal Framework: Constructive Dismissal

The WRC adjudicator, Eileen Campbell, highlighted the legal threshold for a constructive dismissal. Under section 1(b) of the Unfair Dismissals Acts, a resignation may be deemed a constructive dismissal if:

1. The employer’s conduct amounts to a fundamental breach or repudiation of the employment contract (Contract Test); or
2. The employer’s behaviour makes it reasonable for the employee to resign (Reasonableness Test).

These tests were first articulated in the UK case Western Excavating v Sharp [1978] ICR 221 and are commonly applied in Ireland. There’s also a general principle that an employee should give the employer a chance to resolve the situation before resigning, though this wasn’t fatal in this case.

Decision

The adjudicator rejected several of the complainant’s claims, confirming that:

• in commercial relationships, a client has the right to request staff changes and that such a request doesn’t necessarily warrant investigation.
• the high level of procedural protections required in disciplinary actions doesn’t automatically extend to PIPs. Thus, the absence of these safeguards wasn’t enough by itself to amount to constructive dismissal

AO Campbell however did ultimately find that Gutierrez had been unfairly treated in a way that justified her resignation. A crucial factor in this determination was the conduct of the meeting on 3 October 2023.

Although the precise details were contested, both parties agreed that the meeting occurred and that the severance offer was made. The adjudicator called this moment the “defining” incident that irreparably damaged the employment relationship. Offering a severance package just days after initiating a performance improvement process was seen as an act inconsistent with the employer’s contractual obligations and good faith.

She concluded that this act was a serious breach of the employment contract, which would lead any reasonable person to resign, thereby satisfying both the contract and reasonableness tests.

Absence of Grievance Procedure

A significant factor in the decision was the company’s failure to provide a grievance process. Neither the employment contract nor the employee handbook contained a grievance procedure. The adjudicator emphasised that this was a “striking omission” and highlighted the importance of employers complying with S.I. No. 146/2000 – the Code of Practice on Grievance and Disciplinary Procedures. While employees are normally expected to use internal mechanisms before resigning, the lack of such mechanisms in this case meant that Gutierrez’s failure to raise a grievance could not be held against her.

Compensation Award

Gutierrez calculated her financial loss from the dismissal at €48,548.55. However, the adjudicator found that she had not made sufficient efforts to mitigate her loss—for example, by seeking new employment—and awarded her €17,917.50 in compensation.

Takeaways for Employers

• PIPs should be carefully and transparently implemented. Sudden or poorly substantiated PIPs may undermine employer credibility.
• Offering severance packages shortly after initiating a PIP can imply bad faith and damage trust irreparably.
• Employers must have clear and accessible grievance procedures in place. Their absence can seriously undermine an employer’s defence in dismissal cases.
• Exit discussions are not  automatically “without prejudice” and can be admissible in proceedings. Employers must approach such meetings with care.

The President of the Office of the Industrial Tribunals and Fair Employment Tribunal has now published her Annual Report reviewing and reflecting on the success of the scheme. A summary of that report is below and the full report can be viewed here

Overview of the Scheme

The Judicial Mediation Scheme was introduced in March 2023 as a voluntary and confidential process designed to resolve employment disputes without the need for formal hearings. It involves trained Employment Judges acting as neutral mediators to help parties reach mutually acceptable settlements. The scheme aligns with broader efforts to promote alternative dispute resolution (ADR) within Northern Ireland’s employment law framework.

Performance and Impact (April 2024–March 2025)

In its second year, the scheme saw growth:

• 76 mediations were listed, up 22.6% from the previous year.
• 56 mediations proceeded, a 43.6% increase.
• 73.2% of these mediations were successful, either on the day or shortly after.
• This resulted in a net saving of 298 judicial hearing days, a 32.4% improvement.

These figures suggest the scheme is gaining traction and delivering tangible benefits in terms of efficiency and cost reduction.

Participation and Representation

The scheme involved:

• 4,128 claimants and 104 respondents, covering 29,591 claims.
• 99% of claimants and 98.75% of respondents were legally represented.

The high level of legal representation may contribute to the scheme’s effectiveness, though the report notes it raises questions about accessibility for unrepresented parties.

Judicial Assessment (JA)

Alongside mediation, Judicial Assessment was introduced as a formalised early case management tool. JA allows an Employment Judge to assess the strengths and weaknesses of each party’s case, potentially narrowing issues and encouraging early settlement. While suitable for most complex cases, JA may be excluded in scenarios involving multiple claimants, insolvency, or overlapping legal proceedings.

Jurisdictional Scope

The most common types of claims mediated included:

• Disability Discrimination
• Sex Discrimination
• Unfair Dismissal

This diversity indicates the scheme’s applicability across a broad range of employment disputes.

Stakeholder Engagement and Support

The report states the scheme has received strong support from the judiciary, legal practitioners, and the Labour Relations Agency. The latter plays a key role in formalising settlement agreements.

Critical Observations

From an impartial standpoint, the scheme demonstrates promising results in reducing litigation burden and promoting amicable resolutions. However, several considerations remain:

• Voluntary nature: Success depends on parties’ willingness to compromise.
• Representation gap: Unrepresented parties may face challenges navigating the process.
• Withdrawal rate: 20 mediations were withdrawn, suggesting room for better pre-screening or support.

Conclusion

The report concludes Judicial Mediation Scheme is emerging as a valuable ADR mechanism within Northern Ireland’s employment tribunals.

ZHC paper for NI Employers Federation

On 2 July 2025, the UK Government unveiled its much-anticipated implementation roadmap for the Great Britain (GB) Employment Rights Bill. Heralded as a landmark Bill, it is set to usher in one of the biggest overhauls in GB employment law in recent years.

This should not be confused with the Northern Ireland (NI) Good Jobs/Employment Rights Bill, which is being progressed separately by the NI Executive here. It is notable that we are yet to have an indication from the Department of the Economy of the proposed implementation dates for new laws here.

For employers, the GB Roadmap outlines a broad timeline for changes that could significantly impact workforce policies, HR compliance, and employee relations strategies. We have set out an overview below.

Key Milestones and Implementation Dates

The aim is for the Bill to receive Royal Assent before Parliament breaks for the Summer recess later in July 2025. Scrutiny of the Bill in the House of Lords has taken longer than expected, so it is almost certain to pass into law in September or October 2025.

Measures that will take effect after the Bill is Passed:

1. Immediate repeal of the Strikes (Minimum Service Levels) Act 2023 and much of the Trade Union Act 2016, aligning GB’s position more closely with Northern Ireland where neither of these laws were introduced.
2. New protections against dismissal for participation in industrial action.

Measures that will take effect in April 2026:

3. Collective Redundancy Protective Award: Maximum award doubled from 90 to 180 days’ gross pay per affected employee.
4. ‘Day One’ Paternity Leave and Unpaid Parental Leave: Immediate access for eligible employees. The government also launched a Call for Evidence as part of its Review of Parental Leave on same day.
5. Whistleblowing protections strengthened.
6. Fair Work Agency established, with some of its remit extending to Northern Ireland.
7. Statutory Sick Pay reform: Lower Earnings Limit and waiting period removed (These provisions will also extend to Northern Ireland).
8. Trade union recognition procedures simplified.
9. Electronic and workplace balloting introduced.

Measures that will take effect in October 2026:

10. Ban on ‘fire and rehire’ practices.
11. Fair Pay Agreement Body created for Adult Social Care (England).
12. New tipping laws: Employers required to consult staff on fair tip distribution.
13. Enhanced sexual harassment protections: Employers must take “all reasonable steps”.
14. New protections against third-party harassment.
15. Expanded trade union rights, including stronger access rights and protection against detriment.
16. Extension of employment tribunal time limits (details pending).

Measures that will take effect in 2027:

17. Voluntary gender pay gap and menopause action plans (introduced in April 2026) potentially becoming mandatory under future equality legislation in 2027.
18. Enhanced dismissal protections for pregnant employees and new mothers.
19. Clarification of “reasonable steps” duties to prevent sexual harassment and stronger enforcement.
20. Framework for modern industrial relations.
21. Introduction of bereavement leave rights.
22. Abolition of exploitative zero hours contracts.
23. ‘Day One’ unfair dismissal rights.
24. Improved access to flexible working.

Consultations Scheduled for Autumn 2025

Further consultations are expected on:

a.  Trade union reforms: electronic balloting, access rights, Acas Code protections;

b.  Regulation of umbrella companies;

c.  Fire and rehire practices;

d.  Bereavement leave;

e.  Pregnant workers’ rights; and

f.   Zero hours contracts.

This will be followed by a final set of consultations in the Winter (going into early 2026).

What Employers Should Do Now

While many proposals remain subject to legislative approval and consultation, they signal a significant shift toward a more regulated and rights-based employment framework in Great Britain. We will consider this and how it compares to the proposed landscape in Northern Ireland at our Conference in September 2025.

On 27 June 2025, the Equality Commission for Northern Ireland (ECNI) published a Press Release important legal paper in response to the UK Supreme Court’s ruling in For Women Scotland, which confirmed that the term “sex” under the Equality Act 2010 refers to biological sex.

While the Equality Act 2010 does not apply in Northern Ireland, the Sex Discrimination (Northern Ireland) Order 1976 governs equality law here. However, Northern Ireland’s legal landscape is uniquely shaped by Article 2 of the Windsor Framework, which ensures no diminution of equality rights and requires legislation to be interpreted in line with European law. Notably, the UK Supreme Court’s judgment in For Women Scotland did not assess the implications of Article 2.

Key Points for Employers

The ECNI has acknowledged that the Supreme Court’s interpretation of “sex” could be highly persuasive in Northern Ireland’s courts and tribunals, even though it is not legally binding here. That said, the Commission identifies a number of unresolved legal questions and has committed to a cautious and transparent approach by seeking legal clarity before issuing final guidance.

ECNI’s Six-Step Roadmap

To help employers, service providers, and public bodies navigate this complex legal terrain, the ECNI has outlined 6 steps in what it describes as its Road Map. These steps are:

1. Publication of the Legal Paper The 66-page document titled “The meanings of ‘sex’, ‘men’, ‘women’ and ‘gender reassignment’ in equality and allied legislation in Northern Ireland” lays out key uncertainties and interim considerations. It includes interim guidance for employers, particularly regarding the provision of separate sex facilities (see Annex 2).
2. 12-Week Public Consultation Running from 27 June to 19 September 2025, this consultation gives stakeholders a chance to engage and respond to questions raised in the paper (see Section D, paragraph 3).
3. Pre-Action Protocol Engagement The ECNI will engage with relevant organisations and individuals and send organisations and persons with a direct interest in this a formal pre-action protocol to test legal positions before moving toward litigation (see Annex 5).
4. High Court Application Subject to responses received in Step 2 and 3 above, the ECNI plans to seek a declaratory judgment from the High Court to clarify the legal approach on key issues. This step aims to establish foundational principles to inform future guidance and they are cognisant that the Courts will not provide an answer to every legal question.
5. Draft Guidance Once legal clarity is achieved, the ECNI will publish draft guidance for further stakeholder consultation.
6. Final Guidance Following feedback, finalised guidance will be issued for employers, service providers, and public authorities.

What Employers Should Do Now

While awaiting final guidance, employers are encouraged to refer to the interim guidance set out in the ECNI’s paper, especially when reviewing policies on single-sex services, facilities, or employment decisions. We will be studying that Guidance and issuing a further update to Members.

ROI MEMBER NEWSLETTER AUTUMN 2023 PROTECTED…

WORK LIFE BALANCE AND MISCELLANEOUS PROVISIONS…

ROI MEMBER NEWSLETTER JUNE & JULY…

Redundancy 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:

1. The importance of a well drafted and comprehensive CCTV policy and employee privacy notice covering the use of CCTV footage for disciplinary purposes;

2. 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”;

3. 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.