Guidance Update Right to Work Scheme 

We have received an update from the Home Office who have asked us to communicate this message to stakeholders.

The Home Office has updated its Guidance for employers on the Right to Work Scheme to reflect changes brought about by case law in relation to the EU Settlement Scheme (EUSS) and following recent Home Office reforms to the EUSS.

The updated Guidance can be accessed here:

https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

Points of note in this updated guidance include:

• The requirement for employers to verify a digital Certificate of Application (CoA) with the Home Office Employer Checking Service (ECS) when conducting a right to work online check involving an outstanding EU Settlement Scheme application made on or after 1 July 2021 has been removed.

• The reference to Immigration Enforcement 28-day notices in respect of EEA citizens and their non-EEA family members which are no longer in use has been removed.

If you require any further information you contact Home Office:

RighttoRentandRighttoWork@homeoffice.gov.uk

CIPD GUIDE ON TRANSGENDER & NON BINARY INCLUSION AT WORK (30 October 2023)

This is a very helpful CIPD Guide on Transgender & Non Binary inclusion at Work is aimed at people professionals & line manager. It will assist those trying to understand how to support and manage transgender and non-binary inclusion and rights at work. The Guide has been punished as part of CIPD’s equity, diversity and inclusion policy.

The Guide recognises like other areas of EDI, Transgender and Non-binary Equality issues can be complex and sometimes lead to polarising views across a spectrum of beliefs which need to be balanced and managed.

It includes a section of key terminology which can often be misunderstood (e.g cisgender, gender critical and gender fluid).

Contents include:

• Setting the right foundations for EDI in the workplace

• Embedding Policy

• Considerations for transgender and non-binary EDI in the workplace

The Guide contains 4 Appendices:

Appendix A: List of employment tribunal and employment appeal tribunal cases

Appendix B: Inclusive language

Appendix C: What is bullying, harassment and victimisation?

Appendix D: Transitioning at work action plan prompts.

The Guide covers every stage of the employee life cycle, from recruitment through to progression. It sets out the legal considerations and the protected characteristic of gender reassignment and the importance of encouraging inclusive language in the workplace and ensuring privacy.  Appendix D provides practical guidance on how organisations can support employees through a transition and managing different views in the workplace, an issue that has seen increased litigation.

ROI MEMBER NEWSLETTER

AUTUMN 2023

1. PROTECTED DISCLOSURE (AMENDMENT) ACT 2022- IMMINENT STAGING DATE APPROACHING.

The Protected Disclosures (Amendment) Act 2022, came into operation on 1^st January 2023, substantially overhauling the 2014 Protected Disclosure Act. We previously updated Members on the provisions of the 2022 legislation.  See here

One of the key changes in the 2022 act was the requirement for employers to set up reporting channels and procedures for employees to make a protected disclosure.  This included the obligations to identify a designated person within the organisation to deal with protected disclosure, establish internal reporting channels to ensure the identity of the complaints remains confidential, as well as strict time periods for responding to complaints.

Under the Act, private sector and charity employers with 250 or more employees,  were in scope to implement these changes  from 1 January 2023. This was also the case for Employers in the areas of financial services, products and markets and prevention of money laundering and terrorist financing, transport safety, and protection of the environment.

There was a lead in period for many private sector and charity employers with between 50 and 249 employees to comply with the new rules. This lead in period ends on 16^th December 2023 and therefore employers with 50 or more employees will have to comply from 17^th December 2023 onwards.

If you employee 50 or more employees, you must ensure you are compliant with the legislation from this date. If you require any advice on understanding your obligations in respect of the 2022 Act, and in particular the reporting channels and procedures, please contact one of the legal team.

2. IRISH GOVERNMENT PUBLISHES AUTUMN LEGISLATIVE PROGRAMME

The Government Legislation Programme for the Autumn 2023 session has been published.

The full list of employment related bills set out below, with a number getting priority publication:

• Protection of Employees (Employers’ Insolvency) (Amendment) Bill
• Registration of Trade Unions Bill
• Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Bill
• Civil Service Regulation and Public Service Management (Amendment) Bill
• Employment Permits (Consolidation and Amendment) Bill 2022
• Automatic Enrolment Retirement Saving System Bill
• State Pensions Reform Bill
• Equality Acts Amendment Bill
• Amendment of the Constitution (Family) Bill
• Amendment of the Constitution (Care) Bill
• Employment (Restriction of Certain Mandatory Retirement Ages) Bill
• Financial Services and Pensions Ombudsman (Amendment) Bill

See below for ‘in focus’ update in relation to the implementation of auto enrolment in the Republic of Ireland .

We will keep Members updated on all draft employment related legislation as it makes its way through the Irish parliament.

To view the Government’s Autumn legislative programme , click here

3. WORK LIFE BALANCE AND MISCELLANEOUS PROVISIONS ACT 2023- UPDATE

We have been updating Members in relation to the various implementation dates for the rights enacted under the Work Life Balance and Miscellaneous Provisions Act 2033.

Under the legislation the right to 5 days paid domestic violence leave will be introduced by Regulations due in the Autumn.

In August 2023, the Government announced that when the right to Domestic Violence leave is introduced, it will be paid at the normal rate of pay.

Trade unions, employer groups and organisations supporting victims of domestic violence had been consulted in the process to determine the percentage of rate of pay.

Minister for Children, Equality, Disability, Integration and Youth Roderic O’Gorman also confirmed that employee would  have to notify their employer but would not have to provide any evidence. He added that this was a deliberate decision to make access to the paid leave as easy as possible.

We will provide a further update to members once the regulations are published.

4. IN FOCUS- THE INTRODUCTION OF AUTO ENROLMENT IN IRELAND

In 2022, it was announced that a pensions automatic-enrolment retirement savings system (Auto-Enrolment System) was to be introduced in Ireland.  At present, Employers in Ireland are legally obliged to provide their employees with access to at least one standard Personal Retirement Savings Account (PRSA) within six months of the commencement of employment if they do not provide an occupational pension scheme for their employees or if an employee cannot join such a scheme within six months of beginning employment.  There is no obligation however on the employer to make any contributions.

The design of the Auto-Enrolment System was announced last year, and details are set out in the Draft Heads and General Scheme of the Automatic Enrolment Retirement Savings Systems Bill 2022 (Draft Bill).

The proposed new system is intended to operate on an “opt out” rather than an “opt in” basis, to ensure that as many employees as possible participate in the system.

The Draft Bill outlines some of the following key features:

• Private sector employees aged between 23 years and 60 years old earning over €20,000 per annum (not already in a qualifying occupational pension scheme) will be automatically enrolled.
• Contribution rates will be levied as a percentage of an employee’s gross earnings.
• Employees will be required to make certain fixed minimum contributions starting at 1.5% of gross earnings initially (increasing to 3% in year 4, 4.5% in year 7 and 6% in year 10).
• Employers will be obliged to match employee contributions.
• The State will top up employee and employer contributions (State contributions to range from 0.5% to 2% on a phased basis).
• Contributions will be calculated on the earnings of an employee up to €80,000.
• Employees must remain in the scheme for six months and will be free to opt out at a later date.
• There will be a facility to suspend or pause contributions and to leave the scheme under certain conditions.
• Eligible employees who opt out or suspend contributions will be automatically re-enrolled at a later stage.
• There will be limited scope to access retirement funds before retirement.
• Employees who are actively contributing members of a qualifying scheme (i.e. one that meets prescribed minimum standards and contribution levels) will not be automatically enrolled.

The Bill has been marked for priority publication in the Government’s Autumn legislative  programme , with the most recent official update from  government that auto enrolment will be implemented in the second half of 2024.

Next Steps

Employers and those operating in the pensions sector eagerly await further details of the Auto-Enrolment System later this year.

Employers without any existing pension scheme or any plans to implement one will need to ensure that they are prepared for the system once it is introduced.

Employers should seek advice and review any existing pension scheme(s) to determine whether they are compatible with the auto enrolment requirements.

CASE LAW UPDATE

1. Karolina Leszczynska and Musgrave Operating Partners Ireland, ADJ-00044889.

 Complaint seeking adjudication by the Workplace Relations Commission under the Sick Leave Act 2022

 Facts

The complainant was employed by the Respondent since 2007 and had the benefit of an enhanced sick pay scheme, on the terms set out below:

• An employee with six months’ service is entitled to paid sick leave
• The first three days of absence are unpaid “waiting days” and paid sick leave commences on
• the fourth day of absence.
• Employees are entitled to eight weeks’ full pay in a rolling 12-month period (less any social welfare benefit).
• The daily rate of pay is based on the average of the employee’s weekly hours in the 13 weeks preceding the fourth day of absence, divided by five.
• To be entitled to sick pay, employees must submit medical certificates on a weekly basis.

The complaint was absent from work for 4 days in January 2023 and in line with the respondent’s policy above, the first 3 days were waiting days, and the fourth was paid based on the average days’ pay calculated within the last 13-week period.

The complainant asserted that she should have been paid for the first 3 days in accordance with the Sick Pay Act.

Decision

 The Adjudication Office (AO) confirmed that all sections of the Act must be read together which clearly outlined that where there was an enhanced sick pay scheme in operation in the employment, which was, on a whole more favourable, then that would substitute the requirement for statutory sick pay. Whilst there was a longer service requirement, and the inclusion of waiting days within the respondents enhanced scheme, the AO found that the Respondent’s sick pay scheme was, on the whole, more favourable than statutory sick leave, and as such the Sick Leave Act did not apply.

Learning Points for Employers

 This is the first decision to be handed down by the WRC in respect of the Sick Leave Act 2022, which came into effect from 1 January 2023 and is one that was eagerly awaiting by employers, particularly those who offer enhanced contractual sick pay schemes which, on a whole, confer more favourable terms that statutory sick pay.

2. CATHERINE KELLY V AN POST – ADJ-00040021

 Section 77 of the Employment Equality Act 1998- Sex discrimination/sexual harassment

Facts

The Complainant commenced employment with the Respondent as a postal operative on 3 April 2017. The Complainant alleged that she was inappropriately touched by a colleague on 22 February 2022 whereby he allegedly touched the inside of her thigh. The complainant subsequently told the colleague to leave her alone, and an argument ensured.  The complainant made a written complaint a few days later, which was investigated, albeit poorly,  by the employer.  The Respondent initially proposed to resolve the matter informally to which the complainant objected. The employer did not meet with the complainant as part of the investigation to obtain more details from her. The complainant continued to work alongside the alleged harasser, who publicly said she was telling lies about the allegations.

Nearly two months after her complaint was first raised, she was informed that the investigation was inconclusive.  The complainant appealed these findings and was spoken to by HR for the first time on 9 June 2022, despite having raised a serious complaint of sexual harassment.

The Respondent asserted that it had complied with its Dignity at Work Policy and had conducted a thorough investigation, having reviewed CCTV footage as well as speaking to relevant witnesses. The investigator found that there was insufficient evidence to uphold the complaint. The Respondent alleged the CCTV footage appeared to show the Complainant and the alleged harasser laughing and joking after the incident.

The Complainant pursued a complaint to the WRC that she had been sexually harassed and that the Respondent had failed to follow its Dignity at Work Policy (the manager to whom the complainant first reported the incident having responded ‘I don’t know what that is).

Decision

The Adjudication Officer found the Respondent did not adequately investigate or take seriously the Complainant’s complaint. The Respondent’s procedure fell “very short” of what is required by the WRC Code of Practice for the investigation of harassment or what is required to defend an allegation of discrimination under the Employment Equality Act. Having regard to the policies available for the Respondent, and its size and resources available to ensure compliance with those policies, the Adjudication Officer ordered the maximum compensation of two years’ salary to be paid to the Complainant, a sum of €53,560.

Learning Points for Employers

Employers must treat allegations of sexual harassment seriously and ensure that a thorough and detailed investigation takes place, particularly where allegations of physical sexual assault have been alleged.  Appropriate support must be afforded to complainants of sexual harassment as well as ensuring suitable measures are put in place in the workplace to protect complainants from acts of victimisation. Employers must be satisfied that managers are suitably trained on conducting workplace investigations, and understand their obligations under the various codes of practice.

3. Irene Glynn v Carlow Dental Centre ADJ 00043734

Unfair dismissal

Facts

The complainant  was employed by the Respondent from February 2015.

The complainant had been contacted by the respondent during a period of certified sickness absence, in relation to comments/posts she had made on her private Facebook page, outlining her views on immigration in Ireland and asked the complainant to remove the posts.

Those posts/comments included the following ‘Ireland is on its knees, Irish working people can’t afford heating or food yet refugees think it’s a free for all, stay fight for your country our grandparents fought against the English do the same’ and had been brought to the respondents attention by  a member of the public who consolidated the views to be ‘very extreme’

When the complainant returned to work just under a week later, the respondent sent her an email to confirm that she had been summarily dismissed for gross misconduct.

The Complainant brought a complaint of unfair dismissal following the termination of her employment for gross misconduct on the basis that at no stage during her 7 year employment had she been told not to post on social media.

Decision

The AO found the dismissal was both substantively and procedurally unfair and upheld the complainant’s complaint. The complainant should have been afforded the opportunity to respond to the allegations against her and provide representations regarding the alleged misconduct.

The AO held that summary dismissal was not within the “range of reasonable responses” for an employer to dismiss an employee for the act alleged, and that consideration of the complainant’s prior record was not taken into account. The Complainant was awarded the equivalent of four months’ wages, €8,552.31, in respect of the unfair dismissal and a further €2,012.31 (four weeks) in respect of a failure to provide the minimum notice of her dismissal.

Learning Points for Employers:

This decision is a reminder to employers  that fair process must be followed,  even when the employer believes the alleged misconduct is so serous to warrant dismissal without warning.

The case also highlights the importance of having a social media policy in place, and ensuring employees are clearly aware of the rules regarding posting online, particularly where their posts may be a considered to be a manifestation of an employee’s  religion or belief.

ROI MEMBER NEWSLETTER

JUNE & JULY 2023

1. The Pay Transparency Directive

On 6^th June 2023, the EU Pay Transparency Directive came into force, meaning that EU member states will have 3 years, until 7 June 2026, to transpose it’s the Directives provisions into their national laws.

The purpose of the Directive is to combat pay discrimination and help close the gender pay gap in the European Union.

Whilst the Directive introduces various measures to combat pay discrimination, the primary focus of the legislation is Gender Gap Reporting.

Under the new rules, EU Member companies will be required to share information on salaries and take information on salaries and act if their gender pay gap exceeds 5%.

The Directive also includes provisions on compensation for victims of pay discrimination and penalties, including fines, for employers who break the rules.

Members will be aware that in ROI, Gender Pay Gap reporting was introduced in May 2022 by the Gender Pay Gap Act 2021. ‘In scope’ employers, being those employers who employ more than 250 employees, completed their first reporting return in [insert] 2022.

The Employment Equality Act 1998 (section 20A) (Gender Pay Gap Information) Regulations 2022 set out the detail how a company’s gender pay gap calculations are to be presented.

The requirements of the Directive however will require the Irish Government to introduction additional measures by 2026 to demonstrate compliance. (See below)

The Pay Transparency Directive and Gender Pay Gap reporting: What will employers have to report?

The Directive will require member states to establish gender pay gap reporting regimes that will require employers to report:

• Mean and median pay gaps.
• Mean and median gaps calculated from “complementary and variable” components of pay (e.g. bonuses).
• The proportion of men and women receiving complementary or variable components of pay.
• The proportion of men and women within each quartile pay band.

The Directive will however also require the reporting of pay gaps by “categories of workers”, covering basic salary and complementary/variable pay.

“Categories” of workers are defined as “workers performing the same work or work of equal value”.

Defining workers in this way will undoubtedly be a complex task but it is clear that the intention of the Directive is to get a more reflective assessment of the pay gap between those completing same or similar roles, akin to the comparison in equal pay claims. It is hoped that guidance will be provided to member states to assist employers with this comparative process.

Employers will have to respond to requests for additional clarifications and information after publishing their gender pay gap and must do so within a reasonable time period.

Employers will be compelled to remedy any gender pay gap where the difference cannot be justified by objective and non-gender-based factors.

The Directive also requires the commission of a ‘joint pay assessment’ when:

• pay reporting reveals a gender pay gap of at least 5% in any category of workers and;
• where the employer cannot justify the gap based objective gender-neutral factors and;
• the unjustified difference has not been rectified within six months.

A joint pay assessment requires the employer to co-operate with worker representatives to analyse: the pay differences; the reasons behind them and; the effectiveness of measures to address the differences. The employer must also remedy the differences within a “reasonable” period of time.

Who will have to report?

• Employers with 250 or more workers must report their gender pay gaps every year;
• Employers with 150-249 workers will have to report every three years.

The threshold will be lowered to employers with 100-149 workers in 2030.

When does reporting begin?

The first reports will be published in 2027 and will relate to the 2026 calendar year.

Smaller employers (those with 100-150) will have to report gender pay gaps every three years beginning with reports published in 2031 relating to the 2030 calendar year.

The Pay Transparency Directive v The Gender Pay Gap Reporting Act (2021)

The Irish legislation, which came into effect in May 2022 already complies with the basic pay reporting requirements in the Directive and goes beyond these requirements in some respects.

Currently in Ireland, only employers with 250 or more employees have to publish gender pay gap reports – but by 2025, this threshold will drop to just 50 employees. The Irish Regulations will therefore comply with the Directive’s ultimate threshold of 100 employees before the latter takes effect.

In summary, in scope employers are required to publish:

1. The difference between the mean and median hourly pay of male and female employees;
2. The difference between the mean and median bonus pay of male and female employees;
3. The difference between the mean and median hourly pay of part-time and temporary male and female employees;
4. The percentage of male and female employees who received bonuses and benefits in kind; and
5. The percentage of male and female employees in each of four quartile pay bands.

One significant difference, which should go some way further towards identifying pay inequality, is that the Directive will require the publication of pay gaps by “categories of worker”. Currently, employers in Ireland must publish pay gaps calculated for its entire workforce, and then separate calculations for part time and temporary (fixed-term) employee groups. However, the rules do not require publication by job functions or grades of worker, rather than simply their employment status. As discussed above, the Directive will require reporting based on those carrying out the same work or work of equal value. This will be a more onerous task.

Whilst the Irish Regulations do require organisations, as part of their reporting obligations, to provide a written statement explaining the reasons for any pay gaps, and to set out measures (if any) being taken, or being proposed to be taken, to eliminate or reduce any differences in pay, the Directive goes further by imposing a positive obligation on employers to take action where such pay differences cannot be justified by objective and gender-neutral means.

Other provisions of the Pay Transparency Directive

The Directive contains other significant measures with the aim of helping eradicating pay disparity between men and women and achieving equal pay though the disclosure of information before and during employment.

Information for job applicants

Employers will have to disclose the initial pay level or range for the position in job advertisements or before conducting interviews. Employers will also be prohibited from asking job candidates about their pay history, including their existing salary.

Employees Right to request pay information / no ban on pay disclosures. 

Workers will have the right to request information from their employer on their individual pay level and on the average pay levels, broken down by gender, for categories of workers doing the same work or work of equal value. This right will exist for all workers, irrespective of the size of the company. This is directly aimed at one of the major obstacles to enforcing equal pay between men and women: the lack of knowledge about what others doing comparable jobs are paid.

Workers should not be prevented from disclosing their pay to others for the purpose of enforcing the principle of equal pay, and contractual terms to this effect must be prohibited.

Conclusion

The EU Pay Transparency Directive is a landmark piece of legislation which will undoubtedly transform the playing field in relation to pay equality for men and women across the EU.  Whilst Ireland can already demonstrate compliance with certain aspects of the Directive, there is still much work to be done to ensure compliance by 2026 and we anticipate it will be some time before we see draft domestic legislation in this area.

A copy of the Pay Transparency Directive is available here 

2. Update on Work Life Balance and Miscellaneous Provisions Act 2023

We have been updating members on an ongoing basis regarding the implementation of the Work Lift Balance Act as it made its way through the legislative process. Members will be aware from our previous newsletter that the Act was signed into law in April 2023 but that implementation dates were awaited in respect of the various new rights under the legislation.

With little prior notification, the government recently confirmed that from 3^rd July 2023 the right to leave for medical care purposes will be introduced.  The  leave, which is a day 1 right,  will entitled employees up to 5 days unpaid leave (in any period of 12 consecutive months) for medical care purposes to provide personal care or support to certain specified persons, including: a child, spouse/civil partner, cohabitant, parent or grandparent, brother or sister or a person who resides in the same household as the employee, where any of those persons is in need of significant care or support for a serious medical reason.

Maternity Protection Acts

Changes to the Maternity Protection Act 1994 will also come into effect on 3 July 2023. By way of reminder, these changes will see:

• an increase in the number of weeks from 26 to 104 weeks during which mothers are entitled to take paid time off work and have reduced working hours for breastfeeding purposes. This change will also lead to an extension of the period during which health and safety leave may need to be considered for a breastfeeding employee.
• Transgender men who have given birth can access maternity leave.

We await further details regarding commencement dates for the remaining changes under the Act. The introduction of flexible working will not take place until the Code of Practice on considering such requests has been produced by the WRC (see below).

3. WRC PUBLIC CONSULTATION ON A CODE OF PRACTICE ON THE ‘‘RIGHT TO REQUEST REMOTE WORKING’’

The Workplace Relations Commission’s consultation on a Code of Practice on the ‘Right to Request Remote Working’ closed on 9^th June 2023. We had previously invited Members to submit any suggestions or representations to us in respect of the draft Code of Practice so that they could be included in our submission.

Employers Federation submission, in summary, set out the following:

Remote working/flexible working

It is beneficial to both employers and employees that the same process for handling requests for both flexible working arrangements and remote working.

The process for handling request should be simple and straightforward so that both employees and employers understand their obligations in relation to the requests. An employer should consider the application within the time periods specified by the legislation.

Where the employer can agree to the employee’s request, this should be communicated to the employee confirming the start date/end date (if applicable) and any conditions in relation to the request.

Unless there is genuine uncertainty as to the specific nature of the employee’s request, employers should be compelled to meet with an employee in circumstances where (1) they can approve the request or (2) it is obvious that the request would give rise to any of the situations identified below and that no mitigations would overcome these concerns.

Relevant factors when considering whether to grant or reject a flexible working/remote working

The grounds for refusing a request for either flexible working (which may include an element of home working) and remote working should be the same/similar. (See below).

The grounds set out in section 13(E) should also be considered as reasonable grounds for refusing the original request, but should also include:

• the burden of additional costs.
• an inability to reorganise work amongst existing staff.
• an inability to recruit additional staff.
• a detrimental impact on quality.
• a detrimental impact on performance.
• a detrimental effect on ability to meet customer demand.
• insufficient work for the periods the employee proposes to work.
• a planned structural change to your business.
• detrimental impact on staff morale or engagement (remote working)

We do not believe such a right of appeal should be set out in any Code of Practice.

Remote working overseas

Employers are concerned, particularly given experiences during the pandemic, that remote working may give rise to an influx of employees working abroad or outside of the Republic of Ireland for prolonged periods of their employment.

This presents complex issues relating to taxation, data protection, immigration law and employment rights relating to the country the employee is working remotely from.

Employers need specific guidance on navigating these issues and how they are compatible with an employee’s ability to request remote working.

4. WORK PLACE RELATIONS COMMISSION DEVELOPMENTS

1: List of frequently cited authorities in WRC Jurisprudence

As part of the WRC’s mandate to provide information to the public and facilitate effective access to justice in relevant employment and equality matters, the WRC has prepared a list of the case authorities from other tribunals and courts which are most frequently cited before the WRC. The list was generated by a specially designed AI-based search of over 10,000 WRC decisions to establish the 150 most commonly cited decisions from other courts and tribunals. Whilst certain cases may not feature in the list, this may be because they were only cited a handful of times and the aim of this project was to reflect the most statistically significant cases to ensure greater access to information. This may change over time.

Please note that all of the WRC’s decisions are available on the WRC’s website database and is not included in the list.

https://www.workplacerelations.ie/wrc/en/complaints_disputes/adjudication/frequently-cited-authorities/list-of-frequently-cited-authorities-in-wrc-jurisprudence.html

2: Table of remedies which WRC Adjudication Officers have jurisdiction to provide.

The WRC has also produced a helpful summary of the remedies available to the adjudication officer when considering complaints. The table will need further update once the various rights under the Work Life Balance and Miscellaneous Provisions Act 2023 are commenced.

WRC Remedies Table – Workplace Relations Commission

3: WRC Employment and Equality Rights Information

Along with short animated video series translated into a number of popular service user languages, the WRC website contains a suite of rights information guides which are regularly updated – see here for further information including sample 5-day terms etc which reflect the Transparent and Predictable Working Conditions Regulations 2022 Terms of Employment – Workplace Relations Commission, and information on the new tips legislation Tips and Gratuities – Workplace Relations Commission.

The videos may be helpful to members who have not attended a hearing previously and may help to reduce any apprehension in advance of a hearing.

WRC Videos – Workplace Relations Commission

CASE LAW UPDATE

1. Darren Kiernan v Joseph Brennan Bakeries ADJ-00039331

Unfair Dismissal

Facts

The Complainant was employed by the Respondent as a General Operative for approximately 20 years until his dismissal for gross misconduct on 15^th December 2021.

The Complainant was dismissed after he was observed smoking in his work van rather than in the designated smoking hut. The Complainant’s van was parked in close proximity, some 20 yards away, from a diesel tank, 50 yards from boiler house and 75 yards from flour silos all considered to be highly flammable substances.

The Respondent became aware of the Complainant’s smoking after a routine check of the CCTV footage covering the premises.

The Respondent met with the Complainant to discuss the incident, during which time the Complainant was shown the CCTV footage. The Complainant admitted that he was smoking in his van. The Complainant was subsequently suspended from work on full pay. This meeting was not viewed as a formal investigation meeting and the complainant was accompanied by a fellow colleague rather than being offered trade union representation.

The Complainant subsequently attended formal investigatory meetings on 19^th and 23^rd July 2021 when he was represented by Ms. Duffy King, SIPTU official.  During the meetings the Complainant said he had permission from Mr. Trevor Glavin, who was in charge of the site, to smoke in his van.  The investigatory manager then met with Mr. Glavin who confirmed that on one occasion, a year earlier, he had given the Complainant permission to smoke in his van which, at the time, was right beside the designated smoking shed. The reason proffered by Mr Glavin for granting the Complainant permission on that occasion was due to concerns the Complainant had regarding Covid 19 and a vulnerable relative.

A disciplinary hearing took place on 5^th November 2021. In this hearing the Complainant stated that there was a second instance where Mr. Glavin had given him permission to smoke in his van. This was denied by Mr. Glavin. Following the hearing, the disciplinary manager decided to dismiss the Complainant due to the severity of the incident, namely the fact that there was a diesel tank approximately 20 yards from where the Complainant was observed smoking. The disciplinary manager concluded that the Complainant had not been granted permission on more than one occasion.

On appeal, Mr Yarr, Operations Director, determined that dismissal had been a proportionate sanction having regard to an independent risk assessment which confirmed that there was a serious risk of fire, explosion or death if there was an ignition source at the wrong place.

The disciplinary manager gave evidence at the WRC hearing.  He was also cross-examined on why he preferred Mr. Glavin’s evidence over the Complainant’s. He stated he found it was consistent whereas the Complainant’s story changed throughout the process. He considered the sanction of dismissal appropriate in all the circumstances.

At the WRC hearing the Complainant accepted that he had been smoking in his van, which was a breach of the rules, notwithstanding he had permission on a previous occasion. The Complainant alleged that dismissal was a wholly disproportionate response, having regard to his length of service and also the lack of governance or advice on how to handle smoking in the workplace during the pandemic.

The Respondent disagreed and highlighted its responsibility to abide by the health and safety regulations relating to the processing of flour and other combustible materials. The Respondent referred to the decision in Employee v Employer UD679/2009 where the workplace in question had a number of flammable materials and maintaining a strictly enforced designated smoking area was a term of the employer’s insurance.

Decision

The Adjudication Officer (AO), Mr David Murphy, found that the Complainant had been unfairly dismissed by the Respondent.

Whilst the AO stated that dismissal may have been reasonable response, having regard to the principles endorsed in the case of Bank of Ireland v Reilly, taking into account the combustible materials close by and the respondent’s approach to similar breaches in the past. However, rather strangely the AO found that the Respondent did not follow fair procedures on the basis that the Complainant was not given notice of what the meeting on 14^th July 2021 was about and that he was only offered to bring a colleague rather than a representative.

Despite the fact that the meeting on 14^th July 2021 was not a disciplinary hearing, the AO found that the Complainant should have been informed in advance of that there was a risk that he could have been dismissed when the CCTV footage. The AO held that the rules of natural justice required him to have the right to be represented at that hearing and to be made aware of the potential consequences. Unfortunately, the decision provided no explanation as how the showing of this footage resulted in the meeting no longer being considered an investigatory meeting but rather a disciplinary hearing, which attaches a right to fair procedures.

Furthermore, the AO found that the investigation should not have been completed by Mr Whelan after it came to light that Mr Glavin (Mr Whelan’s superior) had previously given the Complainant permission to smoke in his van. The AO stated that as Mr Whelan reported to Mr Glavin, he was unlikely to make a finding against him and that he had previously permitted a serious derogation from company policy.

The Complainant was awarded €15,000, which included a 50% reduction due to the complainant’s contributory fault as well as his failure to mitigate against his loss.

Takeaway for Employers

Whilst this decision is a helpful reminder of when dismissal can fall within the band of reasonableness/reasonable responses, it is stark reminder to employers that internal procedures will be scrutinised  at all stages of the internal process, not just the disciplinary hearing and that the the right to representation and fair procedures apply at any stage if there is the process could potentially result in dismissal.

2. A support worker v Education Service ADJ-00034525

 Disability discrimination – less favourable treatment relating to the Respondent’s sick pay scheme, failure to make reasonable accommodations arising out of a workplace relocation.

Facts

 The Complainant was employed as an education support worker with the education service based in the Blessington branch.

The complainant has a number of medical conditions, including Addison’s disease. As a result of her Addison’s disease the complainant needed to be close to a hospital as an Addisonian crisis can create a life-threatening risk.

In and around February 2020 the Respondent announced that it was to close its Blessington branch. The Complainant was given 3 options for relocation namely: Naas, Carlow and Tallaght. The Complainant was invited, on several occasions, to confirm her preference for relocation. In November 2021, some 9 months into the process, the Complainant finally stated that her preference to be Naas.

Unfortunately given the Complainant’s delay in making a decision, her preferred choice was no longer available, and she was informed that she was to re-locate to Carlow.

In an email to HR on 16^th February 2021 the Complainant stated:

‘Dear,

Would you please inform me on what basis the decision was made to move me to the Carlow office when this is not the option I chose as it did not suit either my personal or professional situation. As you know, I live in Wicklow and my case load is in Wicklow and your decision to move me to another county will place unreasonable pressure on me’

There was no specific reference to the Complainant’s medical conditions or her need to be located close to a hospital in that email, or any other email to the Respondent, regarding the relocation.

The Complainant subsequently resigned from her employment, embarking on a period of early retirement.

The Complainant alleged that the Respondent had failed to make reasonable accommodations by failing to properly engage with her regarding the workplace relocation, having regard to her specific needs arising from her conditions.

The Complainant also alleged that she was treated less favourably in respect of the Respondent’s sick pay scheme as compared to non-disabled employees or those with a disability different to hers.

The Respondent denied both allegations stating that the complaint was correctly paid, full pay, during any periods of absence and that the decision to relocate the Complainant to the Carlow branch was because of the Complainant’s failure to indicate her preferred new work location after a lengthy 9-month process. The Respondent also stated that at no stage during the internal process (lasting 16 months in total) did the Complainant inform them that she required to be near to a hospital as a result of disability. The Respondent reiterated that the only time when the Complainant outlined her preference was in November 2020, despite being repeatedly asked, at which point she stated that she wished to move Naas. However, she also said she was agreeable to move to Carlow under strict conditions.  The Respondent confirmed that at no point was it informed that the Complainant wanted to be reasonably accommodated because of her disability or that this impacted on the new work location decision making process.

An issue also arose during the hearing as to whether this aspect of the Complainant’s complaint was pleaded. Following an adjournment by the AO, and submissions by the Respondent, the AO determined, taking into account the relevant legislation, that it was.

Decision

 The AO found that the Respondent had failed to satisfy its obligations in respect of reasonable accommodations for the Complainant by failing to consult her about her personal circumstances. As such, this aspect of her complaint was upheld, and she was awarded €35,000.

The AO stated that the Employer knew that the Complainant had a disability given the facts of the case, such as lengthy email discussion regarding critical illness cover. This it found should have ‘beckoned the employer to look and enquire further’ to understand the circumstances regarding her unwillingness to move to certain sites. This was despite not having previously said that the reason for not wanting to go to Carlow was because she needed to be near to a hospital. The AO stated that this did not necessarily mean that the Carlow Office was unsuitable, however what it did require the Respondent to assess where the Complainant could have been reasonably accommodated so she could have accessed, participated and advanced in her employment.

 The AO did not find any evidence that the Complainant had been treated less favourably than non-disabled persons in respect if the operation of the sick pay policy. The AO was satisfied that the Complainant was paid in accordance with the scheme and that any delay in making payments was short in duration and could be explained.

 Learning for Employers

This decision, viewed by many as harsh, as it places a very high burden on the employer to effectively probe further and make enquiries where it is on notice that the employee has a disability and has ‘alluded’, even in very general terms, to that disability.

Where the employer is on notice that the employee has an underlying medical condition which amounts to, or could amount to, a disability then the employer must ensure that it makes enquiries to fully understand the impact where the employee has indicated that they may be adversely affected by any decision. In these circumstances the employer’s obligation to make reasonable accommodations is engaged.

Given the level of compensation in this case, an appeal to the Labour Court would not be unexpected.

WORK LIFE BALANCE AND MISCELLANEOUS PROVISIONS ACT 2023

Further to our ongoing updates regarding the legislative journey of the Work Life Balance and Miscellaneous Provisions Bill 2022, we can confirm that the Bill has been signed into law by President Michael D Higgins on with commencement orders expected imminently for when the Act will come into force. It is widely anticipated that the provisions being introduced by the Act will be introduced on a staggered basis, particularly given that some of the changes will require separate regulations to cover the applicable rate of pay for the leave.
As a useful reminder, we have summarised the measures being introduced by the Act.

1. Introduction of the right to apply for flexible working for caring purposes.

2. Right to request Remote working.

3. Domestic violence leave.

4. Leave for medical care purposes.

5. Extension of breastfeeding facilitation period.

Introduction of the right to apply for flexible working for caring purposes.

In accordance with the requirements of the Work Life Balance Directive, which must be implemented by Member States, the legislation granted parents and those with caring responsibilities the right to make a request for flexible working.

To be eligible to apply, the employee must be a parent of a child under the age of 12 (or 16 if disabled) or with caring responsibilities for a specified person, as defined by the Act. The request for flexible working must be for the purpose of providing significant care or support.

Employee making the request must have at least 6 months service at the date the request would take effect, but not at the tm the request was made.

There is no right for the request to be approved.

ROI MEMBER NEWSLETTER

APRIL & MAY 2023

Right to request Remote Working

The right to request remote working was an expected addition to the Work Life Balance and Miscellaneous Provisions Bill as it made its way through the Oireachtas, following the Remote Working Bill effectively being the Right to Request Remote Working was effectively shelved as it began the legislative process.

The new right will allow all employees who have 6 months continuous service before a request for remote working can be made. The employer should consider the request, having regard to the WRC Code of Practice (see below) when responding to a request which should include taking into account the needs of both the employer and employee. As with the right to request flexible working, there is no right for any such request to be granted.

Given the fact that many employers have continued to offer a remote/hybrid working model post pandemic, the impact of the statutory right to request remote working remains to be seen.

Domestic Violence Leave

Following in the steps of its closest neighbour Northern Ireland, who introduced Domestic Abuse Leave in 2022 (commencement date awaited), the Act will grant employees the right to take up to a maximum of 5 days in a consecutive 12-month period.

The purpose of the leave will be to enable the employee to seek medical attention, assistance of professional services, counselling or legal assistance.

The time off will be paid at a prescribed daily rate, such rate to be confirmed in subsequent regulations set by the Minister.

Leave for medical care purposes.

The Act, when fully implemented, will give employees the right to 5 days, unpaid, eave in any period of 12 consecutive months for time off for ‘medical care’ for the response of providing personal care or support to a specified list of persons, referred to below, who is in need of significant care or support for serious medical reason.

• a person of whom the employee is the relevant parent;

• the spouse or civil partner of the employee;

• the cohabitant of the employee;

• a parent or grandparent of the employee;

• a brother or sister of the employee;

• a person, other than one specified who resides in the same household as the employee.

Extension of breastfeeding facilitation period

The Act Bill has amended the Maternity Protection Act 1994 to extend the period during which an employee must be facilitated with breaks for the purposes of breastfeeding.
Currently an employee is entitled to reduce her working hours, without reduction in pay, or receive paid time off for the purposes of breastfeeding for up to 26 weeks following the birth of a baby, the Act will extend this right to up to 104 weeks following the birth of a child.

WRC PUBLIC CONSULTATION ON A CODE OF PRACTICE ON THE ‘‘RIGHT TO REQUEST REMOTE WORKING’’

The Workplace Relations Commission (WRC) has been directed under Section 20(2) of the Workplace Relations Act, 2015, to prepare a Code of Practice on the ‘Right to Request Remote Working’ as required under Part 4 of the Work Life Balance and Miscellaneous Provisions Act 2023 as referred to above.

The WRC is undertaking a public consultation with a view to drafting a Code of Practice the ‘’Right to Request Remote Working’’. The Code will, hopefully, set out practical guidance for employers and employees as to the steps that may be taken for complying with the requirements of the Act in relation to applications for flexible or remote working.

The WRC invites submissions on the contents of the draft code to be submitted to the WRC by 5pm on 9 June 2023. There is no further information provided by the WRC in relation to the structure, form or content of any feedback or submission.

Any member wishing to feed into this consultation should send their comments to kathryn@employersfederation.org by 5pm on Monday 5th June 2023 The association will then respond in full, including all members feedback, to the consultation process

NEW CONSTRUCTION INDUSTRY SECTORAL ORDER

On 28 April 2023 the Department of Enterprise Trade and Employment approved and published a SI Sectoral Employment Order (Construction Sector) 2023 (the Order).
The Order, which amends the Sectoral Employment Order (Construction Sector) 2021, which came into affect on 18 September 2023, with further to take effect in August 2024 and will apply to those who work in the construction sector to include craft persons, construction persons and apprentices.

A breakdown of the new increased rates are detailed below.

With effect from 18 September 2023- 4th August 2024

Minimum hourly rate of pay

• Craftsperson €21.49 per hour
• Category A Worker €20.86 per hour
• Category B Worker €19.35 per hour
• Apprentice

o Year 1 – 33.33% of Craft Rate
o Year 2 – 50% of Craft Rate
o Year 3 – 75% of Craft Rate
o Year 4 – 90% of Craft Rate

Minimum Pension Contribution Pension Contribution from 18th September 2023 Employer daily rate – €5.96 (weekly – €29.78) Employee daily rate – €3.97 (weekly €19.87) Total contribution daily into the scheme per worker – €9.93 (weekly €49.65)

Pension Contributions

• Employer daily rate – €5.96 (weekly – €29.78)
• Employee daily rate – €3.97 (weekly €19.87)
• Total contribution daily into the scheme per worker – €9.93 (weekly €49.65

With effect from 5 August 2024.

Minimum hourly rate of pay

• Craftsperson €22.24 per hour
• Category A Worker €21.59 per hour
• Category B Worker €20.03 per hour
• Apprentice

o Year 1 – 33.33% of Craft Rate
o Year 2 – 50% of Craft Rate
o Year 3 – 75% of Craft Rate
o Year 4 – 90% of Craft Rate

Pension Contribution

• Employer daily rate – €6.17 (weekly – €30.82)
• Employee daily rate – €4.11 (weekly €20.57)
• Total contribution daily into the scheme per worker – €10.28 (weekly €51.39

A copy of the order is available here.

CASE LAW UPDATE

1. KIERAN GLYNN -v- RAY WHELAN LIMITED

Unfair Dismissal & Disability Discrimination Contrary To Employment Equality Act

Facts

Mr Glynn was employed by the Respondent as a Bin Man from 1998 until September 2020 after which point he alleged that his employment had been terminated by his employer. The Respondent denied that it had terminated Mr Glynn’s employment but rather that he refused to return to work after being requested to attend a disciplinary hearing to consider his non-attendance at an OH appointment.

Mr Glynn suffered from obesity, asthma, diabetes, and gout and had a long history of attendance and performance issues associated with his conditions.

In February 2019, Mr Glynn was absent from work for a period of one week because of gout. When he indicated his intention to return to work, the Respondent had concerns about his fitness to carry out his duties. Mr Glynn then provided the Respondent with a number of reports from his own GP which indicated that he was fit for work. However, the Respondent obtained its own OH report which stated he would only be fit when his respiratory issues settled down. Mr Glynn remained out on sickness absence.

Mr Glynn and the Respondent entered a 7-month dispute, which included numerous correspondence (which included correspondence from Mr Glynn’s solicitor) regarding his fitness for work. Mr Glynn alleged that during a conversation his Manager allegedly offered £10,000 to leave; the Respondent disputed that any offer had been made.

Mr Glynn returned to work in September 2019 when OH confirmed he was fit for work. Initially, Mr Glynn carried out more menial tasks but following a written objection (sent via his solicitor) he returned to his normal duties.

In May 2020, the Respondent received complaints from employees regarding Mr Glynn’s ability to safely carry out his duties which included he was breathless when carrying out tasks and had fallen asleep in the lorry. This resulted in Mr Glynn being suspended from work on full pay pending the Respondent obtaining an up-to-date medical assessment, which Mr Glynn refused to co-operative with.

Months passed whereby Mr Glynn was invited to OH assessments without success and also to disciplinary hearings to consider his repeated failure to attend medical appointments. Mr Glynn was given multiple opportunities to co-operate with the process but refused. Mr Glynn refused to attend the last disciplinary hearing scheduled for 14th September 2020 and correspondence from his solicitor (dated 16th September 2020) maintained the position that Mr Glynn had been dismissed, despite no decisions being made by the Respondent.

Mr Glynn brought claims of unfair dismissal, harassment, victimisation and failure to make reasonable accommodations. Mr Glynn alleged that the Respondent had engaged in a campaign to get rid of him, which commenced in 2019 and which was evident by the Respondent offering to pay him £10,000 to leave.

The Respondent denied that Mr Glynn had been dismissed but rather maintained the position that Mr Glynn had abandoned his employment and had, in effect, resigned from his role.

Decision

The AO found that Mr Glynn had not been dismissed by the Respondent. At all times the Respondent had reiterated its position that Mr Glynn’s role remained and encouraged him to attend OH assessments so that medical advice could be obtained regarding his fitness for work.

The AO went on to consider the action by the Respondent, having regard to the requirement of Mr Glynn to attend OH and arranging disciplinary hearing for his failure to do so, was not unreasonable in the circumstances and did not amount to a fundamental breakdown in trust and confidence entitling Complainant to resign.
The AO did not uphold Mr Glynn’s complaints of harassment, victimisation or failure to make reasonable accommodations.

Learnings for Employers

This case is reassuring for employers who have concerns regarding an employee’s fitness for work and require independent medical evidence to verify that if the employee is capable of carrying out their normal duties.

If there are serious concerns regarding an employee’s ability to safely carrying out his tasks, then it may be reasonable to suspend them until clarification can be obtained.

If an employee refuses to cooperate with the requirement to attend a medical appointment, without good reason, the employer can require them to attend a disciplinary hearing and may take action against the employee for failure to cooperate and/or decision on capacity based on the information it has in its possession.

2. BUTTIMER -v- OAK FUEL SUPERMARKET LIMITED TRADING AS COSTCUTTER RATHCORMAC [2023] IEHC 126,

Interlocutory Injunctive Relief for probationary dismissal

Facts

Ms Buttimer was employed by Oak Fuel Supermarket Limited as a Store Manager in the fuel station of the respondents business.

She was employed under a 6-month probationary period during which time her suitability for continued employment would be assessed. During her probationary period, she could be dismissed without cause on one week’s notice.

Within two weeks of her starting employment, allegations were made against her by a co-worker.

The Respondent commenced an investigation in accordance with its bullying and harassment policies and Ms Buttimer was informed that the disciplinary procedure may apply if the allegations were substantiated. While the investigation was ongoing the employee signed a new contract of employment which stated that the standard disciplinary procedures did not apply during the probationary period.

Further complaints were made against Ms Buttimer a few weeks later, shortly thereafter the Respondent terminated her employment.

Following her dismissal, Ms Buttimer issued proceedings in the High Court seeking a series of interlocutory orders restraining her former employers from;

1. treating her as other than employed or continuing to be employer by them;

2. appointing another person in her position;

3. terminating her contract of employment other than in accordance with her legal entitlement;

4. communicating to any other party that she is no longer employed by them; and

5. requiring her employer to pay her salary.

Ms Buttimer alleged that she was dismissed because of the allegations made against her and the alleged misconduct. She argued that she was not afforded fair procedures, as required by the Code of Practice and in accordance with her constitutional rights and as such was wrongfully dismissed.

The employer denied that the employee had been dismissed because of misconduct but instead argued that the dismissal was on grounds of her poor performance, and as such fair procedures did not have to be complied with.

Decision

The High Court granted two interlocutory orders restraining the employer from:

1. Appointing another person to fill a role left vacant following a disputed dismissal, and

2. Publishing or communicating to any party that the employee was no longer employed, pending the outcome of the full trial.

The Court determined that “the mere fact that [certain conduct] might also be considered as a performance issue does not preclude it from being misconduct”. The Court must consider the real and substantive of the reason for the dismissal. The right to fair procedures does not only arise where the termination is for stated misconduct, nor can it be contracted out of. While in this case the employee’s second contract disapplied the company’s standard disciplinary procedure during the probationary period, the employer could not contract out of the common law and constitutional principles of fair procedures. Applying the above reasoning the Court found the employee had established a strong case that was likely to succeed at trial.

The Court then moved to consider whether, on the balance of convenience, the employee should be granted the relief’s sought. It held the primary focus when deciding to grant an injunction “has to be to minimise the risk of injustice”. In making this assessment the Court considered:

1. The strong case that damages would be an adequate relief in this case, as the direct financial loss would be readily calculable (this would be the amount the employee would have been paid had she not been wrongfully let go and arguably, limited to one week’s notice);

2. The significant damage to the employee’s reputation as a result of the termination and the questionable value granting an interlocutory injunction would have in mitigating that damage;

3. The fairness of obliging the employer to pay the employee’s salary until the trial of action; and

4. The objective breakdown in the relationship of trust and confidence between the employee and employer.

Learnings for Employers

Injunctive relief is more readily sought in the Republic of Ireland, particularly by employees. Injunctions can either compel an employer to do a certain act or to refrain from doing something. The High Court must carry out the ‘balance of reasonableness’ test when considering injunctive applications as granting an injunction has significant restrictions on an individual’s rights.

It is often hard to distinguish between conduct and performance issues and often both issues can be intertwined. It is therefore recommended, particularly given the practice of
employees more readily applying for (and being granted) injunctions in the Republic for Ireland, to follow a fair procedure in all cases of probationary termination.

We previously wrote to members regarding an ICO consultation in relation to Employment Practices and Data Protection. That consultation closed on 26 January 2023 and, following the responses received,  the ICO has made the decision not to replace the Employment Practices Code but rather publish topic specific guidance on employment practices and data protection. The first of these Guides have now been published which are:

1. Guidance on Information about workers’ health
2. Guidance on Monitoring in the Workplace

 Further details about these Guides and links are set out below.

 Guidance on Information about workers’ health

One of the first of these Guides was published on 31 August 2023, namely the Guidance on Information about workers’ health  The purpose of the Guidance is to assist employers handle health information of workers in compliance with the GDPR Principles.

The Guidance is divided into 2 main parts:

1. Overview of how data protection law applies to the processing of workers’ health information which is special category data and so stricter requirements apply.

2. How these data protection principles apply to common types of employment practices that process workers’ health information.

In the Guidance, the ICO have adopted a must, should and could approach,  which it explains is to help employers  understand which parts  of the guidance are the must that are (1) mandatory, (2) recommendations and (3) good practice. This approach is adopted in all their Guides.

The Guidance provides a number of a number of practical scenarios pertaining to the management of employees’ health information whilst at work, such as:

• How do we handle sickness and injury records?
• What if we use occupational health schemes?
• What if we use medical examinations and drugs and alcohol testing?
• What if we use genetic testing?
• What if we carry out health monitoring?
• When can we share workers’ health information?

At the end there is also a set of checklists included to give employers an overview and quick guide to help run through their data protection considerations whenever they need to process workers’ health information.

• Checklist: Data protection and workers’ health information
• Checklist: Sickness and injury records
• Checklist: Occupational health schemes
• Checklist: Medical examinations and drugs and alcohol testing
• Checklist: Genetic testing
• Checklist: Health monitoring
• Checklist: Sharing workers’ health information 

Guidance on Monitoring in the Workplace

On 3 October 2023, ICO published its Guidance ICO Guidance on Monitoring In Workplace

The guide recognises that increase in remote working has increased checks on workers and again the purpose of guidance to help employers comply with law if wish to monitor workers.

Like the Health Data Guidance it follows the must, should, could approach

It states monitoring can include tracking calls; messages; keystrokes; taking screenshots; webcam footage and audio recordings; using specialist software to track activity.

If monitor workers, businesses then they must:

1. Making workers aware of nature, extent & reasons for monitoring.
2. Have clearly defined purpose & using it in least intrusive way .
3. Have a lawful basis for processing workers data.
4. Tell workers about monitoring in way that is easily understood.
5. Only keep info which is relevant to purpose.
6. Do a Data Protection Impact Assessment for any data that is high risk to workers’ rights.
7. Make data collected through monitoring available in Subject Access Request.

The Guidance gives overview of data protection law and considers specific monitoring practices e.g. use of biometric data to monitor timekeeping and attendance.

The contents includes (not limited to):

• What do we mean by monitoring workers?
• How long should we keep information obtained from monitoring workers?
• What must we tell workers about our monitoring?
  Can we use covert monitoring?
• Can workers object to being monitored?
• What do we need to consider if we use a third party provider or an application provided by a third party to carry out monitoring?
• What do we need to consider if we transfer personal information of workers OUTSIDE UK?

At the end there are Checklists that business can use to assess compliance with the Guidance.

On 6 October 2023, Government issued Guidance for Employers and Line Managers on Fit Notes

This is part of the Government’s drive to keep people in work against a background of highest sickness absent rates in 10 years.

The current Consultation in Occupational Health (with same aim) closes on 12 October.

The Guidance contains no real surprises but answers some frequently asked questions such as:

• Does my employee need a fit note saying they are fit for work?
• Can other forms of medical evidence be accepted as proof of sickness absence?
• What should I do if I do not understand the advice on the fit note?
• What should I do if I offer support to an employee, and they refuse?
• How does the fit note affect sick pay?
• Can I challenge a fit note?

The Guidance has 2 Annexes:

– Annex A – Fit note: Checklist for employers

– Annex B – Fit note: Explaining the form for employers and line managers

The Guidance is helpful Guidance but from a HR perspective it will on contains nothing surprising!) but could help Line Managers understand position and the rules around Fit Notes

WORKERS (PREDICTABLE TERMS AND CONDITIONS) ACT 2023 (PREDICTABLE TERMS ACT) 

In Great Britain, the Workers (Predictable Terms and Conditions) Act 2023 (Predictable Terms Act) passed into law on 18 September 2023.

When in force, this Act will provide workers & agency workers (wider category than, but includes, employees) on atypical contracts the right to request a more predictable work pattern.

The process will be based on the current flexible working regime which many will be familiar.

The right will provide for:

• Two applications in 12-month period;

• Applications can be rejected on statutory grounds again based on flexible working grounds;

• Fixed term contracts of 12 months will have a right as these are presumed to lack predictability.

• Right based having worked set period before they can make their application, which is expected to be 26 weeks.

NB: Given the proposals aim to support those with unpredictable contracts, workers will not have had to have worked continuously during that period.

Legal claims will be able to be pursued on grounds of:

• procedural failings
• unlawful detriment and
• automatic unfair dismissal

It is expected that the Act and secondary legislation will come into force in approximately September 2024, to give employers time to prepare for the changes.

ACAS is producing a new Code of Practice that they will provide clear guidance on making and handling requests.

The aim of the Code is help workers and businesses understand the law and have constructive discussions around working arrangements that suit them both.

A draft Code will be available for public consultation in the coming weeks. The Government Press Release can be viewed here.

This right will only apply in GB.  Those operating in ROI may know of the EU Directive on Transparent and Predictable Working Conditions  which contains similar requirements.  And with the General Election and if that results in Labour. This may impact in this new right.

Employment law is devolved in Northern Ireland and with no Stormont that current means no new employment law.

Event Brochure 2023

Our event brochure for the second half of 2023 can be Download Here

Our programme covers a variety of key employment topics with courses designed for HR professionals and also managers who deal with employment relations issues.

Early booking is recommended to secure a place.

PERSONAL DATA BREACHES, PSNI & EMPLOYER’S LEGAL RESPONSIBILITIES

The PSNI personal date breach of 8 August 2023 was rightly reported as headline news. The personal data discloses included the names of all serving polices officers and staff that were reportedly published online and available to the public for a 2 ½ hour period between 14.30 -17.00 hour on that date.

It is reported that the breach occurred as part of a response to a Freedom of Information request and from all accounts appears to have been a human error.

This is a huge a security issue for any business but of grave concern for the PSNI, in which there is a potential risk to life as a result of the breach.

There will be many questions to be answered by the PSNI as to how the breach occurred and what systems it had in place to prevent such breaches and deal with them when they occur. The PSNI has already stated that some improvements have been identified to prevent a similar breach occurring again. It is a timely reminder to all business to check their policies and procedures that apply in circumstances of a personal data breaches and audit their processes /systems again to minimise the risk of human error cauing a breach.

How employers respond if and when a personal data breach occurs? The action taken should include the following:

1. For the PSNI this breach is one that must be reported to the ICO within 72 hours as it is “likely to present a risk to the rights and freedoms of individuals.”

   An internal record should also be made of the breach.

   The ICO Guide (see below) provides details about when a report should be made and what information should be included in any report.

2. PSNI should also be contacting all persons named without undue delay, which the news is reporting they have done. The communication should include guidance on what the person can do to protect their personal data.

3. We know that the information has been removed and again in similar circumstances employers should take steps to ensure the information i deleted, if possible. We have seen PSNI publicly announcing the breach and asking persons to delete the information if they have it and that they are continuing their investigation into how wide the breach was.

4. Organisations need also consider notifying other parties affected such as customers.

5. PSNI would be expected to have a process and/or policy setting what they should do in the event of a personal data breach. Indeed, it is a good time for Organisation to examine their investigation and internal reporting procedures that they have in place for when breaches occur. see ICO ‘Preparing for a personal data breach”.

6. Importantly, the ICO will also want to examine the processes and protections the Organisations had in place to prevent the breach in first place.

In this scenario, in time you might expect the ICO to use its powers to issue a penalty notice, enforcement notice, information notice etc.

The ICO Personal Data Breaches Guide explains employer’s responsibilities if they find themselves in similar circumstances. The Guide covers:

• What is a personal data breach?
• Risk-assessing data breaches
• When do we need to tell individuals about a breach?
• What information must we provide to individuals when telling them about a breach?
• What breaches do we need to notify the ICO about?
• What role do processors have?
• How much time do we have to report a breach?
• What information must a breach notification to the ICO contain?
• What if we don’t have all the required information available yet?
• How do we notify a breach to the ICO?
• Does the UK GDPR require us to take any other steps in response to a breach?
• What else should we take into account?
• What happens if we fail to notify the ICO of all notifiable breaches?

The Guide is very user friendly; any Company will any concerns or queries should contact the Legal Team.