Without doubt appearing as a witness in a tribunal case is very daunting and nerve wrecking for most. Nothing compares to the real thing. But there are steps you can take to bolster your confidence and provide yourself with the best opportunity to give your best evidence.

So here is 10 Golden Rules for giving evidence:

1. Be honest. This should be an obvious one but, on occasion, witnesses can try to overthink the question and try to predict where it is leading to, rather than answer it in a straightforward way. If you are not honest, chances are you will be tripped up later with inconsistencies in what you say.
2. Prepare, prepare and prepare. There is an ocean of difference between a witness who has reviewed all documents and has prepared, to one that comes along thinking this won’t be too difficult.
3. Listen to the question being asked and answer it. Not the question for which you have prepared the answer or the one you would like to be asked.
4. Treat time as your friend, not your enemy. Take your time to think about the question you have been asked, pause and then answer it. Time doesn’t travel as fast as you think it does.
5. Once you’ve have answered the question, STOP. Don’t be tempted to continue to fill in the gaps between the end of your answer and the next question (dare I say waffle?). This is where most witnesses open themselves up to further cross examination.
6. Follow the pen. No this is not a metaphor. Literally pace your answer to the speed of the Judge’s pen. As archaic as it sounds, the Judge makes a handwritten note of the question asked and your answer. They will become extremely irritated at you if, after one or two gentle reminders, you don’t take heed and follow the pen.
7. Remain calm. At no stage should you argue with the person cross examining you. Never, ever ask them a question such as ‘well, what would you have done?’ You will lose the respect of the panel plus scored a home goal, so to speak. You are there to answer the questions not ask them (unless you genuinely don’t understand what they are asking, then of course do ask). And remember you are trying to persuade a panel of 3, not win an argument with the cross examiner.
8. Do not avoid the difficult questions. Sometimes you’ve got to accept where matters could have been handled better or other valid criticisms. Your preparation (see 2 above) will have helped you work through these areas. It does not necessarily mean you’ve lost your case but you will come across as a more credible and reasonable witness.
9. Listen carefully to any questions the Employment Judge or panel ask. These are the areas they maybe struggling with or in some instances where they may not have fully understood the case.
10. Finally, if your representative asks you a question in re-examination chances are your representative thinks you’ve got something wrong and they are asking you to rethink your answer.

These rules are very much based on our organisation’s experience of appearing for, and presenting Tribunal cases. Nothing is like the real life so good luck and don’t be too hard on yourself!

New GB Consultations and comparison with the position and/or proposals in Northern Ireland

On 23 October 2025, the GB government launched four consultations on how to give effect to new rights and duties that will form part of the GB Employment Rights Bill as part of their Make Work Pay plans.

These are:

1. Make Work Pay: duty to inform workers of right to join a union
2. Make Work Pay: trade union right of access

1. Make Work Pay: enhanced dismissal protections for pregnant women and new mothers
2. Make Work Pay: leave for bereavement including pregnancy loss

Each Consultation is summarised in more detail below which also summarises the position in Northern Ireland:

1. Make Work Pay: duty to inform workers of right to join a union

Consultation closes: 18 December 2025. 

This new duty will be introduced under the Employment Rights Bill and will require employers to provide workers with a written statement informing them of their legal right to join a trade union. The duty is expected to take effect by October 2026.

Northern Ireland: Employers should note that there is a similar proposal contained in the Northern Ireland Good Jobs Bill and it will be interesting to see if the outworkings of this Consultation will shape how the duty will operate in Northern Ireland.

Key Areas of Focus

Form of the Statement: Government’s preference is for a standardised template that employers can issue with workplace-specific details.

Content of the Statement:  The proposal is for the statement to include:

• A brief overview of trade union functions, such as representing workers and negotiating on pay, terms, and redundancies.
• A summary of statutory rights under Part 3 of the Trade Union and Labour Relations (Consolidation) Act 1992, including protection from detriment based on union membership.
• A list of trade unions recognised by the employer, if any, to help workers identify available representation.
• A link to a GOV.UK page listing current trade unions, especially useful for workplaces without formal recognition agreements.

This is perhaps more detailed than was expected and is more than a simple statement expressing a right to join a union.

Delivery Method: The proposal is to deliver the statement directly to new workers alongside their statement of employment particulars. However, the Consultation also seeks views on indirect methods.

Frequency of Reissue: The government proposes an annual re-issue of the statement to existing workers. If indirect methods are used (e.g., posters or intranet), annual reminders would still be required.

Again, we had expected that it would have been included in the written statement without any requirement to remind workers of it.

2. Make Work Pay: trade union right of access

Consultation closes: 18 December 2025

This proposal is to give trade unions a legal right to access workplaces and communicate with workers both in person and digitally and again is expected to take effect in Great Britain by October 2026.

Northern Ireland: It is noteworthy that whilst Northern Ireland is also considering a legal general right of access the way the right will operate in Northern Ireland will differ to how it will work in Great Britain.

Currently, trade unions do not have a general right of access and must rely on voluntary agreements or individual members within a workplace.

The right to request access will be to:

• Meeting, supporting, representing, recruiting, or organising workers
• Facilitating collective bargaining

Access includes physical (on-site) or digital (e.g., via IT platforms or employer-facilitated distribution of materials).

The proposal is that an independent union will submit a formal notice of access to the employer. The employer may agree or object to the request.

If both parties agree, the terms are recorded with the Central Arbitration Committee (CAC) [the equivalent to the Industrial Court in Northern Ireland].

If no agreement is reached within a set timeframe, either party may refer the matter to the CAC. The CAC will assess whether access should be granted based on statutory criteria. It will also determine the terms of access and enforce agreements.

The Consultation is seeking employer views on:

• How unions should request access
• How employers should respond
• What factors the CAC should consider when granting access
• How fines for non-compliance should be determined
• A statutory Code of Practice will be consulted on in spring to provide practical guidance for implementation.

3. Make Work Pay: enhanced dismissal protections for pregnant women and new mothers

Consultation is open until 15 January 2026.

The third Consultation is around making it unlawful to dismiss pregnant women, mothers on maternity leave, and mothers for at least six months after they return to work—except in very specific circumstances.

Northern Ireland: Currently Northern Ireland are not considering similar proposals here. Under the Good Jobs Bill, NI’s plans are to enhance protection from redundancy for pregnant employees and those taking family leave by extending the redundancy protection period to 18 months from date the child is born. This would align Northern Ireland to the current position in Great Britain.

The aim is to tackle ongoing pregnancy and maternity discrimination in the workplace. The Consultation is seeking views from employers and other stakeholders on how this new protection should work in practice.

Key areas under review include:

• What specific circumstances should still allow dismissal during the protected period?
• When the protections should begin and end (i.e. what the protected period should be)
• Whether other new parents (e.g. fathers, adoptive parents) should be covered
• How to ensure women are aware of their rights
• How to support businesses through the change
• How to avoid unintended consequences, such as hiring hesitancy
• Whether additional steps should be taken to tackle pregnancy and maternity-related disadvantage

Two main options are being considered:

1. A stricter fairness test: Employers would need to meet a higher standard when dismissing someone in the protected group, even if a fair reason exists.
2. Limiting or removing some fair dismissal reasons – For example, narrowing the ‘conduct’ ground to only cover serious misconduct, or removing ‘capability’ and ‘some other substantial reason’ as valid grounds.

4. Make Work Pay: leave for bereavement including pregnancy loss

Consultation is open until 15 January 2026.

In Great Britain the government aims to introduce a new day-one right to unpaid bereavement leave under the Employment Rights Bill, which includes leave for employees who experience the loss of a loved one or pregnancy loss before 24 weeks. The consultation seeks views on defining who should be eligible for this leave, including the types of relationships that qualify and the forms of pregnancy loss that should be covered. It also explores whether others affected by pregnancy loss—such as partners or intended parents—should be entitled to leave.

In addition to eligibility, the consultation covers practical aspects such as the duration of leave, when it can be taken, and how flexible the arrangements should be. It also considers notice and evidence requirements, including how much notice employees should give and whether employers should be allowed to request proof of bereavement. While the leave will be unpaid, employers are encouraged to go beyond the statutory minimum to support staff wellbeing and morale.

Northern Ireland: In Northern Ireland, from 6 April 2026, statutory parental bereavement leave and pay will be extended beyond those proposed in Great Britain. Under these changes, employees in Northern Ireland will have a day-one right to statutory parental bereavement pay following the stillbirth or death of a child, without needing to meet the usual 26-week employment threshold. In addition, miscarriage up to 24 weeks will also be recognised as a qualifying event for bereavement leave from the first day of employment.

These entitlements apply specifically to individuals who are gainfully employed in Northern Ireland and paying Class 1 National Insurance Contributions.

Conclusions

It’s important for businesses in Northern Ireland to understand that — apart from SSP — the proposals currently being consulted on in Great Britain do not apply in Northern Ireland.

There are some similarities in the areas being reviewed as part of the Make Work Pay and Northern Ireland Good Jobs Bill, key differences still remain.

We will continue to keep members updated on any changes. If you have any questions, please contact the Legal team.

In Great Britain, the Equality and Human Rights Commission (EHRC) has formally urged the UK Government to act swiftly in implementing its updated draft Code of Practice. The EHRC submitted its draft Code to the government on 4 September 2025, for approval and thereafter it must be laid before Parliament for a 40-day period before it comes into force.

In a letter dated 15 October 2025, the EHRC raised concerns that the current version of the Code is now legally outdated following the Supreme Court’s decision in For Women Scotland v Scottish Ministers [2025] UKSC 16.

The EHRC is calling on the Government to revoke the current Code immediately and lay the updated version before Parliament without delay. This would provide clarity for courts, tribunals, and organisations with legal responsibilities under equality legislation.

Following submission of the draft Code, the EHRC has withdrawn its interim guidance on the practical implications of the For Women Scotland ruling. The guidance, originally published in April and updated in June 2025, faced criticism for being rushed and lacking accuracy. In the absence of formal guidance, the EHRC advises employers and other duty-bearers to seek specialist legal advice on their obligations under the Equality Act 2010 and the Human Rights Act 1998.

The EHRC’s actions come shortly after a letter from the Commissioner for Human Rights at the Council of Europe, dated 3 October 2025, which expressed concern about the treatment of trans people in the UK. The Commissioner noted that the For Women Scotland judgment did not address human rights issues and warned that misinterpretations of the ruling could lead to widespread exclusion of trans individuals from public spaces. He emphasised the urgent need for clear, inclusive guidance to support stakeholders in upholding rights and minimising exclusion.

Northern Ireland’s Position

 In Northern Ireland, the legal and policy landscape differs. The Equality Commission for Northern Ireland (ECNI) published its own roadmap in June 2025 and had initially planned to seek a High Court declaration on the applicability of For Women Scotland in Northern Ireland by end of September 2025. This is due to Northern Ireland’s unique legal protections under Article 2 of the Northern Ireland Protocol and the “no diminution” commitment.

As of 10 October 2025, ECNI confirmed it is currently reviewing consultation responses and will provide further updates in due course. In the meantime, ECNI has issued interim guidance, which employers in Northern Ireland are encouraged to consult.

What Employers Should Do

Employers across the UK should be aware of the evolving legal context and the potential implications for workplace policies and practices. In light of the uncertainty surrounding the current Code and its alignment with recent case law, organisations are advised to:

• Monitor developments from the EHRC and ECNI.
• Review internal policies to ensure they reflect current legal standards.
• Seek legal advice where necessary, particularly in relation to equality and human rights obligations.
• Ensure any guidance used is up to date and legally sound.

We will continue to keep members informed as further updates become available.

The Irish government has confirmed a further delay to the implementation of pensions auto-enrolment, pushing the new proposed start date to 1 January 2026. This marks the third delay since the scheme was first proposed in 2018, that had an original implementation date of 2022.

The scheme, known as My Future Fund, was previously set to launch on 30 September 2025, but Minister for Social Protection Dara Calleary stated that the delay would allow businesses and payroll providers more time to prepare while aligning the system with the standard tax year.

Key Details of My Future Fund:

• Eligibility: Workers aged 23-60, earning €20,000+, and not already in a pension scheme.
• Contributions: Starting at 1.5%, rising to 6% over a decade.
• Employer Matching: Employers contribute an equal amount to employees.
• State Top-Up: The government will add €1 for every €3 saved by employees.
• Opt-Out & Re-Enrolment: Employees can opt out after six months, but will be re-enrolled every two years.

Concerns from Businesses:

While the scheme is expected to benefit over 800,000 workers, many employers have raised concerns over costs and the lack of clear guidance on how the system will be implemented practically.

If they have not already done so, Members  should start preparing for the auto-enrolment pension scheme. Some measures include:

1. Understanding the Requirements– Employers must match employee contributions, starting at 1.5% and rising to 6% over a decade.
2. Assessing Financial Impact– Businesses should budget for the additional costs and consider how it affects payroll expenses.
3. Reviewing Existing Pension Schemes– If a company already offers a pension, it must ensure it meets the qualifying criteria to exempt employees from auto-enrolment.
4. Updating Payroll Systems– Employers need to ensure their payroll software can handle automatic deductions and contributions.
5. Communicating with Employees– Workers may have questions about opt-out options, contribution rates, and long-term benefits.
6. Preparing for Compliance– The scheme will be overseen by the National Automatic Enrolment Retirement Savings Authority (NAERSA), and businesses must comply with its regulations.

We previously provided a detailed update to members on the requirements of the scheme which can be accessed here ROI Autumn 2023 Newsletter – Employers Federation Northern Ireland

We will continue to update Members on the implementation of the ‘My Future Fund’ scheme and any further delays to the proposed commencement  date.

The Department of Enterprise, Trade and Employment has launched a public consultation to gather views from relevant stakeholders in relation to the possible content of Ireland’s national action plan and how Ireland can progressively increase and promote collective bargaining.

Background

Collective bargaining is defined by the Directive as “all negotiations that take place according to national law and practice in each member state between an employer, a group of employers or one or more employers organisations on one hand, and one or more trade unions on the other, for determining working conditions and terms of employment.”

The Irish government has long made it clear of its intention to promote collective bargaining through the development of an institutional framework supportive of a voluntary system of industrial relations, premised upon freedom of contract and freedom of association.

The Directive on Adequate Minimum Wages in the European Union was transposed in Ireland by 15 November 2024. The Directive aims to ensure that workers across the European Union are protected by adequate minimum wages allowing for a decent living wherever they work.

Article 4 of the Directive aims to promote collective bargaining on wages in all member states. To reach that objective, member states, with the involvement of the social partners, in accordance with national law and practice, shall:

• promote the building and strengthening of the capacity of the social partners to engage in collective bargaining on wage-setting, in particular at sector or cross-industry level
• encourage constructive, meaningful and informed negotiations on wages between the social partners, on an equal footing, where both parties have access to appropriate information in order to carry out their functions in respect of collective bargaining on wage-setting
• take measures, as appropriate, to protect the exercise of the right to collective bargaining on wage-setting and to protect workers and trade union representatives from acts that discriminate against them in respect of their employment on the grounds that they participate or wish to participate in collective bargaining on wage-setting
• for the purpose of promoting collective bargaining on wage-setting, take measures, as appropriate, to protect trade unions and employers’ organisations participating or wishing to participate in collective bargaining against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration

In addition, each member state in which the collective bargaining coverage rate is less than a threshold of 80% (as in a majority of member states, including Ireland) shall provide for a ‘framework of enabling conditions’ for collective bargaining and shall also establish an action plan by end of 2025 to promote collective bargaining. The action plan shall be reviewed at least every five years. The design of the framework of enabling conditions and the content of the action plan is entirely up to member states, in consultation with the social partners.

Employer insights are crucial to shaping policies that support balanced and constructive workplace negotiations.

The Department is considering various recommendations, including insights from the LEEF High-Level Group on Collective Bargaining. As a partner in this consultation, your feedback will help shape practical and effective policies.

Consultation questions and submissions

Respondents are requested to make their submissions on the following form:

Public consultation on Ireland’s action plan to promote collective bargaining

The closing date for submissions is close of business, Monday, 12 May 2025 and we encourage members to respond.   The Association will also make a submission on behalf of Members. Any member who wishes to feed into that submission should do so by contacting kathryn@employersfederation.org by Friday 9^th May 2025.

SPRING 2025 LEGISLATIVE UPDATE

The Equality (Miscellaneous Provisions) Bill 2024

On 15th January 2025, the Department of Children, Equality, Disability, Integration and Youth introduced the Equality (Miscellaneous Provisions) Bill 2024. Currently at the General Scheme stage, the Bill is undergoing refinement before progressing through Ireland’s legislative process in the Oireachtas. With the goal of fostering equality, inclusivity, and transparency, the proposed amendments main areas are:

• Pay transparency.
• Intersectional discrimination (referred to as dual discrimination in Great Britain the concept for which was introduced in the Equality Act 2010 but has not yet been brought into force).
• Recruitment practices.

This law is introduced to ensure that Irish equality laws (including the Employment Equality Act 1998 and Equal Status Act 2000) are in keeping with European Union Directives like the Pay Transparency Directive. The Bill is heralded as combatting discrimination and promoting fairness in the workplace.

Key Provisions and Proposed Changes

1. Pay Transparency

To comply with the EU’s Pay Transparency Directive, which must be implemented by June 2026, the Bill proposes significant changes to ensure equitable pay practices.

Employers will be:

• Required to disclose salary levels or ranges in job advertisements. While specifics regarding the depth of this disclosure are yet to be determined, the provision aims to eliminate loopholes such as overly broad salary ranges.
• Prohibited from requesting pay history or current salary details from job applicants. This measure is designed to prevent perpetuating pay gaps or discrimination based on previous salaries. For example, it safeguards individuals who may have experienced historical pay discrimination from carrying that bias into new employment.

These measures aim to address longstanding issues, including gender-based pay disparities, and foster greater transparency in remuneration practices.

2. Recruitment Criteria

The Bill requires employers to ensure:

• Job requirements are proportionate and objectively justified, so as to avoid indirect discrimination against protected groups.
• Recruitment processes are free from bias, providing equal opportunities to all candidates. Employers may be encouraged to implement initiatives targeting underrepresented groups, such as women, individuals with disabilities, or ethnic minorities.

To support compliance, employers may need to collect and report diversity data on applicants and hires, ensuring accountability in promoting workplace equality.

3. Intersectional Discrimination

When implemented the Bill will make a significant development in equality legislation by explicitly recognising intersectional discrimination where employees may face discrimination due to overlapping identities. For example, being from a different race and female. This is permitted by amendments to Section 3 of the Equal Status Act clarifying that discrimination can occur on multiple grounds simultaneously and expands employers’ obligations to ensure fair and equitable treatment in the workplace.

While the Bill strengthens protections for employees, it will also introduce new challenges for businesses. Intersectional discrimination can be more complex to assess, as mistreatment may stem from a combination of factors rather than a single characteristic. This increases the need for enhanced HR policies and specialised training to educate and ensure that potential issues are dealt with before they escalate. Additionally, employers may need to adapt workplace policies and procedures to accommodate multi-ground claims.

4. Positive Action Measures

The Bill enables employers to take proactive steps toward increasing participation of underrepresented groups. Expanding beyond gender-based initiatives, employers can develop targeted recruitment programs designed to promote equality across various protected grounds.

Additionally, amendments to the Employment Equality Acts require objective justification for specific qualifications tied to roles, addressing potential indirect discrimination linked to educational, technical, or professional prerequisites.

Members maybe aware the in the US, President Trump signed a number of Executive Orders considered to be a roll back on EDI initiatives and is particularly targeting initiatives aimed at redressing under representation. It will remain to be seen if this mandate in US continues in force and how it will co-exist with any companies operating in US and Ireland.

5. Extended Timeframes for Lodging Complaints

The Bill proposes extending complaint deadlines with the Workplace Relations Commission (WRC) across several key acts:

• Employment Equality Act 1998: Current time limits of six months for filing discrimination claims are extended to 12 months, with an additional six-month extension for reasonable cause.
• Equal Status Act 2000-2018: Notification deadlines for discrimination claims are increased from two months to four, with extensions possible for reasonable cause. Filing deadlines with the WRC are similarly extended from six to 12 months.
• Maternity Protection Act 1994: Adjustments ensure claims related to pregnancy or breastfeeding discrimination can be filed within reasonable timeframes, even up to two years after pregnancy-related issues arise.

Again the extended deadlines are considered as providing greater access to justice for complainants but may pose challenges for employers by lengthening the period during which claims can arise.

Implications for Employers

Employers will need to adopt comprehensive measures to meet the new requirements under the Equality Bill. Key actions include:

• Developing clear anti-discrimination policies and training programs for managers to handle harassment or bias complaints effectively.
• Improving recruitment processes to promote fairness and transparency while addressing underrepresentation of certain groups.
• Ensuring compliance with pay transparency obligations, particularly in job advertisements and hiring practices.
• Training Staff

Additionally, the recognition of intersectional discrimination and extended timeframes for lodging complaints reinforces the need for employers to proactively assess and address workplace practices that may unintentionally perpetuate inequality.

Final Thoughts

The Equality (Miscellaneous Provisions) Bill 2024 reflects Ireland’s continuing commitment to advancing equality in the workplace. As the Bill progresses through the legislative process, we will keep you informed.

1. Gender Pay Gap Reporting Ireland- Online Portal Launch

Minister for Children, Disability and Equality, Norma Foley, has announced that the new gender pay gap reporting portal will be launched in Autumn 2025.

Come the 1^st June 2025, employers with 50 or more employees will be required to publish a gender pay gap report on the online portal.

This portal will bring reports from all private and public sector employers together for the first time. This portal will also be fully searchable by the public.

The current position is that in-scope employers are only required to publish their gender pay gap report on their own website. It is estimated that approximately 6,000 organisations will now be required to report their gender pay gap on the online portal.

Employers must choose a date in June each year as their “snapshot date” for collecting the relevant data. They will then have five months from this date to provide their Gender Pay Gap Report. The reporting date has also been brought forward by one month, moving the deadline for reporting from December to November each year.

CASE LAW UPDATE

1. An Employee v A Café (ADJ-00047296)

Sexual Harassment in Workplace

In a significant ruling (ADJ-00047296), the Workplace Relations Commission (WRC) awarded €12,000 in compensation to a former café worker following a complaint of sexual harassment arising from a work-related event. This decision sheds light on employer liability and the need for robust anti-harassment policies.

Background of the Case

 The complainant, who was employed by the café for 12 weeks in 2023, alleged she was sexually harassed by her manager, Mr. X, during a night out attended exclusively by café staff. The incident occurred when Mr. X walked the complainant home, allegedly pushing her against a wall and kissing her. The complainant stated she rejected his advance and pushed him away.

Following the incident, the complainant claimed Mr. X became hostile and critical of her work. She described experiencing stress due to the situation and eventually resigned from her position in June 2023. She further alleged that her concerns were not adequately addressed by management despite her attempts to escalate the issue.

Mr. X, however, argued the kiss was accidental and that he apologised immediately. He maintained that any criticism of the complainant’s work was due to her performance, which did not meet the café’s standards.

WRC’s Findings

 After examining the evidence, the Adjudicator concluded that the incident of sexual harassment occurred as described by the complainant. He noted that her actions—such as discussing the matter with colleagues and contacting senior management—supported her account.

The Adjudicator determined that Mr. X’s behaviour fell within the definition of sexual harassment under the Employment Equality Acts 1998-2015. Crucially, it was ruled that the night out, although not officially organised by the café, fell within the scope of employment due to its exclusive attendance by staff and its connection to the workplace.

The café’s legal defence argued that employers should not be discouraged from allowing social events for fear of liability. However, the WRC held that the café had failed to take reasonably practicable steps to prevent workplace harassment. This failure included a lack of training for managers, ineffective communication of anti-harassment policies, and inadequate support for the complainant.

 Outcome

 The WRC awarded the complainant €12,000, noting this was close to the maximum compensation available for such claims. However, it dismissed her allegations of workplace retaliation and confirmed her resignation was not considered constructive dismissal.

 Lessons for Employers

This case highlights the importance of robust workplace policies on harassment and proactive measures to prevent such incidents. Employers should ensure:

• Clear communication and accessibility of anti-harassment policies.
• Proper training for all staff, especially managers, on handling harassment complaints.
• Effective mechanisms for employees to report harassment safely.

 Anonymisation in WRC Decisions

 Notably, the WRC anonymised this decision, aligning with a recent Supreme Court judgment in another case. The Adjudicator acknowledged the potential for reputational harm arising from published rulings and deemed anonymity appropriate to protect the parties involved.

This case serves as a reminder that while social interactions among staff can foster camaraderie, employers must remain vigilant in ensuring a safe and respectful environment for all employees—inside and outside the workplace.

2. Tom Ronan V Commissioner for An Garda Siochana, Ireland and the Attorney General (High Court)

Employment disputes in Ireland often involve complex legal procedures, with injunctions emerging as a crucial mechanism for addressing issues like wrongful termination, discrimination, or breaches of employment law.

The ongoing case of Tom Ronan exemplifies the intricacies of this process, particularly in the context of age discrimination and mandatory retirement.

Background

Mr. Ronan, a civilian Garda driver, faced mandatory retirement at the age of 70 despite his protest that the decision constituted age discrimination. His complaint was upheld by the Workplace Relations Commission (WRC), who ruled that forcing Mr. Ronan to retire was discriminatory.

The WRC decision provided for re-engagement within four weeks of the ruling and extension of his employment for an additional three years.

Interestingly, while WRC acknowledged the objective justification for the mandatory retirement age, he found it unreasonable in Mr. Ronan’s case due to the financial hardship the retirement would impose.

On 14 November 2024, the first defendant appealed the WRC determination to the Labour Court and did not re-engage Mr. Ronan as directed by the WRC. Instead, the defendant sought Mr. Ronan’s consent for a stay on the WRC determination and formally requested a stay from the Labour Court on 20 November 2024.

The Labour Court, via a letter dated 27 November 2024, stated it had no jurisdiction to grant a stay. It clarified that any appeal to the Labour Court results in a de novo (fresh) hearing, and the WRC decision carries no binding weight during this process.

Mr. Ronan requested re-engagement in line with the WRC determination. However  the defendant declined, citing section 43(3) of the Workplace Relations Act 2015 which provide that WRC determinations are unenforceable while under appeal.

Mr. Ronan -initiated proceedings on 29 January 2025 and secured an interim injunction on 30 January 2025 to enforce the WRC determination and require re-engagement, allowing him to resume his duties temporarily.

 On 4 February 2025, the defendants then filed an application to discharge the interim injunction. The court consolidated both applications, which were subsequently heard on 6 February 2025.

However, when Mr. Ronan applied for an interlocutory injunction to maintain the interim arrangement until the Labour Court’s hearing, his request was denied on 14th February 2025.

That High Court held that:

• Age discrimination claims should be pursued through statutory mechanisms, namely the WRC and Labour Court.
• Granting an injunction would interfere with the Labour Court’s decision-making role.
• Section 43(3) of the Workplace Relations Act 2015 clarifies that WRC orders cannot be enforced by the District Court while under appeal.
• Exceptional circumstances are required to justify granting relief through an injunction when statutory remedies are available, and no such circumstances existed in this case.

The High Court’s decision reflects the limits of judicial intervention in statutory frameworks, emphasising the integrity of processes outlined in employment legislation.

Injunctions play a vital role in Irish employment disputes, offering temporary relief while awaiting the resolution of legal claims. They typically fall into two categories:

Interim Injunctions: Short-term measures granted without full arguments from all parties. These aim to preserve the status quo until the dispute is resolved.

Interlocutory Injunctions: Longer-term relief granted after hearing arguments from all parties. These remain in effect until the case’s conclusion.

For injunctions to succeed in employment disputes, claimants must typically satisfy three criteria:

• There is a serious issue to be tried.
• Damages would not suffice as compensation.
• The balance of convenience favours granting the injunction.

This case underscores the limits of using injunctions to enforce WRC orders under appeal. It highlights the principle that statutory remedies must be exhausted before judicial intervention. Moreover, Justice Mulcahy’s ruling illustrates that courts are reluctant to grant injunctions that could pre-emptively determine the outcome of statutory procedures.

Implications for Employers

Mandatory retirement ages and age discrimination remain highly complex areas of employment law.

Employers should:

• Seek legal advice before enforcing mandatory retirement, particularly when employees request to extend their employment.
• Ensure compliance with anti-discrimination legislation to mitigate the risk of disputes.
• Understand the potential implications of WRC rulings and appeals, including the limits on enforcement of decisions under the Workplace Relations Act 2015.

Looking Ahead

Mr. Ronan’s efforts to appeal the High Court’s refusal of an interlocutory injunction will be closely watched, as the Supreme Court or Court of Appeal may weigh in on the broader implications for employment law. Additionally, the Labour Court’s ruling on the WRC decision will provide further clarity on mandatory retirement and age discrimination.

LEGAL UPDATES 

1. Pension auto enrolment update

We have been updating  members on an ongoing basis in relation to the implementation of the Government Pensions Auto Enrolment Act 2024.  Members will be aware that the act was signed into law on 9^th July 2024 with an (ambitious) implementation date scheduled for 1^st January 2025. There had been widespread concern by employers that there were insufficient details about the operation of the scheme and the framework to ensure payments were processed correctly.

By way of a reminder, when introduced, the act will:

• apply to employees between the ages of 23-60 whose gross pay is in excess of €20,000. Contributions based on gross pay of up to a maximum €80,000.
• Contributions will increase on a gradual incremental basis as set out in the table below.

• Employees will be eligible to ‘opt out’ in months 7 and 8 or suspend their contributions. Employees who opt out may be entitled to a refund of their own contributions, however the Bill does not currently provide for a refund of the employer.
• Employees who leave the plan or suspend their contributions will be automatically re-enrolled in the scheme after 2 years if they are still eligible.

If any employee leaves employment, their pension pot, and enrolment in the scheme is unaffected, and will continue in their new employment.

The government has now confirmed that the scheme will start on 30th September 2025. Minister Humphreys, Minister for Social Protection, confirmed that employers now have a full year lead-in time to enable sufficient preparations to be made.

The Government’s online guidance has also been updated which provides some useful information for employers, particularly where the employer already operates an existing occupational pension scheme to employees.

Under Section 51 of the Auto-Enrolment Act 2024, an employee will be in ‘exempt employment’ if there is a pension contribution from the employee or employer, paid through payroll.

For the first few years of auto-enrolment, any pension contribution greater than zero will be enough to exempt an employment. However, by the end of year six of the operation of the scheme, at the latest, standards for the exemption of existing pension schemes will be developed with the assistance of the Pensions Authority.

2. Budget

On 1 October 2024, the Irish government announced a number of  significant measures that will apply for 2025, some of which seek to address the cost-of-living challenges in Ireland.  In addition, some retrospective income tax credits may be available in 2024 for some taxpayers.

The key employment related measures are listed below:  

• The national minimum wage will increase by 80 cent to €13.50 per hour from 1 January 2025
• The USC will be cut from 4% to 3% on incomes of €25,000 to €70,000, the second consecutive reduction to the USC rate
• Entry threshold to 3% rate increased by €1,622 to €27,382

A high-level overview of the budget is available here

3. The Maternity Protection, Employment Equality and Preservation of Certain Records Bill 2024

One of the last pieces of legislation to be passed before the Dáil is dissolved, ahead of a general election, is the Maternity Protection, Employment Equality and Preservation of Certain Records Bill 2024.

The Bill will be sent to the President for signing into law and will commence  at a date in the future, following the introduction of a commencement order to give the new laws effect.

The Bill, when it becomes an Act, will see the introduction of two significant changes affecting employment law practice,  namely:

1. the postponement of maternity leave in the event of a serious health condition; and
2. a restriction on the use of non-disclosure agreements in respect of allegations of discrimination, victimisation, harassment and sexual harassment, whereby such agreements will be null and void unless certain conditions are met.

Postponement of maternity leave in event of serious health condition

The Bill provides that:

1. A relevant employee (i.e. someone who is pregnant or on maternity leave and has a serious health condition) can notify their employer that they intend to postpone the commencement of all or part of their maternity leave for up to 52 weeks. A serious health condition means a health condition that entails a serious risk to the life or health, including the mental health, of the employee and requires necessary medical intervention that is ongoing for a period of time.
2. The notification to the employer must specify the date on which the postponement is to commence and end (which must be at least 5 weeks from the commencement of the postponement) and be accompanied by a medical cert which specifies those dates. The notification must be made at least 2 weeks before the postponement is due to commence.
3. Where a notification is made in accordance with the above, the relevant employee will be entitled to the maternity leave (or any untaken part thereof) to be taken in one continuous period on the day immediately after the end date. The entitlement to resumed leave is subject to the employee notifying the employer in writing of their intention to commence the leave as soon as reasonably practicable but no later than on the day on which the leave begins.
4. Where the employee has already postponed their leave, they may notify the employer in writing of their intention to postpone the commencement of the leave one further time only.
5. An employee cannot postpone their maternity leave under both this provision and under section 14B (i.e. in the event of the hospitalisation of a child) in respect of the same birth.

Restriction on use of non-disclosure agreements 

The Bill adds a new section 14B to the Employment Equality Acts, which provides that:

1. An employer must not enter into a non-disclosure agreement and if they do the agreement will be null and void. A non-disclosure agreement is defined as an agreement, or provision thereof, whether or not in writing and howsoever described, between an employer and an employee that purports to preclude the making of a relevant disclosure by the employer or the employee or both.
2. A relevant disclosure means a disclosure of information relating to either one or both of the following:
   a. the making by the employee of an allegation that he or she was discriminated against, or subjected to victimisation, harassment or sexual harassment, in relation to his or her employment (or potential employment) by the employer;
   b. any action taken by the employer or employee in response to the making of such an allegation, including any action taken in relation to any complaint made or proceedings taken, by the employee in relation to the subject matter of the allegation.
3. However, an employer may enter into an “excepted non-disclosure agreement” only where the employee requests the employer to do so and, prior to entering into the agreement, the employee has received independent legal advice in writing from a legal practitioner in relation to the implications of entering into an agreement. The employer must also pay the reasonable legal costs and expenses of obtaining the legal advice.
4. In addition, any such agreement must:
   a. be in writing;
   b. be of unlimited duration, unless the employee decides otherwise;
   c. be in clear language that is easily understood and a format that is easily accessible (including by any party with a disability);
   d. provide that the employee has a right to withdraw from the agreement without penalty within 14 days; ande. include a provision that the agreement does not prohibit the making of relevant disclosures to one or more listed persons, where, at the time of the making of the disclosure, the person concerned is acting in the course of their office, employment, business, trade or profession. Listed persons include Garda, lawyer, medical practitioner, mental health professional, Revenue, Ombudsman, trade union official or such individual as may be specified in the agreement.
5. WRC Mediation Exception: NDAs included as part of a Workplace Relations Commission (WRC) mediation will be lawful. This will likely incentivise employers to use WRC services, but it is important to note that a mediation conference will only be held if both parties agree in advance to participate and where there are live WRC complaints.

We will advise Members of the commencement date for the Act in due course.

A copy of the Bill, including its history,  can be accessed here

4. Menopause awareness month

October is menopause awareness month, with 18^th October officially declared World Menopause Day.

The conversation regarding the menopause has changed considerably in recent years with individuals and employers more aware of the impact of the menopause on an employee’s working life, as well as the steps that can be taken to support menopausal employees.

One way of promoting awareness of menopause is by having a specific menopause policy setting out how staff can raise issues relating to menopause and how you will handle these issues when raised.

To coincide with World Menopause Day, we have produced a Menopause Policy that you may wish to adopt for your workplace.

This policy is intended to confirm your commitment to constructive, open and honest conversations about the impact of menopause on staff and to indicate the type of support that may be available to assist with any issues, that should be tailored to your organisation or reflect ones in place within the workplace.

A copy of this policy is available on the members’ area of the ROI website.  If you have any questions, please do not hesitate to contact our ROI legal team

CASE LAW UPDATES

1. Karabko v TikTok Technology Limited 

    Right to request remote working 

The WRC has issued its first decision in relation to the right to request flexible working and the right to request remote working, which is provided for in the Work Life Balance and Miscellaneous Provisions Act 2023.

In the decision, the adjudicator also gave helpful guidance on the Code of Practice on the Right to Request Flexible Working and Right to Request Remote Working (the “Code”) which was published by the WRC earlier this year following the introduction of the right to request Flexible Working through the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”)

Facts

The Complainant, Ms. Karabko, was employed by the Respondent, TikTok Technology Limited. In her contract of employment, her normal place of work was the Respondent’s office in Dublin 2; however as a result of the pandemic the Complainant had primarily worked fully remotely, which was provided for in her contract of employment, since the commencement of her employment in January 2022.

In June 2022, the Respondent communicated its intention to have all staff work on a hybrid working basis through its ’ Return to Office’ (“RTO”) policy. The RTO policy provided for employees to attend at the office on a 2-day a week basis whilst encouraging employees to attend on site 3 days per week. The Respondent permitted the Complainant to work from home for the duration of 2022 on an “individual exception” basis however, in January

2023, the Respondent announced that the option for “individual exceptions” would cease from March 2023 and after this date all employees would be required to cooperate with the RTO policy.

The Complainant continued to work fully remotely which culminated in a disciplinary process and verbal warning being issued. On 11 March 2024, following publication of the Code, the Complainant submitted a request to work remotely on a full-time basis. As part of her formal request, the Complainant provided her reasons which included a lack of suitable accommodation in Dublin for her and her cat, reduction of her commute and improvement in quality of life.

The Respondent, complied with the timelines set out in the Act in its response to the Complainant and, following consideration of the request, refused the request and set out the reasons for the refusal.

The Complainant issued correspondence to the Respondent stating that her needs had not been considered and alleging that the Respondent failed to consider her request in an objective, fair and reasonable manner. Following from this, a meeting took place where the reasons for the Respondent’s refusal were discussed in detail. The Complainant was also offered the option to raise a grievance, which is provided for in the Code, which was not pursued by the Complainant.

The Complainant’s position was that the Respondent did not consider her request in line with the Code or the Act, namely by the Respondent considering only its needs and not hers as well. The Complainant pursued a complaint to the WRC that the Respondent was in breach of its legal obligations.

The Respondent contended that the Complainant’s request was considered, and responded to, by the Respondent in accordance with its obligations under the Act.  It was submitted that the Complainant was in effect seeking to have the merits of the Respondent’s decision to refuse the request examined by the WRC, when doing so is expressly prohibited by Section 27 (6) of the Act, as confirmed by the Code.

The Respondent submitted that the fact the Complainant’s request was not granted does not give rise to an actionable breach under the Act.

Decision

The Adjudication Officer  (the “AO”) found that the Complainant’s complaints were not well founded. The AO noted that one of the purposes of the Act is to “provide for the entitlement of employees to request remote working arrangements” and practical guidance on how to handle those requests are set out in the Code. The AO was clear that her remit was strictly limited to assessing whether an employer considered a request for remote working in line with the Act and in accordance with the Code of Practice.

The Adjudication Officer stated that there were three distinct duties on an employer who receives a remote working request:

1. Section 21(1)(a) of the Act obliges the employer to consider the request having regard to its needs, the employees needs and the requirements of the Code of Practice.
2. Section 21(1)(b) of the Act obliges the employer to either approve a request for remote working or notify the employee in writing of its refusal to approve the request within four weeks of the receipt of the request.
3. Section 21(2) of the Act provides for an extension of the consideration period of up to eight weeks.

The AO was satisfied that the Respondent had carefully considered the request and had complied with its obligations under the Act and Code of Practice.

Learning points for employers

As a reminder, neither the Code nor the Act give a legal right to flexible or remote working. The Act provides for a right to request flexible or remote working, that an employer must consider that request and provides statutory timelines in which those requests should be considered. The Code sets out steps to assist employers and employees in navigating requests for flexible and remote working, in compliance with the Act.

The above case is helpful in that it reaffirms that the Act and Code provide the right to request remote working, as opposed to the right to work remotely. However, employers should also ensure that they are able to evidence that they have considered any request and have complied with the prescribed timelines; for this reason, we would encourage all employers to document their decision-making process. It is important for employers, if they have not done so already, to ensure that they have a policy on remote and flexible working that complies with the Code as, if they do not and an employee takes a claim under the Act, it will be read against the employer.

A copy of our specimen Flexible Working Policy is available on the members area of our website.

2. Dean Hart v Komfort Kare (ADJ00051923)

    Section 13 of the Parental Leave Act 1998

The Complainant presented a complaint to the WRC alleging that his employer, Komfort Kare, had denied him his statutory right to take force majeure leave, which resulted in an extended period of sickness absence.

Section 13(1) of the Parental Leave Act, as amended, sets out the right to force majeure leave, which provides for an employee to leave, with pay, from his employment for ‘urgent family reasons’ owing to an injury or illness of a specific person whereby the ‘immediate presence’ of the employee at the place where that person is, whether at his or her home or elsewhere, is ‘indispensable’

Any infringement on the right to take force majeure leave, including any detriment as a result of exercising the statutory right, can result in an award of up to 20 weeks pay.

Facts 

The Complainant notified his employer that his wife was miscarrying and he requested to take force majeure leave, in accordance with Section 13 of the Parental Leave Act 1998. The Respondent agreed to the request.

On the second day the complaint contacted his employer to advise that his wife was still bleeding heavily and was unable to look after their 3 year old son.

The employer responded stating:

“Please note ‘Force Majeure means urgent family reasons where, owing to an injury or to the illness of an immediate relative the presence in the same place is indispensable. As a gesture of good will, the company will take your application into consideration if you furnish us with a letter from the maternity hospital which supports the issues you have outlined, including care instructions and support required, appointment dates. I look forward to hearing from you.”

The Complainant considered the request invasive and insensitive. He subsequently submitted a doctor’s certificate covering the absence.

Decision 

The AO considered the relevant authorities which had examined the issue of ‘indispensable’ within the meaning of the Parental Leave Act and the circumstances in which force majeure leave would and would not apply.

Those authorities included:

Julie Murphy v Abtran (ADJ-00045486), Mc Galey v Liebherr Container Cranes Ltd, Giles v Outhaus Group Country Manor Bricks in ADJ 27631, and MJER v Skibal [2018] IESC.

In considering those judgments, the AO determined that the Complainant had been entitled to take force majeure leave and the failure of the Respondent to grant the complainant the leave was in breach of Section 13 of the Act.

The complainant was awarded €7000 in compensation.

Learning Points for Employers 

There is limited jurisprudence in relation to force majeure leave, however those authorities that are available demonstrate that employers must apply wider interpretation to circumstances which would be considered as abnormal, exceptional or unforeseeable as well as the grounds in which an employee’s attendance would be ‘indispensable’. Whilst the law does not stipulate a medical certificate to be provided, if one were available, this might assist the employer in considering the request. The employer must of course be mindful of its obligations in relation to processing sensitive data relating to third parties.

Employers must be particularly mindful of the damage to the working relationship, as well as reputational damage, where it adopts a rigid  application to the right and denies a request for force majeure leave.

3. McCabe v AA Ireland Ltd [2024] IECC 6

    Data protection breach 

Facts 

The employee (Mr McCabe) was employed by AA Ireland Ltd and was absent form work on sickness leave in August 2022. On the last day of his sick leave, his manager recorded him with his mobile phone as he cut overhanging branches at a relative’s home. The employee challenged the manager, angrily, regarding the recording on the basis that he was wrongfully recorded at home and when he was not at work.

The employee was subsequently suspended in relation to his absence, and his reaction to his manager on the day in question and was eventually dismissed from employment. He challenged the dismissal at the WRC where he was unsuccessful.

McCabe proceeded to lodge proceedings with the Circuit Court alleging that his former employer was not entitled to use, disclose or process his confidential information without prior consent for an unlawful purpose. He alleged that the information was recorded, used, and processed in breach of the GDPR and Data Protection Act 2018 (DPA). He also alleged that the publication of confidential and sensitive information violated his constitutional right to privacy under the ECHR. Negligence, breach of duty and breach of confidence were also alleged against the defendant in the manner it used the plaintiff’s personal data. He claimed damages, including nonmaterial damages for wrongful invasion and breach of his right to privacy. Mr McCabe also sought an order under Section 117 of the DPA directing the defendant to comply with his subject access request and furnish him with a copy of his personal data, including a copy of the Recording. McCabe also sought an order, if necessary, that the former employer account to him for the loss, erasure or destruction of the recording.

Decision 

The Court referred to the Circuit Court decision of Kaminski v Ballymaguire

Foods Limited [2023] IECC 5, which set out the legislative provisions of the GDPR and the DPA, which were of particular relevance to this case. Those provisions included the principles relating to the processing of personal data under Article 5(1) of the GDPR and the lawfulness of processing of personal data under Article 6 of the GPDR. The Court also referred to Article 82, which provides for the right to compensation for material or non-material damage suffered by a data subject because of an infringement of the GDPR.

The Court accepted that, whilst the recording was not relied on by the employer in the disciplinary process which resulted in the employee’s dismissal, there was a sufficient causal connection between the act of the Recording and the dismissal itself. Therefore, the Court directed the defendant to account to the plaintiff for the loss, erasure or destruction of the Recording and provide sworn testimony of its current status. The Court expressed concern about the appropriate provision of information to the plaintiff, as the data subject, regarding the destruction or availability of the Recording because it may have assisted his WRC appeal or related litigation.

The Court noted that Mr McCabe enjoyed a right to data collected by his employer which is closely connected to his role. For this infringement, the Court made an award of compensation for the damage suffered by the plaintiff under section 117(4)(b) of the DPA in the sum of €5,500, together with costs. This re-enforces the position that compensation for non-material damages in data protection claims will be modest.

The Court did not uphold the claims of breach of privacy, negligence, breach of duty, and breach of confidence.

Learning points for employers

Employee monitoring, whether covertly or otherwise, is becoming increasingly common in the workplace. Employers must be aware of theirobligations under the DPA and GDPR in respect of processing and storing employee data, as well as the rights of data subjects to access that data.

On 12 September 2024, in the case of Tesco Stores Ltd v USDAW and Others [2024] UKSC 28, the UK Supreme Court unanimously allowed an appeal brought by USDAW (the Union) on behalf of employees and restored an injunction preventing Tesco from firing and rehiring employees for the specific purposes of depriving them of Retained Pay (RP) as it was agreed that RP was a permanent benefit.

The appeal raises fundamental questions about an employer’s right, under contract law, to terminate a contract of employment by giving notice and the remedies for breach of employment contract.

Background

RP was a financial contractual entitlement that was agreed between the Union and Tesco to be a permanent benefit.

In 2007, Tesco closed some Distribution Centres to incentivise existing employees to relocate. Tesco and the Union collectively agreed to provide RP to employees that agreed to relocate.

As this RP was agreed via a collective agreement, the right to RP was then incorporated into those employees’ contracts of employment as an express term.

The RP clause stated that RP would “remain a permanent feature” of an employee’s contractual entitlement, subject to certain qualifications.

A separate clause gave Tesco a contractual right to dismiss employees without cause, on notice.

In 2021, Tesco offered to buy out the right to RP. Tesco informed employees that, if they did not agree to the removal of the RP term, they would be dismissed and offered re-engagement on identical terms, but with no RP term

Some employees refused to accept the offer; the Union then successfully applied to the High Court for an injunction to restrain Tesco from terminating their employment for the purposes of removing their right to RP.

Tesco appealed to the Court of Appeal, who overturned the High Court’s decision to impose an injunction.

Supreme Court (SC)

The SC unanimously restored the injunction and, by virtue of doing so, have restrained Tesco from terminating employees for the purposes of removing their right to RP.

The SC held the employment contracts contained a term implied by fact meaning

Tesco’s right to terminate could not be exercised to deprive employees of their right to RP.

In arriving at that decision, the SC started by interpreting the express RP term.

The SC rejected Tesco’s argument that the RP term simply meant that the RP  entitlement was only “permanent” for the contract duration and was subject to Tesco’s unqualified right to dismiss on notice.

The SC stated that such an interpretation would give no substance to the express promise that the entitlement is  “permanent”.  The correct interpretation of the RP clause was that it would continue for as long as the employee remained employed in the same role, subject only to the qualifications stated within the clause.

Indeed, the SC acknowledged that the right to RP was deprived of  value if Tesco could at any time unilaterally terminate the employment; therefore, the right to dismiss was qualified by an implied term not to dismiss in a way that would deprive employees of the right to RP.

The SC found it ‘inconceivable’ that the parties’ objective mutual intention was that Tesco could unilaterally dismiss to deprive these employees of the right to RP.

Importantly, the SC noted that Tesco’s right to dismiss for any other reason was entirely unaffected by this implied term. The SC drew an analogy to employees with entitlement to Permanent Health Insurance (PHI) benefits and the implied term that employer was restrained from dismissing to deprive them of PHI.

On remedy, the SC recognised that an injunction would amount to indirect specific performance of Tesco’s obligation to continue to employ the employees on RP.  Whilst the general rule is that specific performance will not be granted: (i) of an employment contract; or (ii) where damages are an adequate remedy, this was an exception to that rule. Here, the SC found that damages would be inadequate and, as there was no breakdown of trust and confidence between Tesco and the employees, the contract could continue. In those circumstances, the injunction was granted.

Commentary

This is a reminder that any contractual term is underpinned by implied obligations by law and fact. Here, the implied obligation that had arisen out of the facts was to not act in a way that deprived the employee of a benefit which they were entitled to. It demonstrates the willingness of the Supreme Court to stand back and assess the reality of the situation. Here it was ‘inconceivable’ that when RP was agreed that the parties intended that Tesco could unilaterally terminate their contracts at any time to deprive them of this permanent benefit to RP.

It is also a noteworthy development from the SC that by issuing the final injunction it was thereby preventing Tesco, a private sector employer, from dismissing an employee for an indefinite period if the purpose of the dismissal is to remove the RP benefit. It may well be the case that we will see more claims for specific performance in breach of contract claims with arguments being made that compensation is an inadequate remedy.

This is another case that casts a bad light on the use of fire and re-hire. This is so when both Northern Ireland and Great Britain are looking at strengthening the rights of workers that includes curtailing the use of fire and re-hire.

LEGAL UPDATES

Implementation of the Employment Permits Act 2024

The new Employment Permits Act will come into force today, Monday 2nd September 2024.

This Act consolidates and modernises employment permits law and will apply to non-EEA nationals who wish to take up eligible employment and residence in the Republic of Ireland.

Main provisions of the Act

The Employment Permits Act 2024 will introduce a number of changes to the existing system, including:

• the introduction of a Seasonal Employment Permit, based on strong labour rights, which will support the seasonal needs of certain sectors.
• the ability to change an employment permit to a new employer after nine months to allow for better opportunities for workers and improve working conditions.
• moving operational details, such as the requirements of the Labour Market Needs Test to secondary legislation, which will allow the system to adapt quickly to changes in the labour market.
• requiring additional conditions such as training and accommodation support for employment permit holders, which will make Ireland a more attractive destination.
• allowing for non-consultant hospital doctors to have a permit which will allow them to work at multiple sites, which will help to further streamline the system.
• allowing permit holders to be promoted within their roles without the need for a new permit.

Seasonal Employment Permit

The new Seasonal Employment Permit is a short-term employment permit which will allow the permit holder to work for a maximum of 7 months per calendar year in a seasonally recurrent employment. It is designed to support targeted economic sectors, such as horticulture and agriculture, in addressing labour shortages and will be renewable across multiple years for the set calendar season. Arrangements for the provision of accommodation and health insurance will be included in the scheme. The permit will be first introduced under a limited pilot scheme later this year with the intention that it commence in early 2025.

Change of employer 

The Act introduces a new provision allowing certain employment permit holders to change their permit employer to another employer after a period of nine months has elapsed.

• The change of employer applies to the General Employment Permit (GEP) and the Critical Skills Employment Permit (CSEP).
• The holder of a GEP can apply to change to an employer within the type of employment for which they have been granted a permit.
• The holder of a CSEP can change to an employer across a broader category of employments, for example, different engineering roles. This is because there is a high demand of these skills in the Labour market.

Progression within the role

The Act aims to improve the status and employment opportunities of permit holders by including a provision to allow for promotion and internal transfer in the same company where a permit holder would use the same skills, thus removing the requirement for the permit holder to undergo a new employment permit application process should this situation arise.

Modernised Labour Market Needs Test

The Act also addresses the inflexibility inherent in the Labour Market Needs Test, which requires that a role be advertised across the EEA and in print media prior to a permit being sought. The new Bill will simplify the process by requiring employers to publish vacancies online only and will reflect modern advertising practices.

The Department of Enterprise, Trade and Employment has published additional information in relation to the 2024 Act which is available here

A copy of the of the Employment Permits Act 2024 Is available here

CASE LAW UPDATES

ADJ-00037668

Matt McGranaghan (Complainant) V MEPC Music Limited

Unfair dismissal, failure to pay notice pay, failure to pay holiday pay, failure to compensate for Sunday working

Background

This case is of particular significance to employers as it is the first WRC decision on employment status since the Supreme Court handed down its judgement in The Revenue Commissioners v Karshan Midlands t/a Domino’s Pizza in October 2023. You will recall from our update here  that the Supreme Court found  Domino’s Pizza delivery drivers in this case (which is a tax case) ought to be treated as employees and not as independent contractors.

The decision of the Supreme Court was the final instalment in a long series of adjudications which originated in the Tax Appeals commission.

Legal arguments centred on the key components required to demonstrate employee status, with mutuality of obligation central to the arguments. This principle being that an employer is obliged to offer, and an employee is obliged to accept, any work.

However, the Supreme Court took the view that the term ‘mutuality of obligation’ has ‘generated unnecessary confusion’ and should be ‘avoided’ going forward; removing the notion that mutuality of obligation is a decisive or determinative factor in establishing employee status.

The Court reiterated the importance of considering all the circumstances to identify features that are consistent with an employment contract or a self-employed/independent contractor, and considered the following five steps as being determinative:

1. Does the contract involve the exchange of wage or other remuneration for work?
2. If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?
3. If so, does the employer exercise sufficient control over the employee to render the agreement one that is capable of being an employment agreement?
4. If these three requirements are met, the factual matrix and working arrangements must be considered.
5. Is there anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing?

Adjudication Officer (AO) Caroline Reidy considered the Supreme Court Judgment when determining the claim below.

Facts

The Complainant was a fiddle player who, since 2013 had performed with leading Irish country music singer, Michael English and his band. Following a series of disputes between Michael English/his manager regarding a variety of issues, including the Complainant’s employment status, he was advised, by an email, in September 2021 that ‘his services were no longer required’. The Complainant asserted that he was an employee of the Respondent and his classification as self-employed by them was a ‘sham’.

He presented the following complaints to the WRC:

1. That he had been unfairly dismissed.
2. That he had been dismissed without notice pay.
3. That he did not receive compensation for Sunday working.
4. That he did not receive statutory annual leave.
5. That he did not receive payment for public holidays.
6. That he did not receive a statement of his core terms of employment.

He relied on the following facts to demonstrate that he was an employee:

• The Respondent directed him what songs to play/rehearse and when to do so.
• He was required to wear a uniform.
• He was paid each week by the Respondent for gigs performed.
• The Respondent covered expenses, including travel and accommodation.
• He was required to undertake rehearsals for gigs which was also paid at a set rate.
• If he was unavailable for work, the Respondent was solely responsible for arranging a substitute in his absence.
• He had contacted the Department of Social Protection who conducted a Scope investigation and found that he was ‘employed under a contact of service and is an employee’.

The Respondent asserted that there was no mutuality of obligation between the parties, demonstrated by the Complainant’s refusal to accept certain gigs and that he was free to work elsewhere at any time. The Respondent’s representative also stated that the very nature of a band means that all musicians will have to take direction/instruction from one person who will control the performance. The Respondent also contended that the Complainant’s claims had not been made within the statutory time period of 6 months, or even within the further 6 month extended period provided for by the legislation taking into consideration the prolonged period in 2020 that the Complainant had not worked for the Respondent due to the COVID pandemic.

Decision

Based on the 5-step test set out by the Supreme Court (detailed above), and other relevant authorities, as well as the evidence presented by the parties, AO Reidy found the Complainant met the requirement of the legislation and case law to be considered an employee.

Having found that the Complainant was deemed to be an employee, AO Reidy then considered the relevant chronology provided and found that the dismissal was deemed to have taken effect on 22^nd September 2021 and, as the Claim to the WRC was presented on 4^th March 2022, the claims were in time.

The AO then determined each of the separate claims that the Complainant had presented, as set out above, and found the Complainant’s claims had been made out. The Complainant received a total of €43,840 in respect of his complaints.

Learning points for employers

Employers should review the working arrangements with independent contractors, having regard to the 5-step test set out by the Supreme Court in Karshan, to ensure they have been properly categorised, and they are not falling foul of the employment protections for employees.

Any Member who requires further assistance in relation to this issue should contact the ROI legal team.

LEGAL UPDATES

1. Extension of paid Parent’s Leave and Benefit

The Parent’s Leave and Benefit Act 2019 (Extension of Periods of Leave) Order 2024 has been signed into law and, with effect from 1^st August 2024, parents will be able to avail of nine weeks paid Parent’s Leave and Benefit during the first two years of a child’s life, or in the case of adoption, within two years of the placement of the child with the family.

The leave will also apply retrospectively to parents who have taken seven weeks’ Parent’s Leave prior to August 2024 (i.e. they will now have an entitlement to an additional two weeks) if their child had not reached the age of two when the leave is taken (in the case of an adopted child it is still within two years of the date of placement of the child when the leave is taken).

A copy of the Parents Leave and Benefit Act 2019 is available here.

A copy of the Parent’s Leave and Benefit Act 2019 (Extension of Periods of Leave) Order 2024  is available here

Members should update their internal policies accordingly.

2. The Automatic Enrolment Retirement Savings System Act 2024

The Automatic Enrolment Retirement Savings System Bill 2024 has been passed by both Houses of the Oireachtas and on 9^th July 2024 was signed into law by President Higgins.

The Act provides for a new retirement savings scheme for workers who earn over €20,000 and who are not already members of a pension scheme.

The Act also establishes an independent public body, the National Automatic Enrolment Retirement Savings Authority (NAERSA) to administer the system and ensure compliance, under the auspices of the Department of Social Protection.

Tata Consultancy Services (TCS), a leading global IT services, consulting, and business solutions organisation, has been selected to provide this administration as a managed service.

NAERSA will identify and enrol participants, collect and pool contributions, arrange for the investment of contributions, manage participant accounts including opt-outs, suspensions and opt-ins, and facilitate the payment of savings at retirement. This will mean employers will have minimal administrative work in relation to Auto Enrolment.

We previously set out details of the proposed scheme to members  here, however we have summarised the main provisions below.

• All employees not already in an occupational or equivalent pension scheme, aged between 23 and 60, and earning over €20,000 across all of their employments, will be automatically enrolled. Exempt employment is defined in chapter 2 of the Act.
• Auto Enrolment will commence in 2025 on a gradual phased basis over a 10 year period. Initially employer and employee contributions starting at 1.5% and increasing every three years by 1.5% until they eventually reach 6% by Year 10 (2034).
• Matching contributions will be made by employers to those contributions made by employees up to a maximum of €80,000 of earnings.
• The State will also top up contributions by €1 for every €3 saved by the employee, up to a maximum of €80,000 of earnings. This is in addition to the €3 that will also be contributed by the employer.
• The system will be voluntary but will operate on an ‘opt-out’ rather than an ‘opt-in’ basis.
• Eligible employees will be automatically enrolled/ ‘opted-in’ but will have the choice after six months’ participation to opt-out or suspend participation.
• Participants will have a range of four retirement savings strategies to choose from. Those who do not express a preference for any strategy will be enrolled into the default strategy.
• Workers moving between jobs will not have to change pension schemes or join a new scheme. They will remain members of the Auto Enrolment scheme on a ‘pot-follows the member’ basis. In addition, people with multiple employments will have their pension savings consolidated into one AE ‘pension pot.’

A copy of The Automatic Enrolment Retirement Savings System Act 2024 is available here. We will keep Members updated of the provision of Regulations for any matter referred to under the Act.