SUMMER 2024

LEGISLATIVE UPDATE

1. Changes to collective redundancies- Insolvent Employers

With effect from Monday 1 July 2024, a number of important changes will be coming in relating to collective redundancies.

The Protection of Employment Act 1977, which governs collective redundancy rules, has been amended to:

1. Remove the exemption from notification requirements in respect of collective redundancies caused by the employer’s insolvency. This means all collective redundancies are subject to a 30-day notification period before they take effect, including where the employer is insolvent.

2. Provide that employees may seek redress from the Workplace Relations Commission (WRC) where their employer makes them redundant before the 30-day notification period finishes. This change applies to all collective redundancies, not just those precipitated by insolvency. This is in addition to employees’ existing right to make a complaint to the WRC should their employer fail to consult with or provide information to their representatives.

3. Align the 1977 Act with case law of the Court of Justice of the European Union (CJEU), by explicitly providing that the employer’s obligations must also be complied with by a liquidator or similar appointee, where they are managing the collective redundancy process in an insolvency situation.

4. Provide that, where a liquidator or similar appointee is managing the collective redundancy process in an insolvency situation and they fail to comply with their duties under the Act, the WRC may prosecute them, with a maximum fine on conviction of €5,000.

5. Update the methods by which employers can notify the Minister of proposed collective redundancies.

For more information on the changes being introduced by the Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 see here.

2. Increase in rate of Pay for Contract Cleaning Industry

The Employment Regulation (Amendment) Order (Contract Cleaning Industry Joint Labour Committee) 2024 (ERO) came into effect on 1 June 2024 providing for an increase in the hourly rate of pay for the contract cleaning industry.

The Employment Regulation Order (ERO) fixes the statutory minimum rates of pay and other conditions of employment for workers employed in the contract cleaning industry.

As of this date, all workers aged 18 and over in the sector are entitled to a minimum rate of pay of €13.30 per hour.

A full breakdown of the hourly rates of pay are detailed below:

All the terms and conditions from the previous Employment Regulation Order (ERO) are maintained. For more information see Contract Cleaning – Workplace Relations Commission.

3. Review of the Code of Practice on access to Part-Time Working

The Workplace Relations Commission has launched a review of the Code of Practice on access to Part-Time work (SI No. 8 of 2006).

The Code of Practice, which was introduced in 2006, sets out best practices for employers when considering to a request by workers to transfer from part-time to full-time work or to increase their working time should the opportunity arise.

The introduction of a Code of Practice on access to part-time working accords with the principle of minimising the potential for indirect discrimination in relation to part-time working and introduces positive measures to eliminate obstacles and barriers and encourage greater participation in employment on a number of grounds, as set down in the Employment Equality Acts 1998-2004.

The Code seeks to:

• Promote the development of policies and procedures to assist employers, employees, and their representatives, as appropriate, to improve access to part-time work for those employees who wish to work on a part-time basis;
• Promote discussion and encourage employers, employees, and their representatives, as appropriate, to consider part-time work and to address any barriers that may exist;
• Stimulate employers – where consistent with business requirements – to provide wider access to part-time work options;
• Provide a framework and practical guidance on procedures for accessing part-time work;
• Inform those who are interested in part-time work.

New pieces of legislation have been introduced since the Code was published which may impact on its effectiveness for certain employers and employees, such as the introduction of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 as well as the introduction of banded hours of work, provided for by the Employment (Miscellaneous Provisions) Act 2018.

The WRC is inviting submissions from interested parties on the matter to be sent to it on or before 17:00 on Friday, 12 July 2024. There is no set format specified for stakeholders who wish to make a submission to the WRC.

The Association will submit a response to the WRC on behalf of Members. Any Member that wishes to feed into the review should send their submission to kathryn@employersfederation.org by Wednesday 10^th July 2024 to allow sufficient time to formulate a detailed response.  Members are encouraged to detail the points they wish to raise about the Code of Practice and how they have found its operation in the workplace.

For more information on the review of the Code of Practice please see here.

4. The Future of Work- A Review of Labour Market and Workplace Relations Challenges.

The WRC commissioned the University of Limerick (UL), to carry out a piece of research on Work and Employment Transformations in Ireland: A Review of Labour Market and Workplace Relations Challenges. The WRC commissioned the University of Limerick, to carry out a piece of research on Work and Employment Transformations in Ireland: A Review of Labour Market and Workplace Relations Challenges.

The report examines how four key developments – inflation, recruitment and retention challenges, technology (with a particular focus on remote work and artificial intelligence), and climate change – are impacting work and workplace relations in Ireland.

A summary of some of the key interview findings are set out below:

Inflation

Inflation was viewed as having greater priority for employers and workers given its immediate impacts on business costs, incomes, and related, wage negotiations. Inflation was inextricably linked to recruitment and retention challenges with significant pay rises for certain roles with acute labour shortages.

Interviewees expected inflation to be an ongoing issue for the medium term with some business closures and weakened economic growth, but they also expected strong labour market activity in terms of the recruitment intentions of employers.

Recruitment and retention

Interviewees reported a prevailing tight labour market in Ireland with some sectors such as hospitality having particularly severe difficulties recruiting workers. Skills gaps were evident across all sectors but in general, interviewees noted a need for developing digital, interpersonal, and managerial skills. The availability and costs of housing, childcare costs, and cost of living crisis were identified as key challenges in recruiting and retaining workers from within Ireland and from abroad.

International recruitment was identified as a means of addressing labour and skills shortages with the work permit schemes helping to some extent – although concerns were raised whereby certain jobs found it difficult to access the scheme as well as high fees for work permits and inability to bring families to Ireland.

There were concerns about the participation rate of persons with a disability and men over the age of 50.

Technology

There were mixed views on the predicted impact of digitalisation and automation on job quantity. Some interviewees noted that there was little evidence of job loss to date whilst others felt that there was a real threat to jobs. The potential threat to jobs needed to be ameliorated by an emphasis on upskilling/reskilling. Technology and automation are viewed as having the potential to contribute to safer working environments, smarter ways of working, and increased leisure time for workers.

Remote/hybrid working was cited as presenting many opportunities and challenges. There was a concern about the potential for a ‘work life balance privilege gap’ where those working under hybrid arrangements are more likely to have flexible working compared to those who do not work remotely.  Of all the forms of technological change discussed, AI was most frequently cited as likely having the greatest consequences for work.

Issues around GDPR and the potential monitoring of employees’ work raised questions about the suitability of existing legislation for the workplace relations implications of technological change.

Climate change

Interviewees recognised the importance of climate for societies and economies, and that the climate crisis will impact the labour market, jobs, and employment but strategic planning and action have tended to be limited.

There is uncertainty over the wider workplace relations impacts of climate change, and these may take 10-20 years to emerge. Significant changes to the existence and nature of jobs because of climate change is expected and more upskilling and re-skilling is necessary, particularly building-related skills.

Overall, there was no sense that significant conflict will arise from climate change, or from mitigation and adaptation measures, if there is adequate planning for job changes. Conflict is as likely between employers/workers and the state as between workers and employers with the state expected to play a significant role in managing the consequences of climate change.

The full Report can be accessed here.

CASE LAW UPDATE

1. An Employee v A Service Provider to Financial Services

Sick Leave Act 2022

Facts

The complainant employee worked as a customer service adviser at an unidentified service provider to the financial services sector. He was issued with a verbal warning in September 2023 following “a number of unplanned absences” from work that year. The employee stated that his absences were because either he or members of his family were unwell. The employee did not have an underlying medical condition.

The employee said he became “very sick with flu-like symptoms” at work on October 12^th 2023, and went out sick for a day and a half, submitting a doctor’s note to his employer and availing of his statutory sick pay rights under the Act.

After this he was disciplined by the employer and received a written warning based on his level which was upheld in an internal appeal.

The employee asserted that he had been penalised for “exercising his rights under the Act” when his employer issued the warning and that in accordance with the legislation he was entitled to be treated ‘as if he had not been absent’ during a period of statutory sick leave.

The employers’ position was that the worker had been absent six times in ten months, totalling 11.5 days, which it regarded as a “significantly high” level of absence and “beyond what is deemed as an acceptable level of attendance.”

It told the WRC it was “entitled to discipline” the employee, adding that “bad timekeeping” and “unauthorised absence” were listed as misconduct in its disciplinary policies. The company said that it had at all times followed the fair procedures and the relevant statutory code, and denied any breach of the Sick Leave Act.

Decision

The Adjudication Officer (AO)found that the warning issued to the employee in November 2023 was directly “linked to the complainants certified sick leave” on 12^th October 2023 and as such was a breach of the Act. Whilst she accepted the company had followed its attendance and disciplinary policy, she found that by taking into account the worker’s absence on statutory sick leave when it imposed the written warning, the employer was in breach of the legislation.

The employee was awarded 3 weeks’ pay, in excess of €1400, for breach of the Sick Leave Act 2024.

Learning points for employers

This decision will come as a surprise to many employers as it suggests employers will not be able to take action against an employee, or take into account, any absence which occurs during a period of statutory sick leave where the employee is in receipt of statutory sick pay.

When considering the intention of the legislation, we believe that the decision Is wrong and expect that an appeal will be lodged to the Labour Court by the employer.

The WRC decision occurs against the backdrop of doubts as to whether the scheme will be extended as Initially planned. When the scheme was announced in 2022 then-Tánaiste Leo Varadkar said the statutory scheme would expand a worker’s basic entitlement to seven days’ leave in 2025 and 10 days in 2026 – but the further expansion of the scheme is now in doubt.

In answer to questions in the Dáil, Minister of State at the Department of Enterprise, Emer Higgins TD, stated that any further expansion of the scheme in 2025 would be subject to an economic assessment highlighting that the business community have raised concerns about the overall impact of increased labour regulation on the cost of doing business.

SPRING 2024

 LEGISLATIVE UPDATES

1. Publication of Automatic Enrolment Retirements Savings System Bill 2024

Further to our previous updates, we can confirm that on 5^th April 2024, the Government published the long-awaited Automatic Enrolment Retirement Savings System Bill 2024 (AE Bill).

The publication of the landmark legislation sets out the framework for the introduction of a pensions auto enrolment savings systems in Ireland.

Under Auto-Enrolment (AE), employees will have access to a workplace pension retirement scheme which is co-funded by their employer and the State.

Announcing the publication of the Bill, Minister Humphreys stated that the introduction of the legislation ‘represents one of the biggest reforms of the pension system in the history of the State’.

It is intended that the first ‘in scope’ workers, thought to be approximately 800,000 employees, will be enrolled in January 2025, and a new public body, the National Automatic Enrolment Retirement Savings Authority (NAERA), will be established to administer the system.

‘In scope’ employees will be those who are aged between 23 and 60, whose gross pay exceeds €20,000 and who are not already in “exempt employment”. Exempt employment is broadly defined as when an employee participates in a pension scheme or personal retirement savings account (PRSA). At present there is no minimum threshold on employee or employer contributions for employment to be considered as “exempt employment”.

Employers who fail to meet their obligations in respect if auto enrolment will be subject to penalties and potential prosecution.

We have summarised below, the key details of the draft Bill which is now making its way through the various stages of the Oireachtas.

• AE 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.
• Expected enrolment date in January 2025 (subject to legislative process being completed) and will be phased in over a 10-year period (see below)
• Contributions will increase on a gradual incremental basis as set out in the table below.

• The AE authority will notify employers of any ‘in scope’ employees via payroll notification of contributions to the AE system. Upon receiving such notification employers must:
• Calculate, deduct and pay employee contributions to the AE authority
• Calculate and pay employer contributions to the AE
• Employees will be eligible to ‘opt out’ in months 7 & 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’s contributions

• 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 employees leaves employment, their pension pot, and enrolment in the scheme is unaffected, and will continue in their new employment.

The government has produced guidance for employees /employers on auto enrolment, including a FAQs section, which can be accessed here.

The draft Bill is also available to view by visiting here.

2. Publication of the General Scheme of the Employment (Restriction of Certain Mandatory Retirement Ages) Bill (the General Scheme)

The government has recently published the General Scheme of the Employment (Restriction of Certain Mandatory Retirement Ages) Bill (the General Scheme). This Bill proposes to introduce a ban on employer enforced mandatory retirement ages that are below the state pension age of 66, where the employee does not consent.

Under the Bill, as currently drafted, an employee whose employer has a mandatory retirement age in operation which is earlier than the state pensionable age:

• who wishes to remain in employment until that date,
• can make written notification to their employer that they do not consent to the operation of the employer’s mandatory retirement age.
• Employee must provide at least 3 months written notice.
• If the employer proceeds to dismiss, the employee will be able to seek redress under the Unfair Dismissals Act or the Employment Equality Acts, but not both.

Currently in Ireland there is no statutory mandatory retirement age for private sector employers. Any provision for a mandatory retirement age in private sector should be set out in the employees’ contract of employment. Additionally, any employer who wants to enforce on mandatory retirement age must demonstrate that it is a proportionate means of achieving a legitimate business aim i.e. objectively justify it. If the employer is unable to objectively justify it, then any age-related discrimination will be successful.

The Workplace Relations Commission (WRC) Code of Practice on Longer Working  (the Code) sets out best industrial relations practice in managing engagement between employers and employees in the run up to a mandatory retirement age. It also sets out a number of potential legitimate aims for having a mandatory retirement age in the first place, these include:

• intergenerational fairness (allowing younger workers to progress);
• motivation and dynamism through the increased prospect of promotion;
• health and safety concerns (generally in more safety critical occupations).

Decisions from the WRC and Labour Court in recent years have highlighted the difficulties for employers in operating mandatory retirement ages. However, in the recent case of Deasy v Daughters of Charity Child and Family Service (see below) the Workplace Relations Commission found that the employer could successfully rely on a mandatory retirement age within their workplace.

If you currently have a mandatory retirement age in place which is below the state pension age, you should carefully consider if you can continue to justify retaining it. In our view this may be difficult to do without a particularly strong business case. If you have any concerns about your ability to justify it, then you should review and amend your policy to increase your mandatory retirement age in line with the statutory pension age. Having a mandatory retirement age of 66 or above will avoid the inherent uncertainty in dealing with notices of objection and will be easier to justify in the event of a challenge.

3. IN FOCUS- The implementation on the Adequate Minimum Wages Directive.

Recap

On 14^th September 2022 the European Parliament voted to approve a directive on adequate minimum wages across member states. The Directive was subsequently published on 19^thOctober 2022 and must be transposed by member states by 15^th November 2024.

What does the Directive require Member States to do?

The Directive aims to improve the conditions of all workers in the EU to promote ‘economic and social progress’ ensuring that all workers have protection of a guaranteed minimum wage. Interestingly however the directive does not require Member States to have a minimum rate of pay for workers.

The Directive has 3 sets of measures:

1. To increase the number of workers who are covered by collective bargaining on wages.
2. For those countries with statutory minimum wages (which includes Ireland) they must put in place clear and stable criteria for minimum wage setting, indicative reference values to guide the assessment of adequacy and to involve social partners in the regular and timely updates of minimum wages.
3. To provide for improved enforcement and monitoring of the minimum wage protection established in each country. The Directive introduced reporting by Member states on its minimum wage protection data to the European Commission.

The Directive does not require member states who currently do not have national minimum rates of pay to introduce same, nor does it intend to set a figure for what minimum wage should be.

The Directive seeks to promote and strengthen collective bargaining on wages. Where less than 80% of workers are covered by collective bargaining, member states are tasked to establish an action plan to increase the percentage in conjunction with social partners (i.e. trade unions and business organisations). This action plan must set out a clear timeline as well as concrete measures to increase the rate of collective bargaining coverage and must be regularly reviewed and updated where necessary.

Currently, there is no statutory recognition process in ROI. Recital 25 of the Directive is clear however thar “the threshold of 80% of collective bargaining coverage should only be construed as indicator triggering the obligation to establish an action plan” (our highlighting) and not a mandatory threshold.

What impact will this have on employers?

It is unclear at present what legislative changes, if any, are required to give effect to the Directive and what immediate impact this will have on employers.  We expect that employers will see an increase in collective bargaining in their workplaces in the years ahead.

There has been ongoing dialogue on the issue of collective bargaining through the Labour employer Economic Forum (LEEF). LEEF have made a number of recommendations including funds being made available from the National Training fund to both employers and trade unions for training /upskilling in collective bargaining.

Ireland also has a national minimum wage in place, governed by the National Minimum Wage Act 2000. The Low Pay Commission (the “LPC”) is the consultative body tasked with making recommendations to the Minister regarding a national minimum hourly rate of pay. Each year the LPC examines the national minimum hourly rate of pay and makes a recommendation to the Minister. This recommendation must have regard to various factors including: changes in earnings; income distribution; the level of unemployment and productivity; the need for job creation; the likely effect that any proposed order will have on levels of employment; the cost of living and; national competitiveness. A detailed report accompanies each recommendation. It is expected that the current arrangement in ROI will satisfy the obligations under the Directive.

On 20^th March 2024, Simon Coveney, Minister for Enterprise, Trade and Employment was asked in the Dail about how the Directive will be transposed into Irish law. He confirmed that officials were obtaining legal advice to assess the legal obligations under the directive as well as transposition options.

We will keep members informed on any updates from Government as and when they are published.

Policy Update

Members are aware that the WRC published the Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working and we updated our suite of specimen documentation to include a Flexible Working Policy and Remote Working Policy. These have been emailed to Members on our mailing list and are also available in the ROI Members area of our website.

CASE LAW UPDATE

1. Martina Deasy v Daughters of Charity Child and Family Service ADJ-00045740

Age Discrimination, employer enforced mandatory retirement age.

Facts 

Ms Deasy (D) was employed by the Respondent as a Family Centre Manager. Her contract of employment stated that a mandatory retirement age of 66 applied, albeit the Respondent’s policy stated that the retirement age was in fact 65.

Prior to her 66^th birthday, D asked for her employment to be extended for a year. The Respondent refused the request on the basis that no colleague had worked beyond this age. D complained that no reasons were provided for the refusal and submitted a grievance about applying the mandatory retirement age. The respondent did not uphold her complaints. D subsequently complained to the WRC for age discrimination arising from the employer’s decision to terminate her contract of employment when she reached 66.

At hearing in the WRC, D stated that she had been discriminated against by the employer on grounds of age as it could not demonstrate that the operation of its mandatory retirement age was a proportionate means of achieving a legitimate aim.  The Respondent admitted at hearing that a very limited number of staff remained in employment beyond 66 years of age. The Respondent’s case was that those were limited and unique situations as progression or promotion to those roles were not possible. This meant that those unique situations did not affect its aim of careers progression for younger employees.

The Respondent relied on a number of grounds to justify the operation of its mandatory retirement which included:

• intergenerational fairness – to allow succession and promotional opportunities;
• an objective of increasing staff motivation and dynamism through the increased prospect of promotion; and
• assisting staff retention and creating a balanced age structure across the organisation.

The Respondent gave evidence that there was an increase in staff turnover, which they argued was mainly due to lack of opportunity. The Respondent stated that in 2023 it lost three high potential employees due to lack of progression or promotional opportunities.

Decision

The Adjudication Officer found the Respondent did not communicate their legitimate aims to staff that underpinned their retirement policy. However, there was sufficient evidence to demonstrate that the Respondent was taking measures to help retain staff and their mandatory retirement sought to promote those aims. The WRC found that D’s retirement was objectively and reasonably justified by these legitimate aims and the means of achieving those aims were proportionate, appropriate, and necessary.

Learning Points for Employers

Whilst this latest decision on the issue of mandatory retirement ages will be welcomed by employers, it should be read with caution.  Generally, decisions from the WRC and Labour Court demonstrate that employers must be able to clearly and evidentially demonstrate the need for a mandatory retirement age and that it is consistently implemented in the workplace.

1.       ADJ-00042625 – Wim Naude v University College Cork

Unfair Dismissal, Remote Working

Facts

Mr Naude (N) was a Dutch economics scholar and was hired as a Professor of Economics by University College Cork (‘UCC’) during the Covid-19 pandemic. Given the pandemic N initially taught fully remotely while residing in the Netherlands.

Due to difficulties obtaining appropriate accommodation for himself and his family, in the 2021/2022 academic year, N only attended UCC on campus for one week each month. N resided in the Netherlands the remainder of the time.

UCC required the professor to be based in Cork and had made this clear at the time of his appointment. N wrote to UCC on 1 August 2022 suggesting two options in respect of his work for the upcoming academic year 2022/2023:

1. Continuation of his full workload in the ‘blended format’ he had been working.
2. 33% reduction of hours (unpaid leave).

In response to his proposal, and without any warning or further discussion from anyone in UCC, N received an email from UCC’s HR Director dismissing him with 3 months pay in lieu of notice. UCC alleged that his contract was ‘frustrated’ by his actions and was now ‘null and void’.

N brought a claim of unfair dismissal to the WRC.

Decision

N argued that he was unfairly dismissed, without warning or adherence to any internal procedures, fair process, or the principles of natural justice. He reiterated his intention to move to Cork, but the accommodation difficulties prevented him from doing so. N further added that he believed that UCC failed to adequately support him with his relocation.

UCC in their response and evidence stated that N had delayed his relocation and that 20 months into his employment, and that his proposal regarding ‘blended’ working was not acceptable as it did not meet the university/student’s needs.  UCC asserted that N had fundamentally breached his contract of employment by his failure to relocate to Cork and as such he contributed entirely to his dismissal which was, in any event, fair and reasonable.

Decision

Unsurprisingly, the Adjudication Officer (AO) found that N had been unfairly dismissed in what she described as ‘astonishing’ acts on behalf of the employer. AO found it bizarre that the respondent continued to argue that the dismissal was fair at hearing despite following no procedure, not adhering to the legislative framework or the principles of natural justice.

In her decision, the AO reiterated that if an employee is at risk of any disciplinary sanction, including dismissal, then they are entitled to the benefit of fair procedures and natural justice. These are the minimum standards provided in Code of Practice on Grievance and Disciplinary Procedures, with a right of appeal.

In recognition of the impact of UCC actions, AO directed UCC pay him the maximum monetary awards provided for by the Unfair Dismissals Act. In directing this, AO took into account N’s financial losses, his loss of the ‘Professor’ title and his inability to gain consultancy as he was not attached to a state university. As such N received an award of €300,000.

Learning point for employers

It is critical that employers adhere to the Unfair Dismissals Act, the WRC Code of Practice on Grievance and Disciplinary Procedures as well as internal procedures when dismissing an employee. Where the dismissal is because of alleged misconduct, employers must ensure that the principles of fair process and natural justice are also not infringed. Employees must be provided with written notice of the allegation prompting the employer to consider dismissing or taking action against them and have the opportunity to respond to those concerns before a decision is made. The employee should also be afforded the right to appeal the decision.

The timing of this decision is particularly apt following the introduction of The Statutory right to request flexible and/or remote working in April 2024 which will undoubtedly see a rise in requests by employees to work flexibly/remotely, particularly as many employers continue to experience difficulties in getting employees back onto the office post covid.

The WRC Code of Practice sets out a number of steps that an employer must take when considering an employee’s request. Whilst an employer is not obliged to grant a request, failure to follow the code may be taken into account as evidence.

The Introduction of Flexible Working & Right to Request Remote Working & Code of Practice on Handling Requests for Flexible & Remote Working

We write further to our ongoing updates in respect of the implementation of the outstanding aspects of the Work Life Balance Act and Miscellaneous Provisions Act 2023. On Thursday 7^th March 2024, Minister for Enterprise Trade and Employment, Simon Coveney TD confirmed that the eagerly awaited final instalments of the Work Life Balance and Miscellaneous Provisions Act 2023 (i.e. the right to request flexible working and the right to request remote working) were introduced.  On the same date, Minister Coveney, also confirmed that, in consultation with Minister O’Gorman, he had also approved and published the WRC Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working.

Minister Coveney stated:

“I am pleased to announce that the right to request remote working arrangements is now available to all employees. Remote working became a new norm for many employers and employees in the wake of Covid-19 and it is clear it is here to stay. This Government committed to facilitating and supporting remote working, to reduce our time commuting and to enable families to spend more time together.

The approval and publication of the Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working will support employees to avail of their rights and employers to operate under the Act.”

The Right to Request Flexible Working

The right to request Flexible Working applies to parents of children under 12 year of age (16 if the child as a disability) and those with caring responsibilities. Although an employee can make a request from day 1 of employment, the arrangement cannot commence until the employee has 6-month’s service.  The right to request flexible working for parents and carers transposes Article 9 of the EU Work Life Balance Directive. Ireland has now fully transposed the Directive.

All employees will have the right to request remote working but there is no obligation to approve this request.

The Right to Request Remote Working

 As with Flexible Working requests, employees can make a Remote Working request from their first day of employment but must have 6 month’s employment before any arrangement starts. Any request must be made at least 8 weeks before the date the employee wants to start the proposed arrangement. Employers must respond to the request within 4 weeks of receiving it, with the option to extend by a further 4 weeks if required.

The Code of Practice

The Code of Practice was developed by the Workplace Relations Commission (WRC), in consultation with trade unions and employer representative bodies. Employers Federation provided a response to the consultation on behalf of our members. The Code provides guidance to employers on how to manage a request and what factors they should consider when deciding whether to grant the request or not. It is not an offence to fail to follow the Code, but a failure to do so is admissible in evidence before the WRC in any employment rights claim.

The Code provides guidance on how to handle a range of situations which may arise when considering a request as well as those that may occur when a request has been granted. Very helpfully, the Code also includes templates documents and guidance on implementing a work life balance policy.

The Code stipulates the time frame that Employers must comply with when considering request for Flexible Working or Remote Working is within 4 weeks of receiving the request, with the option to extend by a further 4 weeks if required.

When responding to the request for Flexible Working or Remote Working , the Employer must either:

• Approve the request and include an agreement prepared and signed by the employer and employee which sets out the details of the agreed arrangement, the start date and duration, of the arrangement, or;
• Provide notice in writing informing the employee that the request has been refused and the reasons for the refusal, or;
• Provide notice in writing informing the employee that more time is needed to assess the request and set out the length of the extension.

Employers and employees are obliged to have regard to the Code when considering applications for remote working arrangements. Employers must also have regard to the Code if terminating a flexible working arrangement. Employees will be able to refer a dispute to the WRC where an employer fails to fulfil their obligations under the Act and the Code will be admissible in evidence in proceedings before a court, the Labour Court or the WRC.

Where a complaint is made about the right to request Remote Working or Flexible Working, the Code confirms that the WRC will not consider the merits of any application but rather the process that the employer has followed, or failed to follow, when reaching its decision.

The maximum award for a breach of the right to request Remote Working is 4 weeks’ pay and for a breach of the right to request Flexible Working is 20 weeks’ pay. Employers must keep specific records of Remote Working and Flexible Working arrangements taken by employees for up to 3 years or risk a fine of up to €2,500.

We will carefully consider the contents of the Code, including the specimen documentation, before finalising our specimen Flexible Working Policy.

Our latest ROI circular is available for download using the link below.

January 2024 – ROI Issued

Our Annual Employment Law & HR Conference was held at the Crowne Plaza on 27 September 2023.

This year our Conference was fully booked and we were delighted to be joined by so many managers and HR professionals from both Member and non-Member organisations.

Our Conference is our flagship event of the year and it’s a great opportunity for networking amongst the various businesses and to catch-up on a personal level.

Importantly, it is also a day full of learning with lots of insights and practical take aways.

Karen Moore, Head of Training (NI & ROI) welcomed all delegates and opened the day.

The morning session then started with Kathryn O’Lone, Head of ROI & Business Improvement leading us through the most topical cases of the year and providing key learnings for employers. Amongst the variety of cases covered, Kathryn looked at the balancing of competing beliefs in the workplace and the latest decision around menopause in the workplace.

Next we had a very practical “What if” session from Sara Plower, Employment Lawyer dealing with the complex issues that can arise when managing absence such as ‘When can you withhold sick pay?‘ and ‘What if they refuse to attend OH?’

After the mid-morning break we heard from our three external speakers. Sharon Didrichsen is the Founder and Managing Director of Specialisterne NI, an organisation whose aim is to help neurodivergent people secure and sustain rewarding careers. Sharon provided a real insight into how businesses can unlock the potential of neurodivergent persons.

Sarah McKay, Vice President of Service Delivery at Concentrix followed with ESG, ‘What does it mean?’ identifying the why in ‘Why even do it?’ and provided a practical pathway explaining how a business can develop their ESG strategy.

The Federation was then privileged to be joined by Vice President of OITFET, Maxine Orr who delivered a thoroughly engaging session overviewing of the process of Judicial Mediation in NI. The Vice President was able to give us an insight into how it is working, including up to date statistics and experience of the Tribunal to date.

Lunch provided a further opportunity to network and catch-up.

After lunch, Kathryn O’Lone lead us through a panel session with: Helen McCann, HR Manager at Kyocera AVX UK; Bridgeen Mullin, Head of Employee Relations – Senior Vice President, Fintru; Sharon Didrichsen and Peter Bloch, Managing Director of Employers Federation. The panel shared insights and experiences on issues such as diversity, recruitment, industrial action and Artificial Intelligence.

Karen Moore then led delegates through a practical scenario covering requests for anonymity during a disciplinary process.

This was followed by Lorraine Toolan, Employers Federation Consultant who addressed workplace grievances through the lens of whether the employer’s approach is helping or harming.

Finally Michelle McGinley, Director of Legal and Policy ended the day with a review of the policy and legal developments throughout the last year and a look forward into 2024.

We would like to thank all who attended the day and to the exhibitors that included:
Action Mental Health; Autism NI; AWARE NI; Cedar Foundation; Disability Action Northern Ireland; Employers For Childcare; Inspire Therapeutic & Wellbeing Services; The Labour Relations Agency; Parenting NI Charity; PIPS Suicide Prevention Ireland Charity; Rainbow Charity and; Women in Business NI

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.

ROI Newsletter February & March 2023

LEGISLATION UPDATE

Referendum on Gender Equality in Irish Constitution announced.

 On 8 March 2023, to coincide with International Womans Day, Taoiseach Leo Varadkar announced that there will be a referendum on whether the Irish Constitution should be amended to remove ‘outmoded’ references to ‘women in the home’ with a view to enshrining ‘gender equality.’

Mr Varadkar stated that “For too long, women and girls have carried a disproportionate share of caring responsibilities, been discriminated against at home and in the workplace, objectified or lived in fear of domestic or gender-based violence.”

The referendum was called for by the Citizens’ Assembly on Gender Equality and also the Special Joint Oireachtas Committee on Gender Equality.

The Citizens’ Assembly recommended that Article 40 be amended to refer explicitly to gender equality and non-discrimination.

It also called for Article 41 to reflect that it protects family life “with the protection afforded to the family not limited to the marital family”.

Article 41.2 in the Constitution references that mothers should not, “by economic necessity, be forced to work to the neglect of their duties in the home.” Nearly 95% of the Citizens Assembly members voted for the removal of the reference to women’s work in the home.

Members said it should be replaced with language that is not gender-specific and obliges the State to take reasonable measures to support care within the home and wider community.

The Equality Minister, Roderic O‘Gorman, intends to publish the general scheme of one or more referendum bills by the end of June 2023. The referendum is widely anticipated to be held in November 2023 and will be a key milestone in the pursuit of gender equality, not only in Ireland, but across the world.

Work Life Balance and Miscellaneous Provisions Bill 2022

We have been regularly updating members on the introduction of the Work Life Balance and Miscellaneous Provisions Bill 2022 as it makes its way through the Irish Parliament. Members will be aware that the Bill was widely anticipated to have been introduced in the Autumn of 2022, however further amendments as it made its way through the Seanad have delayed its implementation.

On 1^st March 2023 the Bill passed the final stages in the Seanad. The next, and final, stage of the legislative process, which we expect to be imminent, will see the  Bill being enacted into law.

We will update members when this happens, setting out a detailed breakdown of the Act and the changes that will be introduced.

EU Directive on Minimum Wage

Whilst this EU Directive must be implemented on or before 4 October 2024 it is worth highling this at this juncture given how significantly it will change the collective bargaining landscape in Ireland. The Directive’s purpose is to reduce working poverty and inequality by focusing on improving the adequacy of statutory minimum wages as well as the promotion of collective bargaining.

The minimum wage aspects of the Directive will not impact greatly but the collective bargaining provisions will. Currently in Ireland, unlike the UK, there is no legal right for a trade union to force an Organisation to bargain in the workplace. This will change when this Directive is implemented as it explicitly promotes collective bargaining, recognising that strong and inclusive collective bargaining systems play an important role in ensuring adequate minimum wage protection. The Directive provides that member states with collective bargaining coverage rates of less than 80% must provide a framework of enabling conditions and establish an action plan (reviewed at least every five years) for promoting collective bargaining.  As Ireland collective bargaining coverage rates are less than 80% they will have to provide such a framework.

A high level working group of the social partners was established in early 2021 year (Labour Employer Economic Forum (LEEF)) to review collective bargaining and the industrial relations landscape in Ireland. LEEF produced their report Reports of the LEEF High Level Group on Collective Bargaining in late 2022 which made recommendations including requirement to consult in good faith and a right to bargain. These recommendations may form the platform upon which ROI will be able to comply with this EU Directive. We will keep you updated on developments in this area.

CASE LAW

1.    AER LINGUS SOCIAL ATHLETIC ASSOCIATION v MARY GAVIN

LABOUR COURT 

Age discrimination/mandatory retirement age/objective justification 

Facts

This was an appeal to the Labour Court  against a finding of the WRC that the employee  had been discriminated against on grounds of her age by the employers decision to terminate her employment after she had attained the age of 65.

The complainant reached the normal retirement age of 65, as set out in the Respondents employee handbook,  in March 2019. She requested to remain in work and the Respondent agreed to that request, placing the complainant on a one-year fixed term contract. This was subsequently extended for a further year at the complainant’s request.

In January 2021 the complainant requested for a further occasion for her contract to be extended and the respondent rejected this request. The complainants employment subsequently came to an end on the basis that it was not renewed. The respondent relied on the age demographic of the workforce where the complainant worked and for succession planning it was necessary to implement its mandatory retirement age.

The complainant alleged that the respondent was not consistent in its application of its mandatory retirement age and as such her dismissal was discriminatory, contrary to the employment equality acts. The complainant also alleged that the respondent had not complied with the WRC Code of Practice, whereby , employers are required to have an objective justification for mandatory retirement ages.

Decision

The Labour Court dismissed the Respondent’s appeal and upheld the determination of the Adjudication Office (AO) that the complainant had been dismissed on grounds of her age and that such a dismissal could not be objectively justified.

The Labour Court found that the Respondent’s justification defence was undermined by ‘evidence of inconsistent application’ and ‘ by the absence of any evidence that the means of achieving any such aim is appropriate and necessary’

The Labour Court also highlighted the importance of a mandatory retirement age being identified in employee contracts rather than any other documentation which did not have contractual effect.

The complainant was awarded €30,000 as compensation by the Labour Court, which was deemed to be ‘an appropriately significant level’ having regard to the effect of the dismissal had on her.

Learnings

This decision is a reminder to employers that even where you have a mandatory retirement age, you must ensure that (1) this mandatory age had contractual effect and (2) you can objectively demonstrate that your mandatory age is a proportionate means to a legislate aim. If you do not consistently apply that policy, it undermines the ability to rely on the defence of objective justification. The case also represents a continuing trend of the Courts to scrutinise employer’s arguments and perhaps higher the hurdle for objective justification to be proven compared to the  position 5 years ago.

2.    Thomas Conway v Quick Training ADJ-00037379

Disability Discrimination/Religious discrimination

Facts

The complainant  had registered with the respondent to complete a ‘safe pass’ training course.  The complainant was not permitted to complete a ‘safe pass’ training course on grounds that he would not wear a mask/face covering.

The complainant stated that he had a disability (claustrophobia) and that the decision not to let him complete the training and to remove him from the workplace amounted to discrimination.  The complainant did not provide any medical evidence to the regarding any disability nor had he visited his General Practitioner in approximately 20 years.

The complainant also alleged that he held a belief which meant he should not have to wear a mask.

The Respondent asserted that once the complainant identified that he had an underlying condition (despite no further evidence or information being provided in relation to it) they moved the complainant to another part of the room for better air flow. After this however the complainant became disruptive to the extent that he was removed from the course by the Guardia Siochana on grounds of public health and safety concern.

Findings

The WRC did not uphold the complainant’s allegation that he had been discriminated on grounds of his religious belief by the requirement to wear a mask or being removed from the training course as a result of this. The complainant had provided no evidence of any ‘belief’ that he should not have to wear a mask which amounted to a religious belief.

In respect of the complainant’s complaints of disability discrimination, the Adjudication Officer (AO) was satisfied that, despite not having attended his General practitioner in over 20 years regarding his claustrophobia, it amounted to a disability within the meaning of the legislation. The AO however found that ‘ the complainant has not established that the respondents safety concerns amount to less favourable treatment connected with a discriminatory ground’ .

The Respondent permitted the complainant to remain in the course, despite not wearing a mask, because of his alleged disability. The reason for the complainant’s removal for the course, to which he received a full refund, was not connected to his disability but rather as a result of his disruptive behaviour after the respondent moved in to an area rea of better air flow. Such action was justified by the Respondent.

Learnings

This case is a reminder that there is a legal obligation to put in place reasonable accommodations, such as allowing a person to not wear a face mask or covering, in the workplace when they have a disability. It also re-emphasises the low bar in ROI as to what conditions could constitute a disability.  However, Respondents are not required to put in place accommodations which are not reasonable either for reasons connected to an individual’s disability or for any other reason.

TRAINING & DEVELOPMENT

We want to remind members of our free webinar taking place on Tuesday 14^th March 2023, 12pm-1pm, on the Comparison of Employment laws in NI and ROI.

This one hour, live,  webinar will  highlight the key areas of difference between the jurisdictions and will be of benefit to HR professionals who advise on employment law and HR issues in both ROI and NI.

To register, please contact john@eefni.org providing your name and email address.

We are also running the following events from April – June 2023:

• Wednesday 19^th April 2023 on ‘Conducting Investigation and Disciplinary Procedures in ROI’.
• Tuesday 10^th May 2023 we are also hosting a free hour webinar on ‘Understanding the Practical Complexities of the ROI Bullying Code’
•  Wednesday 14^th June 2023– half day online course on ‘Handling Complaints of Bullying and Harassment in ROI’

A copy of our training and events brochure is attached for ease of reference.

If you want to book on any course please contact info@eefni.org

Event Brochure 2023

Our event brochure for the first half of 2023 can be downloaded here.

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

Early booking is recommended to secure a place.