Workplace Relations Commission Report 2020

The WRC has issued its first annual report which analyses the decisions and recommendations it made between 1 January and 21 December 2020.

Some of the key statistics are:

Number of cases received in the period: 8,103

Number of these cases that were the subject of a published decision in the period: 1,401

Number of specific complaints adjudicated upon: 3,059 (of the remainder, the report confirms some were settled or withdrawn, some were referred to mediation, and some were stayed or adjourned.)

Types of complaints most commonly lodged:

Organisation of Working Time Act: 557 complaints

Unfair Dismissals Acts: 454 complaints

Outcomes

Of the 3,059 complaints the WRC adjudicated upon in 2020:

• 1,237 were successful

• 1,595 were unsuccessful

• 227 were withdrawn

Representation

Of the cases where data was available:

• 47% of parties had representation

• 45% were self-representing

• 8% failed to appear

Awards

Average award under the Employment Equality Acts: €19,753.57

Highest award under the Employment Equality Acts: €117,814

Average award under the Unfair Dismissals Act: €11,472.96

Highest award under the Unfair Dismissals Act: €104,000

Average award under the Organisation of Working Time Act: €1,057.48

Highest award under the Organisation of Working Time Act: €11,180

Protected Disclosures

Complaints brought under the Protected Disclosures Act 2014 had the highest rate of success, however only a small number proceeded to adjudication. Of the 17 complaints heard, 14 were successful and monetary awards were only made in 3. Whilst the maximum award can be up to 5 years pay, the awards in 2020 were low with the highest €7,500.  Whether the new Act (once implemented) increases complaints is yet to be seen.

We also wait to see whether the recent changes in WRC proceedings, in particular the hearing of claims in public and the publication of party names in WRC decisions, will have an impact on hearing statistics.

New Codes of Practice on Equal Pay and Workplace Harassment

On 9 March 2022, the Irish Human Rights and Equality Commission published two new codes of practice for employers:

• the Code of Practice on Sexual Harassment and Harassment at Work (the Harassment Code) and
• the Code of Practice on Equal Pay (the Equal Pay Code).

Whilst the Codes are not legally binding, they are admissible in evidence in proceedings, including before the WRC and the Labour Court. Employers are therefore strongly advised to ensure compliance with the Codes.

The Harassment Code

The Harassment Code does not place any new obligations on employers, nor does it make any changes to the law.

It does however introduce a new concept of a “champion” – a senior level employee outside the HR structure to act as an independent voice advocating for a diverse workplace culture that is free from harassment.

In more familiar territory, the Code summarises the legal position relating to harassment and sexual harassment including best practice steps to combat such behaviour. It emphasises the need for employers to have effective policies and procedures in place and encourages employers to implement relevant and up-to-date training (including refresher training.) The Code also provides examples of how employers should monitor policies to track their effectiveness, such as by conducting staff surveys, anonymised questionnaires and discussion at training courses.

The Code highlights that individuals with disabilities, those with precarious employment contracts, new workers and immigrant workers, are particularly vulnerable to sexual harassment and harassment. Additional measures may be required to ensure a safe place of work for employees in these categories.

We recommend employers check their current Dignity at Work policies for compliance as a well-drafted policy may already comply with the Code. Employers should also review their Dignity at Work training, specifically whether refresher training needs to be rolled out to all employees.

The Equal Pay Code

Again, the Equal Pay Code does not make any changes to the law. It does however include a set of principles, guidelines and recommendations for employers to refer to when revising remuneration practices and policies.

The Code reminds employers that while the phrase “equal pay” is most commonly used, it includes not just pay but also allowances, bonuses and other non-cash benefits.

The Code recommends employers incorporate a job evaluation model as the most effective method of eliminating pay inequality. A detailed review process is set out in the Code and employers are encouraged to include employee participation at all stages of any review or change to remuneration practices.

Employers are reminded that proper processes should be in place for employees to raise concerns regarding pay inequality and discrimination, including both informal and formal avenues of resolution.

Where a pay equality issue has been identified, for example, following a successful claim, the Code sets out a number of recommended strategies and measures that can be introduced to combat future issues.

Case law update

Rejection of “banter” defence

The WRC recently upheld a complaint of racial harassment and awarded the Complainant, a man of Latin American descent, €12,500. The Complainant worked for the Respondent for 1 day during which time his manager referred to him as “Chico.”

At the WRC hearing the manager apologised for the use of the term and stated he had not intended to cause offence.

The legal position in respect of harassment in ROI mirrors Northern Ireland as it is irrelevant that the harasser did not mean to cause harm or offence; the submission that this was mere “banter” was rejected by the WRC.

This case is a further reminder of the need for employers to take steps to prevent discriminatory conduct: this is normally via a combination of a well-drafted and communicated dignity at work policy; and regular training and awareness raising.

Waiver/compromise agreements

In Northern Ireland the conditions regulating compromise agreements are set out in statute and unless they are strictly adhered to, such an agreement will be invalid. One of the main requirements is that the employee receives independent legal advice as to the effect of the agreement on their ability to bring a claim. The legal adviser must complete a declaration/certificate to confirm they have independently advised the employee.

There is no statutory regime in ROI governing these types of agreements. The conditions generally required for the agreement to be enforceable are that:

• the agreement is in writing;
• it is signed by the employee;
• the claims being compromised are clearly set out; and
• the employee has taken independent expert advice (however there is no obligation for the adviser to complete a declaration/certificate to confirm they have provided the advice.)

In the recent High Court case Philomena Hennessy v Ladbrooks Payments (Ireland) Ltd the court considered the validity of a waiver agreement. In this case the Plaintiff signed a compromise agreement with the Defendant but subsequently lodged a claim.

The Defendant sought to dismiss the claim at an early stage via an Interlocutory Injunction. The Defendant relied on the terms of the compromise agreement that included a statement the Plaintiff had received independent legal advice prior to signing. The Plaintiff however stated she was under pressure to sign the document, and she had not in fact taken any legal advice as she had not been advised to do so.

The High Court rejected the injunction request and found the issues in relation to the agreement should be dealt with at the full hearing. This matter does however highlight the extreme care that employers need to take when entering into compromise agreements in ROI. Whilst the law does not require an employee or their adviser to sign a statement that they have received/provided independent legal advice, we strongly recommend employers take steps to confirm that independent legal advice has been taken; one of the best ways of achieving this may be to make a contribution to the legal fees (and a receipt from the adviser) as is the practice in NI.

The Protected Disclosures (Amendment) Bill 2022

The Protected Disclosures (Amendment Bill was finally published on 9 February 2022.

The purpose of the Bill is to implement the EU Whistleblowing Directive and to amend the existing legislation on protected disclosures (the Protected Disclosures Act 2014.)

It is important to note that the final text of the Bill will not be known until it completes the legislative process. However the publication of the Bill does provide much of the detail of what will shortly become law.

Some of the key parts of the Bill are as follows:

• The Bill requires employers to establish internal reporting channels for workers who wish to report a breach. At this stage it will only apply to public bodies, employers in certain prescribed areas, and private employers who employ 250 or more employees. Private employers with between 50 and 249 employees will not be obliged to establish internal reporting procedures until 17 December 2023;

• These internal reporting procedures must be designed and operated in a way that ensures the confidentiality of the person making the disclosure and any third party mentioned in their report;

• Employees will be able to make a disclosure in writing, orally, or both;

• Unless a disclosure is minor enough not to warrant a formal process, the report must be acknowledged in writing within 7 days;

• The disclosure must be “diligently followed up” within 3 months;

• Feedback must be provided within 3 months (or 6 months in duly justified cases) to the worker who made the disclosure. The feedback must include the actions proposed or taken as follow-up and the grounds for this;

• Employers will be required to make and retain records of any protected disclosures. The Bill also requires employers to offer the reporting person the opportunity to check, rectify, and agree the record of their report where it has been made orally or at a meeting.

The statutory guidance for handling protected disclosures will be overhauled when the Bill is enacted and once this guidance is published employers should update their existing Whistleblowing Policy. The Bill also provides for the establishment of a new Office of the Protected Disclosures Commissioner.

In terms of claims and liabilities, the Bill proposes to reverse the burden of proof where an individual alleges they have been penalised for making a protected disclosure. In practice this will mean the employer must prove any act of penalisation did not occur because the person made a protected disclosure. Workers will also be able to seek interim relief for penalisation other than dismissal. Where any criminal offence is committed by an employer under the Bill it provides for very substantial fines and up to 2 years imprisonment. 

Case law

Ray Walsh v Econocom Digital Limited

This is a case where an employee was made redundant as a result of the closure of the sales operation of its Irish entity. Whilst the WRC found the Complainant’s role was redundant, he was awarded €120,000 in compensation as the manner in which the redundancy process was conducted rendered the dismissal unfair.

The complainant was invited to a meeting with no forewarning of the subject matter at which he was told his job was redundant.

The WRC described this as ‘disrespectful’ and focussed on the manner in which his employment was terminated. This included the employers failure to consult him about the proposed redundancy. The employer argued a consultation procedure would have been futile, but the WRC pointed out that they could not have known what alternatives may have emerged from a discussion with the Complainant and that, where no alternatives to redundancy can be identified, consultation should address the redundancy terms on offer.

The Respondent was found to have failed to follow a fair procedure and the dismissal therefore was unfair. This case demonstrates the need to consult with employees in all redundancy situations even if the business or a department is closing down entirely.

Ian Nagle v Premier Auto Parts Ltd

This is another recently reported WRC decision arising from a redundancy dismissal.  Again, there was no dispute that a genuine redundancy situation had arisen. The question was whether the Respondent had fairly applied reasonable and objective selection criteria.

The Complainant was selected on the sole criteria of his high salary. The WRC referred to an earlier Labour Court decision where the Court held “the duty of a Respondent in a valid redundancy situation may involve locating alternative work within the organisation even if this involves dismissing another employee with shorter service.”

In the present case the Director who carried out the redundancy process stated he did not consider it plausible to consider the redundancy of other employees. On this basis the WRC found no fair selection process had taken place and that the consultation with the Complainant “masked an already pre-determined decision.”

This case is a reminder that whilst it will not necessarily be unfair not to “bump” an employee in a redundancy process, bumping should be considered as part of a fair process.

Right to Request Remote Working

On 28 January 2022 details were published of a new law which will give employees the right to request remote working.

The Tánaiste said:
“Up until now, remote and home working has been imposed on a lot of people due to the public health restrictions. Now that they have been lifted, I want it to be a choice. I want workers to be able to work from home or remotely or hybrid if they want to. So long as the business get done and services are provided, employers should facilitate it.. This new law will give every employee the right to request remote working from their employer. Employers will be required to provide reasonable grounds for refusing to facilitate an employees’ request. These grounds are set out in the legislation and we will develop Codes of Practice to provide guidance to help employers implement the new law.”

The Right to Request Remote Working Bill 2021 will, for the first time, provide a legal framework around which requesting, approving or refusing a request for remote work can be based.

All workplaces will be required to have a written statement setting out their Remote Working Policy, specifying the manner in which remote working requests are managed, the timeline for responding to requests, and the conditions which will apply to remote working.

Points to note:

• An employee will be eligible to submit a request once they have worked for their employer for 6 months. However, an employer is free to offer remote work from day one if desired;
• At present, the draft scheme envisages the employer and employee meeting to discuss the request;
• The employer must inform the employee of its decision no later than 12 weeks after the request is made;
• The employee will have a right to appeal the decision;
• The employee cannot submit another request for 12 months unless they move to a new role in the company;
• There will be a right of appeal to the WRC where an employer has: failed to respond to a request; or has failed to provide any reasonable grounds for the refusal of a request. Employees will also be protected from penalisation for having exercised their entitlement to request remote working.

Employers will be able to decline a request for remote working on reasonable business grounds that include:

• The nature of the work not allowing for the work to be done remotely
• Cannot reorganise work among existing staff
• Potential negative impact on quality
• Potential negative impact on performance
• Planned structural changes
• Burden of additional costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer’s business
• Concerns re the protection of business confidentiality or intellectual property
• Concerns re the suitability of the proposed workspace on health and safety grounds
• Concerns re the suitability of the proposed workspace on data protection grounds
• Concerns re the internet connectivity of the proposed remote working location
• Inordinate distance between the proposed remote location and on-site location
• if the proposed remote working arrangement conflicts with the provisions of an applicable collective agreement
• Ongoing or recently concluded formal disciplinary processes.

This is not an exhaustive list, so the draft scheme does recognise that employers may have other valid reasons for rejecting a request.

The draft scheme is similar in many respects to the right to request flexible working in GB. Whilst the amount the WRC can award for a breach of the scheme is modest (up to 4 weeks’ pay), the greater risk is discrimination claims including on grounds of disability (failure to make reasonable accommodation) and indirect sex discrimination (e.g. females with caring responsibilities.)

Additional Public Holidays

There will be an additional, one-off public holiday this year on Friday 18 March 2022.

From 2023, there will be a new annual public holiday in early February to mark St Brigid’s day. The public holiday will be the first Monday in February, except where St Brigid’s day (1 February) falls on a Friday, in which case Friday 1 February will be a public holiday.

Case Law developments

Whistleblowing

Tibor Baranya v Rosderra Irish Meats Ltd

Under the Protected Disclosures Act 2014 employees are protected from penalisation where they have made a protected disclosure (i.e. they have “blown the whistle”).

One difficult area is deciding whether a concern raised by an employee should be dealt with as a normal personal workplace grievance, or whether it is a protected disclosure. Employers have often considered that issues raised by an employee that are specific to themselves are not normally protected disclosures.

This case was considered by the Supreme Court prior to the Christmas break and its decision has significantly widened the scope of what could be considered a protected disclosure.

Why is the distinction between a grievance and a protected disclosure important?

Protected disclosures attract significant additional employment protections. For example, there is no minimum service requirement to bring an unfair dismissal claim. Furthermore, an employee who is dismissed wholly or mainly due to having made a protected disclosure can receive compensation of up to 5 years’ remuneration rather than the 2 year maximum for an unfair dismissal without a protected disclosure aspect.

The facts

The employee worked as a butcher in a meat plant. He told his employer that he was in pain as a result of his work and he asked to change role. Three days later, he was dismissed. He alleged his dismissal was because he had raised a protected disclosure (i.e. reported his pain from his work).

The employer disputed this version of events and alleged the employee was dismissed because he had walked out without them to address his request to change role. The employer also argued that the employee’s statements about pain could not be a protected disclosure as they related to his own issues at work and were not a matter of public interest.

The Workplace Relations Commission, Labour Court and the High Court all ruled that the complaint made by the employee did not constitute a protected disclosure.

Supreme Court decision

The Supreme Court ruled the employee’s complaint could potentially amount to a protected disclosure and the case was sent back to the Labour Court to make findings of fact.

Whilst the case has not reached a conclusion, the decision of the Supreme Court is very important.

The Supreme Court focused mainly on Section 5 of the Protected Disclosures Act 2014 which states that the following matters (amongst others) are “relevant wrongdoings” for the purposes of the Act:

• failure to comply with any legal obligation, other than one arising under the worker’s contract of employment; and
• that the health or safety of any individual was or is likely to be endangered.

The Supreme Court found that any alleged contractual default on the part of an employer on any matter, including pay, was not a protected disclosure. However, where an employee complained about an alleged failure to comply with statutory obligations, then this could be a protected disclosure. The Supreme Court gave the example that if an employee made a complaint regarding the mode and method of the payment of their wages under the Payment of Wages Act 1991, then this could be considered a protected disclosure.

The Court also addressed the fact that the 2015 Code of Practice on the Protected Disclosures Act erroneously differentiated between a grievance and a protected disclosure and stated that this did not accurately reflect the law.

As a result of this judgement:

• Complaints by employees relating to their health and safety at work can be protected disclosures;
• Complaints relating to an employer’s failure to follow statutory law as it relates to a complainant employee can be protected disclosures; and
• Alleged breaches of an employee’s contractual rights are not considered protected disclosures.

As a result of this decision it is important that employers ensure they understand the scope of the Protected Disclosure legislation when reviewing and responding to employee complaints. In practice, employees who raise complaints about their treatment at work now have a much wider scope to claim a protected disclosure.

As Members will be aware, the Protected Disclosure legislation is currently under review in light of the obligation to implement the Whistleblowing Directive and we wait to see whether this will result in any changes in respect of the scope of protections.

Fair Procedures

Frederick Hobson v Praxis Care

This is a Labour Court decision handed down in December 2021 in which, despite the Complainant admitting his misconduct, there were such significant flaws in the procedure that the decision to dismiss was not within the band of reasonableness. The Court was so critical of the Respondent’s dismissal process that it upheld the finding of unfair dismissal and increased the award from €20,000 to €31,868.37.
The Court’s criticisms included the fact that another employee, who was present during the incident in question, was not investigated and did not receive any sanction for the same misconduct.

However, the aspect we are focussing on is the role HR played in the disciplinary process. Specifically what led the Labour Court to find there was a “lack of independence in the process” that contributed to the unfairness of the dismissal.

The role of HR in the process included:

• HR appointed the manager to conduct the investigation. However HR did not ask the manager to investigate the incident, instead they were only asked to investigate the Complainant’s role in it;
• HR determined what witnesses should be interviewed and once the investigation was complete the investigation report was sent to HR;
• At the disciplinary stage HR had scripted the hearing before the disciplinary chair was even appointed;
• HR provided the disciplinary chair with a list of pre-prepared questions;
• At the hearing HR asked a question that went beyond simply seeking clarification.

The Labour Court found “a lack of independence in the process in a situation where HR are determining how the allegation is framed, who should be investigated, what questions should be asked at the disciplinary hearing and exonerating one of the parties to the incident without any plausible explanation.”

This case is a reminder that where a disciplinary investigation has been unduly influenced by a third party, such as an HR department, it is likely to compromise the fairness of the process and make any subsequent dismissal unfair. HR advisers should ensure that any advice they give is limited to questions of law, procedure and process. It will be for the decision maker, not HR, to decide on culpability. In our view it should generally be acceptable for an investigator to seek advice from HR, for example on questions of procedure or precedent, or to ensure that all necessary matters have been addressed. However if this remit is exceeded, then there is a danger that the fairness of the investigation process could be compromised, which could result in an unfair dismissal.

Workplace Relations Commission (WRC) annual report January-December 2020

The WRC annual report was published on 20 December 2021.

In the period a total of 1,401 cases encompassing 3,059 complaints were the subject of published decisions.

Whilst the WRC received a total of 8,103 cases in 2020, not all of these reached the adjudication stage due to various reasons including settlement, withdrawal, mediation etc.

The WRC report focuses on the 1,401 cases that were the subject of published decisions.

Key findings in the report:

Awards Made:

• A total of €5,152,152.37 was awarded by the WRC in 2020
• The average award was €5,117.42
• There were approximately 181 successful complaints where a non-monetary award was made — in other words, a “Course of Action” was directed or recommended.

Complaint Breakdown:

• Most complaints were made under the Organisation of Working Time Act 1977, with 577 complaints
• This was followed by 454 complaints under the Unfair Dismissals Act 1977
• There were 354 disputes under the Industrial Relations Act 1969.

Party Representation:

• 1,305 parties (47%) had third party representation
• 1,255 parties (45%) were self-represented
  • 716 (57%) Complainants
  • 539 (43%) Respondents

2021 – a review

Code of Practice on Workplace Bullying

Effective from 23 December 2020, throughout the course of 2021 employers have been required to manage bullying complaints in accordance with the provisions of the Code.

The Code provides for a three-stage process of resolution:

• The initial informal stage at which the aim is to resolve the allegation of bullying informally by agreement between the individuals through an informal discussion with the appropriate manager;

• The secondary informal stage that can be invoked if the initial informal process is unsuccessful or unsuitable in light of the nature of the complaint. At the second stage the employer nominates a separate individual to deal with the complaint on behalf of the organisation. An investigation is carried out (still in an informal manner) and examples of bullying behaviour are put to the alleged bully who has the opportunity to respond;

• The formal process that includes 2 steps – a formal complaint and a formal investigation.  Any investigation should be conducted in line with terms of reference, which establishes the scope, timeframe and confidentiality of the investigation. 

Whilst the Code undoubtedly reinforces the message that employers must take bullying complaints seriously, in practice the introduction of a secondary informal stage has led many employers to form the view the process is now overly complex.

The Code of Practice on the Right to Disconnect

April 2021

The Right to Disconnect refers to an employee’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails, telephone calls or other messages, outside normal working hours.

The Right to Disconnect has three main elements:

1.  i)  the right of an employee to not routinely perform work outside normal working hours;
2.  ii)  the right to not be penalised for refusing to attend to work matters outside of normal working hours; and

iii)  the duty to respect another person’s right to disconnect (e.g. by not routinely emailing or calling outside normal working hours).

While failure by an employer to follow the Code is not an offence in itself, the Code is now admissible in evidence in proceedings before a Court, the Labour Court or the WRC. In practice most complaints are likely to be made under the Organisation of Working Time Act, for example, alleging a breach of the 48 hour work week, or in more serious cases as a constructive dismissal claim.

The Gender Pay Gap Information Act 2021

July 2021

The Act requires public and private sector organisations (initially those with 250+ employees, but extending over time to organisations with 50+ employees) to analyse, explain and publish certain information on pay differences between male and female employees and information on any measures taken (or proposed to be taken) to eliminate or reduce such differences.

In October we reported that the enabling Regulations were anticipated imminently, however it now appears these will not be in place until some point next year.

Sick Leave Bill 2021

November 2021

As we reported last month, the Irish government is introducing a limited entitlement to statutory sick pay for employees. The new law is not now expected to take effect before Summer 2022 due to the level of operational detail yet to be addressed.

New Covid-19 measures

The following new COVID-19 measures were announced on 16 November 2021:

• Everyone should work from home unless it is necessary for them to attend their workplace. The guidance prior to this was to have a phased and cautious return for “specific business requirements”. This changed with effect from midnight 18 November 2021
• Household close contacts who are fully vaccinated and showing no symptoms must restrict their movements until they have 3 negative antigen test results within 5 days
• All on-licenced premises will close at midnight, with all customers having to vacate at that time no matter what type of event is taking place
• Covid-19 passes, based on vaccination or recovery from Covid-19 are required for cinemas and theatres.

New Construction Industry Sectoral Employment Order

On 17 November 2021 a sectoral employment order regarding the construction industry was made – the Sectoral Employment Order (Construction Sector) 2021.

The Order will come into operation on 1 February 2022. The Order amends Sectoral Employment Order (Construction Sector) 2019.

The Order schedules new minimum pay rates for workers in the construction sector. It also amends rates for pension and sick pay schemes.

The new rates will apply in the sector from 1 February 2022 to 31 January 2023.

This month our focus is on the new Sick Leave Bill 2021 that was published on 5 November 2021.

The Bill sets out the proposed legal framework through which Statutory Sick Pay will be introduced in Ireland.

Sick Leave Bill 2021

Employees in Ireland currently have no statutory entitlement to pay whilst absent from work due to sickness.

If a person is unable to work because of sickness or injury, they can apply for Illness Benefit from the Department of Social Protection provided they are aged under 66 and have enough PRSI contributions.

Illness Benefit is paid at four different rates based on the individual’s average weekly earnings in the relevant tax year and is paid for a maximum of:

• 2 years (624 payment days) provided the individual has at least 260 weeks of social insurance contributions paid since they first started work

or

• 1 year (312 payment days) if the individual has between 104 and 259 weeks of social insurance contributions paid since they first started work

Since 1 March 2021, the number of waiting days has been reduced from 6 days to 3 days. Waiting days do not apply where the individual has been diagnosed with Covid-19 or is medically required to self-isolate.

On 9 June 2021 the government announced details of a new law to give all workers the right to paid sick leave. This new statutory sick pay scheme will be phased in over a four-year period with a proposal that employers will eventually cover the cost of 10 sick days per year in 2025.

The Bill introduces for the first time a right to sick pay which will be legally enforceable through the Workplace Relations Commission and the Courts. Any complaint to the WRC must be made within 6 months of the occurrence of the dispute and the WRC can make an award of compensation of up to 20 weeks’ pay.

Eligibility

The current draft of the Bill provides for “statutory sick leave” and, in its current form will apply to employees who have completed 13 weeks continuous service (a minimum, service requirement of 6 months had initially been proposed when the scheme was announced in June.)

Employees must also provide the employer with a medical certificate signed by a registered medical practitioner stating they are unable to work.

Entitlement

The entitlement, as set out in the Bill, is to 3 statutory sick leave days per year. The Minister can vary the number of statutory sick leave days subject to:

• the number of days can never be reduced below 3;
• the number of days cannot be increased by more than 3 in each year; and
• changes must be 12 months apart.

The plan is that over the next 4 years statutory entitlement to sick pay will increase as follows:

• 2022 – 3 days covered
• 2023 – 5 days covered
• 2024 – 7 days covered
• 2025 – 10 days covered

Amount of Statutory Sick Pay

Sick pay will be paid by employers at a rate of 70% of an employee’s wage, subject to a daily threshold of €110. By comparison the Statutory Sick Pay Scheme in Northern Ireland pays £95.85 per week but for a much longer period (up to 28 weeks.)

The % approach is in line with the calculation method used in most of the EU Member States that have statutory sick pay schemes, where the percentage used varies from 25% to 100% of the employee’s gross wage.

Once entitlement to sick pay from the employer ends, employees who need to take more time off may qualify for Illness Benefit (see above.)

The government has stated that daily earnings threshold cut-off point will ensure employers do not face excessive costs in relation to employees who are on high salaries. However there is nothing to prevent employers offering better terms or unions negotiating for more through a collective agreement.

What if an employer already provides a sick pay scheme?

The Bill also provides that the obligations under the legislation will not apply to an employer who provides benefits under a sick leave scheme that are, as a whole, more favourable than the statutory scheme.

Employees on Probation

Where an employee is on probation, is undergoing training, or is employed under a contract of apprenticeship the Bill provides than an employer can (in certain circumstances) require the probation, training or apprenticeship be suspended during the period of statutory sick leave and be completed by the employee at the end of that period.

We will keep Members updated on the progress of this important new piece of legislation, including any amendments that are made before it becomes law.

Case Law Review

Disability discrimination and the obligation to afford an employee reasonable accommodation

The definition of disability in Ireland is much wider compared to the UK. In Ireland short-term conditions can amount to a disability; by comparison, in the UK the condition must have a substantial adverse effect on the individual’s ability to carry out day to day activities and that effect must be long-term. However the concept of reasonable adjustments is reflected in Ireland’s duty to provide reasonable accommodation.

In Kevin Roberts v United Parcel Service of Ireland Ltd the Labour Court found the Complainant’s dismissal was discriminatory and the employer had failed to offer reasonable accommodation. The Complainant was awarded €75,000.

The Complainant was employed as a Senior Manager; his role involved extensive travel in Ireland and abroad. For medical reasons, he was unable to continue with the amount of travel involved; he was assessed as medically fit to return to work subject to him not being required to travel and adjustments being made to his responsibilities. As a result of his inability to travel he was dismissed.

The Respondent’s witness evidence was damning on the question whether the role was capable of adaptation to accommodate the Complainant; the Labour Court found the employer had made an assumption that it was not feasible to adapt the role to remove the travel element.

The Court stated “even if the Respondent was concerned about the long-term viability of attempting to have the job performed without this level of international travel, it was open to them to trial such an approach on a time limited basis. Had they done so, either it would have proved that such an approach was viable or, alternatively, it would have provided them with the basis to argue to the Court that it had proven not to be viable.”

This decision places a very high burden on employers when considering whether reasonable accommodation can be provided for a disabled employee. Employers are advised to assess an employee’s role in light of the medical evidence and consult with the employee and in many cases, H&S. For some roles, this may involve a “walk-around” with the employee to discuss the various elements of the job and whether they can be accommodated with or without modifications. This case however goes further by finding that an employer should consider a trial period. In some situations an employer may have reasonable grounds to believe that a trial period will be futile and, at worst, could have negative impacts on the business.

The wider impact of this decision is yet to be seen, in particular if it will be sufficient for an employer to demonstrate that it gave serious consideration to a trial period and records a reasonable rationale for not putting one in place. In the meantime employers would be advised to err on the side of caution and implement a trial period but keep it under close review so that any potential negative impacts on the business (and indeed on the employee or their colleagues) can be quickly identified and acted upon.

Could more of your workers have fixed-term protections than you realise?

The definition of a fixed-term employee (worker in the UK), and the protections afforded to them, are broadly the same across the UK and Ireland. In both jurisdictions, employee/workers who are engaged on 2 or more successive fixed term contracts totalling 4 or more years, are entitled to a permanent contract unless there are good business reasons not to do so.

The High Court in Ireland recently handed down its decision in HSE v Power, a case in which a permanent employee who was temporarily acting up in a more senior role on a fixed-term basis, was entitled to the protections of the Fixed-Term legislation.

Mr Power was invited to take up a more senior role on a temporary basis. He was due to stay in this role for either 6 months or until the role was filled on a permanent basis. This temporary appointment was extended 4 times and lasted for longer than 4 years. Mr Power eventually applied for the permanent post but was unsuccessful. He returned to his original role and submitted a claim that he was entitled to a contract of indefinite duration in the more senior post.

The case made its way to the High Court. The employer argued Mr Power was not a fixed term employee as, at the end of the acting-up contract his employment was not going to be brought to an end. The High Court disagreed and held that an employee can be engaged on a fixed-term basis even if they continue to be employed thereafter by moving on to a further contract or reverting to an earlier one. Leave has been granted to appeal to the Supreme Court.

Why is this case important? If you have employees acting-up in a role, or seconded into a more senior role, they may be entitled to that job on a permanent basis. It is therefore important to keep track of the duration of any such arrangements to ensure an employee does not end up unintentionally obtaining such entitlements.

What is happening with retirement ages?

Unlike in the UK where most employment contracts do not have a retirement age and employees can (in theory) continue working for as long as they choose, in Ireland it is much more common for the contract of employment to set a retirement age (usually age 65.)

In Ireland, the Code of Practice on Longer Working 2017 sets out the best practices to follow during the engagement between employers and employees in the run up to retirement, including responding to requests to work beyond the retirement age. The steps to be followed are like those that previously existed in the UK up to April 2011.

The Code sets out that it is good practice for an employer to notify an employee of the intention to retire an employee on the contractual retirement date within 6-12 months of that date. Recommended steps to deal with a request to work longer are set out including the frequently used option of offering a fixed-term contract post-retirement age.

Pension Commission report

In October this year the report of the Pension Commission was published that contains recommendations including:

• Employers not being allowed to force people to retire before the State pension age;

• Legislation being introduced to align retirement ages in employment contracts with the State pension age.

No decisions will be made on the recommendations until next March.

What is the current approach of the courts?

There continues to be a significant amount of case law in this area, and within the last month there have been 2 further decisions of note:

In the first case considered by the WRC, the Complainant was a nurse who was employed by a nursing home and was required to retire at 65. She notified her employer that she did not intend to retire and she wished to continue working. The nursing home agreed a one-year extension to her contract but refused a further extension without providing objective reasons for its decision.

The employer was in liquidation and did not defend the claim. The WRC accepted the Complainant had an exemplary work record and she was capable of doing the work. The WRC also found there was ample work available as evidenced by the fact the employer was recruiting both agency and non-EEA national nurses to join the team at the time of her retirement.

Highlighting the risk of setting retirement ages without considering the individual circumstances of each employee’s situation, the WRC awarded €85,000 as compensation for age discrimination. In reaching its decision the WRC found the employer had made “no effort” to comply with employment equality legislation and had failed to give the Complainant any rationale for why she was forced to retire.

The Complainant in Pat O’Donnell v Denis O’Keeffe had different fortunes before the Labour Court where his mandatory retirement at age 65 was found to be justified and his complaint of age discrimination failed.

The Complainant argued that he had no health concerns and was fit to remain employed in his role. He requested a 12-month extension to his contract which was denied.

The Respondent’s case was that the Claimant’s role (a service engineer) was specialised and that it takes 6 years training to do the job. Evidence was given of the safety critical nature of the role and the employer argued that to ensure the safety of the employees, the only alternative to a mandatory retirement age was mandatory health testing, which could bring an employee’s career to an abrupt end.

Evidence was also given regarding the requirement for substantial training and investment in apprentices. The employer argued that the mandatory retirement age was objectively justifiable for succession planning as they would plan to have apprentices trained to step into the retiring employee’s role.

The Labour Court accepted the Respondent’s arguments and found there was a legitimate aim in ensuring a through flow of appropriately qualified service engineers and to ensure that employees were not required to continue working until they were unable to perform the duties.

These contrasting decisions highlight the need for an employer to be able to prove that its retirement age corresponds to a genuine need or aim. As set out in the Code, such aims can include: allowing younger workers to progress; H&S concerns; personal and professional dignity; and succession planning, but employers must prove how these are relevant to their specific business

Redundancy developments

Suspension lifted on employees triggering redundancy

An employee who has been placed on lay-off or short-time working can, provided certain conditions are met, trigger redundancy.

In the Republic of Ireland, as part of the government’s pandemic response, an employee’s ability to trigger redundancy was temporarily suspended. This meant that where an employee was, for example, laid off for four or more consecutive weeks, they could not claim a redundancy payment.

From 30 September 2021 this suspension has been lifted. This means laid off employees once again have the right to trigger redundancy and to claim a statutory redundancy payment, provided they meet the relevant criteria.

Statutory redundancy payments – compensation for loss of reckonable service during lay-off

Employees must have 2 years continuous service to be entitled to a statutory redundancy payment.

Employees continue to accrue continuous service while on lay-off. However, certain absences from work, including lay-off, are not deemed to be “reckonable service” when calculating a statutory redundancy payment.

In recognition of the impact of Covid-19 the Irish Government has announced a new special payment of up to €1,860 to employees who have been made redundant and who have lost out on reckonable service while laid off during the pandemic. This payment will be made available in the first half of 2022.

Case Law Review

Sexual Harassment – important takeaways from the Labour Court

This case attracted a significant level of media attention as it involved a well-known coffee chain and 19-year-old employee who was sexually harassed by her manager.

The acts of harassment arose from posts made by the manager to a group of Respondent employees on Facebook messenger. The employee was part of the Facebook group; she went on sick leave and later resigned.

The Respondent accepted the manager’s conduct, which included the posting of offensive pictures, constituted sexual harassment. In light of this concession the case focussed on whether the Respondent could prove that it had taken adequate steps to prevent the behaviour occurring.

The WRC upheld the complaint and awarded the Complainant €3,500. On appeal the Labour Court expressly disagreed with the WRC’s view that the acts fell in the less serious category and increased the award to €20,000 (approximately 1 year’s earnings.)

In addition to increasing the value of the award the Labour Court noted that whilst the Respondent had a bullying and dignity at work policy, it was shocked that there was no specific sexual harassment policy.  The Labour Court ordered the Respondent to:

• Develop a workplace anti-harassment and sexual harassment policy that complies with the relevant statutory Code of Practice;
• Develop a workplace anti-bullying policy that complies with the relevant statutory Code of Practice;
• Develop an appropriate Social Media policy;
• Take the necessary steps to ensure the policies were communicated to, and understood by, all employees. This included raising awareness raising and providing training.

In this case the fact the employer had a bullying and dignity at work policy was not deemed sufficient. The Court stated “The policy on which the Respondent relied in making arguments to the Court is, in fact, a policy on bullying and dignity in the workplace rather than one that covers sexual harassment. This extraordinary oversight meant that not alone was there no training provided to employees on sexual harassment but, it could be argued, there was no express prohibition on such behaviour.”

The Court went on to state: “It hardly needs to be said that the Respondent needs to have a full suite of policies regarding the legal protections that they are required to put in place to ensure that staff are protected from recurrences of this type of incident.”

This decision is another example of the importance placed on employment policies, and their communication and enforcement in the workplace. In addition to setting standards for employees, policies and procedures must also set standards for managers. It is important that employees at all levels of seniority receive appropriate training and guidance in respect of how they must conduct themselves and the standards they will be held to.

Use of CCTV in disciplinary proceedings and “zero tolerance”

This decision was published in late September 2021 and concerns the termination of employment of a bus driver who was caught on CCTV footage on his mobile phone whilst driving. The use of mobile phones whilst driving was strictly forbidden by the Respondent and considered gross misconduct.

There was no dispute the Complaint was guilty of the misconduct. The case before the WRC focussed on procedural issues.

The background to the dismissal was that the Complainant was the subject of a customer complaint (from which he was exonerated). While viewing the CCTV footage as part of that investigation, the Complainant was spotted using the mobile phone. However, that footage was captured an hour after the original incident being investigated.

The Complainant argued the Respondent should not have been viewing that portion of the CCTV footage. He alleged a breach of data protection law and a breach of the employer’s own CCTV policy as there was no provision for its use in disciplinary proceedings.

The WRC accepted it had no jurisdiction in relation to breaches of data protection law. However, it found that it is critical to the operation of fair procedures that an employer follow its own policies and procedures. It found the Respondent did not do so in this case as the CCTV policy did not expressly provide for the use of CCTV in disciplinary procedures. Somewhat harshly, in our view, the WRC did not accept the statement in the CCTV policy that it could be used “for the safety of the organisation’s employees, customers, visitors and contractors” could cover discipline in these circumstances given there was a safety concern. The WRC also stated that had the Respondent tried to rely on “performance and public safety” it would have stretched the scope of the policy beyond what was intended.

The WRC found the most second and most serious issue was the manner in which the “zero tolerance” policy was applied. The Respondent confirmed at the hearing that in all cases mobile phone use will result in termination of employment. The WRC found this “represents a policy on the part of the respondent that constitutes prejudgement in respect of both guilt and of sanction.”

Despite the fact the Complainant, a driver by occupation, did not dispute that he was using the mobile phone whilst driving, his dismissal was held to be unfair. Indeed, whilst the WRC found this was a serious incident, it granted the Complainant’s request for reinstatement and awarded over one year’s back pay.

There are a number of takeaways from this case:

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

2. Ensuring there is a authorised and legitimate reason to check CCTV footage. In this case the employer could provide no explanation why it continued to view footage after the original purpose had ended. The WRC called this a “speculative fishing expedition”;

3. Employees have a constitutional right to a fair and unbiased hearing. It is not unusual for employers, especially those in regulated sectors, to have a “zero tolerance” approach to certain misconduct. However the utmost care must be taken when drafting any disciplinary rules and conducting disciplinary proceedings. Language in an outcome letter such as “I have no option but to dismiss”, or a policy that appears to bind the decision maker to dismiss, will risk a dismissal being found to be unfair.

Two recent redundancy decisions of note

Tanneron Limited v Gerard Conolin is a Labour Court decision in which a redundancy dismissal was found to be unfair on the basis the employer’s process failed to meet the required impersonal and objective test.

In this case the selection was based on fee income and sales over the previous 12 months.

The Respondent’s evidence was that, following application of the criteria, it was surprised the Complainant was scored lowest in respect of both fees and sales in that period. The Complainant argued that when the Respondent set the criteria it was clear who would be the first to go. He submitted he was dismissed for poor performance and his dismissal was “dressed up” as a redundancy thereby denying him the right to be advised of his alleged underperformance and given an opportunity to improve.

The Labour Court considered the size of the organisation and the small number of employees and found it was unlikely that management would not be aware when setting the criteria who was likely to be affected. The Respondent failed to convince the Court that the Complainant had not been singled out on the basis he was a poor performer. The dismissal was found to be unfair. Despite the fact the Complainant was found to have fell short of what was expected in terms of mitigation of loss, he was awarded €23,000 compensation on top of the sums he had already received in respect of his redundancy.

In this case the Respondent had received legal advice to apply a matrix of criteria. Had that advice been followed the outcome of this case may have been different, especially if criteria unconnected to performance had also been used.

In Aoife Murphy v The Sims Clinic Ltd, the WRC found a Complainant had been unfairly dismissed as the Respondent failed to consider all alternatives to making her redundant.

The WRC found the alternatives the employer should have considered included:

• a position in another department of the business as the Complainant had transferable skills;
• unpaid leave or a career break for a few months, to monitor the business with a view to retaining the Complainant for a suitable role in the future; and
• a part-time position supporting a number of departments of the business.

The WRC found “no problem-solving or creative thinking went into coming up with a proposal to retain the complainant in employment.” It stated this could have involved any one or a combination of the options listed.

Unsurprisingly the WRC held that the responsibility rests with the employer, not the employee, to identify alternatives to redundancy. What is of note are the lengths the WRC expected the employer to go to.

The Budget 2022

The Budget 2022 was announced on Tuesday, 12 October 2021. Some of the employment-related highlights are:

Income tax: the rate of income tax will stay the same, but the standard rate income tax band (the amount an employee can earn before they start to pay the higher rate of tax) will be increased by €1,500 for 2022;

Employer’s PRSI: the weekly income threshold for the higher rate of employer’s PRSI will increase from €398 to €410;

Minimum wage: the NMW will increase by €0.30 to €10.50 per hour from 1 January 2022;

Leave for parents: Parent’s Leave and Parent’s Benefit will be extended by 2 weeks to 7 weeks from July 2022;

Remote working tax relief: there will be income tax relief of 30% on heating, electricity and broadband expenses;

Employment Wage Subsidy Scheme (EWSS) changes: the EWSS will remain in place in a graduated form until 30 April 2022. There will be no change to EWSS for the months of October and November, but changes will start to apply from December. The scheme will also close to new employers from 1 January 2022.

What’s on the horizon?

Gender Pay Gap Reporting

The Gender Pay Gap Information Act 2021 was signed into law in July 2021. The Act requires public and private sector organisations (initially those with 250+ employees, but extending over time to organisations with 50+ employees) to analyse, explain and publish certain information on pay differences between male and female employees and information on any measures taken (or proposed to be taken) to eliminate or reduce such differences.

The Regulations bringing the legislation into force are expected any day now and it is anticipated the reporting process will begin early next year. We await the Regulations for the specific details.

We are excited to return to our in-person conference and to reconnect with everyone.

The legal team and our guest speakers will be covering the most topical issues and important developments for employers and HR professionals.

This will be a great event and we look forward to seeing you there.