12/10/2023

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.