04/11/2024

LEGAL UPDATES 

1. Pension auto enrolment update

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

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

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

 

	Years 1-3	Years 4-6	Years 7-9	Years 10 onwards
Employee Contribution	1.5%	3%	4.5%	6%
Employer contribution	1.5%	3%	4.5%	6%
State contribution	0.5%	1%	1.5%	2%
TOTAL	3.5%	7%	10.5%	14%

 

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

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

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

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

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

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

2. Budget

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

The key employment related measures are listed below:  

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

A high-level overview of the budget is available here

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

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

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

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

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

Postponement of maternity leave in event of serious health condition

The Bill provides that:

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

Restriction on use of non-disclosure agreements 

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

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

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

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

4. Menopause awareness month

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

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

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

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

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

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

CASE LAW UPDATES

1. Karabko v TikTok Technology Limited 

    Right to request remote working 

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

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

Facts

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

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

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

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

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

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

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

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

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

Decision

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

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

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

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

Learning points for employers

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

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

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

2. Dean Hart v Komfort Kare (ADJ00051923)

    Section 13 of the Parental Leave Act 1998

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

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

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

Facts 

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

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

The employer responded stating:

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

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

Decision 

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

Those authorities included:

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

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

The complainant was awarded €7000 in compensation.

Learning Points for Employers 

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

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

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

    Data protection breach 

Facts 

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

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

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

Decision 

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

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

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

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

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

Learning points for employers

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