20/09/2022

Legislation update

Sick Leave Act 2022

The Sick Leave Act 2022 was signed into law by the President on 20 July 2022. A commencement order is expected shortly to bring the Act into force.

Protected Disclosures (Amendment) Act 2022

The Protected Disclosures (Amendment) Act 2022 has also been signed into law and an order to commence the Act is also expected soon.

Case law update

Labour Court – The Agricultural Trust v Lynne Brien

Employer not liable for acts of sexual harassment where reasonable steps had been taken to prevent the acts occurring

The Complainant alleged she had been discriminated against on the grounds of gender and sexual orientation and was subject to sexual harassment in the course of her employment. She alleged the Respondent failed to carry out a proper enquiry into her complaint of sexual harassment and also failed to put appropriate measures in place to mitigate against the effects of that harassment.

She further alleged that she was victimised in the period between making her complaint of sexual harassment and that her resignation from employment was a constructive discriminatory dismissal.

The Complainant told the Court that her relationship with her colleague deteriorated following 2 incidents, one of which was where he told her that it was his mission to “turn her straight.” The Complainant also gave evidence that in 2018 she and a group of colleagues went to a nightclub after the employer’s summer party and that he pushed his body against her without her consent.

The matters were brought to the attention of the employer and an investigation was carried out. The male employee was suspended and following a disciplinary process, he was given a written warning.  The Complainant was told that after his suspension ended, the male employee would work from home. The Complainant’s evidence was that she believed this would be on a permanent basis, however in October 2018 she was informed that he would be returning to the office. When the male employee returned the Complainant went on sick leave and resigned.

In not upholding the Complainant’s complaints, the Labour Court found that the employer was able to rely on the “statutory defence” that it had taken such steps as were reasonably practicable to prevent the acts of harassment occurring. The Court referred to the employer’s “comprehensive” Dignity at Work policy and the fact that both employees had received training in respect of this policy. The Court also found the employer had carried out a comprehensive investigation of the sexual harassment allegations and some of them were upheld. The Complainant had been offered access to the Employee Assistance Programme and the employer had undertaken to provide supervision and monitoring. The Court also noted the employer agreed to the Complaint’s request to move desks and had informed her that the male employee had committed to behaving in a professional manner towards her.

This case is a further example not only of the importance of comprehensive workplace policies backed up by training, but also that the investigation and outcome is not the end of the matter. Here the employer was able to demonstrate a responsible and considered approach to the working relationship going forward and put measures in place to help ensure there was no repetition of the conduct or any acts of victimisation.

WRC – Ann Doherty v St John of God Community Services

The employer’s refusal to allow a pregnant employee to work from home amounted to discrimination. Employee awarded €45,000

The Complainant’s case was that she was discriminated against on the grounds of family status in not being allowed work from home during the Covid-19 pandemic and in being moved role. She alleged she felt she was left with no option but to take sick leave during the pandemic as she stated she was not given the same options as other parents or as other pregnant women; this included reduced hours, the use of Zoom meetings; and working from home.

The Complainant also alleged that when she was due to return to work in August 2020 she was told she would be moving from a non-public facing role to a public-facing role even though she was 30 weeks pregnant at the time. The Respondent’s case was that day services closed as a result of the pandemic and staff were redeployed taking into account their personal circumstances.

In upholding the Complainant’s complaint of discrimination the Adjudication Officer stated he could not see any reason why she was not allowed to work from home when others had been facilitated in this way.

He noted “…What is striking is the absence of any documentation setting out the respondent’s thinking about why the complainant could not work from home…In the absence of any such document and any direct evidence as to this process, I am unable to fathom how the complainant’s situation was assessed, as compared to those colleagues who did not, for example, have childcare responsibilities and who were allowed to work from home. The complainant was not facilitated with working from home when those colleagues without childcare responsibilities or who were not pregnant were facilitated.”

In this case the employer was placed at a significant disadvantage in attempting to defend these allegations as it had no contemporaneous record of its considerations or the reasons for the decisions it made. As remote working is likely to be a permanent feature of working life going forward, employers should also ensure that clear polices and procedures are in place to manage remote work requests until the legal framework around remote requests in the Right to Request Remote Work Bill are finalised.