ROI February & March 2023 Newsletter
09/05/2023
ROI Newsletter February & March 2023
LEGISLATION UPDATE
Referendum on Gender Equality in Irish Constitution announced.
On 8 March 2023, to coincide with International Womans Day, Taoiseach Leo Varadkar announced that there will be a referendum on whether the Irish Constitution should be amended to remove ‘outmoded’ references to ‘women in the home’ with a view to enshrining ‘gender equality.’
Mr Varadkar stated that “For too long, women and girls have carried a disproportionate share of caring responsibilities, been discriminated against at home and in the workplace, objectified or lived in fear of domestic or gender-based violence.”
The referendum was called for by the Citizens’ Assembly on Gender Equality and also the Special Joint Oireachtas Committee on Gender Equality.
The Citizens’ Assembly recommended that Article 40 be amended to refer explicitly to gender equality and non-discrimination.
It also called for Article 41 to reflect that it protects family life “with the protection afforded to the family not limited to the marital family”.
Article 41.2 in the Constitution references that mothers should not, “by economic necessity, be forced to work to the neglect of their duties in the home.” Nearly 95% of the Citizens Assembly members voted for the removal of the reference to women’s work in the home.
Members said it should be replaced with language that is not gender-specific and obliges the State to take reasonable measures to support care within the home and wider community.
The Equality Minister, Roderic O‘Gorman, intends to publish the general scheme of one or more referendum bills by the end of June 2023. The referendum is widely anticipated to be held in November 2023 and will be a key milestone in the pursuit of gender equality, not only in Ireland, but across the world.
Work Life Balance and Miscellaneous Provisions Bill 2022
We have been regularly updating members on the introduction of the Work Life Balance and Miscellaneous Provisions Bill 2022 as it makes its way through the Irish Parliament. Members will be aware that the Bill was widely anticipated to have been introduced in the Autumn of 2022, however further amendments as it made its way through the Seanad have delayed its implementation.
On 1st March 2023 the Bill passed the final stages in the Seanad. The next, and final, stage of the legislative process, which we expect to be imminent, will see the Bill being enacted into law.
We will update members when this happens, setting out a detailed breakdown of the Act and the changes that will be introduced.
EU Directive on Minimum Wage
Whilst this EU Directive must be implemented on or before 4 October 2024 it is worth highling this at this juncture given how significantly it will change the collective bargaining landscape in Ireland. The Directive’s purpose is to reduce working poverty and inequality by focusing on improving the adequacy of statutory minimum wages as well as the promotion of collective bargaining.
The minimum wage aspects of the Directive will not impact greatly but the collective bargaining provisions will. Currently in Ireland, unlike the UK, there is no legal right for a trade union to force an Organisation to bargain in the workplace. This will change when this Directive is implemented as it explicitly promotes collective bargaining, recognising that strong and inclusive collective bargaining systems play an important role in ensuring adequate minimum wage protection. The Directive provides that member states with collective bargaining coverage rates of less than 80% must provide a framework of enabling conditions and establish an action plan (reviewed at least every five years) for promoting collective bargaining. As Ireland collective bargaining coverage rates are less than 80% they will have to provide such a framework.
A high level working group of the social partners was established in early 2021 year (Labour Employer Economic Forum (LEEF)) to review collective bargaining and the industrial relations landscape in Ireland. LEEF produced their report Reports of the LEEF High Level Group on Collective Bargaining in late 2022 which made recommendations including requirement to consult in good faith and a right to bargain. These recommendations may form the platform upon which ROI will be able to comply with this EU Directive. We will keep you updated on developments in this area.
CASE LAW
1. AER LINGUS SOCIAL ATHLETIC ASSOCIATION v MARY GAVIN
LABOUR COURT
Age discrimination/mandatory retirement age/objective justification
Facts
This was an appeal to the Labour Court against a finding of the WRC that the employee had been discriminated against on grounds of her age by the employers decision to terminate her employment after she had attained the age of 65.
The complainant reached the normal retirement age of 65, as set out in the Respondents employee handbook, in March 2019. She requested to remain in work and the Respondent agreed to that request, placing the complainant on a one-year fixed term contract. This was subsequently extended for a further year at the complainant’s request.
In January 2021 the complainant requested for a further occasion for her contract to be extended and the respondent rejected this request. The complainants employment subsequently came to an end on the basis that it was not renewed. The respondent relied on the age demographic of the workforce where the complainant worked and for succession planning it was necessary to implement its mandatory retirement age.
The complainant alleged that the respondent was not consistent in its application of its mandatory retirement age and as such her dismissal was discriminatory, contrary to the employment equality acts. The complainant also alleged that the respondent had not complied with the WRC Code of Practice, whereby , employers are required to have an objective justification for mandatory retirement ages.
Decision
The Labour Court dismissed the Respondent’s appeal and upheld the determination of the Adjudication Office (AO) that the complainant had been dismissed on grounds of her age and that such a dismissal could not be objectively justified.
The Labour Court found that the Respondent’s justification defence was undermined by ‘evidence of inconsistent application’ and ‘ by the absence of any evidence that the means of achieving any such aim is appropriate and necessary’
The Labour Court also highlighted the importance of a mandatory retirement age being identified in employee contracts rather than any other documentation which did not have contractual effect.
The complainant was awarded €30,000 as compensation by the Labour Court, which was deemed to be ‘an appropriately significant level’ having regard to the effect of the dismissal had on her.
Learnings
This decision is a reminder to employers that even where you have a mandatory retirement age, you must ensure that (1) this mandatory age had contractual effect and (2) you can objectively demonstrate that your mandatory age is a proportionate means to a legislate aim. If you do not consistently apply that policy, it undermines the ability to rely on the defence of objective justification. The case also represents a continuing trend of the Courts to scrutinise employer’s arguments and perhaps higher the hurdle for objective justification to be proven compared to the position 5 years ago.
2. Thomas Conway v Quick Training ADJ-00037379
Disability Discrimination/Religious discrimination
Facts
The complainant had registered with the respondent to complete a ‘safe pass’ training course. The complainant was not permitted to complete a ‘safe pass’ training course on grounds that he would not wear a mask/face covering.
The complainant stated that he had a disability (claustrophobia) and that the decision not to let him complete the training and to remove him from the workplace amounted to discrimination. The complainant did not provide any medical evidence to the regarding any disability nor had he visited his General Practitioner in approximately 20 years.
The complainant also alleged that he held a belief which meant he should not have to wear a mask.
The Respondent asserted that once the complainant identified that he had an underlying condition (despite no further evidence or information being provided in relation to it) they moved the complainant to another part of the room for better air flow. After this however the complainant became disruptive to the extent that he was removed from the course by the Guardia Siochana on grounds of public health and safety concern.
Findings
The WRC did not uphold the complainant’s allegation that he had been discriminated on grounds of his religious belief by the requirement to wear a mask or being removed from the training course as a result of this. The complainant had provided no evidence of any ‘belief’ that he should not have to wear a mask which amounted to a religious belief.
In respect of the complainant’s complaints of disability discrimination, the Adjudication Officer (AO) was satisfied that, despite not having attended his General practitioner in over 20 years regarding his claustrophobia, it amounted to a disability within the meaning of the legislation. The AO however found that ‘ the complainant has not established that the respondents safety concerns amount to less favourable treatment connected with a discriminatory ground’ .
The Respondent permitted the complainant to remain in the course, despite not wearing a mask, because of his alleged disability. The reason for the complainant’s removal for the course, to which he received a full refund, was not connected to his disability but rather as a result of his disruptive behaviour after the respondent moved in to an area rea of better air flow. Such action was justified by the Respondent.
Learnings
This case is a reminder that there is a legal obligation to put in place reasonable accommodations, such as allowing a person to not wear a face mask or covering, in the workplace when they have a disability. It also re-emphasises the low bar in ROI as to what conditions could constitute a disability. However, Respondents are not required to put in place accommodations which are not reasonable either for reasons connected to an individual’s disability or for any other reason.
TRAINING & DEVELOPMENT
We want to remind members of our free webinar taking place on Tuesday 14th March 2023, 12pm-1pm, on the Comparison of Employment laws in NI and ROI.
This one hour, live, webinar will highlight the key areas of difference between the jurisdictions and will be of benefit to HR professionals who advise on employment law and HR issues in both ROI and NI.
To register, please contact john@eefni.org providing your name and email address.
We are also running the following events from April – June 2023:
- Wednesday 19th April 2023 on ‘Conducting Investigation and Disciplinary Procedures in ROI’.
- Tuesday 10th May 2023 we are also hosting a free hour webinar on ‘Understanding the Practical Complexities of the ROI Bullying Code’
- Wednesday 14th June 2023– half day online course on ‘Handling Complaints of Bullying and Harassment in ROI’
A copy of our training and events brochure is attached for ease of reference.
If you want to book on any course please contact info@eefni.org