02/02/2023

Updated Suite of Member Documentation

We are pleased to confirm that a number our key employment law policies for Republic of Ireland have now been uploaded onto the Members area on our website. These can be found in ROI guidance and are available to download in word format.

We intend to expand on this suite of documents within the forthcoming months and once the Work Life Balance Bill is finalised (see below).

If you do not currently have access to our members area or cannot access the ROI resources, please contact info@eefni.org

LEGISLATION UPDATE

European Union (Transparent and Predictable Working Conditions) Regulations 2022

The European Union (Transparent and Predictable Working Conditions) Regulations 2022 came into effect on 16^th December 2022 and despite the significant changes brought in by the Regulations their introduction went through practically unnoticed.

The Regulations transpose EU Directive 2019/1152 of the European Parliament and of the Council of 20 June 2019 on Transparent and Predictable Working Conditions in the European Union and impact upon several pieces of employment legislation, including:

·         Terms of Employment (Information) Act 1994

·         Organisation of Working Time Act 1997

·         Protection of Employees (Fixed-Term Work) Act 2003

·         Workplace Relations Act 2015

A copy of the regulations can be found here

A summary of the main changes are as follows:

Amendments to the Terms of Employment (Information) Act 1994

Amendment to the statement of terms of employment

The Employment (Miscellaneous Provisions) Act 2018 introduced the right to a day five statement of five core pieces of information.

The “Day 5” statement has been amended to now include additional information relating to:

• The duration and conditions relating to a probationary period, if applicable.

In addition to this, several items that were previously part of the written statement to be provided within two months must now be provided as part of the “Day 5” statement:

1. The place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places.
2. The title, grade, nature, or category of work for which the employee is employed or a brief description of the work.
3. The date of commencement of contract of employment.
4. Any terms and conditions relating to hours of work (including overtime).

Separately, all other terms of employment required to be given to the employee under the Terms of Employment (Information) Act 1994 are now required within one month.

This written statement must now include the following additional terms:

1. The training, if any, to be provided by the employer (see below).
2. In the case of a temporary contract of employment, the identity of the user undertakings i.e., the person or firm hiring the agency worker
3. If the work pattern of the employee is entirely or mostly unpredictable, the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours, the reference hours, and days within which the employee may be required to work and the minimum notice period the employee is entitled to before the start of a work assignment.
4. The identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

The written statement to be provided to employees who are required to work outside the Member State must now also include:

• The country or countries in which the work outside the State is to be performed and its duration.

Maximum Duration of Probationary Period

With effect from 1 August 2022, in situations where an employee is subject to a probationary period at the commencement of employment, that period shall not exceed six months, except in limited circumstances as provided for in the regulations. In those limited exceptions the maximum period may be extended to no more than twelve months.

Mandatory Training

Where an employer is required by law or collective agreement to provide training to an employee to carry out the work for which they are employed, such training shall be provided to the employee free of cost and shall count as working time. Where possible, this training should take place during working hours.

Changes to the Organisation of Working Time Act 1997

Minimum Predictability of Work

Section 13 of the 2022 Regulations, which  amend Section 17 of the Organisation of Working Time Act 1997 (OWTA) provide that:

• As well as the minimum notice period specified in the OWTA, a work assignment now must take place within the reference hours and days notified to the employee as part of their written terms.
• Where the notice of a work assignment provided to an employee is not within the minimum notice period of 24 hours or the work assignment is to take place outside the reference hours and days, the employee has the possibility to refuse the work assignment without adverse consequences.

Changes to the Protection of Employees (Fixed-Term Work) Act 2003

Probation Periods for Fixed-Term Workers

Where an employer engages a fixed-term employee on a probation periods, the probationary period must be proportionate to the length of the fixed term contacts- i.e. if the fixed term contact is for 1 year, it would not be proportionate to have a probationary period for the same duration.

Where a fixed-term contract is renewed for the same functions, the contract shall not be subject to a new probationary period.

We have updated our specimen day 5 statement and Statement of employment particulars to reflect the changes introduced by the Regulations. We recommend that members review their existing contractual documentation to ensure they are compliant with the changes

THE SICK LEAVE ACT 2022

As a reminder, the Sick Leave Act came into effect on  1^st January 2023 providing for a statutory right to sick pay for eligible employees of 70% of their usual daily earnings up to a maximum of €110 a day for certified leave only.

For 2023, the entitlement is 3 days paid sick leave.

It is proposed to increase the entitlement to

• 5 days for 2024
• 7 days for 2025 and
• 10 days for 2026.

Employees must have completed 13 weeks’ continuous service with the employer before availing of statutory sick leave.  The employee must provide their employer with a medical certificate from a registered medical practitioner and the certificate must state that the employee named is unfit to work due to their illness or injury.

The entitlement is triggered by the employee’s first statutory sick leave day.  The leave must be in relation to a day or days when an employee would ordinarily work but is incapable of doing so due to illness or injury. The leave can be taken on consecutive or non-consecutive days.

We recommend you review your contractual documentation, including any sickness absence policy/procedure to ensure compliance with the legislative changes.

THE PROTECTED DISCLOSURES (AMENDMENT) ACT 2022

As a reminder to Members, the Protected Disclosers (amendment) Act 2022 commenced on 1^st January 2022 and introduced several significant changes to the 2014 act which we have previously set out in our monthly newsletters.

The act, which also extends to workers,  introduces a new obligation on certain ‘in scope’ employers to have a whistleblowing procedure as well as a ‘designated person’ to receive and investigate  whistleblowing concerns . Those ‘in scope’ employers include:

• All public sector employers (public sector employers were already obliged to have a whistleblowing procedure, but that obligation is amended significantly);

• Any employer with 250 or more employees (from the date of commencement of the Act);

• Any employer with 50 or more employees (from 17 December 2023); and

• All employers who fall within the scope of certain EU law provisions referred to in the Directive (from the date of commencement of the Act). For example, this will apply to most employers in financial services.

Interpersonal grievances, defined as  , ‘grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively’,  are expressly excluded from the act. This exclusion seeks to address the issues raised in the Supreme Court judgment in Baranya v Rosderra Meats [2021] IESC 77, where it was held that a complaint about health and safety issues affecting a single employee could constitute a protected disclosure.

Those dealing with, or investigation whistle bowling concerns in particular the designated person, are also required to have adequate training on the area of whistleblowing and how to manage concerns.

A copy of the amendment Act can be found here

WORK LIFE BALANCE BILL- UPDATE

We have been updating members on an ongoing basis on the introduction of the Work Life Balance and Miscellaneous Provisions Bill as it makes its way through the Irish Parliament

The bill, which had been widely expected to be introduced before the end of 2022, is currently before the Seanad Eireann, third stage.

The bill provides for the introduction of the right to request flexible working for caring purposes. This right is only available to parents of children under 12 years of age (16 years if disabled) or those caring for a dependant.

The Government recently announced amendments to the Bill just before the end of 2022 which included the introduction of medical care leave, domestic violence leave and the right to request remote working. 

Medical care leave will provide for a maximum of 5 days paid leave in 12 months for the purposes of “significant care or support for a serious medical reason”

Domestic violence leave will see the introduction of up for 10 days leave to allow an affected employee to seek medical attention, seek help from victim services organisations, get counselling, relocate, get a court order, take advice, or seek assistance from the Gardaí.

The Government had previously produced a Draft Bill on the Right to Request Remote Working of Practice which received considerable negative feedback that it was without ‘bite’.  The draft Bill has not advanced through the Oireachtas. The amendment to the Work Life Balance Bill will give the statutory right to request remote working only to employees who are providing significant care or support to another individual who resides with them.

To check the current status of the Bill, see here

CHANGES TO THE NATIONAL MINIMUM WAGE

From 01 January 2023, the National Minimum Wage increased to €11.30 per hour.

The National Minimum Wage applies to most employees. It is the minimum hourly pay rate that must be paid. It applies to full-time, part-time, temporary, casual employees and seasonal workers.

CASE LAW

There have been several recent cases considering the issue of pay and holidays, a few of which we have covered below.

Rhona Matthews v Morbury Ltd t/a Top Security

Facts

Ms Mathews complained that she never received any additional payment (or any of the other options available under the legislation) in respect of public holidays. The Complainant alleged that there was no economic benefit to an employee unless they worked the public holiday in question.  Her complaint related to public holidays. She said that she ‘never got paid’ for public holidays.

The Respondent’s case was that a composite rate of pay was paid to employees, in line with the legislation and their employment contracts, in respect of public holidays.

Findings

Under s. 21 of the Organisation of Working Time Act 1997, employers have the discretion to decide which of the four options set out in the legislation to grant to an employee, in respect of a public holiday. Employees may receive any one of the following, in line with the legislation:

• A paid day off on the public holiday
• A paid day off within the month of the day of the public holiday
• An additional day of annual leave
• An additional day’s pay

Having carefully considered the legislation, the Adjudicating Officer (AO) found that those are the only four lawful options open to an employer in order to be compliant with the requirements of the Organisation of Working Time Act 1997.

In so finding the Adjudication Officer identified a legal distinction between the legislature’s approach to Sunday premium, which specifically allows for a composite rate to be paid and which was upheld in the High Court case of Trinity Leisure Holdings Limited T/A Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654, and the legislature’s approach to public holidays which is silent in respect of a composite rate of pay.

In relation to Sunday Premium, s. 14(1) of the Organisation of Working Time Act 1997 provides that where an employee is required to work on a Sunday, and their having to work on that day is not otherwise considered in determining their pay, they shall be compensated by the following means and to such an extent as is reasonable having regard to all of the circumstances:

• an allowance
• an increase in the rate of pay
• paid time off in lieu or
• a combination of two or more of the above

By contrast, there is no such option available to an employer under the legislation with respect to public holidays. The AO therefore found that the legislation does not allow for that approach and the composite approach taken by company fell outside what is allowable under the relevant legislation and is not lawful.

Furthermore, the AO found that this was a very serious breach by the Respondent and could have made an award of up to 2 years pay. However, in the circumstances the sum of €600 was awarded to the complainant.

Comment

At the time of this claim there were nine public holidays set out in the Organisation of Working Time Act 1997 was as follows:

• New Year’s Day (1st January)
• St. Patrick’s Day (17th March)
• Easter Monday
• The first Monday in May
• The first Monday in June
• The first Monday in August
• The last Monday in October
• Christmas Day (25th December)
• St. Stephen’s Day (26th December)

This case confirms unlike Sunday premium, there is no legislative basis for the payment of a composite rate for public holidays. Employers must therefore ensure that workers are paid the appropriate rate where an individual is entitled to the holiday.

Waterford City and County Council v Robert Bible

Labour Court

Facts

This was a joint appeal by both the employee and employer following an earlier adjudication by the WRC in relation to the Organisation of Working Time Act 1997

Mr Bible, a firefighter who worked varying sets/shifts, alleged that Waterford city and county council had uncalculated his public holiday payments for the duration his employment.

He stated that his holiday pay was not based on normal weekly pay and various other payments/allowances, included shift premium and meal allowance and that he was underpaid for the public holidays that he was not rostered to work.

The employee relied on the provisions of the Directive and European case law whereby employees should receive ‘normal’ earnings when taking annual leave

The Respondent asserted that it had fully complied with its obligation under the Working Tim Act 1997 and the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, and that the employee had received the appropriate rate of enhancement for public holidays in accordance with the legislation. The employer also argued that the matter had previously been dealt with in by the Labour Court in the case of DWT0895 and as such the matter was statute barred.

Decision

Annual leave and public holidays are dealt with differently in Republic of Ireland as compared to Northern Ireland. In ROI, workers are entitled to 4 weeks paid annual leave, emanating from the EU Working Time Directive. However, the entitlement to public holidays is separate and eligible employees (depending on their working hours) are entitled to:

• A paid day off on the public holiday
• An additional day of annual leave
• An additional day’s pay
• A paid day off within a month of the public holiday

The calculation of pay for public holidays is governed by the Organisation of Working Time (determination of pay) Regulations 1997

Regulation 5(2) of the regulations sets out the formula to be used when calculating the rate of a public holiday where the employee does not normally work that day.

It provides that, where the employee does normally work a public holiday, the rate paid for that public holiday she be ‘the sum that is equal to one fifth of the sum including any regular bonus or alliance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime, paid in respect of the normal weekly hours last worked by the employee before that public holiday’.

In determining the payment for a public holiday, the Labour Court confirmed that the regulations expressly exclude any pay for overtime in the calculation of ‘an additional pay’ and as such the employees claim that overtime should be included is not well founded. . The Court also held that as the payment of shift premium and meal allowances varied week to week, dependent on the work done/shifts worked, they were  also out of scope and were not well founded.

Comment

This is a welcome decision for employers and confirms that since the weekend allowances and night shift premia were only paid when the hours were worked, the did not need to be included in the calculation of public holiday pay for the purposes of the Pay for Holidays Regulations.

Alan Casey v Securitas Services Ireland

Facts

The complainant brought complaints of unlawful harassment on grounds of race contrary to the Employment Equality Act, 1998 arising out of an incident that occurred on 9^th March 2021 with a fellow colleague.

During that incident the fellow colleague PB was verbally abusive to the complainant and told him to “go [expletive] yourself… he was only a traveller.”

PB was also alleged to have tried to incite the complainant to engage in a physical altercation.

The complainant alleged that the Respondent did not properly deal with the matter, that PB was not dismissed despite the incident amounting to gross misconduct and he was not properly supported during the investigation process which lasted a number of months.

Decision

The adjudication officer dismissed the complainant’s complaint on the basis that the Respondent was able to successfully rely on the defence as set out in s14A(2) of the Employment Equality Act whereby it can demonstrate it took such steps as were reasonably practicable to prevent the harassment from occurring. The AO referred to the case of McCamley v Dublin Bus[2016]27ERL81 in relation to the steps required to satisfy S14A(2) which included policies and procedures, union engagement, as well as a throughout investigation and appropriate action taken.

Comment

This case reenforces the importance of fit for purpose policies and procedures, adequate employee training and a thorough investigation when an employer wishes to rely on the statutory defence that it is not liable to the discriminatory acts of employees in the workplace. The AO accepted that it is ultimately ‘beyond the control if the employer to stop an employee using abusive, or in this case, discriminatory language. It is the requirement of the employer to take all ‘reasonably practicable steps’ to prevent harassment’.

We are running a half day course on 19^th April 2023 on ‘Conducting Investigation and Disciplinary Procedures in ROI’.

On 10^th May 2023 we are also hosting a free webinar on ‘Understanding the Practical Complexities of the ROI Bullying Code’

For more information on either of these courses, contact the Legal Team or info@eefni.org