20/09/2022

Legislative developments

Parent’s Leave increase

Parent’s leave entitles each parent to a period of time off during the first 2 years of a child’s life, or in the case of adoption, within 2 years of the placement of the child with the family. Employers are not obliged to pay the employee during parent’s leave, but employees who qualify for Parent’s Benefit get €250 each week.

Changes to Parent’s leave from 1 July 2022:

• Parent’s leave increased from 5 weeks to 7 weeks for children born or adopted after 1 July 2022
• Employees can claim the additional 2 weeks’ parent’s leave if their child is under the age of 2 on 1 July 2022 or their adopted child has been placed with their family less than 2 years on 1 July 2022
• The extra leave must have been taken on or before the child’s 2^nd birthday or within 2 years of the adoption placement
• Parent’s Benefit (where payable) increased from 5 weeks to 7 weeks for each parent

Parents of children born between November 2019 and July 2020 will not be eligible for the additional 2 weeks.

New rules on transparent and predictable working conditions

Ireland has until 2 August 2022 to transpose the European Union Transparent and Predictable Working Conditions Directive into national law.

One of the main changes being introduced via the Directive is a limit on the length of probationary periods at the beginning of a job.

Currently, employers are free to set any period of probation for new joiners; often probationary periods are set between 3 or 6 months, but can be up to 11 months to reflect the general rule that an employee does not have Unfair Dismissal rights until they have attained 1 years continuous service.

Under the Directive, EU member states are required to ensure that:

• probationary periods do not exceed 6 months;
• in the case of a fixed-term contract, the length of any probationary period shall be proportionate to the expected duration of the contract and the nature of the work;
• new probationary periods cannot be used where an employment contract is being renewed for the same function and tasks.

The Directive does provide that employers may, on an exceptional basis, provide for longer probationary periods where this is justified by the nature of the employment, or in the interest of the employee. Helpfully also, where the employee has been absent from work during the probationary period, employers may provide that the probationary period can be extended correspondingly, in relation to the duration of the absence.

Where employers will undoubtedly notice the greatest impact is in situations where an initial probationary period would normally be extended. In light of the requirements of the Directive, an extension beyond 6 months will now only be in exceptional circumstances.

Plans announced to replace current Minimum Wage with a new living wage

Proposals have been outlined to phase in a living wage over the next 4 years. Consultation with employer and worker representative groups, unions and the public on the draft plan will now take place.

The current proposals include:

• the living wage will be set at 60% of the median wage in any given year, which in 2022 would be €12.17 per hour. The national minimum wage is currently €10.50 per hour;
• the national minimum wage will remain in place until the 60% living wage is fully phased in, in 2026, but will increase over the years as usual, closing the gap between it and the living wage;
• from 2026 the living wage will be mandatory for all employers;
• depending on prevailing economic circumstances, it is proposed to give the Low Pay Commission discretion to introduce the full living wage faster or slower than the 4 years proposed.

Case law

Ní Cheallaigh v Donegal Travellers Project (Limited by Guarantee) (WRC)

A pay dispute arose between the Complainant and her employer that subsequently developed into a grievance concerning: pay; allegations of bullying and poor line management; failing to address the Complainant’s work concerns in accordance with agreed procedures; and failing to conduct a grievance in a timely manner. The Claimant ultimately resigned from her employment and brought a number of claims at the WRC.

The Adjudication Officer noted in their Decision that the case was unusual in nature. It was not contended by the Complainant that the pay issues, or the various issues that led to the grievance, were sufficient to justify her departure. The Complainant’s case was that the time the grievance process took, and how it was conducted, that made it reasonable for her to believe that her trust with her employer was irrevocably broken.

The WRC found the employer correctly applied its grievance policy when it appointed an external investigator to investigate the Complainant’s grievances. The Adjudication Officer stated this appointment could have been agreed with the Complainant, but that the failure to do so was not fatal. The issues for the Respondent arose when the appeal process took place. The Respondent was not required, under its policy, to offer an appeal, and it was noted this was most likely done in good faith to demonstrate a proper response to the Complainant’s concerns.

Unfortunately for the employer, the WRC found the appeals process to be “quite calamitous from a fair procedures point of view.”  The Respondent appointed an appeals officer who had a working relationship with the manager against whom the grievance had been raised, but also his wife had been involved in a previous argument with the Complainant. It was found that, even if there was no bias, the perception of bias attached to the appeals officer meant it was inappropriate that he was appointed to decide the appeal. The Complainant requested that he be replaced, but no reason was provided to her why this was refused. The first time a different person was proposed was when the Complainant was sitting in the appeal hearing across from the appeals officer. The Adjudication Officer stated “It would have been difficult for her to agree in these affronting circumstances.”

The WRC found that the appeal process breached the Respondent’s grievance policy and rules of fair procedure. The flaws in the appeal process allowed the Complainant to form a reasonable belief that the appeal was not a genuine appeal process, that the Respondent wanted the grievance process to end, that her grievances were ultimately not important and consequently, that she was not valued in the workplace. The Adjudication Officer was satisfied that, given the conduct of the appeal, it was reasonable for the Complainant to terminate her employment.

The Complainant was found to have been unfairly dismissed and she was awarded 4 months loss of salary (€8960.00).

The interesting point in this case is that, had the employer not offered an appeal (which it was not obliged to do), the outcome likely would have been very different. However, once the employer took the decision to hold an appeal, it was obliged to conduct it in accordance with their grievance policy. This would have required the employer to again appoint an independent person as had occurred earlier in the process. The WRC noted “If the Respondent was unable to afford this, its grievance policy did not oblige it to conduct an appeal at all.  However, what the Respondent was certainly not entitled to do was to decide to hold an appeal which then was manifestly unfair.”