20/09/2022

Legislation update

Statutory Sick Pay Scheme

The Sick Leave Bill 2022 is currently before the Seanad; there are a number of stages it must still progress through before it becomes law. At the date of writing we do not have a firm date when it will come into force this year.

Work Life Balance and Miscellaneous Provisions Bill

The government has approved the draft Work Life Balance and Miscellaneous Provisions Bill. The aim of the Bill is to provide a better work/life balance for parents and carers, encourage more equal sharing of parental leave between men and women, and improve the representation of women in the labour market.

The key proposals are:

• Right to request flexible working for employees with children up to age 12 (or 16 where the child has a disability or long-term illness) and employees with caring responsibilities. Currently a minimum service requirement of 6 months is proposed. Unlike the UK where flexible working arrangements constitute a permanent change to the contract of employment, the scheme in Ireland proposes that employees will be entitled to return to their original working arrangements, hours or patterns at the end of the flexible working arrangement;

• The introduction of 5 days unpaid leave per year per employee where, for serious medical reasons, the employee is required to provide personal care or support to family members or those in a close relationship;

• An extension to the length of paid time off from work or a reduction of working hours for breastfeeding; the proposal is to increase this from 26 weeks to 104 weeks;

• To include transgender males, who have obtained a gender recognition certificate and subsequently become pregnant, to fall within the scope of the Maternity Protection Act 1994.

We will keep Members updated on the progress of the Bill.

Gender Pay Gap Reporting

Guidance has been published on how to calculate gender pay gap metrics https://www.gov.ie/en/publication/1abe5-how-to-calculate-the-gender-pay-gap-metrics-guidance-note/

The gender pay gap reporting obligations begin this year for employers with more than 250 relevant employees on the snapshot date in June 2022. The reporting obligations will extend to employers with more than 150 employees in 2024 and those with more than 50 employees in 2025.

Case law – Data Protection and use of CCTV

Doolin v. The Data Protection Commissioner [2022] IECA 117

The Court of Appeal has held that the use of CCTV security footage to investigate an employee disciplinary issue was unlawful because the footage was collected and processed for the specific purpose of security. In this case employees had not been notified that CCTV could be used for investigatory/disciplinary purposes and therefore the use of it for this purpose was in contravention of Data Protection legislation.

Background

Mr Doolin worked at Our Lady’s Hospice and Care Services in Dublin. In 2015, graffiti was discovered that had been carved into a table in a staff tea room. The graffiti said: “Kill all whites, ISIS is my life.”

The graffiti prompted a security review. The tea room was only accessible to staff members who used electronic fobs to get inside. The outside of the room was monitored by a CCTV camera.

The employer took advice from the gardai following which the employer reviewed the footage to identify all people who entered the room over a 3-day period. Mr Doolin was observed entering the tea room on several occasions. Whilst there was no suggestion that Mr Doolin was involved in the graffiti, the footage showed that he was taking long, unauthorised breaks from employment during the day.

Arising from the content of the CCTV footage, a disciplinary process was initiated against Mr Doolin. The CCTV footage and fob access records were examined with the sole purpose of investigating the issue of breaks. During the process it was put to Mr Doolan that he had taken breaks between 45 and 55 minutes each day, he did not dispute this and was sanctioned.

Mr Doolin lodged a complaint with the Data Protection Commissioner on the basis the employer’s policy on CCTV stated that the use of CCTV was for security purposes only. Further, signage in the area stated that images were recorded for health, safety and crime prevention. He argued that the use of CCTV in the disciplinary process was unlawful because there was no element of security to that investigation.

The Data Protection Commissioner rejected the complaint and the matter proceeded through the Circuit Court, High Court, and finally to the Court of Appeal.

Court of Appeal

At the Court of Appeal Mr Justice Noonan broke down the number of occasions on which Mr Doolin’s personal data was processed:  it was originally processed when it was recorded; further processing took place when it was accessed by the investigators; and it was processed for a third time when data of dates and times were recorded in the final report. It was also held that the footage disclosed information which went beyond Mr Doolin’s image, including where he was and when.

The Court determined that the concept that data subjects should be notified of the purpose of data collection was central to the case. Under the 1988 Act, data is not processed fairly unless the data subject is made aware of the purpose of processing at or before the data is obtained. However, Mr Doolin had not been notified that CCTV could be used for the purpose of disciplinary issues; there was also no basis on which he might have reasonably expected this to be the case. The viewing of CCTV to identify the graffiti perpetrator was “entirely irrelevant to the incidental observation of Mr Doolin taking unauthorised breaks”. As such the data was used for a purpose other than the specified purpose and was therefore unlawful.

This case is an important reminder of the importance of ensuring that your CCTV policy, employee privacy notice and associated data protection documentation is appropriately drafted and covers the purposes the data may be used for. In particular, if you want to reserve the right to rely on CCTV footage as part of any investigation/disciplinary/grievance process employees must be clearly advised in advance of this.