06/10/2022

ROI LEGISLATION UPDATE

Sick Leave Act 2022

We can confirm that the new Sick Leave Act 2022 will commence on 1 January 2023.

Other Legislation

The Government has published its Legislation Programme for the Autumn 2022 which contains 38 bills for priority publication. Priority legislation includes the following that will affect employment law and HR:

• Work-life Balance
• Automatic Enrolment Retirement Saving System Bill and the
• Right to Request Remote Work Bill.

The full programme is available here

Domestic Abuse Leave & The Work Life Balance and Miscellaneous Provisions Bill.

At our NI Conference last week, we discussed the Northern Ireland Domestic Abuse (Safe Leave) Act which provides employees and workers the right to up to 10 days paid safe leave each year to deal with issues arising from domestic abuse. Northern Ireland was the first jurisdiction it provides for such laws in UK and Ireland.

However, in ROI under the Work Life Balance and Miscellaneous Provisions Bill 2022, the Government has agreed to introduce paid leave for victims of domestic violence.

Once enacted, those who are suffering or at risk of domestic violence will be entitled to 5 days of paid leave per year. The Government will also put in place mechanisms to support employers in developing domestic violence workplace policies and to better support employees experiencing domestic violence.

In addition to measures on domestic violence, the Bill contains three key measures to support families and carers, namely:

• A right to request flexible working arrangements for caring purposes, for parents and carers
• A right to leave for medical care purposes, both for employees with children up to age 12 and carers
• Extension of the current entitlement to breastfeeding/lactation breaks from six months to two years

Increase in Minimum Wage

Leo Varadkar, Minister for Enterprise, Trade and Employment and The Tánaiste has received Government approval to accept the Low Pay Commission’s recommendation to increase the National Minimum Wage to €11.30 per hour from 1 January 2023.

CASE LAW UPDATE

WRC – Mohamed Saad v Maynooth University CA-00042552-001

Complaints of unlawful race and religious discrimination in relation to access employment.

Summary-In the context of an interview process, taken as a whole, a question asked of a candidate concerning international work experience did not raise an inference of race or religious discrimination

Facts

The Complainant is an Arab/African Black Muslim Egyptian, who was granted Irish citizenship in 2017 and had applied for the position of Assistant Professor/Lecturer in the Department of Experimental Physics. He attended an online interview and was not successful. He sought feedback about the reasons he was not successful, and the university provided same and after further exchange told him that they believe that they had sufficiently responded to his request.

Shortly before the first day of hearing the complainant made a further written submission which included the accusation that “I was asked by Prof Farrell (the chair of the interview board) a very sensitive and surprising question about the “difference between Egyptian students and teaching in Egypt in comparison to Irish students & teaching in Ireland”!!!” The Complainant alleged this shows a difference of treatment between him and the successful candidate and the second placed candidate.

In evidence, the interviewer (Professor Farrell) said he could not remember asking the question but did not deny he had asked it. The Professor’s evidence was that different countries have different methodologies, and the question would have been asked to explore this and that he would have asked other candidates similar questions, including the second ranked candidate who had worked in the USA.

During the hearing the University were able to provide detailed evidence about the marking system (supported by their notes) and scores awarded to the applicants and for the interviews. In addition, they were able to breakdown the marks allocated to the complainant, the successful applicant and the second placed applicant. Th WERC found that the University had explained the complainant ‘scored well in all three areas and why he was considered appointable but there were two other applicants who scored higher.

Findings

The WRC commented that in isolation the question could give an inference of a discriminatory outlook by the questioner. However, in the context of an interview process taken, as a whole, a question asked of a candidate concerning international work experience did not raise an inference of race or religious discrimination.

WRC also carefully considered all the evidence presented both in written submissions and in oral evidence at the hearings and found nothing in the interview process and marking that can give rise to an inference of discrimination on the grounds of race or religion.

Lessons

This is a reminder to those conducting interviews:

1. Maintain good notes and factually document what was said and explaining the mark awarded
2. Take care in questions (unscripted particularly) in the interview
3. Be consistent in the questions asked of all applicants to be able to robustly respond to allegations of less favourable treatment/discrimination.

WRC –  Manufacturing Supervisor v Pharmaceutical Company ADJ-00039952

Summary- There is no reason why a worker’s grievance cannot be investigated while negotiations as to severance are ongoing

This was a claim presented under Section 13 of the Industrial Relations Acts 1969 which allows for ‘a trade dispute’ to be referred to the Workplace Relations Commission Adjudication Officer.

Section 3 then allows an Adjudicator to “investigate” the trade dispute with a view to ultimately making a “recommendation” in relation to the matter. In effect, this provision allows any dispute between an employer and an employee to be referred to the Workplace Relation’s Commission for investigation. There is no comparable mechanism in Northern Ireland

Facts

The complainant alleged that the day-to-day duties of the off-line supervisors were fundamentally altered without any negotiations or agreement with the workers affected and then raised formal grievances. His complaint was that the employer sought to change his substantive role without his consent.

The complainant stated his grievance was “parked” on 2nd May 2019 as he was approached, and began negotiating, a severance package with the employer. Unfortunately, the employer withdrew the offer during the negations and the grievance process recommenced following a lengthy delay. In this regard, the complainant submitted that the employer engaged in a series of private, one-to-one, meetings on this matter, in the absence of representative. He also submitted that the withdrawal of the offer was unreasonable, given his length of service and good employment record.

The employer undertook an extensive investigation and found that the complainant’s contractual terms were not impacted and that the change in duties feel within the contractual provisions and were reasonable in the circumstances. While the employer did accept that some exploratory discussions took place, these were never formalised or committed to writing. The employer accepted that it did meet with the complainant on a one-to-one basis in respect of these discussions but submitted that these were not formal meetings that required the attendance of the complainant’s union representative.

Findings

WRC found that the dispute regarding the amendment of his work duties could be characterised as an evolution of his duties, one that is in keeping with the wider industrial developments.

It was common case that the exploratory meeting in relation to the same were held on a one-to-one basis, without an express right of representation. In this regard, I note that such talks were informal and purely exploratory in nature. As these discussions may lead to the termination of the Worker’s employment, the initial conversations should be conducted in a delicate and somewhat informal manner.

In relation to the grievance that was “parked” for a period of months while these negotiations were ongoing the WRC found that it does not stand to reason that the grievance investigation would be effectivity stalled whilst the same are ongoing particularly when discussions were only exploratory and informal. WRC found that there is no reason why the worker’s grievance could not be investigated whilst such negotiations were ongoing. Therefore, the WRC found in the workers favour regarding the “stalling” of the grievance procedure and recommended that the employer pay the worker the sum of €2,500 in settlement of this dispute.

Lessons

When deciding if to put a process on hold employers need to consider if the discussions are at an advanced stage and ensure that there is no unreasonable delay. One option is to have those discussions running alongside of any internal process and only pause if an agreement is at a formative stage. If there is no resolution, then should ensure that the internal process is recommenced.