12/10/2023

WORK LIFE BALANCE AND MISCELLANEOUS PROVISIONS ACT 2023

Further to our ongoing updates regarding the legislative journey of the Work Life Balance and Miscellaneous Provisions Bill 2022, we can confirm that the Bill has been signed into law by President Michael D Higgins on with commencement orders expected imminently for when the Act will come into force. It is widely anticipated that the provisions being introduced by the Act will be introduced on a staggered basis, particularly given that some of the changes will require separate regulations to cover the applicable rate of pay for the leave.
As a useful reminder, we have summarised the measures being introduced by the Act.

1. Introduction of the right to apply for flexible working for caring purposes.

2. Right to request Remote working.

3. Domestic violence leave.

4. Leave for medical care purposes.

5. Extension of breastfeeding facilitation period.

Introduction of the right to apply for flexible working for caring purposes.

In accordance with the requirements of the Work Life Balance Directive, which must be implemented by Member States, the legislation granted parents and those with caring responsibilities the right to make a request for flexible working.

To be eligible to apply, the employee must be a parent of a child under the age of 12 (or 16 if disabled) or with caring responsibilities for a specified person, as defined by the Act. The request for flexible working must be for the purpose of providing significant care or support.

Employee making the request must have at least 6 months service at the date the request would take effect, but not at the tm the request was made.

There is no right for the request to be approved.

ROI MEMBER NEWSLETTER

APRIL & MAY 2023

Right to request Remote Working

The right to request remote working was an expected addition to the Work Life Balance and Miscellaneous Provisions Bill as it made its way through the Oireachtas, following the Remote Working Bill effectively being the Right to Request Remote Working was effectively shelved as it began the legislative process.

The new right will allow all employees who have 6 months continuous service before a request for remote working can be made. The employer should consider the request, having regard to the WRC Code of Practice (see below) when responding to a request which should include taking into account the needs of both the employer and employee. As with the right to request flexible working, there is no right for any such request to be granted.

Given the fact that many employers have continued to offer a remote/hybrid working model post pandemic, the impact of the statutory right to request remote working remains to be seen.

Domestic Violence Leave

Following in the steps of its closest neighbour Northern Ireland, who introduced Domestic Abuse Leave in 2022 (commencement date awaited), the Act will grant employees the right to take up to a maximum of 5 days in a consecutive 12-month period.

The purpose of the leave will be to enable the employee to seek medical attention, assistance of professional services, counselling or legal assistance.

The time off will be paid at a prescribed daily rate, such rate to be confirmed in subsequent regulations set by the Minister.

Leave for medical care purposes.

The Act, when fully implemented, will give employees the right to 5 days, unpaid, eave in any period of 12 consecutive months for time off for ‘medical care’ for the response of providing personal care or support to a specified list of persons, referred to below, who is in need of significant care or support for serious medical reason.

• a person of whom the employee is the relevant parent;

• the spouse or civil partner of the employee;

• the cohabitant of the employee;

• a parent or grandparent of the employee;

• a brother or sister of the employee;

• a person, other than one specified who resides in the same household as the employee.

Extension of breastfeeding facilitation period

The Act Bill has amended the Maternity Protection Act 1994 to extend the period during which an employee must be facilitated with breaks for the purposes of breastfeeding.
Currently an employee is entitled to reduce her working hours, without reduction in pay, or receive paid time off for the purposes of breastfeeding for up to 26 weeks following the birth of a baby, the Act will extend this right to up to 104 weeks following the birth of a child.

WRC PUBLIC CONSULTATION ON A CODE OF PRACTICE ON THE ‘‘RIGHT TO REQUEST REMOTE WORKING’’

The Workplace Relations Commission (WRC) has been directed under Section 20(2) of the Workplace Relations Act, 2015, to prepare a Code of Practice on the ‘Right to Request Remote Working’ as required under Part 4 of the Work Life Balance and Miscellaneous Provisions Act 2023 as referred to above.

The WRC is undertaking a public consultation with a view to drafting a Code of Practice the ‘’Right to Request Remote Working’’. The Code will, hopefully, set out practical guidance for employers and employees as to the steps that may be taken for complying with the requirements of the Act in relation to applications for flexible or remote working.

The WRC invites submissions on the contents of the draft code to be submitted to the WRC by 5pm on 9 June 2023. There is no further information provided by the WRC in relation to the structure, form or content of any feedback or submission.

Any member wishing to feed into this consultation should send their comments to kathryn@employersfederation.org by 5pm on Monday 5th June 2023 The association will then respond in full, including all members feedback, to the consultation process

NEW CONSTRUCTION INDUSTRY SECTORAL ORDER

On 28 April 2023 the Department of Enterprise Trade and Employment approved and published a SI Sectoral Employment Order (Construction Sector) 2023 (the Order).
The Order, which amends the Sectoral Employment Order (Construction Sector) 2021, which came into affect on 18 September 2023, with further to take effect in August 2024 and will apply to those who work in the construction sector to include craft persons, construction persons and apprentices.

A breakdown of the new increased rates are detailed below.

With effect from 18 September 2023- 4th August 2024

Minimum hourly rate of pay

• Craftsperson €21.49 per hour
• Category A Worker €20.86 per hour
• Category B Worker €19.35 per hour
• Apprentice

o Year 1 – 33.33% of Craft Rate
o Year 2 – 50% of Craft Rate
o Year 3 – 75% of Craft Rate
o Year 4 – 90% of Craft Rate

Minimum Pension Contribution Pension Contribution from 18th September 2023 Employer daily rate – €5.96 (weekly – €29.78) Employee daily rate – €3.97 (weekly €19.87) Total contribution daily into the scheme per worker – €9.93 (weekly €49.65)

Pension Contributions

• Employer daily rate – €5.96 (weekly – €29.78)
• Employee daily rate – €3.97 (weekly €19.87)
• Total contribution daily into the scheme per worker – €9.93 (weekly €49.65

With effect from 5 August 2024.

Minimum hourly rate of pay

• Craftsperson €22.24 per hour
• Category A Worker €21.59 per hour
• Category B Worker €20.03 per hour
• Apprentice

o Year 1 – 33.33% of Craft Rate
o Year 2 – 50% of Craft Rate
o Year 3 – 75% of Craft Rate
o Year 4 – 90% of Craft Rate

Pension Contribution

• Employer daily rate – €6.17 (weekly – €30.82)
• Employee daily rate – €4.11 (weekly €20.57)
• Total contribution daily into the scheme per worker – €10.28 (weekly €51.39

A copy of the order is available here.

CASE LAW UPDATE

1. KIERAN GLYNN -v- RAY WHELAN LIMITED

Unfair Dismissal & Disability Discrimination Contrary To Employment Equality Act

Facts

Mr Glynn was employed by the Respondent as a Bin Man from 1998 until September 2020 after which point he alleged that his employment had been terminated by his employer. The Respondent denied that it had terminated Mr Glynn’s employment but rather that he refused to return to work after being requested to attend a disciplinary hearing to consider his non-attendance at an OH appointment.

Mr Glynn suffered from obesity, asthma, diabetes, and gout and had a long history of attendance and performance issues associated with his conditions.

In February 2019, Mr Glynn was absent from work for a period of one week because of gout. When he indicated his intention to return to work, the Respondent had concerns about his fitness to carry out his duties. Mr Glynn then provided the Respondent with a number of reports from his own GP which indicated that he was fit for work. However, the Respondent obtained its own OH report which stated he would only be fit when his respiratory issues settled down. Mr Glynn remained out on sickness absence.

Mr Glynn and the Respondent entered a 7-month dispute, which included numerous correspondence (which included correspondence from Mr Glynn’s solicitor) regarding his fitness for work. Mr Glynn alleged that during a conversation his Manager allegedly offered £10,000 to leave; the Respondent disputed that any offer had been made.

Mr Glynn returned to work in September 2019 when OH confirmed he was fit for work. Initially, Mr Glynn carried out more menial tasks but following a written objection (sent via his solicitor) he returned to his normal duties.

In May 2020, the Respondent received complaints from employees regarding Mr Glynn’s ability to safely carry out his duties which included he was breathless when carrying out tasks and had fallen asleep in the lorry. This resulted in Mr Glynn being suspended from work on full pay pending the Respondent obtaining an up-to-date medical assessment, which Mr Glynn refused to co-operative with.

Months passed whereby Mr Glynn was invited to OH assessments without success and also to disciplinary hearings to consider his repeated failure to attend medical appointments. Mr Glynn was given multiple opportunities to co-operate with the process but refused. Mr Glynn refused to attend the last disciplinary hearing scheduled for 14th September 2020 and correspondence from his solicitor (dated 16th September 2020) maintained the position that Mr Glynn had been dismissed, despite no decisions being made by the Respondent.

Mr Glynn brought claims of unfair dismissal, harassment, victimisation and failure to make reasonable accommodations. Mr Glynn alleged that the Respondent had engaged in a campaign to get rid of him, which commenced in 2019 and which was evident by the Respondent offering to pay him £10,000 to leave.

The Respondent denied that Mr Glynn had been dismissed but rather maintained the position that Mr Glynn had abandoned his employment and had, in effect, resigned from his role.

Decision

The AO found that Mr Glynn had not been dismissed by the Respondent. At all times the Respondent had reiterated its position that Mr Glynn’s role remained and encouraged him to attend OH assessments so that medical advice could be obtained regarding his fitness for work.

The AO went on to consider the action by the Respondent, having regard to the requirement of Mr Glynn to attend OH and arranging disciplinary hearing for his failure to do so, was not unreasonable in the circumstances and did not amount to a fundamental breakdown in trust and confidence entitling Complainant to resign.
The AO did not uphold Mr Glynn’s complaints of harassment, victimisation or failure to make reasonable accommodations.

Learnings for Employers

This case is reassuring for employers who have concerns regarding an employee’s fitness for work and require independent medical evidence to verify that if the employee is capable of carrying out their normal duties.

If there are serious concerns regarding an employee’s ability to safely carrying out his tasks, then it may be reasonable to suspend them until clarification can be obtained.

If an employee refuses to cooperate with the requirement to attend a medical appointment, without good reason, the employer can require them to attend a disciplinary hearing and may take action against the employee for failure to cooperate and/or decision on capacity based on the information it has in its possession.

2. BUTTIMER -v- OAK FUEL SUPERMARKET LIMITED TRADING AS COSTCUTTER RATHCORMAC [2023] IEHC 126,

Interlocutory Injunctive Relief for probationary dismissal

Facts

Ms Buttimer was employed by Oak Fuel Supermarket Limited as a Store Manager in the fuel station of the respondents business.

She was employed under a 6-month probationary period during which time her suitability for continued employment would be assessed. During her probationary period, she could be dismissed without cause on one week’s notice.

Within two weeks of her starting employment, allegations were made against her by a co-worker.

The Respondent commenced an investigation in accordance with its bullying and harassment policies and Ms Buttimer was informed that the disciplinary procedure may apply if the allegations were substantiated. While the investigation was ongoing the employee signed a new contract of employment which stated that the standard disciplinary procedures did not apply during the probationary period.

Further complaints were made against Ms Buttimer a few weeks later, shortly thereafter the Respondent terminated her employment.

Following her dismissal, Ms Buttimer issued proceedings in the High Court seeking a series of interlocutory orders restraining her former employers from;

1. treating her as other than employed or continuing to be employer by them;

2. appointing another person in her position;

3. terminating her contract of employment other than in accordance with her legal entitlement;

4. communicating to any other party that she is no longer employed by them; and

5. requiring her employer to pay her salary.

Ms Buttimer alleged that she was dismissed because of the allegations made against her and the alleged misconduct. She argued that she was not afforded fair procedures, as required by the Code of Practice and in accordance with her constitutional rights and as such was wrongfully dismissed.

The employer denied that the employee had been dismissed because of misconduct but instead argued that the dismissal was on grounds of her poor performance, and as such fair procedures did not have to be complied with.

Decision

The High Court granted two interlocutory orders restraining the employer from:

1. Appointing another person to fill a role left vacant following a disputed dismissal, and

2. Publishing or communicating to any party that the employee was no longer employed, pending the outcome of the full trial.

The Court determined that “the mere fact that [certain conduct] might also be considered as a performance issue does not preclude it from being misconduct”. The Court must consider the real and substantive of the reason for the dismissal. The right to fair procedures does not only arise where the termination is for stated misconduct, nor can it be contracted out of. While in this case the employee’s second contract disapplied the company’s standard disciplinary procedure during the probationary period, the employer could not contract out of the common law and constitutional principles of fair procedures. Applying the above reasoning the Court found the employee had established a strong case that was likely to succeed at trial.

The Court then moved to consider whether, on the balance of convenience, the employee should be granted the relief’s sought. It held the primary focus when deciding to grant an injunction “has to be to minimise the risk of injustice”. In making this assessment the Court considered:

1. The strong case that damages would be an adequate relief in this case, as the direct financial loss would be readily calculable (this would be the amount the employee would have been paid had she not been wrongfully let go and arguably, limited to one week’s notice);

2. The significant damage to the employee’s reputation as a result of the termination and the questionable value granting an interlocutory injunction would have in mitigating that damage;

3. The fairness of obliging the employer to pay the employee’s salary until the trial of action; and

4. The objective breakdown in the relationship of trust and confidence between the employee and employer.

Learnings for Employers

Injunctive relief is more readily sought in the Republic of Ireland, particularly by employees. Injunctions can either compel an employer to do a certain act or to refrain from doing something. The High Court must carry out the ‘balance of reasonableness’ test when considering injunctive applications as granting an injunction has significant restrictions on an individual’s rights.

It is often hard to distinguish between conduct and performance issues and often both issues can be intertwined. It is therefore recommended, particularly given the practice of
employees more readily applying for (and being granted) injunctions in the Republic for Ireland, to follow a fair procedure in all cases of probationary termination.