01/07/2024

SUMMER 2024

LEGISLATIVE UPDATE

1. Changes to collective redundancies- Insolvent Employers

With effect from Monday 1 July 2024, a number of important changes will be coming in relating to collective redundancies.

The Protection of Employment Act 1977, which governs collective redundancy rules, has been amended to:

1. Remove the exemption from notification requirements in respect of collective redundancies caused by the employer’s insolvency. This means all collective redundancies are subject to a 30-day notification period before they take effect, including where the employer is insolvent.

 

2. Provide that employees may seek redress from the Workplace Relations Commission (WRC) where their employer makes them redundant before the 30-day notification period finishes. This change applies to all collective redundancies, not just those precipitated by insolvency. This is in addition to employees’ existing right to make a complaint to the WRC should their employer fail to consult with or provide information to their representatives.

 

3. Align the 1977 Act with case law of the Court of Justice of the European Union (CJEU), by explicitly providing that the employer’s obligations must also be complied with by a liquidator or similar appointee, where they are managing the collective redundancy process in an insolvency situation.

 

4. Provide that, where a liquidator or similar appointee is managing the collective redundancy process in an insolvency situation and they fail to comply with their duties under the Act, the WRC may prosecute them, with a maximum fine on conviction of €5,000.

 

5. Update the methods by which employers can notify the Minister of proposed collective redundancies.

For more information on the changes being introduced by the Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 see here.

 

2. Increase in rate of Pay for Contract Cleaning Industry

The Employment Regulation (Amendment) Order (Contract Cleaning Industry Joint Labour Committee) 2024 (ERO) came into effect on 1 June 2024 providing for an increase in the hourly rate of pay for the contract cleaning industry.

The Employment Regulation Order (ERO) fixes the statutory minimum rates of pay and other conditions of employment for workers employed in the contract cleaning industry.

As of this date, all workers aged 18 and over in the sector are entitled to a minimum rate of pay of €13.30 per hour.

A full breakdown of the hourly rates of pay are detailed below:

Age	Hourly Rate of pay
Under 18	€9.31
18 years old	€10.64
19 years old	€11.97
20 years old+	€13.30

All the terms and conditions from the previous Employment Regulation Order (ERO) are maintained. For more information see Contract Cleaning – Workplace Relations Commission.

 

3. Review of the Code of Practice on access to Part-Time Working

The Workplace Relations Commission has launched a review of the Code of Practice on access to Part-Time work (SI No. 8 of 2006).

The Code of Practice, which was introduced in 2006, sets out best practices for employers when considering to a request by workers to transfer from part-time to full-time work or to increase their working time should the opportunity arise.

The introduction of a Code of Practice on access to part-time working accords with the principle of minimising the potential for indirect discrimination in relation to part-time working and introduces positive measures to eliminate obstacles and barriers and encourage greater participation in employment on a number of grounds, as set down in the Employment Equality Acts 1998-2004.

The Code seeks to:

• Promote the development of policies and procedures to assist employers, employees, and their representatives, as appropriate, to improve access to part-time work for those employees who wish to work on a part-time basis;
• Promote discussion and encourage employers, employees, and their representatives, as appropriate, to consider part-time work and to address any barriers that may exist;
• Stimulate employers – where consistent with business requirements – to provide wider access to part-time work options;
• Provide a framework and practical guidance on procedures for accessing part-time work;
• Inform those who are interested in part-time work.

New pieces of legislation have been introduced since the Code was published which may impact on its effectiveness for certain employers and employees, such as the introduction of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 as well as the introduction of banded hours of work, provided for by the Employment (Miscellaneous Provisions) Act 2018.

The WRC is inviting submissions from interested parties on the matter to be sent to it on or before 17:00 on Friday, 12 July 2024. There is no set format specified for stakeholders who wish to make a submission to the WRC.

The Association will submit a response to the WRC on behalf of Members. Any Member that wishes to feed into the review should send their submission to kathryn@employersfederation.org by Wednesday 10^th July 2024 to allow sufficient time to formulate a detailed response.  Members are encouraged to detail the points they wish to raise about the Code of Practice and how they have found its operation in the workplace.

For more information on the review of the Code of Practice please see here.

 

4. The Future of Work- A Review of Labour Market and Workplace Relations Challenges.

The WRC commissioned the University of Limerick (UL), to carry out a piece of research on Work and Employment Transformations in Ireland: A Review of Labour Market and Workplace Relations Challenges. The WRC commissioned the University of Limerick, to carry out a piece of research on Work and Employment Transformations in Ireland: A Review of Labour Market and Workplace Relations Challenges.

The report examines how four key developments – inflation, recruitment and retention challenges, technology (with a particular focus on remote work and artificial intelligence), and climate change – are impacting work and workplace relations in Ireland.

A summary of some of the key interview findings are set out below:

Inflation

Inflation was viewed as having greater priority for employers and workers given its immediate impacts on business costs, incomes, and related, wage negotiations. Inflation was inextricably linked to recruitment and retention challenges with significant pay rises for certain roles with acute labour shortages.

Interviewees expected inflation to be an ongoing issue for the medium term with some business closures and weakened economic growth, but they also expected strong labour market activity in terms of the recruitment intentions of employers.

Recruitment and retention

Interviewees reported a prevailing tight labour market in Ireland with some sectors such as hospitality having particularly severe difficulties recruiting workers. Skills gaps were evident across all sectors but in general, interviewees noted a need for developing digital, interpersonal, and managerial skills. The availability and costs of housing, childcare costs, and cost of living crisis were identified as key challenges in recruiting and retaining workers from within Ireland and from abroad.

International recruitment was identified as a means of addressing labour and skills shortages with the work permit schemes helping to some extent – although concerns were raised whereby certain jobs found it difficult to access the scheme as well as high fees for work permits and inability to bring families to Ireland.

There were concerns about the participation rate of persons with a disability and men over the age of 50.

Technology

There were mixed views on the predicted impact of digitalisation and automation on job quantity. Some interviewees noted that there was little evidence of job loss to date whilst others felt that there was a real threat to jobs. The potential threat to jobs needed to be ameliorated by an emphasis on upskilling/reskilling. Technology and automation are viewed as having the potential to contribute to safer working environments, smarter ways of working, and increased leisure time for workers.

Remote/hybrid working was cited as presenting many opportunities and challenges. There was a concern about the potential for a ‘work life balance privilege gap’ where those working under hybrid arrangements are more likely to have flexible working compared to those who do not work remotely.  Of all the forms of technological change discussed, AI was most frequently cited as likely having the greatest consequences for work.

Issues around GDPR and the potential monitoring of employees’ work raised questions about the suitability of existing legislation for the workplace relations implications of technological change.

Climate change

Interviewees recognised the importance of climate for societies and economies, and that the climate crisis will impact the labour market, jobs, and employment but strategic planning and action have tended to be limited.

There is uncertainty over the wider workplace relations impacts of climate change, and these may take 10-20 years to emerge. Significant changes to the existence and nature of jobs because of climate change is expected and more upskilling and re-skilling is necessary, particularly building-related skills.

Overall, there was no sense that significant conflict will arise from climate change, or from mitigation and adaptation measures, if there is adequate planning for job changes. Conflict is as likely between employers/workers and the state as between workers and employers with the state expected to play a significant role in managing the consequences of climate change.

The full Report can be accessed here.

CASE LAW UPDATE

1. An Employee v A Service Provider to Financial Services

Sick Leave Act 2022

Facts

The complainant employee worked as a customer service adviser at an unidentified service provider to the financial services sector. He was issued with a verbal warning in September 2023 following “a number of unplanned absences” from work that year. The employee stated that his absences were because either he or members of his family were unwell. The employee did not have an underlying medical condition.

The employee said he became “very sick with flu-like symptoms” at work on October 12^th 2023, and went out sick for a day and a half, submitting a doctor’s note to his employer and availing of his statutory sick pay rights under the Act.

After this he was disciplined by the employer and received a written warning based on his level which was upheld in an internal appeal.

The employee asserted that he had been penalised for “exercising his rights under the Act” when his employer issued the warning and that in accordance with the legislation he was entitled to be treated ‘as if he had not been absent’ during a period of statutory sick leave.

The employers’ position was that the worker had been absent six times in ten months, totalling 11.5 days, which it regarded as a “significantly high” level of absence and “beyond what is deemed as an acceptable level of attendance.”

It told the WRC it was “entitled to discipline” the employee, adding that “bad timekeeping” and “unauthorised absence” were listed as misconduct in its disciplinary policies. The company said that it had at all times followed the fair procedures and the relevant statutory code, and denied any breach of the Sick Leave Act.

Decision

The Adjudication Officer (AO)found that the warning issued to the employee in November 2023 was directly “linked to the complainants certified sick leave” on 12^th October 2023 and as such was a breach of the Act. Whilst she accepted the company had followed its attendance and disciplinary policy, she found that by taking into account the worker’s absence on statutory sick leave when it imposed the written warning, the employer was in breach of the legislation.

The employee was awarded 3 weeks’ pay, in excess of €1400, for breach of the Sick Leave Act 2024.

Learning points for employers

This decision will come as a surprise to many employers as it suggests employers will not be able to take action against an employee, or take into account, any absence which occurs during a period of statutory sick leave where the employee is in receipt of statutory sick pay.

When considering the intention of the legislation, we believe that the decision Is wrong and expect that an appeal will be lodged to the Labour Court by the employer.

The WRC decision occurs against the backdrop of doubts as to whether the scheme will be extended as Initially planned. When the scheme was announced in 2022 then-Tánaiste Leo Varadkar said the statutory scheme would expand a worker’s basic entitlement to seven days’ leave in 2025 and 10 days in 2026 – but the further expansion of the scheme is now in doubt.

In answer to questions in the Dáil, Minister of State at the Department of Enterprise, Emer Higgins TD, stated that any further expansion of the scheme in 2025 would be subject to an economic assessment highlighting that the business community have raised concerns about the overall impact of increased labour regulation on the cost of doing business.