Practice Area Articles
By Michael Kennedy
Back to International Employment Law
KEY DEVELOPMENTS FOR 2021
Dismissal during probation
Ireland' Unfair Dismissals Acts do not apply in relation to "the dismissal of an employee during a period starting with the commencement of the employment when he is on probation…if his contract of employment is in writing, the duration of the probation…is one year or less and is specified in the contract." However, in O'Donovan v Over-C Technology Limited and another (2020), the Irish High Court stated that "depending upon the terms of the relevant contract," a common law obligation to conduct a performance assessment in accordance with the principles of natural justice can arise as a prerequisite to effecting the dismissal of an employee who is on probation. In that case, the Court made an order restraining the employer from repudiating the employee's contract of employment pending the trial of the action.
Deductions from wages
Ireland's Payment of Wages Act states that "[w]here…the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion…then, except in so far as the deficiency…is attributable to an error of computation, the amount of the deficiency…shall be treated as a deduction made by the employer from the wages of the employee on the occasion." In Balans v Tesco Ireland Limited (2020), Tesco contended that the contract of employment erroneously provided for a higher wage than that to which the employee was entitled and refused to pay the employee the contract amount. The company argued that the Payment of Wages Act did not prohibit it from so doing, claiming that the "deficiency" between that contract amount and the amount actually paid by the company to the employee was "attributable to an error of computation." The High Court refused to accept that argument and stated that, "in the circumstances of this case, any error made in the drafting of the contract is not to be equated with a deficiency or non-payment attributable to a computational error" and that the Payment of Wages Act was not designed "to permit the effective rectification of a contract which, on the submission of one of the parties, contains an error."
Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work
Prior to 23 December 2020, Irish employers had to have regard for two different Codes of Practice on bullying at work—the Labour Relations Commission's 2002 Code of Practice Detailing Procedures for Addressing Bullying in the Workplace and the Health and Safety Authority's 2007 Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work. The Commission's successor, the Workplace Relations Commission and the Authority having come together to prepare a new code, that code was signed into law by the Minister of State at the Department of Enterprise, Trade and Employment on 23 December 2020 as the Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020. This new Code of Practice replaces the 2002 and 2007 Codes to which reference is made above. Employers should note that this new code does not deal with harassment so the provisions of the 2012 Code of Practice (Equality Act 1998 (Code of Practice) (Harassment) Order) are still relevant in harassment/sexual harassment cases. While a failure to follow this new Code "is not an offence in itself," in any proceedings before a Court, the Labour Court or the Workplace Relations Commission, "a code of practice shall be admissible in evidence and any provision of the Code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question."
KEY DEVELOPMENTS FOR 2020
Enforcement of restrictive covenants
In the case of Ryanair DAC v Bellew, the Irish High Court held that a covenant in a senior executive's contract with his airline employer which prevented him "[f]or a period of 12 months after…termination of…employment" from being "employed…in any capacity in any business…in competition with [his employer] for air passenger services in any market" was unenforceable. The court was satisfied that a post-termination restraint was justified in the circumstances of the case and had "no difficulty with the time constraint"―"the period of 12 months was abundantly justified". However, because the restraint applied to all European airlines and Ryanair had only "demonstrated its interest in protecting its confidential information from…its competitors in the low cost market", the Court was "driven to the conclusion that the clause [was] void and unenforceable as an unjustified restraint of trade". The Court also ruled that because the "legitimate interest of [Ryanair] in restraining [Mr Bellew] from taking up alternative employment is limited to roles which would risk the disclosure or use of its protectable information…the restraint on employment in any capacity [went] beyond that interest and [had] not been shown to be justifiable". Employers should consider reviewing their employees' restrictive covenants to assess enforceability in light of this decision.
Clarification on reasonable accommodations for disabled employees
Irish employment equality law states that "a person who has a disability is fully competent to undertake and fully capable of undertaking any duties if the person would be so fully competent and capable on reasonable accommodation…referred to as 'appropriate measures'…being provided by the person's employer" and employers must "take appropriate measures, where needed in a particular case, to enable a person who has a disability to: (i) have access to employment, (ii) participate or advance in employment or (iii) undergo training, unless the measures would impose a disproportionate burden on the employer". In 2018, Ireland's Court of Appeal ruled that the obligation to take appropriate measures does not extend to considering the removal from a position or job a duty or duties which may properly be considered as a main duty or essential function of the position concerned by the redistribution of all tasks demanded by that duty. On appeal, Ireland's Supreme Court refused to go that far, stating that "it is hard to see there would be any policy or common good reason why the distribution of tasks, or their removal, should be confined only to those which are non-essential. The test must be one of fact, to be determined in accordance with the employment context. . . . The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee" – Daly v Nano Nagle School. This decision is an important clarification on the scope of an employer's obligation to accommodate appropriate measures for disabled employees and should be borne in mind by employers in all sectors.
Risks associated with mandatory retirement practices
Ireland's Employment Equality Acts prohibit discrimination on the ground of age but state that "it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees if: (a) it is objectively and reasonably justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary". In Roper v RTE, an Adjudication Officer recently held that the Irish State broadcaster, Radio Teilifis Eireann ("RTE"), had discriminated against Anne Roper, a former employee, on grounds of age by refusing to permit her to work beyond the company's mandatory retirement age of 65. RTE sought to justify the mandatory retirement by reference to "intergenerational fairness". The Adjudication Officer was not satisfied that RTE "had shown that there is a connection between [Ms Roper's] retirement at age 65 and the broadcaster's objective to encourage intergenerational fairness", finding that "the decision to insist on the complainant's retirement at age 65 was disproportionate to the outcome that it achieved" and directing RTE to pay Ms Roper compensation of EUR 100,000.00 (equivalent to one year's salary). Employers should consider their existing practices and ensure that they have strong evidence before implementing any mandatory retirement requirement as failure to have sufficiently strong evidence may result in significant compensation being awarded to employees.
KEY DEVELOPMENTS FOR 2019
Entitlement to legal representation at internal disciplinary hearings
In the case of Iarnród Éireann/Irish Rail v Barry McKelvey  ICEA 346, the Irish Court of Appeal held that employees who are the subject of internal disciplinary inquiries will not normally be entitled to legal representation during such inquiries. This decision clarifies the employee’s rights to be accompanied during a workplace investigation and implicitly suggests that the previous decision of the Irish High Court in this area, Lyons v Longford Westmeath ETB  29 ELR 35, was incorrect in respect of the entitlement to legal representation.
Extension of the Workplace Relations Commission's powers
The Court of Justice of the European Union has held that the Workplace Relations Commission ("WRC"), (the main employment adjudication body in Ireland), can dis-apply a rule of national law that is contrary to EU law (Minister for Justice and Equality and The Commissioner of the Garda Síochána v Workplace Relations Commission Case C 378/17).
Replying to emails outside of business hours considered a breach of the Organisation of Working Time Act 1997
The case of Kepak Convenience Foods Unlimited Company v Gráinne O’Hara WTC/18/18 illustrated the risk for an employer where its employee is found to have worked excessive hours. In Ireland, subject to certain prescribed exceptions, the Organisation of Working Time Act 1997 does not permit an employee to work more than an average of 48 hours per week. The employee in this case was awarded €7,500 in respect of such a breach because (among other factors) the employee was found to have regularly replied to work-related emails late at night.
In Nano Nagle School v Daly, the Irish Court of Appeal advocated a practical approach when dealing with an employer’s obligation to reasonably accommodate an employee with a disability. The Court of Appeal held that an employer, is entitled to look at the reality of the situation, and what the employee can and cannot do, when determining whether any reasonable adjustment would accommodate the employee returning to employment. The Court of Appeal's decision has been appealed to the Supreme Court.
KEY DEVELOPMENTS FOR 2018
Gender Pay Gap Reporting
A private members bill, the Irish Human Rights and Equality Commission (Gender Pay Gap Information) Bill 2017 passed the Committee Stage of the legislative process and requires employers with more than 50 employees to report on the following:
- the difference in average hourly and bonus pay for men and women;
- the proportions of men and women receiving bonuses; and
- the number of men and women in each of 4 pay categories.
“Zero Hours” and “Banded Hours” Contracts
The Government has published the Employment (Miscellaneous Provisions) Bill 2017. The Bill contains a number of provisions, the most notable of which are a ban on “zero hours” contracts and the introduction of “banded hours” contracts.
The Bill prohibits “zero hours” contracts by means of requiring an employer who hires an employee to offer an employee a number of hour’s work each week that is greater than zero. The “banded hours” provision will apply such that employees on low-hour contracts, who consistently work more hours each week than the hours provided for in their contracts, will be entitled to be placed in a “band” of hours that better reflects that reality.
The High Court in the case of Michael Lyons v Longford Westmeath Education and Training Board  IEHC 272 has recently ruled on pre-disciplinary investigations and fair procedures. The judgement provides that in any investigation which may result in the dismissal of an employee (or may impact on the good name of an employee), an accused person has a right to be legally represented and has a right to cross-examine his or her accuser - through counsel.
With effect from 1st January 2018, the national minimum wage for an adult employee further increased to €9.55 per hour.
Parental, Maternity and Paternity Protections
Following on from the introduction of statutory paternity leave in 2016, the Irish legislature has proposed further developments in the area of parental and maternity leave. The Parental Leave Bill if enacted will extend unpaid Parental Leave from 18 weeks to 26 weeks. Furthermore, the Minister for Employment Affairs and Social Protection has announced provisions to extend the amount of maternity leave and benefit available for premature babies, in the equivalent of the duration between the actual date of birth of the premature baby and the date when maternity leave was due to begin.
KEY DEVELOPMENTS FOR 2017
The potential implications of Brexit
Following the UK’s vote in favour of Brexit, it is unclear what impact this will have on the free movement of workers as between the UK and Ireland, employment permits and whether it will result in changes to employment legislation.
Increase in the National Minimum Wage – move towards a living wage
Following an increase in 2016 of 50 cents from €8.65 to €9.15, the government has announced its intention to increase the statutory minimum wage to €9.25 per hour.
Data Protection – preparation for the implementation of the General Data Protection Regulation
The General Data Protection Regulation came into force on 25 May 2016 and introduces substantial changes in the area of data protection and severe sanctions for non-compliance. It will apply in all EU Member States from 25 May 2018.
Religion, dress codes and the workplace
A recent ECJ decision has found that it was not direct discrimination to ban headscarves but it was capable of constituting indirect discrimination, therefore, the debate will continue in 2017.
KEY DEVELOPMENTS FOR 2016
Changes to laws in relation to retirement and equality laws
The Equality (Miscellaneous Provisions) Act 2015 continues to allow employers to set compulsory retirement ages but only if they are ‘objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’. In addition, the Act brings in restrictions to derogations from equality laws for religious run education, medical and religious institutions
The Government announced its intention to introduce a Family Leave Bill
The Government announced its intention to introduce a Family Leave Bill, which will consolidate in one legislative enactment current legislative provisions regarding maternity, adoptive, parental, and caregiver’s leave.
New paternity leave right for parents
The commencement of the long awaited Paternity Leave and Benefit Act 2016 which now provides for two weeks’ paternity leave for all “relevant parents”.