Practice Area Articles
January 16, 2023
Catherine O’Flynn, Jane Barrett, and Elaine Egan
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KEY DEVELOPMENTS FOR 2023
Employers are not currently obliged to establish or contribute to an occupational pension scheme for employees under Irish law. The Draft Heads and General Scheme of the Automatic Enrolment Retirement Savings System Bill 2022 (the “Draft Bill”) envisages employees between the ages of 23 and 60 who earn more than €20,000 and who are not already enrolled in an occupational pension scheme to become automatically enrolled in an auto-enrolment system (“AE system”).
The AE system will be brought in on a phased basis over 10 years to allow employees and employers to adjust to it. Rather than tax relief, it is proposed that the Irish State would contribute €1 for every €3 contributed by a member. The Draft Bill envisages that employees may opt out after an initial six-month period in months 7 and 8 but would be re-enrolled after two years (with a further mandatory six-month period at that point). The proposal is to establish a government agency called the Central Processing Authority to administer the system. It also provides an exemption for a “qualifying occupational pension scheme”. We await the detail on the quality requirements needed for employers that already operate occupational pension schemes to avail of this exemption as it is envisaged to be set out in secondary legislation.
For employers that do not operate occupational pension schemes, auto-enrolment will clearly have a financial impact. However, the Draft Bill is still in very early stages. It may also ultimately be an unpopular political decision to introduce the AE System at a time of economic downturn as it will put additional pressures on employers. Employers should take a “wait and see” approach for now.
Remote and flexible working
The General Scheme of the Right to Request Remote Work Bill (the “General Scheme”) was published by the Government in January this year. This granted employees a right to request remote work once they had 26 weeks’ continuous service. Employers were to be obliged to introduce and maintain a remote working policy to set out the management of requests, the timeframe for a response, and any conditions surrounding remote work within the establishment. The General Scheme also contained a list of 13 non-exhaustive reasons for which an employer could refuse a remote working request.
The full text of the Right to Request Remote Work Bill was originally due to be published around Easter 2022 but its publication was repeatedly delayed. More recently, the Government announced that the revised Right to Request Remote Work Bill is to be integrated into the draft Worklife Balance and Miscellaneous Provisions Bill 2022 (the “Bill”), which was published earlier this year. The Bill will transpose the EU Worklife Balance Directive.
The Bill will introduce a statutory entitlement of five days unpaid leave per year to provide care and support to certain categories of people, it will increase the current entitlement to breastfeeding breaks from six months to two years, and it will introduce a right for parents and carers to request flexible working arrangements for caring purposes. The revised text of the Bill will also grant employees the right to request remote working arrangements. It is expected the revised text will greatly narrow the scope of the previous 13 grounds of refusal, and that the 26-week service requirement may be reduced.
The Bill is expected to be published by the end of the year, with enactment expected in 2023. The amalgamation of the two pieces of legislation will simplify matters for employers who will now be considering requests for flexible working and remote working under a single framework.
The Workplace Relations Commission is expected to issue a singular code of practice on remote and flexible working which will provide welcome guidance to employers and employees alike. Employers should be aware of the upcoming changes and be prepared to amend and update existing policies to ensure compliance once this legislation is enacted next year.
New framework for tips and gratuities
The Payment of Wages (Amendment) (Tips and Gratuities) Act 2022 came into force on 1 December 2022 (the “Act”). Two related statutory instruments also came into force on the 1 December, namely the Payment of Wages (Application of Sections 4B to 4F) Regulations 2022 and the Payment of Wages (Display Notice) Regulations 2022. The main aims of this new legislation are to provide new rights to employees, and to increase transparency around the distribution of tips and gratuities (“Tips”) and mandatory (service) charges.
Employers are obliged to prominently display a ‘tips and gratuities notice’ which sets out whether Tips are distributed, where they are distributed, and the manner and amount of distribution. In addition, this notice must state whether mandatory charges (or any portion of them) are distributed amongst employees and, if so, the manner and amount distributed. Employers are now obliged to provide information regarding their policy on the distribution of Tips and mandatory charges within five days of the employee commencing employment. Employers must also provide a ‘tip statement’ to employees within 10 days of distribution, which must state how the Tips are distributed and the total amount to be paid to the employee.
Where an employer wishes to make a material change to its policies on the treatment of Tips or mandatory charges, they are now obliged to consult with the employees before making such a change. Any Tips received electronically (e.g., by card payment or payment via smartphone) must be distributed fairly and equally amongst employees. Any charge referred to as a ‘service charge’ or any charge that would lead a consumer to believe it is a charge for service must be distributed to staff as if it were received by electronic means. Finally, the Act prohibits employers from using Tips to ‘make up’ contractual rates of pay.
Employers that fall within the scope of the Act should, if they have not already done so, introduce a policy that deals with the distribution of Tips and mandatory charges. Care should be taken when drafting such policies as any change to the policy will require consultation with employees. Employers should also ensure they are displaying ‘tips and gratuities’ notices as required. Finally, employers should bear in mind that changes to these measures may be introduced in December 2023, as the Department of Enterprise, Trade and Employment is due to review the operation of the Act after it has been in effect for 12 months.
KEY DEVELOPMENTS FOR 2022
Introduction of statutory sick pay
Ireland's current lack of statutory sick pay was criticised by the National Public Health Emergency Team (NPHET) because of its possible impact on the spread of COVID-19. The suggestion is that employees with COVID-19 symptoms were disincentivised from taking unpaid sick leave.
On 9 June 2021, the Government announced its approval for the drafting of the General Scheme of the Sick Leave Bill 2021 (the Bill). The purpose of the Government's statutory sick pay scheme (the Scheme) is to introduce, for the first time, a general right to statutory sick pay in Ireland. This right to sick pay will be enforceable by employees through the Workplace Relations Commission and the Courts.
The Scheme will be phased in over a four-year period. This will begin with the introduction of an employee right to three employer-paid sick leave days per year in 2022. This right will fill the three-day gap before employees on sick leave become eligible for illness benefit from the State. The employee’s right will increase incrementally to five days in 2023, seven days in 2024 and ten days in 2025. We understand the Government considered providing for a right to between 15 and 30 days of paid sick leave per year, this proposal was not pursued on the basis that it would represent a disproportionate cost for employers. According to the Regulatory Impact Assessment of the Bill, the Scheme will lead to a safer work environment, make Ireland a more attractive country to live and work in and reduce the spread of infectious illnesses and diseases.
This introduction of statutory sick pay in Ireland will be a major change for Irish employers. Unlike many other European countries, employers in Ireland are generally not obliged to pay employees while they are on sick leave. The Government has confirmed that there will be no employer compensation scheme to assist with the costs of sick pay. Under the Scheme, sick pay will be paid by employers at a rate of 70% of an employee's wage, subject to a maximum limit of €110 per day. This to minimise the cost for employers. There will no top up of salary by the State. Once an employee has availed themselves of the statutory sick pay entitlement, and provided the employee has the requisite social insurance contributions, the employee may then qualify for illness benefit from the State. Employees must obtain a medical certificate and have completed 6 months' service with the employer to be eligible for statutory sick pay.
Employers need to keep abreast of developments in this area and plan for compliance with future statutory obligations which will require updates to employment policies and employment contracts to reflect these changes to employee rights. Employers should consider planning ahead by calculating their potential monetary exposure based on administrative costs and average employee absences in prior years.
Enhanced protections for whistleblowers
On 12 May 2021, the general scheme of the Protected Disclosures (Amendment) Bill (GS) was published by the Minister for Public Expenditure and Reform. The purpose of this amending legislation is to transpose Directive (EU) 2019/1937 (Whistleblowing Directive) into Irish law. Ireland is one of only ten countries in the EU with strong legal protections for whistle-blowers already in place. The legislation will bolster the current position under the Protected Disclosures Act 2014 (2014 Act) and go further than the requirements of the Whistleblowing Directive.
In summary, the 2014 Act provides protections for certain individuals who make a protected disclosure in relation to a relevant wrongdoing. The GS proposes to extend these protections in a number of ways:
- The GS seeks to broaden the definition of ‘worker’, i.e. the person who can make a protected disclosure, to include shareholders, volunteers, unpaid trainees, a member of the administrative, management or supervisory body including non-executive members, and people who acquire information on a relevant wrongdoing during a pre-contractual process or recruitment process.
- It will place an obligation on all employers with 50 or more employees, including private sector organisations, to establish and maintain internal channels and procedures for employees to make protected disclosures.
- Entities relating to financial services, prevention of money laundering and terrorist financing, transport safety and environmental protection will have to comply with the requirements, irrespective of their size. Internal channels can be operated by a person or department or external third party.
- The GS seeks to broaden the definition of a relevant wrongdoing to include breaches relating to the internal market, competition law and state aid, corporate tax law, public procurement, financial services, transport safety, protection and welfare, risks to public health and to consumer protection and privacy and protection of personal data.
Employers should continue to monitor this development carefully and keep their current position under review. Employers who do not have a whistleblowing system or internal channels and procedures in place but fall within the scope of the new, broader provisions will need to establish such systems.
The proposed legislation will oblige all private sector organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures. A derogation from this requirement is likely to apply to undertakings that employ between 50 and 249 employees until 17 December 2023. After that date, the obligation will apply to undertakings that employ 50 or more people.
While in practice most businesses already have whistleblowing procedures in place (all public sector organisations, regardless of size, are already required to have formal protected disclosures procedures in place under the Act of 2014), the new requirements will be considerably more prescriptive and burdensome than the existing obligations.
Introduction of gender pay gap reporting obligations
On 13 July 2021, the Gender Pay Gap Information Act 2021 (the Act) was signed into law. Under the Act, and regulations to be introduced under it, employers will be required to publish details on the pay differences between male and female employees. The Minister for Children, Equality, Disability, Integration and Youth (the Minister) will draft regulations to give effect to the provisions of the Act and to prescribe the finer details. The regulations will set out the form, frequency and manner in which information is to be published.
The aim of the Act is to provide transparency on the gender pay gap (GPG) in Ireland and incentivise employer measures to narrow the gap. The reporting process on the GPG is expected to begin soon subject to the publication of the regulations. The requirements will initially apply to organisations with 250 or more employees. After three years, the scope of the reporting obligations will extend to organisations with 50 or more employees.
The Act requires employers to report the mean and median hourly remuneration for part time and full time male and female employees. It also requires employers to report on mean and median bonuses of male and female employees, and the percentages of men and women receiving bonuses and benefits in kind. Employers will be required to provide an explanation of any GPG arising in their report and detail any measures they are, or propose, to take to address the GPG. In addition, the Minister indicated that the regulations may require employers to send GPG reports to employees in addition to publishing them on the employer's website. Employers may also be required to upload the reports to a central Government website.
An employee who claims that their employer has failed to comply with the requirement to publish GPG information may make a complaint to the Workplace Relations Commission (the WRC). The WRC will investigate the complaint and, while there are no provisions for financial compensation or fines, the WRC may ensure compliance by ordering a specified course of action on the part of the employer.
The Act also provides that where the Irish Human Rights and Equality Commission (the IHREC) is satisfied that it has reasonable grounds for believing that an employer has failed to comply with the requirement to publish GPG information, it may apply to the Circuit Court or the High Court for an order requiring the employer to comply. The IHREC may itself carry out, or invite a particular undertaking to carry out, an equality review or prepare and implement an equality action plan. It will be for the IHREC to decide whether to exercise these powers following a request by the Minister.
Reports will be important for an organisation's reputation, recruitment processes, retention of staff, and client and customer expectations.
In order to prepare for GPG reporting, Irish employers should:
- consider their internal procedures and mechanisms to ensure they will be in a position to comply with GPG reporting obligations;
- ensure that they have the sufficient technology in place to capture the necessary data and assign this new workflow to internal channels within the organisation;
- consider their communications strategy, both within their organisation and externally to the general public;
- assess at any early stage whether a GPG exists in their organisation, and if so, consider steps to reduce it; and
- take early stage legal advice.
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”.