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Employment Law in Ireland is continuously evolving and developing, which may present significant challenges and costs for Organisations. As Employment Law Consultants, we have endeavoured to provide access to all relevant Employment Law information, in one location for ease of use, in relation to managing processes and procedures, key considerations when examining a topic, whether it is bullying in the workplace, disciplinary investigations, contracts of employment, or simply day to day HR practice issues.  

As Irish Employment Case Law continues to develop over the past number of years, particularly as seen through the claims in the different Employment dispute resolution forums. 2018 promises to be a significant year for Employment Legislation. Organisations must ensure compliance with legislation, regulations and European Union directives, whilst also ensuring they are aware as to what is happening in the different dispute resolution forums and being knowledgeable about upcoming legislation.

What has happened 2018?

  • Shared Maternity Leave and Benefit Bill 2018: Fianna Fáil have proposed a Shared Maternity Leave and Benefit Bill (the "Bill") since Friday 13th July 2018. The Bill will seek to enable parents to share ordinary maternity leave which is currently for 26 weeks. 

Under the Bill, a pregnant Employee may share their entitlement to Maternity Leave with an Employee who is a 'relevant parent' of the child.

The opportunity to share maternity leave includes the ability to share the associated state maternity benefit. If maternity leave is shared, the maternity benefit would be apportioned between the parents of the child in proportion to the period of maternity leave taken by each parent. This is referred to as "Shared Leave Benefit" in the Bill and is additional to the paternity leave benefit. 

The Bill also clarifies that shared maternity leave is supplemental to the paternity leave of 2 weeks. The Bill will not apply to additional unpaid maternity leave which is for a period of 16 weeks. 

  • Gender Pay Gap Bill: The Cabinet approved the general scheme of the Gender Pay Gap Information Bill. The Bill would enforce all Employers to publish data relating to the pay of their Employees in order to identify whether there are differences in the pay of men and women. 
  • Motion to extend Parental Leave: A proposal to extend parental leave from 18 to 26 weeks is currently before Dáil Éireann at the fifth stage. At this stage, the final statements on the Bill are made and it is set down for second stage in the Seanad Éireann. The change has been put forward by the Social Democrats.
  • Code of Practice on Longer Working: The Equality (Miscellaneous Provisions) Act 2015 which commenced on 1st January 2016, amended the rules on mandatory retirement and age discrimination, making mandatory retirement ages objectively justifiable by Employers. This has been supplemented by the recent Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017. This Code of Practice aims to guide Employers, Employees and their representatives on the best practice in the run-up to retirement, including responding to requests to work beyond the retirement age in the employment concerned.

Therefore, while the right of Employers to set a mandatory retirement age still exists, it is now only permitted if:

    1. it is objectively and reasonably justified by a legitimate aim, and
    2. the means of achieving that aim are appropriate and necessary.

  • Minimum wage: Minimum wage has increased since 1st January 2018 from €9.25 to €9.55. This may have knock on effects with regards to the difference between a person who was originally paid €9.25 with a Manager / Team Leader on €11 per hour, and what it means when the person who was originally paid €9.25 wage is increased. Organisations should be cognisant that there may be ramifications in terms of pay for other Employees if challenged, and not necessarily just the Employees who are currently receiving the minimum wage.

What has happened in 2017?

  • Parental LeaveThe Parental Leave Bill if enacted will amend the Parental Leave Act 1998 to extend the unpaid Parental Leave from 18 weeks to 26 weeks. The Parental leave Acts, set out to provide unpaid leave to natural and adoptive parents of children of a certain age and also to persons acting in loco parentis to same.
  • Minimum Wage - The Minimum Wage in Ireland has increased to €9.25 an hour since 1st January 2017. The previous headline minimum wage rate in 2016 was €9.15 an hour, but there were lower rates for younger and less experienced workers. 
The Government’s Pay advisory group has recommended that the national minimum wage be lifted 30c from January 2018. The Low Pay Commission said the base pay rate for adults should be increased from €9.25 per hour to €9.55 per hour.
  • Zero Hour Contracts – The Government have approved draft legislative proposals brought forward in response to the commitment of the Programme for Government to address problems caused by the increased casualisation of work and to strengthen the regulation of precarious work.
  • Michael Lyons V Longford Westmeath Education and Training Board – It was quite clear to this Court that the proceedings adopted in this case are in breach of Article 40(3) (1) and (2) of the Constitution of Ireland by the refusal to allow legal representatives to appear on behalf of the applicant. The processes in this case failed to vindicate the good name of the applicant, in their refusal to hold an appropriate hearing, whereby the applicant through solicitor or counsel may have cross-examined the complainant. Equally, the Complainant ought to be entitled to then cross-examine the applicant.
Fair procedures manifestly indicate that the applicant has the right to confront and cross-examine the individual who has made allegations against him. It is unclear whether Stage 4 of the Disciplinary Procedure under Circular 71/2014 entitles the applicant to be accompanied by a solicitor. However, this Court finds that it is the actual investigation that requires the rights to cross-examination and representation, which takes prior to the initiation of the disciplinary procedure under Circular 71/2014.

What has happened in 2016? 

  • Paternity Leave – The Paternity and Benefits Act allows a period of two weeks paid paternity leave within the first 26 weeks following the birth of a child.The Department of Social Protection will provide paid paternity benefit of €230 per week for the two weeks of paternity leave. Organisations will also have the option of providing a further top-up to the father's regular salary - if they choose to do so.  This leave will be implemented from September 2016. 

  • Minimum Wage – In January 2016 the minimum wage increased from €8.65 per hour to €9.15 per hour. This move was made following a decision by the Low Pay Commission and will effect just under 125,000 Employees in Ireland. The commission is due to review the minimum wage rate again in 2017. 
  • European Court of Human Rights Ruling in relation to personal messages - A ruling in a case at the European Court of Human Rights (ECHR) found that a company which read a former Employees messages sent while at work, has not violated the Employees rights. In issuing his conclusion the judge stated it was not "unreasonable that an Employer would want to verify that Employees were completing their professional tasks during working hours". However, the Data Protection Commissioner has yet to comment on this ruling and it is still unknown how this decision will impact the Irish workplace.
  • CCTV Guidelines – The Irish Data Protection Commissioner has issued updated guidelines in relation CCTV use. These guidelines include a requirement for a written CCTV policy to be in place. Data controllers are expected to carry out assessments which will show that any use of CCTV is justified. The guidelines states that data controllers who wish to use CCTV should ensure that they complete the following steps:

    • conduct and document a risk assessment process and a Privacy Impact Assessment;
    • prepare a specific data protection policy dealing with CCTV devices
    • be able to demonstrate previous incidents that have led to security or health and safety concerns that may justify the use of CCTV;
    • clear signage indicating that there is image recording in operation must be displayed

    Employers that  use CCTV should review their employment policies and handbooks to ensure that CCTV use is in line with the Guidance issued by the Data Protection Commissioner. 

  • The Equality (Miscellaneous Provisions) Act 2015 commenced on January 1st 2016 and provides the requirement for Employers to objectively justify a mandatory company retirement age linked to a legitimate aim. It is further proposed that objective justification for the termination of fixed term contracts used post retirement be introduced. This will have implications for employers using fixed term contracts to bridge the gap for employees post contractual retirement age and before they receive the State pension.

  • Labour Court Fees of €300 have been introduced for appeals from the Workplace Relations Commission to the Labour Court. This will apply to parties who did not attend the the first instance hearing at the Workplace Relations Commission and may be refunded should the Labour Court determine good reasoning for the appeal.

What has happened in 2015? 

  • Driving to Work is now “Work” The European Court of Justice on the Working Time Directive, has ruled that the time spent travelling to and from first and last appointments, by workers without a fixed office should be regarded as working time. Currently workers without fixed offices are not paid for the time they spend travelling to the first job of the day and from the last job of the day. Businesses will now have to pay Employees without a fixed working base for their journey time, this decision also affects how rest break entitlements and maximum working hours are calculated.
  • Industrial Relations (Amendment) Act has passed through all stages on the Oireachtas. This Act presents significant reforms to Industrial Relations legislation in Ireland. The legislation includes provisions where pay, pensions and sick pay in a particular sector can be established, agreed and enforced by order. The new legislation aims to protect Employees who pursue such claims and also contains the necessity for any collective agreement to be enforced through the Circuit Court, in cases where an employer refuses to engage.
  • The Workplace Relations Commission relates to the amalgamation of the Labour Relations Commission, Employment Appeals Tribunal, the Labour Court, National Employment Rights Authority and Equality Tribunal, into a single adjudication body.

“A religious Organisation shall not be taken to discriminate against a person for the purposes of this part or part II by giving favourable treatment on the religion ground to an employee or a prospective employee where the religion or belief of the employee constitutes a justified occupational requirement”

It anticipated this Bill will contribute to a fairer and more equitable balance between the rights of freedom of religion or association, and the right of persons in employment, or prospective employees, to be free from discrimination.

  • Protected Disclosures Act 2014  had its first case heard under the Act in 2015. The case, which has since failed, involved an individual allegedly making “protected disclosures” and subsequently being let go. The Judge in this case determined that the tests outlined in the Act, were not satisfied.

What happened in 2014?

  • Case Law - Sleepover duty classified as working time; consequences for Organisations within the health sector.
  • Whistleblowing Legislation – an important development for Employers  - The Protected Disclosures Bill 2013 (the Bill) was passed in July 2014. Prior to this date within Ireland, there was limited protection available and this new legislation provides comprehensive whistleblower protection across all sectors of the economy. Workers who make protected disclosures gain extensive protection under the Protected Disclosures Act 2014.

  • Employment Permits Bill Published  - In April 2014 The Employment Permits (Amendment) Bill 2014 was published on Wednesday 22nd April by The Minister for Jobs, Enterprise and Innovation. The Bill provided nine different purposes for which an employment permit may be granted.
  • Accrual of Annual Leave on Sick Leave - Workers are now entitled to accrue annual leave when they are on long term sick leave. Employees will be able to carryover accrued leave for a period of 15 months. 

At Adare Human Resource Management, we have structured the Employment Law Section of our website for Organisations in order to provide the most comprehensive guide to the topic:

  • Legislation / Codes of Practice – Details the legislation or advised Codes of Practice in each area of Employment Law
  • Key Considerations – What Organisations need to be looking out for or implementing in their Organisations in order to remain compliant with the legislation
  • Processes/ Checklists – Guides to go about staying compliant and checklists to ensure all tasks are completed
  • Employment Cases – Relevant and recent case law
  • Letters / Forms – All the letters / forms needed to ensure that the Organisation is prepared for all situations
  • FAQs – Frequently Asked Questions which in our experience provide useful insights to different scenarios for all types of Organisations
  • Calculators – In certain sections of the website there are calculators which provide useful calculations for Organisations to save time and ensure accuracy

Adare Human Resource Management’s Employment Law Section provides case law on a wide range of topics related directly to Employment Law which can be used as guidance for Organisations in all aspects of their everyday work.