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A Look Back on Employment Law in 2019

A Look Back on Employment Law in 2019

Date published on: 01/12/2019

As we come to a close of 2019, in this month’s newsletter we are taking a look back on 12 things that occurred over the past 12 months in the employment law sphere. These are as follows:


1. Employment (Miscellaneous Provisions) Act 2018

On the 4th March 2019, we saw the introduction of the Employment (Miscellaneous Provisions) Act 2018 which came into legislation. This new piece of legislation amended a number of existing pieces of legislation, specifically the:

  • Terms of Employment (Information) Act, 1994:

    • Employers are now required to notify each new Employee, within 5 days of commencement of employment, the following core terms of employment:

      • the full names of the employer and the employee;

      • the address of the employer;

      • the expected duration of the contract, in the case of a temporary contract, or the end date if the contract is a fixed-term contract;

      • the rate or method of calculation of the employee’s pay;

      • the number of hours the employer reasonably expects the employee to work per normal working day and per normal working week.

    • Full written terms of employment, required to be given to the employee under the Terms of Employment (Information) Act 1994, continue to be required and must be given within the two months from the commencement of employment.

  • Organisation of Working Time Act, 1997:

    • Zero-hour contacts are no longer prohibited except in the following circumstances:

      • Where the work is of a casual nature;

      • Where the work is done in emergency circumstances; or

      • Short-term relief work to cover routine absences for the employer.

    • Minimum floor payments have been introduced for certain circumstances which may arise:

      • Where an Employee is called into work and does not receive the expected hours of work.

      • The minimum payment on each occasion above, will be three times the national minimum hourly rate of pay or three times the minimum hourly rate of pay set out in an Employment Regulation Order (if one exists for that sector and for as long as it remains in force).

      • The already existing method of payment (at least 25% of the contract hours or 15 hours) continues to apply overall.

    • Banded hours provisions are a new right for Employees whose contract of employment does not reflect the reality of the hours they habitually work. Where this is the case, Employees are entitled to be places in a band of hours that better reflects the hours they have worked over a 12-month reference period.

  • Unfair Dismissals Act, 1997:

  • Previously, Adjudication Officers of the WRC did not have powers to compel witnesses to attend a hearing to give evidence in relation to cases taken under the Unfair Dismissals Act, 1977. However, the WRC had powers of witness compellability under other employment rights legislation and the amendment to Act will remedy this anomaly. The amendment provides that the evidence that a witness gives at an Unfair Dismissal hearing at the WRC or Labour Court is privileged. It further provides that a witness who is compelled to attend the hearing or provide relevant information, and does not do so, is liable to prosecution.

  • National Minimum Wage Act, 2000

    • Under the new Act wage rates for employees under 18 and those over 18 have been simplified and will be solely based on age.

Age

Amount

% of NMW

Under 18

€6.86

70%

18 years old

€7.84

80%

19 years old

€8.82

90%

National Minimum Wage

€9.80

100%

 

  • Trainee rates of pay have also been abolished.

  • Workplace Relations Act, 2015

    • Fixed payment notices - Where a WRC Inspector encounters non-compliance in relation to the 5 Day statement obligations and where the inspector has reasonable grounds for believing that an employer person has committed an offence. an inspector may issue a fixed payment notice as an alternative to initiating prosecution proceedings.

    • New criminal offences – The new Act also creates the following criminal offences:

      • An Employer who, without reasonable cause, fails to provide an employee with the Day 5 statement within one month of commencement of employment will be guilty of an offence.

      • An Employer who deliberately or recklessly provides false or misleading information as part of the Day 5 statement will be guilty of an offence.

      • A person convicted of an offence under the new Act may be fined (maximum fine €5,000) or imprisoned for a term not exceeding 12 months, or both.


2.  Nano Nagle School v Daly

Nano Nagle School v Daly is a case which has been the subject of significant commentary amongst many Employers and HR Practitioners this year. It involves a Special Needs Assistant from a school in Co. Kerry, and the case was most recently before the Supreme Court (31st July 2019), having previously been considered by the then Equality Tribunal, the Labour Court, the High Court and the Court of Appeal, the last of which had ruled in favour of the School and had overturned a decision of the Labour Court to find in favour of the Employee and awarded €40,000.

This judgement is an important one that sets out principles involved in the requirement to consider reasonable accommodation when Employees are disabled in the workplace. In overturning the decision of the Court of Appeal, the Supreme Court decided that the assessment of reasonable accommodation does not just involve distinguishing between essential duties and non-essential tasks.

Unfortunately for the parties, the outcome was that the case has been referred back to the Labour Court (effectively the sixth time a court will have considered their problem) and thus, we await the outcome of this decision.


3.  Gender Pay Gap

The Gender Pay Gap Information Bill 2019, which was published in full in April 2019, has been widely discussed in general terms. The Government has also given its commitment to enact the legislation so it is coming and relatively soon. However, even though Organisations know it is coming, only a quarter of these Organisations are recording their gender gap, as recorded in our HR Barometer (Series 3).

Currently the gender pay gap in Ireland is 13.9%, according to the CSO’s latest figures. The proposed Irish gender pay reporting legislation, while similar to the UK, it more all-encompassing in that Organisations will not only have to report the gap in pay between male and female Employees but they must also provide context on any disparities and information on the measures an Organisations will take to address any gaps.

There are some practical actions Organisations can be doing in anticipation of the Gender Pay Reporting legislation; they can start preparing byu conducting a full audit of pay, bonuses and relevant benefits across full and part time Employees. Preparation also allows for time to construct a narrative and take action in a more meaningful way to address not only gender pay gaps but also any issues around gender a balance and diversity within the Organisation.


4.  Parental Leave (Amendment) Act 2019

The Parental Leave Acts 1998 – 2006 was amended to the Parental Leave (Amendment) Act 2019 and came into effect on the 1st September 2019. This amended piece of legislation saw the following changes occur:

  • Previously parents with children up to 8 years of age were eligible to avail of Parental Leave. This has now been increased to 12 years of age.

  • Parental leave weeks increases from 18 to 22 weeks

  • From 1st September 2020 Parental Leave will increase by a further 4 weeks bringing the total leave available up to 26 weeks.

  • Eligibility In cases of adoption has changed to between 10 and 12 years, previously between 6 and 8 years.

Parental Leave continues to be a period of unpaid leave for qualifying Employees who may wish to avail of same, there is no state benefit associated to this form of statutory leave.


5.  Recruitment & Retention

Given the current employment environment, it is not surprising that Employee retention and recruitment are both the top priorities and biggest challenges for HR Professionals this year. As documented in our HR Barometer (Series 3), more Organisations (44%) are citing retention as a main priority, up from 37% last year, with recruitment slightly decreasing to 42% from 49%.

Whilst many Organisations were willing to acknowledge that retention and recruitment is a challenge, nearly six in ten Organisations did not know what the average financial cost of replacing an Employee was. Nevertheless, our HR Barometer was able to determine that on average it costs €14,450 to replace an Employee, which has increased in just over 10% from last year.

Given the current low unemployment rate of 4.6%, we are in an Employee driven market and the main driver for staff leaving Organisations is career progression and higher salaries, accordingly to our HR Barometer this year. These are areas that Organisations should be looking at to help improve Employee retention, and thus reduce the overall recruitment requirements / costs.


6.  Sectoral Employment Orders

The Sectoral Employment Order (SEO) for the construction sector was initially introduced on 19th October 2017, however there was a new SEO which was enacted as and from 1st October 2019 to include new statutory minimum rates of pay and other conditions (sick pay and pension entitlements) for craft workers, apprentices and general operatives employed in the construction sector.

Since the introduction of the initial SEO in the construction sector in 2017, we have also seen the introduction of an SEO for the Mechanical Engineering sector in March 2018. However, this too was recently back in the Labour Court on 11th November 2019 following the application for a new SEO.

Coupled with the above sectors, as and from 1st September 2019, there was an SEO introduced for the Electrical Contracting sector.

HR Barometer this year. These are areas that Organisations should be looking at to help improve Employee retention, and thus reduce the overall recruitment requirements / costs.


7.  Sunday premium

Section 14 of the Organisation of Working Time Act, 1997 governs Sunday work, and stipulates that an Employee who is required to work on a Sunday shall be compensated “reasonable… having regard to all the circumstances” by his or her Employer, by one of the following means:

  • By payment of an allowance,

  • An increased rate of pay,

  • Paid time off work, or

  • A combination of two or more of the above means.

Over the past 12 months, the WRC and Labour Court has made the following determinations in a number of cases involving hotels, restaurants and leisure centres:

  • A hotel paying staff a Sunday premium of 5 cents per hour was deemed “not reasonable”

  • A restaurant paying staff a Sunday premium of 33% was deemed “reasonable”

  • A leisure club paying staff a Sunday premium of 25% was deemed “reasonable”

In the case of Viking Security Ltd v Valent [DWT1489], in the Court’s view, it is insufficient for the Employer to simply say (as the Respondent does in this case) that because the Basic Rate of Pay exceeds the National Minimum Wage it compensates for Sunday working.

Taking the above judgements into consideration, this has implied that an Employee is entitled to a Sunday premium which is separate to their basic rate of pay and it is not sufficient to simply state it is inclusive once it is above minimum wage.

On the contrary, on the 7th October 2019, there was a High Court decision in Trinity Leisure Holdings Limited trading as Trinity City Hotel and Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654 which found it is sufficient for the Employer to provide an express term in the contract of employment that the requirement to work on Sunday has been taken into account in calculating the rate of Employee’s pay.

This new High Court decision is yet to be challenged or used as precedent case law in the Labour Court of the WRC, so Employers are recommended that if it is their intention to pay a composite rate which includes the Sunday premium, then it must be (i) reasonable, (ii) detailed on the Employee’s contract of employment and (iii) it should also be clearly discernible as to how much of that rate is in lieu of the Sunday premium.


8.  National Minimum Wage

The Government announced Budget 2020 on 9th October 2019 and for the first year in 4 years there was no increase in minimum wage. However, Employers should be aware that it is highly likely that in 2020 the national minimum wage will indeed increase to €10.10 per hour (currently €9.80 per hour) as per the Low Pay Commissions recommendation.

The Government says it has accepted the recommendations of the Low Pay Commission – but they have decided that a decision on the date of implementation will be made when the outcome of the Brexit negotiations becomes clearer.
 

9.  Parent’s Leave and Benefit Act 2019

On the 1st November 2019, the Parent’s Leave and Benefit Act 2019 was introduced. Its aim is to let working parents spend more time with their baby or adopted child during the first year. The legislation will provide for:

  • Up to 2 weeks' paid parent leave for “relevant” parents. The paid parent leave must be taken in a two-week block or in two one-week blocks within the first year of the child's birth or adoption. It is not transferable between parents.

  • Paid parent leave can be taken in addition to existing Maternity Leave, Adoptive Leave, Paternity Leave and Parental Leave rights, as applicable to each "relevant" parent. A relevant parent includes a parent or spouse or civil partner or cohabitant of a parent of the child. Parent's Leave can be taken after the expiry of Maternity Leave, Adoptive Leave or Paternity Leave.

  • Parent's Benefit is payable to eligible parents during the parent leave, subject to the recipient meeting social security contribution conditions. Self-employed workers may also qualify for Parent's Benefit.

  • Employers are not required to top up Parent Benefit, though some Employers may do so in line with their existing policies regarding the top up of Maternity, Adoptive and Paternity pay.
     

10.  McKelvey v Irish Rail

The judgment of the Supreme Court earlier this month in McKelvey v Irish Rail has clarified the circumstances in which employees may be entitled to legal representation during workplace disciplinary processes.

Last year the Court of Appeal found that the circumstances in which an Employer would be obliged to exercise a discretion in favour of permitting legal representation should be "exceptional". An appeal of this decision was granted in February 2019 to the Supreme Court on the basis that an issue of general public importance had been raised - the entitlement of an Employee to be legally represented in disciplinary proceedings.

The Supreme Court has now had the final say on the matter and emphasised that this right only arises in exceptional circumstances.

The Supreme Court’s findings are welcome from an Employer’s perspective. They provide a level of comfort to Employers in terms of their discretion to permit legal representation, provides meaningful guidance on how to assess when such exceptional circumstances will exist and reaffirms the reluctance of the Courts to become involved in workplace disciplinary proceedings more generally. However it should be noted that the fact the Supreme Court held significant emphasis on Mr McKelvey’s ability to be represented in the process by an experienced trade union official and this begs the question as to whether the Court would have been as comfortable refusing him an injunction if he could only be represented by an inexperienced work colleague, and thus it is unclear if Court would have reached the same conclusion if this was the case.

Consequently, Employers would be well advised to give due consideration to any request for legal representation from an Employee particularly in non-unionised employments. Not only may "exceptional circumstances" entitling such representation exist, but in certain circumstances, such representation may be in the interests of both parties and facilitate the process, depending on the particular facts of the case. 
 

11. Age Discrimination

This year, there was a considerable increase (343%) in age discrimination claims which were taken to the WRC under the Employment Equality Acts, 1998 -2011, with the most noteworthy case being Valerie Cox v RTÉ (ADJ-00006972) where the Complainant alleged discrimination on the grounds of age. The Adjudication Officer found the complaint was well founded as the Respondent had failed to objectively justify the termination of the employment at age 65 years.

The decision to increase the State pension age, resulting in a 'financial gap' between the traditional retirement age of 65 and the 'new' State pension age of 66 has served as a catalyst for claims of age discrimination. In addition, with the State pension age on track to increase again (to 67 in 2021 and to 68 in 2028), the current trend of Employees challenging the legitimacy of compulsory retirement ages shows no sign of slowing down.

Taking the above financial gap into consideration, coupled with the backdrop of Ireland's ageing workforce and recent reports that many of today's children will live to be 100, is a cause of concern for Employers attempting to balance their business needs without falling foul of Ireland's equality laws.


12. WRC Annual Report

Earlier this year, the Workplace Relations Commission (WRC) issued their annual report for 2018 which highlighted a significant increase in activity relative to previous years.

In terms of the Adjudication Service the number of hearings has increased by 20% (5,312 hearings) over the period, while there has also been a significant increase in the overall number of face-to-face mediations conducted in the year, more than doubling on the 2017 outturn. In addition, there was a 20% increase (57,348 in total) in the inspections concluded by the WRC in 2018.

It was also noted that the WRC recovered over €3 million in unpaid wages for employees over the year, an increase of 75% on 2017. Upon release of the Report, Mr. Pat Breen T.D., Minister for Trade, Employment, Business, EU Digital Single Market, and Data Protection advised that “As the economy continues to do well, we must ensure that those in work are paid what they are due and the WRC is playing a significant role in the pursuit of this objective.”

If you require any assistance with regards to employment law or HR matters in the workplace then please contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594 to discuss how we can assist you.