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Employment Law Developments

So far, 2022 has seen a welcome return to an (almost) post-pandemic era with employees returning to the office in significant numbers. 

As part of this, employers have been grappling with issues in developing more permanent hybrid working relationships.  In addition, the traditional employment relationship has evolved and employers are navigating the introduction of remote working, flexible working and the right to disconnect.  To address these issues, the government has introduced certain legislative measures, which are expected to underpin the future employment environment.

Changes arising from the Supreme Court judgement in Zalewski v Adjudication Officer & Ors [2021] IESC 24 have now been included in the Workplace Relations (Miscellaneous Provisions) Act 2021 which we have discussed in insights in this context and in the context of other regulatory approaches.

In addition, diversity and inclusion initiatives remain at the core of legislative developments. This is reflected in the Work-Life Balance Bill, the Gender Pay Gap Information Act 2021, the Sick Leave Act 2022 and the changes to family leave.

There have also been changes to Ireland's whistleblowing regime due to the introduction of the Protected Disclosures (Amendment) Act 2022, which, amongst other things, establishes formal channels and procedures for employees to make protected disclosures in organisations with 50 or more employees.

Key Themes in Employment Law

Right to Request Remote Work Bill

As part of their broader National Remote Working Strategy, the government has introduced the Right to Request Remote Work Bill, which provides employees with a statutory right to make, or to have made on their behalf, a request for remote working. 

Significantly, it does not confer an automatic entitlement to work remotely. Rather this draft legislation outlines the technical procedure to be taken when making and assessing a request to work remotely. Employers will be required to provide reasonable grounds for refusing to facilitate an employees’ request. A non-exhaustive list of thirteen such grounds of refusal is included in the draft. However, it is anticipated that the extent to which such reasons will be immune from scrutiny may be called into question given the reality that many employees have been successfully working remotely during the pandemic.

As currently drafted there is no facility under which an employee can interrogate the merits of a refusal of a request to work remotely. There is no scope for an employer’s assessment and final decision to be challenged or overturned by the Workplace Relations Commission (“WRC”) but the legislative committee recommended that "tighter grounds"… would be included in the primary legislation to ensure that unreasonable refusals are "open to challenge".  At present, the WRC can only direct compliance with the employer’s procedural obligations under the legislation, for example, the requirement to respond to such a request within 12 weeks of its submission.

Importantly, all workplaces must have a written statement which sets out the company’s Remote Working Policy, specifying the manner in which remote working requests are managed and the conditions which will apply to remote working generally within the organisation.

In terms of the timeframe for publication, the Bill is listed as a priority bill for drafting and publication this session, however it needs to go through the full legislative process before it becomes law, therefore may be subject to further change and amendment.

"The world of work has changed... This new law will give every employee the right to request remote working from their employer. Employers will be required to provide reasonable grounds for refusing to facilitate an employee's request."

Leo Varadkar, Tánaiste and Minister for Enterprise, Trade and Employment
Sick Leave Act 2022

The Sick Leave Act 2022 (the "2022 Act") was signed into law on 20 July 2022 and provides for up to three days of statutory sick leave payment for employees subject to certain conditions, where they are unavailable for work due to illness or injury.

The Department of Enterprise, Trade and Employment has indicated plans to increase the number of statutory sick days to five days in 2023, seven days in 2024 and 10 days in 2025.

The 2022 Act provides that employees will be entitled to statutory sick leave payment from their employer for each statutory sick leave day. This will be set at a daily rate of 70 % of an employee's regular earnings up to €110 a day. The employee must provide their employer with a medical certificate signed by a registered medical practitioner stating that they are unable to work. 

This 2022 Act does not apply to employers who provide more favourable sick pay schemes to employees.

The 2022 Act further provides that the Labour Court may exempt an employer from the obligation to pay an employee or employees statutory sick leave payment in certain limited circumstances where the employer’s business is experiencing severe financial difficulties. The Labour Court is required to maintain a register of all these decisions which will be publicly available.

Under the 2022 Act, an employer is obliged to keep records for four years of the statutory sick leave taken by each employee. An employer who without reasonable cause fails to keep records shall be guilty of an offence and liable on summary conviction to a fine of €2,500.

"This is a really important new employment right, that all workers will now have, no matter what their illness or job. Many employers pay sick pay, but the pandemic really highlighted the vulnerability of some workers, especially in the private sector and those on low pay. We’ve also been behind our European counterparts on this, with Ireland being one of the few advanced countries without such a scheme."

Leo Varadkar, Tánaiste and Minister for Enterprise, Trade and Employment

The Workplace Relations (Miscellaneous Provisions) Act 2021

The Supreme Court in the case of Zalewski v Adjudication Officer & Ors [2021] IESC 24 held that the legislation governing certain WRC procedures was inconsistent with the Constitution, namely: the conduct of hearings in private; the absence of a provision for an Adjudication Officer to administer an oath or affirmation; and the absence of a possibility of punishment for giving false evidence.  The Workplace Relations (Miscellaneous Provisions) Act 2021 (the "2021 Act") was introduced to address these issues and came into effect on 29 July 2021. 

The effect of the 2021 Act is that it now allows for public hearings and the publication of party names in decisions of the WRC unless the Adjudication Officer determines that there are special circumstances to justify a departure from the principle that proceedings should be conducted in public. The WRC have issued Guidance on the Workplace Relations (Miscellaneous Provisions) Act 2021 (the "Guidance") and indicated in the Guidance that the following is a list of 'special circumstances':
  • cases involving a minor;
  • circumstances where a party has a disability or medical condition, which they do not wish to be revealed;
  • cases involving issues of a sensitive nature such as sexual harassment;
  • cases involving a protected disclosure where there is an issue of the disclosure being made in confidence; or
  • cases which could result in a real risk of harm to a party if the hearing is held in public, or if the parties are named in the decision.

The Guidance outlines that the above list is non-exhaustive, and it remains to be seen how exactly the Adjudication Officers will consider this in practice.  The Guidance further provides that, neither the fact that both parties want a case to be heard in private, nor the possible impact of a public hearing on someone’s reputation, are automatic reasons for the matter to be heard in private. The Guidance notes that ultimately, it is a matter for the Adjudication Officer to decide based on the facts of the case in accordance with the law and fair procedure.

In addition, in keeping with the principles set out in Zalewski, the 2021 Act makes provision for adjudicator officers to take evidence on oath or affirmation.

Finally, the 2021 Act provides that the giving of a false statement shall be an offence.  The penalties are;

  • on summary conviction, a class B fine (currently €4,000) or imprisonment for a term not exceeding 12 months, or both, or,
  • on conviction on indictment,  a fine not exceeding €100,000 or imprisonment for a term not exceeding 10 years, or both.

In summary, the effect of the 2021 Act is that there is an important change to the context in which  employers consider whether to proceed with or defend a claim in the WRC, taking into account, in particular, the public nature of hearings and the publication of party names in decisions.

"I cannot accept that there is a justification for a blanket prohibition on hearings in public before the adjudication officer." 

Mr Justice O'Donnell, paragraph 142, [2021] IESC 24

As there has not been an updated version of the government Guidance and FAQ documents on gender pay gap reporting in a number of months, IBEC have published and circulated an update outlining responses they have received from the Department of Children, Equality, Disability, Integration and Youth in respect of various outstanding questions.  This document provides much needed clarity on the treatment of statutory leaves and annual bonuses.  

As part of the Matheson Employment Law Podcast Series, we recently ran a webinar entitled: "Gender Pay Gap Reporting: Practical Tips and Guidance". Employment partners Geraldine Carr and Ailbhe Dennehy, and Senior Associate John Casey, discussed how employers can best prepare and comply with these new mandatory reporting obligations. 

Key topics included:

  • An overview of the core legal requirements;
  • How to categorise "pay elements" for reporting purposes;
  • An analysis of the latest guidance on the trickiest areas arising in practice; and
  • Identifying measures that employers can put in place to seek to narrow any gap identified.

The podcast is available here to find out more.

Work Life Balance Bill

The objective of the Work Life Balance and Miscellaneous Provisions Bill 2022 is to introduce legislative changes, which would help in achieving a better work life balance for parents and carers.  

The key measures proposed are as follows:

  • a right for employees (who have six months' service) with children up to the age of 12 (or 16 if the child has a disability or long-term illness), and employees with caring responsibilities, to request flexible working arrangements for a set period of time for caring purposes. 
  • 5 days of unpaid leave per year where, for serious medical reasons, the employee is required to provide personal care or support to family members or those in their household (eg, child, spouse, cohabitant, parents and sibling). 
  • a significant increase to the period (26 to 104 weeks) in which new mothers are entitled to take paid time off work each day to breastfeed; and
  • the right of transgender males who obtain a gender recognition certificate and subsequently become pregnant, to fall within the scope of the Irish Maternity Protection Act.

This Bill completed the first stage of Dáil Éireann on 5 October 2022.

The Minister for Children, Equality, Disability, Integration & Youth, Roderic O'Gorman stated that he aim of the Bill is:

"to ensure that parents and carers can be supported to balance their working and family lives.  Through the Work Life Balance Bill, they can gave peace of mind that work will allow time for the responsibilities that caring brings.  The proposals will complement family leave and other entitlements already in place and provide additional flexibility".


"The world of work has changed.. This new law will give every employee the right to request remote working from their employer. Employers will be required to provide reasonable grounds for refusing to facilitate an employees’ request."

Leo Varadkar, Tánaiste and Minister for Enterprise, Trade and Employment

The Latest Developments in Employment Law

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