Although the last number of years will be remembered as a time that forever changed the context of the employment law landscape, 2023 is shaping up to see almost as many important and significant legal and regulatory developments.
Diversity and inclusion initiatives remain at the core of legislative developments at both Irish and EU level. This is reflected by the proposed introduction of a number of family related leave periods, the recent introduction of paid sick leave for employees, the introduction of mandatory Gender Pay Gap reporting for in-scope employers, and the proposed EU Pay Transparency Directive which promotes greater transparency around pay in the workplace and introduces GPG reporting at EU level.
High on the agenda for employers is the ongoing management of a hybrid workforce and its utilisation as a key tool in the attraction and retention of talent. The imminent introduction of a statutory right to request remote working has gained a lot of traction but in circumstances where the vast majority of employers have already implemented hybrid working policies, few employees will actually need a statutory basis to request such remote working arrangements.
There have also been substantial changes to Ireland's whistleblowing regime due to the introduction of the Protected Disclosures (Amendment) Act 2022 which significantly extends the scope of the Protected Disclosures Act 2014 and places much more onerous obligations on employers in terms of managing such complaints. The 2022 Act also introduces significant potential penalties for legislative breaches.
Lastly, at the tail end of 2022, the European Union (Transparent and Predictable Working Conditions) Regulations were published and introduced new obligations on employers to improve employee job security and contractual certainty.
Key Themes in Employment Law
The commitment to promoting diversity, equity and inclusivity ("D, E & I") is a top priority for Irish and European lawmakers and continues to be a board-level agenda item for many organisations. The introduction of mandatory Gender Pay Gap ("GPG") reporting for employers with 250 employees or more last year was, perhaps, the most tangible commitment in this regard. Such in-scope employers were required to report their GPG in December 2022, based on a June 2022 snapshot date.
At EU level, political agreement has been reached on the EU Pay Transparency Directive (the "Directive"), laying the foundations for mandatory GPG reporting for in-scope employers across member states. The aim of the Directive is to promote greater pay transparency for applicants and employees and reduce the GPG within the EU. The Directive also introduces significant pay transparency obligations on employers.
In the wake of the pandemic, the vast majority of employers rolled out hybrid working policies. Although business needs and industry standards instruct the hybrid working arrangements, it is the retention and attraction of talent that has largely dictated the level of flexibility that employees have been afforded.
The Work Life Balance and Miscellaneous Provisions Bill 2022 (the "2022 Bill") provides employees with a right to request remote working and continues to progress through the legislative process. While we await the imminent implementation of the legislation and the accompanying Code of Practice from the Workplace Relations Commission to see how such a right will be operated in practice, the right is, in reality, lagging behind the market because most employers already operate hybrid working arrangements.
Overlapping on the D, E & I theme, the 2022 Bill also provides for a right to request flexible working arrangements for caring purposes. The 2022 Bill will transpose the EU Directive on Work-Life Balance for Parents and Carers into Irish law; the aim of which is to increase the participation of women in the labour market and encourage a more equal sharing of family related leave between men and women. The 2022 Bill also provides statutory leave for medical care purposes and separately for victims of domestic violence. Enhanced maternity leave entitlements are also provided for.
"The world of work has changed... This new law will give every employee the right to request remote working from their employer."
Leo Varadkar, Tánaiste and Minister for Enterprise, Trade and Employment
Although the publication of the European Union (Transparent and Predictable Working Conditions) Regulations (the "2022 Regulations") arrived in under the radar, they introduce important changes for employers. The 2022 Regulations transpose EU Directive 2019/1152 on Transparent and Predictable Working Conditions which aims at improving working conditions by promoting more transparent and predictable employment while ensuring labour market adaptability. The key changes introduced are as follows:
- The terms that employers are required to provide to employees in writing within one month of the employee's commencement date have been updated. As a result, employers will be required to update their employment contracts to ensure they comply with the requirements of the 2022 Regulations;
- New rules governing the extension of probationary periods apply; and
- A prohibition on dual employment is no longer permissible unless the restriction is proportionate and based on objective grounds. Such objective grounds include health and safety, protection of business confidentiality, conflict of interests considerations, among other considerations, which must be set out in writing to the employee.
"Bringing this Directive into Irish law adds to our already robust suite of employment protections and complements the new workers’ rights introduced over the last two years. These include statutory sick pay, a new public holiday, new rights around redundancy for people laid off during the pandemic and better protection of workplace tips and gratuities."
Damien English, Minister for Business, Employment and Retail