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Employment Law Developments

The employment law landscape has gone through significant development in recent years and there is no sign of this level of rapid change abating.

The impact of Covd-19 was acutely felt by employers over the course of 2020 and 2021. It has also acted as a catalyst for escalating a significant number of employment initiatives to priority status within organisations, including the introduction of hybrid and flexible working arrangements and the right to disconnect. Indeed, the pandemic also accelerated the advance of a number of legislative developments for the Irish Government, including the right to request remote working which is listed as Priority Legislation in the Summer Legislative Programme 2022. It is clear that the employment law outlook for 2022 continues to focus on the theme of “balance".

Organisations and the Irish Government also continue in their commitment to diversity and inclusion initiatives and protections. The Work-life Balance Bill, which is also listed as Priority Legislation in the Summer Legislative Programme 2022, reflects this commitment. Significantly, on 3 June 2022, the Government published the gender pay gap reporting regulations, which set out the detail of the reporting obligations under the Gender Pay Gap Information Act 2021.

The other significant developments on the employment law horizon include important updates to employee leave entitlements, changes to Ireland’s whistleblowing regime and the modernisation of the employment permits system. 

Key Themes in Employment Law

Right to Request Remote Working

The General Scheme of the Right to Request Remote Working Bill was published in January 2022 and is currently undergoing pre-legislative scrutiny before enactment. The likelihood is, however, that many employers are currently, and will continue to be managing employee requests in respect of remote working prior to the legislation being enacted.

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. On balance, as currently drafted, employers are afforded broad discretion to refuse such requests on the basis of subjective business concerns. 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 to such a request. There is no scope for an employer’s assessment and final decision to be challenged or overturned by the Workplace Relations Commission (the “WRC”) but there have been calls to amend this. At present, the WRC can only direct compliance with the employer’s procedural obligations e.g. to respond to such a request within 12 weeks of its submission.

Given that the majority of employees are now seeking some form of remote or hybrid working as the norm rather than the exception, employers must be mindful of the need to balance business needs with employee requests to ensure the recruitment and retention of staff. It is expected that a forthcoming Code of Practice will provide greater guidance to employers when assessing remote working requests.

"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
Mind the gap: Mandatory Gender Pay Gap Reporting is here

After a number of false starts, the long awaited Gender Pay Gap Information Act was enacted in July 2021 and on 3 June 2022, the Irish Government published the detail of the gender pay gap reporting obligations by the way of keenly awaited regulations:  Employment Equality Act 1998 (section 20A) (Gender Pay Gap Information) Regulations 2022 (the Regulations).

Briefly, in scope employers (currently employers who employ 250 or more employees) will be required to report on the gender pay gap ("GPG") in their organisation for the first time. Employers can choose their June "snapshot" date, up to and including 30 June 2022, and on this date, the employer must calculate each employee's remuneration for the preceding 12 month period and produce a GPG report within six months. The GPG must be published on the employer's website or in another form which is accessible to employees and the general public.

The GPG report must publish certain key metrics including the mean and median pay and bonus gaps, the proportion of men and women in receipt of bonus payments and benefits in kind, and information relating to quartile pay bands of men and women. The Department of Children, Equality, Disability, Integration and Youth has published detailed Guidance on how to calculate these gender pay gap metrics.

Where a GPG is reported, the employer must provide a narrative alongside their figures detailing, in the employer’s opinion, the reasons for such differences and the measures the employer is taking to eliminate or reduce the gap. This statement will be useful to properly contextualise the existence of the gap and clearly set out the employer’s roadmap to narrow that gap.

Although there is no provision for fines or compensation in connection with an employer’s disregard of the reporting obligations, the scope for adverse publicity and the potential impact on an employer’s ability to recruit and retain key talent will be key drivers to support compliance. Further, as this will be an ongoing requirement, the first year’s figures will serve as a yardstick against which an employer will effectively be benchmarked in subsequent years.

 “When it comes to participation in the labour market, women face far greater obstacles than men… Advancing women’s rights and equality is a priority for this Government... The Gender Pay Gap Act requires employers to not only report on the gender pay gap in their organisation, but also places on obligation on employers to provide details of measures being taken to reduce that gap."

Roderic O’Gorman, Minister for Children, Equality, Disability, Integration and Youth

Statutory sick pay entitlements on the horizon for the first time in Ireland

Unlike most of our European counterparts, there is currently no legal entitlement to sick pay under Irish law and it is for an employer to decide on the level of sick pay (if any) it provides to its staff. However, the draft Sick Leave Bill published in November 2021 proposes to provide an entitlement to a minimum period of paid sick leave for all employees commencing with three days per year once the employee has completed 13 weeks’ service.

The draft Bill is currently undergoing pre-legislative scrutiny but it is anticipated that this entitlement will increase to five days payable in 2023, seven days payable in 2024 and up to 10 days payable by 2025. Significantly, it is proposed that the rate of sick pay will be capped so that an employer will only be obliged to pay up to 70% of wages, subject to a cap of €110/day.

"The pandemic exposed the precarious position of many people, especially in the private sector and in low-paid roles, when it comes to missing work due to illness… Ireland is one of the few advanced countries in Europe not to have a mandatory sick pay scheme... It has to be one of the legacies of the pandemic."

Leo Varadkar, Tánaiste and Minister for Enterprise, Trade and Employment
Significant Updates to Ireland's Whistleblower Regime

The Protected Disclosures (Amendment) Bill 2022 was published in February and is set to finally transpose the EU's Whistleblower Protection Directive by amending the Protected Disclosures Act of 2014, albeit the transposition date has now long since passed. The bill is currently before the Seanad and it is likely that further amends to the bill will be made.

At a high level, however, it will establish formal channels and procedures for employees to make protected disclosures in organisations with 50 or more employees.  The bill will also:

  • widen the scope of the categories of workers that are protected under the regime; 
  • expand the definition of penalisation to cover more covert acts, such as negative performance appraisals or withholding promotions;
  • expand the breaches that employees may make protected disclosures in respect of; and
  • create additional offences under the regime.

The bill generally follows the general scheme that was published by the government last Summer, however, the Government has deviated from this to further clarify that interpersonal grievances solely affecting an employee will not be considered a protected disclosure, following the high profile decision of the Supreme Court in Baranya v Rosderra Irish Meats Group Ltd.  While stopping short of limiting protected disclosures to those made in the public interest, as suggested by the Supreme Court, this amendment is a welcome development and will ensure that individual grievances are dealt with through appropriate internal company procedures. 

"The implementation of the EU Directive and the amendments I am proposing in this Bill will further strengthen the protections for whistleblowers and maintain Ireland’s position as a leader in this area."

Michael McGrath, Minister for Public Expenditure and Reform 
Work-Life Balance Directive in Ireland – promoting workplace flexibility and inclusivity

2022 continues to see diversity and inclusion initiatives included as board-level agenda items and it continues to be the focus of ongoing legislative protection both at Irish and EU level. 2022 also saw the largescale facilitation of remote and flexible working arrangements as a return to the workplace was facilitated post-pandemic. A consequence of such arrangements is that the boundaries between work and home-life are increasingly entangled. As a result, the legislative promotion of workplace flexibility and inclusivity has never felt so timely.

The Irish government published the Work Life Balance and Miscellaneous Provisions Bill 2022 to implement the EU Work-life Balance Directive, which is due to be transposed by August 2022.

The key measures introduced are as follows:

  • the right to request flexible working for employees with children up to the age of 12 (or 16 if the child has a disability or long-term illness) and those with certain caring responsibilities. This right will be conditional upon employees having six months' continuous service;
  • the right to five days' unpaid leave per year for the purposes of providing care for "serious medical reasons" to a family member or person who lives in the same household as the employee (which will apply in addition to existing entitlements under the Carer’s Leave Act 2001 and force majeure leave);
  • to amend current maternity protection legislation by increasing the period in which mothers are entitled to take paid time off work each day to breastfeed from a period of six months to two years from the date of child's birth; and
  • to provide for 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. 

“I want to ensure that parents and carers can be supported to balance their working and family lives... Through the Work Life Balance Bill, they can have 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 will provide additional flexibility.”

Roderic O’Gorman, Minister for Children, Equality, Disability, Integration and Youth

 

"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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