Review of Recent Employment Developments in Ireland 9/9/2016

Highlights this week: The Labour Court has published its first annual report to cover some of the period since the changes brought in under the Workplace Relations Act. Unsurprisingly, it is estimated that in 2016 and beyond up to 75% of cases will involve appeals from the decision of an Adjudication Officer, with the remaining cases involving the investigation of trade disputes; the gender pay gap in Ireland continues to be a cause for concern - Morgan McKinley in cooperation with Emolument are currently working on a white paper and we are encouraging our readers to complete a survey; and OSHA has set out a series of articles explaining where all those health and safety laws come from. It's really quite interesting, even if H&S is not your speciality.

CONTENTS

1. Case Law Review
2. Labour Court Publishes Annual Report for 2015
3. Gender Pay Gap in Ireland
4. Paternity Leave and Benefit Commence
5. Terms and Conditions for Electricians
6. Health & Safety Developments
7. UK Developments
8. Employment News in the Media
9. Thought-Provoking Video

Case Law Review: Just the one case this week and it's not even Irish but it might interest a few readers - a UK court has ruled that salary protection can be a reasonable accommodation in disability discrimination cases.

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1. CASE LAW REVIEW

G4S Cash Solutions (UK) Ltd v Powell [2016] UKEAT 0243_15_2608

Keywords: Disability Discrimination; Reasonable Adjustment; Pay Protection; Contract of Employment; Implied Term; Variation of Contract

This case might be of particular interest to those readers with employees based in the UK, although it concerns whether protection of salary can be a reasonable accommodation (known as a 'reasonable adjustment' in the UK) in a disability discrimination case and contractual variation and is therefore of more general interest to employers in this jurisdiction.

Mr Powell was an ATM engineer in London. After the Claimant became disabled through a back injury the Respondent gave him work in a new role (“key runner”) at his existing rate of pay and led him to believe, according to the evidence, that the role was long-term.  The following year, however, it said that it was only prepared to employ him in this role at a reduced rate of pay by around 10% because he had fewer responsibilities as a key runner; and when the Claimant refused to accept these terms he was dismissed.

It was argued by the Claimant that there was a variation of his contract entitling him to work as a key runner at his existing rate of pay.  The original Employment Tribunal (UK equivalent of a WRC adjudicator) found that there was no such variation.  The Claimant cross-appealed on this point.  The Employment Tribunal had rejected his case, at least in part, because it considered that an employer was entitled to impose an adjustment on an employee without the employee’s consent.  This was an error of law, according to the Employment Appeal Tribunal (equivalent of the Labour Court in Ireland):

"If an employer proposes an adjustment which is incompatible with the terms of the contract of employment, the employee is entitled to decline it: the adjustment will not be effective without agreement, that is to say without a variation of the contract.  No doubt in the vast majority of cases such agreement will be forthcoming; but there will be cases where an employee does not agree with a proposed adjustment.  In such a case an employer is not entitled to impose it if the adjustment is incompatible with the terms of the contract of employment."

However the Employment Tribunal had gone on to find that the Respondent was required, as a reasonable adjustment, to employ the Claimant as a “key runner” at his existing rate of pay.  Sitting alone, EAT judge Richardson J stated, "...the objectives of the legislation plainly envisage an element of cost to the employer; if an adjustment is one which it is reasonable for the employer to have to make, it is not a matter for charity, but a legal requirement reflecting the expectations of Parliament and society.  The objective is to keep employees in work, and I see no reason why a package of measures for this purpose, which includes some pay protection, should not be a reasonable adjustment."

So, the Employment Tribunal had been entitled to reach its conclusion in this case that payment protection was a reasonable adjustment, said the EAT. It may not be a regular occurrence but the EAT could see that protecting salary for a longer term could be part of a reasonable adjustment package:

"I do not expect that it will be an everyday event for an Employment Tribunal to conclude that an employer is required to make up an employee’s pay long-term to any significant extent - but I can envisage cases where this may be a reasonable adjustment for an employer to have to make as part of a package of reasonable adjustments to get an employee back to work or keep an employee in work.  They will be single claims turning on their own facts... The financial considerations will always have to be weighed in the balance by the Employment Tribunal... I make it clear, also, that in changed circumstances what was a reasonable adjustment may at some time in the future cease to be an adjustment which it is reasonable for the employer to have to make; the need for a job may disappear or the economic circumstances of a business may alter...

"I do not, however, accept that the Employment Tribunal erred in law or was perverse in the conclusion it reached.  The effect of its decision was to say that the Respondent should have continued an arrangement which had already been in place for nearly a year and which it had led the Claimant to expect to be long-term.  The Employment Tribunal took into account and analysed such financial evidence as it had bearing on the question whether it was reasonable for the Respondent to have to take a step in question.  The main reason for not paying the Claimant the SLM rate was said to be the likelihood of discontent from other employees: this is an unattractive reason, and the Employment Tribunal was entitled to reject it..."

http://www.bailii.org/uk/cases/UKEAT/2016/0243_15_2608.html  

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2. LABOUR COURT PUBLISHES ANNUAL REPORT FOR 2015

The Labour Court has published its Annual Report for 2015.

In his foreword, Chairman Kevin Duffy said, "The most important event affecting the court during the year under review was undoubtedly the passing into law of the Workplace Relations Act 2015, which was commenced by Ministerial Order on 1st October 2015. This Act will result in profound change in the Court’s caseload and in the profile of cases with which it deals. That will arise from the designation of the Court as the sole appellate tribunal in all equality and employment rights cases dealt with at first instance by Adjudication Officers of the Workplace Relations Commission."

Undoubtedly, future annual reports will move further away from the Court's mission statement, “To find a basis for real and substantial agreement through the provision of fast, fair, informal and inexpensive arrangements for the adjudication and resolution of industrial disputes”, to include appeals on more individual employment-related disputes, although that will be balanced by the enactment of the Industrial Relations (Amendment) Act 2015 which also commenced in October 2015. Either way, the workload of the Labour Court is certain to increase in number and expand in scope as the years progress.

Some key points:

• The average timescale for hearings in Dublin is 13 weeks from the date of referral. Outside Dublin it is currently 16 weeks from date of referral.
• The Court operates to a target of issuing recommendations in Industrial Relations cases within three weeks of the hearing and within 6 weeks in employment rights cases.
• Having regard to the expanded jurisdiction conferred on the Court by the Workplace Relations Act 2015 the number of cases that it is likely to receive in 2016 will, at least, double the number received in 2015.
• It is estimated that in 2016 and beyond up to 75% of cases will involve appeals from the decision of an Adjudication Officer under various other employment rights enactments, with 25% of cases involving the investigation of trade disputes.
• The industrial relations environment in Ireland remained relatively stable in 2015. There were six disputes involving work stoppages during the year involving nine firms and 37,760 workers.
• In 2015, the Labour Court:

- Received 810 referrals

- Held 613 hearings

- Issued 518 Recommendations / Determinations / Decisions / Orders

- Investigated 110 cases that were settled prior to or at a hearing

- registered 1 Collective Agreement under the Organisation of Working Time Act, 1997

More:
https://www.workplacerelations.ie/en/news-media/Workplace_Relations_Notices/LC_Annual_Report_2015.html

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3. GENDER PAY GAP IN IRELAND

The pay gap between men and women in Ireland and indeed globally has widened in recent years despite the ongoing media coverage on the issue and despite continuous evidence that many women do better at school and university than men.

The Gender Pay Gap measures the relative difference in the average gross hourly earnings of men and women as a whole.  Latest figures from the EU commission show that the Gender Pay Gap in Ireland is almost 14%.  The gender pay gap widens significantly for women with at least one child adding to the already high costs of motherhood.

This inequality becomes even more pronounced the higher up the career ladder a woman goes.  The gender pay gap at this point can be as high as 25% for the top 10% of income earners.

As thought leaders in the recruitment industry Morgan McKinley in cooperation with Emolument, a crowdsource pay data company, are currently working on a white paper which will explore the underlying factors which are contributing to this phenomenon.  Please support this research by completing their Salary Benchmarking survey:
https://www.morganmckinley.ie/article/benchmark-your-salary-and-support-gender-pay-gap-research

Morgan McKinley will share the results both with those who complete the survey and interested government bodies.

Still with gender and equality issues, Mr. David Stanton, T.D., Minister of State at the Department of Justice and Equality. with special responsibility for Equality, Immigration, and Integration will launch a Call for Proposals on 22 September 2016, for Migrant Integration and Gender Equality projects. Applications for funding will be sought under the EU Asylum, Migration and Integration Fund 2014-2020 and the European Social Fund Programme for Employability, Inclusion and Learning 2014-2020.

The purpose of the event will be to provide information to organisations who may be interested in applying for funding under the following EU Funding Streams:

• Asylum, Migration and Integration Fund
• European Social Fund - Integration and Employment of Migrants
• European Social Fund - Gender Equality (Women Returning to the Workforce and Women’s Entrepreneurship)

More:
http://www.justice.ie/en/JELR/Pages/Call_for_Proposals_EU_Funding_for_Migrant_Integration_and_Gender_Equality_Projects

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4. PATERNITY LEAVE AND BENEFIT COMMENCE

The amendments to the Workplace Relations Act under the Paternity Leave and

Benefit

Bill 2016 came into effect on 1st September. The changes provide statutory paternity leave and benefit for fathers and bring Ireland in line with many other EU countries. The leave is intended to encourage and promote a more equitable division of parental responsibilities in the workplace. Announcing the introduction of paternity leave, the government also referred to the possibility of a further 2 weeks' shared parental leave to be introduced in the next Budget.

A relevant parent will be entitled to two continuous weeks' paid leave in respect of births from September 2016. Payment will be at the rate of €230 per week, subject to a person having the appropriate PRSI contributions. This is the same as the current rate of maternity benefit. Similar to maternity leave, employers can top up paternity benefit if they want. It should be noted that where employers make a top up to female employees, they should ensure they do not discriminate against male employees in relation to a top up of paternity benefit. More:
https://www.workplacerelations.ie/en/What_You_Should_Know/Other_Leave/Paternity_Leave.html 

Davnet O'Driscoll of Amory's Solicitors has also provided a brief summary of the changes that came into operation last week:
https://www.legal-island.ie/articles/ire/features/privacy-data-issues/2016/sept/paternity-leave-and-benefit-bill-2016/

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5. TERMS AND CONDITIONS FOR ELECTRICIANS

Having had regard to the provisions of Section 15 (2) and (3) of the Industrial Relations (Amendment) Act 2015, the Labour Court has given notice of its intention to conduct an examination of terms and conditions relating to the remuneration and any sick pay scheme or pension scheme applying to Electricians and their Apprentices employed in the Electrical Contracting Industry in the Electrical-Engineering sector.

Any person wishing to make representations in relation to the examination should do so on or before 14 September, 2016. Representations received after that date shall not be considered. Any such representations should be sent by post to The Secretary, The Labour Court, Tom Johnson House, Haddington Road, Dublin 4, or by E-mail to info@labourcourt.ie.

More:
https://www.workplacerelations.ie/en/Publications_Forms/Advertisement-Notice-TEEU-SEO-Final-.pdf 

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6. HEALTH AND SAFETY DEVELOPMENTS

* Recommended Publications

The Health & Safety Authority has published a list of Recommended Publications where you will find information and guidance developed by the Health & Safety Authority that is industry / sector specific.

The list includes the following and much more:

• Code of Practice on the Prevention and Resolution of Bullying at Work
• Storage of Hazardous Chemicals in Warehouses and Drum Stores
• Fire Safety Check Sheet
• Managing Health and Safety in Small Healthcare Facilities
• Guidance on Night and Shift Work

http://www.hsa.ie/eng/Small_Business/Taking_Care_of_Business/Recommended_Publications/

* Safety and Health at Work: It’s the Law

Ever wondered where all the laws on health and safety emanate? National safety and health legislation in Member States is governed by European legislation. This includes legally binding EU directives, non-binding EU guidelines to facilitate the implementation of directives and EU standards. OSHA has set out a series of articles explaining it all. It's really quite interesting, even if H&S is not your speciality:
https://osha.europa.eu/en/safety-and-health-legislation

* HSENI Chairperson Opportunity

The Department for the Economy in Northern Ireland is seeking to appoint a new Chairperson to the Board of the Health and Safety Executive for Northern Ireland (HSENI), an executive Non-Departmental Public Body with Crown status.

The appointment is effective from 1 April 2017 although there will be the opportunity to ‘shadow’ the outgoing Chair with effect from 1 January 2017.  The term of appointment will be for three years. The closing date for applications is 5pm on Friday 30 September 2016. 
http://bit.ly/2celKFc

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7. UK DEVELOPMENTS

Employment law is a devolved power in Northern Ireland. The items in this section apply throughout GB only (Scotland and England & Wales) unless we specify they apply to NI.

This section is brought to you by Ciara Fulton, Partner and Head of Employment Law at C&H Jefferson, Belfast. Ciara is dual-qualified and practices law throughout the island of Ireland. Find out more about Ciara:
http://www.chjefferson.co.uk/ciara-fulton.html   

* Brexit Legal Challenge

The Northern Ireland peace process is based upon membership of the European Union, the High Court has heard and it would be unlawful to trigger Article 50 of the Lisbon Treaty - the formal process for confirming the UK's exit - without first securing Parliamentary authorisation. Raymond McCord and politicians including David Ford, Colum Eastwood, John O'Dowd and Steven Agnew are seeking to judicially review the British Government's move towards leaving the EU.

The cases were initially heard on Monday and the judge decided to list the cases for mention again for yesterday. More from ITV:
http://www.itv.com/news/utv/2016-09-05/peace-process-based-on-eu-membership-brexit-challenge-hears/ 

* Meanwhile, the British Chamber of Commerce published a survey of UK firms and revealed that two fifths of companies report their EU employees have expressed concern over their future residency status following the vote to leave the European Union.
http://www.britishchambers.org.uk/press-office/press-releases/bcc-businesses-need-reassurance-on-eu-employees.html

* Forced Labour and Human Trafficking

The Department for the Economy and Department of Justice in NI have published a pamphlet on the above issues for employers and others that includes some common signs and indicators, with contact details as to who to call if you suspect someone may be a victim of trafficking or forced labour. Some signs include:

• Might live in groups in the same place where they work and leave those premises infrequently, if at all
• Might have to pay for tools, food or accommodation or have those costs deducted from their wages
• Might have no access to their earnings or be subject to excessive wage deductions
• Might not be dressed adequately for the work they do: for example they may lack protective equipment or warm clothing

More:
https://www.economy-ni.gov.uk/sites/default/files/publications/del/Human-Trafficking.pdf

* Sports Direct Invest in HR

Sports Direct has announced plans to strengthen its HR team after a report revealed “serious shortcomings” in the way it handled key people-related issues. Mike Ashley’s company also said it would offer more staff contracts with guaranteed hours, and consider further action to boost the pay of those hovering near the minimum wage. More from the CIPD:
http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/09/06/under-fire-sports-direct-plans-to-bolster-hr-team.aspx

* Zero Hour Contrcats in the UK

The CIPD also reports this week on zero-hour contracts. ONS figures show 903,000 in the UK work on zero hours in their main job, and many have been with the same employer for more than a year.

The number of people employed on zero-hours contracts rose by 21 per cent year-on year and that may demonstrate an increasing reliance on more casual forms of employment in the wake of recent economic volatility. More from the CIPD:
http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/09/08/use-of-zero-hours-contracts-up-21-per-cent-in-a-year.aspx

* Managing People

Acas, the GB equivalent of the LRA in NI and the WRC in Ireland, has launched new guidance for line managers to help run effective teams and make businesses more productive. Acas is calling on small businesses and larger companies to use the guidance to ensure that staff are equipped to manage and care for their teams.

The new guide highlights leadership, people management and strong organisational skills as three key areas where team leaders need strong skills:

• How to lead and motivate - Managers should know how to build trust and respect with their teams, listen to their concerns and ideas.
• How to manage tricky situations with people - Typical scenarios could be staff members having family problems, two colleagues accusing each other of bullying, or jealousy in a team over nominations for training and bonuses.
• Organising day to day tasks - A good manager should be effective at planning team work, rotas, budgets, and balancing their own time.

Although GB-based, the information and advice is generic and full of sensible suggestions and useful tips that could be applied in any jurisdiction. Well worth a read and recommending to supervisors who want to bolster team spirit and output:
http://www.acas.org.uk/media/pdf/9/t/Managing_people.pdf 

*** Acas also has a good guide out on homeworking, for those looking for some ideas in that area:
http://www.acas.org.uk/media/pdf/o/3/Homeworking-a-guide-for-employers-and-employees.pdf

Treat this one with more caution, if based in NI, because it has several legislative references that do not apply in NI.

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8. NEWS IN THE MEDIA

* Minister for Justice Frances Fitzgerald is to appeal July’s High Court decision to allow retired judge Barry White to resume practice as a criminal defence barrister. In a highly unusual step the former High Court judge had sought to return to work as a barrister because of inadequate pension arrangements, after it was reduced by 38 per cent to €78,000 per annum. More from Irishlegal.com:
http://www.irishlegal.com/5245/fitzgerald-appeals-ruling-on-retired-judge/

* The Garda Representative Association is to ballot its 10,000 members as to whether they are willing to take part in industrial action over their pay and conditions. The GRA has rejected the Lansdowne Road Agreement, and as a result, members are currently subject to an increment freeze. More from RTÉ:
http://www.rte.ie/news/2016/0906/814706-gardai-gra-ballot/

* A woman has been awarded €12,400 on behalf of her husband after he passed away before his case for age discrimination could be heard. Patrick McCourt’s complaint against Power City was lodged in May 2014, but he died the following August. His wife Marie advanced the complaint. In his complaint, Mr McCourt claimed he was discriminatorily dismissed on the grounds of age. He said his terms and conditions did not specify a retirement age but in 2011, when he turned 60, he had been forced to sign yearly fixed-term contracts. More from the Irish Examiner:
http://www.irishexaminer.com/ireland/woman-awarded-124k-for-husbands-dismissal-418019.html

* The possibility of school closures this autumn as a result of strike action by teachers has grown after the ASTI teachers' union decided to ballot members on industrial action. The union represents 18,000 teachers - more than half of all second-level teachers. More from RTÉ:
http://www.rte.ie/news/2016/0903/813926-asti-meeting/

* Commuters face the prospect of industrial action on the trains on the same day as bus strikes in the coming months, according to campus.ie:
http://campus.ie/surviving-college/same-day-strikes-both-buses-and-trains-loom-down-track

* The judiciary considered taking “the nuclear option” and bringing a lawsuit against the Government over attempts to cut judges pay during the financial crisis, it has been revealed in a new book. In The Supreme Court, former Irish Times legal affairs correspondent Ruadhán Mac Cormaic reveals that judges sought legal advice from a barrister in 2013 and were told their case was a strong one. More from irishlegal.com:
http://www.irishlegal.com/5222/judiciary-considered-suing-the-state-over-pay-dispute-new-book-reveals/

* But who would be a contractor in a tech firm? "Working at Facebook, even as a contractor, was supposed to be the opportunity of a lifetime. It was, instead, the most toxic work experience of my life." Read more from the Guardian:
https://www.theguardian.com/technology/2016/may/17/facebook-trending-news-team-curators-toxic-work-environment

* In the US, in a victory for Uber, a court said drivers for the most part have to resolve claims against the company individually and not through a class action lawsuit. More from the Independent:
http://www.independent.co.uk/news/business/news/uber-court-case-drivers-employee-rights-court-class-action-gig-economy-a7231506.html

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9. THOUGHT-PROVOKING VIDEO

This week's thought-provoking video is a TEDx talk by ‘The Positive Economist’, Susan Hayes-Culleton, on how to leverage your unique characteristics. Susan advises on five ways to define yourself and turbo boost your career:
http://www.thepositiveeconomist.com/five-key-ways-to-define-yourself-and-turbo-boost-your-career/ 

Enjoy the weekend.