Review of Recent Employment Developments in Ireland 24/11/2017

Highlights this week: The Minister for Justice and Equality, Charlie Flanagan, announced last week that the Civil Liability (Amendment) Bill 2017 had now passed all stages in the Oireachtas; Minister of State at the Department of Justice and Equality Deputy David Stanton has outlined plans to introduce mandatory reporting by companies of any gender pay gap as part of annual reporting requirements; and CIPD Ireland is conducting a survey to explore HR practices in Ireland today.

We have an extensive Brexit update as nearly half of Ireland’s top 20 law firms have been approached by a UK law firm in the past year with regard to a possible merger, acquisition or strategic representation arrangement following the UK’s exit from the EU; Dr Colin Harvey, Professor of Human Rights Law in the School of Law, Queen's University Belfast, offers his views on the repercussions of Brexit across the island of Ireland and is certainly well worth a read; and Lisa Bryson, Principal Associate of Eversheds-Sutherland, answers complex questions regarding employees and immigration post-Brexit, providing valuable information to those affected by the cessation of the free movement of people.

CONTENTS

1. Case Law Reviews
2. Civil Liability (Amendment) Bill 2017
3. Gender Pay Gap Reporting
4. HR Practices in Ireland Survey 2017
5. Brexit Update
6. Data Protection Update
7. Deloitte Global Human Capital Trends Report
8. UK Developments
9. Employment News in the Media
10. Thought-Provoking Video

Case Law Reviews: The focus of our case reviews this week - weekly rest periods and constructive dismissal. In the first of our cases, the CJEU was asked to consider whether the weekly rest has to be taken at the end of six days of working, to allow for a break between weeks, or whether workers may lawfully be asked to work up to 12 days in a row, provided they are given two days' rest in every fortnight; and in our second case the Labour Court ruled the complainant was entitled to terminate her contract of employment owing to the respondent's actions and inactions in connection with a grievance stemming from a demotion.

Remember: Our case law reviews are now held in our case law section on our fully-searchable new employment law hub website:
https://www.legal-island.ie/case-law-landing-page/

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1. Case Law Reviews

Maio Marques da Rosa v Varzim Sol [2017] EUECJ C-306/16

Working Time Directive; Weekly Rest Period

Our readers will be aware the Working Time Directive is health and safety at work legislation, brought into force in Ireland under the Organisation of Working Time Act, 1997. All workers are entitled to have breaks while they are at work and rest periods between working days or nights. The Organisation of Working Time Act 1997 sets out the statutory minimum entitlement for employees as regards working hours, annual leave, night work, breaks and rest periods for employees.

In relation to weekly breaks, s.13 of the Act provides that workers are entitled to a minimum of one day off in every seven. The question in this case was whether the weekly rest has to be taken at the end of six days of working, to allow for a break between weeks, or whether workers may lawfully be asked to work up to 12 days in a row, provided they are given two days' rest in every fortnight. The answer is the latter, according to the CJEU:

"...Member States are to take the measures necessary to ensure that, ‘per each seven-day period’, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3 of Directive 2003/88. However, that article does not specify when that minimum rest period must take place and thus gives Member States a degree of flexibility with regard to the choice on timing.

"... an interpretation of Article 5 of Directive 2003/88, according to which the minimum uninterrupted rest period of 24 hours, plus the 11 hours’ daily rest referred to in Article 3 of that directive, may be provided at any time within each seven-day period, is supported by a systemic analysis of that directive...

"It is apparent, therefore, from the actual wording of Article 5 of Directive 2003/88 that it requires the Member States to ensure that every worker enjoys, during a seven day period, a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3 of that directive, without, however, specifying when that minimum rest period must be granted."
http://www.bailii.org/eu/cases/EUECJ/2017/C30616.html

Homecare Medical Supplies v Pauline O'Connell [2017] ILCR Determination No. UDD1747

Keywords: Section 8A, Unfair Dismissals Acts, 1977 to 2015; Constructive Dismissal

This case involved a claim of constructive dismissal. The complainant had been a Retail Supervisor and submitted that she had been demoted following an open competition for a new role of 'Team Leader'. She claimed that there was no material difference between her current role as Retail Supervisor and that of the new advertised role of Team Leader. The complainant alleged that she had unsuccessfully attempted to raise her concerns about the situation prior to the competition and that in the circumstances a grievance procedure was not appropriate.

She claimed that she had been persuaded, by the Managing Director (MD) of the respondent company, to apply for the role of Team Leader, but to her shock was not successful. Instead, a less experienced colleague was appointed to the role and the complainant suffered great anxiety and stress as a result of the swapping of their roles. The complainant subsequently raised a number of concerns as to the new Team Leader's handling of her role and was told to make a formal grievance if she wished.

She submitted a formal grievance and two meetings were held on foot of same. After the second meeting, the complainant went out on certified sick leave and never returned. She resigned two months later as she felt she could not go back to the respondent company.

The respondent's MD stated that despite the complainant's role reverting to that of a Retail Assistant he did not deem it a demotion as the complainant had received a pay increase and her title did not change.

The Court held that the respondent's conduct was such that the complainant was entitled to terminate the contract of employment. The Court found that the tensions that arose, following the reversal of the roles, were foreseeable but the respondent did not put any measures in place to address this. Similarly, they did not contact the complainant in the seven week period she was out on sick leave, nor try to address the complaints in her resignation letter. Accordingly, the Court was satisfied that the respondent's actions and inactions entitled the complainant to terminate her employment, meaning she had been constructively dismissed. The Court found that neither of the job-back remedies were appropriate in the circumstances and awarded her monetary compensation.
http://www.lrc.ie/en/Cases/2017/October/UDD1747.html

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2. Civil Liability (Amendment) Bill 2017

The Minister for Justice and Equality, Charlie Flanagan, announced last week that the Civil Liability (Amendment) Bill 2017 had now passed all stages in the Oireachtas. Speaking following the passage of the Bill in the Seanad, Minister Flanagan said:

“I am delighted that the Civil Liability (Amendment) Bill has now passed the Houses of the Oireachtas. The Bill, which allows the courts the power to award periodic payments in cases of catastrophic injury, is an extremely important new piece of legislation that will give much needed financial security to persons who have been catastrophically injured and who require lifelong care and assistance. It addresses the concerns raised repeatedly by the courts that the absence of such legislation has meant that the best option for a catastrophically injured person in the form of a periodic payments order has not been available. It will ensure that people who have been catastrophically injured will receive the care and assistance they require for the rest of their lives.”
http://www.justice.ie/en/JELR/Pages/PR17000387

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3. Gender Pay Gap Reporting

Last week in the Dáil, Deputy Clare Daly asked the Minister for Justice and Equality his plans to introduce mandatory reporting by companies registered here of the gender pay gap in their companies as part of annual reporting requirements; and if he will make a statement on the matter.

Minister of State at the Department of Justice and Equality (Deputy David Stanton) replied: The Programme for a Partnership Government includes a commitment to promote wage transparency by requiring companies of 50 or more employees to complete a wage survey.  Reflecting this, the National Strategy for Women and Girls 2017-2020 contains an action to promote wage transparency by requiring companies of 50 or more employees to complete a wage survey periodically and report the results.

A public consultation on Measures to Tackle the Gender Pay Gap concluded on 4 October and an analysis of the submissions is under way. The issue, and in particular the role of wage surveys, will be considered at a symposium planned for 4 December.  I intend that a programme of actions on the gender pay gap will be developed, following the symposium and further consultation with stakeholders, to be undertaken in 2018.  As part of this, the details of the wage survey measure will be elaborated.
http://www.justice.ie/en/JELR/Pages/PQ-16-11-2017-118

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4. HR Practices in Ireland Survey 2017

CIPD Ireland is conducting a survey to explore HR practices in Ireland today.

The results of this survey will give insight into everything from strategic HR, learning & development to HR practices. It will also shape the CIPD Ireland research and policy agenda as well as helping us to support the HR profession in Ireland. 

Go on, you know you want to help...
https://www.cipd.ie/knowledge/hr-fundamentals/hr/hr-practices-ireland-survey

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5. Brexit Update

Irish Law Firms Approached for Post-Brexit M&A

Nearly half of Ireland’s Top 20 law firms have been approached by a UK law firm in the past year with regard to a possible merger, acquisition or strategic representation arrangement following the UK’s exit from the EU.

Smith & Williamson’s annual legal survey unveiled that Brexit, growth and the economy were key concerns for Irish law firms this year. According to the survey, leading firms are implementing a Brexit strategy, viewing the UK's exit from the EU as an opportunity or a threat to their firm. The survey identified a number challenges firms are likely to face over the next twelve months, namely maintaining profitability; managing cash flow; pressure on fees; the economy; and recruitment and retention of staff.

Paul Wyse, Managing Director at Smith & Williamson, said “We are in a period of uncertainty about Brexit and many firms are concerned about the impact it will have on their business. Two thirds of the Top 20 firms are executing Brexit strategies and there are also concerns about increased competition from UK firms setting up operations in Ireland. An increasing number of firms outside Dublin are reporting negative Brexit impacts but only three per cent have Brexit strategies in place.” More from Irish Legal: http://www.irishlegal.com/9431/nearly-half-of-top-irish-law-firms-approached-for-post-brexit-merger-or-acquisition/

Let’s Talk About…Employees and Immigration Post-Brexit

In the second of her series Lisa Bryson, Principal Associate of Eversheds-Sutherland, answers complex questions regarding employees and immigration post-Brexit, providing valuable information to those affected by the cessation of the free movement of people. Lisa discusses access to employment, how the rights of EEA nationals will be affected in the future and identifies some precautionary measures employers may wish to take in order to reassure their employees. Look out for more ‘Let’s Talk About…’ articles from Lisa in the months ahead.
https://www.legal-island.com/articles/uk/features/lets-talk-about/2017/nov/employees-and-immigration-post-brexit/

What Happens to the Irish Border Post-Brexit?

According to Arlene Foster, Ireland's Taoiseach Leo Varadkar "should know better" than to "play around" with Northern Ireland over Brexit. Following talks with Prime Minister Teresa May, the leader of the Democratic Unionist Party accused Mr Varadkar of being "reckless" as Brexit talks enter a "critical phase." The Irish government has insisted a hard border with Northern Ireland should be off the table and has sought clarity on the issue as talks continue:

"We've been talking 18 months, we've been given assurances now for 18 months since the referendum that there'll be no hard border in Ireland, that there won't be any physical infrastructure, that we won't go back to the borders of the past. We want that written down in practical terms in the conclusions of phase one."

There have been growing logistical concerns about what happens to the Irish border after Brexit. An EU paper recently suggested Northern Ireland would have to continue to follow many EU rules after Brexit if a hard border was to be avoided. It implied Northern Ireland may need to stay in the EU customs union if there were to be no checks at the border, something the UK government will not accept.

Mrs Foster criticised Mr Varadkar's comments suggesting the UK's exit from the EU would jeopardise the peace process, labelling it "a very careless thing to say," particularly with no devolved administration in place. Mrs Foster has sought to proceed to the second phase of talks as trade arrangements are linked to the border situation. Nigel Dodds, deputy leader of the DUP, has warned that any prospect of the border moving to the Irish Sea after Brexit (an idea suggested by some within the Irish government) would be "madness economically, never mind the political consequences".

But Ireland's Foreign Minister Simon Coveney said his government was right to seek more assurances about the border issue before agreeing to the next phase of Brexit talks.

"This is a much bigger issue than trade, this is about division on the island of Ireland." More from the BBC:
http://www.bbc.co.uk/news/uk-politics-42064743

A Time of Crisis and Challenge — Brexit and our Constitutional Future

Dr Colin Harvey, Professor of Human Rights Law in the School of Law, Queen's University Belfast, analyses the constitutional status of Northern Ireland and the Good Friday Agreement in light of the UK's imminent Brexit. In a recent article in the Derry Journal, Dr Harvey offers his views on the repercussions of Brexit across the island of Ireland and is certainly well worth a read. More from Queens:
http://qpol.qub.ac.uk/crisis-challenge-brexit-ni-constitutional-future/

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6. Data Protection Update

Data Breach by Uber Concealed

Uber concealed a hack that affected 57 million customers and drivers, the company has confirmed. The 2016 breach was hidden by the ride-sharing firm which paid hackers $100,000 (£75,000) to delete the data. The hackers found 57 million names, email addresses and mobile phone numbers. Within that number, 600,000 drivers had their names and licence details exposed. Uber did not confirm precise details of the hack and it is not known which countries were affected, but according to Bloomberg's report, two hackers were able to access a private area of Github, an online resource for developers.
According to Uber's Chief Executive Dara Khosrowshahi:

"While we have not seen evidence of fraud or misuse tied to the incident, we are monitoring the affected accounts and have flagged them for additional fraud protection. None of this should have happened, and I will not make excuses for it.  While I can't erase the past, I can commit on behalf of every Uber employee that we will learn from our mistakes." More from the BBC:
http://www.bbc.co.uk/news/technology-42075306

The General Data Protection Regulations must be implemented throughout the EU by way of domestic legislation by 25th May 2018 at the latest. In Ireland, the government has published a new Data Protection Bill which highlights how the GDPR is likely to be implemented in this jurisdiction. The headlines point to fines of €20m euros for data breaches, although costs could actually be much higher.

Legal-Island is hosting a Data Protection Update designed specifically for HR professionals to enable you to get your department in order by 25th May 2018 - the early bird rate is still available - and so we encourage you to act quickly! Visit our Employment Law Hub to learn more about the event:
https://www.legal-island.ie/events-ie/data-protection-update-ensuring-your-hr-department-is-gdpr-compliant/

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7. Deloitte Global Human Capital Trends Report

The 2017 Deloitte Global Human Capital Trends report, drawing on a survey of more than 10,000 HR and business  leaders globally, takes stock of the challenges ahead for business and HR leaders in a dramatically changing digital,  economic, demographic, and social landscape, with a focus this year on Diversity and Inclusion.

In today’s workforce, diversity and inclusion has risen from a tick the box exercise to a comprehensive strategy woven into every aspect of the talent life cycle.  This is reflected in Deloitte’s Human Capital Survey 2017 which shows a 32% rise since 2014 in the proportion of executives that cite inclusion as a top priority.

Both public awareness as well as employee views of diversity have strengthened over the past few years. In response, companies are now required to align their approach to diversity with the views of their employees or risk losing valuable talent and increased performance.

To achieve real diversity and inclusion results, the first step is to ensure top leadership understand the importance of the issue. Once buy-in is achieved at a C-Suite level, organisations can begin to use technology and data to identify and tackle problems including disparities in compensation, rewards and hiring. With sufficient resourcing and executive backing, organisations can move from talking about diversity to creating a truly inclusive workplace. Download the PDF on our website:
https://www.legal-island.ie/articles/ire/features/hr/2017/nov/diversity-and-inclusion-the-reality-gap/

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8. 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.

Gig Economy Bill

The Work and Pensions and Business, Energy and Industrial Strategy Committees have published a joint report and draft Bill to close the loopholes in GB that allow companies to use bogus "self-employment" status as a route to cheap labour and tax avoidance, saying the law must not allow willingness to exploit workers to be a competitive advantage.

Rachel Reeves MP, Chair of the Business, Energy and Industrial Strategy Committee, said: "Uber, Deliveroo and others like to bang the drum for the benefits of flexibility for their workforce but currently all the burden of this flexibility is picked up by taxpayers and workers. This must change. We say that companies should pay higher wages when they are asking people to work extra hours or on zero-hours contracts."
http://www.parliament.uk/business/committees/committees-a-z/commons-select/work-and-pensions-committee/news-parliament-2017/future-of-work-report-17-19/

The draft Bill has interesting definitions of employment and worker status:
https://publications.parliament.uk/pa/cm201719/cmselect/cmworpen/352/35209.htm 

The CIPD reports the move as "Businesses could face fines for false self-employment":
http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/11/21/businesses-could-face-fines-for-false-self-employment.aspx?

Deliveroo Riders Self-Employed

Deliveroo riders have been ruled self-employed by labour law body the Central Arbitration Committee (equivalent of NI's Industrial Court). The CAC decides whether trade unions should have the right to represent employees in relation to pay, hours and holidays under the UK's statutory union recognition laws. The test case was brought against the delivery company by the Independent Workers Union of Great Britain (IWGB) . The IWGB said the ruling showed a majority of Deliveroo riders wanted workers' rights and union recognition. But the CAC found they were self-employed because of their freedom to "substitute" - allowing other riders to take their place on a job. More from the BBC:
http://www.bbc.com/news/business-41983343

GB Refund of Fees Scheme Now Open to All

The scheme to refund claimants required to pay employment tribunal fees before it was ruled unlawful by the Supreme Court has been opened to all claimants, after the completion of the pilot project:
https://employmenttribunals.service.gov.uk/apply/refund/profile-selection

This section is brought to you by Ciara Fulton, Partner at Jones Cassidy Brett. Ciara is dual-qualified and practices law throughout the island of Ireland. Contact Ciara on cfulton@jcbsolicitors.co.uk.

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9. Employment News in the Media

 The media has reported on many high profile cases of abuse over the past few weeks which has drawn attention to harassment in a variety of settings. The umbrella group Amplify Women has published a free practical toolkit on how to deal with harassment and bullying in the workplace. It is hoped the guide will offer both freelance workers and employees of any gender access to a suite of key resources, reporting mechanisms and general advice on how to deal with harassment in the workplace. More from SIPTU:
http://www.siptu.ie/media/pressreleases2017/mainnews/fullstory_20672_en.html

Minister for Justice Charlie Flanagan has outlined plans for asylum seekers to be allowed to work if they meet certain criteria. The government has decided to opt into the EU (recast) Reception Conditions Directive (2013/33/EU meaning asylum seekers will be allowed to work no later than nine months after their application for asylum is lodged if they have not received a decision on their case. It follows recommendations from an inter-departmental taskforce set up to examine the issue after a Supreme Court judgment in May. The Supreme Court ruling found that the ban on asylum seekers looking for work was, "in principle", unconstitutional. More from RTE:
https://www.rte.ie/news/ireland/2017/1121/921857-asylum-seekers/

The Directive can be accessed here: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0033

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10. Thought-Provoking Video

This week's thought-provoking video is about the inevitable death of planet earth but in a fun way. The biggest obstacle to dealing with climate disruptions lies between your ears, says psychologist and economist Per Espen Stokes. He's spent years studying the defences we use to avoid thinking about the demise of our planet -- and figuring out a new way of talking about global warming that keeps us from shutting down. Step away from the doomsday narratives and learn how to make caring for the earth feel personable, do-able and empowering with this fun, informative talk. (15:00)
https://www.ted.com/talks/per_espen_stoknes_how_to_transform_apocalypse_fatigue_into_action_on_global_warming

Enjoy the weekend.

Legal-Island

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