Review of Recent Employment Developments in Ireland 18/9/2020

This week's top stories: 

• Book your place as this year's Annual Review of Employment Law on the 25th and 26th of November before the Early Bird offer finishes at 5pm TODAY!  In addition to the Annual Review you can also book a place on our Future of Work Summit on the 14th October which is designed to help business leaders and those in HR understand the full impact of Covid-19 on the world of work.  Book before the 5th October and you can get in for free!
  
  
• Legal Island is delighted to announce our brand-new Managing and Motivating Remote Workers in Ireland eLearning Course in partnership with Think People Consulting has just launched.
  
  
• In Coronavirus employment-related updates the Government has published its plan for living with Covid-19 in the medium term and the suspension of the Redundancy Payments Act for employees on lay-off or short-time working has been extended until the 30th November.  The Pandemic Unemployment Payment will remain open to new entrants until the end of the year.
  
  
• Employers' group Ibec has called on the Government to provide an additional €6 billion in supports for businesses in the upcoming Budget as the Government announces that Income Tax won't change in the Budget. 
  
  
• The members of the unions making up Congress Construction Industry Committee (BATU, Connect, OPATSI, SIPTU and UNITE) have overwhelmingly voted for industrial action in the event that employers fail to pay a 2.7% increase due on the 1st October, 2020. 
  
  
• You can listen again to our two recent webinars with Bláthnaid Evans, Leman Solicitors as she discusses the Employment Wage Subsidy Scheme and to Caroline McEnery, the HR Suite as she provides a comprehensive Covid-19 HR update. 

And here's this week's contents list in full... 

CONTENTS 

1. Your Update on an Extraordinary Year for HR Professionals (Early Bird Offer Ends 5pm TODAY)
2. Case Law Reviews
3. Just launched: Managing and Motivating Remote Workers in Ireland eLearning Course
4. The Future of Work Summit
5. Coronavirus Employment-related Updates
6. Brexit Update
7. Congress Construction Unions Vote To Protect Pay Rates In The Sector
8. Just in Case You Missed It...
9. Employment News in the Media
10. UK Developments
11. Thought-Provoking Video 

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1. Your Update on an Extraordinary Year for HR Professionals (Early Bird Offer Ends 5pm TODAY) 

The Covid-19 pandemic caused a huge amount of uncertainty, leading to a year of unprecedented change for all employers and HR professionals, as well as employees. 

The impact of Covid-19 and subsequent lockdown has super-sized employment issues for employers this year. 

Let us save you and your organisation time, money and stress by providing you with detailed updates on the Irish and international employment law developments that you need to know. This is the 22nd year of Legal Island’s Annual Review of Employment Law conference – the original, biggest and best in Ireland. 

This year, the conference is taking place online on 25th and 26th November. You’ll learn from 25+ speakers across 19 sessions including: 

• Review of an Extraordinary Year (Part 1): The Impact of Covid-19 and Other Changes – Key Lessons (Speaker: Jennifer Cashman, Partner, Ronan Daly Jermyn)
• Employer Liability in a Covid-19 World (Speaker: Deirdre Crowley, Partner, Matheson)
• Regulating Home and Remote Working – Top Tips from a Leading Employment Lawyer (Speaker: Bláthnaid Evans, Partner, Leman Solicitors)
• Ireland Case Review 2020 and Key Next Steps (Speaker: Duncan Inverarity, Head of Employment Law Group, A&L Goodbody)
• Minimising Risks and Costs from Redundancy Selection (Speaker: Ger Connolly, Partner, Mason Hayes & Curran)
• Remote Workplace Investigations and Disciplinary Hearings: Getting it Right (Speaker: Caroline McEnery, MD, The HR Suite and WRC Adjudication Officer)
• Review of the Extraordinary Year (Part 2): Looking at What’s to Come in 2021 (Speaker: Jennifer Cashman, Partner, Ronan Daly Jermyn)
• And much more (this year we've got 19 sessions in total and you'll have access to every single one during the conference and via recordings)
• As usual, we have an amazing speaker line-up this year, with Ireland's leading employment lawyers and HR experts. 

View the full programme or register your place(s) here:
https://www.legal-island.ie/events-ie/annual-review-of-irish-employment-law-2020/ 

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2. Case Law Reviews 

Dublin Airport Authority v John Bacon [2020] PWD2021 

Keywords: Section 7(1), Payment of Wages Act, 1991; Balance of probability 

This matter came before the Court by way of an appeal brought by the Dublin Airport Authority against a decision of an Adjudication Officer which found in favour of the Respondent, John Bacon. The Respondent alleged that the Appellant failed to pay him the amount of €2,472.10 on the termination of his employment and that failure amounted to an unlawful deduction. The Respondent contended that he should have received four ‘back weeks’ pay upon the conclusion of his employment. 

The Appellant submitted that the Respondent, as a result of a collective agreement reached at the end of 2018, was paid two weeks in arrears up to the date of termination of his employment and, in consequence of that fact, continued to be remunerated for two weeks after the termination of his employment. The Appellant maintained that the Respondent was paid on a current basis until a collective agreement concluded in late 2018 which provided for payment of affected staff on the basis of two weeks in arrears. The Appellant claimed that at all times throughout the Respondent’s employment until the beginning of 2019 the Respondent was paid ‘in advance’ in respect of all aspects of his pay which were not dependent on time actually worked and ‘in arrears’ in respect of those elements which depended on time actually worked.

The Respondent submitted that, upon his recruitment in 1979, his contract provided that he would be paid ‘weekly in arrears’. He submitted that, by agreement, he was moved to being paid fortnightly in arrears in 1985. In support of his contention, the Respondent submitted a copy of a letter from the Appellant issued to him in 1979 and also submitted a copy of a document issued by the Appellant upon the introduction of fortnightly pay in 1985. 

The Court, faced with an absence of significant relevant payroll details, established that the Respondent was, prior to the conclusion of a collective agreement in 2018, paid all pay increases which were expressed to apply from a specific date on a current rather than an arrears basis.

Taking into account the undisputed pay history of the Respondent in terms of the application of increases expressed to apply to the Appellant’s pay from specific dates, the Court determined, on the balance of probability, that the Respondent was not in fact paid in arrears in the manner submitted by him prior to the agreement concluded in late 2018. 

The Court therefore concluded that the failure of the Appellant to pay the sum of €2,472.10 to the Respondent on the 11th September 2018 could not be an unlawful deduction within the meaning of the Payment of Wages Act. In these circumstances, the Appellant’s appeal is allowed, and the decision of the Adjudication Officer is set aside.
https://www.workplacerelations.ie/en/cases/2020/july/pwd2021.html 

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/employment-law-hub/case-law-search-page/ 

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3. Just launched: Managing and Motivating Remote Workers in Ireland eLearning Course 

Legal Island is delighted to announce our brand-new Managing and Motivating Remote Workers in Ireland eLearning Course in partnership with Think People Consulting has just launched. The purpose of this course is to provide managers of remote workers with the tools to manage and motivate their team, optimise performance, and achieve organisational goals. 

To view a FREE demo of the course on behalf of your organisation click here:
https://www.legalisland-vle.org/course/view.php?id=197 

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4. The Future of Work Summit 2021+Beyond 

Some commentators are saying that this year has witnessed greater change to how we do "work" than at any point since the Industrial Revolution. 

Employers have been forced to trust employees and many now accept that work doesn't necessarily have to be carried out in a space governed and monitored by them. This has proved to be a complete gamechanger for many organisations across multiple industries. 

The "Future of Work Summit 2021 & Beyond" is designed to help business leaders and those in HR understand the full impact of Covid-19 on the world of work. 

It brings together some of the foremost experts on the Island of Ireland on all matters relevant to the "new workplace" including those responsible for recruitment, people management, job design, employment law, mental health at work and learning and development. 

It will take place online during the morning of Wednesday 14th October online. Best of all it's free if you register before 5pm on Monday the 5th October. 

To register simply click on this link : www.Thefutureofworksummit.net.

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5. Coronavirus Employment-related Updates 

What's In The Government's Medium-Term Plan For Living With Covid? 

The Government's medium-term plan for Living with Covid-19 has been announced.  Taoiseach Micheál Martin said protecting public health remains an absolute priority. He said: "Each of us has a personal responsibility to try and limit its spread." 

Earlier, Minister for Public Expenditure and Reform Michael McGrath said the plan would cover the next six to nine months as it is not certain that there will be any progress in a vaccine over that period of time.  The 'framework for restrictive measures' consists of five levels.  The lower levels will be activated when there is low incidence of the disease, with isolated outbreaks, low community transmission.  The higher levels will be used to deal with higher incidences of the disease.  More from RTE:
https://www.rte.ie/news/2020/0915/1165322-living-with-covid-summary/ 

Living with Covid Plan: What Is In Each Of The Five Levels? 

The Government will decide on moving between levels based on advice from the National Public Health Emergency Team, which will be first assessed by a new Covid-19 Oversight Group chaired by the Government’s secretary general Martin Fraser with inputs from other Government departments. The chief medical officer and HSE chief executive will also sit on this group. 

The criteria that will set alert levels will include the number and location of cases and clusters, recent incidence rates, the capacity to manage outbreaks and testing and contact tracing, along with the capacity of the hospital system, the number of deaths and the international situation. 

This article has a handy pictogram explaining the five levels of restriction.
https://www.irishtimes.com/news/health/living-with-covid-plan-what-is-in-each-of-the-five-levels-1.4355417

Confusion Over Dublin’s Status Under New Pandemic Plan 

Confusion over what Covid-19 measures will apply in Dublin, apparent contradictions between Ministers, and the sudden announcement that members of the Cabinet were “self-isolating” overshadowed the publication of the Government’s plan for managing the pandemic for the next six months.  The plan was immediately criticised by Opposition parties for being unclear when the Government revealed that, although there would be a framework incorporating five levels of restrictions depending on the rate of spread of coronavirus, Dublin was judged to be currently between two levels. 
https://www.irishtimes.com/news/health/covid-19-confusion-over-dublin-s-status-under-new-pandemic-plan-1.4355832 

This statement from the National Public Health Emergency Team outlines the current Covid-19 status in Ireland:
https://www.gov.ie/en/press-release/af217-statement-from-the-national-public-health-emergency-team-tuesday-15-september/ 

Redundancy Payments Act - Extension of Suspension for Short-time and Lay Off 

The Minister for Social Protection, Heather Humphreys TD, has secured Government approval to extend the redundancy provisions relating to temporary lay-off and short-time work - which arose as a result of COVID-19 - until 30th November.  Minister Humphreys acknowledged that the decision will be met with competing views but added that it is necessary in order to protect businesses and prevent permanent job losses. 

The suspension of the redundancy provisions was brought into effect from 13th March 2020 under Part 8 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 in order to ensure the future viability of businesses and help prevent further permanent job losses.  It is considered that an extension of the end-date continues to be important for employees to ensure that they have a continued link to their job and a pathway to return. For employers, many still regard their businesses as being temporarily closed or they are operating well below their capacity.  For this reason, the provisions had been extended to 31st May, again to 10th August and most recently to 17th September. This rationale continues to apply to this latest extension. 

Minister Humphreys continues to believe that extending the end date further will help prevent redundancies at a time when the labour force as a whole is facing a significant challenge with some 210,000 people in receipt of Pandemic Unemployment Payment and a further 32,200 employers have registered with Revenue for the Employment Wage Subsidy Scheme in respect of their employees.  More here:
https://www.gov.ie/en/press-release/e3df4-redundancy-provisions-relating-to-temporary-lay-off-and-short-time-work-extended-until-november-30th-2020/ 

Pandemic Unemployment Payment To Remain Open For New Entrants 

The Minister for Social Protection, Heather Humphreys, T.D., has secured Government approval to keep the Pandemic Unemployment Payment (PUP) open to new applicants until the end of 2020.  To date, over €3.5 billion has been paid out under PUP to hundreds of thousands of people who lost their jobs as a result of the Pandemic.  As part of the July Jobs Stimulus, a decision was taken to close PUP for new entrants from September 17th.  However, Minister Humphreys today secured Cabinet approval to extend this date until the end of 2020.  This means that anyone who loses their employment as a result of the pandemic after September 17th will be able to avail of the appropriate PUP rate. More here:

https://www.gov.ie/en/press-release/9f11b-pandemic-unemployment-payment-to-remain-open-for-new-entrants/ 

Update on Payments Awarded for Covid-19 Pandemic Unemployment Payment and Enhanced Illness Benefit 

The Department of Social Protection issued payments valued at €65.5 million to 209,941 people for the Covid-19 Pandemic Unemployment Payment (PUP). This represents a decrease of 9,959 on the 219,900 people paid last week and it is a drop of over 64% on the 598,000 paid at its peak on 5th May.  In the past seven days, 9,974 people have closed their claim for the Pandemic Unemployment Payment. Some 7,457 people will be receiving their final payment on the 15th September.  This week the sector with the largest number of employees returning to work is Accommodation and Food Service Activities with 1,304 people going back to work, followed by the Education sector with 1,091 people returning to work.  More here:
https://www.gov.ie/en/press-release/a6016-update-on-payments-awarded-for-covid-19-pandemic-unemployment-payment-and-enhanced-illness-benefit/ 

Ibec Calls For €6bn Support For Businesses In Budget 

Employers' group Ibec has called on the Government to provide an additional €6 billion in supports for businesses in the upcoming Budget.  In a pre-Budget submission, Ibec said the economy "is not yet ready to carry itself" and that the Irish business model faces its most significant challenge in over half a century.

Ibec said the Government could and should run a deficit of €30 billion this year but it should also do "whatever it takes to combat the economic crisis while it lasts".  It recommends the new wage subsidy scheme should be reduced gradually beyond its current limits and only be removed from companies when revenues return to 90% of normal. 

It also wants the 9% VAT rate reinstated for the hospitality sector and personal services industry.  Ibec is calling for an arbitration system and Government support to solve disputes over commercial leases and wants Revenue to write down tax debts.  More from RTE:
https://www.rte.ie/news/2020/0916/1165446-ibec-budget-2021/ 

Government Says Income Tax Won't Change in Budget 

The Minister for Finance has confirmed that the Government does not plan to make any changes to income tax, USC or PRSI in October's Budget.  Paschal Donohoe said it is the view of the Government that it needs to hold the personal tax code steady and use it to respond back to the challenges facing the economy.  More here:
https://www.rte.ie/news/business/2020/0916/1165596-budget-2021-strategy/

Dignity for Debenhams Workers 

ICTU General Secretary Patricia King describes the protections she believes should be afforded to employees of Debenhams and all workers in the wake of company liquidation during the Covid-19 pandemic and other similar situations.
https://www.ictu.ie/press/2020/09/14/there-should-be-a-threshold-of-dignity-for-debenha/ 

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6. Brexit Update 

The Brexit Threat - 10 Things Your Firm Should Do To Prepare 

This article from RTE outlines 10 top things your organisation should be doing to prepare for Brexit and includes getting an EORI number checking if your licencing/certifications will be valid post-brexit.
https://www.rte.ie/news/business/2020/0913/1164716-brexit-ready-for-business/

Brexit Webinars - October 2020

The HSA will host a series of on-line webinars, aimed at assisting Irish companies in their preparations for Brexit, starting on October 1st 2020. Companies will be informed as to the implications of Brexit for them and what they need to do now to ensure both continuity within their supply chains and compliance with relevant EU Regulations.

Areas covered will include accreditation, the use of notified bodies and implications for those businesses involved with transportable pressure equipment, machinery and chemical products.
https://www.hsa.ie/eng/news_events_media/events/hsa_webinars/hsa_webinars.html

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7. Congress Construction Unions Vote To Protect Pay Rates In The Sector 

The members of the unions making up Congress Construction Industry Committee (BATU, Connect, OPATSI, SIPTU and UNITE) have overwhelmingly voted for industrial action in the event that employers fail to pay a 2.7% increase due on the 1st October, 2020.  Earlier this year the High Court judged that legislation allowing for the making of Sectoral Employment Orders (SEO’s) were unconstitutional. However, a stay has been put on this judgement and all SEO’s currently in place have the force of law. 

Under the general construction SEO, a pay increase of 2.7% is due to be paid on the 1st October 2020. Employers are required to pay this increase and a failure to do so will be a breach of the SEO and unlawful.  More here:
https://www.siptu.ie/media/pressreleases2019/mainnews/fullstory_21980_en.html 

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8. Just in Case You Missed It... 

Remote Working and A Return to the Workplace – Issues for Employers 

Following Michael Martin’s announcement to introduce certain public health measures until 13 September 2020, Deirdre Crowley, Partner, Eimear Boyle, Senior Associate and Denise Moran, Associate, address the tighter restrictions imposed in respect of remote working and explore what this means for employers in Ireland.  They also address the common queries arising for employers who are preparing for a return of their workforces.
https://www.legal-island.ie/articles/ire/features/hot-topics/2020/spet/remote-working-and-a-return-to-the-workplace-issues-for-employers/ 

COVID-19 Issues: EWSS; Business Supports; Lay off; Suspension Right to Redundancy; Absence; Face Masks & Travel 

Listen again to our latest webinar with Caroline McEnery, the HR Suite as she provides an update on Covid-19 employment related matters.
https://www.legal-island.ie/articles/ire/resources/webinars/2020/sept/covid-19-issues-ewss-business-supports-lay-off-suspension-right-to-redundancy-absence-face-masks-travel/ 

Employment Wage Subsidy Scheme 

Listen again to our recent webinar with Bláthnaid Evans, Leman Solicitors as she discusses the new EWSS.
https://www.legal-island.ie/articles/ire/resources/webinars/2020/sept/employment-wage-subsidy-scheme-qa/ 

Protected Disclosures: Update for Employers in Ireland 

Karen Killalea of the Maples Group discusses the implications of the recent High Court decision of John Clarke v. CGI Food Services Limited and CGI Holding Limited [2020] IEHC 368 which demonstrates the broad scope of the definition of protected disclosures under the Protected Disclosures Act 2014.
https://www.legal-island.ie/articles/ire/features/maples-group-industry-updates/2020/sept/protected-disclosures-update-for-employers-in-ireland/ 

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9. Employment News in the Media 

A group of homecare workers have been awarded an average of £10,000 each in back pay after a tribunal ruled that they had been unlawfully paid less than half the minimum wage for looking after elderly and disabled people in their own homes.  The group – the majority of whom were black or minority ethnic women and on zero-hours contracts – were not paid for the time they spent travelling between multiple clients’ homes in north London, despite working for up to 14 hours a day.  As a result, the 10 workers were paid for just half of what was the £7.20-an-hour national minimum wage at the time the case was brought by the Unison trade union in 2016. The ruling said travelling and waiting time of up to 60 minutes between appointments should be treated as working time.  More from the Guardian:
https://www.theguardian.com/society/2020/sep/15/tribunal-awards-10-uk-homecare-workers-back-pay 

Some Air India staff are struggling to draw their pensions 20 years after retiring. The issue arises from a complicated legal matter due to which some Air India employees are unable to access their pension. The employees have approached the airline and government to little avail and are now considering a legal challenge.  More here:
https://simpleflying.com/air-india-pension-delay/ 

A gender-fluid worker has won an employment tribunal against Jaguar Land Rover (JLR).  Ms R Taylor brought claims against the company, saying she had suffered abuse and a lack of support.  She successfully argued she suffered harassment and discrimination because of gender reassignment. More from the BBC:
https://www.bbc.co.uk/news/uk-england-coventry-warwickshire-54180794

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10. 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, Senior Partner at Jones Cassidy Brett. Ciara is dual-qualified and practices law throughout the island of Ireland. Contact Ciara on cfulton@jcbsolicitors.co.uk. 

Majority of UK Employees Want to Work from Home for Most of the Week 

More than half of UK employees want to work from home for most of the week, according to new research – an almost six-fold rise since the start of lockdown. The survey of 4,500 people conducted by Zurich Insurance, the results of which were released last week, revealed 59 per cent of people would still prefer to spend more than half their working week at home, despite UK government calls for office-based workers to return. Just 10 per cent of employees had this working pattern prior to the coronavirus pandemic. More from People Management:
https://www.peoplemanagement.co.uk/news/articles/majority-employees-want-work-home-most-week-research-finds? 

Presidential Practice Direction And Guidance On Remote Tribunal Hearings 

This Practice Direction concerns hearings held by electronic communication in England and Wales under rule 46 of the Employment Tribunals Rules of Procedure (as set out at Schedule 1 of the Regulations), which can be categorised as remote hearings. Having regard to the paramount importance of the principle of open justice, it addresses methods to safeguard open justice when hearings are conducted remotely.
https://www.judiciary.uk/wp-content/uploads/2013/08/14-Sept-2020-SPT-ET-EW-PD-Remote-Hearings-and-Open-Justice.pdf 

Employment (Dismissal and Re-employment) Bill 2019-21 

This Bill is to prohibit employers dismissing employees and subsequently re-employing them for the purpose of diminishing the terms and conditions of employment; and for connected purposes.  The next stage for this Bill, Second reading, is scheduled to take place on Friday 30 October 2020. This is a Private Members' Bill and was presented to Parliament on Tuesday 9 June 2020.
https://services.parliament.uk/bills/2019-21/employmentdismissalandreemployment.html 

Online Post Graduate Certificate in NI Employment Law and Practice 

Would you like to get a recognised, accredited qualification in Northern Ireland employment law from the comfort of your own home/office, wherever you are based? 

Four years ago, Legal Island joined forces with Ulster University and the Labour Relations Agency (the NI equivalent of the Workplace Relations Commission) to create what we think is the best employment law course anywhere in the UK. The feedback from students and guest lecturers has been exceptional:
https://www.legal-island.ie/events-ie/post-graduate-certificate-in-ni-employment-law-and-practice2/#testimonials 

The course includes 24 employment law and compliance lectures from the cream of Northern Ireland’s employment law expert practitioners and 12 afternoon sessions on ADR and tribunal representation, including role-play exercises with Labour Relations Agency staff and mock tribunal hearing with the President of Industrial Tribunals and the Fair Employment Tribunal. All live sessions take place on Tuesday afternoons but, this year, everything will be online and students will also be able to watch recordings of all sessions and presentations after they are broadcast. 

The guest lecturers are all experts in NI employment law and include all Tier 1 Legal 500 'Hall of Fame' recognised employment solicitors in Northern Ireland:
https://www.legal-island.ie/events-ie/post-graduate-certificate-in-ni-employment-law-and-practice2/

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11. Thought-Provoking Video 

This week's thought-provoking video is called "How Sleep Affects Your Emotions" by Matt Walker.  It's not just your imagination -- you're more irritable when you're low on zzzzs. Sleep scientist Matt Walker explains how our nightly slumber affects the emotional centres in our brains, and why we can think of sleep as first aid for our feelings.  Listen here:
https://www.ted.com/talks/matt_walker_how_sleep_affects_your_emotions.

Enjoy the weekend.

Legal-Island

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