Review of Recent Employment Developments in Ireland 17/9/2021

This week's top stories:

• Book your place on our Annual Review of Irish Employment law before 5pm today to avail of the early bird rate!
• Our free webinar with RDJ's David McCarroll on vaccinations data, whistleblowing directive and sectoral employment orders take place at 11am today.
• Jennifer Cashman, Practice Group Leader of RDJ’s Employment Team reviews the updated guidance on returning safely to workplace on the 20th September 2021. 
• Our case review this week provides a helpful reminder of the importance of good communication with employees on sick leave.
• Our featured annual review session this week is all about flexible working and the right to disconnect.
• Michelle Ryan, from the employment team at RDJ answers your questions in relation to vaccinations and the return to the workplace.
• Our friends at Leman Solicitors in partnership with LexTech wish to extend an invitation to all legal professionals to attend the 2021 Future of Law Forum which this year is called 'Tomorrow's Lawyer'.

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

CONTENTS

1.  Annual Review of Employment Law Update
2. Case Law Review
3. Featured Annual Review Session of the Week
4. Data Protection Update
5. International Disability Awareness Day
6. Coronavirus Employment Related Updates
7. Just in Case You Missed It...
8. HR Developments
9. Employment News in the Media
10. UK Developments
11. Friends of Legal Island
12. Free Webinars This Month
13. Thought-Provoking Video

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1. Your Annual Employment Law Update - Early Bird Offer Ends 5pm TODAY

2021 has been another challenging year for HR professionals throughout Ireland.  We have the fall-out from the Covid pandemic and its resultant impact on work, workplaces and the workforce. And now we have to deal with competing interests between employers who want people to return to work for a variety of reasons and many employees who wish to work from home or on a hybrid basis.

On top of all that, there have been several high profile employment law developments this year - from the Right to Disconnect and the new Code of Practice on Addressing Bullying in the Workplace, to important case law decisions on the gig economy, and much more - it has been a busy year of developments.

Legal Island's flagship Annual Review of Employment Law 2021 conference, with our expert speakers, detailed notes, templates and precedents will cover all of the important developments that HR professionals in Ireland need to know and understand.

It’s LIVE online on Wednesday 24 & Thursday 25 November 2021.  Join hundreds of your HR peers in learning from 33 speakers across 19 sessions including:

• Review of the Year (Part 1 & Part 2) - Jennifer Cashman, Partner, Ronan Daly Jermyn
• Bullying at Work or Proactive Management? - Caroline Reidy, Managing Director, HR Suite
• Flexible Working: New WRC Code of Practice on the Right to Disconnect - Ger Connolly, Partner, Mason Hayes & Curran
• The Gig Economy and Globalisation of Work. So, what does the future hold for gig economy workers? - Linda Hynes, Partner, Lewis Silkin Ireland
• The Legal Aspects of Hybrid Working and How to Minimise Employer’s Liability - Triona Sugrue, Knowledge Lawyer, Employment Group, A&L Goodbody
• The Ireland Case Review 2021 and Key Next Steps - Duncan Inverarity, Partner, A&L Goodbody
• Data Protection: Key Updates - Deirdre Crowley, Partner in the Employment Law, Technology and Innovation Groups, Matheson

Plus 11 other sessions including 4 roundtable discussions; live Q&A where you can put your questions to the speakers; and much more

"It was very well run. I enjoyed seeing the comments from the other delegates. The speakers were very engaging and engaged with the delegates throughout. I also thought the networking forum was a great idea. 3 minutes was just right, plus the ability to DM the speakers and other delegates at the conference was very useful." Ann-Marie Gallagher, HR Executive, DPER

Register now to grab our Early Bird Rate:
https://www.legal-island.ie/events-ie/annual-review-of-employment-law/

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2. Case Law Review

Peter O’Reilly v Iarnrod Eireann [2021] ADJ-00029220

Keywords: Sick pay; compensation; Payment of Wages

The Complainant commenced employment with the Respondent on the 1st of January 1990. His role was described as that of “mobile granger”.  On the 30th of July 2020, the Complainant’s representative lodged a complaint under the Payment of Wages Act. The Complainant alleged that he had suffered an unlawful deduction from his wages in relation to the Respondent's failure to pay the full amount of a sickness benefit properly payable to him.  In response, the Respondent stated that the benefit in question was not properly payable to him, and as such no breach of the Act occurred.

In May 2017, the Complainant suffered a significant workplace injury which necessitated a period of sick leave of approximately four months. During this sick leave, the Complainant received injury pay at the rate of his average earnings, in line with the Respondent’s policy.  On 22nd February 2020, the Complainant underwent a further surgery relating to the injury, which required a significant recovery period, and again the Complainant commenced a period of sick leave in receipt of his average earnings as injury pay.  Following the surgery, the Complainant had anticipated that he would be fit to return to work in early April 2020 and had a discussion with the Respondent's Chief Medical Officer (CMO) to that effect.  Thereafter, the Complainant attended his GP, however his GP advised that the injury had not sufficiently healed, and he did not provide a return to work certificate at that time.

On the 28th April 2020, a member of the Respondent’s HR team issued an email in relation to the Complainant’s injury payments. The Respondent advised that as the Complainant had been deemed fit to resume by the CMO, but had not returned to work he was not entitled to an the injury payment and instead should be placed on the lesser sickness payment. While this email was supposed to be sent to the Complainant, it was in fact issued to another employee with a similar name within the organisation.

In the interim, the Complainant received his return to work certificate.  It was at this point that the Complainant was informed that the Respondent intended to deduct further monies from his wages as they believed that he had been available for work from 9th April 2020. The earlier email was issued to the correct email address on 7th May 2020.  The Complainant, through his union representative, objected to the deductions on the grounds that he was not in fact certified fit to return to work on 9th April, and could only have returned to work on 6th May 2020. The Respondent submitted that the Complainant should have been certified as fit to return to work on 9th April and refused to re-instate that benefit.

The Respondent submitted that they agreed with much of the factual matrix presented by the Complainant. The Respondent advised that the CMO is the final arbiter in relation to medical fitness and by extension, applicability for the injury benefit scheme. The Respondent  submitted that under the terms of the scheme the Complainant was not entitled to the benefit. As such, the Respondent maintained that the payment in question did not constitute “wages” that were properly payment under the Act.

The Adjudication Officer noted that it appeared that the Respondent’s HR department, in contravention of the unambiguous statement of the CMO, removed the Complainant from the scheme whilst he was deemed unfit to return to work. This matter may have been resolved quite simply had the matter been raised with the Complainant - however it is accepted by the Respondent that the Complainant did not receive this communication at the relevant time.  The Adjudication Officer took both parties written and oral submissions into consideration and found that the non-payment of the benefit by the Respondent from the period 23rd of April to the 6th May 2020 constituted an unlawful deduction from the Complainant’s wages in accordance with the Payment of Wages Act.

The Adjudication Officer found in favour of the Complainant and ordered the Respondent to pay the Complainant the sum of €987.20, this being the amount of the deduction from his wages. This payment was to be subject to all normal deductions as income.
https://www.workplacerelations.ie/en/cases/2021/august/adj-00029220.html

Remember: Our Irish 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. Featured Annual Review Session of the Week: Flexible Working: New WRC Code of Practice on the Right to Disconnect.

Between now and the Annual Review of Employment Law on 24th-25th November, we'll be highlighting a special session each week. This week it's all about flexible working and the right to disconnect.  Employers and employees are required to work together to determine the appropriate working arrangements and policies in relation to a right to disconnect from work. Because the Code is flexible, employees will have more options to work outside of traditional hours, which many people have availed of during the pandemic. And it reflects the fact that many Irish employees are part of a global network, requiring contact with colleagues around the world. In this session, Ger Connolly, Partner, Mason Hayes & Curran examines the Code and outlines the practical steps that employers (and employees) must now take, from engage proactively with employees/reps and equality-proofing their policy, to ensure compliance with the Code.

You'll get the full description for the session online:
https://www.legal-island.ie/events-ie/annual-review-of-employment-law/

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4. Data Protection Update

Overview of the upcoming new breach notification web-forms

The DPC has carried out a review of the breach web-forms currently being used by data controllers to notify personal data breaches in accordance with Article 33 of the GDPR and Section 86 of the Data Protection Act 2018. On foot of this review, data controllers will be required in the coming weeks to use a revised web-form.

The purpose of the revised breach web-form is:  

• To improve ease-of-use for data controllers.
• To streamline the method of notifying “cross-border” personal data breaches and “national” personal data breaches into a single channel.
• To reduce common errors or misunderstandings when breach web-forms are submitted.
• To take into consideration observations and issues previously raised by data controllers.
• To expand the questions that are asked in order to reduce the requirement for the DPC to issue follow-up enquiries to data controllers.

Read the full overview here:
https://www.dataprotection.ie/en/news-media/latest-news/overview-upcoming-new-breach-notification-web-forms

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5. International Disability Awareness Day

SIPTU Says It Has Legal Means To End Workplace Discrimination Against Disabled People

SIPTU representatives marked International Disability Awareness Day (Sunday, 12th September) to remind workers of the strong legal protections that have been secured to prevent discrimination in the workplace, due to a worker’s permanent or temporary disability.

SIPTU Workers Rights Centre Sector Organiser, Paul Henry, said: “Over recent years SIPTU members have won a number of significant victories in the courts that make it clear that workers cannot be discriminated against in the workplace due to either a permanent or temporary disability.

“In July 2019, the union won a significant case in the Supreme Court, which ruled in favour of a SIPTU member employed at the Nano Nagle School in Killarney, county Kerry. The Court ruled that the school had breached equality legislation by failing to consult with her before it refused to allow her continue in her role as a Special Needs Assistant after she incurred a disability following an accident.  More from SIPTU:
https://www.siptu.ie/media/pressreleases2019/featurednews/fullstory_22672_en.html

In Brief August 2021 – Disability Discrimination Special

In recognition of International Disability Awareness Day on the 12th of September, this month’s 'In Brief' brings together a range of resources and cases highlighting the importance of recognising and making provision for employees and applicants with disabilities.  It was reported earlier this year that the majority of calls to IHREC related to disability discrimination so it’s clear it’s an area that still requires much work.
https://www.legal-island.ie/articles/ire/features/supplementary/2021/september2/september/

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6. Coronavirus Employment Related Updates

Eagerly Awaited Guidance On Returning To The Workplace Published

Since the onset of the pandemic in March 2020, necessary public health measures have been in place requiring many workers to work from home. Thanks to the considerable flexibility and effort on the part of employers and workers, this obligatory and sudden move to mass home working has worked well, in most cases. Working from home has contributed greatly to keeping people safe and has played an enormous part in reducing transmission of COVID-19. However, it must also be acknowledged, the requirement to work from home has been a considerable challenge for many workers and for many businesses. As we move beyond COVID-19, our experiences during the pandemic, and how businesses and workers have adapted, will inform the future of work in Ireland, a future in which new ways of working, including remote working, will play a more significant role.

The current public health guidance remains that workers should work from home unless necessary to attend in person. Employers and workers should continue to follow this guidance. On 31 August 2021, the Government, in Reframing the Challenge: Continuing our Recovery and Reconnecting, as part of a gradual and careful re-opening process, issued updated guidance to take effect from 20 September 2021. From that date, attendance at the workplace for specific business requirements, for those still working from home, may commence on a phased and staggered basis. Employers, together with their workers, should now start planning and preparing for a staggered and phased return to the workplace as of 20 September. The Government is also calling on employers, in consultation with their workers, to start to develop longer-term arrangements for blended or remote working having regard to their operational requirements. Read  the full guidance here:
https://enterprise.gov.ie/en/Publications/Publication-files/Guidance-Note-Returning-Safely-to-the-Workplace-from-20-September.pdf

Jennifer Cashman, Practice Group Leader of RDJ’s Employment Team reviews the updated guidance on returning safely to workplace on the 20th September 2021.
https://www.legal-island.ie/articles/ire/features/supplementary/2021/sept/eagerly-awaited-guidance-on-returning-to-the-workplace-published/

Requirement For Schoolchildren Who Are Close Contacts To Isolate Set To Be Eased

Unvaccinated children who are close contacts of a confirmed case of Covid will not have to stay out of school from the end of September, under plans discussed this week by the National Public Health Emergency Team (Nphet).   

The requirement for these children to stay off school is likely to be eased from the week beginning September 27th, but it is predicated on data over transmission in schools not showing a sudden or unexpected surge.  Vaccinated children currently do not have to restrict their movements if they are close contacts.

Health sources also say a key requirement will be for people who start to display symptoms to stay at home, as reduced compliance in this area will likely drive rapid growth in the disease and endanger further reopening plans.  More from the Irish Times:
https://www.irishtimes.com/news/ireland/irish-news/requirement-for-schoolchildren-who-are-close-contacts-to-isolate-set-to-be-eased-1.4676202

Ireland To Reach Pre-Pandemic Employment Levels By 2023

The Minister for Finance has said that forecasts now indicate the country will get back to pre-pandemic levels of employment and broader economic performance by around 2023, but he is increasingly hopeful progress could be quicker. 

Addressing the same event, John Purdy, the co-founder and CEO of Ergo, said accessing talent was among the most significant challenges facing entrepreneurs in Ireland.  "We are all fighting for the same talent pools and we have got to figure out how we can expand that talent pool," he said.

"As we all fight for the same talent the cost of talent rises, the cost of talent rises because the availability of housing is, particularly rental properties, is becoming non-affordable for employees."

More from RTE:
https://www.rte.ie/news/business/2021/0913/1246454-ireland-to-reach-pre-pandemic-employment-levels-by-2023/

No Clear Need For Remote Working Tax Breaks, Report Claims

There may not be a need for tax breaks for remote working, a paper by the Tax Strategy Group has claimed.  The document says it isn't clear that there is in fact a "market failure" that requires state intervention as both employees and employers already appear to support the move towards a remote working model, with evidence of such moves underway.

"Given the scale of support for some degree of remote working, there is likely to be a very large deadweight factor associated with any new tax expenditure to incentivise remote working at employee level," the group claims.  The paper also says there are equity concerns from the perspective of the personal income tax system, as well as broader policy questions around the potential for shifting elements of the traditional costs associated with being an employer from employers to the State.

"Thus, if Department of Finance Tax Expenditure Guidelines are the sole frame of reference against which a decision should be made, the case for introducing enhanced supports for remote working through the tax system is not a strong one," it says.  More from RTE:
https://www.rte.ie/news/business/2021/0916/1247237-no-clear-need-for-remote-working-tax-breaks-report/

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7. Just in Case You Missed It...

The Covid Vaccine And The Return To Work - How Do I Handle it?

Michelle Ryan, from the employment team at RDJ answers your questions in relation to vaccinations and the return to the workplace.
https://www.legal-island.ie/articles/ire/features/how-do-i-handle-it/2021/august/the-covid-vaccine-and-the-return-to-work---how-do-i-handle-it/

Variation of Employment Contracts

Siobhán Lafferty, from the employment team at Reddy Charlton, considers the legalities around making variations to employee's contracts of employment.
https://www.legal-island.ie/articles/ire/features/contracts/2021/august/variation-of-employment-contracts/

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8. HR Developments

The Rise of the Four Day Week

Caroline McEnery of the HR Suite considers the rise of the four-day week in her latest article.
https://www.legal-island.ie/articles/ire/features/hr/2021/september/the-rise-of-the-four-day-week/

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9. Employment News in the Media

A national one-day strike by school secretaries and caretakers scheduled earlier this week was deferred, trade union Fórsa says, after "significant concessions" were made by the Department of Education in a Workplace Relations Commission-brokered negotiation during the week.  Their union says the department finally conceded that all school secretaries should be placed on the public service clerical officer scale. It says this will bring to an end a four-decade old two-tier pay system.More from RTE:
https://www.rte.ie/news/education/2021/0914/1246695-education-strike/

Visitors from countries requiring short-stay visas to come to Ireland will be able to apply for the travel documents from next week, the Minister for Justice has announced. The processing of short-stay applications had been halted in March 2020 except for in emergency cases. The move to lift restrictions from Monday will benefit travellers from all countries requiring a visa to enter Ireland – such as China, India, Pakistan and the Philippines. Minister for Justice Heather Humphreys said the resumption is in line with the Government’s approach to the next phase of the pandemic. As international travel once again becomes a feature, Ms Humphreys said the change will be “welcomed by many people who wish to travel to Ireland to visit, study or do business”. “We remain fully supportive of the current public health advice and all travellers arriving into Ireland must continue to comply fully with measures required by law including producing proof of vaccination, recovery from Covid-19 or a negative PCR test,” she said.More from the Irish Times here: 
https://www.irishtimes.com/news/ireland/irish-news/short-stay-visa-processing-to-resume-next-week-after-18-month-suspension-1.4670260

The Department of Justice also comments here: 
http://www.justice.ie/en/JELR/Pages/PR21000213

More than 70 solicitors from across Kerry gained expert advice on protecting their practices from cyberattacks at an online conference organised by Law Society Finuas Skillnet in association with the Kerry Law Society. The Essential General Practice Update Kerry 2021, the fifth in a series of online events taking place this year to support local solicitors to upskill while working remotely, also covered areas of law including litigation, probate and wills. Get the full story from Irish Legal News:
http://www.irishlegal.com/articles/kerry-solicitors-gain-expert-advice-on-cybersecurity

The Defence Forces has pledged to co-operate with any investigation that is launched after a series of allegations of sexual harassment, abuse and rape were outlined by former members on Saturday. In an RTÉ documentary entitled Women of Honour, former female members of the Defence Forces, some with decades of service, made allegations of abuse and called for reform of Óglaigh na hÉireann. Karina Molloy, who was the first woman to reach senior non-commissioned officer rank as company quartermaster sergeant, said she “could not stay silent” in relation to about a dozen separate incidents. Read the full horrible story here:
https://www.irishtimes.com/news/crime-and-law/defence-forces-will-co-operate-with-any-sex-abuse-investigation-1.4671657

Russian authorities have blocked a leading website for employee complaints following a successful legal case by a Moscow real estate firm – the latest internet block by the country’s communications regulator.  Antijob, the site in question, has been in operation for 17 years, and hosts thousands of anonymous complaints about Russian employers.  More here:https://www.opendemocracy.net/en/odr/russia-blocks-major-website-worker-complaints-antijob/

Los Angeles police department (LAPD) employees have sued over requirements they get vaccinated for Covid-19, alleging that the department has created a “hostile work environment” for the unvaccinated and that the mandate violates employees’ privacy and civil rights.  The suit is one of several aggressive challenges to vaccine mandates by police unions and officers across California, some of whom have threatened mass resignations in response to new rules. It comes as staff at law enforcement agencies remain unvaccinated at disproportionately high rates.  More from the Guardian:
https://www.theguardian.com/us-news/2021/sep/13/los-angeles-police-covid-vaccine-mandate-lawsuit

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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, Partner at Lewis Silkin (N.I.) LLP.  Ciara is dual-qualified and practices law throughout the island of Ireland. Contact Ciara on ciara.fulton@lewissilkin.com.  

Diversity Pay Gap – PWC 

PwC has published data about the pay gap between its employees of different socio-economic backgrounds, reporting a reduction in nearly all their pay gaps compared to 2020.  This inlcudes:

• An ethnicity pay gap of 0.3%.
• A gender pay gap of 10.1% including partners (6.0%) excluding partners. 
• A socio-economic background pay gap of 12.1% (10.9% excluding partners. 

More from PWC here:
https://www.pwc.co.uk/who-we-are/our-purpose/empowered-people-communities/inclusion/diversity-pay-report.html

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11. Friends of Legal Island

Tomorrow's Lawyer

Our friends at Leman Solicitors in partnership with LexTech wish to extend an invitation to all legal professionals to attend the 2021 Future of Law Forum which this year is called 'Tomorrow's Lawyer'.  This takes place on Thursday, 7th October. The theme for this year brings practical digital solutions for tomorrow’s lawyer in commercial, property and litigation practice, with prolific global speakers on law, design, innovation and project management.

This free event will take place online on the morning of the 7th October 2021 from 10am - 1pm and speakers include Mr Justice David Barniville, Dr Brian Doherty, Dr Ron Dolin, Professor Margaret Hagan and others.  For further information and to register to book your place click on the link below:
https://lextech.ie/the-future-of-law/folregistration/

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12. Free Webinars This Month

An Audience with RDJ

Today, 17 September 2021 (11.00 - 11.45am) with Ronan Daly Jerymn

In this brand new bi-monthly feature from Legal Island and Ronan Daly Jermyn and Legal Island's Rolanda Markey will discuss key employment law developments with the Partners in RDJ’s Employment Team, including the effervescent Jennifer Cashman and her equally lively colleagues David McCarroll, Antoinette Vahey and Michelle Ryan.

In this webinar, David McCarroll and Rolanda discuss:

1. The current status of Sectoral Employment Orders
2. Current and proposed employment protections for employees who blow the whistle under current Protected Disclosures law and the EU Directive set to be transposed in to Irish law this year
3. Proof of Covid-19 Vaccination  - to what extent, if any, can employers demand Covid vaccination proof to allow an employee to undertake a role

Send your questions in advance to katie@legal-island.com.

Register here:  https://attendee.gotowebinar.com/register/4574941852873756175?source=FR

If you missed the webinar you will be able to listen again here:
https://www.legal-island.ie/employment-law-hub/resources/webinar-recordings/

Maternity and Paternity Leave – An International Comparison 

In the second of our international employment law webinars with Elements Global Services, Sherisa Rajah (Vice President, Employment Law & Compliance at Elements Global Services) and Scott Alexander (Head of Learning and Development at Legal Island) discuss how the UK and Ireland’s family-friendly employment law rights in relation to Maternity and Paternity leave and pay compare with other jurisdictions around the world.

During the webinar they will briefly outline relevant UK and Irish rights and reflect on how these compare with other countries, such as New Zealand, USA, South Africa, and more.

What can employers (and policy makers) on these islands learn about other options that might be usefully adopted here? At a time of massive skill shortages do we need improved family-friendly rights and flexibility to recruit and retain a truly diverse and inclusive workforce?

Send your questions to Katie@legal-island.com.

Register here: https://attendee.gotowebinar.com/register/8814222187311166734?source=FR 

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13. Thought-Provoking Video

This week's thought-provoking video is called 'Success, Failure and the drive to keep creating'.   Elizabeth Gilbert was once an "unpublished diner waitress," devastated by rejection letters. And yet, in the wake of the success of 'Eat, Pray, Love,' she found herself identifying strongly with her former self. With beautiful insight, Gilbert reflects on why success can be as disorienting as failure and offers a simple -- though hard -- way to carry on, regardless of outcomes.  Listen here:
https://www.ted.com/talks/elizabeth_gilbert_success_failure_and_the_drive_to_keep_creating

Enjoy the weekend.

Legal-Island

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