Review of Recent Employment Developments in Ireland 20/5/2022

It's #InternationalHRDay! Check out the great FREE video we're gifting to you and the EXCLUSIVE eLearning discount in honour of the day!

This week's top 5:

• 79% of businesses struggling to fill vacancies.
• EasyJet is to offer new and existing cabin crew a £1,000 bonus.
• Guidance on how to calculate the gender pay gap metrics published.
• CIPD HR Practices in Ireland report 2022 launched this week.
• The 31st Fair Employment Monitoring Report has been published by the Equality Commission in NI.

............................and in other news we're hosting a NEW WEBINAR starting in June! Grab your lunch and join Ryan Calvert, Manager of HR Recruitment for UK and Ireland, as he discusses the key trends emerging in HR recruitment.  Ryan serves up some digestible golden nuggets of information and guidance that will leave you feeling satiated and refreshed!

CONTENTS

1. Case Law Review
2. International HR Day
3. Sick Leave Bill 2022: Report and Final Stages
4. How to Calculate the Gender Pay Gap Metrics: Guidance Note and FAQs
5. 79% of Businesses Struggling to Fill Vacancies
6. Just in Case You Missed It...
7. Employment News in the Media
8. UK Developments
9. Free Webinars This Month
10. Friends of Legal Island
11. Thought-Provoking Video

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1. Case Law Review

Kathryn O’Boyle v Temperature Controlled Pharmaceuticals Limited [2022] ADJ-000326

Keywords: Dismissal; Redundancy; Fixed Term Contract; Section 7(2)(c) Unfair Dismissals Act, 1977

The Complainant commenced employment with the Respondent as a Client Relationship Manager on the 10th of April 2019. The position was part time at a rate of pay of €30,000 per annum plus a car allowance. She was engaged on successive written fixed term contracts between the 10th of April 2019 and the 29th of August 2020. The final written contract from June 2020 to the 29th of August 2020 was for a full-time position where her salary increased to €60,000.

There was no further written contract issued for the period 30th of August 2020 to the date of her dismissal. On the 13th of October 2020 she was informed on a teleconference that her employment would be ended on October 30th, 2020.  She then received an email confirming the decision and informing her that the decision was made on the basis that her role would be performed in future by a person with a nursing qualification. This email also referred to her fixed term work status, meaning that she would not be covered by the Unfair Dismissals Act.

The Respondent contended that this was a redundancy. The Respondent acknowledged that the reason given for the dismissal at the time in relying on a fixed term contract was incorrect and they submitted at the hearing that the Respondent was badly advised at the time.

The decision to be made as to whether or not dismissal was fair/unfair was a simple one for the Adjudication Officer to make in this case. The Complainant was dismissed on one set of grounds i.e. that the Respondent did so because she was a fixed term employee and they believed they were entitled to do so by virtue of the fact that they concluded that her fixed term contract was due to expire. However, at the hearing, the Respondent then sought to rely on grounds which were never put to the Complainant at any stage prior the hearing.

The Adjudication Officer commented that what had been presented at the hearing was ‘a dismissal without any procedures being followed of any kind’. The Adjudication Officer concluded that the Complainant was unfairly dismissed by her former employer. In the circumstances of the case, the Adjudication Officer concluded that a sum of €15,000 compensation should be paid to the Complainant. This amount took into account the fact that the Complainant had secured alternative employment.

Guidance for Employers

Section 7(2)(c) of the Unfair Dismissals Act sets out that a person who has been unfairly dismissed must try to mitigate their losses. The Respondent tried to argue that the Complainant did not make substantial effort to mitigate her losses as she had in effect applied for only two positions prior to June 2021 and confined herself to only one type of employment when looking for work. The WRC sympathised with the Complainant in this case and said it was easy to understand why the Complainant would feel that she was entitled to confine herself to areas of her proven expertise in searching for alternative work, but that is matter of choice for which the Respondent cannot be held wholly accountable by way of compensation.
https://www.workplacerelations.ie/en/cases/2022/april/adj-00032667.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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2. International HR Day

Today (20th May 2022) marks International HR Day which recognises the work that HR professionals do in making a positive contribution for individuals and organisations. The theme for 2022 is about HR Reshaping the Future.  In celebration of this we are delighted to offer our customers access to this fantastic recording from our recent HR Symposium in which Trayc Keevans, Global FDI Director of Morgan McKinly, global professional services recruitment consultancy. 

In this riveting session Trayc analyses the reasons why people are moving employers and what it is they are seeking. In this way, Trayc argues, you can attract the best of this massive outwardly mobile talent pool and help shape workforce planning for the future.

Listen here:
https://www.legal-island.ie/articles/ire/features/supplementary/2022/may/great-resignation-turn-attrition-into-attraction/

In addition to acknowledge the huge contribution our customers at Legal Island make to their organisations we are offering a huge 50% discount off our HR Toolkit e-learning programme.  HR professionals are currently facing more challenges than at any other time in history. A global health crisis, a move to hybrid and remote ways of working, and an economic downturn are just a few of the issues keeping HR professionals busy.

Legal Island has created an HR Toolkit that aims to provide comprehensive training to assist HR professionals in Ireland, in supporting line managers and employees throughout the employee journey. The suite of courses will offer practical advice to assist you in updating your processes and procedures and help you understand your legal obligations. 

To avail of this special offer please contact debbie@legal-island.com quoting IntlHRDayoffer.

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3. Sick Leave Bill 2022: Report and Final Stages 

The above Bill was debated in Dáil Éireann this week and much of the discussion centred on penalties against employers who do not provide sick pay entitlement to sick employees. 

In particular, queries from TDs produced these responses from Minister for Enterprise, Trade and Employment, Leo Varadkar TD. First of all an explanation around the number of days being proposed: 

"The statutory entitlement to sick pay will be phased in as part of a four-year plan. The initial entitlement would be to three paid sick leave days per year once the Bill is enacted and commenced. This will, effectively, fill the gap in coverage caused by the illness benefit waiting days. Closing the gap of current waiting days before being able to access illness benefit will help to reduce the number of sick employees presenting for work. It is important to point out that illness benefit kicks in on day four and runs up to one year and, in some cases, for two years." 

In relation to removing or reducing the continuous service qualification period of 13 weeks: 

"I am sympathetic to the point the Deputies are making. Deputy Bruton from my party spoke in favour of this change earlier as well. In particular, when we are saying that it has to be certified, there is an argument for saying that the right should kick in at an earlier stage. At the same time, I am sensitive to the fact that there are employers who take people on seasonally, perhaps for just a short period of three to five or six weeks over the summer. If they found that they spent half of that time paying somebody to be out sick and paying the person's replacement, that would put an undue burden on them particularly for those types of summer jobs and very short-term jobs. That is why we have gone with the view that the person should accrue at least some service. I am not minded to accept the amendments, but I understand the Deputies' motivation. It might be something we change in the future." 

In relation to any future reduction to the number of sick days being paid: 

"Section 6 provides that the first ministerial order made under the Bill will not reduce the number of statutory sick leave days. Subsection (2)(a)(i) provides that no ministerial order will reduce the number of statutory sick leave days below three. This means that once the Bill is enacted and commenced, the number of statutory sick leave days can never go below three. The effect of the amendment would be that the number of sick leave days provided could never be reduced. I have set out the four-year plan and there are currently no plans to reduce the number of sick leave days provided for under the Bill. I have been very clear about our intention to move to ten days over time." 

In relation to the rate of sick pay: 

"I have been clear in my medium-term plan, which is to set the rate at 70% of pay, capped at €110 per day. That figure will obviously rise now as incomes are rising. That makes sure employers know what their obligations will be. It is the principle we applied when we designed the pandemic unemployment payment, which was for roughly 70% income replacement up to a capped figure. A minimum rate entitlement will also be set to ensure all workers will receive a reasonable level of compensation. That will be similar to illness benefit. The principle behind us not making it 100%, although that would be possible under the legislation, is that the costs should be shared, approximately 70% by the employer and approximately 30% by the employee, and then by the State through illness benefit, which is funded by employers and employees as well. I need to bear in mind the very high costs that can arise for some employers, not just covering the 70% cost of somebody being out sick but also the 100% cost of the person they have to replace, and perhaps the premium they have to pay for him or her on top of that. This can therefore be a very high cost for an employer, especially if he or she has to pay to replace a member of staff." 

There was much debate on penalties facing employers should they fail to pay statutory sick pay - and penalties have been reduced: 

"These amendments amend the maximum penalty the Workplace Relations Commission or Labour Court may award if an employer breaches obligations under the Bill. That now moves from 20 weeks' remuneration to four weeks' remuneration. This will bring the penalty more into line with the protections afforded to other types of leave, where the level of penalty is approximately in line with the duration of the leave concerned... These things amount to a judgment call. My original view was the same as the Deputies in that it should be 20 weeks' remuneration but having taken advice, in particular legal advice, and heard the views of many others, we had to try to make sure the penalty was proportionate to the offence... To be clear, it is not that the legal advice is that the provision is not constitutional or we could not do it. It is that when we are drafting legislation, we should try to make sure that penalties are proportionate to the offence. That is a basic principle of justice. A more severe offence has a bigger penalty. As things stand, it is two weeks' entitlement and two weeks' penalty in respect of paternity leave. What we originally proposed for sick pay was ten days' entitlement and 20 weeks' penalty, which appeared disproportionate. We are now proposing that if somebody is not given ten days' sick pay, he or she will have to get the ten days and the penalty would be up to 20 days or four weeks. The penalty, if you like, is double the offence. If we decide to go beyond ten days, we could go up from four weeks, but it will be four weeks from day one." 

Full debate:
https://www.oireachtas.ie/en/debates/debate/dail/2022-05-18/18/

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4. How to Calculate the Gender Pay Gap Metrics: Guidance Note and FAQs

The government has published guidance on how to calculate the gender pay gap metrics:
https://www.gov.ie/en/publication/1abe5-how-to-calculate-the-gender-pay-gap-metrics-guidance-note/

It is suggested that organisations approach the calculation of their gender pay gap metrics in the following manner:

• Choose the snapshot date in June 2022.
• The reporting deadline is 6 months after that date, in December 2022.
• The reporting period is the 12-month period immediately preceding and including the snapshot date.

EXAMPLE: The organisation chooses Friday 24 June 2022 as its snapshot date. Its reporting deadline is 24 December 2022. Its reporting period is 25 June 2021 to 24 June 2022.

The post indicates that these guidelines are only intended to provide guidance. The Regulations will provide the legal basis for reporting. We hope to see the Regulations this month.

The government has also published FAQs...

Gender Pay Gap Information Reporting: Your questions answered (Employers)

https://www.gov.ie/en/publication/19875-gender-pay-gap-information-reporting-faqs-for-employers/

Síobhra Rush, Partner, Lewis Silkin has written an article on these development for Legal Island:
https://www.legal-island.ie/articles/ire/features/supplementary/2022/may/gender-pay-gap-reporting-in-ireland--new-guidance-published/

Our online event - The Gender Pay Gap Information Act 2021 – Getting it Right and Protecting Your Reputation - is on 16th June:
https://www.legal-island.ie/events-ie/gender-pay-gap-information-act-2021/

After attending you will:

• Understand what the gender pay gap is, why it exists and the Regulations that underpin the legislation;
• Understand the impending legislation, key provisions and specific government recommendations towards tackling the gender pay gap, for example, wage surveys and reporting requirements;
• Gain valuable lessons learned by other organisations who have faced similar GPG reporting requirements;
• Discuss how to remove barriers to promotion and foster female labour market participation at senior levels;
• Identify the challenges and receive practical solutions;
• Learn how to reduce your risk and rescue your reputation in the event of a poor result
• Share best practices to ensure equality and diversity is at the forefront of the 2022/23 business agenda;
• Share in practical workshop exercises to cement your knowledge.

Don't miss out:
https://www.legal-island.ie/events-ie/gender-pay-gap-information-act-2021/

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5. 79% of Businesses Struggling to Fill Vacancies

A new report has revealed record levels of hiring by Irish businesses but also shows that many are struggling to fill vacancies.  According to the latest ManpowerGroup Employment Outlook Survey, employers of all sizes plan to expand headcount significantly.

The study shows that Ireland has recorded the highest net employment outlook in Europe, closely followed by Finland and the Netherlands.  The banking, finance, insurance and property sector is seeing the strongest level of hiring intentions.

Employers in Dublin are reporting their highest hiring outlook on record with other regions also showing robust employment trends.

More from RTÉ:
https://www.rte.ie/news/business/2022/0518/1299820-79-of-businesses-struggling-to-fill-vacancies/

One of the ways to help attract talent is to consider new ways of working and the CIPD says that employers are doing just that...

CIPD Survey Explores Remote Working Trends

CIPD Ireland released research showing a large majority of organisations are expanding their employee offering when it comes to new ways of working.  It released its latest HR Practices research to coincide with its annual conference at the RDS in Dublin this week.

The study is slightly dated, having been conducted in November/December 2021.  However, the study, carried out in conjunction with the Kemmy Business School at UL, shows:

• 46% of organisations are planning to increase hybrid working options
• 26% are planning to increase flexible working options
• 12% expect to offer the option of fully remote working to their teams
• 67% anticipate that employees will work two or three days on-site in the future
• 43% of organisations have a system in place where the team decides how the remote and flexible working arrangement will work for them
• 71% of organisations have implemented an online wellbeing or health initiative
• 67% say wellbeing is on the agenda of senior leaders in their organisation.

More from Business Plus:
https://businessplus.ie/jobs/cipd-remote-working-trends/

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6. Just in Case You Missed It...

Gender Pay Gap Reporting in Ireland – New Guidance Published

In this article, Síobhra Rush, Partner in the Employment, Immigration and Reward division at Lewis Silkin provides some guidance for employers on their reporting obligations under the Gender Pay Gap Information Act 2021.
https://www.legal-island.ie/articles/ire/features/supplementary/2022/may/gender-pay-gap-reporting-in-ireland--new-guidance-published/

The Data Protection Commission’s Annual Report for 2021 - Key Takeaways

The Data Protection Commission (“DPC”) recently published its 2021 Annual Report (the “Report”), marking the end of the third full calendar year of the General Data Protection Regulation (“GDPR”).  In this article, Katie O’Neill and Dara Kinnane from Ronan Daly Jermyn’s Corporate and Commercial Department outline the key takeaways from the Report.
https://www.legal-island.ie/articles/ire/features/supplementary/2022/may/the-data-protection-commissions-annual-report-for-2021---key-takeaways/

The Transparency and Predictability of Working Conditions Directive

With limited fanfare, the Directive (EU) 2019/1152 on Transparency and Predictability of Working Conditions (the “Directive”) was published nearly 3 years ago. Its ambition is to provide every possible type of employee with clarity as to their terms and conditions of employment.   In this insight, Deirdre Malone, Associate Partner, and Laura Ryan, Solicitor, in the Employment Team at EY Law, look at what needs to be done to update Irish employment law to reflect the requirements of the Directive before the deadline on 1st August 2022.
https://www.legal-island.ie/articles/ire/features/ey-law-insights/2022/may/the-transparency-and-predictability-of-working-conditions-directive/

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7. Employment News in the Media

Investment bank Goldman Sachs has said its senior staff will be allowed to take as much holiday as they want. There will be no cap on paid leave under the bank's new "flexible vacation" plans which are designed to promote "rest and recharge".   Junior bankers, however, will still only be entitled to a fixed amount of holiday. More from the BBC:
https://www.bbc.co.uk/news/business-61465605

EasyJet is to offer new and existing cabin crew a £1,000 bonus at the end of the summer holiday season, as airlines battle to retain and recruit staff.  The airline said the payments would acknowledge crews' contributions to what it expects to be a busy summer, with travel at near pre-Covid levels. It was revealed last month that British Airways is offering the same amount to new joiners as a "golden hello".  More from the BBC:
https://www.bbc.co.uk/news/business-61460378

The Government says it is willing to go beyond the terms contained within the current public sector pay agreement but the Minister for Public Expenditure Michael McGrath said it must be done in a balanced way. The comments came as Fórsa, the country's largest public sector union, holds its national conference in Killarney where delegates have passed a series of motions calling for pay increases to help ease the pressures of inflation. More from RTÉ:
https://www.rte.ie/news/business/2022/0519/1299857-forsa-trade-union/

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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.

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.  

31st Fair Employment Monitoring Report Published

The 31st Fair Employment Monitoring Report has been published by the Equality Commission.  Chief Commissioner, Geraldine McGahey, said: “Over the last three decades, Fair Employment legislation and monitoring have been fundamental to driving change and ensuring fair participation in our workplaces. Employers have clearly recognised their duties and responsibilities under the Fair Employment law.

“Northern Ireland and its workplaces are much more diverse places than ever before. The inequalities many people face are different now and we need to take account of new challenges.”

“Our experiences show that if something is not measured, it is unlikely to be changed. The Commission believes it is time for monitoring requirements to be extended to include nationality and ethnic origin. The new Assembly must take learnings from implementing the Fair Employment Monitoring Regulations over the past 30 years and apply them in today’s context.”

This year’s report shows that the total monitored workforce was 566,495, an increase of 1,669 (0.3%) over the previous year, despite the return rate for monitoring forms being somewhat affected by the pandemic.

Overall, 246,544 (44.3%) were Protestant, 244,516 (43.9%) Roman Catholic, and 65,435 (11.8%) were Non-Determined. The Non-Determined share increased by 0.8 percentage points (pp) from 2019 (11.0%).

When Non-Determined category not included, in 2020, Protestants [50.2%] continued to comprise the majority of the workforce.  The Roman Catholic share of the monitored workforce increased by [0.3pp] to [49.8%].

Roman Catholics comprised more than half of job applicants [53.5%]. In 2020, the Roman Catholic share of applicants to the monitored workforce had increased by [8.7] from [44.8%] in 2001.

Roman Catholics represented [53.3%] of appointees to the monitored workforce in 2020.  This continues a broad trend of increasing Roman Catholic appointees to the monitored workforce during the period 2001-2020.  Overall, their share has increased by [8.5%] from [44.8%] in 2001.

For the sixth consecutive year, Roman Catholics [52.1%] comprised a greater share of leavers from the monitored workforce.

In 2020, women accounted for more than half (53.0%) of all monitored employees in Northern Ireland.

Ms McGahey concluded: “As always, we are very grateful to employers for putting in the work on their monitoring returns, especially in 2020, which was an unprecedented situation for us all.”

“Fair employment practices in our workplaces ultimately benefit us all. It’s often only once we’ve left school and gone to work that we meet and work with people who are from different backgrounds to ourselves.

By employers continuing to drive good practice and by continuing to monitor and evidence progress, Northern Ireland’s employers are doing society a significant service.”
https://www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/FETO%20Monitoring%20Reports/No31/MonReport31.pdf

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9. Friends of Legal Island

HR Update With The HR Suite

Our friends at the HR Suite are hosting a new HR update webinar, which will we bring you up to speed on the legislative updates including the New Code of Practice on Sexual Harassment and Harassment in the Workplace, they will also take a deep dive into some recent case law and how those decisions will impact your business. If that wasn’t enough, they aim to tackle some of the key questions around the new hybrid working environment and how you can make this work better in your business. See the Agenda below:

Agenda:

• New Code of Practice on Sexual Harassment and Harassment in the Workplace
• New Code of Practice on Equal Pay
• Gender Pay Gap Information Act
• Key considerations in the new Hybrid working environment
• Case Law Update

This session will have a facilitated Q&A session.

Please note that there is a fee for this webinar. Register here:
https://attendee.gotowebinar.com/register/6154848811196286480?source=Legal+Island

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10. Free Webinars This Month

Lunch and Learn with MCS Group - Emerging Trends in HR Roles

Grab your lunch and join Rolanda Markey, Learning and Development Team at Legal Island and Ryan Calvert, Manager of HR Recruitment for UK and Ireland, as they discuss the key trends emerging in HR recruitment.  Ryan serves up some digestible golden nuggets of information and guidance that will leave you feeling satiated and refreshed!

Join us at 1pm on the 14th June 2022 and send any questions you may have in advance to katie@legal-island.com.

Register here: https://attendee.gotowebinar.com/register/473224730060204302?source=FR.

All of our Legal Island webinar recordings and searchable transcriptions are posted online within this section of our employment law hub and are available to stream and research:
https://www.legal-island.ie/resources/webinar-recordings/

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11. Thought-Provoking Video

This week's thought-provoking video is "The radical act of choosing common ground". To achieve lasting change sometimes requires the hard, even radical, choice of partnering with people you'd least expect. Justice reform advocate Nisha Anand shares her story of working with her ideological opposite to make history and save lives -- and urges us all to widen our circles in order to make progress with purpose
https://www.ted.com/talks/nisha_anand_the_radical_act_of_choosing_common_ground_mar_2020?autoplay=true&referrer=playlist-the_art_of_finding_common_ground

Enjoy the weekend.

Legal-Island

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