In Brief: Important Updates from July 2018

A number of useful articles and interesting case law reviews were added to the Irish Employment Law Hub throughout the month of July. Here is a quick recap of some of the recent developments within Irish employment law… Gender pay gap reporting is a big talking point this month as the General Scheme of the Information Bill was approved by Cabinet. In separate articles, Jennifer Cashman, Partner and Head of Employment at Ronan Daly Jermyn, and Roisin Lawlor, Associate Solicitor in LK Shields offer extensive commentary on the Bill and how it will impact Irish businesses.

Emmet Whelan, Employment Partner at Byrne Wallace, provides a comprehensive article on whistleblowing and protected disclosures. Emmet considers a report published by the Department of Public Expenditure and Reform on its statutory review of the Protected Disclosures Act 2014. The report provides a very significant review of the 2014 Act and contains useful information for anyone interested in the area.

In her latest ‘Reddy Made Contracts’ article, Laura Graham, Senior Associate in the Commercial and Employment Law department at Reddy Charlton Solicitors, considers implied terms by way of custom of practice. Laura explains parties will not necessarily find all of the terms governing the employment relationship in a contract of employment or staff handbook and outlines the criteria to determine whether a benefit has been elevated to contractual status by reason of custom and practice.

In this month’s Case Law Review Panel article Claire Bruton BL reviews the recent cases of Aer Lingus plc v The Minister for Finance and others ([2018] IECA 222) and Richard Carron v Fastcom Broadband Limited(UD 1515/2013) concerning privilege. The judgments are significant as they seek to clarify a number of important aspects, such as, when litigation privilege ends and whether communications between an employer and its non-legal advisors attract legal or litigation privilege.

In his July commentary Dr Gerry McMahon focuses on avoiding disciplinary and dismissal disasters. Gerry emphasises the importance of keeping apprised of legislative and common law developments, reiterating to employers the need to follow fair procedures and the principles of natural justice as the consequences of falling foul of this could prove costly.

Two case reviews covered this month aptly demonstrate this: Danceglen Limited T/A Dunboyne Castle Hotel & Spa v Fernando Ribeiro [2018] UDD1839 and A Sales Assistant v A Shop [2018] ADJ-00009098.

Update on Gender Pay Gap Reporting in Ireland

On 26th June Cabinet approved the General Scheme of the Gender Pay Gap Information Bill. Charlie Flanagan and David Stanton announced the publication of the General Scheme, which will compel employers with a certain number of employees to publish information on the Gender Pay Gap in their organisation. Gender Pay Gap reporting is now an inevitability arising from the publication of the General Scheme of the Bill and is likely to be made a legal requirement later in 2018 or in 2019.

In this article, Jennifer Cashman, Partner and Head of Employment Law at Ronan Daly Jermyn outlines notable elements of the General Scheme of the Bill, the information that employers will be required to disclose, and how an employee can bring a claim against their employer for failure to comply with the Regulations. The general scheme of the Bill will now be submitted to the Joint Oireachtas Committee on Justice and Equality for pre-legislative scrutiny.

Roisin Lawlor, Associate Solicitor in LK Shields’ Employment Unit, analyses some key aspects of what this General Scheme proposes to introduce, in its current version, in Ireland and how the proposal might impact on your organisation.

Whistleblowing and Protected Disclosures

Emmet Whelan, Employment Partner at Byrne Wallace, provides a comprehensive article on whistleblowing and protected disclosures. Emmet considers a report published by the Department of Public Expenditure and Reform on its statutory review of the Protected Disclosures Act 2014 on the fourth anniversary of its inception. The report provides a very significant review of the 2014 Act and contains useful information for anyone interested in the area.

The report also notes that amendment to the 2014 Act is likely to be required in due course to transpose an EU Directive on whistleblowing, once the negotiation process has been completed. A link to the proposal for the EU Directive can be accessed here.

Contractual Terms Implied by Reason of Custom and Practice

Parties will not necessarily find all of the terms governing the employment relationship in a contract of employment or staff handbook.

In some cases, terms may be implied into a contract of employment by custom and practice. For example, terms may become implied if they are customary in a particular trade, locality or a particular workplace.

In her latest article Laura Graham, Senior Associate in the Commercial and Employment Law department at Reddy Charlton Solicitors, lists the criteria to determine whether a benefit has been elevated to contractual status by reason of custom and practice.

Litigation Privilege: Does It Extend to Non-Legal Advisors?

Litigation privilege is designed to protect from disclosure of documents or records which were created with the dominant purpose of communications by a litigant with his or her professional lawyers or advisors. If such privilege applies, it prevents the opposite party from having sight of such documentation prior to the trial.

In this month’s Case Law Review Panel article Claire Bruton BL reviews the recent cases of Aer Lingus plc v The Minister for Finance and others ([2018] IECA 222) and Richard Carron v Fastcom Broadband Limited (UD 1515/2013) on the topic and whether communications between an employer and its non-legal advisors attract legal or litigation privilege.

The Employment (Miscellaneous Provisions) Bill 2017 - Does It Go Too Far?

This new Bill has been described as 'dangerous' by IBEC and 'out of touch with reality' by the Small Firms Association. On the other hand, Mandate are celebrating the proposed amendments they negotiated to the Bill. So what is the current low down on the Bill for employers? What do you need to know?

Linda Hynes of Lewis Silkin Ireland provides this information in her recent article on the Employment (Miscellaneous Provisions) Bill 2017.

Síobhra Rush and Linda Hynes of Lewis Silkin Ireland, along with Tiernan Lowey BL, will be discussing the impending legislation at The Employment (Miscellaneous Provisions) Bill conference

on 9th October at the Gibson Hotel Dublin. They will explain how the Act will impact your organisation and what you must do to stay on the right side of the law; how to calculate minimum payments and possible awards and penalties; and how to calculate banded hour contracts. Book your place now.

How to... Avoid Disciplinary and Dismissal Disasters

In this months ‘How to…’ Dr Gerry McMahon focuses on avoiding disciplinary and dismissal disasters. We are reminded that as HR professionals we ought to be aware of recent developments in the law in relation to investigations and the right to representation. Case references are provided to remind us where the key points have developed from, such as the status of and importance of natural justice in dismissal cases and the need to ensure consideration is given to the ‘facts of the case’.
 
‘With the onus of proof normally residing with the employer, it is also apparent that in the vast majority of cases where ‘procedure’ features, employers have an uncanny ability to make a mess of things.’ Gerry demonstrates that in dismissal cases around 82% will normally succeed on the grounds of improper procedure and that the need to follow correct procedures arises again and again with, at times, conflicting decisions.

The Danceglen Limited T/A Dunboyne Castle Hotel & Spa v Fernando Ribeiro [2018] UDD1839case highlights the importance of internal policies and the need for staff members to know their obligations under them, what a potential violation might be and the ramifications stemming from a breach. In a technically advanced modern working world, the case also emphasises the prevalence of data protection and cyber security.

The complainant was dismissed for gross misconduct for taking a USB stick with confidential company information on it outside of the premises and emailing data to his personal account. The Court had to determine whether the reason proffered by the complainant for mailing the comprehensive range of data to his personal email account was credible and whether the actions of the respondent employer fell within the band of reasonable responses. Learn the outcome on our hub.

In another dismissal for gross misconduct, A Sales Assistant v A Shop [2018] ADJ-00009098, the complainant was dismissed for selling a bottle of beer to a customer on Good Friday. The respondent alleged it was one of many mistakes by the employee and had the authorities been notified there may have been grave consequences for the business, potentially loss of licence and/or prosecution. The Adjudicator had to assess whether the dismissal was proportionate in light of the circumstances. It also commented on the manner in which the disciplinary process was conducted. Learn the outcome on our hub.

And our news story of the month…

Leo Varadkar has said his government is preparing to hire 1,000 customs and veterinary inspectors to deal with changes in rules of trade between the UK and the Republic of Ireland in 2021. He said Irish ports and airports needed to be prepared.

Speaking after the meeting at Derrynane House, Mr Varadkar said that "with growing uncertainty" over whether Prime Minister Theresa May will get a withdrawal agreement through Westminster, the Republic of Ireland needs to "up our preparations when it comes to Brexit". He said this includes preparing Irish ports and airports for a change in the rules between the UK and Ireland in January 2021.

He said the Irish government has also increased resources for diplomats overseas in the hope of opening up new markets around the world for farmers and set aside £450m to provide low interest loans for the agri-food sector. However, he stressed that the main scenario the Irish government is preparing for is one in which agreement is reached at October's Brexit summit.