In Brief: Important Updates from October 2018

Last month’s edition of In Brief was a common law catch up outlining a number of recently decided, influential cases. The decisions covered a wide range of employment issues, including constructive dismissal; gross misconduct; working time and emailing outside office hours; fair procedures and workplace investigations; the de minimis rule; and the duty to provide reasonable adjustments. This month we sought to highlight topical issues and recent trends in the employment law sphere, including, discrimination and equality; requests for flexible working; probation periods; health and safety at work; and gender pay gap reporting.

Discrimination and Equality

'Gay Cake' Case: Supreme Court Rules in Favour of Ashers

The UK Supreme Court has delivered the much-anticipated ruling in the Ashers v Lee ‘gay cake’ case. The five justices on the Supreme Court were unanimous in their judgement. The high-profile dispute began in 2014 when the bakery refused to make a cake with the slogan "Support Gay Marriage". The owners of Ashers bakery, Mr and Mrs McArthur, sought to appeal the decision of the NICA which previously held that Mr Lee had been discriminated against on grounds of sexual orientation, political opinion and religious belief but this month the Supreme Court overturned that decision. Read a summary of the heavily debated decision on our Northern Ireland Employment Law Hub:
https://www.legal-island.com/articles/uk/features/supplementary/2018/oct/gay-cake-case-supreme-court-rules-in-favour-of-ashers/

Equality and Justice Minister David Stanton TD has welcomed 5 new Signatories to the Diversity Charter.

Minister Stanton said, "The Diversity Charter is a mechanism for organisations to demonstrate their commitment to Equality, Diversity and Inclusion in the workplace and beyond.  It’s a way for businesses, voluntary organisations, and political parties to make a very visible commitment to become truly inclusive workplaces and to champion equality and diversity in everything they do…

"I congratulate today’s new signatories to the Charter: Camfil Ireland; S.S.E. Ireland; Enable Ireland; Fine Gael; and Tesco Ireland. All very different organisations, but sharing an understanding of the value of diversity and the importance of managing it positively and pro-actively for the benefit of all."
https://www.legal-island.ie/articles/ire/features/review/2018/oct/review-of-recent-employment-developments-in-ireland-26102018/#Diversity

In March of this year Ireland became the last of the 28 European Union states to ratify the UNCRPD, making it legally binding. The UNCRPD is an agreement to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Disabled people are invited to work on a committee to monitor Ireland's implementation of the UNCRPD. The committee will report on the implementation of the convention when the UN undertakes a review of Ireland's performance. Emily Logan, Chief Commissioner of the Human Rights and Equality Commission, said a lot more work needed to be done in Ireland, where “the approach to disability remains stubbornly grounded in the medical model”, as opposed to a social model.
https://www.legal-island.ie/articles/ire/features/review/2018/oct/review-of-recent-employment-developments-in-ireland-12102010/#News

Requests for Flexible Working

Advances in technology have led to a changing working environment where remote working is becoming both increasingly accessible and popular, with the result that requests for flexible working arrangements are becoming more common.

This month’s ‘How Do I Handle It?’ article by Michelle Ryan, Associate Solicitor in Ronan Daly Jermyn Solicitors, offers advice to employers on how to deal with requests for flexible working.

Ailbhe Dennehy, Associate with A&L Goodbody's Employment Group, has provided answers to some of your questions on flexible working arrangements:

1. Are employers obliged to provide flexible working arrangements?
2. How should employers handle requests for flexible working?
3. Could a refusal be seen as discrimination?
4. What other legal considerations arise for employers?
5. What about data protection considerations in a home-working situation?
6. Does an employee have any additional obligations when working from home?
7. Can an employer require an employee to work from home?
8. Do employees need to sign a new contract?
9. How does an employer supervise employees working from home?
10. Can a flexible working arrangement be granted on a trial basis?

Probation Periods

Caroline McEnery, Managing Director of The HR Suite and HR and Employment Law Expert, offers guidance on the practicalities of using probation periods and outlines some takeaway tips for HR professionals. Topics covered in this webinar recording:

• What is Probation
• Importance Of A Probation Policy
• Your Legal Obligations As An Employer
• The Process
• The importance of the paper trail
• Top Tips
• Case Law

Health and Safety at Work

Duty of Care to Provide a Safe Place of Work: McCarthy v ISS Ireland Limited

Recent case law continues to emphasise the duty of care on employers to take reasonable steps to protect their employees from the reasonably foreseeable harm which may arise as a result of treatment by other employees, even where such behaviour might not amount to bullying in the workplace.

In this month’s Case Law Review Panel article Síobhra Rush, Employment Partner in Lewis Silkin Ireland, considers the Court of Appeal decision of McCarthy v ISS Ireland Limited, in contrast with the High Court decision of Hurley v An Post.

Drug Testing in Safety Critical Roles

This month questions arose as to whether random drug testing by employers in safety-critical working environments should be permitted.

In the recent judgment of Dublin Port Company v 160 Various Grades [2018] ILCR Recommendation No. LCR21788 the Labour Court held such testing should only be permitted where necessary, justified and proportionate, having regard to the operational issues of the employer.

Gender Pay Gap Reporting

Ailbhe Dennehy, Senior Associate with A&L Goodbody's Employment Group, answers key questions to both explain the concept of the GPG for employers from an employment law perspective and provide useful guidance on how employers can start getting prepared.

1. What is the Gender Pay Gap?
2. What is Ireland’s GPG? 
3. Is GPG a legal requirement in Ireland?
4. Will all employers in Ireland be affected?
5. What information should be reported?
6. Will this data be published?
7. Are there consequences for non-compliance?
8. What steps should employers take now?