In Brief - Important Updates from June 2019

A number of useful articles were added to the Irish Employment Law Hub throughout the months of May and June. Here is a quick recap of some of the recent developments within the employment law sphere:

Discrimination in the workplace - banter or harassment?
In the first of our new Equality feature by DWF, Alison Martin, Associate Solicitor in the Employment Group at DWF, discusses a recent Adjudication case which provides an important reminder to employers of the need to have a specific harassment policy in order to be able to deal with complaints of harassment appropriately and to also be able to rely on the statutory defence provided for in section 14A(2)(a) of the Equality Acts.


Practical and Legal Considerations of TUPE Matters
Ciarán Lyng, Solicitor, A&L Goodbody, takes a closer look at some of the practical and legal considerations for employers regarding transferring employees under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the TUPE Regulations). A recent Labour Court decision in particular focuses on the legal implications of an employee's refusal to transfer to a new employer.

Navigating an Insolvency Situation
In a nutshell, an "insolvency situation" arises where a company's liabilities exceed its assets – a company is unable to pay its debts when they fall due. An insolvency situation triggers a significant number of legal considerations.  Aifric O'Dea, Associate in A&L Goodbody, answers key questions and highlights legal issues for employers when navigating an insolvency situation.

Employee Incapacity – How do I handle it?
Jennifer Cashman, Partner and Practice Group Leader of Ronan Daly Jermyn’s Employment Group, addresses a query around employee incapacity.

“Our organisation has just become aware that one of our employees has a medical condition which we believe makes them unsuitable to work in our particular working environment. How do I handle it?”

Returning to work from sick leave - How do we handle it?”
Caoimhe Heery, Associate Solicitor of Ronan Daly Jermyn’s Employment Group addresses a query that was raised following Jennifer Cashman’s ‘How Do I Handle It?’ article last month on employee incapacity.

“We have an employee who has been on long-term sick leave and wishes to return to work on Monday.  We are concerned about their fitness to return to normal duties and wish to delay their return.  Can we do this and if so do we need to pay them their normal salary? How do we handle it?”

Discriminatory dismissal following “Google search” of dyspraxia
Before contemplating the dismissal of an employee with a disability, an employer should ensure that they are in possession of all material facts concerning the condition, including medical evidence, and carry out a thorough assessment in relation to the needs of the employee.   In this article, Elizabeth Mara, Associate Solicitor, LK Shields discusses a recent case in which the WRC concluded that a general ‘google search’ of the employee’s condition (dyspraxia) was insufficient grounds for forming an opinion about the individual’s condition or ability to perform the role in question.

GDPR One Year On – A review of fines across the EU
The first anniversary of the GDPR passed on 25 May 2019 and we are beginning to see publication of the first fines being administered under the new regime by various Supervisory Authorities.   Cormac Murphy, Senior Associate Solicitor in Crowley Solicitors, reviews the fines across Europe in the last year, notably, a German fine and an Austrian fine relate fully or in part to the processing of employee-related personal data.

Gender Pay Gap Bill – what it means for employers
The gender pay gap refers to the difference between what is earned by women and men based on their average gross hourly earnings, which extends beyond men and women doing the same job or with the same experience or working patterns. Gender pay is, therefore, a separate issue to the concept of equal pay for like work.  Lisa Devanny, Leman Solicitors outlines the main requirements of the Gender Pay Gap Bill and discusses some key steps employers can take to start preparing for the Bill.

Investigations and Legal Representation - Where do we stand now?
Bláthnaid Evans, Leman Solicitors, discusses case law developments that have challenged the WRC Code of Practice on Grievance and Disciplinary Procedures regarding the right to legal representation or right to cross-examination at the investigation stage. 

Garden Leave Clause – What is it and do I need it?
Garden Leave refers to a clause in a contract of employment which allows an employer to require an employee not to attend work or to only carry out limited tasks during the period of garden leave.  Laura Graham, Partner in the Commercial and Employment Law Department at Reddy Charlton Solicitors, answers some of the key questions involved in introducing and using Garden Leave clauses.

Fortnightly Reviews of Employment Law

Some of the highlights from our recent fortnightly reviews:

• A £40m PSNI holiday pay/overtime case in NI should have implications for holiday pay calculations in Ireland.
• Doherty Moves to Stop Employers Using Tips to Top Up Wages.
• The Data Protection Commission (DPC) welcomes the Supreme Court judgment in relation to Facebook and looks forward to the substantive issues in the case being the subject of a hearing by the CJEU soon.
• The Parental Leave (Amendment) Act 2019 was signed into law by the President on 22 May
• Guinness game changer: six-month paternity leave
• 25% of Irish companies admit there is a gender pay gap at their firm
• New Labour Court and WRC websites launched