Jennifer Cashman’s Annual Review of Irish Employment Law

Posted in : Webinar Recordings on 19 January 2022
Jennifer Cashman
RDJ LLP
Issues covered: National Remote Working Strategy, Gender Pay Gap, Equality Acts

Jennifer Cashman, Partner and Practice Group Leader at Ronan Daly Jermyn is our keynote speaker at Legal Island's Annual Review of Employment Law.

In this webinar she will be covering key new developments since November and focus on upcoming developments in employment law including:

  • The Transparency at Work Directive
  • Introduction of a Statutory Right to Request Remote Work and the National Remote Working Strategy
  • Gender Pay Gap
  • Consultation on the Review of the Equality Acts

Listen to Jennifer summarise the law and advise on remedial actions.

The Recording

Transcript

Scott: Good morning, everybody. How are you? Welcome to the first webinar of the year 2022. As you can see, there's Jennifer Cashman with me. I'm Scott Alexander. I'm from Legal-Island, and this is an extension of the Annual Review of Employment Law.

If you were at the Annual Review of Employment Law in November, welcome back. This is a revision. If you weren't, why not? You've missed out on an awful lot of things. And hopefully, you'll join us in November this year when we'll be back online again.

Now, this is Jennifer Cashman, as you can see, Practice Group Leader of RDJ's, Ronan Daly Jermyn, employment group based down in Cork. She's a regular keynote speaker at employment conferences organised by Legal-Island, and by IRN and CIPD, two other fantastic organisations. You've got a webinar coming up with them shortly. And she will, of course, be back this autumn. Jennifer opens and closes the conference. The first presentation she looks back at the year, and the next presentation, she looks forward to the year ahead.

So what we're going to be doing today is looking at four subjects, if I got my figures right, that are going to be coming up in the next few months.

But before that, here's a little ad for a thing. I've just written a programme for the HR Symposium. It's on 31 March. We will be looking at many, many things from D&I, remote working, proximity bias, all kinds of stuff, technology in HR, many, many things. Lots of speakers. If you want to go online, you'll see it at legal-island.ie/events. And we'll have a nice little offer for you for coming along today.

Now, what we're going to chat about is four things. We're going to start off with . . . it says the right to request remote work and the National Remote Working Strategy. We're then going to move on to not quite compulsory vaccination, but vaccination and vaccination issues. We will look at an update on the statutory sick pay and any regulations that may or may not be available.

We'll also look at the Transparent and Predictable Working Conditions Directive, which along with Work-Life Balance Directive and other issues coming along, such as tips and gratuities, RDJ and ourselves at Legal-Island will be doing an event on 9 June. We'll view more of that in the coming weeks and months.

Now, Jennifer, let's take this first subject.

Jennifer: Hi, Scott.

Scott: Hello there. Oh, how are you? I should see how are you?

Jennifer: Good morning. Good morning to everybody.

Scott: You're always looking good. So you're always looking happy and smiley and cheery. That's one of the things we love most about you, but it's also the fact that you're a fantastic lawyer and you know an awful about employment law, which is fine. You're here.

Now, folks, if you have any questions, put them into the question box. You'll see that on the right-hand side there of your screen. We're going to start off with a couple that have come here, put them in context. The first thing we're looking at is remote and hybrid working, those kinds of things. 

The Right to Request Remote Work and the National Remote Working Strategy

So, Jennifer, could you briefly set out where we are in relation to any legal right or non-legal right to request remote working? Maybe there's a time with a code to disconnect. I don't know about that, but the right to disconnect code from the WRC kind of was there for people who are working from home. So where are we in relation to statute?

Jennifer: Thanks, Scott. Morning, everybody. Great to be back. Hard to believe that we're into the new year, so belated Happy New Year to you all. I suppose in terms of where we're at with remote working, we're not really any more advanced than we were at the Annual Review in November, insofar as we still don't have any draft legislation around the right to request remote working, which we're expecting from the government.

Now, I do know that as we're talking here this morning, the cabinet is meeting to discuss their spring legislative programme as to the priorities for the coming term, the next 12 weeks that the Dáil will be sitting. So one would assume . . .

Leo Varadkar has sort of given us five priorities from an employment law perspective for the coming months in 2022. He said statutory sick pay, which I know we're going to talk about later, the protection of tips and gratuities, redundancy rights for those who were laid off during the pandemic, the idea of an additional public holiday, which seems to be the longest discussion ever in terms of whether we're going to have that or not, and then the issue he said of the right to request remote working.

Now, as I keep saying, Scott, the issue here is that Leo Varadkar seems to have carved out the issue of remote working. And of course, we have the national strategy on remote working, which you've referenced already, which was published at the beginning of 2021 by the government.

You're putting very much the idea of remote working at the forefront of all of our working lives and indicating that the public service . . . that there was a desire to have 20% of the public sector working remotely by the end of the year, as in the end of 2021, and very much moving in that direction. And then putting other infrastructure around that: broadband access to different parts of the country, the tax regime in terms of incentivising people to work remotely, the establishment of more hubs, like the Ludgate Hub maybe in Skibbereen that we have.

So that was the National Remote Work Strategy. And I suppose the department has done a lot of work, to be fair. The Department of Enterprise, Trade, and Employment has really good guidance around the remote working on its website and lots of checklists and templates for employers around facilitating remote working.

And of course, we're still in the pandemic, so we still have a situation where the government has recommended working from home unless it's necessary to attend the workplace.

Now, we're getting indications at the moment, along with the easing of restrictions, that the return to the workplace might commence . . . there might be a phased return to the workplace commencing in February. That was obviously expected in late 2021, but that didn't happen because the pandemic took an unexpected twist and turn, as it does. So hopefully, in the absence of any more unexpected twists and turns, we could see a return to work.

But as things currently stand, there's no statutory right to work remotely, nor will there be a statutory right to work remotely. And I think it's important to say that, because some of that language is getting a bit conflated.

There will be, as we understand it, a statutory right to request remote working, which is something quite different. It allows employees to request the ability to work remotely from their employer. So we are expecting draft legislation around that.

Now, as I mentioned, there is a directive, the EU Directive on Work-Life Balance, which obliges Ireland to transpose certain measures by August of this year, 2022. And one of those is the right to request flexible working, which is a little bit broader than just remote working. Remote working is an element of flexible working, but it's only one element.

Certainly, in an article I read in "The Sunday Independent" this weekend, it sort of suggested that the language was moving a little bit more from remote working around the legislation piece to maybe flexible working, which I would have expected, to be honest, from the get-go. Rather than having two separate pieces of legislation, one around remote work and one around flexible work, that we'd actually have one piece of legislation, as they do in the UK. So in the UK, there's a statutory right to request flexible working, of which remote is an element.

Now, I know that this came up in the questions, Scott, that we were looking at following the Annual Review, was the whole issue around what right might an employer have to refuse the right to request remote working and/or flexible working. And if we look at the statutory right to request flexible working in the UK, there's actually an exhaustive list of criteria, which the employer can rely on for the purposes of denying a request.

I have those up on the screen next to me here. So in the UK, an employer can request a statutory right to work flexibly arising from planed structural changes, the burden of additional costs to the employer, the fact that quality or standards will suffer as a result of the request, that they won't be able to recruit additional staff that might be required to meet the request for flexible work, that performance would suffer, that the employer won't be able to reorganise work amongst existing staff, that the employer would struggle to meet customer demand, and that the employer will have a lack of work during the periods that the individual may propose working if they are looking at a flexible work regime.

So they're the criteria that an employer can use in the UK to reject a statutory request for flexible working. Maybe the government here will look at something similar in terms of the types of criteria that an employer can rely upon for the purpose of denying a request.

Scott: Yeah. So at the moment, we don't have the regulations. As well as in the UK one, it's a permanent change under the law, unless it's agreed that it's going to be temporary. So we don't know if those kinds of things are going to be coming in.

You could argue maybe statutory rights under equality law at the moment because of the pandemic, I'm presuming. Somebody who is disabled might be able to turn around and say, "I would like to work remotely or some kind of flexible thing because of my disability", and that would have to be considered. But that would be under the Employment Equality Act as opposed to any statute.

Jennifer: Exactly. And that would probably involve our occupational health advisors then in terms of in the normal course where somebody looks for some facilitation in the workplace arising from a medical scenario. Then, obviously, we'd be advising the employee that we need to involve our occupational medical advisors to help the employer to determine what is appropriate for that particular employee and what supports can be put in place. So yeah, exactly, the usual rules there would apply.

I mean, as things currently stand, the advice from the government as of now is the same. Work from home unless it's necessary for you to attend the workplace. That appears, as things currently stand, that that will be eased over the coming weeks and months.

I suspect it'll be quite slow, and I suspect even if the government isn't sort of indicating that it should be quite slow, I think employers themselves will be quite slow to have this sort of big-bang return because I think employers will want to do it on a phased basis in case we have any more unexpected twists and turns over the coming months that would, I guess, have to undo anything that was done.

Scott: Okay. We have a couple of questions coming in there. There are a couple of things about the audio and sound, and somebody suggested that you select the computer audio and sound.

But there's also a question here.

 

For those who have worked the majority of their time successfully from home, can they refuse to come back to the office, even on a hybrid basis, based on the fact that they have successfully hit targets, received excellent reviews . . .

I can see you shaking your head. I haven't finished asking the question. Received excellent reviews, and have worked to high standard from home?

Jennifer: No is the answer, because from a legal perspective, as things currently stand, if your employment contract says that your place of work is your workplace, then effectively that is your place of work.

Yes, you've been facilitated with working remotely for the last extensive period of time, far more extensive than any of us would have hoped, but that has been because of public health advice and a request by the government to employers to cooperate with public health measures to help reduce the spread of COVID-19. So it's been in a completely different context.

And of course, it has worked quite well. I suppose this is where the government's strategy came from, because something that the government rightly acknowledged would have taken years and years to actually implement in terms of the move towards remote working . . . because that was being looked at even before the pandemic hit. But something that was going to take years, really, took days in March 2020. When it had to happen, it happened.

But no, from a legal perspective, the reality is that no . . . I mean, employers could, in theory, insist that employees return to their workplace five days a week if that was the status quo in advance of the pandemic. The reality is from a practical and commercial perspective and from a talent retention and talent attraction perspective . . .

You'd have heard Cian McCormack on "Morning Ireland" this morning talking about this. Eighty-eight per cent of people saying that they don't want to return full time to the office and they want to continue working some element of remote work.

So it's now become an employee retention/employee engagement issue where, really, this has been a seismic change in the way we work and it is having a massive impact from an HR perspective in terms of how people want to work and how people would like to work going forward. So while employers, in theory, can insist, those employers are not going to find themselves retaining and attracting staff if that's the way they go about it.

The reality is that, really, employers are looking at this. Most employers that we're speaking to across the board, from the multinational sector right down to the SMEs, have indicated that they will facilitate some level of remote working.

But certainly anecdotally, I think the evidence is that neither employers nor employees want full-time remote work. It is this hybrid model that we're hearing so much about, and that seems to be what most employers are willing to put in place.

Scott: Okay. Thank you very much, Jennifer. If you've just joined us, Happy New Year. We've got Jennifer Cashman here from RDJ, and she's answering questions at the moment on flexible/remote working and all those types of issues.

I can see some people still getting problems with sound. I presume it's an internet thing perhaps at their end, and you can try F5 and all those kinds of things to come back.

We are recording this. You will get the recording if you're a subscriber and you can listen back or watch back. We'll also get it transcribed, so it will be up on the website. You'll find it on our Employment Law Hub.

One last question maybe that we've got here.

 

What happens if the contract of employment doesn't state a location of work? Can the employer use custom and practice where it used to be?

Jennifer: Yes, I think the employer can. I should say that if the contract doesn't state or the statement of employment doesn't state place of work, that's a difficulty from a legislative perspective because that's one of the required terms that we are supposed to put into our employment contracts or statements of employment that we're issuing under legislations. So that is something that that employer needs to look at in terms of auditing their existing paperwork.

And I presume the counter-argument would be made, "Well, can the employee then rely on custom and practice in respect of the last two years in terms of the remote working?" But I think, again, we have to be cognisant of the fact that a pandemic and emergency public health measures don't necessarily create custom and practice. So the employer presumably would have a stronger argument there in terms of the custom and practice. So I think yes is the answer.

I suppose that leads on, Scott, to just one other issue in terms of most employment contracts have a place of work, but then they have a clause or a sentence that talks about the employer having the right to change the place of work where it's reasonable to do so. Reasonableness there is really important, and reasonableness must be exercised by the employer when changing a place of work.

And there's been case law around that. That issue in and of itself has generated case law. Reasonableness must be looked at on a case-by-case basis. So there may be significant reasons why if an employer is changing its actual workplace location, its HQ location, for example, while the contract might say, "I can change the place of work as the employer", that must be exercised reasonably, and employees may have legitimate reasons for objecting to a change. So that needs to be looked at very carefully.

And just one other question that we're asked a lot in practice on my team here. All of us are asked a lot, "If we are going to move to the hybrid model, then should we be issuing fresh contracts of employment?" What we're saying to employers at the moment is in the absence of the statutory framework, we're slow to sort of commit employers to anything. We're also slow for employers to commit themselves to anything in light of the fact that we're coming off the back of the pandemic and the emergency measures.

So I would be slow for employers to be issuing maybe anything new to existing employees. Maybe a letter if they're reviewing arrangements at the moment or entering into some sort of temporary arrangement, but there should be an option to review those arrangements, I think, in light of the fact that there will be a change in legislation coming down the track.

New contracts that are being issued to new hires, though, need to be accurate. So if you've agreed with a new hire that it's going to be a hybrid working arrangement, and that's the basis upon which the person has been hired into the business, as opposed to an existing employee, then those contracts need to be accurate. So those contracts need to reflect what's been agreed.

If you issue your standard employment contract that you've been using pre-pandemic to new employees where a hybrid arrangement has been agreed, they're going to kick back with you and say, "That's not what was agreed. This is my place of work as HQ in here five days a week and that's not what we agreed". So there may be a difference in the paperwork for existing employees and new employees for a period of time.

Scott: Presumably that's going to be clarified under the Predictable Working Directive anyway that's got to come in by the autumn. So you'll have to say what the place of work is. That will have to all be clarified.

Jennifer: Exactly.

Scott: Shall we move on? I see there's one here, and then we'll definitely move on to vaccinations. "Can we reduce salaries if employees choose to move to another region so that their salary is in line with their cost of living?"

Jennifer: Some employers have done that already. Again, anecdotally, I am aware of employers that have sought to . . . where employees may have been employed in a particular geographic area to attend the office on a five-day-a-week basis and have been facilitated with moving during the pandemic.

Now, again, any salary reduction is . . . You can't unilaterally vary somebody's terms and conditions of employment, so it has to be done by agreement. A unilateral variation will expose the employer to risk in terms of either a breach of contract claim or a payment of wages claim.

So again, it must be done in consultation with the employee and the reasons set out as to why that change has been made. So it's not as simple as the employer making a decision itself that the employer is going to do that, because they're exposed to a claim if they simply do that in the absence of consultation with the employee.

But anecdotally, I am aware of employers who have done that and where it's been accepted on the part of employees. But again, it must be done in consultation and with the agreement of the employee.

Scott: Yeah. I suppose if things change, you end up going back to the way and people will say that want to be paid to go from my place of work, which is now going to be in a different region and so on. So it causes complications if you change it.

Jennifer: Yes. And conversely, the employer can say, "Well, if you want to maintain your salary, then come to work five days a week in HQ", wherever HQ might be based. So there is a balancing exercise to be done as between the employer and the employee, but consultation, generally speaking, will resolve those issues.

 

Compulsory Vaccination and Vaccination Data

Scott: Okay. Let's look at vaccinations. Let's move on to another subject here, vaccinations. Now, we've all seen Novak Djokovic and all that kind of stuff, refusing things and being thrown out the country. And it looks like he's going to be banned from France and the U.S. Opens as well.

It's just kind of fractious. It's febrile as a discussion, but lots of employers in the UK . . . In fact, we were chatting about it earlier. Morrison's, IKEA, Next, Ocado, and others have all cut sick pay for unvaccinated workers who are forced to isolate after being exposed to COVID. Is this lawful in Ireland? Can employers do the same thing where they pay . . . Presumably, this is contractual sick pay.

Jennifer: And the short answer is no, Scott, because the legal position in Ireland . . . And actually, I shared a post on LinkedIn on this earlier on that whole issue of IKEA being the latest employer to reduce sick pay in the UK for unvaccinated employees. The difficulty is from an Irish legal perspective, most employers have no basis, or no legal basis, for requesting confirmation of an employee's vaccination status. So the legal position in Ireland hasn't changed.

And in fact, it's very unlikely to change because the Taoiseach has indicated his preference is not to have mandatory vaccination and his preference is to maintain the COVID-19 vaccinations on a voluntary basis.

So it is a voluntary vaccination programme. It is not administered by employers. It is a public health state vaccination programme, which is being facilitated and administered by the HSE on behalf of the state, but it is voluntary.

It's a data protection issue in Ireland. So the Data Protection Commission has issued very good guidance on this, but has indicated that there really is no legal basis for most employers seeking any information on their employees' vaccination status.

Now, there may be exceptions. So for example, in a medical setting, like a care home, then there may be a risk assessment which the employer has conducted, and there must be a risk assessment, to say that staff carrying out certain roles must be vaccinated to balance health and safety and welfare under the Health, Safety, and Welfare at Work legislation.

So those employers for sure can ask about vaccination status because they've got their . . . They're in a sector. They've got their risk assessment to back it up. So there's a lawful basis for processing that data from a data protection perspective because they need to know whether or not employees are vaccinated in order to determine whether an employee can carry out a particular role in that setting.

However, in other workplaces, in most other workplaces, the employer has no such lawful basis for asking about vaccination status. And the Data Protection Commission has made this very clear. There isn't a lawful basis for asking about vaccination status.

Consent of employees is never a basis upon which to process employment data because the employment relationship is an imbalanced one, or considered to be an unbalanced one, where the employer holds the power versus the employee. So the employer saying, "They're happy to give me the information", that doesn't matter. That's not a good enough basis for processing data. There must be some other lawful basis for the employer processing the data.

And the Data Protection Commission has made clear that in the absence of a situation like a care home, employers don't have a lawful basis for asking about vaccination status and processing that information.

What are you going to do with that information if you have it in any event? Are you going to exclude people from the workplace? Are you going to, as you say, stop paying sick pay? Then you start getting into all of the reasons as to why people might not be vaccinated, and there may be discrimination issues.

So the legal position in Ireland is that for most employers who aren't working in that type of healthcare setting where we can establish that a risk assessment says we must know about their vaccination status, employers are not entitled to know about their employees' vaccination status.

You can, of course, imply their vaccination status. So if an employee rings you and says, "I'm a close contact and I have to restrict my movements", then you know . . . They might be vaccinated, but not boosted, because the public health guidance is particular in relation to boosted versus not boosted.

But other than that, other than the employer implying information, they can't ask for the information. And whilst many employees have been very willing to confirm their vaccination status, that is a voluntary thing on the part of the employees as well. But the employer can't really use that information in any lawful way.

So the position hasn't changed in Ireland. It has been this position for the entirety of the pandemic and is likely to remain that way, given that the Taoiseach has confirmed it's not going to be a mandatory vaccination programme going forward.

Scott: Okay. Thank you very much. It's just been announced by one of our listeners that 18 March has been announced as the public holiday.

Jennifer: Finally, we have a decision on that.

Scott: This is law in action that's piling through.

Here's a question.

 

If a role requires an employee to travel overseas, what can an employer do in this situation, as many EU countries require mandatory vaccination?

Jennifer: So in that case, it's required for the purposes of the travel. Again, it's being used in a particular context and is required in a particular context. So if the employer is booking the trip and legitimately needs that information during the booking process, then, again, I think the employer can stand over that.

Now, it would depend on at what point that information was required in the booking process and whether or not you could leave that to the employee themselves. But certainly, I think if that information was required during the booking process and you were sending somebody overseas, then certainly I think you would legitimately be in a position to ask for that information from a travel perspective. So I think you could ask.

The question that arises then is if the employee tells you that they're not or they don't have the relevant documentation. However, most countries, as far as I'm aware, have an option. So you either show your cert or you produce a negative test. So there may be other options in terms of that person travelling to that destination that can be produced rather than the travel cert.

So it will depend on the circumstances. But I think if there is an option, then the employer would have to say to the employee, "Which option do you wish to take? Do you wish to take the production of a cert, or do you wish to take the antigen or PCR test?" So it would very much depend on what the requirements of the destination country, I think, are.

Scott: Yeah. So that would be a legitimate one. "More news come in, Scott. Also, just a nice €1000 to frontline healthcare staff. Details sketchy on how that will be put in place". So there you go. Things are changing. Leo Varadkar is clearly not listening to this webinar at the minute. Too busy making all these announcements that are coming through.

What are your thoughts on asking vaccination status during the recruitment process? Is that the same? It's just the data protection and not . . .

Jennifer: Absolutely the same. And again, there, I suppose we have to remember that employment equality legislation applies to candidates for employment as well as to whether they're successful or not, so it applies to the recruitment process.

But data protection rights also pertain to candidates. So you're processing data. Any personal data that is processed by an employer, whether that's in relation to an existing employee or prospective employee, that's personal data. You're processing personal data. So the same data protection rules apply.

A prospective candidate for employment is just as able to make a complaint to the Data Protection Commission about the information you're looking for as an existing employee is. So it wouldn't prevent a complaint being made to the Data Protection Commission just because you were looking for that information from somebody who may or may not end up to be an employee of the organisation.

Scott: Yeah, I think a lot of people have difficulty with the fact that data protection laws are almost used to trump a lot of things.

We've got a question here that kind of cuts across that

 

That some employees may come back early if we don't ask if they've had a booster. People have COVID fatigue and may not watch the news. I'd be concerned from a health and safety perspective for colleagues and their families. Is it just our lens?

Jennifer: Well, I suppose you have to remember that employers have an obligation to take care of employees' health and safety, but employees themselves also have obligations, statutory obligations, under the Health and Safety Legislation to take care of their own health and safety.

So I suppose if a person makes a personal decision, for whatever reason that personal decision has been made . . . and there may be medical reasons, there may be religious reasons, there could be many reasons why somebody makes a decision not to be vaccinated. Now, if they've already been vaccinated, it would be unusual that they'd have grounds for refusing a booster. Sorry, I don't mean grounds for refusing a booster, but that they'd have some religious basis or whatever, because if that was the case, they probably wouldn't have ever been vaccinated in the first place.

But the employer, you can't force it and you can't . . . I think if you have those concerns, then let's turn it around. How are you going to address those concerns?

You can say to people that you don't have to come back to the workplace, I suppose. But I suppose from a pragmatic perspective, I think you have to as the employer make your plans and it is up to people themselves to make their own decisions around whether or not they are going to be boosted.

So I don't think that you can sort of overlay an overriding concern for your employees unless you're going to allow a lot of freedom in terms of whether people return or not.

So you're not breaching your obligations under Health and Safety if you bring people back and some of them haven't, for whatever their own reasons may be, received a booster. That's not a breach of Health and Safety, because the vaccination programme is not a mandatory programme and it's also not administered by you as the employer. So you're not doing anything wrong. You may have underlying concerns about it, but you're not doing anything wrong from a legal perspective.

Scott: I sometimes wonder what people that don't get vaccine think has happened to people like me who have had vaccines. Nothing is gone on. I haven't grown two heads or anything. Obviously, I can't use a 5G phone because it's got inside me. I don't understand it.

But there are a number of questions coming in here. "My vaccinated employees are concerned about unvaccinated employees working on the factory floor along with them, all adhering to masks, but a minority not vaccinated and other staff are concerned". So I think what they're getting at is

 

How come the employee concern about working with people, whether it's valid or not valid, doesn't trump data protection issues or the majority doesn't trump the minority?

There seems to be a bit of tail wagging the dog. I think that causes problems for people.

Jennifer: I wonder about this concern, though, Scott, because the people who are at higher risk are the people who are unvaccinated, and that's a fact. And I suppose we need to cut through some of the noise around this as well. They told us during the pandemic that in fact there was no evidence that there was a difference between vaccinated and unvaccinated people in terms of ability to transmit the virus. So where is that concern coming from? The people who are unvaccinated are, in fact, more at risk than those who are vaccinated in terms of becoming really ill.

I mean, obviously, as an employer, we have to deal with our employees' concerns and we have to address them, but I think we have to be pragmatic about it as well and point out that, as an employer, we have an obligation. We're back to the Work Safety Protocol and all of the things that we must do.

I mean, vaccination is only . . . it's not "the" tool. It's only one of the tools, as we keep being told, in the armoury of weaponry against COVID. So as an employer, that is one aspect, but it's not the only aspect. There are many other things an employer must do under the Work Safety Protocol to make the workplace safe, so we have to work through those issues.

And look, we've all had them. As employers, we've all had those concerns raised with us. But we need to sit down and talk practically to people as well and be very pragmatic about it and say, "Look, as an employer, we are taking all of the steps, the hand sanitizers, the masks, the PPE equipment that might be required in certain organisations, the social distancing, the reduction in canteen capacity, all of the measures that are set out in the work safety protocol". And that is the document that employers need to keep going back to in terms of what they're obliged to do.

And there may be another updated version of that that is published now in the next sort of phased return to work when that's announced, but the most up-to-date version of that, that's what we keep going back to. I think we need to be pragmatic with those employees who raise those concerns and say to them, "Look, the people who are unvaccinated are probably at more risk than you are. And we've mitigated the risks insofar as we can by taking all of these measures. If you have any concerns about any of the measures, then you talk to the lead worker representative in relation to that".

So I think there's a level of pragmatism that needs to come into this conversation as well, to be honest.

Scott: Okay. We'll move on. But before we do, somebody's asked, "Did you see 18 March has been agreed as a bank holiday?" One of the listeners has.

"Where will I be able to find information?" Well, Michael, if you want to drop something in the chat with a URL, that would be handy. But he has followed up by saying, "The €1000 will be a tax-free once-off to public healthcare workers who served on-site in our clinical COVID-19-exposed environment to include healthcare workers in nursing homes and hospices".

The public holiday this year is on 18 March, and permanently from February 2023 to mark St. Brigid's Day. So there you go, law in action.

 

Update on Statutory Sick Pay

We're going to move on to our third subject here, which is, if I move my questions out of the way of my screen, an update on sick pay. So there we go. We've got sick pay stuff coming through. It was announced last year that there was going to be an introduction of statutory sick pay in the Republic of Ireland. So what do we know? We've got some stuff, but we don't have regs again. So tell us about this, Jennifer.

Jennifer: So this is interesting because we had in June of last year the general scheme for statutory sick pay announced by the government, and that kind of gave us an indication of what this statutory sick pay was going to look like.

So at its most basic, effectively, now employees will have an entitlement to a certain number of statutory sick days, and they're paid sick days, and they're paid by the employer. So the employer will be obliged to pay for a certain number of sick days every year for an employee if the employee wishes to avail of those.

So there was a general scheme announced back in June, and that set out the anticipated criteria that would apply to this right to statutory sick pay. And then we had legislation published in November, and that's a bit different. It's causing a little bit of confusion amongst employers in terms of what the current position is.

I suppose we should be very clear that the current position is that we have a bill. That's all we have at the moment. We don't have an act on this. It hasn't been enacted into law yet. It is a matter of priority for the government, as we understand it and has been indicated by Leo Varadkar, so we suspect that the enactment of this legislation is imminent.

But as things currently stand, the bill which has been published is wending its way through our legislative process, through the Dáil and the Seanad, so we don't have an enactment as of yet.

In terms of the bill . . . and it may change as it makes its way through that legislative process, but in terms of how it stands at the moment, there is a statutory entitlement to 3 days' paid sick leave per year for employees who have at least 13 weeks' continuous service.

Now, there's confusion there because in the general scheme, when that was announced back in June, it talked about employees needing to have six months' continuous service before they'd have an entitlement to statutory sick pay. But the bill as published has reduced that to 13 weeks.

So as things currently stand, if the bill was enacted now as it's currently drafted, the entitlement is to 3 days' paid sick leave in any given year, provided that the employee has at least 13 weeks' continuous service.

Now, as I say, that may change as the legislation wends its way through, but that's the current position as we have it.

And you mentioned regulations. So again, the general scheme set out what the pay would be, or what the pay might be, so what the intention around the pay was. It would be 70% of an employee's earnings, so the pay for that sick pay would be 70% of their earnings they would otherwise earn on that day, subject to a maximum of €110.

Now, again, I would be slow to say that that's what's going to be the finished product, because not only is that not set out in the bill, but what is set out in the bill is that the Minister will make regulations setting out how statutory sick pay is to be calculated. Things like shift premium, overtime, board and lodgings, all of those things might take place in relation to the calculation of statutory sick pay.

So I think it would be a bad idea for employers to think that we have the final position on this because we don't. And until we have the act and the supporting regulations, only then do we know exactly what an employer's obligations are around the payment of statutory sick pay.

Scott: Okay. Thank you very much, Jennifer. If you joined us, that's Jennifer Cashman here from RDJ.

We have put a little thing there to "The Irish Mirror". We can't find anything official at the minute, but there's a link there in the chat if you want have a look there, folks, to the announcement on bank holidays and stuff like that. So there you go.

Here's a question now. It then becomes real, because many employers have contractual sick pay schemes as well as this for the first time, having to pay for statutory sick pay instead of sending people off to the state.

 

What if your employer requires nine months' continuous employment before access to their sick scheme? Would you recommend lowering that to meet the new statutory requirement of timing, say, three months' employment, or tracking different sick pay entitlements separately?

Jennifer: I think the bill talks about existing entitlements and says that where an employer has more favourable entitlements, they will hold, and if they have less favourable entitlements, they will be reinterpreted to be in line with the legislation.

I think that an employer could track separately because one is the statutory scenario, which is this three days, which may rise. The intention, I think, is that by 2025 it'll be 10 days. But you could have separate entitlements around the statutory sick pay is the statutory sick pay, and then we also have a contractual sick pay policy that sits over here that is applicable to employees with longer service. So there would be nothing wrong with doing that provided you were giving employees their basic statutory entitlements as set out in the legislation.

I would be slow, again, to make any changes until we actually have the legislation and until we see what finally the legislation contains. Remember, there will be debates on this and all of these issues will be debated in the Dáil and in the Seanad, and changes may be implemented before the final legislation is enacted. So I would be slow to make any changes.

But at its most basic level, there are lots of areas where . . . Take annual leave, for example. You have a statutory entitlement to a certain level of annual leave, and then you have a contractual entitlement to more than that. So there's nothing wrong with having both, but I think I would be very slow for employers to commit themselves to a position now until we have the final legislation and see exactly what it looks like.

Scott: Okay. Thank you very much. I suppose the difficulty here is that if you have a timescale which is bigger than statute or longer than statute, before you can avail of the better conditions, they probably have to comply, you assume, with the . . .

Jennifer: Oh, absolutely. They'll have to comply. But you could still have the more generous sick pay scheme over here. But of course, we'll always provide you with your statutory entitlements if you've got your 13 weeks' service, and of course, we'll provide you with your statutory entitlements, but you'll have to have longer service to get your contractual entitlements.

Scott: Okay. It says here, "Regarding statutory sick leave, when you say any given year, is it January to December? Is it April to end of March? Or do we have to wait on the regulations to set the year?"

Jennifer: Again, it's three days per annum. Again, the regulations may specify that. I mean, as things currently stand under the Organisation of Working Time Act, for example, they still work on the old tax year, the March to April tax year, whereas most employers work on the January to December timeline, which is fine, by the way. You can do that. It's just that if an employee makes a claim, the WRC will look at it from the perspective of March to April, but there's nothing wrong with the employer having a different timeline themselves.

It will depend on whether that's addressed in the legislation as to whether there is a requirement to specify a particular timeline.

Scott: Yeah. And will you need some kind of doctor cert or something to say, "I'm definitely sick"?

Jennifer: Yeah. The employee needs to have a medical cert for it to constitute a statutory sick pay day. So the employer is entitled to ask for a medical certificate, and that's specifically set out in the bill as it currently stands.

Scott: And if they don't do that, then they're not entitled to SSP?

Jennifer: Exactly. They don't have the statutory entitlement then.

Scott: Okay. Here we go. More stuff coming in here. "Scott, the release is from RTE new, as many announcements after the cabinet meeting today", which Jennifer mentioned about.

Let's have a look here.

 

"So do you add them together? If an employee is entitled to 7 days, do the first 3 days come into effect after 13 weeks, and the remaining 4 require the long service? Or are they separate three and seven contractual?"

 is the question here. How does that work?

Jennifer: Yeah, the employer will have to decide whether it's going to give the three plus the additional, or whether it's going to say that the first three are statutory and the balance then is contractual. So that would be a matter for the employer to determine.

And in the same way as annual leave entitlements, where you have your statutory annual leave and your contractual annual leave, it would be wise to set out in the policy that it's considered that the first three days are the statutory sick pay days.

But remember, as you rightly said, Scott, there are requirements that need to be met for those statutory sick pay days that might not mirror the requirements in a sick pay policy. So a lot of the time in a sick pay policy, an employee doesn't have to produce a medical cert for the first three days of absence or the first two days of absence.

So that would need to be looked at once the legislation is enacted to determine what's the employer going to do in relation to that, because you will need to set out the statutory requirements and amend your policy accordingly.

I mean, basic statutory entitlement will be the three days. If you want to give more, then that's a contractual matter between you and the employee.

Scott: Okay. There are other questions coming in there, but I think we'll leave them because I think it does depend on the regulations and they tie in with the last subject that we have here, which is Transparent and Predictable Working Conditions Directive, which when you combine it with Work Life Balance Directive and the right to flexible working and all these other contractual changes, it means that we are going to be doing, RDJ and Legal-Island, an event on 9 June about contractual change and what has to go in there.

And one of the things that will have to go in there is what happens with sick pay, whether you're going to put the qualifying conditions and all that kind of stuff, because it should be, as it says, transparent and predictable and you should have that in your terms and conditions.

 

The Transparent And Predictable Working Conditions Directive

So what can you tell us about this new directive? We don't have the legislation in Ireland, but what can you tell us about the directive and the kinds of things that are going to have to change? We do have a number of them that are in the directive. We've looked at those in Ireland already. But what is it that's likely to change and develop and why is this important?

Jennifer: We're in good shape in Ireland actually in relation to this directive in a similar way that we're in good shape to the Work-Life Balance Directive, because the Work-Life Balance Directive deals with sort of family leaves and leave for parents, and we're in good shape in this country in terms of people's entitlements around that already from a statutory perspective.

And similarly, on the Transparent and Predictable Working Conditions Directive, the purpose of that directive effectively is to produce more transparent and predictable employment while ensuring labour market adaptability. So there are certain key elements of that directive that member states are expected to transpose under the directive. And again, it's by August 2022.

So more complete information on the essential aspects of the work, which is to be received early by the worker in writing. We already have fairly significant obligations on employers under the Terms of Employment Information Act and also under the Miscellaneous Provisions Act around statements that need to be sent out to employees within certain time periods of them commencing work. So we're in pretty good shape around things like that.

There is a second issue under that directive, which is of interest, and that's a limit on the length of probationary periods. So it is anticipated . . . Now, there's been a public consultation in Ireland on this directive and the government is currently reviewing the responses that were received to that public consultation, which I think closed in October of 2021. And effectively, the government asked certain questions.

So the things that are relevant in the directive for Ireland that we don't already have addressed in legislation, the government has asked certain questions around that from interested parties to determine what our primary legislation to transpose this directive should contain.

And one of the questions is around this issue of probationary periods. So it is anticipated that we might be looking, for example, at a maximum length of probationary periods of six months.

Now, that will accord with a lot of employers' existing probationary periods in their contracts. A lot of employers already set out that the maximum probationary period is six months. This will actually be now enshrined in law, but there will be perhaps certain exceptions in certain roles for a longer probationary period if that's required and can be justified.

So that's going to be an interesting one, I suppose, for Ireland because that'll be new to have legislation around probationary periods. We don't have anything on that at the moment, but we think it will be that there will be a maximum length of six months with an ability to extend the probationary period if somebody has been absent, for example.

And again, lots of employers who have good employment contracts and good content in their handbooks would already have provision for a six-month probationary period with an ability to extend that if the employee was absent for a period of time. So that's not going to be a massive practical change for a lot of employers.

There will be the right to seek additional work with a ban on sort of exclusivity clauses. That could be interesting from an Irish legal perspective, so we'll have to keep an eye on that.

Some limits on incompatibility clauses. It'll be interesting see what that might contain. A lot of employers will already have a ban on employees working elsewhere during their working period.

Now, we have another issue around that, which is the Organisation of Working Time Act, where employees must not work more than 48 hours a week. And if there's double employment, each employer must know what they're working in the other employment to make sure that they're not exceeding their maximum hours. So any change there would need to accord, obviously, with our existing provisions in any event under the Organisation of Working Time Act.

There are, as the name suggests, transparent and predictable working conditions. Where people work very flexible jobs, where there might be rota issued, the directive talks about the right to know in a reasonable advance period what hours they will be working, so what their rota will be.

And the government has asked what form should that notice take, for example. Presumably, there may be some time limit imposed in terms of that with, one assumes, some level of flexibility, again, depending on the sector.

The right to receive mandatory training for the employment. And the directive talks about training that should be paid for by the employer and also should take place during working hours where it's practicable to do that. So there are potentially a couple of changes on the horizon around that.

One of the other things they asked in the public consultation was . . . The directive talks about whether or not if an employer fails to give the documentation that's required under the directive, so fails to give the employee notice of their working conditions as they are required to do so, then should there be a presumption in favour of the employee that certain conditions apply, or should there just be an ability for the employee to take a claim to the WRC arising out of the employer's failure to issue the documentation? And should it just be an award of compensation

The government in their public consultation document has asked should it be both? Should the employee have the right to have this presumption in their favour superimposed arising from the employer's failure to issue the documentation, and should they also then have the right to take a claim to the WRC?

As things currently stand, an employee would have a right to take a complaint to the WRC for breach of the Terms of Information Act or the Miscellaneous Provisions Act, but there wouldn't be anything presumed in favour of the employee. So that may be a change from a legal perspective.

So there are a few changes under this directive that could come in, so we just need to keep an eye. The government, as I say, is currently reviewing the responses they've received to the public consultation document. We do expect legislation because the government is obliged to introduce primary legislation to enact the last few changes that are needed under this directive by August 2022.

Scott: Okay. Thank you very much to Jennifer. Thank you to everybody for watching and listening. This has been recorded and it will be turned into a podcast. So if you like to listen to things later when you're driving or whatever, then you can download it as a podcast.

For those who are subscribers to the Hub, you'll be able to watch back the webinar on the website. It should be up this afternoon, I would imagine, to catch up on those things. And we'll be getting it transcribed in the next week or two as well if you want to follow the written answers to those questions.

In the meantime, eLearning. We've just announced our HR Toolkit, but the eLearning Training Course, anyone that's on the webinar today, you'll get another follow-up link. And look at that, 50% off across our entire eLearning Training portfolio, which is not a bad little offer for everyone.

Thank you very much to Jennifer.

Jennifer: Thanks, Scott.

Scott: Your details are just coming up here now. That's me and there's Jennifer, and you can get in touch if you want to follow up with some of those questions.

Our next webinars are not far away. Here you go. 28 January we have Caroline Reidy coming along with probation. There you go. That'll be an interesting one on performance management with HR Suite.

And then the other follow-up from the Annual Review is Duncan Inverarity looks at case law. There have been some very interesting case law developments since the Annual Review of Employment Law from a fairly senior core. So hopefully we'll see you then on 10 February and on 28 January.

Thank you very much, Jennifer. We'll see you soon. Take care, everybody.

Jennifer: Thanks, Scott. Thanks, everyone.

Scott: Bye.

This article is correct at 19/01/2022
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Jennifer Cashman
RDJ LLP

The main content of this article was provided by Jennifer Cashman. Contact telephone number is +353 21 480 2700  or email jennifer.cashman@rdj.ie

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