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HR & Employment Law – Round Up 2020 and a Look Ahead to 2021

As 2020 draws to a close and we take time to look back and reflect on what has happened this year, we find ourselves continuing to acknowledge what an unprecedented year it has been for us all. COVID-19 has touched every employer in some way or another and while the pandemic has certainly impacted and changed the world of work, our employment laws, codes of practices and guidelines largely remain the same.

 COVID-19 – HR & employment practices issues

Health & Safety

COVID-19 is predominantly a health & safety issue from a work perspective and employers have a duty of care for all employees under H&S legalisation.   While there are no new specific employment regulations related to COVID-19 in place, employers are required to comply with all existing H&S legislation and they must also ensure they comply with the range of obligations and requirements set out in the government’s living document – The Work Safely Protocol (the Protocol), originally issued in May 2020 and updated in November 2020.

The Protocol and the HSA provide various checklists to support employers in providing a safe working environment both onsite and remotely during COVID-19.  Despite the good news on impending vaccines, we expect that COVID-19 will be with us for a significant part of 2021 and employers will still need to continue to review and follow the Protocol for some time yet.

 Layoff, Short time & Redundancy

During 2020, unfortunately many employers were forced to lay off employees or reduce working hours as a result of COVID-19.  Normally, employees on lay off or on short-time hours can claim redundancy from an employer after 4 weeks or more, or 6 weeks in the last 13 weeks. If employees were put on lay off or short-time hours because of COVID-19, their right to claim redundancy has been temporarily suspended.

This rule became effective under the Emergency Measures in the Public Interest (COVID-19) Act from 13 March 2020 and has been extended up until 31 March 2021. Employers are reminded that when selecting employees for lay off or short time working, they should apply the same criteria for selection as for redundancy. The criteria should be reasonable and applied fairly.

While it is expected that many businesses will recover post pandemic, it is anticipated that there will likely be some level of redundancies once the right to claim redundancy has been lifted.  It is important to note that where a business needs to restructure due to COVID-19 and where it may result in potential redundancies, then all the normal redundancy procedures including consultation and selection must be followed.

Working from Home – Ireland & Abroad

Working from Home

Employers reminded that under H&S legalisation, they have a duty of care for all employees even when they are working remotely.   For so many businesses, remote working became a forced necessity rather than a choice.  Many of the arrangements were put in place literally overnight with little time for planning and evaluating risks and supports needed for both the employer and employees.

The updated version of the Protocol guides that  “All staff should continue to work from home to the greatest extent possible” and that employers should develop and consult on working from home policies in conjunction with workers. Employers should familiarise themselves with their H&S obligations which include carrying out risk assessments, provision of equipment etc.

As we move into 2021, it is clear that many organisations will continue to either work remotely in the short term or engage in “blended” working models for the future. In addition to their H&S obligations, employers will need to develop more detailed Working From Home Policies which set out criteria for eligibility,  H&S guidelines for working remotely and also address issues such as Data Protection, Well-Being and Recording of Working Time & Rest breaks.

Engaging with employees at an early stage either through discussion or employee survey would be a great way to address any concerns and to develop a policy that meets both the individual and business needs.

Working from Home – Abroad

In some cases, non-Irish employees chose to return to their home countries and are continuing to work remotely overseas.  It is really important that employers are fully aware of the implications of continuing to permit these arrangements and the potential risks associated with the employee acquiring employment rights in another jurisdiction or giving rise to a tax liability for either the employee and employer in another country.

While most jurisdictions have a taken a flexible and pragmatic approach to these type of arrangements during 2020, it is imperative that employers have a clear understanding of the potential risks that may arise should they continue into 2021.

The right to disconnect

Increasingly, technology has blurred the lines between work and personal life. For many, home working and COVID-19 restrictions has resulted in significantly increased “work-life blur” and is having a significant mental and physical health impact. Unlike some other European countries, there is currently no specific legislation in Ireland that explicitly refers to the right to disconnect.

Between 2016 and 2018, France, Belgium and Spain have all introduced “right to disconnect” legislation.  While it remains to be seen if Ireland follows the lead of other countries and addresses this, some larger organisations are already developing policies that set guidelines and boundaries for their employees.

Retirement Ages & Pensions

The qualifying age for the state pension became a key election issue in February 2020.  As a result of significant political negotiations, the qualifying age for state pension will remain at 66 years for now. While the public sector pension age is now 70, there is still no fixed retirement age in the private sector and many employers continue to face legal challenges as their employees push to work longer.   Employers can establish a mandatory retirement age for employees, but such ages must be capable of being reasonably and objectively justified if they are challenged by employees as being discriminatory on grounds of age.

While a national auto-enrolment occupational pension scheme has been promised for several years, no further progress has been made on this and the pandemic has seen the matter pushed back again.

Family Leave & Flexible Working

Parental Leave increased from 22 week up to 26 weeks with effect from 1 September 2020.  Parental leave entitles parents to take unpaid leave from work to spend time looking after their children. Employees can take up to 26 weeks’ parental leave for each eligible child before their 12th birthday. In general, employees must have been working for an employer for at least a year to get the full amount of parental leave and must give at least 6 weeks’ notice before taking parental leave.

 Parent’s Leave

The current 2 weeks’ parent’s leave is set to increase to 5 weeks for each parent with effect from 1st April 2021.  Parents will be able to take this leave during the first 2 years of their child’s life (or 2 years from adoption).

Flexible Working

Prior to the arrival of COVID-19, the Department of Justice launched a public consultation in January 2020 on flexible working, which aims to help the government address and consider a number of issues relating to flexible working.  While remote working has been a dominant topic during 2020, there is still the broader topic of flexible working to contend with.

The EU Work Life Balance Directive extends the right to request flexible working arrangements to carers and working parents of children up to eight years old. This includes the right to request reduced working hours, flexible working hours and remote working options.  Under the EU Directive, the statutory right to request flexible working will come into effect no later than August 2022.

Illness Benefit & Statutory Sick Pay

Employees who have been told to self-isolate or who have been diagnosed with COVID-19 may claim COVID-19 Enhanced Illness Benefit.   The benefit can be claimed from the first day of isolation or a COVID-19 diagnosis and will be paid for a maximum of 2 weeks where an employee is required to self-isolate and for up to a maximum of 10 weeks where an employee has been diagnosed with COVID-19 and unable to work as a result. This benefit is planned to be in place up until March 2021.

As part of Budget 2021, it was announced that the number of waiting days for the standard Illness Benefit will be reduced from 6 days to 3 days on new claims (from the end of February 2021).

Ireland is one of only a small number of European countries in which there is no legal obligation on employers to provide for sick pay. The Government has recently launched a consultation process on the provision of a Statutory Sick Pay Scheme with a view to it being introduced in late 2021.

Gender Pay Gap Reporting

It had been expected that the introduction of mandatory gender pay gap reporting would come into law during 2020. However, with the focus on other priorities such as COVID-19, progress on the legislation has been slow.  The European Commission announced a five-year strategy in March 2020 that includes legislative proposals on pay transparency.

Binding measures aimed at increasing pay transparency and providing enforcement mechanisms are due to be published by the end of the year. While we do not yet know what form the EU measures will take, the announcement should re-prioritise the Bill here and we would expect to see this back on the agenda during 2021.

Minimum Wage

Since 1 February 2020, the national minimum wage is €10.10 per hour. The Government has approved increasing the national minimum wage by 10 cent per hour, from €10.10 to €10.20 from 1 January 2021.

Liz O’Donovan, Senior HR Consultant

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