and What to Watch Out For in 2019
2018 saw a number of significant changes to employment law for employers . In this summary, we review some of the highlights of the year and examine what these mean for employers for the year ahead.
On 1st January 2018 the Mediation Act 2017 came into force and many would argue that there has been very little written on its on its relationship and impact to current employment law. One of the main reasons for this is the exemption under Section 3(1)(b) of the Act to disputes that fall under the functions of or being investigated by the Workplace Relations Commission (WRC) including disputes under Part 4 of the Workplace Relations Act 2015. The application of the act will however impact claims outside of the WRC such as bullying, contact and gender discrimination and hence employers and employees would be prudent to use mediation in the first instance of dispute resolution.
With the centenary of the Women’s right to vote, and Iceland’s historic decision to make gender pay differences illegal in Jan 2018, gender equality has received significant media attention this year. In response to a Eurostat 2015 statistic which highlighted the gender pay gap for Ireland at 13.9%, The Irish Human Rights and Equality Commissions Bill 2017 was proposed and passed by the Seanad in Oct 2017. Known as the Gender Pay Gap Information Bill 2017, this report gives power to the commission to require organisations that have 50 employees or more to report on the gender pay gap within their business. With this in mind and as gender discrimination is often a basis for claims in the WRC, employers may see disparities in gender treatment and pay claims more likely in 2019.
The high profile case of Cox Vs RTÉ 2018 in the WRC brought significant attention to the ongoing subject of age discrimination and compulsory retirement. Currently Irish law allows for mandatory retirement ages in contracts and policies within certain stipulations. This is a considered a contentious issue by many, primarily driven by the widening pension pay gap as the state increases the traditional pension retirement age from 65 to 68.
The Employment Equality (Abolition of Mandatory Retirement Age) Bill 2016 is an opposition led Private Members’ Bill and if implemented as it is currently drafted, would have the effect of restricting an employer’s ability to contractually impose a mandatory retirement age. In the interim , employers are advised to ensure that there is consistency and a definitiveness about pension wording in employee contracts and all of the supporting documentation around it such as pension scheme details, employee handbook, and internal policies and procedures to defend potential claims.
The issue of sexual harassment has received unpreceded media attention thanks primarily to the #me-too and #timesup social media campaigns which levelled a number of allegations of sexual misconduct at a number of high profile individuals. These movements have given women and men across the globe the much needed opportunity to speak out against sexual harassment in their workplace. This ‘fightback’ approach was evidenced recently by The Equality commission in Northern Ireland which released statistics indicating that there has been a 31% increase in sexual harassment complaints over the last 5 years. Employers are advised to take this opportunity to review their sexual harassment and diversity policies and ensuring that training to create awareness and understanding of these policies is provided and promotes that a culture where victims can come forward without fear of victimisation
The much publicised GDPR ( General Data Protection Regulation) 2018 came into effect on 25th May. This regulation presents significant changes to the way employers gather, retain and process personal data. While the focus on GDPR has certainly decreased in recent months, the Government’s announcement of a dramatic increase in funding for the OPDC from €1.6 million in 2011 to €15.4 million in 2019 indicates that this will increase the number of audits completed by the OPDC in 2019/20.
For employers, GDPR requires the creation of a number of mandatory policies and procedures. All employee handbooks, policies and procedures issued prior to this date referring to the Data Protection Acts 1988 to 2003 should now reflect changes. Employers should also ensure that their employee handbook references a summary of the changes and directs users to their comprehensive policies such as data breach and destruction policies and data subject rights and access request policies .
The Parental leave (amendment bill) 2017 was passed by the Dáil on 13th June and is now currently at second stage within the Seanad. If enacted, it will come into effect within three months of its passing. This bill extends the duration and applicability of Parental leave from 18 working weeks to 26 weeks in respect of each child and increases the qualifying age limit from 8 years currently to 12 years ( or 16 years of age where the child has a disability or long-term illness). Parents who have availed of Parental leave to date will be eligible to avail of the additional 8 weeks once enacted into law. However, given that the bill has not been established into law employers should continue to process Parental Leave requests as current law dictates while ensuring that preparations should be set in motion to allow for the implementation of the new entitlements in 2019.
Following review, The Low Pay Commission announced that it was recommending an increase to the minimum wage from €9.55 to €9.80 which was accepted in principal by the government. This increase, which is the 3rd Increase since the minimum wage was implemented will come into effect on 1st Jan 2019.
In recent years technological advances have led to a changing environment where remote working is becoming both increasingly accessible and popular. While requests for flexible working arrangements are becoming more common, the balance between ‘flexible working’ and available for work ‘24 x 7’was highlighted in a decision by the labour court to award a business executive €7,500 over repeated breaches of the Organisation of Working Time Act.
Described by law experts as “ground-breaking”, in this case (Kepak Convenience Foods Unlimited Company v Grainne O’Hara ), the court found that Ms O Hara was being required to deal with out-of-hours work emails, including some after midnight, that led to work in excess of 48 hours a week. A key feature of this case was the failure of the employer to produced documented evidence to dispute the claim. With this in mind employers are reminded to ensure that accurate records of working hours are being maintained
Inherent bias in recruitment and selection can have a detrimental impact on a company’s brand, finances, culture and ability to hire and retain the best staff. There was extensive news coverage this month of a recent job advert published on a public recruitment website by a Dublin Based oil firm which stated ‘Persons with young children need not apply’. While this advertisement is blatantly discriminate and fortunately rare, employers are reminded of the important of addressing bias in their selection process. Employers are urged to ensure that ‘equal opportunities’ policies in place within companies are implemented in all aspects of the organisation, including employees recruitment and selection process
Revenue announce that The Pay As You Earn ( or Paye) system first introduced in 1960 will be moving to ‘real time’ in an effort to ‘proactively assist taxpayers in their revenue obligations’. This represents a fundamental change for employers to the way current process employee tax payments and comes into effect on 1st Jan 2019. Employers and payroll administrators are advised to become aware of these changes to ensure legal tax compliance and are holding a number of information seminars. Details of these seminars can be found on the Revenue website.
The focus on mental health in the workplace dominated much of the headlines this month with the publication of a report from the Economic and Social Research Institute (ESRI) research, funded by the Health and Safety Authority (HSA), that has found job stress among employees doubled from 8% in 2010 to 17% in 2015. Employees from the health sector were found to have the highest levels of stress ( 18%) followed closely by public administration (16%) and manufacturing (14%). The Occupational groups most likely to experience stress were technical/associate professional( 20%) , professionals (16%) and managers (14%).
Several International studies have shown that job stress is linked to poor physical and mental health and to negative impacts for firms through absenteeism, increased job turnover and reduced morale. This report follows the recent decision by the High Courts to award the plaintiff, Ms Hurley in Hurley Vs An Post  €161,133 (including €50 K for pain and suffering) for her employers failure to address ongoing bullying and harassment in a meaningful way. This is an important reminder for all employers in regard to the duty of care owed to employees. Employers can be held liable for an employee’s bullying of a colleague which can result in mental health problems in accordance with section 8 of the Health and Safety at work Act 2005. Employers are therefore reminded of the importance to have appropriate policies and procedures in effect to deal with these types of issues and ensure that training is provided.
The Employment (Miscellaneous provisions) Bill 2017 passed by Dáil Eireann in July this year made significant process this month having completed its final stage in Seanad. This Bill forms part of the Government’s proposals to tackle zero hour contracts and uncertain working conditions. This bill described as “one of the most significant changes to working conditions in a generation” by Regina Doherty, Minister for Employment Affairs and Social Protection will have significant impact for employers in sectors such as retail, hospitality and tourism where the use of flexible working arrangements is widespread.
Aspects of the bill include the requirement for employers to provide new hires with a written statement of core terms of employment within five days of starting employment and makes it a criminal offence for employers to incorrectly designate employees as ‘self-employed’. The bill will also prohibit zero hour contracts “except in situations of genuine casual employment” or when they are used to provide cover “in emergency situations or to cover short-term absence”. Pending final review by the Dáil, it is anticipated that this Bill will become law in March 2019 and employers are urged to review existing arrangements for employees ensuring correct employment status and avoidance of potential criminal conviction.
So as you can see there are a number of changes taking effect from January 1st 2019. For further information on any employment law matters, contact us at firstname.lastname@example.org or call Ingrid on 01-525 2914.
Jacqui Sykes, HR Consultant