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Reeling In The Year 2021

It is appropriate at this time of the year to look back at some of the developments and the important cases that have shaped the landscape of employment law in Ireland in 2021.

The Code of Practice on the Right to Disconnect

The Code of Practice on the Right to Disconnect (the Code) introduced in April 2021 is meant to limit the availability of employees through technology outside normal hours of work and facilitate meaningful rest periods but unfortunately it continues to work off the archaic 9am-5pm work time model and may act against employers trying to facilitate flexible working hours, especially during Covid-19 remote working.

It is recommended that the Policy to Disconnect is drafted in a form that works for each company. The Policy and Code needs a buy-in from all levels of employees, including management and the Board of Directors, in order for it be effective. If effective and communicated properly, this policy could result in a more productive and happier workforce.

Update on Parents Leave & Adoptive Leave

The Family Leave and Miscellaneous Provisions Bill 2021 was passed and came into effect from 25th March 2021. The Act amended the Adoptive Leave Act 1995 to enable a couple to choose which of the couple would be entitled to employment leave upon adopting a child together.

It also amended the Parent’s Leave and Benefit Act, 2019 to extend the Parent’s Leave by 3 more weeks thus bringing the total Parent’s Leave up to 5 weeks to be taken within the first 2 years of their child’s life.

Supreme Court Decision – Zalewski v Adjudication Officer and Others

The Supreme Court found that the exercise of powers by adjudication officers of the WRC was an administration of justice within the meaning of Article 37 of the Constitution. The Court upheld the constitutional validity of the WRC, however, certain procedures of the WRC were held to be unconstitutional. The decision had a number of far-reaching consequences:

  1. WRC cases, other than under Industrial Relations legislation, are now being heard in public.
  2. All WRC decisions where the hearing is completed after 6 April 2021 will be published with the names of the parties.  
  3. Any hearings that involve evidence in dispute would be adjourned on application until the 2015 Act was amended to provide the Adjudication Officer with the ability of administer the oath/affirmation and provide punishment for false evidence.

Significant Changes Proposed in the Protected Disclosures (Amendment) Bill 2021

In 2019 the EU passed a Directive requiring each EU country bring in legally binding protections for whistle-blowers. This so called “EU Whistleblowing Directive” will also require Ireland to update and amend the Protected Disclosures Act 2014 (the “Act”) by the end of this year.

The heads of bill of the Protected Disclosures (Amendment) Bill 2021 (the “Bill”), were published on May 11th and they revealed some of the upcoming proposed changes which may have serious implications for employers.

Our article, linked in the heading, focused on the two areas of change that we felt are most relevant for employers. These are the increased scope of the Act and remedies available under it, and the new employer policies and procedures that will be required by the amendment Bill.  

Supreme Court Rules on Sectoral Employment Orders

Sectoral Employment Orders (SEOs), are legally binding orders through which the Labour Court together with the Minister of Enterprise, Trade and Employment create minimum rates of pay and pension contributions across specific sectors of the economy. In June 2020 the High Court ruled that the legislation underpinning these SEOs, Part 3 of the Industrial Relations Acts 2015 (the “2015 Act”), was unconstitutional.

This legislation had at the time of the ruling had been in effect for just under 5 years. The State appealed the decision to the Supreme Court almost immediately and the High Court suspended its order rendering the 2015 unconstitutional, until this appeal concluded. The Supreme Court deemed the 2015 Act constitutional but at the same time struck down the SEO governing electricians pay and pensions as unlawful.

Update: Sick Leave Bill 2021

The details of the highly anticipated Sick Leave Bill (“the Bill”) were published in November by the Department of Enterprise Trade and Employment. The Bill will see the introduction of mandatory employer Statutory Sick Pay scheme (“SSP Scheme”) for the first time in this jurisdiction. The Bill provides for an entitlement to a minimum period of paid sick leave for all employees in the event that they fall ill or sustain an injury which prevents them from being able to work. While further details were anticipated by the end of 2021, it is still at Bill stage at the time of writing.

 Gender Pay Gap Information Act 2021

The Gender Pay Gap Information Act 2021 (the “Act”) was finally signed into law on the 13th July 2021. The Act amended the Employment Equality Act 1998 and will require regulations compelling certain employers to publish information relating to the remuneration of their employees by reference to their gender. While it had been expected that the regulations (clarifying the specific reporting obligations) would be published before the end of 2021, as yet there is no update in relation to this. However, the reporting process is expected to begin from 2022 onwards.

Issues and Payments re December 2021 Restrictions

Covid 19 has had a serious impact on employees and businesses throughout 2021, with the easing of and then subsequent reinstatement of restrictions. On 17th December 2021, the latest restrictions were introduced which will again have an adverse impact on the income for a number of businesses and their employees. More details on the latest restrictions are dealt with in our newsletter for December 2021 and is linked in the heading.

Authors – Ethna Dillon & Anne O’Connell

22nd December 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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