From GDPR to gender gaps, Peninsula’s Alan Hickey talks us through what businesses and HR professionals need to watch out for when it comes to employment law.
From high-profile decisions on retirement and managing disabilities in the workplace, to widespread claims regarding sexual harassment, 2017 has been a busy year in employment law.
Although employers might hope for a quieter 2018, it’s looking likely that there will be a number of issues prevalent throughout the year amid the continuous uncertainty of Brexit and the ongoing era of industrial unrest.
The European General Data Protection Regulation (GDPR) is set to come into force across Europe on 25 May 2018. This regulation seek to enhance the rights of individuals and make changes to existing data practices, including removing the ability to charge a fee to provide access to information, unless the request is manifestly unfounded or excessive.
Employers should use the first half of 2018 to review their current practices and documentation to assess how they process data and review whether this is in line with GDPR.
The potential consequences of non-compliance are costly, with maximum fines of €20m, or 4pc of annual turnover. Indeed, experts have said that Uber would have been fined €20m for its recent data breach had GDPR been in force at the time.
Gender pay gap
The Government has recently concluded a consultation process that proposes to introduce ‘a package of measures’ on how to tackle the gender pay gap in Ireland. It is therefore very likely that the gender pay gap will be a major factor in Ireland in 2018.
While it hasn’t been confirmed as to what this package of measures will entail, one of the proposals put forward by the Department of Justice and Equality was that companies with 50 or more employees would be obliged to complete a periodical wage survey, and report the results.
In light of the importance of closing the gap from an equality perspective, in addition to the significant negative publicity that arises on foot of gender pay issues, it is recommended that employers examine this issue now so that they are prepared for any measures that are introduced.
For example, conducting a salary review and identify the average rate of pay of men and women is an important first step. Additionally, identifying how many men and women work in part-time roles, and also how many men and women occupy senior/managerial roles in your company, will help identify potential factors contributing to the gender pay gap.
Casual workers, zero-hour contracts and the gig economy
There has been a significant focus on the employment protections afforded in the gig economy in addition to casual workers, zero-hour workers and low-hour workers in Ireland over the last number of years.
An Taoiseach Leo Varadkar, TD, has already outlined his intent to ban zero-hour contracts except in limited circumstances. Additionally, there are three separate bills before the Oireachtas that seek to increase the levels of protection for these types of workers.
The Banded Hours Bill, for example, proposes that where an employee is only contractually entitled to a low number of hours in their contract of employment, but in reality they work more hours on a regular basis, they can have their contract amended to reflect the higher hours they actually work.
The Uncertain Hours Bill seeks to clarify the employment status of casual workers (believe it or not, such individuals may not actually be deemed ‘employees’) and to increase the level of protection for such workers.
Lastly, the False Self-Employment Bill proposes to clarify the rules around the ‘gig economy’ in Ireland (eg, Deliveroo, Uber-style businesses) and whether or not such individuals would be classified as ‘employees’ in Ireland.
While there are nine different grounds of discrimination under Irish employment law, there seems to have been a significant growth in the number of employment tribunal claims centring around age discrimination due to mandatory retirement policies, and also centring on disability discrimination, and it is expected that this trend will continue in 2018.
In terms of retirement, employers are permitted to have a mandatory retirement age in operation, but it is very important that employers are aware that they require a strong justification for having it (simply wanting one is not enough).
For example, a doctor in the HSE successfully raised this argument before the High Court and secured an injunction in 2017 to prevent the HSE from making him retire. Furthermore, the Citizen’s Assembly in 2017 strongly recommended that mandatory retirement ages be abolished entirely. Therefore, employers need to watch this space and examine their policies carefully.
Every employer will encounter a sick employee at some stage but employers also need to be mindful that additional protection is afforded to those employees who have a disability as defined in our employment equality legislation.
Employers are expected to introduce measures to accommodate such employees in the workplace, and a failure to consider reasonable accommodation is, of itself, an act of discrimination. The Workplace Relations Commission and Labour Court have tended to award lofty compensation to employees in these situations.
The country has faced significant industrial unrest in the last few years involving teachers, Luas drivers, Irish Rail etc, and it is expected that 2018 will bring more of the same.
For example, SIPTU has already indicated that it will ballot up to 60,000 public-sector workers for industrial action over the ongoing issue of pay restoration in the public sector. Unite is expected to put a ballot to the crane operators it represents over pay allowances.
The way 2016 and 2017 have gone, one would expect another strike by either Bus Éireann, Luas or Irish Rail employees at some point as many underlying issues seem unresolved. If so, then employers can expect significant disruption for their own employees getting to and from work as a result.
It seems that employers will need to brace themselves for another tough year on the industrial relations front.
By Alan Hickey
Alan Hickey is the head of advisory and legal for Ireland and Northern Ireland at Peninsula.