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4 key legal issues employers need to think about

25 Aug 2022

William Fry’s Catherine O’Flynn and Elaine Egan discuss some of the top legal trends employers need to address to future-proof themselves.

Click here to view the full Future of Work Week series.

It has certainly been a busy year for employers and employees alike trying to keep up with employment law developments.

In order to prepare for the future, there are plenty of areas employers should be looking at. Here are some of the biggest changes coming down the tracks.

1. Act prescribes pay for sick employees

The Sick Leave Act 2022 was recently signed into law and provides for up to three days of statutory sick leave payment for employees subject to certain conditions, where they are unavailable for work due to illness or injury.

The Department of Enterprise, Trade and Employment has indicated plans to increase the number of statutory sick days to five days in 2023, seven days in 2024 and 10 days in 2025.

Employees shall be entitled to a daily rate of 70pc of their regular earnings up to €110 a day. This rate is expected to be amended by ministerial order in the future to align with inflation.

This act does not apply to employers who provide more favourable sick pay schemes to employees.

2. New law offers sound protection to whistleblowers

The Protected Disclosures Act 2022 has been signed into law and amends the existing Irish whistleblowing framework. A statutory commencement order is required before this act will enter into force.

The scope of whistleblowing protection has expanded those protected to now include volunteers, job applicants, trainees, shareholders and board members – including non-executive members.

The definition of ‘relevant wrongdoing’ has also been expanded to include unlawful acts or omissions falling within the scope of certain EU acts relating to matters such as protection of privacy and personal data, security of network and information systems, public health, consumer protection, product safety, financial services, and prevention of money laundering and terrorist financing.

The definition of ‘penalisation’ has also been expanded, with whistleblowers being protected from any direct or indirect act or omission prompted by the making of a protected disclosure which causes them unjust detriment. This includes withholding of promotion opportunities, blacklisting, negative assessments, demotion, suspension, lay off or dismissal.

Employers in Ireland with more than 250 employees will have to establish internal reporting channels on commencement of the legislation, whereas employers of more than 50 but less than 250 employees will benefit from a transitional period until December 2023.

Breaches of the act will carry severe sanctions to include fines of up to €250,000 and imprisonment for up to two years.

3. Striking the balance for parents and carers

The General Scheme of the Work Life Balance Bill was published earlier this year. When enacted, this legislation will transpose the provisions of the EU directive on work-life balance for parents and carers.

Many provisions of the directive are already covered by Irish legislation, for example in relation to paternity leave, maternity leave, parental leave and force majeure leave.

The directive aims to increase access to family-related leave and flexible working arrangements for parents and carers. Once transposed, parents and carers will be entitled to five days of unpaid leave to provide care to specified persons for ‘serious medical’ reasons.

Parents or carers will have the right to request flexible or compressed working hours for caring purposes. The entitlement to paid breastfeeding breaks will increase, from the current period of 26 weeks to 104 weeks.

Maternity leave entitlements will also be extended to transgender males who become pregnant after obtaining a gender recognition certificate under the Gender Recognition Act.

4. Crystal clear conditions

Another EU directive is due to be transposed in Ireland soon. This is the directive on transparent and predictable working conditions. Some provisions of this directive, such as obligations on employers to provide certain information to employees and a ban on zero-hours contracts, have already been introduced by way of the Employment (Miscellaneous) Provisions Act 2018.

The remaining provisions, yet to be transposed, will prohibit employers from restricting employees taking up parallel employment outside their work schedule with another employer. Member states may set conditions that would prevent parallel employment for incompatibility reasons, such as confidentiality, conflicts of interests, or health and safety concerns.

Employees will be allowed to request a transfer to more secure and predictable working conditions after six months’ service. Member states can decide to limit the frequency of such requests.

Employees will be granted the right to receive all mandatory training on a cost-free basis.

Member states are required to set a maximum duration of probationary periods, which cannot exceed six months. Member states may provide for the extension of probationary periods on an exceptional basis, for example, where extension is justified by the nature of employment (for example, in a managerial position), or justified due to employee absence (for example, absence on sick leave).

Rapid fire round-up

Outside of these key developments, there are a number of other areas that employers should familiarise themselves with.

The introduction of mandatory gender pay gap reporting means employers of 250 or more employers are required to publish their reports in December of this year. Employers of 150 or more employees will be required to publish reports in 2024, and this threshold will reduce again to 50 employees in 2025.

In July this year, the entitlement to parents’ leave was increased from five weeks to seven weeks for children born or adopted after 1 July 2022.

The Payment of Wages Amendment (Tips and Gratuities Act) has introduced new rules for employers about sharing tips, service charges and gratuities amongst employees. A statutory instrument is required to give effect to the act.

Finally, workplaces are eagerly awaiting the publication of the long-awaited Right to Request Remote Work Bill, which will oblige employers to maintain policies regarding the right to request remote working arrangements.

Employers will need to review any existing policies, including hybrid or flexible working arrangements, once further clarity is provided for in this bill.

By Catherine O’Flynn and Elaine Egan

Catherine O’Flynn is head of William Fry’s employment and benefits department. Elaine Egan is an associate at William Fry.

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