This year’s annual Ibec employment law conference responded to an exceptionally busy year for new employment policy initiatives, with the aim of helping employers navigate the road ahead. The article below gives a summary of the main points discussed during the day. (This article first appeared on ibeck.ie)
The theme of this year’s conference was chosen in light of 2017 proving to be such an exceptionally busy year for new employment policy initiatives with the focus expected to remain firmly on employment rights in the coming months. Amongst the areas examined were proposals in relation to zero hour and banded hour contracts as well as developments in relation to retirement age. Also under the spotlight was a bill proposing to allow certain categories of self-employed workers to engage in collective bargaining, the EU General Data Protection Regulation together with a review of recent significant employment law decisions.
Pictured at the conference
Event Moderator Chris O’ Donoghue with Maeve McElwee, Employer Relations Director, Ibec and David Bloch, Brightwater Recruitment Consultants. Second photograph shows John Keyes, Assistant Data Protection Commissioner
Too many bills currently seek to further regulate employment relationship
In her address at the conference, Ibec’s Director of Employer Relations Maeve McElwee expressed concern at the record number of Private Members’ Bills currently seeking to regulate the employment relationship. She said not only is the number of bills unprecedented, equally worrying is the fact that the bills, most of which emanated from the Sinn Féin or Labour parties, are moving with such ease through the Oireachtas and are so readily supported by the Government.
Ibec’s Employer Relations Director pointed out that in the last number of months alone, we have seen the Government support two Private Members’ Bills arising from the University of Limerick recommendations on zero hours at a time when they were also preparing their own proposals.
Also presenting numerous challenges for employers, the Government recently amended the Competition Act to allow self-employed workers to collectively bargain and have supported in principle, the Employment Equality (Abolition of Mandatory Retirement Age) Bill 2016. This bill is seeking to abolish an employer’s right to set a mandatory retirement age, which will have significant adverse and unintended consequences, said Ms McElwee.
A case of over-regulation to address infrequent cases of bad practice
She described the recent publication of the Protection of Employee (Collective Redundancies) Bill 2017 as yet another example of a proposal to unnecessarily over-regulate in order to address a rare case of bad practice (the Clerys closure of June 2015) despite legislative remedies already in place under the Companies Acts.
From the unnecessary to the borderline ridiculous
Ms McElwee referred to the Industrial Relations (Right of Access) (Amendment) Bill 2016 as one of a number of bills recently introduced which are not only wholly unreasonable, but border on the ridiculous. The bill in question proposes allowing a trade union representative to enter any employer’s premises and essentially access an employer’s files for purposes related to the employment of their members, or for “union business” or to “monitor compliance”.
The current surplus of initiatives seeking to regulate the employment relationship, cautioned Ms McElwee, show little regard for the disproportionate and often unintended consequences on the employer’s need to remain competitive and sustain employment. Against the backdrop to these proposals, she added, employers find themselves in uncertain times with the UK having triggered Article 50 and the potential implications of Brexit for business, particularly in terms of free movement of workers, attracting talent and retaining competitiveness.
Less than 1.8% of workforce on low hours contracts
The belief that Government appears to be legislating for the sake it of was echoed by Ibec’s Acting Head of Legal Services Pauline O’Hare. She highlighted Ibec’s concerns with a number of other employment law proposals including the Government’s own recently announced approach to address zero hours and low hours contracts in this jurisdiction. Announced on May 2nd, the Government approved draft legislative proposals brought forward by the Minister for Jobs, Enterprise and Innovation, Mary Mitchell O’Connor TD, and the Minister for Employment and Small Business, Pat Breen TD has since been referred to the Office of the Attorney General for priority drafting of a Bill.
The Government’s approach proposes that employers should be required to give new employees, within five days of their starting work, a statement in writing of the core terms including details on “what the employer reasonably expects will be the length of the employee’s normal working day and normal working week”. Moreover, it is proposed to make it a criminal offence not to do so. These proposals, according to Ms O’Hare, go beyond the Directive and will be difficult for some employers to comply with.
Legal right to banded hours will apply to all of workforce across all sectors
Ms O’Hare pointed out that the Government’s proposals have been drawn up in response to the recommendations contained in the University of Limerick Study on the Prevalence of Zero Hour Contracts and Low Hour Contracts in the Irish Economy and to lobbying and support by unions representing low paid workers with uncertain hours. However, despite the fact that CSO figures show that less than 1.8% of the workforce is on low hours contracts (less than eight hours), the Government’s approach is preparing to introduce a legal right to banded hours that will apply to all the workforce.
“Lacking legal certainty” was Ms O’Hare’s description of the Labour Party’s Protection of Employment (Uncertain Hours) Bill 2016 and Sinn Féin’s Banded Hours Contract Bill 2016 both of which also seek to introduce a legal right to banded hours.
Developments in relation to retirement age
In her address, Ms O’Hare also examined recent developments in retirement age, including the Workplace Relations Commission’s proposed Code of Practice arising from the Report of the Interdepartmental Group on Fuller Working Lives, a report on work and retirement, launched by the Minister for Public Expenditure and Reform in August 2016. Ibec, Ms O’Hare said, would like the code to focus on best practice in the lead up to retirement.
She also highlighted the Employment Equality (Abolition of Mandatory Retirement Age) Bill 2016, a recent Sinn Féin Private Member’s Bill, seeking to abolish mandatory retirement age which, despite acknowledging the numerous technical difficulties with the proposed Bill, has not been opposed, in principle, by the Government. She described Fianna Fáil’s proposals on abolishing mandatory retirement ages as outlined in the Employment Equality (Amendment) Bill 2016 as “lacking legal certainty”.
Implications of Labour Court decisions under newly revised industrial relations decisions
Ibec solicitor Nichola Harkin, in her address at the conference, examined the potential implications of the first cases out of the traps taken under the Industrial Relations (Amendment) Act 2001, as amended by the Industrial Relations (Amendment) Act 2015. The revised industrial relations legislation allows the Labour Court to make a legally binding determination regarding terms and conditions of employment in certain circumstances where it is not the practice of the employer to collectively bargain with employees. Before doing so however, it must be satisfied that the totality of current pay and conditions in the company is out of line with comparable workers in similar employments.
Ms Harkin highlighted the Labour Court recommendation in the Freshways case (LCR21242), the first such recommendation under the 2015 revision of the IR Act of 2001, pointing out some concerns Ibec has with LCR21242. A key concern was the size of the pay increase, which amounted to 21% over 18 months which she described as completely out of line with the increases reflected in the market at the present time. She said other serious concerns arising from the Freshways decision concerned the industry comparators used and the policy direction of the Labour Court in wage setting.
The new regime set out in the Industrial Relations (Amendment) Act 2015 for Registered Employment Agreements and Sectoral Employment Orders which has created a new landscape for employers was also discussed during Ms Harkin’s presentation.
General Data Protection Regulation
The assistant Data Protection Commissioner John Keyes presentation at the conference focused on the forthcoming and significant General Data Protection Regulation (GDPR), which will become law in May 2018. The EU General Data Protection Regulation 2016/679, he said is ground breaking piece of data protection legislation, which, when it comes into force next year will impact significantly on every business as it introduces severe financial penalties for non-compliance.
Advising delegates that now was the time to get their house in order, he suggested they take steps to prepare as their data protection obligations are about to get more onerous. He said a feature of the new rules will be mandatory reporting of data breaches within 72 hours where there is a privacy risk. He also recommended that employers adopt a targeted approach to the use of CCTV in the workplace and must ensure that employees are informed of the specific purpose of that CCTV and in what context the footage may be used. Mr Keyes listed the top 5 data protection breach report categories of 2016 as unauthorised disclosure, postal disclosures, electronic disclosures, website security and other security related issues.
Spotlight on courts’ concern for insidious reputational consequences of long suspensions
At the conference, Dr Des Ryan BL reflected on employment law decisions of most significance in recent months. His top 5 cases at a glance concerned employment status (contractor or employee) in the context of the Aslam v Uber (UK) case; penalisation under the Fixed-Term Work Act 2003, retirement, protected disclosures and workplace suspensions (during the course of an investigation). Regarding suspensions, Mr Ryan observed that the Courts are more and more concerned about the reputational consequences for a person being placed on long, albeit paid, suspensions.
Workplace investigations – style over substance?
Also speaking at the law event for HR practitioners was Ms Gillian Verrecchia, solicitor at Ibec, who focused on the various difficulties that can arise for employers in workplace investigations. Ms Verrecchia noted that procedures are vital in the investigation process. Most fundamental to these procedures are the rules of natural justice, including an employee having the right to know the specific allegations under investigation, the right to reply, the right to a fair and impartial decision maker and the right to representation. Employers have obligations to both the accused and the accuser to remain impartial and fair. It is vital, underlined Ms Verrecchia, that everyone knows the process and that an employer acts on the complaint as soon as it is raised, as evidenced in the case of Pinnacle Security Ltd v Chris Mabuza UDD1640 where the Labour Court looked at how procedures were applied on the whole.
Top five items on 2017 to do list
Ibec’s Fiona Higgins who heads up Ibec’s Knowledge Centre flagged 5 things Ibec believes employers should consider doing before 2017 draws to a close. Based on the most popular queries received into the Knowledge Centre, her advice to employers was to prepare for possible workplace inspections; get ready for changes in data protection legislation; review existing independent contractor arrangements; invest in workplace wellbeing initiatives and plan for retirement.
- Inspections: Ms.Higgins reminded attendees that Workplace Relations Commission (WRC) inspectors can enter a business premises and take copies of any books, records or other documents found in the course of the inspection. It is therefore essential that employers, in order to demonstrate compliance have records available and up-to-date at the time of an inspection to avoid delays and possible prosecution.
- General Data Protection Regulations: she recommended that organisations conduct a data protection audit, review their existing policy and evaluate the basis for which they have collected personal data.
- Employment Status: Recent developments in the area of employment status is making the task of establishing the existence of an employment relationship more difficult, Ms Higgins observed. For this reason, the prudent employer should review and monitor all independent/commercial contractor relationships on an ongoing basis and consult with the Revenue Commissioner’s code of practice for determining employment or self-employment status of individuals.
- Retirement: Pending any future changes to retirement and working within the parameters of the existing legislative framework, her final recommendation was that employers prepare for and manage employees who are due to retire. To be in a position to require employees to retire at a specific point in time, a retirement age should be written in contracts of employment. Ideally, an employer should engage with an employee nearing retirement age at least 12 months in advance of the date on which they are due to retire. She urged attendees to take advice before offering a fixed term contract post retirement which will need to be objectively justified.
- Workplace Wellbeing: Another initiative worth embarking on or strengthening this year is workplace wellbeing according to Ms Higgins. Research into this area shows that it assists with employee retention, increased productivity levels and better employee engagement and morale.