Employment Law
Updates for 2020 

Wage Increase: €10.10 is the new minimum wage from February 1st, 2020 which is covered by the NATIONAL MINIMUM WAGE ACT, 2000. 

Section 11.—(1) says, the Minister shall, by order, after taking into account the impact the proposed rate may have on employment, the overall economic conditions in the State and national competitiveness, declare a national minimum hourly rate of pay for the purposes of this Act. 

Companies operating in the UK also need to be aware that as of the 1st April 2020, a rise from £8.21 to £8.72 for workers over the age of 25, marking an increase of 6.2%. 

So, to compare based upon the rate of exchange as of the 2nd January 2020 of (1.18)  

 

UK  IRL  Difference including exchange rate 
£8.21  €9.80  9.68 UK  €9.80  +€.12c 
£8.72  €10.10  €10.28  €10.10  -€.18c 

 

In 2019 we seen the changes to several pieces of legislation: 

Parent’s Leave and Benefit Act 2019 (the 2019 Act) 

The legislation introduced paid parent’s leave for employees for the first time. The entitlement to parent’s leave is in addition to existing entitlements to maternity, paternity, adoptive and unpaid parental leave. 

The legislation states that all “relevant parents” are entitled to parent’s leave. 

Relevant parents” are defined as any of the following: 

  • A parent of the child. 
  • A spouse, civil partner or cohabitant of the parent of the child. 
  • A parent of a donor-conceived child as provided for under section 5 of the Children and Family Relationships Act 2015. 
  • The adopting parent or parents of a child. 
  • The spouse, civil partner or spouse of the adopting parent of the child (if the parents have not adopted jointly). 
  • Each member of a married couple of the same sex, a couple that are civil partners of each other, or a cohabiting couple of the same sex. 

The parents are entailed to receive two weeks of parent’s leave for a child born or adopted on or after 1 November 2019. There is no minimum service requirement for entitlement to parent’s leave and employees are therefore entitled to parent’s leave from the date of commencement of employment.  

The terms of leave:  

The leave can be taken as; one continuous period of two weeks’ leave or two periods of not less than one week.  

Employers:  

Employers are not obligated to pay employees while they are on parent’s leave however, individuals who have built up the required Pay Related Social Insurance (PRSI) contributions will be entitled to receive parent’s benefit, form the state of €245 per week. 

There is nothing stopping employer adding to this as would be seen with maternity leave payments.  

So, where you wish to retain staff, you could review their weekly pay, and deduct the difference of €245, paying them the balance of their wages. Remember the €245 is paid by the state and not the employer so there is no contractual connection between you and the department that you can rely upon to get his money, that relationship is between the employee and the state. The employee must make the application directly to the department. 

Parental Leave (Amendment) Act 2019 (Commencement) Order 2019 (S.I. No. 356/2019) 

This Order provides for the commencement of the Parental Leave (Amendment) Act 2019 on 19 July 2019 – the predominant purpose of which was to increase parental leave entitlement from 18 weeks to 22 weeks as of September 2019, and 26 weeks as of September 2020 – generally for parents of children aged up to 12 years. 

Service Sector:  

Payment of Wages (Amendment) Bill 2019 

A bill swiftly moving through the houses has received an approved draft “Payment of Wages (Amendment) Bill 2019”. This includes a legal right for catering and hospitality staff to receive a fairness and transparent on an equitable basis, their tips and gratuities paid by electronic means such as by debit and credit cards.  

Employment Permits (Amendment) (No. 2) Regulations 2019 (S.I. No. 333/2019) 

These Regulations amend the Employment Permits Regulations 2017-2019 to provide for: 

  • An increase in the minimum annual remuneration thresholds for Critical Skills Employment Permits. 
  • The extension of the period a vacancy must be advertised on the websites hosted by the Department of Employment Affairs and Social Protection prior to submission, from 14 to 28 days. 
  • An extension to the period after an offer of employment or publication of notice within which an application must be made for academic or third level institutions, to 120 days. 
  • An adjustment of the maximum limit of General Employment Permits which may be granted in respect of Dairy Farm Assistant to 101 and in respect of Boner (Meat) to 300. 
  • The inclusion of private educational institutions on Schedule 3 for Teaching and Educational Professionals in ICT programmes plus technical amendment to Schedule 3. 
  • A shortening of the required period of validity remaining on a foreign national passport from 12 to 6 months where an application for a permit is being made. 

Cases:  

Employers obligation to provide work to employees with a disability.  

The Supreme Court’s recent decision in the Nano Nagle case: 

Duties of an employer 

Section 16 of the Employment Equality Acts requires an employer to take appropriate measures to facilitate persons with disabilities in accessing and participating in employment unless those measures would impose a disproportionate burden on the employer.  

The Act provides non-exhaustive examples of “appropriate measures” which include the adaptation of premises and equipment, patterns of working time, the distribution of tasks or the provision of training.  

In determining whether the relevant measures would impose a burden, the Act provides that account should be taken of the cost involved, the resources of the employer and the possibility of obtaining public funding or assistance. 

Following the normal process from WRC to Labour Court the case was listed before the Appeal Court, who seemed to suggest that, in assessing whether an employee was capable of performing their role with reasonable accommodation, it was not necessary for an employer to consult with the employee. This marked a major departure from the position outlined in the case of Humphries v. Westwood. In Humphries, the Circuit Court found that an enquiry relating to an employee’s capacity could only be regarded as adequate if the employee concerned was allowed a full opportunity to participate at each level. 

The Appeal Court considered that the employer has a statutory duty to reasonably accommodate the employee such that there was no justification for the rule requiring employee participation in the process. 

However, the Supreme Court did not go so far as to hold that there is a mandatory duty to consult with employees in each and every case, it did note that “in this State … our courts have always attached importance to fair procedures where employment is at stake” before noting that “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”. 

Right to Legal Representation in internal disciplinary proceedings 

The Supreme Court ruled in November 2019 that employees have no automatic right to bring legal representatives to internal workplace disciplinary procedures.  

The case of McKelvey v Irish Rail, the court ruled that an employee would need to establish that they have an ‘exceptional’ case that requires the involvement of lawyers. 

Mr McKelvey was an employee of Iarnród Éireann and was the subject of an investigation in 2016/2017 relating to an allegation of misusing a company card provided to him to purchase fuel for vehicles and machinery. Mr McKelvey was suspended on basic pay until further notice upon the conclusion of the investigation in March 2017. Two other employees were also suspended. 

Iarnród Éireann commenced disciplinary proceedings against Mr McKelvey and the two employees. Mr McKelvey subsequently sought legal representation at these proceedings based on the complexity of the allegations and the lack of information provided to him. This request was refused by Iarnród Éireann on the ground that legal representation is not provided for in the company’s disciplinary policy (the Code). An employee could only be accompanied by a colleague or a trade union representative.  

It was accepted by the parties that the Code complied with the statutory Code of Practice on Grievance and Disciplinary Procedures. 

The decision focused on the fact that the employee, Mr McKelvey, enjoyed the benefit of being represented by an “experienced trade union official.” If an employee in a non-unionised employer requests legal representation for an internal procedure, the facts of the case should be carefully considered before deciding on whether or not to involve legal representatives. 

The supreme Court refers to section 14 Unfair Dismissals Act 1977 which states  

14.—(1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee. 

Employers are not held to the same high standard as a Court, and therefore, should rely upon fair procedures, the guide for best practices is to have policies and procedures or refer to SI 146 of the Industrial Relations Act 2000.  

Health & Safety updates for 2020 

Health & Safety: 

In 2018 several companies were found guilty of breaches of health and safety legislation. 

This is broken down into two sections: 

Summary: €50 to €100k Fines 

The defending companies and individuals, all 6, appeared before the District Court.  

Employee: 

On 22nd November 2018, this case was heard in District Court, Co Westmeath. The accused and employer pleaded guilty to one charge.  On 3rd October 2017 an employee suffered personal injury when he fell form a height when carrying out construction work.   

The breach was Section 8(2)a contrary to Section 77(9)a of the 2005 act. 

77.—(1) A person commits an offence where he or she— (a) fails to discharge a duty to which he or she is subject under sections 25 (4), (5) and (6), 26 (1), (4), (5) and (6) and section 69 , 

(b) prevents or attempts to prevent any person from answering any question to which an inspector may require an answer under section 64, 

(c) fails to submit an improvement plan to an inspector within the time specified in a direction under section 65, 

(d) fails to implement an improvement plan the adequacy of which has been confirmed in accordance with section 65, 

(e) contravenes any requirement imposed by a notice requiring information under section 72, or 

(f) prevents, obstructs, impedes or delays an officer of customs and excise in the exercise of any of the powers conferred on him or her by section 87. 

These are criminal acts and as such a fine imposed upon a guilty verdict is applied.  

On the 27th November 2018, this case was heard in Trim Circuit Court.    

Navan Hire Hardware & Safety Training Limited pleaded guilty to two charges.   

That On the 16th January 2016, an employee of Hire Hardware & Safety Training company suffered personal injury and died when a Neilsen Hydraulic Press fell from the forks of a forklift which was being used to transport it.   

The Hire Hardware & Safety Training company also failed to provide to its employee, the information, instruction, training and supervision necessary for the operation of a forklift truck to lift and transport a Hydraulic Press contrary to Section 8(1) and 8(2)(e) contrary to 77(9)(a) and Section 8(1) and 8(2)(g) contrary to 77(2)(a) 

Both charges and were found guilty and fined €50k per breach.  

Both cases show the importance both employers and employees accepting responsibility for their safety and that of others.  

However, where the matters are sent to trial on indictment on contentment that is to say defendants try to explain away their obligation or liabilities the following two cases will show the risks. 

On 11th June 2019, a quarry company in County Mayo was in breach of regulation 8 of the Safety, Health and Welfare at Work (Quarries) Regulations 2008. In May 2015 a man died after falling from a height whilst operating a stone crusher.  The company was fined €500,000 after pleading guilty to the offence.  

Individual 

On the 4th May 2018, the case was heard in Letterkenny Circuit Court.   

The accused, an employer pleaded guilty to one charge.   

That on the 13th  March 2012 at Dunlewy, County Donegal, he failed to manage and conduct his undertaking in such a way that individuals at the place of work, who were not his employees, were not exposed to risks to their safety, health and welfare. In particular that he failed to take precautions in relation to plant, namely a crane working near overhead power lines or to ensure that said work was carried out safely and in accordance with ESB guidelines and contrary to Section 12 contrary to 77(2)(a) of the Safety Health and Welfare at Work Act 2005.    

Having pleaded guilty, he was sentenced to 12 months’ imprisonment suspended for 12 months. 

On the 28th June 2018, this case was heard in Kilkenny Circuit Court.   

The Civil Engineering Contractors company pleaded guilty to three charges.  On the 25th April 2016, an employee suffered personal injury when the Civil Engineering Contractors at IDA Business Park,  Kilkenny failed to ensure that a safe system of work was in place to protect persons working inside a trench box within an excavation from being struck by falling materials. 

Following a plea of guilty they were fined €200k for breaching Section 8(2)(e) contrary to 77(9)(a), the other two charges, Regulation 51(1)(a) contrary to Section 77(9)(a), and Regulation 52(3) contrary to Section 77(2)(c) were taking into consideration and no fines were issued.  

What is not included in the above is the legal cost. This would be substantial, and a fair guide would be ca €50k if not higher. 

The cost to the business in man hours putting together the files and updating their practices and procedures. 

 

So, calculate the following: 

 

Court Fines  Legal Cost   Company Cost   Closure of Business 
€200,000.00  €50,000.00  €20,000.00  12 days €? 
Cost of systems  Cost to manage  Company Cost  Closure of Business 
€1,500-10,000.00  €1k to €15k  Zero  Zero 

 

The cost from ESA is subject to the number of staff, the cost to manage is based upon utilizing existing management time. The cost to the Company is dependent on the condition of the operation in so far as its compliances.  

The HSA is not there to close any business, and they will work with any reasonable employer or self-employed person. But it’s like anything, you must be willing to engage and show evidence of action plans.  

Safety Management System (SMS)  Method Statements/Risk Assessments   Open Communication with Staff 
Policies & Procedures  Pregnant Employees  Training, Instruction and Consultation 
Management Responsibilities  Welfare Facilities  First Aid 
Company Structures   Computer & Laptop Use  Manual Handling 
Fire Information & Procedures  Safety Signs   Chemical Agents  
Electricity  Risk Assessment Chart  Bullying & Harassment 
Disciplinary Action  Pre-Risk Assessment Checklist  Notification of Accident 
Driving at Work    Staff handbooks 

 

 

 

 

 

 

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