The theme of this year’s conference was chosen to throw a spotlight on the tide of proposed new laws purporting to further regulate an already heavily regulated employment relationship.
Amongst the areas examined were recent and imminent legislation including the implications of the Employment (Miscellaneous Provisions) Bill 2017; the law and longer working; the top 5 cases of the last 12 months and a review of dismissal law in Ireland. Also on the agenda for the day was the topic of managing substance misuse at work together with five things a company should be doing in 2018.
A balanced approach to regulation needs to be restored
In her opening address, Ibec’s Director of Employer Relations Maeve McElwee told delegates that a balanced approach to new regulation was needed saying that when the policy landscape gets tilted in favour of one party the result is economic stagnation. She said the law must equip Ireland for the future of work and challenges this poses. Referring to the move to regulate for banded hours, she said Ibec was deeply concerned at the manner in which the Employment (Miscellaneous Provisions) Bill 2017 was developing without any understanding of how most of these arrangements operate in practice to the benefit of employers, employees and society. She said while there may be some instances of bad practice, policy makers need to legislate for balance.
Time to stop viewing atypical working relationships as suspect in themselves
Rhona Murphy, Ibec’s Head of Employment Law Services, during her employment law and policy round up told attendees that over the previous 12 months there had been 14 Bills purporting to further regulate the employment relationship. Of these just 3 originated with Government and the remainder were Private Members’ Bills. Describing these initiatives as squeezing employer flexibility, she said they look for certainty where none exists. There is also a suggestion sometimes, she noted that independent contractor arrangements are not genuine and are used to mask something else such as precarious work with low hours and low pay. Rhona Murphy reminded delegates that sometimes people on low hours are highly skilled, high paid and highly sought after. She also remarked on the increased focus for employers on work life balance and questioned whether, against this backdrop, it is not unreasonable to employ relief workers to achieve this sort of flexibility. Ms Murphy expressed her concern at the increased reliance on criminalisation of some breaches. In her run down of the legislative changes that has occurred since last year’s conference, she drew attention to the Competition Amendment Act 2017 that had started life as a Private Members’ Bill. When enacted it paved the way for certain independent contractors to collectively bargain and also created a statutory definition of a “falsely self-employed worker” of the purposes of the Competition Act introducing the notion of a “dependant contractor”. She asked whether these developments could lead to the erosion of the old common law tests for example those enshrined in the Revenue Commissioner’s Code on determining Self-Employment and suggested that the provisions contained in the Competition Amendment Act 2017 were reflective of a suite of 2017 legislative proposals hostile to independent contractor arrangements.
Balanced approach to regulation must be restored as a matter of urgency if we are to create an employment law framework that is fit for purpose
The new scepticism around atypical working relationships that is evident in this jurisdiction is echoed in developments at EU level, said Ms Murphy. In this regard she pointed to a proposed EU Directive on working conditions which would involve the introduction of a new EU wide definition of ‘worker’, including intermittent workers operating in the ‘gig economy’. Positing that the Directive has not been “properly thought through.”, she speculated that the Directive, as currently drafted, could result in a client being treated as the employer of the solicitor and even the barrister engaged by them if the work carried out were to exceed eight hours in a particular week. The proposed Directive, she added, is “indicative of the mind set of EU employment policy makers at this point in time.”
Ibec, she made clear, is against false self-employment, adding it is bad for business in that it destroys the level playing field for compliant employers. She cautioned that it is time to stop viewing atypical working relationships as suspect in themselves. Some of the challenges attached to atypical working are not employment challenges, they relate to for example difficulty securing mortgages or childcare arrangements. This is the reason why, in Rhona Murphy’s view, a cohesive approach is needed that recognises that there is a whole diverse workforce that does not want to be stifled.
In her update on the Employment (Miscellaneous Provisions) Bill 2017 (often referred to as the banded hours Bill), she said most employers could live with a 12 month reference period but warned that if the bands are too narrow employers are likely to hire more people on certain set hours. She told delegates that the legislation when enacted proposed to entitle employees who were rostered but not called in to 3 times the minimum age. She noted that many of the sectors most likely to be affected by the new legislation including hospitality, residential care and education those also most exposed to the fallout from Brexit.
Paid parental leave on its way?
Delegates also heard about the European Commission’s proposed Work-Life Balance Directive Work which includes a proposal for 4 months paid and non-transferable parental leave. There had been indications that the Irish Government may introduce more generous blocks of paid parental leave sooner using the next Budget and it was questioned whether this is the right direction for policy makers to go and whether extending parental leave is the right way to provide flexibility and balance to the wider workforce.
Ms Murphy also spoke about the Labour Court’s recent review of all existing JLCs and acknowledged that in some sectors there is still an appetite to have them as a wage setting mechanism.
Concluding her presentation Ms Murphy said that these days there is a strong desire to regulate every aspect of the employment relationship and even the commercial relationship creating considerable challenges for employers. She warned that failure to take a holistic approach can result in new laws and policy initiatives that have a strangling effect on economic growth.
Retirement – no easy options for employers
Following the deferment of access to the State pension to up to 68 years of age on a phased basis, employers are faced with more and more requests from employees to remain in the workplace beyond the age of 65, the traditional age at which employees are required according to Ibec Solicitor Aoife McFadden.
With the introduction of a new Workplace Relations Commission (WRC) Code of Practice on Longer Working, Ms McFadden examined the legal principles underpinning retirement in Ireland. She highlighted for delegates the various options available to employers who wish to extend their employees’ contracts of employment to bridge the gap between the contractual mandatory age of retirement and the age of entitlement to the State pension. None, she stressed, is free of risk from litigation.
Whether an employer decides to abolish company mandatory retirement age, or maintain it but offer a post-retirement fixed-term contract, or extend their existing retirement age to match access to the State pension, none of these approaches removes entirely the possibility of legal challenge. In her address, attention was also drawn to the newly published Irish Human Rights and Equality Commission (IHREC’s) new guidelines on the use of post retirement fixed-term contracts which are intended to complement the WRC Code of Practice on Longer Working published in December 2017. The guidelines, Ms McFadden confirmed, refer to the issue of post-retirement fixed-term contracts, and the requirement that they, too, be objectively justified in accordance with the provisions introduced by the Equality (Miscellaneous Provisions) Act 2015 – a requirement, Ibec believes, was not mandated by EU law. She added that it would be useful to have a single source of guidance for employers and employees when addressing the issue of retirement, rather than a separate Code of Practice and guidelines, in addition to the wealth of case law and legislation to be considered.
Review of major cases in the past 12 months
Ms Pauline O’Hare, solicitor with Ibec, reviewed some significant cases over the previous twelve months.
Her review included what the court said about the right to cross examine witnesses during an investigation – alluding to the decision in Lyons v Longford Westmeath Education and Training Board. In that case before the High Court Eager J held that where investigative processes can lead to dismissal the right to cross examine is a “vital safeguard to ensure fair procedure.” The High Court also considered that the exclusion of legal representation in such circumstances was a breach of the employee’s constitutional right to fair procedures. Ms O’Hare suggested that decision in that case is specific to its own facts. To bring Lyons to its logical conclusion, she said would result in bona fide investigations being paralysed, with witnesses also seeking to be legally represented given that they faced being cross examined by lawyers.
In her presentation Ms O’Hare also reviewed the decisions in the case of Nano Nagle School v Marie Daly. The case in question raised important legal issues concerning the obligations of employers towards disabled employees and the extent to which an employer is required to provide reasonable accommodation in such circumstances. Ms O’Hare reminded delegates of the fact that in 2017 the High Court upheld a €40,000 award by the Labour Court to a special needs assistant who was told she could not return to work at a special needs school after suffering serious injuries in a road accident. In overturning the High Court decision, the Court of Appeal considered that there are limits on the employer’s obligation in this regard and found that the obligation did not extend to involve the removal of absolutely core duties from the post occupied by the disabled person.
She cautioned however that employers must still be mindful of the need to consider and evaluate potential options and to take appropriate measures to reasonably accommodate employees with disabilities.
Intoxicants in the workplace
Ibec solicitor Nichola Harkin examined the issue of intoxicants in the workplace from two aspects; on the one hand, as a disciplinary issue and on the other as a health and safety matter. She noted that the Safety, Health & Welfare at Work Act 2005 imposes duties on employers to carry out risk assessments and prepare safety statements and to prevent, so far as is reasonably practicable, improper conduct. She also raised the important point that under the Employment Equality Acts 1998 to 2015 alcohol and drug addiction is considered a disability placing an onus on an employer to provide support.
Ms Harkin pointed to a number of decisions including that in Irish Aviation Authority v Christopher Reddin (UD/16/2007). This case concerned an air traffic controller whose blood test following on from suspicions, disclosed evidence of alcohol use. The claimant argued that his subsequent dismissal was disproportionate and that the company should have supported him more with his alcohol dependency. The Tribunal concluded that employers should give employees an opportunity to seek professional help. However, relevant factors include a risk to safety of the public. The Tribunal found that the Irish Aviation Authority had a clear plan in place which combined disciplinary, and health and wellbeing considerations. It had adopted a best practice approach to drug dependency. The decision to dismiss was held to be reasonable.
Welcoming the manner in which the Workplace Relations Commission and Labour Court consider the gravity of workers attending for work under the influence of alcohol or other substances, especially when performing safety critical roles, Ms Harkin emphasised the importance of a company having a good policy on intoxicants which she advised delegates will help a company to address issues of substance misuse at work.
No Fault Dismissal – No Easy Option
In his review of dismissal law in Ireland, Ibec solicitor Paul Rochford’s presentation touched on managing probation, dismissal during the probationary period and also examined the concept of ‘No fault’ dismissal. ‘No fault’ dismissal, delegates heard, while sounding straightforward – “…it’s nobody’s fault, we just have to let you go”, in reality is not quite that simple.
The common law position in Ireland, Paul Rochford explained, is that an employer may lawfully terminate a contract of employment at any time by providing adequate notice as set out in the contract or employment or, where provided for in the contract, pay in lieu of notice.
Such a dismissal cannot be based on the employee’s performance or conduct. In those situations, the employee becomes entitled, notwithstanding any other rights he/she may have under the Unfair Dismissals Act 1977-2015 (or any other relevant legislation), to the application of fair procedures in line with his/her natural justice and constitutional rights.
Where an employee has more than one year’s service and such a dismissal is attempted, the employee will have recourse to the Workplace Relations Commission or the Labour Court to vindicate his/her rights. In addition to that, or particularly where the employee may not have the requisite service for relief under the Unfair Dismissals Act, the employee may seek injunctive relief before the Courts to prevent his/her dismissal from taking place. Of course, an employee with less than one year’s service may also have recourse to the Employment Equality Acts 1998-2015, where applicable, or the Industrial Relations Act, 1969.
The value of the ‘no fault’ dismissal option, particularly where an employee does not have recourse to the Unfair Dismissals Acts, is that where a dismissal is not for performance or conduct those same fair procedure and natural justice requirements will generally not apply. This means that the employee’s rights will not have been infringed and the employer may be able to avoid the granting of an injunction preventing the dismissal from proceeding, particularly where the relevant notice period under the contract has been respected or where pay in lieu of notice has been effected.
Top five items on 2018 to do list
Speakers flagged a 5 point checklist things for employers in 2018 to include:
· Getting GDPR ready
· Introducing a retirement policy (or revise an existing one)
· Review contracts with the Miscellaneous Provisions) legislation in mind
· Relaunch your Dignity at Work Policy (in light of #MeToo and related developments)
· Revitalise company’s employee engagement strategy (in light of Industrial Relations Amendments Acts 2001 to 2015)
Engaging different generations
From millennials, born in the 1980s and 1990s, through to the generation Xers of the 1960s and the baby boomers of the 1940s and 1950s, the workforce spans a greater age range than ever before. The guest speaker at Ibec’s 2018 Annual Employment Law Conference was Dr Paul Redmond, Director of Student Experience at the University of Liverpool. Dr Redmond shared his insights and considerable experience in managing a diverse workforce.
Ibec will soon announce the date for next year’s employment law conference. Members are invited to secure their booking for what is consistently an informative and enjoyable day.
Thursday, 24 May 2018