by Breda O'Malley , Anne Lyne January-10-2023 in Employment Law

Legislation that came into operation throughout 2022

Publication of Transparent & Predictable Working Conditions Regulations 2022

In December 2022, the EU Directive on Transparent and Predictable Working Conditions was transposed into Irish law by the European Union (Transparent and Predictable Working Conditions) Regulations 2022. As a result, Irish employers must now ensure:

  • Probationary periods implemented should only run for a maximum of 6 months.
  • All employees are provided with mandatory training relating to their roles where there is a pre-existing legal obligation to provide this training.
  • Save for where the restrictions are justifiable on objective grounds, limit the use of exclusivity clauses that prevent employees taking up another job with another employer, whilst in employment.
  • Provide comprehensive information on the essential aspects of an individual’s work and for this information to be sent to the employee early and in writing.
  • Inform employees in advance, within a reasonable period, of when work will have to be done.
  • Enable employees to request a transfer to a form of employment with more predictable and secure working conditions and receive a reasoned written reply to this request.

Key takeaways: Employers should review both existing and future employment contracts to assess whether any changes might need to be made to co-align with this new legislation.

 

Publication of the Gender Pay Gap Information Regulations 2022

In May 2022, the Employment Equality Act 1998 (Section 20A) (Gender Pay Gap Information) Regulations 2022 were enacted.  These Regulations relate to the Gender Pay Gap information Act 2021 that establishes the requirement for gender pay gap reporting for the first time in Ireland.  The Regulations provide detail on what is to be included in the gender pay gap reports published by employers as well as the criteria to be followed in making the necessary reporting calculations.  

The Regulations require employers to pick a “snap-shot” date in June of each year which will act as a reference date and the basis for gender gap calculation carried out by the employer annually.  From the “snap-shot” date, employers will have six months to publish their reports indicating any differences between:

  • the mean and the median hourly remuneration of relevant male and female employees across the business.
  • the mean and median hourly remuneration of part time male and female employees.
  • mean and median hourly remuneration of relevant male and female employees – employed on temporary contracts.

 

From 1 December 2022, reporting obligations came into effect for employers with over 250 employees.  By the end of December 2022, those within scope must publish reports relating to the pay of their employees from the “snap-shot” date in June 2022 and show the disparity in pay between male and female employees. Any disparity will need to be

Key takeaways: Ultimately, reporting obligations will extend to organisations with more than 50 employees over the coming years. At present, it is anticipated that from 2024, the reporting obligations will expand to incorporate employers that employ more than 150 employees and then from 2025, employers with more than 50 employees.  Smaller organisations should therefore be regularly reviewing the current reports published to get familiar with what is expected and prepare themselves for the reporting obligations that will eventually befall them too.

 

Payment of Wages (Amendment) (Tips and Gratuities) Act 2022

This Act sets out new rules on how employers should allocate tips, gratuities, and service charges amongst employees. The Act prohibits employers from using tips to make up an employee’s basic wage and imposes an obligation on employers to display “tips and gratuities notices” on their business premises to illustrate how tips and gratuities are distributed amongst staff.  From 1 December 2022, these new rules came into effect.

Key takeaways: Those organisations within the hospitality sector should now review relevant policies in place and amend where necessary to ensure compliance with the new legislation. These businesses should also make sure they have the tips and gratuities notices clearly displayed on their premises as required by the Act.  Failure can non-compliance lead to a WRC claim by disgruntled employees, but it could also result in an employer being liable to pay a class C fine of up to €2,500. 

 

Codes of Practice already in operation

Code of Practice on Equal Pay

In February 2022, the Irish Human Rights and Equality Commission published a new Code of Practice for Employers and Employees on Equal Pay. The Code provides a useful overview of the well-established principles of equal pay in Ireland, including the obligation on employers not to discriminate directly or indirectly, in respect of remuneration, against employees based on any of the nine protected grounds. It also sets out several recommendations for employers to implement in the workplace by employers. One suggestion made by the Code relates to the carrying out of an annual pay review to evaluate its own pay practices.  An employer’s failure to follow the Code is not an offence, but non-compliance is admissible in evidence in proceedings before the civil courts, the Labour Court, and the Workplace Relations Commission.

Key takeaways: Employers are encouraged to review their internal policies to ensure they, at a minimum, reflect the ethos of the new Code. Where they do not, employers should be able to explain their reasons for departing from the Code’s provisions.

 

Code of Practice on Sexual Harassment and Harassment

In February 2022, the Irish Human Rights and Equality Commission published a new Code of Practice for Employers and Employees on Sexual Harassment and Harassment. The Code restates previous principles enshrined in the original Code of Practice from 2012 but also proposes some recommendations for dealing with these complaint types. One suggestion made by the Code relates to the introduction of a designated non-HR affiliated Senior Level Champion to advocate for an anti-harassment in the workplace.  An employer’s failure to follow the Code is not an offence, but non-compliance is admissible in evidence in proceedings before the civil courts, the Labour Court, and the Workplace Relations Commission.

Key takeaways: Employers are encouraged to review their internal policies to ensure they, at a minimum, reflect the ethos of the new Code. Where they do not, employers should be able to explain their reasons for departing from the Code’s provisions.

 

Legislation that came into operation from 1 January 2023

Sick Leave Act 2022

This Act will introduce a new statutory right to paid sick leave for employees for the first time in Ireland.  The Act specifies that this leave and pay entitlement will be initially introduced for the first 3 days of absence on the provision of a sick certificate. From 1 January 2023, this new obligation will come into effect. 

The rate and extent of this payment is subject to ministerial review, and it is anticipated that the 3 days will increase incrementally over the next four years as follows: 3 paid sick days in 2023; 5 paid sick days in 2024; 7 paid sick days in 2025; and 10 paid sick days in 2026. 

Key takeaways: Since 1 January 2023, the new legislation is applicable to all employers in both the public and private sector.  Businesses are advised to ensure that their policies/handbooks reflect this new entitlement. If not, amendments should be made to ensure statutory compliance. Failure to do so risks a WRC claim being pursued by an affected employee with the possibility of an employer having to pay up to 4 weeks' remuneration as compensation for a successful claim. 

 

Protected Disclosures (Amendment) Act 2022

This Act will transpose EU Directive 2019/1937 into Irish law which, in turn, introduces several changes to the current main workplace whistleblowing laws in Ireland.  Some of these changes include:

  • Expanding the personal scope of “workers” protected by the legislation and extending the list of “relevant wrongdoings”.
  • Specifically excluding “interpersonal grievances” from the definition of a protected disclosure.
  • Introducing an obligation to set-up internal reporting channel procedures (e.g., the appointment of a designated person to receive and follow up on lodged disclosures).
  • Expanding the scope of acts and omissions constituting penalisation.
  • Introducing new criminal offences for non-compliance with whistleblowing legislation.
  • Creating a new tortious cause of action for individuals who are or who have been adversely affected by the making of a protected disclosure, either directly or indirectly

From 1 January 2023, the reporting channel requirement came into effect for employers with over 250 employees.  Employers with between 50 and 249 employees have a “transitional period” that runs until December 2023 when these reporting channels will need to be set up.

Key takeaways: Employers with a body of staff of 50 or more should review existing protected disclosures policies or implement a policy if not already implemented to ensure they are fully up to date and in compliance with this new Act.

 

Increase in the National Minimum Wage

This change will increase the national minimum wage for an experienced adult worker from €10.50 to €11.30 for employees aged 20 years and older from 1 January 2023 onwards. 

Key takeaways: Employers should ensure that experienced adult workers are, at a minimum, earning the national minimum wage of €11.30.

 

Legislation to be enacted in the future

Work-life balance for parents and carers/ Right to Request Remote Working

Once enacted, the transposition of EU Directive 2019/1158 will introduce new statutory entitlements for parents and carers in support of a better work life balance.

In December 2022, the Irish Government confirmed several significant amendments were to be made to the Work Life Balance and Miscellaneous Provisions Bill 2022 that it will use to transpose the Directive into Irish law. These include, but are not limited to:

  • Introducing up to 5 days unpaid leave annually to provide medical care or support to certain categories of people
  • Introducing a maximum of 10 days paid leave annually for persons experiencing or who have experience domestic violence.
  • Introducing a right for parents and carers to request flexible working arrangements for caring purposes.
  • Extending all the rights and protections under the Maternity Protection Acts to transgender males holding gender recognition certificates where they subsequently give birth.
  • Extending the current entitlement to breastfeeding breaks under the Maternity Protection Acts from 6 months to 2 years.

The new amendments have also integrated components of the previous Right to Request Remote Working Bill so that both bills now fall under one piece of legislation.  Accordingly, as it currently stands, the Bill will obligate employers to consider both parties' needs when responding to a request to set up a remote working arrangement, and to respond to such a request within 4 weeks (which can be extended to up to 8 weeks). The Bill will also require an employee to have 6 months’ continuous employment with the employer concerned before a remote working arrangement can be considered. 

The Irish Government has separately confirmed that a new Code of Practice on the right to request remote working is being developed by the Workplace Relations Commission. The publication of this Code of Practice is currently awaited.

Key takeaways: As the Directive was due to be implemented into Irish law in August 2022, it is anticipated that the amended Bill will be signed into law without delay. To ensure employers are ready for the eventual implementation of this legislation, organisations should be cognisant of this draft legislation as it makes its way through the houses of the Oireachtas. Once enacted, businesses will need to update their handbooks and/or employment policies to reflect the changes of the new statute.

 

Consolidation of Employment Permits legislation

The Employment Permits Bill 2022 is currently before Dáil Éireann. This legislation proposes to consolidate and modernise the current Irish employment permit system as well as improve on its flexibility and efficacy.  Some of the main changes proposed include:

  • The introduction of a seasonal employment permit to cater for shorter-stay and recurrent employment.
  • The revision of the ‘labour market needs’ test to make it more relevant.
  • The streamlining of several criteria requirements to make the grant process more efficient.
  • The provision of additional conditions required for the granting of an employment permit (e.g., training/ accommodation support for migrant workers).

Key takeaways: This draft consolidation legislation should be monitored closely as it makes its way through the houses of the Oireachtas. While no specific date has been provided in terms of enactment, commentators expect it to be signed into law sometime in early 2023.

 

A single application procedure for employment permits and residence visas

In December 2022, the Irish Government announced that it has agreed, in principle, to develop a single permit procedure for employment permits and immigration permissions for third-country nationals to reside and work in Ireland. This announcement comes followings the proposal issued by the EU Commission in April 2022 that a single permit procedure for employment permits should be applicable and enforceable at EU level. At present, a person from outside the European Economic Area must first make an application to the Department of Enterprise, Trade and Employment for a work permit followed by a second application to the Department of Justice for an immigration residence permission. The Minister for Justice and the Minister for Enterprise, Trade and Employment have secured Government approval to establish an Inter-Departmental Working Group which will develop a proposal to present to Government within six months on how the single application procedure could work in Ireland. 

Key takeaways: The established of this Inter-Departmental Working Group looks to be the Irish Government pre-empting what is likely to become binding at EU level shortly. An update on how this single permit procedure would be implemented in Ireland is expected by mid-June 2023 at the latest.   

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About the Authors

Breda O'Malley
Breda O'Malley

Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.

Anne Lyne
Anne Lyne

Anne is a partner in the Employment team at Hayes solicitors. She has considerable experience advising and representing employers and employees on all aspects of the employment relationship from pre-employment matters to termination.