Employer’s take note - some employment law highlights from 2022

Theresa Howlett

theresa.howlett@meaghersolicitors.com

Employer’s take note – some employment law highlights from 2022

1. Statutory Sick leave – from January 2023

In July 2022 the Sick Leave Act, 2022 was signed into law. It is due to commence on 1 January 2023. It brings Ireland in line with most European countries which place a statutory obligation on employers to pay sick leave.

What is the entitlement?

Employees with at least 13 weeks’ continuous service will be entitled to three days of illness per year. The employee must have a medical certificate. The entitlement will increase annually as follows; 2024 – 5 days, 2025 – 7 days and in 2026 – 10 days.

This phased implementation is to allow employers to plan for the obligation and the cost will be capped. It will be capped at a rate of 70% of an employee’s wage subject to a daily maximum threshold of €110.

Employers should now review and update any sick pay entitlements in contracts and policies to ensure that they are compliant. Employers are also obliged to make a record of the statutory sick leave taken by each of their employees. Failure to record certain details and indeed to apply the statutory pay may lead to a complaint to the Workplace Relations Commission.

2. Mandatory Retirement Age – can I put one in a contract of employment ?

The Employment Equality Acts, 1998-2021 prohibit discrimination on certain protected grounds. Age is one of those grounds. A mandatory retirement age obliges an employee to retire at a certain age. It can be express or implied into a contractual employment relationship. In order to avoid a claim that it is discriminatory the following factors should be considered by employers;

Is there an objective justification for the mandatory retirement age?
Is it applied consistently?
Is it necessary to achieve the employers aim?
Employers should be familiar with the WRC Code of Practice on Longer Working. It sets out helpful guidance for employers and indeed employees on navigating this issue and on how employers should approach requests by employees to work beyond their contractual retirement age

Mandatory retirement ages are historically difficult to justify and enforce but two recent cases are helpful in understanding how it can be upheld;

In Pat O’Donnell and Co. .v. Denis O’Keefe the Labour Court found in favour of the employer’s mandatory retirement age for service engineers. In that case the Labour Court noted “ the undisputed evidence concerning the nature of the job, the fact that it is safety-critical, the training period required to qualify service engineers, the investment required by the Respondent in terms of training apprentices to the standard they required.

The Labour Court was satisfied that a mandatory retirement age of 65 for service engineers in this employment was objectively and reasonably justified and that the employer had a legitimate aim to ensure a through flow of appropriately qualified service engineers and to ensure that employees are not required to continue working until they are unable to perform the duties.

In the recent case of Mallon .v. Minister for Justice [2022] IEHC 546 the High Court upheld as proportionate the setting of a mandatory retirement age. It noted that in that case it maintained a proper balance between competing interests of the employer and employee. It contains an informative analysis of the proportionality requirements.

3. Protected Disclosures – employer’s obligations

The 1st of January 2023 heralds the commencement of the Protected Disclosures (Amendment) Act, 2022. It significantly amends the Protected Disclosures Act 2014 and transposes the EU Whistleblowing Directive ( 2019/1937).

Some of the main points for employers to note arising out of this new legislation:

Whistleblowing procedures and the appointment of a “designated person”. There are much more onerous obligations in terms of procedures on applicable employers. All of the public sector and certain sections of the private sector are obliged to adhere to this. For example, from December 2023 any employer with 50 or more employees must have whistleblowing procedures and a designated person appointed to receive and follow-up on disclosures.
The establishment of the Office of the Protected Disclosures Commissioner
The definition of Worker to expand it to more categories such as shareholders, volunteers, trainees etc.
The act excludes “interpersonal grievances” from the definition of protected disclosures.
The Act amends the definition of “relevant wrongdoing” (the types of wrongdoing that a person may disclose and may be protected under the 2014 Act). The amendments protect whistleblowers who disclose breaches of a range of EU laws that are prescribed in the EU Whistleblowing Directive.
The Act makes important changes to the remedies available to whistleblowers and others. The Act reverses the burden of proof in penalisation complaints, which will make it easier for whistleblowers to succeed in such complaints. An act of alleged penalisation will be deemed to have been a result of the worker blowing the whistle, unless the employer proves that the alleged act of penalisation was based on other duly justified grounds. Interim relief is also now available in cases of penalisation whereas previously it was only applicable in cases of dismissal. There is also a new provision that allows a legal claim by a person who suffers damage resulting from the making of a report, where the whistleblower knowingly reported false information.

4. Gender Pay Gap Reporting

The Gender Pay Gap Information Act 2021 came into force on the 31^st of May 2022. This act also provides for the making of regulations which set out how an employer calculates the gender pay gap, the Gender Pay Gap Regulations 2022. It requires employers to report on the gender pay gap within their organisations. It amended the Employment Equality Act 1998 by creating new sections in relation to gender pay gap reporting. The number of employees in an organisation will determine whether the organisation is required to report on the gender pay gap.

Points to note:

For 2022 and 2023 only organisations with 250 or more employees will have to report.
From 2024 the Regulations will apply to employers with 150 or more employees.
In 2025 it will apply to employers with 50 or more employees.
It is worth noting how wide the definition of employee is and it is defined in s.2 of the Employment Equality Acts. It includes contractors and agency workers.
What is the relevant date: to determine the relevant date for the purposes of assessing the number of employees, the employer must pick a date in June of each year and calculate the number of employees.
Where an employer has to report it must be done annually and within 6 months of the chosen June date. It must be published on the employer’s website (if the employer has one).
The Regulations require the employer to report on information in relation to the difference between the mean and median hourly remuneration of employees of the male gender and the female gender expressed as percentages. The Regulations provide detailed definitions of hourly remuneration and other definitions used in the Regulations and of how these are to be calculated.
An employer can also explain why there may be a gender pay gap as if there is one it may not be because of discrimination between men and women but it may result from other factors such as the concentration of one gender in certain economic activities.

Disclaimer

This article contains general information based on Irish law and does not constitute legal advice nor is it intended to provide a comprehensive or detailed statement of the law.