— By Blathnaid Evans
As COVID-19 restrictions begin to ease and businesses reopen, employers will need to get to grips with some novel and complex issues that are expected to arise this year. This article summarises some of the recent and proposed developments in employment law that businesses need to be aware of and are due to take effect in 2021 and beyond.
1. National Remote Working Strategy
The Department of Enterprise, Trade and Employment (the “Department”) introduced the National Remote Working Strategy in January 2021, as part of its aim to assist in creating flexible and remote working arrangements for employees.
The Right to Disconnect
The Code of Practice on the Right to Disconnect (the “Code”) came into effect on 1 April 2021. The Code is expected to bring about a better work-life balance for workers. It provides for a flexible approach to compliance by allowing businesses to implement the Code in a manner that meets the individual needs of employers and employees.
A key aspect of the Code is the emphasis on workplace culture, so staff and management communicate and respect the right to “switch off” outside of normal working hours and leave. In this regard, the Code promotes a joint approach that places the onus on both employers and employees. This task is anything but a simple box-ticking exercise and requires organisations to consider the wider implications of the Code on its business and workforce as a whole.
Remote Working Legislation
As it currently stands, an employee has a right to request to work remotely but there is no legal framework around how a request should be made
or how such a request should be dealt with by an employer. The Department has conducted a public consultation to assist in informing new legislation around the right to request remote work. It is not clear exactly when the legislation will be enacted but it has been indicated that it will in Q3 2021.
Requirements for remote and in-office working will vary from workplace to workplace and many businesses will require that their staff attend work in person. In these cases, employers should have a well thought out rationale in place to support this position and how to deal with remote working requests in the future.
As the vaccination strategy is ramped up, employers will need to consider the impact of vaccinations on their workforce. This has raised a number of concerns from staff as to whether a “no jab no job” policy may come into effect. Employers will need to consider such policies in light of the individual rights of employees, including the right to privacy, bodily integrity and whether any potential claims may arise, including discrimination claims or a claim under the Safety Health and Welfare at Work Act 2005.
While such policies will very much depend on the industry in question, before resorting to this type of approach, employers should consider any other appropriate measures to mitigate the risk of COVID-19 in the workplace. In this regard, employers will still be required to comply with the Return to Work Safely Protocol and update their risk assessment in order to provide a safe place of work. The updated Return to Work Safety Protocol also provides guidance on the use of antigen tests and vaccinations within the workplace.
Some employers will understandably want to know which employees have been vaccinated and which have not. As this is a form of special category data, employers must ensure they have a legal basis for processing such data under Article 6 and 9 of the GDPR. However, as we await guidance from the Data Protection Commission on this particular issue, the employer’s justification may still be subject to challenge.
3. Statutory Sick Pay
Currently in Ireland there is no legal requirement for employers to pay sick pay. Entitlement to sick pay arises from an employee’s contract of employment and many employers, for a variety of reasons, choose not to pay their staff when they take sick leave. This became an issue during the pandemic as despite being considered a close contact of a confirmed COVID-19 case, many employees felt they could not take a sick day as if they did, they would have to go without pay.
To address this, the government has introduced the Sick Leave and Parental Leave (Covid-19) Bill 2020, which if implemented will provide for a statutory entitlement for employees to be paid during periods of illness or injury. The Bill is in the second stage of debate in the Dáil and legislation is expected to be enacted by the end of 2021.
4. The Protected Disclosures Act
The EU introduced a new Directive on whistleblowing in December 2019. In order to comply with this, the Protected Disclosures Act in 2014 (the “2014 Act”) must be amended to introduce the following amendments by December 2021:
- Private sector employees: Private entities with more than 50 employees, with an annual turnover or balance sheet of €10m or more and all entities (public or private) offering financial services will be obliged to have a whistle-blowing policy in place;
- Expansion of individuals who may be whistle- blowers: Self-employed individuals, shareholders, non-executive directors, volunteers, unpaid trainees/interns and job applicants can nowbe considered whistle-blowers and avail of theprotections under the 2014 Act;
- Expanded definition of “relevant wrongdoings”:The definition of relevant wrongdoings will
be expanded to include potential breaches of legislation in areas such as data protection, public procurement, consumer protection and public health.
- Strict timeframes will be introduced for both the organisation and the whistle-blower. This is a significant development as at present, there are no specific timeframes in the 2014 Act; and
- Following up diligently: A weightier obligation will be placed on organisations to respond diligently to reports and in future they will likely be closely scrutinised on the response provide to reports of whistleblowing.
5. New Code of Practice on Bullying at Work
In December 2020, the Code of Practice on the Prevention and Resolution of Bullying at Work (the “Code”) came into effect. The Code streamlines previous codes of practice on bullying and provides guidance for employers and employees on good practice and procedures for addressing and resolving issues around workplace bullying.
On foot of the new Code, employers should ensure that their anti-bullying policies are up to date and that staff have access to them, particularly as the majority of staff continue to work remotely.
6. New WRC Rules
On foot of the recent Supreme Court decision in the case of Zalewski v Adjudication Officer, WRC & Ors  IESC 24, significant procedural changes have taken place in respect of hearings in the Workplace Relations Commission (the “WRC”). Key changes that employers should be aware of are:
- Most WRC hearings will now take place in public and members of the public and the media will be allowed to attend;
- The identity of the parties to WRC claims will no longer be anonymised when decisions are published; and
- Evidence at hearings is to be provided on oath/ affirmation, particularly where a conflict exists between the parties. Where an adjudication officer finds a serious conflict of evidence exists between the parties, they may adjourn the hearing pending the enactment of the relevant legislative amendments (save for claims being brought under the Industrial Relations Acts).
Given the extent of the changes detailed above, employers are advised to keep a close eye on these developments, with a view updating policies and procedures for their own workforce in the coming months.
Author: Blathnaid Evans
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