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Ireland’s new whistleblower law

Ireland’s new whistleblower law

International Employment Lawyer

The Republic of Ireland became only the 11th member state to transpose the EU Whistleblowing Directive into national law, following the passage of the Protected Disclosures (Amendment) Act 2022 last month.

Natural justice

Although it is possible to preserve anonymity using anonymous reporting channels and electronic tools, employers must remember that whistleblowing complaints often include allegations against named individuals who are entitled to defend allegations of misconduct, says Niall Pelly, head of GQ|Littler’s Dublin Office.

“While it is important to ensure that the rights of whistleblowers are protected, this should not be at the expense of an individual’s right to preserve their good name and reputation,” he explains.

“The right of an individual to know the identity of their accuser, and to challenge any allegations made by that accuser, is generally recognised as part of an individual’s constitutional right to natural justice. In an Irish employment context, employees have a recognised entitlement to natural justice and fair procedures in disciplinary proceedings.” 

Even as new regulations around the globe place greater emphasis on the protection of whistleblowers, Pelly highlights that an employer must ensure that the rights of both parties to a complaint are fully respected and vindicated.

“Walking this line can often be a difficult balancing act, particularly where serious allegations are raised, which will generally be the case in a whistleblowing context,” he says.

“In this regard, I believe the revised legislation strikes a fair balance by adopting the default position that the identity of a whistleblower should not be disclosed, but also making it clear that for the employer to do anything about it, the whistleblower will ultimately need to stand behind their allegation. This in turn ensures that an individual’s career and reputation is not put on the line based on an unverifiable, anonymous complaint.”

Read the full article here.

Irish court rules on lawfulness of use of CCTV in disciplinary proceedings

Irish court rules on lawfulness of use of CCTV in disciplinary proceedings

The Irish Court of Appeal has handed down a decision (DPC v Doolin) relating to the alleged misuse of CCTV by an employer in disciplinary proceedings relating to an employee taking unauthorised breaks. In this case, the Court of Appeal held that the use of CCTV was unlawful as its use wasn’t provided for in the employer’s CCTV policy.

Although the judgment was decided under the pre-GDPR law, the same data privacy considerations are still relevant for both Irish and UK employers.

Background

The starting point, which many employers will be familiar with, is that data must be processed for an explicit and legitimate purpose (which will normally be set out in the privacy notice) which needs to be communicated to the individual. The individual’s data should not be further processed for an incompatible purpose.

The employer’s CCTV policy stated that: “The purpose of the system is to prevent crime and promote staff security and public safety” (emphasis added). Furthermore, a sign was placed next to each camera, which stated that: “Images are recorded for the purposes of health and safety and crime prevention” (emphasis added).

In this case, the employer sought to rely on CCTV as evidence as part of an employee’s disciplinary process relating to taking of unauthorised breaks. There was no evidence that the disciplinary issue was related to a security issue.

Conclusion

The Court of Appeal said that the mere fact of further processing doesn’t automatically mean that the further use was unlawful, but where the new purpose is incompatible with the stated purpose that is where illegality arises. One of the key factors in considering whether the use was compatible, is the employee’s reasonable expectation as to what further use will be made of their data (in this case the CCTV images).

The Court of Appeal concluded that in this case it was clear that the individual’s data was used for a purpose other than, and incompatible with, the specified purpose and that as a result that use was unlawful.

Impact of Doolin

While Doolin serves as a cautionary tale for employers seeking to rely on CCTV footage in disciplinary processes, in the context of employment claims arising before the Irish employment tribunals, it is likely that this case will be confined to its own facts.

In practice, there is a reluctance on the part of the Workplace Relations Commission and the Labour Court to intervene in relation to complaints concerning potential breaches of a complainant’s data protection rights. For example, in a recent decision of the Labour Court (Go Ahead Transport Services (Dublin) Limited v Mr Thomas Gifford) which also concerned the use of CCTV footage during a disciplinary process, the court expressly stated that arguments raised by the complainant about the use of CCTV footage were outside the competence of the court and that any alleged breaches of a complainant’s rights in this regard were a matter for a different forum and not the employment tribunal.  

While the Irish employment tribunals are loath to determine that a disciplinary process has inevitably been tainted on the basis of potential unlawful processing of a complainant’s personal data in the course of the process, Doolin serves as a timely reminder for employers to take steps to ensure compliance with data privacy laws to mitigate any potential exposure.

Practical tips for employers

Although these are quite specific facts, there are a few practical points for employers:

  • Ensure that your privacy notices are regularly reviewed (we recommend every 6-12 months) to ensure that all potential uses of data are accurate.
  • In the event that you plan to process data in another way, review your privacy notice and if the new use is not already covered ensure that your notice is updated and communicated to staff (or the individuals whose data you are collecting).
  • Employers should ensure that they comply with the usual data protection principles when putting in place CCTV. The DPC’s guidance on the use of CCTV for Data Controllers may provide some assistance to employers.
  • When putting in place CCTV, ensure that you undertake a data privacy impact assessment to assess and minimise any risk.

If you have any questions about data privacy in either Ireland or the UK, please contact Deborah Margolis or for queries relating to Irish employment law please contact Niall Pelly and Alison Finn.

Gender Pay Reporting – how, when, and (critically) why?

Gender Pay Reporting – how, when, and (critically) why?

The countdown for new legislation requiring large companies to report on differences in pay between men and women has begun, with many Irish employers required to prepare and submit gender pay gap reports in December.

Initially applying to companies with more than 250 employees, employers will be required to report not only whether there is a gender pay gap in their organisation, but why there is one, and what they intend to do about it. In this respect, it goes further than the UK legislation on which it is modelled.

To date, much of the focus has been on the challenges that employers will face in collating and reporting on this data by December. This is understandable given the relatively short lead time, but it has meant that not enough attention is being given to a critical aspect of the legislation – namely, the additional requirement to explain the reasons for any gender pay gaps, and the measures that are being taken to eliminate them.

What needs to be reported?

Employers will need to publish information about:

  • the mean and median gap in hourly pay between male and female employees;
  • the mean and median gap in hourly pay of part-time male and female employees;
  • the mean and median gap in hourly pay between male and female employees on temporary contracts;
  • the mean and median gap in bonus pay between male and female employees;
  • the percentage of male and female employees who received bonus pay;
  • the percentage of male and female employees who received benefits in kind; and
  • the percentage of male and female employees in each quartile pay band.

The mean gap identifies the entire pay range in an organisation, while the median gap is meant to illustrate any pay gap in a manner that is less skewed by unusually high earners. Employers must choose a “snapshot date” in June 2022, which will establish the data set for its December 2022 report, and which will then be used for year-on-year comparison purposes into the future. 

Regulations published by the Government in June provide further explanation on how to calculate the gender pay gap, including how to calculate an employee’s hourly remuneration, bonus remuneration and total working hours. The Government has also published a general guidance note (the “Guidance”) and an FAQ for employers on gender pay gap reporting.

Critically, the legislation also imposes a positive obligation on the part of employers to publish reasons for any differences and measures being taken (or proposed to be taken) to eliminate or reduce those differences. In this respect, the legislation varies from the UK equivalent, which does not impose any requirement beyond reporting the existence of a gender pay gap.

How should employers publish this data?

Employers are required to publish the information annually on their website and ensure that the information is accessible to their employees and also the general public. Where an employer does not have a website, the information must be made available for inspection by employees and the public at the employer’s registered office or principal place of business, during normal business hours. 

The information needs to be accessible for three years from the date that the data is published.  It is envisaged that there will be an online reporting system for the 2023 reporting cycle, where reports will be uploaded and accessed publicly.

What are the risks of not complying?

The legislation empowers the Irish Human Rights and Equality Commission to apply to court for an order compelling compliance, in circumstances where it reasonably believes an employer has failed to comply with the Regulations. A failure to comply with such an order would be a contempt of court.

Employees will also be able to make a complaint to the Workplace Relations Commission which, if it upholds the complaint after an investigation, can order the employer to take action to comply with the Regulations. 

On that basis, the focus seems to be on ensuring compliance, as opposed to punishing non-compliance. There is currently no mechanism for financial penalties to be awarded against an employer who does not comply, nor is there any power on the part of any body to legally require that an employer follows through on any stated proposals to eliminate the pay gap in their organisation.

What are the practical ramifications of disclosing a large pay gap?

Unless equal pay provisions are breached, there are no legal ramifications for employers who disclose a large gender pay gap – a fine will not be levied, nor will any other penalties be imposed. The principal ramification is reputational and, ultimately (but indirectly), financial.

In the UK, it is already having a bearing in procurement processes, with many organisations proactively disclosing gender pay and diversity data, even when not legally required. The potential reputational impact of getting this wrong was highlighted on International Women’s Day this year, when a UK twitter account went viral by highlighting the disparity between the self-congratulatory tweets of companies celebrating their female employees, and the amount that those employees were paid relative to their male colleagues.

The reality is that employers will be held to account.

If the data is not positive, how should an employer respond?

Rather than seek to hide behind it or deny its existence, employers should treat the data as what it is – a snapshot in time, the seeds of which have likely been sown years before. A gender pay gap that arises now is a function of a multitude of different actions and decisions that have led up to this point – both individual and societal.

Gender pay data does not include the data of female employees who have left an organisation, perhaps because of lack of opportunities for advancement, or its incompatibility with other aspects of their life such as family commitments. Similarly, it doesn’t capture the data of employees who never joined that organisation in the first place, whether due to gendered expectations as to what is a “man’s job”, bias at hiring, or a workplace culture that feels unwelcoming or even hostile.

What it does capture is the outcome of these actions and decisions. The lack of female representation at senior levels in an organisation. The higher proportion of leavers. The disproportionate number in part-time, “family-friendly”, roles. These are all reflected in gender pay gap data. However, these are also the levers that can be applied by employers to bring about meaningful change.

By seeking to address some or all of these issues, employers can make tangible progress. It will not be easy – there is no silver bullet. For example, a greater sharing of childcare responsibilities is often presented as a potential solution, with Nordic countries put forward as aspirational examples. However, the average gender pay gap in those countries is actually higher than in Ireland, largely due to a gender-segregated workforce in which male employees are overrepresented in more lucrative professions.

How can an employer use its data to create a more equitable workplace?

While it is a complex and muti-faceted issue, Irish employers can at least learn from other jurisdictions that are further down this road – for example, helpful, evidence-based advice can be found in a recent UK Government Equalities Office report on reducing the gender pay gap. The key is to try and identify the particular levers that are most appropriate to a given organisation, and then to apply them in practice. 

By requiring employers to disclose why there is a gender pay gap, and what they intend to do about it, the new legislation ensures that this is a question that cannot be ignored. It will become clear over time which companies are serious about taking steps to address any existing pay gaps, and those that are not.

Though it may be a difficult question to answer, this is an issue that employers cannot afford to ignore. Employers need to start not just thinking about how to collate the information, but also how they are going to explain it if they come up short, and how they will change this going forward.

Getting to the “why” in gender pay gap reporting

Getting to the “why” in gender pay gap reporting

This article was covered in International Employment Lawyer.

As parents of young children will readily attest, it’s much easier to explain what something is rather than why it is. However, this is the challenge that will be faced by employers in Ireland when it comes to gender pay reporting – an issue has come into sharp focus with the recent announcement that December 2022 will be the deadline for applicable employers to comply with new gender pay gap reporting obligations.

These obligations were signed into law in July 2021, with the stated principle being: (a) to satisfy the need for employees and the public to have access to gender pay data by requiring employers to divulge particular data; and (b) to place an onus on employers to identify the reasons for, and take action to address, any gender pay gap that exists in their individual organisations.

To date, the focus of employers has predominantly been on the reporting aspect, which is entirely understandable given the relatively short lead-time to the first reporting deadline. However, prudent employers should realise that it will not be long before the focus will shift from whether there is a gender pay gap in their organisation to why there is one.

What the law requires of employers?

For the first two years, the regulations will only apply to employers with at least 250 employees. In the third year it will apply to those with at least 150 employees, and from the fourth year onwards, will then apply to employers with at least 50 employees.

Employers will need to publish information about:

  • the mean and median gap in hourly pay between male and female employees;
  • the mean and median gap in bonus pay between male and female employees;
  • the mean and median gap in hourly pay of part-time male and female employees;
  • the percentage of male and female employees who received bonus pay; and
  • the percentage of male and female employees who received benefits in kind.

Based on the government’s recent press release, it appears likely that the regulations will also require employers to report on:

  • the mean and median gap in hourly pay between male and female employees on temporary contracts; and
  • the percentage of male and female employees in each quartile pay band.

The mean gap identifies the entire pay range in an organisation, while the median gap is meant to illustrate any pay gap in a manner that is less skewed by unusually high earners. It is envisaged that the employer will choose a “snapshot date” in June 2022, which will establish the data set for its December 2022 report, and which will then be used for year-on-year comparison purposes into the future.

Much of the remaining detail will be set out in regulations that are due to be published “in the coming weeks”. For example, it is not yet clear what class of employee these requirements will relate to, how pay will be calculated, or the form and manner that this information needs to be published or how frequently (other than this won’t be required more often than once a year).

Critically, the legislation also imposes a positive obligation on the part of employers to publish reasons for any differences and measures being taken (or proposed to be taken) to eliminate or reduce those differences. In this respect, the legislation varies from the UK equivalent, which does not impose any requirement beyond reporting the existence of a gender pay gap.

What are the risks of not complying?

The legislation empowers the Irish Human Rights and Equality Commission to apply to court for an order compelling compliance, in circumstances where it reasonably believes an employer has failed to comply with the regulations. A failure to comply with such an order would be a contempt of court. Similarly, employees will also be able to make a complaint to the Workplace Relations Commission which, if it upholds the complaint after an investigation, can order the employer to take action to comply with the regulations. 

On that basis, the focus seems to be on ensuring compliance, as opposed to punishing non-compliance. There is currently no mechanism for financial penalties to be awarded against an employer who does not comply, nor is there any power on the part of any body to legally require that an employer follows through on any stated proposals to eliminate the pay gap in their organisation.

What are the practical ramifications of disclosing a large pay gap?

Unless equal pay provisions are breached, there are no legal ramifications for employers who disclose a large gender pay gap – a fine will not be levied, nor will any other penalties be imposed. The principal ramification is reputational and, ultimately (but indirectly), financial.

Employers with a large gender pay gap will face significant public scrutiny, particularly where it is at odds with how that organisation is seeking to portray itself in public. For example, on International Women’s Day earlier this year, a Twitter account went viral by using UK gender pay reports to reveal the disparity between the tweets of companies celebrating its female employees, and the amount that they pay those same employees relative to male colleagues.

A notable feature in the UK has been that companies who are not actually required to provide gender pay reports due to their size are choosing to do so voluntarily for reputation management reasons. Already, gender pay and diversity criteria are becoming important elements in vendor selector and procurement processes. As gender pay reporting becomes more embedded over time, and it becomes clear which companies are serious about taking steps to address any existing pay gaps, then this will also inevitably have an impact from an employee recruitment and retention perspective.

This aspect will be amplified in Ireland by the statutory requirement to set out reasons for, and the measures that are being taken to eliminate, any gender pay gaps. Employers will be held to account. Applying the adage that sunlight is the best disinfectant, it will become clear over time which employers are making tangible progress in the measures that they adopt, and those that are not.

If the data is not positive, how should an employer respond?

Rather than seek to hide behind it or deny its existence, employers should treat the data as what it is – a snapshot in time, the seeds of which have likely been sown years before. A gender pay gap that arises now is a function of a multitude of different actions and decisions that have led up to this point – both individual and societal.

By definition, gender pay data does not include the data of female employees who have left an organisation, perhaps because of lack of opportunities for advancement, or its incompatibility with other aspects of their life such as family commitments. Similarly, it doesn’t capture the data of employees who never joined that organisation in the first place, whether due to gendered expectations as to what is a “man’s job”, bias at hiring (whether conscious or unconscious), or a workplace culture that feels unwelcoming or even hostile.

What it does capture is the outcome of these actions and decisions. The lack of female representation at senior levels in an organisation, the higher attrition rate of female employees, the disproportionate number of female employees in part-time roles, and the concentration of female employees in what are perceived to be “family-friendly” (and lower-paid) roles are all reflected in gender pay gap data.

However, these are also the levers that can be applied by employers to bring about meaningful change from a gender pay perspective. By seeking to combat or ameliorate some or all these issues, employers can make tangible progress. It will not be easy – there is no silver bullet. However, Irish employers can at least learn from other jurisdictions that are further down this road – for example, very helpful, evidence-based advice can be found in a recent UK Government Equalities Office report on reducing the gender pay gap. The key is to try and identify the particular levers that are most appropriate to, and applicable in, a given organisation.   

How can an employer use its data to create a more equitable workplace?

Taking steps to address a gender pay gap without seeking to identify and ameliorate the root causes is the equivalent of trying to make the sun shine by selling more ice cream – it fundamentally confuses correlation with causation. Identifying and addressing the root causes will result in sustainable and long-lasting improvements, whereas short-term steps focused solely on improving a gender pay “score” will not.

The key is to view the data as a starting point to create a more equitable workplace, rather than a destination in its own right. Over time, year-on-year, progress can be measured – ultimately leading, one hopes, to a question of “what gender pay gap?” rather than why there is one.

COVID health and safety breaches at Irish businesses jump 77% in just three months

COVID health and safety breaches at Irish businesses jump 77% in just three months

New data shows COVID health and safety breaches in Irish workplaces saw a 77% jump in just three months, (ending September 30th) from 53 to 94, says employment law firm GQ|Littler.

The retail sector accounts for 83% of all COVID health and safety breaches identified by Ireland’s Workplace Relations Commission in the past three months, a total of 78.

According to GQ|Littler, Ireland’s Workplace Relations Commission has carried out 2,635 inspections in the first nine months of 2021*. Businesses that have not taken adequate measures to ensure social distancing, provide PPE and ensure proper ventilation may be found in breach of COVID work safety protocol.

The recent spread of the Omicron variant has led to increased concerns over COVID related safety measures. As result of the outbreak, investigations by the Workplace Relations Commission (WRC) may rise again.

Since inspections began in 2020, there have been 6310 inspections in the retail industry sector alone, amounting to 81% of all inspections to date.

GQ|Littler says employers that are found to be in breach of COVID requirements could face on the spot fines of up to €3,000 but could theoretically rise to €3m in a criminal case as a breach of the Safety Health and Welfare at Work Act

Niall Pelly, Partner of GQ|Littler, adds that the legislation in this area is not easy for many small businesses to follow. This is because COVID-response emergency measures have been frequently amended and time-limited, meaning they lapse after a certain period unless updated.

Many of the measures the public have been directed to comply with are not underpinned by legislation. Therefore, Government directions constitute guidance rather than enforceable law, with breaches of COVID requirements met with a direction to comply rather than a fine.

Aside from being fined, GQ|Littler says the reputational damage of breaching COVID requirements could have a negative impact on revenue for businesses, as well as make it more difficult for them to hire and retain employees.

Niall Pelly adds: “The recent increase in Covid safety breaches identified by the WRC is alarming. The WRC does seem to be focusing on retailers so employers in that sector should be aware of that." 

“Employers need to be vigilant to ensure protocols are adhered to. Concern over Omicron is inevitably going to lead to more compliance checks and more businesses being found in breach of the rules.”

*Source: Workplace Relations Commission, June 30th and September 30th

Breaches of COVID safety protocol by industry during Q3, (ending September 30th 2021)

About GQ|Littler

GQ|Littler is a leading specialist law firm for employers in the UK and Ireland. Offering risk-based contentious and non-contentious advice, our legal service includes employment, immigration, data privacy and employee tax and incentives. Our client base spans a wide range of sectors including financial services, technology, healthcare, professional services and luxury goods, in the UK and internationally. GQ|Littler is recognised as a leader in its field by both Chambers & Partners and Legal 500, which describes the firm as an “excellent team with strength and depth in every aspect.” For more information, visit www.gqlittler.com.

Remote control – how to deal with remote work requests

Remote control – how to deal with remote work requests

While the calendars in empty offices across Ireland still display March 2020, the world has moved on. Nobody talks about “agile working” anymore because it assumes that office working is the default. The talk now is of full remote working or hybrid working, with trips to the office becoming the exception rather than the rule.

In a world where, by necessity, remote working has become the norm, many employees are querying whether they need to fully return to their office once restrictions lift.

What do employees want?

In research conducted by NUIG in April 2021, only 5% of the employees surveyed indicated that they did not wish to work remotely to any extent.

This tallies with our own data, gathered from 1,160 in-house lawyers, C-suite executives and senior HR professionals in the US as part of the Littler® Annual Employer Survey 2021, which found that only 4% of employers believed that most of their employees wanted to return to work fulltime in the office, with 71% believing that their employees favoured a hybrid working model.

What do employers want?

Only 55% of employers surveyed in the Littler® Annual Employer Survey were planning to offer a hybrid working model, while 28% were planning to require that their employees return to the office fulltime.

What this means is that there are a lot of employees who are likely to be disappointed. This provides a glimpse of the tensions to come once offices are fully reopened.

What’s going to happen when offices reopen?

On the current timelines, it’s likely that the right to request remote working will not be introduced until after the current restrictions are lifted. This means that there will be a gap where the law remains unchanged but where employee attitudes to returning to the office have completely altered.

Faced with the prospect of being forced to carry out work in a manner that they have concluded no longer suits them, employees are likely to vote with their feet and resign to seek employment elsewhere. On that basis, even though employers may lawfully require employees to return, it is unrealistic to expect the working environment to immediately snap back to pre-pandemic conditions once offices reopen.

What hybrid arrangements work best?

The simple answer is that no one really knows. This will, in any event, vary from business to business.

When it comes to remote working, there is a scale - with full office working at one end and full remote working at the other. Because of the unprecedented impact of the pandemic, many businesses (and employees) have only experienced life at either end of the scale. However, the difficulty that business face is that all the data suggests that the vast majority of employees don’t want to be confined to either end of the scale.

It may be the case that hybrid working arrangements work best for employees and employer alike. However, it’s also possible that they could result in unfavourable or unforeseen consequences – for example, an office that is principally populated by employees without childcare responsibilities, or a working environment in which “presenteeism” assumes even greater importance than before. However, without actually experiencing it, it is difficult for employers or employees to draw definitive conclusions as to the best way forward. 

So what should employers do?

Employers should reflect on the past 15 months and consider the extent to which business needs are dependent on having their employees on-site – for example, have revenue or employee productivity levels measurably declined during lockdown? Without such data, employers may find it difficult to justify forcing employees to return to the office fulltime as soon as restrictions lift.

For now, a refusal in those circumstances will generally only give rise to the risk of resignation, rather than litigation. However, this will change when the legal stakes rise with the introduction of a statutory right to request remote working (see our note here on the introduction of a right to request remote work).

When that right is introduced, employers who can’t point to a specific, legitimate reason why they are refusing the face will potentially face future claims. Relying on a Company policy that requires in-office attendance, or an intangible sense that it’s “better” for employees to work in the office will not suffice.

What about employers who are reluctant to permit remote working?

Although it’s somewhat counterintuitive, it likely makes long term tactical sense for employers who are reluctant to permit wholesale remote or hybrid working to use this intervening period as an informal trial period to assess whether, and how such arrangements could work for their business.

By framing it is a privilege rather than a right, it will be much easier for employers to reinstate full office working if the hybrid working arrangements that are trialled don’t work out. This avoids a scenario where permanent hybrid working arrangements are conceded (or refused outright) without knowing the potential consequences or being able to give evidence backed reasons.

If the arrangements work well, then there is only upside. Even if the arrangements give rise to difficulties, these difficulties can then be pointed to (and relied upon) as justification to refuse future requests. When the right to request remote work is introduced, it’s likely that employers who choose to refuse all remote work requests now will find it harder to defend future claims, as they won’t have this data to fall back on.

Remote working in Ireland - what's changing?

Remote working in Ireland - what's changing?

The Irish government has recently announced that it plans to provide employees with the right to request remote working. As many employers turn their mind to bringing employees back into the office, what’s the law on remote working in Ireland and how is this set to change?

Is there a right to work remotely in Ireland?

No, unless it already forms part of an employee’s contract of employment or is subsequently agreed to by their employer, employees cannot force their employer to let them work remotely.

Employees can ask to work remotely but an employer can lawfully refuse such a request as long as their refusal isn’t directly or indirectly discriminatory.

Is this set to change?

The Irish government announced in March, as part of its National Remote Work Strategy, that it plans to provide employees with the right to request remote work. It originally intended to introduce this legislation in Q3 2021 but has now indicated that this will be introduced at the end of the year.

Is this a right to work remotely?

No. Contrary to how it has been reported in some places, the Government is not creating a right to work remotely - only to give “the right to request remote work.”

Considering employees already have this right (i.e. they can just ask their employer) the key change is that this new legislation is likely to limit when an employer can refuse such a request and may also give employees a right of action against their employer where such a request is unreasonably refused.

What will change?

Details of the grounds on which an employer may refuse a request for remote work have not yet been announced, nor the potential consequences for refusing the request. However, it is expected that a similar approach will be taken to that in the UK, where the right to request flexible working - and the grounds on which such a request can be refused – has been in place since 2003.

How is this issue dealt with in the UK?

In the UK, flexible working requests can only be refused for a limited number of defined reasons, including cost, an inability to re-organise work or recruit additional staff, detrimental impact on quality or performance, planned structural changes and/or an insufficiency of work during the periods the employee proposes to work. (For more information on the right to request flexible working in the UK see our note here).

Given the broad list of allowable exceptions, a perception exists that UK employers do not have to try too hard to find a reason to refuse a flexible working request. It is likely that a similar list of reasons will be introduced in Ireland, but it remains to be seen if the list will be as broad.

However, given that many Irish employees have been working remotely for 18 months now because of COVID-19 restrictions, it will be a brave employer who argues that it is not a practicable arrangement going forward, when those restrictions are (eventually) removed.

Will the legislation extend to other forms of flexible working?

Remote working is just one example of a far broader range of flexible working arrangements, including part-time, flexi-work, annualised hours and compressed hour arrangements. These types of arrangements are included in both the UK’s flexible working legislation, and the EU’s Work-life Balance Directive, which Ireland is required to implement by no later than August 2022.

The Work-life Balance Directive requires member states to ensure that certain workers have the right to request “flexible working arrangements” which are defined to include not only remote working, but also working schedules and working hours.

However, the government’s Making Remote Work strategy document suggests that only legislation relating to a request to work remotely is currently being planned.

What limitations will be placed on the right to request remote working?

The Work-life Balance Directive is limited to parents and working carers. In the UK, the right to make a flexible working request is confined to employees with more than 26 weeks’ service. Bearing this in mind there may well be some limits placed upon this right before it becomes law, albeit it is not yet clear from the Making Remote Work strategy document what form these limitations will take.

New Gender Pay Reporting - Ireland

New Gender Pay Reporting - Ireland

By Niall Pelly - 9 July 2021

The Gender Pay Gap Bill is about to be signed into law in Ireland. Once in force it will require employers to publish information about the gap in pay between male and female employees. Here are some key things you need to know.

Why?  

The aim is that this will bring pay transparency and help reduce the significant gender pay disparity.  

As of the 2017 statistics from the European Commission Statistics Office, which is the most recent year for which it has statistics available, Ireland’s gender pay gap stood at 14.4% (slightly less than the 14.9% gender pay gap across the EU). Note that in the UK Gender Pay reporting has been a requirement since 2017.

When?

There is no firm date but the government indicated in its recent press release that reporting will begin in 2022 and expects to publish regulations soon after the bill is signed.

Who will it apply to? 

For the first two years the regulations will only apply to employers with at least 250 employees, In the third year it will apply to those with at least 150 employees. Following this it will apply to employees with at least 50 employees.

What?

Employers will need to publish information about:

  • the mean and median gap in hourly pay between male and female employees
  • the mean and median gap in bonus pay between male and female employees
  • the mean and median gap in hourly pay of part-time male and female employees
  • Percentage of male and female employees who received bonus pay
  • Percentage of male and female employees who received benefits in kind

They will also need to publish reasons for the differences and measures being taken to address them.

Much of the remaining detail will be set out in forthcoming regulations. For example, it is not yet clear what class of employee these requirements will relate to, how pay will be calculated or the form and manner that this information needs to be published or how frequently (other than this won’t be required more often than once a year). The categories of information that employers must publish information about could be expanded to include pay data for male and female employees on temporary contracts.

Risks - the bill has bite

The Bill includes a provision that if the Irish Human Rights and Equality Commission reasonably believes the employer has failed to comply with its reporting duties it can apply to the Circuit Court or the High Court for an order compelling the employer to comply. Employees will also be able to complain to the Workplace Relations Commission which, if it upholds the complaint after an investigation, can order the employer to take action. 

Next steps

Much of the detail is unclear pending the detailed regulations. Having said this current government plans to introduce this requirement next year (in 2022) so employers should start looking at data collection, the extent to which they believe they have gender pay gaps and steps to redress them and should keep a close eye on these developments. Note that given the data protection and disclosure risks employers should take advice before gathering this information.


This guide is for information only and is not legal advice. It reflects the position as at 9 July 2021. For any questions, please get in touch with niall.pelly@gqlittler.com or your normal GQ|Littler contact.

Collection of employee vaccination data: Irish and UK regulators take different approaches

Collection of employee vaccination data: Irish and UK regulators take different approaches

By Deborah MargolisDarren Isaacs and Niall Pelly- 1 July 2021

As we look ahead to the re-opening of workplaces, employers are considering if they can collect employee vaccination data. Whether an individual has been vaccinated or not is health data and is therefore a “special category” for GDPR purposes. As such, employers will need to overcome an additional legal hurdle in order for the processing to be lawful.

The position in Ireland

The Irish data protection regulator, the Data Protection Commission (the “DPC”) has recently published guidance for employers on this subject. The position is as follows:

  • In the absence of clear advice from the Irish public health authorities that employers are required to collect staff vaccination data, the processing of this data is likely to be unnecessary and excessive, for which there is no clear legal basis.
  • This is particularly the case where there is no public health advice about what the purpose of such data collection would be - for example, whether employers would be expected to treat non-vaccination staff any differently or prevent them from coming into the office.
  • There are some limited situations (i.e. frontline health services) where the government’s guidance has suggested that vaccinations will be considered a necessary safety measure. In those situations, it is likely that an employer will be able to lawfully process vaccination data.
  • In line with government guidance, there are a number of health and safety measures that employers will need to implement, for example physical distancing, hygiene and face-coverings. Bearing in mind the principle of data minimisation, employers should put these measures in place as a starting point before considering whether vaccination status is necessary.
  • The decision whether to get a vaccine is voluntary and prioritised according to age. Collection is therefore unlikely to be necessary or proportionate in the employment context.
  • Even where an employee is required to self-isolate after travel to Ireland, an employer should not ask an employee’s vaccination status, and instead the employee should only be asked to confirm the day that they will be able to return to work.

This DPC’s guidance is based on the assumption that vaccinations are not required for return to workplace and the collection of such data is not mandatory for employers. It has recently been reported that the Cabinet, based on advice received from NPHET (the National Public Health Emergency Team), has agreed to postpone the reopening of indoor dining until there is a workable plan for customers to prove their vaccination status. If this proposal comes into force, it remains to be seen whether the public health guidance for employers will also change and in turn whether the DPC’s position will change.

The position in the UK

By contrast, the UK’s data protection regulator, the Information Commissioner’s Officer (the “ICO”) has taken a more relaxed approach. The ICO’s view is that “If there is a good reason for collecting information about whether your employee has had the vaccine, there is a lawful basis for processing it”.

Although subject to the same GDPR-based considerations as in Ireland (what the purpose of collection would be and the most recent government/sector guidance, as well as the data protection principles) the ICO’s position is that it is for employers to reach their own conclusion as to whether their reason for recording vaccination status is “clear and compelling”. If an employer has not demonstrated a specified use for collecting this information and it is only being recorded on a “just in case” basis, this is unlikely to be justified. In practice, UK employers will need to take a decision based on relevant factors such as what sector they are in, how their workplace operates (e.g. inside/outside, office/warehouse), how may staff they have, how much face-to-face interaction is required on a daily basis (staff and clients), and how likely their staff are to interact with vulnerable individuals. The ICO will often give employers some degree of latitude in their decision-making, provided the employer keeps a solid written paper trail of how they reached their conclusion and on what basis.

If employers decide that they do need to process vaccination data they should bear in mind all of the usual data privacy considerations:

  • Ensuring privacy notices are up to date;
  • Ensuring appropriate security and confidentiality measures;
  • Considering how long they will need to retain this data; and
  • Completing a data privacy impact assessment (the ICO considers that this data could result in a high risk to individuals) which will set out in detail the reasons for the decision arrived at.

If you would like more information about this topic, or data privacy more generally please contact Deborah Margolis and Darren Isaacs (UK) and Niall Pelly (Ireland).

Employees in Ireland to get right to statutory sick pay from 2022

Employees in Ireland to get right to statutory sick pay from 2022

The Irish government has recently announced plans to give employees the right to statutory sick pay (SSP) for the first time. Up to this point, employers have had full discretion to decide whether or not to provide sick pay. 

The new entitlement will be phased in as part of a 4-year plan, starting with 3 days SSP per year in 2022, increasing to a maximum of 10 days paid SSP in 2025, as follows:

  • 2022: 3 days,

  • 2023: 5 days,

  • 2024: 7 days,

  • 2025: 10 days.

Employers will be required to pay 70% of an employee’s gross wage, subject to a daily cap of €110.  This daily cap is based on the 2019 average weekly earnings and equates to an annual salary of €40,889.16. It may be revised in the future in line with inflation and changing incomes. 

As explained in the Government’s consultation, this change will bring Ireland in line with the majority of EU member states. As explained in the consultation, while the schemes and rates of pay vary across the EU (ranging from 25-100% of pay), almost all EU member states do already have SSP in place and Ireland is currently one of only three member states without it.  

What must employers do?

Once it is in force (likely next year) employers that do not currently offer sick pay entitlements will need to offer mandatory SSP to qualifying employees. They will also need to update their employment contracts and sickness polices to reflect the introduction of SSP as and when it comes into force.

Employers that already offer sick pay are unlikely to be impacted but should update their contracts and sick pay policies to make it clear that any sick pay offered is inclusive of SSP.

Who will qualify for SSP – what have GPs got to do with it?

To qualify for SSP, in addition to having worked for their employer for more than 6 months, an employee must provide a medical certificate in respect of each absence. What this means in practice is a visit to a GP for every sickness absence (even if the employee is only absent for one day due to a common cold!).

It is also not clear whether employees will need to pay to obtain their medical certificates.

The need to provide a medical certificate from day one is notable as in some other jurisdictions, employees can qualify for SSP by self-certifying their sickness. For example, in the UK, an employee who is claiming SSP can self-certify their sickness for the first 7 days and are only required to provide a medical certificate if they are off work for longer than this.

Likely impact on employers

From a practical perspective, because of the current requirement to obtain a medical certificate from day one of their sickness, employees may well decide that the hassle involved in securing a GP appointment outweighs the benefit– particularly if they are also required to pay a GP to obtain it. This may limit the number of employees who take it up.

This is particularly the case for those who are low paid or only absent for one or two days. For example, employees in urban areas can expect to pay up to €65 to visit a GP, which is more than 50% of the SSP daily limit.

Even if the cost is borne by the State, given the sheer volume of medical certification requests likely to arise, it may prove difficult for GP services to meet the new demand (and so for employees to qualify for the payments).

The government has said that SSP will not come into force until 2022. Employers should watch this space to see if any changes are made to the plans in the meantime.


If you require further information or assistance with SSP in Ireland please contact Niall Pelly.

Republic of Labour Law - Irish HR Updates in March

Republic of Labour Law - Irish HR Updates in March

By Niall Pelly and Dónall Breen - 31 March 2021

Welcome to our March edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

This week in the Republic of Labour Law, we discuss family leave entitlements and big changes to our newsletter.

We start with an upcoming change to Parent’s Leave. Currently, Parent’s leave entitles each parent to 2 weeks’ leave during the first year of a child’s life, or in the case of adoption, within one year of the placement of the child with the family.

However, this entitlement will increase from 2 weeks to 5 weeks in April this year. Although the legislation still needs to be officially passed by the government, the change will have retrospective effect meaning the increase is available for any child born or adopted on or after 1 November 2019. Further, the period during which this leave can be taken has been extended from 12 to 24 months. It may be worth updating your family leave policies when you have a moment.

Generally, family leave can be a little confusing in Ireland. This is complicated by Parent’s Leave which is a relatively unique Irish construct. It is an entirely separate entitlement from other family leave provisions and can be taken in addition to them.

By way of reminder, in addition to Parent’s Leave, new parents can also avail of one of the following (subject to certain qualifying criteria):

  • Maternity leave – up to 42 weeks
  • Adoptive leave – up to 42 weeks
  • Paternity leave - 2 weeks

To complicate matters further, parents of children under the age of 12 also have a separate right to 26 weeks of leave called Parental Leave.

For businesses, the important point to note is that there is no requirement for the employer to pay employees during any of the above leave. However, employees may be able to claim some benefits from the government during this time (such as Maternity Benefit).

However, it is worth bearing these various entitlements in mind when developing enhanced family leave pay policies. For example, if your business is offering 10 weeks of paid leave to secondary caregivers, you should be clear whether this includes their entitlement to take Parent’s Leave AND Paternity Leave or not.

In other news, the Republic of Labour Law is changing.

After reviewing the way in which our readers engage with content from this update, we have decided that a dedicated blog would be the best way to keep you updated on developments in Ireland. In next week’s newsletter we will share the link to our revamped Republic of Labour Law and look forward to seeing you there.

Until next time, wishing you all the best from GQ|Littler Dublin.

A global right to digitally disconnect?

A global right to digitally disconnect?

International Employment Lawyer - 25 March 2021

In January 2021, Tánaiste (deputy prime minister) and Minister for Enterprise, Trade and Employment Leo Varadkar published the Republic of Ireland’s first national remote work strategy, which includes a code of practice on the right to disconnect. But, full details of the code are yet to be revealed.

Niall Pelly, head of GQ|Littler’s Dublin office says, “Until some flesh is put on the bones of this proposal, it is difficult to assess how it will compare to the approach adopted in other jurisdictions."It is important to point out though, that even on the limited information provided to date, it looks like what has been proposed falls considerably short of what people may expect.

“The right to disconnect conjures up images of employees being able to refuse work after a certain time each day – essentially, a 21st century equivalent of the steam whistle announcing the end of a factory shift. However, if that is what people think has been proposed, then they are mistaken.”

As Pelly explains, rather than introducing new legislation – or amending existing law – the Irish government has directed the Workplace Relations Commission (WRC) to draw up a code of practice on the right to disconnect.

“Because the WRC has no power to create law, this code of practice will necessarily be based on existing legislation and, by itself, will not be capable of direct enforcement by employees. In essence, the code of practice will not be able to go much further than directing or reminding employers to adhere to existing working time legislation on rest breaks, daily rest periods, and weekly working limits.”

Unintended consequences?

For Pelly, employers have always faced issues around employee availability, but the adoption of remote working, exacerbated by the pandemic, has led to many workers feeling pressured to work longer hours either to get ahead of, or just keep up with, their colleagues. 

“A right to disconnect is seen as an antidote to an ‘always on’ culture,” says Pelly. “Used correctly, it potentially can provide a route to greater equality of opportunity. For example, if the culture of an organisation is that working late into the evening, every day, is actively discouraged, then there is less pressure on employees to log in at all times, and so less likelihood of an overwhelming gap developing between the hours worked by one employee, who perhaps does not have childcare responsibilities, and another, who does.”

“The imposition of certainty on a mandatory basis generally arises at the expense of flexibility, and this equally applies to the right to disconnect,” says Pelly. “Some employees may prefer to take a few hours out of the standard working day to log on later instead. Some employers may have a pressing need for employees to be available at certain times to service customers in particular time zones.

“Most client-facing roles will have ups and downs in terms of workload, and the capacity of employees to fulfil those requirements within their normal working hours will also vary on a day-to-day basis. It is naïve to assume that a one-size-fits-all approach, imposed at a national level, will work for everyone.”

In referencing that it is “aware of the need to find the right balance”, the Irish government’s remote-working strategy document appears to be alive to this issue. However, it remains to be seen where that balance will eventually be struck by the WRC, or if Ireland will join the ranks of Canada, India, and New York City, which have all seen their right to disconnect legislation stall in recent years.  


Read the full article here.

IRELAND: COVID-19 Employer FAQs

IRELAND: COVID-19 Employer FAQs

By Niall PellyDarren Isaacs and Dónall Breen - (Updated 4 March 2021)

The following frequently asked questions (FAQs) are designed to address some of the more common questions that employers with operations in Ireland currently face. Employers are also encouraged to consult relevant FAQs put forth by the World Health Organization (WHO) and the Irish government.

We highlight questions as *UPDATED* where the answers have substantively changed since our last FAQs. As this continues to be a fluid and rapidly-changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large. Accordingly, employers should consult with their employment counsel to keep updated on any new legislation or related legal development.

TRAVEL RESTRICTIONS

1. Should an employer restrict travel to areas with high levels of cases?

Employers with Irish employees should follow the Department of Foreign Affairs and Trade country advice guidance for the specific destination, and generally follow the Irish government's advice to employers. The Department of Foreign Affairs and Trade advises against all non-essential travel overseas until further notice. 

With limited exceptions, all arrivals into Ireland must restrict movement for 14 days and provide a negative Covid test.

2. What should an employer do if an employee shares that they plan to travel abroad?

Employers cannot restrict an employee’s personal travel, however, the government guidance for returning travellers above should be followed. An employer must ensure that returning travellers do not return to the workplace for the requisite quarantine period.

3. How should an employer handle employees who have family members who have travelled abroad?

Employees who have had a family member travel to affected areas should contact their local Department of Public Health upon their return.

An employer may wish to do an individualized risk assessment and determine whether to have the employee stay home or work from home, for example, depending on whether that employee has had close contact with the affected person.

4. Can we prevent employees from traveling abroad for personal reasons?

Probably not in most cases. But an employer can institute a requirement that employees disclose their plans so that they can take steps to ensure health and safety in the workplace.

An employer might be able to refuse (or revoke) holiday approval in certain situations. For example, approval potentially could be denied if: (1) an employee discloses that they intend to travel abroad and so they may be required to be under quarantine upon their return; and (2)  the employee cannot work from home on return and the employer cannot do without the employee for that length of time.

Note that government guidance is subject to change at any time, and employers should stay informed and follow government advice (see here).

DISCRIMINATION LAW

5. What discrimination issues should employers address/be aware of? 

Preventing travel may indirectly discriminate against certain employees, e.g., employees from other countries. However, it is a defence to a claim of indirect discrimination that the action is a proportionate means of achieving a legitimate aim (i.e., to protect the health and safety of others in the workplace and following government advice). An employer could ask employees to notify them of travel to an affected area and require them to take extra holiday (or unpaid leave) to self-isolate at home after returning.

6. What are the employer’s obligations to prevent harassment of those suspected of being infected?

Employers should have anti-harassment policies and training to prevent harassment in order to mitigate risk for harassment, as employers will be vicariously liable if their employees harass colleagues and the employer failed to take “all reasonable steps” to prevent it. Employers may wish to include an anti-harassment reminder to employees in their communications about steps being taken in relation to COVID-19, and refer employees to relevant policies in place.

DISABILITY LAW

7. Can employers take the temperature of employees who are coming to work?

This is recommended under the Work Safely Protocol and accompanying guidance. Employers who wish to start temperature checking should manage their risk of breaching data protection law by undertaking a risk assessment (setting out the legal basis they are relying on) and not processing the health data for any longer than is absolutely necessary or for any other reason i.e. do not keep a log of employee’s temperatures.

8. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?

Employers cannot subject employees to testing for COVID-19. Employers can require an employee who is not feeling well and has travelled from abroad, or who has had contact with someone who has been diagnosed, to self-isolate at home for the recommended period. Employers can also encourage an employee to seek medical advice and instruct them to remain away from work for the full recommended period of self-isolation unless they are tested and cleared. (See below for guidance on whether this time must be paid.)

SAFETY & HEALTH RULES

9. *UPDATED* Are non-healthcare employees required to wear respirators or other personal protective equipment?

Not unless the employee is required to wear a face mask in accordance with government’s public health rules e.g. the employee is working in a retail environment.

10. Can an employer with a public-facing business, prevent employees from wearing a surgical mask or respirator?

No.

11. What if an employee requests not to wear some type of mask as an accommodation?

An employer should have a discussion with any employee making a request related to a medical condition to determine the reason for the specific request. It may be appropriate to seek medical advice about the best approach - an employer should not make assumptions about medical matters. Alternatives should be considered, such as face shields or working in a different role from home.

12. For employers that have events for large gatherings scheduled, should they cancel them?

Yes. There are very few public gatherings permitted at present.

IMMIGRATION

13. Has your country’s government issued travel advisories? (If so, please summarise the guidance and provide a link to the government’s website (if applicable)).

See response to question 1. 

14. An employee who recently travelled abroad is having difficulty re-entering your country: 

(a) How can an employer help the employee get back into their country?

The employer cannot directly help the employee. They may support the employee financially or by offering flexible working arrangements, though. Seek legal and tax advice on specific situations, as there may be tax and other potential consequences to remote working from a different country.

(b) In the case of a foreign employee, will the government’s travel advisories affect an employer’s ability to get the foreign employee back into the country? 

Yes, this is likely going to be a problem with employees returning from overseas, but it will be based on their travel and not on their nationality per se.

UNEMPLOYMENT & OCCUPATIONAL RISK LIABILITY

15. Do employer-instituted quarantines or temporary shutdowns or mass lay-offs entitle workers to unemployment benefits or severance?

Yes, employees and self-employed workers who have lost their job because of Covid-19 are entitled to a special COVID-19 Pandemic Unemployment Payment. See a summary of employee entitlements here.  

The government has set up an Employment Wage Subsidy Scheme, details of which can be found here

16. What are an employer’s workers compensation obligations if an employee travelled to an affected area for work and contracted COVID-19?

If the contract of employment provides for company sick pay, then it should be paid as a matter of contract law. Otherwise, an employer does not have to pay wages for employees who do not turn up to work (but may do so if they wish as a matter of policy).

WORKS COUNCIL/INDUSTRIAL UNIONS

17. In the event of a government-declared quarantine or state of emergency, does your country’s law override contractual provisions and allow for actions that might contradict a collective bargaining agreement (CBA)? 

Such powers have not currently been implemented.

PRIVACY

18. According to your government’s health department, what are the steps that employees should follow to notify the authorities that they suspect or are confirmed to have a COVID-19 infection?

Individuals who are unwell and have symptoms of COVID-19 should contact their local Department of Public Health or 999 if an emergency (if they are seriously ill).

19. Can an employer require employees to self-report if having a COVID-19 infection?

If they are tested and confirmed positive, this information will already have been handled in accordance with government guidelines.

20. If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?

Employees are protected by data protection law especially in relation to health data, which is “special category personal data.” Processing such data is limited to specific legal grounds, one of which could be that it is necessary for the purposes of obligations imposed by law in relation to employment (which arguably covers an employer’s health and safety duties). Any communication of health data must be in order to meet the employer’s health and safety obligations and must be necessary and proportionate to this purpose.

In accordance with these principles, if an employee has been diagnosed with COVID-19, an employer may have a duty, either express under new government advice or implied as part of its general health and safety duty, to warn staff who have been in contact with the employee. The employer should then direct them in accordance with then-current government guidance (seek medical advice, self-isolate etc.).

If possible, such a warning should be given to those potentially exposed without specifically identifying the diagnosed employee or sharing identifying information more broadly than necessary.  

21. What privacy concerns do we need to be aware of when we are asking for the health information of our employees in order to evaluate whether they need to be quarantined?

See response to question 20. In asking for health information, as this is special category data, the employer should be satisfied they have a legal basis on which to process the data. Without such a legal basis, an employer can impose a presumptive 14-day quarantine if there are reasonable grounds for concern that the employee could expose others in the workplace to COVID-19, e.g., if they have recently returned from overseas. An employer can impose the applicable quarantine period in such a case subject to the employee being medically cleared to return sooner.

Employees will be advised to isolate themselves and not to work in contact with other people by the Department of Public Health if they are a carrier of, or have been in contact with, an infectious or contagious disease, such as COVID-19.

Employers should use reasonable discretion around the need for medical evidence for a period of absence where an employee is advised to self-isolate due to suspected COVID-19.

22. Please provide URL link to or copy of any government form required to notify relevant authorities of a COVID-19 infection, if one exists.

An employee may be diagnosed only by a medical professional, who then will inform the relevant authorities. If an employer needs advice in relation to disinfecting the workplace and protecting other employees after an employee has a confirmed diagnosis, they should contact the local Department of Public Health.

PLANNING FOR RETURN TO WORK

23. *UPDATED* Has the Irish government announced when they plan to ease any current restrictions or instructions on freedom of movement/business openings, or when such a decision will be taken? 

Yes, the government has published the COVID-19 Resilience and Recovery 2021 - The Path Ahead

24. When will restrictions be eased?

The reopening of the society and business will take place based under a framework of restrictive measures depending on the spread of the virus. Areas with the highest infection rate will be moved to higher levels of restrictions. Currently the entire country is on Level 5, which is the highest level of restriction.

25.  What has been announced about how restrictions will be eased?

The 'COVID-19 Resilience and Recovery 2021 - The Path Ahead' gives a breakdown about how each sector of society may be reopened under each framework level. There is currently no guidance when Ireland will move to a lower tier, as this will depend on infection rate. 

26. Is the general public going to be required to wear masks and gloves in public spaces?

Wearing a cloth face covering is recommended in almost all indoor, public situations. Face coverings are mandatory on public transport and in all retail and service locations (including supermarkets). Gloves are not mandatory.

27. What, if any, “social distancing” guidelines will be applicable to employers (e.g., employees must wear masks; business must implement staggered work start/stop times; physical space separating employees must be at least six feet; etc.)?

The Irish government has published its Work Safely Protocol which details practical steps employers must take depending on the working environment. This includes social distancing, staggered working times and temperature checking in line with public health guidance. The full protocol can be found here.

Under Level 5, only essential workers should travel to work. All other employees should work from home unless they are providing an essential service and need to be physically present.

28. Will employers be permitted to take the temperature of employees, and if so, what compliance steps are required (e.g. written consent, data privacy notice, etc.)?       

Yes, in line with public health guidance and the usual other principles i.e. data protection law, employment law, medical record laws etc.

29. Will employers be able to require nonemployee visitors (suppliers, delivery personnel, customers, etc.) to submit to temperature testing before entering premises?

There is no guidance in this respect, therefore the usual principles apply i.e. data protection law, criminal law in relation to assault, medical record laws etc.

It is likely to be reasonable and lawful to do so in most situations.

30. What are the steps that employers should follow to notify the authorities that they suspect or are confirmed to have a COVID-19 infection?

At present, there are no mandatory reporting requirements if an employee has a suspected case of COVID-19. However, as a matter of health and safety, the employer should not permit the employee to attend the workplace if they reasonably believe this may cause a safety issue for other employees.

31. Can an employer require employees to self-report having a COVID-19 infection or other relevant health information (e.g., symptoms of COVID-19)?

The Government has not issued specific guidance on whether an employer can require employees to self-report a COVID-19 infection or other relevant health information, such as symptoms of COVID-19. 

As the collection and sharing of data about the health of a worker is highly regulated under Irish and EU law (including under GDPR), employers will need to balance their data protection and privacy obligations and their health and safety obligations to their employees in general. In practice, employers may decide that the latter takes precedence, and require employees to notify them of COVID-19 infections or risks. If they do so, they should ensure that any health information obtained is kept confidential. Employees should be informed of the infection risk, but the identity of the affected employee must not be disclosed. Employers should ensure they remind employees that they should stay home if they (or anyone in their household) has COVID-19 symptoms, in line with government guidance.


Littler will continue monitoring employment law developments resulting from the spread of COVID-19, and our additional guidance is available here.

Irish court clamps down on employee injunctions in landmark judgment

Irish court clamps down on employee injunctions in landmark judgment

By Niall Pelly - 26 February 2021

Last week the Court of Appeal handed down a landmark judgment which will significantly scale back the potential for employees to seek an injunction to prevent them being removed from their job. The judgment should make it far easier for businesses to remove poor performers.

The key takeaways of this ruling are:

  • The judgment will rebalance power dynamic between employees and employers
  • The decision could stem the flow of employment injunctions which are a huge time and cost burden on businesses

Employee injunctions pose a huge problem for Irish businesses seeking to terminate the employment of underperforming senior management. By effectively restricting injunctions to cases where an employee is threatened with dismissal for misconduct, this Court of Appeal decision (in Donal O’Donovan v Over-C Technology Limited and Over-C Limited) is likely to significantly reduce the circumstances in which an injunction can be successfully sought.

The case related to the termination of employment of the Chief Financial Officer of Cork-based technology company, Over-C Technology Limited in January 2020. The employee was still on his probation period at the time. After being told his contract was being terminated, he successfully applied for an injunction to restrain the company from effecting the termination. The Court of Appeal overruled the High Court decision to grant an injunction preventing his dismissal.

The original High Court decision attracted considerable attention as it undermined the ability of an employer to dismiss an employee during their probation period.

Employee injunctions are typically sought by an employee to restrict the termination of their employment. These orders force businesses to reinstate the employee into their role until a full hearing, which usually take at least 9-12 months to be heard. This means the business has to retain the employee on their payroll in the meantime, which can be extremely costly, or effectively forces the employer to “buy them out” of their contract, by paying them a large premium to leave.

Under the terms of these injunctions employers are often unable to publicise the departure or appoint a successor, which can create significant disruption if the employee concerned holds a senior position.

This may be one of the most important employment law decisions in Ireland in years. It will considerably rebalance the power dynamic between employees and employers during contentious dismissals.

Injunctions can cost businesses hundreds of thousands of euros to defend, and can take months if not years, to settle. But it’s not just the cost that concerns employers. Often the issue of greater concern is the uncertainty, instability, and managerial deadlock that results - particularly when it involves member of senior management.

This case is particularly important in making it clear that injunctions should be limited only to cases where an employee is being dismissed for misconduct, and especially so where an employee is still in their probation period.


If you would like to discuss the above case or if you have any other queries related to employment law in Ireland, please get in touch with Partner and Head of Dublin office Niall Pelly.

Republic of Labour Law – Irish HR Updates in February

Republic of Labour Law – Irish HR Updates in February

By Niall Pelly and Dónall Breen - 26 February 2021

Welcome to our February edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

This week in the Republic of Labour Law, we focus on two key cases that have been making headlines.

Employment Injunctions

First is a recent ground-breaking judgment from the Court of Appeal.

The second highest court in the land has effectively clamped down on employment injunctions, a welcomed decision for employers. The significance of this case was first published by GQ|Littler and subsequently picked up by several media outlets.

A wide-ranging decision, our full article can be found here.

Working from Home

In another widely publicised case, an employee was found to have been constructively dismissed following her employer's refusal to allow her to work from home during the Covid-19 lockdown. This case was brought in the first instance Workplace Relations Commission (WRC). Decisions of the WRC are not binding on subsequent WRC adjudicators, and each case will turn on its particular facts. However, decisions like this can be used as persuasive authority in other hearings with similar facts.

The employee, an accommodation manager, lived with clinically vulnerable relatives. She requested to work from home several days a week to mitigate the risk of infection on those days. The employer rejected this request, claiming she was always required on site. The employee resigned in response to this and brought an unfair dismissal claim.

The WRC found that the employer had acted unreasonably in refusing the employee's request to work from home in rotation with other accommodation managers for three reasons: (i) the role involved some project management that could be done from home; (ii) the idea wasn't trialled to see whether it could work; (iii) the end client had not complained about the arrangement and had provided laptops to facilitate the remote working. Further, the WRC found that the employer's provision of PPE was not an alternative to mitigating the risk of infection that being able to work away from the office would provide.

The case did not concern a general right to work from home and there is currently no statutory entitlement for employees to request a home working arrangement (although see our January edition for news in this area).

It is unclear if the decision will be appealed. However, given the particular facts of the case (i.e. the unexplained failure of the employer to properly consider the employee's remote working proposals) and the relatively modest award (€3,712) this seems unlikely.

Finally, in other news, the Government has announced that the current rates of subsidy provided by the Employment Wage Subsidy Scheme (EWSS) will remain in place until 31 March 2021. This has been aligned with the extension of the rates of the Pandemic Unemployment Payment. Although the Government recently announced that many parts of the economy (such as hospitality) will continue to be closed until the summer, there has been no further update regarding the EWSS.

In the meantime, from all of us here at GQ|Littler Dublin, wishing you all the best.

Court of Appeal clamps down on employment injunctions

Court of Appeal clamps down on employment injunctions

By Niall Pelly and Dónall Breen - 22 February 2021 

In a landmark judgment that will be welcomed by employers, the Court of Appeal has overturned a High Court decision that potentially undermined the freedom of employers to dismiss an employee during probation.

However, the decision has far reaching consequences beyond probationary dismissals. In making it clear that employment injunctions should be limited only to cases where an employee is being dismissed for misconduct, the case appears to have made it significantly more difficult for employees to secure an employment injunction outside of this narrow scope.

Background

In June 2020, in Donal O’Donovan v Over-C Technology Limited and Over-C Limited, the High Court granted an injunction preventing a Cork-based technology company from dismissing its then CFO on grounds of poor performance. The injunction was primarily awarded on the basis of the employee presenting a strong case that he was entitled to fair procedures in the assessment of his performance before being dismissed.

The case attracted widespread attention as the employee was in his probationary period at the time, with many commentators pointing to the case as evidence of a willingness on the part of the Irish courts to extend the remit of employment injunctions.

If that was the direction of travel of the Irish courts, the Court of Appeal has brought that journey to a shuddering halt.

Employment injunctions

Employment injunctions (i.e. injunctions to restrain the dismissal of an employee) are an unusual feature of Irish law in that they essentially prevent an employer from relying on the express terms of a valid contract – namely, the power to terminate it on notice. This is because the courts, in certain circumstances, are willing to impose an obligation on an employer to apply fair procedures before dismissing an employee.

This obligation is ultimately derived from an employee’s constitutional rights, and so takes precedence over the contractual terms agreed between the parties. The question that has vexed employers is when this constitutional right is triggered, and under what circumstances.

The consequences for an employer in getting this question wrong can be severe. For example, where an employee secures an employment injunction, their employer is typically required to retain them on their payroll until a full hearing, which usually takes at least 9-12 months to be heard. Under the terms of an injunction, employers may be prevented from appointing a successor or even advertising the role, which can create significant disruption if the employee is in a senior position.

The costs of defending an injunction are substantial, as is the ongoing cost of retaining an employee on payroll where an injunction is awarded. But it is often the uncertainty, instability, and managerial deadlock that can arise when senior management are involved that presents the biggest risk to an employer.

This is reflected in the fact that, rather than face the prospect of a potential injunction, employers often choose to adopt a “no-fault termination” approach. This approach minimizes the risk of an injunction, but at the expense of paying out (or buying out) a statutory unfair dismissal claim (which in Ireland, is a separate claim an employee with more than 12 months’ service can bring and is likely to succeed if there is no formal process followed).  

Given the risks involved, it’s fair to say that employment injunctions are one of the greatest concerns for employers in Ireland, particularly multinational employers who are more familiar with “employment-at-will” concepts.

It is relatively unusual for employment injunction cases to reach the Court of Appeal, but as decisions of the Court of Appeal are binding on all lower courts (e.g., the High Court) until such time as they are overturned or distinguished, the impact of these judgments can be profound. It’s against this background that the Court of Appeal judgment in this case provides some much-needed certainty for employers.

Court of Appeal reverses High Court judgment

At a minimum, in order to secure an injunction that requires an employer to retain them in employment, an employee must establish that they have a strong case of succeeding in a full trial. This means that they must establish that they have an entitlement that requires protection (e.g., a contractual or constitutional entitlement) and that there is strong likelihood that their employer has (or intends to) breach that entitlement.

In this case, the Court of Appeal decided that the trial judge “had erred when he held that Mr O’Donovan had a strong case that he was entitled to fair procedures in relation to the assessment of his performance during the period of probation, or in relation to the termination of his employment, or in relation to any appeal against the termination of his employment”.

In essence, because Mr O’Donovan was not entitled to fair procedures arising from a performance-related dismissal during probation in the first place, he could not then seek an injunction to prevent a breach of any such procedures.

While this case related to a dismissal during probation, the court’s assessment of the law as it stands - in particular, the circumstances in which an employment injunction may be awarded - was not restricted to those narrow confines. It’s this assessment that looks likely to have a major impact on the law in this area into the future and provides the main takeaways for employment lawyers and HR professionals.


Key takeaways of the Court of Appeal judgment

  • Fair procedures do not apply during a probationary period (except in cases of misconduct)

    The Court of Appeal could not have been clearer in stating its position on the applicability, or otherwise, of fair procedures during probation:

    “I do not accept that a court can imply a right to fair procedures – still less uphold a cause of action for the breach of such an alleged right – in relation to the assessment of an employee’s performance by an employer (other than for misconduct, which does not arise here) during the probationary period, as this would negate the whole purpose of a probationary period.” (emphasis added) 

    In short, unless there is an express contractual provision to the contrary, the Court of Appeal has held that an injunction cannot arise for a performance-related dismissal (other than one for misconduct) during probation.

    Employees on probation will generally have less than one year’s service and so are not eligible to bring an ordinary unfair dismissal claim. In recent times, it has become more common for employees with less than the requisite service to bring a claim under the Industrial Relations Acts instead. A claim of this nature is non-binding on an employer, but can attract negative press coverage – for example, the 2018 case involving the Park Hotel Kenmare.

    However, as these types of claims are also based on an alleged breach of fair procedures during probation, the reference to not upholding “any cause of action for the breach of such an alleged right” in the court’s judgment appears to also knock out the possibility of an employee seeking relief under the Industrial Relations Acts.


  • Except in cases of misconduct, there is nothing to prevent an employer relying on contractual termination provisions, whether during or after probation

    In paragraph 59 of her judgment, Costello J. identified and upheld two relevant principles arising from existing case law, as follows:

    “Firstly…an employer can terminate employment for any reason or no reason, provided adequate notice is given. This applies whether or not the dismissal occurs during the probationary period. Secondly…the principles of natural justice apply to cases involving dismissal for misconduct, but not to termination on other grounds.” (Emphasis added)

    It is clear from this passage that these principles are of general application and are not confined to probation only. This is consistent with the fact that, of all the Irish cases cited by the court as forming the legal basis for these principles, none relate to a dismissal during probation. If a contract permits termination on notice, then the court is clear that an employer is entitled to rely on that entitlement whether during or after probation, except in cases of misconduct.

    Although it reflects existing law, a confirmation of this nature from the Court of Appeal is important in terms of providing certainty, particularly in the context of “no-fault” terminations. By clearly limiting the scope to misconduct dismissals, the circumstances under which an employee can successfully obtain (or even threaten) an injunction will also narrow.

  • Dismissal on grounds of poor performance in isolation does not trigger an entitlement to fair procedures - there must be an allegation of improper conduct

    This case turned on whether fair procedures apply in a case of dismissal for poor performance only. On this point, the court noted that “there is no suggestion that the principles of natural justice must be applied where an employer terminates the employment contract of employee on the grounds of poor performance”.

    While there could be circumstances where an entitlement to fair procedures might arise, the court also notes and applied the principle identified in the Supreme Court Maha Lingum decision that “a dismissal by reason of an allegation attracts the right to fair procedures, whereas a dismissal in the absence of an allegation of improper conduct does not attract such a right".

    On the basis of this judgment, it appears that an allegation of improper conduct on the part of an employee, and not just poor performance, is a necessary requirement before any right to fair procedures is triggered. This will also likely serve to limit the extent to which employees can obtain or threaten an injunction.


Future impact

The judgment in this case provides a clear, unequivocal assessment of the circumstances in which (in the absence of express contractual provisions to the contrary) an employment injunction may be awarded - and, perhaps more importantly, when it generally will not. That it comes from the Court of Appeal means that it is binding on lower courts.

While the facts of this case are confined to a dismissal during probation, the assessment of the underlying law relating to employment injunctions undertaken by the Court of Appeal is not. In making it clear that imputed misconduct is an essential element for the triggering of constitutional protections, and especially so where an employee is still in their probation period, the Court of Appeal looks to have drawn a line in the sand when it comes to the future award of employment injunctions by Irish courts.

An employment injunction is often the most effective weapon an employee can utilise to challenge their dismissal. While it will not have any impact on an employee’s entitlement to seek relief under unfair dismissal or other employment legislation, this judgment is likely to considerably rebalance the power dynamic between employees and employers during contentious dismissals. In particular, by providing greater certainty on the limited scope on which employment injunctions should be awarded, this judgment is likely to make it more difficult for an employee to secure (or at least threaten) an employment injunction.


If you would like to discuss this article or have any other Irish related employment queries please get in touch with Niall Pelly.

Republic of Labour Law – Irish HR Updates in January

Republic of Labour Law – Irish HR Updates in January

By Niall Pelly and Dónall Breen - 28 January 2021

Welcome to a very special January edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

This week in the Republic of Labour Law, we look at the year ahead, and what to expect in 2021.

We start with a very special update of our own. GQ|Littler has expanded to Dublin and we are very proud to announce that our Irish office is now open for business. For further details, see here.

As we look forward to the year ahead with excitement, we also look ahead to what employment law changes we expect in over the next 11 months:

Government Support Schemes

The government continues to support employers with a variety of grants and payments, the centrepiece being the Employment Wage Subsidy Scheme.

It is due to end on 31 March 2021, but like so many Covid-related measures, we would not be surprised if this were extended again.

However, the harsh reality is that the government will need to turn off the tap at some stage. We expect the Employment Wage Subsidy Scheme will eventually wind up at some point next year – or perhaps change into a different form.

Statutory Sick Pay

In December, the government closed a consultation regarding the introduction of a statutory right to employer paid sick leave.

There is currently no legal obligation on employers in Ireland to pay workers during periods of illness, instead workers must rely on the state paid Illness Benefit if there is no company sick pay. This makes Ireland an outlier in the OECD, and certainly in the EU.

It is widely anticipated that (spurred on by Covid related sickness absence) the government will introduce legislation this year that will require employers to start paying sick pay.

Gender Pay Gap Reporting

As we previously reported, Gender Pay Gap Reporting was put on hold in 2020. Will 2021 be its year?

It looks increasingly likely, with the Minister for Children, Equality, Disability, Integration and Youth committing in late December to bring a “strengthened” Gender Pay Gap Information Bill to the Cabinet in January this year – see here. There have been no further announcements as of 28 January, but we expect news soon.

The introduction of the UK style reporting requirements has been stuck in legislative limbo for over a year now, but with this latest news we think it would be prudent for HR teams to consider preparing for its imminent introduction.

Workplace Relations Commission

Ireland’s employment dispute resolution system, the Workplace Relations Commission, is currently under attack as being unconstitutional. The Supreme Court decision on this case is due in the coming months which may have significant changes for employee litigation.

Government Initiatives

The government has signalled that several changes to employment work and practice are coming down the line.

The most significant was a headline grabbing publication of the ‘Making Remote Work: National Remote Work Strategy’. The report, amongst other things, committed the government to legislating for the right of employees to request remote work by Q3 2021 and introducing a Code of Practice on the right to disconnect by Q1 2021. For the full report, see here.

Another Code of Practice that was updated was the 'Code of Practice on the Prevention and Resolution of Bullying at Work'. The new Code replaces and updates separate codes that were previously published on these topics. The Code provides guidance on good practice and procedures for addressing and resolving issues around workplace bullying. It also provides practical guidance to employers on how to fulfil their statutory duties when it comes to identifying, managing and preventing bullying at work.

Failure to follow a Code of Practice is not in itself an offence. However, a statutory Code of Practice is admissible in evidence in any relevant proceedings before the Workplace Relations Commission and/or the Labour Court. If applicable, in assessing the potential liability of an employer for breaches of employment law, the extent to which an employer has complied with a relevant Code of Practice is not determinative but can be taken into account.

In conclusion, after a hectic year for employment law it looks as though there are plenty of changes that remain on the horizon. Along with everyone else, we hope these changes are those we freely choose to make this year.

In the meantime, from all of us here at GQ|Littler (Dublin and London), wishing you all the best.

Republic of Labour Law – Irish HR Updates in December

Republic of Labour Law – Irish HR Updates in December

By Dónall Breen - 17 December 2020

Welcome to our December edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

This week in the Republic of Labour Law, we look at the employment law winners and losers from 2020.

In January, Brexit was the headline. In December, Brexit is the headline once more. There is a grim symmetry to this year’s news cycle which was largely filled with Covid.

What has that meant for Irish employment law? A lot. And better for some than others.

Winners:

  • Sick Pay – Ireland is an outlier in Europe in that there is no mandatory, employer paid sick pay. This may all change next year as Covid related sickness absences brought the issue to the fore. There is nothing concrete announced yet (aside from a government commitment to tackle the issue) but watch this space.
  • Pension Autoenrollment – The programme for government has stated that mandatory employer contribution pensions are on the way in. This was somewhat expected, and we anticipate it will mirror the UK system to a large extent. Again, no firm details yet.
  • Government Support Programmes – From the Pandemic Unemployment Payment, to the furlough scheme, from business grants to bail outs. It has been one hell of a year for government intervention. Like governments all over the world, the Dáil has splashed the cash to try keep the wheels moving. How long this will last into the future seems to be a function of our success in battling the pandemic.
  • Working from Home – Lockdown, restrictions and a change in the working world have meant offices from Galway to Grand Canal Dock have lay empty for a large part of the year. The government advice has been almost consistently ‘work from home’ if you can. Despite what online commentators will tell you, the full impact of this is yet to be known. However, as a signpost to the future, the government has said they are looking to make this shift a more permanent feature of Irish working life.

Losers:

  • SEOs - The High Court ruled that a sectoral employment orders (SEO), issued by the government that set out pay rates, pension and sick pay entitlements, was unconstitutional. Whether they will be replaced (again!) is unknown.
  • Gender Pay Gap Reporting – Was put on hold. Again. The introduction of the UK style reporting requirements has been stuck in legislative limbo all year, but we expect it will be finally introduced next year. Although, that is what we thought last year…
  • The UK – With Brexit steaming at full throttle over a cliff edge, more and more companies have been turning to Dublin as an alternative. Ireland will ultimately share the pain of any no deal Brexit, but that will be somewhat offset by winning these new corporate citizens.
  • The WRC – The poor Workplace Relations Commission is fighting of its life as a case comes before the Supreme Court to determine if the whole system is unconstitutional or not. It will be another seismic change to Irish employment practice and process if it is struck down.
  • Golf Dinners – And the dawn of ‘Golfgate’. For reference, see here.

 

It has been quite the year. For most, it has been tough. But as we look to a new year, the rays of hope are just about peaking over the horizon.

We have not come this far, just to come this far. In the words of literary giant Samuel Beckett:

“Ever tried. Ever failed. No matter. Try Again. Fail again. Fail better.”

In the meantime, a very merry Christmas, or Nollaig Shona, from all of us here at GQ|Littler.

Republic of Labour Law - Irish HR Updates in November

Republic of Labour Law - Irish HR Updates in November

By Dónall Breen - 30 November 2020

Welcome to our November edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

This week in the Republic of Labour Law, we look at some recent cases from the Irish courts and tribunals.

Unfortunately (fortunately?) there have been very few updates this month that are substantially relevant.

However, there have been several cases reported recently as judgments from the summer are being picked up and more virtual hearings proceed. A selection of some of the more interesting are below:

  • A Garda (police officer) has had his dismissal quashed by the High Court who found that the Garda Síochána (police force) had acted unlawfully in summarily dismissing him for making a false report despite the officer’s underlying PTSD. Although the legislation in question was specific to the public sector, it once again shows the willingness of the Irish courts to interfere in private employee/employer disputes even when they are ongoing (this case was originally brought before the decision became effective).
  • A catering chain has been ordered to pay out €3,500 to a former female employee after a manager circulated two images to staff, including one of himself wearing only his boxer shorts. What is interesting here is that the photos were sent to a large WhatsApp group (with both males and females) and the photos were not targeted at the claimant. Nonetheless, the tribunal found that there were failings in the preventative stage and made the award. As work WhatsApp groups become more prolific, and blur the lines between work and private ‘banter’, it is a timely reminder of how employers can still be on the hook outside of traditional communication spheres.
  • An employee has successfully won a constructive dismissal claim due to her employer providing an unfavourable reference. The facts are somewhat convoluted, but the easiest way to describe it was that there was an internal promotion in which a former manger provided a poor reference for a former assistant. Although the case was not defended (which is unusual), the interesting takeaway is that the tribunal found that a bad reference was sufficient to establish a constructive dismissal claim. Providing anything other than a factual reference can cause difficulties, even if they are positive statements for former employees. The safest advice is to say as little as possible, as cold as that may seem.

That’s all for this month. In the meantime, stay safe and enjoy the Christmas preparations.

Republic of Labour Law – Irish HR Updates in October

Republic of Labour Law – Irish HR Updates in October

By Dónall Breen - 30 October 2020

Welcome to our Halloween edition of Republic of Labour Law, a spooky newsletter in which we distil the most frightening Irish legal and HR updates from the last month in 500 words or less.

For those of you who do business in Ireland, this should be your one stop shop trick or treat for what you need to know.

This week in the Republic of Labour Law:

  • Lockdown 2.0
  • The Budget
  • Key Case Law

Lockdown 2.0

It was somewhat inevitable; Ireland has effectively gone into a second lockdown.

The government has moved the entire country to ‘Level 5’ - the highest level of restriction. Although schools are still open, most businesses will need to close. Advice is to stay at home and exercise within 5km of your house.

For employers, the advice is that staff should work from home unless they are providing an essential service for which their physical presence is required. There is a surprisingly long list of what is deemed essential (see here, even lawyers make the list) but the key question will be whether physical presence is required.

Further information on what a Level 5 lockdown means can be found here.

The Budget

Death and taxes always remain a certainty, and the pandemic has shown that taxes are keeping up their fair share of that adage. 

The Budget, delivered on 13 October, saw no major surprises. The key takeaways are that:

  • Minimum wage will increase to €10.10 from January;
  • The state pension age will not increase to 67 in 2021 as planned;
  • As already announced, the Employment Wage Subsidy Scheme will run until 31 March 2021. However, it was announced last week that the lowest contribution amount will increase to €350 per week to bring it in line with the Pandemic Unemployment Payment;
  • Entitlement to Parents’ Benefit will increase from two weeks to five weeks from April 2021.

Finally, the government also announced that employees will be eligible for Illness Benefits from the third day of sickness absence (rather than the sixth). By way of reminder, Ireland is an outlier in Europe as there is no employer sick pay requirement - only the state paid Illness Benefit. The Labour Party (who are not in government) have proposed changes to this and it seems the government are going to review their proposal. So, watch this space.

Key Case Law

There has been one interesting case this month which is worth a closer look.

The Labour Court set aside a settlement agreement, signed by the employee, on the basis it did not validly waive the right to bring an unfair dismissal case.

Some legal background is necessary here:

  • In Ireland, it is not a requirement for the employee to see an independent adviser in order to validly sign a waiver/settlement agreement;
  • However, free and informed consent to any waiver is one of the key considerations that differentiates a genuine bargain to settle dispute and an unlawful attempt to exclude or limit employment protections.

In this case, the employee’s first language was not English, he signed the settlement agreement very soon after being informed he was being made redundant and the employer could not recall if they had advised him to get independent legal advice.

The Labour Court decided it wasn’t valid and the employee was entitled to bring an unfair dismissal claim. However, his final award was offset against the payment already made under the agreement.

The case is a harsh reminder to employers that, even if there is no legal requirement, employees who sign waivers with no legal advice will leave a residual risk of a claim in the future. To mitigate this, employers should advise the employees to get advice (and keep a record of it), give the employee time to sign and take each case on its own facts.

That’s all for this month. Enjoy your socially distanced, no fireworks, from-home Halloween. I suppose dressing up is still an option! This year I am going to put on my suit and pretend to be an office worker…

Republic of Labour Law – Irish HR Updates in September

Republic of Labour Law – Irish HR Updates in September

By Dónall Breen - 30 September 2020

Welcome to our September edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

For those of you who do business in Ireland, this should be your one stop shop for what you need to know.

This week in the Republic of Labour Law:

  • Resilience and Recovery
  • Gender Pay Gap Reporting
  • PUP
  • Brexit

Resilience and Recovery

In past updates we spoke about Ireland’s phased reopening of society and business. That has now given way to a framework of five increasing levels of restrictions that vary locally depending on the infection rate.

This was all published in the ‘Resilience and Recovery 2020-2021: Plan for Living with COVID-19’. The short version is that Ireland is moving from a short-term emergency response approach to a medium-term approach to managing risk and repairing damage.

Most of Ireland is at Level 2 (see here). For employees, this means work from home if possible. Employees are advised to only attend work for essential on-site meetings, inductions and training. There is no restriction on domestic travel.

Critically, Dublin is one of the places at the more severe Level 3 (see here). This means employees must work from home unless absolutely necessary to attend in person and domestic travel is limited the county of Dublin.

It is worth keeping an eye on the Level rating of the area which your site is based and reading up on what is permitted.

Gender Pay Gap Reporting

Ireland’s gender pay gap reporting legislation has been quietly progressing through the Irish legislative process in recent weeks (thanks to my colleague Layne in Kansas for flagging this to me!).

Although the Irish government has promised the final wording for some years now, this recent process indicates it has been given priority and may be enacted soon. Watch this space.

Pandemic Unemployment Payment

Various changes have been made to the government’s pandemic unemployment payment (which seeks to compensate those who have lost their job due to Covid).

This news will largely be relevant to employees who have lost their jobs, but we wanted to flag that the scheme is now open until the end of the year. It was due to close on 17 September. This may give some comfort to employers who want to ensure employees who are losing their job have some form of safety net on the other side.

Brexit

Has Brexit just gone away?

Absolutely not, and the UK is still hurtling towards a cliff edge on 31 December when the current trade deal runs out. The various political machinations taking place in the background are too intricate to even try to explain here but suffice to say that Ireland still remains poised to see some extreme positive and negative effects if no deal is agreed in time.

If your Irish business will be affected by Brexit, unfortunately it is another issue you need to keep on your radar in the coming months.

 

That’s all for this month. In the meantime, wishing you all the best.

Republic of Labour Law – Irish HR Updates in August

Republic of Labour Law – Irish HR Updates in August

By Dónall Breen - 28 August 2020

Welcome to our August edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

For those of you who do business in Ireland, this should be your one stop shop for what you need to know.

This week in the Republic of Labour Law:

  • Trouble in Paradise
  • The Wage Subsidy Scheme (Rebranded)

  • Statistics

Trouble in Paradise

We start this week with some non-employment related news – but tangentially relevant.

The front pages are dominated by the story of a parliamentary social club dinner where 80 people crowded into a hotel one fine evening. Jammed with former attorney generals, judges and members of parliament (including an EU Commissioner) – it has hit a sore nerve with the public. Certainly not in the spirit of social distancing, and perhaps in breach of the law, heads are rolling as the new government tries to reign in a mass Dominic Cummings-style mishap.

Separately, Ireland has it first large ‘anti-mask’ and ‘anti-lockdown’ protest in Dublin which was attended by thousands.

What does this mean for employers?

In short, Ireland isn’t immune to the populist pushbacks we are seeing in the States and other EU countries. Companies should at least consider how they would handle an anti-masker of anti-vaxxer who insists on coming into the office. Retailers should be thinking the same. Forewarned is forearmed.

Wage Subsidy Scheme

A new Employment Wage Subsidy Scheme will operate from 1 September 2020, expected to continue until 31 March 2021. It will gradually replace the current Temporary Wage Subsidy Scheme which will cease on 31 August 2020.

Revenue (the Irish tax authority) has published guidance for the new scheme which is broadly similar to the scheme it is replacing. For example, the 30% reduction in turnover test remains and the definition of eligible employees is similar. However, there are some differences, so if you are changing from one scheme to the other it is worth reading the fine print.

Interestingly, there is scope to backdate claims for employees excluded from the previous scheme (such as new hires or seasonal employees) - that may be worth checking.

Statistics

Ending on a fun topic, we have two sets of statistics to share.

First, the Labour Court has published its 2019 Annual Report. By way of reminder, the Labour Court is broadly divided between industrial relations work and employment rights work. It hears all appeals from the (first instance) Workplace Relations Commission.

The main takeaway is that the volume of employment rights cases are increasing, as is the percentage of employment rights cases versus industrial relations.

Unsurprisingly, more than half of all cases are concerned three categories: unfair dismissal, discrimination and working time/holiday pay.

Frustratingly, there is no breakdown of compensation amount. However, one eyebrow raising statistic is that only 6% of all unfair dismissal claims appealed were overturned and only 5% of discrimination claims were overturned. Therefore, being successful at first instance remains key.

Finally, statistics from the Irish Health and Safety Authority (HSA) have been published. It seems the HSA have been busy.

Since the economy reopened in mid-May, the HSA has carried out over 9,500 inspections and issued almost 60 prohibition notices (meaning activities must cease). Statistics also revealed that the HSA engages almost 70 inspectors specifically to check for compliance with the Covid-19 Return to Work Safely Protocol.

But the inspection fun doesn’t stop there. There are also an additional 500 inspectors, from the likes of the Workplace Relations Commission, the Department of Agriculture, Food and the Marine and environmental health officers helping to ensure compliance with the protocol.

If you have a workplace in Ireland, be prepared for the inspector to darken your door. Although, from experience, most are pretty sensible and it is a fairly painless process. Ending on a happy note.

That’s all for this month. In the meantime, wishing you all the best.

Republic of Labour Law – Irish HR Updates in July

Republic of Labour Law – Irish HR Updates in July

By Dónall Breen - 30 July 2020

Welcome to our July edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

For those of you who do business in Ireland, this should be your one stop shop for what you need to know.

This week in the Republic of Labour Law:

  • A New Programme for Government
  • The Temporary Covid-Wage Subsidy Scheme
  • Additional Covid Leave
  • SEOs

Programme for Government

We start with some political news. Ireland has a new government!

Leo Varadkar is stepping back (for now) and the leader of the second largest party, Micheál Martin, will become Prime Minister/Taoiseach for a few years - before Leo makes a return. All a little unusual in these unusual times.

The new government is a coalition of the two largest Irish parties (Fine Gael [centre-right] and Fianna Fail [centre-left]) with support from the Green Party [centre-left].

The new Programme for Government is here. Employment law isn’t front and centre ("The economy, stupid"), but there are some key points for employers:

  • The introduction of Gender Pay Gap Reporting (although this was planned in any event);
  • Several new schemes for training and reskilling employees;
  • Encouraging and facilitating a better work-life balance – including a commitment to mandate public sector employers to move to 20% home working in 2021;
  • Proposals on a ‘right to disconnect’, with a role for the Workplace Relations Commission to draw up a code;
  • The introduction of pension auto-enrolment (which sounds very similar to the UK).

Broadly, there doesn’t seem to be much movement on the taxation perspective with the landscape largely remaining the same.

Wage Subsidy Scheme

With a new government we are also getting clarity on other matters. For example, the Minister for Finance has said that the Covid Wage Subsidy Scheme will not end abruptly and hinted that it could last until the end of the year.

Mr Donohoe told the media that he would be looking at all options, but that the scheme would not come to an abrupt end.

Additional Covid Leave

Parental leave will be extended by three weeks to 'pandemic parents', in hopes it will offset the impact of having a child during the lockdown.

Currently, both parents can take up to 22 weeks parental leave and from 1 September 2020, this will increase to 26 weeks. The new leave is expected to be in addition to this.

Although Parental Leave isn’t massively popular, you may want to quickly add a sentence to your handbook (if you have one). You should flag up to managers that parents, in some circumstances, may be entitled to longer periods of Parental Leave by law.

SEOs

Finally, the High Court has struck down legislation that set certain minimum pay and conditions for employees in various economic sectors.

The High Court agreed that a sectoral employment order (SEO), issued by the Government last year setting out pay rates, pension and sick pay entitlements in the electrical industry, was unconstitutional.

SEOs (and a similar agreements called EROs) are mandatory collective arrangements. They are a unique feature of Irish employment law and are largely applicable to low paid or ‘blue collar’ sectors. If the employer is in a business or economic sector subject to an ERO or SEO, then the employer will be required to pay overtime rates as set out in these agreements.

In the event you are subject to an SEO, it may be worth taking advice on what this decision means for you.

That’s all for this month. In the meantime, wishing you all the best.

Republic of Labour Law – Irish HR Updates in June

Republic of Labour Law – Irish HR Updates in June

By Dónall Breen - 30 June 2020

Welcome to our June edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

For those of you who do business in Ireland, this should be your one stop shop for what you need to know.

This week in the Republic of Labour Law:

  • Open for business!
  • The Temporary Covid-Wage Subsidy Scheme - updates
  • Redundancies in Ireland
  • Employment injunctions

Good news at last! After months of working hard but hardly socialising, Ireland is reopening. From 9 July huge swathes of the Irish economy will welcome customers again - from hospitality, to pubs, to retail.

The advice remains that those who can work from home should work from home, so we may not see the IFSC packed full of suits just yet. Foreign travel restrictions largely remain in place and public gatherings above 50 people (indoors) or 200 people (outdoors) remain off limits.

For this reason, the government has also announced changes to the Covid-Wage Subsidy Scheme. It was due to end late June but has now been extended to the end of August – it seems the government anticipates that it will take some time to get everyone back to work.

The government has said it will continue to monitor the situation and decide later in the summer on the need for further extensions or tapering. The eligibility has also been widened to close a loophole where those on family leave were deemed ineligible.

However, the unfortunate situation is that some jobs are simply no longer there anymore, and redundancies will be inevitable.

Clients often ask, ‘how difficult is it to make redundancies in Ireland’? The short answer is – not difficult, but you must follow a process.

The headline points are as follows:

  • Generally, you need to individually consult with employees to avoid unfair dismissal claims
  • If your workplace employs more than 20 people, and more than 5 employees are being made redundant, you may need to collectively consult first which will last at least 30 days
  • Statutory redundancy payments are calculated as 2 weeks’ pay per year of service (capped at €600) plus a bonus week

Those familiar with the UK redundancy process will be in familiar territory but be warned that the threshold for collective redundancies is different in Ireland.

Finally, on a completely unrelated note, the Irish High Court has recently granted an employment injunction. Basically, these injunctions stop a disciplinary process from proceeding if the process is so flawed that the employee’s right to constitutional fairness has been infringed. These are very difficult to secure and seen as the nuclear weapon of Irish employment law - always exciting when one pops up in the wild.

In this case, an investigator (who made a complaint about the employee during the investigation that was dismissed) cleared a social worker of serious allegations but then proposed a new investigation into other claims.

The employer accepted this finding, which the investigator was not in a position to make. The employer then failed to register the employee with the regulatory body meaning he couldn’t work. A new investigation was due to begin.

The judge decided that the whole investigation was flawed, there was an element of predetermination and this may have serious consequences for the employee. He granted an injunction against the new disciplinary investigation continuing and ordered a full hearing on the matter.

That’s all for this month. In the meantime, stay safe but feel free to start wandering out (if you live in Ireland!).

Republic of Labour Law – Irish HR Updates in May

Republic of Labour Law – Irish HR Updates in May

By Dónall Breen - 29 May 2020

Welcome to our May edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

If you do business in Ireland, this should be your one stop shop for what you need to know.

This week in the Republic of Labour Law:

  • Getting back to work
  • Travelling to Ireland and how it works
  • An interesting constitutional challenge

What I am referring to is that we are now approaching phase two of the government plan. If you haven’t seen it yet, I would strongly recommend looking at the Irish government’s five-phase plan for reopening society and business.

Phase 2 means that anyone who can work safely while maintaining a two-metre distance can go back to work. The good news for employers is that this gives some certainty around when you might return to normal. Phase two is expected to begin on 8 June but the plan is being assessed on a regular basis. However, as the rate of Covid infection and deaths continues to fall in Ireland there seems to be no reason for a delay.

So, what do you do if you are going to open your business again soon? First, read the government’s Return to Work Safely Protocol. The guidance is helpful, practical and pragmatic and is a great starting point if you don’t know what to do yet.

One question we are often asked is whether you can take employees’ temperature once the office reopens? The answer is that the government says it is allowed ‘in accordance with public health guidelines’. Currently there are no guidelines, but they are expected soon. In any event, if you do start taking temperatures make sure the data is handled correctly under data protection law. In short, that means deleting it immediately for most employees and only keeping it if you absolutely have to.

The other question we are often asked is about travelling to and from Ireland. The baseline position is that there is no travel ban into or out of Ireland, but anyone arriving from abroad must self-isolate for 14 days. Importantly, those arriving from the UK are not required to self-isolate, so the air bridge between the two islands remains open and (apparently) quite busy. If you or any of your employees do need to visit Ireland, you should read this government advice first.

Finally, in some non-Covid related news, the Irish employment tribunal system was found not to be unconstitutional by the High Court. By way of background, this is just the latest decision in a curious ongoing legal battle. The constitutionality of the Workplace Relations Commission (WRC) is being challenged on the basis that, amongst other things, the statutory procedures of the WRC are so deficient that they fail to vindicate the constitutional right to a fair trial. In this decision, the High Court found that the WRC was not actually carrying out a judicial function and that the procedural deficiencies did not amount to a breach of a fair trial. The decision is expected to be appealed.

However, these cases do serve to highlight some interesting aspects of the WRC process. For example, WRC adjudicators do not need any legal qualifications or experience in order to get the job and there is no automatic right to cross examination.

So, as a little word of warning, if you are in a dispute with an employee that goes to the WRC – be prepared for procedures to be a little more relaxed that what you may be used to.

Until next time, wishing you all the best in this glorious weather.

Republic of Labour Law – Irish HR Updates in April

Republic of Labour Law – Irish HR Updates in April

By Dónall Breen - 30 April 2020

Welcome to our April edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

If you do business in Ireland, this should be your one stop shop for what you need to know.

This week in the Republic of Labour Law:

  • The Temporary Covid-Wage Subsidy Scheme
  • Data protection and video calls
  • Bizarre cases of the month

Unsurprisingly, Covid-19 continues to dominate the news. For those of you availing of the Covid-Wage Subsidy Scheme there are a few points you should be aware of:

It is different to the UK scheme in a number of ways, so don’t confuse the two:

  • In Ireland you can claim assistance for paying wages whilst the employee is still working.
  • The subsidy only covers certain employers who meet a minimum threshold of disruption – not every company is eligible.
  • Finally, the subsidy does not apply equally to all employees. It is a stepped system where those earning above €76,000 per annum are largely ineligible.

The scheme is currently running until 18 June 2020. However, the government is publishing its plan for reopening the economy on 5 May 2020 so look out for any further updates then.

Finally, the government has tweaked the system lately so that lower earners are not worse off by continuing to go to work (even though some anomalies remain). Therefore, if you have costed the system on the information a few weeks ago, it may be worth revisiting this now.

Separately, the Irish Data Protection Commissioner (DPC) has published an article called Data Protection Tips for Video-Conferencing. It’s actually quite useful and worth a read if you are (like everyone else) now doing a lot of your work online. Most companies will experience a breach at some stage (small or large), so it worth having your ‘ducks in a row’ - being able to show you were as compliant as the DPC suggests!

In a welcomed break from Covid-19 news, I also managed to track down some weird and wonderful cases from the Irish courts:

  • One involves a publican/retailer/post office operator being ordered to pay his ex-wife €9,500 for her unfair dismissal from the family-run business. That can’t have helped to heal old wounds.
  • In another, a security officer who phoned RTE’s Liveline to alert Joe Duffy about a co-worker making creepy videos has lost out in a whistleblowing case against his employer. For those of you who don’t get the context, Liveline is a long running talk show where people can phone in to talk (complain) about any aspect of their life. It is a staple of Irish dinner time. Apparently it is now a must-listen for employment lawyers too.
  • Finally, a major bus company has unsurprisingly won its case against an employee who sued for unfair dismissal. Why was this bus driver sacked? He was convicted of careless driving and had a four-year driving ban imposed. The tribunal agreed that the contract was frustrated and threw the case out. It is a wonder the case even made it to the court.

That’s all for this month. In the meantime, stay safe and stay in.

Republic of Labour Law – Irish HR Updates in March

Republic of Labour Law – Irish HR Updates in March

By Dónall Breen - 31 March 2020

Welcome to our March edition of Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

For those of you who do business in Ireland, this should be your one stop shop for what you need to know.

This week in the Republic of Labour Law:

  • Covid-19
  • Nothing much else

What a difference a month makes. Last month we were drifting along as normal, discussing the various labour law updates. This month we have only one thing on our mind. Although you may well have prepared your response plan, we think it would be useful to set out the headline points of what you should be considering.

Travel

  • Non-essential travel has been advised against, so if your employees can work from home they should.
  • Ireland has not closed it borders, but there are quite a few restrictions in place (including a mandatory 14-day quarantine). Check the Department of Foreign Affairs website for latest updates.
  • These restrictions do not apply to travel between Northern Ireland and the Republic of Ireland.

Employment

  • For employers who may have to lay workers off, or put them on short working hours, you should apply for government assistance that will pay up to 70% of your employee’s salary (subject to a cap, currently €410 per employee per week). See here for further details on the Wage Subsidy Scheme.
  • There is no employer mandated sick pay in Ireland (like SSP in the UK), but the current 6-day waiting period for state Illness Benefit will not apply to anyone who has Coronavirus or is in medically required self-isolation.
  • Self-employed people can apply for the COVID-19 Pandemic Unemployment Payment of €350 a week (see here).
  • Unilaterally imposing shorter working hours, salary cuts and other measures are still (typically) a breach of contract so it is best to speak with your employees and get their consent if possible. However, the commercial reality is that this may not always be possible.

Data Protection

  • If you are collecting health data from your employees e.g. their temperature, make sure you have considered on what legal basis under GDPR you are relying on. Your solicitor can help you with this.
  • If your employees are working from home, ensure they are handling personal information appropriately i.e. consider purchasing a shredder for those in your HR department who may be printing confidential personal files.

These are just the headline points. If you are looking for information, we are happy to help and citizensinformation.ie is also a great resource (I would highly recommend it).

As you can imagine, there is not much else going on in the labour law world as we grapple with our new common enemy, but we will remain poised to update you as required.

Until next time, remember what our Irish grandmothers told us - ní neart go cur le chéile (there is no strength without unity).

For further information about responding to Covid-19 in Ireland, please see our Irish Employer FAQS here.

Republic of Labour Law – Irish HR Updates in February

Republic of Labour Law – Irish HR Updates in February

By Dónall Breen - 27 February 2020

Welcome to our inaugural edition of the Republic of Labour Law, a monthly newsletter in which we distil the most important Irish legal and HR updates from the last month in 500 words or less.

For those of you who do business in Ireland, this should be your one stop shop for what you need to know.

This week in the Republic of Labour Law:

  • Ireland and Brexit
  • The gig economy in Ireland
  • Can you teach belly dancing whilst on sick leave
  • Employer’s obligations for disabled employees

Let’s start from the top, where are we now with Brexit?

Well, as the UK is in a holding pattern during the transition period not much has changed in Ireland either. There is still a free flow of people, data, goods and services over the border. Once the transition period comes to an end the flow of data, goods and services might be affected. However, Irish and UK citizens can continue to freely pass between the two countries (visa free) due to agreements put in place prior to either country joining the EU.

Politically, Ireland has just had a general election in which there was no clear winner. Most commentators have predicted that the left-leaning Sinn Féin party is likely to lead the next government. Sinn Féin has never been in power in the Republic of Ireland and is vocally pro-worker. If Sinn Féin can form a government we should expect to see some movement in the employment labour law sphere.

There have been plenty of changes coming from the Irish labour courts to fill the gap in the meantime. Ireland grappled with its first gig economy case recently (in a tax tribunal) and the outcome was reassuringly familiar for those of you acquainted with UK law. The test for whether someone is an employee or not uses many of the same concepts that the UK courts have previously outlined – mutuality of obligation, substitution, integration etc. At a high level, this is also similar to approaches adopted in the US. However, in Ireland there is no halfway house of ‘worker status’, unlike in the UK, so you either engage an employee or independent contractor which makes the distinction a little clearer.

Irish courts have also been active when it comes to disability discrimination. A first tier decision confirmed that depression and anxiety constitute legal disabilities. Further, a Supreme Court decision set out what an employer must do in order to provide reasonable accommodation for disabled employees. In short, if you are a large organisation the bar is high to make reasonable adjustments but that doesn’t go as far as creating a new role for the employee.

On a more practical note, the minimum wage has just risen to €10.10 an hour, so if you have any employees on the minimum wage make sure your payroll is aware of the new increase.

Finally, the stories coming from the Workplace Relations Tribunal continue to be quite wild. The headlines that have caught my attention in the last few weeks are ‘Woman seen teaching belly dancing after calling in sick loses unfair dismissal action’, and an employee whose excuse for squeezing his colleague’s breast was that “he was trying to sort out her chest infection”. I can confirm this is not a traditional, Irish healing cure – it’s just creepy.

Until next time, slán agus beannacht.

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