Anne O'Connell Solicitors | View firm profile
It is appropriate at this time of the year to look back at some of the interesting developments and the important cases that have shaped employment law in Ireland in 2024.
Code of Practice on the Right to Request Flexible and Remote Working
The Workplace Relations Commission (“WRC”) published its highly anticipated Code of Practice on the right to request flexible working for caring purposes for certain categories of workers and the right to request remote working (the “Code”).
The Code sets out practical guidance on how to approach requests for flexible and remote working and provides a template Work Life Balance Policy and application form.
Further details can be found in our article AOC Article.
Parent’s Leave Update
From 1st August 2024, parents are now entitled to nine weeks of Parent’s Leave in respect of children born or adopted on or after 1st August 2024, an increase from seven weeks.
Parent’s Leave entitles “a relevant parent” to avail of time off work during the first two years of a child’s life, or in the case of adoption, within two years of the placement of the child with the family. During a period of Parent’s Leave, parents will be entitled to avail of Parent’s Benefit through the Department of Social Welfare if they have sufficient PRSI contributions and meet any relevant eligibility requirements.
Further details can be found in our article AOC Article.
Gender Pay Gap Reporting Update
Under The Employment Equality Act 1998 (Section 20A) (Gender Pay Gap Information) (Amendment) Regulations 2024 ( “the 2024 Regulations), from 31st May 2024, reporting requirements have been extended to employers with at least 150 employees. All employers with at least 150 employees were required to choose a snapshot date in June 2024 and were required to report within six months of that date.
The 2024 Regulations also introduced changes to how gender pay gap reporting is carried out and clarified that basic pay includes payments made to employees (by the State and/or by an employer) during adoptive, maternity, paternity and parent’s leave.
Reporting requirements will be extended to employers with at least 50 employees in 2025.
Further details can be found in our AOC Article.
Sick Leave Act 2022 – Update
On 1 January 2024, statutory sick leave was increased to 5 days’ sick pay a year, an increased from 3 days in 2023). It is proposed that the entitlement will increase to 7 days in 2025 and 10 days in 2026. However, at the time of writing this has yet to be confirmed.
The Sick Leave Act 2022 is linked here.
New criteria for non-disclosure agreements regarding discrimination, harassment and/or victimisation.
A new section was added into the Employment Equality Act which restricts employers entering into non-disclosure agreements with employees relating to any allegations of discrimination, harassment, sexual harassment and victimisation. However, the section goes on to provide that this does not apply to agreements reached through the WRC Mediation Services or where it complies with the requirements of an excepted non-disclosure agreement.
Further details can be found in our article AOC Article.
Government Publish’s Updated Code of Practice on Determining Employment Status.
Following the 2023 judgement of the Supreme Court in The Revenue Commissioners v Karshan (midlands) Ltd/ T/A Donimo’s Pizza [2023] IESC 24 the Government’s “Code of Practice on Determining Employment Status” has been reviewed and updated.
The Code is intended to provide a clear understanding of the employment status of individuals, taking into account current labour market practices and developments in legislation and case law.
Further details can be found in our Article.
Supreme Court Clarification on the law on Mandatory Retirement Age – Seamus Mallon v The Minister For Justice, Ireland, and The AG [2024] IESC 20
The Supreme Court issued an important judgement clarifying the law on mandatory retirement ages. It clarified that contrary to what had previously been understood, the law on mandatory retirement age setting, does not presumptively require case by case or role by role assessment or that such individual assessment must be shown to be impractical if a generally applicable retirement age is to be justified.
Further details can be found in our article AOC Article. The principles in Mallon were subsequently followed in Holland v HSE and Ors [2024] IEHC 533 .
Supreme Court Rules High Court Erred in Re-engaging School Principal in a Manner that Meant He was Effectively Reinstated – An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38
The Supreme Court found that the High Court, Labour Court and the Workplace Relations Commission (“WRC”) had erred in law in ordering the re-engagement of a principal of a primary school, in a long-standing dispute.
The Supreme Court addressing the remedies of reinstatement and re-engagement under the Unfair Dismissals Acts and made it abundantly clear to lower decision-making bodies that those remedies are only to be ordered in exceptional cases. Factors to be considered in cases seeking these remedies include the passage of time, the state of relations between the parties, changes in the workplace, and the implications on innocent third parties.
Further details can be found in our article AOC Article.
WRC Holds Fiddler To Be An Employee – Matthew McGranaghan v. MEPC Music Ltd (ADJ-00037668)
The Complainant in this case had brought a number of complaints to the Workplace Relations Commission (“the WRC”) alleging that he was an employee and not self-employed and, on that basis, he successfully claimed that he was unfairly dismissed; not paid his notice entitlement; not paid his annual leave or public holiday entitlement.
This decision illustrated how easy it is now going to be for workers to be able to prove that in reality they are employees. It is vital that all businesses that engage with contractors who provide personal service review their arrangements. There are careful steps that need to be considered in respect of each of these options. However, doing nothing is no longer a viable option.
Further details can be found in our article AOC Article.
Twitter ordered to pay €550,000 to Former Employee – Gary Rooney v Twitter International Unlimited Company (ADJ – 00044246)
This case is hugely significant for employers who operate employee incentive/equity schemes as it paves the way for employees to claim for loss of benefits under those schemes as part of an unfair dismissal claim.
This case also reinforces the principle that resignations need to be unequivocal and unambiguous and that if an employer wrongly treats a termination of employment as a resignation, there will likely be a legal exposure under Unfair Dismissals Acts. The decision is under appeal to the Labour Court.
Further details can be found in our article AOC Article.
Supreme Court Decision Makes It Very Difficult For Employers To Obtain an Injunction To Restrain Industrial Action in the Future – H.A. O’Neil Limited v. Unite the Union and Ors [2024] IESC 8
The Supreme Court judgements in this case make it extremely difficult for an employer to obtain an injunction restraining picketing and other industrial action in the future. It highlights that alternative reliefs and action may need to be explored by employers in such circumstances.
Further details can be found in our article AOC Article.
Employee Awarded Significant Compensation for Unfair Dismissal by WRC – Michael Kiely v Hyph Ireland Limited (ADJ-00037708)
The Adjudicator found that the Complainant in this matter was unfairly dismissed and assessed his financial loss to be €460,000 over 17 months. He made an adjustment of €20,000 to account for a five-month period following expiration of the Complainant’s non-compete clause, reducing the financial loss figure to €440,000.
This decision is interesting in terms of the comprehensive assessment of financial loss by the Adjudicator. Of particular note is the Adjudicator’s view that because the Complainant was a “successful entrepreneur” he had “every right to pursue that goal to re-establish himself in a similar role that he was dismissed from”, and that it was not reasonable for him to compromise that “legitimate goal” by accepting “any work that detracts from that objective.” Employers need to bear this in mind in terms of assessing the potential level of exposure in respect of a former employee who is or was a successful entrepreneur, and the efforts that he or she has made to mitigate his or her loss. Employers should also consider the potential impact of post termination restrictions on a former employee’s ability to mitigate his/her loss.
Further details can be found in our article AOC Article.