Employment Law Conference 2023

Transparent and Predictable Working Conditions Regulations 2022

The Transparent and Predictable Working Conditions Regulations came into effect on 16 December 2022. Their low-key introduction belies their significance. They amend a number of pieces of employment legislation. This includes The Terms of Employment (Information) Act  1994, the Organisation of Working  Time Act 1997, the Protection of Employees ( Fixed Term  Work) Act 2003  and the Workplace Relations Act 2015.

This presentation will outline the steps which should be taken by employers to ensure that they are in compliance with the changes introduced by the Regulations. It will also assess the practical significance for employees.

The matters to be addressed include the following:

• What additional written terms of employment must be given to employees and what is the timeframe for providing them?
• To what extent have the Regulations broadened the class of individuals to whom a statement of terms of employment and a five-day statement must be furnished?
• What about employees posted outside Ireland?
• The impact of the Regulations on probationary periods for private sector and public sector employees
• What happens existing employment contracts (concluded prior to 16 December 2022) where an employee has completed six months’ probation but whose contract stipulates that the employee is subject to a longer probationary period? Can the employer rely on this additional period?
• When can the probationary period be extended?
• What circumstances give rise to the suspension of a probationary period?
• How is the probationary period calculated in fixed term contracts?
• Successive fixed term contracts: can a new probationary period be imposed in the renewal of a fixed term contract where the functions and tasks are the same as those contained in the original contract?
• When has an employee a right to refuse work without adverse consequences?
• Implications for exclusivity of services clauses
• Position with collective agreements
• The introduction of an employee’s right to request more predictable and secure working conditions.
• Remedies for breach of the Regulations

Striking The Balance: The Work Life Balance and Miscellaneous Provisions Act, 2023

• The right to request flexible working and remote working: who can apply?
• How should the request be made?
• What are the obligations on employers in managing such requests?
• Are employers required to provide reasons for any refusal?
• Can the WRC consider the merit of an employer’s decision to refuse any such request?
• Circumstances giving rise to early termination of the arrangement.
• The level of compensation that can be awarded by the WRC where the employer breaches its obligations in managing a flexible/remote working request.
• Medical Care Leave and Domestic Violence Leave
• Enhanced Breastfeeding Rights

The Sick Leave Act, 2022: An Overview

• How does an employee qualify for statutory sick pay?
• Must the sick days be consecutive?
• The rate of statutory sick pay
• Is it possible for an employer to claim an exemption from the obligation to pay statutory sick pay?
• Employee complaints and awards of compensation
• Is a provision in a contract of employment which is as favourable or more favourable to an employee (than the entitlement to statutory sick pay) deemed to be in substitution for or in addition to the statutory entitlement?
• Employer’s obligation to keep proper records of statutory sick leave: penalties for non-compliance.

Blowing the Whistle: A Closer Look at the Protected Disclosures (Amendment) Act 2022: How is the Legislation Working in Practice?

The Protected Disclosures (Amendment) Act 2022 (the “2022 Act“) came into force on 1 January 2023.  The 2022 Act amends and extends the current whistle-blowing legislation in Ireland – the Protected Disclosures Act 2014 – and gives effect to Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (known as the EU Whistleblowing Directive).

This presentation will consider the main changes introduced by the 2022 Act, and how the legislation is working in practice. More specifically, the presentation will address the following issues:

• The additional obligations introduced by the 2022 Act
• The scope of protection
• Internal reporting channels and the role of designated persons
• Can an interpersonal grievance constitute a protected disclosure?
• Confidentiality and anonymity
• Injunctions
• Penalisation issues
• A review of case law: a guide to recent decisions and trends

Redundancy: The Law, Practice and Procedure

This seminar will contain practical advice for employers when implementing redundancies, whether individual or collective. It will examine individual and collective processes, including consultation obligations and whether to offer a right of appeal.

It will also examine fair selection processes, an employee’s entitlement to a redundancy payment and recent case law and legislative updates.

Issues to be considered will include:

Redundancy Processes and Practice

• Collective Redundancies – the process and practice
  • The special rules governing Collective Redundancies
  • Obligations in relation to consultation Elena Gabriela v Whw Brothers Focus Limited Colossus Casino
  • What does beginning consultation “in good time” mean? Jane Crowe v Debenhams Retail (Ireland) Limited
• Individual Redundancies – Is an employer obliged to enter a consultation process with an employee whose role is at risk of redundancy?
• What are the implications where an employer refuses to consider an appeal by an employee of a decision to make him redundant?

Selection Processes and Entitlements on Redundancy

• Selection for redundancy: What criteria should an employer consider when designing the selection matrix?
• What happens where the selection criteria used by the employer is accepted as valid but there is a failure to notify the employee of the selection process so he was unable to make a constructive contribution to same?: Boucher v Irish Productivity Centre
• What happens where selection criteria are not communicated to an employee selected for redundancy?: Zeus Packaging Group v Ms Gráinne O’Hara
• To what extent is an employer expected to go when engaging with employees selected for redundancy?: Cuan Tamhnaigh Teoranta v Declan McShane
• Is an employee entitled to a redundancy payment if he refuses an offer of alternative work? Helaro Ltd T/a Key Collections Under Liquidation v Monika Asiesiukiewicz RPD2114

Recent Case Law and Legislative Updates

• An employee’s obligation in relation to mitigation of loss Bogdan Vasarheli v Castolin Eutectic Ireland Ltd
• Can an employee be compensated for the loss of a right to redundancy payment? Gerard Maunsell v Richard Boyle & Sons
• What is an employee’s entitlement to an enhanced redundancy package on TUPE transfer? Aideen O’Regan v CBRE GWS (Ireland) Ltd
• The Redundancy Payments (Amendment) Act 2022 – bridges the gap for those who lost reckonable service as a result of Covid-19 and were subsequently made redundant.

A Review of Recent Case Law

Three major areas will be examined:

• Recent caselaw in relation to placing employees on paid administrative leave/suspension: O Sullivan v The HSE
• Caselaw in relation to the employment injunction – an update in relation to probationary employees
• Fixed Term Work: Power v The HSE