The Code issued from the Workplace Relations Commission ("WRC") on 7 March 2024 and came into effect on that date. Although it does not have statutory effect, employees can rely on the Code when making a claim to the WRC. The Code sets out useful guidance regarding the factors to be considered by employees when making a request, and factors to be considered by employers when reviewing requests. It also addresses how arrangements can be changed or terminated and requires employers to establish a grievance process to address any employee concerns. There is also a requirement on employers to keep a record of approved arrangements for three years. Failure to comply with this obligation can result in a fine of up to €2,500.
2. New Revenue Reporting Requirements for Employers
The introduction in the Finance Act 2022 of Section 897C of the Taxes Consolidation Act 1997 requires employers to report to Revenue the details of certain payments made to employees and/or directors. This commenced on 1 January 2024 and requires an employer to report details of payments, on or before the date of payment, if they fall under the categories: Travel and Subsistence; Small Benefit; or Remote Working Daily Allowance.
3. Automatic Enrolment Retirement Savings System Bill 2024
The Bill, which is at the latter stages of the legislative process, will introduce an automatic enrolment ("AE") retirement savings scheme, and is expected to be effective from January 2025. Under the scheme, all employees aged between 23 and 60 earning over €20,000 who are not in an occupational pension scheme will be automatically enrolled. Employers will be required to match contributions made by employees, up to a limit of €80,000 gross salary. The State will contribute €1 for every €3 contributed by an employee. Employer and employee contributions are to start at 1.5% and will increase by 1.5% every three years until they reach 6% by 2034. Employers who hinder an employee from participating in AE commits an offence and may be subject to a payment of up to €5,000.
4. Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 signed into law.
This Act, which was introduced on 9 May 2024, seeks to enhance the protection of employees in a collective redundancy situation following their employer’s insolvency. Key provisions of the Act include:
- Penalties of up to €5,000 for a person responsible for the affairs of a business who fails to initiate collective redundancy consultations.
- All collective redundancies, including those caused by bankruptcies or the winding up of a business, must be notified to the Minister for Enterprise, Trade and Employment.
- The Act removes the requirement that a director “knowingly” continued to trade while their company was insolvent and introduces an objective standard when assessing if directors should be held personally liable for companies debts in a liquidation, which is significant.
5. Increase in State Benefits
As of 1st January 2024, the following State Benefits increased:
- Statutory Sick Pay – employees' right to sick leave increased from 3 days in 2023 to 5 days' sick pay a year. Sick Pay is paid by the employer at 70% of normal pay up to a maximum of €110 per day of certified leave.
- National Minimum Wage – the National Minimum Wage for an individual aged 20 years and over increased to €12.70 per hour.
- Illness Benefit – the maximum rate of Illness Benefit increased by €12 with proportional increases for people on reduced rates of payment.
- Maternity, Paternity, Parents and Adoptive Benefit – the weekly rate of Maternity, Paternity, Parents and Adoptive Benefit increased by €12.
6.Right to work extended to all eligible spouses and partners of employment permit holders.
As of 16th May 2024, all eligible spouses and partners of employment permit holders will be allowed to work if they are already in the State and are granted permission to live in Ireland with their family member. Previously, the right to work without a permit was only provided to spouses and partners of Critical Skills Employment Permit holders. Current and future permit holders whose spouses or partners are not in the State will still need to apply for family reunification after 12 months.
7. WRC published its 'Annual Report 2023'
The annual report provides an overview of the complaints brought before the WRC. The key takeaways are as follows:
- Protected disclosure claims have tripled and are an increasing area of risk.
- There are growing trends of multiple claims being lodged by an employee.
- There was an increase in parties seeking mediation.
- Gender, disability and race were the top three grounds cited in discrimination claims.
8. New Caselaw
The following recent employment law decisions may be of interest to employers:
Carolina Hennessy v Cognizant Technology (ADJ-00043686)
A successful discrimination claim was taken by an employee based on family status for failure to consider a flexible working request. The complainant was awarded 15 months' salary for various forms of discrimination.
Michael Broderick v North Quay Associates Limited (ADJ-00048080)
The first decision under the Sick Leave Act 2022 issued from the WRC. The Respondent in this matter was ordered to pay €450.00 compensation to an employee who was denied sick leave.
Martin Beirne V Health Service Executive (ADJ-00040093)
A substantial award of backdated holiday pay of €31,666 was made by the WRC for unpaid annual leave from 2007 to 2022, which is unusual. Such awards had typically been limited. The award in this case appears to have been specific to the facts of the case but is worth noting.
Oisín Gourley v Mason Hayes & Curran LLP (ADJ-00094048)
A successful claim was taken against an employer who failed to provide reasonable accommodation to an employee with long Covid. The Respondent was ordered to pay the Complainant €5,000, ordered to review its policy on reasonable accommodation and provide training on the policy to management. Although the award was low, the fact that the case related to long Covid and the directions made by the WRC are noteworthy.
Lauren McBride v. FSR Atlantic Ltd t/a ADHD Now (ADJ-00049238)
The Supreme Court decision in The Revenue Commissioners v Karshan (Midlands) Ltd. t/a Domino’s Pizza adapted the test used to determine if an individual was an employee or an independent contractor. Revenue then published new guidance outlining the tax implications of the Supreme Court judgment. This is one of the first decisions that has issued from the WRC since that decision. The Adjudicator applied the 5-step test in Karshan, and found that the Complainant was an employee due to the "significant degree of control" the Respondent exercised over her work, indicating that control has been maintained as a key factor in this assessment.
An Assistant Lecturer v An Institute of Technology (ADJ-00050085)
The Transparent and Predictable Working Conditions Regulations 2022 ("2022 Regulations") placed probation periods on a statutory basis and required probation periods in fixed term contracts to be proportionate in nature. In one of the first decisions issued after the 2022 Regulations, the WRC found a 24-month fixed term contract with a 12-month probationary period to be disproportionate and reduced the period to six months.
Seamus Mallon v The Minister for Justice, Ireland, and the Attorney General [2024] IESC 20
The Supreme Court recently upheld the decision of the High Court, finding in favour of the State to set the mandatory retirement age at 70 for sheriffs. This case confirmed the position that there is no requirement for a case by case or role by role assessment for retirement ages. When setting a mandatory retirement age, the prescribed age is to be reasonably designed to achieve the objectives being pursued.
