Graphite HRM were delighted to hold the HR & Employment Law Mid-Year Conference on 16th May at the Crowne Plaza Blanchardstown in Dublin, with expert speakers in the areas of employment law, GDPR, performance, Brexit and the Gender Pay Gap. Here we share some of the key takeaways from this year’s event…
Lorraine Smyth, Partner, Byrne Wallace started the conference with an update on new legislation, notable bills, and case law. Lorraine has presented at many Graphite conferences and consistently presents detailed and relevant topics for HR practitioners and those responsible for people management in their organisation.
In terms of New Legislation Lorraine spoke about:
The Industrial Relations Act (Code of Practice on Longer Working) (Declaration) Order 2017
This Workplace Relations Commission (WRC) code provides guidance to employers on the run-up to an employee’s retirement. It sets out best practice in terms of utilising the skills and experience of the older workers, objective justification of retirement, standard retirement arrangements and requests to work longer. In implementing the Code of Practice employers should review their existing policy or implement one and train managers in the implementation of the policy.
The Irish Human Rights and Equality Commission (IHREC) Guidelines on Retirement and Fixed-Term Contracts
This guideline was recently issued in April of this year to be read in conjunction with the WRC Code of Practice on Longer Working. The code provides guidance on the fact that where fixed-term contracts are given past retirement age then they must be objectively and reasonably justified by a legitimate aim, and the means of achieving the aim must be appropriate and necessary.
Lorraine described in detail how to determine a legitimate aim. For example, in sharing employment between generations. She also described how any aim must be appropriate and necessary in that there must be evidence that offering a fixed-term contract is rationally connected to that aim.
The Mediation Act 2017
Lorraine described how the long-awaited Act gives guidance to the engagement and process associated with mediation as an alternative dispute resolution mechanism. Legal professionals must offer mediation prior to going into litigation, giving widespread credence to the benefits mediation provides to parties in dispute.
Graphite HRM provides a workplace mediation service, which is often used as part of an informal dispute resolution process to prevent issues escalating beyond resolution.
In relation to Notable Bills, Lorraine gave insight into what is happening in relation to:
Extreme Weather (Miscellaneous Provisions) Bill 2018.
This Bill was lost at the second stage in Dail Eireann on 26th April, and therefore it is no longer a concern for employers in relation to its potential requirements.
Protection of Employment (Measures to Counter False Self-Employment) Bill 2018
The Bill aims to tackle widespread concern that individuals are ‘self-employed’ where ‘employee’ status is more appropriate. It describes the factors which are indicative of employee status. For example, does the person need to follow instructions? i.e. start and finish times.
Prohibition of Bogus Self-Employment Bill 2018
This Bill also deals with situations where a direct employee is forced to accept self-employed status in order to get work. It proposes to give rights for redress including reinstatement, re-engagement, and compensation. Factors that are to be considered in establishing employee status in this Bill are things like, the freedom of the person to work for others and whether the person has tendered for the work.
For the Case Law Update Lorraine highlighted cases that dealt with:
Age and Retirement
In Quigley v Health Service Executive (2018) 29 E.L.R. 69, a GP was granted an injunction preventing the HSE from terminating his employment based on him reaching the age of 65. The justification of the injunction was that damages would not be an adequate remedy for the loss of his professional prestige and standing and that he was likely to win a case due to their being no retirement age in his contract and that other GPs older than the Plaintiff were not asked to retire.
In Valerie Cox v RTE – ADJ 00006972 – March 2018 Ms. Cox was awarded €50,000 by the WRC because RTE could not demonstrate objective justification for requesting Ms. Cox to retire. Also, in this case, other workers although independent contractors were over the age of 65 and there was no stipulation in Ms. Cox’s contract in relation to a retirement age.
In Dr. Anne Cleary v UCD DEC-E2018-009 (March), Dr. Cleary was a sociologist and claimed age discrimination in relation to promotion. As Dr. Cleary was able to show that no candidate from the age of 60 to 65 was ever promoted, she was awarded €30,000 for the effect of the discrimination.
Harassment and Sexual Harassment
In Select Service Partner Ireland v Albert Fordjour – UDD 1758 (March 2018) an allegation was made by a female employee against Mr. Fordjour because he tried to kiss her as she exited a lift. However, as the investigation did not:
- give him prior notice of the investigation meeting;
- give him a copy of the complaint to him nor interview the complainant;
- interview two of his nominated witnesses which may have established the context of the incident
The Labour Court, although highly critical of the Claimants behaviour, found that due to the process errors in relation to the investigation that he was entitled to re-engagement with the sanction of suspension without pay for the period of dismissal, and received a demotion and a final warning for two years.
Dismissals and Fair Procedure
In Aryzta Bakeries v Vilnis Cacs – UDD1812 – February 2018, the Labour Court overturned an Adjudication Officer’s decision to award Mr. Cacs €12,500 for arriving to work under the influence of alcohol. The reason for overturning the award was that the company could demonstrate fair procedure in dealing with the issue.
For example, Mr. Cacs was offered the right to representation and appeal but declined. Also, as it was a production environment the sanction was proportionate due to the fact that safety and hygiene were critical factors in the workplace.
In Dublin Bus v Claire McKevitt – the High Court, in January 2018, set aside a Circuit Court order of €10,000 because Dublin Bus fairly terminated Ms. McKevitt’s employment based on health concerns. In particular, as Public safety was paramount in the role, the company’s decision was proportionate.
The company had several consultations with Ms. McKevitt and were in receipt of twenty-three specialist reports over a period of nine years due to intermittent extended absences that were ultimately continuous from 2012 relating to her physical reaction to the stresses she experienced as a bus driver.
Appeals and Dismissal
In UPC v Employment Appeals Tribunal (Respondent) and Ann Marie Ryan (Notice Party)  IEHC 567, Ms. Ryan contested the date of her dismissal to ensure that she was in time to challenge the dismissal in the WRC. Ms. Ryan was dismissed for Gross Misconduct, notification of which was received by her in a letter dated 18th October 2011, from the company.
However, Ms. Ryan said that the date of dismissal was effective from 12th September 2012 as this was when the result of the appeal of her dismissal was received. The High Court agreed with Ms. Ryan that she had a legitimate expectation to believe that her dismissal was after the Appeal process as her contract and the disciplinary procedure was silent on this issue.
In Nano Nagle School v Daly  IECA 11 the Court of Appeal overturned the High Court’s decision to uphold the Labour Court’s decision to award Ms. Daly €40,000 for failing to accommodate her in her return to work subsequent to acquiring a disability. The reason for the determination was that they found that Ms. Daly was unable to perform the essential tasks of an SNA in the school and that no accommodation put in place by the employer could change that.
Hilary Treacy from Barbican Data Protection Services spoke about preparing for the New General Data Protection Regulation (GDPR) in practical terms specifically geared towards HR practitioners and those responsible for employee data.
In doing so she gave examples of how to map out personal data held and create a Gap Analysis to show what the current situation looks like as opposed to what the future situation should look like. Hilary spoke about the need to train staff in relation to their obligations under GDPR where they have access to personal data.
She referred to the Data Protection Commissioner’s Annual Report for 2015 which identified that 72% of data breaches were caused by employee negligence.
Hilary identified the main changes within the legislation taking effect from 25th May 2018. For example, the enhanced role of the Data Protection Officer under Article 37 of the GDPR, and the fact that they are required in all public bodies, as well as in organisations where the core activities require large scale, regular and systematic monitoring of personal data and where organisations’ core activities involve large-scale processing of sensitive personal data.
Hilary also spoke about the rights of Data Subjects, such as the right to restrict processing and the right to erasure, among 6 other rights. Importantly, Hilary described the requirement for the organisation to have adequate written policies and procedures governing the use of personal data.
From a HR perspective, Graphite HRM have a suite of documents and information relating to the obtainment and retention of HR related data. This was sent out to all clients on 22nd May, as part of our bi-annual policy handbook update. However, if clients wish to receive this they can contact us on 01 886 0350.
Shane O’Mara, Professor of Experimental Brain Research and Wellcome Trust Senior Investigator, Trinity College Dublin, spoke about the Neuroscience of Performance for Business and Organisations.
Shane gave some fascinating insights into how the brain works and how it changes over our lifespan. He also spoke about the positive effects that sleep and aerobic exercise has on our performance, into advanced age, and what the latest research shows us as to how we learn.
Shane provided evidence to show that the common concept that individuals differ in how they learn through learning styles does not exist and that information retrieval is the most effective learning strategy. Also, that there is no evidence that brain training games enhance cognitive ability.
Manus Rooney, Senior Advisor, Enterprise Ireland spoke about Brexit and business exposure and the impact on resourcing.
His main message was to prepare for Bexit and act now in relation to business exposure and to integrate a contingency plan into company strategy because even where there may not be a visible direct impact on a business there may be an indirect impact, the implications of which need to be explored.
Manus gave the delegates information on the Brexit Scorecard which Enterprise Ireland provides to understand organisational exposure which is available on www.prepareforbrexit.ie.
Philip McNally, Manager, Corporate Immigration and Employment Law, KPMG, spoke about the impact of Brexit on resourcing specifically.
He informed delegates about what is contained in the Draft Withdrawal Agreement (2) in relation to the proposal that all EU Nationals residing in the UK will have to make an application for ‘Settled Status’ or ‘Temporary Status’ from the autumn of this year, and it is likely that this will be mirrored in the Republic of Ireland relating to UK nationals, although there is no draft agreement yet documenting this.
Philip also spoke about the need to start planning to secure skills now, as the availability of labour is already declining. For example, understanding how many UK employees that are currently employed, what is their role and what will the impact be on the business if they are lost.
Emma Kerins, EU and International Affairs Manager, Chambers Ireland, spoke about the Gender Pay Gap and its implications for HR.
She spoke about the business case for gender equality in terms of encouraging women to fully participate in the workplace, that the gap in Ireland is 13.9% and this has widened by 2% since 2014.
Emma explained that the Programme for Government includes a commitment for the introduction of wage surveys for companies of 50+ employees and that this is now proposed for legislation before the summer recess, and is likely to be modelled on UK legislation. However, the Irish Bill proposes sanctions for lack of compliance.
Initially, Emma said that the latest information regarding it is that the Government will initially apply the obligation to companies with over 250 employees.
In terms of supporting businesses, she said that the Government should develop tools to assist employers to calculate the gender pay gap within their organisations and invest in areas that contribute to the gap i.e. support for childcare.
Emma gave some helpful tips to the delegates in terms of what HR teams can do now to prepare for the reporting requirements, such as publishing salary scales and entry-level rates and reviewing internal promotion policies and how they relate to female retention/promotion.
REGISTRATION NOW OPEN: Graphite HRM’s 2018 HR & Employment Law Annual Conference will take place on Wednesday, 7th November 2018 at the Clayton Hotel Ballsbridge