Graphite HRM hosted our bi-annual trends in employment law seminar in December 2016. The seminar focused on the most recent updates in employment law and also a looked at what is coming down the line for employers. This article will focus on the key discussion points from this seminar and from our seminar in June 2016.

Equality (Miscellaneous Provisions) Act 2015

There has been an ever increasing move towards the abolition of fixing a retirement age in the contract of employment.  Although not abolished, there is now a significant bar to cross in relation to the justification of having a retirement age in the contract of employment. This legislation was signed into law on the 10 December 2015 and commenced in its entirety on 1 January 2016.  The amendment means that fixing compulsory retirement ages must be “objectively and reasonably justified by a legitimate aim” and “the means of achieving that aim are appropriate and necessary.” It is important that employers are able to stand over their reasoning for having a fixed retirement age within their organisation. A measure will be objectively justified where it corresponds to a real need on the part of the undertaking (often described as a “legitimate objective”) and is both:

(i) appropriate and

(ii) necessary for achieving the objective pursued.

There are two recent cases discussed in this month’s e-zine demonstrating where this legislation has been applied and what an organisation needs to be able to do in order to justify retiring employees, if challenged on this decision.

National Minimum Wage

The National Minimum Wage (Low Pay Commission) Act 2015 has formally created the Low Pay Commission (LPC). The LPC’s function is to examine the appropriateness of the National Minimum Wage (NMW) on an annual basis and to make recommendations to the Minister. In July 2015, the LPC recommended a €0.50 increase to the NMW. Minister Ged Nash formally introduced this increase from 01 January 2016. The statutory minimum wage rose from €8.65 to €9.15 per hour from January 2016 and is now rising again by 10c from 1^st January 2017 to €9.25 per hour.

Paid Paternity Leave

The introduction of paid Paternity Leave was announced on the 19^th of June 2016. This new legislation was enacted from 1^st September 2016. The relevant parent is now entitled to 2 weeks paid paternity leave from the state, which is currently in line with the maternity benefit of €230 per week. The leave is also available to adopting Fathers and same-sex couples.

Data Protection

There has been an update to the guidelines issued by the Data Commissioner in relation to CCTV in the workplace. Employers must have a written policy and also include that there is CCTV in the data protection policy, the data controller must carry out risk assessments to show that use of CCTV is justified. There must be clear signage in operation and the employer must be able to demonstrate the reason for CCTV, including previous experience.  While our Data Protection Acts, 1998 and 2003 are driven by an EU Directive there are inconsistencies across the various EU jurisdictions in relation to the interpretation of this Directive.  The General Data Protection Regulation (GDPR) is set to replace the current Directive in this area from May 2018.  The intention of the new legislation is to create a framework across the EU aiming to strengthen online privacy rights and generally deal with the explosion of Europe’s digital economy. Effectively EU Citizens will have more control over their personal data. The EU is taking this very seriously and as a result where there are breaches in the legislation there will be significant fines.

For example the proposal is that there will be fines of 10 million euro or 2% turnover, or 20 million euro or 4% of turnover.  The fines will depend on the nature and gravity of infringement; the intention behind the infringement and general compliance with Act and codes of practices.   At the moment there is a €6.35 charge to those who wish to get access to their personal data. The new legislation will introduce a no charge method of accessing ones data, with one month’s notice to the data holder to disclose the data held.  Clearly this has implications for HR in terms of what is held on the personnel file.   SME’s will have an option to charge a fee where access requests are repetitive.  There is a proposal to have an exemption on the timeframe for data access requests where they are excessive, unfounded or repetitive.  And where data requests are refused the organisation must notify the person of their right to complain.

There is also the proposal for a requirement to have a Data Protection Officer employed in larger organisations. They will be responsible for the regular and systematic monitoring of data subjects on a large scale.  They must be experienced in data management, independent, and report to highest level of management. They will also be responsible for the security of the data, training, and advising the company on data-related matters.