Ten crucial employment law changes to look out for in 2020

Ten crucial employment law changes to look out for in 2020 – advice by Peninsula Associate Director of Advisory Alan Hickey

 

With just a few weeks left until the New Year, now is the perfect time for employers to look ahead to the crucial employment law issues that are set to impact 2020 and their workplaces.

 

  1. EU Directive on work-life balance/family-friendly changes

 

The EU Parliament approved an EU Directive on work-life balance earlier this year. Although Ireland already complies with many of the proposed rights on parental leave and paternity leave, employers should consider how a new employee right to request flexible and remote working arrangements would affect their operations. Employers will need to update their policies to reflect recent changes to parental leave and the introduction of a new two-week paid parent’s leave entitlement.

 

  1. Minimum wage increase deferred until March / PRSI increase

 

The cost of employing staff will rise next year. Employer’s PRSI will increase from 10.95% to 11.05% from 1 January 2020. The national minimum wage will also increase from €9.80 to €10.10, although this increase will not come into effect until the outcome of Brexit negotiations becomes more transparent.

 

  1. Working time records

 

The Court of Justice of the European Union delivered a ruling that sent a warning to employers to ensure they have an ‘objective, reliable and accessible system’ that records the duration of time worked by each employee. Tracking your employees’ working hours is particularly important given that failure to keep adequate employment records continues to be the most common breach of employment legislation identified by WRC inspectors.

 

  1. Accommodating employees with disabilities

 

This year, the Supreme Court provided guidance on the duty to reasonably accommodate employees with disabilities in the long-running case of Marie Daly v Nano Nagle School. The court emphasised the importance of helping employees with disabilities. It ruled that if after reasonable accommodation, an employee remains unable to undertake the duties attached to the position entirely, there can be no finding of discrimination. The court also clarified that it would be a disproportionate burden on the employer if the employee was accommodated to the extent that she would essentially be doing a new job. While the Supreme Court guidance is welcome, the issue of providing reasonable accommodation to disabled employees remains dependent on the facts of each case and employers must handle carefully.

 

  1. Right to Legal Representation in internal disciplinary proceedings

 

The Supreme Court ruled in November that employees have no automatic right to bring legal representatives to internal workplace disciplinary procedures. In McKelvey v Irish Rail, the court ruled that an employee would need to establish that they have an ‘exceptional’ case that requires the involvement of lawyers. The decision focused on the fact that the employee, Mr McKelvey, enjoyed the benefit of being represented by an “experienced trade union official.” If an employee in a non-unionised employer requests legal representation for an internal procedure, the facts of the case should be carefully considered before deciding on whether or not to involve legal representatives.

 

  1. Brexit small business supports

 

Last October’s Budget announcement included nearly €1 billion in financial supports to bolster the economy against the possible negative impact of Brexit. €600m has been earmarked for a Brexit loan and growth scheme with a further €100 million set aside to help people at risk of losing their jobs. An additional €10 million in loans will be available to small at-risk companies. These supports could prove valuable to employers and employees alike during what could be a turbulent time.

 

  1. Maternity leave discrimination

 

Equality statistics issued by the Workplace Relations Commission reveal that gender was the second leading ground for discrimination claims in the first half of 2019. Many of the gender-based discrimination claims arise from the employer’s failure to comply with their obligations surrounding the return to work after maternity leave. Maternity protection legislation is explicit in providing employees with a right to return to the same job on the same terms and conditions following a period of maternity leave. Further, gender discrimination claims arise from an employer dismissing a pregnant employee during their probation period. Employers are encountering difficulty here in circumstances where they cannot evidence an ongoing performance concern and cannot evidence any previous discussions with the employee concerning their work performance. Awards in gender-based discrimination claims are uncapped, and the WRC will come down particularly hard on employers who try to circumvent maternity rights.

 

  1. Age discrimination and mandatory retirement ages

 

Nearly a fifth of the Irish workforce is now aged over 55. With many of these older workers showing a desire to work beyond traditional retirement ages, the risk of breaching employment equality legislation on the ground of age is particularly high. Employers should ensure that retirement ages are objectively justified by a legitimate business aim to minimise the risk of age discrimination claims. All employers should adopt clear retirement policies in line with the Code of Practice on Longer Working and communicate to all employees.

 

  1. Harassment/continuing fallout of #MeToo

 

A recent ICTU survey revealed that four out of five workers who experienced sexual harassment at work did not report the incident to their employer. While the #MeToo movement has shone a light on the problem of workplace harassment, the ICTU survey results suggest that employees remain reluctant to pursue complaints. Dignity at work policies should include a clear reporting procedure and supports for victims to ensure employees receive their right to a workplace that is free from bullying and harassment.

 

  1. Mandatory gender pay gap reporting

 

The government published the Gender Pay Gap Information Bill in April. The proposed law will require employers to publish salary information (unspecified as yet) along with a narrative explaining the rationale for any gender pay gap that exists. While the passage of the legislation through the houses of the Oireachtas has been slow, employers in larger organisations (more than 250 employees) should begin a payroll audit to explore the potential impact (if any) of mandatory gender pay gap reporting. If an organisation reveals a significant gender pay gap, it will likely attract unwanted negative publicity and equal pay claims.

 

 

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Peninsula is Ireland’s most trusted employment law and HR consultancy, offering a 24-hour advice service 365 days a year, so clients can consult directly with their employment law and HR experts

 

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