Employer Resources Newsletter - May 2023

The Work Life Balance and Miscellaneous Provisions Bill has now been signed into law by the President and while we await details on the commencement of the provisions there are a number of actions that employers in the non-profit sector should prepare for.

Background:

The Work Life Balance and Miscellaneous Provisions Act, 2023 transposes Articles 6 and 9 of the EU Work Life Balance Directive into Irish law. The Act provides for the introduction of new rights for employees to support a better balance of family life, work life and caring responsibilities and amends a number of pieces of legislation such as the parental leave acts, maternity protection, adoptive leave act, family leave act and more.

New and Amended Rights & Entitlements
The Act introduces a number of new and amended changes to the rights of employees including:

Preparing for Compliance:

Organisations within the non-profit sector must ensure compliance with the Act and whilst we await further details on the commencement timeframe there are a number of actions that should be taken now to prepare for the upcoming changes.

Develop Policy/ Policies

• Leave for Serious Medical Care
• Leave for Victims of Domestic Violence
• Requests for Flexible Working for Parents/ Carers
• Requests for Remote Working (following publication of the Code of Practice)

Prepare

• Application forms for ‘Leave for Serious Medical Care’ and ‘Requests for Flexible Working for Caring Purposes’.
• Template acknowledgement letters responding to the caring leave requests.
• Confirmation documents highlighting various working arrangements for signature.

Amend

• Maternity Leave Policy (re extended breastfeeding breaks)
• Maternity & Adoptive Leave Policy (re transgendered males availing of maternity/ adoptive leave)
• Contracts of Employment (to include clause on right to request flexible working in accordance with the Act and in compliance with Code of Practice)

Commencement Dates

It has been reported that much of the rights in the legislation will be commenced on a staggered basis, and that some provisions could be brought in within a matter of weeks such as the time off for breast-feeding and the leave for medical care purposes.

Minister Roderic O’Gorman said his goal is to have the other key aspects of the legislation - paid leave for victims of domestic abuse, the right to request flexible working arrangements for the purpose of caring for family members and the right to request remote working – in place by the Autumn. The rate of pay for domestic violence leave is still to be decided and the Code of Practice in relation to the right to request remote working still needs to be developed in the Workplace Relations Commission.

Claim of Unfair Dismissal upheld following employee’s resignation

Background:

The context of this complaint is a resignation where the Complainant handed in her notice and later attempted to rescind her decision. The Complainant is long serving and is highly qualified. The Complainant went through a devasting bereavement and was later asked to move to another placement, and it is this change that gave rise to her leaving the Charity. The Complainant stated that she had an allergy where she developed chronic chest respiratory difficulties and resisted the move based on that condition. However, after resigning her GP advised her to rescind her decision as she was in fact experiencing huge anxiety and stress linked to the bereavement and the request to change placement while a significant change, was not the reason she resigned. In fact, she was not in a fit state to make such a major life/career decision. Following consultation with her GP she wrote to her employer outlining that she was no longer proceeding with her resignation based on medical advice. That request was not accepted by her employer based on a policy where once a resignation has been put in train it cannot be withdrawn. A preliminary matter relating to the type of dismissal being a dismissal simpliciter or a constructive dismissal was determined by the Adjudicator to be a dismissal simpliciter.

Summary of Complainant’s Case:

The Complainant had over 16 years’ service with the charitable organisation and in the last years of her employment was under huge stress. Without legal or medical advice, she formally handed in her resignation when she was asked to move location in January 2022.

However, after speaking to her GP and family it soon became clear to her that she was not in a fit mental state to make such a decision. She realised she had made a mistake and in February 2022 made a request that her resignation be withdrawn. That request was refused. Subsequently further correspondence was sent by her Solicitor stating that the employer should not proceed with the termination and to re-engage with the Complainant.

The Complainant’s requests were refused. The Complainant submitted that the Respondent acted unreasonably.

Summary of Respondent’s Case:

The Respondent outlined that the dismissal of the employee cannot be deemed unfair if it results wholly or mainly from the conduct of the employee and her resignation and referenced a common law rule regarding notice, stating that once given by either party it cannot be unilaterally withdrawn. The respondent stated that there was no haste in the decision made by the Complainant as she initially communicated her decision to Human Resources and a few days later to her line manager. The Respondent also referred to the letter of resignation wherein it was detailed that the Complainant stated she had given it a lot of thought and she would like to focus on her health and family and to undertake work that would suit those commitments.

The Respondent outlined at the time of the request to withdraw the resignation the recruitment process had started and in was not practical to stop the process.

The Respondent’s position was that the Claimant is not entitled to seek any redress under the Unfair Dismissals Act 1977 as amended as the Complainant had in fact contributed 100% to their dismissal.

Findings and Conclusions:

The Company relies on a universal application of a policy that where an employee resigns that resignation is never rescinded. The Charity was willing to place the Complainant on an agency panel after leaving the Organisation. The Complainant in fact wrote a very complimentary note to her employer when resigning.

The Respondent stated that they were under no special duty to this employee. They were not aware of the fact that she was traumatised or that she was not in a fit position to make a decision.

The Adjudicator outlined that the facts of this case are all indicative of a resignation that was tainted by reason of her confused state of her mind and referred to an academic publication noting that if, “an employee tries to withdraw a notice of resignation, an employer should ask itself whether special circumstances exist. If so, they may cast doubt on whether the resignation was really intended. The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts”.

On the facts, the Adjudicator found that the Complainant was not in a fit state of mind to resign from her position. The employer was put on notice that the Complainant wished to withdraw her decision to resign. She referenced that she had made this decision after meeting her GP. On receipt of this communication, it was obligated to make inquiries at that time and the Complainant’s long service. It did not. The Complainant was clearly not able to make such a choice. The employer should have met the Complainant and discussed with her why she was now rescinding the decision. Based on a policy that is inflexible and justifying that practice on equity when on the facts of this case, that policy was applied unfairly and unreasonably having regard to the state of mind of the Complainant. It was not a decision based on bad intent, rather a policy driven process that failed to appreciate the state of mind of the employee and that she was not in fit mental state to make that decision to leave her job after 18 years of excellent service.

The Adjudicator determined that the Complainant was Unfairly Dismissed by the employer as she was not in a fit state to make that decision. In assessing the form of redress and notwithstanding the employee had secured alternative employment (working in a much less responsible role and with significantly less compensation), it was noted that the matter of redress and what is preferred by the Complainant or Respondent is without prejudice to the Adjudicator’s obligation to make what is the right decision based on the circumstances of this case.

Decision:

In his decision the Adjudicator determined that the Complainant was Unfairly Dismissed and noted that compensation was not an adequate remedy based on a commitment to a career in social services. As the employee sought to set aside her resignation and be allowed to continue in her role the Adjudicator found that the Complainant should be reinstated.

Our Commentary:

Where a termination arises, specifically through a resignation, an employer should seek to understand and consider the circumstances surrounding this termination. When a resignation is presented, which on the face of it does not present concerns, it is essential that an employer considers all aspects of that resignation and acts reasonably in addressing any concerns expressly or implicitly attached to the resignation. In this case, the employee made the decision to resign on the back of a very serious life event and where it became clear to her that she was not in a fit mental state to make this decision following a visit to her GP, her request to withdraw the resignation was refused. Any employer is legally required to maintain the health, safety and welfare of an employee and where there is explicit evidence that would lead the employer to become aware of any concerns, they need to understand the circumstances first in order to then make an informed decision.

EU Directive on Pay Transparency and Employer Implications

On March 30th, 2023, the European Parliament accepted the legislative proposal of the European Commission supporting the application of the principle of equal pay for equal work through the EU Pay Transparency Directive. This is a further step in ensuring sufficient measures are in place to protect employees and their right to fair and equal treatment when it comes to remuneration.

While Member States have three years to transpose the legislation into national law, in May 2022 the Employment Equality (Pay Transparency) Bill 2022 entered into the legislative process and it is currently at the second stage of Dáil Éireann.

Key elements of the EU Directive 

Pay transparency measures:

• Pay transparency for job-seekers – employers will have to provide information about the initial pay level or its range in the job vacancy notice or before the job interview. Employers will not be allowed to ask prospective workers about their pay history.
• Right to information for employees – employees will have the right to request information from their employer on their individual pay level and on the average pay levels, broken down by gender, for categories of workers doing the same work or work of equal value. This right will exist for all employees, irrespective of the size of the company.
• Reporting on gender pay gap – in a first stage, employers with at least 250 employees will report every year and employers with between 150 and 249 employees will report every three years. As of five years after the transposition of the Directive, employers with between 100 and 149 employees will also come under scope for reporting purposes.
• Joint pay assessment – where pay reporting reveals a gender pay gap of at least 5% and when the employer cannot justify the gap on basis of objective gender-neutral factors, employers will have to carry out a pay assessment, in cooperation with workers' representatives.

Better access to justice for victims of pay discrimination:

• Compensation for workers – workers who have suffered gender pay discrimination can receive compensation, including full recovery of back pay and related bonuses or payments in kind.
• Burden of proof on employer – where the employer did not fulfil its transparency obligations, it will be for the employer, not the worker, to prove that there was no discrimination in relation to pay.
• Sanctions will include fines – Member States should establish specific penalties for infringements of the equal pay rule, including fines.
• Equality bodies and workers' representatives may act in legal or administrative proceedings on behalf of workers.

What can organisations in the nonprofit sector do to prepare?

It is worth mentioning that are two private member Bills relating to the area of gender pay transparency which are currently before the Oireachtas and while they are both at early stages of the process it is timely for organisations within the non-profit sector to commence the planning process that is impact driven and results orientated thus creating a transparency around this important subject.

There a number of practical considerations and plans to put in place in order to prepare for compliance and plan for change.

This process could include:

• Development of a Communications Strategy that specifically addresses Pay Transparency
• Developing Remuneration Policies and Procedures
• Reviewing your existing recruitment process and identifying gaps
• Review any shortfalls & develop an action plan to address and mitigate any risks.

If your Organisation requires support, advice or guidance on developing and implementing policies and procedures or developing HR Strategy contact our expert-led team at Adare Human Resource Management.

Dublin Office: (01) 561 3594 | Cork Office: (021) 486 1420 | Shannon Office: (061) 363 805
info@adarehrm.ie | www.adarehrm.ie