Employer Resources Newsletter - February 2022

There was a sense of a return to normality at the end of January when the Government announced an end to most of the restrictions put in place because of the pandemic. This included the requirement to work from home unless necessary to attend the workplace in person.

In line with this, a new Transitional Protocol was published, which was basically a revised version of the Work Safely Protocols and highlighted that many employers may want to keep some of the rules in place for the health and safety of their employees. This might be particularly relevant to some organisations in the nonprofit sector who may have vulnerable employees or clients.

In this article, Adare Human Resource Management outline what is contained in the Transitional Protocols.

The Transitional Protocol: Good Practice Guidance for Continuing to Prevent the Spread of COVID-19 was published on Monday, 31 January 2022 and is a revision of the Work Safely Protocol.  It provides advice and guidance for employers and workers to maintain infection prevention and control (IPC) and other measures to allow a safe return to the workplace and its continued safe operation including a gradual process for returning to the workplace, ongoing consultation with employees and their representatives as well as introducing permanent blended working arrangements where appropriate and supports for employees nervous about the return to the office.

The Protocol states that while the pandemic is not yet over given the potential of new variants, it outlines that some measures have been relaxed including the requirement to maintain a two-metre distance, and that employers are not obliged to retain contact details of all office visitors, (but may need to provide attendance information to health officials in the event of a Covid outbreak in the workplace).

Employers, however, should consider maintaining some of the practices laid out in the previous versions of the Work Safely Protocols for a period of time particularly around meetings, events or staff training and in the nonprofit sector, continue to be cognisant of the communities in which it works and potentially vulnerable clients.

The use of hand sanitiser, correct respiratory etiquette and ensuring adequate ventilation are all still noted as important measures to prevent the spread of Coivd-19.  The Protocols also state that mask wearing may be considered in situations where employees share work vehicles and that employers should facilitate and support the use of face masks by employees who wish to continue wearing them.

Each workplace should update and maintain their COVID-19 Response Plan including plans around suspected cases among employees and continue to keep employees updated around key changes. The Protocols document states that anyone who develops symptoms, even if fully vaccinated and boosted, should self-isolate immediately as this is a critical prevention component.  A key message remains that an employee should not attend the workplace if they are displaying any signs or symptoms of COVID-19 or if they have a positive COVID-19 test and employers should ensure that this is clearly communicated to employees.  It’s also important that workplaces appoint at least one Lead Worker Representative (LWR) who is in charge of ensuring that COVID-19 measures are strictly adhered to in their place of work.

The LWR, together with the COVID-19 response management team, should support the implementation of the public health measures set out in the Work Safely Protocols as well as ensuring the organisation’s Covid-19 Response Plan is clearly communicated to all. The identity of the person or persons appointed should be clearly communicated within the workplace. Ensuring a safe workplace requires strong communication of key messages, consistency in the implementation of infection prevention and control measures such as rapid self-isolation of those displaying symptoms, and a shared collaborative approach between employers and employees. Employers, employees and/or their recognised Trade Union or other representatives need to continue to have regular engagement about COVID-19 infection prevention and control (IPC) measures in workplaces even with the changed public health advice issued on 21 January 2022.

The full The Transitional Protocol: Good Practice Guidance for Continuing to Prevent the Spread of COVID-19 can be found on the Adare Human Resource Management website here.

Background

The respondent runs a number of housing projects and schemes, primarily aimed at assisted living for the elderly.  The complainant was employed from 1 November 2014 until 29 October 2020.

Summary of Complainant’s Case

The complainant submitted that she was subjected to unfair dismissal when she was unfairly chosen for redundancy citing that there was no consultation prior to the redundancy, no meaningful engagement during the process, that the suggestions provided by her through her representative were ignored, not considered and not acted upon.

The complainant submitted that her membership of a trade union and her role as shop steward played a part in her selection for redundancy. Though her selection for redundancy was appealed the complainant outlined that she only received the result some four months later and that the appeal manager did not ask her any questions and technical difficulties arising in the remote appeal (i.e., no visual connection with the decision maker), resulted in a very unfair process. 

Summary of Respondent’s Case

The respondent submitted that the complainant was not unfairly dismissed as the redundancy arose due to restructuring due to Health & Safety concerns for clients brought about by obsolete technology in the workplace together with technology advancements and was also necessitated by the change in financial circumstances for the organisation as it had to plan for future investment by cutting back on its current expenditure.

The respondent submitted it was an unfortunate time to have to terminate anybody’s employment and that it had identified three positions that it needed to dispense with as it was changing technology.  Arising from this the organisation made the three people occupying those positions redundant.

The respondent stated that it did not have an anti-union bias in dealing with the complainant or the process for selection for redundancy and that they had at the time apologised for the delay in sending out the result of the appeal but held that the appeal was valid.

Findings and Conclusions

The complainant suggested that she had been made redundant because of her membership of and role in a Trade Union due to her acting as shop steward but also her contention that the respondent was generally anti-union.  To support this proposition, the argument was advanced that because the respondent did not want to wait for a specific representative to return from annual leave, it was anti-union, and this contributed to the complainant being made redundant.  It was also put forward that one individual who undertook one nightshift but was not a union member was retained and this reflected on the respondent’s anti-union bias, a matter denied by the respondent due to that individual’s maintenance qualifications.

The Adjudicator was not satisfied that the complainants’ activities as shop steward accounted for her selection for redundancy as two other individuals were also chosen for redundancy and all three occupied the role being made redundant, that of night supervisor.  However, it was noted that all three individuals selected for redundancy were union members. Also noted by the Adjudicator, through the provision of evidence, was that the complainant was originally employed as a cook and that apart from the maintenance position, the manager position and the chef position, the remainder of the staff positions required no particular skills and could have been filled by the complainant. 

The respondent confirmed that it did not explore options relating to making other persons redundant to any great degree or sought voluntary redundancy, but rather concentrated upon the three post holders as their only options from the outset. The evidence demonstrated that there were 12 or possibly 13 positions in the respondent premises at this location at the time, with only 3 positions requiring particular skills. 

While the Adjudicator was satisfied that a genuine reason relating to finances, advancements in technology, and regulatory changes to effect redundancies existed, it was deemed appropriate to consider if the steps taken by the respondent were reasonable in all the circumstances. 

The Adjudicator found that where there were no agreed procedures in place to consider redundancy, it was not fair and reasonable to discount all other options without some level of substantive consideration. Arising from this and the lack of any independent matrix or process used in the selection of the employees to be made redundant, the Adjudicator found it hard to discount their union membership as being a contributory factor in the selection for redundancy as suggested by the complainant, particularly as the complainant was originally recruited as a cook - but was not satisfied that the redundancy resulted wholly or mainly from that membership. 

Decision

In consideration of all the evidence the conduct of the respondent was not deemed as fair and reasonable.  Accordingly, it was found that the respondents approach amounted to unfair selection for redundancy and as such the complainant was unfairly dismissed. Compensation in the amount of almost €14,000 was awarded to the Complainant, equating to 45 weeks salary less any redundancy payment already made.

Our Commentary

Having a genuine reason to instigate redundancies and following a fair process is vital for Employers who want to avoid any potential claims from their Employees. In selecting a particular Employee for redundancy, an Employer should apply selection criteria that are reasonable and are applied in a fair manner. Examples of these would include where the custom and practice in the workplace has been last in, first out or where the Employee’s contract of employment sets out criteria for selection or the practice of a selection matrix being used.

Statutory Sick Pay approved by Oireachtas Committee on Enterprise, Trade & Employment

Earlier this month (Feb 2022), the Government’s plan to introduce Statutory Sick Pay was approved by the Oireachtas Committee on Enterprise, Trade & Employment, which aims to ensure that all employees have a right to statutory sick pay.

The Bill is to be phased in over a four-year period, starting with three days per year in 2022, rising to five days payable in 2023 and seven-days payable in 2024. Employers will eventually cover the cost of 10 sick days per year in 2025. Employees must have 13 weeks continuous service with their employer to be entitled to sick pay as outlined in the Bill.

The payment rate for statutory sick pay has been set at 70% of an employee’s normal rate, subject to a maximum of €110 per day. The employer must deduct taxes as normal and it was outlined in the Bill that the employee must be medically certified as unfit for work to qualify for statutory sick pay.

Whilst the Committee does approve the plan, some concerns and recommendations have been brought forward:

• Committee members were concerned about the requirement for medical certification as they do not want certification to act as an additional obstacle.
• If certification is required, then there should be some form of rebate for any associated costs, particularly for lower paid employees.
• The Committee also called for businesses to be given an exemption from paying sick pay if they can demonstrate to the Labour Court that they genuinely cannot afford to make the payment.

Employers will have to retain records of all statutory leave taken by their employees for a period of four years and employees maintain all existing employment rights when availing of benefits under the proposed Statutory Sick Pay legislation.

The right to statutory sick pay will be legally enforceable by employees through the Workplace Relations Commission and the Courts. Remedies available to successful complainants will include an award of compensation up to a maximum of 20 weeks remuneration.

Whilst this is therefore a positive step forward, the final detail of the proposed Statutory Sick Pay Scheme will not be known until the supporting legislation is passed.  Furthermore, the Committee recommendations add some uncertainty regarding what Employers can expect.  It seems clear however, that employers across all sectors including the nonprofit will likely face additional payroll costs over the next number of years and should now be preparing to plan and budget accordingly.

Irish Corporate Governance (Gender Balance) Bill 2021

According to the Gender Balance in Business Survey 2021 from the Central Statistics Office just 13.4% of CEOs in Ireland are female, up slightly on 2019 when the figure stood at 11.5%. The same survey found that 14% of Chairpersons of Irish companies were female, women made up 21.8% of Boards of Directors and 28.1% were Chief Financial Officers. There are similar issues across other senior positions in organisations across all sectors.

To help address this issue of gender balance on Irish boards, a new Private Members’ Bill was brought forward in October 2021. The Irish Corporate Governance (Gender Balance) Bill 2021, would, if enacted, establish a 40% quota for female representation on company boards. The Bill includes a stipulation that 33% of a company’s board must be women after the first year of its enactment. This quota would then rise to 40% after three years.

The Bill would require organisations to submit a statutory declaration to be made by the chairperson of the governing body, e.g., board, in the Annual Return or annual financial statements that the gender balance requirements have been complied with. If they are unable to comply then they will be required to disclose the reasons why. And, where an organisation fails to meet the gender balance quota without a credible explanation, they could become liable for an application to the High Court for an order directing them to comply with Bill (or Act if enacted). The quotas would apply to boards and governing councils of designated companies, corporations, undertakings, charities and bodies in the State.

There are a few exemptions laid out, including for companies with fewer than 20 employees. Other exemptions include:

• Unincorporated associations,
• Partnerships,
• Limited liability partnerships,
• Single director companies,
• Micro company, or,
• Other corporate body that has an annual turnover of less than €750,000.