Employer Resources Newsletter - January 2022

What employers in the nonprofit sector need to know for 2022...

Sick Leave Bill 2021

In November 2021, the Government published the Sick Leave Bill 2021 which provides further details on the statutory sick leave payments for Employees. The Bill provides that an Employee, subject to their having 13 weeks continuous service with their Employer shall be entitled to up to and including 3 sick leave days per annum, or such additional number of statutory sick leave days as may stand specified from time to time by order of the Minister.

The Government’s statutory sick pay will 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.

The payment rate for statutory sick pay has been set at 70% of the Employees’ normal rate, subject to a maximum of €110 per day. The Employer must deduct taxes in the normal manner and the Employee has to be medically certified as unfit for work to qualify for statutory sick pay.

Like all Employers, those in the Nonprofit sector will have to retain records of all statutory leave taken by their Employees for a period of 4 years and Employees maintain all existing employment rights when availing of benefits under the proposed Statutory Sick Pay legislation. The right to 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.

Given this will be an additional cost burden on employers, Nonprofits organisations should already be planning for the potential impact of the scheme and also consider where changes to existing policies are required.

Gender Pay Gap Information Act 2021 

The Act amends the Employment Equality Act 1998, and provides that the Minister for Children, Equality, Disability, Integration and Youth will make regulations requiring certain private and public sector Employers to report and publish information relating to their gender pay gap, and, where there is a gap, to explain why there is a gap and what measures are being taken to reduce it.

Family Leave and Miscellaneous Provisions Act 2021 

As of 1st April 2021 and following the enactment of the Family Leave and Miscellaneous Provisions Act 2021, parents are entitled to 5 weeks leave under Parent’s Leave, an additional 3 weeks on the previous entitlement. The Act goes further and extends the period in which the leave can be taken to the first 2 years after the birth or adoptive placement of a child. The aim of the extension is to allow parents spend more time with their children during the first two years of the child’s life.

If the parent has already taken their 2-week entitlement, then they can take a further 3 weeks in 2021 (subject to the two-year limit).

The enactment of the Family Leave and Miscellaneous Provisions Act 2021 amends the Adoptive Leave Acts to enable adoptive couples to choose which parent may avail of adoptive leave thus removing the assumption that the adopting mother is the primary caregiver. The Act also makes Paternity Leave and Benefits available to the parent who is not availing of adoptive leave.

Furthermore, the Act amends the Social Welfare Consolidation Act 2005 and certain other enactments; to amend the Child and Family Agency Act 2013 to increase the number of ordinary members of the Board of the Child and Family Agency to 9. It also amends the Judicial Council Act 2019 and the Personal Injuries Assessment Board Act 2003 to make further provision in relation to the operation of personal injuries guidelines adopted by the Judicial Council.

It was also announced in Budget 2022, that additional changes to parent’s leave provisions will apply from July 2022, to include:

• 5 weeks’ parent’s leave will increase to 7 weeks for each parent
• 5 weeks’ Parent’s Benefit will increase to 7 weeks for each parent (if you qualify).

Workplace Relations (Miscellaneous Provisions) Act 2021 

The Act amends the Workplace Relations Act 2015 to allow for public hearings and makes provision for Workplace Relations Commission adjudicators to take evidence on oath or affirmation. The fact that hearings can be done in public is a watch-out for nonprofit organisations, given the potential negative reputational damage.

The Act also provides that the applications in relation to the enforcement of decisions of adjudication officers shall be made on notice and that the chairman, deputy chairman and ordinary members of the Labour Court shall be independent in the performance of their functions.

Code of Practice for Employers and Employees on the Right to Disconnect 2021

The purpose of the Code is to provide practical guidance and best practice to Employers, Employees and their representatives in relation to the Right to Disconnect.

The Code is designed to provide guidance for the resolution of workplace issues arising from the Right to Disconnect both informally and formally, and:

• complement and support Employers’ and Employees’ rights and obligations under the Organisation of Working Time Act 1997, the Safety, Health and Welfare at Work Act 2005, the Employment (Miscellaneous Provisions) Act 2018 and the Terms of Employment (Information) Act 1994 – 2014,
• assist Employers and Employees in navigating an increasingly digital and changed working landscape which often involves remote and flexible working,
• provide assistance to those Employees who feel obligated to routinely work longer hours than those agreed in their terms and conditions of employment.
• assist Employers in developing and implementing procedures and policies to facilitate the Right to Disconnect.

Protected Disclosures (Amendment) Bill 2021 

The Minister for Public Expenditure and Reform, Mr Michael McGrath TD, recently published the General Scheme of the Protected Disclosures (Amendment) Bill 2021. The purpose of this Bill is to provide for the transposition of the EU Whistleblowing Directive into Irish law which aims to further enhance and strengthen the protections it provides.

The key provisions of the Bill are as follows:

1. The extension of the personal scope of the Protected Disclosures Act to volunteers, unpaid trainees, board members, shareholders and job applicants.
    
2. An obligation on all private sector organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures. A derogation until 17 December 2023 will be put in place as regards this requirement for organisations with between 50 and 249 employees. All public sector organisations, regardless of size, are already required to have formal protected disclosures procedures in place under the 2014 Act.
    
3. Employers and prescribed persons designated to receive protected disclosures under the Act will be subject to an obligation to:
   • Acknowledge receipt of the protected disclosure within 7 days,
   • Follow-up diligently on the information contained in the protected disclosure,
   • Provide feedback to the reporting person on the actions taken or envisaged to be taken as follow-up within 3 months.
   • Communicate to the whistleblower the final outcome of investigations triggered by the protected disclosure.
      
4. A Protected Disclosures Office will be established within the Office of the Ombudsman, which will:
   • receive and redirect, as appropriate, protected disclosures made to prescribed persons under section 7 of the Act of 2014,
   • support Ministers who receive protected disclosures under section 8 of the Act of 2014 by carrying out an initial assessment of the disclosure and making recommendations as regards actions for follow-up; and
   • in cases where a suitable authority cannot be identified within the prescribed timeframe, follow-up directly on disclosures referred to the Office.

Trust ordered to pay €40,000 to former manager

Background

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.

At the outset of the hearing the parties’ attention was drawn to the judgment from the Supreme Court in the case of Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 and the key points were set out to the parties. The parties were informed of the procedural changes applicable to the hearing of all complaints post the judgment. The parties were invited to present their views in that regard.

The Complainant advised the due to the failure of the Respondent to file submissions, she was not in a position to comment on whether there would be a conflict of evidence. The Respondent stated they agreed with the outline provided by the Complainant in her Complaint Form. On that basis it was agreed that the hearing would proceed, and should a conflict arise it would be adjourned.

No serious and direct conflict of evidence emerged during the  course of the hearing and consequently, there was no requirement for the Adjudicator to adjourn the hearing to await the amendment of the Workplace Relations Act, 2015 and related enactments to grant Adjudication Officers the power to administer an oath or affirmation.

The Complainant was employed as a Supervisor with the Respondent until the date of her redundancy on 24 January 2021. Following unanswered letters from her solicitor to the Respondent, she submitted her Complaint Form to the WRC on 15 April 2020.

The Complainant earned a gross monthly salary of €3,347.50 and worked a 39 hour week.

Summary of Complainant’s Case:

The Complainant was employed from September 2012 to 24 January 2020 as a Supervisor with a FÁS Community Employment Scheme (the “Scheme”). She stated she had a clean disciplinary record and worked diligently on behalf of her employer. She described the Scheme she managed as being very successful achieving well above the national average of placing participants in employment or education. The Complainant stated the Scheme was audited twice a year and she was regularly complimented by the auditor on the success of the Scheme.

On 9 December 2019, she was asked by the Secretary of the Board to organise a staff meeting for 12 December 2019. At 8am on 12 December 2019, she received an email from the Secretary stating that the Respondent would no longer act as sponsor to the Scheme. He further stated in the email that he had asked the Department of Social Protection to attend the meeting “to discuss placement options with other sponsors”. The meeting with the Secretary of the Board, the Department and the Scheme staff took place on 12 December 2019. At the meeting, staff were told that their jobs were safe and they would be redeployed to other schemes. When the Complainant asked about her role she was told, in front of the entire staff, that she was to be made redundant.

The Complainant was sent an email on 16 December 2019 from the Secretary of the Board stating that the Trust were formally giving notice that her employment was to be terminated in January 2020 at the end of the current CE contract.

The Complainant described the meeting of 12 December 2019 as “humiliating” to be told she was being made redundant in front of her colleagues. She made attempts to contact her employer between December 2019 and January 2020 which remain unanswered.

The Complainant submitted that the Respondent made no effort to go through the redundancy process with her prior to terminating her employment. There was no consultation as to alternatives to redundancy nor was she offered alternative employment like her colleagues. The Complainant was not afforded the opportunity to appeal the redundancy decision.

The Complainant referred to the Community Employment Procedures Manual and in particular section 3.5 which outlines the Responsibilities of the Sponsor. The opening lines of section 3.5 states; “The Sponsor organisation is the legal employer of the CE Supervisor and the participants. As the employer, the Sponsor should be fully aware of all relevant legislation and be committed to fully implementing its spirit and letter at all times (see www.dbei.gov.ie).”

Further reference was Chapter 8: Review of CE schemes / Restructuring and in particular the procedure:

It was submitted at the hearing that the Complainant did raise an issue with a Board member in 2018 which was investigated, and her complaints upheld. She felt that there had been a change of attitude towards her since that investigation.

It was submitted that there was an absence of her employment rights, fair procedures and natural justice by the Respondent, the decision to terminate the Complainant’s employment was a fait accomplí in breach of trust and confidence.

The Complainant outlined her attempts to find alternative work. She undertook a Diploma, a Start your own business course and set up her own business in March 2021, with the  Complainant outlining plans to  undertake further education in July 2021. In the meantime, she continued to search for employment and had been placed on the panel for a public service role. Documentary evidence was furnished by the Complainant.

Summary of Respondent’s Case:

In response to the complaints the Respondent stated that having read the submissions “the facts are all in order”. The Respondent stated that he “agreed with your outline of events” and made specific reference to the meeting of December 2019 where the Complainant was informed of the decision to make her role redundant. He agreed that the Complainant asked what her position would be at meeting of the 12 December 2019. The Respondent sought guidance from the Department  of Social Protection about her position and was told her position was between the Complainant and Respondent. As a consequence of the change in structure there was no funding for the Complainant’s position.

The Respondent stated that the Board had absolute trust in the Complainant and agreed with everything she said about her positive work. Her work was independently audited by the Department of Social Protection who complimented her. Her work was held in the highest esteem.

Findings and Conclusions:

The issue of submission was raised at the outset of the hearing. Despite an initial request on 12 May 2020 from the Workplace Relations Commission and a follow up reminder on 26 August 2020 no response was received to the request for submissions, but the Respondent did send a letter dated 28 August 2020 advising the Board had received the claim on 17 August 2020. At the outset of the hearing this was highlighted to the Respondent.

The Employment Appeals Tribunal case in Gerry Fennell v Resources Facilities Support, [2011] 22 E.L.R. 26 was cited where it was held:

 “When an employer is making an employee redundancy, while retaining other employees, the selection criteria being used should be applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria to be adopted will come under close scrutiny if an employee claims they were unfairly selected for redundancy. The employer must follow the agreed procedure when making the redundancy. Where there are no agreed procedures in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably”.

The Respondent stated having read the facts set out in the Complaint Form they “are all in order” and the Respondent had “no option” but to make the Complainant redundant. Consequently, there was no dispute on the facts of this case from the Respondent. While the Respondent gave an outline for the reasons for the redundancy, no supporting documentary evidence was presented. Neither was the basis of the redundancy challenged by the Complainant. Consequently, the Adjudicator found that  a redundancy situation did occur.

What was challenged was the failure of the Respondent to apply fair procedures to the redundancy process; failure to consult with her, failure to consider alternatives to redundancy , failure to offer alternatives to redundancy, failure to allow her attend meetings with a representative, failure to offer paid time off to seek alternative employment. Generally, it was found to be  clear that there was a failure on behalf of the Respondent to engage at any level with the Complainant in the decision to make her job redundant, which was outlined as simply not good enough for an employer and cited the Employment Appeals Tribunal case in Gerry Fennell v Resources Facilities Support, [2011] 22 E.L.R. 26 where it was held:

“The Tribunal considered all of the evidence adduced; it is for the respondent to establish (a) that a redundancy situation arose and (b) that they acted reasonably and fairly towards the claimant in addressing that situation. It is found that a redundancy situation arose and that the respondent did not behave reasonably and fairly with the claimant “

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that a decision be made in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. Having considered all the facts of this case, the Adjudicating Officer found that the complaint was well founded.

Redress:

The Adjudicator determined that the Complainant had demonstrated great efforts to mitigate her financial loss and obtain alternative employment after her dismissal stating that there was  no doubt she faced a difficult time for her industry as a result of the Covid19 global pandemic over the previous 18 months from the date of her dismissal. 

The Adjudicating Officer found that the award of compensation of financial loss in the sum of €40,170, one year salary, just and equitable in the circumstances where there was a complete failure on the part of the Respondent to apply fair procedures to the Complainant’s dismissal. It wasnoted that this award of compensation for financial loss included any sum of statutory redundancy made to the Complainant upon termination of her employment.

Extra public holiday for 2022 and additional public holiday in 2023

The Government has announced plans for an additional ‘once-off’ public holiday on 18 March this year. The date will be marked as a day of remembrance and recognition for those who died and worked throughout the pandemic.

A €1,000 bonus for public sector healthcare workers has also been approved by Cabinet. Healthcare workers in private nursing homes will be included in this also. 

In addition, from 2023 there will be a new annual public holiday at the start of February. 

Minimum wage increase from 1 January 2022

From 1 January, all workers on an hourly rate should have an increase in their hourly wage. The increase in payment is being made to help people meet the rising cost of living in Ireland.

From January 2022:

• anyone aged 20 or over will now earn €10.50 per hour
• anyone aged 19 will get €9.45 per hour
• anyone aged 18 will earn €8.40 per hour
• anyone under 18 will get €7.35 per hour.