Employer Resources Newsletter - January 2023

Where are we now?

The first-ever publication of gender pay gap reports in Ireland, which began in December, suggests there is movement afoot in organisations to reduce inequality and move towards gender parity.

Several big employers have reported a gender pay gap of zero or near zero per cent.

A further analysis of government departments indicates that the average pay for men is higher than for women in all but one of fifteen departments. The Department of Children and Equality reported an average gender pay gap of minus 3.6 for the year to June 2022, while men were better paid in all fourteen other departments.

However, the overall pay gap that emerged across government departments was below the average of 11.3 per cent.

Compliance with the new reporting legislation brings with it obligations to reduce inequalities in pay and conditions and to improve female representation and diversity.

These requirements will extend to smaller organisations over the next two years as pay gap reporting extends in 2024 to organisations with over 150 employees and to those with over fifty employees in 2025.

The significance of having an inclusive workplace is key to organisational success. Already those organisations who are indicating a low or zero pay gap are using the findings to display Best Practice and as a tool for attracting talent.

The nonprofit sector must also be progressive in addressing this issue and in being compliant with the legislation. As staff and teams are key to the success of many charitable organisations, often going above and beyond to reach the organisation’s goals, ensuring inclusive practices are to the fore are a strategic means of addressing your people agenda.

So, while for many organisations in the nonprofit sector the legal requirement to measure the gender pay gap has not yet approached, strategically addressing HR challenges and priorities such as recruitment and retention lends itself to examining the status quo within your organisation and resolving any areas of pay challenges in a proactive manner. But it is also a means of putting your Employer Value Proposition front and centre and positioning total reward (both the financial and non-financial) in such a way as to attract and retain key talent. How this is developed and implemented should be a key strategic area of focus, one that can be furthered through expert advice and support driven by your HR team.

Award made to senior administrator who claimed unfair dismissal despite contributing to the dismissal

Background:

The respondent is a largely publicly funded voluntary body which provides “essential” Social Services. The complainant was employed as a senior administrator in the Family Resource Centre from December 2014 to September 2021.

Following COVID-19 in March 2020 staff were called to a ‘back to work’ meeting on 4 June, 2020. The complainant was not brought back and heard from other staff that she was likely to be out for some time.

Summary of Complainant’s Case:

On June 23rd, 2020, a meeting took place with relevant managers and the complainant contends that she was told she faced a protracted lay off due to a lack of funding, or alternatively she could look for redundancy. Following receipt of a copy of her contract of employment, the complainant noted differences from her ‘original’ contract specifically as regards funding sources. In August 2020 the complainant was told she was eligible for the government July stimulus. The complainant then lodged a grievance procedure which was not accepted.

The complainant resumed work in February 2021 but on the basis of a 15-hour week only as opposed to her normal 35 Hours outlining that the conditions under which she now worked were very demeaning, as she was not allowed work at the charity shop and was effectively “banished” to a small room behind reception.

The complainant outlined that on 5 August, 2021 she was called to an investigation meeting with HR who followed up on 17 August to communicate to her that she had been dismissed for gross misconduct. An appeal was made to the Chairperson but to no avail.

In addition, during 2021 the opportunity arose for centre staff to get the covid vaccine early on an exceptional needs’ basis in view of the work the centre was doing and the complainant was refused inclusion on the early vaccine list by management.

The complainant asserted that her dismissal was for false reasons and even if accepted the decision was completely disproportionate. She also outlined that her attempts to secure a local resolution were continuously frustrated by the Managers “pass the parcel approach” and continuously avoiding any clear answers.

The complainant’s representative argued strongly that there was clear “Objective Bias” in this case, that the investigation by HR was seriously flawed on natural justice grounds and that the appeal offered was completely false with a non-independent appeal person, in short asserting that the  entire dismissal was based on a completely flawed legal basis.

Summary of Respondent’s Case:

In essence the respondent case as advanced by their legal representative, was that despite acting absolutely reasonably with due regard to all processes, the complainant acted completely unreasonably in both correspondence and physical actions resulting in her being properly dismissed for gross misconduct.

The respondent outlined that the impact of COVID-19 was severe with all the activities of the centre shutting down in March 2020. However, by government & HSE guidelines an early phased return of the “essential services” began in late spring and early summer.

The respondent outlined that the complainant was invited to a staff meeting on June 23rd, where her position was discussed. It was explained to the complainant that due to overall covid uncertainties, a long term lay off was in the offing for her or she could consider taking a redundancy option.

The complainant became upset, and the meeting ended. A solicitor’s letter from the complainant followed.

A further meeting took place on the 7th August 2020 where the issue of funding shortfall was discussed. The respondent offered a 20-hour receptionist role until March 2021 which was benefitting  from the government “July Stimulus” funding. Redundancy was also suggested as an option but not in a formal way. Nothing further was heard from the complainant until she sent a series of letters querying her case to the Board members. 

In January 2021 the respondent offered a 15-hour week to the Complainant and requested the complainant sign an amended contract of employment reflecting the reduced weekly hours which was refused.

The respondent outlined following the return of the complainant to work in February 2021 and a continuation of solicitor communication being exchanged an incident occurred in June 2021 which led to an investigation, which the respondent asserted was carried out in a professional way and a recommendation followed that the complainant be dismissed for gross misconduct.

An appeal was made to the Chairperson of the Board who declined the appeal based on no new evidence or matters having been advanced by the complainant in support of any appeal.

In summary the respondent had at all times acted with restraint and proper procedures in the face of very serious unreasonableness from the complainant.

Summary and Conclusions:

Oral evidence was crucial in this case with the managers in lengthy testimony emphasising how they had at all times tried to be “reasonable”. The complainant did not give any oral testimony but relied on the cross examination of the respondent witness. What was of primary concern as noted by the adjudicator was the procedural issues whereby the decision to dismiss was effectively recommended by the investigator who was therefore the investigator and the dismissal decision maker.

Decision:

The adjudicator noted in this case that on balance and following careful weighing of the procedural issues the final conclusion was a case of unfair dismissal had been properly made out on natural justice/objective bias grounds but with a major employee contribution to the dismissal. In relation to redress it was noted that, 

“The percentage of an employee’s contributory action is often high where the dismissal is found to be unfair solely or chiefly because of a denial of natural Justice”.

With the complainant remaining on illness benefit for a protracted period following the ending of the employment, this reduced her availability for other immediate work and future employment prospects.

Accordingly in this case, the adjudicator having carefully weighed all the evidence, in particular the oral testimony and allowing a significant recognition of the employee contribution to the dismissal, redress in the amount of €6,150 was awarded which equated to approximately 15 weeks’ pay.

Our Commentary

Whilst natural justice and fair procedures remain paramount to any investigation the progressive steps of a disciplinary procedure must be compliant at all times, and it is essential that employers are mindful of the appropriate codes of practice to ensure full natural justice and fair procedures are being applied at every stage. Challenges can and do arise for those in smaller organisations within the non-profit sector but there is still an obligation to maintain impartiality at every stage. The expectations of third parties, such as the Workplace Relations Commission, is that all organisations regardless of sector will ensure the principles of natural justice apply. Therefore, seeking appropriate advices is essential to maintaining the requirements and alignment to the relevant Code of Practice in particular on the question of impartiality.

Transposition of the EU Directive on Transparent and Predictable Working Conditions

The EU Directive for Transparent and Predictable Working Conditions aims to provide employees with more predictability and clarity in relation to their working conditions and was implemented into Irish Law without much attention, on the 16th of December 2022, under the EU (Transparent and Predictable Working Conditions) Regulations 2022.

Key Components

The transposition of the Directive into Irish Law has amended a number of pieces of domestic legislation and updated the obligations of employers under such accordingly. Employers should pay particular attention to amendments made to the following acts, namely the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997, the Protection of Employees (Fixed-Term Work) Act 2003, and the Workplace Relations Act 2015.

Purpose

The aim of the new directive is to improve working conditions by encouraging increased transparency and predictable employment terms. Whilst Ireland had existing legislative protection in place regarding written terms of employment, this new directive introduces further obligations for employers, and we strongly encourage employers to review their terms of employment to ensure that they are compliant.

The major changes are to the following:

Probationary Periods

Probationary periods were previously not subject to statute and were the remit solely of contracts of employments. However, the Regulations now provide that where an employee is subject to a probationary period at the commencement of employment, that period shall not exceed six months, except in limited circumstances. In those limited exceptions the maximum period may be extended to no more than twelve months.  

Where an employee who began working prior to the signing into law of the Regulations is subject to a probationary period longer than six months and such an employee has completed at least six months of said probation, that period will be deemed to have expired by February 2023 at the latest. Alternatively, the period will expire on the date it was due to, where such a date is earlier than 1st February 2023. 

Information Relating to Employment

Irish employers are already obliged to provide certain information to employees within 5 days of commencing employment. The Directive now provides that a number of items, that were previously part of the written statement to be provided within two months of commencing employment, must now be provided as part of the ‘Day 5’ statement. Separately, all other terms of employment required to be provided to employees as per the Terms of Employment (Information) Act 1994 are now required to be provided within one month of the employment commencement date (previously two months).

Exclusivity Clauses

The Directive prohibits exclusivity clauses and places limits on incompatibility clauses, it also provides the right to employees to take up parallel employment, subject to certain exceptions. Any adverse treatment of an Employee who does take up other employment is prohibited.

Predictable Work

Employees with very unpredictable working schedules, and those carrying out ‘on-demand’ work now have the right to know in a reasonable period in advance when work will take place. There is anti-abuse legislation for zero-hour contract work and the Directive also provides the right for employees to request to be transferred to a form of employment with more predictable and secure working conditions where available and to receive a reasoned written reply.

Training

In situations where an employer is mandated by law or otherwise to afford training to employees in relation to carrying out the work for which they are employed, such training must be provided free of charge to the employee. Furthermore, any training undertaken by the employee will count as time worked. Where possible, such training should take place during working hours.

Collective Agreements

Where a collective agreement already provides for any matters covered by the new Regulations, the provisions of said Regulations will not apply to those employees to whom any such agreement is relevant and applicable.

What this means for Employers

Employers should take note of all of the above changes and implement any relevant policy, practice, documentation and contract of employment changes accordingly. Of particular importance is updating standard form ‘Day 5’ statements to include the new information which it is mandated that employers disclose to employees. This should also be undertaken for the new ‘One-Month Statement’ which replaces that of the previous ‘Two-Month Statement’ transplanting previous information disclosure requirements to the new condensed timeframe in addition to requiring new information.

Additionally, employers should take note of the new provisions concerning probationary periods, particularly those concerning employees who commenced work prior to 16th December 2022. Where such an employee is subject to a probationary period longer than six months and has completed at least six months of said probation then that period will be deemed to have expired by February 2023 at the latest. Employers must update their standard form contracts and ensure that probationary periods do not exceed six months and in the case of fixed-term workers, that such periods are proportionate and reasonable.

Employers must also take care to insert a contractual clause concerning an employee’s right to request a work transition. Such must include any grounds for refusal on the part of the employer, so as to enable their subsequent reliance on such in refusing any relevant request.

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
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