Employer Resources Newsletter - Mar 2024

Nonprofit employers must comply with Irish employment legislation just like their counterparts in the for-profit sector.

Employment law compliance has been a particular challenge in recent years as the Government ushered in a range of new workplace laws spanning work life balance, gender equality and new transparency obligations around terms and conditions of employment. 

As we continue to delve into changing legislation and the impact of these employer obligations we take a look at the most recent update under the Work Life Balance and Miscellaneous Provisions Act 2023 and the following summary highlights the changes non-profit employers should be mindful of as part of compliance planning for 2024.  

Publication of long-awaited Code of Practice on the Right to Request Flexible and Remote Working now in operation

Introduction

On March 7, 2024, the Minister for Enterprise, Trade and Employment, Simon Coveney officially approving the publication of the Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working.

Provisions for the right to request remote working for all employees and the right to request flexible working arrangements for parents and carers are available under the Work Life Balance and Miscellaneous Provisions Act, which was enacted on April 4, 2024, and these rights are now in operation. The right to request flexible working for parents and carers transposes Article 9 of the EU Work Life Balance Directive. Ireland has now fully transposed the Directive.

Employers and employees are obliged to have regard to a Code of Practice when considering applications for remote working arrangements. Employers must also have regard to the code if terminating a flexible working arrangement. Employees will be able to refer a dispute to the Workplace Relations Commission (WRC) where an employer fails to fulfil their obligations under the Act and the Code will be admissible in evidence in proceedings before a court, the Labour Court or the WRC.

Purpose of the Code of Practice

The purpose of the Code is to provide guidance to employers and employees in relation to how requests for flexible and remote working arrangements are made and handled and is designed to support employers, employees in understanding the rights and obligations set out in the Parental Leave Acts, 1998-2023 as amended by the Work Life Balance and Miscellaneous Provisions Act, 2023 in relation to requests for Flexible Working (FW) and the Work Life Balance and Miscellaneous Provisions Act, 2023 in relation to requests for Remote Working (RW). 

The aim of the Code is to give guidance on best practice principles throughout these processes, including the decision-making process when considering requests and any changes that may be sought or made to an arrangement.

Specifically, the purpose of the Code is to:

• set out the detail of the processes regarding making and managing requests for FW and RW including when changes are sought or made to the agreed arrangement.
• support employers in objective, fair and reasonable decision-making when considering requests for FW or RW.
• offer practical guidance on best practice to employers, employees and/ or their representatives to ensure compliance with the legislation.
• assist in developing workplace policies and procedures for dealing with flexible working and remote working requests so as to provide clarity, transparency and consistency for both employees and employers.
• provide guidance for the resolution of disputes in relation to requests for FW or RW insofar as it relates to the processing of the requests.
• provide information to the public in relation to the relevant enactments.

What is Flexible Working?

For the purposes of the Parental Leave Acts, 1998-2023, flexible working is a working arrangement where an employee’s working hours or working patterns are adjusted, including through the use of remote working arrangements, flexible working schedules or reduced working hours. Flexible working depending on the nature of the role and/or organisation, can take different forms, including part time work, term time work, job sharing, flexitime, compressed working hours, remote working.

Flexible Working Considerations

The right to request flexible working is provided to an employee who is:

• the parent or acting in loco parentis to a child under 12 years of age or under 16 years if the child has a disability or illness and who is or will be providing care to the child, or
• providing or will provide personal care or support to a specified person namely the employee’s child, spouse or civil partner, cohabitant, parent or grandparent, sibling or a person other than one in the categories already specified who lives in the same household as the employee. The person must also be in need of significant care or support for a serious medical reason.

What is Remote Working?

For the purposes of the Work Life Balance and Miscellaneous Provisions Act, 2023 (the 2023 Act) Remote Working (RW) is an arrangement whereby some or all of the work ordinarily carried out by an employee at an employer’s place of work under a contract of employment is provided at a location other than at the employer’s place of business without change to the employee’s ordinary working hours or duties.

Remote Working Considerations

All employees have the right to make a statutory request for remote working. 

Eligibility for Flexible and Remote Working

An employee can request flexible working, including remote working, from their first day at a new job, but they must complete a minimum of 6 months continuous employment with their employer before an approved arrangement can start. A gap in service of less than 26 weeks with the relevant employer will be discounted for the purpose of assessing whether the employee has the required 6 months continuous service before a flexible working, including remote working, arrangement can start.

Process Considerations

Both the Act and Code of Practice detail the process that applies to all requests of flexible and remote working arrangements providing specific detail on the following that should be incorporated into policies and procedures:

• the manner and timing of requests
• the information that should be included in all requests
• the information that may be requested by the employer
• the details that must be recorded in any approved arrangement 
• the obligation of the employer to respond to any such request and timings required
• the consideration requirements for all requests 
• the types of changes to approved arrangements that can be agreed
• the parameters of terminating a request and the process, notice and timings thereof
• details concerning the return to previous arrangements
• details concerning the abuse of any agreed working arrangement 
• Record requirements

Considering a Request for Flexible Working & Remote Working

The guidance provided under the Code is that an employer who receives a request for flexible working, including remote working, must consider the request, having regard to:

• their own needs, i.e. the needs of the organisation
• the employee’s needs, i.e. the reasons why the employee is requesting the arrangement.
• the requirements of this Code of Practice in relation to considering a request.

All requests should be considered in an objective, fair and reasonable manner. An employer may consider both the suitability of the role as well as the employee’s suitability for the work arrangement. In reviewing whether a role or an individual employee is suitable it is important that both are reviewed in an objective, fair and reasonable manner.

Suitability of the Role

In reviewing whether a role is suitable the following non-exhaustive questions could be considered by an employer. 

• What type of work does the role entail?
• What are the employee’s key duties?
• Can any of the duties which make up the role be undertaken remotely?
• Does the role require a high degree of manual work?
• Does the role include tasks that must be performed or are more efficiently performed on-site?
• Does the role require access to equipment/technologies or data that are only available on-site?
• Does the role require face-to-face engagement with clients, customers or other employees on-site or at other locations?
• Would the work arrangement affect the service quality or organisational operations taking into account the number of employees currently on approved leave and/or on approved remote working or flexible working arrangements?
• Are there technological solutions to mitigate issues arising from remote working?
• Do any health and safety issues arise if activities are undertaken remotely?

Suitability of the Employee

In considering a request an employer may consider the suitability of the employee. The following non-exhaustive questions may be considered by an employer which may not be relevant in all situations.

• Does the employee have the necessary IT skills to complete their required job functions outside of the office?
• Does the employee understand their role and require minimal supervision to complete their tasks?
• Has the employee met the performance standards and requirements of the role?
• Is the employee subject to an extended probation period?
• Is the employee subject to an active performance improvement plan?
• Is the employee involved in an ongoing disciplinary process or is there a live record of disciplinary action?
• Is the employee subject to a training programme or apprenticeship which requires supervision?
• Has the employee demonstrated an ability to meet deadlines or any other organisational requirements?
• Does the employee understand the need to demonstrate flexibility when required to attend on-site outside of their agreed arrangement in order to meet organisational needs?
• Does the employee understand that there may be a requirement to participate in team meetings/training/one-to-ones online while working remotely?
• Has the employee maintained a satisfactory attendance record and complied with the company’s attendance policy?
• Does the employee need to be on-site for learning, development or mentoring purposes?
• Does the employee need to be on-site to collaborate with colleagues in a team environment in a face-to-face setting?

In a situation where an employer cannot approve the RW arrangement sought by an employee in their request, the parties should consider an alternative arrangement, where this is feasible. The employer and employee should be open to exploring and agreeing an alternative arrangement, where feasible, taking into account the specific circumstances of each individual case.

Where agreement is reached on RW the signed agreement by the employee and the employer should be appended to an employee’s contract of employment and a copy should be retained by both parties. Employers should be mindful that a RW arrangement may lead to changes to the employee’s terms and conditions in line with the Terms of Employment (Information) Act 1994 as amended.

Risk & Liability

In any consideration of a request for flexible and remote working arrangements employers must ensure that they assessed the request in an objective and fair manner. Employees are protected from penalisation in proposing to or having exercised their rights to make a request for a flexible/ remote working arrangement or in making a request to return to a previous working arrangement. 

But challenges may arise where an employee feels that their request has not been considered in line with the legislation and/or with the Code of Practice. Organisations are therefore encouraged to address all concerns at the earliest stage through an informal process or where required through a formal stage of the grievance procedure. 

Notwithstanding that a breach of the Act may be referred to the WRC at any point, if the matter is addressed through the organisation’s grievance procedure and remains unresolved on completion, the employee may refer it to the WRC citing the Code. It is worth noting that an adjudicator at the WRC nor the Labour Court have the legal power to assess the merits of any decision made by an employer in relation to these types of requests, but they can look at the process which led to the employer’s decision.

A decision of a third party can direct the employer to comply with specific sections of the Act and/or award compensation to the employee, not exceeding 20 weeks’ remuneration to be paid by the employer for claims relating to flexible working and compensation to the employee, not exceeding 4 weeks’ remuneration to be paid by the employer for claims relating to remote working.

Finally, there are also additional obligations for an employer to maintain records of approved working arrangements taken by their employees. An employer who fails to retain records for 3 years is liable on summary conviction to a fine of up to €2,500. 

Employee Awarded €16,000 for Non-Payment of Sunday Premium

The complaint is well founded, and an award was made to the complainant by way of compensation in the sum of €16,692.

Background:

The complainant commenced employment with the respondent on the 26th of March 2007 and earned a weekly wage of €642 gross per week for a 39-hour week. He brought a claim under Section 27 of the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case:

The complainant, in his evidence, stated that he started work in March 2007 and works every Sunday however, until 2022 he did not receive a Sunday premium. He stated he received a contract of employment and there was no reference to an additional payment for working on a Sunday.  Since bringing it to the attention of the respondent in April 2022 he has since received double time on Sunday.

The complainant asserted that he raised the issue of Sunday premium in 2014 following a meeting with the respondent and a letter was produced in evidence which was accepted came following this meeting. There is no reference to Sunday premium in that letter, but it was the complainant’s evidence that it was raised orally, and he was told that he was not entitled to it.

The complainant is seeking compensation for the entire duration of the period of his employment in which he worked Sunday as a normal working day. 

Summary of Respondent’s Case:

It was the respondent’s evidence that due to an oversight, the complainant had not been paid an additional sum to cover his work on Sunday from his start date in March 2007. The respondent gave evidence that this had been rectified when it was first notified in April 2022 and the complainant is now in receipt of double time on a Sunday.

In relation to the 2014 letter, the respondent gave evidence that they felt all the complainant’s grievances were addressed in writing as per the letter. The respondent had no recollection of any issue being raised around additional pay for Sunday.

Findings and Conclusions:

Section 14 of the Organisation of Working Time Act 1997 sets out the entitlement for additional payment for employees who work on a Sunday:

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.”

The High Court in Trinity Leisure Holdings Limited Trading as Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova, 1 [2019] IEHC 654 dealt extensively with Section 14 of the 1997 Act. While it was noted by the Court that there is no requirement to expressly set out the calculation for Sunday premium in the contract, it must be noted clearly and unambiguously that compensation is paid. It was accepted by the respondent that this was not included in his original contract nor has an updated contract with the appropriate clause been furnished to the complainant since April 2022.

In terms of redress, it is acknowledged that the complainant has - since April 2022 - been paid double time for Sundays. It was accepted by the Respondent that the complainant was not compensated for working on Sunday from his commencement date in March 2007 up to the date he made a complaint to the Workplace Relations Commission, which is the first date the respondent states it became aware of the issue.

At all times the onus is on the respondent employer to ensure an employee is compensated pursuant to Section 14 of the 1997 Act particularly where there was no contractual clause providing for same which is where this case can be distinguished from the judgment in Trinity Holdings. Was it not for the complainant’s referral to the WRC would the issue or “oversight” as it was described by the respondent have come to light.

On this basis, the Adjudicator found the complaint to be well founded.

Decision:

The complaint is well founded, and an award was made to the complainant by way of compensation in the sum of €16,692. This sum is equivalent to 6 months wages and is considered just and equitable in light of the fact that the issue has been rectified, but the complainant worked for the respondent for approximately 13.5 years without payment for Sunday.

It was further found that the respondent furnish the complainant with an updated contract of employment with specific reference to Sunday premium included within 6 weeks of the date of this decision.

Our Commentary:

This case is a reminder to employers that any employee who is required to work on a Sunday, must be compensated for being required to do so. In particular where community or nonprofit organisations have community centres, cafes, support services that are provided seven days a week it can be a costly risk where the contracts have not fully considered the requirements of the role and the organisation. In this case, whilst the employer had started to pay the employee double time for Sundays since April 2022, the employee had not been compensated for working on Sundays from his commencement date (March 2007) up to April 2022.

Furthermore, employers in the nonprofit sector should note whilst there is no requirement to expressly set out the calculation for a Sunday premium in an employee’s employment contract, it must be noted clearly and unambiguously that compensation is paid. Such a clause was not included in the employee’s original contract, nor had an updated contract with the appropriate clause been furnished to the employee.

Parent’s Leave Increase 

Budget 2024 announced that Parent’s Leave and Parent’s Benefit will be extended from seven to nine weeks of leave from August 2024.

Parent’s leave is available to employees who are a ‘relevant parent’ (e.g., a parent or adopting parent of a child; or a spouse, civil partner or cohabitant of the parent of the child; or a spouse or civil partner of the adopting parent of the child) and whose child was born or adopted on or after 1 November 2019.

Parents leave can be taken within the first two years of the child’s birth or adoption, in one continuous block or as two separate blocks (of no less than one week).

Minister Neale Richmond Confirms Largest Ever Expansion to the Employment Permits System

The Government announced the largest ever expansion of the Employment Permits system prior to Christmas. 

The move will allow employers to access more non-EEA national candidates to fill certain roles that are difficult to fill and aims to address skills gaps in a range of sectors including the charity and disability services sector.

Of particular note for the non-profit sector are some of the 32 roles that have been removed from the Ineligible Occupations List, making them eligible for a General Employment Permit. 

Roles that are now eligible for a General Employment Permit include:

• Residential Day and Domiciliary Case Managers – in Disability Services
• Play Therapist – in Disability Services
• Genetic Counsellor
• Social Care Worker
• Family Support Workers – in Disability Services
• Project Offices, Disability
• Support Worker (social, community, public and charity)
• Guide Dog Mobility Instructor for the Visually Impaired
• Autism Assistance Dog Instructor
• Senior Care Workers – in Disability Services

Employers seeking to employ non-EEA nationals should note that there are minimum salary requirements for General Employment Permit holders as well as a requirement to carry out a Labour Market Needs Test. 

If your organisation requires support, advice or guidance on developing and implementing policies and procedures, employee relations support or details of the supports provided under our Partnership Programme 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