Employer Resources Newsletter - May 2022

Employers are taking a much more active role in supporting the health and wellbeing of employees. Our most recent HR Barometer Report highlights that 87% of organisations have health and wellbeing initiatives in place.

While nonprofit organisations make up a small percentage of the overall sectors surveyed, 92% of the nonprofit organisations have initiatives in place.  The top initiative is Sick Pay with 78% of organisations having it in place. Flexible working arrangements is the second most popular initiative with 62% offering it to employees. It is also very positive to see that half of Irish organisations have Employee Assistance Programmes in place.

These findings are echoed across the nonprofit sector.

Right to Request Remote Working

The Irish Government has been playing its part in terms of introducing legislation that supports employees, such as the upcoming Right to Request Remote Working Bill 2021.

We would like to highlight two EU Directives that aim to support a better work-life balance that are expected to be enacted into Irish law later this year:

• EU Directive on Transparent and Predictable Working Conditions
• EU Directive on Work Life Balance for Parents and Carers

EU Directive on Transparent and Predictable Working Conditions

The purpose of the Directive is to provide protections for workers in precarious jobs, such as the gig economy, those on zero-hour contracts and domestic work. It should be noted that zero-hour contracts have been banned in Ireland since March 2018 under the Employment (Miscellaneous Provisions) Act 2018. There is an exception in situations of genuine casual employment and where they are essential to allow employers to provide cover in emergency situations or to cover short-term absence.

Under the Directive all EU workers will have the right to:

• more complete information on the essential aspects of the work, to be received early by the worker, in writing,
• a limit to the length of probationary periods at the beginning of the job,
• seek additional employment, with a ban on exclusivity clauses and limits on incompatibility clauses,
• know a reasonable period in advance when work will take place, for workers with very unpredictable working schedules, as in the case if on-demand work,
• anti-abuse legislation for zero-hour contract work,
• receive a written reply to a request to transfer to another more secure job,
• receive cost-free the mandatory training that the employer has a duty to provide.

The Employment (Miscellaneous Provisions) Act 2018 also pre-empted many aspects of the Directive as well as banning zero-hour contracts including introducing an anti-penalisation provision, stronger penalties for non-compliance and more precise information on hours of work for employees. However, the Directive includes elements which go beyond the measures contained within that Act, and accordingly the Directive will require primary legislation to give it full effect.

It is expected that the Directive will be transposed into Irish law by August 2022.

EU Directive on Work Life Balance for Parents and Carers

The Directive on Work-Life Balance aims to make it easier for people to balance paid work and private life, including caring responsibilities. The Directive introduces minimum standards for parental leave including paternity leave, carer’s leave, the right to flexible working arrangements for parents and carers, and safeguards against unfair dismissals. 

The Directive is designed to modernise existing work-life balance frameworks for parents and carers while also supporting a more equal sharing of parental leave.

While employees will have the right to request flexible work arrangements, employers will not be under an obligation to grant any such request but should engage with the employee to provide a reasonable explanation for the refusal. However, employees can take a case to the WRC if an employer refuses a request.

In late April, the Cabinet agreed to introduce Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman’s “Work-Life Balance Bill” that commits to introduce the elements of the EU Directive. The legislation is due before the Dáil in the coming weeks and it is expected to be in place ahead of the summer recess.

The proposed Bill entitles employees to five days of unpaid leave available for all family members to support those with medical needs. Carers or parents will also have the right to request flexible or compressed work hours. Carer’s leave can only be granted for a relative or someone living with an individual who is in need of “significant care or support for a serious medical reason”. An employer can ask for evidence to substantiate the request, which may involve sharing medical records.

Under the Bill, there will be an entitlement for paid breastfeeding breaks as well as introducing paid leave for victims of domestic violence.

The introduction of flexible working arrangements is the result of the Government implementing the EU’s Work Life Balance Directive.

It is worth reminding ourselves of current allowances under Parental, Paternity, Carer’s and Family Leave.

Parental Leave Claim Thrown Out of the WRC – Employee Sought to Reduce Working Week

Given the focus of the previous article, this case is relevant and a worthwhile read.  The Respondent has not breached the Act and has exercised their right to say no to the proposal presented by the Complainant.

Key Learnings

An eligible employee is currently entitled to avail of up to 26 working week’s unpaid parental leave in respect of each relevant child. An employer is obliged to permit employees to avail of parental leave applied for, in continuous periods of 6 weeks or greater at a time, subject to the right to postpone leave. Periods of leave of a lesser duration need only be approved at the discretion of the Organisation. It is advised that consistent decisions are made in relation to such requests for leave, otherwise the Organisation may set a precedent which entitles all Employees to avail of shorter leave periods.

In this Case, the employer was found to be justified in their decision not to approve the parental leave request of 19.5 hours per week. The employer’s Parental Leave Policy outlined that it is possible for employees to request a more flexible pattern of parental leave with the agreement and approval of the employer. The employer was therefore found not in breach the Act by exercising their right to say no to the employee’s request.  In addition, the employer could clearly outline the adverse impact on the Organisation arising from the granting of such a request and could also demonstrate that no previous employee had been in receipt of 19.5 hours of Parental Leave per week.

Background

The Complainant made complaints to the WRC under the Parental Leave Act 1998 on 29th November 2020 and on 8th January 2021, describing the same issue within each complaint, which related to a parental leave request she had submitted to the Respondent Company. 

Summary of Complainant’s Case

The Complainant requested a temporary reduction of her contractual hours. She was hoping to work for 19.5 rather than 39 hours per week. The Complainant reassured the Respondent of her flexibility and also expressed her willingness to be transferred to any location within the department if that was necessary to grant the approval. Within less than 24 hours the Respondent emailed the Complainant and refused to reduce her contractual hours and suggested that the Complainant should resign from her current position as Social Care Leader. The Respondent offered the Complainant a position of a part-time or relief Social Care Worker and made it clear that these roles would be on a reduced salary. 

The Complainant expressed her disappointment regarding the suggestion that she should give up her position and remuneration. She asked the Respondent to reconsider the decision. At this point she applied for parental leave. She was hoping that the Respondent would be more inclined to approve this form of reducing her working hours. The Respondent, however, refused to approve the parental leave application.

The Complainant escalated her applications to a more senior manager. She suggested several different options that would allow her to keep her position - she was happy to accept a transfer, redeployment, or assignment of a different brief. She stated that she was ready to work partly from home (if it was necessary for her to remain a full-time employee). The Complainant received no response, so she contacted this more senior manager again, to which they did respond - but did not approve the Complainant’s application for 19.5 hours/week of parental leave. Instead, 8 hours of parental leave was conditionally approved.

The Respondent did not acknowledge or comment on the alternatives that had been suggested by the Complainant. The Complainant sought clarification regarding her actual parental leave application and the final decision on it, but this remains unanswered. At no point did the Respondent offer the Complainant any form of support. No effort was made to meet her and to discuss her circumstances. Not one phone call was made, and the emails remained the only form of communication. The Complainant felt that she was left in a very vulnerable position. Because of her efforts to get the reduced hours, the Complainant believes she was at the receiving end of punitive actions by her employer. As the situation was left unanswered and unclear, the Complainant feels she was left in limbo. She then received an email in early December from a new manager who informed her that she was her new supervisor. She was also informed that she was being transferred to another part of the Organisation and that this transfer would affect her employment conditions. Substantial additional duties would be assigned to her due to the transfer.

Summary of Respondent’s Case

The Complainant submitted a request to reduce her hours to 19.5 per week. The Respondent replied, informing the Complainant that unfortunately due to the Complainant's role as a Social Care Leader, it requires management presence for full time hours and in other locations. Further, the Social Care Leader is the ‘person-in-charge’ from a HIQA perspective (HIQA is the Regulator) and HIQA requires that the role is full-time. The Respondent offered the position of a Social Care Worker to the Complainant, and this would ensure that her permanency would remain, and offered the opportunity to meet and discuss the options further if she so wished.

The Complainant replied ‘if demoting me is the only option that the Organisation can propose I would definitely want to meet you and discuss it’ and noted that as an alternative she could apply for parental leave.

The Respondent assured the Complainant that she was firstly not being demoted, that she had always been a strong manager and that this was in no way a reflection on her ability and also made reference to the fact that 19.5 hours a week of Parental Leave would not be able to be approved, but 8 hours per week - taking the leave in blocks - could be arranged.

The Complainant escalated this correspondence to a more senior manager, reiterating her concerns that her application was rejected in haste and again was adamant she was being demoted as a result. The Complainant requested another consideration of her request for 19.5 hours of Parental Leave rather than 8 hours per week.

The Complainant was then engaged on numerous continuous periods of sick leave. On 1st March 2021, whilst on a period of sick leave, the Complainant issued the Respondent with her letter of resignation, stating that her last day of employment would be 28th March 2021 in line with her notice period as per her contract of employment. The Respondent followed up with a letter of confirmation the next day 2nd March 2021.

The Respondent noted that no previous employee has been in receipt of 19.5 hours of Parental Leave per week. The Complainant was also previously engaged on a period of Parental Leave in January 2019 which was subject to 8 hours per week for a period of six months.

The Respondent respectfully submits that they have reiterated on several occasions to the Complainant, their position with regards her application of Parental leave and that she was fully aware of any other possible avenues which may have been explored in order to help with her situation. 

Findings and Conclusions

The EU Parental Leave Directive was transposed and implemented into Irish law by the Parental Leave Act in 1998. Since then, the Act has been amended by the Parental Leave (Amendment) Act, 2006 and further amended by the Parental Leave (Amendment) Act of 2019.

Parental leave lets parents take unpaid leave from work to spend time looking after their children. It is possible to take up to 26 weeks’ parental leave for each eligible child before their 12th birthday.

An entitled employee may take this leave in one continuous block or two separate blocks of at least 6 weeks each with the proviso that there must be a gap of at least 10 weeks between the 2 blocks.
It is possible to break parental leave into working days or hours (or a combination of both) subject to agreement by the employer.

The Respondent employer has a policy on Parental Leave which outlines that it is possible for employees to request a more flexible pattern of parental leave with the agreement and approval of the employer.

In the case the Respondent has, for operational reasons, not approved the request for parental leave as presented by the Complainant.

Decision

The Respondent has not breached the Act and have exercised their right to say no to the proposal presented by the Complainant. Under these circumstances there is no option but to find the complaint as presented, not well founded. Accordingly, the complaint fails.

Pensions auto-enrolment set to be introduced in 2024

Last month, the Government announced some of the detail around the new proposed auto-enrolment pension system. The Government will pay €1 for every €3 employees contribute to their pension.

It states that employees earning more than €20,000 per annum will be automatically enrolled to make pension contributions. However, they will have the option to opt out of the scheme.

Employers will be expected to match the employee’s contribution but the plan is to introduce the scheme on a gradual basis to mitigate the financial impact. The scheme will be rolled out gradually over a decade, with both employer and employee contributions starting at 1.5%, and increasing every three years by 1.5% until they eventually reach 6% by Year 10 (2034).

Government plans to bring mandatory ‘living wage’ to Cabinet before summer

An Tánaiste and Minister for Enterprise, Trade and Employment Minister, Leo Varadkar announced last month that plans for the introduction of a mandatory living wage will be brought before the Government ahead of the summer recess.

The current living wage is set at €12.90 per hour, a figure calculated by the Living Wage Technical Group and is the basic amount that is deemed necessary to cover an average worker’s needs to a socially acceptable standard. This figure is €2.40 per hour more than the minimum wage of €10.50 p/hr.

It still needs to be decided how the living wage would be calculated but Varadkar said that there was merit in a basket of goods and services approach. However another approach could be setting the living wage as a percentage of the median wage, which is a simpler approach.