By Peninsula Ireland Head of Service Alan Hickey

From high profile decisions on retirement in the workplace to widespread claims regarding sexual harassment, 2017 has been a busy year in employment law. Although employers might hope for a quieter 2018, it’s looking likely that there will be a number of issues that are prevalent throughout the year, amid the on-going uncertainty of Brexit and the era of industrial unrest.

General Data Protection Regulations

The European General Data Protection Regulations, or ‘GDPR’, are set to come in to force across Europe on 25th May 2018. These Regulations seek to enhance the rights of individuals and make changes to existing data practices, including removing the ability to charge a fee to provide access to information unless the request is manifestly unfounded or excessive.

Employers should use the first half of 2018 to review their current practices and documentation so they can assess how they process data and review whether this is in line with GDPR. The potential consequences of non-compliance are costly, with maximum fines of €20 million or 4% of annual turnover. Indeed, experts have said that Uber would have been fined €20 million for their recent data breach had GDPR being in force at the time.

Gig economy and zero-hour worker rights

There has been lots of focus on what employment protections should gig economy and zero hour workers should receive in Ireland. Taoiseach Varadkar as already outlined his intent to ban zero hour contracts except in limited circumstances. Additionally, there are three separate Bills before the Oireachtas which seek to increase the levels of protection for these types of workers.

For example, the Banded Hours Bill, proposes that where an employee is only contractually entitled to a low number of hours in their contract of employment, but they actually work more hours on a regular basis, they can then have their contract amended to reflect the higher hours they actually work. The Uncertain Hours Bill seeks to clarify the employment status of casual workers and to increase the level of protection for such workers.

Lastly, the False Self Employment Bill proposes to clarify the rules around the ‘gig economy’ in Ireland (e.g. Deliveroo, Uber-style businesses) and whether or not such individuals would be classified as “employees” in Ireland.

Disability and age discrimination

In Irish employment law, there are nine different grounds of discrimination and of these grounds, age and disability discrimination have seen a significant growth in the number of employment tribunal claims. This is a trend we expect to continue in 2018.

In terms of retirement discrimination, employers are permitted to have a mandatory retirement age in operation but it is very important that employers are aware that they require a strong justification for having it. For example, a doctor in the HSE successfully raised this argument before the High Court and secured an injunction in 2017 to prevent the HSE from making him retire. In 2017, The Citizen’s Assembly strongly recommended that mandatory retirement ages be abolished entirely. employers should watch this space and examine their policies carefully.

In terms of disability discrimination, every employer will encounter a sick employee at some stage but employers need to be mindful that additional protection is afforded to those employees who have a disability as defined in the employment equality legislation. Employers are expected to introduce measures to accommodate such employees in the workplace and a failure to consider reasonable accommodation is of itself an act of discrimination. The WRC and Labour Court have awarded large amounts of compensation to employees in these situations.

Gender pay gap reporting

The Government has recently concluded a consultation process which proposes to introduce “a package of measures” on how to tackle the gender pay gap in Ireland so it is very likely that the gender pay gap will be a major factor in Ireland in 2018. Whilst it hasn’t been confirmed as to what this package of measures will entail, one of the proposals put forward by the Dept. of Justice and Equality was that companies with 50 or more employees would be obliged to complete a periodical wage survey and report the results.

In light of the importance of closing the gap from an equality perspective, it is recommended that employers should examine this issue now so that they are prepared for any measures that are introduced. For example, conducting a salary review and identify the average rate of pay of men and women is an important first step. Employers can also identify how many men and women work in part-time roles and also how many men and women occupy senior/managerial roles in their company which will help identify potential factors contributing to the gender pay gap.

Industrial unrest

The country has faced significant industrial unrest in the last few years involving teachers, Luas drivers, Irish Rail, etc. and it is expected that 2018 will bring more of the same. SIPTU has already indicated that it will ballot up to 60,000 public sector workers for industrial action in the New Year over the ongoing issue of pay restoration in the public sector. Unite are expected to put a ballot to the crane operators it represents overpay allowances.

The way 2016 and 2017 have gone, one would expect another strike by either Bus Éireann, Luas, or Irish Rail employees at some point as many underlying issues seem unresolved and, if so, then employers can expect significant disruption for their own employees getting to and from work as a result. It seems that employers will need to brace themselves for another tough year on the industrial relations front.

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