"The best view comes after the hardest climb"
Author Unknown
LEGAL ISLAND- THE ANNUAL REVIEW OF EMPLOYMENT LAW 2020
At the start of the month, I attended Legal Island's Annual review of Employment Law. As part of this event, Mark McAllister from the LRA provided a really useful overview of the Top 10 cases of 2020. I have included a list of his top 10 cases below.
He also informed us about a new employment Bill for GB which is alleged to contain the following:
A single enforcement body: A single labour market enforcement agency (to better ensure that vulnerable workers are aware of and can exercise their rights and which supports business compliance) was proposed as part of the Good Work Plan.
Tips to go to workers in full: lIn the Queen's Speech, in October 2019, the government proposed legislation to require employers to pass on all tips and service charges to workers and, supported by a statutory Code of Practice, to ensure that tips would be distributed on a fair and transparent basis.
The right to request a more predictable contract: The government previously indicated its intention to legislate to introduce a right for all workers to request a more predictable and stable contract after 26weeks' service as part of the Good Work Plan.
Pregnancy and maternity discrimination: extending redundancy protection: The government previously announced its intention to extend the period of redundancy protection from the point an employee notifies their employer of their pregnancy (whether orally or in writing) until six months after the end of their maternity leave.
Leave for neonatal care: The government consultation on a new right to neonatal leave and pay, to support parents of premature or sick babies closed on 11 October 2019.
A week's leave for unpaid carers: This proposal was made in the Conservative party's election manifesto.
Making flexible working the default: As set out in the Conservative party's election manifesto, the government intends, subject to consultation, to make flexible working the default position unless an employer has a good reason.
SUPPORT FOR EMPLOYMENT LAWYERS
The Employment Lawyers Association has recently established a Pastoral Care Committee to provide support to UK employment lawyers during this time. Law Care is also available to support practitioners.
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LEAN IN- EQUAL PAY DISCUSSION
EQUAL PAY EVENT
ADVANCED DIPLOMA IN APPLIED EMPLOYMENT LAW
REPUBLIC OF IRELAND
CONTRACT OF EMPLOYMENT- REPUBLIC OF IRELAND- MARGUERITE BOLGER QC
ESSENTIAL TERMS WHICH MUST BE INCLUDED IN THE CONTRACT
In the Republic of Ireland, the Terms of Employment (Information) Act 1994 imposes an obligation on employers to furnish their employees with a written statement of certain terms and conditions of their employment.
The terms and conditions that must be provided are as follows:
The full names of the employer and the employee.
The address of the employer within the State.
The place of work. If there is no permanent place of work, there should be a statement specifying that the employee is required or permitted to work at various places.
The title or description of the job or the nature of the work for which the employee is employed19 .
The date of commencement of the contract.
In relation to temporary, or fixed term or fixed purpose contracts, the expected duration and the expected date of termination of the contract.
The rate of pay, the method of calculation and the frequency of payment.
The period of notice required from each party to terminate the contract.
The terms and conditions applicable to sick pay and pension schemes, if any.
The terms and conditions relating to paid leave, if any.
Reference should be made to any collective agreement affecting the terms of the contract, whether or not the employer is a party to the agreement, including information about the institutions or organisations which drew up any Collective Agreement which affects the terms of the contract to which the employer is not a party.
Section 5 of the Act requires an employer to furnish an employee with written details of any changes in the terms or conditions of their employment to which the Act applies.
Section 14(1) of the Unfair Dismissals Act of 1977 provided that an employer was obliged to furnish an employee with a notice in writing setting out the procedure that would be adopted prior to any dismissal of that employee. In practice the obligation was largely ignored. The Unfair Dismissals Amendment Act of 1993 strengthened the section considerably by providing, at Section 5, that in adjudicating upon a claim for unfair dismissal, account shall be taken of the compliance, or non-compliance of the employer with that procedure. In practice the Workplace Relations Commission (WRC) takes a very serious view of the need for an employer to follow fair procedures prior to a dismissal. A Code of Practice on Disciplinary Procedures exists by way of Statutory Instrument. The Code provides a general framework for a disciplinary procedure, including dismissal, which lays particular emphasis on the need to comply with the principles of natural justice.
Pursuant to the Pensions (Amendment) Act 2002, employers who do not provide an occupational pension scheme for their employees are obliged to provide access to at least one standard Personal Retirement Savings Account (PRSA) contract and to make deductions from the payroll at the employee’s request in respect of the employee’s contribution to the PRSA. The employer is not obliged to contribute to the PRSA. If an employer does not provide access to a pension scheme, then express provision should be made in the contract for providing the employees with access to a specific PRSA account.
TERMS IMPLIED BY THE IRISH CONSTITUTION
The Constitution implies into every employment contract the right to earn a livelihood, the freedom to associate and the right to dissociate. Probably the most significant term implied by the Constitution in more recent litigation is the right to natural justice, i.e. fair procedures. In the past there was some ambiguity as to which employees were entitled to natural justice in the manner in which they were treated by their employer41 but it is now well accepted that all employees have this right implied into their contract42. The effect of this implied term is that all aspects of disciplinary proceedings, up to and including dismissal, must be carefully conducted so as to ensure that the employee enjoys the right to be heard in their own defence and is not subject to perceived or actual bias. A failure to do so could result in the employee obtaining an injunction preventing the employer from disciplining or even dismissing them.
OTHER TERMS THAT SHOULD BE INCLUDED IN THE EMPLOYMENT CONTRACT
There are terms that will not be implied into the contract and should be expressly included in order to ensure efficiency and flexibility.
Some examples are:
A probationary period. This cannot exceed 12 months as at that stage the employee will enjoy the protection of the Unfair Dismissals legislation.
Expenses.
Data Protection consent (possibly separate to the contract).
Lay-offs / Short-time. There is no automatically implied term in the contract entitling an employer to lay off employees during a slack period without paying the employees during that period44. In the absence of an express right on the part of the employer to put the employees on short-time or lay-off, an employee may be entitled to claim a contractual entitlement to be paid during the period they are not working or alternatively to leave their employment and claim that they were constructively dismissed.
A right to reduce pay. Again, this is unlikely to be implied in the absence of an express term even in unpredicted financial circumstances. A claim pursuant to the Payment of Wages Act 1991 could also be made where wages are reduced without express agreement.
Health and safety. It is advisable to furnish a copy of safety statement with the employment contract.
Provisions relating to trade union membership, if any.
The retirement age, although care should be taken to ensure that the provision is consistent with the requirements of employment equality law (which will be considered in a later lecture).
A copy of the summary of the pension scheme, where applicable.
A grievance procedure which should take account of SI 146/2000
A bullying and harassment policy which should take account of the Health and Safety Authority Code of Practice of May 2007
A procedure for dealing with protected disclosures in the light of the 2014 Act
A right to search.
A mobility clause.
A clause providing that an employee shall not abuse the employer's technology including e-mail and access to the internet or use it in an inappropriate manner. If an employer wishes to have access to an employee's e-mails then express provision should be made for same in the contract.
A social media clause (which will be considered in a later lecture).
A confidentiality clause and a restraint of trade clause (which will be considered in a later lecture).
In the event that any of these clauses are omitted from a contract of employment, it may be very difficult to persuade a court that they should be implied unless the terms come within terms already implied by the common law.
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This bulletin is published by Emma McIlveen, Barrister at Law. Please note that the information and any commentary on the law contained in this bulletin is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the author or the publisher.
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