Employers facing new legal headaches

Ireland’s employers have much to think about. While Brexit will bring change, elsewhere a major overhaul of the laws governing the retention and processing of data is set to happen in a matter of weeks.

The new regime, which puts into effect new EU laws, will place added duties on HR departments and may

expose businesses to legal actions on the part of employees, as well as fines for non-compliance.

Employers facing new legal headaches

Elsewhere, we are witnessing the aftershocks from a series of revelations of sexual harassment and bullying across many workplaces. In the US, the media and movie industries have been shaken by revelations that have rocked the careers of many celebrated figures, mainly male and of a certain age.

HR executives are rushing to keep abreast of developments, keen that their organisations do not find themselves caught up in scandals that could bring with them severe reputational and financial consequences.

Last week, at a conference in Dublin organised by Industrial Relations News, a leading employment law practitioner provided timely insights on developments in his field.

Terence McCrann, a senior partner with McCann FitzGerald Solicitors, singled out the following topics for particular attention: Brexit, sexual harassment, the gender pay gap, the General Data Protection Regulation (GDPR), protected disclosures (whistleblowing), longer working, and the impact of a new law governing mediation.

Planning for the worst event is recommended in the case of the exit negotiations. Organisations are warned to prepare for the possibility of a cessation or restriction on free movement of staff between Ireland and the UK.

British citizens will no longer have an automatic entitlement, as EU citizens, to move here to take up employment.

In the absence of an entitlement to Irish citizenship or successful application for long-term residency, non-European Economic Area (EEA) nationals will have to apply for an employment permit. Knowledge of our employment permit regime may be required of a much wider range of organisations. The gaps in the employment law regimes of Britain and Ireland could also grow more pronounced over time.

Sexual harassment and bullying have acquired a new relevance. Mr McCrann says that the laws and codes are already in place to deal with problems that may arise. The real issue may be around awareness and enforcement.

“It is all about culture. Is the management team ‘walking the talk’ ?” He cautions that some bullying and harassment policies may, in fact, be too detailed and technical. “Organisations need to be aware of culture, as well as policies,” Mr McCrann says. The key goal for employers is to ensure that they can be seen to have “taken such steps as are reasonably practicable.”

So what does this entail? A general grievance procedure or informal ‘open door’ procedure will not suffice. Specific polices must be put in place and be kept up-to-date.

Employers facing new legal headaches

And employers may be exposed to legal actions, under the principle of vicarious liability, if an “offensive working environment” is permitted. The Labour Court has stated that sexually explicit remarks by co-workers could create such an environment.

As the economy picks up speed, there is greater focus on the gender pay gap, estimated at 14%, and rising close to 40% in the case of pensions.

Mr McCrann says that Ireland is now falling into line with the practice, elsewhere, of mandatory gender-gap reporting. Many organisations are wary of pressing ahead, concerned that they may be providing ammunition for litigants.

A right to equal pay exists under the Employment Equality Acts. Senator Ivana Bacik has introduced a private members bill, which would require organisations with fifty or more employees to publish information on gender differences in hourly pay, bonus payouts, as well as gender differences across pay bands.

The bill provides for fines of up to €5,000 for non-compliance. The Government has confirmed that the bill will be passed in its essence, subject to amendments. Organisations are advised to begin preparations by compiling inventories of employees and their histories.

The changes in the area of data protection have been discussed heavily across the media. Recent developments include the publication by the Government of an Irish Data Protection Bill, which sets out to describe the new data protection regime that will apply here from May.

Mr McCrann’s view is that this bill “contains anomalies, and fails to cover important points that will need to be addressed.”

For example, the bill, as framed, fails to make it clear how organisations can comply with their GDPR obligations, while ensuring full rights of expression and of access to information.

Employees will have the right to access data, as well as to ensure the protection from prying eyes of such information.

The bill allows individuals to bring ‘data protection actions’. A new Data Protection Commission will have much stronger powers of supervision and enforcement than those currently vested in the Data Protection Commissioner, whose functions it will now absorb.

One can only hope that the EU has not managed to unleash a bureaucratic monster on us, while, at the same time, acknowledging that the data explosion is itself creating a whole set of obligations, which data-holders must abide by.

The Protected Disclosures Act has now been in force for over three years. One only has to follow events at the Charleton Tribunal of Inquiry to realise that added protections for individual whistleblowers are required.

A recent survey, by the UK law firm, Freshfields, indicates that managers are pretty ambivalent. Half of the respondents still believe that concerns about reputation and career prospects will prevent people from blowing the whistle on malpractice.

There appear to be few indications that the 2014 act has been followed by an upsurge in disclosure activity. One outcome of the financial crisis, and the ageing of the population, has been the gradual rise in the State pension age. This, in turn, has led to an upsurge in legal challenges to enforced retirements brought by employees affected. In December, for example, the High Court upheld a challenge, by a Dr Quigley, to moves by the HSE to retire him against his will.

Terence McCrann lists some other interesting judgements on the issue of mandatory retirement. The key is that employers must take steps to ensure adherence with the updated Code of Practice on Longer Working. Employers seeking clarity must ensure that reference to a particular retirement age is incorporated into people’s contracts.

All requests to work longer should be carefully considered. Objective criteria for the assessment of such requests should be in place. The framing of fixed-term contracts for such situations should be considered.

One thing is clear. The days when management — and, in particular, HR managers — could ride by the seat of its collective pants, with regard to relations with employees, are long gone.

The legalisation of human resources has arrived with a vengeance.

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