Employment lawyers are eagerly awaiting the enactment of a Bill which should bring some clarity into the increasingly fraught area of data protection rights in the workplace.
It is just one of a series of concerns weighing on them in a legal environment which, if anything, becomes more — not less — challenging given rapid changes in the economy and the increasing levels of awareness and assertiveness among employees in a tightening labour market.
The Data Protection Bill has not come out of nowhere. A new EU enforcement regime known as the General Data
Protection Regulation, or GDPR, takes effect on May 25. There has been something of a blizzard of publicity surrounding GDPR, yet clarity about its impact is lacking.
The Bill was published in February. It was due to be on the statute books by now but is still trundling through the Oireachtas. Regardless of what happens with the Bill, major changes in this area are on the way.
The changes will hit home soon whether people like it or not. While national authorities have some discretion, it is limited. According to Jennifer Cashman, a senior partner in Ronan Daly Jermyn (RDJ) solicitors, the new regulation will give employers much to think about regarding the data they collect and data retention in the form of records could be a major focus of concern.
Currently, many firms retain records on employees going back decades. This state of affairs may not be sustainable.
In Ms Cashman’s view, employers will have to get rid of a lot of their
records and they will have to show that there is a lawful basis for the retention of any such data. Various exemptions to this requirement will exist.
An example of this is where the firm is threatened with litigation and resorts to long-held records may be required. However, employers cannot escape the requirement to excise old records by citing the possibility of a claim emerging down the road.
A new Data Protection Commission will fill the role of the existing Data Protection Commissioner.
The Office has already been given extra resources, and not before time given that Ireland hosts the European headquarters of a host of leading global technology firms.
Law firms predict a stepping up in the number of enforcement actions being taken under the data protection head.
According to the Dublin law firm A&L Goodbody, the risks associated with non-compliance with the laws in this area will “change dramatically”.
RDJ’s Jennifer Cashman expressed concern that small firms are being held to the same standard as much larger firms with greater in-house capacity.
“There are very few reliefs [in the GDPR] for small organisations,” she said.
Elsewhere, new employment law ‘flashpoints’ have emerged. Retirement claims constitute one such.
The large WRC (Workplace Relations Commission) compensation award to RTÉ broadcaster Valerie Cox could be the tip of an iceberg as other colleagues, such as Lyric FM presenter Carl
Corcoran, look set to bring claims. Law firms are dealing with increased activity across the board.
The WRC has published a code of practice on the topic of working longer. Through 2017, a series of decisions have been issued by the Commission involving Irish Ferries, Luas-operator Transdev Ireland, and Ireland West Airport at Knock.
The decisions have tended to favour the employee. A key advice to management is that they move to put succession plans in place as employees approach retirement.
Jennifer Cashman has also noticed a rise in the number of performance-related disputes, a development that may be related to the impact of the downturn in hollowing out workforces. As a result, many employees find themselves quite stretched as business activity levels rebound.
The so-called war for talent in particular sectors is also impacting on contractual negotiations.
Younger workers, in particular, are less concerned about job security, more mobile and more interested in entering into shorter term, or fixed-term contracts.
One High Court decision, in May 2017, has caused particular waves in HR departments. Mr Justice Eager in ‘Lyons v Longford Westmeath ETB’ held that the employer had acted contrary to fair procedures when it ruled that a vice principal accused of bullying was not entitled to legal representation, or to cross examine his accusers.
According to Seamus Given, head of the employment group at Arthur Cox solicitors, the Court affirmed a long-
established legal principle that cross examination is a vital safeguard to ensure fair procedures.
In Ms Cashman’s view, the decision was “very much on its own facts” and it has been qualified in subsequent
In ‘Lyons’, the chief executive of the Education and Training Board adopted the findings of the investigator — there was no subsequent disciplinary process as would usually be the case.
The concern would be that if ‘Lyons’ were to be applied across the board it would result in the unnecessary
introduction of lawyers into internal inquiries, one effect being that employees might be deterred from bringing
That said, the Court ruling will serve as a reminder — if one is needed — that appropriate procedures leading to
serious sanctions, up to and including dismissal, must be adhered to.