Triona Sugrue Knowledge Consultant
2024 AT A GLANCE
- The rights to request flexible and remote working under the Work Life Balance and Miscellaneous Provisions Act 2023 were brought into operation in March 2024 with the publication of a related Code of Practice.
- The Supreme Court delivered important judgments on topics such as an employer’s ability to restrain picketing and industrial action, and mandatory retirement.
- On 20 November 2024, a new law came into force giving effect to an employee’s right to postpone maternity leave in circumstances where they are receiving treatment for a serious health condition. It also introduced a restriction on the use of non-disclosure agreements.
STRIKING A BALANCE: HOW TO HANDLE REQUESTS FOR FLEXIBLE AND REMOTE WORKING
The eagerly anticipated Code of Practice for Employers and Employees on the Right to Request Flexible Working and Remote Working (the Code) was published in March 2024, bringing the rights to request flexible and remote working into effect. The rights are contained in the Work Life Balance and Miscellaneous Provisions Act 2023 (the Work Life Balance Act).
The Code must be taken into account in four key areas of remote working requests. In respect of flexible working requests, employers are required to have regard to the Code in the termination of a flexible working arrangement only.
First WRC case on right to request remote work
While a breach of the Code is not an offence per se, adherence to the Code will be taken into account by the Workplace Relations Commission (WRC), or Labour Court, in the event of a claim in respect of a breach of the Work Life Balance Act.
In the first reported WRC case under the new legislation, Alina Karabko v TikTok Technology Ltd, the WRC analysed the obligations on employers who receive remote work requests and the remit of the WRC in respect of complaints lodged by employees.
The complainant in this case lodged a complaint to the WRC when her request for fully remote work was refused. She claimed the respondent had failed to consider her needs and that the respondent’s decision-making process was not carried out in an objective, fair and reasonable manner, as required by the Code.
What did the WRC decide?
The WRC noted that its remit is strictly limited to assessing whether an employer considered a request in line with the Work Life Balance Act and the Code. In other words, the WRC is not empowered to investigate the merits of a decision made by an employer where a request for remote work has been declined and the procedures have been correctly followed. The WRC found that the respondent had complied with each of the requirements set out in the Work Life Balance Act and, on that basis, found the complainant’s case was not well founded.
What does this mean for employers?
This case reiterates that the right is to request remote working, not a right to remote work itself. The fact that the WRC is not empowered to look behind the merits of an employer’s decision might come as a surprise and disappointment to many employees, but this case confirms what the Work Life Act Balance provides in that regard.
MANDATORY RETIREMENT: AGE DISCRIMINATION OR LEGITIMATE WORKPLACE POLICY?
In Ireland, there is no statutory mandatory retirement age for private sector employees and many employers seek to rely on a contractual mandatory retirement age. While the Employment Equality Acts prohibit discrimination on the ground of age, there is an exception in respect of contractual mandatory retirement ages, provided the employer can show that it is objectively and reasonably justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.
In May 2024, the Supreme Court looked at the issue of a mandatory retirement age in the public sector in Mallon v Minister for Justice & ors [2024] IESC 20. Mr Mallon had brought a judicial review challenge to the mandatory retirement age of 70 imposed on sheriffs in Ireland. He contended that this mandatory retirement age was discriminatory and that there were no sufficient objective and reasonable grounds capable of justifying it.
What did the Court decide?
In finding for the respondents, the Supreme Court upheld the judgment of the High Court, which found that “the aims sought to be achieved by the adoption of a standard retirement age of 70 were to allow for planning at the level of the individual and at the level of the organisation, the creation of an age balance in the workforce, personal and professional dignity, intergenerational fairness and standardising retirement age in the public service”.
Mr Mallon also asserted that a blanket mandatory retirement age is not justifiable where individual assessment is possible. The Court disagreed, finding that there is nothing in the jurisprudence of the Court of Justice of the EU to suggest that an employer must justify the application of a general retirement rule to an individual employee. “Such a requirement would, of course, substantially negate the benefit of having such a rule in the first place.” For more on this decision, see our dedicated briefing here.
What does this mean for employers?
The Supreme Court’s judgment provides welcome clarity on this point and confirms there is no requirement for individual assessment in order for a general mandatory retirement age to be lawful.
SUPREME COURT EXAMINES RIGHT TO RESTRAIN INDUSTRIAL ACTION
H.A. O'Neil Limited v Unite the Union [2024] IESC 8 involved a dispute around the legality of industrial action taken by Unite the Union, which, it was claimed, was in breach of a no-strike clause in a Sectoral Employment Order (SEO) and the Industrial Relations Act 1990. The Union had initiated strike action over the issue of payment for travel time, which was not covered by the SEO. The High Court initially granted an interlocutory injunction to halt the strike.
The Supreme Court ultimately ruled that the injunction should not have been granted. The Court emphasised that section 19 of the Industrial Relations Act 1990 precludes the granting of an injunction if certain conditions are met, including the holding of a secret ballot and giving one week's notice of the industrial action.
This case significantly alters the approach future courts must take when considering an application to restrain industrial action. The key takeaway is that there is robust protection provided to trade unions under both section 19 and the Constitution (right of association). It will potentially be extremely difficult for employers to obtain injunctions against industrial action going forward.
THE FUTURE OF PAY TRANSPARENCY: INSIGHTS FROM A RECENT CASE
The principle of equal pay for equal work, and work of equal value, has long been enshrined in the laws of EU Member States. Despite this, its effective implementation and enforcement remains a challenge, and a lack of pay transparency has been identified by the European Commission as one of the key obstacles. Hence the adoption of the EU Pay Transparency Directive (EU) 2023/970 (the Directive) in 2023, which contains far reaching rights to pay information on the part of employees and which must be transposed into national law by June 2026.
Equal pay claims in Ireland are few and far between. However, in 2022, the case of Paula Reid v Teagasc made the headlines following Ms Reid’s successful claim before the WRC that she had been paid less than a male comparator. The WRC made an award, which included arrears of pay along with compensation, in the amount of €40,000. However, the WRC’s decision has now been overturned by the Labour Court.
Ms Reid has worked as a statistician for Teagasc (the Irish Agriculture and Food Development Authority) since 1977 and was one of only two statisticians in the Authority at the time (the other being Mr Grant). In 2006, Mr Grant was placed on the ‘Senior Research Officer’ grade of pay, while Ms Reid was on the lower ‘Experimental Technician’ grade.
In 2021, Ms Reid brought a complaint under the Employment Equality Acts that, although she performed like work, she earned approximately €20,000 per year less than Mr Grant. Teagasc contended that the difference in pay was due to Mr Grant’s grade, skills, experience and qualifications, and not gender, and disputed that Ms Reid and Mr Grant were engaged in 'like work'. While she was successful in her claim before the WRC, the Labour Court overturned the WRC decision.
What did the Labour Court decide?
In accordance with the Employment Equality Acts, a person is employed to do ‘like work’ if:
1. both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work
2. the work performed by one is of a similar nature to that performed by the other and any differences are of small importance
3. the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions
In this case, Ms Reid asserted that she engaged in ‘like work’ that was the ‘same’ or ‘similar’ to that of Mr Grant. She did not assert that she was engaged in work of ‘equal value’.
In contrast to the WRC, the Court heard extensive testimony from four witnesses and found there was, in fact, no job description in existence for either position.
The Court found that, while Ms Reid and Mr Grant had the same job title, reporting line, intranet profiles, and qualification requirements (an MSc in statistics), which supported Ms Reid’s assertion that she and Mr Grant engaged in ‘like work’, these factors were insufficient to satisfy the burden of proof in establishing ‘like work’.
The Court found that Ms Reid and Mr Grant were not engaged in the same or similar work. While there was a commonality in the type and nature of the statistical work undertaken, overall, Mr Grant was engaged in more strategic and innovative work at a more senior level than Ms Reid.
What are the key takeaways?
While Teagasc was successful, the Court’s decision highlights the importance of clear documentation, transparency and fairness in the categorisation of employees’ roles. Addressing these areas will assist in mitigating the risk of equal pay claims and ensuring compliance with the Employment Equality Acts and ultimately, the Directive. Employers should:
- ensure that job roles and responsibilities are clearly defined, documented and kept up to date
- ensure promotions and appointments are conducted in a transparent and documented process and that criteria are clearly communicated
- endeavour to resolve any issues around grades and pay internally in the first instance, to avoid issues escalating into a formal claim
More detail on the case is available here.
CHANGES TO MATERNITY LEAVE AND A BAN ON NON-DISCLOSURE AGREEMENTS
The parts of the Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 (the 2024 Act) relating to an employee’s right to postpone maternity leave and the use of NDAs came into operation on 20 November 2024.
Maternity leave changes
An employee may postpone all or part of their maternity leave for a period of between five weeks and one year while receiving treatment for a serious health condition which requires necessary medical intervention.
A serious health condition is a condition which entails a serious risk to the life or health, including the mental health, of an employee and in order to address the risk, requires “necessary medical intervention” that is ongoing for a period of time.
The entitlement is triggered by way of a notice from the employee to the employer not later than two weeks before the date on which the postponement is due to commence and accompanied by a medical certificate.
One further postponement may be availed of, provided the duration of both postponements together do not exceed one year.
Employers should review their maternity leave policies and tailor them to accommodate this new right.
Non-disclosure agreements (NDAs)
The 2024 Act also amends the Employment Equality Acts to prohibit the use of NDAs in allegations of discrimination, harassment, sexual harassment, or victimisation. Any agreement, or provision in an agreement, which purports to preclude the disclosure of information relating to these kinds of allegations (and/or any action taken by the employer or employee in response) shall be null and void. The ban is subject to limited exceptions where an NDA is a term of a settlement arising out of a WRC mediation, or in the case of an "excepted" NDA.
What is an excepted NDA?
- An employer may enter into an excepted NDA with an employee only where the employee requests the employer to do so and, prior to entering the agreement, the employee has received independent legal advice in writing from a legal practitioner.
- The employer must discharge the reasonable legal costs and expenses of the legal practitioner.
- The excepted NDA must fulfil an extensive list of criteria, including: (i) be of unlimited duration, other than where the employee elects otherwise, (ii) insofar as possible, be in clear language that is easily understood and a format that is easily accessible by the parties, (iii) provide that the employee has a right to withdraw within 14 days, and (iv) include a provision that the agreement does not prohibit the employee making a disclosure to a defined list of people including, for example, the Gardaí (Irish police).
- The employer must provide the employee with a copy of the executed agreement. This new law means that all employment agreements, particularly any settlement, severance, or compromise agreements, need to be tailored to ensure they do not prohibit the disclosure of information relating to allegations of discrimination, harassment, sexual harassment, or victimisation, or that they constitute an excepted NDA. This new law undoubtedly has the potential to add an extra layer of complexity to settlement or severance negotiations, which can already be an intricate process.
LOOKING AHEAD
- In March 2024, the General Scheme of the Employment (Restriction of Certain Mandatory Retirement Ages) Bill 2024 was published. It proposes to prohibit an employer from enforcing a retirement age below the age of 66 where an employee does not consent to it. The objective is to allow, but not compel, an employee to stay in employment until the State pension age. Depending on the outcome of the General Election, this proposed legislation may progress in 2025.
- The High Court is due to hear an appeal on a point of law in an important collective redundancy case, Debenhams Retail Ireland Limited (in Liquidation) v Crowe. See here for more information.
- Employment status is likely to remain a contentious issue in a lot of cases and it will be interesting to see how the updated Code of Practice on Determining Employment Status is applied in practice.
- Due to commence on 30 September 2025, pensions auto-enrolment will impact all employers in Ireland. Most workplaces will have employees who are entitled to join auto-enrolment. Early preparation will be key.