New Year’s Resolutions For Employers
As businesses face into 2022, there are three pieces of employment legislation that require attention, writes Beauchamps partner Sandra Masterson Power
Statutory Sick Pay
The Sick Leave Bill 2021 proposes a statutory sick pay scheme that is expected to commence on a phased basis in 2022. As currently drafted, employees with a minimum of 13 weeks’ continuous service will be entitled to sick leave payments from their employer up to three days per annum. The government intends to increase this benefit to five days in 2023, seven in 2024, and ten in 2025.
The level of sick pay will be a percentage of normal wages and will be capped. Breach of the legislation will result in a complaint to the Workplace Relations Commission, and the WRC can award compensation of up to 20 weeks’ pay. Employers experiencing financial difficulties may seek an exemption from the obligation to pay sick leave. Exemptions may be granted for a minimum of three months to a maximum of one year.
Gender Pay Gap Reporting
Following enactment of the Gender Pay Gap Information Act 2021, from 2022 public- and private-sector employers will have to report on any differences in male/female remuneration, including bonuses. Where a gap is identified, employers are obliged to outline measures proposed to reduce the discrepancy. Initially applicable to employers with over 250 employees, this will reduce to firms with over 150 staff members in 2023, and to over 50 employees in 2024.
Reporting will be enforced by the WRC, which may direct a specified course of action. It cannot fine employers or award compensation in favour of affected employees. The Irish Human Rights and Equality Commission can bring an application before the Circuit or High Court for an order of compliance.
Protected Disclosures
The General Scheme of the Protected Disclosures (Amendment) Bill 2021 seeks to give effect to the EU Whistleblowing Directive and broaden the provisions of existing protected disclosures legislation. Private-sector companies will be brought in scope for protected disclosure obligations, which will eventually apply to all employers with 50 or more employees. The Bill is due to be enacted in Q1 2022.
In Baranya v Rosderra Irish Meats Group, the Supreme Court considered the remit of the Protected Disclosures Act 2014. Judgment was delivered on 1 December, at the same time as officials were drafting the legislation to meet the transposition date of 17 December 2021 for the EU Whistleblowing Directive. The judgment highlights the complexity of this area and the difficulties experienced by organisations in trying to understand or recognise when a protected disclosure has been made and is noteworthy for two reasons:
• Justice Hogan determined that while the Code of Practice on Protected Disclosures distinguished between protected disclosures and grievances, the Act itself did not. He found that the Code relied upon by earlier courts misstated the law on protected disclosures. The Code therefore is of questionable value to employers when analysing complaints by workers and will have to be amended.
• The court also ruled that purely personal complaints in relation to workplace health or safety can be a protected disclosure.
New-Year Action Points
Heading into 2022, employers should review:
• contracts and policy documents for sick pay provisions, and prepare for statutory sick pay;
• pay structures, and identify and address systemic issues giving rise to equal pay risks or other reasons for a gender pay gap; and
• grievance and protected disclosure policies.
And, of course, be mindful of data protection and confidentiality obligations when conducting internal reviews or preparing audit reports in relation to any of the above.
For further information, get in touch with our Employment team: Sandra Masterson Power (s.mastersonpower@beauchamps.ie) Patrick Watters (p.watters@beauchamps.ie) W: www.beauchamps.ie