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New legislation and Codes of Practice – what HR Practitioners should know

As we enter the final few weeks of 2021, Adare Human Resource Management highlights some of the new legislation and Codes of Practice that HR Practitioners need to be aware of ahead of the Christmas break.

Gender Pay Gap Information Act 2021: The Act amends the Employment Equality Act 1998, and provides that the Minister for Children, Equality, Disability, Integration and Youth will make regulations requiring certain private and public sector Employers to report and publish information relating to their gender pay gap, and, where there is a gap, to explain why there is a gap and what measures are being taken to reduce it.
 

Workplace Relations (Miscellaneous Provisions) Act 2021: The Act amends the Workplace Relations Act 2015 to allow for public hearings and makes provision for Workplace Relations Commission adjudicators to take evidence on oath or affirmation.

The Act also provides that the applications in relation to the enforcement of decisions of adjudication officers shall to be made on notice and that the chairman, deputy chairman and ordinary members of the Labour Court shall be independent in the performance of their functions.
 

Family Leave and Miscellaneous Provisions Act 2021: As of 1st April 2021 and following the enactment of the Family Leave and Miscellaneous Provisions Act 2021, parents are entitled to 5 weeks leave under Parent’s Leave, an additional 3 weeks on the previous entitlement. The Act goes further and extends the period in which the leave can be taken to the first 2 years after the birth or adoptive placement of a child. The aim of the extension is to allow parents spend more time with their children during the first two years of the child’s life.

If the parent has already taken their 2-week entitlement, then they can take a further 3 weeks in 2021 (subject to the two-year limit).

The enactment of the Family Leave and Miscellaneous Provisions Act 2021 amends the Adoptive Leave Acts to enable adoptive couples to choose which parent may avail of adoptive leave thus removing the assumption that the adopting mother is the primary caregiver. The Act also makes Paternity Leave and Benefits available to the parent who is not availing of adoptive leave.

Furthermore, the Act amends the Social Welfare Consolidation Act 2005 and certain other enactments; to amend the Child and Family Agency Act 2013 to increase the number of ordinary members of the Board of the Child and Family Agency to 9. It also amends the Judicial Council Act 2019 and the Personal Injuries Assessment Board Act 2003 to make further provision in relation to the operation of personal injuries guidelines adopted by the Judicial Council.
 

Code of Practice for Employers and Employees on the Right to Disconnect 2021: The purpose of the Code is to provide practical guidance and best practice to Employers, Employees and their representatives in relation to the Right to Disconnect.

The Code is designed to provide guidance for the resolution of workplace issues arising from the Right to Disconnect both informally and formally, and:

  • complement and support Employers’ and Employees’ rights and obligations under the Organisation of Working Time Act 1997, the Safety, Health and Welfare at Work Act 2005, the Employment (Miscellaneous Provisions) Act 2018 and the Terms of Employment (Information) Act 1994 – 2014,

  • assist Employers and Employees in navigating an increasingly digital and changed working landscape which often involves remote and flexible working,

  • provide assistance to those Employees who feel obligated to routinely work longer hours than those agreed in their terms and conditions of employment.

  • assist Employers in developing and implementing procedures and policies to facilitate the Right to Disconnect.
     

Code of Practice on Determining Employment Status July 2021: An updated Code of Practice on Determining Employment Status has been published by the Minister for Social Protection. The term ‘employment status’ refers to whether a worker is classified as either an Employee or as being self-employed. The purpose of the updated Code of Practice is “to set out the key characteristics that are used to inform decisions on employment status, taking into account current labour market practices and developments in legislation and case law.
 

Sick Leave Bill 2021: On 5th November 2021, the Government has published the Sick Leave Bill 2021 which provides further details on the statutory sick leave payments for Employees. The Bill provides that an Employee, subject to their having 13 weeks continuous service with their Employer shall be entitled to up to and including 3 sick leave days per annum, or such additional number of statutory sick leave days as may stand specified from time to time by order of the Minister. Amendments to the number of sick leave days provided for can be brought forward by the Minister following consideration of the economic climate and the possible impacts an amendment will have on both Employers and Employees.

The Government’s statutory sick pay will be phased in over a four-year period, starting with three days per year in 2022, rising to five days payable in 2023 and seven days payable in 2024. Employers will eventually cover the cost of 10 sick days per year in 2025.

The payment rate for statutory sick pay has been set at 70% of the Employees’ normal rate, subject to a maximum of €110 per day. The Employer must deduct taxes in the normal manner and the Employee has to be medically certified as unfit for work to qualify for statutory sick pay.

Employers will have to retain records of all statutory leave taken by their Employees for a period of 4 years and Employees maintain all existing employment rights when availing of benefits under the proposed Statutory Sick Pay legislation. The right to sick pay will be legally enforceable by employees through the Workplace Relations Commission and the Courts. Remedies available to successful complainants will include an award of compensation up to a maximum of 20 weeks remuneration.
 

National Minimum Wage will increase to €10.50 per hour from 1 January 2022: The Tánaiste Leo Varadkar TD, has received Government approval to accept the recommendation from the Low Pay Commission to increase the National Minimum Wage to €10.50 per hour from 1 January 2022.
 

Payment of Wages (Amendment) (Tips and Gratuities) Bill 2021: The Government has announced that is bringing forward legislation on tips and gratuities which will strengthen the rights of Employees, prohibiting the use of tips and gratuities to make up contractual rates of pay. Minister Leo Varadkar confirmed that the intention is to have the legislation enacted by next year.

The proposed legislation will require Employers to clearly display their policy on how both card and cash tips, gratuities and services charges are distributed. All electronic tips must be distributed fairly and in a transparent way. Organisations will also be required to keep a record of how tips and gratuities are distributed in the event of there being a complaint. The records will be available for inspection by the Workplace Relations Commission.
 

Protected Disclosures (Amendment) Bill 2021: The Minister for Public Expenditure and Reform, Mr Michael McGrath TD, has recently published the General Scheme of the Protected Disclosures (Amendment) Bill 2021.

The purpose of this Bill is to provide for the transposition of the EU Whistleblowing Directive into Irish law which aims to further enhance and strengthen the protections it provides.

The key provisions of the Bill are as follows:

  1. The extension of the personal scope of the Protected Disclosures Act to volunteers, unpaid trainees, board members, shareholders and job applicants.

  2. An obligation on all private sector Organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures. A derogation until 17 December 2023 will be put in place as regards this requirement for organisations with between 50 and 249 employees. All public sector organisations, regardless of size, are already required to have formal protected disclosures procedures in place under the 2014 Act.

  3. Employers and prescribed persons designated to receive protected disclosures under the Act will be subject to an obligation to:

    • Acknowledge receipt of the protected disclosure within 7 days,

    • Follow-up diligently on the information contained in the protected disclosure,

    • Provide feedback to the reporting person on the actions taken or envisaged to be taken as follow-up within 3 months.

    • Communicate to the whistleblower the final outcome of investigations triggered by the protected disclosure.

  4. A Protected Disclosures Office will be established within the Office of the Ombudsman, which will:

    • receive and redirect, as appropriate, protected disclosures made to prescribed persons under section 7 of the Act of 2014,

    • support Ministers who receive protected disclosures under section 8 of the Act of 2014 by carrying out an initial assessment of the disclosure and making recommendations as regards actions for follow-up; and

    • in cases where a suitable authority cannot be identified within the prescribed timeframe, follow-up directly on disclosures referred to the Office.

The legislation is expected to be enacted by the end of this month (December 2021) and Organisations must ensure they have adequate policies and procedures in place to effectively address any protected disclosures in the workplace.

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