The UK Government, led by Liz Truss, has signalled its intention to review up to 1500 EU laws, including legislation embedded for many years regulating working time and other worker protections.
While for many years the employment laws in Ireland and the UK reflected their EU origins and developed in parallel, with limited national adaptations, post-Brexit this is increasingly no longer the case.
The Irish Government has been extremely active over the last number of years in introducing changes (both legislative and social) that will have a significant impact on the employment landscape in Ireland. The Government has, most recently, indicated a willingness to consider the recommendations of the Low Pay Commission, increased the statutory minimum wage and has introduced additional statutory rights relating to sick pay and to parental leave (increased to 7 weeks from July 2022).
Many of the legislative initiatives that have been launched by the Government have gone under the radar while businesses grappled with the Covid-19 pandemic (and availed of the various financial supports that were available).
The Government has shown a clear commitment to social measures that continue to support low paid and vulnerable employees. While such initiatives are to be welcomed in ensuring the nature of the society in which we live, it must be recognised that there is also a critical need to review the effect of the layering of increased legislative and policy initiatives on the burden of employment in Ireland. There are more than 40 pieces of employment legislation in Ireland supplemented by codes of practice and employment regulations.
With effect from 1 January 2023, in Ireland:
- The national minimum wage will be €11.30 per hour
- The new statutory sick leave arrangements which provide for a right to be paid 3 days sick pay by their employer (after which social welfare illness benefit is payable) will apply.
Gender pay gap reporting, while initially aimed only at larger businesses (currently relating to employers employing more than 250 employees), will apply to mid-size enterprises employing more than 50 employees by 2025. This legislation became effective in June 2022 with a reporting date of end December 2022 for applicable businesses. In addition, there is a stated intention to move towards a living wage model so that the minimum wage more closely reflects the recommendations of the Low Pay Commission – currently the living wage for 2023 is calculated as €13.10.
The Covid-19 pandemic has led to a reset in the way in which many employers have engaged with their employees. In an economy where in many sectors there is competition for employment, employers are having to actively compete to recruit and retain their workforce. Apart from pressure on pay and conditions, the need to compete for workers has in many cases led to the offer of flexibility such as in hours of work and work location. Legislative initiatives reflecting the changes in working patterns have included:
- A Code of Practice which provides for employers and employees to engage in developing a policy on the right to disconnect.
- A draft scheme for legislation relating to the right to request remote working (currently going through a period of pre-legislative scrutiny). The stated aim of this legislation is to “to provide a legal framework around which requesting, approving, or refusing a request for remote work can be based. It also aims to provide legal clarity and procedures to employers on their obligations for dealing with such requests”.
For employers, the new focus on flexibility is not without its challenges. While facilitating a remote or hybrid working environment may be attractive for employees and be an advantage when competing for talent, it is heavily reliant on a high level of trust between employer and employee. Social issues such as maintaining team cohesion and organisational culture arise. Many roles are not conducive to remote working and there have already been challenges brought in the Workplace Relations Commission in relation to circumstances in which remote working requests have been refused.
Where the majority of an organisation’s employees are working remotely, the systems of management (time, attendance and performance) could be universally applied in a consistent way; now, with hybrid working, there can be differences in engagement between the attendees in person and the remote workers. There is a real risk of isolation, increasing the potential for adverse behaviours (cyber bullying) and cultural disconnection.
From a legal perspective, employers are still required to maintain records of working time, rest breaks and ensure the health and safety of their employees. Concerns relating to the confidentiality of business information, data protection and enforceability of company policies and procedures also exist. While the main thrust of the Government’s proposed new legislation is to underpin and strengthen employee rights, including minimum wage and sick pay, there has been no meaningful engagement to adapt legislation that is no longer fit for purpose in the new working environment. By way of example, the Organisation of Working Time Act 1997, requires an employer to maintain records relating to an employee’s working hours and rest breaks. While, in reality a remote or hybrid worker is determining their own working time (which is a positive feature of the working arrangement), the legislation nonetheless requires the employer to take the primary role in maintaining and monitoring working hours records.
The focus on the social and legal rights for Irish employees and the promotion of initiatives that set a baseline for core rights and entitlements is to be welcomed. The contrast with the proposed “bonfire” of EU laws which is suggested in the UK is marked and there would be no appetite in this jurisdiction to adopt a similar approach. But, in promoting social initiatives that support and underpin employee rights there is a critical need to balance this with a review of the legislative burden on employers with a view to streamlining and updating legislation to reflect market realities and new working arrangements.