Looking back on 2021, we saw almost as many interesting developments across the employment law landscape as 2020, if that is possible. The impact of COVID-19 continued to be felt and we saw a continued focus on vaccinations, onsite health and safety compliance and the complexities of managing a remote workforce. However, the pandemic was also the catalyst for escalating a significant number of employment initiatives which had been simmering in recent years, including the introduction of hybrid and flexible working arrangements and the right to disconnect. COVID has undoubtedly accelerated the advance of many of these themes, making them central and priority issues for employers in 2021.
Outside of the pandemic-related themes, 2021 saw employers adapting workplace bullying complaint practices in response to the 2020 Code of Practice on Bullying. We also saw organisations and the Irish Government continue in their commitment to diversity and inclusion initiatives and protections.
Lastly, significant progress was made in the context of the Senior Executive Accountability Regime which is the bedrock of the individual accountability framework. The publication of the general scheme providing for the legislation, in particular the detail on the conduct standards, has also helped regulated employers to see the extent of these changes for the first time.
Here, we look at these topics in more detail and review the key considerations in respect of each of these developments below.
1. The Right to Disconnect
The pandemic brought an employee’s right to disconnect into sharp focus when the boundaries between work and home were unprecedentedly blurred. The Code of Practice on the Right to Disconnect (the “Code”) was published in April 2021 and is all about organisations fostering a good work/life balance culture. The Code enshrines three main rights: a right not to work routinely outside of normal working hours; a right not to be penalised for refusing to work outside normal working hours, and; a duty to respect another’s right to disconnect.
While failure to follow the Code is not an offence in and of itself, the Code is admissible in evidence in proceedings before the Workplace Relations Commission (“WRC”) and the Labour Court. For many large employers the Code was not as ground breaking as expected, and its impact to date has been surprisingly low key in practice.
Listen to our podcast here where we discuss the Code in detail and we consider the ways in which you can build it into your organisation’s working time practices. Please also see our note on Employer insights on Right to Disconnect Code of Practice.
2. Right to Request Remote Working
In what was heralded as a significant element of the Irish Government’s National Remote Working Strategy (the “Strategy” which was published in January 2021), an employee’s right to request remote working will be legislated for. This attracted much media attention and client interest as organisations prepared to roll out their hybrid / flexible working models. However, as we have not yet seen any draft legislation, the parameters of this right are still unknown.
Our view is that it is likely that employers will be required to fully consider a request for remote working and provide a response within a certain timeframe, perhaps as part of an overarching obligation to deal with the request in a reasonable manner. We are not expecting any obligation on employers to grant requests but it seems likely that a good business reason or other justification will be required to accompany a refusal. On a practical level, this development could have an even greater impact on day to day management than the right to disconnect.
In terms of timing, the Irish Government had initially stated its intention to enact such legislation in Q3 of 2021. At this stage, it is unlikely that we will see its enactment before Spring 2022 at the earliest.
Listen to our podcast here where we discuss the Irish Strategy in detail and we focus specifically on an employee’s right to request remote working.
3. Diversity and Inclusion (“D&I”) Initiatives and Legislative Measures
Although 2020 and 2021 have been dominated by COVID-19 or its related themes, equality and discrimination has also been an ever-present theme. The virus itself made certain individuals more vulnerable. The death of George Floyd in 2020 and the subsequent trial of his accused in 2021 triggered global mass protests against systemic racism and racial inequalities. Four years after the #MeToo movement erupted, we see the continued exposure of workplace sexual harassment. 2021 saw D&I initiatives becoming firm board-level agenda items.
There has been a considerable increase in the number of client queries regarding D&I initiatives this year, including the collation of employee and applicant personal data to better understand the workforce profile. Employers are balancing the data privacy and employment concerns against their commitment to ensuring that they employ a diverse and inclusive workforce.
Separately, the Irish Government illustrated its ongoing commitment to affording parents the opportunity and flexibility of sharing child caring responsibilities by extending each parent’s “parents’ leave” entitlement to seven weeks from June 2022.
The Irish Government has also published its Sick Leave Bill which will introduce a limited entitlement to statutory sick leave for an employee in 2022 who is unable to work due to illness or injury. For most employers, it will have a limited impact as they are already providing for sick pay.
Lastly, the Gender Pay Gap Information Act 2021 (the “2021 Act”) was signed into law in July 2021. While the 2021 Act paves the way for gender pay gap reporting in Ireland, the nuts and bolts of the reporting obligations have been left to be prescribed by the regulations which have not yet been published. In our estimation, allowing for the regulations to be published and providing for a lead in period, the first annual gender pay gap disclosure date for Irish employers is unlikely to be before mid-2023. We do, however, expect some of the larger high profile employers to publish their details early, which will in turn put pressure on other employers in similar sectors to volunteer their data at a much earlier stage. As such, larger employers need to be ready to move quickly on this and may not have the luxury of waiting for the deadline to arrive.
4. Code of Practice on Workplace Bullying
The combined WRC and Health and Safety Authority (“HSA”) Code of Practice on Workplace Bullying was published on 23 December 2021 (the “Bullying Code”) and we have seen employers throughout the course of 2021 manage bullying complaints in accordance with its new provisions. The general view on the Bullying Code from the outset was that it contained certain flaws and added further complexity to managing internal procedures.
While there are some welcome practical aspects, such as the confirmation that certain types of behaviour (including performance management and feedback) do not constitute bullying, it also provides for the concept of an “initial informal process” and a “secondary informal process” which will inevitably have the effect of prolonging the management of any complaint. This additional element introduces what can be now viewed as a three stage process of resolution – an initial informal process, a secondary informal process and a formal process and employers have had to revise their bullying procedures to build this in.
Listen to our podcast here which considers the key elements of the Bullying Code and what this means for employers in Ireland.
5. The CBI Individual Accountability Framework and SEAR
The Central Bank of Ireland has been prioritising individual accountability for several years now. However, the pending introduction of the 'Senior Executive Accountability Regime' (“SEAR”) as part of the overall Individual Accountability Framework in Ireland will be the most significant development in this regard since the creation of the fitness and probity regime following the financial crisis. The new framework will further develop the crossover between employment law and financial services regulatory law that began in 2010. In short, SEAR will ensure that individuals can be held accountable where regulatory contraventions occur under their watch. This year, we saw the General Scheme for the Central Bank (Individual Accountability Framework) Bill published as well the pre-legislative scrutiny being conducted. The publication of the scheme also brought home to regulated employers the cultural changes that the new regime will require, in particular around the conduct standards, which up to this point had been largely overlooked.
The proposals for this legislation are expected to continue through the legislative process in 2022, with Minister Donohoe now accepting it is unlikely to be operational until early 2023.
Read our insights here: