ARE YOU READY FOR THE GENDER PAY GAP?

Are you aware of the new Irish Human Rights and Equality Commission (Gender Pay Gap Information) Bill 2017 which is in the Seanad. The Bill was proposed by the Labour Party and has been accepted by the Government as part of its Programme for Government.

  • Employers of 50 employees upwards will be required to report the average pay differential between male and female earnings in roles (gender pay gap).
  • Employers will be required to report on:
    • The difference in the average hourly rate of pay between male and female employees
    • The difference in bonus pay between male and female employees
    • The proportion of male and female employees who are eligible to be paid a bonus
    • The proportion of male and female employees at four levels in an organisation called quartiles
  • It will be an offence to breach the obligation to report the Gender Pay Gap, and there will be a fine of up to €5,000 for a breach.
  • At present the average gender pay gap in the Republic of Ireland is 14.9%, and this differs from industry to industry. Employers should review the gender pay gap in their industry and how they compare.
  • Employers should take care in carrying out any scoping exercise to clarify the gender pay gap. This information may be sought by employees or by Discovery in a litigation context.
  • The Bill is not detailed and is based on the UK model, which is already being implemented on a voluntary basis.

Employers should take pro-active steps to consider their gender pay gap and how they should deal with this as the requirement to report the gap should be in place in the next few months.

 

If you would like any further information please contact Davnet O’Driscoll, Amorys Solicitors, Davnet@amoryssolicitors.com

Guide for Employers on New Developments on Performance & Absence

Davnet O’ Driscoll has been invited to speak at the Legal Island Annual Review of Employment Law Conference on 2, 15 and 30th November 2017 to guide employers on new developments on performance and absence, and their responsibility to reasonably accommodate disability. This is an area of risk for employers. Davnet will also update on recent equality developments.

See below for further information:

https://www.legal-island.ie/events-ie/annual-review-of-employment-law-2017-red-cow/

,

Record Damages for Discrimination and Gender Pay Gap

female army Captain, who served in the army for 9 years was awarded record damages for discrimination when all of her Captain colleagues (who were male) were promoted to Commandant after 9 years in accordance with the Defence Forces Regulations when she was on maternity-leave. The Captain first applied to the High Court to judicially review the decision of the Minister for Defence not to promote her to Commandant. The High Court found the Minister for Defence had breached the Equal Treatment Directive between men and women in not automatically promoting Ms Byrne to Commandant due to her maternity-leave.

As the Captain had left the Army, the Minister for Defence argued the Court should only consider the Captain’s loss of earnings due to the failure to promote her to Commandant in making an award. But the Court found it was foreseeable that Ms. Byrne would leave the army as a result of not being promoted as she was excluded from the promotion process due to her maternity leave. Ms. Byrne was not told that there was a Board being established to consider the issue of promotion. She was treated in a less favourable manner to her work colleagues who were all male. The Court found Ms. Byrne should receive damages for loss of earnings as a result of leaving the army which included pension loss, overseas duties for future duties, bringing it to a total amount of €412,397. This was doubled to take into account taxation to of €824,794. It also took into account her earnings in her new employment.

There are costly implications for employers who fail to treat male and female employees equally. The recent spotlight on the gender pay gap in broadcasting is bringing differences of payment for like work between male and female employees to the fore. Consultation on steps to be taken to address the Gender Gap has been opened today and is advertised in the Independent Newspaper. Employers should take note.

This is a summary of a recent decision and specific legal advice should be obtained in any situation. If you have any comment on this article or would like any further information, please contact Davnet O’ Driscoll at Davnet@amoryssolicitors.com

(c) August 2017

, , , ,

Corporate Manslaughter Bill 2016

The Corporate Manslaughter Bill 2016 which is making its way through the Oireachtas at the moment creates 2 new criminal offences which will have significant impact on healthcare service providers. Firstly, an offence of “Corporate Manslaughter” is created when a person’s death is caused by gross negligence by an organisation. Corporate manslaughter can be committed by an “undertaking” which is a company, or corporate body, charity, government department or statutory body and can result in a large fine for the organisation. Secondly, management employees may be in addition charged with a criminal offence of “grossly negligent management causing death” in an organisation which has been convicted of Corporate Manslaughter. This occurs when a member of staff (“high managerial agent”) knew or ought to have known of risk of death or serious personal harm, and failed to take reasonable efforts to eliminate the risk which contributed to a death. This means a Director, Manager or Senior Official in a company or state body could also be charged and given a jail sentence in the event of a death.

 

Corporate Manslaughter occurs when an organisation which has a duty of care to an individual fails to meet the standard of care required to prevent substantial risk of death or serious personal harm, and to take all reasonable measures to anticipate and prevent risks. The size and circumstances of the organisation will be taken into account. The duty of care applies to all employers, subcontractors, owners/occupiers of property, producers of goods and service-providers. A Court will take a number of factors into account in assessing whether there is a breach of the standard of care required and specifically the management, rules, policies, allocation of responsibilities, training and supervision of staff, previous response of the organisation to other incidents involving death or serious personal harm, the organisation’s goals, communications, regulation, assurance systems and whether it is a licensee or contractor.

 

All management and officeholders should be aware that they might come within the definition of a “high managerial agent”. A “high managerial agent” is a Director, manager or officer of an organisation or someone acting in that capacity. A Court will consider the actual and stated responsibilities of the employee to establish if the employee should have known of the risk, and whether it is in the power of the employee to eliminate the risk. If it is not in the power of the employee to eliminate the risk, whether the employee passed information on the risk to others who can eliminate the risk in considering a charge of “grossly negligent management causing death”. Prosecutions for the 2 offences are on indictment in the Circuit Court. An organisation which is convicted of Corporate Manslaughter will be liable for a substantial fine. A “high managerial agent” convicted of “grossly negligent management causing death” will be liable for a fine and or term of imprisonment of up to 12 years.

 

In addition to other sanctions, a Court may make a Remedial Order to address the problems identified to prevent any recurrence and can consult with relevant trade unions and regulatory and enforcement authorities in considering the conditions. The organisation may be subject to a Community Service Order or Adverse Publicity Order where it is required to publicise its conviction for Corporate Manslaughter, the fine and any Remedial Order online or by other means. A “high managerial agent” who is convicted of “grossly negligent management causing death” can also be disqualified from acting in a management capacity for up to 15 years on indictment or subject to a fine of a maximum of 5 million euro and or up to 2 years in prison. The Court is entitled to enquire into the financial circumstances of an individual in setting the fine. If an organisation has been dissolved and reformed and the Court is satisfied the purpose of this is to avoid criminal liability, the Court can disregard the fact that an organisation has changed name.

 

This is a summary of the bill which has been published and specific legal advice should be obtained in any situation. If you have any comment on this article or would like any further information, please contact Davnet O’ Driscoll at Davnet@amoryssolicitors.com

 

Employment Law Briefing with a Twist

On Thursday, 9th March 2017 as part of Dun Laoghaire Rathdown County Council Local Enterprise Week, Amorys Solicitors in association with JCI Dublin Southside hosted a mock Workplace Relations Commission tribunal in the Beacon Hotel, Sandyford, Dublin 18.

The glamourous world of fashion was revealed when a high-flying PR executive was dismissed after a fashion show fell flat amid suspicions that she was planning to start her own company with a prized client. The question, hotly contested on the night, was: did the company follow proper procedures, and was the employee a victim of bullying, harassment and unrealistic expectations?

At the mock hearing business leaders and HR professionals experienced the theatre of the Workplace Relations Commission, learned how the process works and are now fully equipped to minimise the risk of claims, prepare for tribunals and successfully defend a claim for unfair dismissal.

The tribunal was presided over by Davnet O’Driscoll, WRC Adjudicator designate and solicitor with Amorys Solicitors. Stephen Fitzpatrick BL, barrister, and Deirdre Farrell, solicitor also with Amorys represented the parties.

Deirdre Farrell, solicitor with Amorys Solicitors, commented: “Up-to-date information about recent developments in employment law isn’t always easy to find, understand and then translate for your business. This event provided an excellent opportunity for employers and HR professionals to work together to understand what is involved in, and how to effectively manage, an employment tribunal.”

Amorys Solicitors would like to thank JCI Dublin Southside and Dun Laoghaire Rathdown County Council Local Enterprise Office for the support and  sponsorship provided to them.


Left to right Deirdre Farrell, Solicitor, Amorys Dublin, playing the solicitor for Nigella Dawson.
Ben Stafford, Community Officer, Junior Chamber Ireland – Dublin Southside, playing Nigella Dawson, the ex-employee and claimant.
Davnet O’Driscoll, Workplace Relations Commission Adjudicator, playing herself.
Theresa Cahill, President, Junior Chamber Ireland, playing Edwina Monsoon, CEO of Saving Face Ltd., the employer.
Stephen Fitzpatrick BL, Co-President, Junior Chamber Ireland – Dublin Southside, playing the barrister for Saving Face Ltd.
© Photo by Peter Cavanagh

,

Join us at our Mock Employment Tribunal

We all love the drama of good court case or employment tribunal — but what if it was your company in the dock?

This March, as Dublin 18.part of Local Enterprise Week, Junior Chamber Ireland (Dublin Southside) in association with Amorys Solicitors, will be hosting a mock Workplace Relations Commission tribunal in the Beacon Hotel, Sandyford, Dublin 18.

We step into the glamourous world of fashion when a high-flying PR executive is dismissed after a fashion show falls flat amid suspicions that she is planning to start her own company with a prized client. But did the company follow proper procedures, and was the employee a victim of bullying, harassment and unrealistic expectations?

The mock tribunal presents a great opportunity to experience the theatre of the Workplace Relations Commission, understand how the process works and build your confidence to prepare for any future hearings without risk to your business.

The session promises to be dramatic and entertaining, and will also offer practical information and experience that is relevant to all business owners, managers and employees having or seeking to secure a managerial role.

The tribunal will be presided over by Davnet O’Driscoll, a WRC Adjudicator designate and solicitor with Amorys Solicitors. Stephen Fitzpatrick BL, barrister, and Deirdre Farrell, solicitor also with Amorys will be representing the parties. This event will provide attendees with:

  • An opportunity to help demystify Workplace Relations Commission proceedings relating to a claim for unfair dismissal.
  • Guidance on how to implement workplace policies in your business.
  • A chance to learn how to prepare for, present and defend an unfair dismissal claim.
  • A forum to question and discuss employment law issues with experienced employment law lawyers

The seminar is free to attend, however, it is expected to be very popular and places are limited so please register your attendance on Eventbrite. More info on Local Enterprise Week events in Dún Laoghaire-Rathdown can be found here.

 

Programme:

6.30pm        Arrival, registration, refreshments
7.00pm        Mock Workplace Relations Commission Tribunal
8.15pm        Q&A session
8.30pm        Drinks & Canapes
9pm             Evening ends

,

Paternity Leave Rights for Fathers Commence 1st September 2016

The Paternity Leave and Benefit Act 2016 gives 2 weeks paternity leave to fathers or the spouse, civil partner or cohabitee of children born on or after 1 September 2016, or to a spouse, civil partner, cohabitee, of an adopting mother or sole male adopter adopting a child on or after 1st September 2016.

  • Paternity leave can be taken from the date of birth or adoption of the child at any time prior to the expiry of 26 weeks after the date of birth or adoption.
  • Notification to the Employer of the employee or contractor’s paternity leave should be given as soon as reasonably practicable, but no later than 4 weeks before the expected week of confinement of the mother or the adoption placement.
  • Paternity leave is given in a single block of 2 weeks. This is to enable the parent to provide or assist in caring for the child and to support the other parent.
  • Only one parent is entitled to paternity leave in relation to the birth or adoption of a child even where there is a multiple birth or adoption of 2 or more children at the same time.
  • If an employer has reasonable grounds for believing an employee on paternity leave is not using the paternity leave for caring or support for the child, the employer may terminate the leave. The employer can serve a notice containing the grounds for termination of leave requiring the employee to return to work.
  • Records of paternity leave dates must be kept for a period of 8 years or an employer, risks being found guilty of an offence, and a fine of up to €4,000.
  • While on paternity leave the employee is protected from unfair dismissal, penalisation, including selection for redundancy, unfavourable changes in terms or conditions or employment as a result of paternity leave. The employee can make a complaint to the Workplace Relations Commission of a breach of the Act.
  • Employees or self-employed contractors are entitled to paternity benefit where the Claimant has qualifying contributions.
  • Employers should update their Contracts of Employment and Employee Handbooks to incorporate this change.

     

    This is a summary of recent changes and specific legal advice should be obtained. If you have any comments or queries, please contact Davnet@amoryssolicitors.com

,

Recruitment and Vetting of Candidates by Employers

The National Vetting Bureau (Children and Vulnerable Persons) Act 2012-2016 requires that all employees employed whether on a temporary, or agency contract, as an intern or on a voluntary basis who provide services to children under 18 or to a “Vulnerable Person” must be vetted by the National Vetting Bureau (formerly Garda Vetting Bureau). This came into force on 29 April 2016. A “Vulnerable Person” is an adult with a mental illness, dementia or intellectual disability or is a person who is suffering from a physical disability to such a degree which restricts the capacity of the person to guard themselves against another person and requires assistance with daily living activities, washing, walking, and eating. This includes hospital and elderly patients.

All persons and organisations providing services to children or Vulnerable Persons must be registered with the National Vetting Bureau. Where the person or organisation was registered with the Garda Vetting Bureau prior to 29 April 2016, this registration transfers over. Existing employees of organisations or persons registered with the National Vetting Bureau prior to 29 April 2016 do not require to be vetted, however, all new employees of organisations or persons from 29 April 2016 onwards must be vetted prior to providing any services to children or Vulnerable Persons. Failure to do so is an offence. The new e-vetting process is completed in a number of weeks.

The candidate who has applied to be vetted should be notified that information regarding  criminal records or a finding or allegation of harm to another person from the Garda Siochana or a regulatory organisation which reasonably gives rise to a bona fide concern that the person may harm, cause a child or Vulnerable Person to be harmed or put at risk may be disclosed to a prospective employer. Where an individual has one conviction only, which was over 7 years previously, and was minor, this will not be disclosed to allow the individual to move on. The candidate can make a submission in response to the National Vetting Bureau’s notification.

In considering whether to disclose the information received about a candidate, the Chief Bureau Officer will not disclose this unless he has a bona fide concern that the individual may harm or incite another person to harm a child or Vulnerable Person, the disclosure is necessary, proportionate and reasonable, takes into account the submission made by the candidate, and fair procedures in making a disclosure to a potential employer. Where this information is disclosed to an employer, the employer must consider carefully the suitability of the candidate and fitness for the role in light of the disclosure of a criminal record or finding or allegation of harm to another person. This will require detailed consideration of the type of role being offered, and the nature and extent of access to children or Vulnerable Persons by the candidate.

Under the regulatory regime in the UK which vets candidates who work with children and Vulnerable Persons, a decision is made by an assessing officer regarding what information should be disclosed to a potential employer. In a recent case, the assessing officer decided  the fact that a candidate had been acquitted of the rape of a 17 year old should be released to a potential employer. The individual who was accused of rape is a taxi driver and former teacher. This individual challenged the lawfulness of this disclosure as a breach of his human rights under Articles 6 and Article 8 of the European Convention on Human Rights. Article 6 gives the presumption of innocence to individuals and Article 8 the right to privacy of individuals. The decision of the assessing officer to disclose this acquittal was upheld by the UK Court of Appeal as reasonable, proportionate, and necessary in the circumstances. The incident was an isolated incident but a very serious one. The officer believed that a correct balance was struck in disclosing the acquittal in order to protect children and Vulnerable Persons and reconciling the rights of the individual who was acquitted. Even though this impacts on the candidate as he may not get employment in a chosen profession, it does not prevent him from gaining employment in another profession to support his family.

 

If you have any comments on this article or would like any further information, please contact Davnet O’ Driscoll at Davnet@amoryssolicitors.com

,

Award to Employee for Personal Injuries Suffered as a result of Bullying and Harassment overturned by the Court of Appeal

A Special Needs Assistant was awarded a record sum of €255,276 for personal injuries due to bullying and harassment by the Principal of St. Anne’s National School by the High Court. This decision was overturned by the Court of Appeal [2015 IECA287].

The Special Needs Assistant, Ms. Ruffley had worked in the school for a number of years. She claimed she was being bullied by the Principal due to the way in which a disciplinary process was carried out, and resulting in a severe disciplinary sanction. An incident had occurred when Ms. Ruffley was looking after a special needs child and was accused of locking the sensory room they were in. This was against the rules of the school and is a breach of the child protection policy. However, Ms. Ruffley provided evidence this was a common practice by some of the Special Needs Assistants in the school as some of the pupils had a tendency to run out of the room. There was then an incident where Ms. Ruffley reported a pupil could perform a certain task which was found to be incorrect. The school accused the Special Needs Assistant of “falsifying” this information. No proper investigation was conducted by the Board of Management of the school into the complaints and ultimately the Board of Management imposed a severe disciplinary sanction of a final written warning for 18 months on Ms Ruffley.

The Court of Appeal accepted that the investigation and disciplinary process was botched by the school.

The Court of Appeal applied the definition of workplace bullying in the Industrial Relations Act 1990 (Code of Practice) order 2002 SI 17/2002 to the claim:

“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/ or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, it is not considered to be bullying”.

Using the definition of workplace bullying, the Court of Appeal found the personal injury of the Special Needs Assistant was caused by her workplace treatment but the incidents involved of a botched investigation and disciplinary process by the school did not amount to an affront to the dignity of Ms. Ruffley. This ruling gives reassurance to employers that they are entitled to pursue investigations and disciplinary processes against employees as long as this does not amount to an affront to the employees Dignity at Work and follows other Court rulings. There are other options for employees in this situation. Advice should be taken at an early stage regarding any investigation and disciplinary process involving an employee in particular if there is serious misconduct. This is to ensure that a proper investigation, disciplinary process and fair procedures are carried out. The sanction given must be reasonable and not excessive.

 

If you have any comments on the above or would like any further information please contact Davnet O’Driscoll at Davnet@amoryssolicitors.com tel 01-213 59 40

Do you need legal advice regarding your redundancy rights?

Amorys Solicitors offers quick and efficient advice to those anticipating redundancy or who have been offered a severance package by their current employer.
Does a genuine redundancy situation exist?  Have your redundancy payments been properly calculated to include all your contractual rights? Call us to explore your options