COVID-19 and Data Protection Rights

Data Protection Rights and the Pandemic COVID-19

It was recently reported that the HSE had disclosed to an employer that one of their employees had tested positive for Covid-19 prior to informing the employee of their own test results. The HSE explained in a statement that in “exceptional circumstances”, “if it is considered essential for the public health good”, they would inform an employer of a Covid-19 positive test result prior to informing the employee. The HSE has since requested guidance from the Data Protection Commissioner (DPC) and has suspended the practice in the interim. Nonetheless, the issue has provoked serious concerns regarding the protection of employees’ sensitive medical data and whether there are any “exceptional circumstances” wherein the data protection rights of data subjects can be overridden in such a way.

Guidance from the Data Protection Commissioner (DPC)

Mass Covid-19 screening has been taking place across a number of sectors including meat processing plants and nursing homes, and which involves the processing of large amounts of personal data including employee names, addresses and dates of birth and sensitive ‘special category’ medical data over a relatively short period of time and with a high degree of urgency.

The Data Protection Commissioner has issued advice regarding data protection law and the measures being taken by governments, employers in the public and private sector and voluntary bodies in the wake of the pandemic. Firstly, any protection measures implemented as a result of the pandemic that involves the processing of personal data need to be proportionate and necessary. The pandemic does not give organisations the authority to circumvent data protection standards and the applicable law.

  • If an organisation is acting on the advice or direction of public health authorities or other authorities, the processing of personal data and data relating to health is permitted under the GDPR and the Data Protection Act 2018, provided the relevant safeguards are in place to include the deletion of the data under strict time limits, limitations on who can access the data and ensuring that staff are adequately trained regarding the protection of the data rights of individuals.
  • Under the Safety Health and Welfare at Work Act 2005, employers are legally obliged to protect their employees. Personal health data can be processed if it decided it is necessary to do so and it is proportionate under the 2005 Act and the GDPR.  The data should be processed in a confidential manner meaning that if there is an employee who has tested positive for Covid-19, staff should be advised without identifying the particular employee.
  • Organisations must be transparent regarding how they process personal data and sensitive ‘special category’ personal data, why they are collecting this data and how long the data will be retained in plain and clear language.
  • Confidentiality must be maintained and the necessary safeguards put in place to ensure the security of the data. There must be a very strong justification for identifying any individual affected by Covid-19 to a third party or colleagues.
  • Only the minimum amount of data required to implement the objective of preventing or containing the spread of Covid-19 must be gathered and any decision-making process of an organisation regarding their response to the pandemic which involves the processing of personal data should be retained by the data processor.

While the pandemic has rapidly changed the way organisations are functioning, the fundamentals of data protection remain intact.  Organisations must exercise caution when processing personal data and in particular when the data is health-related.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “COVID-19 and Data Protection Rights”, please contact Daragh Burke, Amorys Solicitors daragh@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

Redundancy and the Impact of Severance Agreements

REDUNDANCY AND SEVERANCE AGREEMENTS

Unfortunately, as a result of the COVID-19 pandemic, many employees are being faced with the prospect of redundancy. However, regardless of the economic climate, employers are required to ensure that redundancy is both fair and valid. The purpose of this article is to provide guidance on what is required in order for a redundancy to be fair and valid and to provide insight into the effect of entering into a Severance Agreement in a redundancy situation.

REASONS FOR REDUNDANCY

In order for a redundancy to be valid, the dismissal must arise for one of the following reasons:-

  1. Where an employer has/intends to cease carrying on its business, or at that location i.e. where the business moves to another location.
  2. Where the requirements for an employee to carry out work of a particular kind in the place where he/she was employed has/is expected to cease or diminish i.e. there is no longer a requirement for that role to be carried out.
  3. Where the employer has decided to carry on the business with fewer or no employees i.e. a reorganisation with fewer staff.
  4. Where an employer has decided that the work for which the employee has been employed should from now on be done in a different manner for which the employee is not sufficiently qualified or trained i.e. a reorganisation where the employee is not sufficiently trained and training would not be a viable option.
  5. Where it is decided that the role for which the employee has been employed should from now on be carried out by a person who is also capable of doing other duties for which the employee is not sufficiently qualified or trained, i.e. job enlargement where training would not be a viable option.

THE SELECTION PROCESS

 An important factor in the redundancy process is the selection criteria. While there is no set selection method outlined in legislation, the two main methods adopted are:

  1. Last in first out (LIFO).
  2. Selection process – for example, an interview or selection matrix where employees are scored against a list of pre-agreed criteria, levels of key skills held by employees as well as other work-related matters such as length of service, disciplinary record, punctuality and absenteeism where relevant.

THE CONSULTATION PROCESS

The redundancy process, in general, should be carried out over at least a two-week period (when it’s not a collective redundancy). Employees who are impacted must be informed that they are ‘at risk’ of being made redundant.

Employees must be informed of:-

  1. The proposed redundancy;
  2. The procedures which will be followed;
  3. The selection criteria that will be used;
  4. Possible alternative positions within the company.

Employees should be issued with an ‘at risk letter’ following the initial meeting. Employers should also continue to consult with employees throughout the consultation process. Where no alternative to redundancy can be found, a final meeting should be held with employees to inform them whether or not they are being made redundant and what redundancy payment they will be paid, if they are entitled to one. Employers are then required to issue the relevant employees with their formal Notice of Redundancy.

STATUTORY ENTITLEMENTS ON REDUNDANCY

The statutory redundancy payment is a lump-sum payment based on the pay of the employee. All qualifying employees with 2 years-service or more are entitled to:

  • Two weeks’ pay for every year of service over the age of 16; and
  • One further week’s pay.

The amount of statutory redundancy is subject to a maximum earnings limit of €600 per week. It is also common place for employers to offer ex-gratia payments on top of the statutory payment, however, there is no obligation on an employer to do so. Open Statutory redundancy entitlements calculator.

SEVERANCE AGREEMENTS

It is not uncommon for employers to request employees to execute a Severance Agreement in exchange for an ex gratia payment. Generally speaking, a Severance Agreement will prescribe the entire terms of the termination of the employment. A Severance Agreement can be a very useful tool for an employee. It can have the effect of securing a contractual commitment from an employee that he/she will not bring any form of claim against the employer in the future in exchange for a payment (the ex gratia payment). From the employee’s point of view, it is crucially important that independent legal advice on the effect and implication of the Severance Agreement is obtained. The agreement will contain a full waiver in favour of the employer preventing the employee from taking any case whatsoever against the employer.

Here at Amorys we regularly provide both employers and employees with advice in relation to redundancy and Severance Agreements. If you need any information in relation to redundancies or have been provided with a Severance Agreement, Amorys can assist you. Given the current social distancing guidance in place, Amorys are providing online consultations in order to negate the need to attend at our office.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Redundancy and the Impact of Severance Agreements”, please contact Brian Kirwan, partner, Amorys Solicitors brian@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

How Employers can Respond During the COVID-19 Pandemic

For Employers – How to respond during the COVID-19 pandemic

As much as possible during this unprecedented time, employers need to be responsive to the many changes that have been introduced to help keep businesses going. In terms of Human Resources, it is ‘business as usual’ with emergency procedures such as the Temporary Wage Subsidy Scheme introduced to help keep as many employees on the payroll as possible. Employees in receipt of the Temporary Wage Subsidy Scheme can work full-time hours.

If your employees are working remotely, it is important that employers keep in touch with their employees as much as possible. Remember that this is a difficult and stressful time for many of your employees so try to maintain relationships in a positive way as the organisation will need them when usual business resumes.

The following are some issues which may arise for employers during the COVID-19 period:-

  1. PAY REDUCTIONS – If you want to retain your employees on the payroll, employers can reduce pay by a certain percentage however it must apply across the board so that it is not seen as unfair treatment. Employers can also place employees on a shorter working week.
  2. LAY OFFS – If the employer has no other choice but to lay off staff, there needs to be a provision in the employee’s contract of employment to allow for temporary lay-off. Otherwise, the employer can look to negotiate with each employee to come to a suitable arrangement which then needs to be put in writing.
  3. THE REDUNDANCY PROCESS – New provisions have been put in place where an employee cannot ask for a redundancy during this time. Employers can still instigate redundancy during this time. The full process of redundancy including giving the employee other options should be adhered to. Please see our article on the Emergency Measures in the Public Interest Act 2020 for further details.
  4. EMERGENCY STAFF – it is vital that employers comply with all of the HSE guidelines regarding the wearing of PPE, hand sanitiser use, disposable glove use etc. by their employees. It is important to be reasonable when asking an employee to come to their place of work. The employee may have personal health concerns, childcare obligations or they may be a carer for a family member. If an employee is refusing to come to work and all of the HSE guidelines are being followed by the employer, it is advisable to firstly talk to the employee and find out the reason that they will not come to work. It is possible to implement a disciplinary process for an employee that refuses to come to work however employers should use their discretion and be seen to be acting reasonably in the circumstances.
  5. CURRENT INVESTIGATIONS & DISCIPLINARY ISSUES – the usual procedures continue to apply during this period. The employee continues to have the right to be represented and the process can be continued via Zoom or some other suitable video conference application provided the employee consents.  If consent is not forthcoming the process can be suspended until things return to normal and the employee is back in the workplace.
  6. HOLIDAYS – holidays still accrue for employees in receipt of the Temporary Wage Subsidy Scheme and employees are entitled to paid holidays.
  7. IF THERE IS AN OUTBREAK OF COVID-19 IN THE WORKPLACE – There are certain obligations that an employer must adhere to when there has been an outbreak of COVID-19 in the workplace. Ensure that the infected employee stays at home and self-isolates and advise them to immediately contact their GP if they haven’t done so already. Inform employees that there has been an outbreak in a clear and calm fashion. Let them know that if they develop symptoms that they should contact their doctor immediately and follow their advice.
  8. NEW EMPLOYEES – What if a new employee is due to start a job in your organisation during the COVID-19 pandemic. Firstly, contact the employee and explain the situation. Ask the employee to postpone the start date and if the employee agrees send a letter or an email to confirm this. If the employee does not want to postpone the start date, the employee will have to start work and may be laid off.  It is, of course, vital to ensure that the contract of employment has a lay-off provision. This may be a good time to review your employee contracts and staff handbook!
  9. GDPR OBLIGATIONS – obligations in relation to GDPR are not suspended during the COVID-19 period and organisations are expected to comply in the usual way with GDPR requests.  There are three important criteria to adhere to during this time.  Firstly, communicate with the employee regarding their request.  Secondly, provide contact information on who is dealing with the matter. Thirdly, be sure to document all communication on the issue.  Both employers and employees need to be both reasonable and realistic during this time and an employer could request an extension of time to comply with the request in light of the current COVID-19 restrictions.
  10. PERFORMANCE REVIEWS – If at all possible, try to keep the normal HR processes in place for your employees. Performance reviews could be completed remotely and also provide an opportunity for the organisation to touch base with their employees.
Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “How Employers can Respond During the COVID-19 Pandemic”, please contact Daragh Burke, Amorys Solicitors daragh@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

The Emergency Measures in the Public Interest (COVID-19) Act 2020

The Emergency Measures in the Public Interest (COVID-19) Act 2020

In response to the COVID -19 epidemic, the houses of the Oireachtas have enacted the Emergency Measures in the Public Interest (COVID -19) Act 2020, (“the Act”).

For the purpose of this article, we will focus on the measures introduced in order to help employers navigate their way through the emergency. The measures introduced are aimed at minimising job losses and the overall impact of the virus on the economy.

Part 7 of the Act

Part 7 of the Act provides for a “temporary wage subsidy” provision for employees who were on the payroll in the business of an employer as of the 29th of February 2020. The temporary wage subsidy provides for a subsidy in wages at the rates set out below for a period of 12 weeks.

In order to be able to avail of this subsidy, the business or employer of an employee must make a declaration to the Revenue Commissioners confirming that by reason of the COVID-19 epidemic, there is at least a 25% reduction in either the employer’s turnover or orders being received by the employer which prevents the employer maintaining normal wages and that regardless, the employer intends to continue to employ the employee.

Subject to compliance by the employer of all provisions within the Act, the following provisions shall apply:-

  1. Where an employee’s weekly pay is less than or equal to €586.00, 70% of the employees take home pay to a maximum of €410.00 will be paid;
  2. Where the employee’s weekly pay is greater than €586.00 and equal to or less than €960.00 a maximum of €350.00 will be paid;
  3. No subsidy is payable in respect of employees whose average net weekly pay exceeds €960.00.

In order to apply for the scheme, employers are required to submit an application via ROS.

Revenue has clarified in recently issued guidance notes on the subject (reply to FAQ 3.11. on page 10) that whilst the subsidy is not subject to PAYE, it will be taxable on the employee at a year-end review.  If the tax assessed as owing by the employee in 2020 is more than his/her unused tax credits at the end of that year, Revenue has clarified that the outstanding tax will be clawed back by reduction of personal tax credits.

It is worth noting that the Revenue requires (see reply to FAQ 4.12. of the guidance notes) an employer to reimburse an employee for any overpayment of PAYE or USC deducted from an employee to date by operation of the Temporary Subsidy Scheme. Whilst Revenue has stated in its guidance notes that it will then reimburse the employer by the amount paid in this regard, the relevant legislation classifies this payment differently to the refund of the subsidy and they may both be paid on different dates (ie one later than the other). In light of this unknown, we would advise consulting your auditor or financial adviser before engaging in the scheme. Further Revenue guidance notes on the reimbursement arrangements are expected to issue on the Revenue website soon.

Revenue has also clarified in further guidance notes that the declaration required to support an employer’s application is not a declaration of insolvency.

Part 8 of the Act

Part 8 of the Act has altered an employee’s right to call on an employer to make them redundant during the emergency period in circumstances where they have been placed on short term lay off or have been laid off as a result of the COVID-19 pandemic. The “emergency period” runs from the 13th of March 2020 to the 31st of May 2020. This period of course may be extended at a later date if deemed necessary.

The practical benefit to an employer of this restriction is that they do not have to retain funds for the purpose of making statutory redundancy payments throughout the emergency period. Ordinarily, an employee would be entitled to call on their employer to make them redundant in circumstances where they have been laid off for 4 weeks or more or where they have been put on the short term for at least 6 weeks in the last 13 weeks.

Clearly the foregoing measures have been introduced as a means of trying to preserve employment throughout the pandemic. The measures provide employers with some comfort in that they cannot be called on to make redundancy payments throughout the emergency period, whilst also with the assistance of the State, employers may be able to maintain payment to their employees.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “The Emergency Measures in the Public Interest (COVID-19) Act 2020”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com or Brian Kirwan, partner, Amorys Solicitors brian@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

COVID-19 Pandemic – Information For Employers

The aim of the government during this pandemic is to help employers keep as many of their staff on their payroll as possible. A number of schemes have been put in place over the last two weeks to help employers deal with the unprecedented economic fallout from the spread of Covid-19.

  1. Temporary Covid-19 Wage Subsidy Scheme – employers must show that at least 25% of their trade has been lost and they will then be able to claim 70% of their employee’s net wage back (up to a maximum of €410) through the scheme. The scheme is operated by Revenue and employers are expected to make their best efforts to maintain as close to 100% of normal income during the operation of the scheme.   Employers are also encouraged by the government, where possible, to top up their employee’s wages to maintain them at their current level of earnings.
  2. Short Time Work Support Scheme – if an employer needs to place their staff on a shorter working week or where they have had to cut their hours due to the pandemic, the employees can apply for this scheme.   Short Time Work Support is a form of Jobseeker’s Benefit and is a payment made in respect of the employee’s regular salary for the days they are no longer working. Employees must be working three days per week or less and also must have the required number of PRSI contributions in order to qualify.
  3. Recruitment Supports – if you are an employer looking to recruit staff in the following sectors:-
  • Medical/pharma
  • Healthcare
  • Retail/general operatives
  • Agri-food
  • Logistics/driving

the Employer Relations National Team is actively helping employers to recruit in these sectors during the pandemic.   The Employer Engagement Contact List has details of all of the local employer relations divisions.

There are a range of supports available for your employees during the pandemic:-

  1. Employees who must self-isolate – For employees who are not diagnosed with Covid-19, but are required to self-isolate they can apply for illness benefit for Covid-19 absences. The payment will be made for a maximum of two weeks and the employee must remain confined in self-isolation in their home or a medical facility. In the unfortunate event that they are diagnosed with Covid-19, they will be entitled to the payment for up to ten weeks.
  2. Supplementary Welfare Allowance – if the employee is in receipt of the enhanced illness benefit for Covid-19 absence and the employer does not pay sick leave beyond the level paid by the State and the employee finds themselves in financial difficulty, they can apply for additional emergency income support. The supplementary welfare allowance is means tested.
  3. Workers who are requested to stay at home by their employer, but are unable to work from home, can apply for the pandemic unemployment payment of €350 per week.
  4. Caring for a person with Covid-19 – if your employee is required to take time off work to care for a person who has contracted Covid-19, they are entitled to apply for the Illness benefit for Covid-19 absences.
  5. Force Majeure Leave – employees are entitled to force majeure leave to provide urgent care to an immediate family relative (child, spouse, sibling, parent or grandparent). They are entitled to 3 days of force majeure leave within a 12 month period, or 5 days within a 36 month period. Given the extraordinary circumstances of the Covid-19 pandemic, employers are being encouraged to facilitate employees as much as possible by allowing them to take the full 5 days of leave within one block.
  6. Parental Leave – parents are entitled to take up to 22 weeks unpaid leave to care for each child up to 12 years of age, 16 years of age for a child with a disability, with 6 weeks’ notice required however employers have the discretion to waive the notice periods. Parents can also take two weeks of leave for each child under the age of 1 year born on or after the 1st of November 2019 and are entitled to receive Parent’s Benefit for the two weeks.

There is due to be an amendment made to the Redundancy Payment Act 1967 under the Emergency Measures in the Public Interest (Covid-19) Bill 2020 such that Section 12 of the Act will not have effect during the ‘emergency period’ between the 13th March 2020 and the 31st May 2020. The amendment will ensure that employees who have been laid-off or put on short time will not be able to seek redundancy payments during the ‘emergency period’ to avoid a situation where employers find themselves unable to pay redundancy claims where cash-flow may be severely restricted as a result of the pandemic. The amendment ensures that Section 12 ‘shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19’.

Watch this space for further updates once the Bill has passed.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Covid-19 Pandemic – Information For Employers”, please contact Daragh Burke, Amorys Solicitors daragh@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

COVID-19 Pandemic – Information For Employees

The Covid-19 pandemic has led to unprecedented economic disruption in Ireland with 350,000 people expected to lose their jobs in the coming weeks and months.   The Department of Social Welfare has received the equivalent of 10 months’ worth of social welfare applications over the last ten days. The government has moved quickly to implement specific supports for employees whose jobs are affected by the pandemic.

 

  1. The COVID-19 Pandemic Unemployment Payment – is a weekly payment of €350 and is available to employees and the self-employed who have lost their job on (or after) March 13 due to the pandemic.   Details of the Covid-19 Pandemic Unemployment Payment can be found on the Gov.ie website.  You can apply online for the payment on the mywelfare.ie website. To be eligible for the payment you must:-
    • Be aged between 18-66 years old
    • Live in the Republic of Ireland
    • Have lost your job, been temporarily laid off, asked to stay at home and you are no longer receiving payment from your employer due to the Covid 19 pandemic
    • be self-employed and have ceased trading due to the pandemic
  1. Short Time Work Support – If you have been temporarily placed on a shorted working week, you may qualify for the Short Time Work Support. Short Time Work Support is a form of Jobseeker’s Benefit and is a payment made in respect of the employee’s regular salary for the days they are no longer working. Employees must be working three days per week or less and also must have the required number of PRSI contributions in order to qualify.
  2. Self-isolation – For employees who are not diagnosed with Covid-19, but are required to self-isolate you can apply for illness benefit for Covid-19 absences. The payment will be made for a maximum of two weeks and you must remain confined in self-isolation in your home or a medical facility. In the unfortunate event that you are diagnosed with Covid-19, you will be entitled to the payment for up to ten weeks.
  3. Supplementary Welfare Allowance – if you are in receipt of the enhanced illness benefit for Covid-19 absence and your employer does not pay sick leave beyond the level paid by the State and you find yourself in financial difficulty, you can apply for additional emergency income support. The supplementary welfare allowance is means tested.
  4. Workers who are requested to stay at home by their employer, but are unable to work from home, can apply for the pandemic unemployment payment of €350 per week.
  5. Caring for a person with Covid-19 – if you are required to take time off work to care for a person who has contracted Covid-19, you are entitled to apply for the Illness benefit for Covid-19 absences.
  6. Force Majeure Leave – employees are entitled to force majeure leave to provide urgent care to an immediate family relative (child, spouse, sibling, parent or grandparent). You are entitled to 3 days of force majeure leave within a 12 month period, or 5 days within a 36 month period. Given the extraordinary circumstances of the Covid-19 pandemic, employers should be trying where possible to facilitate employees by allowing them to take the full 5 days of leave within one block.
  7. Parental Leave – parents are entitled to take up to 22 weeks unpaid leave to care for each child up to 12 years of age, 16 years of age for a child with a disability, with 6 weeks’ notice required however employers have the discretion to waive the notice periods. Parents can also take two weeks of leave for each child under the age of 1 year born on or after the 1st of November 2019 and are entitled to receive Parent’s Benefit for the two weeks.
Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Covid-19 Pandemic – Information For Employees”, please contact Daragh Burke, Amorys Solicitors daragh@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

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