Whistleblowing Updates
Whistleblowing legislation has been in place in Ireland since 2014 as a result of the Protected Disclosures Act 2014 (the "PD Act"), a major development at the time, which introduced significant legal protection for employee whistleblowers and consequently new and serious obligations for employers. As a result of the EU Whistleblowing Directive, the 2014 Act has been significantly updated and enhanced through amending legislation which became effective on 1 January 2023.
What impact did the updated whistleblowing legislation have in Ireland?
While many of the elements required by the Directive were already covered under Irish law, the Irish Government introduced the Protected Disclosures (Amendment) Act 2022, which amends the existing 2014 PD Act.
The updated legislation includes a number of key enhancements to existing whistleblowing protections and measures, such as:
• Widening the scope of individuals who are afforded protection beyond employees to include volunteers, interns, job applicants, suppliers, shareholders and non-executive directors
• Expanding the ambit of "relevant wrongdoings" for the purposes of whistleblowing by encompassing breaches of EU law in various prescribed areas including public procurement, financial services, product safety, transport safety, food safety, animal welfare, public health, consumer protection, privacy and protection of personal data. – it excludes interpersonal conflicts which concerns the worker exclusively
• Considerably extending the definition of "penalisation" to include acts such as failing to convert fixed-term contracts, negative performance assessments and psychiatric or medical referrals
• Extending the existing injunction style interim relief potentially available in dismissal cases to make it potentially available in other penalisation situations
• Reversing the traditional burden of proof. Where a worker alleges penalisation, the new legislation shifts the burden to the employer to prove that the employer' actions were based on justified grounds and not because the worker made a protected disclosure
• Requiring that certain private sector employers must have whistleblowing procedures and internal channels on the following basis:
o Private entities with more than 250 employees – from 1 January 2023
o Private entities with between 50 - 249 employees – from 17 December 2023.
o All public sector organisations are already required to have a formal whistleblowing policy in place under the existing legislation
• Imposing strict timeframes on employers for acknowledging, following up and providing feedback to whistleblowers
• Establishing a Protected Disclosures Commissioner
Are employers required to process anonymous disclosures?
Employers are not obliged to accept or follow-up on anonymous reports. However, an anonymous whistleblower is still entitled to protections if their identity subsequently emerges.
What other things should employers in Ireland be thinking about?
The new legislation signals a significant change in approach to whistleblowing in Ireland.
Many employers should have reviewed existing policies or prepared new procedures. Training and awareness, especially for management, is also key.
By ensuring that effective internal whistleblowing channels and procedures are in place, organisations will have an opportunity to become aware of concerns at the earliest stages, helping to avoid or limit financial and reputational risks.
The Work Life Balance and Miscellaneous Provisions Bill
The Work Life Balance and Miscellaneous Provisions Bill 2022 (“the Bill”) aims to increase the participation of women in the workplace and the take-up of family-related leave and flexible working arrangements by all. The Directive aims to encourage a more equal sharing of family related leave between men and women.
Right to request flexible working
The General Scheme proposes the introduction of a right for employees with children up to the age of 12 (or 16 if the child has a disability or long-term illness), and employees with caring responsibilities, to request flexible working arrangements for a set period of time for caring purposes. The General Scheme goes further than the EU Work-life Balance Directive (the Directive) and will apply to children up to 12 years old (or 16 as outlined above). The EU Directive provides this right for parents with children up to 8 years old.
Under the current draft, the employee requesting flexible working arrangements needs to have six months’ service with the employer before they can make a request and must make the request at least six weeks before the arrangement is intended to start. Employers must consider the request and will have four weeks to respond. They can either grant, postpone or refuse the flexible working arrangement and will be required to provide reasons for any refusal or postponement. In certain cases, the time period to respond can be extended by a further eight weeks.
Requests can be postponed for six months where an employer is satisfied that the commencement of the arrangement would have a substantial adverse effect on the operation of the business because of:
- seasonal variations in the volume of work
- the unavailability of someone to carry out the employee’s duties
- the nature of their duties
- the number of other employees availing of flexible working arrangements
- any other relevant matter
Flexible working arrangements will need to be documented in an agreement.
At the end of the flexible working arrangement, the employee is entitled to return to their original working arrangements, hours or patterns (employees are also entitled to request an early return to their original working arrangements).
Leave for medical care purposes
The General Scheme proposes the introduction of five days’ unpaid leave, per year, per employee, where, for serious medical reasons, the employee is required to provide personal care or support to family members or loved ones such as a child, spouse, cohabitant, parent and sibling. This leave cannot be taken in periods of less than one day and the employer may request evidence of the employee’s relationship with the person needing medical care, the nature of the medical care required and medical certification of the serious medical issue. This right is in addition to existing entitlements under the Carer’s Leave Act 2001 and force majeure leave.
Extension of the period during which time can be taken out from work to breastfeed
The General Scheme proposes an extension of the period from 26 weeks to 104 weeks following the birth of a child during which employees have an entitlement to paid time off from work or a reduction of working hours for breastfeeding purposes.
The Work Life Balance and Miscellaneous Provisions Bill was signed into law on the 4th April 2023. More information on the Bill can be found here.
Updates to Probationary Periods
The European Union (Transparent and Predictable Working Conditions) Regulations 2022 came into force in Ireland on 16 December 2022.
These regulations introduce significant changes to the law on contracts of employment and working conditions for employees, but the new rules in relation to probationary periods in contracts of employment are of particular importance.
New Rules on Probationary Periods
In the private sector, the probationary periods of employees should not exceed 6 months. ‘In the interest of the employee’, the maximum duration for a public servant's probationary period is now 12 months. There is no further guidance on what is envisioned as being in the interest of the employee.
An employee may avail of certain categories of protected leave during the probationary period (maternity, adoptive, carer’s, paternity, parental, parent’s or sick leave). If this arises, the probationary period shall be extended by the employer for the duration of the employee’s absence.
These Regulations also amend the Protection of Employees (Fixed-Term Work) Act 2003 to require that probationary periods in fixed-term contracts be proportionate to their duration and nature. There must be no probationary period for contracts that are renewed or extended (for the same work).
If an employee was subject to a probationary period which exceeded 6 months on the date the Regulations came into force (16 December 2022), and if at least 6 months of probation has been completed by the employee, then the probationary period shall expire on the earlier of:
(i) the date the probationary period was due to expire
(ii) 01 February 2023.
We therefore recommend that employers review their current contracts of employment to check if any employees have contracts with probationary periods for longer than 6 months. This includes circumstances where any initial probationary period has been extended, as these periods should have expired on 1 February 2023 or earlier.
Probationary periods are a very useful tool for both employers and employees to trial the working relationship and ensure that the parties are a good fit and work well together. A well drafted contract will normally provide for a short notice period during the probationary period (customarily one week).
Employees will not usually have the benefit of the Unfair Dismissals Acts until they have achieved 12 months’ continuous service. Termination of an employee during the probationary period, and in accordance with the contract, can be a lower risk and efficient way to terminate an underperforming employee.
A probationary period does not, however, give an employer automatic authority to terminate employees and if allegations of misconduct, protected disclosures or discrimination, etc., occur legal advice should be sought.
Domestic Leave Updates
The Government has now approved the publication of the Work Life Balance and Miscellaneous Provisions Bill 2022, which will introduce five days of paid leave for those suffering from, or at risk of, domestic violence.
When enacted, this legislation will support workers to remain employed and maintain financial independence, allowing them space to seek the necessary support. This is the first statutory employment benefit when it comes to domestic violence, and its introduction will significantly impact employees suffering from, or at risk of, domestic violence.
Who can avail of the leave?
Any employee who has a contract of employment can avail of the leave. This includes part-time employees and fixed-term employees. There is no minimum service requirement for employees to avail of this leave. The Bill provides that employees are entitled to paid domestic violence leave from their employer where the employee or a "relevant person" has experienced in the past, or is currently experiencing, domestic violence.
What does "relevant person" mean?
A relevant person is defined in the Bill as:
- the spouse or civil partner of the employee;
- the cohabitant of the employee;
- a person with whom the employee is in an intimate relationship;
- a child of the employee who has not attained full age; or
- a person who, in relation to the employee, is a dependent person.
How does the Bill define domestic violence?
Domestic violence is defined as violence or the threat of violence, including sexual violence and acts of coercive control that has been committed against an employee or a "relevant person" by any of the following:
- the spouse or civil partner of the employee or relevant person;
- the cohabitant of the employee or relevant person;
- someone who is, or was, in an intimate relationship with the employee or relevant person; or
- child of the employee or relevant person who is of full age and is not, in relation to the employee or relevant person, a dependent.
What is the purpose of the leave?
The purpose of domestic violence leave is to enable victims of domestic violence to seek medical help, obtain counselling, relocate, seek advice or assistance, or obtain a safety order from the courts. As the leave also extends to relevant persons, employees may avail of the leave to assist the relevant person in any of these ways.
How many days leave are employees entitled to under the Bill?
Employees will be entitled to five days paid domestic violence leave in any period of 12 consecutive months.
What will the prescribed rate of pay be for employees availing of the leave?
The Bill provides that the Minister for Children, Equality, Disability, Integration and Youth may make regulations to prescribe the daily rate of domestic violence leave pay, which may be capped at a maximum daily amount.
Will employees be required to show proof of domestic violence?
No, employees will not be required to produce proof of domestic violence to avail of the leave.
Currently is status of this Bill is in Stage Four in the Seaned. The Bill, as initiated, is available here.
Once further updates have been given will we also provide further updated guidance.
Signing of the Transparent and Predictable Work Conditions Regulations 2022
On 16 December 2022, the government signed into law the European Union (Transparent and Predictable Working Conditions) Regulations 2022 to fulfill Ireland's obligations under EU Directive 2019/1152 on transparent and predictable working conditions.Employers should be aware of the changes resulting from this legislation. In addition to creating new employee rights, the Regulations amend employers' obligations under the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997, and the Protection of Employees (Fixed-Term Work) Act 2003.
With limited exceptions, the Regulations apply to all employees in Ireland, except for those with less than four consecutive weeks' service or working fewer than three hours per week.
Employers must now provide general written terms of employment to their employees one month after they begin employment. The information employers must provide within 5 days of the start of employment and within one month has also been changed.
The written statement of employment must be:
- signed and dated by the employer,
- in writing, and
- It may be transmitted on paper or electronically, provided the employee has access to it, the employee can store and print it, and the employer retains proof of its transmission or receipt.
If an employee's terms are changed, the employer must notify the employee in writing as soon as the change takes effect.
Probationary Periods
There have been significant changes to probationary periods. It is no longer possible to extend probationary periods beyond 6 months except in exceptional circumstances, and even then not beyond 12 months unless this would be beneficial to the employee. The duration of employee absence can be taken into consideration when extending a probationary period. In the event that an employee (other than a public servant) is subject to a probationary period exceeding 6 months and has completed at least 6 months service, the probationary period will end on the earlier of:
- the date on which the probationary period was due to expire, or
- 1 February 2023
As a final point, the Regulations also amend the Protection of Employees (Fixed-Term Work) Act 2003 to require that probationary periods in fixed-term contracts be proportionate to their duration and nature. There must be no probationary period for contracts that are renewed or extended (for the same work).
Mandatory Training
If an employer is required by law or by a collective agreement to train an employee, this training must include the following:
- be provided to the employee free of cost,
- count as working time, and
- where possible, take place during working hours.
Parallel Employment & "Incompatibility Restrictions"
The Regulations provide that an employer must not:
- prohibit an employee from taking up employment with another employer, outside the work schedule established with the first employer, or
- subject an employee to adverse treatment for taking up employment with another employer.
An employer may prohibit an employee from taking a job with another employer if the restriction is proportionate and objective. Where an employer imposes an "incompatibility restriction":
- details of the incompatibility restriction (including details of the objective grounds on which the incompatibility restriction is based) must be included in the contract, or
- the employer must provide a statement in writing setting out the incompatibility restriction (including details of the objective grounds on which the incompatibility restriction is based).
According to the Regulations, objective grounds include health and safety, business confidentiality, and avoiding conflicts of interest.
Collective Agreements/REAs
If the employment in question is covered by a collective agreement approved by the Labour Court or a Registered Employment Agreement, then the Regulations are disapplied in respect of probationary periods, the right to seek additional (parallel) employment, and the right to request transfer to a job with more predictable and secure working conditions and training.
Through more transparent and predictable employment, the Directive aims to improve working conditions. Among other things, it expands the information that must be provided to employees upon beginning employment and introduces new provisions such as the right to request transition to another form of employment with more predictable and secure working conditions (Article 12) and the right to mandatory training.
Employment outside the State and Changes for Posted workers
Also included in the Regulations is a new obligation to provide information to posted workers. Employees who are posted workers (under the European Union (Posting of Workers) Regulations 2016) must be given the following additional information:
- Employee's remuneration according to the host country's legal requirements,
- Travel, board, and lodging allowances and reimbursement arrangements specific to postings
- The URL of the single official national website (IMI Regulation, Regulation (EU) No 1024/2012) that is developed by the host Member State.
Additionally, the Regulations require employees working outside the State for a period of not less than one month to receive more information. It is now required of the employer to also tell the employee which country or countries the employee will be working in outside the State.
Right to request transfer to more predictable and secure working conditions
Once in a 12 month period, an employee who has been employed continuously by an employer for at least 6 months and has completed their probationary period (if any) may request a form of employment with more predictable and secure working conditions. Within one month of receiving such a request, an employer must provide a reasoned written response. When the same worker submits a similar request again, and the situation remains the same, employers may provide an oral reply.
Legislation Updates June 2022
This month has been quite busy with legislation updates from the Government, read this blog post to find out the most recent updates from this month.
Gender Pay Gap Reporting
On the 3rd of June the Gender Pay Gap regulations were published. Employers with 250+ employees on the snapshot date (chosen by the employer) will have to report on the 12-month period preceding and including the chosen snapshot date on the mirror date in December 2022. In 2024 this will extend to employers of 150+ and in 2025 it will extend to 50+ employees.
To approach the calculation of their gender pay gap metrics, organisations must do the following:
- Choose the snapshot date in June 2022
- The reporting deadline is 6 months after the snapshot date, in December 2022.
- The reporting period is the 12-month period immediately preceding and including the snapshot date
For example: if the organization chooses Tuesday 25th of June as their snapshot date. Its reporting deadline is 25th December, and the reporting period is 24th June 2021 to 25th June 2022.
Statutory Sick Leave Bill 2022
The Statutory Sick Leave Bill has passed the 2nd stage in the Seanad. It is suppose to be in enacted by September 2022.
Read more here: Preparing for New Sick Pay Rules
Work-Life Balance and Miscellaneous Provisions Bill
The Government has approved the drafting of the Work-Life Balance and Miscellaneous Provisions Bill. The purpose of the Bill is to increase the participation of women in the labor market and the take-up of family-related leave and flexible working arrangements.
Read more here: The EU Work-Life Balance Directive Ireland
Parent's Leave and Benefits Act
Lastly, The Parent’s Leave and Benefit Act 2019, which was introduced on the 1st of November 2019, currently provides for 5 weeks of Parent’s Leave for each parent to allow them time off around the birth or adoption of their child or the child of their spouse or partner. Parent’s leave and benefits will increase from 5 to 7 weeks in July.
Look What's Coming: Statutory Sick Pay for 2022
With 2021 drawing to a close businesses must now look forward as to what is to come in 2022 and one change that is likely yo come in 2022 which will affect all employers is the introduction of a compulsory sick pay scheme.
Unlike many European jurisdictions, Ireland has never had a scheme like this. Currently an Irish employer is not, at the moment, obliged to pay employees while they are sick which is about to change due to the Sick Leave Bill 2021 which was published recently and provides for a comprehensive Statutory Sick Pay scheme (SSP).
The key points for employers to note in relation to this scheme are as follows:
1. While the number of eligible days per year will start at a low level, the Government intends that this will increase to two working weeks by the year 2025.
2. SSP will be capped and an employer will only be obliged to pay up to 70% of wages, subject to a cap of €110/day.
3. The Government will not “top up” the employer’s contribution to 100%.
4. Employees will have to have at least 13 weeks of continuous service in order to be eligible.
5. Employees will be obliged to provide a medical certificate in respect of each day of Statutory Sick Leave.
6. If an employer maintains it cannot afford to discharge its SSP obligations, an exemption can be granted by the Labour Court.
7. If an employer already provides more favourable sick leave benefits to an employee, they will not be obliged to comply with the SSP rules.
So what should employers do now? It would be prudent for employers , especially smaller employers, to start financial planning now in order to ensure that they are ready for when the SSP is introduced. Employers should also review any existing sick pay schemes/ policies to check whether the new rules will affect/ change these.
Related Articles:
- The Budget 2022: What You Need to Know
- The importance of having an Absence/Sick Leave Policy
Key Features: Updates to the Work Safely Protocol
Following on from our post The Phased Return to the Workplace , further guidance has been given into the recent government changes effect on the Work Safely Protocol. The Protocol sets out the minimum public health measures required in every place of work to prevent and reduce the spread of COVID-19.
While employers are still expected to comply with their normal health and safety obligations, employers should note that from 22 October 2021 the requirement to work from home will be removed and the statutory regime in place to protect public health will be wound down. Further guidance is expected in advance of that date. So what are some of these key changes:
From 20 September 2021:
- Businesses can begin a phased and staggered return to workplaces for specific business requirements
- Two metre social distancing, the wearing of masks in certain circumstances, hygiene measures and appropriate ventilation remain in place
- Appropriate attendance levels should be maintained in accordance with the Protocol
- Staggered arrangements should be considered, such as non-fulltime attendance and flexible working hours
- Each workplace must have a Lead Worker Representative that works with the employer to prevent the spread of COVID-19 in the workplace, and
- The requirement for self-isolation / restricted movements will continue for those with symptoms, who should immediately seek a test, those with positive test results, and close contacts of confirmed cases, unless fully vaccinated with no symptoms
From 22 October 2021:
- Depending on continued satisfactory vaccination rates, the Government intends to remove further statutory restrictions from this date. In particular, the requirement to work from home will be removed, allowing a return to physical attendance in workplaces on a phased and cautious basis, appropriate to each sector.
- Remote working will become a regular feature of Irish working life as the Government continues to implement Making Remote Work, Ireland’s National Remote Work Strategy, and
- Legal requirements in relation to social distancing and mask wearing will no longer apply in the majority of circumstances. An emphasis on personal responsibility will be encouraged. This means that employees cannot insist on compliance with social distancing, mask wearing or the provision of sanitising equipment or products in the workplace
With employee's returning one of the most important actions for employers to take is to review their risk assessments and health & safety policies. In order to pinpoint how and where could the virus be transmitted in your workplace you must look at the hazards, evaluate the risks and put control measures in place and The Health and Safety Authority has produced checklists to assist in the reopening of workplaces.
In conclusion, the return to the workplace should be conducted in a cautious manner and in consultation with employees. The government is moving towards a focus on personal responsibility from the 22nd of October 2021 and the Government will consult with employers in advance of this date to prepare guidance for the next phase of easing public health restrictions.
Related Articles:
- The Phased Return to the Workplace
- Let's Get Topical - The Vaccine Policy
The Home Stretch: The Final Key Steps in a Safe Employee Return
Following on from our previous blog post 'As Easy As 1,2,3: Key Elements of Safe Return to The Workplace', this blog post covers the next essential steps in your Return to Work Safely Protocol.
4. Complete Pre-Return to Work Forms
5.Provide COVID-19 induction training for all staff
6.Keeping a log of contact/group work to facilitate contact tracing
7.Review other Company Policies
4. Complete Pre-Return to Work Forms
With this step, a pre-return to work form must be completed by employees at least 3 days before their return to work. The form allows employees to self-certify that they do not have Covid-19 symptoms or have not been in close contact with any confirmed or suspected cases over the last 14 days.
You can get a return to work form template directly from the HSA website.
In communicating with employees upon their return to work it would also be advisable to establish whether or not they might be considered as a vulnerable worker. There is a HSE webpage that sets out who high risk groups are, you might consider sending this to employees and asking them to notify you if they fall into any of the categories. If they do fall into a vulnerable category you do have a duty of care to take extra precautions to protect that individual.
5.Provide COVID-19 induction training for all staff
Once staff return to work they should be given Covid-19 induction training. This will include up-to-date public health guidance. Similar to the Lead Representative training, the HSA have an online Covid induction training. Employees can complete the training on their phone, it takes 20 minutes and once completed employees will receive a certificate which you can place on file as a record that the training has been completed. In addition to the HSA training, it would just be recommended that you recap with employees on the specific changes that have been made in your workplace.
6.Keeping a log of contact/group work to facilitate contact tracing
Next is keeping a log of close contact/group work. The purpose of this being to facilitate contact tracing should it be required.
7.Review other Company Policies
And finally, when you’ve done all of the above you may want to look at reviewing and updating some of your existing policies. Previously you may have updated your Sick Leave Policy to reflect Covid-19 illnesses, you now might also want to consider putting in place a Working from Home policy if that is the norm in your company. And we have those updated policies available in Bright Contracts.
As previously mentioned, The HSA are applying renewed energy into workplace compliance so it is important the employers recheck and re-evaluate where they are. Have things become complacent? Are your policies up-to-date? Do you need to remind staff?
Hopefully if you put many of the steps in place last summer, it shouldn’t take you too long to review. But if you are looking for assistance Bright Contracts can certainly help.
For those of you who are using our Bright Contracts package, Bright Contracts has been updated with a template Covid-19 response plan which can be found in the 'Optional Sections' tab of the software. It covers everything referenced just now and more.
The policy has been written closely following HSA guidelines and checklists. We would certainly advise that you review the policy and adapt it to include what is relevant in your organisation, but it is a fantastic blue print to ensure you are addressing all the points you need to.
Related Articles:
- As Easy As 1,2,3: Key Elements of Safe Return to The Workplace
- Our Employees Are Back! – How Do I Return My Employees Safely?
The Vaccine & The New World of Work Webinar
With vaccination rollout currently underway across Ireland employers are beginning to look at returning a number of their employees to the workplace over the coming months which means plans need to be in place and actions need to be carried out to ensure it is as smooth and safe a return as possible.
We recently hosted a webinar recently which detailed for our customers how best to tackle returning their employees to the workplace including implementing a vaccine policy. To view the webinar recording click below:
Bright Contracts has recently updated its software to include a COVID-19 vaccine policy applicable to any business/ industry. This policy is in addition to the COVID-19 Response Plan and Temporary Working From Home Policy currently available on Bright Contracts.
You can avail of a free trial of the software or purchase a Bright Contracts licence to adapt these policies to your business today. If you are looking to adopt or change your HR Software book a free 15-minute online demo to see how Bright Contracts can change your world of HR.
