Employers – what’s on the horizon for 2023
The year 2022 brought with it a number of legislative changes which impact on employers and how they manage their relationship with their employees and in 2023 we are seeing this pattern continue. In an ever-changing legal environment, it is essential for employers to understand their obligations and ensure that they act in accordance with the legislation. Employers must maintain up to date contracts of employment and policies and to assist employers with this, we have set out below some of the most important pieces of new legislation that employers need to be aware of. If you have not already done so, now is the time for you to review your contracts of employment and policies to reflect these changes. The employment team in Whitney Moore would be delighted to assist you with these should you require assistance.
Statutory Sick Leave Act 2022
Entitlement to sick leave commenced 1st January 2023 with a phased incremental implementation, as follows:
- 3 days sick leave in 2023,
- 5 days sick leave in 2024,
- 7 days sick leave in 2025, and
- 10 days sick leave in 2026.
The employee must have 13 weeks continuous employment and must have obtained a medical certificate. The medical certificate must be dated from the first date of the leave.
Sick pay rate is 70% of the employee’s salary subject to a daily maximum threshold of €110.
Payment of Wages (Amendment) (Tips and Gratuities) Act 2022
Effective since 1st December 2022 and covers electronic tips in a variety of premises.
There is now a requirement on employers to distribute tips fairly and must provide a distribution policy to the employee within 5 days of their employment.
The electronic tipping policy must also be available to the public.
European Union (Transparent and Predictable Working Conditions) Regulations 2022
Implemented 16th December 2022 and applies to every worker with an employment contract or employment relationship.
Contracts of Employment
There are new obligations on employers in relation to the information that must be given to new employees.
Within the first 5 days of commencing employment, employees should be provided with:
- Names of employer and employee
- Place of work, or where there is no main place of work, a statement indicating that the employee is required/permitted to work in various locations
- Duration of the contract
- Frequency of pay and pay calculation details
- Title, grade, nature or category of the work or a brief description of the work
For predictable working patterns:
- The length of the standard working day or week
- Overtime and shift changes
For unpredictable working patterns:
- The number of guaranteed paid hours per week
- The pay for hours worked in excess of the guaranteed hours
- Hours/days within which the worker may be required to work
- The minimum amount of advance notice provided to employees about working hours
Within one month of commencing employment, employees should be provided with:
- Duration of paid leave
- Training entitlements
- Procedures to be observed on termination
- Identification of social security institutions receiving contributions and protection relating to that social security
- For agency workers – the identity of the end-user entity.
Under the new legislation the maximum duration of a probationary period is now 6 months, and this may only be extended in exceptional circumstances and/or if an extension is in the best interests of the employee. The employer can extend the period of probation in circumstances where the employee has been on statutory leave, the extension can be the equivalent of the period of absence.
The new legislation restricts the use of exclusivity clauses in a contract of employment. Employers who wish to include such a clause must include their objective grounds for seeking same in the contract. Such grounds could be business confidentiality and an employers’ obligation to comply with statute.
Employers are required to pay for training mandated by law.
Predictable Work Patterns:
Following 6 months of employment, employees have the right to ask employer for more predictable working conditions.
Work Life Balance and Miscellaneous Provisions Bill
The Right to Request Remote Work is now being included in the drafting of the Work Life Balance and Miscellaneous Provisions Bill. Employees are required to who have been in continuous employment for 6 months before commencing a remote working arrangement.
The Bill sets out how an employee should request for remote working. The request should be in writing and signed by the employee. The request should specify the details if the remote working arrangement including the proposed commencement and if applicable, the expiration of the remote work. The employee should specify the reasons why they are requesting this arrangement, details of the proposed remote location and should not be submitted later than 8 weeks prior to the proposed commencement date.
The employer is obliged to consider the remote working request having consideration to:
- the business needs,
- the employee’s needs, and
- the requirements of the code of practice.
The employer must respond no later than 4 weeks either approving the request and setting out the arrangement or, refusing the request and setting out the reasons for the refusal.
Flexible Work for Caring Purposes
The Bill affords employees who are parents the right to request a flexible working arrangement to provide care to their child. The employee must be the parent of a child who is under 12 or under 16 if they have a disability or long-term illness.
The Bill also affords employees the right flexible working arrangements to facilitate them providing care to their spouse, cohabitant, parent, grandparent, sibling or someone who resides with them, who requires significant care or support for a serious medical reason.
Flexible working arrangements are defined in the Bill as meaning “a working arrangement where an employee’s working hours or patterns are adjusted, including through the use of remote working arrangements, flexible working schedules or reduced working hour”.
Employees are required to have at least 6 months’ service before commencing an approved flexible working arrangement and must provide 8 weeks’ notice of the request to their Employer.
Leave for Medical Care Purposes
The Bill provides the entitlement of up to 5 days unpaid leave to facilitate employees who provide care to their spouse, cohabitant, parent, grandparent, sibling, or someone who resides with them, who requires significant care or support for a serious medical reason.
Leave for reasons related to Domestic Violence
This leave will be available to employees who have experienced or are experiencing domestic violence. The purpose of the leave is to facilitate those employees in seeking medical attention, professional counselling and other services that are available to them. The Bill as it stands offers 5 days leave paid at 70% of the employees’ daily salary (capped at €110) however, advocacy groups are campaigning for this to be increased to 100% of the employee’s salary. This is due to be debated in the Seanad next week.
Protected Disclosures (Amendment) Act 2022
This Act significantly enhances the protection of whistleblowers and expands the definition of what is a protected disclosure.
The Act significantly expands on the definition of “relevant wrongdoing” and lists several acts that are to be interpreted as penalisation:
- suspension, lay-off or dismissal,
- demotion, loss of opportunity for promotion or withholding of promotion,
- transfer of duties, change of location of place of work, reduction in wages or change in working hours,
- the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),
- coercion, intimidation, harassment or ostracism,
- discrimination, disadvantage or unfair treatment,
- injury, damage or loss,
- threat of reprisal,
- withholding of training,
- a negative performance assessment or employment reference,
- failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,
- failure to renew or early termination of a temporary employment contract,
- harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,
- blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,
- early termination or cancellation of a contract for goods or services,
- cancellation of a licence or permit, and
- psychiatric or medical referrals.
Employers are mandated to establish reporting channel that allow workers to report protected disclosures in a secure and confidential manner, this applies to:
- Private sector employers with over 250 employees.
- All employers who operate in certain regulated areas, such as financial services, regardless of size.
- All public sector employers.
For Employers with not less than 50 and not more than 249 employees, reporting channels are required to be implemented by the 17th of December 2023.
Employers must appoint an impartial “designated person(s)” who is under a duty of confidentiality to deal with such disclosures.
It is a criminal offence not to comply with the Act and severe penalties are in place for employers who act in Contravention with the 2022 Act. The 2022 Act creates new offences for a person who:
- hinders or attempts to hinder a worker in making a report,
- penalises or threatens penalisation or causes or permits any other person to penalise or threaten penalisation,
- brings vexatious proceedings,
- breaches the duty of confidentiality regarding the identity of reporting persons,
- makes a report containing any information that the reporting person knows to be false, or
- fails to establish, maintain and operate internal reporting channels and procedures.
Failure to provide adequate reporting channels and/or committing any of the above-mentioned offences could lead to fines ranging between €75,000 – €250,000 and/or imprisonment of up to 2 years. It is also an offence for a reporting person to make a protected disclosure with information he/she knows to be false, this can attract a fine up to €5,000 and imprisonment of up to 6 months or both.
The maximum compensation to be awarded to reporting persons under the Act is 260 weeks’ remuneration. The maximum for a worker who Is not in receipt of remuneration is €15,000.
For assistance in updating your contracts of employment and policies please contact a member of our Employment Team.
John Lynch, Managing Partner
Phone: +353 (0)1 611 0043
Emma Richmond, Employment Partner
Phone: +353 (0)1 611 0012
Marie Claire, Employment Partner
Phone: +353 (0)1 611 0072