Síobhra Rush from law firm Lewis Silkin outlines developments SME owners need to bear in mind for 2022 with new rules and laws on the way in the areas of whistleblowing, the right to work remotely and paid leave in the event of a miscarriage.
Covid-19 has no doubt created havoc for many businesses, employers and employees.
And, while it looked like the end of 2021 would bring about a return to “normality”, it’s very clear that this is no longer the case, with many businesses, particularly those in the hospitality space, having to take the difficult decision to close until the latest restrictions finish in January 2022.
“New challenges may be on the horizon, especially in relation to health and safety obligations, confidentiality, people management and data security”
In addition to taking stock of developments in employment law during 2021 (of which there were many, including changes in Parent’s Leave, the introduction of the Right to Disconnect etc), it is also important for SME business owners to keep an eye on emerging changes as we move into 2022 and beyond.
So, what’s coming down the line in 2022?
Statutory Sick Pay (SSP)
The Sick Pay Bill 2021 is currently moving through the Dáil. It will require employers, regardless of size, to provide SSP to qualifying employees, for up to three sick days in 2022. There are plans to increase this benefit to ten days on a staggered basis up until 2025.
The proposed rate of payment will be 70% of an employee’s normal wages which is to be paid by the employer (up to a maximum of €110 per day). To qualify for SSP the employee must be working for the employer for at least 13 weeks and must obtain a medical certificate detailing that they are unfit to work. Part-time or irregular hours workers will receive SSP where they are sick on the days that they would ordinarily work.
Importantly, sick leave will also be statutorily protected, similar to maternity leave/adoptive leave etc. It will be a legally enforceable right. This means that employees will be able to claim in respect of failure to pay SSP, to the Workplace Relations Commission (WRC) and/or be protected against penalisation for having enforced their rights.
It’s expected that this change will have significant cost repercussions for some employers. Where there is no sick pay policy in place, or where the policy does not reach the minimum threshold, then employers should seek to address this. Employers should begin planning for the additional expenses. However, for those employers who already provide sick pay which exceeds the Bill’s requirements, there will be no change.
Right to request Remote Work
The government is required to implement legislative reforms to comply with the EU Directive on Work Life Balance, which must be transposed before August 2022. In 2021, the government launched the ‘Making Remote Work’ National Remote Work Strategy. While this did not set out any details of the proposed right for employees to request remote work, the Department of Enterprise Trade and Employment did run a consultation on this issue, and legislation to this effect is expected early in the new year.
It’s important to note that there won’t be an automatic right given to employees to work remotely, but similar to the position in the UK currently, employers are likely to be obliged to respond to requests from employees within a specific time frame, and give clear and objective reasons for the refusal of any request.
New challenges may be on the horizon, especially in relation to health and safety obligations, confidentiality, people management and data security. Some employees may also look to work remotely abroad, which will add more complexity to their employment contract, if permitted.
Right to Request Flexible Work
Following on from consultation run by a different department (Children, Equality, Disability, Integration and Youth) it remains to be seen whether the right to request flexible work will be given a legislative footing. Bear in mind that this is a broader right than remote work, and will encompass arrangements such as flexible working schedules and a reduction in working hours, as envisaged under the Work-Life Directive.
Employment Wage Subsidy Scheme (EWSS)
The EWSS replaced the Temporary Wage Subsidy Scheme which was introduced to support employers who had to lay-off employees due to the Covid-19 Pandemic, and will remain in place until April 30th 2022. The current rate in place will remain for the month of January but from February 2022, a two-rate structure will apply, and a flat rate subsidy of €100 will apply for March and April. The reduced rate of Employers’ PRSI will no longer apply for these two months. Those who are availing of the EWSS on 31 December will continue to be supported until April. Moreover, some employers may be eligible for re-entry to the scheme in circumstances where they once met the criteria but later were no longer eligible.
Gender Pay Gap Reporting
While the Gender Pay Gap (GPG) legislation was passed in July 2021, we still await specific regulations implementing the law (e.g., directing employers on when they need to report, how they need to report etc).
The mandatory reporting obligations will initially apply to employers with 250+ employees. However, the Act widens the scope to smaller enterprises with 150+ employees on or after the second anniversary of the regulations and then to those with 50+ employees on or after the third anniversary. There will be no requirement on employers with less than 50 employees to report. In addition to publishing information on their GPG, employers will be required to consider and explain the reason for their GPG and confirm how they are going to address it. The Act does not provide for penalties, but organisations may suffer significant reputational damage as a result of failure to address a GPG.
Employers who are not immediately required to report should avail of the time that they have to prepare as much as possible, by liaising with necessary stakeholders (payroll, HR, IT) to ensure that when the time comes, they are ready to gather the necessary data to compile their reports.
Ireland should have transposed the EU Whistleblowing Directive into law by 17 December 2021, but it is now expected that this won’t happen until well into 2022. We already have existing whistle-blower protection, in the form of the Protected Disclosure Acts 2014, but the new law will expand the protection of the protected disclosures regime to include volunteers, unpaid trainees, board members, shareholders and job applicants. It also imposes stricter requirements on private sector organisations with 50 or more employees, who will be required to establish formal channels and procedures for their employees to make protected disclosures, just like the public sector. In circumstances where these are not provided internally, an external third party may operate this instead. Initially, organisations that employ 250 workers or more will be required to have such policies and procedures in place. There will be a derogation of this requirement for organisations that employ 50-249 workers until December 17th, 2023.
It was expected that interpersonal grievances would be excluded from the legislation, but since the recent Supreme Court decision in Baranya v Rosderra Irish Meats Group Limited, this will require further clarification (the case held that complaints about the employee’s own health or safety could fall within the remit of a protected disclosure). The biggest requirement will be to acknowledge complaints within seven days of receipt, follow-up on the allegations made and give feedback to the reporting person within three months.
Given that by December 2023, private sector organisations with 50+ employees will be required to establish formal channels and procedures to facilitate reporting, SMEs should use this time to update their policies and procedures to be more robust, in anticipation of the changes.
Restrictions on Non-Disclosure Agreements (NDA)
Currently, the Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 is in the Seanad Third Stage. This is a private members Bill, which followed the groundswell of change arising from the #MeToo movement. Its purpose is to restrict the use of NDAs in situations concerning complaints of workplace sexual harassment and discrimination (e.g., a prohibition on “gagging” complainants). Once enacted it will provide certain protections for employees who have raised these types of complaints, but doesn’t prohibit the use of NDAs entirely, as opposed to ensuring that it complies with certain criteria (e.g., having the benefit of legal advice) before it will be enforceable.
Paid Leave Upon Miscarriage
Currently in Ireland, paid leave (maternity and paternity) upon stillbirth or miscarriage is only available after the 24th week of pregnancy. However, the Organisation of Working Time (Reproductive Health Related Leave) Bill makes provision for paid leave even if miscarriage or stillbirth occurred before the 24th week. It also provides for paid leave for the purposes of availing of reproductive healthcare such as IVF. The Bill is currently in the Seanad Third Stage and it is hoped to be enacted in the new year.