Not quite Urbe et Orbe, but what are the employment law issues in 2013?

Workplace Solutions ID (Small)For practitioners it’s hard not to look beyond two hoped for and very important developments in the area of dispute resolution. The biggest industrial relations issues of the year are likely to arise from public service reform, but here I deal only with employment law developments.

The first of those is the reforms of the employment rights institutions proposed by Richard Bruton, Minister for Jobs, Enterprise & Innovation. After a year of very substantial progress through the consultation phase, eventually (apparently) getting an initial green light from cabinet these proposals are somewhat behind target.

It’s not that nothing has happened. Far from it.

Some of the reforms introduced through the Workplace Relations service have been a big help but a number of the ‘big ticket’ proposals in the new adjudication system have been the subject of criticism on legal grounds from some lawyers, in particular in relation to possible breaches of the European Convention on Human Rights (article 6). Among the main critics has been the Employment Bar Association and you can read its views here.

The precise resolution of some of the issues raised here may initially require some important decisions in the office of the Attorney-General, and ultimately in the courts.

The key issues appear to concern the failure to guarantee a role for practising lawyers in the new system, not as a narrow vested interest position but as they see it to protect the rights of the complainant to a fair process.

Most practitioners are just  keen to see the new system up and running as soon as possible especially given the widespread and serious criticism of delays at the EAT and other issues. This has not helped the lawyers’ case even though it is unfair to attribute responsibility for the problems at the EAT in all cases to the fact that there are lawyer Chairs.

That said many claims coming before the EAT do not involve serious points of law, (or often none I would say) and many non practising lawyers have a good knowledge of employment law and workplace culture, which many professional lawyers lack.

(My own views on this in my submission to the DJEI review can be read here.)

The second main area of interest and one which goes beyond employment rights issues is the Mediation Bill. It was disappointing that the Bill; promised for publication last Autumn failed to materialise, with enactment into law now months away.

It is disappointing in that we are now behind many European countries in providing a statutory framework for this form of alternative dispute resolution especially as the ADR community in Ireland is relatively united in its support for the published framework for the Bill. The EU Presidency is likely to be a factor that will delay it further.

Outside the sphere of workplace dispute resolution ADR has a vital contribution to make to reducing costs in the economy for professional services; indeed it is in this context that it appears in the Programme for Government. It should not be delayed!

The Retirement age conundrum

Moving on, we are now under twelve months to an increase in the eligibility age for old age pensions. From January 2014 this will become 66 years of age. I’m willing to bet a lot of workers whose 64th birthday falls this year are not aware of this and there’ll be a reaction to learning that they will not be getting their pension at 65 as anticipated. (And you fifty somethings should note that this rises again to 67 in 2021, and 68 in 2028)

The law in relation to retirement age is developing and in my opinion far from fully clear. It is a separate issue to the pension age, but what is clear is that in the absence of objective reason to justify it compulsory retirement at 65 may constitute discrimination.

(See the case of Elizabeth Sweeney v Aer Lingus Teo (DEC-E2012-135); a case which illustrates the importance of the ”objective justification’ principle.) Ms Sweeney got an award of €5,000 because Aer Lingus failed to establish thather retirement at 65 “served a legitimate aim, or purpose”.

I anticipate that rather as happened with other discriminatory barriers such as gender, the increased volume of cases which will result from increasing awareness of the problem may see the Court of Justice of the European Union (CJEU) push the boundaries out even further and our Equality Tribunal has had to move beyond existing Irish legislative provision to ensure compliance with the CJEU authority.  (More interesting material on this from the European Labour Lawyers Network here

Advice to employers and employees?

Start talking to each other, and if you are the employer, do it carefully! But it would be unwise to postpone doing so. Even if the employment contract specifies a retirement age of 65 I expect that many employees will challenge this on age discrimination grounds and either way employers will be drawn in to conflict on the issue. I can advise further on avoiding this.

And other issues?

It will also be interesting to see the impact of the 2012 Industrial Relations (Amendment) Act on the JLC and REA scene. After all the fuss the Bill got a reasonable reaction from the social partners and came into force last July although a number of cases are before the High Court and due to be decided upon.

Also the process of rationalising (i.e. reducing the number of) JLC’s has, I understand, begun. Watch this space!

Annual Leave

The CJEU also made an important ruling last year in relation to annual leave entitlement during sick leave. Basically, the annual leave may be taken at a later date and outside the reference period, or if they have been out sick for a whole year entitlement to annual leaver persists. Irish statute law currently provides otherwise and will have to be amended to tale account of the CJEU decisions.

Finally, May 2012 also saw the enactment of the Temporary Agency Workers Directive in Ireland. However, as this is of relatively minority interest I invite anyone with queries to contact me at pat.brady@workplacesolutions.ie

Happy New Year!

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Workplace Solutions blog! 2012 in review

The WordPress.com stats helper monkeys prepared a 2012 annual report for the Workplace Solutions blog.

Here’s an excerpt:

600 people reached the top of Mt. Everest in 2012. This blog got about 8,100 views in 2012. If every person who reached the top of Mt. Everest viewed this blog, it would have taken 14 years to get that many views.

Click here to see the complete report.

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Sunday Business Show, Today FM; Dec 16th. Pat Brady on the Sunday Papers and other things

Delighted to have been a guest again on the Sunday Business Show on December 16th with Presenter Conaill O’Morain reviewing the papers with Frank Mulrennan of Celtic Media. Frank talks about his Management Buy Out of the company and a great goodnews story. Good Luck to Frank and his team for 2013!

You can hear the show here My contribution begins about 12 minutes in. (After the initial promo you can slide the cursor up to that point) but the entire show is, as always well worth a listen.

Especially good to hear Roberta Stapleton of Educe Software, and a colleague in South Dublin Chamber tell her story and plans for expansion in 2013.

Great positive vibe on this show; highlighting the best that is going on in Irish business

Thanks to Conaill, Producer Myra Hayes and all the team at the Sunday Business Show.

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The staff Xmas party…too much cheer could cost you dear

I know, I know, the party poopers are at it again. But just dusting down some seasonal advice might save you a lot of trouble, and cost!

(This is an updated version of a post from last year, and I thought it may be helpful to run it again.)

The fact is the Christmas party (or other social events, or work events away from the normal workplace) gives rise to obligations and may be covered by employment rights law. In any event they are covered by general legal provisions, on sexual assault for example.

Bullying legislation refers to behaviour ‘at the place of work or in the course of employment’ and while a single act will not constitute bullying the same does not apply to harassment, and that normally means sexual harassment.

This is defined (in broad terms) as inappropriate or unwanted verbal or physical behaviour and could result in a complaint by a victim of such behaviour under the company  ‘Dignity at Work ‘ policy (if you don’t have one…you should!)

And after the ‘rake of pints,’ shots and general bravado the insight necessary to distinguish between acceptable and unaceptable behaviour may diminish, with consequences for colleagues who have a clear legal entitlement to be free of certain types of  unacceptable behaviour. And this could cover a wide range of behaviours!

And this could include the line between sexual harassment and sexual assault (which is a crime). It’s not as wide as may be thought in the macho mind.

And while these comments have focussd on sexual harassment there are other aspects to dignity at work which may also be offended. We now have minorities in Ireland whose right to equal treatment is enshrined in law.

I referred last year to an article in the Sunday Business Post by solicitor Linda Hynes of Leman Solicitors  to a fight at an office party in Malahide which resulted in an unfair dismissal and cost the employer €150,000! 

And the employer may be liable for such behaviour if  s/he has not taken reasonable steps to prevent or address it.  Linda Hynes’ excellent checklist on Work Place social events can be accessed here 

The Small Firms Association has noted that:

‘Employers must be aware that the party venue is basically an extension of the office and that they remain responsible for the well-being, protection and behaviour of employees during such events.  Employers should make note in a work function invitation that appropriate behaviour is required at the party.’

If you need more information contact pat.brady@workplacesolutions.ie and see Equality page on this site

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Sunday Business Show, Today FM Oct 14th. Pat Brady on the Sunday Papers and other things

Delighted to have been a guest on the Sunday Business Show on October 14th with Presenter Conaill O’Morain reviewing the papers with Eilis Quinlan.

You can hear the show here. My contribution begins about 1o minutes in. (After the initial promo you can slide the cursor up to that point)

Thanks to Conaill, Producer Myra Hayes and all the team at the Sunday Business Show

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ADR…cheaper, more efficient, civilised!

As a strong advocate of ADR and a practitioner of the art I thought this quote from former U.S. Supreme Court Chief Justice Warren E. Burger’s about litigation in the U.S. deserved a whole blog to itself:

‘The entire legal profession – lawyers,  judges, law professors – has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflicts…

For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.

Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence, because they are perceived as healers. Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?’

  • Annual address to the America Bar Association winter convention, Las Vegas (February 12, 1984).

This came to me from a piece published by Lexology on dispute resolution in the construction industry in the US by law firm Duane Morris which you can read here. Burger J retired in 1986…how long will it take to get the message!!

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European Labour Law Network, The Hague Oct 11/12

Delighted, and honoured to have been invited to the 5th Annual Legal Seminar of the European Labour Law Network (ELLN) The theme of this year’s seminar is: “Labour Law in a Greying Labour Market – Challenges of Active Ageing”. The seminar will take place on Thursday 11 October and Friday 12 October at the Bel Air Hotel in The Hague / The Netherlands. I’m hoping to have lots of interesting material from this event for future blogs!

PROGRAMME 

Labour Law in a Greying Labour Market – Challenges of Active Ageing –

Thursday 11 October 2012 – Moderator: Prof. G.J.J. Heerma van Voss

14.30 – 15.00 Opening & Welcome

Prof. Guus HEERMA VAN VOSS – Co‐organiser ELLN, Leiden University, the Netherlands

Mr. Armindo SILVA – European Commission, Director of DG‐EMPL.B Employment and Social Legislation, Social Dialogue, Brussels, Belgium

15.15 – 15.30 General introduction

Mr. Steven TOBIN – Head Education Programme and Country Review, International Institute of Labour Studies of the ILO, Geneva, Switzerland

Mr. Ralf JACOB ‐ European Commission, Head of Unit EMPL.D.3. Active Ageing, Pensions, Healthcare and Social Services, Brussels, Belgium

15.30 – 16.00 16.00 – 16.30

The position of older workers in labour law

Keynote speech by Prof. Ann NUMHAUSER‐HENNING – member Scientific Committee ELLN, Lund University, Sweden

Reflection by Dr. Erika KOVÁCS, Researcher, Director Institute of European and Comparative Labour Law, University of Pécs, Hungary

16.45 – 18.00

Working group discussions on “The position of older workers in labour law”

Friday 12 October 2012 – Moderator: Prof. B. Waas

09.30 – 10.00 Age discrimination, retirement conditions and specific labour arrangements

Keynote speech by Prof. Maria DO ROSÁRIO PALMA RAMALHO, Faculty of Law, University of Lisbon, Portugal

Reflection by Prof. Mark FREEDLAND FBA, Professor Emeritus of Employment Law in the University of Oxford, United Kingdom and member of the Executive Committee of the European Anti‐discrimination Legal Network

10.00 – 11.15 Working group discussions on ”Age discrimination, retirement conditions and specific labour arrangements”

12.15 – 12.30

Young versus old or Intergenerational solidarity

Keynote speech by Prof. Jean‐Pierre LABORDE – Professor at the University of Montesquieu‐Bordeaux IV, Member of the Centre for Comparative Labour and Social Security Law, France

Reflection by representative of the European Trade Union Confederation (ETUC) –

(tbc)

Mrs. Renate HORNUNG‐DRAUS, Managing Director, Confederation of German Employers’ Associations (BDA), Berlin, Germany

12.30 – 13.30

Working group discussions on “Young versus old or Intergenerational solidarity”

14.45 – 15.00

Main findings concerning older workers of the evaluative study on part‐time and fixed work directives, carried out for the European Commission

Mrs. Tina WEBER, Principal Researcher ICF GHK

15.00 – 15.45 Questions & Answers

Moderator: Prof. Catherine BARNARD – member Scientific Committee ELLN, University of Cambridge, Trinity College, United Kingdom

15.45 – 16.00 Closing

Ms. Muriel GUIN – European Commission, Head of Unit DG‐EMPL.B.2 Labour Law, Brussels, Belgium

Prof. Bernd WAAS – Coordinator ELLN, Goethe University Frankfurt, Germany

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UCD School of Law Conference ‘Current Fundamental Issues in Employment Law’

UCD School of Law (with the support of the Employment Law Association of Ireland)  conference on

 CURRENT FUNDAMENTAL ISSUES IN EMPLOYMENT LAW

 University College Dublin, Friday, September 28th  & 29th September 2012

Conference Schedule

Two main sessions on the key issues in employment law in Ireland today

  • Workplace Relations Reform
  • Freedom of Association & Collective Bargaining

Full details  can be accessed here 

I hope to post a report on some of the contributions shortly

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ECJ decision on illness arising during annual leave

Court of Justice of the European Union

PRESS RELEASE No 87/12

Luxembourg, 21 June 2012

Judgment in Case C-78/11 Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and Others

A worker who becomes unfit for work during his paid annual leave is entitled at a later point in time to a period of leave of the same duration as that of his sick leave

That right exists irrespective of the point at which the incapacity for work arose

The Working Time Directive1 entitles all workers to annual leave.

In Spain, periods during which leave may be taken must be scheduled by mutual consent between the employer and the employee, in accordance, where appropriate, with the provisions of collective agreements on the annual planning of leave.

Spanish law also provides that where the period of leave coincides with a period of temporary incapacity for work resulting from pregnancy, labour or breastfeeding, the worker is entitled at a later point in time to take leave corresponding to the period of incapacity2. In the present case, the collective agreement for department stores for the period 2009 – 2010 contains a similar provision. However, Spanish law does not address situations in which the period of leave coincides with a period of sick leave on account of temporary disability.

A number of trade unions representing workers brought collective actions before the Spanish courts for recognition of the right of workers subject to the collective agreement for department stores to paid annual leave, even where such leave coincides with periods of sick leave owing to temporary incapacity for work. However, the Asociación Nacional de Grandes Empresas de Distribución (ANGED) (the National Association of Large Distribution Businesses) opposes those claims. In its view, workers affected by temporary incapacity for work – before starting a period of pre-arranged leave, or who are so affected during such a period of leave – are not entitled to take leave at a later date, after the period during which they were unfit for work has ended, except in the situations expressly provided for by national legislation.

The Tribunal Supremo (Supreme Court), before which the matter has been brought, asks the Court of Justice whether the directive precludes the Spanish legislation under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to that annual leave where it coincides with the period of unfitness for work. In its judgment today, the Court answers in the affirmative.

The Court points out that, according to settled case-law3, entitlement to paid annual leave must be regarded as a particularly important principle of EU social law, a principle expressly enshrined in the EU Charter of Fundamental Rights. The right to paid annual leave cannot be interpreted restrictively.

1 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9). The right to annual leave is laid down in Article 7(1) of the Directive. 2 The same possibility exists where the period of annual leave scheduled for a worker coincides with a period during which the contract of employment is suspended on account of child birth, death of the mother after child birth, premature birth, hospitalisation of a premature baby, adoption or fostering.

3 Case C-214/10 KHS; see also Press Release No 123/11. http://www.curia.europa.euThe Court also points out that the purpose of entitlement to paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure. The purpose of entitlement to sick leave is different, since it enables a worker to recover from an illness that has caused him to be unfit for work.

Bearing in mind the purpose of paid annual leave, the Court has already held that a worker who is unfit for work before the commencement of a period of paid annual leave is entitled to take that leave at another time which does not coincide with the period of sick leave4.

In its judgment today, the Court states that the point at which the temporary incapacity arose is irrelevant. Consequently, a worker is entitled to take paid annual leave which coincides with a period of sick leave at a later point in time, irrespective of the point at which the incapacity for work arose. It would be arbitrary and contrary to the purpose of entitlement to paid annual leave to grant workers the right to paid leave only if they are already unfit for work when the period of paid annual leave commences.

In that context, the Court points out that the new period of annual leave (corresponding to the duration of the overlap between the period of leave initially scheduled and the period of sick leave to which the worker is entitled after he has recovered) may be scheduled, if necessary, outside the corresponding reference period for annual leave.

NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.

Unofficial document for media use, not binding on the Court of Justice. The full text of the judgment is published on the CURIA website on the day of delivery. Press contact: Christopher Fretwell(+352) 4303 3355

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Ireland lifts restrictions on Romanian & Bulgarian workers

Statement from DJEI

20th July 2012

Sometimes we miss these announcements. This came to our attention in the course of complying with the old rules for employment permits.

The background is that the treaties that govern Bulgarian and Romanian accession to the EU in 2007 provided for a 7-year transition period before nationals of those countries have full access to the labour markets of other Member States.

There has been a gradual relaxation of the rules applying in Ireland to workers from Bulgaria and Romania. Currently, certain categories of workers from these countries already have access to the Irish labour market, including self-employed, students, and those that are self-sufficient. Bulgarian and Romanian nationals already have rights to come and live in Ireland. Outside of those categories, according to the Department of Jobs, Enterprise & Innovation in recent years an annual average of less than 450 work permit applications from Bulgarian and Romanian nationals have been received, of which an average of 350 were granted annually.

Under the current system, all restrictions on Bulgarian and Romanian access to the Irish labour market are scheduled to expire automatically on 1stJanuary 2014, after which date Bulgarian and Romanian nationals as EU citizens will have full access to the labour markets of all 27 member states.

In December last, the EU Commission communicated to Ireland that transitional arrangements are a preparatory phase allowing Member States to prepare gradually for the full application of EU law on free movement of workers and invited Ireland to work actively towards the eventual opening of its labour market to Bulgarian and Romanian workers and regularly assess the situation of its labour market and reconsider whether it is necessary to maintain restrictions at all. The EU Commission cited the experience of previous enlargements of the EU where it was shown that migration from the Member States that newly joined the EU did not lead to disturbances of the labour markets of the receiving countries.

The Government has undertaken a review of policy in the area and an assessment of the possible impact of removing restrictions on the labour market in light of analysis and recent data. The review identified a clear pattern of work permit applications from the countries under discussion that follows closely economic circumstances and prospects of employment. From a peak in 2003 the numbers seeking to come and work in Ireland from Bulgaria and Romania has collapsed from 2007 onwards. In 2003 some 3,600 permits were sought from nationals of both countries, declining to just over 500 applications in 2011.

In addition it has also been observed, through the examination of PPSN numbers that the demand from Bulgarian and Romanian nationals has collapsed and the percentage of PPSN numbers ever activated in Ireland is low. The population of Romanians and Bulgarians living in Ireland is estimated to have fallen by approximately 3,000 between 2008 and 2011.

Arising from this review, it has become clear that the basis for the continuation of restrictions on access to the labour market for remaining categories of Bulgarian and Romanian nationals is questionable. As such, the Government has decided immediately to bring forward the transition date for access to the labour market for Bulgarian and Romanian nationals.

A number of factors are noted by Government, including:

  • a review by Government which looked at studies conducted by the Commission and Forfás which concluded that subsequent to this decision the likely outlook remains for a flat or even a marginal decline in the number of Bulgarian and Romanian nationals seeking to work in Ireland;
  • Bulgarian and Romanian nationals already have considerable rights of access to the Irish labour market, in particular students, and self-sufficient/self-employed people;
  • the population of such nationals in Ireland is estimated to have dropped by approximately 3,000 over the last three years;
  • full and unrestricted access to the Irish labour market for Bulgarian and Romanian nationals will have to be provided in 17 months in any event, under the Treaties of Accession;
  • only 9 of the 27 other EU Member States currently retain restrictions of any sort on access to their labour markets by Bulgarian and Romanian nationals with Italy and the Czech Republic having removed restrictions from 1st January last;
  • legal advice received on the feasibility of continuing transitional arrangements;
  • arguments presented to the Government by the EU Commission and the Bulgarian and Romanian governments for removing restrictions; and
  • the importance of sustaining and maintaining positive relations with the EU Commission and other member states at a time of political and economic flux in the European Union.
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