Employment Law: Looking back on 2022

by Denise Moran, Senior Associate, Employment, Pensions and Benefits Group at Matheson LLP

The employment law landscape of 2020 and 2021 was predominantly shaped by the impact of COVID-19. Now, looking back on 2022, some of the key employment developments were, yet again, escalated to the Government’s agenda as a result of the pandemic.

In some instances, COVID-19 was a catalyst for change and we see that in the introduction of statutory sick pay from 1 January 2023 and in the promotion of hybrid and flexible working arrangements to a statutory footing.  These legislative initiatives also feed into the Government’s broader commitment to diversity, equity and inclusion. On this theme, 2022 saw the introduction of mandatory Gender Pay Gap reporting for companies in Ireland with over 250 employees.

Separately, we saw the transposition of the EU Whistleblowing Directive into Irish law and the significant changes that such will bring about from 1 January 2023. In addition, we have seen significant movement in respect of the Individual Accountability Framework.

We now take a look back at some of these key employment law themes for 2022.

Hybrid and Flexible Working Arrangements

2022 finally saw the large-scale return of in-person workplace attendance. Many employers opted to roll out hybrid working arrangements on a trial or, in some instances, on a permanent basis. There is no doubt that the flexibility inadvertently introduced as a result of COVID-19 will continue to be a key feature of Irish workplaces.  However, there are a number of legal and practical issues facing employers operating such hybrid models and we recently looked at these challenges, together with some key takeaways for employers in managing their hybrid workforces: How to do Hybrid Right – Key Learnings For Employers So Far.

Under this umbrella heading, we also saw a number of legislative developments:

• In January, amid great fanfare which very quickly turned to criticism, we saw the publication of a draft scheme for the Right to Request Remote Working Bill.
• We also saw the publication of the Work Life Balance and Miscellaneous Provisions Bill 2022 (“Work Life Balance Bill“) which proposes new statutory entitlements for parents and carers.

Recently, the Irish Government announced its intention to integrate these two separate legislative frameworks so that an employee’s statutory right to request remote work will be covered by the Work-Life Balance Bill (the “Integrated Bill“). This is currently working its way through the legislative process and we will update you as soon as the Integrated Bill is published. At this point, the general view is most employers have already worked out their own hybrid strategy and very few employees need a statutory basis to request remote working so the legislation is, by now, a long way behind the market.

Gender Pay Gap Reporting

2022 marked the first year of Ireland’s mandatory Gender Pay Gap (“GPG“) reporting regime. Employers with 250 employees or more are required to publish their reports over the course of this December, based on the June “snapshot” date they chose. We have seen a number of reports published, with lots more to come before the end of the year.

In-scope companies quickly became familiar with the overarching reporting requirements when published earlier this year (as covered in an earlier podcast Gender Pay Gap Reporting – Practical Tips and Guidance and as set out in a previous publication: Gender Pay Gap Reporting – Top 10 FAQs).

New Whistleblowing Law

The Protected Disclosures (Amendment) Act 2022 (the “2022 Act“) will commence on 1 January 2023 and will significantly extend the scope of the Protected Disclosures Act 2014. Although Ireland had a robust whistleblowing framework in place, the key changes introduced by the 2022 Act mean that:

• protection is now extended to new categories of “workers” including shareholders, board members and volunteers;
• a significant new avenue of redress for interim injunctive relief is available for those who consider themselves to have been penalised for raising a more broadly defined protected disclosure;
• employers will be required to put in place internal reporting channels for making and managing protected disclosures in line with the prescribed steps of the legislation; and
• significant sanctions and penalties (including criminal sanctions and hefty fines) may arise for non-compliant organisations.

While many employers will need to review their current policies and procedures to ensure compliance with the 2022 Act, others may be required to start from scratch. Companies with over 250 employees or those that fall within the scope of certain EU laws regardless of employee headcount, including financial services firms, will be required to have such in place by 1 January 2023.

Individual Accountability Framework (“IAF”) and the Senior Executive Accountability Regime (“SEAR”)

In July 2022, the Central Bank (Individual Accountability Framework) Bill 2022 was finally published. The IAF, of which SEAR is just one component, will represent a seismic shift in regulatory accountability for both in-scope entities and individual senior executives in Ireland. For that reason, regulated employers are getting their houses in order early and the key learning from dealing with our UK colleagues who are subject to a similar regime is that entities cannot be prepared enough.

The employment law elements of the proposed regime are very significant for regulated employers as they work out how to integrate the proposed conduct standards into their day-to-day business and processes.  The importance of training for organisations and staff has been greatly emphasised during the pre-legislative process and Bryan Dunne recently considered these obligations in a briefing that can be viewed hereOpens in new window.

Please consult our Individual Accountability and SEAR hub for insightful and informative podcasts, webinars and publications.

Noteworthy Case Law 

2022, like every other year in the employment law arena, saw many interesting, important and some entertaining cases.

Given the sea-change in economic outlook since the beginning of the year, and the high volume of redundancies we have advised on since Q2, we wanted to bring these redundancy related unfair dismissal cases to your attention. Here, awards of approximately €120,000 were made to each complainant. These serve as a cautionary reminder to employers of the importance of affording employees whose roles are “at risk” of redundancy full and fair procedures: Six-figure Awards Underscore Importance of Fair Redundancy Process.

We considered the case of Flynn v Iarnród Éireann in a podcast earlier this month. Here, the complainant successfully challenged the fairness of his dismissal in circumstances where he was serving a four year prison sentence. On the basis that the complainant had significantly contributed to his dismissal, his compensation award was reduced to an amount equivalent to approximately one month of salary. Listen to our consideration of the case here: Does a prison sentence automatically terminate a contract of employment? – Flynn V Iarnród Éireann