Head of Employment Law & Benefits, Melanie Crowley reviews four of the key updates for employers in Ireland. These include the Supreme Court’s recent decision in the Domino’s Pizza case, changes to the collective redundancy regime, new parental rights, and the Senior Executive Accountability Regime. We also consider the likely impact of these developments on the Irish employment landscape in 2024.
It has been a busy year for employment law in Ireland. Among other things, the Supreme Court handed down a significant decision in the Domino’s case, changes have been proposed to the collective redundancy regime in the context of insolvent companies, provisions of the Work Life Balance and Miscellaneous Provisions Act 2023 came into effect, and draft regulations were published on the Senior Executive Accountability Regime.
We review the key updates for employers and look ahead to the impact of these developments on Ireland’s employment landscape in 2024.
Supreme Court Rules Domino’s Pizza Delivery Drivers are Employees
The Court of Appeal decided in June 2022 that delivery drivers of Karshan (Midlands) Ltd trading as Domino’s Pizza (Karshan) should be treated as independent contractors and not PAYE employees for tax purposes. However, in October 2023, the Supreme Court allowed the appeal by the Revenue Commissioner when deciding that the drivers were employees for the purposes of the Taxes Consolidation Act 1997.
The Supreme Court significantly departed from previous decisions on determining worker status and decided that excessive focus had been placed on “mutuality of obligation” as one of the fundamental pillars of the employment relationship. Instead, the Supreme Court held that greater significance ought to be placed on the degree of control under which the worker performed the work. The Supreme Court directed that whether a worker is an employee should be resolved by reference to five key questions.
Although this is a tax case, it is of critical importance to employers given the overlap in the tests used by the Revenue Commissioner and bodies adjudicating employment rights in determining worker status.
Read the full article: Supreme Court Rules Domino’s Pizza Delivery Drivers are Employees
Changes to the Collective Redundancy Regime
Earlier this year, the Irish Government approved priority drafting of the Plan of Action on Collective Redundancies following the introduction of the Insolvency Bill 2023. The Bill seeks to add new protections for employers in a collective redundancy, particularly where the collective redundancies result from the insolvency of the employer.
Proposed amendments include:
- A requirement for liquidators to go through the full information and consultation process with employees
- Fines for employers who fail to enter initial consultations with employees ahead of collective redundancies, and
- Where employees are made redundant before the expiry of the 30-day period, they will be able to make a complaint to the Workplace Relations Commission
The Government is also seeking to establish an Employment Law Review Group to advise the Minister on legislative updates and amendments to employment law to include EU law developments and recent judgments.
Read the full article: Changes to Ireland’s Collective Redundancy Regime: Rights of Employees and Employers Balanced?
New Parental Rights under the Work Life Balance Miscellaneous Provisions Act 2023
The Work Life Balance and Miscellaneous Provisions Act 2023 was signed into law by the President in April 2023. The legislation does five things:
- Introduces five days of unpaid medical care leave for employees with caring responsibilities
- Extends an employee’s rights under maternity leave legislation, including increasing the timeframe in which an employee can take breastfeeding breaks from 6 months up to two years
- Introduces five days of paid leave for victims of domestic violence
- Introduces the right to request flexible working arrangements for employees with caring responsibilities
- Introduces the right to request remote working for all employees
Although not all provisions of the Act have been commenced, Minister Roderick O’Gorman announced that, from 3 July 2023, the following parts related to parental leave would come into effect:
- Five days unpaid leave for medical care purposes, and
- The extension of rights under maternity leave legislation.
Read the full article: New Parental Rights to Come Into Effect Imminently
Victims of domestic abuse also became entitled to five days’ paid leave with effect from Monday, 27 November 2023.
Read the full article: Paid Domestic Violence Leave Now Effective
Senior Executive Accountability Regime Draft Regulations
As part of the Individual Accountability Framework (IAF), the Senior Executive Accountability Regime (SEAR) Draft Regulations were published on 13 March 2023.
The purpose of the Regulations is to clarify and set out where decision-making responsibilities lie in financial firms at senior executive level. A three-month consultation on the IAF was carried out during the year by the Central Bank of Ireland. We are now awaiting the final form Regulations to be published, along with final form guidance regarding SEAR and the other aspects of the IAF. This will include the new conduct standards and the changes to the fitness and probity regime in the form of the new certification regulations. We recommend firms in the scope of SEAR and the IAF undertake a full review of their employment contracts, disciplinary policies and policies setting out the new IAF obligations in light of the new regime.
Read the full article: Senior Accountability Regime: Draft Regulations Overview
Immigration, Citizenship and Naturalisation Law Updates
The Minister for Justice commenced the majority of the provisions of the Courts and Civil Law (Miscellaneous Provisions) Act 2023 in September of this year. The 2023 Act introduces changes to immigration, citizenship and naturalisation legislation in Ireland.
Some of the key changes include:
- An extension to the time an applicant can be outside of Ireland from 6 weeks to 10 weeks
- A reduction in the residency requirement for children born in Ireland to non-resident parents from five years to three years, and
- Amendments to the Immigration Act 1999 to provide for persons who are convicted of serious offences or are considered a danger to the security of the State, preventing their return to the State in future following deportation
In addition, in May 2023, the Irish Government published a new guidance document for naturalisation applications.
Read the full article: Immigration, Citizenship and Naturalisation Law Updates
Comment
Looking ahead to 2024, in addition to these legislative updates and important decisions, the legal landscape will likely also be shaped by ongoing discussions surrounding Artificial Intelligence (AI) in the employment context. AI, particularly in recruitment processes, is a dynamic area with potential impacts on job roles. Employers should closely monitor developments in AI and its potential effects on the workforce.
We would advise employers in the financial services sector to keep a close eye on the SEAR regime. As it unfolds, it will introduce specific measures to clarify decision-making responsibilities at the senior executive level within financial firms. This development is crucial as it will require a thorough review of employment contracts and policies to align with SEAR requirements.
The dynamics between executives and their boards are expected to draw increased attention in 2024. Tensions between executives and boards have been evident across various sectors, including the public, charitable, and private sectors. The question of responsibility for key decisions at both executive and non-executive levels is likely to be a focal point for discussions and potentially legal issues. Observing how these dynamics evolve will be particularly intriguing in the coming year.
Our Employment Law & Benefits team has unrivalled experience acting in contentious and non-contentious employment issues. For more information on how we can assist your organisation in resolving and managing these issues in 2024, contact a member of our team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
