2018: A Year in Review – The Employment Lawyer’s Perspective

From an international employment law perspective, 2018 has been dominated by gender issues. These range from gender pay gap (GPG) reporting to employers having to respond to an increase in sexual harassment complaints in the wake of the #metoo movement. Closer to home, employers have had to grapple with GDPR, the challenges associated with mandatory retirement and the question of whether employees can be legally represented at a disciplinary hearing.

Mandatory retirement

The so called "grey ceiling" was the subject of much news coverage in 2018 and observers reporting on the enforcement of mandatory retirement ages triggering a wave of age discrimination claims. The genesis of this increase can be traced back to the recent increase in the State pension age, resulting in a 'financial gap' between the traditional retirement age of 65 and the 'new' State pension age of 66.  Faced with a need to bridge this gap, employees are increasingly seeking to work until age 66 and challenging any attempts to force them to retire earlier

In 2018 a statutory Code of Practice on Longer Working was introduced, which provides welcome practical guidance to employers on the steps they should be taking in the run-up to employee retirements. Although not legally binding, the WRC and Labour Court will take into account an employer's compliance with the Code when adjudicating on the legality of a mandatory retirement. 

Legal representation

One of the most significant employment law decisions of 2018 related to the topical issue of whether employees are entitled to bring a lawyer to an internal disciplinary hearing.

While previous High Court cases suggested employees could be accompanied by their lawyer where the outcome of a hearing could result in dismissal or negatively impact their reputation, the Court of Appeal in Irish Rail v McKelvey set a higher bar. In short, employees who wish to be accompanied by a lawyer in a disciplinary hearing need to be able to show "exceptional circumstances" exist which justify the attendance of their lawyer.

Right to disconnect

Another case that caused a stir amongst employers is closely connected to the emergence of today's "digital workplace". In this case the Labour Court awarded an employee €7,500 to compensate her for her employer's breach of working time legislation. This legislation restricts an employer requiring an employee to work more than an average of 48 hours per week. The employee in question was regularly sending work-related emails outside office hours and her employer could not demonstrate that it took steps to ensure she was not working more than the maximum permitted weekly working hours.

Accurate record-keeping of employees' working hours is a complex task given today's fluid and flexible working arrangements which can result in blurred lines around the concept of "working hours". But, as the law currently stands, a failure to keep such records and to allow employees to work in excess of the statutory permitted maximum can give rise to legal liability. 

What does 2019 have in store?  

We predict that next year's "hot topic" will be Gender Pay Reporting. This topic continues to dominate the headlines in the UK, with firms who reported significant pay gaps earlier in the year under considerable public pressure to identify and address the root cause of their pay disparity. In an Irish context, it is anticipated that progress on the legislative front will be made in the first half of 2019 with large employers likely to be required to report for the first time in 2020.

Next year will also see changes to family leave entitlements and the enactment of legislation which will effectively cease the widespread use of zero-hours contracts. And as if that wasn't enough for one year, employers may also need to get to grips with restrictions on free movement of workers and associated immigration controls that could materialise post-Brexit.

For more information in relation to this topic, please contact Michael Doyle, Partner, or any member of the A&L Goodbody Employment Team.

This article first appeared in the Sunday Business Post on Sunday 23 December 2018.

Date published: 02 January 2019