05 Employment
Triona Sugrue Senior Practice Development Consultant
2025 AT A GLANCE
- An action plan to strengthen collective bargaining was published by the Government. The plan sets out actions intended to empower, promote and protect collective bargaining while ensuring workplaces remain fair, productive and resilient.
- Case law concerning a worker’s employment status continued to evolve, with the Workplace Relations Commission delivering some notable decisions while applying the criteria set down in the Supreme Court’s seminal judgment in Revenue Commissioners v Karshan Midlands Ltd t/a Domino’s Pizza.
- The High Court delivered a key judgment on collective redundancies in Debenhams Retail Ireland Limited (In Liquidation) v Crowe.
- A public consultation was launched on the ‘right to request remote working’ provisions of the Work Life Balance and Miscellaneous Provisions Act 2023. It has been widely reported that only one claim in respect of the right has been upheld since the legislation came into force in March 2024.
GENDER PAY GAP REPORTING AND DEVELOPMENTS IN PAY TRANSPARENCY
The threshold for gender pay gap reporting has reduced to employers with 50 or more employees. Those employers must choose a snapshot date in the month of June 2025 and publish their report no later than five months after that.
Earlier in the year, the Minister for Children, Disability and Equality announced that the long-awaited gender pay gap reporting portal would be launched in autumn 2025. However, it is only being launched on a voluntary basis with partner organisations, Ibec and the 30% Club. The legal requirement remains for in-scope employers to publish their report on their website, or in another manner accessible to employees and the public.
Many EU countries are publishing draft legislation to implement the EU Pay Transparency Directive (EU) 2023/970 (the PTD), which must be transposed by June 2026. In January 2025, the General Scheme of the Equality (Miscellaneous Provisions) Bill was published, which contains provisions to transpose article 5 of the PTD. This obliges employers to (i) include salary levels or pay ranges in job advertisements, and (ii) refrain from requesting information about a job applicant’s current or former remuneration. That draft legislation is currently being revised, and we await publication of the updated version.
Please visit our Gender Pay Gap Reporting & Pay Transparency Hub for further updates, resources and guidance for employers.
COLLECTIVE REDUNDANCY: KEY JUDGMENT ON COMMENCEMENT OF EMPLOYEE CONSULTATIONS
Background
In 2020, Debenhams closed its stores in Ireland with the loss of over 1,000 jobs. A huge volume of employment claims followed, alleging breach of information and consultation requirements in a collective redundancy. It was agreed a ’test case’ would be heard, in which Ms Crowe was the complainant.
Section 9 of the Protection of Employment Acts provides that an employer must initiate consultations with employees’ representatives where it proposes to create collective redundancies “at the earliest opportunity” and in any event at least 30 days before the first notice of dismissal is given. Section 10 provides that an employer must supply the employees’ representatives with all relevant information relating to the proposed redundancies. It sets out a non-exhaustive list of information which must be included.
A breach of either section may constitute an offence, and an employee may be awarded such amount as is just and equitable, up to a maximum of four weeks’ remuneration.
In the case of Debenhams, it decided to cease trading on Thursday, 9 April 2020 and staff were notified on the same date. The Easter bank holiday weekend then followed. On Tuesday, 14 April 2020, the administrators of Debenhams UK directed the board of Debenhams Ireland to seek the appointment of provisional liquidators and a letter issued to staff that addressed the requirements of section 10 but made no reference to consultations. A first consultation meeting took place on Friday, 17 April 2020.
Ms Crowe claimed that consultations should have commenced sooner and that Debenhams failed to meaningfully consult with employee representatives in contravention of the legislation.
Workplace Relations Commission (WRC)
The WRC found that consultations commenced on 17 April 2020, but should have commenced in good time and at an early stage, which was no later than 9 April 2020. It awarded Ms Crowe the maximum four weeks’ remuneration.
It also concluded that information which had been requested by the trade union was relevant, that it was not provided, and that not having that information frustrated the trade union’s capacity to make constructive proposals. The WRC also awarded four weeks’ remuneration to Ms Crowe in respect of that breach.
Labour Court
The Labour Court, on appeal, agreed with the WRC that the consultation did not commence in good time and/or at the earliest opportunity. In terms of section 10, the Labour Court took a different view to the WRC and found that the issues raised by the trade union had in fact been addressed by the liquidator. The decision of the WRC in that regard was set aside.
High Court
Debenhams appealed to the High Court. Debenhams submitted that there was no basis for awarding compensation to Ms Crowe and the Labour Court erred in:
- holding that the obligation to commence consultations arose on 9 April 2020
- finding that the process only commenced with the holding of the first consultation meeting on 17 April 2020
- finding that available options had been lost by that delay of eight days
In Debenhams Retail Ireland Limited (In Liquidation) v Crowe [2025] IEHC 141, the High Court ruled that the Labour Court was entitled to find that, as and from 9 April 2020, the board was compelled to consider making collective redundancies. However, the High Court found that, rather than commencing with the consultation meeting of 17 April 2020, the letter sent on 14 April 2020 constituted the start of the consultation process. While the word “consultation” was not used in that letter, it was clearly stated at the start of the letter that the information was being supplied in accordance with section 10. The High Court held that the consultation process is a process that can start in advance of the first consultation meeting by the provision of the information required by section 10. Accordingly, the Labour Court erred in finding that the consultation process commenced with the holding of the meeting on 17 April 2020.
The High Court took account of the fact that the events took place during an unprecedented lockdown due to Covid-19 and during the period leading up to and after the Easter bank holiday weekend. It accepted that the obligation to hold consultations “at the earliest opportunity” has to be considered within the practicalities of life on the ground at that time.
With regard to the finding that the delay from 9 to 17 April 2020 meant that certain unidentified options were no longer available due to the appointment of provisional liquidators in the interim, the High Court found that this was a finding made by the Labour Court without evidence, and therefore could not stand.
Finally, the High Court found that, as a matter of law, Ms Crowe suffered no loss by the delay and the Labour Court erred in awarding compensation to her. It highlighted that the power to award compensation under the Protection of Employment Acts “is not the imposition of a penalty against the employer”.
What does this mean for employers and responsible persons?
It is important to note that amendments to the Protection of Employment Acts were made with effect from 1 July 2024, widening the scope of those responsible for conducting information and consultation obligations, to not just employers, but “responsible persons”. A “responsible person” includes a liquidator, provisional liquidator, receiver, or any other person appointed by the court, where that person has assumed full responsibility for the management of the business.
The judgment provides welcome clarity for employers and responsible persons on the inherent connection between the provision of information and the commencement of consultation, particularly in its finding that the consultation process can start in advance of the first consultative meeting by the provision of information in accordance with section 10.
NEW LAW TO RESTRICT MANDATORY RETIREMENT BELOW 66
While the Employment Equality Acts prohibit discrimination on the grounds of age, an employer may nonetheless enforce a contractual retirement age (CRA), provided it can show that the CRA is objectively and reasonably justified by a legitimate aim, and that enforcing the CRA is an appropriate and necessary means of achieving that aim.
In 2024, the Supreme Court delivered an important judgment on the law relating to mandatory retirement in the case of Mallon v Minister for Justice (read our briefing here). A particular point of focus in the case was whether a blanket mandatory retirement age will be justifiable where individual assessment is possible. The Supreme Court held that there is no general requirement for individual assessment in order for a mandatory retirement age to be lawful pursuant to the Employment Equality Acts.
The Employment (Contractual Retirement Ages) Bill 2025 (the Bill) is currently making its way through the legislative process. A key aspect of the Bill is that it introduces a requirement to justify the CRA at the level of the individual employee.
The Bill applies to situations where an employee has a CRA that is less than the State pensionable age (66) and has completed their probationary period (if any). The Bill only applies to mandatory retirement ages set by contract and not those set by statute.
The key provisions of the Bill are as follows:
- An employee may notify their employer that they do not consent to retire at an age less than 66.
- The employer must not enforce the CRA of the individual employee concerned unless it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
- An employer who proposes to enforce the CRA must give the employee a written reasoned reply within one month of the date of notification.
- Penalisation or threat of penalisation of an employee for exercising or proposing to exercise their entitlements will be prohibited. Penalisation is very widely defined.
- An employee has the right to refer a complaint to the WRC relating to the employer’s non-compliance. The WRC may award reinstatement, reengagement and/or an award of compensation of up to two years’ remuneration (or €40,000, whichever is greater). The WRC’s decision may be appealed to the Labour Court.
- In circumstances of non-compliance by the employer, relief may not be granted under both the Bill and the Employment Equality Acts.
- Significantly, the Bill provides that an employer who, without reasonable cause, fails to provide a reasoned reply may be guilty of a criminal offence.
What does this mean for employers?
Where employers wish to rely on a CRA which is below 66, they will need to be prepared to document employee notifications and ensure reasoned replies issue within one month. They will also need to be prepared to demonstrate that the CRA is objectively and reasonably justified by a legitimate aim and that it is appropriate and necessary to achieve that aim.
In situations where there is a CRA of 66 or above, the provisions of the Bill will not apply and there will be no requirement to receive employee notifications and provide written reasoned replies. Employers may therefore wish to give this thorough consideration: weigh up the pros and cons of increasing any CRAs that are below the State pensionable age of 66, while bearing in mind that the Employment Equality Acts still apply irrespective of the age set as the CRA.
WRC PIERCES CORPORATE VEIL TO REVEAL EMPLOYMENT RELATIONSHIP
The WRC issued a significant decision in Paul Lingard v Randridge International Ltd (In Examinership), a case concerning the employment status of a construction/civil works manager and his entitlement to unpaid wages under the Payment of Wages Act 1991 (the Act). The written contract (the Contract) was between Mr Lingard’s company, PSL (Aberdeen) Ltd (PSL), and Randridge International Ltd (Randridge).
Randridge maintained that Mr Lingard could not be its employee, because there was a commercial relationship between two companies under the Contract and Mr Lingard simply owned and operated PSL.
Interestingly, Mr Lingard confirmed that he had accepted on entering the Contract that he was not an employee of Randridge. He admitted that he was familiar with the contractor/sub-contractor business model and confirmed that he had operated via such a model for a considerable period of time. However, he submitted that, other than for the fact Randridge did not deduct tax on payments made indirectly to him at source, his relationship with Randridge was identical to that of a directly employed employee.
What did the WRC decide?
The WRC had regard to the Supreme Court’s seminal judgment in Revenue Commissioners v Karshan Midlands (Ltd t/a Domino’s Pizza [2023] IESC 24 (read our briefing here). That judgment set out five factors to be considered whenever employment status falls to be determined.
Taking the first three factors in turn, the WRC found:
- The exchange of remuneration for work was in place, albeit between two commercial entities.
- While substitution was permitted under certain circumstances in the contract with PSL, it was a limited right and one that was never utilised.
- Day-to-day “micro” control was not possible over the work performed by Mr Lingard, but on “reading the contract closely the degree of control over the Complainant was quite explicit”. Examples provided of this control included contractual provisions in respect of deadlines, the necessity for clocking in/out, and the potential need for medical certification in cases of absence. There was also a restriction on Mr Lingard’s ability to take on other work during and after the Contract terminated.
All of the above led the WRC to find that “the 'Working Relationship' referenced by the Supreme Court was on, the balance of all probabilities, that of Employee to Employer – A Contract Of Service”. The WRC went on to decide that the sum due to PSL by Randridge, totalling €8,500, should be considered wages under the Act and ordered Randridge to discharge this sum to Mr Lingard personally.
What does this mean for your business?
This decision makes clear that, in certain circumstances, there is scope to look behind the corporate veil to determine the ‘true’ relationship between parties.
COLLECTIVE BARGAINING
In line with its obligations under the EU Adequate Minimum Wages Directive (EU) 2022/2041 (the Directive), the Government published an action plan to strengthen collective bargaining on 5 November 2025. Less than a week later, the Court of Justice of the EU (the CJEU) delivered its judgment in Denmark v Parliament and Council. Denmark had challenged the validity of the Directive as undermining the division of powers between the EU and Member States. The CJEU upheld the legality of the Directive almost entirely, save for two provisions concerning the imposition of factors that must be considered in determining minimum wages and on applying wage indexation to decrease minimum wage.
THE FUTURE OF THE EUROPEAN WORKS COUNCIL
A European Works Council (EWC) is an information and consultation body representing workers on transnational issues in multinational companies with more than 1,000 employees and at least 150 employees in two EU/EEA countries. EWCs comprise employees’ representatives from each EU/EEA country in which a business has employees. They operate separately from national information and consultation bodies.
A new EU directive, which will revise the original EWC Directive (2009/38/EC), was approved in October 2025. At the time of writing, the revised Directive is waiting to be signed into law. It will come into force 20 days after it is published in the Official Journal of the EU and Members States will then have two years to transpose it into national law. Key changes include:
- Exempted organisations: Under the original EWC Directive, undertakings with a transnational information and consultation agreement concluded before 23 September 1996 are exempt, and employees in these undertakings are unable to request the establishment of an EWC. This exemption will no longer apply once the revised Directive takes effect.
- Transnational matters: The scope of transnational matters will be broadened to include situations where measures taken by management can “reasonably be expected to affect” workers in one Member State and workers in at least one other Member State can reasonably be expected to be affected by the consequences of those measures.
- Gender representation: There will be a target of 40% for allocation of seats to members of each gender on the EWC.
- Confidentiality: The original EWC Directive provides that where sensitive information is shared with EWCs, management may stipulate that such information is shared in confidence and should not be disclosed further. To prevent the excessive use of such restrictions, the revised Directive provides that this should only occur in the legitimate interest of the undertaking concerned and where management provides a reasonable justification.
- Access to justice: The revised Directive seeks to strengthen provisions on access to judicial proceedings and (where relevant) administrative proceedings.
- Penalties: The revised Directive provides that dissuasive penalties are required, including financial penalties, taking into account the gravity, duration, consequences and the intentional or negligent nature of the offence.
LOOKING AHEAD
- The long-awaited auto-enrolment scheme will commence from 1 January 2026. All employees aged 23-60, who are earning at least €20,000 per year and not already in a qualifying pension arrangement, will be automatically enrolled in ‘My Future Fund’.
- The Employment (Contractual Retirement Ages) Bill 2025 is due to be enacted, giving employees a right to object to retirement before the age of 66.
- The deadline for implementation of the EU Pay Transparency Directive is 7 June 2026. Details of Ireland’s implementing legislation are eagerly awaited.
- The Equality and Family Leaves (Miscellaneous Provisions) Bill is due to be published. This will provide for amendments to the Employment Equality and Equal Status acts, arising from their review. It will also provide for surrogacy leave and leave for pregnancy loss.
- The EU Platform Work Directive must be implemented into national law by 2 December 2026. Platform work is work organised through a digital labour platform and performed in the EU. For companies operating in the digital labour sector, the impact of this directive will be profound. Employers should consider whether they come within its scope and if so, plan their compliance strategy.