Employment law is constantly evolving and changing. Trends appearing are usually in response to important new case law and legislation, the work of politicians with a particular passion, or in response to global movements. The trends appearing from late 2017 and which will likely make an impact in 2018 are no different and will bring their own challenges and opportunities. We outline these trends in this article.
Mediation Act 2017
The Mediation Act 2017 commenced on 1 January 2018 and is now fully in force. Although the Act received much commentary and debate, there was comparatively little debate on its relationship with employment law. This occurred because of the non-application under Section 3(1)(b) of the Act to disputes that fall under the functions of or being investigated by the Workplace Relations Commission (WRC) including disputes under Part 4 of the Workplace Relations Act 2015. However, under closer scrutiny it is clear that the Act will have some impact on employment law claims outside of the WRC mechanism itself, such as breach of contract claims, bullying and stress related claims and gender discrimination claims, to name but a few. These changes are more pertinent for the moving party and will require solicitors to advise their client to use mediation in the first instance.
Gender Pay Gap
Gender equality took a major leap forward in February 1918, with the right to vote given to some women in Ireland and the UK. As we commemorate the centenary of those events and the first trickles of female suffrage this spring, we are cognisant that there are still gaps in gender rights in Ireland and nowhere more clearly is it still felt as with the gender pay gap. The existing pay gap (from 2015 Eurostat data) is 13.9%, an already too-high figure. The Irish Human Rights and Equality Commission (Gender Pay Gap Information) Bill 2017 is an attempt to reduce the pay gap by giving the Commission powers to require employers with 50 or more employees to report on the gender pay gap in their business. The Bill passed the Seanad Committee Stage in October 2017 and is currently awaiting Report stage.
The UK implemented similar rules under the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 which took effect from 6 April 2017. Their reporting obligations are similar to those proposed in Ireland but crucially only apply to companies with 250 or more employees. The initial reporting deadline is 30 March 2018 and while it remains to be seen how these obligations have impacted companies, it has been reported that only one-sixth of the applicable employers had submitted reports as of 2 March 2018.
On 9 August 2017, the Department of Justice and Equality launched a public consultation on the gender pay gap. Following the consultation, a summary paper was delivered which identified the following five primary factors as contributing to the gender pay gap: non-transparency of pay structures, women and caring responsibilities, unconscious bias, occupational and sectoral gender segregation and childcare.
Gender discrimination is often a basis for claims in the WRC and with the heightened awareness in 2018 of disparities in gender treatment and pay, more claims are likely.
Following high-profile sexual harassment cases in the USA and the UK in 2017 and 2018 and with the heightened awareness in 2018 of disparities in gender treatment, the #Time'sUp and #MeToo movements have given women globally an opportunity to speak out on their treatment in society and in workplaces. In Ireland, under the Employment Equality Acts 1998-2015, sexual harassment in the workplace is against the law and the Department of Justice, Equality and Law Reform published a Code of Practice on Sexual Harassment and Harassment at Work in 2012 in an attempt to codify the issues. The Equality Commission for Northern Ireland recently released statistics confirming that there was a 31% increase over five years in complaints alleging sexual harassment in the workplace. With social media movements encouraging women to fight back against sexual harassment, we are also likely to see an increase in employment claims taken on this basis in Ireland this year. One thing that has become very clear is the importance for Irish employers to have appropriate sexual harassment and diversity policies and training in place and to create an environment where women are encouraged to speak up where they feel victimised.
Equality Law Grounds of Discrimination
Two Private Members' Bills introduced in 2017 could potentially lead to many more employee equality claims if enacted. The Equality (Miscellaneous Provisions) Bill 2017 and the Equality (Miscellaneous Provisions) (No. 2) Bill 2017 aim to introduce 'disadvantaged socio-economic status' and 'mental health status' as two new grounds of discrimination under the Employment Equality Acts 1998-2015 and the Equal Status Acts 2000-2015. However, it seems at present that these Bills do not have majority support and this will likely stall their passage through the remaining stages of the legislative process.
While it would appear that precarious zero-hour or low hour contracts are not such a prevalent issue in the Irish workplace, in December 2017, Minister Regina Doherty published the Employment (Miscellaneous Provisions) Bill 2017. The Bill aims to provide a greater degree of certainty and protection for employees with precarious working hours through a variety of measures. The Bill is currently with the Select Committee on Employment Affairs and Social Protection. Among other things, the Bill would amend section 14 of the Organisation of Working Time Act 1997 to effectively prohibit zero-hour contracts in Ireland. Section 15 of the Bill aims to introduce a system of banded hours where an employer's contract does not reflect the number of hours actually worked. These changes to the Organisation of Working Time Act 1997 would potentially give employees more grounds to bring claims. However, there have been criticisms that the draft Bill, if enacted as it currently stands, would lead to significant costs and administration for employers and difficulties for employees.
The issue of active aging and the associated employment law issues of retirement and mandatory retirement age is currently a hot news topic and is the source of much debate. Current law in Ireland allows for mandatory retirement ages in contracts and policies with certain requirements.
A major reason for current debate on the issue is the widening 'pension pay gap' as the State pension age increases beyond the traditional mandatory retirement age of 65. The Employment Equality (Abolition of Mandatory Retirement Age) Bill 2016 is an opposition led Private Members' Bill and is currently with the Select Committee on Justice and Equality. This Bill, if implemented as it is currently drafted, would have the effect of restricting an employer's ability to contractually impose a mandatory retirement age. The WRC also published a new code of practice on longer working which was enacted as a code of practice for the purpose of the Industrial Relations Act by SI 600/2017 . The Code aims to provide a toolkit for employers on dealing with requests for working beyond the traditional mandatory retirement age and also gives advice on best practice. Employers will need to review and carefully consider their company's retirement policy to be in a good position to defend age-related discrimination claims. There will be much further debate on active aging in the workplace in 2018.
Speaking of the multi-generational workforce, employers are becoming increasingly aware that 'millennials' have a different mind-set to previous generations of workers and we are all just beginning to understand how this new generation of employees will change the culture of workplaces in the coming years. As this generation grows into tomorrow's leaders they will impact how we view active aging, artificial intelligence and flexible working in Ireland's workplaces. Author Meagan Johnson in From Boomers to Linksters: Managing the Friction Between Generations at Work goes one step further and explores how the next generation, Generation Z or 'Linksters' will differ from 'millennials' and further impact the workplace. One thing that defines this generation born after 2002, is that they have grown up with technology and social media and all of these influences will impact how they view employment and the workplace.
Artificial Intelligence and the Future of Work
Many commentators suggest that 2018 will be the beginning of the "Fourth Industrial Revolution", ushering in an era where the use of artificial intelligence (AI) begins to be common place in workplaces. This is both an exciting and unsure time for employers and employees alike. It remains to be seen how employees can use AI to benefit their working lives and if AI will ultimately result in a reduction in certain roles. AI might very well lead to claims from employees as well.
These are but some of the interesting trends that will impact employment law in Ireland in 2018. For further update and analysis please watch out for our articles throughout the year.