Employment Equality (Amendment) Bill 2013

The Employment Equality (Amendment) Bill 2013, published on 25 February 2013 proposes to amend the existing definition of discrimination in the Employment Equality Acts 1998-2011, to include discrimination on the grounds of gender identity.

Section 2(1) of the Employment Equality Acts will be amended to include “gender identity” which is defined in the Bill as:

Each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the person’s sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other experience of gender, including dress, speech and mannerism.”

The Bill will now have to be referred to a Committee where amendments may be made to it before being passed by the Seanad and the Dáil before it becomes law.

If the Bill is implemented, employers will need to update Employee Handbooks, and Discrimination and Harassment Policies to include the ground of gender identity and to ensure fair working practices for transsexual and transgender employees.

Extension of Parental Leave

The European Union (Parental Leave) Regulations 2013 were implemented on 8 March, 2013, and extend the entitlement to parental leave from 14 to 18 weeks.

Parental leave is provided for under the Parental Leave Acts 1998 - 2013. The Acts entitle parents to unpaid parental leave for each child under the age of 8. Under the new Regulations parental leave can be taken for a child up to the age of 16 years if the child has a long term illness or disability. Previously parental leave could only be taken for a child up to the age of 16 if the child had a disability.

In addition, the new Regulations allow parents to request a change in their working hours upon their return from parental leave. Employers do not have to accede to such requests but are obliged to consider them.

European Parliament Proposal to Cap Bankers' Bonuses

On 16 April 2013, a European Parliament proposal to implement a cap on the bonuses received by employees in the financial services sector was passed. The proposal is part of a wider proposal to stabilise the financial services industry in Europe.

It is proposed that:

  1. The salary to bonus ratio to be fixed at 1:1, and can be raised to 1:2 if approved by 66% of shareholders owning half the shares represented, or 75% of votes if there is no quorum.
  2. A minimum of 25% of any bonus over 100% of salary must be deferred for at least 5 years.
  3. A bonus is only paid if it is sustainable according to the financial situation of the company as a whole.

The above proposals will apply to all employees in the financial services industry classified as ‘material risk takers’, and includes those earning over €500,000 a year, and those who receive a bonus of more than €75,000 which is worth at least three quarters of their salary.

The proposal has been sent to the Council of Ministers for formal approval, and is expected to be published by 30 June 2013. If implemented by this date, the cap will come into effect on 1 January 2014, and will restrict bonuses paid in 2015 for performance in 2014.

Registered Employment Agreements Held to be Unconstitutional

On 9 May 2013, the Supreme Court held that the Registered Employment Agreement (REA) system for determining pay rates and working conditions is unconstitutional.

This decision is likely to have significant consequences for employers and employees in the various sectors governed by REA’s, including electrical, construction, retail and printing.

The Supreme Court held that while the legislature may delegate the power to make administrative rules and regulations, and to exercise certain functions under statute to subordinate bodies, such delegated authority should not, and could not, extend to law-making.

The immediate impact for employers in any sector previously covered by an REA is that such employers may hire new employees on terms and conditions which are less favourable than those set by the REA’s.

For existing employees whose terms and conditions of employment complied with the requirements under a particular REA, the Minister for Jobs, Enterprise and Innovation, Richard Bruton, in a statement issued following the decision of the Supreme Court, stated that existing contractual rights of workers in sectors covered by REA’s are unaffected by the ruling, and that contractual rights can only be altered by agreement.

With respect to the Minister, we do not believe this issue to be black and white and depending on the circumstances, including the wording of the employment contract, if any, there may be situations where employers may lawfully vary certain terms arising out of this significant decision.

For a more detailed analysis of this decision we refer you to a recent article published on our website.

New National Vetting Bureau

The National Vetting Bureau (Children and Vulnerable Persons) Act, 2012 was signed into law by the President of Ireland on 26 December 2012. It is anticipated that the Act will come into force this month.

The National Vetting Bureau created under the Act will replace the current Garda Central Vetting Unit.

The purpose of the Act is to provide a legislative basis for the compulsory vetting of persons who seek positions of employment relating to children or vulnerable persons. Previously, persons applying for such positions were vetted on a non-statutory basis in the absence of clearly defined vetting procedures.

Once the Act comes into force, any relevant organisation which has not already registered with the National Vetting Bureau must apply for registration.

The Act applies to those involved in ‘any work or activity which is carried out by a person, a necessary and regular part of which consists mainly of the person having access to, or contact with children in’:

  • Childcare Services
  • Schools
  • Hospitals and health services
  • Residential services or accommodation for children or vulnerable persons
  • Treatment, therapy or counselling services for children or vulnerable persons
  • Provision of leisure or physical activities to children or vulnerable persons (unless this in incidental to the provision of services to a mixed group including adults)
  • Promotion of religious beliefs

The Act does not apply to any work or activity undertaken in the course of a family relationship or to persons who assist occasionally and on a voluntary basis in certain activities or events be they school, sport or community related.

Under the Act it will be an offence to engage a person to do relevant work or activities relating to children or vulnerable persons unless that person has been subject to the vetting procedures under the Act. Sanctions for failure to properly vet employees include fines up to €10,000 and/or imprisonment.