Employment Law Review – Highlights of 2018 and what to expect in 2019 – Lexology

In the first of our reviews of 2018, we outline some of the major developments that occurred in Employment Law:

Powers of Adjudication Officers

One of the major developments in 2018 came late in the year with the publication of the decision in the case of Minister for Justice and Equality and The Commissioner of the Garda Síochána v Workplace Relations Commission (Case C‑378/17). This case concerned three individuals who were excluded from recruitment as police officers to An Garda Síochána (the Irish police force) as they were above the maximum age for recruitment laid down by national Garda regulations. The police officers sought disapplication of the regulations on the basis that they conflicted with EU equality law. The Court of Justice of the European Union determined that national courts and other organs of the State who, in the exercise of their powers apply EU law, have a duty if necessary to refuse to apply a provision of national law if it conflicts with EU law.

Legal Representation in Disciplinary Inquiries

The Court of Appeal, overturning a High Court decision, emphasised that employees who are the subject of internal disciplinary inquiries will not normally be entitled to have legal representation during such inquiries. In the absence of a contractual right to avail of legal representation, an employee must establish “exceptional circumstances” to justify the attendance of a lawyer.

Warning to employers to restrict excessive working hours

Another significant case in 2018 was the decision of the Labour Court in the case of Kepak v Gráinne O’Hara. The employee alleged that her workload was so great that she was often required to work almost 60 hours per week to fulfil her duties. The Labour Court awarded the employee €7,500 because (among other factors) the employee regularly replied to work-related emails late at night. The Labour Court found that by failing to monitor and curtail the employee’s working hours, the employer “permitted” the employee to work in excess of the statutory maximum hours of work, making it clear that the duty on employers to ensure compliance with working time legislation is proactive.

So long zero hours contracts…

The Employment (Miscellaneous Provisions) Act 2018 will become effective no later than 24 March 2019. In summary, the Act:

  1. requires employers to provide new recruits with 5 core terms of employment in writing within 5 days of starting employment;
  2. prohibits the use of zero hour contracts, except in very limited circumstances;
  3. introduces a new entitlement to banded hours which better reflect actual hours worked in a reference period; and
  4. provides for certain minimum payments to employees who are required to be available for work and work is not provided.

Employers who breach the Act may face criminal convictions and complaints by employees to the WRC.

Hello Gender Pay Gap Reporting

2019 will also likely see the introduction of gender pay gap legislation requiring certain employers to publish information relating to the pay of employees for the purpose of showing whether there is less favourable treatment in the pay of male and female employees.

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