Ibec Employment Law Conference 2024, The Employment Paradox – Nurturing Relations, Navigating Regulations
Partnered by Beo, DeCare Dental, SD Worx Ireland and Recruit Ireland.com, ‘The Employment Paradox – Nurturing Relations, Navigating Regulations’, was the theme of Ibec’s Annual Employment Law Conference 2024, held in the Dublin Royal Convention Centre, on 18 April.
The central theme of this year’s conference, the Employment Paradox aimed to delve into changing policies surrounding the employer-employee relationship. At the event, speakers explored the imperative for employers to proactively anticipate and adapt, particularly in the context of the technological revolution, swift legislative transformations, and growing employee expectations.
The conference also featured a roundup an employment law policy including a number of significant EU Directives that will influence employment legislation in Ireland.
Uncoordinated and excessive labour cost increases, a challenge for employers
In her opening address at the conference, Ibec’s Executive Director of Employer Relations Maeve McElwee said that 2023 was another exceptionally busy year for employment rights and observed that the legislative agenda for 2024 looks equally active.
Ms McElwee added that there has been a significant uplift in the amount of costs arising from employment related legislative provisions that the Government have given effect to into the course of this year.
Double digit increases in the minimum wage, effective from January 1st, along with a series of additional changes in quick succession—modifications to statutory sick pay, the impending introduction of pension auto-enrolment, substantial increases in the salary thresholds for work permits, and impending enhanced protective leave entitlements, Ms McElwee stated, are imposing an unrealistic burden on businesses.
While the economy is in a robust position with sustained growth, costs are rising rapidly, and many businesses are struggling to maintain margins. Business leaders’ concerns about the risk to cost competitiveness, she noted, are clear from the findings of Ibec’s latest leadership sentiment survey where the increasing cost of doing business was revealed as the single most significant challenge for business leaders.
Referring to the publication in March of the impact report on government-imposed labour costs on business, Ms McElwee said that the report’s findings align with Ibec’s analysis and advocacy. The report’s effectiveness however, she cautioned, hinges on how support is provided to vulnerable companies and sectors facing unsustainable cost hikes due to government policies.
She told delegates that while many of the changes introduced on foot of government labour market policy decisions have merit, the primary concern is the lack of coordination, resulting in these costs unnecessarily converging.
Ms McElwee commented that that while Ibec welcomes the recent indications by the new Taoiseach on prioritising support for businesses most impacted, Ibec believes that the PRSI system is the most administratively straightforward and targeted way to address the issues. The Government, she indicated, must introduce a PRSI rebate for the most exposed companies in line with their exposure to rising costs, along with increasing the top-rate employer PRSI threshold above the minimum wage.
Furthermore, Ibec has been calling for a commitment to a new ‘Competitiveness Charter’ which sets an annual ceiling on the total amount of additional labour market costs which will be imposed on business in any single year.
In her address, Ms McElwee also mentioned a significant challenge for employers over the coming years will be how to fit the trend for collective bargaining issues in the context of all the individual employment rights coming through and what she described as the hyper individualisation of work.
Employment law policy round up
The first topic under the spotlight in the presentation delivered by senior legal director at Ibec, Pauline O’Hare was the new right to request flexible and remote working arrangements. Delegates were reminded that the WRC Code of Practice on the right to request flexible and request remote working arrangements as required by Part 4, Section 31, of the Work Life Balance and Miscellaneous Provisions Act 2023 was published on 7 March. In line with Section 21 of the 2023 Act, an employer must consider the request of work remotely having regard to the needs of the business, the needs of the employee, and the requirements of the Code. Ms O’Hare stressed that an employer, in line with the Code of Practice, should consider a request in an "objective, fair and reasonable manner” and noted that employers should also be mindful of the protected grounds under the Employment Equality Acts 1998, as amended, when dealing with such requests.
Where an employer cannot approve the remote working arrangement sought, the Code of Practice states that the parties should consider an alternative arrangement where this is feasible, taking into account the specific circumstances of each individual case.
Strongly advising against employers adopting any kind of blanket policy wording stating that certain specified roles will not be eligible for remote working, as every employee has a right to request a remote working arrangement under the Act, Ms O’Hare emphasised the importance of considering requests from employees on a case-by-case basis. She urged employers to be cognizant of the fact that the Work Life Balance Act 2023 permits an employee to take a claim to the Workplace Relations Commission if the employer has not dealt with the request according to the statutory procedure outlined in the Act, and for employers to be aware that the Code of Practice is admissible in proceedings before the WRC and/or Labour Court. She reminded employers that although the WRC/Labour Court cannot look at the merits of an employer’s decision, it can look at the process and procedure leading up to the employer’s decision. Attendees were also alerted to the fact that at some point not earlier than March 2025 and no later than March 2026, there will be a review of the right to request flexible working arrangement, to consider if the right could be extended beyond parents and carers to all employees.
In her policy round up, the Ibec solicitor also drew delegates attention to the Private Member’s Maternity Protection (Amendment) Bill 2024, which aims to provide for postponement of maternity leave where a mother has been diagnosed with cancer or other serious illness (illnesses carrying a high risk of mortality or frequent hospitalisation) during pregnancy. Ms O’Hare said the Bill would, in her view, create a legal difficulty in paving the way for potential claims of discriminatory treatment from individuals in a comparable situation with a different disability, given the definition of the disability ground under section 6(2)(g) of the Employment Equality Act 1998, as amended. She noted that the Bill, is only at second stage of the Dail and that Ibec would be monitoring its progress closely.
EU Directives of relevance to Irish employment law
She referenced as well, a number of significant policy initiatives including the EU Directive on Adequate Minimum Wage, the proposed revision of the European Works Council Directive, the EU Directive on Pay Transparency and the Platform Workers Directive.
On the Adequate Minimum Wage Directive, Ms O’Hare noted that the greatest focus for Ireland is on the promotion of collective bargaining aspect since with the work of the Low Pay Commission and the move to the Living Wage, Ireland should need little legislative amendment to transpose those aspects of the Directive by November 2024. However, the same Directive requires a plan to be put in place by member states to promote collective bargaining, but that plan does not need to be in place until late 2025, as confirmed by the European Commission. She remarked that recommendations contained in the 2022 LEEF Report by the High Level Group on Collective Bargaining contained the ‘good faith’ engagement proposal (for non-union employers). This good faith engagement amounts to a ‘one-off meeting’ – with no obligation whatsoever to have more than one meeting, nor to reach an agreement, nor to recognise or negotiate with the union. In addition, a trade union would need to establish a threshold of membership amongst the grade/group/category before triggering such a meeting. Ms O’Hare reminded delegates that we must wait to see if these recommendations would form part of the action plan, and that the action plan would not need to be transposed by November 2024.
Ibec has cautioned that that any collective bargaining related initiatives should not interfere with Ireland’s IR framework and voluntarist system, she said.
Reflecting on the various EU Directives due to be transposed into national legislation, Ms O’Hare said the one of the most notable is the Pay Transparency Directive
AI in the Workplace
According to Harry Wall, Associate Legal Director at Ibec, 2023 was the year of Artificial Intelligence. Chat GPT had a landmark 100,000 users within 2 months of its release - and developments within the area of AI continue at a breakneck pace.
The EU’s draft Artificial Intelligence Act, more commonly referred to as the AI Act, Harry Wall observed, is set to be the first the first legislation of its kind attempting to regulate AI. The Act follows a risk-based approach, distinguishing between different risk categories: unacceptable, high, limited and minimal. These categories have been established based on the level of risk an AI system poses to health, safety, and fundamental rights.
The Act predominantly imposes obligations on 'providers' (developers) rather than on 'users' (deployers) of high-risk artificial intelligence (AI) systems. While some of the risk posed by the systems listed in Annex III of the AI comes from how they are designed, significant risks stem from how they are used.
Mr Wall added we are already witnessing a proliferation of the use of AI in the employment context, with areas such as recruitment, performance management and monitoring and surveillance being key areas of use. Use of external AI programs by employees, with or without the sanction of employers, is also on the rise.
The use of AI in key workplace decisions in relation to recruitment, selection, promotion and termination are all considered automatically “high risk” under the EU AI Act.
The mandatory AI Act requirements for providers of high-risk AI systems include: a risk management system; data governance and management; the development of technical documentation, automatic record-keeping systems, transparency and the provision of information to users; guaranteeing human oversight, and ensuring accuracy, robustness and cybersecurity
Providers of high-risk AI systems are responsible for ensuring compliance with these requirements before placing such systems on the market or putting them into service. In addition, they must develop and maintain a quality management system and take corrective action if the AI system does not satisfy the AI Act requirements noted above.
Mr Wall advised delegates that AI is here to stay and urged to plan ahead and bake in compliance and training now.
Pay Transparency Directive will result in some employers being obliged to carry out pay assessment, in co-operation with employee representatives
In the final session of the day, Nichola Harkin, Ibec’s Head of Employment Law Services linking back to the reference made earlier in the day to the Pay Transparency Directive, informed attendees that the EU Directive on Pay Transparency introduces a number of pay transparency measures including transparency in pay setting, pre-employment pay transparency obligations, employee information rights to data and enforcement measures . The Directive, Ms Harkin explained, is part of a broader package of measures and initiatives addressing the root causes of the gender pay gap and economic empowerment of women. While the Directive provides for gender pay gap reporting, this has already been introduced into Irish law since 2022. However, once the proposed Pay Transparency Directive is transposed into Irish legislation, by June 2026, further action by employers will be required. Such amendments will include, where pay reporting reveals a gender pay gap of at least 5% in any category of workers doing the same work or work of equal value and where the employer cannot justify the gap on the basis of objective gender-neutral factors and has not remedied such unjustified difference within 6 months of the pay report, employers will be obliged to carry out a pay assessment, in co-operation with employee representatives.
This year’s Ibec law event for HR practitioners also featured presentations on the top 5 cases in the last 12 months and a presentation on dealing with addiction at work. In addition, a number of panel discussions took place over the course of the day focussed on the respective areas of retirement and pensions, managing harassment and aggression in the workplace and diversity & inclusion.
Lorraine Parkes, Senior Executive, Ibec Knowledge Centre
