Employment Law & Employment Relations Review
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Transcript of Employment Law & Employment Relations Review
Employment Law and Employment Relations Review
CIPD Western Region17th November 2010
Dr. Michelle O’Sullivan
University of Limerick
Review Topics
• Employment Relations– JLC constitutional challenge – Croke Park– Air traffic controllers
• Employment law – Cases– Research on equality cases– European Developments
JLC Sectors • Constitutional cases by IHF and Quick
Service Food Alliance
• Industrial Relations Amendment Bill (2009)– JLCs to stay– Inability to pay clause
• Competitive disadvantage, displacement of workers?
• Consent of employees?
JLC Constitutional Challenge• QSFA constitutional challenge still to be
heard
• 50-60 NERA prosecutions pending constitutional challenge
• Estimated unpaid wage liability to business = €50,000-€100,000
• Frank Fahey: NERA budget should be cut
Air Traffic Controllers Dispute
• The IAA suspended 15 controllers for following a union instruction not to engage in a number of disputed new work practices
• Debate over introducing a law banning industrial action in essential services
• History?
Croke Park Agreement
Unions Got: In Return For:
No compulsory redundanciesPay freezeRetirement pay calculation
RedeploymentOrganisational rationalisationPerformance managementMerit based promotionNo strike clausePay review 2011
Croke Park: Key issues• “Subject to no currently unforeseen budgetary
deterioration”
• Delivery of reforms
• Pensions– Sept 2010 - LRC proposals for pensions based on
average salary, not final salary– Index-linking pension issue postponed to 2014
Employment law developments
• Redundancy
• Dismissals
• Race equality
• Technology
• EU developments
Redundancy Requirements
• Employer should – Consult with employees prior to restructuring– Establish criteria for selection for redundancy – Inform employees of these criteria – Enquire about employee’s ability to do other
work– Allow employee being made redundant to make
representations as to why they should be retained.
– Inform employee of right of appeal
Constructive Dismissal
“It is not open to an employee to demand that a grievance be investigated in any particular way. An employer is entitled to some latitude in how he goes about such an investigation. However, one thing is clear; he must conduct an investigation that is fair and thorough”
Doyle Fleming v National Irish Safety Organisation
Dismissal Injunctions
• Bank manager, Irish Life & Permanent
• CEO, IRS Advertising
• General Manager, Citywest Hotel
• HR Manager, Iarnrod Eireann
Granting Injunctions
1. Employee entitled to the benefit of fair procedures. What fair procedures demand depends on the terms of the employee’s employment and & circumstances of proposed dismissal.
2. Can the employee establish that he has a strong case that he would be successful at the trial of the action?
3. Court must be satisfied that damages would not be an adequate remedy.
Equality: Race
• Failure of the company to provide health and safety training and documentation in a language employee understood amounted to discrimination.
• Stukonis v Coalport Building Company
Equality Tribunal Cases: Claimants
• Grounds: gender, age, disability, race• 80% of private sector cases from services• 1/3 claimants not represented
– Most successful representatives: Equality Authority, unions, private legal representation
• 65% claimant failure rate– Private sector claimants win more than
public sector• Average compensation
– €11,689
Technology in Employment• AWear employee dismissed over comments on
Bebo– Won unfair dismissal case
• GMIT lecturer – damage to reputation in email– Out of court settlement
• DCU lecturer dismissed over comments on blog– Won €45,000
• PWC email
European Developments
• Temporary Agency Work Directive
• EU Directive on self-employed
• Parental leave
• Pregnant workers
• Third party harassment
Temporary Agency Worker Directive
• Must be implemented December 2011• Issues to be decided
– Qualifying period
– What pay elements included
• Consultation on the Directive
• Views can be submitted by 30 November 2010 to [email protected]
EU Directive on self-employed workers and assisting spouses
• Self-employed women & assisting female spouses
• Equivalent access to maternity leave as for employees, but on a voluntary basis.
• Right to social security coverage on an equal basis as formal self-employed workers.
Parental leave Directive• Longer leave – each parent will be able to take
four months off per child. • Extra month cannot be transferred from one parent
to the other• Employee applying for or taking parental leave
will be protected from any less favourable treatment.
• On return from parental leave, right to request changes to working hours– employers obliged to balance the needs of
employee & company.
Pregnant Workers Directive
• Changes approved by European Parliament• Minimum leave 20 weeks paid• Minimum 6 weeks leave after birth• No dismissal of pregnant workers from beginning
of pregnancy to at least 6 months following end of maternity leave.
• Restrictions on night work/overtime before, during & after birth
• Paid paternity leave 2 weeks
Third party harassment & violence
• Guidelines by EU-level employers' and trade unions'
• For healthcare, education, local and regional government, commerce and private security sectors.
• The guidelines include:– Increasing awareness and understanding of the issue
among employers, workers and public authorities (such as health and safety agencies, the police);
– Risk assessment of potential problems and responses
– Training managers and workers in how to prevent or, if necessary, manage the problem
Other EU Developments• EU Council
– adapting citizens’ skills to new challenges– modernising education systems; – promoting the participation of the young/old
• Council call for increased involvement of older people in society – removing obstacles to employment – improving employment conditions
• ECJ: Pay of pregnant employees moved/suspended for health and safety (Parviainen)
Some good news!
• From 2003-2009:– Employees in private sector reported increased
job satisfaction between 2003 & 2009– Employees reported higher levels of
organisational commitment– Consultation & flexible working associated
with job satisfaction– ESRI National Workplace Survey
THANK YOU