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Employment Law and Employment Relations Review CIPD Western Region 17 th November 2010 Dr. Michelle O’Sullivan University of Limerick

Employment Law & Employment Relations Review

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Seminar to Chartered Institute of Personnel & Development Western Branch 2010

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Page 1: Employment Law & Employment Relations Review

Employment Law and Employment Relations Review

CIPD Western Region17th November 2010

Dr. Michelle O’Sullivan

University of Limerick

Page 2: Employment Law & Employment Relations Review

Review Topics

• Employment Relations– JLC constitutional challenge – Croke Park– Air traffic controllers

• Employment law – Cases– Research on equality cases– European Developments

Page 3: Employment Law & Employment Relations Review

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?

Page 4: Employment Law & Employment Relations Review

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

Page 5: Employment Law & Employment Relations Review

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?

Page 6: Employment Law & Employment Relations Review

Croke Park Agreement

Unions Got: In Return For:

No compulsory redundanciesPay freezeRetirement pay calculation

RedeploymentOrganisational rationalisationPerformance managementMerit based promotionNo strike clausePay review 2011

Page 7: Employment Law & Employment Relations Review

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

Page 8: Employment Law & Employment Relations Review

Employment law developments

• Redundancy

• Dismissals

• Race equality

• Technology

• EU developments

Page 9: Employment Law & Employment Relations Review

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

Page 10: Employment Law & Employment Relations Review

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

Page 11: Employment Law & Employment Relations Review

Dismissal Injunctions

• Bank manager, Irish Life & Permanent

• CEO, IRS Advertising

• General Manager, Citywest Hotel

• HR Manager, Iarnrod Eireann

Page 12: Employment Law & Employment Relations Review

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.

Page 13: Employment Law & Employment Relations Review

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

Page 14: Employment Law & Employment Relations Review

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

Page 15: Employment Law & Employment Relations Review

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

Page 16: Employment Law & Employment Relations Review

European Developments

• Temporary Agency Work Directive

• EU Directive on self-employed

• Parental leave

• Pregnant workers

• Third party harassment

Page 17: Employment Law & Employment Relations Review

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]

Page 18: Employment Law & Employment Relations Review

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.

Page 19: Employment Law & Employment Relations Review

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.

Page 20: Employment Law & Employment Relations Review

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

Page 21: Employment Law & Employment Relations Review

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

Page 22: Employment Law & Employment Relations Review

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)

Page 23: Employment Law & Employment Relations Review

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

Page 24: Employment Law & Employment Relations Review

THANK YOU