Looking back on 2018, we saw many interesting developments across many areas of employment law. A major talking point amongst employers was the introduction of the GDPR in May. Following that, a highly controversial High Court decision from 2017 supporting legal representation at internal disciplinary processes was overturned by the Court of Appeal in October.
We look back at our top five most popular briefings and podcasts in this update. Our employment podcast series will be continuing in 2019 with the first update on what we expect to be the main employment law trends and themes this year issuing later this month.
1. GDPR and HR – As you are now well aware, the GDPR was implemented on 25 May 2018. The GDPR has put personal data protection front and centre as a fundamental right of the individual, including that of the employee and is arguably the most significant legal development in the workplace for a generation.
Since the implementation of the GDPR, employers have experienced a significant increase in the volume of data subject access requests ("DSAR") from prospective, current and past employees. In addition to DSARs, employers have been faced with complaints to the Data Protection Commissioner where they have either failed to comply with such DSARs or where they have sought to limit the scope of such a request. Employers should adopt strict data retention policies and delete older data where possible to help reduce the administrative burden in dealing with DSARs.
Our countdown to GDPR articles deal with the key issues for employers in GDPR compliance and are available to view through the following link. You can also access a panel discussion on GDPR and HR at episode 33 in the Matheson Employment Law Podcast series.
2. Disability discrimination and reasonable accommodation – In January 2018, the Court of Appeal delivered its decision in Nano Nagle School v Daly [2018]. This case dealt with the very practical question of just how far an employer is required to go to provide reasonable accommodation to an employee with a disability in the workplace, and at what point can an employer lawfully conclude that an employee's disability is such that they are no longer capable of performing the role that they have been hired for.
This outcome was a very positive judgment for employers in which the Court ruled that while disability discrimination legislation does envisage some degree of adjustment as a means of reasonable accommodation, that does not necessarily involve removing all elements from the employee's role that they can't perform. In the Court's view, while it was reasonable for an employee to expect the employer to review certain "non-essential elements" of the role, it was wholly unreasonable to suggest that the legislation required an employer to disregard the "precisely essential elements of the role" or the "main duties or essential functions of the role".
While for now this is a welcome development for employers, this decision is currently pending appeal to the Supreme Court. Listen to the review of the judgment at episode 32 of the Matheson Employment Law Podcast Series to find out more.
3. Fair procedures in disciplinary investigations – In October 2018, the Court of Appeal handed down the decision in the case of Iarnrod Eireann / Irish Rail and Barry McKelvey. This decision is an equally positive outcome for employers as it overturned the controversial Lyons decision from 2017 which had suggested that employees should be entitled to legal representation at all internal disciplinary hearings.
That case concluded that employees should only be allowed legal representation in a disciplinary process in 'exceptional circumstances'. The fact that the employee may face dismissal or a separate criminal process arising out of the allegations was not held to be a sufficient reason to justify legal representation.
Employers can take comfort from the McKelvey decision, though we understand it is now also on appeal to the Supreme Court, which may of course result in further changes in this area.
Listen to episode 37 of the Matheson Employment Law Podcast Series to find out more.
4. How to successfully defend a discrimination claim – The decision of the Workplace Relations Commission in the case of A Factory Operative and A Food Manufacturer last year was a very strong example as to how an employer can successfully defend a discrimination claim, and the steps to be taken.
The employer's position in this case was that it had taken all appropriate steps to prevent the particular harassment taking place in the workplace and that when the grievance concerned was raised, it took all appropriate steps quite quickly from that point on. This decision can be contrasted with a very similar case that came up a month before this decision where an employer was ordered to pay an employee €43,000 in respect of a sexual harassment claim, quite simply because the employer did nothing to properly investigate the complaint. The employer was found to have done all it reasonably could to prevent the harassment, and accordingly defeated the claim.
Listen to episode 36 of the Matheson Employment Law Podcast Series to find out more.
5. Introducing an auto-enrolment retirement savings system in Ireland – In early 2018, the Government launched "A Roadmap for Pensions Reform 2018 – 2023", a five-year action plan for the reform of the Irish pension system. The roadmap identifies six strategic strands under which various measures are outlined and these measures are designed to overhaul or modernise the approach to providing pensions income to retirement.
One of the most significant proposals contained in the roadmap and the one which has received a lot of media attention in the last year is the introduction of an automatic enrolment system for Ireland. Essentially, this involves taking employees who are not already covered by a workplace pensions scheme and putting them into a scheme. The aim behind this proposal is to increase pension coverage with the ultimate aim of achieving universal pensions coverage.
Listen to episode 4 of the Matheson Pensions & Benefits Law Podcast Series to find out more.
This article was co-authored by Employment Associate Tina O'Sullivan.
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