Author: J.W. O'Donovan

We are pleased to have advised the shareholders of CHI, one of Ireland’s leading occupational health providers, on its sale to PAM Group, a major provider of occupational health, health screening and wellbeing services in the UK.

The JWOD team included John Fuller (Partner, Corporate), Jerome O’Sullivan (Partner, Commercial Property), Ray Shanahan (Partner, Corporate), and David Pearson (Partner, Employment).

For more information, click here

 

We are pleased to announce that our Partner, Anne-Marie Linehan, has been appointed to the Board of the Cork Chamber of Commerce. Anne-Marie has been an active member within the Chamber for many years and has always been an advocate for the wider Cork region. Anne-Marie aims to utilise her many years of advising commercial and private clients to benefit the Chamber and its members. We wish Anne Marie the very best in her new role.

The Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”) was signed in to law on the 4^th of April 2023.

The Act, transposes the EU Directive on work-life balance for parents and carers and introduces new rights for employees in Ireland striving to balance family life, work life and caring responsibilities.

The various elements of the Act will come in to effect in a staggered manner, with the introduction of leave for medical care purposes and extension of breastfeeding breaks to two years coming in to effect from 3^rd July 2023.

1. Parts Coming into effect from the 3^rd of July 2023

Extended Breastfeeding Rights: The Act will amend the Maternity Protection Act 1994 by increasing the breastfeeding facilitation period from 26 weeks following the birth of the child to a total of 104 weeks. In addition, the Act through the deletion of section 7(2) of the Maternity Protection Act 1994, allows transgender male employees who have given birth access to maternity leave.

Leave for Medical Care Purposes: The Act specifies an employee is entitled to unpaid leave of up to 5 days within a consecutive period of 12 months to care for someone in need of “significant care or support for a serious medical reason”. This includes a parent or grandparent, or a spouse or civil partner etc. The employee must inform their employer in writing as soon as reasonably practicable when the leave is to be taken, duration of leave, and of the facts entitling the employee to take leave. The leave may not be taken in periods of less than one day and crucially, there is no minimum service requirement for this leave.

This leave is in addition to Force Majeure Leave of 3 days leave in any 12 consecutive months, or 5 days in any 36 consecutive months. Absence for part of a day is counted as one day of force majeure leave. Force Majeure leave arises under the Parental Leave Act 1998.

2. Part intended to come into effect in the Autumn

Leave for Domestic Violence: The Act provides an additional type of leave, which will provide for 5 days in a 12-month period of paid leave. The employer is required to pay “domestic violence leave pay”, the rate is to be set by the Minister.  Ireland will be one of a very limited number of countries to offer paid domestic violence leave.

3. Remote Working & Flexible Working

The following provisions do not have a tentative deadline for enactment presently.  As the Workplace Relations Commission (WRC) has been tasked with creating a Code of Practice, the commencement of the following sections will depend on the publication of the Code of Practice by the WRC.

Remote working: The Act introduces a statutory right for employees to request approval from their employer for remote working. There are various requirements for this application to be done in accordance with the Act, for example, the application is to be done in writing, the commencement and duration of the arrangement specified, etc. The Act imposes an obligation on the employer to consider the request. If the request is denied, the employer is obligated to provide reasons for such a refusal.

Flexible working arrangements for caring purposes: Parents and carers will have the right to request flexible working.  Flexible working arrangements could include; working hours or patterns, and/or the use of remote working, and/or reduced working hours. Employers in receipt of such requests must consider the request in accordance with its needs and the employee’s needs and must provide reasons if refused.

Conclusion 

The Work Life Balance and Miscellaneous Provisions Act 2023 introduces welcome enhancements to the work-life balance of employees in Ireland.

The parts which come into effect as of the 3^rd of July, namely the extended breastfeeding rights and the leave for medical care purposes will be extremely beneficial to those who wish to avail of such enhancements.

Furthermore, by providing leave for domestic abuse victims/survivors, Ireland will be one of a limited number of countries affording such leave and is setting an example in Europe, come Autumn.

COVID-19 truly changed the landscape of employment in Ireland, with a notable shift to remote working for many. The choice of remote work has continued following the pandemic in many organisations. However, this Act, by way of introducing a statutory right to request remote working coupled with an obligation on employers to consider such requests, ensures consideration for employees whose organisation has requested employee presence in the workplace. The effect of such a right will have to be considered following the publication of the WRC’s Code of Practice.

For more information on this topic please contact Patricia Canty or David Pearson of our Employment Department on 021-7300200 or by email to pcanty@jwod.ie or dpearson@jwod.ie

For greater discussion on Wills, Enduring Powers of Attorney (EPAs) and new legislation on assisted decision-making, including Advance Healthcare Directives, coming fast down the tracks with a proposed “go live” date of 21^st November next most recently advised by the new Decision Support Service, check out a podcast on the topic called Money Matters with our partner, Anne-Marie Linehan; Red FM’s, Jonathan Healy and Cork based financial services firm Provest’s, Una Jennings.

Alternatively, click here to listen on Spotify.

 

Introduction:

The Payment of Wages (Amendment) (Tips and Gratuities) Act 2022 was signed into law on 20 July 2022. The Act, which requires a Ministerial Order to commence, will require employers in certain sectors to pass tips and gratuities received in an electronic mode of payment to staff. The Act will also prohibit employers from using these tips and gratuities to ‘make up’ an employee’s basic wage and will provide more information to consumers about how their money will be distributed should they decide to leave a tip.

Key Components of the Bill:

• • Employers will no longer be allowed to use tips to make up statutory or contractual pay entitlements. Tips and gratuities will be distributed only in addition to wages.
  • Employees will now be entitled to tips paid electronically by credit or debit card. Employers will be obliged to show the value of tips received in a period and the portion paid to the individual employee for that period.
  • The Act only regulates electronic payments. Cash tips are not included as this would not be considered ‘workable’ according to the Workplace Relations Commission (WRC).
  • Employers will not be authorised to retain tips for themselves except where the employer can prove they perform, to a substantial degree, the same work performed by the employees who receive a share of electronic tips. The employer may only retain such amount that is fair and reasonable in the circumstances having regard to the amount of work performed during the period specified.
  • Any charge labelled as a ‘service charge’ or charge for service must now be dealt with the same as any other electronic tip received.
  • The Act requires employers to provide evidence of a clear policy, visible to the public on how the business deals with tips, gratuities and service charges.
  • Templates on how to display policy on tips will be circulated to employers.
  • The Minister for Enterprise, Trade and Employment must review the legislation after it has been in effect for one year.

Conclusion:

One of the main changes brought about by this Act is that it will eradicate certain bad practices that exist in areas such as parts of the hospitality sector. As society moves further away from regular cash transactions toward contactless payments, this protection for employees is absolutely necessary. The requirement for the employer to display a policy on tips publicly is also a welcome development for the consumer. This prevents any misleading of customers and gives the public the assurance that their money is reaching the person they intended to pay. For example, the Act removes any confusion surrounding the term ‘service charge’ and what this means. Overall, the Act is a positive development as it protects employees, informs the consumer and places little burden or cost on the employer.

For more information on this topic please contact Patricia Canty of our employment department on 021-7300200 or by email to pcanty@jwod.ie

Introduction:

The Sick Leave Act 2022 became law on the 20^th July 2022. Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar, has announced that the Sick Leave Act 2022 will come into force from the 1^st of January 2023. This Act will, for the first time, introduce an entitlement for all employees to sick leave paid by their employer in addition to illness benefit from the State.

This legislation will bring Ireland into line with other developed states across Europe who provide statutory protection for those employees who cannot work due to illness.

The need for such legislation was highlighted during the Covid-19 pandemic as there remained no legal requirement for employers to pay when an employee was out with an illness.

Speaking about the commencement of the Sick Leave Act, the Tánaiste said:

“Nobody should have to go to work when they are sick for fear of having no income. It’s not good for them or their co-workers. For the first time, there will be an entitlement for almost all employees to paid sick leave. The entitlement is based on the calendar year.

“This is a very important new right for all employees and was a personal priority for me as Minister. Given the current challenging business environment and inflation in particular, I have concluded that the fairest and most appropriate approach is to introduce the entitlement on 1 January 2023.”

What the new Legislation entails:

• The scheme will be rolled out over 4 years. Employees will be entitled to 3 days’ paid sick leave per year in year one. This will increase to 5 days in year two, 7 days in year three, and 10 days in year four.
• Employees will receive 70% of their normal daily wage subject to a daily maximum of €110.
• These provisions can be reviewed at Ministerial level in order to deal with inflation rates and increased incomes over time.
• The scheme will be enforced through the Workplace Relations Commission and the Irish Courts system.

Requirements for employees in order to qualify:

• The employee must have worked for the employer for no less than 13 continuous weeks prior to seeking sick pay.
• An employee seeking to avail of sick pay must have a valid medical certificate (i.e. certified by a GP as unfit to work).

Consequences for the employer:

• Employers are not to treat differently those who take or apply for sick pay.
• Employers are advised to review their standard employment contracts urgently.
• If an employer offers a sick pay scheme which is as favourable as the statutory provision, then the employer is not under any new obligation.
• If an employer offers a sick pay scheme more favourable than the statutory provision there is no obligation to adjust their existing scheme.
• If an employer offers a sick pay scheme less favourable than the statutory scheme then it will be “deemed to be so modified” so that it is not less favourable.
• An employer who cannot afford to pay workers in accordance with the scheme can apply to the Labour Court for an exemption. This exemption will last for a minimum of 3 months and up to 1 year.

Conclusion:

The upcoming commencement of the Sick Leave Act 2022 is a further example of Ireland’s commitment to provide a modern statutory framework which will protect the rights of employees. In recent years, the legislature has introduced acts governing paternity benefit, parental leave benefit, enhanced maternity benefit, treatment benefit and the extension of social insurance benefits to the self-employed. The Sick leave Act 2022 will undoubtedly be a significant development in the law protecting workers in this state, particularly those in the low-income sector. The Act aims to not impose any unrealistic obligations on employers through its 4-year implementation period as outlined above. This will give employers sufficient time to plan and budget if they do not have an adequate sick pay scheme in their standard employee contract.

For more information on this topic please contact Patricia Canty of our employment department on 021-7300200 or by email to pcanty@jwod.ie

We wish to congratulate our colleague Colm Tobin on recently completing the Law Society’s Diploma in Construction Law. Colm currently works with our property team and will also assist the construction team on future projects.

The Minister for Justice received Government approval in May of this year to reform the duty of care legislation. Following a review of existing legislation in this jurisdiction and abroad, it appears major changes are contemplated for the Occupiers Liability Act, 1995 which, it is claimed, will be seen to be a key factor in reducing insurance costs.

The proposed reform will include “voluntary assumption of risk” under Head 5 of 1995 Act.  The proposed reform contains four key developments:

• Inserting into primary law a number of recent court decisions which rebalance the duty of care owed by occupiers to visitors and recreational users such as the Court of Appeal ruling in Byrne -v- Ardenheath Company Limited [2017] IECA 293.
• A change in the standard to reckless disregard, i.e., it is the standard of “reckless disregard” which will apply rather than the current standards.
• Limits to the circumstances in which a Court can impose liability on the occupier of a premises where a person has entered onto the premises for the purpose of committing an offence; and
• Allowing for a boarder range of scenarios where it can be shown that a visitor or customer has voluntarily assumed a risk resulting in harm.

It is claimed that the proposed amendments will seek to strike a fairer and more reasonable balance, between the steps an owner or occupier of a premises must take to keep their customers and visitors safe, and what individuals themselves can be expected to take responsibility for when entering such premises. The proposed legislation will be placed before the Oireachtas for enactment as part of the Courts and Civil Law (Miscellaneous Provisions) Bill, 2022 which is currently at committee stage.

If you would like further information in relation to any of the above, please contact Ciara Lehane, Associate Solicitor by email to clehane@jwod.ie or call 021-7300200.

John Fuller (Partner, Corporate) of J.W. O’Donovan Solicitors LLP has acted for Trustap Limited in relation to its recent fundraising of €3.1 million from Middlegame Ventures, Act and Atlantic Bridge.

Trustap is a digital transaction platform that protects a purchaser from being scammed when transacting with someone they don’t know and essentially brings peace of mind to the user when engaging in an online or face-to-face transactions.

Trustap Limited was founded in Cork in 2017 and is growing quickly, with offices in Ireland, the UK and the US. Chief executive and founder Conor Lyden is quoted in saying “the one thing that has been a big focus for us, is hiring more developers, and also the build out of our sales team, particularly in the US.” The largest fundraise to date for the company will see their Irish team grow again and will be used for marketing, expanding into new markets, and the roll out of new features.

J.W. O’Donovan Solicitors LLP were delighted to act in the fundraising for this Cork headquartered company and look forward to what’s to come for Trustap Limited.