September 26, 2021

Volume XI, Number 269

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September 24, 2021

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Global Employment Law Update - Part 3: Estonia to Ireland

Introduction

Welcome to the latest edition of the McDermott Will & Emery Global Employment Law Update. The purpose of this publication is to provide you with concise summaries of many of the laws and court decisions from 2020 that significantly affect employers and employees all over the world. No publication has ever captured all new employment law developments from every single country. However, our effort to create the most comprehensive global employment update ever assembled has resulted in updates from 53 countries.

Many of the updates presented in this publication describe changes in the law that are well known to lawyers and human resources professionals from those countries, but are lesser known in other parts of the world. Our aim is to provide you and your colleagues with a useful reference guide to significant changes in employment law all across the globe. Furthermore, we hope this guide—and other specially designed products we create for our clients—will serve as a tool to assist multi-national businesses in their ongoing struggle to maintain a consistent global corporate culture amidst an ever-changing landscape of local employment laws.

Local employment lawyers from each country, who are either McDermott lawyers or part of McDermott's Global Employment Law Network, prepared these updates. We select each law firm participating in our network based on their outstanding local reputation and, in most cases, our prior experiences in working with them. Participants in the network work closely with McDermott lawyers on client projects, article writing, seminar and webinar presentations as well as signature client events.

Estonia

CHANGES TO THE PARENTAL LEAVE AND BENEFIT SYSTEM TO BETTER RECONCILE WORK AND FAMILY LIFE

Increased Flexibility in Parental Leave and Benefit System

From July 1, 2020, the payment period for the parental benefit became flexible. The payment of the 435-day parental benefit can be suspended by calendar month and resumed in accordance with the wish of the parent until the child reaches three years of age. All parental benefit recipients will be eligible for this kind of flexibility as of July 1, 2020, including those who have already been receiving the benefit. When resuming the payment of the parental benefit the amount of the benefit will not be recalculated.

Introduction of a "Daddy Month"

As of July 1, 2020, the father can stay on paternity leave for 30 days instead of the previous 10 working days and receive parental benefit for this period (a “daddy-month”). It is a non-transferrable benefit for the father in addition to the regular 435-day parental benefit period. The father's right to monetary parental benefit does not depend on his previous employment or contractual form of employment, and the father can use the benefit at the same time as or separately from the mother. This parental benefit can be used as a whole or in parts starting 30 days prior to the estimated due date until the child reaches three years of age. 

The new system of “daddy-month” will only apply to those children who are born on July 1, 2020, or later. In addition, for the new system to apply, the entire paternity leave taken based on the new system must be taken after July 1, 2020. (More information available here and here.)

NEW RULES FOR EMPLOYEES POSTED TO ESTONIA

On July 30, 2020, amendments to the Working Conditions of Employees Posted to Estonia Act came into force, aiming to ensure better protection of the rights of employees posted to Estonia and transposing the amended Posting of Workers Directive (Directive 2018/957/EU).

The minimum working conditions that must be ensured for a posted employee during their stay in Estonia were changed. Instead of a minimum wage, wages must be guaranteed, and posted workers must be reimbursed for the expenses related to business trips. The amendments added an obligation to the employer to keep the data of workers posted to Estonia up to date and notify the Labour Inspectorate of any changes before they take effect. For the employer, the retention period for documents related to posted workers was reduced from seven to three years from the end of the posting.

The regulation of long-term posting was also established. According to the new rules, if an employee’s actual posting lasts longer than 12 months, the employer is required to ensure the employee all the working conditions applicable in Estonia except for the rights and obligations related to entry into and termination of an employment contract, including a noncompete clause applicable after the end of the employment relationship, and occupational pension schemes. The 12-month period can be extended up to 18 months upon reasoned notice to the Labour Inspectorate. However, if the employer replaces a posted employee with another posted employee performing the same duties at the same place, the durations of their postings shall be added up. (More information available here.)

SPECIFICATIONS REGARDING MISDEMEANOR LIABILITY OF THE EMPLOYER

On July 30, 2020, specifications regarding liability for misdemeanors stipulated in the Employment Contracts Act and other labor legislation came into force. The amendments aimed at ensuring the application of sanctions for misdemeanors. Namely, the case law has previously established that the term “employer” used previously in regulations concerning employers’ liability generally does not include a natural person. However, under Estonian law, the liability of a legal person for an offense committed presupposes the identification of a natural person acting in the interests of a legal person. Henceforth, because of the amendments to the relevant legal acts (Employment Contracts Act, Occupational Health and Safety Act and Trade Unions Act), the misdemeanor charges can now be imposed on an employer or an employer’s management board member or another representative to whom the performance of this obligation was delegated. (More information available here, here
and here.)

SUPREME COURT DENIES THE POSSIBILITY OF EXTENSION OF OBLIGATIONS ARISING FROM COLLECTIVE AGREEMENT TO EMPLOYERS WHO ARE NOT A PARTY TO COLLECTIVE AGREEMENT

Pursuant to the Collective Agreement Act, wage and working time conditions of a collective agreement entered into between an association or a (con)federation of employers and an association or a (con)federation of employees may be extended by agreement of the parties. Until now, this provision was largely interpreted in a way that allowed the extension of obligations arising from collective agreement to employers (and their employees) who were not a party to the collective agreement.

In its judgment from June 15, 2020, No 2-18-7821, the Supreme Court explained that the Collective Agreement Act does not provide for the possibility of extension. The Supreme Court held that even if the collective agreement is entered into in the field of activity of an employer, in case the employer is not a party to the collective agreement and does not belong to the employers’ association that is a party to the collective agreement, the extension of obligations arising from such agreement could lead to disproportionate interference with the freedom to conduct business and the fundamental right to property as the employer can neither participate in the conclusion of the collective agreement nor influence the formation of the terms of the collective agreement.

The Estonian Ministry of Social Affairs has drafted a bill amending the conditions for extension of collective agreements. The purpose of the draft is to alleviate the bottlenecks identified by the Supreme Court and again to enable the extension of collective agreements. (More information available here.)

Germany

INCREASING GENDER DIVERSITY ON COMPANY BOARDS

In 2020, the German government agreed on new rules for a “female quota” for large, publicly listed companies. For companies listed and subject to an employee’s co-determination (50% employee participation on the supervisory board level), a board of directors consisting of more than three directors must include at least one female director. This quota replaces an old quota, which required supervisory boards of companies to have at least 30% of its members from the opposite gender.

GOVERNMENT MEASURES TO AID BUSINESSES DURING THE COVID-19 PANDEMIC

When the COVID-19 pandemic started, Germany reacted quickly and introduced various measures to help companies. For example, Germany implemented “short-time work” rules (a kind of furlough scheme). Short-time work means a temporary reduction of working hours followed by a return to the original level of working hours when short-time work ends. Under the short-time work rules, companies can apply for short-time work allowances from the state covering 60% to 67% (if children are living with the employee) of the employees’ net income (capped at a certain level). For long-term short-time work (short-time work is limited to a maximum of 12 months) the allowances will be increased. The state will also cover social security contributions. Short-time work is regarded as a very effective tool for companies to steer through this crisis without laying off personnel.

FEDERAL LABOR COURT FINDS “CROWD WORKERS” ARE EMPLOYEES, NOT INDEPENDENT CONTRACTORS

In 2020, our Federal Labor Court ruled that so-called “crowd workers” that are registered with an online platform where they can opt in for different assignments are to be regarded as employees of the platform if the platform provider provides detailed requests regarding timing, place and content of those assignments. The decision was a surprise, as those kinds of working relationships were typically regarded as independent contracting.

Ghana

SUPREME COURT FINDS EMPLOYERS MUST PAY REDUNDANCY PAY UNDER SECTION 65 (1) OF THE LABOUR ACT, 2003 (ACT 651)

In National Labour Commission v. First Atlantic Bank Limited (Civil Appeal No. J4/62/2019), the Supreme Court had to determine whether an employer—whether because of the reorganization of its business, changes to technology, or other reasons—is required to pay redundancy pay when it lays off employees under section 65 (1) of the Labour Act of 2003 (Act 651) (the Labour Act). Sections 65 (1) and (2) of the Labour Act permit employers to terminate employment relationships due to redundancy. However, whereas Section 65 (2) clearly states that a redundancy because of an arrangement, amalgamation or office closure requires the payment of redundancy pay, Section 65 (1) does not provide for the payment of redundancy pay. This has led to varied interpretation of the law. The Supreme Court settled the issue by holding that an employer must pay redundancy pay if it terminates an employment relationship under Section 65 (1).

DIFFERENCE BETWEEN UNFAIR AND UNLAWFUL TERMINATION

The Supreme Court explained the distinction between unfair and unlawful termination in two cases decided this past year. In the first, Charles Afran & Ors v. SG-SSB Limited (Civil Appeal No. J4/71/2018), the Supreme Court held that “unfair termination, as distinct from the common law concept of 'wrongful dismissal,' is a creature of statute." Unfair termination may only arise where the termination is due to the employee’s gender, race, color, ethnicity, origin, religion, creed, social, political or economic status, pregnancy (including maternity leave), or disability.

In the second, Republic v. High Court, Accra (Industrial and Labour Division Court 2); Ex Parte Peter Sangbah-Dery (Civil Motion No. JS/53/2017), the Supreme Court noted that termination or dismissal is considered unlawful if the terms of the contract are not adhered to in terminating the employment relationship.

APPEALING DECISIONS AND FINDINGS OF THE NATIONAL LABOUR COMMISSION

The National Labour Commission (NLC) is the adjudicating body for labor and employment disputes. In the case of James David Brown v. The National Labour Commission & Ahantaman Rural Bank Ltd (Civil Appeal No. J4/74/2018), the Supreme Court held that there is no inherent right to appeal a decision of the NLC and that the right of appeal is a creature of statute. In its decision, the Supreme Court noted that: (a) an NLC decision is appealable to the Court of Appeal in all respects; (b) leave or permission of the Court of Appeal must first be obtained (before the filing of the appeal); and (c) the appeal must be filed within 14 days of the NLC’s decision.

Guatemala

ADDITIONAL RULES TO THE REGULATIONS REGARDING OCCUPATIONAL HEALTH AND SAFETY FOR THE PREVENTION AND CONTROL OF SARS COV-2 OUTBREAKS IN THE WORKPLACE (MINISTERIAL DEGREE 79-2020)

This regulation complements the Occupational Health and Safety Regulation, Government Agreement number 229-2014, concerning the prevention and control of the spread of the SARS COV-2 virus in all public and private sector work centers. It uses occupational health and safety provisions that promote safe working conditions to minimize the risk of disease transmission. (More information available here.)

Honduras

DECREE 33-2020 CREATED A LAW TO ASSIST THE PRODUCTIVE SECTOR AND WORKERS IN RESPONSE TO COVID-19

  • Decree 33-2020 created the Law on Aid to the Productive Sector and Workers, which establishes the process of suspension of employment contracts and the obligation to pay a solidarity contribution to the worker during the period of suspension of contracts are established.

  • Companies that did not dismiss or suspend workers between March and December 2020 were permitted to deduct an additional 10% from taxes as payroll expenses.

DECREE 58-2020: LAW OF USE OF MASKS AND APPLICATION OF BIOSAFETY PROTOCOLS

  • A law governing the Use of Masks and Application of Biosafety Protocols was enacted, requiring the members of the public to wear masks when visiting public places, or private places with more than five people, when using public transit or elevators or when in the workplace.

  • It also establishes the obligation for companies to implement biosafety protocols authorized by the government of the republic to prevent the spread of the pandemic.

  • Those who do not follow the measures may be subject to sanctions.

Hungary

In 2020, the main employment law developments were focused on adapting to the extraordinary circumstances brought about by the pandemic. The purpose of legislative action was to support employers with business continuity and employee retention, as well as to promote efforts to ensure a safe and healthy workplace. Within this framework, the statutory provisions on "remote work" were modified several times to promote this atypical form of employment. The purpose of the modifications was to make remote work arrangements more flexible and to enable employers and employees to stipulate the terms of employment in a way that best suits their needs. As a consequence, remote work quickly became popular and, according to the official statistics, telework increased to 17% after the outbreak of the pandemic from 3% prior to the pandemic (and the real increase was probably even greater).

During the first wave of the pandemic, employers were legally empowered to unilaterally instruct employees to work from home. During the second wave of the pandemic, this option was no longer available, as employees cannot be required to work from home under local law if their individual circumstances simply do not allow it (e.g., small apartment, baby at home).  Therefore, although employers and employees needed to mutually agree on the conditions of remote work, the legislation made remote work terms more flexible during the state of emergency. For example, during this period, it was not mandatory for employers to complete a risk assessment regarding the work equipment used by employees at home (e.g., desk, chair).  Instead, employers only needed to inform employees about safe working conditions, and it was the employee’s responsibility to choose their place of work accordingly. The government also eased tax rules relating to remote work, allowing employers to provide tax-free lump sum compensation to employees to cover remote work expenses, such as energy consumption or internet access, without the necessity of documentation.  Because of the benefits of remote work with respect to work-life balance, environmental impact and enabling people with family commitments (such as caring for a child or parent) to participate in the workforce, it is expected that remote work regulations will be further modified even after the pandemic in order to promote its use.

India

THREE NEW LABOR CODES ENACTED

The Indian employment law framework has traditionally been perceived as rigid, archaic, confusing and cumbersome. Over the past year, there have been efforts to simplify, rationalize and consolidate the country's labor and employment laws.  Twenty-nine existing Central laws have now been reduced to four Codes: The Code on Wages, 2019 (Wage Code), the Code on Social Security, 2020 (SS Code), the Occupational Safety, Health and Working Conditions Code, 2020 (OSHW Code) and the Industrial Relations Code, 2020 (IR Code). All four Codes have received presidential assent and have been notified but are yet to be implemented. The associated delegated laws are open for public consultation and feedback. The Codes are anticipated to be implemented by April 2021.  India has surged 14 places in the World Bank’s global "Ease of Doing Business" index and is currently ranked at 63, and the Codes are touted to improve this ranking further. The penalties for noncompliance have been increased under the Codes, which also allow for compounding of offenses. Exemptions for public emergencies (including a disaster or epidemic or pandemic) have been included in the Codes.

THE OCCUPATIONAL SAFETY, HEALTH AND WORKING CONDITIONS CODE, 2020

The OSHW Code amends and consolidates 13 laws relating to safety, health and welfare requirements for various sectors. The applicability of various obligations is tied to meeting the different thresholds prescribed under the OSHW Code. The OSHW code proposes one registration and one return to simplify the procedural requirements. Special provisions for the health, safety and welfare of transgender workers at the workplace are included under this OSHW Code. The new definition for "contract labor" introduced under the Code would impact the way companies engage contract workers through external service providers, with prohibitions on engagements in “core activities” and revisions to the definition of “contract labor.” (More information available here.)

THE INDUSTRIAL RELATIONS CODE, 2020

The IR Code amends and consolidates three laws related to trade unions, service conditions and industrial disputes. The employee's right to strike without notice has been curtailed through the new IR Code. The threshold for the applicability of provisions requiring prior government approval for layoff/retrenchment or closure and certification of standing orders has been increased to 300 (prior threshold was 100 workers), providing limited incremental flexibility in hiring and terminating workers. New rules on union recognition have been introduced, along with the concept of a “negotiating union” in case there are multiple unions without any single one of them representing at least 51% of the employees. Fixed-term employment is expressly recognized under the IR Code and SS Code, provided there is no discrimination with permanent employees on benefits and other conditions of employment. A “Worker Reskilling Fund,” funded by employers, is proposed to be set up to help retrenched workers reskill and remain competitive in the job market, and employers will need to pay 15 days' wages to that fund in case of retrenchments. Establishments with 20 or more workers will need to establish a Grievance Redressal Committee to address workplace grievances and disputes. (More information available here.)

THE CODE ON SOCIAL SECURITY, 2020

The SS Code amends and consolidates nine laws relating to social security benefits.  The new definition of "wages" will impact salary composition and calculation of social security contributions and employment benefits. “Gig workers” and “platform workers” are recognized under the SS Code, and a dedicated social security scheme is proposed for them. Similarly, a social security scheme for non-unionized workers is also proposed. Finally, a provision for pro rata gratuity for fixed-term employees has also been introduced under the SS Code. (More information available here.)

ATMANIRBHAR BHARAT ROZGAR YOJANA

The scheme was announced by the government as part of the COVID-19 economic stimulus package to: (a) incentivize creation of new employment; and (b) restore employment lost during the pandemic. Under the scheme, the government will cover the Employee's Provident Fund contribution (either 12% or 24% depending on employee headcount in the establishment (>1000 or <1000)) for 24 months for eligible beneficiaries. To be eligible an employee must have either: (a) lost a job between March and September 2020 and become re-employed in Oct 2020; or (b) start a new job between October 2020 and June 2021. For employers to benefit from the scheme, they must recruit at least two or five new employees depending on establishment headcount (<50 or >50) as of September 2020. (More information available here.)

COVID-19 DIRECTIVES AND STANDARD OPERATING PROCEDURES

To contain the spread of the virus and to ensure employee safety, the Indian government started releasing COVID-19 directives and standard operating procedures beginning in March 2020. In line with World Health Organization directives, the government has issued guidelines on social distancing norms that should be followed at workplaces. This included the grant of additional leaves for testing and quarantining; allowing operation with limited capacity; thermal screening; sanitization/disinfection; social distancing; staggering of visitors/patrons;  wearing of masks; reporting obligations to the management and to the local medical authorities; and video conferencing work from home. Social distancing requirements are constantly evolving, and there are still restrictions on containment zones and travel. Employers are required to address both Central and state-specific requirements while running commercial operations. (More information available here.)

SUPREME COURT OF INDIA INTERVENES TO PREVENT COERCIVE ACTION AGAINST EMPLOYERS DURING LOCKDOWN

The Ministry of Home Affairs (MHA) issued directions in March 2020 restricting employers from reducing salary and carrying out terminations. The MHA Order was in force until May 18, 2020, and the constitutional validity of the order for the time it remained in force has been challenged before the Supreme Court. The Court in Ficus Pax Private Ltd v. Union of India, in its interim order, directed that no coercive action should be taken against employers in furtherance of the MHA directions and ordered that employers and employees should negotiate among themselves regarding the payment of wages during the closure period and arrive at a mutually agreeable settlement. The Court also observed that if employers and employees are unable to reach a settlement, the concerned labor authorities' assistance can be sought. (More information available here.)

SUPREME COURT OF INDIA QUASHES SWEEPING LABOR LAW RELAXATIONS

Employees in Gujarat challenged the measures taken in the backdrop of the pandemic, where workers could be obligated to work up to 12 hours a day for six days a week, their rest periods were truncated and overtime pay was decreased under Factories Act, 1948. The Court in Gujarat Mazdoor Sabha v. State of Gujarat quashed the Gujarat government notification that had exempted factories from paying overtime wages to workers and providing ideal working conditions to them amid the COVID-19 lockdown and directed them to pay overtime wages to workers who were working since the issuance of the notification. The Court was of the view that financial losses cannot be offset on the weary shoulders of the laboring worker, who provides the backbone of the economy. The Court ruled that the government cannot issue a blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime, as a response to a pandemic that did not result in an “internal disturbance” of a nature that posed a “grave emergency” whereby the security of India is threatened. (More information available here.)

Indonesia

The newly enacted Job Creation Law (November 2, 2020) is intended to improve the ease of doing business and stimulate the Indonesian economy. The employment law reforms are summarized below and implementing regulations are anticipated soon.

EXPATRIATE EMPLOYMENT

The Job Creation Law amends certain provisions of the Labor Law on the employment of expatriates, including the rules governing Expatriate Manpower Utilization Plans (RPTKA), which together with the Notification issued under an RPTKA now serve as the work permit. An RPTKA is not required for certain directors or commissioners, shareholders or expatriate workers needed in an emergency, for vocational activities, business visits, technological startups or performing research for a set time period.

Under a Supreme Court guideline issued in 2017, expatriates can only be employed on fixed-term contracts. The Job Creation Law is silent on this issue, but expressly contemplates implementing regulations to update the list of jobs open to foreigners and the period of employment of expatriates.

PROCEDURE FOR TERMINATION OF PERMANENT EMPLOYEES

The most intriguing potential development relates to the procedure governing termination of employment. Under the Labor Law, an employer had no right to unilaterally terminate employment in any circumstances. Rather, unless settled by agreement, the employer was required to obtain a Labor Court approval of each termination and the employee was entitled to up to six months’ salary during such legal proceedings. The business community has long considered this procedure to place unfair bargaining power in the hands of employees who have been able to successfully negotiate settlement packages in excess of their generous statutory entitlements for the employer to avoid the costly, lengthy and disruptive formal legal proceedings.

The legislature did not clearly state in the Job Creation Law that the employer can unilaterally terminate employment upon written notice without a court order. However, the new rules created by the Job Creation Law may be so interpreted. For the first time, the Job Creation Law creates the notice of termination concept by requiring the employer to provide written notice of termination with reasons. It also abolishes Article 152 of the Labor Law, which has been construed as the main provision requiring the employer to obtain a Labor Court approval of any proposed termination.  Employers should keep apprised of any developments on how these new provisions will be interpreted in practice.

TERMINATION OF PERMANENT EMPLOYEES: ENTITLEMENTS

Another notable change to the Labor Law is the revocation of Articles 161-172, which set out the generous and distinct termination benefit packages applicable to the various grounds for termination, including poor performance, resignation, change of status of the employer, closing of the employer (with or without proven economic losses), bankruptcy, retirement age, absence without leave and long-term disability. This also effectively abolishes one of the termination benefits formerly known as the “health and housing allowance.” 

Although the Law still recognizes these familiar grounds for termination as well as the severance and service pay tables, the precise entitlement for each ground is no longer specified. The ambiguity is expected to be resolved by the anticipated implementing regulation.

TERM AND TERMINATION OF FIXED-TERM EMPLOYMENT

The Job Creation Law revoked the main rule on the maximum term of fixed-term contracts (i.e., maximum two-year first term, one-year second term and two-year third term after a 30-day clean break). It more generally provides that fixed-term contracts can be based on a fixed time period or completion of a specified project. For the first time, it provides for an unspecified separation benefit upon expiration of the term or project which will be clarified in the regulation. 

UNEMPLOYMENT INSURANCE

Importantly, the Job Creation Law creates a new type of social security benefit under the Social Security Law (BPJS) called “loss of job security” (i.e., unemployment insurance). The benefit consists of: (a) up to six months’ wages; (b) information on job opportunities; and (c) training.

Ireland

The 2020 Irish employment law landscape was dominated by COVID-19 and the key themes that emerged as a result, including remote work, layoffs, redundancies, temperature testing and COVID-19 vaccination. However, 2020 also presented important developments for Irish employers through some notable cases.

DONAL O’DONOVAN V. OVER-C TECHNOLOGY LIMITED AND OVER-C LIMITED [2020] IEHC 291 –INJUNCTION DURING A PROBATIONARY PERIOD

The employee in this case was dismissed during his probationary period for poor performance and he sought (and was granted) an injunction preventing his dismissal on the basis that the employer had failed to afford him fair procedures when assessing his performance and effecting his dismissal.

Generally speaking, employees dismissed during their probationary period do not have the 12 months’ requisite continuous service to bring a statutory unfair dismissal claim. However, this case serves as an important reminder to employers that they do not have carte blanche in effective dismissals on the grounds of poor performance, misconduct, etc. during an employee’s probationary period. Instead, such dismissals must be consistent with the requirements of natural justice and the employee’s employment contract to mitigate the risk of such an employee seeking injunctive relief to avoid dismissal. (More information available here.)

RYANAIR DAC V. PETER BELLEW [2019] IEHC 907 – NONCOMPETE POST-TERMINATION RESTRICTIVE  COVENANTS

This case was heard at the tail end of 2019, but the judgment was not available until early January 2020. Ryanair commenced injunctive proceedings to prevent its chief operations officer from joining easyJet until the contractual 12 month noncompete period had expired. 

The Court held that the scope of the post-termination contractual restraint was too broad as it would stop the employee from taking up employment with any business in competition with Ryanair (low-cost or flagship/high-cost airlines) “in any capacity.” Ryanair argued its main competition was from low-cost carriers and easyJet was its "most immediate rival." However, the clause did not delineate that reality. Further, the restraint prohibited the employee from being employed as a pilot or air steward, for example, and it was held that such went beyond the protection of Ryanair’s legitimate interests. For these reasons, the High Court held that the restraint was unenforceable and Ryanair failed in its application. 

Importantly and of some relief to businesses, the Court had "no difficulty with the time constraint" of 12 months. The key takeaway is that there is no “alone-size-fits-all” covenant for all employees across an organization and bespoke drafting is required. (More information available here.)

DOOLIN V. THE DATA PROTECTION COMMISSIONER AND OUR LADY’S HOSPICE AND CARE SERVICE (NOTICE PARTY) [2020] IEHC 90 – USE OF CCTV IN DISCIPLINARY PROCEEDINGS

In this case, the High Court considered the use of CCTV footage in disciplinary proceedings. The outcome of this case is that while CCTV footage can be used by employers for the purposes expressly specified, including its use as part of a disciplinary investigation, its purpose must be clearly identified in advance.  

The case arose in the context of an investigation into terrorist-related graffiti. A sign informed employees that CCTV recordings were for the purposes of health and safety and crime prevention. The footage was reviewed as part of the graffiti investigation, but it was noticed that Mr. Doolin had taken a number of unauthorized breaks, which led to a disciplinary process being invoked (for which he was subsequently sanctioned). 

When this matter came before the High Court, it held that there was “further processing” of the footage in its use in the disciplinary investigation, and that the such further processing was for the separate and distinct purpose of disciplinary proceedings into the unauthorized breaks taken and, therefore, incompatible with the original purposes of health and safety and crime prevention. (More information available here.)

CLARKE V. CGI FOOD SERVICES LIMITED [2020] IEHC 368/CONWAY V. THE DEPARTMENT OF AGRICULTURE, FOOD AND THE MARINE [2020] IEHC 665 – PROTECTED DISCLOSURES

There have been a number of high-profile protected disclosure cases before the Irish courts in 2020 that have provided useful guidance on aspects of the Protected Disclosure Acts 2014 that had not previously been litigated.

In the Clarke decision, the Court, among other things, clarified the interpretation of an important provision in the 2014 Act which is often relied upon by employers where an employee raises a concern and such detection / investigation is within the employee’s functions and so does not come within the protections of the 2014 Act (here, the employee was the financial controller and the matters raised were financial in nature). 

In the Conway decision, the High Court held, among other things, that the Workplace Relations Commission, the Labour Court or the High Court had no jurisdiction to adjudicate on the claim that the employer had not dealt with a protected disclosure promptly, even where such may have been the case, as no such cause of action existed. However, the EU Whistleblowing Directive, which must be implemented by 17 December 2021, provides for strict time limits for dealing with protected disclosures. For example, an employer will have to acknowledge receipt within seven days and “diligently follow-up on disclosures” within three months, which can be extended to six months if duly justified. (More information available here and here.)

© 2021 McDermott Will & EmeryNational Law Review, Volume XI, Number 159
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