Richard Grogan employment law: Legislation this office has sought



Richard Grogan
Richard Grogan

Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors explains where his office has had input on current and upcoming Irish legislation.

In the past year we have made a number of submissions to the Department of Justice and Equality, Department of Jobs Enterprise and Innovation and Department of Transport relating to various pieces of legislation.

In relation to the Paternity Leave Benefits Act, this office made a submission to the Minister to amend the legislation to include a threat as a ground for an employee to bring a claim and not just that they were discriminated against. The reason for this that the Labour Court has held in relation to the Organisation of Working Time Act that a threat, because of the wording of the Act is not sufficient to ground a claim. The Minister for Justice and Equality took our submission on board and amended the legislation. The Minister for Justice and Equality took a very proactive and immediate steps to deal with our submission.

We have written to the Minister for Jobs Enterprise and Innovation requesting that the Organisation of Working Time Act would be amended in section 26 to take account of the defect in the legislation which allows an employer to threaten an employee for having brought a claim provided the threat does not actually materialise but the very threat itself can undermine an employee bringing a claim.

In relation to the Workplace Relations Act 2015 we have pointed out to the Minister that there is no provision to obtain a witness summons in an Unfair Dismissal case. The Minister has said this defect will be dealt with in an appropriate piece of legislation in due course. Section 40(10) of the Unfair Dismissal Acts was not incorporated in section 80 of the Workplace Relations Act 2015.

We have written to the Minister about the fact that there is no Fees Order for employees to seek costs for seeking to implement a Decision of an Adjudication Officer of the Labour Court. The Minister has advised that she has requested the Minister for Justice and Equality to issue the appropriate Statutory Instrument. It is now over a year since the Act came into place and one would have thought that this would have been put into place.

We have written again to the Minister for Jobs Enterprise and Innovation about the issue of settlements before the WRC and the Labour Court. There are issues in relation to the practice before the WRC and the Labour Court concerning settlements and we have proposed amending legislation which we have drafted and sent to the Minister so that settlement agreement would have the effect of an Adjudication Order or Decision of the Labour Court as regards being implemented.

There is a technical issue relating to the submission of complaints to the Workplace Relations Commission which could be easily dealt with by Statutory Instrument issuing and we have written to the Minister about this.

We have also written to the Minister about some of the publications which have issued from the Workplace Relations Commission and to the Director General of the Workplace Relations Commission. The publication Employment Law Explained has a number of very serious defects in it. We got a very helpful letter back on behalf of the Minister for Jobs Enterprise and Innovation explaining that the document was intended to be a general guide and it is not intended nor does it purport to deal with all details and nuances of Employment Law. What is interesting is that the WRC and their publications say that they have effectively expert advisory services to advise people in relation to claims. If the WRC cannot even get their publications correct it is hard to understand where this expertise is. The good point is that the Minister has confirmed that the WRC have advised that the defects in the publications relating to Employment Law Explained and The Guide to the Maternity Protection Acts will be amended shortly.

We have written to the Minister for Transport concerning the provisions of SI36/2012. Following a case of Baku GLS Ltd the Labour Court have confirmed that there is no time limit under the relevant Statutory Instrument provided to enable an employee to get working time records. This is despite the fact that it is an EU Regulation and there is an EU requirement in the Regulation that the employee is entitled to obtain same. If taken on board this will be the second amendment of the Statutory Instrument. A previous amendment had to be put in place as the Department of Transport had omitted to provide a provision where a particular complaint could be made to what was then a Rights Commissioner and now an Adjudication Officer.

We are a small specialist Employment Law firm. We are constantly having to make submissions in relation to defects in legislation that is being drafted and put through or which has been put through. A lot is made by Government Departments about employment rights and protecting employment rights. The very basis of doing so is that legislation would be properly drafted.

In the UK they have the advantage that before a Statutory Instrument issues a draft of the Statutory Instrument is made available for appropriate comments to be made. This is a very useful provision as it enables relevant bodies to make submissions in relation to the Statutory Instrument and in particular if there is a provision which requires amendment so as to be effective it would enable those involved in Employment Law to make appropriate submissions.

The difficulty in getting legislation in Statutory Instruments properly drafted here in Ireland is that there is a lack of resources in the Parliamentary Drafting Office.

There is a Brexit issue which is going to need to be addressed going forward. A lot of our legislation in the Employment Law field and in other fields is simply copied from UK legislation. Once the UK leaves the EU then the ability for the Irish Governments Departments to simply copy UK legislation with appropriate amendments will be gone. Therefore significant investment in having trained Parliamentary drafters will be required. We have a little over two and a half years to get this done. There is a considerable amount of training that will have to be done. Leaving it to the last minute will not be effective. Planning for this needs to take place as part of the programme of dealing with Brexit. I can see the political barrier for any Government admitting that we are effectively copying UK legislation. However that is the reality. If do not deal with this now then the potential for legislation to be properly drafted in this country in a couple of years time will be non-existent.

Hopefully action will be taken.

  • Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.