EMPLOYER ALERT: RIGHT TO REQUEST FLEXIBLE AND REMOTE WORKING NOW EFFECTIVE, AS WRC PUBLISHES CODE OF PRACTICE

The right to request remote working arrangements for all employees and the right to request flexible working arrangements for caring purposes, introduced by the Work Life Balance and Miscellaneous Provisions Act 2023, are now effective. More information on each of these rights is available in our briefing here.

In addition to the commencement of these statutory rights from 7 March 2024, the Workplace Relations Commission has also published the long-awaited Code of Practice on the Right to Request Flexible Working and the Right to Request Remote Working here. The Code is aimed at giving guidance on best practice to employers and employees navigating the complexities of requests for flexible or remote working arrangements.

The employer alert published by the Employment Group is available here.

CASE UPDATE: PICKETING INJUNCTIONS

The Supreme Court recently published an important decision on the topic of picketing injunctions. In the case of HA O'Neil Limited v Unite the Union & Ors [2024] IESC 8, the Supreme Court unanimously allowed the appeal by Unite the Union, Patrick James Gould, William Mangan and Damian Jones of a High Court ruling last year which prevented the Union from placing further pickets at the mechanical engineering contractor, HA O'Neil.

The dispute concerned travel time payments, with the employer contending that, as the parties were subject to a Sectoral Employment Order (since quashed) which had a 'no strike' clause, no industrial action could take place until the procedure in the SEO had been followed. The Supreme Court held that restrictions on seeking injunctions against strike action should not be interpreted narrowly or restrictively, as this would defeat the purpose of the legislation, which is to protect unions and their members.

The Court stated that while the Constitution "does not itself expressly guarantee a right to strike [...] it does guarantee the right of citizens to form associations and unions. As such it must be understood to recognise the legitimacy of trade union activity." It considered that the right to form unions "would be of little benefit if the activities of the union and its members were to be regarded as presumptively unlawful."

The Court stated that: "it is emphatically not enough for the plaintiff to establish that there is an 'arguable case' or 'serious issue' that the notice [of industrial action] was not given or that the ballot [for action] was not properly held (and it is here that confusion has crept into some of the earlier judgments in this area)." It added that, in considering the grant of an interlocutory injunction of the kind sought in this case, it requires "more than a passing glance at whether the case is 'stateable'." This judgment will be welcomed by trade unions as strengthening the right to strike. Our Employment Group will be publishing its analysis of the decision in early course.

EMPLOYER ALERT: UPCOMING APPEALS BEFORE THE SUPREME COURT

Our Employment Group has considered in a recent briefing two interesting upcoming appeals before the Supreme Court on employment law matters. More detail is set out in the briefing here.

ONE STEP CLOSER TO INCREASED PROTECTION FOR EMPLOYEES IN INSOLVENCY SITUATIONS

The Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Bill 2023 (the "Bill") proposes amendments to the existing collective redundancy regime in insolvency situations. If enacted, the Bill will deliver on key Programme for Government commitments detailed in the Plan of Action – Collective Redundancies following Insolvency.

On 28 February 2024, the Bill passed the final stage of the legislative process in Dáil Éireann and will now be put before Seanad Éireann. Once the Bill has passed through the Seanad, the next step is for the President to sign the Bill into law. The proposed text of the Bill that will go before the Seanad remains unchanged since our Employment Group wrote about the key changes it proposes in its December 2023 briefing: Progress on Increased Protection for Employees in Insolvency Situations

CASE UPDATE: AN EMPLOYEE'S RIGHT TO SILENCE

The recent High Court decision of Electricity Board Supply v Kieran Sharkey [2024] IEHC 65 considered whether an employee's right to silence in the context of a criminal investigation or criminal procedures permit them to refuse to comply with the directions of their employer.

The Court rejected ESB's argument that the right to silence is limited to the prevention of the abuse of power. It acknowledged that the right is not absolute but held that caselaw recognised that it is a constitutional right, which is engaged where there is a risk that a person is compelled to provide testimony which may tend to incriminate them. The test to consider is (1) whether a person is acting under compulsion, and (2) if there is a risk their testimony may be relied on in a criminal trial. Our Employment Group considered the decision in more detail in its recent briefing: Case Update: An employee's right to silence

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.