What’s happening in ROI employment law in 2024?

One of the biggest developments in 2023 was the enactment of the Work Life Balance legislation, introducing new family related rights for employees, paid domestic violence leave, and putting a statutory footing on the right to request flexible and remote working arrangements. While many of the new rights under that legislation have already commenced, the much-anticipated sections dealing with remote and flexible work arrangements have not, and we expect to see developments very early this year bringing these into effect. In this article, we look at this and what other changes are coming in 2024, what employers should be looking out for, and we highlight areas where we expect to see increased focus and development in the coming year.

What’s happening with remote and flexible working?

As highlighted above, sections of the Work Life Balance legislation entitling employees who are carers or parents to five days’ unpaid leave for medical care purposes and extending breastfeeding breaks (from six months to two years) commenced on 3 July 2023. The entitlement of employees to five days paid domestic violence leave commenced on 27 November 2023.

We remain in a bit of a state of flux regarding the much-anticipated sections of the Act entitling employees to request remote and flexible work. It had been expected those entitlements would have commenced by the end of 2023, but this did not happen. However, work on a WRC Code of Practice is very much underway, and the Minister for Enterprise Trade and Employment recently confirmed he expects it could be completed by end of this month, with regulations commencing those sections to then follow later. We will continue to watch this closely as we expect that once passed, the regulations will have immediate effect!

While many employers have already introduced policies and procedures for remote working, when the new Code of Practice is published, they will need to compare their existing policies against it and tweak where necessary. Where employers already have existing arrangements with employees allowing them to work remotely, they will still be required to deal with statutory requests from employees. It is also important for employers to remember that remote work does not necessarily mean working from home, and that flexible work requests (which are different to remote work requests) will be limited to employees in caring roles.

It will be interesting to see also the potential challenges the new rights to request remote and flexible working arrangements will present to some employers trying to enforce stricter return to work policies, which we have seen an increase in. For many employers, working arrangements continue to evolve and change and so they will need to stay ahead of these developments in 2024 while balancing the needs of the organisation.

Gender pay gap reporting and equal pay issues

Gender pay gap reporting is no longer a new concept - reporting requirements have been in place for certain employers since 2022. However, 2024 will see the threshold for reporting drop to organisations with 150 or more employees making it relevant to significantly more employers than before. Employers in that category need to look at how they will meet their reporting obligations this year. In 2025, the threshold drops again to employers with just 50 employees so there is much to be said for employers in that category to plan ahead also, and perhaps to even consider doing a “dry run” this year so as to identify any potential challenges next year. For more information on the merits of doing a dry run see this article.

The online portal system that it was promised would be established in 2023 has not yet been set up. While it may happen in 2024, it may well be 2025 before this is established.

There have been developments at EU level also with the Pay Transparency Directive coming into effect in June last year. While Ireland and the other EU member states have until 7 June 2026 for it to be implemented, and while our existing legislation already aligns with many aspects of the Directive, it will impose more onerous reporting requirements on employers eventually and it is likely that our legislation will need to change to ensure all its requirements are met. Employers should be watching this space closely.

Sick pay and other increases

Statutory sick pay

Since 1 January 2024, the initial entitlement to three days paid sick leave increased to five days. This will continue to increase incrementally to seven days in 2025 and eventually 10 days in 2026.

In September last year, the WRC issued its first decision under the sick pay legislation. This is an interesting one for employers as it confirms some key points, including that the Act in its entirety does not apply to employees whose employers operate a sick leave scheme that confers benefits which are, as a whole, more favourable to the employee than statutory sick leave. It also confirms that contractual sick leave benefits which are either as favourable or more favourable than statutory sick leave will operate as a substitute for statutory sick leave. The case, Karolina Leszcaynska v Musgrave Operating Partners Ireland, also highlights that the WRC will critically analyse the evidence adduced by the parties in support of their respective arguments as to why a company scheme is/is not more favourable.

National minimum wage

Minimum hourly rates of pay increased on 1 January 2024 from €11.30 to €12.70 for employees agreed 20 and over. The rates for employees aged 19,18 and under 18 years of age have also increased to €11.43, €10.16 and €8.89 respectively. Employers need to budget for these, and other entitlements such as increased sick pay and the proposed pension auto-enrolment system (more on this below), towards the end of 2024.

Parent’s leave

 It was announced in the last Budget that the statutory entitlement to parent’s leave is due to increase from seven to nine weeks from August this year. This leave is available for parents with children aged two or under and they can also apply for Parent’s Benefit from the Department of Social Protection.

What’s happening with pensions and auto-enrolment?

Pension auto-enrolment

It had initially been expected that a new auto-enrolment system, which will require employers to automatically enrol employees who meet certain criteria into a workplace pension scheme, would have been set up last year and ready to take employee enrolments in 2024. This was then pushed out to 2024 and, most recently, to the second half of 2024. While officially this is still on track for the second half of 2024, many commentators anticipate it could be even later than this as the legislation underpinning it has yet to be drafted. Once introduced, it will be gradually phased in over a decade. We will watch this space closely over 2024.

Retirement ages and pension

The current State pension age remains at 66 years of age. However, since 1 January 2024, employees now have the option to defer their State pension up to the age of 70 in return for a higher pension. While there is no corresponding obligation on employers to allow employees to continue working up to the age of 70, the option to defer will inevitably lead to an increase in the number of requests from employees to do so which many employers, particularly those who still have a mandatory retirement age, may find challenging.

Mandatory retirement ages continue to feature frequently in cases before the Workplace Relations Commission in recent years. An interesting decision for employers to watch out for in 2024 is the judgment of the Supreme Court in Mallon v Minister for Justice, Ireland and the Attorney General which is awaited. One of the key questions the Supreme Court is being asked to consider is whether the objective justification an employer has to show to justify a retirement age is specific to the individual or the broader workforce. Although this case relates to a public sector mandatory retirement age, it is likely to inform the broader approach to mandatory retirement ages in Ireland and so will be of interest to all employers.

What else is happening?

Whistleblowing

Since January 2023, employers with over 250 employees have been required to have a whistleblowing procedure in place. However, since 17 December 2023, the requirement to put these measures in place now applies to employers with between 50-249 employees. Employers in this category need to ensure they update their policies and procedures in line with the legislation to effectively deal with whistleblowing claims and ensure their managers and other relevant staff are trained on the changes.
New statutory Guidance on protected disclosures which was also published on 20 November 2023. While the Guidance is targeted at the public sector, much of the content could also be used by private sector employers who come within the remit of the legislation, and indeed this was specifically mentioned by the Minister when introducing it.
Individual Accountability Framework

For employers operating in the financial services sector, the long-awaited Central Bank (Individual Accountability Framework) Act 2023 came into effect last year and provides for the establishment of the Individual Accountability Framework (“IAF”), including the Senior Executive Accountability Regime.

The Act introduces three new sets of conduct standards, one of which is applicable to all firms across the regulated financial services sector (referred to as the “Standards for Business”), and the other two which apply specifically to individuals performing certain roles in those firms.

The new “Common Conduct Standards” apply to all persons performing controlled function (“CF”) roles in regulated financial services providers (“RFSPs”) and the “Additional Conduct Standards” apply to persons performing PCF roles within RFSPs and those who may exercise a significant influence on the conduct of a firm’s affairs (i.e. CF1 roles). These new standards came into effect on 29 December 2023 and individuals subject to the new standards are expected to take reasonable steps to comply with them. The Central Bank has published Guidance to help individuals understand how to meet those standards.

Changes have also been made to the Central Bank’s existing fitness and probity regime which applies to individuals performing PCF and CF roles in RFSPs. The enhancements to the fitness and probity regime also came into effect on 29 December 2023.

AI in the workplace

 While at present, there are no rules or regulations that apply specifically to the use of AI by employers in Ireland, this is an area that is evolving rapidly and has been gaining a huge amount of attention in 2023, so employers should stay closely tuned to this area in 2024.

Regulating AI is also a key focus at EU level where, on 8 December 2023, after lengthy negotiations between the European Parliament and Council, provisional agreement was eventually reached on the wording of the EU Artificial Intelligence Act (“AI Act”). It is anticipated the final version of the AI Act should be published within the coming months, with a period of two years thereafter for member states to implement it. This will significantly bolster regulation on the use of AI, with non-compliance subject to potentially substantial fines.

In the meantime, employers looking to use these tools in the workplace context, particularly for recruitment or performance management, should be alive to the risks associated with it, and the need to ensure that AI supported decisions are explainable, transparent and retain an appropriate level of human oversight. Establishing good practice now, putting an AI policy in place and keeping it under regular review will be an integral part of any employer’s toolkit for managing the risks posed by AI in the workplace, while also reaping the many benefits of the technology.

Employment permits and immigration

A lot has happened, and more is expected to happen in the coming year, in the area of employment permits and immigration. In a surprise pre-Christmas announcement, the Irish Government significantly expanded Ireland’s employment permit system and increased the salary requirements for most employment permit types. Here’s our article detailing those changes. A round up of what else employers can expect in this area is here.

In summary – a year of further change

Last year saw quite a lot of legislative development and this year looks to be just as busy. Our lawyers and specialist training team are here to support you with navigating these developments and staying on top of the changes as they happen.