Employer Resources Newsletter - July 2021

Posted on 13 Jan 2021 Last updated on 16 Jul 2021

As the vaccination programme continues with over two million people fully vaccinated as of mid-July, many employers are looking to get employees back to the workplace. In order to support employers, the Data Protection Commission (DPC) published guidelines in June to address concerns about what information employers can gather and process in relation to employees and their vaccination status. For the purposes of GDPR, information on an individual’s vaccination status is considered special category personal data as it makes up part of their health information and is therefore, given additional protections under the data protection law.

The DPC states that “as a general principle”, and in the absence of advice from public health authorities, the collection and processing of an employee’s vaccination status is “likely to represent unnecessary and excessive data collection for which no legal basis exists”. It states that this is particularly the case when there is no clear advice pertaining to what the purpose of the data would be. For example, advice as to what employers would be expected to do with knowledge of vaccination status of workers; should they send non-vaccinated workers home or segregate vaccinated and non-vaccinated workers in the workplace.

According to the DPC, the processing of health data in response to Covid-19 should be guided by the Government’s public health policies.

However, there may be circumstances where vaccination could be considered a necessary measure; for example, those working in the provision of healthcare services or some services as provided by nonprofit/ community support organisations. In these circumstances, the DPC says that an employer is likely to be in the position to lawfully process vaccine data on the basis of necessity insofar as they satisfy the requirements under this category.

Vaccination is voluntary

Government has been clear from the outset that vaccination is voluntary and it is the decision of each individual whether they take up the offer of a vaccine or not. This stance is reiterated in the Work Safely Protocol and in the DPC’s view, this further suggests that vaccination data should not be considered a necessary workplace safety measure. Consequently, the processing of vaccine data is unlikely to be necessary or proportionate in an employment context.

Employees returning after travel

The DPC also outlined that situations may arise where employers will need to be notified if an employee will be available for work after travelling to Ireland from abroad and undergoing any required periods of self-isolation. It confirmed that it is unnecessary for an employee’s vaccination status to be recorded in such instances, instead the employee should indicate the date on which they will be in a position to return to work.

Court finds wage cuts without consultation were ‘not reasonable’

Employer carried out unlawful pay reductions during Covid-19

Background

The Complainant was employed by the Respondent and its predecessor company since 2007. She had a number of fixed term contracts before she received a permanent contract on 26 May 2008.

Summary of Complainant’s Case

The Complainant's case is that between 1 April 2020 and 31 May 2020 she was subject to a 15% loss of income. On the 23 March 2020 she received an email from her group head advising that there would be a temporary reduction in pay for all salaried employees to be effective in April in order to protect the company’s long-term health.

The Complainant received a further email 1 April 2020 following up on the email of 23 March 2020. This email set out how the reduction would affect her.  She was advised that effective from 1 April 2020 for the duration of the period during which the company wide 15% salary reduction was in effect, her base salary was to reduce from €37,852.46 to €32,174.59 gross per annum, payable bi- weekly. The new bi-weekly amount was to be reflected in payroll dated 17 April 2020. The Complainant emailed the Respondent and advised that she did not agree with the pay cut. She set out that she was open to discuss proposals in order to reach an agreement that would suit everyone.  Her position was that in March and April 2020 revenue for her office was higher than expected. She had researched what was being proposed on the Citizens Information website and she had queries and was not satisfied with the answers she was receiving from the Respondent.

The first deduction was made on 30 April 2020 was for €132.78 net. The Complainant considered this a pay cut which was not agreed to. She lodged her complaint with the WRC on 15 May 2020. The Complainant submitted that this was a unilateral decision by the Respondent to which she objected.

Summary of Respondent’s Case

The Respondent submitted that all employees were given a 15% wage reduction for an initial 60-day period in Ireland. It submitted that the reduction and the reasons behind it were clearly communicated to all employees on the Irish site globally. From 1 April 2020 of 31 May 2020 this wage reduction was in place.

The Respondent group also implemented several other cost-saving measures. While the Respondent group lost significant revenue due to Covid 19, by June 2020 the outlook had improved. Salaries were restored to 100% with effect from 1 June 2020. The Respondent submitted that revenue from its business was at the time of the wage reduction expected to decrease by 21% in 2020 compared to 2019. However, the ultimate outcome was not as bad as expected. Revenue for 2020 was down 12% on 2019.

The Respondent implemented the Temporary Wage Subsidies Scheme (TWSS) for a period. However, did not meet the eligibility criteria and repaid the amount it received to the Irish Exchequer. It submitted that it did not implement the 60-day wage reduction lightly. It was done to protect jobs.

Findings and Conclusions

The Payment of Wages Act prohibits the making of deductions from an employee’s wages unless required or authorised by the Act or the employee has consented to the deduction. It is for the Complainant to show in the first instance that wages were properly payable to her and not paid by the Respondent.

The evidence presented to the court was that while the Respondent expected a downturn in income, the ultimate outcome was not as bad as expected. Revenue for 2020 was down 12% on 2019.  The Respondent for a period implemented the Temporary Wage Subsidies Scheme (TWSS). However, it did not meet the eligibility criteria and repaid the amount it received to the Irish Exchequer.

While the adjudicator accepts that the Respondent experienced difficulties due to the Covid-19 Pandemic she does not accept that the decision to impose the deductions in the Complainant’s salary was reasonable and proportionate considering the Respondent was a multi-national Company and the work the Complainant was doing was not greatly impacted by the Pandemic.

Imposing pay cuts, even of a temporary nature, without consultation or consent, by reliance on such variation clauses is not reasonable. The adjudicator accepts the Complainants evidence that 15% of her wages were deducted by the Respondent and does not accept this reduction in pay.

Decision

The adjudicator finds that the complaint is well-founded, and that the Respondent shall pay the Complainant compensation that is reasonable of €829.84.

Our Commentary

This case highlights a change to a contract of employment which was not agreed by both the employee and employer.  It is crucial for employers to know that they cannot impose a salary reduction without imposing a change in contract of employment. Any pay reduction can only be put in place with the written consent of the employee. For those within the nonprofit sector who may still be considering implementing cost saving measures to counteract the on-going impact of the pandemic ensure that you are consulting with employees and seeking their agreement to any proposed changes so mitigate the risks associated with claims to the Workplace Relations Commission.

Gender Pay Gap Information Bill 2021 passes through Houses of Oireachtas

Earlier this month, the Houses of the Oireachtas passed the Gender Pay Gap Information Bill, which means the legislation will now be sent forward to President Michael D. Higgins for consideration.

The Gender Pay Gay Information Bill 2021 has been in discussion for some time and was originally published in April 2019.

The new Bill is a starting point to addressing the gender balance issue when implemented (most likely 2022). It requires organisations with 250 plus employees initially, to publicly report the pay gap between its male and female employees, including bonuses. It will be extended to organisations with 50 plus employees over time.

As well as the difference in gender pay, the legislation will require employers to publish a statement setting out the reasons for the differences and any proposed actions to be taken by the employer to eliminate the gap.

Organisations should be taking the time now to implement measurable, practical strategies to shift the scales in favour of a fairer and more transparent gender balance landscape, including setting meaningful targets for change and involving both genders to deliver a better balance.

Requesting redundancy rule changes during Covid-19

Normally if an employee is laid off or put on short-time hours, they can claim redundancy from the employer after four weeks or more, or six weeks in the last 13 weeks.

However, under the Emergency Measures in the Public Interest (Covid-19) Act, this option was suspended. This came into effect on 13 March 2020.

This rule has been extended again until 30th September 2021 and Government has stated that this will be the last extension to this particular rule.  It is therefore essential that organisations within the non-profit sector assess the impact of this, in particular where employees have been on a period of layoff or short time. 

Government Financial Supports – updates

Pandemic Unemployment Payment (PUP): The PUP scheme closed to new entrants on 7th July 2021. Under the Government’s Economic Recovery Plan, there will be a gradual reduction in payment rates from 7 September. From this date, there will be a reduction of €50 per week with further reductions on 16th November and again on 8 February 2022.

Employment Wage Subsidy Scheme (EWSS): The EWSS is a scheme aimed at supporting business viability. The scheme provides a flat-rate subsidy to qualifying employers whose revenue was impacted by Covid-19 by a hit of 30%. The scheme has been extended from 30 June until 31 December 2021.

Business Resumption Support Scheme (BRSS): Recently announced as part of the Finance (Covid-19 and Miscellaneous Provisions) Bill 2021, the BRSS will support businesses that were significantly impacted throughout the COVID-19 pandemic, even during periods when restrictions were eased. The support will be available to eligible businesses who carry on a relevant business activity and must be able to demonstrate a significant reduction in trade during the period 1 September 2020 to 31 August 2021. Applications under the scheme may be made between 1 September 2021 and 30 November 2021.

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