This week's top 5:

1. Annual Review Session of the Week: The Right to Silence in Investigations
2. Irish executives eager to adopt AI despite trust and scalability anxieties
3. Almost 7,000 Government data breaches over last ten years
4. New right to postpone maternity leave in cases of serious illness
5. ADHD in the workplace – harmful myths that employers must address

And in other news…………. This week Barry Phillips comments on research published recently that suggests that many more males than females are using GenAI and seeks an explanation. Listen here!

CONTENTS

1. Annual Review Session of the Week: The Right to Silence in Investigations
2. Case Law Review
3. AI and Employment Law
4. Concerns over doubling of jobseeker's penalty
5. Workplace skills
6. Data Protection & Cybersecurity
7. Recruitment
8. Women and the Workplace
9. Businesses in experience economy remain 'vulnerable', Ibec data shows
10. Just in case you missed it...........
11. HR Developments
12. Employment News in the Media
13. Free Webinars This Month

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1. Annual Review Session of the Week: The Right to Silence in Investigations (Post-Electricity Supply Board v Sharkey case)

The Electricity Supply Board v Sharkey [2024] case clarified the right to silence for employees in Ireland, presenting new challenges for HR and legal professionals. Join Michelle Halloran of MH Human Resource Management Services Solutions as she unpacks the implications of this landmark case. Discover when employees can refuse to answer questions during investigations, how to balance this right with the employer’s need for information, and the potential legal risks of disregarding these rights. This session is crucial for handling internal investigations effectively.

To find out more about this and the rest of the program and book your place, click here:
https://bit.ly/ktroiarel24

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2. Case Law Review

Keith Hackett v Heineken Ireland Limited

Reference: ADJ-00043446

Applicant: Keith Hackett

Respondent: Heineken Ireland Limited

Keywords: Procedural Fairness; Workplace Investigation; Unfair Dismissal

Summary Sentence: Worker unfairly dismissed by procedural defects.

Practical Guidance for Employers: 

• Ensure Policy Compliance: Always follow internal policies and procedures, especially for investigations under the Dignity at Work Policy.
• Conduct Thorough Investigations: Investigations should cover all aspects, including workplace culture, to assess whether behaviour genuinely constitutes bullying or harassment.
• Document All Steps and Decisions: Keep thorough records of the investigation process and ensure transparency with the employee involved.
• Seek Intent in Data Breach Cases: Investigate not only the act of a data breach but the intent and past practices to gauge the severity and fairness of disciplinary action.
• Clarify Disciplinary and Procedural Rights: Clearly communicate procedural rights, allowing full response opportunities and access to documentation for the accused.

The full case review can be found here:
https://www.legal-island.ie/articles/ire/case-law/2024/october/keith-hackett-v-heineken-ireland-limited-2024/

Anna Sheridan v Kildare Community Kare Ltd & Martin Flinter & Maureen Roche Flinter

Reference: ADJ-00048700

Applicant: Anna Sheridan

Respondent: Kildare Community Kare Ltd & Martin Flinter & Maureen Roche Flinter

Keywords: Victimisation, Discrimination

Summary Sentence: Pregnant worker found to have been discriminated against.

Practical Guidance for Employers: 

• Clear Communication: Ensure all communications with pregnant employees, especially regarding job security, are unambiguous to avoid misinterpretation.
• Risk Assessments: Perform risk assessments promptly and clearly document alternative roles or modified duties offered in response to pregnancy disclosures.
• Explore Alternatives: Before reducing hours or terminating duties, explore all feasible alternative roles or flexible arrangements to support pregnant employees, aligning with statutory obligations.
• Maintain Consistency: Avoid sudden changes in attitude or work conditions after pregnancy announcements to prevent perceptions of discrimination.
• Training: Ensure management understands compliance with the Employment Equality Act and Maternity Protection Act, particularly regarding pregnancy-related adjustments.

The full case review can be found here:
https://www.legal-island.ie/articles/ire/case-law/2024/october/anna-sheridan-v-kildare-community-kare-ltd--martin-flinter--maureen-roche-flinter-2024/

These case reviews were written by Patrick Barrett BL.

Patrick's legal education is robust, beginning with a BCL Law Degree from University College Cork (2012-2016), followed by an LL.M in Business Law from the same institution (2016-2017), and culminating in a Barrister-at-Law Degree from The Honorable Society of King’s Inns in Dublin (2019-2021). He has extensive experience on the South-West Circuit, handling Civil, Family, and Criminal Law cases, as well as advising the Citizen Advice Service.  He has worked as an employment consultant, dealing with workplace investigations and bankruptcy procedures.

Remember: Our Irish case law reviews are now held in our case law section on our fully-searchable employment law hub website:
https://www.legal-island.ie/employment-law-hub/case-law-search-page/

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3. AI and Employment Law

The Gender GenAI User Gap is High But Why?

This week Barry Phillips comments on research published recently that suggests that many more males than females are using GenAI and seeks an explanation.

https://www.legal-island.ie/articles/ire/resources/ai-for-hr-weekly-podcast/2024/oct/the-gender-genai-user-gap-is-high-but-why/

Irish executives eager to adopt AI despite trust and scalability anxieties

Irish businesses are yet to introduce AI tools and systems at a scale large enough to create significant value for their organisations, KPMG’s Global Tech Report indicated, despite eagerness among senior leaders to adopt the technology. The report found that the vast majority of the 70 executives surveyed in the Republic have identified use and value cases for AI technologies but only about a quarter have been able to implement the fast-moving technology at scale. More from the Irish Times:
https://www.irishtimes.com/business/2024/10/28/irish-executives-eager-to-adopt-ai-despite-trust-and-scalability-anxieties/

Global evidence on gender gaps and generative AI

Generative AI has the potential to transform productivity and reduce inequality, but only if used broadly. In this paper, researchers from Harvard Business School show that recently identified gender gaps in AI use are nearly universal. The AI gender gap is present in nearly all regions, sectors, and occupations. Using data from two studies that offered participants the chance to use AI tools, we then show that even when the opportunity for men and women to access AI is equalized, women are still less likely to use AI. Our findings underscore the critical need for targeted interventions that go beyond access to address the structural and behavioural barriers that have resulted in a global gender gap in AI use. You can download the paper from Ideas here:
https://ideas.repec.org/p/osf/osfxxx/h6a7c.html

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4. Concerns over doubling of jobseeker's penalty

The Irish National Organisation of the Unemployed (INOU) said it is very concerned at the doubling of the penalty rate for people on a jobseeker's payment. As part of the Social Welfare Bill, the Government is proposing raising the penalty rate for people who do not engage with employment services to €90, from the current rate of €44. The INOU said that under the new proposal, a single person on the maximum Jobseeker's Allowance rate could be left trying to survive on €154 per week. More here from RTÉ:
https://www.rte.ie/news/business/2024/1025/1477479-concerns-over-doubling-of-jobseekers-penalty/

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5. Workplace Skills

Gardaí wait up to four years for high-speed pursuit training

Gardaí who are not trained for high-speed pursuits and “blue-light driving” are being encouraged to respond to incidents while they wait three to four years to receive the necessary preparation. The backlog of gardaí waiting to take competency-based driving courses continues to grow, as 10 newly qualified instructors have yet to be appointed to a driving school. The lack of training is having a significant impact on the ability of gardaí to carry out their roles, according to Garda Representative Association (GRA) president Mark O’Meara. You can read more here from the Irish Examiner:
https://www.irishexaminer.com/news/arid-41504801.html

New training initiative set to benefit Cork's retail and hospitality sectors

A partnership between Solas, the further education and training authority, and Enterprise Ireland, will help businesses to drive their growth and competitiveness. Solas and Enterprise Ireland have announced two new management-development programmes. The first is a cross-sectoral SME (small-to-medium enterprise) management-development programme, and the second is a hospitality and retail-sector specific management-development pilot programme. More here from Echo Live:
https://www.echolive.ie/corknews/arid-41505185.html

EY fires staff in US who took multiple online training courses at once

EY has fired dozens of US staff for what the accounting and consulting firm called cheating on professional training courses, sparking an internal debate about business ethics and the limits of multitasking. The dismissals took place after an investigation found that some employees had attended more than one online training class at a time during the “EY Ignite Learning Week.” The firm determined that watching two at a time amounted to an ethical breach. You can read more on this from the Irish Times:
https://www.irishtimes.com/business/2024/10/22/ey-fires-staff-in-us-who-took-multiple-online-training-courses-at-once/

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6. Data Protection & Cybersecurity

Almost 7,000 Government data breaches over last ten years

Figures released in response to a series of Parliamentary Questions from Aontú Leader Peadar Tóibín have revealed there have been 6,885 data breaches across Government departments over the last ten years:

• More than half of the breaches occurred at the Department of Social Protection
• The Department of Justice accounted for 862 of the breaches, with 757 breaches reported at the Department of Foreign Affairs
• Many of the incidents were as a result of human error which saw emails and letters being sent to incorrect recipients

Brian O’Donovan from RTÉ has more here: https://www.rte.ie/news/business/2024/1030/1478044-data-breach/

Global HR Law Guide update: Employee data privacy

The Global HR Law Guide from Ius Laboris takes you through the legal aspects of the entire employment journey, with 16 chapters covering recruitment through pensions in over 50 countries. It is a valuable tool for HR and in-house counsel and you can find it here:
https://iuslaboris.com/insights/global-hr-law-guide-update-employee-data-privacy/

74pc of Irish businesses report increase in cyberattacks this year

Cyberattacks are “growing in frequency and complexity”, according to a new cybersecurity report, which revealed that 74pc of Irish organisations surveyed suffered an increase in cyberattacks in the past year. Insurance company Hiscox just published its Cyber Readiness Report 2024 to explore the role of robust cyber resilience measures in safeguarding against attacks. Read more on the increase here:
https://www.siliconrepublic.com/enterprise/cybersecurity-resilience-report-ireland-hiscox

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7. Recruitment

Ireland could agree new deal with Kenya allowing for recruitment of more nurses and midwives

Ireland is set to attract more nurses and midwives from Kenya into the health system as a result of an agreement being developed between the two countries, Minister for Health Stephen Donnelly has said. The Minister said he was aware that the loss of key health personnel could be an issue for less wealthy countries, but the two governments would work on a deal that would be ethical and in line with WHO and OECD guidelines, reports the Irish Times:
https://www.irishtimes.com/health/2024/10/28/government-working-on-deal-to-pave-way-for-recruitment-of-more-kenyan-nurses/

Construction workers needed to bring Ireland to European standards

Ireland will need an extra 80,000 construction workers to bring the country’s lagging infrastructure up to European standards, a new report shows. The current building workforce is around 170,000, so the extra manpower would be a significant increase of almost half of that figure. However, if the industry were more productive, the number of extra builders needed would be only 20,000, the Irish Fiscal Advisory Council (IFAC) report says. More on this from Business Plus:
https://businessplus.ie/jobs/construction-workers-ireland-needed/

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8. Women and the Workplace

Pregnant bar worker faced with unproven sexual misconduct allegation wins €18,000 at WRC

A pregnant bar supervisor who was faced with unproven and previously unmentioned allegations of sexual misconduct against a male colleague after she was dismissed by her employer has won €18,000 for discrimination. More:
https://www.rte.ie/news/business/2024/1031/1478442-pregnant-bar-worker-awarded-18-000-at-wrc/

New right to postpone maternity leave in cases of serious illness

Legislation allowing an employee who receives a diagnosis of a serious illness to postpone maternity leave until treatment is concluded has been passed by the Oireachtas. The key measure in the Maternity Protection, Employment Equality and Preservation of Certain Records Bill 2024 follows the ‘Leave Our Leave’ campaign by the Irish Cancer Society. Read more from Irish Legal News:
https://www.irishlegal.com/articles/new-right-to-postpone-maternity-leave-in-cases-of-serious-illness

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9. Businesses in experience economy remain 'vulnerable', Ibec data shows

29% of businesses operating in the experience economy are less confident about their company than they were six months ago, new data shows. A survey carried out by Ibec shows that one in four of these businesses are less confident about the overall state of the economy. According to the business group, 300,000 people work in Ireland's experience economy, which contributes €4 billion to the Irish economy. Read more here:
https://www.rte.ie/news/business/2024/1030/1478064-businesses-in-experience-economy-remain-vulnerable/

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10. Just in case you missed it.............

Classification of workers – How Do I Handle It?

Our business has a mix of employees and self-employed contractors – I understand that the law may have changed recently, leading to a higher risk of contractors being deemed to be employees. How do I handle it? Michelle Ryan of Ronan Daly Jermyn has the answers:
https://www.legal-island.ie/articles/ire/features/how-do-i-handle-it/2024/october/classification-of-workers--how-do-i-handle-it/

Providing Employee References: Essential Considerations and Legal Implications for Employers

The issue of employees providing references without authority has received a lot of media coverage in recent weeks. In this article, Triona Cody of KANE / TUOHY explores some of the commonly asked questions in relation to providing references.
https://www.legal-island.ie/articles/ire/features/supplementary/2024/october/providing-employee-references-essential-considerations-and-legal-implications-for-employers/

ChatGPT Version What, What, What?

This week Barry Phillips tries to make sense of all the versions of ChatGPT4 now available and asks which is best for HR.
https://www.legal-island.ie/articles/ire/resources/ai-for-hr-weekly-podcast/2024/oct/chatgpt-version-what-what-what/

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11. HR Developments

Delivering feedback: use curiosity and empathy to improve performance

Ever had feedback backfire, leaving you feeling like the bad guy, even when your intentions were good? You’re not alone. Delivering feedback is essential for personal and professional growth, but how we communicate it makes all the difference. Knowing how to give feedback that encourages improvement, boosts confidence, and avoids defensiveness is key to building productive, trusting relationships. Forbes has guidance here:
https://www.forbes.com/sites/dianehamilton/2024/10/25/delivering-feedback-use-curiosity-and-empathy-to-improve-performance/

ADHD in the workplace – harmful myths that employers must address

Diana Podlewska Monteiro, Inclusion Partner at Bupa Insurance, shares important advice for all employers to help dispel ADHD myths from the workplace, along with offering eight practical tips to support ADHD workers in this article from HR Director:
https://www.thehrdirector.com/features/diversity-and-equality/adhd-workplace-harmful-myths-employers-must-address/

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12. Employment News in the Media

Mental health challenges are costing large law firms millions of pounds every year and reducing productivity by 19%, a report has indicated. Researchers from UK-based mental health platform Unmind based The State of Wellbeing in Law 2024 on responses from over 4,400 legal professionals at nine large law firms in the US and UK. On the financial cost of poor wellbeing, researchers estimated that the smallest firms surveyed, with an average of 600 staff, lost an average of £6.8m, the middle group of firms, with an average of 1,400 staff, lost £34m, and the largest, with an average of 2,400 staff, lost £65m. The average loss across all firms was £26m. You can read more on this from Legal Futures:
https://www.legalfutures.co.uk/latest-news/mental-health-challenges-costing-large-law-firms-millions

Dublin Business School has been ordered to pay €53,000 after admitting sacking a lecturer for logging into his college email account from Iran was unfair. Amir Sajad Esmaeily secured the award on foot of a complaint to the WRC under the Unfair Dismissals Act 1977 against Accountancy & Business College (Ireland) Limited t/a Dublin Business School. The college's position was that Mr Esmaeily had been told not to access his DBS computer system while visiting what was described in its legal submission as a "prohibited" country. More here from RTÉ:
https://www.rte.ie/news/business/2024/1029/1478015-dbs-ordered-to-pay-lecturer-sacked-for-iran-login-53-000/

A software company’s “policy” of never giving employment references in writing “contributed” to a salesman’s loss of earnings when he was left out of work following his unfair dismissal, a tribunal has found. Graziano D’Amato was awarded €42,000 following a ruling by the WRCthat his former company, TripAdmit Ltd, breached the Unfair Dismissals Act 1977 when it dismissed him. Mr D’Amato claimed that the lack of a letter of reference from the company had damaged his prospects – and was part of the reason he was still out of work nearly nine months on from his dismissal. The company’s chief executive said it was his “policy” not to give references in writing. More here from the Irish Times:
https://www.irishtimes.com/business/2024/10/24/worker-awarded-42000-for-unfair-dismissal/

A local newspaper has failed to convince a tribunal that its offer to get a receptionist a baseball bat to deal with a homeless man who repeatedly came to their office intoxicated was a "metaphor" – and has been ordered to pay her €45,000, after sacking her for making a formal health and safety complaint. The WRC was told that after staff at the 'Killarney Advertiser' asked its managing director to sign off on installing a gate as a safety measure, their boss said he would get the receptionist a baseball bat to keep at her desk and called a plan to install a security gate a "waste of time". You can read more here from RTÉ:
https://www.rte.ie/news/business/2024/1024/1477322-receptionist-sacked-after-safety-complaint-wins-45-000/

Uber Eats drivers for McDonald’s in Northern Ireland have been exposed to discrimination, bullying and exploitation, according to an investigation by the Worker Info Exchange. WIE’s ‘McExploitation’ report uncovered recordings of managers at branches in Antrim and Ballymena telling Uber drivers they must learn English in their own time; that the Romanian language sounds “harsh” and “abrupt” and that they don’t want their own employed staff complaining about this. Personnel Today has more on this:
https://www.personneltoday.com/hr/mcdonalds-uber-eats-worker-info-exchange/

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13. Free Webinars This Month

In HR and Feeling Like You’ve Missed the AI Revolution? Get up to Speed in Just 30 Minutes!

Tues 19th November, 11am - 11.30am

Register here

In thirty minutes, we will explain what is important to know in AI, to help you catch up and feel right up-to-date.

We understand there’s a lot of jargon, hype and hubris about AI and its potential. We cut right through all of this to present you with all you really need to know. We’ll explain where to start with AI and how to make the most of this amazing development for you personally, for your HR team and for your organisation.

About the Presenter :

Barry Phillips is host of the UK’s first podcast on AI specially for HR. He’s a regular speaker on AI and the use of tools such as ChatGPT.

Enjoy the weekend.

Legal-Island