NEWS & PUBLICATIONS

For greater discussion on Wills, Enduring Powers of Attorney (EPAs) and new legislation on assisted decision-making, including Advance Healthcare Directives, coming fast down the tracks with a proposed “go live” date of 21^st November next most recently advised by the new Decision Support Service, check out a podcast on the topic called Money Matters with our partner, Anne-Marie Linehan; Red FM’s, Jonathan Healy and Cork based financial services firm Provest’s, Una Jennings.

Alternatively, click here to listen on Spotify.

 

Introduction:

The Payment of Wages (Amendment) (Tips and Gratuities) Act 2022 was signed into law on 20 July 2022. The Act, which requires a Ministerial Order to commence, will require employers in certain sectors to pass tips and gratuities received in an electronic mode of payment to staff. The Act will also prohibit employers from using these tips and gratuities to ‘make up’ an employee’s basic wage and will provide more information to consumers about how their money will be distributed should they decide to leave a tip.

Key Components of the Bill:

• • Employers will no longer be allowed to use tips to make up statutory or contractual pay entitlements. Tips and gratuities will be distributed only in addition to wages.
  • Employees will now be entitled to tips paid electronically by credit or debit card. Employers will be obliged to show the value of tips received in a period and the portion paid to the individual employee for that period.
  • The Act only regulates electronic payments. Cash tips are not included as this would not be considered ‘workable’ according to the Workplace Relations Commission (WRC).
  • Employers will not be authorised to retain tips for themselves except where the employer can prove they perform, to a substantial degree, the same work performed by the employees who receive a share of electronic tips. The employer may only retain such amount that is fair and reasonable in the circumstances having regard to the amount of work performed during the period specified.
  • Any charge labelled as a ‘service charge’ or charge for service must now be dealt with the same as any other electronic tip received.
  • The Act requires employers to provide evidence of a clear policy, visible to the public on how the business deals with tips, gratuities and service charges.
  • Templates on how to display policy on tips will be circulated to employers.
  • The Minister for Enterprise, Trade and Employment must review the legislation after it has been in effect for one year.

Conclusion:

One of the main changes brought about by this Act is that it will eradicate certain bad practices that exist in areas such as parts of the hospitality sector. As society moves further away from regular cash transactions toward contactless payments, this protection for employees is absolutely necessary. The requirement for the employer to display a policy on tips publicly is also a welcome development for the consumer. This prevents any misleading of customers and gives the public the assurance that their money is reaching the person they intended to pay. For example, the Act removes any confusion surrounding the term ‘service charge’ and what this means. Overall, the Act is a positive development as it protects employees, informs the consumer and places little burden or cost on the employer.

For more information on this topic please contact Patricia Canty of our employment department on 021-7300200 or by email to pcanty@jwod.ie

Introduction:

The Sick Leave Act 2022 became law on the 20^th July 2022. Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar, has announced that the Sick Leave Act 2022 will come into force from the 1^st of January 2023. This Act will, for the first time, introduce an entitlement for all employees to sick leave paid by their employer in addition to illness benefit from the State.

This legislation will bring Ireland into line with other developed states across Europe who provide statutory protection for those employees who cannot work due to illness.

The need for such legislation was highlighted during the Covid-19 pandemic as there remained no legal requirement for employers to pay when an employee was out with an illness.

Speaking about the commencement of the Sick Leave Act, the Tánaiste said:

“Nobody should have to go to work when they are sick for fear of having no income. It’s not good for them or their co-workers. For the first time, there will be an entitlement for almost all employees to paid sick leave. The entitlement is based on the calendar year.

“This is a very important new right for all employees and was a personal priority for me as Minister. Given the current challenging business environment and inflation in particular, I have concluded that the fairest and most appropriate approach is to introduce the entitlement on 1 January 2023.”

What the new Legislation entails:

• The scheme will be rolled out over 4 years. Employees will be entitled to 3 days’ paid sick leave per year in year one. This will increase to 5 days in year two, 7 days in year three, and 10 days in year four.
• Employees will receive 70% of their normal daily wage subject to a daily maximum of €110.
• These provisions can be reviewed at Ministerial level in order to deal with inflation rates and increased incomes over time.
• The scheme will be enforced through the Workplace Relations Commission and the Irish Courts system.

Requirements for employees in order to qualify:

• The employee must have worked for the employer for no less than 13 continuous weeks prior to seeking sick pay.
• An employee seeking to avail of sick pay must have a valid medical certificate (i.e. certified by a GP as unfit to work).

Consequences for the employer:

• Employers are not to treat differently those who take or apply for sick pay.
• Employers are advised to review their standard employment contracts urgently.
• If an employer offers a sick pay scheme which is as favourable as the statutory provision, then the employer is not under any new obligation.
• If an employer offers a sick pay scheme more favourable than the statutory provision there is no obligation to adjust their existing scheme.
• If an employer offers a sick pay scheme less favourable than the statutory scheme then it will be “deemed to be so modified” so that it is not less favourable.
• An employer who cannot afford to pay workers in accordance with the scheme can apply to the Labour Court for an exemption. This exemption will last for a minimum of 3 months and up to 1 year.

Conclusion:

The upcoming commencement of the Sick Leave Act 2022 is a further example of Ireland’s commitment to provide a modern statutory framework which will protect the rights of employees. In recent years, the legislature has introduced acts governing paternity benefit, parental leave benefit, enhanced maternity benefit, treatment benefit and the extension of social insurance benefits to the self-employed. The Sick leave Act 2022 will undoubtedly be a significant development in the law protecting workers in this state, particularly those in the low-income sector. The Act aims to not impose any unrealistic obligations on employers through its 4-year implementation period as outlined above. This will give employers sufficient time to plan and budget if they do not have an adequate sick pay scheme in their standard employee contract.

For more information on this topic please contact Patricia Canty of our employment department on 021-7300200 or by email to pcanty@jwod.ie

We wish to congratulate our colleague Colm Tobin on recently completing the Law Society’s Diploma in Construction Law. Colm currently works with our property team and will also assist the construction team on future projects.

The Minister for Justice received Government approval in May of this year to reform the duty of care legislation. Following a review of existing legislation in this jurisdiction and abroad, it appears major changes are contemplated for the Occupiers Liability Act, 1995 which, it is claimed, will be seen to be a key factor in reducing insurance costs.

The proposed reform will include “voluntary assumption of risk” under Head 5 of 1995 Act.  The proposed reform contains four key developments:

• Inserting into primary law a number of recent court decisions which rebalance the duty of care owed by occupiers to visitors and recreational users such as the Court of Appeal ruling in Byrne -v- Ardenheath Company Limited [2017] IECA 293.
• A change in the standard to reckless disregard, i.e., it is the standard of “reckless disregard” which will apply rather than the current standards.
• Limits to the circumstances in which a Court can impose liability on the occupier of a premises where a person has entered onto the premises for the purpose of committing an offence; and
• Allowing for a boarder range of scenarios where it can be shown that a visitor or customer has voluntarily assumed a risk resulting in harm.

It is claimed that the proposed amendments will seek to strike a fairer and more reasonable balance, between the steps an owner or occupier of a premises must take to keep their customers and visitors safe, and what individuals themselves can be expected to take responsibility for when entering such premises. The proposed legislation will be placed before the Oireachtas for enactment as part of the Courts and Civil Law (Miscellaneous Provisions) Bill, 2022 which is currently at committee stage.

If you would like further information in relation to any of the above, please contact Ciara Lehane, Associate Solicitor by email to clehane@jwod.ie or call 021-7300200.

John Fuller (Partner, Corporate) of J.W. O’Donovan Solicitors LLP has acted for Trustap Limited in relation to its recent fundraising of €3.1 million from Middlegame Ventures, Act and Atlantic Bridge.

Trustap is a digital transaction platform that protects a purchaser from being scammed when transacting with someone they don’t know and essentially brings peace of mind to the user when engaging in an online or face-to-face transactions.

Trustap Limited was founded in Cork in 2017 and is growing quickly, with offices in Ireland, the UK and the US. Chief executive and founder Conor Lyden is quoted in saying “the one thing that has been a big focus for us, is hiring more developers, and also the build out of our sales team, particularly in the US.” The largest fundraise to date for the company will see their Irish team grow again and will be used for marketing, expanding into new markets, and the roll out of new features.

J.W. O’Donovan Solicitors LLP were delighted to act in the fundraising for this Cork headquartered company and look forward to what’s to come for Trustap Limited.

The High Court has provided clarification on the extent of losses that Insurance group FBD must cover under its business interruption policy. Certain issues in relation to the scope of losses were raised a test case of four pubs. Following on from our previous articles in relation to this interesting case, Justice Denis McDonald ruled that FBD must indemnify Sean’s Bar in Athlone, as well as the Lemon and Duke, The Leopardstown Inn and Sinnott’s in Dublin as a result of these businesses having to close due to the Covid-19 pandemic.  It is reported that the ruling will affect an estimated 1,000 pub policies.

In Mr. Justice McDonald’s recent judgment, he provided further clarity concerning the issues to be taken into account by FBD in assessing the amount of compensation to be paid to the businesses.

Mr. Justice McDonald found that the Dublin pubs were subject to an early closing requirement during a number of periods from the 10^th of August 2020 and were entitled to be indemnified in respect of the losses they had suffered.  He was also asked to adjudicate on a claim by the pubs for compensation in relation to retaining staff and continuing to pay certain staff while the premises were closed.  He found each of the claims to be partly successful, with the exception of the Leopardstown Inn in light of the evidence.

Mr. Justice McDonald noted the extensive efforts made by the parties to address the issues regarding the quantum of the losses and in relation to those issues that remained outstanding.

The Judge also concluded that FBD is not entitled to pursue any issue in relation to under insurance.

The case will return before the Court next month wherein we will provide a further update in relation to this interesting case.

Please email any queries to clehane@jwod.ie

J.W. O’Donovan LLP acted as legal advisors to the shareholders of Demesne Electrical Sales Limited in the sale of the company to OEM International.

The acquisition, which took effect on the 13^th of January 2022, sees OEM International acquire Ireland’s leading independent importer and distributor of electrical control, switchgear, energy saving & installation products. Founded in 1977, Demesne Electrical has grown from humble beginnings in a house Dublin’s Robin Hill Road to a HQ facility in Dublin 24 and national distribution centres in Cork and Dungannon. The company’s total revenue is now circa €20 million. OEM International’s President and CEO Jörgen Zahlin is quoted in saying that their company’s ambition is to “further develop and grow the existing Demesne business and to gradually strengthen the customer offering”. Now under new ownership, Demesne Electrical Sales Limited will continue on a path of further innovation and excellence in the electrical industry.

The team at J.W. O’Donovan LLP was led by John Fuller (Partner, Corporate), with assistance from Anne-Marie Linehan (Partner, Property), and David Pearson (Partner, Employment).

Ms. Justice Niamh Hyland delivered a very interesting Judgment which received a significant amount of publicity in the last week. The Judgment related to a Plaintiff who sustained a significant injury to his hand (with loss of left index finger) whilst assisting in a voluntary capacity with some building works taking place at Cobh Golf Club.

By way of background, the Plaintiff was a scratch golfer and had been a member at Cobh Golf Club since 2009.  It is well established in case law that a member of a club cannot sue their fellow members, however, Ms Justice Hyland held that the Plaintiff was not, in fact, a member at the time of the incident given that he had failed to pay his membership fees in full.

There was a lot of discussion around the case law and the implications of Club Membership for the Plaintiff given that a club has no separate legal identity from that of its members and as such a member suing the club (or the club’s trustees) was in law suing himself. Accordingly, the Constitution of the Club was examined in detail by the Court.  The Judge held that the wording of the Constitution was “crystal clear” and disregarded the fact that the Plaintiff had played in competitions for the Club after the 31^st January (when membership would have been terminated for non-payment of fees) stating that “the Club was simply not applying its own rules of membership.”  Furthermore, the court also rejected the argument that the practice of the club was to treat the Plaintiff as a member and, therefore, he could not sue.

The Judge went on to find that the Defendants were vicariously liable for the accident and that the evidence established liability, awarding €100,000 in General Damages to the Plaintiff.

It remains to be seen whether an Appeal will be lodged in respect of the award for damages, however this Judgment certainly shines a light on the importance of Club Rules being followed to a “tee”.

A copy of the full Judgment can be viewed by clicking on the following link: https://www.courts.ie/acc/alfresco/b6307282-5fa4-403f-b4c7-7a71e3e20d21/2021_IEHC_679.pdf/pdf#view=fitH

If you would like further information in relation to any of the above, please contact Ciara Lehane, Associate Solicitor by email to clehane@jwod.ie or call 021-7300200.

This article will be updated in the event of Appeal.