The Mediation Act 2017 recently entered into force. The act's objective is to promote mediation as an attractive alternative to court proceedings, in terms of time, cost, resources and the avoidance of acrimony. Although mediation may not be suitable for all disputes, the act provides a platform for parties to resolve their difficulties without commencing litigation where appropriate (albeit certain classes of case are excluded from its scope).
Irish businesses trying to navigate the current Brexit landscape should consider the impact of events on their contractual relationships. As Brexit will directly or indirectly affect most, if not all, transactions between Irish and UK businesses or Irish businesses doing business in the United Kingdom (including Northern Ireland), Irish suppliers must consider not only events which may directly affect them, but also their supply chain.
Minister for Business, Enterprise and Innovation Heather Humphries recently laid the Competition Act 2002 (Section 27) Order 2018 before the Houses of the Oireachtais. This will have the effect of increasing the financial thresholds for M&A requiring a notification to the Competition and Consumer Protection Commission. This is the first time that a minister has used their powers under Section 27 of the Competition Acts from 2002 to 2017.
The Department of Business, Enterprise and Innovation recently published legislation that substantially increases the financial thresholds at and above which notification of a transaction is required to the Competition and Consumer Protection Commission. From 1 January 2019, only mergers where the acquirer and target each generate €10 million or more and together generate €60 million or more turnover in Ireland will trigger mandatory notification.
The Competition and Consumer Protection Commission's (CCPC's) current scrutiny of the Restaurants Association of Ireland serves as a reminder that trade associations must be careful to stay within the lines and avoid encouraging or inadvertently facilitating anti-competitive agreements between their members. Compliance training is an essential tool to prevent unwanted scrutiny from the CCPC and other authorities.
Non-compete clauses can provide important protection for purchasers who have a legitimate interest in maintaining the value of the business they are acquiring. However, careful consideration must be given to the drafting of non-competes in order to avoid allegations of anti-competitive conduct – which is a criminal offence in Ireland – and scrutiny from competition regulators such as the Competition and Consumer Protection Commission and the European Commission.
A new bill has been proposed in the Oireachtas to grant the Competition and Consumer Protection Commission (CCPC) civil enforcement powers. At present, where the CCPC identifies a suspected breach of competition law, it must petition the court to impose criminal penalties. Under the amendment bill, the CCPC would be empowered to levy administrative fines against firms or individuals for anti-competitive practices. This would bring Ireland into line with most other EU member states.
The Supreme Court recently found the well-established regime of registered employment agreements to be unconstitutional. Uncertainty regarding the level of protection for wages and benefits of workers in the construction sector followed this decision, but has now been addressed by the Sectoral Employment Order (Construction Sector) 2017 and the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018.
The EU Trade Secrets (Enforcement, etc) Regulations 2018 recently came into effect, implementing the EU Trade Secrets Directive in Ireland. The regulations provide for the examination of a whistleblower's motivation where the disclosure or use of a trade secret is involved. Employers should be aware of this change and should, when receiving a protected disclosure, consider whether the protected disclosure contains information which might qualify as a trade secret.
The European Court of Justice (ECJ) recently handed down its eagerly awaited preliminary ruling in a decade-long age discrimination case relating to the requirement that new entrants to the Irish police service, An Garda Síochána, be under 35 years old. The ECJ's ruling will undoubtedly affect the approach taken by the Workplace Relations Commission and Labour Court when similar issues arise.
With preparations in full swing for the festive season, this article reviews typical workplace issues which are commonly faced by employers at Christmas. In addition to health and safety considerations, employers are advised to draw up rosters in early December to confirm with employees the days that they will be required to work over the holiday period. This should be done to avoid confusion or upset among staff and to comply with the Organisation of Working Time Act.
Heightened awareness of data privacy rights following the introduction of the General Data Protection Regulation has increased the number of subject access requests from current and former employees. As responding to subject access requests can be costly and time consuming, being prepared and organised can save employers considerable time and money, particularly in the context of employment disputes.
Employers cannot be expected to hold positions open indefinitely for employees who are absent on extended sick leave. However, as confirmed in a recent Labour Court determination, where an employer proposes to dismiss an employee on the grounds of incapacity or a disability, it is essential that the decision is made based on up-to-date medical advice. Otherwise, the employer may be exposed to claims of discriminatory dismissal or failure to reasonably accommodate the employee.