Covid Observatory - Reports

Data Protection and the COVID-19 Pandemic. A Public Policy Report of the COVID-19 Legal Observatory - 14 September 2021.

The Public Policy report can be accessed here.

Public Health Law During the COVID-19 Pandemic in Ireland. A Public Policy Report of the COVID-19 Legal Observatory - 3 August 2021.

The Public Policy report can be accessed here.

A Right to Disconnect: Irish and European Legal Perspectives

The overarching recommendation is made in a newly published report – A Right to Disconnect: Irish and European Legal Perspectives – that outlines how existing laws are insufficient to provide adequate and effective enforcement of the right to disconnect. The report also details specific areas of focus in addressing this issue.

COVID-19, working from home, and the new normal.

The COVID-19 pandemic provoked a sudden increase in the proportion of people working remotely and while the vaccination programme is creating conditions that should permit a gradual return to workplaces, it seems likely that remote working will remain a prominent, new-normal feature of the post-pandemic labour market. While remote working offers flexibility in respect of where and when work is performed, it poses challenges for work-life balance. There is a particular risk that remote working gives rise to an organisational culture of constant availability.

This report explains the current law in Ireland. On the one hand, there are enforceable rights to rest found in the Organisation of Working Time Act 1997. On the other, there is a Statutory Code of Practice on the Right to Disconnect. This is not legally-binding, but it can be taken into account when the 1997 Act is being applied. Contrary to the Government’s current position, this report concludes that these instruments are insufficient to provide adequate and effective enforcement of the right to disconnect. It recommends that Ireland goes further by putting the right to disconnect into binding legislation, which should include a definition of ‘working’ and ‘leisure’ time that sufficiently captures the need to protect workers from the expectation of work as well as its actual performance, and of the circumstances in which it is permissible to contact workers outside normal working hours.

To illuminate the context and options for such legislation, the report examines the situation in EU Law, followed by discussion of the position in France and Germany. At EU level, the European Parliament has called for legislation on the right to disconnect and it has adopted detailed proposals to this end. France provides an example of the first European jurisdiction to enact a statutory right to disconnect. It demonstrates that practical implementation of this right demands the active involvement of employers and trade unions. In contrast, Germany has not yet adopted such legislation. Nevertheless, as in Ireland, there is an active debate on the rights already flowing from the law on working time and certain businesses have already taken initiatives designed to facilitate disconnection by workers.

In the light of the examples provided in this report, it concludes with a set of recommendations for measures to be addressed in any future legislation on the right to disconnect in Ireland. Legislation needs to clarify the distinction between ‘working time’ and rest periods; during the latter, the worker should not be expected to be normally available to the employer, albeit that there may be circumstances where flexibility is required. This non-availability is key – rest periods must be protected from the risk or expectation of being contacted for work purposes, whether or not work is actually performed. However, account needs to be taken of the realities of the business – including any business conducted across time zones, and flexible working arrangements. For such laws to function in practice, it is necessary that they are implemented by employers with the participation of trade unions or other workers’ representatives. To be effective in practice, all workers should be included and this should encompass ‘non-standard’ forms of employment, such as those in the ‘gig-economy’.

A Right to Disconnect: Irish and European Legal Perspectives: The full report can be accessed here

Contributors to the Report.

• Mark Bell is Regius Professor of Laws and Head of School at the School of Law, Trinity College Dublin. He has published widely on Anti-Discrimination Law and Employment Law, particularly in relation to EU law.
• Marta Lasek-Markey is a PhD candidate in the School of Law. The subject of her thesis is Posted Workers and Precariousness in Practice, and her research is funded by the Irish Research Council.
• Alan Eustace is a Scholar of Trinity and a PhD candidate in the School of Law. The subject of his thesis is The Worker and the Constitution: A Theory of Constitutional Labour Law, and his research is funded by the Irish Research Council.
• Thomas Pahlen is a PhD candidate in the School of Law. His research examines the horizontal effect of the EU Charter of Fundamental Rights in employment law.

Ireland's Emergency Powers During Covid-19 Pandemic

COVID-19: Public Policy Report on Supporting Individuals, Communities, Businesses, and the Economy

COVID-19: Public Policy Report on Supporting Individuals, Communities, Businesses, and the Economy.

Dr Deirdre Ahern and Dr Suryapratim Roy.

The COVID-19 Legal Observatory has published its report on Law and Policy Responses to COVID-19 in Ireland: Supporting Individuals, Communities, Businesses, and the Economy (Response Report). The Response Report draws on the expertise of several contributors at the School of Law and School of Social Work and Social Policy at Trinity College Dublin to provide a comprehensive analysis of the primary regulations and rights with respect to socio-economic issues arising in the wake of COVID-19.'

This is the first public policy report of the Observatory and it documents the regulatory position as of 15 October 2020.. The aim of the Observatory’s policy report series is to contribute actively to public debate and to shape public policy and law reform through analysing and evaluating Ireland’s response to COVID-19. Other policy work of the Observatory is focused on data protection issues relating to the pandemic, and the public health response to the pandemic. The Observatory is also completing a report on behalf of the Irish Human Rights and Equality Commission that analyses how Ireland has deployed emergency powers in response to the pandemic.

What is the Response Report About?

Ireland, like most of the world, has responded to the COVID-19 pandemic with an unprecedented series of restrictions on everyday life, designed to stem the spread of the virus in the interests of the common good. These restrictions have, in turn, imposed significant costs on individuals, families, and businesses. To respond to such restrictions, there have been specific State measures taken on social welfare, housing, business protection, disability and employment. These measures are in the way specific policies to deal with socio-economic concerns, some as amendments to existing laws that may confer statutory rights. Where there are no specific measures in place, it is important to be mindful of rights under existing legislation and common law rights. Where specific and existing policies and rights are not in play, there is reliance on voluntary activities in the private sector and self-regulation to address such concerns. Ireland is affected by the EU response as well – the EU’s Recovery Plan, and notably the Generation EU fund does provide hope to Member States.

The Response Report seeks to identify policies, statutory changes, existing laws and rights, and the role of private action with respect to the following areas:

• Rental Housing
• Banks and Mortgages
• Workforce and Employment
• Social Protection
• Business Interruption and Insurance
• Corporate Governance
• EU Recovery Package

The Report then discusses the potential role of human and constitutional rights in addressing socio-economic concerns arising from COVID-19, concentrating on the (i) Justiciability of socio-economic concerns, (ii) Rights-discourse in shaping executive and legislative choices, and (iii) Horizontal application of rights to private relationships.

After identifying policies and challenges with respect to the issues above, the Response Report provides recommendations for policy makers and private parties.

What are the Recommendations of the Response Report?

The recommendations of the Response Report are summarised in the Executive Summary found in the report. We provide some of the key findings below:

There have been policies on expanding protections to tenants with respect to rent increases and evictions. These need to be publicised, especially for recipients of the Pandemic Unemployment Payment. It is recommended the government reviews the current statutory regime around holiday lettings, and consider limiting no-fault evictions to landlords with no more than three residential properties.

In contrast with regulatory interventions in the rental market, mitigation of COVID-19 hardship in the mortgages’ context has relied primarily on a voluntary approach on payment breaks. Clarity is needed on how hardship may be considered by judges in repossession proceedings arising due to arrears accrued prior to the crisis, and repossession proceedings involving COVID-19 related arrears. Further, there is inconsistency in the treatment of arrears for residential and commercial properties. A code of conduct for mortgage arrears accruing in respect of commercial premises and in respect of non-primary principal residences should be introduced in the short term to assist in arrears management during and after the COVID-19 crisis.

Given redundancy appears to be inevitable, employers need to bear in mind criteria in selecting workers who would be made redundant. Equality legislation require employers to ensure there is no discrimination on grounds of gender, civil status, family status, sexual orientation, religion, age, disability, race, and membership of the Traveller community. With respect to the treatment of workers at the workplace, employers should take due care to protect employees and members of their households from being exposed to COVID-19 and appropriately consider dimensions of their wellbeing in the workplace including when working from home. The horizontal application of the European Convention on Human Rights to private relationships requires employers to avoid damage to an employee’s health, personal and family relationships. Occupational stress is sought to be reduced the operation of working time legislation that ensures a proper work-life balance, and a ‘right to disconnect’ recognised in other jurisdictions that mitigates against an ‘always-on’ culture. To alleviate stress due to working from home, taxation measures could be available to workers and employers to fund purchase of appropriate equipment.

There has been a robust and prompt social protection response in the form of a Pandemic Unemployment Payment, and an Illness Benefit for COVID-19 related absences. It is important to observe the rule of law, data privacy and transparency principles in the provision of social services.

There is considerable potential for business interruption insurance to tide over COVID-19. However, as there is ambiguity in the terms of insurance policies on their application to the crisis, it is recommended that insurance providers resolve this in favour of the insured party being covered. To prevent uncertainty, legal interpretation of issues in individual cases should be applied across the sector to avoid the need for costly and time-consuming duplicate litigation. Further, a State-backed insurance fund would reduce uncertainty of disputes in cover and provide the economic support that businesses need.

It is heartening to find many companies taking responsibility beyond their own immediate financial successes and cater to interests of different stakeholders in their corporate strategies. To provide investors with enough information to guide investment choices, and guide decision-making promoting stakeholder values among employees and management, listed companies and public companies could publish purpose statements. In order to ensure shareholder democracy, hybrid remote meetings should be encouraged and facilitated using technological tools to allow shareholders the opportunity to attend and ask questions. In order to promote liquidity and long-term value, it might be an option to encourage share buy-backs in the short-term.

COVID-19 has plunged the Eurozone into a severe recession. The European Central Bank launched a Pandemic Emergency Purchase Programme requiring Member States to raise capital to finance the pandemic, in addition to a series of measures that seek to stabilise the banking sector and support its lending activities to firms and in particular small and medium-sized enterprises. State aid rules impose constraints on Member States to put in place national stimulus packages, which creates an uneven playing field. The EU Recovery Plan including the Next Generation EU Fund was agreed on after intense negotiations, and is a welcome development. It remains to be seen the extent to which Ireland will avail of the recovery package and credit lines offered by the EU. Having said that, there are concerns on the small size, exceptional nature and limited duration of the Next Generation EU Fund. A transformational recovery of the EU economy and achievement of green and digitalisation agendas would require a more sizeable and long-term investment programme.

There is potential for requiring the State to meet its positive obligations to secure socio-economic rights, the proportionality principle should be employed as a tool in shaping policy decisions, and indirect horizontal application of rights to private parties may speak to concerns raised in different contributions to this Report.

The analysis provided in the Response Report does not indicate significant concerns around discrimination in Ireland’s public policy treatment of COVID-19. Having said that, there is scope for an analysis of structural inequality concerns in vulnerability towards catching the disease, accessing treatment, and the impacts of COVID-19.

The COVID-19 Public Policy Report can be accessed here.

More informaton on the research of the Observatory can be viewed here.