The ‘fundamental operability’ of the Government’s emergency jobs legislation has been flagged by legal experts.

The Law Society expert Employment and Equality Law Committee has expressed concern about the Government’s package to support employers.

Submission

It has made a submission to Government, pointing to ambiguity and uncertainty around its application to solicitors' practices. 

President Michele O’Boyle has sent a comprehensive submission to the Minister for Employment Affairs and Social Protection, addressing fundamental aspects of section 26 of the Emergency Measures in the Public Interest (Covid-19) Bill 2020,

The Committee believes that the Temporary Wage Subsidy Provision (TWSP), as currently drafted, is unlikely to be availed of by most employers and this will stymie the stated aim of the legislation.

In order to ensure the TWSP is effective, the Committee has suggested the following:

1.   That eligibility for the TWSP should not be:

• Linked to complex concepts such as "turnover". (This concept is broad, difficult to define and could include both domestic and non-domestic turnover. It also introduces uncertainty around the appropriate comparison period),
• Conditional upon "an inability to pay emoluments" because as currently drafted this gateway to eligibility is vague and difficult to understand.
• It potentially means that the employer needs to be insolvent and if this is the case, it is hard to see how legally or practically an employer could 'top up' the TWSP, as is the Government's stated desire (this is also problematic where the Revenue intends to publish the names of those employers who avail of the TWSP which is a matter we would also respectfully request be reconsidered in the interests of confidentiality).

2.   That eligibility for the TWSP should be based instead on the following conditions:

• The employer's reasonable belief that solely as a result of the economic disruption caused by the Covid-19 pandemic and not otherwise, that it will need to do one of the following in respect of its employees:

1. To lay off some or all of its employees for at least the duration of the emergency (to 30 June),
2. To place some or all of its employees on short-time for at least the duration of the emergency (to 30 June),
3. To  terminate the employment of some or all employees by reason of redundancy, and

• That the employer can declare that but for the Covid-19 emergency, the business had no proposals to implement layoffs, short-time or redundancies in the period to 30 June,
• That the employer has a reasonable belief that it will retain the employees in employment when the Covid-19 emergency measures as they relate to the cessation of commercial activity and free movement of people, cease to have effect (or some other appropriate time bound limitation to that effect.)

Non-partisan

The Committee makes clear it has offered these suggested amendments in a constructive and non-partisan fashion, given its expertise and membership of lawyers who advise, and represent, employees, employers, representative bodies and trade unions.

The letter is signed by Catherine O’Flynn, (small picture), chair of the Law Society Employment and Equality Law Committee, who is a partner at William Fry in Dublin.