Fitzsimons Redmond Solicitors

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Author: Lisa Quinn O'Flaherty (page 1 of 3)

The Law on Breastfeeding in the Workplace

As we celebrate this years World Breastfeeding week, I am conscious of the inequalities of opportunity for breastfeeding mothers in the workplace and their babies. I am lucky enough to have recently returned after maternity leave to a workplace that is wholly supportive of breastfeeding. I have a nice private office where I can comfortably express milk as I work away, and colleagues who are unfazed by the whir of my double electric pump, as they pop in to my office for chats, and even bring documents from the printer so that I don’t have to unlatch the pump to do it myself. It feels uncomfortable to me that this is not a universal experience, given that breastfeeding up the age of two and beyond is both biologically normal and recommended by the World Health Organisation and most health experts.

The majority of working mothers take 26 weeks maternity leave. Breastfeeding in the workplace is explicitly protected by the Maternity Protection Act 1994 as amended for only 26 weeks following the birth of a child. Those who return to work prior to that, are entitled (by virtue of the Maternity Protection (Protection of Mothers who are Breastfeeding) Regulations 2004) to an hour a day of paid leave to breastfeed or express milk where the employer provides facilities for breastfeeding. Where there are no such facilities, the employee is entitled to a reduction in working hours, without loss of pay. There is no obligation on employers to provide these facilities unless it comes at nominal cost.

Employment contracts and individual workplace policies may provide for further protections for the breastfeeding relationship, but these are not widespread, leading to many mothers expressing milk on their lunch break in uncomfortable locations, or indeed to bring their breastfeeding journey to an earlier end than planned. It is open to all employers to implement a breastfeeding policy that encompasses the supports needed for breastfeeding in the workplace. This office can assist employers who wish to become leaders in family friendly workplaces by developing a robust breastfeeding policy tailored to suit the individual work environment.

The Safety, Health and Welfare at Work (General Application) Regulations (SI No 299 of 2007) provides that employers are obliged to conduct a hazard assessment when an employee returns to work while breastfeeding, within 26 weeks of giving birth. However, there is a general obligation under the Safety Health and Welfare at Work Act 2005 to provide a safe working environment. Breastfeeding mothers, regardless of the time since they have given birth are at risk of engorgement, blocked ducts and mastitis if they do not regularly feed their baby or express milk. There may also be other workplace specific risks for the mother or the baby, beyond 26 weeks post-partum. For this reason, all employers with breastfeeding employees should conduct a risk assessment.

If the work gives rise to a risk that cannot be mitigated the employer must temporarily adjust the working conditions or the working hours. If this is not feasible, the employee must be transferred to other work, and if such is not feasible the employee must be placed on health and safety leave. Equality legislation would indicate that reasonable accommodation must be made so as to retain the employee in her role, and to avoid leave. Such accommodation could be as simple as the use of a private space to express milk or feed, and enough time to do so.

The Equal Status Act 2000 prohibits any discrimination or harassment based on gender or family status which includes breastfeeding, so employers should ensure that all staff are made aware that breastfeeding workers are protected from any adverse comments or treatment in relation to their feeding.

The above is intended for information purposes only, and is not intended to be relied upon as legal advice. Please contact us on 01 -676 3257 for advice specific to your needs. We, at Fitzsimons Redmond, would be delighted to work with you and your business on ensuring that you are providing a family friendly workplace.

By Lisa Quinn O’Flaherty, solicitor at Fitzsimons Redmond

Are you covered? Business interruption insurance and COVID-19

We are all too aware that COVID-19 has had catastrophic financial effects on many Irish Businesses. The first place companies should look to is their specific insurance policy to ascertain if they actually have cover for the financial losses incurred as a result of the COVID-19 disruption/interruption.

Insurance cover – general

In general insurance indemnifies you for the unexpected. The basic concept of insurance is that one party, the insurer, will guarantee payment for an uncertain future event. The other party, the insured or the policyholder, pays a premium to the insurer in exchange for that protection on that uncertain future occurrence.

In basic terms, insurance policies are contracts. They are defined in scope and breadth and are designed to cover losses arising in a specified set of circumstances. All insurance policies include strict terms and policies and you, as a business and policy holder must familiarise yourself with them.

Insurance documents are specific and it is important that you read the detail provided in the policy terms and conditions. Insurance does not provide a financial safety net to cover losses which are not specified under the policy.

On examination, the majority of policies clearly indicate in terms of what is or is not covered for the purpose of business interruption.

Different types of cover

The insurance industry is made up of different types of insurance companies offering their services in different areas. It is generally broken into life and non- life policies.

Businesses require special types of insurance policies that insure against specific types of risks faced by a particular business. For example, if your business is closed because of a pandemic you will suffer financial loss. You will first need to check if you have business interruption cover and what actual cover you have for possible eventualities, such as pandemics.

There are also insurance policies available for very particular needs, such as kidnap and ransom, medical malpractice, and professional liability insurance. Even here, strict terms and conditions apply and if you are found to be reckless, exemptions may apply.

Business interruption cover

In general, business interruption insurance covers losses incurred by a business as a result of a disruption caused by an “insured peril”. This type of cover generally requires an element of damage to property, for example fire, flooding, structural damage or storm damage.

What you will be looking for is whether the “insured peril” in your policy covers a virus. The policy wording will point to what is covered. Some more specific policies may expressly cover losses caused by communicable or infectious diseases. On the other hand some policies specifically exclude business interruption cover for a virus on a global or local scale. The risk can be unquantifiable and impossible to cover.

The Irish Central Bank and COVID-19

The Central Bank has issued a number of statements in respect of how regulated insurance firms should treat businesses in light of the significant economic disruption caused by the COVID-19 public health emergency.It has communicated with the insurance companies requiring them to take account of the challenging situation in which many businesses find themselves and has put forward consumer-focused solutions for insurance payment breaks, policy rebates and claims in light of the emergency.

In relation to insurance claims, the Central Bank stated in June 2020, “ firms must ensure that any settlement offer made to you is fair, takes into account all relevant factors and represents the firm’s best estimate of your reasonable entitlement under the policy. Firms must ensure that they handle claims effectively and properly. Although we expect that most policy wordings are clear in terms of what cover is provided and what is excluded, where there is a doubt about the meaning of a term, the interpretation most favourable to you should prevail. Firms must ensure that claims are appropriately assessed and where there is insurance cover in place that your claim is accepted and paid promptly”.

Where a claim is made because a business has closed as a result of a Government direction due to contagious or infectious disease, the Central Bank is of the view that that the recent Government advice to close a business in the context of COVID-19 should be treated as a direction. This is a view that has also been set out by the Minister for Finance, Public Expenditure and Reform. Firms must ensure that claims are appropriately assessed and where there is insurance cover in place that claims are accepted and paid promptly.

Importantly, in March 2020, The Central Bank of Ireland advised insurance companies that the interpretation of any ambiguous clauses surrounding policy cover for COVID-19 related claims should be read in favour of the consumer.

This has been interpreted in some commentary as a new concept, however it simply reaffirms the long standing rule of contra proferentem. This simply means that insurers have always been obliged to interpret ambiguous terms in favour of the insured.

The Central Bank has also requested insurers to submit detailed breakdowns of their business interruption policies including details of how policies with ambiguous language are being dealt with.

The above is intended for information purposes only, and is not intended to be relied upon as legal advice. Please contact us on 01 -676 3257 for advice specific to your needs. We, at Fitzsimons Redmond, would be delighted to work with you and your business in determining if your policy includes business interruption arising from COVID-19.

When is a Data Protection Impact Assessment (DPIA) needed?

A Data Protection Impact Assessment is a risk assessment in respect of the effects of data collection and processing on the data subject.

GDPR makes it compulsory to complete a DPIA if the processing of personal data is “likely to result in a high risk to the rights and freedoms of natural persons”. Such a risk includes where there is a possibility of disclosure of data (intentionally or by way of data breach) or where the use of the data has an impact on the data subject.

Even when a DPIA does not appear to be mandatory, it is always a good idea to complete the impact assessment on the occurrence of certain events, in order to be able to demonstrate GDPR compliance if an issue should ever arise and to ensure that your organisation is following best practice in relation to the privacy of your staff, customers and others. I would regard the following events as being a trigger to a DPIA:

– Opening a new business;
– The beginning of any new project involving personal data;
– If you begin collecting or processing special category data;
– If you begin to use data in a new way;
– The beginning of any direct marketing campaign;
– A new relationship wherein you will be passing data to a third party;
– Use of new software or IT;
– Employing a number of employees or creating a new category of employee;
– Every few years to ensure continuing good practice.

The DPIA involves describing the data processing activity, assessing the necessity and proportionality of the processing, identifying and assessing the risks to the rights and freedoms of individuals and stating the measures that will be taken to mitigate the risks. It involves compliance with approved codes of conduct. The DPIA is a living document and you will likely refer to it often, and use it as a guide for your data processing activities.

The above is intended for information purposes only, and is not intended to be relied upon as legal advice Please contact us on 01- 6763257 for advice specific to your needs. We, at Fitzsimons Redmond are happy to work with you to develop a robust DPIA for your business.
By Lisa Quinn O’Flaherty

Data Protection and GDPR for Small Businesses

 

What is Data Protection and GDPR?

Data protection and the governing regulation, GDPR are the rules surrounding personal data. Personal data is any information from which an individual may be identified. The rules require that you have a valid reason for holding personal data and that you treat personal data with due care. GDPR explains in detail the valid reasons and the way data should be treated.

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Gender Equality, Diversity and Inclusion Charter

Fitzsimons Redmond is delighted to become a signatory to the Law Society of Ireland’s Gender Equality, Diversity and Inclusion Charter. We are committed to being a leader in respect of fairness, equality of opportunity and inclusion. The signatories to this Charter have committed to treat all individuals and groups of individuals fairly and equally and no less favourably, specific to their needs, in areas of gender, civil status, family status, sexual orientation, religion, age, race, class, disability or membership of the Traveller Community. As such, signatories will:

  • Recognise the individual needs of those they employ and support them to develop to their full potential.
  • Ensure equal access to opportunities for those they employ.
  • Ensure their policies, procedures and processes promote gender equality, diversity and inclusion.
  • Carry out their work without bias, in a respectful and non-discriminatory manner.
  • Build awareness and understanding of the benefits of promoting gender equality, diversity and inclusion.
  • Assign responsibility for meeting the Gender Equality, Diversity and Inclusion Charter commitments to a named senior partner or member of staff.

Our GEDI Director is Lisa Quinn O’Flaherty, solicitor. She can be contacted at lisa@fitzsimonsredmond.ie.

Health and Safety considerations in opening your workplace in the wake of Covid-19

 

Employers have been faced with numerous new challenges and responsibilities in the wake of Covid-19. This article aims to make it easier for employers to be aware of their new responsibilities to their workers.

The Safety, Health and Welfare at Work Act is the main piece of legislation that governs a safe workplace and requires employers to provide a safe working environment. Employers also need to be vigilant to protect themselves from civil claims in relation to workplace injuries. There is no relaxation of the usual rules during this crisis.

 

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Citizenship by Naturalisation – Court of Appeal Decision

 

The Court of Appeal has overturned the High Court decision in the Roderick Jones case. The High Court had made a finding that a the requirement for a naturalisation applicant to have ‘continuous residence’ in Ireland for one year prior to submitting their papers, was in fact, a requirement to remain within in the state for a one-year period. This decision was widely criticised as it left a number of applicants in limbo, having previously relied on the ‘six week rule’.

 

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A Big Welcome to Andrew Young

We are all delighted to welcome back Andrew Young to Fitzsimons Redmond, as a legal executive. Andrew previously worked here as a summer intern in 2018 and we are delighted to welcome him back. Since he last worked here, he has completed his law degree at Dublin Business School and has worked in the corporate and commercial section of an international law firm. Andrew plans to begin the law society entrance exams shortly, and then begin his solicitor traineeship. We hope he will be very happy with us!

Lisa is a finalist for Lawyer of the Year

Our Lisa Quinn O’Flaherty has been shortlisted as a finalist in the Lawyer of the Year category of the Lincoln Early Career Awards 2019. We wish her every success at the award ceremony in October.

Innovate Legal: Dublin

Solicitor, Lisa Quinn O’Flaherty has been invited to take part in a panel discussion on innovation in the legal profession and the business of law, at the Innovate Legal: Dublin event, which will take place at Huckletree, Pearse Street on Tuesday 17th September at 18.00pm. This is one of a series of information events for legal professionals organised by Clio, and the first to take place in Ireland. Lisa will be discussing, together with other legal innovators, what Fitzsimons Redmond does to ensure that we are on top of legal trends and what we do differently to ensure a high standard of client service.

The event is free and open to the public. Tickets may be booked via eventbrite:

https://innovate-legal-dublin.eventbrite.com/?aff=Lisa

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