Public Notice

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Dear friends,

The recently enacted Emergency Measures in the Public Interest Bill has brought wide ranging changes to the law, which impacts almost everyone in our community. From local businesses to tenants and small landlords, there are important changes to the law which should be taken account of.

Please read below this memo prepared by Prospect Law for all of our clients and the wider community.

Main Provisions of Emergency Measures Act 2020

1. The stated aim of the legislation is to reduce the spread of the disease, having regard to the State’s constitutional duty to vindicate, as far as possible, the right to life and to bodily integrity of citizens. The legislation also aims to mitigate the adverse economic consequences created by the spread of Covid-19 and maintain essential public services during the pandemic.

2. Its provisions include a prohibition on rent increases and evictions. It also allows restaurants to adapt to the current circumstances by becoming takeaways. In order to facilitate recruitment, it provides for the rehiring of retired health care workers and former soldiers. In terms of economic measures, it provides a temporary income support scheme by contributing to wage costs to allow employers to continue paying their employees. In relation to employees being laid off or placed on short time due to Covid-19, a longer period must now elapse before they are entitled to apply for a redundancy payment.

3. The main pieces of legislation amended by the Act are the Residential Tenancies Act 2004-2019, the Planning and Development Acts, Dentists Act 1985, the Health and Social Care Professionals Act 2005, the Pharmacy Act 2007, the Medical Practitioners Act 2007, the Nurses and Midwives Act 2011, Mental Health Act 2001, Defence 1954, Taxes Consolidation Act 1997, Redundancy Payments Act 1967 and Civil Registration Act 2004. The Act will be examined having regard to provisions designed to mitigate adverse economic consequences, measures designed to facilitate recruitment in crucial areas and finally, the provisions relating to the maintenance of vital public services for the duration of the crisis.

Provisions designed to mitigate the economic impact of Covid-19

4. Part 2 of the Act is designed to protect residential tenancies and amends the Residential Tenancies Act 2004-2019. It introduces measures to apply for the duration of the emergency period. This period consists of an initial 3 months, commencing on the enactment of the Act. This period may be extended by order of the Government. Any order to extend the emergency period must be laid before the Houses of the Oireachtas at the soonest available opportunity thereafter. The Houses of the Oireachtas may annul any such order but this is without prejudice to the validity of anything previously done thereunder.

5. During the emergency period residential tenancies may not be terminated. Termination provisions address both existing Notices of Termination which would have terminated tenancies during the emergency period as well as potential new ones which could have arisen during the emergency period.

6. The provisions relate to residential tenancies only and commercial tenancies are not covered by the provisions of this Act.

7. Tenants’ rights to acquire a ‘Part 4’ tenancy, which is a right to remain in the property for a five a half year period, once an initial period of six months’ occupation has taken place, will also be suspended during the emergency period. Likewise, there will be a suspension of rent increases during of the emergency period.

8. Further measures to mitigate economic impact include a wage subsidy to employers paying staff wages. This is contained in Part 7 of the Act. This amends the Taxes Consolidation Act 1997 and provides for the introduction of a Temporary Wage Subsidy Scheme. The scheme, which is operated by the Revenue Commissioners, provides for Government contribution to eligible firms’ wage costs by paying them a subsidy towards employee wages on a temporary basis. The scheme runs from 26 March 2020 until such time as the Minister determines and specifies in an order. The payments are liable to income tax, which will be taxable at the end of the year. The scheme is operates across all sectors.

9. In order to avail of the wage subsidy, an employer must satisfy the following conditions:

• Business has been adversely affected by Covid-19 to a significant extent, such that the employer can no longer pay a specified employee their usual wages;
• The employer has the firm intention of continuing to pay the specified person and is making best efforts to continue to pay the employee some of their wages;
• The employer must be able to demonstrate to the Revenue Commissioners that between 14 March and 30 June 2020 at least a 25% reduction in turnover of the employer’s business or customer orders being received by the employer occurred;
• The employer must submit ‘Covid-19: Temporary Wage Subsidy Scheme’ declaration through the online system of the Revenue Commissioners and must provide access to the employer’s bank account.

10. In relation to sums payable, where the net weekly emoluments amount to less than €586 per week, the maximum payable will be 70% of the net weekly emoluments. Where the net weekly emoluments exceed €586 but are less than €960, the maximum payable is determined by the Minister. No wage subsidy is payable over €960 per week.

11. The names and addresses of employers paid the temporary wage subsidy will be published on Revenue’s website. A person may be guilty of an offence where any false information in connection with the operation of or eligibility for a temporary wage subsidy is provided under these provisions.

12. In relation to practising solicitors, advice provided by the Law Society of Ireland to the profession specifies that in order to show 25% reduction in turnover or customer orders being received by the employer, a solicitor may reference the decrease in new files opened during the emergency period.

13. The Act as passed appears to prohibit any subsidy where employees earn more than €80,000 per annum. It does not appear to be permissible to subsidise the portion of their wage that falls below the threshold either. According to Michael McDowell SC workers in this bracket could potentially face lay off or redundancy. He states that ‘the anti-avoidance provisions in the Act suggest strongly that a key employee earning that kind of salary cannot simply agree to a temporary cut to bring him or her below the threshold.’ He considers that wage subsidy threshold is ‘arbitrary’ and will affect some businesses severely. He suggests that this provision should be amended. He also notes that no provision exists in relation to self-employed individuals and states that ‘treating self-employed tradesmen as though they were wealthy professionals is wrong. We need a package for the most vulnerable self-employed. (Michael McDowell, Covid Crisis raises important points on the limits of the EU, available at https://www.irishtimes.com/opinion/michael-mcdowell-covid-19-crisis-raises-important-points-on-the-limits-of-the-eu-1.4216994)

14. Another area covered by the Act is redundancy payment. Part 8 amends section 12 of the Redundancy Payments Act 1967, by inserting a new section which provides that an employee who has been temporarily laid off or kept on short time due to the Covid-19 crisis will not be entitled to claim a redundancy payment during the duration of the emergency period. This period can be extended, prior to the expiration of the emergency period, by Government Order, at the request of the Minister.

Provisions designed to facilitate recruitment

15. Part 4 of the Act is designed to facilitate the re-employment of retired healthcare workers by allowing regulators to adopt a streamlined and simplified restoration process to the register of their profession for individuals who wish to respond to the Covid-19 emergency. The measures apply to doctors, nurses, midwives, dentists, pharmacists and other health and social care professionals such as social workers, physiotherapists, radiographers, dietitians, opticians and occupational therapists. The provisions abolish any fees for reregistration.

16. The Act also provides that, for the duration of the emergency period, where a registered health practitioner carries out activities under the direction or control of a registered medical practitioner, that person may not be investigated by the Medical Council for performing those functions.

17. The provisions under Part 4 of the Act will cease to have effect on 31 July 2020, unless amended by Ministerial Order.

18. In relation to the Defence Forces, Part 6 of the Act provides for the amendment of the Defence Act 1954 to allow re-enlistment of formerly enlisted persons to fill certain critical technical positions that may arise in the Permanent Defence Force.

Provisions relating to Maintaining the functioning of public services

19. Under Part 3 of the Act, certain deadlines under the Building Control Act 1990, the Derelict Sites Act 1990, the Planning and Development Act 2000, the Urban Regeneration and Housing Act 2015 and the Planning and Development (Housing) and Residential Tenancies Act 2016 are to be set aside. These measures aim to avoid statutory deadlines being breached and the planning and building control systems being compromised in the event of further impacts of COVID-19 on the community or workforce. Planning permission, which is generally valid for 5, 7 or 10 years from the date of grant will be extended by the same period as the duration of the emergency suspension period. The time limits for the Board to make a decision on an application or an appeal are also extended and the time limit for a party to appeal a decision will also be extended by the same period. This provision may be extended until 9 November 2020. The provisions are modelled on similar provisions in the planning laws that cover the Christmas period.

20. The pausing of statutory periods under planning legislation is also to allow flexibility for the immediate provision of temporary health facilities including hospitals and isolation units.

21. In addition, the measures provide that a change of use from a restaurant to a takeaway does not require planning consent for the duration of the emergency. Furthermore, food and retail sectors businesses which operate outside hours which would not comply with their planning permission will not be subject to enforcement action having regard to the compelling reasons in the public interest to support the delivery of food and essential supplies during the crisis.

22. Further amendments relate to maintaining vital public functions during the emergency. In order to facilitate the ongoing operation of the Mental Health Tribunals for the duration of the exceptional circumstances caused by the pandemic, Part 5 amends various sections of the Mental Health Act 2001. In relation to the carrying out of reviews under section 18 of that Act, the provisions extend the period within which the Tribunal must make decisions on individual cases. The Act also broadens the list of consultant psychiatrists available to the Tribunal. In addition, it allow for reduced physical contact by allowing examination of a patient remotely by a second psychiatrist. In order to minimise personal interaction, it allows for paper-based Tribunals and for Tribunals to be held by one member. For the duration of the emergency, the Act removes the possibility of psychosurgery where one member may be making decisions.

23. Part 9 includes provisions to amend the Civil Registration Act 2004 to extend the functions of an tArd-Chláraitheoir and his staff to perform some of the functions of a registrar or a Superintendent Registrar in the event of the Registration Office being closed down temporarily because of the pandemic. Regarding the registration of a birth or a death, for the duration of the emergency, the obligation on a qualified informant (usually next-of-kin) to attend a registration office is suspended

We hope you find this memo helpful and please contact us if you wish to seek legal advice.

Take care and stay safe during this difficult period.

Prospect Law