Employees spend a good portion of their waking hours in the working environment. Often with people who share similar interests to themselves, given this it isn’t a surprise that relationships […]
Annual leave is paid time off work that employees are granted by their employers - it can be used for whatever the employee wishes. It is important for employees to recharge the batteries and annual leave helps maintain a motivated and productive workforce. It is essential to note that the employer is statutorily obliged to provide a certain amount of annual leave to his or her employees. An employer can, of course, provide more leave than he or she is obliged to give – if an employer offers more leave to employees with long service histories or employees who exceed targets, for instance, this policy should be clearly defined and should be applied fairly across the board.
Regardless of the employee’s status or length of their service everyone is entitled to annual leave. All time worked is eligible for paid holidays.
a) The most common method used is: 4 working weeks in a leave year during which the employee works a minimum of 1,365 hours (Unless the employee has changed employment during that year).
b) 1/3 of the employee’s working week per calendar month of at least 117 working hours (Eg: 1.67 * 12 = 20 days)
c) 8% (.08) of the hours worked by the employee in the leave year (the total is not to exceed 4 working weeks)
In some instances an employee’s leave could be worked out using more than one of the approaches listed above – where this is the case all applicable methods should be calculated and the employee shall be entitled to the highest result. Remember - the maximum statutory annual leave entitlement is four of his / her normal working weeks.
Not everyone works a 9-5 office job and not all employees earn the same gross figure on a weekly basis so here is a guide on how to determine holiday pay due to various categories of employees:
(a) If the employee’s pay is calculated by a fixed rate or a salary then the figure due to the employee per week of paid annual leave is equivalent to the amount he or she received for the normal weekly working hours last worked - This payment includes any regular bonus or allowance (that isn’t based on work completed) - it excludes any overtime pay.
(b) If the employee’s pay is not calculated by a fixed rate or salary but instead by commission, for instance (or based on productivity rates) the amount paid to this employee per week of annual leave should equal their average weekly pay calculated over the 13 weeks prior to their annual leave commencing. (If the employee did not work during that period, the average weekly pay is calculated over the 13 weeks prior to the employee’s last working day before the annual leave commences. This excludes overtime.
In order to accurately calculate the number of annual leave days an employee is entitled to it is necessary to incorporate all hours worked in the calculation including time spent on annual leave (yes, employees accrue annual leave while on annual leave!), time spent on maternity leave, parental leave, force majeure leave or adoptive leave as well as time spent on the first 13 weeks of carer’s leave. Employees do not accrue annual leave while on sick leave, occupational injury, temporary lay-off, or career break.
If an employee falls sick during his or her annual leave this day(s) is not counted as annual leave (once it is covered by a medical certificate) and the annual leave day is kept for them to use at a later date.
It is common practice for an employee to request their desired leave dates and usually, once an agreed period of advance notice is given (allowing the employer to arrange suitable cover etc.), the employer agrees. Annual leave is usually discussed in terms of weeks but, with employer consent, it can be broken down into shorter periods – often days or even half days at a time. It is the employer who approves holidays (it would not work from a business perspective if all employees were to arrange leave at the same time, for instance). The employer is, however, required to take the employee’s family responsibilities and need for rest and recreation into consideration.
This annual leave must be given to employees within the leave year or, with the consent of the employee, within the first six months of the following year. The onus is on the employer to ensure that the employee takes their statutory leave allocation within the appropriate period. Employees may, with the consent of the employer, carry over holidays that exceed the statutory allowance to the next year.
If the contract of employment is terminated and there is unused annual leave in respect of the employee the employer is obliged to compensate the employee for the accrued leave. It is illegal to pay an employee in lieu of the minimum statutory leave entitlement unless the employment relationship is terminated.
In the 6 month period between January and June 2013, The National Employment Rights Authority (NERA) conducted 2,755 workplace inspections. A staggering 1,458 (53%) of these inspections were unannounced!
NERA’s update on activity from January to September 2013 illustrated the following:
*In the first 9 months of 2013 the NERA Customer Service Unit provided information to more than 48,484 people. The vast majority of people who received information from the Customer Service Unit were employees or former employees (an estimated 71%).
*Redundancy, Working Hours, Conditions and Terms of Employment, Payment of Wages and Unfair Dismissal were the main topics/issues dealt with during the period.
*The Workplace Relations Customer Services (which deals with complaints in relation to all employment rights bodies) received 11,787 Employment Rights Complaints between January and July of 2013. This number represents a significant increase on the same period in 2012 when 9,809 complaints were received.
*4,009 workplace inspection cases were completed in the first 9 months of 2013. These cases involved more than 44,100 employees. This represents a significant increase on the 2012 figure of 3,140. The amount of unpaid wages recovered totalled €583,650.
*In the period between January and September 2013, 33 cases were referred for prosecution. 47 convictions were recorded in cases heard by the Courts during the first 9 months of last year.
http://www.workplacerelations.ie/en/Publications_Forms/NERA_Update_September_2013.pdf
Employers are legally obliged to provide workers with a written statement of the employment agreement between the two parties (the contract) within two months of the employee commencing employment.
Have you heard of NERA?
The National Employment Rights Authority (NERA) delivers unprejudiced information on employment rights legislation to employers and employees in Ireland. NERA is charged with monitoring the employment rights of employees within the country. NERA inspectors perform various checks around the country and investigate suspected breaches of employment rights – it is important to bear in mind that a significant number of these inspection are unannounced. If NERA finds that an employer is not complying with employment rights legislation inspectors will seek reparation from the employer on behalf of the employee. In certain circumstances prosecutions against the employer may result.
NERA has the power to chase awards made by the Labour Court, the Rights Commissioner or the Employment Appeals Tribunal.
In order to pass a NERA inspection; employers must have provided their employees with clarity on the terms and conditions of their employment. The contract should explain the relationship between the employer and employee and should not leave any room for misinterpretation or confusion.
A contract outlines the requirements of the position and conditions the person must work against. In the event of poor performance the employer can refer to the contract and all conditions contained therein, and manage the employee against such conditions.
Having a contract in place will offer protection to the company in the event of a dispute or issue arising. This document will safeguard the company in the event of employee litigation or labour court hearings.
Items that must be included in the written terms of employment are:
•Full name of employer
•Full name of employee
•The address of the employer
•The place of work (if there is no permanent place of work, a statement specifying that the employee is required or permitted to work at various places)
•Appointment/job role – The title or description of the job or the nature of the work for which the employee is employed
•The date of commencement of the contract
•If the contract is temporary, the expected duration of employment
•If the contract is for a fixed-term, the date on which the contract expires; if the contract is for a fixed purpose, then the details of the occurrence of that specific purpose
•The rate of pay, the method of calculation and the frequency of payment (this clause should also include provisions on any permissible deductions in accordance with the Payment of Wages Act, 1991
•The period of notice required from each party to terminate the contract
•The terms and conditions applicable to sick pay, if any
•The terms and conditions applicable to pension schemes, if any
•The terms and conditions relating to paid leave if any
•The terms or conditions relating to hours of work, including overtime
•Reference should be made to any collective agreement affecting the terms of the contract, whether or not the employer is a party to the agreement, including information about the institutions or organisations which drew up any Collective Agreement which affects the terms of the contract to which the employer is not a party.
•The period of employment outside the State
•The currency in which they will be paid
•Any other benefits-in-kind or cash that will be provided
•The terms and conditions applicable on the employee's return home
Here are examples of some further terms and conditions of employment that are not required by law but are highly recommended:
•Probationary Period and Probation Policy
•Hours of work / additional hours / overtime / shift liability / weekend liability / night work liability / public holiday liability
•Performance related bonuses
•Absence Management
•Medical examination
•Holidays, public holidays, all other forms of leave
•Grievance and Disciplinary Procedures
•Confidentiality
•Company Property
•Phone and Mobile Phone Usage
•Right to Inspect / Search
•Drugs & Alcohol Policy / Right to Test for Intoxicants
•Retirement
•Company Rules and Regulations
•Bullying and Harassment / Respect and Dignity at Work
•Internet, Email & Social Media Usage
•Use of Company Vehicles
•Suspension without pay
•Break and rest periods / exemption provision for employer for recording breaks
•Return of company property
