In this era of increased employee litigation the Labour Court has thousands of cases waiting to be heard - In a huge number of these cases the employer will end up paying substantial sums in compensation to employees (or former employees). In a lot of instances the award will be made as a result of the employer failing to follow appropriate procedures when dealing with an employee.

Unfortunately, the onus is on the employer to prove that he or she acted in a fair manner - the motives behind his or her decisions will be scrutinised. Everything must be justified.

On a daily basis we hear of Unfair Dismissal cases succeeding - the rulings are regularly shocking... even to Irish Employment Law professionals. We see employers being forced to pay huge sums due to the occurrence of harassment/bullying - often the employer is not even aware that such an activity is taking place - yet it is the responsibility of the employer to ensure that this type of situation does not arise in their workplace.

A recent example of harassment in the workplace occurred in a fast food company in Blackpool, Cork where two employees were subjected to sexual harassment by another employee.

An Equality Tribunal ruling found that a lesbian couple, who both worked for a fast food restaurant in Cork, were forced to endure obscene remarks and queries about their relationship and sexuality from another employee at the branch.

The tribunal found that management at the restaurant failed in their duty to take the appropriate steps to protect the women and consequently were instructed to pay €15,000 to the couple.

Under Irish Employment Legislation it is the duty of the employer to provide a workplace that is safe for lesbian women and gay men to be open about their sexuality.

This is something that all employers need to pay close attention to - this kind of sum could sink a small company - we heard yesterday that Ireland's economy is receding again - We know the whole area can seem like a minefield but companies simply can't afford to be careless when it comes to employee related matters. It is crucial to keep on top of the regular updates in Legislation.

Did yo know that parental leave has recently been increased from 14 to 18 weeks?

Did you know that Maternity, Adoptive and Health and Safety Benefits are taxable as of 1st July 2013?

The National Employment Rights Authority (NERA) is carrying out inspections in Irish workplaces and imposing fines where employers are in breach of Irish Employment regulations.

The employer is legally required to have contracts of employment in place with all employee who have accrued 2 months' service - employers also need to have employee handbooks in place.

Without employment documentation and clear and appropriate policies and procedures in place the company is not insulated against the risk of a fine - many employers are exposed at the minute and need some guidance to ensure they are protected in the future.

We are Irish Employment Legislation specialists and are offering complimentary consultations/audits to employers in Ireland who feel that they would benefit from a meeting with one of our HR specialists.

Do not hesitate to leave us your details and we will be in touch shortly to arrange a complimentary (no-strings-attached) audit of your documentation or just a general consultation that will hopefully help your understanding of employer responsibilities.

For organisations that require face-to-face, on-site HR support, we provide the services listed below, which have been categorised into five distinct components. Depending on the level of your requirement, we do this by either putting HR specialist(s) into your business on a permanent basis, or we provide you with full remote back-up complemented by regular site visits.

1. Legal

It is critically important that when one addresses any of the core HR activities, they must be carried out within the confines of the legal framework that exists. We will advise you to ensure that you are complying with all current legislation.

2. Mediation Services

We provide a full range of mediation services whereby we resolve many internal employee and industrial relations issues that arise within the workplace. This can include direct negotiations with solicitors, third parties and trade unions.

3. Staff Retention and Benefits

We assist you to ensure that you do what is necessary to keep your employees within the organisation. This covers the entire area of salary planning, benefits planning, benefits administration, performance management and face-to-face group meetings, or one-on-one discussions.

4. Recruitment

This involves us in the hiring process from the very beginning, from writing up job profiles and descriptions to advertising, arranging interviews, checking references, and issuing contracts.

5. Training and Development

The service we offer in this space includes identifying training requirements, driving the training programme and the training vendors, right through to succession planning, key people identification, skills identification and management development.

The Smart Solution for Businesses - We aim to ensure that you, our client, are not constrained by the legislation that exists today, but are aware of it and acting in accordance with it.

The service includes salary surveys to support your salary planning and review process, design and implementation of your policies and procedures and inclusion of these in the company handbook.

As part of this service, a company is provided with on-site representation approximately once per month.

Employee who was dismissed while on sick leave (for allegedly failing to discharge his duties as head chef and because of his unacceptable behaviour over a number of months) is awarded a sum close to €18,000 by the Employment Appeals Tribunal under the Unfair Dismissals Acts, 1977 and 2007, the Minimum Notice and Terms of Employment Acts, 1997 to 2005 and the Organization of Working Time Act, 1997.

According to the Employer the Employee in question allegedly displayed aggressive behaviour and appeared for work under the influence of drink. Reports of bullying of colleagues and name calling were filed with the Employer along with incidents of racism and other insults (for instance, calling a kitchen porter “stupid”, “slow” and “a druggie”). The Employee was also accused of throwing a knife at another member of staff - Matters the Employee refutes.

 

The Employee’s performance was called into question on a number of occasions prior to his dismissal – his failure to have adequate staffing and stock were criticized. A lack of communication and flexibility, in particular in relation to changing his time-off (for example, refusing to come to work on Good Friday when the Munster rugby team was playing) was outlined in an “Official Written Warning” on the 6^th of April (the second letter of its kind).

On the 7^th of April a dispute arose as to whether the Employee in question arrived for work “drunk”. He was instructed to get a blood test by his Employer. The Employee left the premises and sent a text message explaining that he would be on sick leave for the remainder of the week. Over the next few weeks the Employee sent numerous medical certificates indicating that he was suffering from an ulcer (the Employer was aware of this ulcer from early on in the employment).

On receipt of the “Official Written Warning” dated 6^th April (mentioned above) the Employee’s trade union sought a meeting with the Employer as the trade union maintained that the warnings had been issued “unfairly without any consultation or trade union representation”. This meeting was held on the 20^th of April in the hopes that issues between the Employer and Employee (who had previously been friends) could be resolved, however, the Employee’s unresponsiveness dissatisfied the Employer and he undertook to consult with his legal team. The Employee believed that the Employer wanted to replace him as he had advertised for a head chef the previous day (April 19^th).

On the 26^th of April the Employee enquired as to when he should return to work and the Employer replied telling the Employee to start back the following week (May 3^rd) but when the expected return date arrived the Employee again produced a medical certificate. Two days later the Employer instructed the Employee to post medical certificates and not to attend the premises, except to return keys, until the Employer had heard from his legal team.

When the Employee furnished medical certificates to cover him for the entire month the Employer wrote to the Employee dismissing him for failure to heed the warnings regarding his behaviour and for arriving to work under the influence of drink as well as throwing a knife at another staff member. 

The Employee believed the disciplinary action was taken against him as a result of a complaint that he had made to the National Employment Rights Authority (NERA) a few months prior to the dismissal.

The Employee was dismissed while on sick leave and the Employment Appeals Tribunal found that, based on the medical certificates and an endoscopist’s letter, the Employee had genuine reason for his absence. The Tribunal found that the procedures used by the Employer in dismissing the Employee were “flawed” and “deficient” because neither of the “official warnings” issued to the Employee put him on notice that his job was in jeopardy.

The Tribunal found that the Employer had not investigated the knife allegation in a “fair” manner. The Employee was dismissed without the benefit of a disciplinary hearing and without being afforded the opportunity to respond to the allegations made against him. In addition the Tribunal found that the Employee was not afforded an adequate opportunity to improve between his warning letter and his dismissal (as he was on sick leave during that period).

The Employee was awarded €14,500 under the Unfair Dismissals Acts, 1977 to 2007, €1,538 (being the equivalent to two weeks’ pay) under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and €1,691.80 (being the equivalent of 11 days annual leave) under the Organisation of Working Time Act, 1997.

In total the sum awarded to the Employee by the Tribunal was €17,729.80.

You might ask how this Employee received such a substantial award given his alleged appalling performance in the workplace...... The Employer failed to follow the correct process when disciplining, and then dismissing, the Employee and therefore left himself open to a claim under the Acts.

This was a very costly mistake on the part of the Employer and one that could easily finish a small business.

This example, along with thousands more, reiterates the significance of complying with Irish Employment Legislation and observing appropriate disciplinary procedures in order to insulate your company from the risk of a claim.

 

 

Published on Employment Appeals Tribunal Website – 29^th May 2013 – Sealed with the Seal of the Employment Appeals Tribunal. 

Source:

http://www.eatribunal.ie/determinationAttachments/indexedLiveDocs/c5e8f31a-cc9b-4ee6-8d59-1d9d7e1059ee.pdf

 

 

 

As most people know all too well maintaining levels of employee engagement and motivation is crucial in ensuring an efficient working environment… However, it is not always easy to achieve!

Increased motivation is linked to heightened levels of creativity and productivity in the workplace. Employee engagement is very important and treating employees in a proper manner as well as respecting human dignity is cardinal in encouraging morale and contentment in the working environment.

 

There are many factors involved in preserving employee engagement and motivation – factors such as the employee’s involvement in challenging tasks, accomplishing something that has value/meaning, personal progression and development, learning new skills like teamwork or independence and many more.

Employees are motivated to do better and work harder when they are satisfied in their roles. When they feel as though their career will benefit they will go that extra mile for their employer. Also, when an employee has job security and a basic income that satisfies their financial needs they will be motivated in the tasks/projects that they are working on.

Of course individuals will be influenced by varying issues and, therefore, motivated by different factors. However, being asked to do menial tasks day in day out - no matter who you are - is not likely to encourage a motivated employee and, in fact, is likely to promote a negative atmosphere.

Naturally, basic pay is a motivator – people obviously need to be able to cover their monthly out-goings – and if the basic salary is too low then it can actually have a de-motivating influence. However, money is far from the only thing that motivates employees to work hard... some people are more concerned with getting great work experience than being able to save for a luxury holiday or a new car. Some employees are forward-thinking and see industry-related experience as a way to develop their career. The “overall package” is examined and can be motivational as a whole with a lighter emphasis on salary alone. Similarly, a company with a glowing reputation, or a company with a great brand name or with international links, is likely to attract more interest from prospective employees irrespective of whether the basic pay is below the industry standard or not. If the job is exciting or seen as meaningful then the employee will be less concerned with basic pay. Similarly, if the role offers a bright future for the employee in the way of promotional opportunities or networking links, for instance, this will surpass basic pay in terms of motivation or pull.

Below are examples of some of the different incentives and benefits that employers should pay attention to and consider in an effort to motivate employees:

• Job location or commute is important – whether the place of work is easily accessible and the costs, time and effort etc. associated with the commute.
• Hours of work – how long the employee is supposed to spend in working mode and whether flexi-time or flexibility in location (working from home, for instance) is an option.
• The allocation of annual leave and other similar policies (payment during sick leave/ maternity leave etc.)
• Whether there is a bonus scheme in place and what that bonus might be – for instance, what target the employee has to achieve in order to be eligible for the bonus.
• Pension benefits – these days employees are very concerned with their future financial outlook especially if they cannot save much now.
• Use of a company car is a motivating factor for some as it can save the employee a great deal in terms of fuel, insurance and tax (on top of the cost of the vehicle itself!)
• Smaller incentives like parking, health insurance, on-site childcare, a canteen and accommodation are all motivating factors for employees.

Employers offer a range of benefits similar to those listed above. It is essential for employers to remember that most of the benefits discussed (which are typically provided in addition to an employee’s salary) are subject to income tax. For clarity on this employers should seek advice from the Revenue Commissioners who are responsible for the collection of such taxes on behalf of the Government.

A benefit-in-kind is a benefit that an employee receives that cannot be converted into cash (but has a cash value). A loan given at a special rate would be an example of this as would a company vehicle.

The other category of employee benefit incorporates items like vouchers, holidays, payment of an employee's bills and prizes etc.

All employees who earn in excess of €1,905 per annum must pay tax on the value of benefits and benefits-in-kind.

Taxation of benefits is dependent on the value of the benefit. For instance if an employer provides you with a holiday voucher to the value of €1,000 this is considered €1,000 in additional income for tax purposes and is taxed accordingly.

The rules applying to benefits-in-kind are slightly different – this taxation varies. Generally, the value of the benefit-in-kind is the cost to the employer of providing the benefit less any contribution made by the employee.

It should be noted that special rules apply to the following benefits-in-kind:

• A car or other motor vehicle (An employee can reduce the amount of benefit-in-kind assessed on a car if they incur a certain amount of mileage for business purposes. The benefit-in-kind can be further reduced if an employee contributes to insurance costs, motor tax and petrol).
• A loan provided by the employer (this is usually at a special rate)
• Provision of living accommodation

 

Benefits that are exempt from tax or can be received tax efficiently are inclusive of but not limited to the following items:

• Provision of bus/train passes
• Bicycle and safety equipment under the Cycle to Work Scheme
• Reimbursement of expenses necessarily incurred in the course of employment
• Lump sum and certain redundancy payments
• Working clothes
• Non-cash personal gifts not related to employment
• Employer's contribution to statutory or revenue approved pension schemes.

It is essential to check with the Revenue Commissioners if you are unsure of how to treat any benefit.

If an employer provides a benefit worth less than €250, PAYE and PRSI need not be applied to that benefit. Only one such benefit can be awarded to an employee within a tax year. Where a benefit exceeds €250 in value, the full value of the benefit will be subject to PAYE and PRSI deductions.

 

For decades the pay rates and conditions of hundreds of thousands of workers across several sectors, like electrical contracting and construction, in Ireland have been governed by Registered Employment Agreements (REAs).

 

REAs are legally binding agreements that govern the pay rates and other conditions of employment for all employees in a given sector.

 

A Supreme Court ruling yesterday, Thursday 9th May 2013, found the existence of such agreements to be invalid. The ruling outlined that a section of the Industrial Relations Act of 1946 (the Act that provided for the REAs) was incompatible with the Irish Constitution on the grounds that the agreements were not created by the Oireachtas (which has exclusive responsibility for creating laws in this country) but instead by the Labour Court - a Court that does not have the power to enforce the conditions contained within the REAs.

 

While this ruling came about as a result of an appeal brought by the National Electrical Contractors of Ireland (NECI) – the ruling will have massive implications for all sectors governed by REAs.

 

The electrical contractors who challenged the REA by which they were bound did so because they said that the REA was created by parties that did not represent the electrical industry as a whole. They felt that because they were not a party to the REA they should not be bound by it – they felt as though the rates of pay dictated by the REA were far in excess of what they could afford and that, for those reasons accompanied by the economic downturn, they were not competitive in tendering for projects. The group are said to be delighted with the five judge Supreme Court decision and say that they will be better able to secure existing jobs.

 

The NECI spoke out to reassure concerned workers that the problem was not so much that they had an issue with having some sort of wage agreement in place but that they felt they had the right to be involved in a decision making process if they are to be bound by the results of such a process. Any future agreement needs to consider and represent the requirements of both big and small employers alike and not just a subset of the contractors in the sector.

 

The NECI moved to reassure employees that their intention is not to reduce pay arrangements to the National Minimum Wage level (discussed below).

 

 

The Technical Engineering and Electrical Union (TEEU) stated that the ruling does not affect existing pay rates and conditions as they are set out in contracts of employment and the terms of this cannot be altered without consultation and negotiation.

 

Eamon Devoy, General Secretary and Treasurer of the TEEU said: “There are established Rates of Pay and Conditions of Employment in the Construction and Electrical Contracting Industry and any employer who attempts to undermine these standards will be met with the wrath of the TEEU who will use all means at its disposal to protect our members in the industry. It is worth noting that with the loss of registration the requirement for workers and their unions to go through national disputes resolution procedures was also extinguished and should the employers attempt to take advantage of vulnerable workers we could be in for a rocky road ahead”.

 

The NECI asked “that the inevitable scaremongering by the TEEU, who will claim that the Industry will descend into chaos, be ignored”.

 

The National Minimum Wage – Ireland

 

Under the National Minimum Wage Act, 2000 experienced adult employees (those who have been in any employment in any two years from the date of first employment over the age of 18) are entitled to a minimum rate of pay. Lesser rates are applicable for other categories of employees.

 

For instance, an employee under the age of 18 is entitled to €6.06 per hour or 70% of the National Minimum Wage. An employer can, of course, pay more than what they are required to pay.

 

The employee would be entitled to 80% and then 90% of the minimum wage in the first two years of employment over the age of 18.

 

It is important to note that the referenced two years of employment does not have to have been with the same employer nor does it have to have been in Ireland – Any employment carried out from the age of 18 is reckonable for the purposes of the minimum wage entitlement.

 

 

If you employed somebody on the National Minimum Wage (currently €8.65), that specific rate is their pay rate. The National Minimum Wage decreased by €1 to €7.65 for a short period in February 2011 but the previous rate of €8.65 was reintroduced on 1st July 2011.

If the National Minimum Wage was to be reduced again in the future this does not mean employers can simply drop the employee down to the new rate - Employees are entitled to remain on the wage at which you employed them unless you negotiate a new deal with them. It would, however, be acceptable to employ new employees at the new rate.

 

The text of the National Minimum Wage Act, 2000 and related Statutory Instruments can also be accessed on the website of the Office of the Attorney General at http://www.attorneygeneral.ie/.

 

For support and advice on all of your human resources issues contact The HR Company and avail of a complimentary Employment Law consultation.

 

Employee Assistance Programs, often referred to as EAPs, are programs offered by many employers to employees to assist them in dealing with personal/delicate issues that may hinder their performance in work related activities or negatively affect their overall wellbeing.

EAPs support employees and their family members by providing services such as counselling or guidance in finding a service that will help the employee through a challenging stage or sensitive issue.

 

EAP professionals provide assistance to people with a broad range of problems – some examples of these are:

 

• Overwhelming relationship/family issues
• Mental illness
• Alcohol or drug addictions
• Bereavement
• Emotional distress relating to illness, financial and legal concerns etc.

 

It is important for employers to make employees aware that the EAP is a voluntary service and that the EAP maintains the confidentiality of the individual availing of the service.

 

Typically the employer absorbs the costs associated with providing an EAP so it is available free of charge for the employee and his/her family members. Some companies have their own EAP and a dedicated team to deliver the relevant support to employees, however, many companies use a third party EAP provider. There is no obligation on employers to deliver such a program to employees, however, there are many benefits linked with the accessibility of an EAP to employees.

 

The reasons an employer should provide access to an EAP are as follows:

 

• Reduced turnover
• Improved rates of absenteeism
• Increased levels of productivity

 

Having support services like this in place gives employees a sense that their happiness and wellbeing is important to the employer – they feel valued in the workplace and morale and loyalty are likely to improve. Employees are more likely to address their issues/problems if doing so is made easy and does not create an additional expense for them.

 

To ensure you comply with all employment legislation and to make sure your human resources issues are tackled efficiently contact The HR Company. 

 

 

 

 Employment references for prospective employees should always be thoroughly vetted – however, for various reasons, they may not always give a true and present reflection of the candidate or they may reflect what the employee’s capabilities were at a different time which may not necessarily match their current skills. For this reason it is advisable for employers to employ new members based on multiple evaluations to protect themselves and to ensure not to waste any time or resources on someone who isn’t adequately equipped for the role.

 

An applicant’s Curriculum Vitae and the resulting interview can tell an employer a lot about the potential new employee - it is not uncommon, however, to ask shortlisted candidates to perform competency-based assessments or aptitude tests so that the employer can acquire a full picture of the candidate and determine whether or not he or she is the right fit for the vacancy. In certain instances it is advisable for employers to hire new members on a probationary period of 3 or 6 months or something along those lines – this is becoming more and more prevalent.

 

This probationary period does not prejudice the company’s right to dismiss in accordance with the notice provisions contained in the employee’s individual statement of main terms of employment, or without notice for reasons of gross misconduct, should this be necessary.

 

 

 

This period should be used by the employer to fully assess the employee’s work performance and suitability and if the work performance is not up to the required standard or the employee is considered to be unsuitable the employer should either take swift remedial action or terminate the employment, without recourse to the disciplinary procedure.

 

At the end of the probationary period the employee should again be reassessed. If he or she has not reached the required standard the employer should, at their discretion, either extend the probationary period in order that remedial action can be taken or terminate the contract of employment.

 

The probationary period should not in any case exceed eleven months in total.  The employee should receive notice of the company’s intention to extend the probationary period before or at the end of the initial 6 month probationary period. 

 

A clause should allow that any continuous period of absence of four weeks or more would suspend the probationary period until the employee’s return to work.

 

To avoid any risk of discrimination a policy, like the probationary period outlined above, should be fair and consistent and should apply to all new employees throughout the company.  In disciplinary proceedings, when dealing with employees on probationary periods, progressive steps can be skipped but it is a common misconception that fair procedures and natural justice need not be adhered to during the probationary period.

 

The Unfair Dismissals Acts 1997-2007 will not apply to the dismissal of an employee during a period at the beginning of employment when he/she is on probation or undergoing training provided that:

 

• the contract of employment is in writing
• the duration of probation or training is one year or less and is specified in the contract

It is important to bear in mind that this exclusion from the Acts will not apply if the dismissal results from trade union membership or activity, pregnancy related matters, or entitlements under the maternity protection, parental leave, adoptive leave and carer's leave legislation.

 

For assistance in creating contracts of employment or employee handbooks containing policies and procedures and to ensure you are compliant with all employment legislation visit The HR Company and subscribe to have 24/7 access to your own personal HR department - all your HR needs could be at your finger tips.

 

 

Whether it is through office computers, laptops or mobile devices, a lot of work environments have easy access to resources like the Internet these days. It is important for employers to lay down ground rules when it comes to the use of the Internet at work. Internet access is typically provided by employers for the purpose of assisting employees with their work related activities.

Employers should instruct employees not to use the Internet for non-work related undertakings – except in extraordinary circumstances or on the specific instruction of the manager.

An employer should reserve the right to restrict and monitor the use of Internet resources.

If observing inward and/or outward Internet traffic it is important to make employees aware of this and to let them know that the sites they visit will be recorded by management and may be used at the discretion of The Company. Employers should reserve the right to monitor by means of electronic scanning, for instance, for source and destination addresses and should scrutinise the distribution of any information through the Internet.

 

Here are some rules that employers should put in place in the employee handbook: 

 DO

• Use the Internet only as needed for work or limited personal use when essential
• Understand that The Company may be liable for what the employee does from The Company network - whether The Company is aware or not
• Help The Company to maintain compliance with software licensing – if in doubt, the employee should ask the management team 

DO NOT:

• Download software, games or screensavers to your computer or to The Company network
• Distribute Company Logins or Passwords to those who are not authorised to use them
• Download video files such as MPEG files unless directly related to work assigned to you
• Engage in any form of online gambling or betting
• Use passwords or encryption keys unknown to Management
• Obtain malicious access to Internet sites by cracking or hacking
• Retrieve material from the Internet using Company resources which:

-              is sexually explicit, offensive, obscene or pornographic
-              is racist, sexist or which may otherwise cause offence or be construed as harassment
-              infringes someone else’s legal rights, including copyright, patent or trademark rights of any other person or organisation
-              is defamatory or attacks or denigrates any person, group or organisation
-              would cause offence on the grounds of race, colour, religion, political beliefs, ethnic origin, sexual orientation, gender, age, disability, nationality, marital status, membership of the traveller community or intending to, undergoing or having undergone treatment to change sex, or
-              is otherwise unlawful or could constitute a criminal offence or which could damage the reputation of The Company

 

 

In order to protect The Company employers should establish policies regarding employees’ personal websites – for instance:

While an employee is entitled to create and operate a personal or commercial website employers generally prevent employees from creating one that would violate Company policies or that would compete with The Company - The employee should notify The Company of his or her external commercial activities and the existence of resources such as a personal website and these should be approved by management to ensure there is no conflict.

 

Employers should restrict the use of Company resources/property in the development or operation of a personal website. A policy should be put in place to prevent work on a personal website being carried out on The Company premises or on Company time as the employee is expected to devote their full working time and loyalty to The Company.

 

 For assistance in creating contracts of employment or employee handbooks containing policies and procedures about internet use or to help eliminate problems in the workplace while ensuring you are compliant with all employment legislation visit The HR Company and subscribe to have 24/7 access to your own personal expert HR department.