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One growing area in Irish employment law is employers’ liability for workplace stress, bullying and harassment. Employer’s must identify risk factors and implement effective policies relating to bullying, harassment and grievances. There is no official duty […]
The Protected Disclosures Act, 2014 is now in effect. The Protected Disclosure Bill 2013, commonly known as the ‘Whistleblowers Bill’ was published on July 3rd 2013 by the Minister for Public Expenditure and Reform, Brendan Howlin, T.D. The Bill was drafted to establish a comprehensive legislative framework protecting whistle-blowers in all industries in Ireland. The Bill recently passed through the Oireachtas and Minister Howlin announced the commencement of the Protected Disclosures Act, 2014 today. The purpose of this Act is to protect workers who raise concerns regarding wrongdoing (or potential wrongdoing) that they have become aware of one way or another in the workplace. The Act offers significant employment and other protections to whistle-blowers if they suffer any penalties at the hands of their employer for coming forward with information of wrongdoing in their place of work. The Protected Disclosures Act, 2014 closely reflects best practices in whistle-blowing protection in developed nations around the world. Minister Howlin said that the Act “sends out a very clear message that whistleblowers’ concerns must be listened to and acted on and those who make such reports should not be penalised for doing so.” The Minister wanted to “instil all workers with confidence that should they ever need to take that decisive step and speak-up on concerns that they have about possible misconduct in the workplace, they will find that society values their actions as entirely legitimate, appropriate and in the public interest”. Some key elements included in the Bill are as follows: Compensation of up to a maximum of five years remuneration can be awarded in the case of an Unfair Dismissal that came about as a result of making a protected disclosure. This is a massive step forward in Ireland’s attempt to match the standards set by other established nations. The Act also provides for interim relief if an employee is dismissed for making a protected disclosure. *It is important to note that limitations relating to the length of service that usually apply in Unfair Dismissals cases are set aside in instances of protected disclosures. As a result of this Act, whistle-blowers will benefit from civil immunity from actions for damages and a qualified privilege under defamation law. The legislation provides a number of disclosure channels for potential whistle-blowers and stresses that the disclosure, rather than the whistle-blower, should be the focus of the attention. The Act provides strong protections against the disclosure of a whistle-blower's identity. Protections for the whistle-blower remain in place even where the information disclosed does not reveal any wrongdoing when examined. Deliberate false reporting, however, is not be protected. These measures should encourage more people to come forward, and feel comfortable doing so, when they become aware of (or suspect) any criminal activity, misconduct or wrongdoing in the workplace. What should employers do? As it applies to all employees in Ireland including contractors, agency workers, Gardaí and members of the defence forces; all employers should establish and clearly communicate a comprehensive ‘whistleblowing’ policy to ensure that staff are aware of and understand the provisions of the Protected Disclosures Act, 2014. It is important that cultural issues and negative connotations surrounding whistle-blowing are addressed within companies to ensure that employees adhere to the appropriate whistleblowing guidelines.
€63,000 has been awarded to a receptionist by The Equality Tribunal after it found she was discriminated against on the grounds of gender and race, and subsequently victimised. Sylwia Wach, a Polish receptionist began working at the Waterford Travelodge in 2007 where she was initially employed as an accommodation assistant before becoming a receptionist one year later. Ms Wach went on maternity leave on 23rd March 2011 before returning on 21st September 2011. On her return from maternity leave, Ms. Wach found her hours reduced, and also found that the company brought in a staff member from Cork to do shifts when Ms. Wach was available. Her manager allegedly expressed annoyance when he learned that she had raised this matter with their HR manager. He further stated that Ms. Wach’s contract was only for 24 hours, and that therefore, that was all she was entitled to. Ms. Wach outlined that those 24 hours were “minimum hours”, and that, on agreement with the previous manager, she had been working full time for the last three years. Her HR manager also accused her of not having sufficient English to work the job.
Ms Wach sent a written complaint about all the matters to her manager in October 2011 and as a result, a meeting was held in November 2011. Ms. Wach told the tribunal that following the complaint, her manager allegedly threatened to look through CCTV footage for any possible wrongdoing by her, where she was accused of selling alcohol to non-residents. Equality Officer Stephen Bonnlander outlined that he was satisfied Ms. Wach was fluent in both written and spoken English and that Ms. Wach's manager was "determined to make life difficult for her". In his judgement Mr. Bonnlander said:“I find that the complainant is entitled to succeed in her complaint of discrimination on the ground of gender, with regard to her conditions of employment. I do not accept the complainant’s manager’s statement with regard to the complainant’s proficiency in English, and therefore do not accept his reason for not assigning her day shifts, I find that the complainant is also entitled to succeed on her complaint of discrimination in her terms and conditions on the ground of race.”In accordance with Section 82 of the Acts, Mr Bonnlander ordered that Travelodge pay the Ms. Wach: (i) € 21,000 which equals one year’s salary for the complainant according to her P60 form for 2010 in compensation for the effects of discrimination and (ii) € 42,000 or the equivalent of two year’s salary in compensation for the effects of victimisation. This reflects the seriousness of the finding that the complainant found herself immediately threatened with false disciplinary charges when she exercised her right of complaint under the respondent’s own policies. He also said that the awards were in compensation for the distress suffered by the complainant and are not in the nature of pay and therefore not subject to tax. Do you want to protect your business with Ireland's leading HR and Employment Law experts ? If so, please feel free to contact The HR Company on 01 2911870.
According to the claimant, he informed the new Store Manager and the Personnel Manager in April 2011 that he would need time off to attend Court in July of that year. The respondent claimed that he had informed the company of his requirement for time off in July rather than in April.
The Claimant was absent for approximately one month from early July to early August due to an injury. During that month he attended Court and received an eight-month suspended sentence in light of his guilty plea.
On 2nd August 2011, the then Store Manager held a meeting during which the claimant confirmed that he had received a conviction. The claimant was informed that this could have repercussions on his employment status with the company and that it could result in dismissal after investigation. He was suspended with pay while an investigation was carried out.
A number of investigation meetings were held with the claimant. A Union representative was present and a number of issues were raised in the meetings. It came to light that the store’s Personnel Manager had provided a character reference for the claimant in advance of the trial in addition to a standard reference from the company.
The respondent pointed out that the character reference that was provided by the Personnel Manager was not on company headed paper and therefore was an unofficial letter, however, the Union representative nullified this point by highlighted the fact that numerous letters regarding the meetings between the claimant and the respondent were also on non-headed paper but were considered official.
*At the Hearing, in February 2014, the respondent confirmed that it stood over the character reference as well as the standard company reference that had been provided to the claimant.
A notable issue raised during the course of the meetings related to the claimant’s conviction bringing the company into disrepute. The Union representative stated that the conviction had not been reported in the news and enquired as to how the company’s name was in disrepute. The Union representative asked how other employees with convictions had been disciplined.
A food production company that moved its warehouse 22km for logistics purposes was forced to pay seven staff members a total of €35,000 between them in relocation expenses. The dispute became the subject of a Conciliation Conference under the auspices of the Labour Relations Commission, however, as agreement was not reached, it was referred to the Labour Court on 31st January 2014. In accordance with Section 26(1) of the Industrial Relations Act, 1990, a Labour Court Hearing took place on 17th April 2014.
The Court considered the submissions of the Company as well as the Union and noted that, while the distance was not a particularly significant one, the workers were entitled to receive some sort of compensation in response to the warehouse relocation. The Court also noted that employees personally helped the Company by transferring stock from the original premises to the new one. The workers involved exhibited a significant level of cooperation with their employer and the Court recommended that the Company should pay a figure of €5,000 to each of the seven claimants in full and final settlement of their claim.
Did you know that all hours worked by any employee are taken into account when calculating Annual Leave?
This will include any hours worked in addition to normal working hours.
Further to this there are additional leave periods that will be included when calculating Annual Leave for an employee:
These are protected leave periods and therefore Employees continue to accrue Annual Leave while on any of the above listed leaves.
Leave that is not included when calculating Annual Leave for an employee:
The Protection of Young Persons (Employment) Act, 1996 is designed to protect the health of young workers and places restrictions on their employment. The basis for this is to guarantee the protection of young people and to ensure the workload assumed is not jeopardising their education. The law sets minimum age limits for employment. It also sets rest intervals and maximum working hours, and prohibits employees under the age of 18 from working late at night. Employers must also keep specified records for those workers who are under the age of 18.
During a National Employment Rights Authority (NERA) assessment the inspector will request access to the company’s register of employees under the age of 18 (if the company employs workers in this category).
There are strict rules that employers must adhere to when employing those under the age of 18.
According to the Act employers cannot employ children under the age of 16 in regular full-time jobs. Children aged 14 and 15 may be employed on a controlled basis.
Some rules to pay attention to:
•They can do light work during the school holidays – 21 days off must be given during this period.
•They can be employed as part of an approved work experience or educational programme where the work is not harmful to their health, safety or development.
•They can be employed in film, cultural/advertising work or sport under licences issued by the Minister for Jobs, Enterprise and Innovation.
•Children aged 15 may do a maximum of 8 hours of light work per week during the school term. The maximum working week for children outside of the school term is 35 hours (or up to 40 hours if they are on approved work experience).
•The maximum working week for children aged 16 and 17 is 40 hours with a maximum of 8 hours per day.
There are many obligations on the employer when he or she employs a young person – here is a list of some of the items that employers must be vigilant of:
An employer must be provided with a copy of the young person’s birth certificate (or other documentation proving age) prior to the commencement of employment.
Break rules are: 30 minutes break after working 4.5 hours
Before employing a child an employer must obtain the written permission of the parent or guardian of the child.
An employer must maintain a register of employees under 18 containing the following information:
•The full name of the young person or child
•The date of birth of the young person or child
•The time the young person or child commences work each day
•The time the young person or child finishes work each day
•The rate of wages or salary paid to the young person or child for his or her normal working hours each day, week, month or year, as the case may be, and
•The total amount paid to each young person or child by way of wages or salary
Download your copy of our Under 18s Register here:
An employer and parent/guardian who fails to comply with the provisions of the Act shall be guilty of an offence. Some other notable rules the employer must adhere to when employing a young person or child are as follows:
•The employer is obliged to ensure that the young person receives a minimum rest period of 12 consecutive hours in each period of 24 hours.
•The employer is obliged to ensure that the young person receives a minimum rest period of 2 days which shall, where possible, be consecutive, in any 7 day period.
•The employer cannot require or permit the young person to do work for any period without a break of at least 30 consecutive minutes.
For a comprehensive guide to employer responsibilities and the rules and regulations governing the employment of young workers please refer to the Protection of Young Persons (Employment) Act, 1996
You must give employees a copy of the Protection of Young Persons (Employment) Act
docs/Protection of Young Persons Employment Act 1996.pdf
The national minimum wage for an experienced adult employee is €8.65 per hour. An experienced adult employee for the purposes of the National Minimum Wage Act is an employee who has an employment of any kind in any 2 years since the age of 18.
The Act also provides the following sub-minimum rates;
In September 2013 the legal opinion of the European Court of Justice was that an Irish teacher (Ms. Z), whose child was born through surrogacy, did not have an automatic right to either paid Adoptive Leave or Maternity Leave from her employment.
On 18th March 2014 a European Court of Justice (ECJ) ruling, that referred to the mother who did not give birth to the child as the “commissioning mother”, upheld this opinion. The ruling stressed that it is the birth mother who should benefit from Maternity Leave even where she does not keep the baby after giving birth and even in cases where the mother who takes on the responsibility of the child after birth is the biological mother. The reason for this is to improve the health and safety of pregnant workers and and those who have recently given birth.
Ms. Z and her husband are the baby’s full genetic parents. When Ms. Z’s application for paid Adoptive Leave was denied she brought a complaint to the Equality Tribunal. The woman, who has no uterus as a result of a rare medical condition, claimed that she was discriminated against on the grounds of sex, family status and disability.
The woman was told by her employer that she could take unpaid Parental Leave instead of the requested Adoptive Leave; however, as the child was genetically hers and her name was on the American birth certificate, Ms. Z felt that she was being treated unfairly.
The surrogacy scenario can be a challenging one for all concerned and blurred lines surrounding what mothers are entitled to in the workplace just adds to the complexity of the situation.The Equality Tribunal referred the case to the ECJ and the Court ruled yesterday that mothers like Ms. Z do not have any automatic right to Adoptive Leave or Maternity Leave.
In September 2013, the legal opinion of the Advocate General stated that Ms. Z’s differential treatment was not based on sex, family status or disability, as claimed, but instead on the “refusal of national authorities to equate her situation with that of either a woman who has given birth or an adoptive mother”.
The Court ruled that Ms. Z did not fall within the scope of the Pregnant Worker’s Directive as the Directive in question presupposes that the worker has been pregnant or has given birth to a child. The claim of discrimination on the grounds of sex failed as fathers in this situation are also denied leave. The claim of discrimination on the grounds of disability also failed as, the judgement stated that, while “a woman’s inability to bear her own child may be a source of great suffering” it does not amount to ‘disability’. The concept of ‘disability’ within the EU Employment Equality Framework Directive “presupposes that the limitation, from which the person suffers, in interaction with various barriers, may hinder that person’s full and effective participation in professional life on an equal basis with other workers”.
The recent revelation, that Irish women who have babies through surrogacy arrangements are not afforded the same rights as mothers who have adopted or given birth to their babies, has highlighted the uncertainties/complexities surrounding the issue of surrogacy in both Irish and EU law.
Surrogacy is becoming a more frequent option for women; however, legislation in Ireland has not kept up with this change.
The ECJ stated that member states are “free to apply more favourable rules for commissioning mothers” and paid leave for mothers, who have children through surrogacy arrangements, is being legislated for in The United Kingdom.
On 30th January 2014, Justice Minister Alan Shatter published the General Scheme of Children and Family Relationships Bill for consultation. According to Minister Shatter, the draft bill ‘seeks to provide legal clarity on the parentage of children born through assisted human reproduction and surrogacy’.
The Payment of Wages Act, 1991 forces employers to provide a pay slip in respect of all employees. A pay slip is a statement in writing that outlines the total pay before tax (gross pay) and all details of any deductions from pay. The employer’s responsibility regarding the required provision of pay slips is set down in Section 4 of the Act.
The Act protects against unlawful deductions from employee wages.
Here are the important points for employers to remember:
-Deductions from employee wages must be authorised by either the employee’s contract of employment or by written consent of the employee – a trade union subscription, for instance.
-An exception to this is where the employer makes a deduction from pay when there is a need to recover an overpayment of wages or expenses.
-There is an obligation on the employer to make a deduction from an employee’s wages if they are required by a court order to do so - an example of this might be an Attachment of Earnings order in a family law case, for instance.
-The employer is entitled to make a deduction if the employee is due to make a payment to the employer –An example of this would be if expenses arose due to the employee being on strike.
On the other hand an improper deduction made by the employer is one which is not authorised.
-(Income tax, universal social charge and PRSI contributions are a separate category as they are compulsory deductions required by law).
-Where the deduction from wages arises because of either an act or omission of the employee - till shortages or breakages, for instance, or the supply of goods to the employee by the employer (cleaning of uniforms, perhaps) - then the amount of the deduction must be fair and reasonable.
-The amount of the deduction must not exceed the loss experienced or cost of the service.
-The deduction must take place within 6 months of the loss/cost occurring.
Failure to pay all or part of the wages due to an employee is considered an unlawful deduction and a complaint can be made under the Payment of Wages Act. Similarly, unpaid notice, holiday pay, bonus and commission payments can also form part of a claim under the Act.
A non-disclosure agreement (NDA), often referred to as a confidentiality or a secrecy agreement, is a legal contract between two or more parties outlining knowledge and/or information that the parties wish to share with one another but wish not to have accessed by third parties.
By signing the document the parties agree not to disclose information that it contains. An NDA creates a confidential relationship between the parties to protect any type of sensitive material such as details of trade secrets – it prevents the dissemination of company or project-specific information that, if leaked, could be damaging for one or both of the parties involved. It usually prevents the signing party from benefiting commercially from the information.
NDAs are commonly signed when two companies are considering doing business with each other and need to exchange information to benefit the partnership. A mutual NDA restricts both parties in their use of the materials provided; alternatively, an NDA can also exclusively restrict the use of material by one of the individuals or groups involved.
Employers often request that an employee signs an NDA or a similar form of contract when he or she commences employment, or a new assignment, in order to maintain confidentiality.
An NDA incorporates various basics – the details of the parties who must adhere to the agreement and the information to be kept confidential (often including items such as unpublished patent applications, financial information, customer lists, discoveries and business strategies). When drafting an NDA it is important to include the disclosure period in the contract.
Those writing the NDA should note that if the recipient had prior knowledge, obtained legally, of the matters contained within the NDA - or if the contents are publically available - the signatory cannot be held liable for dispersing the material. Similarly, if the materials are subject to a subpoena or a court order, this would override the contract.
The NDA should have a clause that forces the signing party to return or destroy the confidential information where the project or assignment is abandoned or when they no longer need access to the information.
Breach of the NDA is a serious offense – when this occurs the information owner can apply to court to have an injunction put in place to stop future breaches – Often it is too late at this stage as the damage has already been done. A second option here is to sue the party at fault for damages suffered by the breach. The consequences of breaching the NDA should be set out in the NDA and should include loss of profit as well as loss of reputation and costs and expenses caused by the breach. It is important to remember that Court proceedings can be a long and arduous process.
It can be extremely difficult to prove that an NDA has been breached but if a breach is proven, this can provide the basis for a claim. Given that it is not always possible to prove that an NDA has been breached some people do not rate them – however, at the very least the NDA holds some value in that it clearly sets out in writing what is expected of the parties to avoid any ambiguity and NDAs also serve as a reminder of the confidential nature of the information and act as a deterrent.
