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Supporting Business Owners, Directors and HR Professionals with the latest in HR trends and news.
June 2015
Redundancy Explained
Without a doubt redundancies can be required to keep a business viable. Employers need to ensure that they make their decisions based on what is best for the business - not because they want to get rid of Danny the storeman who they feel hasn't done a tap for years.
Before making people redundant, Employers must look at the overall business and see what areas are suffering a downturn, what areas are picking up, and how best they can react to changed circumstances.
A Selection Matrix will help to clarify the Employee strength and weaknesses and take the personalities out of the decision - and also ensure that no-one can accuse the Employer of
using redundancy simply to remove people the Employer doesn't like from the Company.
As a business owner or manager, the Employer is entitled to make decisions that make business sense. So establishing the logic of any decision before making it is important.
There is a strict redundancy selection process that has to be followed when making job roles redundant. Remember that it is the role that is made redundant rather than the Employee – One cannot make an Employee redundant and then hire a replacement in their role the next day.
Proving that a redundancy was necessary is essential and if the correct process is not followed then this could be very costly for the Company and Labour Court action could follow.
When making an Employee redundant, you should:
*Invite the Employee in question to a meeting, making them aware of what it is about e.g. the closure of the business/need to downsize etc.
*This meeting should be to inform the Employee that they have been selected for redundancy, or, in other words, it is giving them their notice of redundancy. The Employer should make the Employee aware of the reason(s) for this selection etc. at this stage.
*At the meeting, the Employer should ask the Employee to think about alternatives to this redundancy and these options can be discussed at the second meeting to explore whether any of these alternatives are viable options to save this Employee’s job. The Employee may request a pay cut, to be laid off for a period of time, reduced working hours etc., (all of the options
mentioned should have already been ruled out by the Company in coming to the decision of making a position redundant). If there is a potential transfer situation, this may arise as an alternative to the redundancy.
*The Employer should end the meeting by telling the Employee that he/she will be meeting with them again. The next meeting should be scheduled more than 3 days from the first meeting as the Employer should have ample time to consider all suggestions or alternatives to redundancy that the Employee presents.
*The period between the first and second meeting is known as the 'period of consultation'. It
will be at this second meeting that the Employer will discuss any alternatives to redundancy that the Employee suggests. If none of the suggestions are feasible for the Company the Employer will explain the reasons why they are not feasible. At that point, the Employer will go through the terms of the redundancy i.e. what payment the Employee will receive. In advance of this meeting the Employee should be made aware of their entitlement to bring a representative with them – for instance, the employee could bring a colleague or some other person who has an in-depth knowledge of the Company.
*The Employer should tell the Employee that, prior to the meeting, he or she should inform the Company if they intend to bring a representative and, if so, who this will be. This is in case the Employee decides to bring:
a) A Solicitor:
The Employee is entitled to bring a solicitor if they wish (if they do, the Employer too will need to bring a solicitor). The solicitor will not be able to speak on behalf of the Employee, but will be entitled to ask questions on behalf of the Employee.
b) A Trade Union Representative: If the Company does not engage with/negotiate with Trade Unions, the Employer will have to make the Employee aware that they will only recognise this person in a personal capacity, that they do not have a collective agreement with any Trade Union and that they have not, nor will not ever recognise a Trade Union. The Employer should ensure that this is clear to the Employee.
*The use of the RP50 hardcopy form is not in place any longer and as there is no longer any Employer rebate, there is no requirement to lodge the RP50 with the Department of Social Protection. However, in line with best practice, it is recommended that the RP50 form is completed online through the following link: https://www.welfare.ie/en/Pages/secure/RedundancyForm.aspx and printed so that the Employee is signing something to confirm they are receiving their payment from the Company.
*If the Company is not in a position to cover the cost of these redundancies, the Employee can claim their redundancy entitlements through the Social Insurance Fund, however, the Company does need to prove its inability to pay the redundancy amounts to the Department of Social Protection. In this case, the Employee will need the RP50 to claim his/her own redundancy payments.
Employment Appeals Tribunal Awards €8,500 to Former Employee
Unfair Selection for Redundancy Claim succeeds leading the Employment Appeals Tribunal to award €8,500 in compensation. After hearing statements from the former employee (the claimant) and the respondent (a car dealership), the Tribunal was satisfied that a redundancy situation existed, however, the Tribunal concluded that the process was defective and, therefore, determined that the claimant was entitled to a significant award.
The respondent failed to consult the claimant about his redundancy and did not appear to properly consider alternatives before finalising the decision to make the employee redundant – For instance, the employee could have suggested that he work a shorter working week/reduced hours or that he take a reduction in pay. The respondent is obliged to consider these suggestions over a period of consultation, however, the claimant was not afforded this entitlement and was only told the reasons behind the decision to select him for redundancy after asking for these.
The Tribunal found that the claim under the Unfair Dismissals Acts, 1977 to 2007 was justified which is why the claimant walked away with €8,500. This sum was in addition to the redundancy lump sum that he had received when the redundancy first occurred.
Details of this case can be found on the Workplace Relations Website (Case No. UD450/2012) - http://www.workplacerelations.ie/en/Cases/2013/November/UD450_2012.html
This case stresses the importance of following the approved procedures when it comes to redundancy. Not only do you have to prove that a redundancy is required in order to keep the business viable – you must also be able to justify why you made one employee redundant over another. The employer must be able to show that the redundancy process was not flawed. Employers should use a Selection Matrix so he or she cannot be accused of subjectivity (which is what the employee claimed in the above-mentioned case). The employer is obliged to invite the employee to a meeting making them aware that it concerns redundancy. Employers are obliged to give the employee notice of the redundancy and the reasons why the redundancy scenario came about along with why they were selected. 
The employer should have asked the employee in question if they could think of any alternatives to the redundancy and the employer should have allowed for a period of consultation of at least three days before making their final decision. It is also important to allow employees to be accompanied to meetings like this.
Constructive Dismissal leads to €9,000 Award for Former Employee
Constructive Dismissal is the term used when an Employee terminates his or her employment based on the conduct of the Employer. Unlike in an Unfair Dismissals case where the dismissal is deemed to be unfair unless proven otherwise and justified by the Employer - in Constructive Dismissal instances the onus is on the Employee to prove that their resignation was based on poor Employer conduct.
If it is found that the Employee has been Unfairly or Constructively Dismissed then he or she could either be awarded compensation for the loss of earnings suffered as a result of the termination of employment or could be placed back in their original role. Reinstatement is not common practice (particularly in Constructive Dismissal cases) due to the expected tension/ strained relationship between the Employer and the former Employee and due to the amount of time that is likely to have lapsed between the termination of the employment contract and the resolution of the case. The Employee has often entered in to a new employment contract elsewhere.
It is important for Employers to be aware of everything that occurs in their workplace as even other Employees’ behaviour that goes unchecked by the Employer could contribute to a Constructive Dismissal case. These can be extremely costly.
Here is an example of a case where the Employee (the Claimant) was awarded €9,000 after the Employment Appeals Tribunal found that he had been Constructively Dismissed.
The Claimant in this case started working for the Respondent in 2007. There were no issues until late 2010 when a Technician was promoted to Technical Manager. This immediately created a hostile environment and relationships became strained. The Claimant experienced problematic scenarios in the workplace as a result of the Technical Manager’s temper on numerous occasions.
The final occurrence led to the termination of employment for the Claimant. On the Claimant’s final day working for the Respondent the Technical Manager, a physically intimidating individual, entered the shop where the Claimant and his colleague were working. The Technical Manager lifted the Claimant up from his chair by his arm and proceeded to shout at him. The Claimant, who was frightened, attempted to avoid confrontation and turned away. The Technical Manager again grabbed the Claimant, this time by his shoulder, and spun him around while demanding that he not complain. The Claimant said that he didn’t complain, he just answered questions. The Claimant was pulled closer and then told to leave by the Technical Manager.
The Claimant did as he was told but the Technical Manager proceeded to follow him, grabbing him by the neck. At this stage the Claimant was in a state of shock and told the Technical Manager that he was simply working his way through college. The Claimant’s shirt was torn, there were marks on his neck and his hand was bruised after the incident.
After the event, the Claimant called a Senior Manager and told him what had happened. The Claimant returned his keys to the shop and arranged to collect his jacket from his colleague. A series of meetings with the shop Manager and other Senior Managers were arranged. The Claimant was offered a transfer to another shop, however, this other shop was located far
from the Claimant’s home and, therefore, was not a suitable alternative – he could not accept this transfer proposal.
As a result of the meetings the Claimant was given a written warning, however, as no arrangements were made for him to return to a safe workplace he had no option but to resign.
The Claimant established loss for the Tribunal and it was determined that the Claimant was Constructively Dismissed. The Respondent failed in its responsibility to the Claimant by not responding adequately.
Under the Unfair Dismissals Acts, 1977 to 2007, the Claimant was awarded €9,000 as compensation for being Constructively Dismissed.
The appeal was heard at Dublin on 14th October 2013. Case Number: UD669/2012.
How to avoid an unfair dismissal claim when making someone redundant
Redundancy is a minefield if you take chances. You must remember that employees now know their rights better than ever before. They have lived through a time when friends, family and work colleagues have been laid off - there is also a lot of information readily available for them online.
Employees have picked up a great deal of information about their rights. We say to Employers "your employees know their rights - do you?" Some businesses are now facing into a second phase of redundancies. In that instance, you can be guaranteed that staff know their entitlements even better than they did for the first phase. If you don't follow process, or if you make a false move, it could cost you - you could quite easily end up in the Labour Courts with an Unfair Dismissal case on your hands.
Unfair Dismissal cases are very common these days and they are very difficult for employers to win as the onus is on the employer to prove that he or she made the correct choices when letting someone go. Proving that a redundancy, for instance, was necessary is essential - making the position, not the person, redundant is crucial - an employer cannot make an employee redundant and then hire a new staff member to carry out the same tasks the following week. Commissioners will scrutinize every detail and decision and will want to see that the employer has dotted every "I" and crossed every "T".
Employers have a 50/50 chance of leaving Labour Court hearings with a large figure to pay out - it is important to remember that a huge number of cases are also settled prior to court proceedings so the odds are heavily stacked against the employer coming away from the Court with no fine on their hands.
Without a doubt redundancies can be required to keep a business viable. Employers need to ensure that they make their decisions based on what's best for the business - not because they want to get rid of Danny the storeman who you feel hasn't done a tap for years. Before making people redundant, look at the business overall and see what areas are suffering a downturn, what areas are picking up, and how best you should react to changed circumstances.
A Selection Matrix will help to clarify your thoughts and take the personalities out of the decision - and also ensure that no-one can accuse you of using redundancy simply to remove people you don't like from your company. As a business owner or manager, you are entitled to make decisions that make business sense. So establish the logic of any decision before you make it.
Arm Your Company with the Best Human Resources Support
Since 2001 The HR Company, B2E Ltd. has been successfully providing a cost-effective HR and advice support service(s) for small to medium sized businesses (SMEs) across Ireland. The HR Company also assists several large corporations and multinationals with their HR operations. With so many pieces of employment legislation in place in Ireland it is a challenge for companies to ensure that they are fully compliant on all counts. The HR Company is an Irish-owned company headed up by Philip Carney, former head of HR for Microsoft’s European Operations Centre, and Angela O’Grady, former Staffing and Recruiting Manager. A team of 20 HR specialists provide peace of mind for Employers by guiding them on all aspects of Irish Employment Law.
The HR Company provides a very affordable 24/7 protection service to those who wish to offload the burdens and risk associated with HR activities. Whether it relates
to disciplinary procedures, annual leave, redundancy or anything in between; a dedicated account manager is at the end of a phone to guide Employers and help insulate companies whenever a query about best practices in HR arises.
Not only does The HR Company provide bespoke employment documentation to ensure companies pass a National Employment Rights Authority (NERA) inspection, tailored disciplinary letters and any other relevant material are prepared by dedicated account managers to ease the load on the Employer. The HR Companyacts as the eyes and ears of the Employer on all HR related issues – protecting companies by keeping them informed on any relevant legislation updates.
In this era of increased employee litigation employees know their rights – companies should shield themselves against the risk of a costly dispute by arming themselves with the best on-call
support.
Searching Employee Belongings Appropriately
Many employers have experienced theft by an employee in the workplace and, consequently, need to put certain measures in place in order to protect the profits of the company. It is the policy of some companies to search employees’ personal belongings when they are leaving the work premises. Employers can also reserve the right to search employee lockers and vehicles if this is agreed with the employee in advance.
If the employer wishes to have the option to carry out personal searches then it is crucial that all details surrounding these searches are clearly communicated to the employees in the contract of employment. Employees sign this contract and by doing so agree to the policies and procedures contained therein.
If an employer reserves the right to search an employee’s belongings then he or she must do so in a dignified manner – giving the employee appropriate levels of privacy. There are several significant procedures to observe when performing a personal search. The individual carrying out the search should be in a management position and, in the interest of clarity; the employees should be made aware in advance who it will be.
The location of the search is also something that should be considered very carefully – it is important to maintain consistency and to carry out searches in an area that offers privacy to the employee involved. Employees should be notified of the location of the search and, ideally, it should be out of the view of customers and other employees. The shop floor is not appropriate search setting – the canteen is not suitable either.
Ideally the area should be covered by CCTV in order to prevent a “he said she said” situation from arising. If this is not possible then a witness should be present so that this scenario is avoided. Either way discretion is of cardinal importance.
As is procedure with airline security screening a male should search a male and a female should search a female, although, as the searches
should not involve body contact this is less of a priority. It is essential
that the employee is asked to open his or her bag, for instance, and that the person performing the search doesn’t breach privacy by putting their hands into the employee’s bag or on the employee’s person.
Employees should be asked politely to remove any suspicious items from their bag for further inspection – the item/items should be placed on a clear surface in order to ensure that there is no confusion over what was actually in the bag. The searching employee (management/security where possible) should never assume that an item has not been paid for. If the item in question was from the store then the employee should be asked to produce a
receipt for same.
Further action can be taken if the employee cannot furnish proof of purchase. When an employee purchases an item in the store during the working day it is good practice for companies to put in place a policy where the bag is sealed and the receipt is attached to the bag. This removes any ambiguity.
Some companies will carry out spot checks on employee belongings rather than checking them on a daily basis – it is vital to be fair and to ensure that the same employees are not targeted all the time.
Not following appropriate procedures can lead to employees being awarded large sums of money.
Average Award in Unfair Dismissal Cases on the Rise
According to the Employment Appeals Tribunal Annual Report 2011 the number of cases annually referred to the Tribunal increased three fold during the Irish economic recession (to a high of 9,458 cases in 2009).
The average number of annual referrals before the recession had plateaued at approximately 3,500.
Statistics for Unfair Dismissals cases:
The average compensation awarded by the Tribunal in Unfair Dismissal cases has risen dramatically in recent years.
For the year ended 31st December 2009 the average compensation in Unfair Dismissals cases was €11,476. In 2010 it was €16,064.05 and in 2011 it was €18,047.85.
This is a trend that employers really need to pay attention to as large sums of money like this can seriously damage a company.
It is crucial to stay up-to-date with employment legislation and to follow appropriate procedures when dealing with employee matters.
Why Companies are choosing to Outsource their HR
The number of cases annually referred to the Employment Appeals Tribunal increased three fold during the Irish economic recession and the average compensation awarded by the Tribunal in Unfair Dismissal cases rose from €11,476.00 to €18,047.85 between 2009 and 2011.
During this time of economic hardship Employers must pay even closer attention than ever before to their expenditure. Many organisations are forced to downsize and - in this era of increased Employee Litigation - making sure you follow appropriate procedures in redundancy or disciplinary scenarios, for example, is growing in importance.
It is at times like these that Companies need to concentrate on their Human Resource functions even more. Some elements of HR, however, can be both complicated and time consuming – an enormous burden on Employers. In recent years the focus has moved towards legal compliance (which can be a minefield with all of the pieces of Employment Legislation currently in operation) and administrative processes that can slow down the productivity of the firm.
For SMEs in particular, it makes a lot of business sense to outsource HR tasks as firms specialising in the field can improve efficiency dramatically. Outsourcing allows Companies to offload work that isn’t part of their core business. It also saves money. At a Company that doesn’t have the funds to hire specialists outsourcing can allow it to gain access to a vendor’s services when required as well as the expertise and wealth of experience that they have accumulated – all at an affordable price.
While SMEs don’t have the same number of Employees as larger corporations and multinationals they still require the same HR elements on a smaller scale. For instance, they still need to recruit staff, they still need to abide by the vast array of Employment Laws and still require Employment Documentation (Contracts of Employment etc.).
Although some Companies do it, most SMEs cannot justify spending a large portion of their annual budget setting up a HR department comprehensive enough to incorporate the abundance of skills required to achieve a smooth-functioning, compliant working environment. Consequently, more and more Companies are choosing to outsource operations like HR and are directing vital, scarce, finances and resources towards other core/revenue-generating areas of the business.
HR Companies deal with all features of Human Resources comprehensively. They have a base of specialist Employees who are trained and experienced in all areas of Employment Law – meaning they are fully equipped to deal with any Employee Relations issues that arise in the workplace. Engaging the services of HR professionals gives Employers access to a bank of relevant knowledge and experience. HR Companies are well prepared to support or advise SMEs without costing an arm and a leg. They keep up-to-date with all changes in Irish Employment Legislation and are able to offer better support and guidance than the client can attain in-house. Navigating Government regulations can be a draining activity for Employers, - it can be a time consuming and complicated process, however, it is what HR advisors are trained to do.
HR firms can do a lot more than you might think – not alone do they have a top-class portfolio of skills, knowledge and experience concentrated in this specific area, they can offer a range of services and support at an extremely affordable price. Some HR Companies provide comprehensive services for as little as €100 per month – Hiring a HR Employee, even on a part-time basis, would cost far in excess of this. Similarly, many Employers currently engage the services of Solicitors to prepare Contracts of Employment and other Employment Documentation – this can also be an extremely costly process.
HR Companies prepare Employment Documentation for their clients and on top of that are there to advise on all individual Employee related issues – discrimination claims, rest and annual leave entitlements, disciplinary and redundancy procedures, dismissals, grievances and much more. Lots of Companies operate outside of office hours and so some HR Companies even provide 24/7 advice lines for their clients meaning a client will never have an anxious wait for an answer. HR firms also provide support to existing HR departments within Companies - the level of service and associated costs are completely dependent on the needs of the individual Company.
HR firms are growing in popularity. In the past outsourcing was often a difficult process because of the issues distance can sometimes create. Thanks to the advances in technology, however, dedicated HR experts are only a couple of clicks or a phone call away – so Human Resource emergencies can be dealt with on the spot.Dignity at Work – Workplace Racism at an Alarming Level
Employers - Did you know that you can be held accountable for bullying or harassment in the workplace?
……..Not being aware of it does not get you off the hook!
Bullying in the workplace is any recurring inappropriate conduct that undermines a person’s right to dignity at work. Bullying can be carried out by one person or by several people - it is aimed at an individual or a group where the objective is to make them feel inferior or victimised. Bullying can come in the form of a verbal or physical assault and can also take place over the internet – this is known as cyber bullying and can be performed via many methods - Mobile phones, social networking sites, emails and texts are all common vehicles for cyber bullying.
Cyber bullying is becoming more and more prevalent in society.
Keep in mind that harassment based on civil status, family status, sexual orientation, religion, age, race, nationality or ethnic origin, disability or membership of the Traveller community is considered discrimination.
Harassment in the workplace is prohibited under the terms of the Employment Equality Acts, 1998 to 2007. The Act of harassment - whether direct or indirect, intentional or unintentional - is unacceptable and should not be tolerated by any company. Any allegations should be dealt with seriously, promptly and confidentially with a thorough and immediate investigation. Any acts of harassment should be subject to disciplinary action up to and including dismissal. Any victimisation of an employee for reporting an incident, or assisting with an investigation of alleged harassment and/or bullying is a breach of equality legislation and should also be subject to disciplinary action.
Bullying or harassment isn’t always obvious – in fact it can come in many shapes and forms – some examples are:
•Social exclusion or isolation
•Damaging someone’s reputation through gossip or rumour
•Any form of intimidation
•Aggressive or obscene language or behaviour
•Repeated requests for unreasonable tasks to be carried out
Employers Beware:
Under current Irish employment legislation (The Employment Equality Acts 1998-2011) companies are accountable when it comes to bullying and harassment in the workplace or workplace disputes. It is vital for employers to be mindful of the legislation as companies are answerable for the actions of employees, suppliers and customers even in cases where the company is not aware that bullying or harassment is taking place.
To defend itself a company must illustrate how it did everything reasonably practicable to prevent bullying and / or harassment from taking place in the workplace. The company must also show that when an instance of bullying or harassment occurred the company took immediate, fair and decisive action.
There is a huge risk of exposure if companies do not adhere to the strict Regulations. Those found in violation of the Act may be liable for fines and in severe circumstances imprisonment on summary conviction. Companies can also end up paying out large sums in compensation.
Bullying creates a very hostile work environment and can negatively affect employee performance – It can lead to disengagement and low levels of morale. It can also cause a company to lose key members of staff. Bullying can affect both the safety and the health of employees – this violates the Safety, Health and Welfare at Work Act 2005.
It is abundantly clear that it is in the best interest of all stakeholders to prevent bullying or harassment of any form in the workplace.
In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook – A Dignity at Work Policy should be communicated clearly to employees. This will clarify what is expected of employees and what the protocol/repercussions are if bullying/harassment does occur.
Last week the Immigrant Council of Ireland (ICI) brought our attention to a shocking statistic – The ICI revealed that the number of racist incidents reported in Ireland over the last 12 months had jumped to a staggering figure – They dealt with 120 individual racism cases in the past
year. 52 of these instances were reported in June/July of 2013 alone marking a huge increase when compared to the same period in 2012 when just 3 incidents were reported.
The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence.
The most commonly reported setting for racism was the workplace – where a massive 20% of reported incidents occurred.
Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity.
Labour Court Ends Zero-Hours Contracts For HSE Home Helps
The Labour Court has issued a recommendation giving improved terms and conditions to Home Help workers employed by the Health Service Executive (HSE).
The recommendation, which is binding under the terms of the Haddington Road Agreement, was issued on 18th September, 2013, and will affect the employment terms and conditions of approximately 10,000 workers. It is important to note that this agreement only applies to Home Helps who are employed by the HSE. Individuals employed by private companies or not-for-profit providers are not covered by this Labour Court recommendation.
Services Industrial Professional and Technical Union (SIPTU) has been campaigning since 2009 in a bid to secure adequate contracts and security of earnings for its members. The Union has welcomed the Labour Court decision which brings an end to the extensive system of zero-hour contracts. Paul Bell, SIPTU Health Division Organiser, stated that the agreement put the terms and conditions of Home Helps on a “firm and binding platform for the first time since the community service was established thirty years ago”.
A Zero-hours contract is a type of employment where an employee must be available for work but does not have specified or guaranteed hours or a formal roster. This can cause challenging circumstances for employees where the hours of work as well as earnings are unpredictable.
This Labour Court agreement provides for the issuing of annualised contracts guaranteeing a minimum of seven to 10 hours of work per week for each Home Help. Caroline Jenkinson, Labour Court Deputy Chairman, explained that “the number of hours to be allocated to each person will be based on 80 per cent of their actual hours worked in the six-month reference period between October 1st, 2011, and March 31st, 2012, with a minimum guarantee of seven hours”.
In addition to welcoming the removal of the zero-hours system Mr. Bell of SIPTU applauded a HSE effort to reorganise and manage the Home Help hours on a county by county basis.
Those who choose not to work under the annualised hour scheme may be entitled to receive compensation of between €2,000 and €3,000 under an exit deal.
Drugs and Alcohol Free Workplace
So far as is reasonably possible, employers are legally obliged to ensure the safety and welfare at work of all employees. Likewise, employees have a responsibility to themselves and to their colleagues. The use of alcohol and/or unauthorised drugs may disturb the safe and efficient running of a business. It can hinder the health and safety of employees within the organisation as well as the customers and other stakeholders.
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The use of drugs or alcohol by an employee can lead to performance/productivity issues. It can make concentration very difficult for the person in question. Work related tasks can take more time and the number of mistakes can often increase, potentially costing the Company, individual concerned and other employees dearly.
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Another common consequence of alcohol or drug use is the loss of faculties. This may lead to an inability to properly assess danger which can, in turn, bring about higher accident levels when driving to or from work, or being more prone to having an accident or causing an accident when at work.
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Absence from work is another likely outcome when using alcohol or drugs in an excessive or irresponsible manner. Other related lapses such as lateness and disproportionate levels of sickness, etc. are also common.
Companies should operate a ‘zero tolerance’ policy when it comes to drugs and alcohol and
employees should not be permitted to work while under the influence of drugs or alcohol under any circumstances. Employees must adhere to all medically prescribed drug instructions and if the medication is likely to cause any side effects that could impair the employee’s levels of concentration or ability to carry out his or her work then he or she should communicate this to Management.
If an employee’s performance or attendance at work is affected as a result of alcohol or drugs, or the employer believes the employee has been involved in any drug related action/offence, disciplinary action may be required. Dismissal may be warranted in severe circumstances.
It should be clearly communicated to employees that anyone involved in the unlawful possession, use, sale or manufacture of controlled substances or illicit drugs etc. on Company premises, in Company vehicles/work sites or during working time will be subject to disciplinary action up to and including dismissal. They should also be referred for prosecution.
Companies should also include a drug and alcohol testing policy in their employee handbook to improve their rights in these situations.
Smoking regulations for employees:
In line with statutory provisions companies are obliged to operate a strict smoke-free
workplace policy. Employers should make their employees fully aware that any member of staff who breaches this policy will be subject to disciplinary action up to and including dismissal. It is imperative that employers enforce the law.Leave Entitlements After Surrogacy
Paid leave of absence for mothers, whose babies are born through surrogacy arrangements, falls outside the scope of the law.
In September 2013 The European Court of Justice found 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. 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 European Court of Justice which found that the woman did not have any automatic right to Adoptive Leave.
The legal opinion of the Advocate General stated that her 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 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.
Rights to Maternity and Adoptive Leave defined:
If an employee becomes pregnant while employed in Ireland she is entitled to take Maternity Leave. This entitlement extends to all female employees regardless of their length of service and the number of hours worked per week etc.
Since March 1st 2007, employees have a statutory right to 26 weeks’ Maternity Leave. A further 16 weeks’ Additional Maternity Leave is available to them should they wish to take advantage of it. Employees are not obliged to avail of the entire period of leave open to them; however,
they must take a minimum of two weeks prior to the birth and at least 4 weeks after giving birth.
If the baby is born prematurely then Maternity Leave starts on the day the baby is born.
Employees are obliged to notify their employer of their wish to take Maternity Leave as soon as is reasonably practicable (not later than 4 weeks prior to the desired commencement date). Employees must produce a medical certificate confirming the expected birth date. Employers must give paid time-off for doctor/midwife recommended medical appointments for all
pregnancies and employees are also entitled to attend one set of antenatal classes during one pregnancy. The employer should be given written notice 2 weeks in advance of such appointments. Expectant fathers are also entitled to be paid by their employer while attending one set of antenatal classes.
While some do, it is important to remember that employers are not obliged to pay employees while they are on Maternity Leave. Employees who have contributed enough PRSI can apply for Maternity Benefit from the Department of Social Protection. Employers, who do continue to pay employee salaries during Maternity Leave, often require the employee to forward to them any
Maternity Benefit Payment from the Department of Social Protection.
Most employees do not have any right to remuneration from their employer during Additional Maternity Leave and there is no state benefit payable during this time, however, employees are still entitled to avail of this extra 16 weeks away from the workplace immediately after the conclusion of their regular Maternity Leave. It is important to note that Employees must
apply to their employer in writing 4 weeks prior to the conclusion of their Maternity Leave if they wish to avail of this Additional Maternity Leave.
Employees are protected against discrimination or loss of employment through redundancy or dismissal on grounds relating to pregnancy and Maternity Leave. Employees must give notice of their intention to return from Maternity Leave at least 4 weeks prior to doing so. Employees must return on the same terms and conditions as when they left (unless this in not reasonably
practicable).
There is an obligation on the employer to carry out a specific risk assessment for employees who are pregnant, and for those who are breastfeeding or who have just given birth, in order to assess whether there are any workplace hazards for these employees. Should this risk assessment determine that hazards (that cannot be eliminated) exist the employee will be
moved to alternative work or, if this is not feasible, the employee will be granted health and safety leave. The employee is entitled to payment from the employer in respect of the first 21 days of such health and safety leave and can apply for social welfare benefit for any period thereafter.
Adoptive Leave:
When an employee is adopting a child she is entitled to a minimum of 24 consecutive weeks’ ordinary Adoptive Leave starting on the day of placement of the child. Only the adoptive mother is entitled to avail of Adoptive Leave from employment, except in the case where a male is the sole adopter.
There is no statutory obligation on employers to provide pay to employees while they are on Adoptive Leave – some companies, however, do offer this benefit to employees. Individuals may be entitled to Adoptive Benefit from the Department of Social Protection.
Employees are also entitled to take 16 weeks' additional unpaid Adoptive Leave immediately following the period of standard Adoptive Leave. As is the case with Additional Maternity Leave, Employees must apply for the Additional Adoptive Leave in writing 4 weeks prior to the end of ordinary Adoptive Leave. In special circumstances, for instance cases involving foreign adoption, Additional Adoptive Leave may be taken at a time not directly following the regular Adoptive Leave period.
An employee’s entitlement to Annual Leave and Public Holidays will continue to accrue as normal during Maternity Leave and Adoptive Leave.
It is essential for employers to remember that, similar to other forms of protective leave, employees are entitled to return to the role they held immediately before commencing Adoptive Leave, subject to the employee having notified the employer of the intention to return to work, not later than four weeks before the date of expected return.
Probationary Periods in the Irish Workplace
Employment references for prospective employees can be great indicators of employee skills or characteristics and they 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 and this may not necessarily match their current skills. References can also depict suitability for a role that is dissimilar to the one being filled. For this reason it is advisable for employers to engage new members based on multiple evaluations to protect themselves and to ensure not to waste any time or resources on someone who is not adequately equipped for the role.
An applicant’s cover letter and curriculum vitae, as well as the resulting interview(s), 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’s abilities and determine whether or not he or she is the right fit for the vacancy. It is customary for employers to hire new members on a probationary period of 6 months or a term not dissimilar to this.
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 establish suitability. 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, policies (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 (including annual leave) 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.
Former Employee Awarded €58k for Unfair Dismissal
On the basis of a decline in sales within an exhaust business the Finance Director decided that a redundancy was required. There were 4 employees who generated sales for the company. The Finance Director believed the company only required 3 people to perform the sales roles.
The 4 individuals were informed that their positions were at risk and they were given a copy of the selection matrix that was used to determine who would be made redundant. The 4 employees all agreed that the matrix (after a slight amendment suggested by one of the employees concerned) was a fair and equitable way of assessing them. The sales director scored the matrices. The employee who scored the lowest was informed that he was to be made redundant.
The employee who was made redundant contended that the selection process had not been fairly operated. The Finance Director had not raised the issue of the exhaust centre’s declining profitability with him before deciding to make someone redundant. He was not told his sales were down.
The employee who was made redundant was at a disadvantage because the 3 other employees had a closer affinity with one another than with him and therefore he scored lower on team work.
While the employee who was made redundant did not object to the selection matrix – he did, however, feel as though it had not been scored fairly. His extensive product knowledge was not taken into account. Also not taken into account was his City & Guilds qualification.
After his redundancy the employee learned that the company had a new operation in Cork. A former employee was recruited to manage the new operation. The claimant was not told about the new operation or asked to apply for any of the jobs there.
The claimant established loss for the Tribunal.
The Tribunal carefully considered all evidence in the case. It was clear that management did not speak to the employee when they determined that his position was not profitable.
When it came to the process of selecting an employee for redundancy, the method chosen put the employee at a distinct disadvantage.
The Tribunal found that the selection process was unfair and therefore the dismissal of the claimant was unfair. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeded and the claimant was awarded the sum of €58,000.00 in addition to any payment he had already received.
Update on Employers Deducting Local Property Tax (LPT) at Source
Some companies have recently received correspondence threatening legal proceedings if they deduct Local Property Tax (LPT) from employees’ salaries. The Revenue Commissioners, however, have confirmed that any legal proceedings will be strenuously contested by the State.
Section 65 of the Finance (Local Property Tax) Act, 2012, states that employers are statutorily obliged to comply with any direction that may be issued to them to deduct tax in accordance with the below statutory provision.
“Where a liable person is in receipt of emoluments ... the Revenue Commissioners may direct an employer to deduct, in a period specified in the direction, local property tax payable by the liable person from the net emoluments payable to the liable person by the employer”
Further clarification of what Employers need to know regarding LPT:
Any employee who has not yet paid, or started to pay, their applicable Local Property Tax (LPT) will have mandatory deduction at source from salary or pension imposed. Those who failed to submit their LPT return on time or failed to meet the relevant payment obligations by 1st July 2013 are under scrutiny.
Employers and occupational pension providers alike are obliged to ensure deduction at source. Revenue should have notified the employers/ pension providers of the outstanding sums via the P2Cs (The P2C is the employer copy of the tax credit certificate in respect of the individual employee).
The relevant sum is to be deducted from the employee’s net pay.
The employer is to commence deducting the LPT after receipt of the relevant P2C (after July 1st 2013). The relevant P2Cs should have been issued to most employers by mid June 2013. The LPT to be deducted is illustrated at the bottom of the P2C. The deductions must be made on a consistent basis over the 6 month period between July and December 2013. If the employee is paid weekly then the LPT deduction should be made weekly and if the employee is paid monthly then the deduction should be applied monthly.
For example if the LPT to be deducted is €300 then an employee who is paid weekly will see €300/26=€11.538 deducted from their weekly net salary (Any rounding should be in favour of the employee) - If an employee owing €300 is paid monthly then he or she is due to pay €300/6=€50 on a monthly basis.
Any refunds of LPT will be dealt with by Revenue – Employers are not to make any refunds of this kind.
If the employer receives the P2C detailing LPT after the July payroll has run then the total LPT should be deducted from August through December - the remaining 5 month period.
Employers are obliged to keep a record of the applicable LPT that they deduct for Revenue and are required to account for the figures on the Forms P30 and P35 in respect of the employees concerned. The employer is also responsible for recording the appropriate LPT data for employees on their payslips as well as P60’s and P45s.
Where there is a Court Order on file prior to the issuance of the P2C this must take precedence over the LPT deduction. However, if the P2C is issued prior to a Court Order being made then the LPT deduction will preside. Where the Court Order and P2C are issued or made effective from the same date the Court Order takes precedence. The LPT payment, however, takes precedence over all non-statutory deductions like Health Insurance.
The Employer/Pension provider cannot take an instruction from the employee to stop deducting LPT from his or her salary – the employer is obliged to deduct the applicable LPT until the P2C shows that no further payment is due. If an employee would like to pay the relevant tax via a different method he or she should contact the LPT Branch and make these arrangements – then the employer will be issued with an updated P2C telling them to stop the deduction from pay/pension. Similarly if the employee feels as though there is a discrepancy in the amount of LPT they are being charged he or she should discuss this with the LPT Branch not the employer. If an adjustment needs to be made to the P2C then a revised directive will be issued to the employer – until such a directive is received the employer should continue to deduct the original LPT figure.
According to Revenue “Where there are shortfalls due to insufficient net salary in a particular pay period(s) the employer should adjust the amount of LPT to be deducted per pay period (for the remaining pay periods in the year) to ensure the full amount of LPT is collected by the end of the year. Once this is done, the employer will not be required to notify Revenue about the shortfall. However, employers must notify Revenue in writing (e.g. by Secure Email to employersLPT@revenue.ie) where there will be insufficient income to satisfy the employee’s full LPT liability for the year, based on the expected income for the employee.”
Revenue has established a helpline for employers and pension providers alike to assist with their queries on how this LPT deduction at source will operate.
The Employer Helpline is 1890 25 45 65.