Monthly Archives: June 2015

//June

Stress in Ireland

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Introduction: Stress in the Workplace

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 […]

By |2017-01-02T10:59:42+00:00June 25th, 2015|Stress|0 Comments

Ireland’s Whistleblowing Act

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.

By |2017-01-02T10:59:43+00:00June 17th, 2015|Whistleblowing|0 Comments

Receptionist placed on reduced hours after Maternity Leave awarded €63K

€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.

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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.

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By |2017-01-02T10:59:44+00:00June 17th, 2015|Equality Tribunal|0 Comments

Paris-to-Nice Cycle 2014

Last update: 30/09/2014 @ 10:11

The Final Update - Mission Accomplished

So after 6 roller coaster days, I am pleased to say that we finally made it to Nice safe and well. I would like to express my sincere thanks and gratitude to everyone for their support over the last few months. Between us we've raised over €11k for Special Olympics Ireland and we really couldn't have done any of this without your support. For those of you that are interested I've included some photo's of the event above. Thanks again, Philip.   [divider]

Stage 4 - Carpentras to Aix [105KM]

Some photos from yesterdays cycle to Aix.  
Philip en-route to Aix.

Philip en-route to Aix.

View from the top

View from the top

Mid-way through the cycle while en-route to Aix.

Mid-way through the cycle while en-route to Aix.

The group are now about to depart on the second last stage of their cycle which will bring them from Aix to Maxime (128 KM). We understand that it is getting progressively harder as the trip goes on with the elevation gain increasing from 547m to 1574m.

Sponsor Philip & Adie

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Stage 3 - Logis to Carpentras [90KM]

Slightly later than scheduled, the group set off on their way to Carpentras just after 12.00pm this afternoon. The cycle took them through the lavender fields in the region via the village of Grignan which hosts a stunning Renaissance Castle. Stage 3 - Lavender Fields The group are expected to finish todays cycle in the next hour which will see them reach the half way point of the challenge.

Sponsor Philip & Adie

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Stage 2 -  Montargis to Nevers [143KM]

The group have now completed Stage two of their cycle to Nice. They are currently in the town of Nevers in central France. Philip Carney Today they left Montargis and travelled 143km to Nevers where they arrived at around 16:45. Tomorrow they will leave to cycle to Carpentras on stage 3 of the cycle. Two cyclist have been injured in the last 48 hours which sadly means they will be unable to complete the challenge. Check back again tomorrow for further updates and thanks again for all your support.

Sponsor Philip & Adie

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The HR Company Proudly Supporting Special Olympics Ireland

The HR Company has teamed up with Sigmar Recruitment in support of Special Olympics Ireland. This year's event 'Paris2Nice' is just about to get underway with both Managing Directors of The HR Company and Sigmar joining an additional 93 cyclists as they make their way to Paris for the start of the 700 mile cycle. The first stage of the of cycle which commences tomorrow morning Saturday 20th September 2014, will see the group travel 128km from Paris to Montargis.

Since 2011 Paris2Nice has raised €1.25m for a number of different charities. Paris2Nice is a central coordination hub, which in 2014 is supporting 95 riders to raise funds for 18 charities. The cycle will take place from 20th-25th September and the target for this year is €1,000,000!

Philip and Adie would like to pay a special thank you to everyone who has supported them over the last 9 months or contributed to this very worthy cause.

You can continue to contribute to this cause with all funds raised going directly to the charity.

Sponsor Philip & Adie

Please note Philip and Adie will be paying for the cost of the trip independently of the fundraising, so be rest assured your donation will make a difference to those who need it.

Do you know how long you need to retain employee information for?

Data ProtectionThe Data Protection Acts state that personal information held by a data controller (the Company/Organisation) should only be retained for as long as necessary for the purpose(s) for which the data was obtained.  If the personal information is no longer needed, the data should be disposed of in a secure manner or deleted.

 

However, as the Data Protection Acts do not specify what the different retention periods are for the various types of data, companies are required to pay attention to the statutory obligations imposed on them through Employment Legislation when determining the relevant retention periods.

According to the Organisation of Working Time Act 1997, employers are required to keep several records in relation to employees’ leave and rest periods – Employers are obliged to record and keep details of Annual Leave, Public Holidays, Carer’s Leave, the hours worked by each employee each day as well as detailed records of start and finish times.

There are various requirements in terms of timeframes for the retention of these records, for instance;

  • Annual Leave and Public Holiday records must be kept for 3 years

  • Carer’s Leave records must be retained for 8 years

  • Similarly, Parental Leave records and Force Majeure Leave records must be kept for 8 years

While there is no set period for the maintenance of Maternity or Adoptive Leave records, employers should ensure that they hold on to these details for a period not less than 12 months in the event that a dispute arises leading to a case – the time limit varies from 6 months to 12 months (in exceptional circumstances).

Clock in Clock out system resized 600

 

If, as an employer, you do not record employee working hours electronically (via a clock-in/clock-out system) you are required to complete a special form (an OWT1 form or a form not dissimilar to this) on a daily/weekly basis.

In relation to retaining hardcopy documents, it would be best to keep any original, signed documents on file as per the timeframes outlines above.

The key here is to ensure that the documents are available in the event that an inspection is announced. The records must be presented in a format that an inspector could easily understand.

Employers who fail to keep records as outlined above are liable, on summary conviction, to pay a fine of up to €1,900.

Data Records

 

As an employer, you must be able to prove that you have informed each worker of his or her rights to rest/breaks. You must also be able to show that you have informed each worker that untaken breaks must be reported to you as the employer (or a representative of yours e.g. a manager).

If an employee claims that he or she was unable to take a break during work then the employer is obliged to look at the reasons for this. The employer is also responsible for looking at any health and safety issues that could have arisen as a result of this. As soon as is reasonably possible, the employer must allow the employee to take the rest period that was due to them. If the employee does not take the rest period at this stage then the matter is closed as the employer has fulfilled his or her duty by allowing the employee to take it.

Employers must even keep records on candidates who have aplied for positions within their company - even where the applicants have not been successful. The Data Commissioner considers a retention period of one full year to be appropriate in situations like this. 

 

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Employing Young People – Under 18s Register


Under 18 RegisterThe 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). 

 NERA

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.

 Under 18s

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:

 

Under 18s Register

 

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

 


Under 18 Employees

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;  

    • An employee who is under 18 is entitled to €6.06 per hour (this is 70% of the minimum wage)
    • An employee who is in the first year of employment since the age of 18 is entitled to €6.92 per hour (80% of minimum wage)
    • An employee who is in the second year of employment since the date of first employment over the age of 18 is entitled to €7.79 per hour (90% of the minimum wage)

 

Employees Compensated €35,000 for 22km Relocation – Labour Court

CompensationA 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 move, from Causeway to Tralee, Co. Kerry, impacted the workers differently depending on where the individuals lived. Services Industrial Professional Technical Union (SIPTU) sought relocation expenses but the dispute could not be resolved at local level as the Kerry food producer was concerned that conceding would have knock-on effects within the entire Group. The Company also felt that the move was not far enough to warrant paying out relocation expenses and that paying a large sum in compensation would be excessive given the economic climate at the time.

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.

 

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Disabled Employee not Accommodated by Employer Awarded €30,000!


Employer ResponsibilitiesAs redress for infringement of her statutory rights and breaches of the Employment Equality Acts, former employee of a Multi-National Retailer receives compensation in the amount of €30,000.

The Director of the Equality Tribunal delegated this case to Orlaith Mannion, Equality Officer on 13th August 2013.

The specific case concerned a claim by Ms. H against her employer, a Multi-National Retailer. Ms. H claimed that she was discriminated against on the grounds of disability in terms 6(2)(g) of the Employment  Equality Acts 1998-2011. The claimant stated that her employer failed to provide appropriate measures to allow her to continue to be employed in her original role with the retailer.

The claimant had worked on the customer service desk for 30 years and enjoyed her position there. In 2001 Ms. H had an operation to remove her colon and, after that, had some medical issues including episodes of diarrhoea. A few years after this operation, Ms. H once again had surgery – this time on her knees as a result of osteoarthritis and had issues with the toilet facilities in her place of work after this as the one suitable toilet in the store was upstairs. One toilet located on Ms. H’s floor required that she walk across the shopping centre to access it. This toilet did not offer a huge improvement for Ms. H as she had to hoist herself up and down onto the toilet by gripping the doorframe.

Disabled

When the store was being revamped, the claimant suggested that her employer take the opportunity to install a toilet for people with disabilities – customers and employees alike. No disabled toilet was installed and Ms. H said she heard many excuses for this throughout her service with her employer.

Ms. H claimed that in 2009 she was informed that a disabled toilet was due to be installed. Ms. H went on holidays shortly after hearing this news and, unfortunately, broke her leg while away. Ms. H was a wheelchair user for a period of 6 months and underwent more surgeries in January and July 2010. When she was back on her feet Ms. H wanted to return to work and was medically certified as fit to do so in July 2011. Ms. H’s doctor made some recommendations that would allow Ms. H to return to work –

The doctor recommended that Ms. H should return on a phased basis, that she should be able to sit for periods during her working day and that she have access to a disabled toilet.

The employer responded stating that the claimant returning on a phased basis would be facilitated. However, they were not able to fulfil the other recommendations of the doctor. According to the store management, Ms. H’s role (behind the kiosk) had changed during her absence and, although a chair had been available there previously, the store was no longer able to facilitate a chair behind the kiosk and therefore they could offer her a role at the checkout when she returned to work instead of Ms. H returning to her previous role. A checkout role would not have been practical for Ms. H to take as she would have been required to lift heavy grocery items and this was something that she was not able to do (and had not been required to do as part of her Customer Service role).

Disabled EmployeeAlso, according to the management, because the store revamp had been suspended, so too had the provision of a disabled toilet. However, the respondent did offer the claimant extra time to use the shopping centre’s disabled toilet and the management of the store felt as though this was reasonable.

Ms. H felt that the checkout role was unsuitable and would have been a demotion. She also felt that the toilet scenario was unacceptable as there was often queues at this toilet and her condition did not allow for her to wait in queues for long periods. Ms. H raised a formal grievance which was heard in August 2011. The complaint was not upheld and neither was Ms. H’s appeal. Ms. H felt that her employer ignored her disabilities since her surgeries in 2005 and felt as though her employer had failed in their duty of care to her.

The respondent refuted any claims of discrimination and claimed that the employee had been out of work for a much longer period than the doctor had originally advised (6-9 months). More than one year after Ms. H broke her leg on holidays she attended a return to work meeting and the respondent pointed out that Ms. H was outside of her support period and recommended that she attend the company doctor. Ms. H did so the following month and the Occupational Health Advisor recommended that she return to work on a phased basis in approximately 3 months' time. The Health Advisor also recommended that a risk assessment should take place and anything like slippy or uneven floors should be attended to in order that another fall was prevented.

Equality Tribunal


The respondent was satisfied for Ms. H to return when recommended by the Occupational Health Advisor (in approximately 3 months). However, as the Customer Service desk role had changed in the two years that Ms. H had been absent from work and (for various reasons e.g. lack of space) no chair was situated there any longer, the respondent was not especially fit for that particular role any longer. Ms. H and her doctor felt that the checkout operator role was not a valid alternative.

The Equality Officer found that Ms. H had been discriminated against by her employer. While her doctor’s request for her to return to work on a phased basis had been upheld, other notable recommendations were not fully adhered to.

MS. H was supposed to be allowed to sit for periods during the working shift – the customer service role would not have allowed for this and, while the checkout operator role allowed her to sit, it required lifting of heavy groceries. The Equality Officer found that providing a reasonable disabled toilet for Ms. H would have cost the respondent approximately €22,600.00 and this would not have imposed a burden on a company that, in 2013, reported revenue in Ireland as £2,315 million Sterling.

The employer did not show genuine engagement with the process of finding effective and practical measures to allow the claimant to return to work.

Therefore, the Equality Officer found in favour of the claimant.

In accordance with Section 82 of the Act, she ordered the respondent:

(a) pay the complainant €30,000 (the approximate equivalent of a year’s salary) in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of Ms H’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

(b) conduct a review of its employment policies and procedures to ensure that they are in compliance with these Acts with particular reference to how employees with disabilities are treated.

http://www.workplacerelations.ie/en/Cases/2014/April/DEC-E2014-030.html

 

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Advice for Employers during World Cup 2014


World Cup - Employment IssuesAs  I am sure you are aware, World Cup 2014 is starting today and we want to ensure that you are prepared as an employer, in the event that employee issues arise as a result of this tournament, particularly attendance at work during games and on the day following games.

The World Cup is commencing today, 12th June, and runs until 13th July. Employees should have requested this time off by now or in the coming days if they wish to take annual leave during this time for matches.

The main issues that could arise as a result of World Cup 2014, for employers, is that employees will be seeking additional time off either as annual leave or unscheduled time off. Unauthorised absence/increased sick leave may also be an issue for employers. Most games will be in the evening time - those employers who have evening/night shifts will need to be particularly prepared and pre-empt absence.

You as an employer, will first need to establish what your policy is to be during this period. Once you have decided the stance you wish to take with employees during this period, you will need to ensure this policy is clearly outlined to employees in the coming days to ensure they are clear about what is expected of them.

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In deciding what you want to enforce for employees, you should pay attention to the following:

  • Inform employees that, if they wish to take time off, they must apply for annual leave immediately - and let them know that it will be on a first come, first served basis. 

  • Perhaps give staff the opportunity to swap shifts with colleagues who may not be interested in the matches - ensure all shifts are adequately covered.

  • Be mindful of your employees who are not football lovers and do not want to take any time off during these games. Ensure there is fair treatment between all staff and ensure football fans are not getting special treatment and additional time off over those who do not follow the game.

  • Make it clear that all employees are expected to be in work as normal, unless they have requested time off etc., during World Cup 2014. Outline that you expect productivity and attendance etc., to remain as it is currently.

  • You could outline that for any absences during this time (within reason), due to illness; employees are required to provide a medical certificate upon their return.

  • Employees may also arrive to work still under the influence of alcohol. If this is discovered, you need to act fast. Send the employee to the company doctor immediately to be checked by the doctor to establish if the employee is under the influence of alcohol. If the employee is found to be under the influence he/she should be sent home.  It may be time to engage a disciplinary process with the employee at this stage.

  • If applicable, you may consider screening the games in house as a goodwill gesture to employees.  

    • Be mindful if there are a number of matches on, you will need to allow employees have their say on which match is shown..

  • Employees may attempt to stream matches online on work computers, the company’s internet usage policy should be outlined to employees and the company’s expectations also outlined to employees here.

The key to avoiding any issues during World Cup 2014 is to make sure you clearly outline to staff (in advance), what is expected of them and that absences etc., will not be tolerated.

The above advice is courtesy of Lorraine Byrne, Senior Account Manager at The HR Company.

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