Yearly Archives: 2015

As you are probably aware three crèches between Dublin and Wicklow have come under intense scrutiny in recent days after it came to light that young children under their care were allegedly subjected to inappropriate and unacceptable treatment by staff at the childcare and early learning facilities in Stepaside, Malahide and Rathnew.

An RTÉ researcher, posing as a childcare worker, uncovered the substandard care while working at the facilities. The undercover researcher’s disturbing findings included video footage illustrating manhandling of infants and young children. The report, “A Breach of Trust”, was aired on Prime Time Investigates yesterday (Tuesday 28^th May 2013). The claims are currently being investigated by An Garda Síochána and the Childcare and Family Services unit of the HSE.

While the Prime Time Investigates programme focused heavily on three specific facilities it also highlighted failures in the entire childcare industry in Ireland. The researchers acquired a HSE inspection report that showed that a staggering 75% of Irish childcare facilities were in breach of regulations in 2012.

Minister for Children, Frances Fitzgerald, said that the HSE inspection reports into childcare facilities will be published online in the next few weeks.

Understandably, these statistics have caused uproar and have opened up a huge debate on childcare standards in Ireland. Many parents have been very upset by the recent revelations of breaches in child protection regulations. The poor practices exposed in certain crèches are likely to negatively affect the opinion held by many with regard to childcare facilities in Ireland.

These revelations will bring about intense scrutiny from parents of children in crèches all around the country. In order to protect their reputation it is absolutely vital that management take the time to ensure that all employees in crèches and childcare facilities in general are fully qualified for the roles in which they have been hired.

It is imperative that all employees working with children are vetted thoroughly and that all relevant paperwork is in place.

 

The HSE report from 2012 highlighted serious policy breaches and failures on numerous grounds like the child-carer ratio. It is imperative that employers seek advice from Employment Legislation experts if they need clarification on policies and procedures that they are required to have in place or if they need help in determining whether or not they have the appropriate paperwork on file. It is essential that all facilities are adequately staffed and that management take the necessary precautions to ensure a high standard of protection and care for children at all times.

One suggestion perhaps might be to install a CCTV system to monitor the interaction between employees and children – before doing so, however, a CCTV policy is required – again, it is essential to seek advice from the appropriate body if you are considering such a course of action.

Reports suggest that multiple employees have been suspended and that at least one employee has been dismissed by the crèches named in the report pending the conclusion of the Garda, HSE and internal inquiries.

Employers need to remember that, to avoid any risk of exposure, it is absolutely imperative to follow approved disciplinary procedures prior to disciplining employees. Regardless of the severity of the situation there are steps that need to be followed in order to ensure employers remain compliant with all Irish Employment Legislation. It is vital to follow procedures that are in line with the Labour Court recommendations to insulate your company against the risk of a future claim or fine. To avoid jeopardising the process contact an Employment Law expert prior to initiating any disciplinary action and arm yourself with the appropriate guidance.

 

 

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

Source:

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

 

 

 

 

Annual leave is paid time off work that employees are granted by their employers - it can be used for whatever the employee wishes. It is important for employees to recharge the batteries and annual leave helps maintain a motivated and productive workforce. It is essential to note that the employer is statutorily obliged to provide a certain amount of annual leave to his or her employees. An employer can, of course, provide more leave than he or she is obliged to give – if an employer offers more leave to employees with long service histories or employees who exceed targets, for instance, this policy should be clearly defined and should be applied fairly across the board.  

Regardless of the employee’s status or length of their service everyone is entitled to annual leave. All time worked is eligible for paid holidays.

 

Here is an easy guide to assist employers in working out what leave should be allocated to each employee:

 

There are three methods used to work out leave entitlements:

 

a)            The most common method used is: 4 working weeks in a leave year during which the employee works a minimum of 1,365 hours (Unless the employee has changed employment during that year).

b)            1/3 of the employee’s working week per calendar month of at least 117 working hours (Eg: 1.67 * 12 = 20 days)

c)            8% (.08) of the hours worked by the employee in the leave year (the total is not to exceed 4 working weeks)

In some instances an employee’s leave could be worked out using more than one of the approaches listed above – where this is the case all applicable methods should be calculated and the employee shall be entitled to the highest result. Remember - the maximum statutory annual leave entitlement is four of his / her normal working weeks.

 

How to calculate an employee’s annual leave pay:

 

Not everyone works a 9-5 office job and not all employees earn the same gross figure on a weekly basis so here is a guide on how to determine holiday pay due to various categories of employees:

(a)            If the employee’s pay is calculated by a fixed rate or a salary then the figure due to the employee per week of paid annual leave is equivalent to the amount he or she received for the normal weekly working hours last worked - This payment includes any regular bonus or allowance (that isn’t based on work completed) - it excludes any overtime pay.

 

(b)           If the employee’s pay is not calculated by a fixed rate or salary but instead by commission, for instance (or based on productivity rates) the amount paid to this employee per week of annual leave should equal their average weekly pay calculated over the 13 weeks prior to their annual leave commencing. (If the employee did not work during that period, the average weekly pay is calculated over the 13 weeks prior to the employee’s last working day before the annual leave commences. This excludes overtime.

In order to accurately calculate the number of annual leave days an employee is entitled to it is necessary to incorporate all hours worked in the calculation including time spent on annual leave (yes, employees accrue annual leave while on annual leave!), time spent on maternity leave, parental leave, force majeure leave or adoptive leave as well as time spent on the first 13 weeks of carer’s leave. Employees do not accrue annual leave while on sick leave, occupational injury, temporary lay-off, or career break.

 

If an employee falls sick during his or her annual leave this day(s) is not counted as annual leave (once it is covered by a medical certificate) and the annual leave day is kept for them to use at a later date.

 

It is common practice for an employee to request their desired leave dates and usually, once an agreed period of advance notice is given (allowing the employer to arrange suitable cover etc.), the employer agrees. Annual leave is usually discussed in terms of weeks but, with employer consent, it can be broken down into shorter periods – often days or even half days at a time. It is the employer who approves holidays (it would not work from a business perspective if all employees were to arrange leave at the same time, for instance). The employer is, however, required to take the employee’s family responsibilities and need for rest and recreation into consideration.

 

This annual leave must be given to employees within the leave year or, with the consent of the employee, within the first six months of the following year. The onus is on the employer to ensure that the employee takes their statutory leave allocation within the appropriate period. Employees may, with the consent of the employer, carry over holidays that exceed the statutory allowance to the next year.

 

If the contract of employment is terminated and there is unused annual leave in respect of the employee the employer is obliged to compensate the employee for the accrued leave. It is illegal to pay an employee in lieu of the minimum statutory leave entitlement unless the employment relationship is terminated.

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

The National Minimum Wage – Ireland

 

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

 

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

 

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

 

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

 

 

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

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

 

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

 

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

 

Employers – did you know that as of Friday 8^th March 2013 parental leave has been increased from 14 to 18 weeks?

Here is a breakdown of the points that employers should take note of:

Any employees who have a current or future entitlement to Parental Leave will increase from the current 14 week allowance to 18 weeks going forward.

The directive affords a parent returning to work the right to ask for a change in work pattern for a set period thereafter – the employer is only obliged to consider the request not to adhere to it.

 

An employee seeking a change in work pattern should make the request as soon as is reasonably possible (no later than 6 weeks before the proposed commencement).

  

Where the employer refuses the request, the employer must within 4 weeks of receiving the request, inform the employee in writing that the request has been refused.

 

There is no obligation on the employer to explain why the request was denied.

 

Where the changes are granted the employee should be asked to sign an agreement specifying the changes to the employee’s working hours or patterns of work and the duration of same.

 

Additional Important information:

Parental leave is available for each child.

 

Unless the employer agrees to a longer period where an employee has more than one child, parental leave is constrained to 18 weeks in a 12 month period. There is no obligation on the employer to conform to such a request.  

 

Bear in mind that parents of twins or triplets can take more than 18 weeks of parental leave in a year.

 

The 18 weeks per child may be taken in one continuous block or, alternatively, in 2 separate periods of a minimum of 6 weeks each. There must be a gap of at least 10 weeks between the 2 periods of parental leave per child.

 

Separating the parental leave entitlements in to shorter periods of days or even hours can be agreed on an individual basis – this is at the discretion of the employer and is based on the operational needs of the business - there is absolutely no obligation on the employer to agree to shorter periods. The employer should maintain detailed reports of all parental leave as it is used.

 

It is important to note that both parents have an equal, separate entitlement to parental leave.

 

It is not possible to transfer leave between parents unless they both work for the same employer and the employer agrees to this set-up.

 

Any employees that are currently entitled to parental leave are covered by this extension from 14 to 18 weeks.

 

It is permissible to avail of parental leave in respect of a child up to 8 years of age.

 

There are special allowances for children that were adopted between the ages of 6 and 8 – leave in this instance may be taken up to 2 years after the date of the adoption order.

 

Similarly, in the case of a child with a disability leave may be taken up to 16 years of age.

 

Where illness or other incapacity prevented the employee taking the leave within the normal period exceptional allowances may be made.

 

Employees must have 12 months continuous service to avail of parental leave; however, a percentage of the leave is available to employees with shorter service in certain circumstances.

 

Parental Leave remains as being an unpaid leave from employment. However, employers should be aware that employees retain their right to accumulate annual leave while on parental leave and also employees retain their entitlements for Public Holiday’s while on Parental Leave.

 

The company may postpone the parental leave on the basis that the leave would have a substantial, adverse effect on the operation of the business or due to the number of employee’s taking leave at one time.

 

For more information on the Council Directive 2010/18/EU on parental leave visit:

http://www.justice.ie/en/JELR/Pages/PR13000093

 

For guidance on all your HR related questions and for Employment Law expertise visit The HR Company and we will arrange a complimentary consultation to assess your exposure with respect to employment legislation, contracts of employment and much more. 

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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