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Yearly Archives: 2015

The Applicable Minimum Notice Periods for Employees in Ireland

The Minimum Notice Acts 1973 to 2005 ensure that every employee who has been in the continuous employment of his or her employer for at least 13 weeks is entitled to a minimum notice period before you, as the employer, may dismiss that employee.   The statutory period varies depending on the length of service (outlined below). It is essential to note that if you do not require the employee to work out their notice you, as the employer, are obliged to pay the employee for the applicable period.

    • If the employment lasted between 13 weeks and 2 years the Acts provide that you should pay the employee one week's notice before termination of employment
    • If the length of service is between 2 and 5 years then the notice period must be 2 weeks
    • For 5 to 10 years then the appropriate notice is 4 weeks
    • From 10 to 15 years then 6 weeks’ notice must be given
    • For more than 15 years the employee is entitled to a notice period of 8 weeks.
You can agree payment in lieu of notice with the employee if this is a more suitable arrangement for both parties involved. Minimum Notice If it is the employee that has made the decision to terminate the employment contract and he or she has carried out 13 weeks of continuous employment with the company then he or she is obliged to serve you, as the employer, with notice 1 week prior to the departure date (unless the contract of employment provides for a longer notice period). It is important to bear in mind that the Acts do not apply to:
    • Members of the Permanent Defence Forces (except temporary staff in the Army Nursing Service
    • Members of An Garda Síochán
    • Seamen signing on under the Merchant Shipping Ac
    • The immediate family of the employer (provided they live with the employer and work in the same private house or farm
    • Established civil servants
Employees are said to have continuous service if they have not been dismissed or have not voluntarily left their job during the period in question. This continuity is not normally affected by things like lay-offs or by a dismissal followed by immediate re-employment. Nor is it affected by the transfer or trade of a business from one person to another. However, it is important to distinguish between categories of employees for the purposes of these Acts as an employee who has claimed for and received a redundancy payment as a result of lay-off, for instance, is considered to have left his or her employment on a voluntary basis. If an employee was absent from work because he or she was taking part in a strike relating to the business in which the employee is employed this period is not included in their “continuous service” record. Minimum Notice Periods   It is very important to note that the Acts do not affect your right or that of the employee to terminate a contract of employment without notice due to the gross misconduct of the other party. A Workplace Relations Customer Services department has been set up at the offices of the Department of Jobs, Enterprise and Innovation. This resulted from the amalgamation of the information services previously provided by the National Employment Rights Authority’s Contact Centre and the general enquiries areas of the Equality Tribunal, the Rights Commissioner Service and the Employment Appeals Tribunal. This section has responsibility for:
    • information provision in relation to employment, equality and Industrial Relations rights and obligations
    • the receipt and registration of all complaints referred to the five Workplace Relations Bodies, and
    • dealing with enquiries concerning all complaints.

From 3rd January 2012 all complaints to the Workplace Relations Bodies have been channelled through Workplace Relations Customer Services, where they are registered, acknowledged and referred to the relevant adjudication body. Mimimum Notice Guide

By |2017-01-02T10:59:54+00:00June 17th, 2015|Notice|0 Comments
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Trade Disputes and Industrial Action

  StrikeAccording to the Industrial Relations Act, 1990 a Trade Dispute is any dispute between employers and employees that is “connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person”. Industrial Action is collective action taken by employees to compel their employer to “accept or not to accept terms or conditions of or affecting employment.”        Typically, employees decide to take industrial action as a result of a grievance over pay, hours of work, holidays or in support of a co-worker (or former co-worker) who is deemed to have been treated unfairly in some way. Examples of industrial action may include strike action, a picket, a ‘work-to-rule’ or even an overtime ban. Employers should make every effort to avoid industrial action by maintaining a harmonious working environment because industrial action can be an extremely trying time for all concerned. A strike is a work stoppage that is caused by the mass refusal of employees to carry out their work activities.  Strikes and industrial action in general, are extremely disruptive to a company’s daily operations and can be damaging in both the short and long term. Strikes can last varying amounts of time but even short work stoppages tend to be quite destructive for companies as they can carry negative publicity with them along with the obvious operational drawbacks. A picket is a form of protest where picketers (those involved in the picket) assemble outside of their workplace, or a relevant area, in an attempt to draw attention to their cause or to discourage others from entering the premises (crossing the picket line).  The objective of picketing is to harm the company via a loss of business or through negative publicity. The goal is to persuade the employer to meet picketers’ demands to cease certain activities or introduce a pay increase or reverse a decision regarding redundancies, for instance. A ‘work-to-rule’ is where employees do the bare minimum during their work hours. They carry out the tasks required by their contract of employment and nothing more in order to slow down productivity. Employees seek to demonstrate that they are valuable to the company and perform tasks that are above and beyond what they are contractually obliged to do on a regular basis. An overtime ban is similar to a ‘work-to-rule’ in that employees take direction from their contracts of employment. Throughout an overtime ban, employees only work the hours that they are bound by in their contract. As the name suggests, employees refuse to work any overtime.

Strikes in the news:

SIPTU Services Industrial Professional and Technical Union (SIPTU) employees at Dublin Street Parking Services, the vehicle clamping Company in Dublin, are due to be balloted today, Monday, 10th March 2014, on whether or not they should go on strike. The dispute is over an outstanding pay rise that is owed since 2011. John King, SIPTU Organiser, stated that it is likely that the members will decide to strike over the 2.5% pay rise that they agreed to postpone until 2013 because they are still waiting for it to be applied. Dublin City Council is threatening to pay the Company less for the service it provides if it does not meet the new target of 60,000 clamped vehicles per year. Pay RiseSIPTU employees of the DAA and Aer Lingus are also threatening strike action as the dispute over their pension scheme continues. They are due to hold a four hour work stoppage at Dublin, Cork and Shannon on Friday, 14th March 2014 – just as the airport gets busy for the St. Patrick’s Day weekend. This strike could prove to be extremely disruptive to many individuals hoping to travel during the four hour stoppage and for the hours, and potentially days, that follow.   
By |2017-01-02T11:00:00+00:00June 17th, 2015|Industrial Action|0 Comments
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Saving Money by Minimising Waste

The Significance of Waste Management in Business. With mounting expenses it is becoming increasingly difficult for companies to remain in operation and to maintain employee numbers.

Recycle Managers are faced with a difficult task as they are continuously asked to reduce costs while simultaneously preserving the quality and service levels throughout the business.  Every company should implement a minimum waste policy to encourage employees to be more aware of their actions and their use or misuse of resources in the workplace and beyond. Minimising the amount of waste in any organisation will have a positive effect on the bottom line. Consequently, introducing a minimum waste policy is essential if the business is to operate in the most cost-effective and efficient manner possible. Employees should be obliged to avoid extravagant use of the company’s services, time and energy. Employees should be encouraged to take extra care during their normal work duties by avoiding unnecessary use of any resources within the Company. Employees should be trained so that they handle all machines, equipment and stock with the utmost of care. Employers should have a policy in place that deals with the conservation of energy. Do not wasteThis policy would direct employees as to how they should proceed when it comes to dealing with lights and heat and so on. The use of all unnecessary lighting and heating should be prohibited and lights/heat should be turned off when their use is not required.     Doors/windows should be opened/closed where possible in order to maintain temperature levels. Similarly, taps should not be allowed to drip and any concerns about resources should be reported to management so that they may be evaluated and rectified. Reduction of waste The use of paper and ink throughout the course of the working day is something that a lot of companies find to be expensive. It is important that employees only print items that they need to have in hardcopy in order to reduce the waste of paper and ink. It is also significant for employers to encourage employees to print on both sides where possible. E-mailing, rather than posting, documents is another practice that should be encouraged. Recycling/reusing paper, where possible, is also a practice that should be considered. If it is a case that an employee finds himself or herself without assignments to complete during working hours or if their work has come to a standstill for one reason or another then he or she should be encouraged to offer assistance to colleagues who have yet to complete their workload. In terms of productivity, employees should be prepared to start their working day by the time they are scheduled to begin work and should proceed with their work-related activities without delay. The same process should be followed after break/lunch periods and employees should not conclude their work until the time that they are scheduled to do so. Waste If it becomes apparent that certain employees are struggling to organise their time then the provision of time-management training should be considered by management. It is also important to ensure that employees are aware of the most efficient methods of carrying out routine tasks (such as searching for documents or preparing spreadsheets) so time is used in the most efficient manner possible. There are many techniques that a company can use to improve efficiency and exploring and implementing these methods is very important if a company is to remain competitive.
By |2020-09-15T09:36:49+00:00June 17th, 2015|Minimising Waste|0 Comments
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The Importance of having an Employee Handbook

An Employee Handbook, often referred to as the employee manual, is a book/document containing information about the company and its policies and procedures. It is given to employees by the employer – typically when they first join the organisation.

Employee Handbook This manual is an excellent place to compile all important information pertaining to the company rules and regulations. It can provide useful details for new staff during the induction process and can be a good reference point for existing employees. An employee handbook gives clarity to employees, advises them in certain situations and creates a culture where problems are addressed in a consistent manner.

An employee handbook communicates all of your workplace and HR policies and protects a business from expensive disputes with employees. The National Employment Rights Authority (NERA) aims to achieve a national culture of employment rights compliance. If a NERA inspector visits your workplace they may ask to see the company handbook to determine whether or not the company has appropriate policies and procedures in place and that it adopts the appropriate measures when various workplace scenarios arise.

Employee Handbook

Examples of some of the items that should be incorporated in an employee handbook are as follows:

•Annual Leave Entitlements

•Maternity Leave

•Paternity Leave

•Adoptive Leave

•Parental Leave

•Carer’s Leave

•Compassionate Leave

•Jury Leave

•Employment / Career Break

•Induction

•Performance Management

•Probation

•Grievance Procedures

•Disciplinary Procedures

•Bullying & Harassment

•Drugs and Alcohol Policies / Misuse of Substances / Testing for Intoxicants

•Dress Code, Uniforms, Personal Grooming and Hygiene

•Office Phone and Mobile Phone Use

•Internet, Email and Social Media Use in the Workplace

•Breaks and Rest Periods

•Sick Leave / Sick Pay

•Punctuality / Timekeeping

•Unauthorised Absence

•Clock-In and Clock-Out

•Vehicles and Company Property

•Use of Company Property

•Confidentiality

•Right to Search

•Copyright

•Ethics and Conduct

•Retirement

•Time-off-in-Lieu

•Flexitime

•Training & Education Funding / Study Leave

•Use of CCTV

•Garda Clearance / Vetting
By |2021-02-23T17:52:15+00:00June 17th, 2015|Documentation, HR Guide, Policies & Procedures|0 Comments
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Employee unfairly dismissed for improper internet use awarded €7,000.

Why is having an internet use/social media policy so important? On 17th December 2013, the Employment Appeals Tribunal in Mullingar heard a claim that an employee had been unfairly dismissed by her employer, a wholesale electrical company that employed approximately 36 employees. Unfair Dismissal, CompensationThe individual was employed as a Marketing Assistant from 1 November 2010. With the permission of the employer, the employee worked a three day week for the first year as she was completing a graphic design course simultaneously. The employer was happy for the employee to begin working a 5 day week on 1st November 2011.     The Managing Director claimed that both he and the Office Manager had warned the claimant on a number of occasions about her non-work related internet use. According to the Managing Director, these alleged warnings were of a verbal nature. The Managing Director gave evidence to the Tribunal that, on 16 January 2012, he observed the claimant on a social media site and called her to his office before proceeding to dismiss her from her employment with the Company. The Managing Director believed that the actions of the claimant amounted to a waste of the Company’s time and resources and her actions constituted gross misconduct. It became apparent that the Company did not have a formal internet use/social media policy in place while the claimant was employed. It also came to light that the employee did not receive a contract of employment nor did she receive a copy of the Company’s disciplinary procedures. Unfair Dismissal, Internet Use Policy The claimant stated that she completed all tasks that were assigned to her. She was not using the internet in a secretive way (she gave evidence that her computer monitor was in full view of the office) and she did not believe that she was doing anything wrong when she was online. The claimant testified that she was not given a job description detailing the tasks that were assigned to her. The former employee explained that, if she was aware of the company’s policy around internet use/social media then she would have abided by it. The claimant stated that she regularly asked for more assignments to complete during her work hours but was not provided with enough to occupy all of her working time. The employee explained that she was told in December to “wind down” for the Christmas period when she looked for more work from the Managing Director’s son. The claimant admitted to spending time browsing the internet when she had finished with her work assignments but clarified that she spent the majority of her time on the internet carrying out work related activities. The claimant gave evidence that she never received any warnings prior to her dismissal. The Employment Appeals Tribunal considered all of the evidence that was submitted by the claimant and the respondent and concluded that the dismissal of the employee was unfair as, according to the Tribunal, there appears not to have been any valid grounds for the termination. In addition to this the Tribunal found that the dismissal was lacking any procedural fairness because no investigation or disciplinary process took place. Contracts of Employment The Tribunal also made note of the fact that the claimant was never provided with a any of the following documents throughout the course of her employment:

  • A contract of employment,
  • Payslips,
  • An internet use/social media policy
  • A copy of the Company’s disciplinary procedures
The claimant received pay for one week’s notice. The Tribunal found that there was no gross misconduct on the part of the claimant and, consequently, the Tribunal found that the employee was Unfairly Dismissed and awarded her €7,000.00 in compensation under the Unfair Dismissals Acts 1977 to 2007. GUIDE TO CONTRACTS OF EMPLOYMENT
By |2017-01-02T10:59:59+00:00June 17th, 2015|Compensation|0 Comments
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Employee dismissed for nonconsensual use of premises awarded €25k

Unfair Dismissal A recent Labour Court recommendation where a former employee was awarded €25,000 in compensation for Unfair Dismissal illustrates why employers should make sure to attend any hearings that involve them.   The case in question concerns a former employee's claim that he was Unfairly Dismissed after he used the Company premises without the permission of his employer. In accordance with section 20(1) of the Industrial Relations Act, 1969, this particular worker referred his case to the Labour Court in June of 2013. He agreed to be bound by the Recommendation of the Labour Court. A Labour Court hearing took place in February of this year; however, the Company declined to attend the hearing and did not appoint any representation. This meant that the evidence submitted was solely that of the Claimant. The Court found it 'regrettable' that the employer declined to attend the hearing in any form and found it disappointing that the Company did not avail of its opportunity to present the version of events leading to this dispute from their perspective. The former employee accepted that he had used the Company's premises without prior consent. However, he did not accept that his behaviour constituted gross misconduct and, consequently, he contested the gravity of the punishment. The employee argued that his dismissal was disproportionate to his actions and maintained that the dismissal was unfair. Unfair DismissalBased on the uncontested submissions of the employee (the Claimant) the Court was satisfied that the penalty of dismissal was inconsistent with the actions of the employee and the Court determined that a warning would have been more appropriate in the circumstances. According to the Court, the dismissal was both procedurally and substantially unfair and so the Court recommended that the Company pay compensation in the amount of €25,000 to their former employee in respect of his Unfair Dismissal. This figure was to be in full and final settlement.  

The difference between Constructive and Unfair Dismissal:

Constructive Dismissal is the term used when an employee terminates his or her employment based on the conduct of the employer. Unfair Dismissal is slightly different in that unfair dismissal cases arise when the employee feels as though he or she has been dismissed by the employer on unfair grounds. Unlike in an unfair dismissals case where 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. Employees claim constructive dismissal/unfair dismissal under the Unfair Dismissals Acts 1977-2007. If it is found that the employee has been unfairly dismissed he or she could either be awarded compensation for the loss of earnings suffered by the dismissal or could be placed back in their original role – However, this is not common practice due to the expected tension or strained relationship between employer/employee and due to the amount of time that is likely to have passed between the termination of the employment contract and the resolution of the case. Typically, an employee needs to have accrued 52 weeks’ continuous service with the employer. However, it is crucial for the employer to bear in mind that 52 weeks’ continuous service is not always an essential element. Employees dismissed for trade union membership or because they are pregnant/exercise their right to parental leave, for instance, do not have to have accrued 12 months’ continuous service prior to claiming unfair/constructive dismissal under the Acts.   If the employer acts unreasonably towards the employee or breaches the contract of employment (or demonstrates that they no longer intend to adhere to the terms and conditions outlined therein) then the employer is at risk of a claim under the Acts. 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. It is also very important for employers to attend Labour Court hearings if they are scheduled so they can give evidence in support of their decision. Also, the Court can look less favourably upon employers who fail to attend and can award higher levels of compensation to the employee.  
By |2017-01-02T11:00:01+00:00June 17th, 2015|Compensation|0 Comments
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When should you use a Non Disclosure Agreement (NDA)?

A non-disclosure agreement (NDA), often referred to as a confidentiality or a secrecy agreement, is a legal contract between two or more parties outlining knowledge and/or information that the parties wish to share with one another but wish not to have accessed by third parties.

By signing the document the parties agree not to disclose information that it contains. An NDA creates a confidential relationship between the parties to protect any type of sensitive material such as details of trade secrets – it prevents the dissemination of company or project-specific information that, if leaked, could be damaging for one or both of the parties involved. It usually prevents the signing party from benefiting commercially from the information.

NDAs are commonly signed when two companies are considering doing business with each other and need to exchange information to benefit the partnership. A mutual NDA restricts both parties in their use of the materials provided; alternatively, an NDA can also exclusively restrict the use of material by one of the individuals or groups involved.

Employers often request that an employee signs an NDA or a similar form of contract when he or she commences employment, or a new assignment, in order to maintain confidentiality.

NDA

An NDA incorporates various basics – the details of the parties who must adhere to the agreement and the information to be kept confidential (often including items such as unpublished patent applications, financial information, customer lists, discoveries and business strategies). When drafting an NDA it is important to include the disclosure period in the contract.

Those writing the NDA should note that if the recipient had prior knowledge, obtained legally, of the matters contained within the NDA - or if the contents are publically available - the signatory cannot be held liable for dispersing the material. Similarly, if the materials are subject to a subpoena or a court order, this would override the contract.

The NDA should have a clause that forces the signing party to return or destroy the confidential information where the project or assignment is abandoned or when they no longer need access to the information.

Breach of the NDA is a serious offense – when this occurs the information owner can apply to court to have an injunction put in place to stop future breaches – Often it is too late at this stage as the damage has already been done. A second option here is to sue the party at fault for damages suffered by the breach. The consequences of breaching the NDA should be set out in the NDA and should include loss of profit as well as loss of reputation and costs and expenses caused by the breach. It is important to remember that Court proceedings can be a long and arduous process.

NDA

It can be extremely difficult to prove that an NDA has been breached but if a breach is proven, this can provide the basis for a claim. Given that it is not always possible to prove that an NDA has been breached some people do not rate them – however, at the very least the NDA holds some value in that it clearly sets out in writing what is expected of the parties to avoid any ambiguity and NDAs also serve as a reminder of the confidential nature of the information and act as a deterrent. GUIDE TO CONTRACTS OF EMPLOYMENT

By |2021-02-23T17:52:41+00:00June 17th, 2015|Documentation, Policies & Procedures|0 Comments
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Employers must maintain terms & conditions of Employees on Maternity Leave

Equality Tribunal awards €80k to employee subjected to discriminatory treatment. The former employee (the complainant) in this case commenced employment with her employer (the respondent) in 2003 – She was appointed Financial Controller in 2007 and her employment ended in February 2011. She referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 12 July, 2011.

The respondent, who had gone into liquidation by the time the Hearing took place in December, 2013 did not attend the Hearing.  The liquidator, who received adequate notice of the Hearing, chose not to attend either. The Hearing proceeded in their absence and the complainant built a case against her former employer in front of Equality Officer, Vivian Jackson.

According to the complainant’s uncontested evidence, she informed her employer that she was expecting her third child in November 2009. She alleged that her employer’s attitude towards, and treatment of, her worsened from this point. She had had a miscarriage in the summer of 2009 and, according to the complainant (Ms. M), her employer (Mr. W) responded to her November pregnancy news with the comment “Jesus Lisa, you don’t hang around”. The complainant gave evidence that a few weeks after this comment her employer again referenced her pregnancy but this time it was in front of clients and his comment shocked her. The complainant gave evidence that Mr. W implied to the clients that he was not happy that she was pregnant and stated that ‘she was meant to stop after two’. Maternity Leave The complainant described an incident in January 2010 where she was involved in a car accident. She claimed that a doctor certified her as unfit for work for a week in order to ensure that she and her unborn baby were unharmed. Even though she did not have access to a vehicle for the period, the respondent told her that she was required to attend work the following Monday. Ms. M complied with her employer’s request because she was fearful of losing her job. In February 2010, Ms. M requested a meeting in order to discuss cover during her maternity leave - this was due to begin at the end of April 2010. Mr. W agreed to hire an employee during the period that Ms. M was due to be on her protected leave. The complainant was under the impression that the new hire would begin work on a fixed term contract, however, during the course of the interview the successful applicant, Ms. S, asked about the duration of the contract and, to the complainant’s surprise, Mr. W said that he was ‘not sure that Lisa will be coming back to work’. The complainant said that she had never implied that she would not return to work and, in fact, not returning was ‘undesirable from a personal and professional point of view and impossible from a financial perspective’. Maternity Leave The complainant gave evidence that the respondent ‘froze her out’ – he undermined her with clients and changed arrangements regularly. He also began removing tasks from the complainant. Ms. M believes that this occurred because her employer no longer felt that, with three children, she would be committed to the company. The complainant demonstrated times where she had shown considerable commitment to the company in the past and said that the employer had no reason to believe that her commitment would diminish. The complainant sought a meeting with Mr. W prior to her leaving for her maternity leave – she wanted to discuss her remuneration and benefits during the leave. In the past, the employee had been allowed to keep her company phone and car during the leave and the employer also topped up her state maternity benefit so she continued to receive her normal monthly net income throughout her maternity leave. This time it was different – Mr. W only offered the complainant a top-up payment of €150 per month – far less than what was offered during previous leave periods. Ms. M accepted this. To her surprise, Ms. M was obliged to return her company car and phone for the duration of her leave on this occasion. Ms. M was due to complete her maternity leave at the end of January 2011 and in December 2010 she contacted her employer to give notice of her intention to return to work. She did not receive a response to this e-mail and so she e-mailed Ms. S, who had been hired to cover the period of maternity leave. Ms. S confirmed that Mr. W had received the complainant’s e-mail. Ms. S sent another e-mail on 6th January 2011 requesting that Ms. M attend a meeting with Mr. W on 14th January. At this meeting, Ms M was notified that her role of Financial Controller no longer existed in its previous format within the new company structure. Ms M was informed that the role was redundant and that another position was available to her as an alternative. The new position was a more junior role that not only incorporated additional hours but also a 40% reduction in pay. Ms M was not satisfied with this – she found it to be an unacceptable alternative to the Financial Controller role and demonstrated that her original role was not in fact redundant as MS. S continued to perform Ms. M’s original duties and was listed as the company’s Financial Controller on the company website. The complainant researched her position in light of the new role that her employer offered her as an alternative and realised that she was not obliged to accept the offer. The respondent offered Ms. M her original terms and conditions (including rate of pay and hours), however, the role that she was being asked to perform going forward was a clear demotion and a serious reduction in responsibility. She requested to return to her role as Financial Controller. Again it was expressed by the respondent that this role was redundant and he offered her 14 days to decide whether or not to take the new role of ‘Credit Control Manager’. Ms. M said that she was only happy to return to her original role and stated why the new offer was unacceptable in light of the fact that her original role clearly still existed. Mr. W wrote to Ms. M a number of days later rejecting her arguments and adding that, as she had not reported for duty, he considered her to have resigned. Dismissed Vivian Jackson, Equality Officer, found that Ms. M had been subjected to a range of unlawful treatments. Her employer made it impossible for her to proceed wither pre maternity leave role and essentially dismissed her. The Equality Officer ordered that the respondent pay the complainant €80,000.00 in compensation for the discrimination inflicted on her.  
By |2017-01-02T10:59:55+00:00June 17th, 2015|Discrimination|0 Comments
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What employers need to know about work permit Ireland

  Employers, as you may be aware, the National Employment Right’s Authority (NERA) conducts thousands of inspections (many of which are unannounced) annually. It is within NERA’s remit to investigate your compliance with Irish Immigration and Employment Permit legislation. NERA     Did you know that employers could be seriously penalised for employing individuals who do not have valid employment permits? •             The Employment Permits Acts 2003 to 2006 make it a criminal offence for a foreign national to work without an employment permit. Employers are committing an offence themselves if they employ a foreign national without a valid work permit. •             The Acts place an onus on the employer to carry out checks in order to be satisfied that a prospective employee does not require an employment permit, and, if he or she does, that they have obtained one. •             NERA inspectors are authorised to exercise powers under the Employment Permit Acts. If, during an inspection, NERA finds evidence showing that an employee does not have a valid employment permit, both the employer and employee are advised of the need to correct the situation. They are also informed of the consequences of failing to do so. •             An employer failing to rectify matters could be prosecuted. NERA commenced initiating proceedings under S.2 of the 2003 Act in 2012. •             An Garda Síochána are also an enforcement authority under Employment Permits legislation with prosecution powers. Who needs an Employment Permit? According to the Department of Jobs, Enterprise and Innovation, a non-EEA national (except in the cases listed below) requires an employment permit to take up employment in Ireland. The EEA comprises the Member States of the European Union together with Iceland, Norway and Liechtenstein. Employment permit (or work permit) holders are only allowed to work for the employer and in the occupation named on the permit. If the holder of an employment permit ceases to work for the employer named on the permit during the permit’s period of validity, the original permit (along with the certified copy) must be returned immediately to the Department of Enterprise, Trade and Innovation. Citizens of non-EEA countries who do not require Employment Permits include:describe the image     •             Non-EEA nationals in the State on a Work Authorisation/Working Visa   •             Van der Elst Case The European Court of Justice delivered a judgement on the Van der Elst Case (Freedom to Provide Services) on 9 August, 1994. The Court ruled that in the case of non-EEA workers legally employed in one Member State who are temporarily sent on a contract to another Member State, the employer does not need to apply for employment permits in respect of the non-nationals for the period of contract.   •             Non-EEA nationals who have been granted permission to remain in the State on one of the following grounds:   •             Permission to remain as spouse or a dependent of an Irish/EEA national;   •             Permission to remain as the parent of an Irish citizen;   •             Temporary leave to remain in the State on humanitarian grounds, having been in the Asylum process. •             Explicit permission from the Department of Justice, Equality and Law Reform to remain resident and employed in the State •             Appropriate business permission to operate a business in the State •             A non-EEA national who is a registered student Swiss Nationals: In accordance with the terms of the European Communities and Swiss Confederation Act, 2001, which came into operation on 1 June, 2002, this enables the free movement of worker between Switzerland and Ireland, without the need for Employment Permits. It is imperative that every labour market opportunity is afforded to Irish and other EEA nationals in the first instance. This is also in accordance with EU obligations and recognises that Ireland's labour market is part of a much greater EEA labour market which affords a considerable supply of skilled workers. Work Permits An interesting point to note is that work permits will not be considered for certain occupations. Since April 10th 2013 occupations listed as ineligible for work permits are as follows: •             Hotel, tourism and catering staff except chefs •             Work riders – horseracing •             Clerical and administrative staff •             Drivers (including HGV drivers) •             Nursery/crèche workers, child minders/nannies •             General operatives and labourers •             Operator and production staff •             Domestic workers including carers in the home and child-minders* •             Retail sales staff, sales representatives and supervisory or specialist sales staff** •             The following craft workers and apprentice/trainee craft workers: bookbinders, bricklayers, cabinet makers, carpenters/joiners, carton makers, fitters - construction plant, electricians, instrumentation craftspeople, fitters, tilers - floor/wall, mechanics - heavy vehicles, instrumentation craftspersons, metal fabricators, mechanics - motor, originators, painters and decorators, plumbers, printers, engineers - refrigeration, sheet metal workers, tool makers, vehicle body repairers, machinists - wood, plasterers and welders * In exceptional circumstances an employment permit may be granted for a carer who is a medical professional caring for a person with a severe medical condition or for a carer who has a long caring relationship with a person with special needs where there are no alternative care options ** Specialist language support and technical or sales support with fluency in a non-EEA language in respect of those companies that have formal support from the State’s enterprise development agencies earning at least €27,000 a year may apply for a work permit.

By |2021-01-07T17:59:43+00:00June 17th, 2015|Employer Responsibilities|0 Comments
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A Significant number of NERA Inspections are Unannounced!

NERAThe National Employment Rights Authority (NERA) was first established on an interim basis in February 2007 with the aim of securing compliance with Irish Employment Legislation. NERA monitors employment conditions through its inspectors. It enforces compliance and seeks redress where any employment rights have been breached.   Since its establishment in 2007, the number of NERA inspectors has increased by more than 100%. These inspectors exchange information with the Department of Social Protection and the Revenue Commissioners.   Inspectors are empowered to enter company premises and interview employees as well as employers. They can also examine employment records and can take statements before initiating legal proceedings.

Typically, a NERA investigation proceeds in the following way:

NERA Inspections1) If the initial inspection finds Employment Legislation breaches the employer is instructed to take the appropriate steps to rectify the matter. 2) NERA sends a letter to request evidence that the employer is now compliant. 3) If the response is inadequate, the company is warned that any further breaches will be sent to NERA's legal services for prosecution. Then a follow-up inspection occurs.     *It is extremely important for employers to note that if there is a breach of the Protection of Young Persons (Employment) Act 1996, the employer is referred for prosecution directly after the first inspection. Employers should know that employees regularly complain to NERA about their employer’s adherence to Employment Legislation and their maintenance of employment records and so on. In order to pass a NERA inspection and to comply with Employment Legislation, employers are statutorily obliged to maintain a large number of records relating to their employees. Here is a list of the 10 most important records/details that an employer in Ireland must keep:
  • PPS Number, Name and Address of each employee
  • Terms of Employment for every employee
  • Individual job classifications for each employee
  • Commencement/termination dates
  • Payroll details
  • Copies of payslips
  • Hours of Work
  • Under 18 employee register (if applicable)
  • Public Holiday/Annual Leave entitlements received by each employee
  • Board/Lodging details if applicable
NERA inspectors are entitled to see all of these records, and more where relevant, during an inspection.

In the 6 month period between January and June 2013, NERA conducted 2,755 workplace inspections. A staggering 1,458 (53%) of these inspections were unannounced!

Under 18s Register
By |2017-01-02T11:00:05+00:00June 17th, 2015|Inspections|0 Comments
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