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A contract of Employment gives both parties, Employers and employee rights and duties. The purpose is to understand all the aspects of the terms of Employment.
An Employer is legally obliged to provide employees with […]
‘Low Hour’ & ‘Zero Hour’ Contracts
Employers are legally obliged to provide workers with a written statement of the employment agreement between the two parties (the contract) within two months of the employee commencing employment.
Having a contract in place can offer protection to the Company in the event of a dispute or issue arising. This document can help to safeguard the Company in the event of employee litigation or Labour Court hearings.
Reasons why you, as an Employer, need to issue a Contract of Employment:
It outlines the requirements of the position and the conditions the person is meant to work against.
It addresses the legal requirements against which all employees are protected today.
In the event of poor performance the employer can refer to the contract and all conditions contained therein, and manage the employee against such conditions.
The use of probationary periods is fundamental for all new employees.
An example of what an employee’s rights are in the event of not having a contract in place:
If the employer fails to give written details of the terms of employment, the employee can bring a complaint to a Rights Commissioner. The employee must make the complaint when in employment or within 6 months of leaving employment.
Legal Requirements:
The Terms of Employment (Information) Acts 1994 and 2001 provide that an employer is obliged to provide an employee with a written statement of terms of employment within the first two months of the commencement of employment.
The statement of terms must include the following information:
In the case of the particulars noted at (g) (h) (i) (j) (k), (l) and (m) above, the employer, as an alternative to providing all the details in the statement, may use the statement to refer the employee to certain other documents containing the particulars, provided such documents are reasonably accessible to the employee in his/her employment.
The statement of terms must indicate the reference period being used by the employer for the purposes of the calculation of the employee's entitlements under the Minimum Wage Act, 2000. (Under that Act the employer may calculate the employee's minimum wage entitlement over a reference period that is no less than one week and no greater than one month).
The statement of terms must also inform the employee that he/she has the right to ask the employer for a written statement of his/her average hourly rate of pay for any reference period (except the current reference period) in the 12 months prior to the date of the employee’s request.
An Employee Working Abroad is also entitled to details of the following:
The period of employment outside the State
The currency in which they will be paid
Any other benefits-in-kind or cash that will be provided
The terms and conditions applicable on the employee's return home
Here are examples of some further terms and conditions of employment that are not required by law but are highly recommended:
Probationary Period and Probation Policy
Hours of work / additional hours / overtime / shift liability / weekend liability / night work liability / public holiday liability
Performance related bonuses
Absence Management
Medical examination
Holidays, public holidays, all other forms of leave
Grievance and Disciplinary Procedures
Confidentiality
Company Property
Phone and Mobile Phone Usage
Right to Inspect / Search
Drugs & Alcohol Policy / Right to Test for Intoxicants
Retirement
Company Rules and Regulations
Bullying and Harassment / Respect and Dignity at Work
Internet, Email & Social Media Usage
Use of Company Vehicles
Suspension without pay
Break and rest periods / exemption provision for employer for recording breaks
Return of company property
Have you heard of NERA?
The National Employment Rights Authority (NERA) delivers unprejudiced information on employment rights legislation to employers and employees in Ireland. NERA is charged with monitoring the employment rights of employees within the country. NERA inspectors perform various checks around the country and investigate suspected breaches of employment rights – it is important to bear in mind that a significant number of these inspection are unannounced. If NERA finds that an employer is not complying with employment rights legislation inspectors will seek reparation from the employer on behalf of the employee. In certain circumstances prosecutions against the employer may result.
NERA has the power to chase awards made by the Labour Court, the Rights Commissioner or the Employment Appeals Tribunal.
In order to pass a NERA inspection; employers must have provided their employees with clarity on the terms and conditions of their employment.
A dispute arose recently between HSE South – Waterford Regional Hospital and UNITE Trade Union over the payment of a “Twilight Hours” premium.
The evening shift for 22 Catering Attendants employed by the HSE in Waterford Regional Hospital was Outsourced to Agency Workers and, resulting from this, as of the 28th April 2013, the Twilight Hours premium ceased to be paid.
Management’s opinion was that it was unreasonable to expect payment for a shift that was no longer worked by the Catering Attendants, however, UNITE argued that, in accordance with Section 8: Service Delivery Options of the Public Service Agreement (PSA), their members should continue to receive the payment.
As the dispute could not be resolved at local level, it became the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. Agreement was not reached at this stage and, on 18th June 2013, the case was referred to the Labour Court in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court Hearing took place on 15th April, 2014 where UNITE argued that the workers suffered reduced wages due to the outsourcing of the evening shift even though the PSA stated that such procurement would not result in a worsening of pay rates for employees.
The Union also argued that the payment should have continued on a personal-to-holder basis or, at the very least, compensation, calculated on the actual loss over a 12 month period beginning on the 29th April 2013, should be paid as per the PSA.
The HSE argued that it was forced to consider outsourcing as an option because the level of Catering Staff had diminished considerably and there was no alternative to this. The Employer argued that the decision was not taken lightly and its view was that the move did not worsen rates of pay as the “Twilight Hours” payment was a premium payment and the basic pay for the Catering Employees was not affected by the HSE’s decision to outsource the evening shift.
Management’s view was that the Haddington Road Agreement took precedence over the PSA and that compensation for loss of earnings should be paid to the employees for the 2 months from 29th April (when the payment ceased) to 1st July 2013, rather than 12 months as argued by UNITE.
The Court noted that the premium was no longer paid because the hours were no longer worked due to the decision to outsource. The loss was calculated as €1,430.00 per annum per Claimant and, after considering the submissions of both parties, the Court recommended that the issue be dealt with via the compensation formula provided for under the terms of the PSA 2010-2014. This meant that 50% of the identified loss should be paid with effect from 29th April with the remaining 50% payable 6 months later.
A food production company that moved its warehouse 22km for logistics purposes was forced to pay seven staff members a total of €35,000 between them in relocation expenses. The dispute became the subject of a Conciliation Conference under the auspices of the Labour Relations Commission, however, as agreement was not reached, it was referred to the Labour Court on 31st January 2014. In accordance with Section 26(1) of the Industrial Relations Act, 1990, a Labour Court Hearing took place on 17th April 2014.
The Court considered the submissions of the Company as well as the Union and noted that, while the distance was not a particularly significant one, the workers were entitled to receive some sort of compensation in response to the warehouse relocation. The Court also noted that employees personally helped the Company by transferring stock from the original premises to the new one. The workers involved exhibited a significant level of cooperation with their employer and the Court recommended that the Company should pay a figure of €5,000 to each of the seven claimants in full and final settlement of their claim.
The 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).
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.
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.
As 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.
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).
Also, 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.
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
