Contracts of Employment

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

NERA’s update on activity from January to September 2013 illustrated the following:

*In the first 9 months of 2013 the NERA Customer Service Unit provided information to more than 48,484 people. The vast majority of people who received information from the Customer Service Unit were employees or former employees (an estimated 71%).

 

 

*Redundancy, Working Hours, Conditions and Terms of Employment, Payment of Wages and Unfair Dismissal were the main topics/issues dealt with during the period.

 

 

*The Workplace Relations Customer Services (which deals with complaints in relation to all employment rights bodies) received 11,787 Employment Rights Complaints between January and July of 2013. This number represents a significant increase on the same period in 2012 when 9,809 complaints were received.

 

 

*4,009 workplace inspection cases were completed in the first 9 months of 2013. These cases involved more than 44,100 employees. This represents a significant increase on the 2012 figure of 3,140. The amount of unpaid wages recovered totalled €583,650.

 

 

*In the period between January and September 2013, 33 cases were referred for prosecution. 47 convictions were recorded in cases heard by the Courts during the first 9 months of last year.

http://www.workplacerelations.ie/en/Publications_Forms/NERA_Update_September_2013.pdf

 

The 2012 Annual Report of the Employment Appeals Tribunal has highlighted some astounding statistics 

• According to Chairperson Kate T O’Mahony’s foreword “there are presently approximately 5,000 cases awaiting a hearing, of these 37% are unfair dismissals cases.”

• According to the Chairperson’s foreword, “In its appellate jurisdiction the Tribunal deals with disputes about matters occurring during the course of the employment relationship. A notable trend in recent years has been the steady increase each year in the percentage of the Tribunal’s appellate work which, significantly doubled from 12% in 2011 to 24% in 2012.”

• In 2012, employees had some sort of additional representation at the hearing before the Employment Appeals Tribunal on 1,917 occasions – employers, however, only had representation in 1,116 cases. It is clear that unfair dismissal cases see the highest level of representation but it is interesting to note that employee parties had representation in 1,071 cases and employer parties only had representation on 740 occasions.

• In 2012, the Employment Appeals Tribunal received 5,623 cases.

 

• The number of appeals against the recommendations of the Rights Commissioners received in 2012 was 1,349 – this number represents a 38% increase on the previous year and a staggering 81% increase on the 2010 total.

• The top 3 categories of cases referred to the Employment Appeals Tribunal in 2012 were Unfair Dismissal (1,742), Redundancy (1,239) and Minimum Notice & Terms of Employment (929).

 

• In 2012, the Employment Appeals Tribunal awarded almost €7million in 377 Unfair Dismissal cases. The average compensation awarded was more than €18.5k. *96 claimants received more than €25k

 

• The number of Payment of Wages cases disposed of in 2011 was 154 – this number rose by 164% to 407 in 2012.

• The number of Maternity Protection Acts appeals rose from just 2 in 2011 to 11 in 2012.

 

A significant number of employees regularly work with Visual Display Units (VDUs) as part of their role.

Employers – Did you know that there are a range of measures that you must adhere to with regard to VDUs in your workplace?

*The following are the categories of employees who will be covered by these Regulations;

1. If the employee has no choice but to the use the VDU to carry out his or her work.

2. If the employee normally uses the VDU for continuous periods of more than one hour.

3. If the VDU is generally used by the employee on a daily basis.

 

Please note that a normal laptop is not covered by these Regulations due to the fact that the keyboard is tilt-able and separate from the screen so as to allow the user to find a comfortable working position hence avoiding fatigue in the arms or hands of the employee.

*In accordance with the Safety, Health and Welfare at Work Acts 2005 and 2010, employees working with VDUs are entitled to have their workstation assessed in line with the following requirements;

1. The Company must ensure that the general use of the equipment is not a source of risk for the employee.

2. The Company is obliged to perform an analysis of the employee’s workstation in order to evaluate the safety and health conditions to which it may give rise.

3. The Company must take appropriate measures to remedy any risks found during the workstation analysis.

*Upon the commencement of their employment employers must ensure that;

1. Employees are trained in the use of the VDU workstation and given information about health and safety factors.

2. Employees receive periodic breaks or changes of routine (away from the VDU).

1. Employees receive appropriate eye and eyesight tests (or may opt for either) before working with VDUs as well as at regular intervals throughout their employment with the Company.

If an employee experiences any eyesight/physical problems as a result of working with a VDU, the employee should highlight the issue to his or her manager as soon as possible.

*Some notable points for employers;

•             If special corrective appliances (glasses) are required exclusively for working at a display screen, they must be provided by the employer at no cost to the employee. The costs of minimum requirement frames and lenses must be borne by the employer.

•             Should the glasses be used also for other purposes the employer must cover the cost of the correction required for working with display screens only.

•             Employer obligations relating to the various components of the workstation (from chairs to the display screen, lighting, noise levels, heat, radiation and humidity) are also included in the Acts.

We have created a draft VDU Policy for you to incorporate in your Employee Handbook alongside all of your other HR policies.

Click the below image in order to download our draft policy that you can tailor for your Company.

 

 

 

Employers - Did you know that, as of today May 1st, 2014, New Legislation on the Use of Mobile Phones While Driving will be effective?

The amendment to the existing legislation governing phone use while driving, which was signed by Leo Varadkar, Minister for Transport, on 11^th April, 2014, makes it an offence for an individual to "hold” a mobile phone while driving a mechanically propelled vehicle in a public place.

Holding the mobile device includes supporting or “cradling” it with any part of your body (not just your hand) e.g. between the neck and shoulder. It is not a requisite that a person is actually engaged in a conversation on the phone. Similarly a person sending or even reading a text message (including SMS/MMS), or accessing information via the internet/e-mails etc. is committing an offence if "holding” the device as outlined above.

Sending or reading a text, in this instance, does not include anything done without touching the mobile phone or through voice activation.

The offence is punishable on conviction with a fine of up to €1,000 (first offence). The fine could reach €2,000 for a second offence. Three offences within 12 months could see a motorist face a 3 month jail term in addition to a fine. This is in addition to penalty points.

Close to 10,000 people were detected holding a mobile while driving in the Republic of Ireland between the beginning of January and the end of March 2014.

Assistant Garda Commissioner, John Twomey, communicated the staggering statistic that a motorist is four times more likely to have a collision when using a mobile phone.

Employers should issue employees with a notice detailing the important new regulations so that they are aware of their responsibilities. This notice should also serve to inform the employees that the Company will not cover the cost of road traffic offences including fines received under the penalty points system. Your notice should let employees know that these costs will be borne by the employee regardless of whether the vehicle was being driven for private or business use at the time the offences occurred.

We have prepared a sample Notice to Employees to help you to explain the new legislation – this can be downloaded by clicking the below image.

We hope you find it helpful!

As  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.

 

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.

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 28^th 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 18^th 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 15^th 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 29^th 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 29^th April (when the payment ceased) to 1^st 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 29^th April with the remaining 50% payable 6 months later.