‘Low Hour’ & ‘Zero Hour’ Contracts – Employer Advice
‘Low Hour’ & ‘Zero Hour’ Contracts
Risk Assessment for Pregnant Employees
As soon as an employer has received written notification of pregnancy from an employee, a risk assessment should be carried out.
The employee should give their employer a copy of any advice that their Doctor/Midwife has given them if it could have an impact on the pregnant employee’s risk assessment. The risk assessment’s purpose is to evaluate the employee’s ability to carry out their role and to identify any possible risks to mother and baby.
Examples of some risks are:
- Standing/sitting for long periods
- Lifting/carrying heavy loads
- Threat of violence in the workplace
- Long working hours
- Excessively noisy workplaces
- Exposure to toxic substances
- Work-related stress
- Workstations and posture
The Department of Social Protection pays Health and Safety Benefit after the first three weeks of Health and Safety Leave has passed. In order to qualify for Health and Safety Benefit, you must meet certain criteria and PRSI contribution conditions. Employees are still considered to be in employment so they continue to accumulate their annual leave entitlement. However, they are not entitled to payment for public holidays that occur while on Health and Safety Leave.
It is essential that the employer regularly monitors and reviews any assessment made to take account of the possible risks that may occur at the different stages of pregnancy.
Employer Responsibilities – Contracts of Employment
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:
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It outlines the requirements of the position and the conditions the person is meant to work against.
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It addresses the legal requirements against which all employees are protected today.
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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.
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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:
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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:
- (a) the full name of employer and employee
- (b) the address of the employer
- (c) the place of work
- (d) the title of job or nature of work
- (e) the date of commencement of employment
- (f) in the case of a temporary contract of employment, the expected duration of the contract or, if the contract of employment is for a fixed term, the date on which the contract expires,
- (g) the rate of pay or method of calculation of pay and the pay reference period for the purposes of the National Minium Wage Act, 2000
- (h) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section.
- (i) pay intervals
- (j) the terms of conditions relating to hours of work (including information on overtime and entitlements to rest breaks and rest periods as per the Organisation of Working Time Act)
- (k) terms or conditions relating to paid leave (other than sick leave)
- (l) terms and conditions relating to sick/injury leave and sick pay and pensions and pension schemes
- (m) notice which the employee is entitled to receive and obliged to give
- (n) reference to any collective agreements which directly affect the terms and conditions of the employee’s employment.
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:
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The period of employment outside the State
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The currency in which they will be paid
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Any other benefits-in-kind or cash that will be provided
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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:
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Probationary Period and Probation Policy
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Hours of work / additional hours / overtime / shift liability / weekend liability / night work liability / public holiday liability
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Performance related bonuses
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Absence Management
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Medical examination
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Holidays, public holidays, all other forms of leave
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Grievance and Disciplinary Procedures
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Confidentiality
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Company Property
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Phone and Mobile Phone Usage
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Right to Inspect / Search
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Drugs & Alcohol Policy / Right to Test for Intoxicants
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Retirement
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Company Rules and Regulations
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Bullying and Harassment / Respect and Dignity at Work
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Internet, Email & Social Media Usage
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Use of Company Vehicles
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Suspension without pay
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Break and rest periods / exemption provision for employer for recording breaks
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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.
Minor and Gross Misconduct Procedures
Proper conduct and professional behaviour in the workplace is essential to ensure the efficient operation of a Company on a daily basis. Employers need to define unacceptable conduct so that employees can differentiate between appropriate and inappropriate behaviour/actions.
- Examples of minor misconduct include:
- Persistent lateness or absenteeism
- Unsatisfactory standards of work or poor productivity
- Disruption of other employees
- Abusive language
- Unauthorised use of property or negligent damage/loss of property
- Failure to abide by Company dress code or Health and Safety procedures
Cases of gross misconduct are more serious than ordinary instances of poor conduct. Gross misconduct can call for immediate dismissal and the employer does not have to give notice or pay in lieu of notice in these grave circumstances.
Examples of gross misconduct include:
- Sleeping while on duty
- Sexual harassment
- Making false allegations of personal injury/accidents in the workplace
- Gross indecent or immoral behaviour, deliberate discrimination or serious acts of harassment
- Deliberate fraud – e.g. falsification of records in respect of the individual or another employee or deliberate misrepresentation
- Smoking in breach of the Company policy
- Endangering others through fighting/physical assault or abuse
- Incapacity at work due to the use of intoxicants or drugs
- Possession, supply or use of illicit drugs
- Deliberate failure to carry out instructions, deliberate damage to Company policy/deliberate poor work performance
- Breach of code of professional conduct
- Providing confidential Company information to competitors or unauthorised bodies
- Rudeness towards clients and objectionable behaviour – neglect of duties that could result in harm to clients
- The taking of any property/money owned by colleagues or the Company without authorisation
- Arriving to work under the influence of alcohol where carrying out duties may be hindered
- Unauthorised use of Company property, facilities, or resources. Selling, attempting to sell or promoting the sale of non-Company merchandise while on Company premises.
Long Term Illness and Disability
The recent case of ‘Arravasc Limited v Gerard Cahill’ has provided some clarity regarding what constitutes a disability under equality legislation and is a warning to Employers about how broadly this can be interpreted by the Courts.
In this case, the claimant […]
Channel Islands Transgender case a ‘warning’ to others.
A transgender woman has won a case of direct and indirect discrimination against Ferries company Condor after one of its employees advised her to “use the disabled loos”.
Jersey based Condor Ferries was urged to remove the words ‘Ladies’ and ‘Gents’ from its toilets, and update its […]
Jobseekers Increasingly Consider Employer Brand Before Applying
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According to recent reports, one in five workers are ‘ashamed’ of their organisation
A survey in the UK has stated that jobseekers increasingly consider the brand of the employer before applying for a position. This trend has also […]
Stress in Ireland
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Introduction: Stress in the Workplace
One growing area in Irish employment law is employers’ liability for workplace stress, bullying and harassment. Employer’s must identify risk factors and implement effective policies relating to bullying, harassment and grievances. There is no official duty […]
Ireland’s Whistleblowing Act
The Protected Disclosures Act, 2014 is now in effect. The Protected Disclosure Bill 2013, commonly known as the ‘Whistleblowers Bill’ was published on July 3rd 2013 by the Minister for Public Expenditure and Reform, Brendan Howlin, T.D. The Bill was drafted to establish a comprehensive legislative framework protecting whistle-blowers in all industries in Ireland. The Bill recently passed through the Oireachtas and Minister Howlin announced the commencement of the Protected Disclosures Act, 2014 today. The purpose of this Act is to protect workers who raise concerns regarding wrongdoing (or potential wrongdoing) that they have become aware of one way or another in the workplace. The Act offers significant employment and other protections to whistle-blowers if they suffer any penalties at the hands of their employer for coming forward with information of wrongdoing in their place of work. The Protected Disclosures Act, 2014 closely reflects best practices in whistle-blowing protection in developed nations around the world. Minister Howlin said that the Act “sends out a very clear message that whistleblowers’ concerns must be listened to and acted on and those who make such reports should not be penalised for doing so.” The Minister wanted to “instil all workers with confidence that should they ever need to take that decisive step and speak-up on concerns that they have about possible misconduct in the workplace, they will find that society values their actions as entirely legitimate, appropriate and in the public interest”. Some key elements included in the Bill are as follows: Compensation of up to a maximum of five years remuneration can be awarded in the case of an Unfair Dismissal that came about as a result of making a protected disclosure. This is a massive step forward in Ireland’s attempt to match the standards set by other established nations. The Act also provides for interim relief if an employee is dismissed for making a protected disclosure. *It is important to note that limitations relating to the length of service that usually apply in Unfair Dismissals cases are set aside in instances of protected disclosures. As a result of this Act, whistle-blowers will benefit from civil immunity from actions for damages and a qualified privilege under defamation law. The legislation provides a number of disclosure channels for potential whistle-blowers and stresses that the disclosure, rather than the whistle-blower, should be the focus of the attention. The Act provides strong protections against the disclosure of a whistle-blower's identity. Protections for the whistle-blower remain in place even where the information disclosed does not reveal any wrongdoing when examined. Deliberate false reporting, however, is not be protected. These measures should encourage more people to come forward, and feel comfortable doing so, when they become aware of (or suspect) any criminal activity, misconduct or wrongdoing in the workplace. What should employers do? As it applies to all employees in Ireland including contractors, agency workers, Gardaí and members of the defence forces; all employers should establish and clearly communicate a comprehensive ‘whistleblowing’ policy to ensure that staff are aware of and understand the provisions of the Protected Disclosures Act, 2014. It is important that cultural issues and negative connotations surrounding whistle-blowing are addressed within companies to ensure that employees adhere to the appropriate whistleblowing guidelines.
Receptionist awarded €63K by Maternity leave discrimination
€63,000 has been awarded to a receptionist by The Equality Tribunal after it found she was discriminated against on the grounds of gender and race, and subsequently victimised. Sylwia Wach, a Polish receptionist began working at the Waterford Travelodge in 2007 where she was initially employed as an accommodation assistant before becoming a receptionist one year later. Ms Wach went on maternity leave on 23rd March 2011 before returning on 21st September 2011. On her return from maternity leave, Ms. Wach found her hours reduced, and also found that the company brought in a staff member from Cork to do shifts when Ms. Wach was available. Her manager allegedly expressed annoyance when he learned that she had raised this matter with their HR manager. He further stated that Ms. Wach’s contract was only for 24 hours, and that therefore, that was all she was entitled to. Ms. Wach outlined that those 24 hours were “minimum hours”, and that, on agreement with the previous manager, she had been working full time for the last three years. Her HR manager also accused her of not having sufficient English to work the job.
Ms Wach sent a written complaint about all the matters to her manager in October 2011 and as a result, a meeting was held in November 2011. Ms. Wach told the tribunal that following the complaint, her manager allegedly threatened to look through CCTV footage for any possible wrongdoing by her, where she was accused of selling alcohol to non-residents. Equality Officer Stephen Bonnlander outlined that he was satisfied Ms. Wach was fluent in both written and spoken English and that Ms. Wach's manager was "determined to make life difficult for her". In his judgement Mr. Bonnlander said:“I find that the complainant is entitled to succeed in her complaint of discrimination on the ground of gender, with regard to her conditions of employment. I do not accept the complainant’s manager’s statement with regard to the complainant’s proficiency in English, and therefore do not accept his reason for not assigning her day shifts, I find that the complainant is also entitled to succeed on her complaint of discrimination in her terms and conditions on the ground of race.”In accordance with Section 82 of the Acts, Mr Bonnlander ordered that Travelodge pay the Ms. Wach: (i) € 21,000 which equals one year’s salary for the complainant according to her P60 form for 2010 in compensation for the effects of discrimination and (ii) € 42,000 or the equivalent of two year’s salary in compensation for the effects of victimisation. This reflects the seriousness of the finding that the complainant found herself immediately threatened with false disciplinary charges when she exercised her right of complaint under the respondent’s own policies. He also said that the awards were in compensation for the distress suffered by the complainant and are not in the nature of pay and therefore not subject to tax. Do you want to protect your business with Ireland's leading HR and Employment Law experts ? If so, please feel free to contact The HR Company on 01 2911870.