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Covid-19 news with a HR Twist

December 2018

Annual Leave Entitlements Guide Ireland

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

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

There are three methods used to work out leave entitlements:

a)            The most common method used is: 4 working weeks in a leave year during which the employee works a minimum of 1,365 hours (Unless the employee has changed employment during that year). b)            1/3 of the employee’s working week per calendar month of at least 117 working hours (Eg: 1.67 * 12 = 20 days) c)            8% (.08) of the hours worked by the employee in the leave year (the total is not to exceed 4 working weeks) In some instances an employee’s leave could be worked out using more than one of the approaches listed above – where this is the case all applicable methods should be calculated and the employee shall be entitled to the highest result. Remember - the maximum statutory annual leave entitlement is four of his / her normal working weeks.

How to calculate an employee’s annual leave pay:

Not everyone works a 9-5 office job and not all employees earn the same gross figure on a weekly basis so here is a guide on how to determine holiday pay due to various categories of employees: (a)            If the employee’s pay is calculated by a fixed rate or a salary then the figure due to the employee per week of paid annual leave is equivalent to the amount he or she received for the normal weekly working hours last worked - This payment includes any regular bonus or allowance (that isn’t based on work completed) - it excludes any overtime pay.  

Annual Leave

(b)           If the employee’s pay is not calculated by a fixed rate or salary but instead by commission, for instance (or based on productivity rates) the amount paid to this employee per week of annual leave should equal their average weekly pay calculated over the 13 weeks prior to their annual leave commencing. (If the employee did not work during that period, the average weekly pay is calculated over the 13 weeks prior to the employee’s last working day before the annual leave commences. This excludes overtime.   In order to accurately calculate the number of annual leave days an employee is entitled to it is necessary to incorporate all hours worked in the calculation including time spent on annual leave (yes, employees accrue annual leave while on annual leave!), time spent on maternity leave, parental leave, force majeure leave or adoptive leave as well as time spent on the first 13 weeks of carer’s leave. Employees do not accrue annual leave while on sick leave, occupational injury, temporary lay-off, or career break.   If an employee falls sick during his or her annual leave this day(s) is not counted as annual leave (once it is covered by a medical certificate) and the annual leave day is kept for them to use at a later date. It is common practice for an employee to request their desired leave dates and usually, once an agreed period of advance notice is given (allowing the employer to arrange suitable cover etc.), the employer agrees. Annual leave is usually discussed in terms of weeks but, with employer consent, it can be broken down into shorter periods – often days or even half days at a time. It is the employer who approves holidays (it would not work from a business perspective if all employees were to arrange leave at the same time, for instance). The employer is, however, required to take the employee’s family responsibilities and need for rest and recreation into consideration. This annual leave must be given to employees within the leave year or, with the consent of the employee, within the first six months of the following year. The onus is on the employer to ensure that the employee takes their statutory leave allocation within the appropriate period. Employees may, with the consent of the employer, carry over holidays that exceed the statutory allowance to the next year. If the contract of employment is terminated and there is unused annual leave in respect of the employee the employer is obliged to compensate the employee for the accrued leave. It is illegal to pay an employee in lieu of the minimum statutory leave entitlement unless the employment relationship is terminated. Annual Leave Tracker
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August 2018

October 2017

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. Pregnant Employees Risk Assessment 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
Set out below are the different stages of a pregnant employee risk assessment: Step 1: Identify the risks (bearing in mind that there may not be any. Step 2 - Determine what can be done to reduce/remove any of the risks identified in Step 1. This may mean modifying the working hours or conditions of the pregnant employee. This stage can also involve assigning the employee to an alternative role during pregnancy. It is important to remember that the employer is not allowed to alter the employee’s pay for the duration of this change in role. Step 3 – If the identified risks are great and no possibility of removal/reduction can be found (this may not be practical within the workplace etc.), the employer may decide to suspend the employee from duties until the health and safety of the mother and unborn child/children is no longer threatened. This is known as Health & Safety Leave. Health and Safety Leave can also be applicable for breastfeeding mothers. During Health & Safety Leave (the period of suspension) the employee is entitled to full pay from the employer for the first three weeks. Exceptions can occur if the employee has unreasonably refused to do the alternative ‘risk-free’ work offered to them or if the employee does not meet any reasonable requirements.  Risk Assessment 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.
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September 2017

August 2017

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. 

contracts, contracts of employmentReasons 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.

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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:

    • (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.

describe the imageIn 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

 Contracts

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.

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July 2017

June 2017

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.

Gross Misconduct, Minor Misconduct

The repercussions for breach of the behavioural policies or rules within an organisation should be clarified for all employees as it is very important to make them aware that their actions can lead to the disciplinary procedures being invoked. In severe cases misconduct in the workplace can lead to dismissal. There are two levels of misconduct – minor and gross. Minor instances of misconduct should initially result in informal advice being given by the Manager without having to resort to disciplinary action – if this approach proves unsuccessful then leaning on the formal disciplinary procedure may be required.
  • 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
  Gross Misconduct, Minor Misconduct   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.
Employers must commit to treating all staff fairly and equitably and to helping employees to perform effectively. However, in order to protect the interests of the Company as well as the employees, there will be occasions where the need to invoke the Company’s disciplinary procedure arises. It is important for Companies to have a Labour Court approved Disciplinary Procedure in place so that employees know what to expect in instances of discipline. The steps in a disciplinary policy should be followed closely, however, during the probationary period or where gross misconduct has occurred progressive steps can be skipped. Cases must be treated consistently and fairly. Employees engaged in disciplinary proceedings should be given ample opportunity to provide their version of events and extenuating circumstances should be taken into account (if any exist). Cases must be thoroughly investigated, discrimination must be avoided and procedure should be adhered to including carrying out disciplinary meetings and allowing the employee to be accompanied by a colleague. Remove Threats Download HR eu002DBook
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2021-02-23T17:25:07+00:00
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