Covid-19 news with a HR Twist
June 2015
Loss of Twilight Hours Premium – UNITE Secures Compensation from HSE
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.
Employment Appeals Tribunal Awards €11.5k To Employee Dismissed After Criminal Conviction
It is crucial to exercise extreme care when dismissing an employee – even if he or she has been convicted of a serious criminal offence and even in instances where your discipline policy permits dismissal on conviction. A former employee of a multinational retailer was recently awarded €11,500.00 in compensation for being unfairly dismissed after being convicted of a serious criminal offence.
The Employment Appeals Tribunal heard testimony from a large multinational retailer (respondent) and a former employee (claimant) who claimed to have been unfairly dismissed by his employer of 15 years after being convicted of a criminal offence. According to the Employment Appeals Tribunal Report, at the time the claimant was dismissed, in September 2011, he was working as a charge hand in one of the respondent’s stores. The claimant’s disciplinary record with the respondent, apart from the issue for which he was dismissed, was clean when his employment was terminated. In 2009 the employee had been charged with the criminal offence of possession of an illegal substance with the intention to sell it. According to the claimant, when he was charged with the criminal offence he informed the then Store Manager and continued as normal in his employment thereafter.
According to the claimant, he informed the new Store Manager and the Personnel Manager in April 2011 that he would need time off to attend Court in July of that year. The respondent claimed that he had informed the company of his requirement for time off in July rather than in April.
The Claimant was absent for approximately one month from early July to early August due to an injury. During that month he attended Court and received an eight-month suspended sentence in light of his guilty plea.
On 2nd August 2011, the then Store Manager held a meeting during which the claimant confirmed that he had received a conviction. The claimant was informed that this could have repercussions on his employment status with the company and that it could result in dismissal after investigation. He was suspended with pay while an investigation was carried out.
A number of investigation meetings were held with the claimant. A Union representative was present and a number of issues were raised in the meetings. It came to light that the store’s Personnel Manager had provided a character reference for the claimant in advance of the trial in addition to a standard reference from the company.
The respondent pointed out that the character reference that was provided by the Personnel Manager was not on company headed paper and therefore was an unofficial letter, however, the Union representative nullified this point by highlighted the fact that numerous letters regarding the meetings between the claimant and the respondent were also on non-headed paper but were considered official.
*At the Hearing, in February 2014, the respondent confirmed that it stood over the character reference as well as the standard company reference that had been provided to the claimant.
A notable issue raised during the course of the meetings related to the claimant’s conviction bringing the company into disrepute. The Union representative stated that the conviction had not been reported in the news and enquired as to how the company’s name was in disrepute. The Union representative asked how other employees with convictions had been disciplined.
- Conviction by a Court of law for any serious criminal offence considered damaging to the company or its employees.
- Conduct which brings the company’s good name into disrepute.
Advice for Employers during World Cup 2014
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:
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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.
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Perhaps give staff the opportunity to swap shifts with colleagues who may not be interested in the matches - ensure all shifts are adequately covered.
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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.
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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.
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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.
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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.
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If applicable, you may consider screening the games in house as a goodwill gesture to employees.
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Be mindful if there are a number of matches on, you will need to allow employees have their say on which match is shown..
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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.
Employing Young People – Under 18s Register
The Protection of Young Persons (Employment) Act, 1996 is designed to protect the health of young workers and places restrictions on their employment. The basis for this is to guarantee the protection of young people and to ensure the workload assumed is not jeopardising their education.
The law sets minimum age limits for employment. It also sets rest intervals and maximum working hours, and prohibits employees under the age of 18 from working late at night. Employers must also keep specified records for those workers who are under the age of 18.
During a National Employment Rights Authority (NERA) assessment the inspector will request access to the company’s register of employees under the age of 18 (if the company employs workers in this category).
There are strict rules that employers must adhere to when employing those under the age of 18.
According to the Act employers cannot employ children under the age of 16 in regular full-time jobs. Children aged 14 and 15 may be employed on a controlled basis.
Some rules to pay attention to:
•They can do light work during the school holidays – 21 days off must be given during this period.
•They can be employed as part of an approved work experience or educational programme where the work is not harmful to their health, safety or development.
•They can be employed in film, cultural/advertising work or sport under licences issued by the Minister for Jobs, Enterprise and Innovation.
•Children aged 15 may do a maximum of 8 hours of light work per week during the school term. The maximum working week for children outside of the school term is 35 hours (or up to 40 hours if they are on approved work experience).
•The maximum working week for children aged 16 and 17 is 40 hours with a maximum of 8 hours per day.
There are many obligations on the employer when he or she employs a young person – here is a list of some of the items that employers must be vigilant of:
An employer must be provided with a copy of the young person’s birth certificate (or other documentation proving age) prior to the commencement of employment.
Break rules are: 30 minutes break after working 4.5 hours
Before employing a child an employer must obtain the written permission of the parent or guardian of the child.
An employer must maintain a register of employees under 18 containing the following information:
•The full name of the young person or child
•The date of birth of the young person or child
•The time the young person or child commences work each day
•The time the young person or child finishes work each day
•The rate of wages or salary paid to the young person or child for his or her normal working hours each day, week, month or year, as the case may be, and
•The total amount paid to each young person or child by way of wages or salary
Download your copy of our Under 18s Register here:
An employer and parent/guardian who fails to comply with the provisions of the Act shall be guilty of an offence. Some other notable rules the employer must adhere to when employing a young person or child are as follows:
•The employer is obliged to ensure that the young person receives a minimum rest period of 12 consecutive hours in each period of 24 hours.
•The employer is obliged to ensure that the young person receives a minimum rest period of 2 days which shall, where possible, be consecutive, in any 7 day period.
•The employer cannot require or permit the young person to do work for any period without a break of at least 30 consecutive minutes.
For a comprehensive guide to employer responsibilities and the rules and regulations governing the employment of young workers please refer to the Protection of Young Persons (Employment) Act, 1996
You must give employees a copy of the Protection of Young Persons (Employment) Act
docs/Protection of Young Persons Employment Act 1996.pdf
The national minimum wage for an experienced adult employee is €8.65 per hour. An experienced adult employee for the purposes of the National Minimum Wage Act is an employee who has an employment of any kind in any 2 years since the age of 18.
The Act also provides the following sub-minimum rates;
- An employee who is under 18 is entitled to €6.06 per hour (this is 70% of the minimum wage)
- An employee who is in the first year of employment since the age of 18 is entitled to €6.92 per hour (80% of minimum wage)
- An employee who is in the second year of employment since the date of first employment over the age of 18 is entitled to €7.79 per hour (90% of the minimum wage)
Carer’s Leave – What Employers need to Know.
Carer’s Leave
In accordance with the provisions of the Carer’s Leave Act, 2001, if an employee has completed 12 months’ continuous service with you; he or she is entitled to take unpaid Carer’s Leave in order to care for a person (a ‘Relevant Person’) who requires full-time care and attention. Carer's Leave is protected leave.A ‘Relevant Person’
A ‘Relevant Person’ is a person who is over the age of 16 and is so incapacitated as to require full-time care and attention or a person who is under 16 and in receipt of a Domiciliary Care Allowance. A Deciding Officer of the Department of Social Protection determines whether or not an individual qualifies as a ‘Relevant Person’. Employees may be entitled to receive Carer’s Benefit/Carer’s Allowance whilst on leave. You should inform employees that they should apply to the Carer’s Benefit Section at their local Social Welfare Office so their eligibility can be assessed. There is no statutory obligation on you as an employer to pay employees during Carer’s Leave.Entitlements
Other than their right to remuneration, you should treat employees as though they have been working during a period of Carer’s Leave. Annual Leave and Public Holidays will accrue as normal for employees during the first 13 weeks of Carer’s Leave. The minimum statutory entitlement is 13 leave weeks and the maximum period is 104 weeks. The 104 weeks (2 years) can be taken in one continuous block or it can be broken up into multiple separate periods of leave – there must be a gap of at least 6 weeks between periods of Carer’s Leave.
Application/Notification
If one of your employees intends to avail of Carer’s Leave then he or she should write to you not less than 6 weeks before the proposed commencement of the leave in order to apply for this leave. The application should include the following details: - The manner in which the employee intends to take the leave
- The proposed commencement date and, where possible, end date (this won’t always be possible – especially if the ‘Relevant Person’ is terminally ill; for instance)
- That he or she has made an application to the Department of Social Protection for a decision to be made in respect of the person for whom they propose to avail of the leave
Termination of Carer’s Leave
Carer’s Leave may be terminated for several reasons. If it becomes apparent that the person for whom the care is being provided is not in need of full-time care any longer for whatever reason, you may terminate the leave. The Department of Social Protection will make a decision in certain instances. To download our Staff Suggestion Form click the image below ->
Annual Leave Calculation, all hours to be included
Did you know that all hours worked by any employee are taken into account when calculating Annual Leave?
This will include any hours worked in addition to normal working hours.
Further to this there are additional leave periods that will be included when calculating Annual Leave for an employee:
- Maternity Leave
- Public Holidays
- Adoptive leave
- Parental Leave
- The first 13 weeks of Carers leave
- Force Majeure Leave
These are protected leave periods and therefore Employees continue to accrue Annual Leave while on any of the above listed leaves.
Leave that is not included when calculating Annual Leave for an employee:
- Sick Leave
- Occupational Injury (sick leave as a result of such injury)
- Temporary Lay-off
- Career Break
Employers slowly beginning to ban e-cigarettes in Irish workplaces.
Employers are starting to implement e-smoking bans in workplaces in line with the current tobacco smoking ban. In March 2014 Bus Eireann and Dublin Bus extended their respective “no smoking” policies to prohibit the use of e-cigarettes and vapour devices on their busses – employees, as well as customers, are banned from smoking any form of cigarette except in designated areas. Irish Rail also implemented the ban in the recent past and now universities and other institutions and companies are beginning to follow suit by disallowing the use of cigarette substitutes. There are a few reasons for this -
- To avoid ambiguity – from a distance e-cigarettes can appear quite like a regular cigarette.
- Because e-cigarettes contain nicotine – nicotine is a highly addictive and harmful drug. Nicotine was formerly used as an insecticide and can increase blood pressure and heart rate in humans.
- Because the effects of e-smoking are not yet known – e-cigarettes are a relatively new innovation and consequently the long-term effects on health are unclear.
- Because of the vapour omitted – there is uncertainty over the contents and effects of this vapour on the e-cigarette smoker and the people in his or her presence.
While there is no legislation currently in place in Ireland disallowing the use of e-cigarettes and similar products in the workplace, more and more employers are beginning to enforce their own internal rules in relation to their use at work.
However, if the rules around e-smoking in the workplace are not covered in the Employee Handbook, the employer could find it difficult to enforce such a policy. The rules surrounding e-cigarettes should be available for all employees - non-e-smokers as well as e-smokers - so there is no confusion over what is/is not allowed.
If an employer is considering revising the company’s policies then it is imperative that he or she ensures that the new rules are clearly communicated to employees through an update of the Employee Handbook (which should contain all HR policies).
At least two employees in The United Kingdom have recently brought cases forward claiming that they were “victimised” by their employers for use of e-cigarettes in the course of their work. It is only a matter of time before we start to see cases trickle through the system in Ireland and so it would serve employers well to prepare for this potentially costly exposure by introducing very clear policies in relation to e-cigarettes as soon as possible.
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. The 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. 
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. 
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
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.
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.
This 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.
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.
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.Trade Disputes and Industrial Action
According 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:
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.
SIPTU 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.
Employee dismissed for nonconsensual use of premises awarded €25k
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.
Based 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. 
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.
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.
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 / VettingEmployer Responsibilities when it comes to 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.
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. The contract should explain the relationship between the employer and employee and should not leave any room for misinterpretation or confusion.
A contract outlines the requirements of the position and conditions the person must work against. 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.
Having a contract in place will offer protection to the company in the event of a dispute or issue arising. This document will safeguard the company in the event of employee litigation or labour court hearings.
Items that must be included in the written terms of employment are:
•Full name of employer
•Full name of employee
•The address of the employer
•The place of work (if there is no permanent place of work, a statement specifying that the employee is required or permitted to work at various places)
•Appointment/job role – The title or description of the job or the nature of the work for which the employee is employed
•The date of commencement of the contract
•If the contract is temporary, the expected duration of employment
•If the contract is for a fixed-term, the date on which the contract expires; if the contract is for a fixed purpose, then the details of the occurrence of that specific purpose
•The rate of pay, the method of calculation and the frequency of payment (this clause should also include provisions on any permissible deductions in accordance with the Payment of Wages Act, 1991
•The period of notice required from each party to terminate the contract
•The terms and conditions applicable to sick pay, if any
•The terms and conditions applicable to pension schemes, if any
•The terms and conditions relating to paid leave if any
•The terms or conditions relating to hours of work, including overtime
•Reference should be made to any collective agreement affecting the terms of the contract, whether or not the employer is a party to the agreement, including information about the institutions or organisations which drew up any Collective Agreement which affects the terms of the contract to which the employer is not a party.
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
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.
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.
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.