Covid-19 news with a HR Twist
June 2015
Employers reducing salaries without consent
If a salary reduction is imposed without consultation or employee agreement, an employee now only has three (rather than four) potential legal opportunities to seek redress from his or her employer.
If an employee’s wages are cut his or her first option is to claim Constructive Dismissal under the Unfair Dismissals Acts 1997-2007. Constructive Dismissal is the term used when an employee terminates his or her employment based on the conduct of the employer. In this instance, the employee must be able to prove that their position became unsustainable as a direct result of the involuntary reduction in pay.
Secondly, where an employee’s salary is reduced, he or she has the opportunity to bring a trade dispute under the Industrial Relations Acts. The Industrial Relations Acts deal with disputes between employers and workers that are connected with the employment or non-employment, or the terms and conditions of or affecting the employment, of any person.
Thirdly, if an employer cuts an employee’s pay, the employee could claim that their contract has been breached. Defending this could prove very costly for the employer. Furthermore, an injunction may be granted to prevent the contract breach/reinstate the original salary.
In the past employees whose wages were cut without prior consent had a fourth option. They had the opportunity to take a case (and were likely to succeed) under the Payment of Wages Act 1991. Claims in relation to a reduction in wages, however, may no longer be successful if taken under this Act as a result of a recent Employment Appeals Tribunal determination. The specific EAT case referenced here is an appeal of a Right’s Commissioner decision in the case of Santry Sports Clinic v 5 employees.
The employees in the aforementioned case were claiming for an 8% reduction in their pay that was imposed between February and March 2010. Santry Sports Clinic stated that the reduction was essential. According to the employer, all employees received letters detailing the 8% reduction in advance and, while only 30% of employees agreed to the reduction via return letters, no one officially objected or stated that they would not accept the pay cut and so it was implemented as planned.
The Employment Appeals Tribunal considered all evidence and representations made at the hearing as well as all other submissions made. The Tribunal noted the High Court decision in the case of Michael McKenzie and others and Ireland and the Attorney General and the Minister for Defence Rec. No. 2009. 5651JR. In paragraph 5.8 of this decision the Judge stated that “the Payment of Wages Act has no application to reductions as distinct from ‘deductions’.” The Tribunal followed the High Court decision on a point of law and, therefore, the appeal was successful and the decision of the Rights Commissioner was entirely overturned in the case of Santry Sports Clinic v 5 employees.
This case brought to light the fact that the Payment of Wages Act 1991 refers to “deductions” as opposed to “reductions” and, as a consequence, employees whose wages are reduced without prior consent are now unlikely to succeed if they opt to take a case against their employer under the Payment of Wages Act 1991.
This is particularly significant for claims that are currently being processed by the Employment Appeals Tribunal.
Employers need to remember that, although this option has essentially been closed off for employees as a result of the above-mentioned High Court decision and the EAT case, they still have several avenues open to them if they wish to take a claim where a reduction of wages has been imposed by the employer without prior consent.
Pension Obligations of Irish Employers
No matter how big or how small your company may be – or whether your employees are part-time, seasonal or fixed-term - every Irish employer is obliged to enter into a contract with a PRSA provider and to provide access to at least one standard PRSA for all ‘excluded employees’.
What are ‘excluded employees’? Employees are considered to be ‘excluded employees’ if:- their employer does not offer a pension scheme, or
- they are included in a pension scheme for death-in-service benefits only, or
- they are not eligible to join the company’s pension scheme or will not become eligible to join the pension scheme within six months from the date they began working there, or
- they are included in a pension scheme that does not permit the payment of additional voluntary contributions (AVCs).
Even if there is only one ‘excluded employee’, an employer must:
- enter into a contract with a PRSA provider (there is no charge for doing this)
- provide employees with access to a Standard PRSA
- allow reasonable paid leave of absence, subject to work requirements, so that excluded employees can set up a Standard PRSA
- make deductions from payroll if required
- advise employees in writing (normally on their payslip) at least once a month of their total contribution, including employer’s contribution, if any.
- You’re not obliged to give any advice to employees in relation to PRSAs, but you must allow your PRSA provider or intermediary reasonable access to your employees to brief them on PRSAs.
- You don’t have to contribute to PRSAs on behalf of your employees, but if you decide to do so, your contributions must be paid to the PRSA provider within 21 days of the end of the month in which the employer contributions are due. And please note that you cannot make any deductions from this payment.
- You are not responsible for the investment performance of PRSAs
IFG have many years of experience of providing Pension Scheme Design & Risk Advisory services to Irish companies. They would be delighted to answer any and all of your pension queries if you would like to find out more www.ifg.ie .
Equality Officer Awards €40,000 in Gender Discrimination Case
Equality Officer Awards €40,000 to Anne Delaney in response to complaint made against the Irish Prison Service.
Anne Delaney took a case against the Irish Prison Service because she was discriminated against by her employer on the grounds of gender in relation to promotion, training and conditions of employment.
In 2011, Ms. Delaney referred a complaint against her employer under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal. She alleged that the Irish Prison Service discriminated against her on grounds of gender when she applied for numerous posts over several years. Junior or less suitable/less experienced male candidates were appointed to the roles ahead of Ms. Delaney on all occasions.
After reviewing all of the submitted evidence, the Equality Officer was satisfied that the complainant, Ms. Delaney, had established a link between the incidents that she complained about. The Equality Officer considered the incidents as separate manifestations of the same disposition to discriminate. The Equality Officer criticised the lack of transparency stating that she was unsure of the fairness of the selection procedures that were followed. There were no marking schemes available for review and no records to help her to assess what grounds the hiring decisions were based on. It also became apparent that the same senior personnel were involved in the selection process for all posts.
The Equality Officer’s investigation of the complaint concluded that the Irish Prison Service discriminated against Ms. Delaney on gender grounds when she applied for a gym instructor course in 2001, when she applied for an Operational Support Group post in 2009, when she was asked to step down from the post of Acting ACO in August 2010 and again in September 2010 when she applied for an allowance carrying post in the Detail Office.
As a result of her findings the Equality Officer tasked with making the decision on the case ordered that Ms. Delaney be appointed to the position of Acting ACO, and placed on the permanent roster for that position. The Equality Officer backdated this appointment to the 5th of August 2010 and ensured that all consequential employment rights and entitlements, including remuneration and recognition of service, were upheld.
The Equality Officer found that Ms. Delaney had been subjected to discrimination on the grounds of her gender on numerous occasions during her career with the Irish Prison Service. The Equality Officer considered a compensatory award of €40,000 to be just and equitable in response to the distress suffered by Ms. Delaney as a result of the discrimination that she suffered. The Equality Officer felt as though €40,000 was a proportionate, effective and dissuasive sum to award. That component of the award was not in the form of remuneration and, consequently, was not subject to the PAYE/PRSI Code.
The Equality Officer found that the Irish Prison Service’s selection process for the allowance carrying post in the Detail Office (a post applied for by Ms. Delaney in September 2010) was deficient and non-compliant with Equality Legislation. The Equality Officer ordered that the Irish Prison Service ensure that a fair selection process be adopted in all future selections. She also ordered that the selection panel must be trained in the process and that it must set down the criteria in writing before embarking on the selection process. The Equality Officer also ordered that a marking scheme must be adopted and that the weighting should be given under each element. She also directed that notes must be retained for future reference.
DEC-E2013-155
DECISION NO: DEC-E/2013/155
Anne Delaney Vs Irish Prison Service
FILE NO: EE/2011/292
DATE OF ISSUE: 19th of November, 2013
Christmas – Public Holiday Advice for Employers
With the Christmas Period upon us we thought you might find some information on Public Holidays and the relevant employer obligations/ responsibilities around pay useful.
There are nine Public Holidays in Ireland each year - they are:
•New Year's Day (1 January)
•St. Patrick's Day (17 March)
•Easter Monday (Changes every year)
•The first Monday in May, June & August
•The last Monday in October
•Christmas Day (25 December)
•St. Stephen's Day (26 December)
Here is a breakdown of the statutory outline of Public Holiday Entitlements under Irish Employment Legislation: Did you know that employees scheduled to work on a Public Holiday are entitled to an additional day's pay for the day?
For instance, let's take “Employee A” as an example –
“Employee A” works on the day the Public Holiday falls - let's say “Employee A” is a retail store employee and is required to work on St. Stephen's day as it is the first day of the store's seasonal sale.
*On a normal working day “Employee A” earns €100.
This means that “Employee A” is entitled to receive the usual €100 for the hours worked on the Public Holiday as well as an additional €100 - So “Employee A” receives €200 for working on the Public Holiday. If there is any ambiguity in ascertaining what an additional day's pay should equal the employer should look at the last day worked prior to the Public Holiday.
“Employee B” represents an employee who is normally scheduled to work on a day that a Public Holiday falls but is not required to work on that day (for example - an administrative assistant in a bank who typically works 09:00-17:00 Monday – Friday, who is not required to work on Easter Monday).
“Employee B” should receive their normal day's pay for that day as well as not being required to work on the Public Holiday. On a normal working day “Employee B” receives €100. When a Public Holiday falls “Employee B” will not be required to work on this day as the business is closed. “Employee B” will still receive their normal day’s pay.
The one that can cause the most confusion is the case of “Employee C” –
Employees who are not normally scheduled to work on the Public Holiday will receive one-fifth of their normal weekly pay for the day. “Employee C”, for instance, works Wednesday – Friday and receives €100 per day in remuneration. If a Public Holiday falls on a Tuesday, even though “Employee C” never works that day he or she still has the right to benefit from the Public Holiday in some way.
“Employee C” is still entitled to be paid a certain amount as a benefit for the Public Holiday (one-fifth of their normal weekly pay). If this employee earns €300 per three day week (Wednesday-Friday) they are entitled to earn an additional €60 during a week where a Public Holiday falls on a Monday or Tuesday.
The above rules will apply for all Public Holidays.
Effective Communication in the Workplace.
Employees and the people on the ground in general, are an invaluable source of information for employers. Whether it is positive or negative, employees can provide a whole host of important feedback for your business - if you take the time to listen to and interpret their comments they can be a real asset to you.
Conducting regular meetings between employees and managers is a good way to keep lines of communication open. However, sometimes people are reluctant to speak out in an open forum, particularly where they have something negative to say or where they have an issue involving someone else who is included in the meeting.
Employee surveys are an ideal way for employees to share their opinions about their job and work environment etc. Confidential surveys tend to encourage honesty and can prove to be of great assistance to employers. Employee participation should be encouraged. Employees will feel as though their input is valued if attention is paid to their suggestions/recommendations. If action is taken by the employer as a result of employee opinions, morale amongst workers can be increased and relationships between the employer and their employees can be drastically improved. This has a positive effect on productivity.
Similarly, as employees leave the company; an exit interview should be carried out. This can be very beneficial for the employer as it can, for instance, give the employer an insight in to the reasons behind the employee’s departure. It can also highlight other issues that exist within the business – issues that management may not necessarily already be aware of. It can also reveal what is working well and where resources should be focused. People tend to be more open and honest about what they are feeling when they know that divulging the information will not have any negative bearing on them.
Not asking the opinion of a departing employee is a wasted opportunity.
It is important to give employees the opportunity to elaborate on their answers and to encourage them to give you as much information as possible – the more information that they impart the better. Leave an additional space for them to comment on issues that you may not have thought to include.
Here are some examples of questions that should be included in an exit interview:
- How long were you employed by the company?
- Were you in a supervisory role?
- Were you a full-time or part-time employee?
- Did you resign or was your employment terminated? If other, please explain.
- If you resigned, what were your reasons for leaving the company? Please list all reasons. (E.G: Geographical Location, Family Circumstances, Career Development etc.)
- If you left for a new position, was the salary offered greater than your salary here? If so, please reveal the approximate percentage difference.
- Can you explain why the new position (if relevant) was more desirable than your position here?
- What might have motivated you to remain in your current position? (E.G: Improved Benefits, More Time-Off, Less/More Travel, Promotional Opportunities etc.)
- What impacted your decision to leave the company? (E.G: Lack of Equipment/Information, Work that did not Challenge, Too much/Too little work, Pressure, Remuneration/Benefits, Other Personnel, Relationship with Supervisor/Co-workers, Morale, Teamwork, Goals, Harassment, Organisational Structure, Physical Environment etc.)
- Can you please tell us about your positive experiences with the company? (E.G: Benefits, Hours, Facilities, Your Supervisor, Co-Workers, Personnel Practices/Policies, Physical Environment/Work Area, Development Opportunities, Level of Support etc.)
- Do you feel as though you received adequate consideration for positions that you applied for? Please explain your answer.
- Do you feel as though your work was fairly evaluated through performance reviews during your employment? Please explain your answer.
- Do you feel as though your monetary recognition was in line with your performance? Please explain your answer.
- Was the frequency/level of your recognition appropriate? Please explain your answer.
- Do you feel as though you received adequate training for your position and the duties you were required to carry out? Please explain your answer.
- Did you have adequate resources, equipment, support and information to carry out your job well? Please explain your answer.
- Was your work environment free of sexual, religious, age and/or racial discrimination? If no, please explain in detail.
- Were you satisfied with the quality and quantity of feedback received from your supervisor about your performance? Please explain your answer.
- Were you kept well informed on what was expected of you in the workplace? Please explain your answer.
- Did you feel free to discuss your career development with your supervisor? Please explain your answer.
Dignity at Work – 20% of racist incidents occur in workplace
In December 2013 the Immigrant Council of Ireland (ICI) brought our attention to a shocking statistic – The ICI revealed that the number of racist incidents reported in Ireland in the first 11 months of 2013 had jumped to a staggering figure – The ICI dealt with 142 individual racism cases between January and November 2013 - This figure was 85% higher than for the same 11 month period in 2012. 52 of the racist incidents that were reported occurred between June and July of 2013 alone. This signified a huge increase when compared to the same period in 2012 when just 3 incidents of a similar kind were reported.
The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence.
Denise Charlton, CEO of the Immigrant Council of Ireland, described the results as "alarming".
A massive 20% of the reported incidents of racism occurred in the workplace.
Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity.
Employers - Did you know that you can be held accountable for bullying or harassment in the workplace?
……..Not being aware of it does not get you off the hook!
Bullying in the workplace is any recurring inappropriate conduct that undermines a person’s right to dignity at work. Bullying can be carried out by one person or by several people - it is aimed at an individual or a group where the objective is to make them feel inferior or victimised. Bullying can come in the form of a verbal or physical assault and can also take place over the internet – this is known as cyber bullying and can be performed via many methods - Mobile phones, social networking sites, emails and texts are all common vehicles for cyber bullying.
Cyber bullying is becoming more and more prevalent in society.
Keep in mind that harassment based on civil status, family status, sexual orientation, religion, age, race, nationality or ethnic origin, disability or membership of the Traveller community is considered discrimination.
Harassment in the workplace is prohibited under the terms of the Employment Equality Acts, 1998 to 2007. The Act of harassment - whether direct or indirect, intentional or unintentional - is unacceptable and should not be tolerated by any company. Any allegations should be dealt with seriously, promptly and confidentially with a thorough and immediate investigation. Any acts of harassment should be subject to disciplinary action up to and including dismissal. Any victimisation of an employee for reporting an incident, or assisting with an investigation of alleged harassment and/or bullying is a breach of Equality Legislation and should also be subject to disciplinary action.
Bullying or harassment isn’t always obvious – in fact it can come in many shapes and forms – some examples are:
•Social exclusion or isolation
•Damaging someone’s reputation through gossip or rumour
•Any form of intimidation
•Aggressive or obscene language or behaviour
•Repeated requests for unreasonable tasks to be carried out
Employers Beware:
Under current Irish employment legislation (The Employment Equality Acts 1998-2011) companies are accountable when it comes to bullying and harassment in the workplace or workplace disputes. It is vital for employers to be mindful of the legislation as companies are answerable for the actions of employees, suppliers and customers even in cases where the company is not aware that bullying or harassment is taking place.
To defend itself a company must illustrate how it did everything reasonably practicable to prevent bullying and / or harassment from taking place in the workplace. The company must also show that when an instance of bullying or harassment occurred the company took immediate, fair and decisive action.
There is a huge risk of exposure if companies do not adhere to the strict Regulations. Those found in violation of the Act may be liable for fines and in severe circumstances imprisonment on summary conviction. Companies can also end up paying out large sums in compensation.
Bullying creates a very hostile work environment and can negatively affect employee performance – It can lead to disengagement and low levels of morale. It can also cause a company to lose key members of staff. Bullying can affect both the safety and the health of employees – this violates the Safety, Health and Welfare at Work Act 2005.
It is abundantly clear that it is in the best interest of all stakeholders to prevent bullying or harassment of any form in the workplace.
In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook – A Dignity at Work Policy should be communicated clearly to employees. This will clarify what is expected of employees and what the protocol/repercussions are if bullying/harassment does occur.
State Pension Changes Effective January 2014
There is no single fixed/mandatory retirement age (age at which you must retire) for employees in Ireland. Typically, an employee’s retirement age is set out in their Contract of Employment and this can vary from one company/industry to the next. Alternatively, precedent/established custom and practice within the Company can determine the retirement age of its employees. E.G: if Mary was forced to retire at the age of 62 then Jack should also have to retire upon reaching the same age (assuming the circumstances are the same and that Mary was not ill, for instance).
Contracts provided by employers to their employees usually incorporate a mandatory retirement age (Normal Retirement Date/NRD). This tends to make it compulsory for the employee to retire at a certain age, usually this is somewhere between the ages of 60 and 65. Most contracts also include some sort of provision for early retirement on ill-health grounds etc.
In certain occupations there is a state-imposed compulsory retirement age. This arises for members of An Garda Síochána and members of the Defence Forces, for instance. Gardaí are forced to retire from their roles by the age of 60.
General Practitioners are obliged to retire from the General Medical Services scheme when they reach the age of 70. They may, however, continue to practice privately if they are approved by the Medical Council – the Medical Council will ensure that they meet their fitness to practice criteria.
There is no set retirement age when a person is self-employed, similarly, unless specifically set out in the Company’s Articles of Association, Company Directors are not usually bound by a maximum working age either.
Interestingly, employers are allowed to set minimum recruitment ages provided that the minimum age is 18 or under.
The most common company retirement age is 65 and, until recently, people went straight from receiving their salary from the company to receiving a pension from the State (provided they paid enough PRSI contributions during their working life). The Social Welfare and Pensions Act 2011, however, legislated for certain changes to the pensions system in Ireland effective from 1st January 2014. The State Pension (Transition) has been discontinued for new claimants from 1st January 2014. As a result, the State Pension minimum age has been increased to 66 years for all. It will increase to 67 years in 2021 and to 68 years in 2028.
What this means is that:
- If a person was born between 1st January 1949 and 31st December 1954 inclusive, the minimum qualifying State Pension age will be 66 (rather than 65).
- If a person was born between 1st January 1955 and 31st December 1960 inclusive, the minimum qualifying State Pension age will be 67.
- If a person was born on or after 1st January 1961 the minimum qualifying State Pension age will be 68.
When asked, in 2011, about the changes to the State Pension the Minister for Social Protection, Joan Burton, said:
“Given the changes to State pension age and the other proposals in the Framework, both employees and employers must be encouraged to change their attitudes to working longer. In the workplace employers must seek to retain older employees and create working conditions which will make working longer both attractive and feasible for the older worker. Where this is not possible and people leave paid employment before State pension age they will be entitled to apply for another social welfare payment until they become eligible for a State pension”.
The Transition Pension will not be payable to anyone who reaches 65 years of age after 1st January 2014. Instead, individuals will have to apply for Jobseeker’s Allowance and should be entitled to receive this payment until they become eligible for the State pension. Jobseeker’s Allowance is considerably less per week than the pension is (€188 compared to €230.30).
Employees due to retire from their jobs upon reaching the age of 65 may not be able to afford to do so for another year unless they are able to access savings, draw down a private pension or unless their employer graciously extends the retirement age. To date there is no obligation on employers to increase the retirement age or to somehow bridge the gap financially however, employers nationwide may find themselves receiving requests to increase the retirement age for employees.
Please note that if an employer wishes to increase the contracted retirement age he or she is still obliged to consult the employee in relation to same as written consent is required to change the terms and conditions of employment.
Fears for Kerry jobs in pay dispute
Services Industrial Professional and Technical Union (SIPTU) held a secret ballot of its members at Liebherr Container Cranes in Killarney yesterday, 14th January 2014.
SIPTU members voted to reject Labour Court proposals geared at resolving a long-term pay increase dispute with the Company dating back to 2009.
Liebherr Container Cranes Ltd., a member of the large family-owned German Company, Liebherr Group, was established in Killarney in 1958 and has been a significant direct and indirect employer in the area in recent years. The Company is one of the largest firms in Kerry and one of the largest of its kind in the country.
The German company has warned that its commitment to the plant in Killarney has been weakened in recent months as a result of the on-going pay issues and the industrial action which forced them to send work from Killarney to Germany.
Fears are now growing for jobs at the Company as Management admit to reviewing its operations in the region. Liebherr stated that a small number of employees have seriously compromised its future in Killarney.
Based on the details of Towards 2016 Review and Transitional Arrangement, an agreement drawn up by the Company, a 2.5% pay increase was due to be implemented for employees in January 2009.
The Company did not pay the expected increase and argued that payment would severely impact its competitiveness and limit its ability to preserve its headcount numbers in a time of economic hardship. The Company proposed to pay the increase due in three distinct phases beginning in 2012 in return for a number of concessions including cost-offsetting measures.
Union members and the Company were unable to resolve the dispute at local level and 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 the 28th January 2011, the pay dispute was referred to the Labour Court.
A Labour Court hearing was scheduled for, and took place on, the 2nd May 2012.
The Labour Court considered the submissions of all parties and a decision was made that further engagement was required if the claim was to be resolved before the Court. The Court recommended that the discussions/negotiations were to be facilitated by the Labour Relations Commission.
As a result of the unresolved pay dispute, industrial action was served by SIPTU in November 2013. Workers at the plant implemented a ban on overtime and undertook a one-day work stoppage late in November. All industrial action was suspended on 28th November when members of the union accepted an invitation to attend a hearing of the Labour Court on 4th December 2013.
In December 2013, the Labour Court recommended that the firm award the disputed 2.5% increase backdated almost two full years to its workers. The Court provided a list of recommendations to both sides. Liebherr said that, while the industrial action and the pay award had increased its cost base, they accepted the recommendation.
SIPTU workers at the plant, however, voted on the 14th January 2014 to reject the Labour Court proposals. The union was said to be dissatisfied with the proposal and wanted the 2.5% wage increase to be implemented on an unconditional basis.
Data Protection Breaches in Ireland Dangerously High
The Data Protection Acts 1988 and 2003 provide rules that apply to the collection, use, disclosure and transfer abroad of information about individuals. The Acts cover the principals that companies must follow when processing personal data about employees as well as information about clients/residents.
The Acts also give individuals certain rights in relation to personal data that is held about them. If you as a company collect, host or process data about people on any type of computer or structured filing system, then you are considered a data controller under the Acts. Every company holding information about individuals should have a data protection policy in place and should ensure that all IT administrators and employees with access to personal/confidential information are fully trained on the rights and responsibilities associated with that access. Billy Hawkes, the Data Protection Commissioner, ensures that companies that keep personal data are in compliance with the Acts. The Commissioner has a range of enforcement powers to help guarantee that the provisions of the Acts are observed. The Commissioner can serve legal notices compelling data controllers to provide information needed to assist with his enquiries. He can also compel data controllers to implement provisions of the Acts in a particular prescribed manner. He may investigate complaints made by members of the public and can authorise officers to enter sites with the aim of inspecting the type of personal information kept as well as how it is processed and the security measures that the data controller has in place. Companies are required to co-operate fully with such data protection officers.
Data controllers who are found guilty of offences under the Acts can be fined up to €100,000 on conviction and may be ordered to delete all or part of their database.
The Data Protection Commissioner publishes a report annually naming, in certain cases, data controllers who were investigated by his office.
Civil sanctions may result where a person suffers any damage as a consequence of failures on the part of a data controller to meet his/her obligations.
In November 2013 it was discovered that the personal information of more than 1,500,000 people was compromised by a major security breach at a Co. Clare based company. In an RTE Morning Ireland interview at the time, Mr. Hawkes admitted that “cyber-criminals have become extremely sophisticated and it can be quite difficult to actually identify that your system has been perpetrated.” This was one of the worst data breaches in Irish history.
The Society for Chartered IT Professionals in Ireland, known as the Irish Computer Society (ICS), carried out a recent survey on data protection in Ireland and the results, which were published in January 2014, were astonishing.
256 Irish based companies were surveyed and a record number of data breaches were reported to have occurred in 2013. Findings revealed that one in two of the surveyed companies experienced a data breach during the last 12 months. In fact, more than 20% of the companies contacted by the ICS reported multiple breaches. These statistics mark a significant increase on last year’s figures when 43% of companies examined reported a breach.
According to the results, one third of employees are not fully aware of data protection issues and many receive insufficient data protection training or, alarmingly, no relevant training whatsoever.
Several IT managers admitted that data protection policies are not implemented at all in their company or they are only partially adhered to. The survey has highlighted the need for companies to manage their data processing environment much more carefully and provide additional training for their IT administrators and all employees who have contact with personal information pertaining to employees/clients. According to the ICS survey, negligence on the part of employees accounted for 77% of the reported incidents. Hackers seeking to obtain data and unencrypted laptops were also cited as major threats.
According to Fintan Swanton, Chairman of the Association of Data Protection Officers, “Clear policies and procedures are vital, with regular refresher training and timely reviews to ensure that staff are complying with the structures.”
It is important for employers to be aware that new data protection legislation will require most organisations to appoint a Data Protection Officer.
HSE costs to total €400k on conclusion of Constructive Dismissal case
Constructive Dismissal is the term used when an Employee terminates his or her employment based on the conduct of the Employer.Unlike in an Unfair Dismissals case where the 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.
If it is found that the Employee has been Unfairly or Constructively Dismissed then he or she could either be awarded compensation for the loss of earnings suffered as a result of the termination of employment or could be placed back in their original role. Reinstatement is not common practice (particularly in Constructive Dismissal cases) due to the expected tension/ strained relationship between the Employer and the former Employee and due to the amount of time that is likely to have lapsed between the termination of the employment and the resolution of the case. Often the Employee has entered in to a new employment contract elsewhere.
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. Constructive Dismissal scenarios can be extremely costly to employers as was proven in a recent Health Service Executive (HSE) case. The claimant in this case was the Head of Ambulance Services for the HSE. The claimant, who lives in Derry, inappropriately used a HSE fuel card for private purposes and, while this would likely have seen him disciplined had he remained in employment, the claimant discovered that he had been found guilty at an early stage and, fearing dismissal/a Garda inquiry, he resigned from his position in 2010.
The claimant’s employer (the HSE) found that he was guilty without first giving him the opportunity to defend himself which meant that the process was seriously defective. The HSE exposed itself with this fundamental flaw in its process and, after his resignation in March 2010; the former Head of Ambulance Services claimed that he had been Constructively Dismissed.
The Employment Appeals Tribunal found that the claimant, who resigned from his approximately €100,000 per year role out of anxiety after learning that he was found guilty of the fuel card offence, had in fact been Constructively Dismissed. However, the Tribunal did not award any financial compensation because of the nature of the employee’s actions prior to his departure.
The claimant appealed the decision not to compensate and, in December 2013, the Circuit Civil Court awarded €250,000 (minus €50,000 for the misuse of the HSE fuel card) because of the catastrophic affect that the Constructive Dismissal had on the claimant’s career.
On the 22nd January 2014, the Health Service Executive was dealt a further blow when the Circuit Civil Court ordered it to pay the legal costs. The HSE is liable for an estimated €200,000 in legal costs that built up during the course of the Court and Employment Appeals Tribunal Hearings.
Whistleblowing in Ireland
In light of the Garda whistleblowing issues that have been unfolding in recent weeks, we thought employers might find some information on whistleblowing useful.
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 is to establish a comprehensive legislative framework protecting whistleblowers in all industries in Ireland.
The purpose of the Bill 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 Bill will offer significant employment and other protections to whistleblowers if they suffer any penalties at the hands of their employer for coming forward with information of wrongdoing in their place of work.
The Bill, which is due to be enacted shortly, closely reflects best practices in whistleblowing protection in developed nations around the world.
According to Minister Howlin the Bill “should 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 would be a massive step forward in Ireland’s attempt to match the standards set by other established nations.
It is important to note that limitations relating to the length of service that usually apply in the case of Unfair Dismissals are set aside in the case of protected disclosures.
As a result of this Bill, whistleblowers will benefit from civil immunity from actions for damages and a qualified privilege under defamation law.
The legislation will provide a number of disclosure channels for potential whistleblowers and stresses that the disclosure, rather than the whistleblower, should be the focus of the attention.
Protections for the whistleblower remain in place even where the information disclosed does not reveal any wrongdoing when examined. Deliberate false reporting, however, will not be protected.
These measures, when enacted, 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.
The Seanad Final Stage debate on the Protected Disclosures Bill 2013 was held on the 20th November 2013 and the Bill was passed by the Seanad. The Bill, which may be subject to minor changes, will soon be debated and passed by the Dáil. Once it is signed by President Michael D. Higgins, the Protected Disclosures Bill 2013 will come into operation and, according to Minister Howlin, he intends for the legislation to be “commenced immediately on its enactment”.
What should employers do?
As it will apply to all employees in Ireland once enacted; 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 Bill.
It is important that cultural issues and negative connotations surrounding whistleblowing are addressed within the company to ensure that employees adhere to the appropriate whistleblowing guidelines.
A Significant number of NERA Inspections are Unannounced!
The National Employment Rights Authority (NERA) was first established on an interim basis in February 2007 with the aim of securing compliance with Irish Employment Legislation. NERA monitors employment conditions through its inspectors. It enforces compliance and seeks redress where any employment rights have been breached.
Since its establishment in 2007, the number of NERA inspectors has increased by more than 100%. These inspectors exchange information with the Department of Social Protection and the Revenue Commissioners.
Inspectors are empowered to enter company premises and interview employees as well as employers. They can also examine employment records and can take statements before initiating legal proceedings.
Typically, a NERA investigation proceeds in the following way:
1) If the initial inspection finds Employment Legislation breaches the employer is instructed to take the appropriate steps to rectify the matter.
2) NERA sends a letter to request evidence that the employer is now compliant.
3) If the response is inadequate, the company is warned that any further breaches will be sent to NERA's legal services for prosecution. Then a follow-up inspection occurs.
*It is extremely important for employers to note that if there is a breach of the Protection of Young Persons (Employment) Act 1996, the employer is referred for prosecution directly after the first inspection.
Employers should know that employees regularly complain to NERA about their employer’s adherence to Employment Legislation and their maintenance of employment records and so on.
In order to pass a NERA inspection and to comply with Employment Legislation, employers are statutorily obliged to maintain a large number of records relating to their employees.
Here is a list of the 10 most important records/details that an employer in Ireland must keep:
- PPS Number, Name and Address of each employee
- Terms of Employment for every employee
- Individual job classifications for each employee
- Commencement/termination dates
- Payroll details
- Copies of payslips
- Hours of Work
- Under 18 employee register (if applicable)
- Public Holiday/Annual Leave entitlements received by each employee
- Board/Lodging details if applicable
In the 6 month period between January and June 2013, NERA conducted 2,755 workplace inspections. A staggering 1,458 (53%) of these inspections were unannounced!
What employers need to know about work permit Ireland
Employers, as you may be aware, the National Employment Right’s Authority (NERA) conducts thousands of inspections (many of which are unannounced) annually. It is within NERA’s remit to investigate your compliance with Irish Immigration and Employment Permit legislation.
Did you know that employers could be seriously penalised for employing individuals who do not have valid employment permits?
• The Employment Permits Acts 2003 to 2006 make it a criminal offence for a foreign national to work without an employment permit. Employers are committing an offence themselves if they employ a foreign national without a valid work permit.
• The Acts place an onus on the employer to carry out checks in order to be satisfied that a prospective employee does not require an employment permit, and, if he or she does, that they have obtained one.
• NERA inspectors are authorised to exercise powers under the Employment Permit Acts. If, during an inspection, NERA finds evidence showing that an employee does not have a valid employment permit, both the employer and employee are advised of the need to correct the situation. They are also informed of the consequences of failing to do so.
• An employer failing to rectify matters could be prosecuted. NERA commenced initiating proceedings under S.2 of the 2003 Act in 2012.
• An Garda Síochána are also an enforcement authority under Employment Permits legislation with prosecution powers.
Who needs an Employment Permit?
According to the Department of Jobs, Enterprise and Innovation, a non-EEA national (except in the cases listed below) requires an employment permit to take up employment in Ireland. The EEA comprises the Member States of the European Union together with Iceland, Norway and Liechtenstein.
Employment permit (or work permit) holders are only allowed to work for the employer and in the occupation named on the permit. If the holder of an employment permit ceases to work for the employer named on the permit during the permit’s period of validity, the original permit (along with the certified copy) must be returned immediately to the Department of Enterprise, Trade and Innovation.
Citizens of non-EEA countries who do not require Employment Permits include:
• Non-EEA nationals in the State on a Work Authorisation/Working Visa
• Van der Elst Case The European Court of Justice delivered a judgement on the Van der Elst Case (Freedom to Provide Services) on 9 August, 1994. The Court ruled that in the case of non-EEA workers legally employed in one Member State who are temporarily sent on a contract to another Member State, the employer does not need to apply for employment permits in respect of the non-nationals for the period of contract.
• Non-EEA nationals who have been granted permission to remain in the State on one of the following grounds:
• Permission to remain as spouse or a dependent of an Irish/EEA national;
• Permission to remain as the parent of an Irish citizen;
• Temporary leave to remain in the State on humanitarian grounds, having been in the Asylum process.
• Explicit permission from the Department of Justice, Equality and Law Reform to remain resident and employed in the State
• Appropriate business permission to operate a business in the State
• A non-EEA national who is a registered student
Swiss Nationals: In accordance with the terms of the European Communities and Swiss Confederation Act, 2001, which came into operation on 1 June, 2002, this enables the free movement of worker between Switzerland and Ireland, without the need for Employment Permits.
It is imperative that every labour market opportunity is afforded to Irish and other EEA nationals in the first instance. This is also in accordance with EU obligations and recognises that Ireland's labour market is part of a much greater EEA labour market which affords a considerable supply of skilled workers.
An interesting point to note is that work permits will not be considered for certain occupations.
Since April 10th 2013 occupations listed as ineligible for work permits are as follows:
• Hotel, tourism and catering staff except chefs
• Work riders – horseracing
• Clerical and administrative staff
• Drivers (including HGV drivers)
• Nursery/crèche workers, child minders/nannies
• General operatives and labourers
• Operator and production staff
• Domestic workers including carers in the home and child-minders*
• Retail sales staff, sales representatives and supervisory or specialist sales staff**
• The following craft workers and apprentice/trainee craft workers: bookbinders, bricklayers, cabinet makers, carpenters/joiners, carton makers, fitters - construction plant, electricians, instrumentation craftspeople, fitters, tilers - floor/wall, mechanics - heavy vehicles, instrumentation craftspersons, metal fabricators, mechanics - motor, originators, painters and decorators, plumbers, printers, engineers - refrigeration, sheet metal workers, tool makers, vehicle body repairers, machinists - wood, plasterers and welders
* In exceptional circumstances an employment permit may be granted for a carer who is a medical professional caring for a person with a severe medical condition or for a carer who has a long caring relationship with a person with special needs where there are no alternative care options
** Specialist language support and technical or sales support with fluency in a non-EEA language in respect of those companies that have formal support from the State’s enterprise development agencies earning at least €27,000 a year may apply for a work permit.
Bullying prevalent in Irish workplaces according to recent survey
The results of a recent Europe-wide survey, which were reported on in TheJournal.ie’s article Irish workplaces among worst in Europe for bullying, highlighted worrying levels of bullying within companies in Ireland. According to the survey, Ireland is the 7th worst country in Europe when it comes to workplace bullying with a significant 6% of employees claiming to experience it.
Tom O’Driscoll, SIPTU’s Head of Legal Affairs, explained that “It can be physical abuse but it’s usually abusive name-calling, putting undue pressure on people, singling people out, commenting on their performance…” etc.
Bullying in the workplace is any recurring inappropriate conduct that undermines a person’s right to dignity at work. Bullying can be carried out by one person or by several people - it is aimed at an individual or a group where the objective is to make them feel inferior or victimised. Bullying can come in the form of a verbal or physical assault and can also take place over the internet – this is known as cyber bullying and can be performed via many methods - Mobile phones, social networking sites, emails and texts are all common vehicles for cyber bullying. Cyber bullying is becoming more and more prevalent in society. Keep in mind that harassment based on civil status, family status, sexual orientation, religion, age, race, nationality or ethnic origin, disability or membership of the Traveller community is considered discrimination. Harassment in the workplace is prohibited under the terms of the Employment Equality Acts. The Act of harassment - whether direct or indirect, intentional or unintentional - is unacceptable and should not be tolerated by any company. Any allegations should be dealt with seriously, promptly and confidentially with a thorough and immediate investigation. Any acts of harassment should be subject to disciplinary action up to and including dismissal. Any victimisation of an employee for reporting an incident, or assisting with an investigation of alleged harassment and/or bullying is a breach of Equality Legislation and should also be subject to disciplinary action.
Bullying or harassment isn’t always obvious – in fact it can come in many shapes and forms – some examples are:
•Social exclusion or isolation
•Damaging someone’s reputation through gossip or rumour
•Any form of intimidation
•Aggressive or obscene language or behaviour
•Repeated requests for unreasonable tasks to be carried out
Employers - Did you know that you can be held accountable for bullying or harassment in the workplace?
……..Not being aware of it does not get you off the hook!
Under current Irish Employment Legislation (The Employment Equality Acts 1998-2011) companies are accountable when it comes to bullying and harassment in the workplace. It is vital for employers to be mindful of the legislation as companies are answerable for the actions of employees, suppliers and customers even in cases where the company is not aware that bullying or harassment is taking place.
To defend itself; a company must illustrate how it did everything reasonably practicable to prevent bullying and/or harassment from taking place in the workplace. The company must also show that when an instance of bullying or harassment occurred the company took immediate, fair and decisive action.
There is a huge risk of exposure if companies do not adhere to the strict Regulations. Those found in violation of the Act may be liable for fines and in severe circumstances imprisonment on summary conviction. Companies can also end up paying out large sums in compensation.
Sample award – In June 2013, a fast food company in Blackpool, Cork was forced to pay €15,000 after two employees were subjected to sexual harassment by another employee.
An Equality Tribunal ruling found that a lesbian couple, who both worked for the restaurant in Cork, were forced to endure obscene remarks and queries about their relationship and sexuality from another employee at the branch.
The Tribunal found that management at the restaurant failed in their duty to take the appropriate steps to protect the women. They failed in their responsibilities to their employees and consequently were instructed to pay €15,000 to the couple.
Under Irish Employment Legislation it is the duty of the employer to provide a workplace that is safe for lesbian women and gay men to be open about their sexuality.
This is something that all employers need to pay close attention to.
Bullying creates a very hostile work environment and can negatively affect employee performance – It can lead to disengagement and low levels of morale. It can also cause a company to lose key members of staff. Bullying can affect both the safety and the health of employees – this violates the Safety, Health and Welfare at Work Act 2005.
It is abundantly clear that it is in the best interest of all stakeholders to prevent bullying or harassment of any form in the workplace.
Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity.
In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook – A Dignity at Work Policy should be communicated clearly to employees. This will clarify what is expected of employees and what the protocol/repercussions are if bullying/harassment does occur.
The Europe-wide survey found that females between the ages of 30 and 49 are most likely to be bullied at work. Males between the ages of 15 and 29 are the second most likely group to experience bullying. Women in the same age group are most likely to experience sexual harassment.
In December 2013 the Immigrant Council of Ireland (ICI) brought our attention to a shocking statistic when it revealed that the number of racist incidents reported in Ireland in the first 11 months of 2013 had jumped 85% on the same period in 2012. The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence. A massive 20% of the reported incidents of racism occurred in the workplace.
The area of workplace bullying clearly requires immediate attention in Ireland.