Irish Employment Legislation Updates and Guidance

Employment Appeals Tribunal Awards €8,500 to Former Employee

Unfair Selection for Redundancy Claim succeeds leading the Employment Appeals Tribunal to award €8,500 in compensation. After hearing statements from the former employee (the claimant) and the respondent (a car dealership), the Tribunal was satisfied that a redundancy situation existed, however, the Tribunal concluded that the process was defective and, therefore, determined that the claimant was entitled to a significant award. Employment Legislation The respondent failed to consult the claimant about his redundancy and did not appear to properly consider alternatives before finalising the decision to make the employee redundant – For instance, the employee could have suggested that he work a shorter working week/reduced hours or that he take a reduction in pay. The respondent is obliged to consider these suggestions over a period of consultation, however, the claimant was not afforded this entitlement and was only told the reasons behind the decision to select him for redundancy after asking for these. Redundancy     The Tribunal found that the claim under the Unfair Dismissals Acts, 1977 to 2007 was justified which is why the claimant walked away with €8,500. This sum was in addition to the redundancy lump sum that he had received when the redundancy first occurred.

Details of this case can be found on the Workplace Relations Website (Case No. UD450/2012) - http://www.workplacerelations.ie/en/Cases/2013/November/UD450_2012.html

This case stresses the importance of following the approved procedures when it comes to redundancy. Not only do you have to prove that a redundancy is required in order to keep the business viable – you must also be able to justify why you made one employee redundant over another. The employer must be able to show that the redundancy process was not flawed. Employers should use a Selection Matrix so he or she cannot be accused of subjectivity (which is what the employee claimed in the above-mentioned case). The employer is obliged to invite the employee to a meeting making them aware that it concerns redundancy. Employers are obliged to give the employee notice of the redundancy and the reasons why the redundancy scenario came about along with why they were selected.   Redundancy The employer should have asked the employee in question if they could think of any alternatives to the redundancy and the employer should have allowed for a period of consultation of at least three days before making their final decision. It is also important to allow employees to be accompanied to meetings like this. Redundancy Procedures
By |2017-01-02T11:00:15+00:00June 17th, 2015|Compensation|0 Comments

Average Award in Unfair Dismissal Cases on the Rise

According to the Employment Appeals Tribunal Annual Report 2011 the number of cases annually referred to the Tribunal increased three fold during the Irish economic recession (to a high of 9,458 cases in 2009). The average number of annual referrals before the recession had plateaued at approximately 3,500. Statistics for Unfair Dismissals cases: The average compensation awarded by the Tribunal in Unfair Dismissal cases has risen dramatically in recent years. For the year ended 31st December 2009 the average compensation in Unfair Dismissals cases was €11,476. In 2010 it was €16,064.05 and in 2011 it was €18,047.85. This is a trend that employers really need to pay attention to as large sums of money like this can seriously damage a company. It is crucial to stay up-to-date with employment legislation and to follow appropriate procedures when dealing with employee matters. Employment Appeals Tribunal, EAT, Compensation

By |2017-01-02T11:00:20+00:00June 17th, 2015|Compensation|0 Comments

Redundancy Explained

Without a doubt redundancies can be required to keep a business viable. Employers need to ensure that they make their decisions based on what is best for the business - not because they want to get rid of Danny the storeman who they feel hasn't done a tap for years.

Before making people redundant, Employers must look at the overall business and see what areas are suffering a downturn, what areas are picking up, and how best they can react to changed circumstances. Redundancy A Selection Matrix will help to clarify the Employee strength and weaknesses and take the personalities out of the decision - and also ensure that no-one can accuse the Employer of using redundancy simply to remove people the Employer doesn't like from the Company. As a business owner or manager, the Employer is entitled to make decisions that make business sense. So establishing the logic of any decision before making it is important. There is a strict redundancy selection process that has to be followed when making job roles redundant. Remember that it is the role that is made redundant rather than the Employee – One cannot make an Employee redundant and then hire a replacement in their role the next day. Proving that a redundancy was necessary is essential and if the correct process is not followed then this could be very costly for the Company and Labour Court action could follow. describe the image When making an Employee redundant, you should: *Invite the Employee in question to a meeting, making them aware of what it is about e.g. the closure of the business/need to downsize etc. *This meeting should be to inform the Employee that they have been selected for redundancy, or, in other words, it is giving them their notice of redundancy. The Employer should make the Employee aware of the reason(s) for this selection etc. at this stage. *At the meeting, the Employer should ask the Employee to think about alternatives to this redundancy and these options can be discussed at the second meeting to explore whether any of these alternatives are viable options to save this Employee’s job. The Employee may request a pay cut, to be laid off for a period of time, reduced working hours etc., (all of the options mentioned should have already been ruled out by the Company in coming to the decision of making a position redundant). If there is a potential transfer situation, this may arise as an alternative to the redundancy. *The Employer should end the meeting by telling the Employee that he/she will be meeting with them again. The next meeting should be scheduled more than 3 days from the first meeting as the Employer should have ample time to consider all suggestions or alternatives to redundancy that the Employee presents. *The period between the first and second meeting is known as the 'period of consultation'. It will be at this second meeting that the Employer will discuss any alternatives to redundancy that the Employee suggests. If none of the suggestions are feasible for the Company the Employer will explain the reasons why they are not feasible. At that point, the Employer will go through the terms of the redundancy i.e. what payment the Employee will receive. In advance of this meeting the Employee should be made aware of their entitlement to bring a representative with them – for instance, the employee could bring a colleague or some other person who has an in-depth knowledge of the Company.   Redundancy*The Employer should tell the Employee that, prior to the meeting, he or she should inform the Company if they intend to bring a representative and, if so, who this will be. This is in case the Employee decides to bring: a) A Solicitor: The Employee is entitled to bring a solicitor if they wish (if they do, the Employer too will need to bring a solicitor). The solicitor will not be able to speak on behalf of the Employee, but will be entitled to ask questions on behalf of the Employee. b) A Trade Union Representative:  If the Company does not engage with/negotiate with Trade Unions, the Employer will have to make the Employee aware that they will only recognise this person in a personal capacity, that they do not have a collective agreement with any Trade Union and that they have not, nor will not ever recognise a Trade Union. The Employer should ensure that this is clear to the Employee.   *The use of the RP50 hardcopy form is not in place any longer and as there is no longer any Employer rebate, there is no requirement to lodge the RP50 with the Department of Social Protection. However, in line with best practice, it is recommended that the RP50 form is completed online through the following link: https://www.welfare.ie/en/Pages/secure/RedundancyForm.aspx and printed so that the Employee is signing something to confirm they are receiving their payment from the Company. *If the Company is not in a position to cover the cost of these redundancies, the Employee can claim their redundancy entitlements through the Social Insurance Fund, however, the Company does need to prove its inability to pay the redundancy amounts to the Department of Social Protection. In this case, the Employee will need the RP50 to claim his/her own redundancy payments.
By |2020-08-25T10:52:15+00:00June 17th, 2015|Employer Responsibilities|0 Comments

Searching Employee Belongings Appropriately

employee searches Many employers have experienced theft by an employee in the workplace and, consequently, need to put certain measures in place in order to protect the profits of the company. It is the policy of some companies to search employees’ personal belongings when they are leaving the work premises. Employers can also reserve the right to search employee lockers and vehicles if this is agreed with the employee in advance.   If the employer wishes to have the option to carry out personal searches then it is crucial that all details surrounding these searches are clearly communicated to the employees in the contract of employment. Employees sign this contract and by doing so agree to the policies and procedures contained therein.  If an employer reserves the right to search an employee’s belongings then he or she must do so in a dignified manner – giving the employee appropriate levels of privacy. There are several significant procedures to observe when performing a personal search. The individual carrying out the search should be in a management position and, in the interest of clarity; the employees should be made aware in advance who it will be. The location of the search is also something that should be considered very carefully – it is important to maintain consistency and to carry out searches in an area that offers privacy to the employee involved. Employees should be notified of the location of the search and, ideally, it should be out of the view of customers and other employees. The shop floor is not appropriate search setting – the canteen is not suitable either. Ideally the area should be covered by CCTV in order to prevent a “he said she said” situation from arising. If this is not possible then a witness should be present so that this scenario is avoided. Either way discretion is of cardinal importance. theft in the workplace As is procedure with airline security screening a male should search a male and a female should search a female, although, as the searches should not involve body contact this is less of a priority. It is essential that the employee is asked to open his or her bag, for instance, and that the person performing the search doesn’t breach privacy by putting their hands into the employee’s bag or on the employee’s person. Employees should be asked politely to remove any suspicious items from their bag for further inspection – the item/items should be placed on a clear surface in order to ensure that there is no confusion over what was actually in the bag. The searching employee (management/security where possible) should never assume that an item has not been paid for. If the item in question was from the store then the employee should be asked to produce a receipt for same. Further action can be taken if the employee cannot furnish proof of purchase. When an employee purchases an item in the store during the working day it is good practice for companies to put in place a policy where the bag is sealed and the receipt is attached to the bag. This removes any ambiguity. Some companies will carry out spot checks on employee belongings rather than checking them on a daily basis – it is vital to be fair and to ensure that the same employees are not targeted all the time. Not following appropriate procedures can lead to employees being awarded large sums of money. 

By |2017-01-02T11:00:20+00:00June 17th, 2015|Policies & Procedures|0 Comments

Confidentiality is Paramount

Confidentiality refers to a situation in which information must be kept secret or private. Confidentiality is extremely important in most businesses as companies deal with sensitive information on a regular basis. This sensitive/secret data could relate to classified projects, clients, suppliers, employees, company finances, trade practices/agreements or a number of other areas. For several reasons, it is imperative that this type of information remains confidential and that it is only accessible to approved/authorised individuals and groups. Employers who deal with confidential matters, or who want their employees to use discretion with certain details that they learn throughout the course of their employment, should discuss confidentiality in their Employee Handbook. Employee Handbook, Confidentiality An Employee Handbook, often referred to as the employee manual, is a document containing information about the Company and its policies and procedures. It is given to employees by their Manager/Employer and employees should have to acknowledge (in writing) that they have read and understand it. This manual is an excellent place to compile all important information pertaining to the Company rules and regulations. It can provide very useful details for new staff during the induction process; however, it can also be a good reference point for existing employees. An Employee Handbook gives clarity to employees, advises them in many situations and creates a culture where problems are addressed in a consistent and fair manner. Employees will know what to expect in certain scenarios because a comprehensive employee handbook outlines all of the relevant procedures. An Employee Handbook communicates workplace and HR policies and can protect a business from expensive disputes with employees. Some examples of items that should be discussed in the Employee Handbook are as follows:

  • Annual Leave Entitlements
  • Maternity Leave
  • Performance Management
  • Probation
  • Discipline
  • Bullying and Harassment
  • Drugs/Smoking Policies
  • Dress Code
Confidentiality, Policies and Procedures, Employee Handbook   Where relevant, confidentiality and employer expectations surrounding this should also be included in an Employee Handbook. Employers should ensure that employees keep the following sensitive information confidential -   •       Information that has been acquired during, or in the course of employment, or has otherwise been acquired by the employee in confidence; •       Information that relates to customers, suppliers or that of other persons or bodies with whom the Company has dealings of any sort; •        Information that has not been made public by, or with Company permission. The Employer should ensure that all such information should remain confidential, and, save in the course of business or as required by law, should ensure that employees know that they are not allowed to disclose the data to any person without the Company’s prior written consent (whether before or after the termination of employment). Employees should have to exercise reasonable care to keep safe all documentary or other material containing confidential information. Employees should also be obliged to return any such material in their possession to the Company at the time of termination of employment, or at any other time upon demand. Mimimum Notice Guide
By |2017-01-02T11:00:17+00:00June 17th, 2015|Confidentiality|0 Comments

How to avoid an unfair dismissal claim when making someone redundant

Redundancy is a minefield if you take chances. You must remember that employees now know their rights better than ever before. They have lived through a time when friends, family and work colleagues have been laid off - there is also a lot of information readily available for them online. Redundancy, Avoiding Unfair Dismissal Employees have picked up a great deal of information about their rights. We say to Employers "your employees know their rights - do you?" Some businesses are now facing into a second phase of redundancies. In that instance, you can be guaranteed that staff know their entitlements even better than they did for the first phase. If you don't follow process, or if you make a false move, it could cost you - you could quite easily end up in the Labour Courts with an Unfair Dismissal case on your hands. Unfair Dismissal cases are very common these days and they are very difficult for employers to win as the onus is on the employer to prove that he or she made the correct choices when letting someone go. Proving that a redundancy, for instance, was necessary is essential - making the position, not the person, redundant is crucial - an employer cannot make an employee redundant and then hire a new staff member to carry out the same tasks the following week. Commissioners will scrutinize every detail and decision and will want to see that the employer has dotted every "I" and crossed every "T". Employers have a 50/50 chance of leaving Labour Court hearings with a large figure to pay out - it is important to remember that a huge number of cases are also settled prior to court proceedings so the odds are heavily stacked against the employer coming away from the Court with no fine on their hands. Unfair Dismissal, Labour Court, Redundancy Without a doubt redundancies can be required to keep a business viable. Employers need to ensure that they make their decisions based on what's best for the business - not because they want to get rid of Danny the storeman who you feel hasn't done a tap for years. Before making people redundant, look at the business overall and see what areas are suffering a downturn, what areas are picking up, and how best you should react to changed circumstances. A Selection Matrix will help to clarify your thoughts and take the personalities out of the decision - and also ensure that no-one can accuse you of using redundancy simply to remove people you don't like from your company. As a business owner or manager, you are entitled to make decisions that make business sense. So establish the logic of any decision before you make it.

By |2017-01-02T11:00:15+00:00June 17th, 2015|Redundancy|0 Comments

More cuts in Maternity Benefit – Budget 2014

The Budget 2014 announcement that Maternity Benefit is to be capped at €230 per week has significant implications for numerous employees and employers alike. Maternity Benefit, Maternity Leave, Budget 2014 The current upper rate of €262 per week is an entitlement enjoyed by the vast majority of women in Ireland claiming Maternity Benefit. The reduction by €32 per week, which will be effective for new Maternity Benefit claims from January 2014, may discourage women from having children. Alternatively, it may force mothers to avail of shorter periods of Maternity Leave than they would like because they simply cannot afford to remain out of the workplace for the full 6 month period. The reduction of €32 per week over 6 months will see many new mothers lose out on €832 in Maternity Benefit. Some employers pay the difference between the Department of Social Protection Maternity Benefit figure and the employee’s regular salary (a "top-up" amount) as a gesture to employees so that they do not suffer major financial implications while on Maternity Leave. The Budget 2014 decision to reduce the amount paid by the State means that employers who cover the difference between Maternity Benefit and an employee's regular salary will now have to find an additional €832 per employee over the 6 month period in order to maintain the same level of maternity pay for employees while they are availing of maternity leave. Maternity Benefit             Click the image below to download your guide to Public holiday Entitlements Public holidays, Bank Holiday Pay

By |2017-01-02T11:00:17+00:00June 17th, 2015|Policies & Procedures|0 Comments

Illness Benefit “Wait Period” Extended from 3 to 6 days – Budget 2014

Budget 2014, Sick Pay, Illness BenefitSick pay from employers is not a statutory entitlement. It is up to the employer to decide whether or not to pay employees while they are out of work sick (once all employees are treated equally). Employers are obliged to provide details of their sick pay policy in employment contracts.   During times of incapacity or illness the employee can apply to the Department of Social Protection for Illness Benefit (once the employee has paid enough in PRSI contributions he or she should be entitled to Illness Benefit). If it is Company policy to continue to pay employees while they are ill or incapacitated, the employer often requires that the employee signs over any State Illness Benefit received to the Company. Sickness Benefit, Illness Pay   A Budget 2014 announcement confirmed today (15th October, 2013) that the number of “waiting days” for Illness Benefit will be increased from 3 days to 6 days from 1st January 2014. What this means is that an employee will not be entitled to receive Illness Benefit for the first 6 days of any period of incapacity for work. This is more than one full working-week. Sick Pay, Work Illness   This has the potential to significantly affect a large number of people - employees and employers alike. The extension, which is said to save the state €22million, will negatively impact employees who work for companies that do not pay for sick leave – doubling the number of days that must elapse before they are entitled to receive any income. The decision will also have an impact on companies who continue to pay employees during periods of illness or incapacity but recover some of the costs of doing so by forcing employees to sign over any State Illness Benefit received as, from January of next year, the employer will not now receive any refund for the first 6 days of absence. Annual Leave Tracker    

By |2017-01-02T11:00:18+00:00June 17th, 2015|Policies & Procedures|0 Comments

Grievances in the Workplace

It is essential for companies to have a Grievance Policy in place so that employees know the correct procedure to follow when addressing problems or concerns regarding work, Management or another staff member. The policy should also ensure that employees can formally raise a grievance regarding any decisions or actions taken by their employer. Employees should be encouraged to make Management formally aware of situations where they feel that a policy or procedure is not being followed or applied correctly to all employees.

It is understandable and acceptable that when people work together misunderstandings, concerns or problems can arise. Companies should implement a culture of openness as well as a willingness to listen and co-operate. The hope here is that issues/misunderstandings can be resolved informally in an efficient and an effective manner. However, where such issues remain unresolved they can become grievances. Employees should be encouraged to seek resolution of an issue by utilising the Company’s Grievance Procedure.

Grievance Procedure

Sample Grievance Procedure

1)     Staff should approach their Manager in the first instance to arrange a meeting to discuss, and attempt to resolve, the problem/concern. (See point 4 below for procedure when the grievance involves the Manager). The employee should be asked to document their grievance in writing. This is very important. 2)     The employee should be allowed to have a colleague (of their choice) accompany them at the meeting for support purposes. 3)      The issue should be discussed in detail and a reasonable timeframe for resolution should be worked out (1 working week is a reasonable timeframe in most instances). 4)      If the employee is not satisfied with the outcomeafter the relevant time has elapsed, he or she should appeal to the General Manager. If the initial grievance relates to an employee’s direct Manager then he or she should skip directly to this stage. 5)     The problem/grievance should be discussed in detail once again with the General Manager and a reasonable timeframe for resolution should again be given (typically 1 working week is sufficient; this timeframe may vary depending on the severity of the issue/type of complaint). 6)     If the employee is dissatisfied with the outcome of the final stage of the procedure then further recourse should be made available and the employee should be made aware that he or she can request a meeting with a Company Director. 7)     The issue should be discussed for a third time and a reasonable timeframe for resolution given (again, depending on the severity of the issue, 5 working days should be sufficient). 8)     The decision, following the exhaustion of the entire process outlines above, should be final and no further Company appeal need be entertained. 9)     If the employee is still unhappy with the outcome he or she should then choose to seek recourse through external bodies.

Click the below image to download your Guide to issuing Contracts of Employment GUIDE TO CONTRACTS OF EMPLOYMENT

By |2017-01-02T11:00:18+00:00June 17th, 2015|Grievances|0 Comments

Probationary Periods in the Irish Workplace

Employment references for prospective employees can be great indicators of employee skills or characteristics and they should always be thoroughly vetted. However, for various reasons, they may not always give a true and present reflection of the candidate or they may reflect what the employee’s capabilities were at a different time and this may not necessarily match their current skills. References can also depict suitability for a role that is dissimilar to the one being filled. For this reason it is advisable for employers to engage new members based on multiple evaluations to protect themselves and to ensure not to waste any time or resources on someone who is not adequately equipped for the role. Probation Performance Assessment Form An applicant’s cover letter and curriculum vitae, as well as the resulting interview(s), can tell an employer a lot about the potential new employee - it is not uncommon, however, to ask shortlisted candidates to perform competency-based assessments or aptitude tests so that the employer can acquire a full picture of the candidate’s abilities and determine whether or not he or she is the right fit for the vacancy. It is customary for employers to hire new members on a probationary period of 6 months or a term not dissimilar to this. This probationary period does not prejudice the Company’s right to dismiss in accordance with the notice provisions contained in the employee’s individual statement of main terms of employment, or without notice for reasons of gross misconduct, should this be necessary. This period should be used by the employer to fully assess the employee’s work performance and establish suitability. If the work performance is not up to the required standard or the employee is considered to be unsuitable the employer should either take swift remedial action or terminate the employment, without recourse to the disciplinary procedure. At the end of the probationary period the employee should again be reassessed. If he or she has not reached the required standard the employer should, at their discretion, either extend the probationary period in order that remedial action can be taken or terminate the contract of employment. Probationary Period in Ireland The probationary period should not in any case exceed eleven months in total.  The employee should receive notice of the Company’s intention to extend the probationary period before or at the end of the initial 6 month probationary period. A clause should allow that any continuous period of absence of four weeks or more would suspend the probationary period until the employee’s return to work. To avoid any risk of discrimination, policies (like the probationary period outlined above) should be fair and consistent and should apply to all new employees throughout the Company.  In disciplinary proceedings, when dealing with employees on probationary periods, progressive steps can be skipped but it is a common misconception that fair procedures and natural justice need not be adhered to during the probationary period. The Unfair Dismissals Acts 1997-2007 will not apply to the dismissal of an employee during a period at the beginning of employment when he/she is on probation or undergoing training provided that: •the contract of employment is in writing •the duration of probation or training is one year or less (including annual leave) and is specified in the contract It is important to bear in mind that this exclusion from the Acts will not apply if the dismissal results from trade union membership or activity, pregnancy related matters, or entitlements under the maternity protection, parental leave, adoptive leave and carer's leave legislation. Mimimum Notice Guide

By |2017-01-02T11:00:19+00:00June 17th, 2015|Policies & Procedures|0 Comments
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