Irish Employment Legislation Updates and Guidance

Constructive Dismissal leads to €9,000 Award for Former Employee

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. Constructive Dismissal 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 contract and the resolution of the case. The Employee has often 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. These can be extremely costly. Here is an example of a case where the Employee (the Claimant) was awarded €9,000 after the Employment Appeals Tribunal found that he had been Constructively Dismissed. The Claimant in this case started working for the Respondent in 2007. There were no issues until late 2010 when a Technician was promoted to Technical Manager. This immediately created a hostile environment and relationships became strained. The Claimant experienced problematic scenarios in the workplace as a result of the Technical Manager’s temper on numerous occasions. Constructive Dismissal The final occurrence led to the termination of employment for the Claimant. On the Claimant’s final day working for the Respondent the Technical Manager, a physically intimidating individual, entered the shop where the Claimant and his colleague were working. The Technical Manager lifted the Claimant up from his chair by his arm and proceeded to shout at him. The Claimant, who was frightened, attempted to avoid confrontation and turned away. The Technical Manager again grabbed the Claimant, this time by his shoulder, and spun him around while demanding that he not complain. The Claimant said that he didn’t complain, he just answered questions. The Claimant was pulled closer and then told to leave by the Technical Manager. The Claimant did as he was told but the Technical Manager proceeded to follow him, grabbing him by the neck. At this stage the Claimant was in a state of shock and told the Technical Manager that he was simply working his way through college. The Claimant’s shirt was torn, there were marks on his neck and his hand was bruised after the incident. After the event, the Claimant called a Senior Manager and told him what had happened. The Claimant returned his keys to the shop and arranged to collect his jacket from his colleague. A series of meetings with the shop Manager and other Senior Managers were arranged. The Claimant was offered a transfer to another shop, however, this other shop was located far from the Claimant’s home and, therefore, was not a suitable alternative – he could not accept this transfer proposal. Employment Appeals Tribunal As a result of the meetings the Claimant was given a written warning, however, as no arrangements were made for him to return to a safe workplace he had no option but to resign. The Claimant established loss for the Tribunal and it was determined that the Claimant was Constructively Dismissed. The Respondent failed in its responsibility to the Claimant by not responding adequately. Under the Unfair Dismissals Acts, 1977 to 2007, the Claimant was awarded €9,000 as compensation for being Constructively Dismissed. The appeal was heard at Dublin on 14th October 2013. Case Number: UD669/2012.  

By |2017-01-02T11:00:16+00:00June 17th, 2015|Compensation|0 Comments

Why Companies are choosing to Outsource their HR

The number of cases annually referred to the Employment Appeals Tribunal increased three fold during the Irish economic recession and the average compensation awarded by the Tribunal in Unfair Dismissal cases rose from €11,476.00 to €18,047.85 between 2009 and 2011. During this time of economic hardship Employers must pay even closer attention than ever before to their expenditure. Many organisations are forced to downsize and - in this era of increased Employee Litigation - making sure you follow appropriate procedures in redundancy or disciplinary scenarios, for example, is growing in importance. Outsourcing CompaniesIt is at times like these that Companies need to concentrate on their Human Resource functions even more. Some elements of HR, however, can be both complicated and time consuming – an enormous burden on Employers. In recent years the focus has moved towards legal compliance (which can be a minefield with all of the pieces of Employment Legislation currently in operation) and administrative processes that can slow down the productivity of the firm.   For SMEs in particular, it makes a lot of business sense to outsource HR tasks as firms specialising in the field can improve efficiency dramatically. Outsourcing allows Companies to offload work that isn’t part of their core business. It also saves money. At a Company that doesn’t have the funds to hire specialists outsourcing can allow it to gain access to a vendor’s services when required as well as the expertise and wealth of experience that they have accumulated – all at an affordable price. While SMEs don’t have the same number of Employees as larger corporations and multinationals they still require the same HR elements on a smaller scale. For instance, they still need to recruit staff, they still need to abide by the vast array of Employment Laws and still require Employment Documentation (Contracts of Employment etc.).

Although some Companies do it, most SMEs cannot justify spending a large portion of their annual budget setting up a HR department comprehensive enough to incorporate the abundance of skills required to achieve a smooth-functioning, compliant working environment. Consequently, more and more Companies are choosing to outsource operations like HR and are directing vital, scarce, finances and resources towards other core/revenue-generating areas of the business.
On the other hand, some Employers end up trying to balance HR duties in addition to their other responsibilities which can leave opportunities for threats and vulnerabilities to creep in. As time goes by many Employers are realising that assigning a large percentage of their time to one area is not just inconvenient but impractical, too. Juggling all elements of a business without assistance can be extremely difficult and for this reason many Employers are opting for the cost-effective third party route which involves the use of an external HR Company. This gives them enhanced peace of mind and confidence that they are working within the confines of all Employment Legislation. Outsourcing Companies can deal with HR successfully and as a priority so that Employers do not have to concern themselves with the associated time constraints and conflicts. Companies can eliminate exposures they did not even know existed quickly and in a cost-effective manner by availing of the services of a HR Company. HR Outsourcing HR Companies deal with all features of Human Resources comprehensively. They have a base of specialist Employees who are trained and experienced in all areas of Employment Law – meaning they are fully equipped to deal with any Employee Relations issues that arise in the workplace. Engaging the services of HR professionals gives Employers access to a bank of relevant knowledge and experience. HR Companies are well prepared to support or advise SMEs without costing an arm and a leg. They keep up-to-date with all changes in Irish Employment Legislation and are able to offer better support and guidance than the client can attain in-house. Navigating Government regulations can be a draining activity for Employers, - it can be a time consuming and complicated process, however, it is what HR advisors are trained to do. HR firms can do a lot more than you might think – not alone do they have a top-class portfolio of skills, knowledge and experience concentrated in this specific area, they can offer a range of services and support at an extremely affordable price. Some HR Companies provide comprehensive services for as little as €100 per month – Hiring a HR Employee, even on a part-time basis, would cost far in excess of this. Similarly, many Employers currently engage the services of Solicitors to prepare Contracts of Employment and other Employment Documentation – this can also be an extremely costly process. The HR Company Business Photo HR Companies prepare Employment Documentation for their clients and on top of that are there to advise on all individual Employee related issues – discrimination claims, rest and annual leave entitlements, disciplinary and redundancy procedures, dismissals, grievances and much more. Lots of Companies operate outside of office hours and so some HR Companies even provide 24/7 advice lines for their clients meaning a client will never have an anxious wait for an answer. HR firms also provide support to existing HR departments within Companies - the level of service and associated costs are completely dependent on the needs of the individual Company. HR firms are growing in popularity. In the past outsourcing was often a difficult process because of the issues distance can sometimes create. Thanks to the advances in technology, however, dedicated HR experts are only a couple of clicks or a phone call away – so Human Resource emergencies can be dealt with on the spot.
By |2017-01-02T11:00:21+00:00June 17th, 2015|Adoptive Leave|0 Comments

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 |2025-04-25T10:46:48+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
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