All you need to know about HR!
Supporting Business Owners, Directors and HR Professionals with the latest in HR trends and news.
June 2015
Managing Training Administration for Multinationals
We all know how important it is to get the right people to the right place at the right time – this becomes even more of an issue when it comes to business. In fact, it is absolutely critical to get the balance right where business is concerned.
Organising people is not an art form – but it can be extremely delicate work at times. Ensuring employees have everything they need when they get where they are going is an even trickier task. This is the very reason we provide training administration management services for multinationals and large companies in Ireland.
Once you have analysed and planned your company’s specific training needs The HR Company will fully administer your entire training process…. from the scheduling of people, to the scheduling of venues and equipment. We even assess programme content and provide outstanding maintenance of training records.
Some of our services are listed below:
• Management of all training vendors
•Scheduling of training programmes
•Management of training venues and facilities
•Maintenance and administration of training records
•Feedback assessment of programme content
•Establishment of a single point of invoicing for training programmes
•Succession planning
•Tailored generation of reports and statistics
If you have any queries at all please do not hesitate to get in touch.
HR Guidance for Childcare Facilities in Ireland
Crèches in Ireland have come under intense scrutiny in recent weeks. On the 28th of May 2013 the Prime Time Investigates programme “A Breach of Trust” highlighted grave mishandling of infants in the care of a number of crèches in the Leinster region.
While the programme uncovered substandard care in three specific childcare facilities it exposed widespread failures in the industry in general. The programme researchers acquired a HSE inspection report that illustrated that a staggering 75% of Irish childcare facilities were in breach of regulations in 2012.
Understandably, these statistics caused uproar and opened up a huge debate on childcare standards throughout the nation. Many parents were very upset by the revelations of breaches in child protection regulations. The poor practices exposed in certain crèches distressed many people and the disturbing reports have seriously tainted the image of the childcare industry in Ireland.
Subsequent to the Prime Time Investigates programme there have been two reported incidents of unaccompanied toddlers leaving crèches in Dublin while in the care of employees at the facilities. The most recent of these incidents occurred last Friday, 21st June, where two little boys made it out of a Giraffe Crèche on the North side of Dublin. The boys were lucky to have been spotted before they made it as far as the busy road behind the building.
These revelations have again raised serious concerns and the childcare industry will have to work hard in order to earn back the trust of parents. In order to protect their reputation it is absolutely vital that management in childcare facilities take the steps necessary to ensure that all employees are fully qualified for the roles in which they have been hired.
It is imperative that all employees working with children are vetted thoroughly and that all relevant paperwork is in place.
The HSE report from 2012 highlighted serious policy breaches and failures on numerous grounds like the child-carer ratio. It is imperative that employers seek advice from Employment Legislation experts if they need clarification on policies and procedures that they are required to have in place or if they need help in determining whether or not they have the appropriate paperwork on file.
The National Employment Rights Authority (NERA) is carrying out inspections to ensure that all employers have contracts of employment in place with their employees as well as employee handbooks and so on. NERA seeks to ensure that employment paperwork is up to date with all of the recently implemented employment legislation changes. NERA inspectors can impose large fines if they find that employers are in breach of the regulations.
It is essential that all facilities are adequately staffed and that management take every precaution in ensuring a high standard of protection and care for children at all times. One suggestion perhaps might be to install a CCTV system to monitor the interaction between employees and children – before doing so, however, a CCTV policy is required – again, it is essential to seek advice from the appropriate body if you are considering such a course of action.
Reports suggested that multiple employees were suspended and at least one dismissed after the Prime Time Investigates programme aired in May of this year. Employers need to remember that, to avoid any risk of exposure, it is absolutely imperative to follow approved disciplinary procedures prior to disciplining employees. Regardless of the severity of the situation there are steps that need to be followed in order to ensure employers remain compliant with all Irish Employment Legislation.
It is vital to follow procedures that are in line with the Labour Court recommendations to insulate your company against the risk of a future claim. To avoid jeopardising the process contact an Employment Law expert prior to initiating any disciplinary action and arm yourself with the appropriate guidance.
The HR Company – Who we are and what we can do for you
We provide a virtual employment law service over the phone and on email. It entails making sure your business is compliant at all times. We issue contracts of employment, handbooks, handle disputes, issue warning letters and basically offer a 24/7 helpline. We provide an unlimited service with regard to any issues in the workplace.
We are a long established Irish owned ‘HR Compliance’ Company, specialising in Employment Law and Legislation, we are based in Sandyford, Dublin with 23 staff.
We support small to medium sized companies in ensuring that your business is compliant from an employee perspective, therefore keeping you legal. We protect you and act as your eyes and ears on all Irish Employment Law issues.
The Cost of the service is €99+vat per month up to 30 employees and thereafter €3.50 for each additional employee minimum subscription of 1 year.
There is a once off set-up administration fee of €200 +vat. This is normally issued via cheque.
In summary, we support associations by providing you with customised and personal advice on any Employment Law issues 24 hours a day, 7 days a week.
· We handle all Grievance Issues in the work place
· We manage all work associated with reducing working hours and any redundancies
· We interpret all employment legislation where we deliver all Disciplinary recommendations, we will even write the disciplinary letters for you. These will be customised, we do not work with samples or templates. What you will receive on email will be the final document, you will not have to make any edits or changes
· We will guarantee you are NERA compliant
Did you know? - That NERA inspectors are currently carrying out investigations to ensure that businesses are compliant with employment law legislation and that labour inspectorates have the right to request access to employment records such as, Hours of Work, Public Holiday Benefits, Annual Leave, Wage Sheets and Legally Compliant Contracts.
Non compliance can result in fines ranging from €650 to €1,900 depending on the offence with a proposal currently in place for the maximum fine to be increased to €5,000 and/or imprisonment of up to 12 months and summary conviction or a maximum fine of €250,000 and/or imprisonment of up to 5 years and indictment.
· We will answer any question of employee legislation ie what rights does an employee have under the Maternity leave act/Parental leave act/Force Majeure/Compassionate leave/Part-Time / Casual workers and their rights!
· We will manage any conflict in the organisation
· We manage Bullying & Harassment in the workplace
· We handle all Performance Issues and provide recommendations on what to do.
· Negotiation with Trade Unions
· Dealing with the LRC (Labour Relations Commission)
· We will issue all contracts of employment and email to you, these will be customised and again not samples. Every time you hire new people, you just let us know and we will have a Contract of Employment for them within 24 hrs.
· We will write an Employee Handbook specific to your business, we do not use ‘one suits all’
Your dedicated account manager is available to your for advice and support on all HR issues whenever you need to ask a question.
Why not get your HR documents audited by one of our specialists free of charge and avail of a complimentary 1:1 (no obligation) Irish Employment Legislation consultation at your premises?
In this extrememly litigious era where employees know their rights insulate your company and treat yourself to peace of mind by availing of our free consultation -
Please note all our legal documents ie Contracts of Employment and other documents are all copyright protected and will be issued in PDF format only
A Tough Issue For Employers – Making Employees Redundant
Lots of difficult situations present themselves for employers on a regular basis - The HR Company aims to assist employers with their challenging role by giving pratical advice on all HR related activities -
One of our consultants was asked a question by an employer about redundancy -
Unfortunately, with the recent economic climate, my business simply doesn't justify eleven employees anymore. Things have become very quiet for us and I am struggling to make ends meet. I feel I need to get down to approximately seven employees to ride-out the downturn. What is the process that I should follow in order to stay compliant in this situation?
The HR Company advice:
Many companies are finding themselves in similar situations in this economy. Initially, the owner should determine if this quiet period is one that is expected to be short term or longer term. If the quiet period is expected to be for a few weeks or months the owner should consider placing employees on reduced working hours or possibly laying off some staff for the short term.
Alternatively, if the business cannot sustain the number of employees they currently hold, then redundancies will need to be considered. All other avenues should be exhausted prior to making the decision to make positions redundant. 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.
Common employer pitfall:
If a business does not engage with introducing any of these measures with employees in the correct way, the employee may leave the company (i.e. if on a short working week or on lay-off) and claim Constructive Dismissal which could see the employee awarded a large sum. If the correct redundancy process is not followed a former employee may make a claim of Unfair Dismissal or Unfair Selection for Redundancy which can run to high costs for your business in the long run.
Benefits and Compensation Administration
In a competitive job market compensation and benefits take on an even greater level of significance. Unfortunately, the management of such benefits can also take on an added level of complexity.
The HR Company takes the complexity back out. We take the guess-work out of decision making by surveying the marketplace and keeping you informed.
We take the headache out of administering compensation and benefits by providing you with a variety of specialised back-office services. These include everything from processing pension and medical plans to managing and organising your company’s Organisational Health Index.
Here is a list of some of the services we offer to assist companies with their compensation and benefits management:
•Pension/medical membership processing
•Salary survey, planning & administration
•Salary/Bonus/Stock system processing
•Company Car policy management
•Mortgage application processing
•Maternity/Parental Leave benefits
•Flexible benefits
•Advise on, manage and organise annual Benefits and Expo & Health Awareness Programme
•Manage & organise company OHI
•Manage Outplacement Programme
•Tailored generation of reports & statistics
If you require guidance or support with benefit and compensation administration then look no further than The HR Company.
Age Discrimination and the Benefits of having a Retirement Policy
The issue of age discrimination has become a significant one in Ireland in this extremely litigious era – it is imperative that employers are very careful in all they say, write and do in relation to age if they aim to avoid a discrimination claim.
Discrimination is defined as the treatment of one person in a less favourable way than another person in a comparable situation on any of the nine specific grounds. It covers not only current and past discrimination but also discrimination that may exist in the future or is imputed to a person.
The Employment Equality Acts 1998-2011 prohibit discrimination in employment based on a person’s age as well as eight other grounds (gender, civil status, family status, sexual orientation, religion, disability, race and membership of the Traveller community). The Equality Authority, in some instances, will provide assistance to individuals who feel as though they have been discriminated against in their employment.
The Equality Tribunal is charged with investigating alleged discrimination on any of the nine grounds and ensures the relevant employment legislation is implemented correctly. The Equality Tribunal can enforce a means of redress or compensation in favour of the employee.
Discrimination based on age commonly occurs at the recruitment stage and in the course of the interview and selection process. The Acts outlaw discrimination in job advertisements and therefore employers need to be extremely careful when drafting such advertisements. An employer cannot seek a “young and dynamic employee” as this excludes several candidates who are not “young” – all interested parties should have equal right to be considered for the role. Similarly, employers should not make it compulsory for applicants to provide their age or date of birth when applying for a job.
It is also frequent in the area of promotion or in redundancy scenarios. An employee cannot be made redundant in order to make way for a “younger” employee.
Employers are entitled to implement certain policies under the Acts, for instance, an employer may set a minimum age requirement (not more than 18 years of age) for potential applicants for a job. The employer can also set a compulsory retirement age but this must be clear and fair for all employees based on their role.
In relation to retirement ages an employer should have a policy in place that covers this. He or she should ensure that the compulsory retirement age is referred to in the contract of employment as well as including a very detailed description of the policy in the company handbook – employees should be required to confirm in writing that they have read and accept the employee handbook.
A Retirement Policy should, at a very minimum, confirm the age at which employees must retire. It should also include a timeline detailing what happens in the run up to the retirement date. For instance, when the employee should expect to be advised of their precise retirement date and details of who they should expect to receive this information from.
Some employers will provide that a member of the HR department meets the employee who is set to retire in order to discuss items like outstanding annual leave, handover procedures, return of company equipment, how any benefits or benefits-in-kind may be managed (a company car, for example, if applicable).
Some companies will also assist the employee who is retiring by providing a pre-retirement course in advance of their departure or by discussing pensions and other financial matters with the individual. It could benefit the employee to meet with a financial advisor in the run up to the employee’s retirement - this is something that the employer could provide. If the employee offers this the option to meet a financial advisor (or similar) it should be detailed in the employee handbook.
The effective management of the retirement process will support the employee in the final stages of their employment with the company and will protect the employer by enabling the appropriate transfer of valuable knowledge from the departing employee to the company.
Companies may offer a fixed-term contract to a person over the compulsory retirement age but there is no obligation on them to do so.
Often the Tribunal finds in favour of the employee in cases relating to discrimination in the workplace, however, one notable age related case was dismissed by the Equality Tribunal when evidence that the employer had an established policy with regard to retirement age and had included retirement age in the contract of employment was provided.
The relevant case decision number is DEC-E2012-086.
Mr. X argued that his former employer had discriminated against him on the basis of age when he was forced to retire at the age of 65. Mr. X had worked for his employer for more than 10 years prior to turning 65. Mr. X, along with his colleagues, were informed of his departure date via e-mail when an invitation to a social event to mark Mr. X’s retirement was sent out.
Mr. X did not want to retire and argued that he was being directly discriminated against on the basis of his age. The employer refuted Mr. X’s allegation and argued that the retirement age of 65 was a “clear term and condition of the contract of employment of employees and a long-standing custom and practice”.
Mr. X’s claim failed as the Tribunal found that his former employer had a “well established practice of retiring its employees” at the age of 65. In certain instances employees who were over 65 were re-engaged on fixed-term contracts for project purposes but that wasn’t the case in all circumstances and it was not the case with Mr. X.
It was an interesting determination from an employer perspective.
HR support and guidance for companies in Ireland
In this era of increased employee litigation the Labour Court has thousands of cases waiting to be heard - In a huge number of these cases the employer will end up paying substantial sums in compensation to employees (or former employees). In a lot of instances the award will be made as a result of the employer failing to follow appropriate procedures when dealing with an employee.
Unfortunately, the onus is on the employer to prove that he or she acted in a fair manner - the motives behind his or her decisions will be scrutinised. Everything must be justified.
On a daily basis we hear of Unfair Dismissal cases succeeding - the rulings are regularly shocking... even to Irish Employment Law professionals. We see employers being forced to pay huge sums due to the occurrence of harassment/bullying - often the employer is not even aware that such an activity is taking place - yet it is the responsibility of the employer to ensure that this type of situation does not arise in their workplace.
A recent example of harassment in the workplace occurred in a fast food company in Blackpool, Cork where two employees were subjected to sexual harassment by another employee.
An Equality Tribunal ruling found that a lesbian couple, who both worked for a fast food 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 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 - this kind of sum could sink a small company - we heard yesterday that Ireland's economy is receding again - We know the whole area can seem like a minefield but companies simply can't afford to be careless when it comes to employee related matters. It is crucial to keep on top of the regular updates in Legislation.
Did yo know that parental leave has recently been increased from 14 to 18 weeks?
Did you know that Maternity, Adoptive and Health and Safety Benefits are taxable as of 1st July 2013?
The National Employment Rights Authority (NERA) is carrying out inspections in Irish workplaces and imposing fines where employers are in breach of Irish Employment regulations.
The employer is legally required to have contracts of employment in place with all employee who have accrued 2 months' service - employers also need to have employee handbooks in place.
Without employment documentation and clear and appropriate policies and procedures in place the company is not insulated against the risk of a fine - many employers are exposed at the minute and need some guidance to ensure they are protected in the future.
We are Irish Employment Legislation specialists and are offering complimentary consultations/audits to employers in Ireland who feel that they would benefit from a meeting with one of our HR specialists.
Do not hesitate to leave us your details and we will be in touch shortly to arrange a complimentary (no-strings-attached) audit of your documentation or just a general consultation that will hopefully help your understanding of employer responsibilities.
Large businesses requiring on-site HR support
For organisations that require face-to-face, on-site HR support, we provide the services listed below, which have been categorised into five distinct components. Depending on the level of your requirement, we do this by either putting HR specialist(s) into your business on a permanent basis, or we provide you with full remote back-up complemented by regular site visits.
1. Legal
It is critically important that when one addresses any of the core HR activities, they must be carried out within the confines of the legal framework that exists. We will advise you to ensure that you are complying with all current legislation.
2. Mediation Services
We provide a full range of mediation services whereby we resolve many internal employee and industrial relations issues that arise within the workplace. This can include direct negotiations with solicitors, third parties and trade unions.
3. Staff Retention and Benefits
We assist you to ensure that you do what is necessary to keep your employees within the organisation. This covers the entire area of salary planning, benefits planning, benefits administration, performance management and face-to-face group meetings, or one-on-one discussions.
4. Recruitment
This involves us in the hiring process from the very beginning, from writing up job profiles and descriptions to advertising, arranging interviews, checking references, and issuing contracts.
5. Training and Development
The service we offer in this space includes identifying training requirements, driving the training programme and the training vendors, right through to succession planning, key people identification, skills identification and management development.
The Smart Solution for Businesses - We aim to ensure that you, our client, are not constrained by the legislation that exists today, but are aware of it and acting in accordance with it.
The service includes salary surveys to support your salary planning and review process, design and implementation of your policies and procedures and inclusion of these in the company handbook.
As part of this service, a company is provided with on-site representation approximately once per month.
Reminder for Employers: Taxation of Maternity Benefit – July 1st 2013
The Minister for Finance, Michael Noonan T.D., published the Finance Bill 2013 on 13th February 2013. The Bill provided for the Budget day announcement that, effective 1st July 2013, Maternity Benefit, Adoptive Benefit and Health & Safety Benefit payments will be treated as taxable income. As with all other Social Welfare payments; Maternity, Adoptive and Health and Safety Benefit will remain exempt from Pay Related Social Insurance (PRSI) and Universal Social Charge (USC).
This measure will mean that women entitled to these benefits will pay the same level of income tax while in receipt of the benefit as they do when they are working.
Once the benefit is approved by the Department of Social Protection, Revenue will be notified of the applicable figure and will reduce the relevant allowances (tax credit and standard rate cut-off point in respect of the employee) accordingly. Revenue will notify the employer or pension provider of the applicable adjustment by means of a new P2C in respect of the employee. The P2C is the employer copy of the employee tax certificate.
The issuance of a revised P2C is the only thing that the employer needs to be actively aware of in relation to maternity or adoptive benefit. However, since the employer pays the first 21 days of the Health and Safety benefit the new taxation provided for in the Finance Bill may have more of an impact on the employer and the payroll administrator here.
The net income paid to the recipient for the period is going to be reduced by the new taxation. Consequently, one significant result of this new provision might be mothers/expecting mothers availing of reduced periods of maternity/adoptive leave.
Breaks and Rest Periods in the Irish Workplace
Under the Organization of Working Time Act 1997 every employee in Ireland has a legal entitlement to breaks during their working day (or night) and is entitled to have clearly defined rest periods between their working days/nights.
Under the Organization of Working Time Act 1997 a rest period is defined as any time that is not working time.
In general an employee is entitled to a 15 minute break after the completion of 4.5 hours of work. If the employee is working a shift of 6 hours then he or she is entitled to a 30 minute break (the first break of 15 minutes can be included in this 30 minute allocation).
The employer is not obliged to pay employees for these break periods and they are not included when counting the total amount of time that the employee has worked.
The regulations vary slightly for different categories of employees - for instance, shop employees who work more than 6 hours at a time are entitled to a break of one consecutive hour between the hours of 11:30 and 14:30 if their work schedule incorporates this period.
Employees are entitled to 11 consecutive hours of rest in a 24 hour period – on top of this an employee should receive 24 hours of consecutive rest in every 7 day period and this 24 hour allocation should follow an 11 hour rest period. Where an employer does not give his or her employee a full 24 hour consecutive rest period throughout the course of one week he or she must give two of these 24 hour rest periods in the following week. This rest period, unless otherwise stated, should include a Sunday.
Not all employees are governed by the break and rest period rules described above. Members of An Garda Síochána, The Defence Forces and employees who manage their own working hours are exempt. Family employees on farms or in private homes are also excluded from the Organization of Working Time Act 1997 directives.
The working terms and conditions for people under the age of 18 are regulated by the Protection of Young Persons (Employment) Act 1996.
In exceptional circumstances or emergencies an employer is exempt from providing the above mentioned rest periods but only where he or she provides equivalent compensatory rest. Where the rest period is postponed the employer must allow the employee to take the compensatory rest within a reasonable period of time. Employees working in transport activities or certain categories of civil protection services are exempt from the statutory break regulations specified above (the equivalent compensatory rest rules do not apply for these employees).
Employers should be aware that employees have 6 months to make a complaint regarding breaks and rest periods (in certain circumstance this period can be extended to 12 months).
Human Resources support in Ireland
Administration can be an extremely frustrating and time-consuming part of the job but efficient internal mechanics (the nuts and bolts if you will) is what keeps the HR department flowing smoothly.
Well-organized administration is what maintains the forward moving momentum of the company yet it is the element of human resources that most HR professionals look upon with trepidation. Rightly so – it’s not glamorous – in fact, one could call it the ‘slog’ work. The professionals at The HR Company thrive on it and turn it into something useful…. information.
From processing new employees to delivering redundancy packages, our HR systems management covers every aspect of back-office administration. The HR Company’s dedicated account managers do much more than administer and process, however, they track your company’s HR information and prompt you and your employees to keep information fresh and up-to-date to avoid any unforeseen issues. Dedicated account managers at The HR Company also use this information to generate the reports and statistics you need to integrate HR into your company’s overall strategic planning.
Here is a list of the main tasks that fall under the tricky Human Resources Administration umbrella:
•Data entry of new employees
•Setting up of email aliases and accounts
•Tracking headcount movement
•Processing applications
•Processing appraisals
•Tracking vacation time
•Provision and management of electronic filing systems
•Preparation and delivery of redundancy packages
•Payroll Processing
•Tailored generation of reports and statistics
We can help to ease the burden of HR administration in a cost-effective manner.
Labour Court’s recommendation in Workers v Timber Company Case
The Workers at a timber company brought a case against their Employer to the Labour Court and the Recommendation was very interesting. The Workers, who were represented by Services Industrial Professional Technical Union(SIPTU), wanted a 5% pay increase. However, the Company didn’t feel as though it should be paying such an increase. The National Wage Agreement ceased in 2008 and the Workers in the Company have not received a pay increase since then. The dispute between the Employees and the Company could not be resolved at local level and became the subject of a Conciliation Conference under the auspices of the Labour Relations Commission (LRC). Agreement was not reached here and so, in November 2013, in accordance with Section 26(1) of the Industrial Relations Act, 1990, the dispute was referred to the Labour Court. In March of this year a Labour Court Hearing took place. The Union argued that the Workers at the timber company have had to endure the austerity measures introduced in successive budgets over the last number of years. They have also experienced a significant increase in taxation which, combined with the difficult budgets, has resulted in a reduction in the take home pay for the Workers. SIPTU also argued that the increase sought was a modest one and that it would not adversely impact the Company. The Company, on the other hand, argued that it was forced to take certain steps to remain viable and maintain levels of employment in the very competitive recent market conditions. The timber firm also stated that it had always met its commitments under the National Wage Agreements; however, any increase in pay at this stage would inevitably challenge the security of employment within the Company. Mr. Hayes (Chairman), Mr. Murphy (Employer Member) and Mr. Shanahan (Worker Member) considered the Employee and Company arguments and made a decision based on all of the submissions.
In the end, the Court met in the middle and Recommended that the Company increase the pay of the workers concerned by 2% for twelve months, effective 1st August 2014.
What to do to avoid Harassment and Workplace Bullying
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!
Here is an overview of the basics:
Bullying defined…
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 several people - it is aimed at an individual or a group where the objective is to make them feel inferior or victimized. 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, disability, race or membership of the Traveller community is considered discrimination.
Bullying 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.
Bullying creates a very hostile work environment and can negatively affect employee performance – 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 in the workplace.
In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook. This will clarify what is expected of employees and what the protocol is if bullying takes place.
For advice on what to do refer to the Labour Relations Commission’s Code of Practice detailing Procedures for Addressing Bullying in the Workplace:
http://www.lrc.ie/documents/publications/codes/codeonbullying_.pdf
For further employment legislation and HR advice or to arrange a complimentary consultation/audit with a HR expert at your premises contact us at The HR Company.
Employment Appeals Tribunal Awards €18,000 in Compensation
Employee who was dismissed while on sick leave (for allegedly failing to discharge his duties as head chef and because of his unacceptable behaviour over a number of months) is awarded a sum close to €18,000 by the Employment Appeals Tribunal under the Unfair Dismissals Acts, 1977 and 2007, the Minimum Notice and Terms of Employment Acts, 1997 to 2005 and the Organization of Working Time Act, 1997.
According to the Employer the Employee in question allegedly displayed aggressive behaviour and appeared for work under the influence of drink. Reports of bullying of colleagues and name calling were filed with the Employer along with incidents of racism and other insults (for instance, calling a kitchen porter “stupid”, “slow” and “a druggie”). The Employee was also accused of throwing a knife at another member of staff - Matters the Employee refutes.
The Employee’s performance was called into question on a number of occasions prior to his dismissal – his failure to have adequate staffing and stock were criticized. A lack of communication and flexibility, in particular in relation to changing his time-off (for example, refusing to come to work on Good Friday when the Munster rugby team was playing) was outlined in an “Official Written Warning” on the 6th of April (the second letter of its kind).
On the 7th of April a dispute arose as to whether the Employee in question arrived for work “drunk”. He was instructed to get a blood test by his Employer. The Employee left the premises and sent a text message explaining that he would be on sick leave for the remainder of the week. Over the next few weeks the Employee sent numerous medical certificates indicating that he was suffering from an ulcer (the Employer was aware of this ulcer from early on in the employment).
On receipt of the “Official Written Warning” dated 6th April (mentioned above) the Employee’s trade union sought a meeting with the Employer as the trade union maintained that the warnings had been issued “unfairly without any consultation or trade union representation”. This meeting was held on the 20th of April in the hopes that issues between the Employer and Employee (who had previously been friends) could be resolved, however, the Employee’s unresponsiveness dissatisfied the Employer and he undertook to consult with his legal team. The Employee believed that the Employer wanted to replace him as he had advertised for a head chef the previous day (April 19th).
On the 26th of April the Employee enquired as to when he should return to work and the Employer replied telling the Employee to start back the following week (May 3rd) but when the expected return date arrived the Employee again produced a medical certificate. Two days later the Employer instructed the Employee to post medical certificates and not to attend the premises, except to return keys, until the Employer had heard from his legal team.
When the Employee furnished medical certificates to cover him for the entire month the Employer wrote to the Employee dismissing him for failure to heed the warnings regarding his behaviour and for arriving to work under the influence of drink as well as throwing a knife at another staff member.
The Employee believed the disciplinary action was taken against him as a result of a complaint that he had made to the National Employment Rights Authority (NERA) a few months prior to the dismissal.
The Employee was dismissed while on sick leave and the Employment Appeals Tribunal found that, based on the medical certificates and an endoscopist’s letter, the Employee had genuine reason for his absence. The Tribunal found that the procedures used by the Employer in dismissing the Employee were “flawed” and “deficient” because neither of the “official warnings” issued to the Employee put him on notice that his job was in jeopardy.
The Tribunal found that the Employer had not investigated the knife allegation in a “fair” manner. The Employee was dismissed without the benefit of a disciplinary hearing and without being afforded the opportunity to respond to the allegations made against him. In addition the Tribunal found that the Employee was not afforded an adequate opportunity to improve between his warning letter and his dismissal (as he was on sick leave during that period).
The Employee was awarded €14,500 under the Unfair Dismissals Acts, 1977 to 2007, €1,538 (being the equivalent to two weeks’ pay) under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and €1,691.80 (being the equivalent of 11 days annual leave) under the Organisation of Working Time Act, 1997.
In total the sum awarded to the Employee by the Tribunal was €17,729.80.
You might ask how this Employee received such a substantial award given his alleged appalling performance in the workplace...... The Employer failed to follow the correct process when disciplining, and then dismissing, the Employee and therefore left himself open to a claim under the Acts.
This was a very costly mistake on the part of the Employer and one that could easily finish a small business.
This example, along with thousands more, reiterates the significance of complying with Irish Employment Legislation and observing appropriate disciplinary procedures in order to insulate your company from the risk of a claim.
Published on Employment Appeals Tribunal Website – 29th May 2013 – Sealed with the Seal of the Employment Appeals Tribunal.
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Prime Time Investigates Crèches – Employers need to revisit their HR policies to protect themselves
As you are probably aware three crèches between Dublin and Wicklow have come under intense scrutiny in recent days after it came to light that young children under their care were allegedly subjected to inappropriate and unacceptable treatment by staff at the childcare and early learning facilities in Stepaside, Malahide and Rathnew.
An RTÉ researcher, posing as a childcare worker, uncovered the substandard care while working at the facilities. The undercover researcher’s disturbing findings included video footage illustrating manhandling of infants and young children. The report, “A Breach of Trust”, was aired on Prime Time Investigates yesterday (Tuesday 28th May 2013). The claims are currently being investigated by An Garda Síochána and the Childcare and Family Services unit of the HSE.
While the Prime Time Investigates programme focused heavily on three specific facilities it also highlighted failures in the entire childcare industry in Ireland. The researchers acquired a HSE inspection report that showed that a staggering 75% of Irish childcare facilities were in breach of regulations in 2012.
Minister for Children, Frances Fitzgerald, said that the HSE inspection reports into childcare facilities will be published online in the next few weeks.
Understandably, these statistics have caused uproar and have opened up a huge debate on childcare standards in Ireland. Many parents have been very upset by the recent revelations of breaches in child protection regulations. The poor practices exposed in certain crèches are likely to negatively affect the opinion held by many with regard to childcare facilities in Ireland.
These revelations will bring about intense scrutiny from parents of children in crèches all around the country. In order to protect their reputation it is absolutely vital that management take the time to ensure that all employees in crèches and childcare facilities in general are fully qualified for the roles in which they have been hired.
It is imperative that all employees working with children are vetted thoroughly and that all relevant paperwork is in place.
The HSE report from 2012 highlighted serious policy breaches and failures on numerous grounds like the child-carer ratio. It is imperative that employers seek advice from Employment Legislation experts if they need clarification on policies and procedures that they are required to have in place or if they need help in determining whether or not they have the appropriate paperwork on file. It is essential that all facilities are adequately staffed and that management take the necessary precautions to ensure a high standard of protection and care for children at all times.
One suggestion perhaps might be to install a CCTV system to monitor the interaction between employees and children – before doing so, however, a CCTV policy is required – again, it is essential to seek advice from the appropriate body if you are considering such a course of action.
Reports suggest that multiple employees have been suspended and that at least one employee has been dismissed by the crèches named in the report pending the conclusion of the Garda, HSE and internal inquiries.
Employers need to remember that, to avoid any risk of exposure, it is absolutely imperative to follow approved disciplinary procedures prior to disciplining employees. Regardless of the severity of the situation there are steps that need to be followed in order to ensure employers remain compliant with all Irish Employment Legislation. It is vital to follow procedures that are in line with the Labour Court recommendations to insulate your company against the risk of a future claim or fine. To avoid jeopardising the process contact an Employment Law expert prior to initiating any disciplinary action and arm yourself with the appropriate guidance.
