All you need to know about HR!
Supporting Business Owners, Directors and HR Professionals with the latest in HR trends and news.
June 2015
Trade Disputes and Industrial Action
According to the Industrial Relations Act, 1990 a Trade Dispute is any dispute between employers and employees that is “connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person”. Industrial Action is collective action taken by employees to compel their employer to “accept or not to accept terms or conditions of or affecting employment.”
Typically, employees decide to take industrial action as a result of a grievance over pay, hours of work, holidays or in support of a co-worker (or former co-worker) who is deemed to have been treated unfairly in some way.
Examples of industrial action may include strike action, a picket, a ‘work-to-rule’ or even an overtime ban. Employers should make every effort to avoid industrial action by maintaining a harmonious working environment because industrial action can be an extremely trying time for all concerned.
A strike is a work stoppage that is caused by the mass refusal of employees to carry out their work activities. Strikes and industrial action in general, are extremely disruptive to a company’s daily operations and can be damaging in both the short and long term. Strikes can last varying amounts of time but even short work stoppages tend to be quite destructive for companies as they can carry negative publicity with them along with the obvious operational drawbacks.
A picket is a form of protest where picketers (those involved in the picket) assemble outside of their workplace, or a relevant area, in an attempt to draw attention to their cause or to discourage others from entering the premises (crossing the picket line). The objective of picketing is to harm the company via a loss of business or through negative publicity. The goal is to persuade the employer to meet picketers’ demands to cease certain activities or introduce a pay increase or reverse a decision regarding redundancies, for instance.
A ‘work-to-rule’ is where employees do the bare minimum during their work hours. They carry out the tasks required by their contract of employment and nothing more in order to slow down productivity. Employees seek to demonstrate that they are valuable to the company and perform tasks that are above and beyond what they are contractually obliged to do on a regular basis.
An overtime ban is similar to a ‘work-to-rule’ in that employees take direction from their contracts of employment. Throughout an overtime ban, employees only work the hours that they are bound by in their contract. As the name suggests, employees refuse to work any overtime.
Strikes in the news:
Services Industrial Professional and Technical Union (SIPTU) employees at Dublin Street Parking Services, the vehicle clamping Company in Dublin, are due to be balloted today, Monday, 10th March 2014, on whether or not they should go on strike.
The dispute is over an outstanding pay rise that is owed since 2011. John King, SIPTU Organiser, stated that it is likely that the members will decide to strike over the 2.5% pay rise that they agreed to postpone until 2013 because they are still waiting for it to be applied.
Dublin City Council is threatening to pay the Company less for the service it provides if it does not meet the new target of 60,000 clamped vehicles per year.
SIPTU employees of the DAA and Aer Lingus are also threatening strike action as the dispute over their pension scheme continues. They are due to hold a four hour work stoppage at Dublin, Cork and Shannon on Friday, 14th March 2014 – just as the airport gets busy for the St. Patrick’s Day weekend. This strike could prove to be extremely disruptive to many individuals hoping to travel during the four hour stoppage and for the hours, and potentially days, that follow.
Employee unfairly dismissed for improper internet use awarded €7,000.
Why is having an internet use/social media policy so important?
On 17th December 2013, the Employment Appeals Tribunal in Mullingar heard a claim that an employee had been unfairly dismissed by her employer, a wholesale electrical company that employed approximately 36 employees. 
The individual was employed as a Marketing Assistant from 1 November 2010. With the permission of the employer, the employee worked a three day week for the first year as she was completing a graphic design course simultaneously. The employer was happy for the employee to begin working a 5 day week on 1st November 2011. The Managing Director claimed that both he and the Office Manager had warned the claimant on a number of occasions about her non-work related internet use. According to the Managing Director, these alleged warnings were of a verbal nature. The Managing Director gave evidence to the Tribunal that, on 16 January 2012, he observed the claimant on a social media site and called her to his office before proceeding to dismiss her from her employment with the Company. The Managing Director believed that the actions of the claimant amounted to a waste of the Company’s time and resources and her actions constituted gross misconduct. It became apparent that the Company did not have a formal internet use/social media policy in place while the claimant was employed. It also came to light that the employee did not receive a contract of employment nor did she receive a copy of the Company’s disciplinary procedures. 
The claimant stated that she completed all tasks that were assigned to her. She was not using the internet in a secretive way (she gave evidence that her computer monitor was in full view of the office) and she did not believe that she was doing anything wrong when she was online. The claimant testified that she was not given a job description detailing the tasks that were assigned to her. The former employee explained that, if she was aware of the company’s policy around internet use/social media then she would have abided by it. The claimant stated that she regularly asked for more assignments to complete during her work hours but was not provided with enough to occupy all of her working time. The employee explained that she was told in December to “wind down” for the Christmas period when she looked for more work from the Managing Director’s son. The claimant admitted to spending time browsing the internet when she had finished with her work assignments but clarified that she spent the majority of her time on the internet carrying out work related activities. The claimant gave evidence that she never received any warnings prior to her dismissal. The Employment Appeals Tribunal considered all of the evidence that was submitted by the claimant and the respondent and concluded that the dismissal of the employee was unfair as, according to the Tribunal, there appears not to have been any valid grounds for the termination. In addition to this the Tribunal found that the dismissal was lacking any procedural fairness because no investigation or disciplinary process took place. 
The Tribunal also made note of the fact that the claimant was never provided with a any of the following documents throughout the course of her employment:
- A contract of employment,
- Payslips,
- An internet use/social media policy
- A copy of the Company’s disciplinary procedures
Saving Money by Minimising Waste
The Significance of Waste Management in Business. With mounting expenses it is becoming increasingly difficult for companies to remain in operation and to maintain employee numbers.
Managers are faced with a difficult task as they are continuously asked to reduce costs while simultaneously preserving the quality and service levels throughout the business.
Every company should implement a minimum waste policy to encourage employees to be more aware of their actions and their use or misuse of resources in the workplace and beyond.
Minimising the amount of waste in any organisation will have a positive effect on the bottom line. Consequently, introducing a minimum waste policy is essential if the business is to operate in the most cost-effective and efficient manner possible.
Employees should be obliged to avoid extravagant use of the company’s services, time and energy. Employees should be encouraged to take extra care during their normal work duties by avoiding unnecessary use of any resources within the Company.
Employees should be trained so that they handle all machines, equipment and stock with the utmost of care. Employers should have a policy in place that deals with the conservation of energy.
This policy would direct employees as to how they should proceed when it comes to dealing with lights and heat and so on. The use of all unnecessary lighting and heating should be prohibited and lights/heat should be turned off when their use is not required.
Doors/windows should be opened/closed where possible in order to maintain temperature levels. Similarly, taps should not be allowed to drip and any concerns about resources should be reported to management so that they may be evaluated and rectified.
The use of paper and ink throughout the course of the working day is something that a lot of companies find to be expensive. It is important that employees only print items that they need to have in hardcopy in order to reduce the waste of paper and ink. It is also significant for employers to encourage employees to print on both sides where possible. E-mailing, rather than posting, documents is another practice that should be encouraged. Recycling/reusing paper, where possible, is also a practice that should be considered.
If it is a case that an employee finds himself or herself without assignments to complete during working hours or if their work has come to a standstill for one reason or another then he or she should be encouraged to offer assistance to colleagues who have yet to complete their workload.
In terms of productivity, employees should be prepared to start their working day by the time they are scheduled to begin work and should proceed with their work-related activities without delay. The same process should be followed after break/lunch periods and employees should not conclude their work until the time that they are scheduled to do so.
If it becomes apparent that certain employees are struggling to organise their time then the provision of time-management training should be considered by management. It is also important to ensure that employees are aware of the most efficient methods of carrying out routine tasks (such as searching for documents or preparing spreadsheets) so time is used in the most efficient manner possible.
There are many techniques that a company can use to improve efficiency and exploring and implementing these methods is very important if a company is to remain competitive.Employee dismissed for nonconsensual use of premises awarded €25k
A recent Labour Court recommendation where a former employee was awarded €25,000 in compensation for Unfair Dismissal illustrates why employers should make sure to attend any hearings that involve them.
The case in question concerns a former employee's claim that he was Unfairly Dismissed after he used the Company premises without the permission of his employer.
In accordance with section 20(1) of the Industrial Relations Act, 1969, this particular worker referred his case to the Labour Court in June of 2013. He agreed to be bound by the Recommendation of the Labour Court.
A Labour Court hearing took place in February of this year; however, the Company declined to attend the hearing and did not appoint any representation.
This meant that the evidence submitted was solely that of the Claimant. The Court found it 'regrettable' that the employer declined to attend the hearing in any form and found it disappointing that the Company did not avail of its opportunity to present the version of events leading to this dispute from their perspective.
The former employee accepted that he had used the Company's premises without prior consent. However, he did not accept that his behaviour constituted gross misconduct and, consequently, he contested the gravity of the punishment. The employee argued that his dismissal was disproportionate to his actions and maintained that the dismissal was unfair.
Based on the uncontested submissions of the employee (the Claimant) the Court was satisfied that the penalty of dismissal was inconsistent with the actions of the employee and the Court determined that a warning would have been more appropriate in the circumstances.
According to the Court, the dismissal was both procedurally and substantially unfair and so the Court recommended that the Company pay compensation in the amount of €25,000 to their former employee in respect of his Unfair Dismissal. This figure was to be in full and final settlement.
The difference between Constructive and Unfair Dismissal:
Constructive Dismissal is the term used when an employee terminates his or her employment based on the conduct of the employer. Unfair Dismissal is slightly different in that unfair dismissal cases arise when the employee feels as though he or she has been dismissed by the employer on unfair grounds. Unlike in an unfair dismissals case where dismissal is deemed to be unfair unless proven otherwise and justified by the employer - in constructive dismissal instances the onus is on the employee to prove that their resignation was based on poor employer conduct. Employees claim constructive dismissal/unfair dismissal under the Unfair Dismissals Acts 1977-2007. If it is found that the employee has been unfairly dismissed he or she could either be awarded compensation for the loss of earnings suffered by the dismissal or could be placed back in their original role – However, this is not common practice due to the expected tension or strained relationship between employer/employee and due to the amount of time that is likely to have passed between the termination of the employment contract and the resolution of the case. Typically, an employee needs to have accrued 52 weeks’ continuous service with the employer. However, it is crucial for the employer to bear in mind that 52 weeks’ continuous service is not always an essential element. Employees dismissed for trade union membership or because they are pregnant/exercise their right to parental leave, for instance, do not have to have accrued 12 months’ continuous service prior to claiming unfair/constructive dismissal under the Acts. If the employer acts unreasonably towards the employee or breaches the contract of employment (or demonstrates that they no longer intend to adhere to the terms and conditions outlined therein) then the employer is at risk of a claim under the Acts. It is important for employers to be aware of everything that occurs in their workplace as even other employees’ behaviour that goes unchecked by the employer could contribute to a constructive dismissal case. It is also very important for employers to attend Labour Court hearings if they are scheduled so they can give evidence in support of their decision. Also, the Court can look less favourably upon employers who fail to attend and can award higher levels of compensation to the employee. 
The Importance of having an Employee Handbook
An Employee Handbook, often referred to as the employee manual, is a book/document containing information about the company and its policies and procedures. It is given to employees by the employer – typically when they first join the organisation.
This manual is an excellent place to compile all important information pertaining to the company rules and regulations. It can provide useful details for new staff during the induction process and can be a good reference point for existing employees. An employee handbook gives clarity to employees, advises them in certain situations and creates a culture where problems are addressed in a consistent manner.
An employee handbook communicates all of your workplace and HR policies and protects a business from expensive disputes with employees. The National Employment Rights Authority (NERA) aims to achieve a national culture of employment rights compliance. If a NERA inspector visits your workplace they may ask to see the company handbook to determine whether or not the company has appropriate policies and procedures in place and that it adopts the appropriate measures when various workplace scenarios arise.
Examples of some of the items that should be incorporated in an employee handbook are as follows:
•Annual Leave Entitlements
•Maternity Leave
•Paternity Leave
•Adoptive Leave
•Parental Leave
•Carer’s Leave
•Compassionate Leave
•Jury Leave
•Employment / Career Break
•Induction
•Performance Management
•Probation
•Grievance Procedures
•Disciplinary Procedures
•Bullying & Harassment
•Drugs and Alcohol Policies / Misuse of Substances / Testing for Intoxicants
•Dress Code, Uniforms, Personal Grooming and Hygiene
•Office Phone and Mobile Phone Use
•Internet, Email and Social Media Use in the Workplace
•Breaks and Rest Periods
•Sick Leave / Sick Pay
•Punctuality / Timekeeping
•Unauthorised Absence
•Clock-In and Clock-Out
•Vehicles and Company Property
•Use of Company Property
•Confidentiality
•Right to Search
•Copyright
•Ethics and Conduct
•Retirement
•Time-off-in-Lieu
•Flexitime
•Training & Education Funding / Study Leave
•Use of CCTV
•Garda Clearance / VettingWhen should you use a Non Disclosure Agreement (NDA)?
A non-disclosure agreement (NDA), often referred to as a confidentiality or a secrecy agreement, is a legal contract between two or more parties outlining knowledge and/or information that the parties wish to share with one another but wish not to have accessed by third parties.
By signing the document the parties agree not to disclose information that it contains. An NDA creates a confidential relationship between the parties to protect any type of sensitive material such as details of trade secrets – it prevents the dissemination of company or project-specific information that, if leaked, could be damaging for one or both of the parties involved. It usually prevents the signing party from benefiting commercially from the information.
NDAs are commonly signed when two companies are considering doing business with each other and need to exchange information to benefit the partnership. A mutual NDA restricts both parties in their use of the materials provided; alternatively, an NDA can also exclusively restrict the use of material by one of the individuals or groups involved.
Employers often request that an employee signs an NDA or a similar form of contract when he or she commences employment, or a new assignment, in order to maintain confidentiality.
An NDA incorporates various basics – the details of the parties who must adhere to the agreement and the information to be kept confidential (often including items such as unpublished patent applications, financial information, customer lists, discoveries and business strategies). When drafting an NDA it is important to include the disclosure period in the contract.
Those writing the NDA should note that if the recipient had prior knowledge, obtained legally, of the matters contained within the NDA - or if the contents are publically available - the signatory cannot be held liable for dispersing the material. Similarly, if the materials are subject to a subpoena or a court order, this would override the contract.
The NDA should have a clause that forces the signing party to return or destroy the confidential information where the project or assignment is abandoned or when they no longer need access to the information.
Breach of the NDA is a serious offense – when this occurs the information owner can apply to court to have an injunction put in place to stop future breaches – Often it is too late at this stage as the damage has already been done. A second option here is to sue the party at fault for damages suffered by the breach. The consequences of breaching the NDA should be set out in the NDA and should include loss of profit as well as loss of reputation and costs and expenses caused by the breach. It is important to remember that Court proceedings can be a long and arduous process.
It can be extremely difficult to prove that an NDA has been breached but if a breach is proven, this can provide the basis for a claim. Given that it is not always possible to prove that an NDA has been breached some people do not rate them – however, at the very least the NDA holds some value in that it clearly sets out in writing what is expected of the parties to avoid any ambiguity and NDAs also serve as a reminder of the confidential nature of the information and act as a deterrent.
Under 18 Work Register – Employer Responsibilities
In accordance with the Protection of Young Persons (Employment) Act, 1996 employers are required to keep a register of employees that are under the age of 18. The basis for this is to guarantee the protection of young people and to ensure the workload assumed is not jeopardising their education.
During a National Employment Rights Authority (NERA) assessment the inspector will request access to the company’s register of employees under the age of 18 (if the company employs workers in this category).
There are strict rules that employers must adhere to when employing those under the age of 18.
According to the Act employers cannot employ children under the age of 16 in regular full-time jobs.
Children aged 14 and 15 may be employed on a controlled basis.
Some rules to pay attention to:
- They can do light work during the school holidays – 21 days off must be given during this period.
- They can be employed as part of an approved work experience or educational programme where the work is not harmful to their health, safety or development.
- They can be employed in film, cultural/advertising work or sport under licences issued by the Minister for Jobs, Enterprise and Innovation.
- Children aged 15 may do a maximum of 8 hours of light work per week during the school term. The maximum working week for children outside of the school term is 35 hours (or up to 40 hours if they are on approved work experience).
- The maximum working week for children aged 16 and 17 is 40 hours with a maximum of 8 hours per day.
There are many obligations on the employer when he or she employs a young person – here is a list of some of the items that employers must be vigilant of:
An employer must be provided with a copy of the young person’s birth certificate (or other documentation proving age) prior to the commencement of employment.
Before employing a child an employer must obtain the written permission of the parent or guardian of the child.
An employer must maintain a register of employees under 18 containing the following information:
- The full name of the young person or child
- The date of birth of the young person or child
- The time the young person or child commences work each day
- The time the young person or child finishes work each day
- The rate of wages or salary paid to the young person or child for his or her normal working hours each day, week, month or year, as the case may be, and
- The total amount paid to each young person or child by way of wages or salary
- The employer is obliged to ensure that the young person receives a minimum rest period of 12 consecutive hours in each period of 24 hours.
- The employer is obliged to ensure that the young person receives a minimum rest period of 2 days which shall, where possible, be consecutive, in any 7 day period.
- The employer cannot require or permit the young person to do work for any period without a break of at least 30 consecutive minutes.
Pay Slips – Wage Deductions and Associated Employer Responsibilities
The Payment of Wages Act, 1991 forces employers to provide a pay slip in respect of all employees. A pay slip is a statement in writing that outlines the total pay before tax (gross pay) and all details of any deductions from pay. The employer’s responsibility regarding the required provision of pay slips is set down in Section 4 of the Act.
The Act protects against unlawful deductions from employee wages.
Here are the important points for employers to remember:
-Deductions from employee wages must be authorised by either the employee’s contract of employment or by written consent of the employee – a trade union subscription, for instance.
-An exception to this is where the employer makes a deduction from pay when there is a need to recover an overpayment of wages or expenses.
-There is an obligation on the employer to make a deduction from an employee’s wages if they are required by a court order to do so - an example of this might be an Attachment of Earnings order in a family law case, for instance.
-The employer is entitled to make a deduction if the employee is due to make a payment to the employer –An example of this would be if expenses arose due to the employee being on strike.
On the other hand an improper deduction made by the employer is one which is not authorised.
-(Income tax, universal social charge and PRSI contributions are a separate category as they are compulsory deductions required by law).
-Where the deduction from wages arises because of either an act or omission of the employee - till shortages or breakages, for instance, or the supply of goods to the employee by the employer (cleaning of uniforms, perhaps) - then the amount of the deduction must be fair and reasonable.
-The amount of the deduction must not exceed the loss experienced or cost of the service.
-The deduction must take place within 6 months of the loss/cost occurring.
Failure to pay all or part of the wages due to an employee is considered an unlawful deduction and a complaint can be made under the Payment of Wages Act. Similarly, unpaid notice, holiday pay, bonus and commission payments can also form part of a claim under the Act.
No Adoptive or Maternity Leave Ireland for "Commissioning Mothers"
In September 2013 the legal opinion of the European Court of Justice was that an Irish teacher (Ms. Z), whose child was born through surrogacy, did not have an automatic right to either paid Adoptive Leave or Maternity Leave from her employment.
On 18th March 2014 a European Court of Justice (ECJ) ruling, that referred to the mother who did not give birth to the child as the “commissioning mother”, upheld this opinion. The ruling stressed that it is the birth mother who should benefit from Maternity Leave even where she does not keep the baby after giving birth and even in cases where the mother who takes on the responsibility of the child after birth is the biological mother. The reason for this is to improve the health and safety of pregnant workers and and those who have recently given birth.
Ms. Z and her husband are the baby’s full genetic parents. When Ms. Z’s application for paid Adoptive Leave was denied she brought a complaint to the Equality Tribunal. The woman, who has no uterus as a result of a rare medical condition, claimed that she was discriminated against on the grounds of sex, family status and disability.
The woman was told by her employer that she could take unpaid Parental Leave instead of the requested Adoptive Leave; however, as the child was genetically hers and her name was on the American birth certificate, Ms. Z felt that she was being treated unfairly.
The surrogacy scenario can be a challenging one for all concerned and blurred lines surrounding what mothers are entitled to in the workplace just adds to the complexity of the situation.The Equality Tribunal referred the case to the ECJ and the Court ruled yesterday that mothers like Ms. Z do not have any automatic right to Adoptive Leave or Maternity Leave.
In September 2013, the legal opinion of the Advocate General stated that Ms. Z’s differential treatment was not based on sex, family status or disability, as claimed, but instead on the “refusal of national authorities to equate her situation with that of either a woman who has given birth or an adoptive mother”.
The Court ruled that Ms. Z did not fall within the scope of the Pregnant Worker’s Directive as the Directive in question presupposes that the worker has been pregnant or has given birth to a child. The claim of discrimination on the grounds of sex failed as fathers in this situation are also denied leave. The claim of discrimination on the grounds of disability also failed as, the judgement stated that, while “a woman’s inability to bear her own child may be a source of great suffering” it does not amount to ‘disability’. The concept of ‘disability’ within the EU Employment Equality Framework Directive “presupposes that the limitation, from which the person suffers, in interaction with various barriers, may hinder that person’s full and effective participation in professional life on an equal basis with other workers”.
The recent revelation, that Irish women who have babies through surrogacy arrangements are not afforded the same rights as mothers who have adopted or given birth to their babies, has highlighted the uncertainties/complexities surrounding the issue of surrogacy in both Irish and EU law.
Surrogacy is becoming a more frequent option for women; however, legislation in Ireland has not kept up with this change.
The ECJ stated that member states are “free to apply more favourable rules for commissioning mothers” and paid leave for mothers, who have children through surrogacy arrangements, is being legislated for in The United Kingdom.
On 30th January 2014, Justice Minister Alan Shatter published the General Scheme of Children and Family Relationships Bill for consultation. According to Minister Shatter, the draft bill ‘seeks to provide legal clarity on the parentage of children born through assisted human reproduction and surrogacy’.
What employers need to know about work permit Ireland
Employers, as you may be aware, the National Employment Right’s Authority (NERA) conducts thousands of inspections (many of which are unannounced) annually. It is within NERA’s remit to investigate your compliance with Irish Immigration and Employment Permit legislation.
Did you know that employers could be seriously penalised for employing individuals who do not have valid employment permits?
• The Employment Permits Acts 2003 to 2006 make it a criminal offence for a foreign national to work without an employment permit. Employers are committing an offence themselves if they employ a foreign national without a valid work permit.
• The Acts place an onus on the employer to carry out checks in order to be satisfied that a prospective employee does not require an employment permit, and, if he or she does, that they have obtained one.
• NERA inspectors are authorised to exercise powers under the Employment Permit Acts. If, during an inspection, NERA finds evidence showing that an employee does not have a valid employment permit, both the employer and employee are advised of the need to correct the situation. They are also informed of the consequences of failing to do so.
• An employer failing to rectify matters could be prosecuted. NERA commenced initiating proceedings under S.2 of the 2003 Act in 2012.
• An Garda Síochána are also an enforcement authority under Employment Permits legislation with prosecution powers.
Who needs an Employment Permit?
According to the Department of Jobs, Enterprise and Innovation, a non-EEA national (except in the cases listed below) requires an employment permit to take up employment in Ireland. The EEA comprises the Member States of the European Union together with Iceland, Norway and Liechtenstein.
Employment permit (or work permit) holders are only allowed to work for the employer and in the occupation named on the permit. If the holder of an employment permit ceases to work for the employer named on the permit during the permit’s period of validity, the original permit (along with the certified copy) must be returned immediately to the Department of Enterprise, Trade and Innovation.
Citizens of non-EEA countries who do not require Employment Permits include:
• Non-EEA nationals in the State on a Work Authorisation/Working Visa
• Van der Elst Case The European Court of Justice delivered a judgement on the Van der Elst Case (Freedom to Provide Services) on 9 August, 1994. The Court ruled that in the case of non-EEA workers legally employed in one Member State who are temporarily sent on a contract to another Member State, the employer does not need to apply for employment permits in respect of the non-nationals for the period of contract.
• Non-EEA nationals who have been granted permission to remain in the State on one of the following grounds:
• Permission to remain as spouse or a dependent of an Irish/EEA national;
• Permission to remain as the parent of an Irish citizen;
• Temporary leave to remain in the State on humanitarian grounds, having been in the Asylum process.
• Explicit permission from the Department of Justice, Equality and Law Reform to remain resident and employed in the State
• Appropriate business permission to operate a business in the State
• A non-EEA national who is a registered student
Swiss Nationals: In accordance with the terms of the European Communities and Swiss Confederation Act, 2001, which came into operation on 1 June, 2002, this enables the free movement of worker between Switzerland and Ireland, without the need for Employment Permits.
It is imperative that every labour market opportunity is afforded to Irish and other EEA nationals in the first instance. This is also in accordance with EU obligations and recognises that Ireland's labour market is part of a much greater EEA labour market which affords a considerable supply of skilled workers.
An interesting point to note is that work permits will not be considered for certain occupations.
Since April 10th 2013 occupations listed as ineligible for work permits are as follows:
• Hotel, tourism and catering staff except chefs
• Work riders – horseracing
• Clerical and administrative staff
• Drivers (including HGV drivers)
• Nursery/crèche workers, child minders/nannies
• General operatives and labourers
• Operator and production staff
• Domestic workers including carers in the home and child-minders*
• Retail sales staff, sales representatives and supervisory or specialist sales staff**
• The following craft workers and apprentice/trainee craft workers: bookbinders, bricklayers, cabinet makers, carpenters/joiners, carton makers, fitters - construction plant, electricians, instrumentation craftspeople, fitters, tilers - floor/wall, mechanics - heavy vehicles, instrumentation craftspersons, metal fabricators, mechanics - motor, originators, painters and decorators, plumbers, printers, engineers - refrigeration, sheet metal workers, tool makers, vehicle body repairers, machinists - wood, plasterers and welders
* In exceptional circumstances an employment permit may be granted for a carer who is a medical professional caring for a person with a severe medical condition or for a carer who has a long caring relationship with a person with special needs where there are no alternative care options
** Specialist language support and technical or sales support with fluency in a non-EEA language in respect of those companies that have formal support from the State’s enterprise development agencies earning at least €27,000 a year may apply for a work permit.
A Significant Number of WRC Inspections are Unannounced!
The National Employment Rights Authority (NERA) was first established on an interim basis in February 2007 with the aim of securing compliance with Irish Employment Legislation. NERA monitors employment conditions through its inspectors. It enforces compliance and seeks redress where any employment rights have been breached.
Since its establishment in 2007, the number of NERA inspectors has increased by more than 100%. These inspectors exchange information with the Department of Social Protection and the Revenue Commissioners.
Inspectors are empowered to enter company premises and interview employees as well as employers. They can also examine employment records and can take statements before initiating legal proceedings.
Typically, a NERA investigation proceeds in the following way:
1) If the initial inspection finds Employment Legislation breaches the employer is instructed to take the appropriate steps to rectify the matter.
2) NERA sends a letter to request evidence that the employer is now compliant.
3) If the response is inadequate, the company is warned that any further breaches will be sent to NERA's legal services for prosecution. Then a follow-up inspection occurs.
*It is extremely important for employers to note that if there is a breach of the Protection of Young Persons (Employment) Act 1996, the employer is referred for prosecution directly after the first inspection.
Employers should know that employees regularly complain to NERA about their employer’s adherence to Employment Legislation and their maintenance of employment records and so on.
In order to pass a NERA inspection and to comply with Employment Legislation, employers are statutorily obliged to maintain a large number of records relating to their employees.
Here is a list of the 10 most important records/details that an employer in Ireland must keep:
- PPS Number, Name and Address of each employee
- Terms of Employment for every employee
- Individual job classifications for each employee
- Commencement/termination dates
- Payroll details
- Copies of payslips
- Hours of Work
- Under 18 employee register (if applicable)
- Public Holiday/Annual Leave entitlements received by each employee
- Board/Lodging details if applicable
In the 6 month period between January and June 2013, NERA conducted 2,755 workplace inspections. A staggering 1,458 (53%) of these inspections were unannounced!
Pension Obligations of Irish Employers
No matter how big or how small your company may be – or whether your employees are part-time, seasonal or fixed-term - every Irish employer is obliged to enter into a contract with a PRSA provider and to provide access to at least one standard PRSA for all ‘excluded employees’.
What are ‘excluded employees’? Employees are considered to be ‘excluded employees’ if:- their employer does not offer a pension scheme, or
- they are included in a pension scheme for death-in-service benefits only, or
- they are not eligible to join the company’s pension scheme or will not become eligible to join the pension scheme within six months from the date they began working there, or
- they are included in a pension scheme that does not permit the payment of additional voluntary contributions (AVCs).
Even if there is only one ‘excluded employee’, an employer must:
- enter into a contract with a PRSA provider (there is no charge for doing this)
- provide employees with access to a Standard PRSA
- allow reasonable paid leave of absence, subject to work requirements, so that excluded employees can set up a Standard PRSA
- make deductions from payroll if required
- advise employees in writing (normally on their payslip) at least once a month of their total contribution, including employer’s contribution, if any.
- You’re not obliged to give any advice to employees in relation to PRSAs, but you must allow your PRSA provider or intermediary reasonable access to your employees to brief them on PRSAs.
- You don’t have to contribute to PRSAs on behalf of your employees, but if you decide to do so, your contributions must be paid to the PRSA provider within 21 days of the end of the month in which the employer contributions are due. And please note that you cannot make any deductions from this payment.
- You are not responsible for the investment performance of PRSAs
IFG have many years of experience of providing Pension Scheme Design & Risk Advisory services to Irish companies. They would be delighted to answer any and all of your pension queries if you would like to find out more www.ifg.ie .
Employers reducing salaries without consent
If a salary reduction is imposed without consultation or employee agreement, an employee now only has three (rather than four) potential legal opportunities to seek redress from his or her employer.
If an employee’s wages are cut his or her first option is to claim Constructive Dismissal under the Unfair Dismissals Acts 1997-2007. Constructive Dismissal is the term used when an employee terminates his or her employment based on the conduct of the employer. In this instance, the employee must be able to prove that their position became unsustainable as a direct result of the involuntary reduction in pay.
Secondly, where an employee’s salary is reduced, he or she has the opportunity to bring a trade dispute under the Industrial Relations Acts. The Industrial Relations Acts deal with disputes between employers and workers that are connected with the employment or non-employment, or the terms and conditions of or affecting the employment, of any person.
Thirdly, if an employer cuts an employee’s pay, the employee could claim that their contract has been breached. Defending this could prove very costly for the employer. Furthermore, an injunction may be granted to prevent the contract breach/reinstate the original salary.
In the past employees whose wages were cut without prior consent had a fourth option. They had the opportunity to take a case (and were likely to succeed) under the Payment of Wages Act 1991. Claims in relation to a reduction in wages, however, may no longer be successful if taken under this Act as a result of a recent Employment Appeals Tribunal determination. The specific EAT case referenced here is an appeal of a Right’s Commissioner decision in the case of Santry Sports Clinic v 5 employees.
The employees in the aforementioned case were claiming for an 8% reduction in their pay that was imposed between February and March 2010. Santry Sports Clinic stated that the reduction was essential. According to the employer, all employees received letters detailing the 8% reduction in advance and, while only 30% of employees agreed to the reduction via return letters, no one officially objected or stated that they would not accept the pay cut and so it was implemented as planned.
The Employment Appeals Tribunal considered all evidence and representations made at the hearing as well as all other submissions made. The Tribunal noted the High Court decision in the case of Michael McKenzie and others and Ireland and the Attorney General and the Minister for Defence Rec. No. 2009. 5651JR. In paragraph 5.8 of this decision the Judge stated that “the Payment of Wages Act has no application to reductions as distinct from ‘deductions’.” The Tribunal followed the High Court decision on a point of law and, therefore, the appeal was successful and the decision of the Rights Commissioner was entirely overturned in the case of Santry Sports Clinic v 5 employees.
This case brought to light the fact that the Payment of Wages Act 1991 refers to “deductions” as opposed to “reductions” and, as a consequence, employees whose wages are reduced without prior consent are now unlikely to succeed if they opt to take a case against their employer under the Payment of Wages Act 1991.
This is particularly significant for claims that are currently being processed by the Employment Appeals Tribunal.
Employers need to remember that, although this option has essentially been closed off for employees as a result of the above-mentioned High Court decision and the EAT case, they still have several avenues open to them if they wish to take a claim where a reduction of wages has been imposed by the employer without prior consent.
Force Majeure Leave in the Irish Workplace
There are several types of leave that an employee may be entitled to. Some forms of leave are statutory entitlements and some other forms are not. Maternity Leave, for instance, must be given to employees when they are pregnant. Some forms of leave are paid and others are not. This can depend on statutory obligations and on the terms and conditions set out in the Contract of Employment. Annual Leave is a statutory entitlement and it must be paid by the
employer. Sick Leave, however, is not always paid by the employer (this depends on individual company policies).
Force Majeure Leave is less commonly discussed. The purpose of Force Majeure Leave is to provide limited, paid leave to enable an employee to deal with family emergencies resulting from injury or illness of a close family member. Force Majeure Leave applies where the immediate presence of the employee is urgent and indispensable (essential).
A close family member is defined as one of the following:
- A child or adopted child of the employee
- The husband/wife/partner (same or opposite sex) of the employee
- A parent/grandparent of the employee
- A brother/sister of the employee
- A person to whom the employee has a duty of care (where he or she is acting in loco parentis)
- A person in a relationship of domestic dependency with the employee
- Persons of any other class (if any) as may be prescribed
By its nature, an employee will not usually be able to give notice of the need to take Force Majeure Leave. The employee should, however, inform the employer (in writing) of reasons for taking the leave as soon as is reasonable practicable. The employee should provide details regarding the need for the leave and should confirm who the leave was taken in respect of.
Employers are obliged to keep a record of Force Majeure Leave taken by employees.
Employees will be entitled to:
- up to 3 days paid Force Majeure Leave in any consecutive 12 month period; or
- up to 5 days in a 36 consecutive month period.
Absence for part of a day is usually counted as a full day of Force Majeure Leave. Employees are entitled to receive pay for this type of leave. Employers can grant employees more than the number of days outlined above; however, they are not obliged to do so.
Employees are protected against Unfair Dismissal for taking Force Majeure Leave or for proposing to take it.
Death is not covered under Force Majeure Leave – Leave taken when a death occurs falls under Compassionate Leave and this tends to depend on employee contracts as well as custom and practice within the workplace.How to Conduct an Effective Employee Communication Survey
Surveying employees is an effective first step in fixing communication barriers in an organisation. Even if there are no obvious problems, communication surveys can help get an organisation to the next level of performance.
Benefits in conducting an employee communication survey and acting on the results include:
• improved employee satisfaction
• lower turnover
• reduced absenteeism
• less political infighting
• greater levels of manager-worker trust
• reduced defect rates
• higher customer satisfaction
A well-run communication survey can give you these benefits. However, a poorly conducted communication survey can have the opposite effect. Surveys badly planned, rolled-out and followed-up can actually increase employee cynicism and resistance to change. They can also increase employee turnover and absenteeism. This can negatively impact customer satisfaction and your bottom line.
Employee Communication Survey Tips
So, what do you need to consider before rolling out your survey? Here are some tips.
Question types
Include in your survey questions that require limited tick-the-box responses, such as Yes/No and Strongly Agree/Agree/Disagree/Strongly Disagree. Including these questions will allow
you to perform quantitative analyses that you can use to compare results between different demographics and to use as a benchmark for future surveys.
However, equally as important is the provision of free form space which affords employees the opportunity to elaborate on the feedback they have given elsewhere on the form and to discuss in detail anything that has not been covered in the other areas of the survey. A good idea is to run Focus Groups with a random sample of respondents after the survey forms have been
collected and analysed. These discussion groups are invaluable in performing a sanity check on your results so far and in teasing out issues that have surfaced in the written survey.
Anonymity
Guarantee absolute anonymity for the people completing the survey and make this clear in the survey instructions. Some employees will either not complete the survey or give sanitised answers if they believe that their identity will be disclosed with their answers and comments.
Sample size
Should you survey the whole organisation/department or a select group? Preferably, survey all employees as this gives everyone a sense of being listened to. If the organisation/department is excessively large or budget is tight, draw a random sample from each of the demographic groups that you will be reporting on.
If your selection is not random, the communication survey results will not be representative and you will lose credibility with your employees. If a demographic group comprises 50 people or less, you will need to survey 100 percent of the people within that group.
Mode of delivery
If the people completing the survey are small in number and at a single location, then hardcopy distribution will not be a problem. As the number of respondents increases and the locations become more dispersed, more consideration will need to be given to electronic distribution. Think about putting the survey on a local intranet or internet web server.
To make filling out the employee survey form easy for people, have it so that the form can be completed online. If this is not possible, either send the form by email or put it on an accessible server from which people can download it. If your survey respondents are not comfortable
with technology, then be wary of online options and provide plenty of employee support if you decide to go down that road.
Inducements and Reminders
Survey participation rates do not tend to be particularly high, typically ten percent or less. You can dramatically improve on this completion rate by conducting some simple follow-up. As you get closer to the communication survey cut-off date (of course, you will have publicised that
date with your survey), send out an e-mail reminder or arrange for someone to call the respondents personally. Consider advertising a raffle for all survey participants - this will increase the participation rate (especially if it is a good prize).
Distribute results
Once the employee feedback results are in and analysed, distribute your findings first to your managers and then to employees. Withholding results from employees will only breed cynicism and distrust and will make getting a satisfactory response rate from your next survey all that more difficult.
Break down your results into meaningful groups, such as by department or by location/site. The reporting groupings need to be small enough that people can identify with the group enough for a meaningful action plan to be developed.
Be prepared for some kickback from defensive managers. Frank employee feedback is both confronting and jarring, especially for those managers not used to it. Use your best facilitation skills to deliver the key messages, or use a professional facilitator to perform this sensitive task.
Follow-up and Rewards
A survey conducted with no plan for action is not only a waste of resources but will leave employees asking why they bothered to give feedback to managers on how they felt. Work with each manager to construct an action plan that they agree with. Remember, it is the manager that will be implementing the communication plan, not you. Get back with each manager three
or six months later to review how they are progressing with their communication plan and report the results to the organisation. As you see communication practices improve across the organisation, make sure that managers get rewarded.