All you need to know about HR!
Supporting Business Owners, Directors and HR Professionals with the latest in HR trends and news.
June 2015
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
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’.
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.Data Protection Breaches in Ireland Dangerously High
The Data Protection Acts 1988 and 2003 provide rules that apply to the collection, use, disclosure and transfer abroad of information about individuals. The Acts cover the principals that companies must follow when processing personal data about employees as well as information about clients/residents.
The Acts also give individuals certain rights in relation to personal data that is held about them. If you as a company collect, host or process data about people on any type of computer or structured filing system, then you are considered a data controller under the Acts. Every company holding information about individuals should have a data protection policy in place and should ensure that all IT administrators and employees with access to personal/confidential information are fully trained on the rights and responsibilities associated with that access. Billy Hawkes, the Data Protection Commissioner, ensures that companies that keep personal data are in compliance with the Acts. The Commissioner has a range of enforcement powers to help guarantee that the provisions of the Acts are observed. The Commissioner can serve legal notices compelling data controllers to provide information needed to assist with his enquiries. He can also compel data controllers to implement provisions of the Acts in a particular prescribed manner. He may investigate complaints made by members of the public and can authorise officers to enter sites with the aim of inspecting the type of personal information kept as well as how it is processed and the security measures that the data controller has in place. Companies are required to co-operate fully with such data protection officers.
Data controllers who are found guilty of offences under the Acts can be fined up to €100,000 on conviction and may be ordered to delete all or part of their database.
The Data Protection Commissioner publishes a report annually naming, in certain cases, data controllers who were investigated by his office.
Civil sanctions may result where a person suffers any damage as a consequence of failures on the part of a data controller to meet his/her obligations.
In November 2013 it was discovered that the personal information of more than 1,500,000 people was compromised by a major security breach at a Co. Clare based company. In an RTE Morning Ireland interview at the time, Mr. Hawkes admitted that “cyber-criminals have become extremely sophisticated and it can be quite difficult to actually identify that your system has been perpetrated.” This was one of the worst data breaches in Irish history.
The Society for Chartered IT Professionals in Ireland, known as the Irish Computer Society (ICS), carried out a recent survey on data protection in Ireland and the results, which were published in January 2014, were astonishing.
256 Irish based companies were surveyed and a record number of data breaches were reported to have occurred in 2013. Findings revealed that one in two of the surveyed companies experienced a data breach during the last 12 months. In fact, more than 20% of the companies contacted by the ICS reported multiple breaches. These statistics mark a significant increase on last year’s figures when 43% of companies examined reported a breach.
According to the results, one third of employees are not fully aware of data protection issues and many receive insufficient data protection training or, alarmingly, no relevant training whatsoever.
Several IT managers admitted that data protection policies are not implemented at all in their company or they are only partially adhered to. The survey has highlighted the need for companies to manage their data processing environment much more carefully and provide additional training for their IT administrators and all employees who have contact with personal information pertaining to employees/clients. According to the ICS survey, negligence on the part of employees accounted for 77% of the reported incidents. Hackers seeking to obtain data and unencrypted laptops were also cited as major threats.
According to Fintan Swanton, Chairman of the Association of Data Protection Officers, “Clear policies and procedures are vital, with regular refresher training and timely reviews to ensure that staff are complying with the structures.”
It is important for employers to be aware that new data protection legislation will require most organisations to appoint a Data Protection Officer.
Fears for Kerry jobs in pay dispute
Services Industrial Professional and Technical Union (SIPTU) held a secret ballot of its members at Liebherr Container Cranes in Killarney yesterday, 14th January 2014.
SIPTU members voted to reject Labour Court proposals geared at resolving a long-term pay increase dispute with the Company dating back to 2009.
Liebherr Container Cranes Ltd., a member of the large family-owned German Company, Liebherr Group, was established in Killarney in 1958 and has been a significant direct and indirect employer in the area in recent years. The Company is one of the largest firms in Kerry and one of the largest of its kind in the country.
The German company has warned that its commitment to the plant in Killarney has been weakened in recent months as a result of the on-going pay issues and the industrial action which forced them to send work from Killarney to Germany.
Fears are now growing for jobs at the Company as Management admit to reviewing its operations in the region. Liebherr stated that a small number of employees have seriously compromised its future in Killarney.
Based on the details of Towards 2016 Review and Transitional Arrangement, an agreement drawn up by the Company, a 2.5% pay increase was due to be implemented for employees in January 2009.
The Company did not pay the expected increase and argued that payment would severely impact its competitiveness and limit its ability to preserve its headcount numbers in a time of economic hardship. The Company proposed to pay the increase due in three distinct phases beginning in 2012 in return for a number of concessions including cost-offsetting measures.
Union members and the Company were unable to resolve the dispute at local level and it became the subject of a Conciliation Conference under the auspices of the Labour Relations Commission.
Agreement was not reached at this stage and, on the 28th January 2011, the pay dispute was referred to the Labour Court.
A Labour Court hearing was scheduled for, and took place on, the 2nd May 2012.
The Labour Court considered the submissions of all parties and a decision was made that further engagement was required if the claim was to be resolved before the Court. The Court recommended that the discussions/negotiations were to be facilitated by the Labour Relations Commission.
As a result of the unresolved pay dispute, industrial action was served by SIPTU in November 2013. Workers at the plant implemented a ban on overtime and undertook a one-day work stoppage late in November. All industrial action was suspended on 28th November when members of the union accepted an invitation to attend a hearing of the Labour Court on 4th December 2013.
In December 2013, the Labour Court recommended that the firm award the disputed 2.5% increase backdated almost two full years to its workers. The Court provided a list of recommendations to both sides. Liebherr said that, while the industrial action and the pay award had increased its cost base, they accepted the recommendation.
SIPTU workers at the plant, however, voted on the 14th January 2014 to reject the Labour Court proposals. The union was said to be dissatisfied with the proposal and wanted the 2.5% wage increase to be implemented on an unconditional basis.
Bullying prevalent in Irish workplaces according to recent survey
The results of a recent Europe-wide survey, which were reported on in TheJournal.ie’s article Irish workplaces among worst in Europe for bullying, highlighted worrying levels of bullying within companies in Ireland. According to the survey, Ireland is the 7th worst country in Europe when it comes to workplace bullying with a significant 6% of employees claiming to experience it.
Tom O’Driscoll, SIPTU’s Head of Legal Affairs, explained that “It can be physical abuse but it’s usually abusive name-calling, putting undue pressure on people, singling people out, commenting on their performance…” etc.
Bullying in the workplace is any recurring inappropriate conduct that undermines a person’s right to dignity at work. Bullying can be carried out by one person or by several people - it is aimed at an individual or a group where the objective is to make them feel inferior or victimised. Bullying can come in the form of a verbal or physical assault and can also take place over the internet – this is known as cyber bullying and can be performed via many methods - Mobile phones, social networking sites, emails and texts are all common vehicles for cyber bullying. Cyber bullying is becoming more and more prevalent in society. Keep in mind that harassment based on civil status, family status, sexual orientation, religion, age, race, nationality or ethnic origin, disability or membership of the Traveller community is considered discrimination. Harassment in the workplace is prohibited under the terms of the Employment Equality Acts. The Act of harassment - whether direct or indirect, intentional or unintentional - is unacceptable and should not be tolerated by any company. Any allegations should be dealt with seriously, promptly and confidentially with a thorough and immediate investigation. Any acts of harassment should be subject to disciplinary action up to and including dismissal. Any victimisation of an employee for reporting an incident, or assisting with an investigation of alleged harassment and/or bullying is a breach of Equality Legislation and should also be subject to disciplinary action.
Bullying or harassment isn’t always obvious – in fact it can come in many shapes and forms – some examples are:
•Social exclusion or isolation
•Damaging someone’s reputation through gossip or rumour
•Any form of intimidation
•Aggressive or obscene language or behaviour
•Repeated requests for unreasonable tasks to be carried out
Employers - Did you know that you can be held accountable for bullying or harassment in the workplace?
……..Not being aware of it does not get you off the hook!
Under current Irish Employment Legislation (The Employment Equality Acts 1998-2011) companies are accountable when it comes to bullying and harassment in the workplace. It is vital for employers to be mindful of the legislation as companies are answerable for the actions of employees, suppliers and customers even in cases where the company is not aware that bullying or harassment is taking place.
To defend itself; a company must illustrate how it did everything reasonably practicable to prevent bullying and/or harassment from taking place in the workplace. The company must also show that when an instance of bullying or harassment occurred the company took immediate, fair and decisive action.
There is a huge risk of exposure if companies do not adhere to the strict Regulations. Those found in violation of the Act may be liable for fines and in severe circumstances imprisonment on summary conviction. Companies can also end up paying out large sums in compensation.
Sample award – In June 2013, a fast food company in Blackpool, Cork was forced to pay €15,000 after two employees were subjected to sexual harassment by another employee.
An Equality Tribunal ruling found that a lesbian couple, who both worked for the restaurant in Cork, were forced to endure obscene remarks and queries about their relationship and sexuality from another employee at the branch.
The Tribunal found that management at the restaurant failed in their duty to take the appropriate steps to protect the women. They failed in their responsibilities to their employees and consequently were instructed to pay €15,000 to the couple.
Under Irish Employment Legislation it is the duty of the employer to provide a workplace that is safe for lesbian women and gay men to be open about their sexuality.
This is something that all employers need to pay close attention to.
Bullying creates a very hostile work environment and can negatively affect employee performance – It can lead to disengagement and low levels of morale. It can also cause a company to lose key members of staff. Bullying can affect both the safety and the health of employees – this violates the Safety, Health and Welfare at Work Act 2005.
It is abundantly clear that it is in the best interest of all stakeholders to prevent bullying or harassment of any form in the workplace.
Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity.
In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook – A Dignity at Work Policy should be communicated clearly to employees. This will clarify what is expected of employees and what the protocol/repercussions are if bullying/harassment does occur.
The Europe-wide survey found that females between the ages of 30 and 49 are most likely to be bullied at work. Males between the ages of 15 and 29 are the second most likely group to experience bullying. Women in the same age group are most likely to experience sexual harassment.
In December 2013 the Immigrant Council of Ireland (ICI) brought our attention to a shocking statistic when it revealed that the number of racist incidents reported in Ireland in the first 11 months of 2013 had jumped 85% on the same period in 2012. The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence. A massive 20% of the reported incidents of racism occurred in the workplace.
The area of workplace bullying clearly requires immediate attention in Ireland.
Dignity at Work – 20% of racist incidents occur in workplace
In December 2013 the Immigrant Council of Ireland (ICI) brought our attention to a shocking statistic – The ICI revealed that the number of racist incidents reported in Ireland in the first 11 months of 2013 had jumped to a staggering figure – The ICI dealt with 142 individual racism cases between January and November 2013 - This figure was 85% higher than for the same 11 month period in 2012. 52 of the racist incidents that were reported occurred between June and July of 2013 alone. This signified a huge increase when compared to the same period in 2012 when just 3 incidents of a similar kind were reported.
The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence.
Denise Charlton, CEO of the Immigrant Council of Ireland, described the results as "alarming".
A massive 20% of the reported incidents of racism occurred in the workplace.
Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity.
Employers - Did you know that you can be held accountable for bullying or harassment in the workplace?
……..Not being aware of it does not get you off the hook!
Bullying in the workplace is any recurring inappropriate conduct that undermines a person’s right to dignity at work. Bullying can be carried out by one person or by several people - it is aimed at an individual or a group where the objective is to make them feel inferior or victimised. Bullying can come in the form of a verbal or physical assault and can also take place over the internet – this is known as cyber bullying and can be performed via many methods - Mobile phones, social networking sites, emails and texts are all common vehicles for cyber bullying.
Cyber bullying is becoming more and more prevalent in society.
Keep in mind that harassment based on civil status, family status, sexual orientation, religion, age, race, nationality or ethnic origin, disability or membership of the Traveller community is considered discrimination.
Harassment in the workplace is prohibited under the terms of the Employment Equality Acts, 1998 to 2007. The Act of harassment - whether direct or indirect, intentional or unintentional - is unacceptable and should not be tolerated by any company. Any allegations should be dealt with seriously, promptly and confidentially with a thorough and immediate investigation. Any acts of harassment should be subject to disciplinary action up to and including dismissal. Any victimisation of an employee for reporting an incident, or assisting with an investigation of alleged harassment and/or bullying is a breach of Equality Legislation and should also be subject to disciplinary action.
Bullying or harassment isn’t always obvious – in fact it can come in many shapes and forms – some examples are:
•Social exclusion or isolation
•Damaging someone’s reputation through gossip or rumour
•Any form of intimidation
•Aggressive or obscene language or behaviour
•Repeated requests for unreasonable tasks to be carried out
Employers Beware:
Under current Irish employment legislation (The Employment Equality Acts 1998-2011) companies are accountable when it comes to bullying and harassment in the workplace or workplace disputes. It is vital for employers to be mindful of the legislation as companies are answerable for the actions of employees, suppliers and customers even in cases where the company is not aware that bullying or harassment is taking place.
To defend itself a company must illustrate how it did everything reasonably practicable to prevent bullying and / or harassment from taking place in the workplace. The company must also show that when an instance of bullying or harassment occurred the company took immediate, fair and decisive action.
There is a huge risk of exposure if companies do not adhere to the strict Regulations. Those found in violation of the Act may be liable for fines and in severe circumstances imprisonment on summary conviction. Companies can also end up paying out large sums in compensation.
Bullying creates a very hostile work environment and can negatively affect employee performance – It can lead to disengagement and low levels of morale. It can also cause a company to lose key members of staff. Bullying can affect both the safety and the health of employees – this violates the Safety, Health and Welfare at Work Act 2005.
It is abundantly clear that it is in the best interest of all stakeholders to prevent bullying or harassment of any form in the workplace.
In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook – A Dignity at Work Policy should be communicated clearly to employees. This will clarify what is expected of employees and what the protocol/repercussions are if bullying/harassment does occur.
Effective Communication in the Workplace.
Employees and the people on the ground in general, are an invaluable source of information for employers. Whether it is positive or negative, employees can provide a whole host of important feedback for your business - if you take the time to listen to and interpret their comments they can be a real asset to you.
Conducting regular meetings between employees and managers is a good way to keep lines of communication open. However, sometimes people are reluctant to speak out in an open forum, particularly where they have something negative to say or where they have an issue involving someone else who is included in the meeting.
Employee surveys are an ideal way for employees to share their opinions about their job and work environment etc. Confidential surveys tend to encourage honesty and can prove to be of great assistance to employers. Employee participation should be encouraged. Employees will feel as though their input is valued if attention is paid to their suggestions/recommendations. If action is taken by the employer as a result of employee opinions, morale amongst workers can be increased and relationships between the employer and their employees can be drastically improved. This has a positive effect on productivity.
Similarly, as employees leave the company; an exit interview should be carried out. This can be very beneficial for the employer as it can, for instance, give the employer an insight in to the reasons behind the employee’s departure. It can also highlight other issues that exist within the business – issues that management may not necessarily already be aware of. It can also reveal what is working well and where resources should be focused. People tend to be more open and honest about what they are feeling when they know that divulging the information will not have any negative bearing on them.
Not asking the opinion of a departing employee is a wasted opportunity.
It is important to give employees the opportunity to elaborate on their answers and to encourage them to give you as much information as possible – the more information that they impart the better. Leave an additional space for them to comment on issues that you may not have thought to include.
Here are some examples of questions that should be included in an exit interview:
- How long were you employed by the company?
- Were you in a supervisory role?
- Were you a full-time or part-time employee?
- Did you resign or was your employment terminated? If other, please explain.
- If you resigned, what were your reasons for leaving the company? Please list all reasons. (E.G: Geographical Location, Family Circumstances, Career Development etc.)
- If you left for a new position, was the salary offered greater than your salary here? If so, please reveal the approximate percentage difference.
- Can you explain why the new position (if relevant) was more desirable than your position here?
- What might have motivated you to remain in your current position? (E.G: Improved Benefits, More Time-Off, Less/More Travel, Promotional Opportunities etc.)
- What impacted your decision to leave the company? (E.G: Lack of Equipment/Information, Work that did not Challenge, Too much/Too little work, Pressure, Remuneration/Benefits, Other Personnel, Relationship with Supervisor/Co-workers, Morale, Teamwork, Goals, Harassment, Organisational Structure, Physical Environment etc.)
- Can you please tell us about your positive experiences with the company? (E.G: Benefits, Hours, Facilities, Your Supervisor, Co-Workers, Personnel Practices/Policies, Physical Environment/Work Area, Development Opportunities, Level of Support etc.)
- Do you feel as though you received adequate consideration for positions that you applied for? Please explain your answer.
- Do you feel as though your work was fairly evaluated through performance reviews during your employment? Please explain your answer.
- Do you feel as though your monetary recognition was in line with your performance? Please explain your answer.
- Was the frequency/level of your recognition appropriate? Please explain your answer.
- Do you feel as though you received adequate training for your position and the duties you were required to carry out? Please explain your answer.
- Did you have adequate resources, equipment, support and information to carry out your job well? Please explain your answer.
- Was your work environment free of sexual, religious, age and/or racial discrimination? If no, please explain in detail.
- Were you satisfied with the quality and quantity of feedback received from your supervisor about your performance? Please explain your answer.
- Were you kept well informed on what was expected of you in the workplace? Please explain your answer.
- Did you feel free to discuss your career development with your supervisor? Please explain your answer.
State Pension Changes Effective January 2014
There is no single fixed/mandatory retirement age (age at which you must retire) for employees in Ireland. Typically, an employee’s retirement age is set out in their Contract of Employment and this can vary from one company/industry to the next. Alternatively, precedent/established custom and practice within the Company can determine the retirement age of its employees. E.G: if Mary was forced to retire at the age of 62 then Jack should also have to retire upon reaching the same age (assuming the circumstances are the same and that Mary was not ill, for instance).
Contracts provided by employers to their employees usually incorporate a mandatory retirement age (Normal Retirement Date/NRD). This tends to make it compulsory for the employee to retire at a certain age, usually this is somewhere between the ages of 60 and 65. Most contracts also include some sort of provision for early retirement on ill-health grounds etc.
In certain occupations there is a state-imposed compulsory retirement age. This arises for members of An Garda Síochána and members of the Defence Forces, for instance. Gardaí are forced to retire from their roles by the age of 60.
General Practitioners are obliged to retire from the General Medical Services scheme when they reach the age of 70. They may, however, continue to practice privately if they are approved by the Medical Council – the Medical Council will ensure that they meet their fitness to practice criteria.
There is no set retirement age when a person is self-employed, similarly, unless specifically set out in the Company’s Articles of Association, Company Directors are not usually bound by a maximum working age either.
Interestingly, employers are allowed to set minimum recruitment ages provided that the minimum age is 18 or under.
The most common company retirement age is 65 and, until recently, people went straight from receiving their salary from the company to receiving a pension from the State (provided they paid enough PRSI contributions during their working life). The Social Welfare and Pensions Act 2011, however, legislated for certain changes to the pensions system in Ireland effective from 1st January 2014. The State Pension (Transition) has been discontinued for new claimants from 1st January 2014. As a result, the State Pension minimum age has been increased to 66 years for all. It will increase to 67 years in 2021 and to 68 years in 2028.
What this means is that:
- If a person was born between 1st January 1949 and 31st December 1954 inclusive, the minimum qualifying State Pension age will be 66 (rather than 65).
- If a person was born between 1st January 1955 and 31st December 1960 inclusive, the minimum qualifying State Pension age will be 67.
- If a person was born on or after 1st January 1961 the minimum qualifying State Pension age will be 68.
When asked, in 2011, about the changes to the State Pension the Minister for Social Protection, Joan Burton, said:
“Given the changes to State pension age and the other proposals in the Framework, both employees and employers must be encouraged to change their attitudes to working longer. In the workplace employers must seek to retain older employees and create working conditions which will make working longer both attractive and feasible for the older worker. Where this is not possible and people leave paid employment before State pension age they will be entitled to apply for another social welfare payment until they become eligible for a State pension”.
The Transition Pension will not be payable to anyone who reaches 65 years of age after 1st January 2014. Instead, individuals will have to apply for Jobseeker’s Allowance and should be entitled to receive this payment until they become eligible for the State pension. Jobseeker’s Allowance is considerably less per week than the pension is (€188 compared to €230.30).
Employees due to retire from their jobs upon reaching the age of 65 may not be able to afford to do so for another year unless they are able to access savings, draw down a private pension or unless their employer graciously extends the retirement age. To date there is no obligation on employers to increase the retirement age or to somehow bridge the gap financially however, employers nationwide may find themselves receiving requests to increase the retirement age for employees.
Please note that if an employer wishes to increase the contracted retirement age he or she is still obliged to consult the employee in relation to same as written consent is required to change the terms and conditions of employment.
Christmas – Public Holiday Advice for Employers
With the Christmas Period upon us we thought you might find some information on Public Holidays and the relevant employer obligations/ responsibilities around pay useful.
There are nine Public Holidays in Ireland each year - they are:
•New Year's Day (1 January)
•St. Patrick's Day (17 March)
•Easter Monday (Changes every year)
•The first Monday in May, June & August
•The last Monday in October
•Christmas Day (25 December)
•St. Stephen's Day (26 December)
Here is a breakdown of the statutory outline of Public Holiday Entitlements under Irish Employment Legislation: Did you know that employees scheduled to work on a Public Holiday are entitled to an additional day's pay for the day?
For instance, let's take “Employee A” as an example –
“Employee A” works on the day the Public Holiday falls - let's say “Employee A” is a retail store employee and is required to work on St. Stephen's day as it is the first day of the store's seasonal sale.
*On a normal working day “Employee A” earns €100.
This means that “Employee A” is entitled to receive the usual €100 for the hours worked on the Public Holiday as well as an additional €100 - So “Employee A” receives €200 for working on the Public Holiday. If there is any ambiguity in ascertaining what an additional day's pay should equal the employer should look at the last day worked prior to the Public Holiday.
“Employee B” represents an employee who is normally scheduled to work on a day that a Public Holiday falls but is not required to work on that day (for example - an administrative assistant in a bank who typically works 09:00-17:00 Monday – Friday, who is not required to work on Easter Monday).
“Employee B” should receive their normal day's pay for that day as well as not being required to work on the Public Holiday. On a normal working day “Employee B” receives €100. When a Public Holiday falls “Employee B” will not be required to work on this day as the business is closed. “Employee B” will still receive their normal day’s pay.
The one that can cause the most confusion is the case of “Employee C” –
Employees who are not normally scheduled to work on the Public Holiday will receive one-fifth of their normal weekly pay for the day. “Employee C”, for instance, works Wednesday – Friday and receives €100 per day in remuneration. If a Public Holiday falls on a Tuesday, even though “Employee C” never works that day he or she still has the right to benefit from the Public Holiday in some way.
“Employee C” is still entitled to be paid a certain amount as a benefit for the Public Holiday (one-fifth of their normal weekly pay). If this employee earns €300 per three day week (Wednesday-Friday) they are entitled to earn an additional €60 during a week where a Public Holiday falls on a Monday or Tuesday.
The above rules will apply for all Public Holidays.
Equality Officer Awards €40,000 in Gender Discrimination Case
Equality Officer Awards €40,000 to Anne Delaney in response to complaint made against the Irish Prison Service.
Anne Delaney took a case against the Irish Prison Service because she was discriminated against by her employer on the grounds of gender in relation to promotion, training and conditions of employment.
In 2011, Ms. Delaney referred a complaint against her employer under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal. She alleged that the Irish Prison Service discriminated against her on grounds of gender when she applied for numerous posts over several years. Junior or less suitable/less experienced male candidates were appointed to the roles ahead of Ms. Delaney on all occasions.
After reviewing all of the submitted evidence, the Equality Officer was satisfied that the complainant, Ms. Delaney, had established a link between the incidents that she complained about. The Equality Officer considered the incidents as separate manifestations of the same disposition to discriminate. The Equality Officer criticised the lack of transparency stating that she was unsure of the fairness of the selection procedures that were followed. There were no marking schemes available for review and no records to help her to assess what grounds the hiring decisions were based on. It also became apparent that the same senior personnel were involved in the selection process for all posts.
The Equality Officer’s investigation of the complaint concluded that the Irish Prison Service discriminated against Ms. Delaney on gender grounds when she applied for a gym instructor course in 2001, when she applied for an Operational Support Group post in 2009, when she was asked to step down from the post of Acting ACO in August 2010 and again in September 2010 when she applied for an allowance carrying post in the Detail Office.
As a result of her findings the Equality Officer tasked with making the decision on the case ordered that Ms. Delaney be appointed to the position of Acting ACO, and placed on the permanent roster for that position. The Equality Officer backdated this appointment to the 5th of August 2010 and ensured that all consequential employment rights and entitlements, including remuneration and recognition of service, were upheld.
The Equality Officer found that Ms. Delaney had been subjected to discrimination on the grounds of her gender on numerous occasions during her career with the Irish Prison Service. The Equality Officer considered a compensatory award of €40,000 to be just and equitable in response to the distress suffered by Ms. Delaney as a result of the discrimination that she suffered. The Equality Officer felt as though €40,000 was a proportionate, effective and dissuasive sum to award. That component of the award was not in the form of remuneration and, consequently, was not subject to the PAYE/PRSI Code.
The Equality Officer found that the Irish Prison Service’s selection process for the allowance carrying post in the Detail Office (a post applied for by Ms. Delaney in September 2010) was deficient and non-compliant with Equality Legislation. The Equality Officer ordered that the Irish Prison Service ensure that a fair selection process be adopted in all future selections. She also ordered that the selection panel must be trained in the process and that it must set down the criteria in writing before embarking on the selection process. The Equality Officer also ordered that a marking scheme must be adopted and that the weighting should be given under each element. She also directed that notes must be retained for future reference.
DEC-E2013-155
DECISION NO: DEC-E/2013/155
Anne Delaney Vs Irish Prison Service
FILE NO: EE/2011/292
DATE OF ISSUE: 19th of November, 2013
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.
Christmas Parties – Advice for Employers
With the Christmas season upon us again many employers will arrange a work-related social event (Christmas party) in order to thank employees for their efforts and hard work over the past year.
Despite Christmas parties occurring mostly outside of the work place, responsibility still lies with the employer for the protection and safety of their employees. Each year cases concerning bullying and harassment are brought before the Rights Commissioner and the Equality Tribunal. These incidents can be perpetrated at work-related social events like the Christmas party and the employer is often held liable for such action.
For the protection of the organisation and to avoid any such issues, below is a list of preventative steps which can be taken:
- Re-circulate the company’s Dignity at Work policy, which should include reference to bullying, harassment and sexual harassment in the workplace. This policy should clearly state that work-related social events fall under the terms of this policy.
- Ensure that it is clearly outlined to employees that they may be subject to disciplinary action leading up to and including dismissal should they be found in breach of the company’s Dignity at Work policy at a work-related social event.
- Ensure that employees are aware of the company’s Disciplinary and Grievance procedures.
- Re-circulate the company’s Social Media policy to ensure employees are aware of the rules surrounding publishing photographs online in order to prevent any privacy infringements arising or damage being caused to the company’s reputation.
- If the event is scheduled on an evening where employees are required to work the following day, ensure employees are aware of the company’s Absence policy.
- Brief members of Management on the above policies and ensure that they know how to deal with behaviour that could be deemed inappropriate at the event should it arise.
- Advise Management not to discuss issues relating to salaries, performance or career prospects at the event.
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.