Covid-19 news with a HR Twist
June 2015
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.
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.
HSE costs to total €400k on conclusion of Constructive Dismissal case
Constructive Dismissal is the term used when an Employee terminates his or her employment based on the conduct of the Employer.Unlike in an Unfair Dismissals case where the dismissal is deemed to be unfair unless proven otherwise and justified by the Employer - in Constructive Dismissal instances the onus is on the Employee to prove that their resignation was based on poor Employer conduct.
If it is found that the Employee has been Unfairly or Constructively Dismissed then he or she could either be awarded compensation for the loss of earnings suffered as a result of the termination of employment or could be placed back in their original role. Reinstatement is not common practice (particularly in Constructive Dismissal cases) due to the expected tension/ strained relationship between the Employer and the former Employee and due to the amount of time that is likely to have lapsed between the termination of the employment and the resolution of the case. Often the Employee has entered in to a new employment contract elsewhere.
It is important for Employers to be aware of everything that occurs in their workplace as even other Employees’ behaviour that goes unchecked by the Employer could contribute to a Constructive Dismissal case. Constructive Dismissal scenarios can be extremely costly to employers as was proven in a recent Health Service Executive (HSE) case. The claimant in this case was the Head of Ambulance Services for the HSE. The claimant, who lives in Derry, inappropriately used a HSE fuel card for private purposes and, while this would likely have seen him disciplined had he remained in employment, the claimant discovered that he had been found guilty at an early stage and, fearing dismissal/a Garda inquiry, he resigned from his position in 2010.
The claimant’s employer (the HSE) found that he was guilty without first giving him the opportunity to defend himself which meant that the process was seriously defective. The HSE exposed itself with this fundamental flaw in its process and, after his resignation in March 2010; the former Head of Ambulance Services claimed that he had been Constructively Dismissed.
The Employment Appeals Tribunal found that the claimant, who resigned from his approximately €100,000 per year role out of anxiety after learning that he was found guilty of the fuel card offence, had in fact been Constructively Dismissed. However, the Tribunal did not award any financial compensation because of the nature of the employee’s actions prior to his departure.
The claimant appealed the decision not to compensate and, in December 2013, the Circuit Civil Court awarded €250,000 (minus €50,000 for the misuse of the HSE fuel card) because of the catastrophic affect that the Constructive Dismissal had on the claimant’s career.
On the 22nd January 2014, the Health Service Executive was dealt a further blow when the Circuit Civil Court ordered it to pay the legal costs. The HSE is liable for an estimated €200,000 in legal costs that built up during the course of the Court and Employment Appeals Tribunal Hearings.
Whistleblowing in Ireland
In light of the Garda whistleblowing issues that have been unfolding in recent weeks, we thought employers might find some information on whistleblowing useful.
The Protected Disclosure Bill 2013, commonly known as the ‘Whistleblowers Bill’ was published on July 3rd 2013 by the Minister for Public Expenditure and Reform, Brendan Howlin, T.D. The Bill is to establish a comprehensive legislative framework protecting whistleblowers in all industries in Ireland.
The purpose of the Bill is to protect workers who raise concerns regarding wrongdoing (or potential wrongdoing) that they have become aware of one way or another in the workplace. The Bill will offer significant employment and other protections to whistleblowers if they suffer any penalties at the hands of their employer for coming forward with information of wrongdoing in their place of work.
The Bill, which is due to be enacted shortly, closely reflects best practices in whistleblowing protection in developed nations around the world.
According to Minister Howlin the Bill “should instil all workers with confidence that should they ever need to take that decisive step and speak-up on concerns that they have about possible misconduct in the workplace, they will find that society values their actions as entirely legitimate, appropriate and in the public interest”.
Some key elements included in the Bill are as follows:
Compensation of up to a maximum of five years remuneration can be awarded in the case of an Unfair Dismissal that came about as a result of making a protected disclosure. This would be a massive step forward in Ireland’s attempt to match the standards set by other established nations.
It is important to note that limitations relating to the length of service that usually apply in the case of Unfair Dismissals are set aside in the case of protected disclosures.
As a result of this Bill, whistleblowers will benefit from civil immunity from actions for damages and a qualified privilege under defamation law.
The legislation will provide a number of disclosure channels for potential whistleblowers and stresses that the disclosure, rather than the whistleblower, should be the focus of the attention.
Protections for the whistleblower remain in place even where the information disclosed does not reveal any wrongdoing when examined. Deliberate false reporting, however, will not be protected.
These measures, when enacted, should encourage more people to come forward, and feel comfortable doing so, when they become aware of (or suspect) any criminal activity, misconduct or wrongdoing in the workplace.
The Seanad Final Stage debate on the Protected Disclosures Bill 2013 was held on the 20th November 2013 and the Bill was passed by the Seanad. The Bill, which may be subject to minor changes, will soon be debated and passed by the Dáil. Once it is signed by President Michael D. Higgins, the Protected Disclosures Bill 2013 will come into operation and, according to Minister Howlin, he intends for the legislation to be “commenced immediately on its enactment”.
What should employers do?
As it will apply to all employees in Ireland once enacted; employers should establish and clearly communicate a comprehensive ‘whistleblowing’ policy to ensure that staff are aware of and understand the provisions of the Protected Disclosures Bill.
It is important that cultural issues and negative connotations surrounding whistleblowing are addressed within the company to ensure that employees adhere to the appropriate whistleblowing guidelines.
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!
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.
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.
Worker dismissed at probationary period meeting awarded €10k
On 17th September 2013 a former employee of a coach hire company referred his case under Section 20 (1) of the Industrial Relations Act, 1969 to the Labour Court and agreed to be bound by the Recommendations of the Court.
The case revolved around the alleged Unfair Dismissal of the claimant at his probationary meeting.
An employee with less than 12 months’ service cannot avail of the protections offered by the Unfair Dismissals Acts, however, as this particular employee did, employees with less than 12 months’ service can refer a claim under the Industrial Relations Act as the amount of service is irrelevant in these instances.
The employee claimed that he was made aware that he was being dismissed at the meeting but stated that no issues about his performance were raised at that time. The employee described how he was denied his right to appeal the decision as his employer either claimed to be “unavailable” or simply “failed to respond” to any correspondence relating to an appeal process.
A Labour Court hearing was scheduled for, and took place on, January 10th 2014.
The employer, who was notified of the hearing, did not attend and did not appoint any representation to attend on his/her behalf.
Given his opportunity to speak, the worker claimed that throughout the course of his probation, he was never told of any issues with his performance. He went on to describe how he was not afforded his right to query why he was dismissed and was not given any opportunity to appeal the decision made by his employers to terminate his employment at that time.
As there was no representation on the part of the employer the employee’s claims went uncontested.
With the evidence presented to it, the Court decided that the process used in deciding to dismiss the claimant fell short of the standards of fairness that a reasonable employer should exhibit.
The Court, satisfied with the evidence of the claimant, ruled that he be compensated in the amount of €10,000. This figure was in full and final settlement of all claims arising from this dismissal.
The determination in this case should encourage all employers to ensure that they follow Labour Court approved procedures with extreme care when dismissing an employee - even when doing so during a probationary period.
Employers should note from this case that all employees, including those who are dismissed during probation, are entitled to be afforded details of the reasons why they are being let go and should also be offered the right to appeal the decision to terminate.
As should be the case all employees, even employees on probation, are entitled to natural justice.
How to avoid an unfair dismissal claim when making someone redundant
Redundancy is a minefield if you take chances. You must remember that employees now know their rights better than ever before. They have lived through a time when friends, family and work colleagues have been laid off - there is also a lot of information readily available for them online.
Employees have picked up a great deal of information about their rights. We say to Employers "your employees know their rights - do you?" Some businesses are now facing into a second phase of redundancies. In that instance, you can be guaranteed that staff know their entitlements even better than they did for the first phase. If you don't follow process, or if you make a false move, it could cost you - you could quite easily end up in the Labour Courts with an Unfair Dismissal case on your hands.
Unfair Dismissal cases are very common these days and they are very difficult for employers to win as the onus is on the employer to prove that he or she made the correct choices when letting someone go. Proving that a redundancy, for instance, was necessary is essential - making the position, not the person, redundant is crucial - an employer cannot make an employee redundant and then hire a new staff member to carry out the same tasks the following week. Commissioners will scrutinize every detail and decision and will want to see that the employer has dotted every "I" and crossed every "T".
Employers have a 50/50 chance of leaving Labour Court hearings with a large figure to pay out - it is important to remember that a huge number of cases are also settled prior to court proceedings so the odds are heavily stacked against the employer coming away from the Court with no fine on their hands.
Without a doubt redundancies can be required to keep a business viable. Employers need to ensure that they make their decisions based on what's best for the business - not because they want to get rid of Danny the storeman who you feel hasn't done a tap for years. Before making people redundant, look at the business overall and see what areas are suffering a downturn, what areas are picking up, and how best you should react to changed circumstances.
A Selection Matrix will help to clarify your thoughts and take the personalities out of the decision - and also ensure that no-one can accuse you of using redundancy simply to remove people you don't like from your company. As a business owner or manager, you are entitled to make decisions that make business sense. So establish the logic of any decision before you make it.
Searching Employee Belongings Appropriately
Many employers have experienced theft by an employee in the workplace and, consequently, need to put certain measures in place in order to protect the profits of the company. It is the policy of some companies to search employees’ personal belongings when they are leaving the work premises. Employers can also reserve the right to search employee lockers and vehicles if this is agreed with the employee in advance.
If the employer wishes to have the option to carry out personal searches then it is crucial that all details surrounding these searches are clearly communicated to the employees in the contract of employment. Employees sign this contract and by doing so agree to the policies and procedures contained therein.
If an employer reserves the right to search an employee’s belongings then he or she must do so in a dignified manner – giving the employee appropriate levels of privacy. There are several significant procedures to observe when performing a personal search. The individual carrying out the search should be in a management position and, in the interest of clarity; the employees should be made aware in advance who it will be.
The location of the search is also something that should be considered very carefully – it is important to maintain consistency and to carry out searches in an area that offers privacy to the employee involved. Employees should be notified of the location of the search and, ideally, it should be out of the view of customers and other employees. The shop floor is not appropriate search setting – the canteen is not suitable either.
Ideally the area should be covered by CCTV in order to prevent a “he said she said” situation from arising. If this is not possible then a witness should be present so that this scenario is avoided. Either way discretion is of cardinal importance.
As is procedure with airline security screening a male should search a male and a female should search a female, although, as the searches
should not involve body contact this is less of a priority. It is essential
that the employee is asked to open his or her bag, for instance, and that the person performing the search doesn’t breach privacy by putting their hands into the employee’s bag or on the employee’s person.
Employees should be asked politely to remove any suspicious items from their bag for further inspection – the item/items should be placed on a clear surface in order to ensure that there is no confusion over what was actually in the bag. The searching employee (management/security where possible) should never assume that an item has not been paid for. If the item in question was from the store then the employee should be asked to produce a
receipt for same.
Further action can be taken if the employee cannot furnish proof of purchase. When an employee purchases an item in the store during the working day it is good practice for companies to put in place a policy where the bag is sealed and the receipt is attached to the bag. This removes any ambiguity.
Some companies will carry out spot checks on employee belongings rather than checking them on a daily basis – it is vital to be fair and to ensure that the same employees are not targeted all the time.
Not following appropriate procedures can lead to employees being awarded large sums of money.
Average Award in Unfair Dismissal Cases on the Rise
According to the Employment Appeals Tribunal Annual Report 2011 the number of cases annually referred to the Tribunal increased three fold during the Irish economic recession (to a high of 9,458 cases in 2009).
The average number of annual referrals before the recession had plateaued at approximately 3,500.
Statistics for Unfair Dismissals cases:
The average compensation awarded by the Tribunal in Unfair Dismissal cases has risen dramatically in recent years.
For the year ended 31st December 2009 the average compensation in Unfair Dismissals cases was €11,476. In 2010 it was €16,064.05 and in 2011 it was €18,047.85.
This is a trend that employers really need to pay attention to as large sums of money like this can seriously damage a company.
It is crucial to stay up-to-date with employment legislation and to follow appropriate procedures when dealing with employee matters.
Why Companies are choosing to Outsource their HR
The number of cases annually referred to the Employment Appeals Tribunal increased three fold during the Irish economic recession and the average compensation awarded by the Tribunal in Unfair Dismissal cases rose from €11,476.00 to €18,047.85 between 2009 and 2011.
During this time of economic hardship Employers must pay even closer attention than ever before to their expenditure. Many organisations are forced to downsize and - in this era of increased Employee Litigation - making sure you follow appropriate procedures in redundancy or disciplinary scenarios, for example, is growing in importance.
It is at times like these that Companies need to concentrate on their Human Resource functions even more. Some elements of HR, however, can be both complicated and time consuming – an enormous burden on Employers. In recent years the focus has moved towards legal compliance (which can be a minefield with all of the pieces of Employment Legislation currently in operation) and administrative processes that can slow down the productivity of the firm.
For SMEs in particular, it makes a lot of business sense to outsource HR tasks as firms specialising in the field can improve efficiency dramatically. Outsourcing allows Companies to offload work that isn’t part of their core business. It also saves money. At a Company that doesn’t have the funds to hire specialists outsourcing can allow it to gain access to a vendor’s services when required as well as the expertise and wealth of experience that they have accumulated – all at an affordable price.
While SMEs don’t have the same number of Employees as larger corporations and multinationals they still require the same HR elements on a smaller scale. For instance, they still need to recruit staff, they still need to abide by the vast array of Employment Laws and still require Employment Documentation (Contracts of Employment etc.).
Although some Companies do it, most SMEs cannot justify spending a large portion of their annual budget setting up a HR department comprehensive enough to incorporate the abundance of skills required to achieve a smooth-functioning, compliant working environment. Consequently, more and more Companies are choosing to outsource operations like HR and are directing vital, scarce, finances and resources towards other core/revenue-generating areas of the business.
HR Companies deal with all features of Human Resources comprehensively. They have a base of specialist Employees who are trained and experienced in all areas of Employment Law – meaning they are fully equipped to deal with any Employee Relations issues that arise in the workplace. Engaging the services of HR professionals gives Employers access to a bank of relevant knowledge and experience. HR Companies are well prepared to support or advise SMEs without costing an arm and a leg. They keep up-to-date with all changes in Irish Employment Legislation and are able to offer better support and guidance than the client can attain in-house. Navigating Government regulations can be a draining activity for Employers, - it can be a time consuming and complicated process, however, it is what HR advisors are trained to do.
HR firms can do a lot more than you might think – not alone do they have a top-class portfolio of skills, knowledge and experience concentrated in this specific area, they can offer a range of services and support at an extremely affordable price. Some HR Companies provide comprehensive services for as little as €100 per month – Hiring a HR Employee, even on a part-time basis, would cost far in excess of this. Similarly, many Employers currently engage the services of Solicitors to prepare Contracts of Employment and other Employment Documentation – this can also be an extremely costly process.
HR Companies prepare Employment Documentation for their clients and on top of that are there to advise on all individual Employee related issues – discrimination claims, rest and annual leave entitlements, disciplinary and redundancy procedures, dismissals, grievances and much more. Lots of Companies operate outside of office hours and so some HR Companies even provide 24/7 advice lines for their clients meaning a client will never have an anxious wait for an answer. HR firms also provide support to existing HR departments within Companies - the level of service and associated costs are completely dependent on the needs of the individual Company.
HR firms are growing in popularity. In the past outsourcing was often a difficult process because of the issues distance can sometimes create. Thanks to the advances in technology, however, dedicated HR experts are only a couple of clicks or a phone call away – so Human Resource emergencies can be dealt with on the spot.Dignity at Work – Workplace Racism at an Alarming Level
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.
Last week 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 over the last 12 months had jumped to a staggering figure – They dealt with 120 individual racism cases in the past
year. 52 of these instances were reported in June/July of 2013 alone marking a huge increase when compared to the same period in 2012 when just 3 incidents were reported.
The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence.
The most commonly reported setting for racism was the workplace – where a massive 20% of reported incidents occurred.
Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity.
Labour Court Ends Zero-Hours Contracts For HSE Home Helps
The Labour Court has issued a recommendation giving improved terms and conditions to Home Help workers employed by the Health Service Executive (HSE).
The recommendation, which is binding under the terms of the Haddington Road Agreement, was issued on 18th September, 2013, and will affect the employment terms and conditions of approximately 10,000 workers. It is important to note that this agreement only applies to Home Helps who are employed by the HSE. Individuals employed by private companies or not-for-profit providers are not covered by this Labour Court recommendation.
Services Industrial Professional and Technical Union (SIPTU) has been campaigning since 2009 in a bid to secure adequate contracts and security of earnings for its members. The Union has welcomed the Labour Court decision which brings an end to the extensive system of zero-hour contracts. Paul Bell, SIPTU Health Division Organiser, stated that the agreement put the terms and conditions of Home Helps on a “firm and binding platform for the first time since the community service was established thirty years ago”.
A Zero-hours contract is a type of employment where an employee must be available for work but does not have specified or guaranteed hours or a formal roster. This can cause challenging circumstances for employees where the hours of work as well as earnings are unpredictable.
This Labour Court agreement provides for the issuing of annualised contracts guaranteeing a minimum of seven to 10 hours of work per week for each Home Help. Caroline Jenkinson, Labour Court Deputy Chairman, explained that “the number of hours to be allocated to each person will be based on 80 per cent of their actual hours worked in the six-month reference period between October 1st, 2011, and March 31st, 2012, with a minimum guarantee of seven hours”.
In addition to welcoming the removal of the zero-hours system Mr. Bell of SIPTU applauded a HSE effort to reorganise and manage the Home Help hours on a county by county basis.
Those who choose not to work under the annualised hour scheme may be entitled to receive compensation of between €2,000 and €3,000 under an exit deal.