Covid-19 news with a HR Twist
June 2015
Drugs and Alcohol Free Workplace
So far as is reasonably possible, employers are legally obliged to ensure the safety and welfare at work of all employees. Likewise, employees have a responsibility to themselves and to their colleagues. The use of alcohol and/or unauthorised drugs may disturb the safe and efficient running of a business. It can hinder the health and safety of employees within the organisation as well as the customers and other stakeholders.
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The use of drugs or alcohol by an employee can lead to performance/productivity issues. It can make concentration very difficult for the person in question. Work related tasks can take more time and the number of mistakes can often increase, potentially costing the Company, individual concerned and other employees dearly.
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Another common consequence of alcohol or drug use is the loss of faculties. This may lead to an inability to properly assess danger which can, in turn, bring about higher accident levels when driving to or from work, or being more prone to having an accident or causing an accident when at work.
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Absence from work is another likely outcome when using alcohol or drugs in an excessive or irresponsible manner. Other related lapses such as lateness and disproportionate levels of sickness, etc. are also common.
Companies should operate a ‘zero tolerance’ policy when it comes to drugs and alcohol and
employees should not be permitted to work while under the influence of drugs or alcohol under any circumstances. Employees must adhere to all medically prescribed drug instructions and if the medication is likely to cause any side effects that could impair the employee’s levels of concentration or ability to carry out his or her work then he or she should communicate this to Management.
If an employee’s performance or attendance at work is affected as a result of alcohol or drugs, or the employer believes the employee has been involved in any drug related action/offence, disciplinary action may be required. Dismissal may be warranted in severe circumstances.
It should be clearly communicated to employees that anyone involved in the unlawful possession, use, sale or manufacture of controlled substances or illicit drugs etc. on Company premises, in Company vehicles/work sites or during working time will be subject to disciplinary action up to and including dismissal. They should also be referred for prosecution.
Companies should also include a drug and alcohol testing policy in their employee handbook to improve their rights in these situations.
Smoking regulations for employees:
In line with statutory provisions companies are obliged to operate a strict smoke-free
workplace policy. Employers should make their employees fully aware that any member of staff who breaches this policy will be subject to disciplinary action up to and including dismissal. It is imperative that employers enforce the law.Leave Entitlements After Surrogacy
Paid leave of absence for mothers, whose babies are born through surrogacy arrangements, falls outside the scope of the law.
In September 2013 The European Court of Justice found 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. 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 European Court of Justice which found that the woman did not have any automatic right to Adoptive Leave.
The legal opinion of the Advocate General stated that her 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 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.
Rights to Maternity and Adoptive Leave defined:
If an employee becomes pregnant while employed in Ireland she is entitled to take Maternity Leave. This entitlement extends to all female employees regardless of their length of service and the number of hours worked per week etc.
Since March 1st 2007, employees have a statutory right to 26 weeks’ Maternity Leave. A further 16 weeks’ Additional Maternity Leave is available to them should they wish to take advantage of it. Employees are not obliged to avail of the entire period of leave open to them; however,
they must take a minimum of two weeks prior to the birth and at least 4 weeks after giving birth.
If the baby is born prematurely then Maternity Leave starts on the day the baby is born.
Employees are obliged to notify their employer of their wish to take Maternity Leave as soon as is reasonably practicable (not later than 4 weeks prior to the desired commencement date). Employees must produce a medical certificate confirming the expected birth date. Employers must give paid time-off for doctor/midwife recommended medical appointments for all
pregnancies and employees are also entitled to attend one set of antenatal classes during one pregnancy. The employer should be given written notice 2 weeks in advance of such appointments. Expectant fathers are also entitled to be paid by their employer while attending one set of antenatal classes.
While some do, it is important to remember that employers are not obliged to pay employees while they are on Maternity Leave. Employees who have contributed enough PRSI can apply for Maternity Benefit from the Department of Social Protection. Employers, who do continue to pay employee salaries during Maternity Leave, often require the employee to forward to them any
Maternity Benefit Payment from the Department of Social Protection.
Most employees do not have any right to remuneration from their employer during Additional Maternity Leave and there is no state benefit payable during this time, however, employees are still entitled to avail of this extra 16 weeks away from the workplace immediately after the conclusion of their regular Maternity Leave. It is important to note that Employees must
apply to their employer in writing 4 weeks prior to the conclusion of their Maternity Leave if they wish to avail of this Additional Maternity Leave.
Employees are protected against discrimination or loss of employment through redundancy or dismissal on grounds relating to pregnancy and Maternity Leave. Employees must give notice of their intention to return from Maternity Leave at least 4 weeks prior to doing so. Employees must return on the same terms and conditions as when they left (unless this in not reasonably
practicable).
There is an obligation on the employer to carry out a specific risk assessment for employees who are pregnant, and for those who are breastfeeding or who have just given birth, in order to assess whether there are any workplace hazards for these employees. Should this risk assessment determine that hazards (that cannot be eliminated) exist the employee will be
moved to alternative work or, if this is not feasible, the employee will be granted health and safety leave. The employee is entitled to payment from the employer in respect of the first 21 days of such health and safety leave and can apply for social welfare benefit for any period thereafter.
Adoptive Leave:
When an employee is adopting a child she is entitled to a minimum of 24 consecutive weeks’ ordinary Adoptive Leave starting on the day of placement of the child. Only the adoptive mother is entitled to avail of Adoptive Leave from employment, except in the case where a male is the sole adopter.
There is no statutory obligation on employers to provide pay to employees while they are on Adoptive Leave – some companies, however, do offer this benefit to employees. Individuals may be entitled to Adoptive Benefit from the Department of Social Protection.
Employees are also entitled to take 16 weeks' additional unpaid Adoptive Leave immediately following the period of standard Adoptive Leave. As is the case with Additional Maternity Leave, Employees must apply for the Additional Adoptive Leave in writing 4 weeks prior to the end of ordinary Adoptive Leave. In special circumstances, for instance cases involving foreign adoption, Additional Adoptive Leave may be taken at a time not directly following the regular Adoptive Leave period.
An employee’s entitlement to Annual Leave and Public Holidays will continue to accrue as normal during Maternity Leave and Adoptive Leave.
It is essential for employers to remember that, similar to other forms of protective leave, employees are entitled to return to the role they held immediately before commencing Adoptive Leave, subject to the employee having notified the employer of the intention to return to work, not later than four weeks before the date of expected return.
Arm Your Company with the Best Human Resources Support
Since 2001 The HR Company, B2E Ltd. has been successfully providing a cost-effective HR and advice support service(s) for small to medium sized businesses (SMEs) across Ireland. The HR Company also assists several large corporations and multinationals with their HR operations. With so many pieces of employment legislation in place in Ireland it is a challenge for companies to ensure that they are fully compliant on all counts. The HR Company is an Irish-owned company headed up by Philip Carney, former head of HR for Microsoft’s European Operations Centre, and Angela O’Grady, former Staffing and Recruiting Manager. A team of 20 HR specialists provide peace of mind for Employers by guiding them on all aspects of Irish Employment Law.
The HR Company provides a very affordable 24/7 protection service to those who wish to offload the burdens and risk associated with HR activities. Whether it relates
to disciplinary procedures, annual leave, redundancy or anything in between; a dedicated account manager is at the end of a phone to guide Employers and help insulate companies whenever a query about best practices in HR arises.
Not only does The HR Company provide bespoke employment documentation to ensure companies pass a National Employment Rights Authority (NERA) inspection, tailored disciplinary letters and any other relevant material are prepared by dedicated account managers to ease the load on the Employer. The HR Companyacts as the eyes and ears of the Employer on all HR related issues – protecting companies by keeping them informed on any relevant legislation updates.
In this era of increased employee litigation employees know their rights – companies should shield themselves against the risk of a costly dispute by arming themselves with the best on-call
support.
Probationary Periods in the Irish Workplace
Employment references for prospective employees can be great indicators of employee skills or characteristics and they should always be thoroughly vetted. However, for various reasons, they may not always give a true and present reflection of the candidate or they may reflect what the employee’s capabilities were at a different time and this may not necessarily match their current skills. References can also depict suitability for a role that is dissimilar to the one being filled. For this reason it is advisable for employers to engage new members based on multiple evaluations to protect themselves and to ensure not to waste any time or resources on someone who is not adequately equipped for the role.
An applicant’s cover letter and curriculum vitae, as well as the resulting interview(s), can tell an employer a lot about the potential new employee - it is not uncommon, however, to ask shortlisted candidates to perform competency-based assessments or aptitude tests so that the employer can acquire a full picture of the candidate’s abilities and determine whether or not he or she is the right fit for the vacancy. It is customary for employers to hire new members on a probationary period of 6 months or a term not dissimilar to this.
This probationary period does not prejudice the Company’s right to dismiss in accordance with the notice provisions contained in the employee’s individual statement of main terms of employment, or without notice for reasons of gross misconduct, should this be necessary.
This period should be used by the employer to fully assess the employee’s work performance and establish suitability. If the work performance is not up to the required standard or the employee is considered to be unsuitable the employer should either take swift remedial action or terminate the employment, without recourse to the disciplinary procedure.
At the end of the probationary period the employee should again be reassessed. If he or she has not reached the required standard the employer should, at their discretion, either extend the probationary period in order that remedial action can be taken or terminate the contract of
employment.
The probationary period should not in any case exceed eleven months in total. The employee should receive notice of the Company’s intention to extend the probationary period before or at the end of the initial 6 month probationary period.
A clause should allow that any continuous period of absence of four weeks or more would suspend the probationary period until the employee’s return to work.
To avoid any risk of discrimination, policies (like the probationary period outlined above) should be fair and consistent and should apply to all new employees throughout the Company. In disciplinary proceedings, when dealing with employees on probationary periods, progressive steps can be skipped but it is a common misconception that fair procedures and natural justice need not be adhered to during the probationary period.
The Unfair Dismissals Acts 1997-2007 will not apply to the dismissal of an employee during a period at the beginning of employment when he/she is on probation or undergoing training provided that:
•the contract of employment is in writing
•the duration of probation or training is one year or less (including annual leave) and is specified in the contract
It is important to bear in mind that this exclusion from the Acts will not apply if the dismissal results from trade union membership or activity, pregnancy related matters, or entitlements under the maternity protection, parental leave, adoptive leave and carer's leave legislation.
Grievances in the Workplace
It is essential for companies to have a Grievance Policy in place so that employees know the correct procedure to follow when addressing problems or concerns regarding work, Management or another staff member. The policy should also ensure that employees can formally raise a grievance regarding any decisions or actions taken by their employer. Employees should be encouraged to make Management formally aware of situations where they feel that a policy or procedure is not being followed or applied correctly to all employees.
It is understandable and acceptable that when people work together misunderstandings, concerns or problems can arise. Companies should implement a culture of openness as well as a willingness to listen and co-operate. The hope here is that issues/misunderstandings can be resolved informally in an efficient and an effective manner. However, where such issues remain unresolved they can become grievances. Employees should be encouraged to seek resolution of an issue by utilising the Company’s Grievance Procedure.
Sample Grievance Procedure
1) Staff should approach their Manager in the first instance to arrange a meeting to discuss, and attempt to resolve, the problem/concern. (See point 4 below for procedure when the grievance involves the Manager). The employee should be asked to document their grievance in writing. This is very important. 2) The employee should be allowed to have a colleague (of their choice) accompany them at the meeting for support purposes. 3) The issue should be discussed in detail and a reasonable timeframe for resolution should be worked out (1 working week is a reasonable timeframe in most instances). 4) If the employee is not satisfied with the outcomeafter the relevant time has elapsed, he or she should appeal to the General Manager. If the initial grievance relates to an employee’s direct Manager then he or she should skip directly to this stage. 5) The problem/grievance should be discussed in detail once again with the General Manager and a reasonable timeframe for resolution should again be given (typically 1 working week is sufficient; this timeframe may vary depending on the severity of the issue/type of complaint). 6) If the employee is dissatisfied with the outcome of the final stage of the procedure then further recourse should be made available and the employee should be made aware that he or she can request a meeting with a Company Director. 7) The issue should be discussed for a third time and a reasonable timeframe for resolution given (again, depending on the severity of the issue, 5 working days should be sufficient). 8) The decision, following the exhaustion of the entire process outlines above, should be final and no further Company appeal need be entertained. 9) If the employee is still unhappy with the outcome he or she should then choose to seek recourse through external bodies.Click the below image to download your Guide to issuing Contracts of Employment
Illness Benefit “Wait Period” Extended from 3 to 6 days – Budget 2014
Sick pay from employers is not a statutory entitlement. It is up to the employer to decide whether or not to pay employees while they are out of work sick (once all employees are treated equally). Employers are obliged to provide details of their sick pay policy in employment contracts.
During times of incapacity or illness the employee can apply to the Department of Social Protection for Illness Benefit (once the employee has paid enough in PRSI contributions he or she should be entitled to Illness Benefit).
If it is Company policy to continue to pay employees while they are ill or incapacitated, the employer often requires that the employee signs over any State Illness Benefit received to the Company.
A Budget 2014 announcement confirmed today (15th October, 2013) that the number of
“waiting days” for Illness Benefit will be increased from 3 days to 6 days from 1st January 2014.
What this means is that an employee will not be entitled to receive Illness Benefit for the first 6 days of any period of incapacity for work. This is more than one full working-week.
This has the potential to significantly affect a large number of people - employees and employers alike. The extension, which is said to save the state €22million, will negatively impact employees who work for companies that do not pay for sick leave – doubling the number of days that must elapse before they are entitled to receive any income.
The decision will also have an impact on companies who continue to pay employees during periods of illness or incapacity but recover some of the costs of doing so by forcing employees to sign over any State Illness Benefit received as, from January of next year, the employer will not now receive any refund for the first 6 days of absence.
More cuts in Maternity Benefit – Budget 2014
The Budget 2014 announcement that Maternity Benefit is to be capped at €230 per week has significant implications for numerous employees and employers alike.
The current upper rate of €262 per week is an entitlement enjoyed by the vast majority of women in Ireland claiming Maternity Benefit. The reduction by €32 per week, which will be effective for new Maternity Benefit claims from January 2014, may discourage women from having children. Alternatively, it may force mothers to avail of shorter periods of Maternity Leave than they would like because they simply cannot afford to remain out of the workplace for the full 6 month period.
The reduction of €32 per week over 6 months will see many new mothers lose out on €832 in Maternity Benefit.
Some employers pay the difference between the Department of Social Protection Maternity Benefit figure and the employee’s regular salary (a "top-up" amount) as a gesture to employees so that they do not suffer major financial implications while on Maternity Leave.
The Budget 2014 decision to reduce the amount paid by the State means that employers who cover the difference between Maternity Benefit and an employee's regular salary will now have to find an additional €832 per employee over the 6 month period in order to maintain the same level of maternity pay for employees while they are availing of maternity leave.
Click the image below to download your guide to Public holiday Entitlements
Confidentiality is Paramount
Confidentiality refers to a situation in which information must be kept secret or private. Confidentiality is extremely important in most businesses as companies deal with sensitive information on a regular basis. This sensitive/secret data could relate to classified projects, clients, suppliers, employees, company finances, trade practices/agreements or a number
of other areas. For several reasons, it is imperative that this type of information remains confidential and that it is only accessible to approved/authorised individuals and groups.
Employers who deal with confidential matters, or who want their employees to use discretion with certain details that they learn throughout the course of their employment, should discuss confidentiality in their Employee Handbook.
An Employee Handbook, often referred to as the employee manual, is a document containing information about the Company and its policies and procedures. It is given to employees by
their Manager/Employer and employees should have to acknowledge (in writing) that they have read and understand it.
This manual is an excellent place to compile all important information pertaining to the Company rules and regulations. It can provide very useful details for new staff during the induction process; however, it can also be a good reference point for existing employees. An Employee Handbook gives clarity to employees, advises them in many situations and creates a culture where problems are addressed in a consistent and fair manner. Employees will know what to expect in certain scenarios because a comprehensive employee handbook outlines all of the relevant procedures.
An Employee Handbook communicates workplace and HR policies and can protect a business from expensive disputes with employees.
Some examples of items that should be discussed in the Employee Handbook are as follows:
- Annual Leave Entitlements
- Maternity Leave
- Performance Management
- Probation
- Discipline
- Bullying and Harassment
- Drugs/Smoking Policies
- Dress Code
Where relevant, confidentiality and employer expectations surrounding this should also be included in an Employee Handbook.
Employers should ensure that employees keep the following sensitive information confidential -
• Information that has been acquired during, or in the course of employment, or has otherwise been acquired by the employee in confidence;
• Information that relates to customers, suppliers or that of other persons or bodies with whom the Company has dealings of any sort;
• Information that has not been made public by, or with Company permission.
The Employer should ensure that all such information should remain confidential, and, save in the course of business or as required by law, should ensure that employees know that they are
not allowed to disclose the data to any person without the Company’s prior written consent (whether before or after the termination of employment).
Employees should have to exercise reasonable care to keep safe all documentary or other material containing confidential information. Employees should also be obliged to return any such material in their possession to the Company at the time of termination of employment, or at any other time upon demand.
Redundancy Explained
Without a doubt redundancies can be required to keep a business viable. Employers need to ensure that they make their decisions based on what is best for the business - not because they want to get rid of Danny the storeman who they feel hasn't done a tap for years.
Before making people redundant, Employers must look at the overall business and see what areas are suffering a downturn, what areas are picking up, and how best they can react to changed circumstances.
A Selection Matrix will help to clarify the Employee strength and weaknesses and take the personalities out of the decision - and also ensure that no-one can accuse the Employer of
using redundancy simply to remove people the Employer doesn't like from the Company.
As a business owner or manager, the Employer is entitled to make decisions that make business sense. So establishing the logic of any decision before making it is important.
There is a strict redundancy selection process that has to be followed when making job roles redundant. Remember that it is the role that is made redundant rather than the Employee – One cannot make an Employee redundant and then hire a replacement in their role the next day.
Proving that a redundancy was necessary is essential and if the correct process is not followed then this could be very costly for the Company and Labour Court action could follow.
When making an Employee redundant, you should:
*Invite the Employee in question to a meeting, making them aware of what it is about e.g. the closure of the business/need to downsize etc.
*This meeting should be to inform the Employee that they have been selected for redundancy, or, in other words, it is giving them their notice of redundancy. The Employer should make the Employee aware of the reason(s) for this selection etc. at this stage.
*At the meeting, the Employer should ask the Employee to think about alternatives to this redundancy and these options can be discussed at the second meeting to explore whether any of these alternatives are viable options to save this Employee’s job. The Employee may request a pay cut, to be laid off for a period of time, reduced working hours etc., (all of the options
mentioned should have already been ruled out by the Company in coming to the decision of making a position redundant). If there is a potential transfer situation, this may arise as an alternative to the redundancy.
*The Employer should end the meeting by telling the Employee that he/she will be meeting with them again. The next meeting should be scheduled more than 3 days from the first meeting as the Employer should have ample time to consider all suggestions or alternatives to redundancy that the Employee presents.
*The period between the first and second meeting is known as the 'period of consultation'. It
will be at this second meeting that the Employer will discuss any alternatives to redundancy that the Employee suggests. If none of the suggestions are feasible for the Company the Employer will explain the reasons why they are not feasible. At that point, the Employer will go through the terms of the redundancy i.e. what payment the Employee will receive. In advance of this meeting the Employee should be made aware of their entitlement to bring a representative with them – for instance, the employee could bring a colleague or some other person who has an in-depth knowledge of the Company.
*The Employer should tell the Employee that, prior to the meeting, he or she should inform the Company if they intend to bring a representative and, if so, who this will be. This is in case the Employee decides to bring:
a) A Solicitor:
The Employee is entitled to bring a solicitor if they wish (if they do, the Employer too will need to bring a solicitor). The solicitor will not be able to speak on behalf of the Employee, but will be entitled to ask questions on behalf of the Employee.
b) A Trade Union Representative: If the Company does not engage with/negotiate with Trade Unions, the Employer will have to make the Employee aware that they will only recognise this person in a personal capacity, that they do not have a collective agreement with any Trade Union and that they have not, nor will not ever recognise a Trade Union. The Employer should ensure that this is clear to the Employee.
*The use of the RP50 hardcopy form is not in place any longer and as there is no longer any Employer rebate, there is no requirement to lodge the RP50 with the Department of Social Protection. However, in line with best practice, it is recommended that the RP50 form is completed online through the following link: https://www.welfare.ie/en/Pages/secure/RedundancyForm.aspx and printed so that the Employee is signing something to confirm they are receiving their payment from the Company.
*If the Company is not in a position to cover the cost of these redundancies, the Employee can claim their redundancy entitlements through the Social Insurance Fund, however, the Company does need to prove its inability to pay the redundancy amounts to the Department of Social Protection. In this case, the Employee will need the RP50 to claim his/her own redundancy payments.
Employment Appeals Tribunal Awards €8,500 to Former Employee
Unfair Selection for Redundancy Claim succeeds leading the Employment Appeals Tribunal to award €8,500 in compensation. After hearing statements from the former employee (the claimant) and the respondent (a car dealership), the Tribunal was satisfied that a redundancy situation existed, however, the Tribunal concluded that the process was defective and, therefore, determined that the claimant was entitled to a significant award.
The respondent failed to consult the claimant about his redundancy and did not appear to properly consider alternatives before finalising the decision to make the employee redundant – For instance, the employee could have suggested that he work a shorter working week/reduced hours or that he take a reduction in pay. The respondent is obliged to consider these suggestions over a period of consultation, however, the claimant was not afforded this entitlement and was only told the reasons behind the decision to select him for redundancy after asking for these.
The Tribunal found that the claim under the Unfair Dismissals Acts, 1977 to 2007 was justified which is why the claimant walked away with €8,500. This sum was in addition to the redundancy lump sum that he had received when the redundancy first occurred.
Details of this case can be found on the Workplace Relations Website (Case No. UD450/2012) - http://www.workplacerelations.ie/en/Cases/2013/November/UD450_2012.html
This case stresses the importance of following the approved procedures when it comes to redundancy. Not only do you have to prove that a redundancy is required in order to keep the business viable – you must also be able to justify why you made one employee redundant over another. The employer must be able to show that the redundancy process was not flawed. Employers should use a Selection Matrix so he or she cannot be accused of subjectivity (which is what the employee claimed in the above-mentioned case). The employer is obliged to invite the employee to a meeting making them aware that it concerns redundancy. Employers are obliged to give the employee notice of the redundancy and the reasons why the redundancy scenario came about along with why they were selected. 
The employer should have asked the employee in question if they could think of any alternatives to the redundancy and the employer should have allowed for a period of consultation of at least three days before making their final decision. It is also important to allow employees to be accompanied to meetings like this.
Constructive Dismissal leads to €9,000 Award for Former Employee
Constructive Dismissal is the term used when an Employee terminates his or her employment based on the conduct of the Employer. Unlike in an Unfair Dismissals case where the dismissal is deemed to be unfair unless proven otherwise and justified by the Employer - in Constructive Dismissal instances the onus is on the Employee to prove that their resignation was based on poor Employer conduct.
If it is found that the Employee has been Unfairly or Constructively Dismissed then he or she could either be awarded compensation for the loss of earnings suffered as a result of the termination of employment or could be placed back in their original role. Reinstatement is not common practice (particularly in Constructive Dismissal cases) due to the expected tension/ strained relationship between the Employer and the former Employee and due to the amount of time that is likely to have lapsed between the termination of the employment contract and the resolution of the case. The Employee has often entered in to a new employment contract elsewhere.
It is important for Employers to be aware of everything that occurs in their workplace as even other Employees’ behaviour that goes unchecked by the Employer could contribute to a Constructive Dismissal case. These can be extremely costly.
Here is an example of a case where the Employee (the Claimant) was awarded €9,000 after the Employment Appeals Tribunal found that he had been Constructively Dismissed.
The Claimant in this case started working for the Respondent in 2007. There were no issues until late 2010 when a Technician was promoted to Technical Manager. This immediately created a hostile environment and relationships became strained. The Claimant experienced problematic scenarios in the workplace as a result of the Technical Manager’s temper on numerous occasions.
The final occurrence led to the termination of employment for the Claimant. On the Claimant’s final day working for the Respondent the Technical Manager, a physically intimidating individual, entered the shop where the Claimant and his colleague were working. The Technical Manager lifted the Claimant up from his chair by his arm and proceeded to shout at him. The Claimant, who was frightened, attempted to avoid confrontation and turned away. The Technical Manager again grabbed the Claimant, this time by his shoulder, and spun him around while demanding that he not complain. The Claimant said that he didn’t complain, he just answered questions. The Claimant was pulled closer and then told to leave by the Technical Manager.
The Claimant did as he was told but the Technical Manager proceeded to follow him, grabbing him by the neck. At this stage the Claimant was in a state of shock and told the Technical Manager that he was simply working his way through college. The Claimant’s shirt was torn, there were marks on his neck and his hand was bruised after the incident.
After the event, the Claimant called a Senior Manager and told him what had happened. The Claimant returned his keys to the shop and arranged to collect his jacket from his colleague. A series of meetings with the shop Manager and other Senior Managers were arranged. The Claimant was offered a transfer to another shop, however, this other shop was located far
from the Claimant’s home and, therefore, was not a suitable alternative – he could not accept this transfer proposal.
As a result of the meetings the Claimant was given a written warning, however, as no arrangements were made for him to return to a safe workplace he had no option but to resign.
The Claimant established loss for the Tribunal and it was determined that the Claimant was Constructively Dismissed. The Respondent failed in its responsibility to the Claimant by not responding adequately.
Under the Unfair Dismissals Acts, 1977 to 2007, the Claimant was awarded €9,000 as compensation for being Constructively Dismissed.
The appeal was heard at Dublin on 14th October 2013. Case Number: UD669/2012.
A Tough Issue For Employers – Making Employees Redundant
Lots of difficult situations present themselves for employers on a regular basis - The HR Company aims to assist employers with their challenging role by giving pratical advice on all HR related activities -
One of our consultants was asked a question by an employer about redundancy -
Unfortunately, with the recent economic climate, my business simply doesn't justify eleven employees anymore. Things have become very quiet for us and I am struggling to make ends meet. I feel I need to get down to approximately seven employees to ride-out the downturn. What is the process that I should follow in order to stay compliant in this situation?
The HR Company advice:
Many companies are finding themselves in similar situations in this economy. Initially, the owner should determine if this quiet period is one that is expected to be short term or longer term. If the quiet period is expected to be for a few weeks or months the owner should consider placing employees on reduced working hours or possibly laying off some staff for the short term.
Alternatively, if the business cannot sustain the number of employees they currently hold, then redundancies will need to be considered. All other avenues should be exhausted prior to making the decision to make positions redundant. There is a strict redundancy selection process that has to be followed when making job roles redundant. Remember that it is the role that is made redundant rather than the employee – One cannot make an employee redundant and then hire a replacement in their role the next day.
Common employer pitfall:
If a business does not engage with introducing any of these measures with employees in the correct way, the employee may leave the company (i.e. if on a short working week or on lay-off) and claim Constructive Dismissal which could see the employee awarded a large sum. If the correct redundancy process is not followed a former employee may make a claim of Unfair Dismissal or Unfair Selection for Redundancy which can run to high costs for your business in the long run.
Age Discrimination and the Benefits of having a Retirement Policy
The issue of age discrimination has become a significant one in Ireland in this extremely litigious era – it is imperative that employers are very careful in all they say, write and do in relation to age if they aim to avoid a discrimination claim.
Discrimination is defined as the treatment of one person in a less favourable way than another person in a comparable situation on any of the nine specific grounds. It covers not only current and past discrimination but also discrimination that may exist in the future or is imputed to a person.
The Employment Equality Acts 1998-2011 prohibit discrimination in employment based on a person’s age as well as eight other grounds (gender, civil status, family status, sexual orientation, religion, disability, race and membership of the Traveller community). The Equality Authority, in some instances, will provide assistance to individuals who feel as though they have been discriminated against in their employment.
The Equality Tribunal is charged with investigating alleged discrimination on any of the nine grounds and ensures the relevant employment legislation is implemented correctly. The Equality Tribunal can enforce a means of redress or compensation in favour of the employee.
Discrimination based on age commonly occurs at the recruitment stage and in the course of the interview and selection process. The Acts outlaw discrimination in job advertisements and therefore employers need to be extremely careful when drafting such advertisements. An employer cannot seek a “young and dynamic employee” as this excludes several candidates who are not “young” – all interested parties should have equal right to be considered for the role. Similarly, employers should not make it compulsory for applicants to provide their age or date of birth when applying for a job.
It is also frequent in the area of promotion or in redundancy scenarios. An employee cannot be made redundant in order to make way for a “younger” employee.
Employers are entitled to implement certain policies under the Acts, for instance, an employer may set a minimum age requirement (not more than 18 years of age) for potential applicants for a job. The employer can also set a compulsory retirement age but this must be clear and fair for all employees based on their role.
In relation to retirement ages an employer should have a policy in place that covers this. He or she should ensure that the compulsory retirement age is referred to in the contract of employment as well as including a very detailed description of the policy in the company handbook – employees should be required to confirm in writing that they have read and accept the employee handbook.
A Retirement Policy should, at a very minimum, confirm the age at which employees must retire. It should also include a timeline detailing what happens in the run up to the retirement date. For instance, when the employee should expect to be advised of their precise retirement date and details of who they should expect to receive this information from.
Some employers will provide that a member of the HR department meets the employee who is set to retire in order to discuss items like outstanding annual leave, handover procedures, return of company equipment, how any benefits or benefits-in-kind may be managed (a company car, for example, if applicable).
Some companies will also assist the employee who is retiring by providing a pre-retirement course in advance of their departure or by discussing pensions and other financial matters with the individual. It could benefit the employee to meet with a financial advisor in the run up to the employee’s retirement - this is something that the employer could provide. If the employee offers this the option to meet a financial advisor (or similar) it should be detailed in the employee handbook.
The effective management of the retirement process will support the employee in the final stages of their employment with the company and will protect the employer by enabling the appropriate transfer of valuable knowledge from the departing employee to the company.
Companies may offer a fixed-term contract to a person over the compulsory retirement age but there is no obligation on them to do so.
Often the Tribunal finds in favour of the employee in cases relating to discrimination in the workplace, however, one notable age related case was dismissed by the Equality Tribunal when evidence that the employer had an established policy with regard to retirement age and had included retirement age in the contract of employment was provided.
The relevant case decision number is DEC-E2012-086.
Mr. X argued that his former employer had discriminated against him on the basis of age when he was forced to retire at the age of 65. Mr. X had worked for his employer for more than 10 years prior to turning 65. Mr. X, along with his colleagues, were informed of his departure date via e-mail when an invitation to a social event to mark Mr. X’s retirement was sent out.
Mr. X did not want to retire and argued that he was being directly discriminated against on the basis of his age. The employer refuted Mr. X’s allegation and argued that the retirement age of 65 was a “clear term and condition of the contract of employment of employees and a long-standing custom and practice”.
Mr. X’s claim failed as the Tribunal found that his former employer had a “well established practice of retiring its employees” at the age of 65. In certain instances employees who were over 65 were re-engaged on fixed-term contracts for project purposes but that wasn’t the case in all circumstances and it was not the case with Mr. X.
It was an interesting determination from an employer perspective.
The HR Company – Who we are and what we can do for you
We provide a virtual employment law service over the phone and on email. It entails making sure your business is compliant at all times. We issue contracts of employment, handbooks, handle disputes, issue warning letters and basically offer a 24/7 helpline. We provide an unlimited service with regard to any issues in the workplace.
We are a long established Irish owned ‘HR Compliance’ Company, specialising in Employment Law and Legislation, we are based in Sandyford, Dublin with 23 staff.
We support small to medium sized companies in ensuring that your business is compliant from an employee perspective, therefore keeping you legal. We protect you and act as your eyes and ears on all Irish Employment Law issues.
The Cost of the service is €99+vat per month up to 30 employees and thereafter €3.50 for each additional employee minimum subscription of 1 year.
There is a once off set-up administration fee of €200 +vat. This is normally issued via cheque.
In summary, we support associations by providing you with customised and personal advice on any Employment Law issues 24 hours a day, 7 days a week.
· We handle all Grievance Issues in the work place
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Did you know? - That NERA inspectors are currently carrying out investigations to ensure that businesses are compliant with employment law legislation and that labour inspectorates have the right to request access to employment records such as, Hours of Work, Public Holiday Benefits, Annual Leave, Wage Sheets and Legally Compliant Contracts.
Non compliance can result in fines ranging from €650 to €1,900 depending on the offence with a proposal currently in place for the maximum fine to be increased to €5,000 and/or imprisonment of up to 12 months and summary conviction or a maximum fine of €250,000 and/or imprisonment of up to 5 years and indictment.
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· Dealing with the LRC (Labour Relations Commission)
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Your dedicated account manager is available to your for advice and support on all HR issues whenever you need to ask a question.
Why not get your HR documents audited by one of our specialists free of charge and avail of a complimentary 1:1 (no obligation) Irish Employment Legislation consultation at your premises?
In this extrememly litigious era where employees know their rights insulate your company and treat yourself to peace of mind by availing of our free consultation -
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