Covid-19 news with a HR Twist

June 2015

The HR Company provides Mediation to Resolve Workplace Disputes

The HR Company provides Mediation as an Alternative Dispute Resolution practice. Workplace mediation involves a third, neutral party bringing two disputing individuals (or groups) together in order to reach an agreement that satisfies both sides.This type of dispute resolution is gaining credibility as an alternative to court/formal proceedings and The HR Company employs experienced mediators who help your workplace to return to a healthy environment. As many of us know, clashes in the workplace can be extremely disruptive – not just to those directly involved but to bystanders also. Conflicts can arise for multiple reasons – for example, they can be as a result of a dispute over performance or something as simple as a personality clash. Conflict can severely impede an organisation’s ability to run efficiently and can damage employee well-being. It can cause stress, anxiety and depression. Conflict can increase employee turnover and can negatively influence reputation in the industry as well as delaying the Company’s achievement of its corporate goals. Another negative consequence of a dispute in the workplace is a decrease in productivity levels. Similarly, morale within the Company can be influenced in a negative manner as a result of work-related disputes and levels of employee absence can also increase. It is clear that workplace disputes can have extensive side effects. In an effort to resolve matters, parties are regularly forced to attend Employment Appeals Tribunal/Labour Court proceedings. However, this is not always the best course of action as, in our experience; these processes can often lead to a complete breakdown in relationships and can prove to be extremely lengthy and costly. In fact, these methods can often aggravate matters as, typically, only one party is satisfied with the conclusion and resources, including time and finances, have often been significantly drained throughout the process. In some instances, mediation can be an acceptable alternative to court proceedings when disputes arise in the workplace. Mediation is a confidential process where our experienced mediators encourage both parties to discuss all elements of the dispute without fear that their legal position could be compromised or prejudiced. Mediation can encourage a more swift resolution of differences and aims to find a solution that satisfies all parties while avoiding the types of adversarial procedures that have become very common in this era of increased employee litigation. Efficient working relationships can often be restored through the practice of mediation. Mediation is an informal approach to dispute resolution. It can be used in an attempt to resolve a vast range of differences. In our experience, mediation is most effective when introduced at the initial phase of disagreements, however, it can also be availed of later in the process – after Tribunal proceedings have concluded, for instance. At this stage mediation could assist in repairing the relationship between the parties that have been in conflict. When we are engaged by a Company to perform mediation, an unbiased facilitator assists the two parties to a dispute in reaching an agreement by listening to and understanding both sides to the story. The purpose of a skilled mediator is to encourage the parties to arrive at a mutually satisfactory solution. Our role as a neutral third party is not to judge or to determine who is at fault but, instead, to enable the meaningful exchange of information between parties with an ultimate goal of resolving the conflict. The HR Company mediator will not determine the outcome – this should come from the disputing parties. Mediation is morally binding but normally does not carry any legal status. There is usually one mediator or two co-mediators. One significant advantage of mediation is that it tends to be far less of a financial burden when compared to formal proceedings. Both parties to a dispute are encouraged by The HR Company’s skilled mediator to talk very honestly and openly during the process and, as a consequence of that, mediation can assist in the discovery and resolution of the root cause of the conflict that exists in the workplace and can prevent the same situation from arising in the future. This is less likely to be the case in a Tribunal type scenario. Mediation is not always a suitable dispute resolution method, however, if it is determined that it is appropriate then it can involve either an internal scheme or an external provider like The HR Company. Internal schemes mainly exist in larger organisations. During mediation The HR Company’s neutral mediator chairs the process which helps to dispel tension that may have built up between disputing parties. It is vital that levels of tension in the workplace are minimal especially where the parties are expected to continue to work together. The process can take an entire day or more. Either way the process is far less time consuming than going through the courts. Mediation is beneficial because it is a voluntary non-confrontational process – both parties will be more likely to co-operate as neither is obliged to be involved in the process. The stages of mediation are as follows:

Normally, both parties meet with the mediator separately initially so that the procedure can be discussed and so each party has the opportunity to illustrate their ideal outcome.
Usually a joint meeting is then scheduled in order that the issues may be heard.
Next, the issues are explored and an agreement is drawn up. The mediator will support the parties in solving their problems and will assist in ensuring that the agreements are workable. If he or she feels that it is necessary, the skilled mediator will separate the parties and will deal with them individually at various points.
The last stage in the process includes the explanation of responsibilities and the distribution of a copy of the agreement to all involved.

Sometimes, unfortunately, no agreement is reached. If this is the case then nothing that has been discussed throughout the mediation process may be used in any future proceeding should they take place. If you feel as though your employees may benefit from mediation please contact us so that we may discuss the process with you further.

Labour Court rules – ‘Working in the Rain’ allowance to stay

A group of 27 low income cleaners who work for the South Dublin County Council were delighted yesterday, Thursday 20^th March 2014, when they were successful in their fight to keep their ‘Working In The Rain’ allowance which works out at approximately €50 per week per employee. The Labour Court ruling was in response to attempts by South Dublin County Council to abolish the allowance. Brendan O’Brien of SIPTU described the ruling as a ‘significant victory’ as the outcome has been hanging over the workers involved for an extended period of time. The workers, who perform street and park cleaning duties for the Council, are paid between €400 and €500 on average per week so the ‘Working In The Rain’ allowance amounts to approximately 10% of their income each week. The cost of the ‘Working In The Rain’ allowance to the Council is approximately €75,000 per year and the Council claimed that this payment is outdated because all of the employees now have the benefit of protective clothing to ensure they can carry out their duties safely - irrespective of the external weather conditions. The Council claimed that the group of 27 workers affected by this ruling are currently part of a larger group of approximately 140 workers who are all required to work in rainy weather conditions (unless it is unsafe to do so). SIPTU argued that the payment is pensionable and, consequently, to cease paying the allowance would breach the terms of the Haddington Road Agreement. The dispute, which could not be resolved at local level, was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission and, when no agreement was reached there the dispute between the workers and the Council was referred to the Labour Court in accordance with 26(1) of the Industrial Relations Act, 1990. The Labour Court ruled that the Claimants (the workers) are entitled to retain the allowance on a personal to holder basis.

10 tips on Creating a Positive Work Environment

A Positive Working Environment is essential in order to ensure high levels of productivity. This kind of workplace promotes efficiency and makes sure staff are satisfeid in their roles and with their colleagues. A Positive working environment ensures conflict in the workplace is minimal and daily business operations, in general, run smoothly!  

What to do to create a Positive Working Environment...

Build Trust between all stakeholders
Communicate Positively and Openly – Transparency is key
Create Team Spirit – Cooperation and Synergy is hugely important
Be an approachable employer/manager so that issues are raised early
Expect the best from your employees and they will be encouraged to give you their best
Recognise your employees and their hard work and they will always work hard for you
Give credit where credit is due and take responsibility for your actions
Carry out employee evaluations and reviews and make the experience a positive one
Provide a physical environment that is positive – make them want to come to work
Make the work environment interesting – this will encourage creative thinking

These tips are derived from the guidelines set out by the Workplace Relations website http://www.workplacerelations.ie/en/.

Click the image below to download your Staff Suggestions Form

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. On the other hand, some Employers end up trying to balance HR duties in addition to their other responsibilities which can leave opportunities for threats and vulnerabilities to creep in. As time goes by many Employers are realising that assigning a large percentage of their time to one area is not just inconvenient but impractical, too. Juggling all elements of a business without assistance can be extremely difficult and for this reason many Employers are opting for the cost-effective third party route which involves the use of an external HR Company. This gives them enhanced peace of mind and confidence that they are working within the confines of all Employment Legislation. Outsourcing Companies can deal with HR successfully and as a priority so that Employers do not have to concern themselves with the associated time constraints and conflicts. Companies can eliminate exposures they did not even know existed quickly and in a cost-effective manner by availing of the services of a HR Company.

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 they are there to advise on all individual Employee-related issues – discrimination claims, rest or 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.

Reasons influencing decision to co-source:

Improve cost-effectiveness

Reduce administrative costs

Redirect HR focus toward strategy/planning

Allow company to focus on core business

Provide seamless delivery of services

Capitalise on technological advantages/expertise

Improve customer service

Have insufficient staff

Decrease response time to clients

Increase flexibility in handling special needs

Increase level of accuracy

Control legal risk/improve compliance

Tangible Cost Savings:

Reduce employee turnover

Control absenteeism

Efficient use of HR systems & applications

Reduce administration costs

Flexible cost base

Training expense

Hiring costs

Employers must maintain terms & conditions of Employees on Maternity Leave

Equality Tribunal awards €80k to employee subjected to discriminatory treatment. The former employee (the complainant) in this case commenced employment with her employer (the respondent) in 2003 – She was appointed Financial Controller in 2007 and her employment ended in February 2011. She referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 12 July, 2011.

The respondent, who had gone into liquidation by the time the Hearing took place in December, 2013 did not attend the Hearing. The liquidator, who received adequate notice of the Hearing, chose not to attend either. The Hearing proceeded in their absence and the complainant built a case against her former employer in front of Equality Officer, Vivian Jackson.

According to the complainant’s uncontested evidence, she informed her employer that she was expecting her third child in November 2009. She alleged that her employer’s attitude towards, and treatment of, her worsened from this point. She had had a miscarriage in the summer of 2009 and, according to the complainant (Ms. M), her employer (Mr. W) responded to her November pregnancy news with the comment “Jesus Lisa, you don’t hang around”. The complainant gave evidence that a few weeks after this comment her employer again referenced her pregnancy but this time it was in front of clients and his comment shocked her. The complainant gave evidence that Mr. W implied to the clients that he was not happy that she was pregnant and stated that ‘she was meant to stop after two’.

The complainant described an incident in January 2010 where she was involved in a car accident. She claimed that a doctor certified her as unfit for work for a week in order to ensure that she and her unborn baby were unharmed. Even though she did not have access to a vehicle for the period, the respondent told her that she was required to attend work the following Monday. Ms. M complied with her employer’s request because she was fearful of losing her job. In February 2010, Ms. M requested a meeting in order to discuss cover during her maternity leave - this was due to begin at the end of April 2010. Mr. W agreed to hire an employee during the period that Ms. M was due to be on her protected leave. The complainant was under the impression that the new hire would begin work on a fixed term contract, however, during the course of the interview the successful applicant, Ms. S, asked about the duration of the contract and, to the complainant’s surprise, Mr. W said that he was ‘not sure that Lisa will be coming back to work’. The complainant said that she had never implied that she would not return to work and, in fact, not returning was ‘undesirable from a personal and professional point of view and impossible from a financial perspective’. The complainant gave evidence that the respondent ‘froze her out’ – he undermined her with clients and changed arrangements regularly. He also began removing tasks from the complainant. Ms. M believes that this occurred because her employer no longer felt that, with three children, she would be committed to the company. The complainant demonstrated times where she had shown considerable commitment to the company in the past and said that the employer had no reason to believe that her commitment would diminish. The complainant sought a meeting with Mr. W prior to her leaving for her maternity leave – she wanted to discuss her remuneration and benefits during the leave. In the past, the employee had been allowed to keep her company phone and car during the leave and the employer also topped up her state maternity benefit so she continued to receive her normal monthly net income throughout her maternity leave. This time it was different – Mr. W only offered the complainant a top-up payment of €150 per month – far less than what was offered during previous leave periods. Ms. M accepted this. To her surprise, Ms. M was obliged to return her company car and phone for the duration of her leave on this occasion. Ms. M was due to complete her maternity leave at the end of January 2011 and in December 2010 she contacted her employer to give notice of her intention to return to work. She did not receive a response to this e-mail and so she e-mailed Ms. S, who had been hired to cover the period of maternity leave. Ms. S confirmed that Mr. W had received the complainant’s e-mail. Ms. S sent another e-mail on 6^th January 2011 requesting that Ms. M attend a meeting with Mr. W on 14^th January. At this meeting, Ms M was notified that her role of Financial Controller no longer existed in its previous format within the new company structure. Ms M was informed that the role was redundant and that another position was available to her as an alternative. The new position was a more junior role that not only incorporated additional hours but also a 40% reduction in pay. Ms M was not satisfied with this – she found it to be an unacceptable alternative to the Financial Controller role and demonstrated that her original role was not in fact redundant as MS. S continued to perform Ms. M’s original duties and was listed as the company’s Financial Controller on the company website. The complainant researched her position in light of the new role that her employer offered her as an alternative and realised that she was not obliged to accept the offer. The respondent offered Ms. M her original terms and conditions (including rate of pay and hours), however, the role that she was being asked to perform going forward was a clear demotion and a serious reduction in responsibility. She requested to return to her role as Financial Controller. Again it was expressed by the respondent that this role was redundant and he offered her 14 days to decide whether or not to take the new role of ‘Credit Control Manager’. Ms. M said that she was only happy to return to her original role and stated why the new offer was unacceptable in light of the fact that her original role clearly still existed. Mr. W wrote to Ms. M a number of days later rejecting her arguments and adding that, as she had not reported for duty, he considered her to have resigned.

Vivian Jackson, Equality Officer, found that Ms. M had been subjected to a range of unlawful treatments. Her employer made it impossible for her to proceed wither pre maternity leave role and essentially dismissed her. The Equality Officer ordered that the respondent pay the complainant €80,000.00 in compensation for the discrimination inflicted on her.

How to Conduct an Effective Employee Communication Survey

Surveying employees is an effective first step in fixing communication barriers in an organisation. Even if there are no obvious problems, communication surveys can help get an organisation to the next level of performance. Benefits in conducting an employee communication survey and acting on the results include: • improved employee satisfaction • lower turnover • reduced absenteeism • less political infighting • greater levels of manager-worker trust • reduced defect rates • higher customer satisfaction A well-run communication survey can give you these benefits. However, a poorly conducted communication survey can have the opposite effect. Surveys badly planned, rolled-out and followed-up can actually increase employee cynicism and resistance to change. They can also increase employee turnover and absenteeism. This can negatively impact customer satisfaction and your bottom line. Employee Communication Survey Tips So, what do you need to consider before rolling out your survey? Here are some tips. Question types Include in your survey questions that require limited tick-the-box responses, such as Yes/No and Strongly Agree/Agree/Disagree/Strongly Disagree. Including these questions will allow you to perform quantitative analyses that you can use to compare results between different demographics and to use as a benchmark for future surveys. However, equally as important is the provision of free form space which affords employees the opportunity to elaborate on the feedback they have given elsewhere on the form and to discuss in detail anything that has not been covered in the other areas of the survey. A good idea is to run Focus Groups with a random sample of respondents after the survey forms have been collected and analysed. These discussion groups are invaluable in performing a sanity check on your results so far and in teasing out issues that have surfaced in the written survey. Anonymity Guarantee absolute anonymity for the people completing the survey and make this clear in the survey instructions. Some employees will either not complete the survey or give sanitised answers if they believe that their identity will be disclosed with their answers and comments.   Sample size Should you survey the whole organisation/department or a select group? Preferably, survey all employees as this gives everyone a sense of being listened to. If the organisation/department is excessively large or budget is tight, draw a random sample from each of the demographic groups that you will be reporting on. If your selection is not random, the communication survey results will not be representative and you will lose credibility with your employees. If a demographic group comprises 50 people or less, you will need to survey 100 percent of the people within that group. Mode of delivery If the people completing the survey are small in number and at a single location, then hardcopy distribution will not be a problem. As the number of respondents increases and the locations become more dispersed, more consideration will need to be given to electronic distribution. Think about putting the survey on a local intranet or internet web server. To make filling out the employee survey form easy for people, have it so that the form can be completed online. If this is not possible, either send the form by email or put it on an accessible server from which people can download it. If your survey respondents are not comfortable with technology, then be wary of online options and provide plenty of employee support if you decide to go down that road.   Inducements and Reminders Survey participation rates do not tend to be particularly high, typically ten percent or less. You can dramatically improve on this completion rate by conducting some simple follow-up. As you get closer to the communication survey cut-off date (of course, you will have publicised that date with your survey), send out an e-mail reminder or arrange for someone to call the respondents personally. Consider advertising a raffle for all survey participants - this will increase the participation rate (especially if it is a good prize). Distribute results Once the employee feedback results are in and analysed, distribute your findings first to your managers and then to employees. Withholding results from employees will only breed cynicism and distrust and will make getting a satisfactory response rate from your next survey all that more difficult. Break down your results into meaningful groups, such as by department or by location/site. The reporting groupings need to be small enough that people can identify with the group enough for a meaningful action plan to be developed. Be prepared for some kickback from defensive managers. Frank employee feedback is both confronting and jarring, especially for those managers not used to it. Use your best facilitation skills to deliver the key messages, or use a professional facilitator to perform this sensitive task. Follow-up and Rewards A survey conducted with no plan for action is not only a waste of resources but will leave employees asking why they bothered to give feedback to managers on how they felt. Work with each manager to construct an action plan that they agree with. Remember, it is the manager that will be implementing the communication plan, not you. Get back with each manager three or six months later to review how they are progressing with their communication plan and report the results to the organisation. As you see communication practices improve across the organisation, make sure that managers get rewarded.

Force Majeure Leave in the Irish Workplace

There are several types of leave that an employee may be entitled to. Some forms of leave are statutory entitlements and some other forms are not. Maternity Leave, for instance, must be given to employees when they are pregnant. Some forms of leave are paid and others are not. This can depend on statutory obligations and on the terms and conditions set out in the Contract of Employment. Annual Leave is a statutory entitlement and it must be paid by the employer. Sick Leave, however, is not always paid by the employer (this depends on individual company policies). Force Majeure Leave is less commonly discussed. The purpose of Force Majeure Leave is to provide limited, paid leave to enable an employee to deal with family emergencies resulting from injury or illness of a close family member. Force Majeure Leave applies where the immediate presence of the employee is urgent and indispensable (essential). A close family member is defined as one of the following:

A child or adopted child of the employee
The husband/wife/partner (same or opposite sex) of the employee
A parent/grandparent of the employee
A brother/sister of the employee
A person to whom the employee has a duty of care (where he or she is acting in loco parentis)
A person in a relationship of domestic dependency with the employee
Persons of any other class (if any) as may be prescribed

By its nature, an employee will not usually be able to give notice of the need to take Force Majeure Leave. The employee should, however, inform the employer (in writing) of reasons for taking the leave as soon as is reasonable practicable. The employee should provide details regarding the need for the leave and should confirm who the leave was taken in respect of. Employers are obliged to keep a record of Force Majeure Leave taken by employees. Employees will be entitled to: - up to 3 days paid Force Majeure Leave in any consecutive 12 month period; or - up to 5 days in a 36 consecutive month period. Absence for part of a day is usually counted as a full day of Force Majeure Leave. Employees are entitled to receive pay for this type of leave. Employers can grant employees more than the number of days outlined above; however, they are not obliged to do so. Employees are protected against Unfair Dismissal for taking Force Majeure Leave or for proposing to take it. Death is not covered under Force Majeure Leave – Leave taken when a death occurs falls under Compassionate Leave and this tends to depend on employee contracts as well as custom and practice within the workplace.

Employers reducing salaries without consent

If a salary reduction is imposed without consultation or employee agreement, an employee now only has three (rather than four) potential legal opportunities to seek redress from his or her employer. If an employee’s wages are cut his or her first option is to claim Constructive Dismissal under the Unfair Dismissals Acts 1997-2007. Constructive Dismissal is the term used when an employee terminates his or her employment based on the conduct of the employer. In this instance, the employee must be able to prove that their position became unsustainable as a direct result of the involuntary reduction in pay. Secondly, where an employee’s salary is reduced, he or she has the opportunity to bring a trade dispute under the Industrial Relations Acts. The Industrial Relations Acts deal with disputes between employers and workers that are connected with the employment or non-employment, or the terms and conditions of or affecting the employment, of any person. Thirdly, if an employer cuts an employee’s pay, the employee could claim that their contract has been breached. Defending this could prove very costly for the employer. Furthermore, an injunction may be granted to prevent the contract breach/reinstate the original salary. In the past employees whose wages were cut without prior consent had a fourth option. They had the opportunity to take a case (and were likely to succeed) under the Payment of Wages Act 1991. Claims in relation to a reduction in wages, however, may no longer be successful if taken under this Act as a result of a recent Employment Appeals Tribunal determination. The specific EAT case referenced here is an appeal of a Right’s Commissioner decision in the case of Santry Sports Clinic v 5 employees. The employees in the aforementioned case were claiming for an 8% reduction in their pay that was imposed between February and March 2010. Santry Sports Clinic stated that the reduction was essential. According to the employer, all employees received letters detailing the 8% reduction in advance and, while only 30% of employees agreed to the reduction via return letters, no one officially objected or stated that they would not accept the pay cut and so it was implemented as planned. The Employment Appeals Tribunal considered all evidence and representations made at the hearing as well as all other submissions made. The Tribunal noted the High Court decision in the case of Michael McKenzie and others and Ireland and the Attorney General and the Minister for Defence Rec. No. 2009. 5651JR. In paragraph 5.8 of this decision the Judge stated that “the Payment of Wages Act has no application to reductions as distinct from ‘deductions’.” The Tribunal followed the High Court decision on a point of law and, therefore, the appeal was successful and the decision of the Rights Commissioner was entirely overturned in the case of Santry Sports Clinic v 5 employees. This case brought to light the fact that the Payment of Wages Act 1991 refers to “deductions” as opposed to “reductions” and, as a consequence, employees whose wages are reduced without prior consent are now unlikely to succeed if they opt to take a case against their employer under the Payment of Wages Act 1991. This is particularly significant for claims that are currently being processed by the Employment Appeals Tribunal. Employers need to remember that, although this option has essentially been closed off for employees as a result of the above-mentioned High Court decision and the EAT case, they still have several avenues open to them if they wish to take a claim where a reduction of wages has been imposed by the employer without prior consent.

Pension Obligations of Irish Employers

No matter how big or how small your company may be – or whether your employees are part-time, seasonal or fixed-term - every Irish employer is obliged to enter into a contract with a PRSA provider and to provide access to at least one standard PRSA for all ‘excluded employees’.

What are ‘excluded employees’? Employees are considered to be ‘excluded employees’ if:

their employer does not offer a pension scheme, or
they are included in a pension scheme for death-in-service benefits only, or

they are not eligible to join the company’s pension scheme or will not become eligible to join the pension scheme within six months from the date they began working there, or
they are included in a pension scheme that does not permit the payment of additional voluntary contributions (AVCs).

  Even if there is only one ‘excluded employee’, an employer must:

enter into a contract with a PRSA provider (there is no charge for doing this)
provide employees with access to a Standard PRSA
allow reasonable paid leave of absence, subject to work requirements, so that excluded employees can set up a Standard PRSA
make deductions from payroll if required
advise employees in writing (normally on their payslip) at least once a month of their total contribution, including employer’s contribution, if any.

What an Employer is NOT responsible for:

You’re not obliged to give any advice to employees in relation to PRSAs, but you must allow your PRSA provider or intermediary reasonable access to your employees to brief them on PRSAs.

You don’t have to contribute to PRSAs on behalf of your employees, but if you decide to do so, your contributions must be paid to the PRSA provider within 21 days of the end of the month in which the employer contributions are due. And please note that you cannot make any deductions from this payment.

You are not responsible for the investment performance of PRSAs

What are the consequences of non-compliance? Be aware that there are significant penalties for failing to discharge your obligations. The Pensions Board will issue on-the-spot fines and prosecute any employers found in breach of theobligations, so it pays to get it right. As an Employer you may be subject to an on-the-spot fine if: (a) You fail to respond to a request by The Pensions Board to furnish information about their provision of access to a Standard PRSA for ‘excluded employees’ and (b) You do not provide at least a monthly statement to employees showing contributions deducted and employer contributions paid in the previous month. The bottom line is that this is not an issue that you can afford to get wrong. To find out more about your obligations, there’s a very helpful booklet on the Pension Board’s website.

IFG have many years of experience of providing Pension Scheme Design & Risk Advisory services to Irish companies. They would be delighted to answer any and all of your pension queries if you would like to find out more www.ifg.ie .

Equality Officer Awards €40,000 in Gender Discrimination Case

Equality Officer Awards €40,000 to Anne Delaney in response to complaint made against the Irish Prison Service. Anne Delaney took a case against the Irish Prison Service because she was discriminated against by her employer on the grounds of gender in relation to promotion, training and conditions of employment. In 2011, Ms. Delaney referred a complaint against her employer under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal. She alleged that the Irish Prison Service discriminated against her on grounds of gender when she applied for numerous posts over several years. Junior or less suitable/less experienced male candidates were appointed to the roles ahead of Ms. Delaney on all occasions.    

After reviewing all of the submitted evidence, the Equality Officer was satisfied that the complainant, Ms. Delaney, had established a link between the incidents that she complained about. The Equality Officer considered the incidents as separate manifestations of the same disposition to discriminate. The Equality Officer criticised the lack of transparency stating that she was unsure of the fairness of the selection procedures that were followed. There were no marking schemes available for review and no records to help her to assess what grounds the hiring decisions were based on. It also became apparent that the same senior personnel were involved in the selection process for all posts.

The Equality Officer’s investigation of the complaint concluded that the Irish Prison Service discriminated against Ms. Delaney on gender grounds when she applied for a gym instructor course in 2001, when she applied for an Operational Support Group post in 2009, when she was asked to step down from the post of Acting ACO in August 2010 and again in September 2010 when she applied for an allowance carrying post in the Detail Office.

As a result of her findings the Equality Officer tasked with making the decision on the case ordered that Ms. Delaney be appointed to the position of Acting ACO, and placed on the permanent roster for that position. The Equality Officer backdated this appointment to the 5th of August 2010 and ensured that all consequential employment rights and entitlements, including remuneration and recognition of service, were upheld.

The Equality Officer found that Ms. Delaney had been subjected to discrimination on the grounds of her gender on numerous occasions during her career with the Irish Prison Service. The Equality Officer considered a compensatory award of €40,000 to be just and equitable in response to the distress suffered by Ms. Delaney as a result of the discrimination that she suffered. The Equality Officer felt as though €40,000 was a proportionate, effective and dissuasive sum to award. That component of the award was not in the form of remuneration and, consequently, was not subject to the PAYE/PRSI Code.

The Equality Officer found that the Irish Prison Service’s selection process for the allowance carrying post in the Detail Office (a post applied for by Ms. Delaney in September 2010) was deficient and non-compliant with Equality Legislation. The Equality Officer ordered that the Irish Prison Service ensure that a fair selection process be adopted in all future selections. She also ordered that the selection panel must be trained in the process and that it must set down the criteria in writing before embarking on the selection process. The Equality Officer also ordered that a marking scheme must be adopted and that the weighting should be given under each element. She also directed that notes must be retained for future reference.

DEC-E2013-155

DECISION NO: DEC-E/2013/155

Anne Delaney Vs Irish Prison Service

FILE NO: EE/2011/292

DATE OF ISSUE: 19th of November, 2013

With the Christmas Period upon us we thought you might find some information on Public Holidays and the relevant employer obligations/ responsibilities around pay useful.

There are nine Public Holidays in Ireland each year - they are:

•New Year's Day (1 January)

•St. Patrick's Day (17 March)

•Easter Monday (Changes every year)

•The first Monday in May, June & August

•The last Monday in October

•Christmas Day (25 December)

•St. Stephen's Day (26 December)

Here is a breakdown of the statutory outline of Public Holiday Entitlements under Irish Employment Legislation: Did you know that employees scheduled to work on a Public Holiday are entitled to an additional day's pay for the day?

For instance, let's take “Employee A” as an example – “Employee A” works on the day the Public Holiday falls - let's say “Employee A” is a retail store employee and is required to work on St. Stephen's day as it is the first day of the store's seasonal sale. *On a normal working day “Employee A” earns €100. This means that “Employee A” is entitled to receive the usual €100 for the hours worked on the Public Holiday as well as an additional €100 - So “Employee A” receives €200 for working on the Public Holiday. If there is any ambiguity in ascertaining what an additional day's pay should equal the employer should look at the last day worked prior to the Public Holiday. “Employee B” represents an employee who is normally scheduled to work on a day that a Public Holiday falls but is not required to work on that day (for example - an administrative assistant in a bank who typically works 09:00-17:00 Monday – Friday, who is not required to work on Easter Monday). “Employee B” should receive their normal day's pay for that day as well as not being required to work on the Public Holiday. On a normal working day “Employee B” receives €100. When a Public Holiday falls “Employee B” will not be required to work on this day as the business is closed. “Employee B” will still receive their normal day’s pay.

The one that can cause the most confusion is the case of “Employee C” – Employees who are not normally scheduled to work on the Public Holiday will receive one-fifth of their normal weekly pay for the day. “Employee C”, for instance, works Wednesday – Friday and receives €100 per day in remuneration. If a Public Holiday falls on a Tuesday, even though “Employee C” never works that day he or she still has the right to benefit from the Public Holiday in some way. “Employee C” is still entitled to be paid a certain amount as a benefit for the Public Holiday (one-fifth of their normal weekly pay). If this employee earns €300 per three day week (Wednesday-Friday) they are entitled to earn an additional €60 during a week where a Public Holiday falls on a Monday or Tuesday. The above rules will apply for all Public Holidays.

Effective Communication in the Workplace.

Employees and the people on the ground in general, are an invaluable source of information for employers. Whether it is positive or negative, employees can provide a whole host of important feedback for your business - if you take the time to listen to and interpret their comments they can be a real asset to you. Conducting regular meetings between employees and managers is a good way to keep lines of communication open. However, sometimes people are reluctant to speak out in an open forum, particularly where they have something negative to say or where they have an issue involving someone else who is included in the meeting. Employee surveys are an ideal way for employees to share their opinions about their job and work environment etc. Confidential surveys tend to encourage honesty and can prove to be of great assistance to employers. Employee participation should be encouraged. Employees will feel as though their input is valued if attention is paid to their suggestions/recommendations. If action is taken by the employer as a result of employee opinions, morale amongst workers can be increased and relationships between the employer and their employees can be drastically improved. This has a positive effect on productivity. Similarly, as employees leave the company; an exit interview should be carried out. This can be very beneficial for the employer as it can, for instance, give the employer an insight in to the reasons behind the employee’s departure. It can also highlight other issues that exist within the business – issues that management may not necessarily already be aware of. It can also reveal what is working well and where resources should be focused. People tend to be more open and honest about what they are feeling when they know that divulging the information will not have any negative bearing on them. Not asking the opinion of a departing employee is a wasted opportunity. It is important to give employees the opportunity to elaborate on their answers and to encourage them to give you as much information as possible – the more information that they impart the better. Leave an additional space for them to comment on issues that you may not have thought to include. Here are some examples of questions that should be included in an exit interview:

How long were you employed by the company?
Were you in a supervisory role?
Were you a full-time or part-time employee?
Did you resign or was your employment terminated? If other, please explain.
If you resigned, what were your reasons for leaving the company? Please list all reasons. (E.G: Geographical Location, Family Circumstances, Career Development etc.)
If you left for a new position, was the salary offered greater than your salary here? If so, please reveal the approximate percentage difference.
Can you explain why the new position (if relevant) was more desirable than your position here?
What might have motivated you to remain in your current position? (E.G: Improved Benefits, More Time-Off, Less/More Travel, Promotional Opportunities etc.)

What impacted your decision to leave the company? (E.G: Lack of Equipment/Information, Work that did not Challenge, Too much/Too little work, Pressure, Remuneration/Benefits, Other Personnel, Relationship with Supervisor/Co-workers, Morale, Teamwork, Goals, Harassment, Organisational Structure, Physical Environment etc.)
Can you please tell us about your positive experiences with the company? (E.G: Benefits, Hours, Facilities, Your Supervisor, Co-Workers, Personnel Practices/Policies, Physical Environment/Work Area, Development Opportunities, Level of Support etc.)
Do you feel as though you received adequate consideration for positions that you applied for? Please explain your answer.
Do you feel as though your work was fairly evaluated through performance reviews during your employment? Please explain your answer.
Do you feel as though your monetary recognition was in line with your performance? Please explain your answer.
Was the frequency/level of your recognition appropriate? Please explain your answer.
Do you feel as though you received adequate training for your position and the duties you were required to carry out? Please explain your answer.
Did you have adequate resources, equipment, support and information to carry out your job well? Please explain your answer.
Was your work environment free of sexual, religious, age and/or racial discrimination? If no, please explain in detail.
Were you satisfied with the quality and quantity of feedback received from your supervisor about your performance? Please explain your answer.
Were you kept well informed on what was expected of you in the workplace? Please explain your answer.
Did you feel free to discuss your career development with your supervisor? Please explain your answer.

Dignity at Work – 20% of racist incidents occur in workplace

In December 2013 the Immigrant Council of Ireland (ICI) brought our attention to a shocking statistic – The ICI revealed that the number of racist incidents reported in Ireland in the first 11 months of 2013 had jumped to a staggering figure – The ICI dealt with 142 individual racism cases between January and November 2013 - This figure was 85% higher than for the same 11 month period in 2012. 52 of the racist incidents that were reported occurred between June and July of 2013 alone. This signified a huge increase when compared to the same period in 2012 when just 3 incidents of a similar kind were reported. The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence. Denise Charlton, CEO of the Immigrant Council of Ireland, described the results as "alarming". A massive 20% of the reported incidents of racism occurred in the workplace. Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity. Employers - Did you know that you can be held accountable for bullying or harassment in the workplace? ……..Not being aware of it does not get you off the hook! Bullying in the workplace is any recurring inappropriate conduct that undermines a person’s right to dignity at work. Bullying can be carried out by one person or by several people - it is aimed at an individual or a group where the objective is to make them feel inferior or victimised. Bullying can come in the form of a verbal or physical assault and can also take place over the internet – this is known as cyber bullying and can be performed via many methods - Mobile phones, social networking sites, emails and texts are all common vehicles for cyber bullying. Cyber bullying is becoming more and more prevalent in society. Keep in mind that harassment based on civil status, family status, sexual orientation, religion, age, race, nationality or ethnic origin, disability or membership of the Traveller community is considered discrimination. Harassment in the workplace is prohibited under the terms of the Employment Equality Acts, 1998 to 2007. The Act of harassment - whether direct or indirect, intentional or unintentional - is unacceptable and should not be tolerated by any company. Any allegations should be dealt with seriously, promptly and confidentially with a thorough and immediate investigation. Any acts of harassment should be subject to disciplinary action up to and including dismissal. Any victimisation of an employee for reporting an incident, or assisting with an investigation of alleged harassment and/or bullying is a breach of Equality Legislation and should also be subject to disciplinary action.   Bullying or harassment isn’t always obvious – in fact it can come in many shapes and forms – some examples are: •Social exclusion or isolation •Damaging someone’s reputation through gossip or rumour •Any form of intimidation •Aggressive or obscene language or behaviour •Repeated requests for unreasonable tasks to be carried out Employers Beware: Under current Irish employment legislation (The Employment Equality Acts 1998-2011) companies are accountable when it comes to bullying and harassment in the workplace or workplace disputes. It is vital for employers to be mindful of the legislation as companies are answerable for the actions of employees, suppliers and customers even in cases where the company is not aware that bullying or harassment is taking place. To defend itself a company must illustrate how it did everything reasonably practicable to prevent bullying and / or harassment from taking place in the workplace. The company must also show that when an instance of bullying or harassment occurred the company took immediate, fair and decisive action. There is a huge risk of exposure if companies do not adhere to the strict Regulations. Those found in violation of the Act may be liable for fines and in severe circumstances imprisonment on summary conviction. Companies can also end up paying out large sums in compensation. Bullying creates a very hostile work environment and can negatively affect employee performance – It can lead to disengagement and low levels of morale. It can also cause a company to lose key members of staff. Bullying can affect both the safety and the health of employees – this violates the Safety, Health and Welfare at Work Act 2005. It is abundantly clear that it is in the best interest of all stakeholders to prevent bullying or harassment of any form in the workplace. In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook – A Dignity at Work Policy should be communicated clearly to employees. This will clarify what is expected of employees and what the protocol/repercussions are if bullying/harassment does occur.

State Pension Changes Effective January 2014

There is no single fixed/mandatory retirement age (age at which you must retire) for employees in Ireland. Typically, an employee’s retirement age is set out in their Contract of Employment and this can vary from one company/industry to the next. Alternatively, precedent/established custom and practice within the Company can determine the retirement age of its employees. E.G: if Mary was forced to retire at the age of 62 then Jack should also have to retire upon reaching the same age (assuming the circumstances are the same and that Mary was not ill, for instance).

Contracts provided by employers to their employees usually incorporate a mandatory retirement age (Normal Retirement Date/NRD). This tends to make it compulsory for the employee to retire at a certain age, usually this is somewhere between the ages of 60 and 65. Most contracts also include some sort of provision for early retirement on ill-health grounds etc.

In certain occupations there is a state-imposed compulsory retirement age. This arises for members of An Garda Síochána and members of the Defence Forces, for instance. Gardaí are forced to retire from their roles by the age of 60.

General Practitioners are obliged to retire from the General Medical Services scheme when they reach the age of 70. They may, however, continue to practice privately if they are approved by the Medical Council – the Medical Council will ensure that they meet their fitness to practice criteria.

There is no set retirement age when a person is self-employed, similarly, unless specifically set out in the Company’s Articles of Association, Company Directors are not usually bound by a maximum working age either.

Interestingly, employers are allowed to set minimum recruitment ages provided that the minimum age is 18 or under.

The most common company retirement age is 65 and, until recently, people went straight from receiving their salary from the company to receiving a pension from the State (provided they paid enough PRSI contributions during their working life). The Social Welfare and Pensions Act 2011, however, legislated for certain changes to the pensions system in Ireland effective from 1^st January 2014. The State Pension (Transition) has been discontinued for new claimants from 1^st January 2014. As a result, the State Pension minimum age has been increased to 66 years for all. It will increase to 67 years in 2021 and to 68 years in 2028.

What this means is that:

If a person was born between 1^st January 1949 and 31^st December 1954 inclusive, the minimum qualifying State Pension age will be 66 (rather than 65).
If a person was born between 1^st January 1955 and 31^st December 1960 inclusive, the minimum qualifying State Pension age will be 67.
If a person was born on or after 1^st January 1961 the minimum qualifying State Pension age will be 68.

When asked, in 2011, about the changes to the State Pension the Minister for Social Protection, Joan Burton, said:

“Given the changes to State pension age and the other proposals in the Framework, both employees and employers must be encouraged to change their attitudes to working longer. In the workplace employers must seek to retain older employees and create working conditions which will make working longer both attractive and feasible for the older worker. Where this is not possible and people leave paid employment before State pension age they will be entitled to apply for another social welfare payment until they become eligible for a State pension”.

The Transition Pension will not be payable to anyone who reaches 65 years of age after 1^st January 2014. Instead, individuals will have to apply for Jobseeker’s Allowance and should be entitled to receive this payment until they become eligible for the State pension. Jobseeker’s Allowance is considerably less per week than the pension is (€188 compared to €230.30).

Employees due to retire from their jobs upon reaching the age of 65 may not be able to afford to do so for another year unless they are able to access savings, draw down a private pension or unless their employer graciously extends the retirement age. To date there is no obligation on employers to increase the retirement age or to somehow bridge the gap financially however, employers nationwide may find themselves receiving requests to increase the retirement age for employees.

Please note that if an employer wishes to increase the contracted retirement age he or she is still obliged to consult the employee in relation to same as written consent is required to change the terms and conditions of employment.

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