What to be aware of when completing a reference check
As an employer, there will undoubtedly come a time that you will be asked to provide a reference check for a previous employee to their potential new employer. If you have a standout employee with plenty of praise for them, then providing their reference check may seem like a doddle, but if you have an employee that parted on bad terms the reference check can be less than straightforward.
Why you should be careful completing a reference check
You have a duty of care to provide a truthful reference check to potential employers – but this may come at a price. Be aware that you run the risk of being sued for defamation if a negative reference that was given cannot be verified. A new employer can also claim against you if an employee who you gave a great reference for turns out to be less than satisfactory.
What can you do to protect yourself?
• You are under no obligation to provide a reference check for employees. If you wish to refrain from providing reference checks you may include a policy in your staff handbook stating this.
• If you are willing to provide reference checks you may adopt a policy to keep it brief and only divulge factual information, including:
- Dates of employment
- Job title
- Relationship to the candidate
- Final Salary
• If you are happy to provide a full reference check for an employee and answer behavioral questions regarding their work ethic, attitude, timekeeping etc. ensure that all the information you provide is factual and true.
When you adopt a reference check policy that best fits your business, the key then is to be consistent. What you do for one employee you must do for all. Inconsistency could leave you wide open to a discrimination claim from a disgruntled employee. Be sure to include the policy in your staff handbook and make all employees aware of it.
Also, see…Top Tips for Reference Check Questions
4 Reasons why contracts of employment are needed
We’ve heard all the excuses before; “I’m too busy and don’t have the time”, “It’s too expensive to implement contracts”, or “I only have four employees, I don’t need to provide employment contracts”. If you are an employer you are obliged to provide your employees with a written statement of terms of employment.
We have compiled the 4 most important reasons why contracts of employment are needed.
It is a legal requirement
Under the Terms of Employment (Information) Acts 1994-2014, as an employer you must provide a written contract of employment to a new staff member no later than 2 months after their commencement. Employers must also provide employees with written disciplinary procedures, and procedures that the employer will follow when dismissing an employee, within 28 days of the employee starting. These procedures may be included in the employment contract or in the company handbook.
Protect your business against costly disputes
Having contracts of employment in place offers your business protection in the case of a dispute. A dispute can escalate to the WRC, where not having clearly documented terms of employment can really leave you wide open as an employer. If you are found not to have contracts of employment in place for your staff you will face a fine of 4 weeks’ pay per employee. In the case of a dispute, employers could face fines equating to two years remuneration - the maximum compensation award.
Protect your company against WRC inspections
Approximately 5,000 workplace inspections are carried out by the WRC every year, with 60% of them being unannounced. During a WRC inspection, the first thing they will ask to see is a copy of your contracts of employment. In 2016, 62% of employers failed to keep adequate employment records. Inspectors may issue on the spot fines for amounts up to €2,000 where they have reasonable cause to believe that a person has committed a relevant offence.
Instills confidence in you and your employees
In terms of the employer/employee relationship, the contract of employment is the most important thing you’ll ever deal with. It is the foundation stone of the employer/employee relationship. Having contracts of employment in place will clarify certain conditions for you and your employee so that both parties are aware of what is expected of them. Having contracts in place will also instill confidence in you, knowing that you are doing everything you can do to protect yourself and your business in any situation that may arise.
It is never too late to put contracts of employment in place. Read our blog “How can I introduce contracts to existing employees?” and follow our 4 simple steps here.
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Employee awarded maximum unfair dismissal compensation
The Labor Court has recently ruled that a driver was unfairly dismissed after he was involved in three road accidents. The driver was awarded €72,042, equating to two years remuneration - the maximum compensation which could be awarded.
Background
Mr. Coughlan was employed as a van driver for DHL for 11 years. In 2012 he was involved in a road accident to which he received a written warning. In 2013 he was involved in a second road accident where he received a final warning. The warnings were ‘live’ for 12 months, after which they expired. The claimant was involved in a third road accident in 2015 to which damages to the van amounted to €2,500. By that time both previous warnings had expired and he was brought into a disciplinary hearing for “failure to protect and safeguard company property”.
During the hearing Mr. Coughlan took responsibility for his misjudgment which led to the accident. Throughout the hearing numerous references were made to the expired incidents. Mr. Coughlan was dismissed with immediate effect for gross misconduct on the basis that he had failed to protect and safeguard company property.
Finding
The WRC found the dismissal unreasonable and ordered reinstatement. At the appeal to the Labor Court, DHL argued that they had no other choice but to dismiss Mr. Coughlan as their faith in his driving abilities was lost. Although his previous warnings had expired, the company felt that they had to take his entire working history into consideration. The Court determined that the 2015 incident, in isolation to the previous warnings was not sufficient to dismiss. It also took into consideration the company’s failure to consider alternative positions within the organisation for Mr. Coughlan.
Learning Points
This case highlights something we see time again, the importance of practicing fair procedures when considering dismissal. It highlights the importance of employers showing that they had considered alternative roles where possible before dismissal – something that is often noted in unfair dismissal cases. Lastly, the enormous amount awarded to Mr. Coughlan reminds employers of the costly consequence unfair dismissal can have on their business.
The dangers of dismissing an employee during probation
Recruitment is tricky, and with any new hire there is an element of risk involved; will they work out, is their experience what they say it is, will they fit-in with the team? In the unfortunate instances where things do not work out, it can be problematic for an employer, particularly a small employer.
A Common Misconception
A common misconception is that if an employee is on probation and things are not working out, that they can be dismissed without regard. This is not the case and can leave employers wide open to a claim against them. There are a number of employment cases that illustrate this and serve as good case studies for employers. In the case of Glenpatrick Water Coolers Limited v. a worker, the Labour Court recommended that the employer pay €6,500 to an employee who was unfairly dismissed whilst on probation. Whilst the Court recognised the inclusion in the contract that normal disciplinary procedures did not apply during the probationary period, the court insisted that fair procedures must still apply. More significantly, an engineer was awarded €33,400 having been dismissed 2 months into his probation period. In both of the above cases, the courts highlighted the employer's’ total failure to adhere to the Code of Practice on Grievance and Disciplinary procedures.
Be Aware
Whilst an employee is not protected by the Unfair Dismissals Act until they have accrued one year's’ service, claims for unfair dismissal can be brought under the Industrial Relations Act. Employers should be aware that although dismissal during probation is possible, it does not give employers a free-hand to act as they please. Fair procedures and natural justice should always be respected.
To view our full Essential Guide to Managing Probation click here
To view our Sample Probation Letters click here
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The importance of having an Absence/Sick Leave Policy
As an employer, it can be quite a daunting prospect having to deal with sick leave and long-term sick leave can throw up other issues making it seem more complicated and even more daunting for the employer to deal with effectively. So how can an employer ensure compliance during these periods of absence?
First and foremost an Absence/Sick Leave Policy needs to be put in place. It must contain clear and concise guidelines for the employee and employer to follow in cases of absence
Your Absence Policy should include:
1. Details of any company Sick Pay Policy:
- If an employer will/will not pay employee while on certified/uncertified sick leave.
- If payments are to be made, length of term for payments.
2. Notification and certification requirements if employees are absent due to illness:
- How much notice an employee needs to give an employer if they will be absent from work.
- After how many days of absence a medical certificate is required.
- For long-term absences, how often a medical certificate is required to be presented to the employer.
3. A statement that in the case of long-term absence due to illness, the employee may be required to attend a company GP or other nominated medical persons/facilities at the request of the employer.
It would also be advisable to include details on what is classed as being short-term, long-term and unauthorised absences - Unauthorised leave is absence by the employee without consent or approval from management or without proof of illness by means of a doctors certificate and should be dealt with as a matter of misconduct via the company disciplinary procedures.
As with most company policies and procedures, once in place, the employees will be aware of what is expected of them during times of absence or sick leave; this, in turn, should eliminate any further issues from arising.
Bright Contracts has a comprehensive Absence and Sick Leave Policy built into the Company Handbook which can be customised to suit your own company specifications and requirements.
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Employee reasonably dismissed after leaving a charity van outside a pub overnight
The Workplace Relations Commission (WRC) found that an employee had been fairly dismissed after he left a charity van, displaying the charity’s logo, parked outside a pub overnight. The van was recovered from the car park the following day when the worker telephoned a colleague and asked that they retrieve it. However, the worker was suspended with full pay, pending investigation, when he returned to work on Monday. The following month, as a result of the investigation the employee was dismissed.
Investigation
The worker had been employed at with the charity for less than a year, and therefore did not meet the requirement of having 1 years’ service in order to make a claim for unfair dismissal under the Unfair Dismissals Acts 1977-2015. The case instead was brought under the Industrial Relations Acts 1969, investigating a dispute between an employer and employee, and whether natural justice and fair procedures were followed during the investigation and dismissal.
The employee argued that he was subject to an unfair investigation and was dismissed for taking a charity van home, which he claimed was customary among employees to do in order to facilitate work routes the following day. He added that he had received an urgent phone call from his mother regarding the hospitalisation of his father and that the only way he could assist in taking his mother to the hospital was by using the charity’s van.
The employer argued that as a charity, in a time where voluntary contributions are increasingly under scrutiny that their public image is of the utmost importance. They noted that they had a vehicle policy in place and that the absence of a company van for over 24 hours was unacceptable. The employer also argued that during the disciplinary process “a female manager had become frightened by suggestions that the complainant would call to her home address”.
Finding
The adjudication officer found:
“Taking in mind the open admission of the complainant that he had taken the van home and the extensive nature of the investigation and proper appeal procedures, I came to the view that the dismissal decision was in the band of reasonableness for an employer in the charity/voluntary sector concerned.”
Learning Points
It is important to note that although an employee cannot make a claim for unfair dismissal under the Unfair Dismissals Acts 1977-2015 if they have less than 1 years’ service, employers must ensure that natural justice and fair procedures are followed at all times. We can also see from this case how having clear policies and procedures in place is extremely important, particularly to assist protecting your business against a possible claim.
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Paternity Leave – Uptake lower than expected
In September 2016, fathers of children born in Ireland became eligible for the first time to take up to two weeks’ paternity leave and to receive Paternity Benefit from the Department of Social Protection. Statistics collated from the first few months of the scheme show, however, that just one in four fathers eligible for the scheme chose to avail of it. This is in stark contrast to the expectation that 60% of eligible fathers would avail of the scheme when it was first announced.
Just over 5,000 paternity benefit applications were awarded during the first three months of the scheme going live, with County Longford, Kerry, Roscommon, and Clare having the fewest applicants. A larger uptake, however, was seen in County Dublin, Cork and Kilkenny.
A further 7,500 paternity benefit claims were subsequently awarded in the first four months of 2017. Under the new scheme, eligible fathers are entitled to two weeks of paternity leave. The two-week leave can be taken at any point within 28 weeks of the birth or adoption of a child, but the two weeks must be taken together.
A social welfare benefit of €235 per week is paid for the two weeks. It is at an employer’s discretion if they wish to top up this payment to the full weekly wage normally earned by the employee. Despite the low uptake so far, it is hoped that the number of applicants will increase as the scheme enters its second year in September.
Current statistics also don’t reflect fathers who may be delaying their paternity leave, for example, fathers whose child was born on February 28 this year can take it at any time up to September 1, 2017.
Guidance on how employers should treat Paternity Benefit and when it should be entered in Thesaurus Payroll Manager can be found here: https://www.thesaurus.ie/docs/2017/paternity-benefit/taxation-of-paternity-benefit/
Related article: Equality for working Dads with new Paternity Leave
€30,000 Awarded to employee dismissed during probation
If an employee has less than one year of service with an employer they are not protected under the Unfair Dismissals Act 1977-2007. In spite of this, all employees are entitled to natural justice and fair procedures, which makes dismissing an employee whilst on probation less straightforward than it may seem. This is evident in this case where a former General Secretary of the Irish Postmaster Union was awarded €30,000 for being unfairly dismissal during his 6 months probationary period.
Background
The employee commenced working for the Irish Postmaster Union in August 2009 and was advised that he was on a probationary period for 6 months. In October 2009 he had his first performance review and in January 2010 he had his second performance review. Towards the end of January, the employee was informed that there were reservations regarding his performance and that this probation period was to be extended for a further 3 months. The employee wrote a letter to his employer expressing his concerns regarding this and was subsequently dismissed and paid 3 months’ salary in lieu of notice.
Findings
The court found that the employer had failed to “adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000 because he was on probation, was misconceived”. The employee was awarded €30,000 for unfair dismissal on top of the 3 months’ salary he was paid in lieu of notice.
Learning Points
Employers must be aware that although the employee is not protected by the Unfair Dismissals Act, that they can still make a claim for unfair dismissal under the Industrial Relations Act, 1969. It is advisable for an employer to include a probationary clause in their employee’s contract of employment, and if they wish to dismiss an employee during the probation period that they should exercise fair procedures.
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Employee fairly dismissed over 2 paper cups of coffee powder
A chief kitchen steward for a 4-star hotel in Limerick has lost his case for unfair dismissal over two cups of coffee powder. Krzysztof Scislowski was dismissed from the Strand Hotel in Limerick in March this year after he admitted to taking two cups of coffee powder he liked from the hotel kitchen as it wasn’t available in the staff canteen.
Background
Mr. Scislowski had been employed at the Strand Hotel since 2007 as chief kitchen steward where his duties included the supervision of staff and of cleaning, maintenance of all cleaning equipment and to control the security of hotel stock and property. Two paper cups full of coffee powder were found in his locker during a search after a colleague reported seeing Mr. Scislowski wrapping the cups and putting them into his pocket. Mr. Scislowski initially claimed that he had bought the coffee at a shop and transferred it to the cups when the glass jar broke. But during the third interview, he confessed that he had taken it from the dry-goods cupboard. He said that he had lied because he was scared that nobody would believe him that the coffee was intended for consumption during work and not to take home.
Dismissed
Mr. Scislowski was dismissed for gross misconduct on the grounds that trust was lost when he took the coffee and then lied about it. He appealed the decision to the general manager who upheld the decision on the grounds that the Strand Hotel “has zero tolerance of theft and that the value of the item taken is not a factor”.
Appeal
He told the EAT and that he did not understand the severity of his actions and thought that with an unblemished record that he would only receive a warning. The tribunal found that the hotel was reasonable to believe that Mr. Scislowski had intended on taking the coffee home and that he had breached the trust they had put in him as he was responsible for the security of the stock and when he lied during the initial stages of the investigation.
It's clear to see that once you have company policies and procedures in place and you follow those procedures during a dismissal process, you are protecting your company if a claim were brought against you.
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What does GDPR mean for employers?
Employers process huge amounts of HR related personal data on a daily basis. The new General Data Protection Regulations (GDPR) expand current obligations in terms of how data that is processed.
Employee Communication
Currently employers must provide employees with some information, including the identity of the data controller and the purpose for which data is being processed. Under the new legislation this will increase to include, informing employees of how long the data is stored for, details of employee’s right to make data access requests, and the right rectify or to delete the personal data.
Consent
The issue of consent will be very important across the board but particularly from a HR perspective. Currently, most employment contracts will contain a standard consent clause regarding the processing of employee data. Under GDPR employers will unlikely be able to depend solely on these blanket clauses.
GDPR stipulates that consent must be freely given, specific, informed and unambiguous. Employee consent is not generally considered to be valid as consent is usually not deemed to be “freely given”. This is due to the power imbalance between the employer and the employee.
Whilst it is still best practice for employers to include details of data processing within the contract of employment, it should not be the sole form of consent for processing employee’s personal data.
How do employers justify processing employee data?
From 25 May 2018 employers will need to have additional justifications for the processing of employee data. These may include:
- To fulfil contractual obligations: this could allow employers process employee details in order to meet the terms of the contract of employment. For example, the processing of payroll data.
- Legal obligations: for example, health and safety and tax legislation denote valid grounds for processing data.
- Other legitimate interests: employers may have internal legitimate interests for processing data, such as to improve efficiencies. Where this justification is relied upon employers should ensure that the purpose is legitimate and it must be done in the least intrusive manner possible.
Data Access Requests
Should an employee request to access their data, under the GDPR employers will have one month to comply, reduced from 40 days. It will no longer be permissible to charge employees for requesting to access their personal data.
To Conclude
Employers are well advised to take time to fully consider the legal grounds they rely on in order to process employee personal data. Ensure that where processing does occur it is necessary, proportionate and carried out in the least intrusive manner possible. Employers should also communicate with staff ensuring that staff notices and privacy policies are up-to-date with the GDPR requirements.
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