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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Minimum Wage to increase by 30c
Taoiseach, Leo Varadkar has welcomed proposals from the Low Pay Commission to increase the national minimum wage to €9.55 from 1st January 2018. “It’s an increase well ahead of inflation, well ahead of average wage growth in the economy. It is modest, it works out at about an extra €12 per week but it is still an important step in the right direction” he said.
It would be the fourth increase in the minimum wage since 2011, the third in the last two years and the second under this Government. But it should be seen as a further step towards the Programme for Government commitment for a minimum wage of €10.50, the Taoiseach added.
Although the move has been welcomed in political circles, Retail Ireland warned it could impact on jobs in the sector. Thomas Burke, the director of retail Ireland said; “With little to no inflation in consumer goods and growing concern over the impact Brexit is already having on the retail sector, there is absolutely no economic basis for a further increase to the minimum wage. Such a rise at this juncture would significantly affect retailers’ ability to remain competitive against a backdrop of falling prices and rising costs within the industry.”
The Irish Business ad Employers Confederation (IBEC) argued that the minimum wage here is already one of the highest in Europe and with this increase would be 12% higher than that in the UK. It called on Tánaiste Frances Fitzgerald, who will oversee the changes, to delay the implementation.
“Workers need a pay rise to keep pace with the increasing cost of living in Ireland …but these employers must be supported to absorb the cost of pay increases in a way that doesn’t harm their competitiveness.” Said Niall Collins, the Fianna Fail enterprise spokesman.
Figures from the Central Statistics Office last April showed that 10.1% of employees earned the National Minimum Wage or less in that year. Tánaiste Fitzgerald said the increase “offers support to people and creates better opportunities to benefit from a better wage.”
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Workplace Relations Commission Annual Report Findings
The Workplace Relations Commission (WRC) has released their second annual report revealing interesting and surprising statistics. In 2016, a total of 4,830 inspections were carried out, of which 60% were unannounced. 2,398 breaches of employment legislation were recorded with an average of 1.2 breaches per employer. By far the most common breach was the failure to keep adequate employment records (62%) followed by employment permits irregularities (17%).
Other highlights from the report are:
• 14,400 complaints were made
• €1.5m was recovered in unpaid wages
• Almost 75,000 employees were covered by inspections
• 85% of workplace disputes were resolved
The most common complaints that were heard include:
• 28% Pay related issues
• 15% Unfair dismissal issues
• 12% Working time issues
• 11% Discrimination/equality related
• 9% Trade disputes/IR issues
• 9% Terms and conditions of employment-related
The sectors showing a higher degree of non-compliance were:
• 60% Electrical
• 53% Hair and Beauty
• 49% Construction
• 47% Agriculture
• 45% Wholesale and Retail
Keeping appropriate employment records is not just a legal requirement placed on the employer but is also protection for both the employer and employees. Having proper records in place ensures that information and documents regarding wages, hours worked etc., are readily available in the case of grievances and disputes or a WRC inspection. Not having records in place leaves the employer is at a distinct disadvantage in the event of a dispute and at risk of failing an inspection. Primary to this employers are advised to have robust contracts of employment and policies and procedures in place and to ensure that they are fully compliant and kept up to date.
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Top tips for reference check questions
The reference check stage of the recruitment process is a crucial stage for an employer to obtain vital information about a candidate and corroborating that what they have said on their CV and in their interview is factual and true. By speaking to references, you can gather more information about the candidate’s work ethics and personality traits that might not be apparent during the interview.
Factual Questions
Factual questions are important to ask to confirm information the candidate has given you regarding their previous role is accurate. For example:
• Can you please confirm the candidate’s dates of employment?
• Can you please confirm the candidate’s job title?
• What was your working relationship with the candidate?
Behavioral Questions
By asking behavioral questions you can gain a better insight into the candidate’s personality and work ethic. For example:
• Can you please describe the candidate’s attendance and timekeeping?
• Can you please describe the candidate’s job performance?
• Can you please describe the candidate’s relationship with their colleagues and also with management?
Hypothetical Question
There is one hypothetical question that is important to ask at the end of each reference check:
• Would you re-hire the candidate in the future?
This question can tell you a lot as there is a big difference between “No I would not”, “Um…maybe” and “Yes, I wish they were not leaving”.
Hiring the wrong candidate can be extremely costly for any organisation so ensure to always complete reference checks with at least two referees and ideally with a manager or superior.
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GDPR – What is it and what does it mean for you?
The General Data Protection Regulation will come into force on the 25th of May 2018, after 4 years of intense preparation and debate it was finally approved to replace the existing Data Protection Directive 95/46/EC.
The aim of the GDPR is to protect all EU citizens from privacy and data breaches in an increasingly data-driven world that is vastly different from the time in which the 1995 directive was established.
The key points of the GDPR are:
- Increased Territorial Scope
Arguably the biggest change to the regulatory landscape of data privacy comes with the extended jurisdiction of the GDPR, as it applies to all companies processing the personal data of data subjects residing in the Union, regardless of the company’s location. - Penalties
Under GDPR organizations in breach of GDPR can be fined up to 4% of annual global turnover or €20 Million (whichever is greater). This is the maximum fine that can be imposed for the most serious infringements. - Consent
Requests for consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it. - Breach Notification
Where a breach occurs that is likely to “result in a risk for the rights and freedoms of individuals” that Data Controller must notify affected parties within 72 hours of first having become aware of the breach. - Right to Access
Part of the expanded rights of data subjects outlined by the GDPR is the right for data subjects to obtain from the data controller confirmation as to whether or not personal data concerning them is being processed, where and for what purpose. - Right to be Forgotten
Also known as Data Erasure, the right to be forgotten entitles the data subject to have the data controller erase his/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. Conditions for data erasure do exist, including the data no longer being relevant. - Data Portability
GDPR introduces data portability - the right for a data subject to receive the personal data concerning them, which they have previously provided in a 'commonly use and machine-readable format' and have the right to transmit that data to another controller. - Privacy by Design
Privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than an addition. Under GDPR data controllers are called on to hold and process only the data absolutely necessary for the completion of its duties, as well as limiting the access to personal data. - Data Protection Officers
DPO appointment will be mandatory only for those controllers and processors whose core activities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale or of special categories of data or data relating to criminal convictions and offenses. Specific criteria in relation to the appointment of a DPO exist.
The GDPR places onerous obligations on organisations in relation to the processing of personal data. In order to be ready for the May deadline, it is strongly advisable to start preparing now.
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€10K awarded to steeple worker who was told to “wing it” with no harness
The Workplace Relations Commissioner has awarded €10k to a worker for unfair dismissal when he was dismissed after suffering a back injury while carrying out work on a scaffold in with no safety equipment.
The complainant’s role was to make digital prints and then fit the products to buildings or vehicles. If the job required two people, then the complainant was accompanied by the respondent otherwise he went on his own.
In September of 2015 while working on site in Belfast he was “required to work at heights without a harness”. He said he was also told to operate a cherry picker even though he did not hold a license to do so. The court also heard that later in the month the complainant was previously told to ‘wing it’ when doing installation work on a church steeple with no harness.
In November 2015 the complainant injured his back while working on a scaffold with no safety harness and was on certified sick leave for 9 days. He said that while he was on sick leave he saw his job being advertised, the ad was later removed when he raised concerns with his boss.
In July 2016 while back on site, the complainant said he left a job he believed to be a health and safety risk when he was asked to work at a height of 15m without a harness. He later made a formal complaint to his employer but left 15 minutes into the meeting for being verbally abused for not completing the job. The complainant said he was constructively dismissed and had not worked since.
Finding
The officer who heard the case said that she found the complaint was “well founded” based on the uncontested evidence. The respondent didn’t attend the hearing. She directed the respondent to pay the worker €10,000 within 42 days of the ruling.
Learning Points
There are many things to take away from this case, first and foremost that the health and safety of an employee under no circumstance should ever be compromised. This case highlights the importance for employers in all industry's to carry out their own risk assessments. Employers should also note the importance of not only having a clear grievance and dispute procedures for staff to reference but for the employer to follow them correctly.
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How can I introduce contracts to existing employees?
A recent survey showed that 60% of employers in Ireland do not provide contracts of employment to their staff. This is an alarmingly high figure considering two very important facts: firstly it is a legal requirement, and secondly, the cost of non-compliance can be extortionate. So why do employers take that risk? Here are some of the explanations employers gave:
• Our employees have been with us for years, we don’t need to worry about contracts.
• I only have 4 employees; I don’t need to provide contracts.
• We’re a very small company, I cannot afford the expense.
• Employees will think we are trying to bring in more rules and won’t trust the good relationship we have built with them over the years.
No matter what your reasoning behind not having contracts of employment in place, under the Terms of Employment (Information) Acts 1994–2014 you are obliged to provide a written contract of employment to a new staff member no later than 2 months after their commencement. Furthermore, the cost of non-compliance (whether from an inspection from the WRC or from a staff grievance) can be crippling, especially for SME’s.
Introducing contracts to already existing staff can be a daunting task to some employers. We have compiled 4 simple steps to follow if you have decided that the time has come to roll out contracts.
1) Hold a staff meeting
Bring all of your staff together at once to inform them of your decision to introduce contracts into the workplace. Give a brief overview of what is contained in the contract and explain why you are doing it, whether it is to ensure that the workplace is compliant, promoting consistency and compliance or both. Take any general questions your staff may have.
2) Distribute the documents
Once you have drawn up contracts for each staff member print two copies of each and deliver both copies to the appropriate staff member. Ask the staff member to review and sign both copies and return one copy within a reasonable time frame, generally 1-2 weeks.
3) Be open to taking questions
Good communication between employers and staff is crucial for a good relationship, especially at this stage. Be available to your employees so as they can ask any questions or raise any concerns they may have. Answer all questions openly and honestly. Refusing to have that discussion may come across as defensive and will heighten distrust in employees.
4) Collect and file
Collect one copy of the signed contracts from each employee and be sure to file away in a safe and secure location for future reference. Instruct the employee to also keep their signed copy in a secure location.
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