5 essential steps when hiring new employees
Minister for Jobs, Enterprise and Innovation Mary Mitchell O’Connor, has revealed that unemployment levels have dropped to 6.4% from 8.4% in May 2016 making Ireland the 6th most competitive economy in the world. The CSO statistical release also revealed that the number of persons on the live register is the lowest number recorded, seasonally adjusted since 2008. If you’re a business owner that’s in a fortuitous position to be taking on new staff we applaud you, although it is no easy task. We have compiled 5 key steps to remember when hiring new employees.
1) Advertise
Employment and equality legislation is applicable the moment you post a job advert, therefore be sure to avoid discriminatory descriptions that may exclude a particular group of people from applying. Once you have a clear understanding of the duties and responsibilities of the role you will be able to create a clear job description and person specification, listing the skills and knowledge that you require. Remember, a well-defined job description is essential for attracting the most qualified candidates. For more information click here
2) Interviews
During an interview, we want to obtain important information from the candidate and also build a friendly rapport. Hiring the wrong person can be a very costly mistake for any company so determining whether they’ll be a good fit for the company is important. To ensure your questions don’t find you guilty of discrimination be sure to avoid questions relating to age, marital and family status, gender, disability, religious belief, sexual orientation, race, membership of the travelling community, or any physical attributes of the candidate. For more information click here
3) Contracts of Employment
Every employee who works for your business must receive a written contract of employment no later than 2 months after their commencement. If you do not issue your employees with a written contract you are putting yourself at risk of large settlements in the case of staff disputes, and fines in the case of regulatory inspections. Having contracts also clearly defines the contractual relationship between you and your employees. Take time to ensure that the contracts of employment contain sufficient clauses to govern the working relationship between you and your employees. For more information click here
4) Staff Handbooks
Whether you employ 1, 10 or over 100 staff, having an employee handbook is an essential way to communicate policies and procedures with staff without the contract of employment getting too long-winded. Issuing a comprehensive staff handbook is vital for not only setting clear boundaries in the employment relationship but also in protecting your business if a claim was ever brought against you. For more information click here
5) Induction
You have spent a lot of time and money on a vigorous recruitment process so be sure not to miss the very important final step, the induction. A structured induction programme welcomes your new employee, gives them an objective view of your company, your culture and work ethic. This will allow them to better integrate into the workplace which in turn will help boost staff retention rates. Your new employee will decide quickly if they feel at home and if they go through a well-planned induction program they are more likely to remain at your company. For more information click here.
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€7,500 awarded to disabled worker mocked on social media
A disabled employee for Mr. Price Branded Bargains has been awarded €7,500 by the Workplace Relations Commission (WRC) in a discrimination case brought by him under the Employment Equality Act when it was found a store manager had shared three recordings of the employee on a staff WhatsApp group for the enjoyment of colleagues.
The unnamed sales assistant was made aware of the recordings on 1 December 2015, by an employee who had by then left the company. He became traumatized and had to go on work-related stress leave and hasn’t returned to work since.
In defense, Mr. Price argued that one recording showed the complainant conversing with a customer and a second recording showed him behaving in a manner on the shop floor, which posed a health and safety risk for himself and others.
Finding
The Adjudication Officer in the case, Ray Flaherty, found that three video recordings of the man at work were shared by the shop manager for fun with staff "who had no operational need or entitlement to review the material".
“It is clear from viewing the recordings that not only was the complainant discriminated against on the grounds of his disability, but his basic right, and that of any employee, able or disabled, to the provision of dignity at work was seriously undermined.”
Learning Points
Under no circumstances should the mocking of an employee be condoned in the workplace - that goes without saying. In this case as the manager shared the video footage via WhatsApp, and the fact that the employee that reported the videos only did so after they had left the company, highlights the importance for employers to have a social media policy in place detailing what is or is not acceptable, and how to report any breaches of a policy as soon as they happen.
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Be careful of discrimination in job interviews
Having a wide range of interview questions is vital to find out as much information about a candidate as possible to assess whether they have the right skills and attributes for the role. When conducting an interview you may veer off your pre-set questions when building rapport with a candidate and to do a little digging in some areas, however asking the wrong question could leave you at risk of a hefty discrimination claim.
Marital and family status, sexual orientation
Although it may seem friendly asking if a candidate has a family or children it is not suitable for an interview. Asking such questions may leave you appearing more favorable to someone who may seem more stable or someone who might not have family commitments.
Do you have or plan on having children? What childcare arrangements do you have?
The job may require some overtime at short notice. What days/hours are you available to work? Can you travel?
Place of birth, race, religious beliefs
Again, employers may think they are being friendly asking questions like: where are you from originally? Or do you get to visit home often? But be warned that any questions surrounding birthplace, background or religious beliefs can lead to discrimination.
Where were you born? What religion do you practice?
Are you eligible to work in Ireland? What languages do you speak or write fluently?
Gender, age
Asking a candidate questions about their gender or age in relation to their ability to do a particular role is discrimination. If there are certain challenges to a role you may certainly ask about their ability to handle those situations but never imply that their gender or age may affect this.
We’ve always had a man/woman in this role. Do you think you can handle it? How many years do you think you’ll have left until you retire?
What can you bring to this role? What are your long term goals?
Location, disability, illness
You may think asking questions regarding where a candidate lives and how far/long it will take to commute to work is innocent but asking these questions could cause discrimination relating to a neighborhood heavily populated by an ethnic group or social class. Also asking questions around gaps in a candidate’s employment is acceptable, but asking questions around a disability and how it may affect their capabilities to do a job is not.
How far would your commute be? Do you smoke/drink?Are you able to start at 9 am? Have you ever been disciplined due to alcohol/drugs?
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Forced to retire at 65? I don’t think so
John Glavey V Connaught Airport Development Co Ltd
A court recently fined Connaught Airport Development Co Ltd €6,500 for the unfair dismissal of Mr. Glavey, a veteran barman who was forced to retire from his role as a senior bartender at 65 years of age. Mr. Glavey had been working in the bar at West Airport Knock since 1991. Although the airport did not have a policy on retirement age, they said that it was custom for all employees to retire at 65.
Mr. Glavey argued that not only was there no retirement age stated in his contract of employment but with the state pension at 66 years there is a requirement on him up to 66 years to be available for work. At the age of 65, Mr. Glavey was fit and well and had no difficulty carrying out the duties of his job. It was heard that Mr. Glavey had been one of few employees that held a 39 hour per week contract as opposed to new recruits on temporary/part-time contracts.
Finding
The Labour Court found that as the airport firm had ample opportunity to inform Mr. Glavey of a requirement that he retire at age 65 he was unfairly dismissed by reason of his age and awarded him €6,500.
Learning Points
As an employer, you must ensure that if you do have a compulsory retirement age in your contracts that you have a legitimate reason, and can objectively justify your retirement age. In the past courts have ruled reasons such as health and safety or security as objective reasons; however, what will be acceptable reasons will differ from company to company. Should you require your company to have a retirement age, be sure to re-assess your reasons and have clear, sensible explanations for doing so.
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Proposal to ban zero hour contracts
Wednesday saw the approval of draft legislative proposals to ban the use of zero hour contracts. The proposal sees the ban on zero hour contracts in most circumstances and huge fines for employers for the misuse of them. The proposal brought to the cabinet by Minister for Jobs, Enterprise and Innovation Mary Mitchell O’Connor and Minister of State for Employment and Small Business Pat Breen, aims to stop the exploitation of, particularly low-paid and vulnerable workers.
The new proposal is a result of research conducted by the University of Limerick, in which they found that the use of zero-hour contracts has significantly increased in recent years. The research found that zero-hour contracts do cause issues for employees, namely uncertainty of earnings week to week. This can have a number of knock-on effects for the employee, including their ability to apply for a mortgage or their entitlement to sick pay or holiday pay.
In an effort to address these issues the draft legislation proposes a number of changes including:
- If an employee comes to work and is sent home, they will be compensated for three hours pay at three times the national minimum wage.
- Employers will be required to provide employees with clearer information about the nature and core terms of their employment arrangements within five days of commencing a job. This will include the expected duration of the contract and what the employer reasonably expects the normal length of the employee's working day and week will be.
Zero-hour contracts or if and when contracts, can offer some businesses the flexibility to manage their workforce, particularly where work demands fluctuate. The concern for small employers now is that this flexibility may be taken away from them and that they may endure significant costs if work is not available.
Although the changes may take some time to come into effect when they do they will be the most significant changes to modern employment legislation.
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Overtime working - how much can your employees do?
Getting employees to work overtime during busy periods is a great way to combat increased workload demands using your existing employees. But how much overtime can you legally require your employees to work and should you have to pay them extra for it? We take a look at what is required to keep you covered.
Overtime
The number of hours an employee is required to work a week will be included in their contract and if an employee works over this it is usually considered overtime. If you do require employees to work overtime during busy periods, this must be stated in their contract of employment. Within two months of commencing work, an employee must be provided with a contract of employment.
How much overtime can employees work?
The Organisation of Working Time Act 1997 states the maximum working week is 48 hours and this will include all overtime or second employment. The 48-hour working week can be averaged out:
- 4 months - for most workers
- 6 months - for employees working in: security industries, hospitals, prisons, gas/electricity, airport/docks, agriculture and employees in businesses which have peak periods at certain times of the year such as tourism
- 12 months - for all employees who entered into an agreement with their employer which is approved by the Labour Court.
Do I have to pay employees for working overtime?
Employers are under no obligation to pay employees for overtime worked as long as they ensure that the average pay for total hours worked does not go below minimum wage. Many employers do pay higher rates of pay for overtime or may give employees time off in lieu for hours worked overtime.
If you do require employees to work overtime you must ensure that this is clearly stated in their contract of employment. If an employee is paid overtime, this should also be included, stating overtime rates of pay and how these are calculated.
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Staff handbooks are not just for large organisations
Many small businesses that may only employ a small number of employees, often believe that they are exempt from having employee policies and procedures. This is not the case, policies and procedures are essential for not only setting clear boundaries in the employment relationship but also in protecting your business if a claim was ever brought against you to the Workplace Relations Commission or Labour Court.
A recent case study
A recent case was brought to the courts when an employee of a small, family run shoe and leather goods shop, claimed she had been harassed and sexually harassed by another concession stand holder. The employee alleged that her employer had failed to take the appropriate steps to prevent the harassment and then failed to investigate the allegations appropriately.
Finding
The employer claimed that, as a small employer, it was not necessary for them to have any anti-harassment policies in place. The court found that the Acts require employers, regardless of size, to take reasonable steps to ensure employees are protected. The court emphasised that employers must have effective measures in place to ensure sexual harassment does not occur and if it does occur that there are adequate procedures available to deal with the problem and prevent re-occurrence.
Although the court noted that the employer took appropriate action when dealing with the situation when it observed such behavior, it had failed to take appropriate measures to prevent such occurrences. The employee was rewarded €5,000 for distress and the effects of sexual harassment constituting discrimination.
Learning Points
No matter how small your workforce, be sure to protect your business with solid employee handbooks clearly outlining policies and procedures.
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€30,000 awarded to pregnant woman dismissed during probation
The Workplace Relations Commissioner ordered the owner of a seafood restaurant to pay €30,000 compensation to a pregnant employee who was dismissed during her probation.
The employee was pregnant at the time of commencing work at the restaurant as restaurant manager. Two months later, after getting the all clear in an ultra-sound, she informed her manager that she was pregnant. Following this she said she noticed a change in atmosphere. She was no longer invited to managerial meetings and then received an e-mail from her manager outlining some performance issues that had not been discussed with her previously. She replied to the email accepting responsibility to some of the issues but attributed most of them to inadequate training. She also offered to have a meeting with her boss to discuss these issues but despite her request no meeting ever took place. Three days after this e-mail was sent and one month after she gave notice of her pregnancy, she was let go.
She brought a claim under the equality legislation alleging that she had been discriminated against and dismissed due to her pregnancy. The restaurant contended that the dismissal arose from performance issues and was unrelated to the pregnancy. The restaurant claimed that adequate training had been given and that meetings to discuss performance issues took place before the announcement of her pregnancy, although no notes were recorded.
Finding
With no such records, the adjudicating officer ruled that she did not find it credible that such meetings took place. She found that due to the manager’s refusal for a meeting after the email was sent and the close proximity of the announcement of the pregnancy to the dismissal, that the pregnancy was a significant factor to the decision of her dismissal.
Learning Points
This case highlights the importance of following fair procedures and documenting these procedures when dismissing an employee. Even employees on probation are entitled to natural justice and fundamentally fair procedures.
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What harm can two jam tarts make?
The Employment Appeals Tribunal decided an employee was fairly dismissed when jam tarts were found missing from a packet. The man in question, Moran, worked in the warehouse for Keeling’s Logistics Solutions, who operated as a distribution company for the supply of goods to just one customer.
An investigation was carried out when the security manager saw Moran and a colleague “acting suspiciously” beside an open cage, containing boxes of jam tarts. He claimed to see the cage being moved and that he saw the men eating something and putting their hands inside the cage. The investigation found that Moran had tampered with a packet of jam tarts and two individual tarts were missing. CCTV footage was reviewed and the men claimed that they were sharing a Mars bar and denied eating the jam tarts.
Finding
The employer had a strict policy that no stock would be consumed on the warehouse floor and installed vending machines on the shop floor to prevent staff tampering with and eating their stock. The employer carried out a disciplinary procedure and dismissed Moran, who then appealed the decision but lost. The EAT found that Moran’s evidence was not credible and on the balance of probability that he did tamper with the stock.
“The Tribunal also found that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.”
Learning Points
The importance of having firm policies and applying procedures when dismissing an employee are prominent in this case. 80% of unfair dismissal cases are lost by employers not because they didn’t have a good reason for dismissing the employee but because they have failed to follow fair procedures. As an employer, you do not want to be subject for a hefty unfair dismissal claim that could have been easily avoided.
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Requiring staff to only speak English at work can be lawful
The WRC recently dismissed a claim brought by a Polish employee that alleged she had been discriminated against on the grounds of race. The Complainant in this case was told she had to speak English when working alongside colleagues who did not speak Polish.
The Company in question employed 838 people from 14 countries. The employee was asked by their supervisor to speak English while working on the factory line. The employee subsequently brought a discrimination claim against the Company. The Company argued that there was a business case for having one official language in the business.
The WRC found in favour of the employer based on evidence that they had provided diversity workshops, and had acted in good faith by asking the employee to speak English so as not to exclude other colleagues.
Learning Points
This is an area where employers need to thread carefully in order to avoid discrimination.
Generally, it is possible to limit the use of languages other than English at work, provided that the policy:
- applies to all nationalities
- there are justifiable (and non-discriminatory) reasons for imposing the policy.
Some possible acceptable reasons may include:
- Health and safety implications
- Security risks
- Impact on workplace effectiveness
It is advisable that requests to speak English should only apply to operational activities. Discussions at break times or in the canteen should be exempt.
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