Case Law - Dismissal of Agency Workers

The employment relationship between an employment agency, the agency worker and the "end user" or "hirer" is an interesting one.

A Workplace Relations Commission (WRC) case (ADJ-00032076) demonstrates the importance of understanding which party is responsible for the potential unfairness of any dismissal of an agency worker.

Here, the agency worker (the "Complainant") was dismissed by the hirer / end user (the "Respondent") for alleged breaches of company policy.

The Complainant brought an Unfair Dismissal claim to the WRC against the Respondent and submitted that the Respondent, as end user / hirer, and not the employment agency was his employer for the purposes of the Unfair Dismissal Acts.

WRC decision – Unfair Dismissal Claim

The WRC Adjudication Officer ("AO") was satisfied that a written contract was in place between the Complainant and the employment agency, who could be considered to be the Complainant’s employer in "general terms". However, the AO referred to Section 13 of the Unfair Dismissals Act 1993 which states that an agency worker shall be deemed to be an employee of the third person under a contract of employment, i.e. the end user / hirer, not the employment agency.

Consequently, the AO found that the Complainant was employed by (and, in the circumstances, unfairly dismissed by) the Respondent in accordance with the Unfair Dismissals Acts.

In relation to the Complainant's efforts to mitigate his losses, the AO found that the Complainant had not made sufficient efforts in this respect. As a consequence, the AO awarded the Complainant just 4 weeks remuneration (€2,494.44) which he found was just and equitable in all the circumstances.

Notice Pay Claim

The Complainant had also brought a claim for notice pay as he was dismissed for gross misconduct and did not receive his notice.

Interestingly, the AO found that, unlike the Unfair Dismissals Act, under the Minimum Notice & Terms of Employment Act, the Respondent was not the Complainant's employer. As a result the Complainant's claim for notice pay was not well-founded.

Conclusion

This is a somewhat unusual provision which may come as a surprise to many employers. Organisations who regularly use agency workers or even those who enter into once-off arrangements with employment agencies are urged to be aware of their obligations and the associated risks when it comes to terminating an agency worker's contract of employment. Such organisations are also advised to consider incorporating relevant indemnities into their commercial agreements with employment agencies for further protections in this regard.

The AO's approach to the Complainant's failure to mitigate his loss is interesting and should also be noted.

Posted in Dismissals

Diversity, Equity and Inclusion

DEI stands for diversity, equity and inclusion. As a discipline, DE&I is any policy or practice designed to make people of various backgrounds feel welcome and ensure they have support to perform to the fullest of their abilities in the workplace.

- Diversity refers to differences within a setting; in the workplace, that may mean differences in race, ethnicity, gender, gender identity, sexual orientation, age and socioeconomic background.

- Equity is the act of ensuring that processes and programs are impartial, fair and provide equal possible outcomes for every individual.

- Inclusion is the practice of making people feel a sense of belonging at work.

Combining these three elements, DEI is an ethos that recognizes the value of diverse voices and emphasizes inclusivity and employee well-being as central facets of success. To bring those values to life, companies must implement programs and initiatives that actively make their offices more diverse, equitable and inclusive spaces. DEI issues matter to candidates and employees, and initiatives improve the long term health of companies

Diversity in the workplace is important because with different backgrounds come different points of view, which ultimately leads to better ideas and solutions.

In order to ensure equal circumstances for all individuals across the organization, equity requires that employers recognize barriers and advantages. This is the crucial difference between “equity” and “equality.”

While the workplace does require professionalism and etiquette, an inclusive culture should not bar individuals from being themselves.

So how can employers be compliant in regards to DEI? In general:

- Employers can include DEI in the handbook.

- Employers can provide training/education sessions to their employees.

- Employers can set up a DEI committee where the situation is analysed and goals are set to be improved.

- Employers can make sure they balance all three and focusing on one can cause the other two to suffer.

More specifically diversity can be improved by:

- Employers can use a blind hiring process which will allows the hiring team to focus on qualifications and experience. A blind hiring process involves names and other identification factors to be removing before the CV is sent for review.

Equity can be improved by:

- Employers can work with each employee to identify development opportunities.

- Employers can avoid asking for previous salaries and instead provide salary guidelines with pay bands that offer equitable salaries for various positions.

Inclusion can be improved by:

- Employers creating a policy on inclusion for the company. In this, issues that have been known in the past can be addressed in this.

- Employers can provide benefits that are flexible and compatible for a more diverse workforce such as floating holidays so employees can have time off for the holidays they choose to celebrate or health insurance plans that offers benefits for LGBTQ+ employees.

- Employers can support differences. If employers provide food, perhaps have a separate fridge for Kosher food.

Budget 2024 - What are the changes?

Budget 2024 was announced on Tuesday, 10 October 2023. The Budget sets out an overall package of €12.3 billion. This is made up of a package of once-off measures worth €2.3 billion, a core budget package of €5.2 billion and non-core expenditure of €4.5 billion for 2024.

• It was announced that the minimum wage will increase from 1 January 2024. The national minimum wage for people aged 20 and over will increase by €1.40 to €12.70 per hour.

Age group Minimum wage from 1 January 2024

• Parents leave will increased from 7 weeks to 9 weeks paid leave from August 2024. Parent’s Benefit is paid in the first 2 years of the child’s birth or adoption. Employees must notify their employer their intent to take parent’s leave and dates no later than 6 weeks before their leave. They apply for Parent’s Benefit at least 4 weeks before the date they start your parent’s leave.

As well as the above, there has been changes to Personal tax, Capital tax, ESG, VAT and VRT.

Further information can be found here. 

We linked a budget calculator as well to help see how Budget 2024 can help you! You can find it here.

Posted in Family Leave, Pay/Wage

Sectoral Employment Order (Construction Sector) 2023

The following minimum hourly rates of basic pay will apply in the sector from 18th September 2023 to 4th August 2024.

• Craftsperson €21.49 per hour
• Category A Worker €20.86 per hour
• Category B Worker €19.35 per hour

Apprentice
• Year 1 - 33.33% of Craft Rate
• Year 2 - 50% of Craft Rate
• Year 3 - 75% of Craft Rate
• Year 4 - 90% of Craft Rate

A minimum hourly rate of basic pay of €15.64 will apply for two years after entrance to the Sector to all New Entrant Operative Workers who are over the age of 18 years and entering the sector for the first time.

Minimum Pension Contribution
The following minimum pension contribution will apply in the sector Pension Contribution from 18th September 2023:

• Employer daily rate - €5.96 (weekly - €29.78)
• Employee daily rate - €3.97 (weekly €19.87)

Total contribution daily into the scheme per worker - €9.93 (weekly €49.65)

More information can be found here.

Posted in Pay/Wage

What is ESG?

Employment related matters are becoming a focus from an environmental, social and governance (ESG) perspective. For employers, it can cover broad issues such as diversity and inclusion, pay transparency, workforce engagement, HR policies, health and safety and more.

Therefore, it is becoming increasingly important for employers to ensure that they comply with new legislation and new standards. Otherwise, employers will not only face standard regulatory risks but they may also be exposed from an ESG perspective. Indeed, many employers who are particularly ESG conscious are seeking to go further than the statutory employment law minimums.

In recent years a large number of legislative changes designed to improve employee rights and security have been made. This flow of legislative change is unlikely to abate anytime soon as the EU Social Taxonomy Report proposes a system to classify what constitutes "decent work". This includes pay transparency, paying the living wage, decent working hours, formal working relationships, equal opportunities, reduction of pay gaps and job creation for young people. With this in mind, it is inevitable that further employment legislation and disclosure requirements are likely to come in over the coming years.

Diversity and inclusion

Diversity and inclusion has in recent years generated significant media attention. Positioning the promotion of an inclusive culture at the forefront of a company's business outlook is the way forward for businesses keen to secure a fully-rounded ESG strategy.

Diversity makes good business sense. Ethnic, gender and cultural diversity in management has been shown to boost business and is linked to both profitability and value creation.

From the social standpoint there are huge expectations on companies from employees, business partners and investors to have a strong focus on diversity and inclusion in the workplace. This is particularly the case amongst the younger generations of workers who are increasingly assessing employers' diversity and inclusion credentials when weighing up employment options.

The Gender Pay Gap Information Act 2021 required employers to publish details of the mean and median hourly pay and bonuses for men and women, the percentage receiving bonuses or benefits-in-kind, explanations for any gender pay gap that arose, and measures they will take to eliminate or reduce this gap. Currently in Ireland, employers with 250 or more employees have had to publish gender pay gap reports - but by 2024, this threshold will drop to just 150 employees and then 50 employees by 2025. More details can be found here.

There is due to be further legislative development in this area as the recently agreed Pay Transparency Directive (the ''Directive'') will soon require the further expansion of statutory obligations on employers in Ireland in respect of gender equality.

Under the Directive, companies will additionally be required to report the disparity of pay between genders, based on categories of workers, who are doing the same work or work of equal value. Member States will be required to establish clear criteria to assess and compare what qualifies as value for work in line with a set of objective criteria, which include educational, professional and training requirements, skills, effort and responsibility, work undertaken and the nature of the tasks involved.

One of the other key provisions of the Directive is the concept of a ''joint pay assessment,'' which will require a company to carry out an assessment where a gender pay gap report identifies a gap of at least 5% in any category of work and where that gap cannot be justified based on gender-neutral factors. Under the Directive, additional pre-employment provisions will also be implemented, whereby employers will now be precluded from inquiring as to an applicant's salary history, while also obliging companies to disclose the initial pay range for the advertised role.

While Irish legislation has not yet been drafted or initiated, the implementation date of the Directive is expected in 2024.

Parental Leave Case Law Example

The Workplace Relations Commission (“WRC”) case of Elizabeth O’Reilly v Avista CLG was brought under Section 18 of the Parental Leave Act 1998 (“the Act”) in respect of the Complainant’s persistent issues with her employer in respect of her applications for parental leave. The Adjudicator confirmed that parental leave is an entitlement and that the Act only requires notice and not an application for approval unless an employee is applying for a period of parental leave that is shorter than a block of six weeks. On that basis, the Adjudicator directed the Respondent to amend its Parental Leave Policy to remove any requirement for approval for parental leave unless requested for a period of less than six weeks. She also ordered that the Respondent confirm the Complainant’s parental leave applications for 2024 and 2025 no later than 1st June 2023.

Facts: The Complainant was employed as a social care worker by the Respondent from October 2002. The Respondent provides housing support for people with intellectual disabilities and complex needs. Having had her first child in 2011, in 2014 the Complainant applied for parental leave which she intended to take in 2015. The Respondent agreed to providing this by reducing her hours over a period of 62 weeks. However, the Complainant made a number of further applications for parental leave, all of which were refused or altered by the Respondent. The leave requests were:

1. In 2017, she applied for one 7-week leave block to be taken in the summer
2. In 2018, she applied for one 7-week leave block to be taken that summer

Both of these requests were refused on the basis that the Respondent would be required to get agency workers to fill in for the Complainant. The Complainant submitted a claim to the WRC, which resulted in a failed mediation and the matter was returned to be heard by an Adjudicator. In 2019, the Complainant applied for parental leave by reducing her hours and this was also refused. Further requests for parental leave made in April and May were also refused so she brought a further claim to the WRC in February 2020. The Respondent requested details of her plans for the next five years, but the Complainant wanted to make an application on an annual basis. After failed mediation for this claim, it was returned to be heard by an Adjudicator, but was withdrawn by the Complainant when she was granted her leave for a 6-week block in August and September 2021. On foot of this, the Complainant made a further application in October 2021 for 7 weeks in 2022, which was again refused. This time the Respondent stated that it was being refused as one block but approved the parental leave to be taken by way of a reduction to her working hours. The reason given for this was to allow all employees two weeks holidays during the summer. Further requests for a block of leave for 2023, 2024 and 2025 or for reduced hours were not confirmed by the Respondent. It stated that it would confirm with the Complainant by 30th April each year and argued at the hearing that this met its obligation as it was in excess of the 4 weeks’ notice required to be given under the Act.

 Decision: Section 6 (1) of the Act states that

“An employee who is a relevant parent in respect of a child shall?be entitled?to leave from his or her employment, to be known and referred to in this Act as ‘parental leave’, for a period of 18 working weeks to enable him or her to take care of the child”. From September 2020, this period was increased to 26 weeks.

In order to avail of this entitlement, section 8 requires the employee to provide notice in writing to his employer at least six weeks in advance of the start date of the leave. The Adjudicator pointed out that the requirement to give “notice” is not a requirement to seek “approval” and she compared it to the entitlement in respect of maternity leave.

Section 11(1) of the Act provides for an employer to refuse the parental leave only on a limited basis – were

“the employer is satisfied that the taking of parental leave at the time specified in the notice would have a substantial adverse effect on the operation of his or her business, profession or occupation by reason of seasonal variations in the volume of the work concerned, the unavailability of a person to carry out the duties of the employee in the employment, the nature of those duties, the number of employees in the employment or the number thereof whose periods, or parts of whose periods of parental leave will fall within the period specified in the said notice or any other relevant matters, the employer may, by notice in writing given to the employee not later than 4 weeks before the intended commencement of the leave, postpone the commencement of the leave to such time not later than 6 months after the date of commencement specified in the relevant notice under section 8(1) as may be agreed upon by the employer and the employee”.

The Adjudicator pointed out that “employers are required to find ways to enable their employee to balance their family life with their working life”. The Adjudicator stated that where the employer does not meet the required justifications set out in Section 11(1) than parental leave may only be postponed by agreement between the employee and employer and the employer does not discretion to refuse an employee who gives notice of his or her intention to take parental leave.

The Adjudicator noted that the Respondent had not argued that it was “swamped” with applications for parental leave during the summer months. Perhaps if it had, there would have been grounds to refuse the application until a later date.

The Respondent’s Parental Leave Policy contains the following clause:

“Application for Parental Leave should be approved by your Senior Manager/Service Manager and then submitted to Human Resources for final approval in your Centre of Employment, not later than six weeks before the proposed commencement date under section 8(1) of the Act.”

The Adjudicator stated that this policy was misleading as it suggests that managers have discretion to “approve” an application and in fact provides for managers and HR to provide “final approval”. The Adjudicator therefore directed the Respondent to amend its policy and remove the word “approval” except in respect of parental leave requests for periods that are shorter than 6-week blocks.

The Adjudicator further directed the Respondent to provide confirmation to the Complainant of her parental leave for the summer of 2024 and 2025 by 1st June 2023 and to ensure that it has adequate cover for her parental leave of 2023, 2024 and 2025 as it had been given plenty of notice to provide same.

Takeaway for Employers: This decision clearly illustrates that employers must facilitate the taking of parental leave when sought to be taken in a minimum of a 6-week block and that an employer may only postpone such a request by no more than six months if it meets the justifications set out in section 11(1). The decision reminds employers that approval can only be sought if the request for parental leave is for a period of less than a 6-week block.

Posted in Employment Law, Parental Leave

A Guide to Redundancy

Redundancy is a painful process for both the employee and the employer. It is a decision that many businesses seek to avoid but sometimes a restructure of the organisation or reducing the number of roles is necessary.
Redundancy occurs where an employee is dismissed for reasons such as:

1. Employer ceasing business
2. Requirements of the business have changed
3. Employer requires less employees
4. Change in work systems (mechanisation etc)
5. Role amalgamation

It is essential when roles are being made redundant the selection and consultation process is fair and objective and those employees who are selected are done so in a transparent and fair manner. Most third-party claims in relation to redundancy are often based on the selection process.

Selection
There are two broad methods of selection for redundancy:

1. Last in First Out
2. Selection matrix: objectively selects employees for a redundancy based on a compiled score of their skills, knowledge, and other relevant criteria. The criteria must be as objective as possible, which should only be based on facts which have been documented and/or raised to the employee prior to the redundancy.

Employers would be bound by the precedent for redundancy selection in the company or agreed mechanisms between a union and the company. It is imperative that businesses are aware of the following two points:

• Custom and practice – what did the company do in previous redundancies if any?
• Agreed procedure – is there a precedent or an agreed procedure in place? This is more commonly seen in unionised work environments.

In terms of the recommended process, employers should make an announcement to the employee(s) – advise them they’re ‘at risk’ of redundancy, explain why this is happening and inform the employee you will then be entering into consultation with them.

Consultation

• Consultation meetings should be arranged with the employee(s), an employee is entitled to bring representation i.e., colleagues/external union official.
• During these meetings it’s important to give the employee(s) an opportunity to have their input/say into the situation.
• Consider proposals for alternative roles/options – implement if feasible.
• If there is no alternative roles/no other viable options – you are looking at proceeding to termination – and give notice of redundancy.
• Ensure notes are taken at each meeting and request that the employee(s) sign these to confirm they are an accurate reflection of the items discussed.
• Consider offering a right to appeal the redundancy decision.
• Redundancy process should not be rushed - there should be at least a minimum of two weeks for consultation.

Jury Service - FAQ

The Juries Act 1976 places a civic duty on individuals to provide jury service when chosen to do so by random selection. The Act has a number of provisions aimed specifically at an employer’s obligations to employees who are requested to undertake jury service. We have set out these obligations through a set of FAQs.

Do employers have to provide paid time off for employees who attend jury service??
Yes, the employer must allow the employee to take paid time off to attend jury service where required. This also includes when an employee is summonsed for jury service but may not actually be called on to serve on the jury panel.

Is this protected leave??
Yes, an employee’s employment is protected for the duration of their jury service. At the end of jury service leave, they are entitled to return to their original job under terms and conditions no less favourable than those which would have applied if they had not been absent.

Can employers request that the employee does not attend jury service??
The employer is prohibited from stopping an employee from fulfilling their civic duty to attend jury service, however, an employer can ask the employee, if they agree, to make an application to be excused which outlines the reason why they are unable to attend. It is important to note that the decision to grant the application is at the discretion of the County Registrar. If the application is refused the employee must be allowed to attend jury service.

How can application to be excused be made??
Employees should state their reasons as fully as possible on the form J2 that is attached to the original summons, explaining why they should be excused and send it to the County Registrar. The application should include any certificates or documents in support of their application.

An employee has been called to give evidence for a civil / criminal case, are they entitled to paid time off??
No, jury service should not be confused with a situation where an employee has been requested or subpoenaed to provide evidence in civil law or criminal proceedings. In such a case, there is no entitlement to paid time off work. However, the organisation may, at its discretion, decide to allow the employee to avail of either annual leave or unpaid leave.

Is the employee entitled to annual leave and public holiday entitlements??
Yes, employees continue to accrue annual leave and are entitled to their full public holidays.

How much notice should an employee give when called to jury service??
An employee should provide written notification to you that they need to avail of jury service leave. This should be received as soon as possible after they have received the jury service summons. You can request that the written notice includes evidence of the times and dates that they are required to attend court. 

In the instance that an employee is required to attend part of a working day for jury service leave, can an employer request they return to work??
Yes, an employee must return to work immediately after they have been released from court. For each day they attend jury service, they should provide you with a certificate of attendance from the County Registrar evidencing the dates and times of their jury service.?

Posted in Employment Law

Bonuses 101: A Guide to Managing Bonuses

Many employers routinely consider the award of bonuses to their staff at this time of year and inevitably this leads to disputes with some staff members about the failure to award a bonus to them at all or at a particular level. In this blog, we set out some factors of which employers should be mindful when making bonus-related decisions.

Entitlement to a bonus

The contractual status of a bonus is a significant factor to consider. Generally, offer letters and employment contracts outline eligibility to earn a bonus without explicitly guaranteeing it. They often state that the bonus scheme's operation and the amount awarded are solely at the employer's discretion. Bonuses are typically contingent upon the employer's business performance, the employee's work performance, or a combination of both during the previous year.

Even if bonuses are described as discretionary, there might still be a contractual entitlement to them implied in the employment contract. This could happen when an employee consistently receives a bonus at a particular level over an extended period due to custom and practice. If a contractual entitlement exists and the employer fails to pay the bonus, it could lead to a breach of contract claim or a complaint about an unlawful deduction from wages. It may also contribute to a constructive dismissal claim. In some cases, bonuses might be factored into loss of earnings awards in unfair or constructive dismissal cases.

The entitlement to a bonus may be contingent upon the employee remaining employed (and not serving notice) at the time of the award and not facing any performance or disciplinary issues. However, in instances where no express condition exists, courts have rejected implying such terms.

Employers should be aware that even if they have the discretion to terminate a bonus scheme, they cannot withhold bonuses that employees have already earned and accrued under the scheme as it was at the time. This means that once employees meet the conditions for earning the bonus, they have a right to receive it.

Exercising discretion to award a bonus

Bonuses are typically evaluated based on objective individual and/or business performance criteria. Employers must clearly define the criteria and decision-makers responsible for awarding bonuses at specific levels. Bonuses may come in various forms, including stock options, subject to the scheme's terms. However, caution should be exercised to avoid conditions that could be seen as a restraint of trade or penalty clause, as these might be deemed void due to public policy considerations.

In cases where bonuses are discretionary, employers cannot exercise their discretion arbitrarily or unfairly. The decision-making process must be carried out in good faith, consistently, and in line with the implied duty of trust and confidence. While equality laws do not require identical treatment of employees, employers should be especially cautious not to discriminate based on any protected characteristics. Ensuring fairness and transparency in bonus allocation fosters a positive work environment and reinforces the employer-employee relationship. Employers should be mindful to avoid any discrimination amongst employees based on any protected ground(s):

• Gender
• Marital status
• Family status
• Age
• Disability
• Sexual orientation
• Race
• Religion
• Member of the Traveller community

Employees on leave

Care should be taken regarding employees absent on sick leave during the performance year.

The general principle in relation to maternity leave is that where a bonus comprises payment for work done, an employer is entitled to make a pro rata reduction in the bonus award for an employee’s absence on leave. However in many cases, there is scope for dispute about whether bonuses are in respect of work done. This area can be fraught with risk, and close consideration should be paid to whether a bonus is expressed to relate to company performance only or in combination with individual employee performance.

Remote Working Updates by the HSA

The responsibility for safety and health at work rests with the employer regardless of whether an employee works remotely or at the employer’s premises. Employers must provide a safe work environment and, in doing so, assess the risks and ensure appropriate controls are in place to safeguard employees at work.

The Health & Safety Authority (HSA) have now updated their Remote Work Guidance and Checklist. This guidance provides useful information and advice on managing remote working away from the employer’s normal work premises. If you have employees working from remotely (from home or from a work hub), this guidance is applicable to your business.

In addition, they have issued separate guidance on Managing Psychosocial Hazards in the Workplace. This Information Sheet gives practical advice on what psychosocial hazards are, and the roles and responsibilities of employers and employees in relation to managing psychosocial hazards.

Click the links below to find out more:
• Remote Working Guidance and Checklist
• Psychosocial Hazards Information Sheet

Posted in Health & Safety, Hybrid Working