Irish Workplace Fatalities above EU Average
The past 2 months have seen the deaths of at least 5 people due to accidents in the workplace. Ireland is slightly above the EU average in terms of the number of fatal accidents at work in a year, according to European Union's statistics agency, Eurostat. The statistics show that the rate of workplace deaths in Ireland was just over four per 100,000 people employed in 2012. The family farm was the most dangerous workplace, with fatalities in the agricultural sector accounting for 30 deaths in 2014, compared to 16 the previous year, an increase of 87pc.
The question therefore is: what can be done to ensure safety compliance? The Safety, Health, and Welfare at Work Acts 2005 and 2010 set out health and safety responsibilities for both employers and employees.
Employers' duties
The employer has a duty to ensure the employees’ safety, health and welfare at work as far as is reasonably practicable. In order to prevent workplace injuries and ill health the employer is required, among other things, to:
- Provide and maintain a safe workplace which uses safe plant and equipment
- Prevent risks from use of any article or substance and from exposure to physical agents, noise and vibration
- Prevent any improper conduct or behavior likely to put the safety, health and welfare of employees at risk
- Provide instruction and training to employees on health and safety • Provide protective clothing and equipment to employees
- Appointing a competent person as the organisation’s Safety Officer
Employees’ duties
The duties of employees while at work include:
- To take reasonable care to protect the health and safety of themselves and of other people in the workplace
- Not to engage in improper behavior that will endanger themselves or others
- Not to be under the influence of drink or drugs in the workplace
- To undergo any reasonable medical or other assessment if requested to do so by the employer
- To report any defects in the place of work or equipment which might be a danger to health and safety
Bright Contracts - Employment Contracts and Handbooks
Social Media (Part 4) - Cases
Over the past number of weeks we have posted a series of blogs on social media and the impact of certain areas for employers and the workplace. We’ll turn now to social media related cases that are coming through the courts and consider the decisions passed down
Fairness of Dismissal depends on circumstances:
- Case One = Unfair Dismissal
An employee was dismissed for posting insulting comments on Facebook regarding colleagues. The dismissal was held to be unfair on the basis that the comments were relatively minor, were made outside working hours and did not name colleagues specifically. Although a UK case it is a good indication of the thought process likely to be followed in Ireland. Whitham -v- Club 24 t/a Ventura
- Case Two = Fair Dismissal
In this case the employee had posted derogatory comments on Facebook regarding her employer. A key factor in the Irish EAT's decision that this was a fair dismissal was the fact that the employer was specifically named in the posts. O'Mahoney -v- PJF Insurances
The Importance of Robust Social Media Policies
In this case the employee was held to have been fairly dismissed for posting derogatory comments regarding customers on Facebook. The staff handbook expressly stated that acts committed outside work that bring the employer into disrepute would constitute misconduct and that the company reserved the right to take disciplinary action. Preece -v- Wetherspoons
The Importance of Consistently Applying a Social Media Policy
The employee was dismissed for forwarding pornographic material. He maintained he was only forwarding material passed onto him by others in the company, who had not been dismissed and he only engaged in this activity to disguise his homosexuality. Through the EAT he won reinstatement. The respondent appealed the decision, firstly through the Circuit Court and then in the High Court. The High Court upheld the decision and awarded compensation of arrears of wages, for a variety of reasons, one being the fact the employer was aware that sending inappropriate emails was a rising trend but had not implemented a detailed social media policy. It concluded that the bank ought to have notified all employees of the issue with sending such emails and the likely sanctions that could follow, up to and including dismissal, particularly if a zero tolerance policy was to apply. Reilly -v- Bank of Ireland
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WRC receives 5,200 requests for Employment Investigation and Adjudication
Since its inception on 1 October 2015, the Workplace Relations Commission (WRC) has already received 5,200 requests for employment rights investigations or adjudication.
The Director General of the WRC, Kieran Mulvey has referred to the situation currently facing the WRC as an “industrial relations emergency department”.
One need only to look at daily news feeds for confirmation that there is growing unrest in terms of pay and reward across the country. First there was the Luas debacle, then Dublin Bus drivers, followed by DART drivers. The private sector doesn’t appear to be exempt either with Tesco and manufacturing firm Medtronic only two of a whole raft of companies facing some form of pay bargaining.
This upsurge in volatility comes as employees who feel they have legitimate frustrations look to gain back what they lost during the downturn.
The WRC faces a challenging few months ahead. Cool heads will be needed for effective consultation that does not threaten our recovering and fragile economy.
Bright Contracts - Employment Contracts and Handbooks
Social Media (part 3)- Discipline/Dismissals
There are a wide variety of situations whereby employee behaviour on-line can give rise to disquiet in the workplace. Poorly managed social media use can result in disputes can include:
- Excessive use of social media platforms during working hours, whether on work or personal devices
- Comments, photographs, or videos posted online which could cause irrefutable reputational damage to a business
- Behaviour that could be considered as cyber-bulling or harassment, particularly if activity discriminates against a protected characteristic such as religion, race, gender or age.
All of the above can have a significant effect on a business, and it is most certainly in the interests of any employer to prevent such activity from occurring. The question however is, how?
Discipline / Dismissal
There is limited case law in this jurisdiction in Ireland but there are a few principles that employers should take into account before sanctioning an employee for internet, social media activity.
- How did it come to the employer’s attention?
- As a result of unlawful surveillance, which may be considered an invasion of privacy
- If the material has/could cause actual damage or bring the business into disrepute?
- If there is a policy which is clear in covering the activity and if it has been communicated to staff?
- Has the activity taken place in the public or private domain?
While the use and abuse of the internet and social media can sometimes justify employer dismissal and disciplinary action, it is vitally important to have good policies in place. Without appropriate policies setting out the boundaries of what an employee can and cannot do on social media, it can be extremely difficult to discipline an employee for posting items or content with which an employer may take issue, particularly for breaches of employment law and or equality acts.
What should the Policy Contain?
A social media policy should state what type and level of social media use and behaviour is acceptable and unacceptable. It should be made clear that disciplinary action may be taken as a result of inappropriate social media use on private sites and for activities which take place outside working hours, if they impact on the workplace. The business interest or value which is sought to be protected should be expressly identified in the policy so as to provide maximum justification in cases of sanction or dismissal.
As this is a relatively new area for employment law in Ireland it is difficult to tell how Tribunals, Adjudicators may or may not deal with discipline and dismissal cases, but what we have seen from cases that have been before the courts so far is that it is definitely in the best interest of employers to have some form of social media policy then no social media policy!
Next week we’ll cover recent social media cases that have come before the courts and we’ll examine the position that Tribunals appear to be taking.
Bright Contracts has a fully comprehensive social media policy built into the software.
Bright Contracts - Employment Contracts and Handbooks
Social Media Monitoring
Social Media and employment law is a huge area of interest at the moment, given the current and ever-changing online environment we work and live in. It is advisable that employers make themselves aware of the different aspects of social media and the role it can play regarding employment law in the workplace. Having a Social Media Policy in place is hugely beneficial for employers today.
Monitoring & Surveillance
With the advancement of technology, employers can now monitor employees every move as well as internet usage and or e-mail communications quite easily, but it is not clear under the present law whether or not this could be seen as a breach of privacy and the Data Protection Acts, so employers need to be careful.
Social media can come into play in connection with surveillance of workers and the monitoring of employee e-mails and cyber communications. If an employer has in place a policy warning employees that all communications on devices, supplied by the employer or personal, could and would be monitored then it is being made clear to employees that misuse of internet is prohibited. Also a policy needs to be in place to let employees know if monitored CCTV is in operation in the premises or if there is security access, whereby employees need to swipe their personal ID card to gain entry or exit the building, canteen, rest rooms, etc.
Employer policies and actions in relation to monitoring and surveillance of employees must be clear and should only be carried out to give effect to the stated purpose. Monitoring and surveillance in Irish Law in general is governed by the Data Protection Act 1988, as amended in 2003. If an employer wishes to set up monitoring and use the data, it should comply with the principles in this legislation.
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Au Pair Awarded €9,000
Yesterday saw a landmark judgement as an Irish family was ordered to pay a Spanish au pair more than €9,000.
Ruling in favour of the au pair, the Workplace Relations Commission (WRC) found the family breached several employment laws, including:
- Failure to pay minimum wage
- Failure to issue a contract of employment
- Failure to provide correct annual leave
The au pair was paid €100 a week plus board for between 30 and 60 hours of work per week during her employment with the family.
Au pairing in Ireland has increased dramatically in the last five years. According to research conducted by the Migrant Rights Centre of Ireland (MRCI), more than 20,000 Irish households are employing au pairs to look after children and clean homes, with the average au pair paid just € 100 for a 40-hour working week.
Ireland has no legal framework for au pairs and nothing that stipulates that they are exempt from employment regulations. Some Irish agencies tend to categorise au pairing as a cultural exchange programme where the foreign worker lives with a host family to experience a new culture and learn English. However, the validity of this argument is very much under scrutiny in light of this ruling.
Bright Contracts - Employment Contracts and Handbooks
Using Social Media in your Recruitment Process
Social Media and employment law is a huge area of interest at the moment, given the current and ever-changing online environment we work and live in. It is advisable that employers make themselves aware of the different aspects of social media and the role it can play regarding employment law in the workplace. Having a Social Media Policy in place is hugely beneficial for employers today.
Over the coming weeks we are going to look at 3 areas of the employment relationship where social media can play a role: recruitment, monitoring and surveillance and discipline/dismissal.
Recruitment:
Employers generally need to perform background searches on potential new employees, however using social media sites to gain information can be a breach of Employment Equality legislation - if it is found that the employer based their decision to hire or not hire a person because of information gathered online. Asking an interviewee about their family or marital status, age, sexual orientation or if they have or intend to have children and so on is strictly prohibited under employment law so if an employer decides to do an informal check on FaceBook or LinkedIn of a potential new employee this could be construed as a violation of the Employment Equality Acts under one or more of the nine grounds of discrimination.
Also information gathered may not be entirely accurate or true and could result in the employer rejecting a candidate who would otherwise be highly suitable for the role which is being advertised and could lead to increased recruitment time and costs. If searches are not conducted within the boundaries of the law this can open the employer to risks of legal action by a claimant.
Certain protections can be put in place and the first step should be to include a Social Media Policy in the Company Handbook which establishes the rules for recruitment purposes as well as others which we will look at in the coming weeks.
Bright Contracts has a fully comprehensive policy built into the software specifically for Social Media.
Bright Contracts - Employment Contracts and Handbooks
Public Holidays
March this year will include two public holidays, St Patrick's Day and Easter Monday, so how do employers correctly account for public holidays for their employee's?
Under the Organisation of Working Time Act 1997, all employees, regardless of their employment status, are entitled to some form of payment for a public holiday.
Full-time employees who qualify for public holiday benefit will be entitled to one of the following:
- A paid day off on the public holiday
- An additional day of annual leave
- An additional day's pay
- A paid day off within a month of the public holiday
Part-time employees can qualify for the full entitlement as listed above if they have worked 40 hours or more in the 5 weeks preceding the public holiday.
If a part-time employee does not normally work on the day the Public holiday falls, they can receive one-fifth of their normal weekly rate of pay as payment.
There are 9 Public Holidays in the Irish Calendar:
• New Year's Day (1st January)
• St. Patrick's Day (17th March)
• Easter Monday
• First Monday in May, June & August
• Last Monday in October
• Christmas Day (25th December)
• St. Stephen's Day (26th December)
A public holiday is sometimes called a bank holiday, but this is incorrect. Bank holidays are not provided for within the legislation as paid time off. For instance, Good Friday is not a public holiday and therefore there is no automatic or statutory entitlement to time off work on that day.
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Notice Periods - Frequent Questions Answered
Termination of employment can be a difficult stage in any employment relationship, regardless of which party is making the decision to terminate. Notice periods can often be central to misunderstandings and disagreements. To help employers navigate these murky waters, we’ve put together answers to some frequent questions we receive:
How long should a Notice Period be?
The Minimum Notice and Terms of Employment Acts 1973 to 2001, sets out minimum statutory notice periods, which are:
From the Employee to the Employer
- Less than 13 weeks service: Nil
- 13 weeks service or more: 1 week
From the Employer to the Employee
- Less than 13 weeks service: Nil
- 13 weeks to 2 years: one week
- 2 years to 5 years: two weeks
- 5 years to 10 years: four weeks
- 10 years to 15 years: six weeks
- 15+ years: 8 weeks
However, employers are free to set notice periods that are in excess of the statutory minimum, once they are agreed in the contract of employment.
Setting slightly longer notice periods can protect an employer and your business. For example, under legislation, if a long serving, key employee wishes to leave your employment they only need to give you one weeks’ notice. Could your company cope with that? Would one week be long enough to have a full and thorough handover? Would one week be long enough to find a suitable replacement for that person? Experience tells us that the answer to the above questions is more often than not, NO, one week would not be enough. Having an increased notice period gives employers the opportunity to plan for the employee’s departure. What a reasonable notice period is will depend on a number of factors including, length of service, job role, experience and custom and practice.
Does an Employee Have to Work their Notice Period?
In some situations an employer may not want the employee to work out their notice period. There are a number of options open to an employer in this scenario:
- Pay In Lieu of Notice (PILON): it is advisable to include a PILON clause in the contract of employment as it will allow employers to pay the employee their entire notice pay in a lump sum and not have the employee return to work.
- Garden Leave: where a garden leave clause has been included in the contract of employment, an employer can request that an individual stay away from work during their notice period, however they will remain on the company payroll and remain bound by their terms and conditions of employment for the duration of their notice period. Whilst on garden leave an employee may not work for a competitor.
- Serious misconduct: in cases of serious misconduct a contract may be terminated without notice due, however fair and correct disciplinary procedures must have been followed.
Does an employer have to pay an employee if they refuse to work their notice period?
If an employee fails to show up for work during their notice period the employer is not obliged to pay them.
Bright Contracts - Employment Contracts and Handbooks
A New Era for EROs
Following their statutory cessation by the High Court in July 2011, Employment Regulation Orders (ERO's) for certain industries are to be re-established. Starting firstly with the reinstatement of ERO's for the security and contract cleaning industries, bringing improved rates of pay for workers, with new basic hourly rates of €10.75 and €9.75 respectively. The new ERO's, which took effect from October 1st 2015, also set enhanced rates for overtime and other improved T&C's for employees in these sectors. Sounds simple enough, an increase to the hourly rate and the overtime. But what else is there that you as an employer need to know?
Let's look at the security industry ERO.
Overtime: the ERO on the security industry sets an overtime rate for all hours worked in excess of an average 48 hours per week at a rate of time and a half. The ERO also sets out conditions of employment covering issues such Annual Leave, Sick Pay, Training and Hours of Work. And it is here that there are some anomaly's, employers may not be aware of.
A Death in Service Benefit of one year's basic pay will be payable to any employee employed with the company more than 6 months and regardless of whether they were working at the time of death.
A Personal Attack Benefit will apply after 6 months service to all employees covered by the ERO, who are attacked during the course of duty, resulting in an injury. A minimum of 10 and a maximum of 26 weeks basic pay, minus Social Welfare payment could be payable to your employee(s) if they are injured on the job.
Sick Pay Benefit payable of €120 per week for no less than 3 weeks and no more than 5 for employees with 2 or more years service, on top of the Department of Social Protection payment they may be in receipt of.
There are just under 20,000 "security operative" workers covered by the new ERO.
Employers affected are now obliged to pay wage rates and provide conditions of employment not less favourable than those prescribed. Any breaches of the ERO may be referred to the Workplace Relations Commission for appropriate action. And given the restructuring of the WRC, this is an area to keep an eye on as other industry sectors could also get the same "shake-up"
Bright Contracts - Employment Contracts and Handbooks
