Paternity Leave – It’s finally here!
Budget 2016 confirmed months of speculation that Irish fathers would finally receive paid paternity leave. Full details are yet to be announced, but on the birth of a child new fathers will be entitled to 2 weeks leave, paid at statutory pay rates. The new legislation will come into effect in September 2016.
Paternity leave to-date in Ireland has been purely at the discretion of employers, leaving many new fathers forced to take annual leave or unpaid leave on the birth of a child.
Against our European neighbours, we have been lagging miserably behind, with 20 of our neighbouring States already offering paid paternity leave. Top of the list, are (predictably) the Scandinavian countries, with Finland, for example, offering 9 weeks paid paternity leave. However, we are really shown-up by some of the other countries who too have paid paternity leave options in place, including Slovenia, Latvia and Hungary
Overall, our family leave policies are extremely “maternalist”, being based on the assumption that women are still the primary child care providers. Again, other countries are ahead of us in recognising the role of working mothers and the value of both parents in the first year of a child’s life. For example, in the UK the majority of working parents have the opportunity to share 50 weeks of shared parental leave after the birth of a child. Whilst Minister for Children James Reilly has hinted at the possibility of a full years’ parental leave to be available to be shared by both parents, it is unlikely that we will see this measure anytime soon.
For now, employers need to be ready to update the policies and procedures outlined in their employee handbooks and clearly communicate to employees what is available to them.
Bright Contracts - Employment Contracts and Handbooks
Major employment changes for Security and Contract Cleaning Industries
On 1 October 2015, two new Employment Regulations Orders(EROS) took effect in the security and contract cleaning industries affecting approximately 50,000 Irish workers.
An ERO is an agreement which sets out specific pay and working conditions for workers in specific sectors. The terms of such agreements usually go beyond basic employment legislation such as the national minimum wage.
The new EROs offers certainty to employers and employees in these sectors, following a period of confusion and uncertainty caused as a result of EROs being ruled unconstitutional in July 2011.
ERO highlights for security sector
• Minimum wage set at €10.75
• Overtime set at time and a half
ERO highlights for contract cleaning sector
• Minimum wage set at €9.75
• Overtime set at time and a half for the first four hours over 44 hours per week and double time thereafter
Bright Contracts are currently reviewing the new legislation and will be providing comprehensive, user-friendly guidance to employers in the near future.
Bright Contracts - Employment Contracts and Handbooks
Workplace Relations Act 2015
Major changes in the manner employment disputes and complaints are dealt with as well as new procedures for ensuring compliance with employment law come into force on October 1st 2015. The newly enacted Workplace Relations Act 2015 provides for a range of changes to the bodies and the procedures which deal with the:
- Resolution, mediation and adjudication of industrial disputes and
- Resolution of complaints about breaches of employment legislation
The New System
The Workplace Relations Act 2015 provides that there will be two bodies dealing with complaints and disputes in relation to industrial relations and employment law. These are the Workplace Relations Commission (WRC) and the Labour Court.
The Labour Relations Commission is being abolished and all its functions transferred to the WRC. The functions of the Equality Tribunal, including functions under the Equal Status Act, are also being transferred to the WRC.
The Employment Appeals Tribunal (EAT) is being abolished. Its functions in relation to claims for redress, disputes or complaints are being transferred to the WRC. Its functions in relation to appeals are being transferred to the Labour Court.
It should be noted that he EAT will continue to operate until it deals with the cases that are before it when this Act comes into effect. It will then be dissolved. The EAT currently has approximately 3,500 cases outstanding. The average waiting time for a hearing before the EAT is currently 63 weeks. In some areas it is significantly longer.
The Labour Court will continue in existence with a number of existing and additional functions. The current members will remain in place. In future, appointments as chair and deputy chairs will be by public competition. When vacancies arise for ordinary members, trade union and employer organisations will nominate three candidates and the Minister for Jobs, Enterprise and Innovation will choose one.
The Workplace Relations Commission
The WRC will have a representative board consisting of a chairperson and eight other members.
The main functions of the WRC are to:
- Promote the improvement of workplace relations, and maintenance of good workplace relations
- Promote and encourage compliance with the relevant laws
- Provide guidance in relation to compliance with codes of practice
- Conduct reviews of, and monitor developments as respects, workplace relations
- Conduct or commission relevant research and provide advice, information and the findings of research to Joint Labour Committees and Joint Industrial Councils
- Advise the Minister for Jobs, Enterprise and Innovation in relation to the application of, and compliance with, relevant laws
- Provide information to the public in relation to employment laws other than the Employment Equality Act
The WRC may also provide advice on any matter relating to workplace relations to employers, their representative bodies and to employees, trade unions or other representative bodies of employees.
The WRC also has specific functions in relation to the resolution of industrial disputes and the implementation of employment laws. It will be the body to which all industrial relations disputes and all disputes and complaints about employment laws will be presented.
Mediation and Adjudication
The WRC will employ Mediation and Adjudication Officers to deal with industrial disputes and complaints about non-compliance with employment laws.
Mediation officers
Complaints and disputes will initially be presented in writing to the Director General of the WRC. The Director General may refer the complaint or dispute to a mediation officer if it is considered that the complaint or dispute is capable of being resolved without being referred to an adjudication officer and if neither of the parties objects to it being dealt with in this way.
Mediation is conducted in private. If agreement is reached as a result of the mediation, that agreement is legally binding on the parties.
Adjudication
If mediation is not used or is not successful, the complaint or dispute is referred to an Adjudication Officer. The current Rights Commissioners and equality officers will be Adjudication Afficers. A further 19 adjudication officers are being appointed. References in existing legislation to a Rights Commissioner now refer to an adjudication officer.
If the dispute or complaint is referred to an Adjudication Officer, the adjudication officer then generally conducts an inquiry. The Adjudication oOficer may dismiss a complaint or dispute if it is considered to be frivolous or vexatious. Such a decision may be appealed to the Labour Court within 42 days.
The Director General may decide to deal with the complaint or dispute by written submissions only, unless either party objects to this within 42 days of being informed.
At the inquiry, the parties have an opportunity to be heard and to present any relevant evidence. Hearings by an adjudication officer will be in private. Up to now hearings by Rights Commissioners have been held in private but EAT hearings have been in public.
Complainants may be accompanied and represented at hearings before an adjudication officer by a specified or permitted representative.
The adjudication officer then makes a decision in accordance with the relevant law and gives that decision in writing to the parties.
Decisions by adjudication officers will be published on the internet without identifying the parties.
Time limits
In general, the time limit of six months, extendable in certain circumstances remains unchanged. There are specific provisions about when the time limits begin to run in cases of disputes about adoptive leave, maternity leave, parental leave and carer’s leave.
Enforcement of decision of adjudication officer
The employer has 56 days in which to carry out the decision of the adjudication officer. If the employer fails to do so an application can be made to the District Court for an order directing the employer to do so. In general, the District Court must make the order. If the decision was to reinstate or re-engage the employee, the District Court may substitute an order to pay compensation of up to 104 weeks’ pay calculated in accordance with the rules under the Unfair Dismissals Act 1977 to 2007.
In all cases involving compensation, the District Court may also order interest to be paid.
It is an offence to fail to comply with an order directing an employer to pay such compensation to an employee unless the employer can show, on the balance of probabilities that they were unable to comply with the order due to financial circumstances.
Appeal to Labour Court from decision of adjudication officer
Appeals against decisions of adjudications officers may be made to the Labour Court. Such appeals must generally be made within 42 days but this can be extended if the Labour Court is satisfied that there were exceptional circumstances causing the delay.
The Labour Court may decide to deal with the complaint or dispute by written submissions only, unless either party objects to this within 42 days of being informed.
Labour Court hearings on appeals are in public unless the Labour Court decides that they should be in private (or partly in private) because of special circumstances. Parties are entitled to be represented at Labour Court hearings in the same way as at hearings before an adjudication officer.
The Labour Court has wide powers to require witnesses to attend and to take evidence on oath.
The Labour Court may refer a question of law arising in the appeal to the High Court. The High Court’s determination is final and conclusive.
Either party may appeal the decision of the Labour Court to the High Court on a point of law. Such an appeal must be made within 42 days. The decision of the High Court is final and conclusive.
Enforcement of Labour Court Decisions
An employer has 42 days to implement the Labour Court’s decision. If the employer fails to do so, the employee, the WRC, the employee’s trade union or excepted body may apply to the District Court for an order directing the employer to do so. The District Court must grant the order. In cases where compensation is to be paid, the District Court may also order the payment of interest. It is an offence to fail to comply with an order directing an employer to pay such compensation to an employee unless the employer can show, on the balance of probabilities, that they were unable to comply with the order due to financial circumstances.
Enforcement of employment legislation
The authorised officers and inspectors who are currently employed by the National Employment Rights Authority will continue to have a similar role with the WRC. New arrangements for prosecutions and new compliance measures are introduced by the 2015 Act.
Inspectors have extensive powers to collect documentary and personal evidence in relation to alleged breaches of workplace legislation. This includes the power to enter premises, see and/or remove documents and interview people. If necessary, inspectors may be accompanied by other inspectors or members of An Garda Síochána. They may apply to the District Court for search warrants. Their powers under the various employment laws are restated and consolidated in the Workplace Relations Act 2015.
Prosecutions
The Minister for Jobs, Enterprise and Innovation has the power under a number of employment laws to bring summary prosecutions against employers who are alleged to be in breach of the law concerned. These powers are being transferred to the WRC. The Act provides that, in most cases, the employer will be liable for all legal costs.
Compliance Notices
The Act provides a new process for the serving of compliance notices. An inspector may serve a compliance notice on an employer if satisfied that a contravention of the relevant legislation has occurred. This notice specifies how that contravention is to be rectified. An employer may appeal against the compliance notice to the Labour Court within 42 days. There is a further appeal from the decision of the Labour Court to the Circuit Court. It is an offence for an employer to fail to comply with a compliance notice.
The existence of a compliance notice or any dispute about it does not prevent employees from taking action in relation to any alleged breach of employment law in respect of them. Neither does it prevent any prosecution for an offence under employment laws.
Compliance notices may be used in relation to breaches of the following legislation:
- Notice to employees of procedure for and grounds for dismissal under the Unfair Dismissals Act 1977 to 2007
- Regulation of certain deductions made and payments received by employers under the Payment of Wages Act 1991
- Leave on health and safety grounds under the Maternity Protection Acts 1994 and 2004
- Requirement to give an employee a written statement of terms of employment and requirement to give written notice of changes to those terms under the Terms of Employment (Information) Acts 1994 to 2014
- A range of possible breaches of the Organisation of Working Time Act 1997 including those in relation to rest periods, Sunday work, working hours, information on working time, zero hours contracts and holidays
- Protection of employment rights under the Carer’s Leave Act 2001
- Obligation of hirers to agency workers under the Protection of Employees (Temporary Agency Work) Act 2012
Fixed payment notices
The Act provides for using fixed payment notices for certain offences. This is a new development which may well be expanded in future. Inspectors may issue fixed payment notices for amounts up to €2,000 where they have reasonable cause to believe that a person has committed a relevant offence. The fine must be paid within 42 days. The relevant offences are:
- Breaches of the obligation on employers to consult representatives of employees and to provide information to them under the Protection of Employment Act 1977 (collective redundancies)
- Failure to provide statement of wages and deductions from wages under the Payment of Wages Act 1991, or
- Failure to provide employee with statement of average hourly rate of pay for pay reference period under the National Minimum Wage Act 2000
General Powers of the WRC
The WRC inspectors and adjudication officers have various powers to get information from employers and employees and to provide that information to other official bodies. For example, they may:
- Require employers to disclose their registration number and employees to provide their PPSN and to disclose these numbers to official bodies for the purposes of investigating or prosecuting alleged offences under employment law
- Disclose information to public contracting authorities that a person with whom that authority has entered into a contract (either a primary contractor or a party to a secondary contract) has been in breach of employment legislation and may require such an authority to disclose similar information to them
The WRC may make arrangements with other official bodies to facilitate administrative co-operation.
It may also enter arrangements with foreign statutory bodies for the exchange of information relevant to its functions and for the provision of mutual assistance.
Codes of practice
The WRC may prepare codes of conduct for the guidance of employers, employees and others affected by employment laws. It does not have this function in relation to the Employment Equality Act 1998; codes of practice in relation to that Act are the responsibility of the Irish Human Rights and Equality Commission.
Fees
The Act allows for the charging of fees for services provided by the WRC and the Labour Court. The Minister has said that it is not the intention to introduce such fees in general. However, it is intended to introduce a fee of €300 for an appeal to the Labour Court where the party who is appealing had not turned up to a hearing at the WRC.
Changes to specific laws
Virtually all employment laws are changed to some extent by this Act because the enforcement procedures are changed. There are some other specific changes that relate to the Unfair Dismissals Acts, the Employment Equality Act, the Equal Status Act, and the Organisation of Working Time Act.
Bright Contracts - Employment Contracts and Handbooks
Tribunal sees the delay in addressing an issue as amounting to an unfair process.
At a recent Employment Appeals Tribunal an employee of an NCT centre was awarded €35,000 for Unfair Dismissal after his employment was terminated for behaviour that his employer deemed to be serious misconduct.
The issue at hand was that the employee tested his own vehicle on the morning of March 10th 2012. The employee handbook, which the employee confirmed he had received, had guidelines pertaining to their own vehicle or family members vehicles - that it is forbidden to test one's own vehicle or one belonging to family members. "The inspector must inform his manager who will organise for another inspector to test the vehicle."
On the 8th of July 2013 an investigative meeting was held relating to the testing of the employee's own car, a second investigative meeting occurred on the 29th of July and furthermore a disciplinary meeting was held on the 15th of August whereby the employee was suspended from duties with pay until a final decision was made. On the 16th of August 2013, nearly a year and a half after the incident occurred, the Regional Manager wrote to the employee informing him that his employment would be terminated with effect from the 27th of September 2013. The employee appealed the decision unsuccessfully.
The employee denies he was ever informed that testing his own vehicle would result in dismissal.
The fact that the employer took action and dismissed the employee more than a year after the incident is what led the tribunal to find the termination of the employee as unfair.
So even though the employer followed their own protocol, the fact it was not done at the time of the incident or even close to it, allowed for the Tribunal to see the delay in addressing the issue as amounting to an unfair process.
Bright Contracts - Employment Contracts and Handbooks
Read more at www.workplacerelations.ie >
How employers pass on tips, gratuities and service charges to their employees
The Call for Evidence will look at how restaurants treat tips left by customers and whether government intervention is necessary to strengthen the voluntary code of practice run by the industry.
The inquiry will seek information and views from the hospitality industry and other key stakeholders and will consider whether there should be a cap on the proportion of tips restaurants can withhold from staff for administrative costs and, if so, what this level should be.
Research from 2009 found that one in five restaurants did not pass tips to their staff, yet the vast majority of customers said they wanted the waiting staff to receive tips left for them. More than three quarters wanted to clearly see the restaurant’s tipping policy displayed clearly.
While there is a voluntary code of practice which is overseen by industry body the British Hospitality Association, restaurants may currently choose to ignore its 4 principles of transparency and adopt various tipping practices.
The Call for evidence has been launched by the Department of Business, Innovation & Skills (BIS) and will run until 10th November 2015.
Bright Contracts - Employment Contracts and Handbooks
Data Protection Annual Report 2014
The 2014 Annual Report for the Data Protection Commissioner (DPC) has been published and, as always, it makes for some interesting reading. By far the most interesting news for employers centres around the increased levels of prosecution of company directors over data protection.
Of the 960 complaints received, 521 of those (54.3%) related to subject access requests. In an employment context, this would relate to an employee seeking access to their full files and any material about them kept on company records.
Under the Data Protection Acts, an employee has the right to request a copy of all data on record about them, why the data is being retained by the company, who has access to the data, and the source of the data. An employer can charge the employee a fee not exceeding €6.35 for processing the information. If an employee lodges a legitimate access request then the employer has 40 days to provide the information.
Very importantly, the Report has reiterated that “enforced subject access requests” is an offence and “the Data Protection Commissioner intends to vigorously pursue and prosecute any abuse detected in this area." This most commonly arises where a candidate for a job is required by the interviewing company to submit a subject access request to their previous employers. The interviewing company then uses that information as a part of their interview decision making process. Again to note, such a practice is deemed an offence and the DPC will look to prosecute any employer on this matter.
The Report highlighted that 2014 was the first time that the DPC prosecuted company directors for their use of private investigators. The cases did not relate to investigating employee behaviour through private investigators, however, the 2014 report puts employers on notice that the DPC very much frowns upon the use of private investigators and employers should thread very carefully in this area.
An interesting case highlighted by the Report related to the HSE giving an employee’s payslips and a P60 to that employee’s ex-wife. The ex-wife then used these documents in court proceedings in relation to maintenance issues. The DPC went on to specify that the HSE had breached the Data Protection Acts by issuing the employee’s information to a third party without the employee’s prior consent. Other case studies highlighted how a Dublin County Council issued a person’s email address details to third parties without consent and also a credit union issued details of a member’s loan to that member’s daughter without consent. Both the County Council and the credit union were found to have breached the Data Protection Acts.
Employers are advised to not issue any employee data any third party unless you have secured prior employee consent.
Another case that employers should take note of is that of a financial institution reporting an ex-employee to the DPC after that ex-employee had sent a customer list to his personal email address around the time he left employment. This ex-employee was now running a business from his own home. The DPC contacted the ex-employee who affirmed that they had deleted the data in question. This case was interesting as it is a legitimate avenue that employers can pursue to protect business interests whilst also protecting the personal data of customers.
Data Protection is a growing area of employment law and it can impact on a variety of issues and areas that employers need to be aware of - the DPC has the power to audit or inspect any workplaces and indeed 39 company inspections were carried out in 2014.
The DPC's annual budget has been doubled to 3.65m, demonstrating the Government's recognition of the growing demands on the DPC's Office. Additionally, the appointment of a junior minister with responsibility for data protection further signals the importance attached by the Government to Ireland's role in the space.
The full report can be read here: https://www.dataprotection.ie/docimages/documents/Annual%20Report%202014.pdf
Bright Contracts - Employment Contracts and Handbooks
Use of CCTV in Disciplinary Procedures
All usage of CCTV, other than in a purely domestic context, must be undertaken in compliance with the requirements of the Data Protection Act. Extensive guidance on this issue is available by clicking this link. In summary, all uses of CCTV must be proportionate and for a specific purpose. As CCTV infringes the privacy of the persons captured in the images, there must be a genuine reason for installing such a system.
The images captured should be retained for a maximum of 28 days, except where the image identifies an issue and is retained specifically in the context of an investigation of that issue.
A recent decision of the Employment Appeals Tribunal brought into focus some pitfalls which employers can face in seeking to rely on CCTV footage in disciplinary proceedings, read the full story here!
The employer's failure to adhere to data protection legislation in the case at hand meant that the Employment Appeals Tribunal was always likely to find against them. Accordingly, employers who have CCTV cameras installed in their premises should be cognisant of the data protection legislation. In this regard, it should be noted that the Data Protection Commissioner has issued guidance on this matter in recent years. In particular, the Data Protection Commissioner has advised the following:
The rationale for using CCTV surveillance in disciplinary procedures must be that it is justifiably necessary to protect some legitimate aim of the employer.
1. The use of the CCTV must be transparent. In this regard, the Data Protection Commissioner has advised that employers make employees aware of the presence and location of the cameras and the purpose of the footage captured prior to using the cameras. As a result, an important point to note is that an employer cannot use information gathered from surveillance as evidence in a disciplinary matter unrelated to the purpose for which the cameras were installed.
To conclude, all employers utilising CCTV surveillance should take the following steps or else they will be unable to successfully rely on such evidence in disciplinary proceedings:
1. Issue a written policy to employees outlining the situations in which monitoring may occur and the purpose of such monitoring.
2. Ensure that the installation of CCTV cameras is transparent. In this regard, it is advisable that notices are displayed around the workplace highlighting that CCTV is in operation.
3. Ensure that the purpose for the CCTV is justifiably necessary.
4. Carry out surveillance in a fair manner.
A company’s staff handbook should clearly state all points addressed above if you have CCTV installed in your business but no policy then click here now and download our software for free.
To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here
Workplace Relations Commission to commence from 1st October 2015
The Minister for Jobs, Enterprise and Innovation, Richard Bruton, on Monday the 8th of June welcomed the signing into law of the Workplace Relations Act 2015 and announced that the Act will be commenced on 1st October 2015.
The reform of employment rights and industrial relations bodies is a major piece of public service reform and will see the existing five employment rights bodies merged into two bodies:
• The Workplace Relations Commission will deal with all cases at first instance
• The Labour Court will deal with all cases on appeal
Through the better use of technology and shared services, the cost of running these bodies will be reduced through staff reductions, eliminating duplication and centralising administration and case management services. This rationalisation will deliver a much better service to the end users, both employers and employees, and at a reduced cost to the state.
Minister Bruton said: “Reform of the State’s employment rights and industrial relations bodies has two principal goals: to deliver a better service for employers and employees and to deliver savings for the taxpayer, businesses, and workers. We have seen major progress in these areas already, and the formal establishment of the WRC will see further gains. The announcement we are making today is a further important step towards the final delivery of this important reform”.
To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here
Policies & Procedures – the importance of
A recent case in the Employment Appeals Tribunal shows the importance of having policies and procedures in place and following them.
The Tribunal awarded an employee compensation of €94,000 for Unfair Dismissal when her previous employer dismissed her without any procedure whatsoever let alone any fair procedure.
Having been employed with the company for over 18 years, an employee was called to a meeting to be told she was dismissed with immediate effect and had 10 minutes to leave the building. The employee was handed a letter at this meeting which detailed her “Severance Agreement”, on provision she sign away her rights under the Unfair Dismissals legislation and also to state she had received legal advice.
When queried if the sum being offered was by way of redundancy, she was told “the company is not going down the redundancy route on this occasion.” The “Severance” amount she was offered was less than statutory redundancy. The employee did not accept the severance sum that was offered.
Within the same month as the employee’s dismissal, her position was advertised by the company but on a 12 month contract. She was never offered this as an option.
The employer had sought to replace the existing employees’ permanent position with an impermanent position without due consideration for the employee.
More information on this case can be found at: http://www.workplacerelations.ie/en.Cases/2015/June/UD1627_2013.html
Bright Contracts - Employment Contracts and Handbooks
What is Vicarious Liability?
Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator.
How does this affect Employers?
Employers are vicariously liable, for the negligence of the employee because the employee is held to be an agent of the employer. If a negligent act is committed by an employee acting within the general scope of her or his employment, the employer will be held liable for damages.
One such area that employers need to watch out for is bullying and harassment in the workplace. If you read Section 15 of the Employment Equality Act 1998, which is entitled “Vicarious Liability etc” where if an employee bullies a colleague on any one of the nine grounds of discrimination then the employer can be found vicariously liable.
Liability of employers and principals. 15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or
(b) From doing in the course of his or her employment acts of that description.
The compensation explanation of vicarious liability holds that the logic for the doctrine is to ensure that innocent plaintiffs have a solvent individual against whom to bring a claim against and if we look at both the employee and the employer it is more likely to be the employer who is wealthier and/or carries insurance.
If you have no current Bullying and Harassment or Equality Policy in the workplace then just click here and let Bright Contracts handle it for you today!
Bright Contracts - Employment Contracts and Handbooks
