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
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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!
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Fixed Term Contracts
When can I use them? What you need to watch out for?
One of the most difficult areas of employment law for employers to fully grasp, is the whole area of fixed term contracts and how they can turn into the dreaded CID (contract of indefinite duration).
What is a fixed term contract? This is a contract that will end on a specified date, or when a specific task is completed, or when a specific event occurs. Generally, a fixed-term contract ends on an agreed date. Such a contract period may range from a matter of months up to a period of a year or more. However, a fixed-term contract can also involve a specified-purpose and so may not end on a specific date. Rather, it is agreed that the contract will finish when a particular stated task is completed, such as replacing an employee while she is on maternity leave.
Employees on fixed-term contracts have broadly similar rights to those on open-ended contracts. The majority of employees work under open-ended/permanent contracts of employment. In other words, the contract continues until such time as the employer or employee ends it. Many other employees however, work under fixed-term contracts.
The expression, fixed-term contract, is used for convenience here. It also includes specified-purpose contracts.
By law an employer must provide a fixed-term employee with a written statement as soon as possible, outlining an event which will trigger an end to the contract .That is, whether the contract will end on a specific date, following completion of a specific task or a specific event. (None in place? Get started today).
In addition, where an employer intends to renew a fixed-term contract, a written statement must be supplied to the fixed-term employee no later than the date of renewal, setting out the objective grounds justifying the renewal and the failure to offer a permanent position.
Employers are obliged to inform fixed-term employees of vacancies for permanent positions. This may be done by means of a general announcement.
The Protection of Employees (Fixed Term Work) Act, 2003 provides under section 9(3) that a contract of indefinite duration will arise by operation of law if a contract is awarded in breach of sections 9(1) or 9(2) of the act
In simple terms, if an employee is employed on 2 or more successive fixed term contracts in continuous employment for a period of 4 years, then any attempt to give that employee a further fixed term contract is unlawful and void at which stage the employee is entitled to a contract of indefinite duration.
If your employee is entitled to a CID, he/she will have practically all the same entitlements as a permanent employee.
If this is an area that interests you then, click here to read the key aspects of the legislation which employers should be aware of, when issuing fixed term contracts.
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Employment Appraisals, what are they?
Employment Appraisals are meetings that can be held every three months for the first year of employment and six months thereafter. They help clarify expectations and required standards, assist the development of new and existing staff and help keep a record of experience, training, strengths, and weaknesses.
Managers carry out appraisals to monitor actual performance; deal with problem areas and most importantly gain valuable feedback from employees. They should be conducted in a positive and open manner to help create an effective working relationship between the employee and the employer.
They are extremely useful and necessary during an employee’s probationary period. During the probationary period, performance in doing the job and potential abilities are evaluated to determine suitability for the position and the company. This should be set out in the company’s handbook which outlines the company’s probationary policy.
In a nutshell appraisals help the company:
• Evaluate employee performance during the probationary period
• Praise and encourage individual strengths
• Identify training requirements
• Evaluate suitability for continued employment
The company should provide adequate training and additional assistance if required, should the employee fall short in their duties. It is important to document meetings with employees during their employment and keep a copy of such on their staff file. You will need this documentation should a grievance arise during or after employment and also to refer back to it, if promises or follow up were made. It is important to keep up to date, accurate records, should you find the employee unsuitable and it becomes necessary to dismiss them.
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Discrimination due to disability
A recent Equality Officers decision resulted in an employee in a healthcare company being awarded €20,000 compensation for discrimination due to her illness.
The dispute concerned a claim by the employee that she was subjected to discriminatory treatment in her working conditions by the employer on the grounds of disability and she was moved to a different area of the company as a result of her disability. The employee referred a claim of discrimination to the Director of the Equality Tribunal under the Employment Equality Acts. Who then delegated the case to Valerie Murtagh – an Equality Office- for investigation, hearing & decision.
The employee was employed with the company since 10 April 1978 and was initially employed as an assembler and had been working with the Bio Clean team since 2002. In 2006, the employee was diagnosed with Multiple Sclerosis; the employer was at all times fully aware of the employee’s condition. At the request of the employer, the employee attended a medical assessment in December 2012 and again in January 2013. The employee confided in the Doctor “a new issue of concern in respect of her job”, however she instructed the Doctor that she did not “want to formalise it into a complaint or grievance”. The employee maintains that the Doctor took it upon himself to report her issue to management and request that they look into the problem and “try to lessen any tensions within the group”.
Soon after the employee was asked to attend a meeting entitled “Meeting with Management and Sandra to discuss return to work”. It was at this meeting the employee contends that the minutes clearly indicate the purpose was to inform her it had been decided by the employer to move the employee from the “Bio-Clean Dept.” to the “Makes Spares Area”. The employee queried if this move was as a result of her MS condition to which the line manager replied that if she did not have the condition she would not be removed from the area.
The Equality Officer found that instead of carrying out risk assessments of the job and duties based on the employee’s illness, management made a decision to move her to a completely different area. This decision was made on the basis of an alleged concern on the part of the company that the employee would suffer from fatigue caused by her MS. This contention appears to have been made in the absence of any medical evidence and was based purely on an assumption by the employee’s line manager.
The equality officer found that the respondent did discriminate against the employee on the disability ground. The officer directed the employer to re-instate the employee in the “Bio-Clean” area and also gave an award of financial compensation of €20,000 which equates to six months’ salary. This is in compensation for the effects of the discrimination and is not subject to PAYE/PRSI.
If the above company had discussed with the employee how they could help to alleviate any issues and then followed-up with review meetings they could have saved themselves a lot of money. Bright Contracts has all the relevant policies and procedures built into the software for employers to use and follow for instances just like this. www.brightcontracts.ie
For further detail on this case please see: http://www.workplacerelations.ie/en/Cases/2015/February/DEC-E2015-009.html
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Workplace Relations Bill set to radically overhaul employment disputes
In the new streamlined system, the Workplace Relations Commission will be the one-stop shop
The Workplace Relations Bill 2014, which should be enacted this year, is considered to represent the most substantial revision of the employment law framework. As an overhaul of the engine driving dispute resolution, the legislation seeks to reduce costs, increase efficiencies and simplify a process of referral.
Once existing cases are settled in the current environment, the system should be streamlined and forever replace the current structures of different types of claims that are played out in different arenas.
The amalgamation of these existing theatres – the EAT, the ET, the Labour Relations Commission and the National Employment Rights Authority(NERA) – will all be folded into one; the new Workplace Relations Commission (WRC).
The appellate functions of the EAT will move to a reconfigured Labour Court which will act as an appeals body for the new WRC. High Court appeals can be lodged on a point of law only. This new system reduces the potential lifespan of a dispute to two full hearings – an initial case and an appeal.
Importantly, the bill also provides for a legally binding early resolution or mediation facility. While participation is not obligatory and parties may opt to proceed straight to adjudication, where it is undertaken it can lead to a pre-arbitration agreement that could prove less costly.
Key to this aspect is confidentiality. For example if an employer offers a settlement but the employee rejects it, the offer cannot be used as an indication of culpability during a later hearing.
Actual adjudication sessions will be held in private before a single officer who will hear the claims against a broad spectrum of employment law considerations.
According to the Department of Jobs, Enterprise and Innovation, adjudicators will be sourced from a “diverse group”, with industrial relations and HR practitioners, employment lawyers and appropriate civil servants all in the mix.
While the thinking behind the legislation is to expedite claims where possible, there must remain room for appeal. In that respect, unwelcome decisions by an adjudicator can be brought to the Labour Court (within 42 days) with full public hearings, and where decisions will be published. The High Court too is available, but only on points of law and so the potential for a string of appeals is severely curtailed.
A reduction in expense is also on the wish list. Costs cannot be awarded to either side in a dispute, meaning legal fees must be met by clients regardless of the outcome. Legal representation is not mandatory. The Department has indicated there will be no fee for referrals to either the adjudication or appeal stage.
Whether or not the new system delivers on the improvements it seeks will not be known until the first cases begin easing their way through the system later in the year.
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Avoiding the Top HR Mistakes Small Businesses Make
For time pushed managers of small businesses, HR and people matters often come far down the never ending “To Do” lists. However, employers ignore HR matters at their peril; avoiding such matters can often have painful, costly consequences that can set businesses back.
The following are some of the most common HR blunders that small businesses are making.
• Failure to recruit properly
o Don’t fall into the trap of hiring somebody just because you know them or because you feel sorry for them. Only hire people who have the skills, experience and qualifications for the job. Also, always carry-out reference checks on new employees.
• Not having Employment Contracts and Policies in Place
o Legally, every employee regardless of whether they are full-time, part-time, or temporary should have a written statement of their terms and conditions of employment. Having well drafted policies clearly sets out a company’s stance on certain matters, enabling managers to smoothly deal with issues should they occur.
• Incomplete or Inaccurate Documentation
o Regulations are in place that specify certain information that employers must hold on employees, failure to comply with such regulations could result in costly fines. Additionally keeping accurate records will help employers manage different situations as they arise, e.g. records of an employee’s performance/ disciplinary background will be crucial if escalated action, such as dismissal, is required.
• Not understanding basic employment law
o Employers should never assume that employment laws don’t apply to them! Unfortunately for businesses employment law is ever changing. It is the duty of employers to keep on top of legislation and make sure their business is operating as it should be.
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Force Majeure Frequently Asked Questions
Force Majeure leave is a statutory leave which allows employees paid time off work in times of a family crisis.
Below are answers to some force majeure FAQs to help employers understand how to manage any such requests.
What is considered a family crisis?
The entitlement to force majeure leave applies where the employee’s immediate presence is indispensable due to the illness or injury of a close family member. This is a particularly strict interpretation and generally relates to a medical emergency. Whilst not impossible, it is rare that an employee would be entitled to consecutive days of force majeure leave as generally the immediacy and emergency would have ended on day one.
Force majeure leave does not give any entitlement to leave following the death of a close family member, this should be dealt with under an employer’s compassionate leave policy.
Who is defined as a close family member?
• A child or adopted child of the employee
• The husband/wife/partner of the employee
• A parent or grandparent of the employee
• A brother or sister or the employee
• A person to whom the employee has a duty of care
• A person in a relationship of domestic dependency
How much time is the employee entitled to?
Employees are entitled to 3 days in a rolling 12 month period and 5 days in a rolling 36 month period.
Does the employee need to have built up service to be entitled to Force Majeure?
There is no service requirement in order to be eligible for force majeure leave, all employees are entitled to apply for the leave.
How should the Employer be Notified?
By its very nature notice cannot be given of force majeure. Whilst employees should inform their employer of their absence as soon as possible e.g. by phone call, upon returning to work they should complete a Force Majeure Leave form specifying the detailed information. A sample force majeure leave form can be found here. http://www.brightcontracts.ie/docs/sample-documents/force-majeure-leave-request-form/
Are employers entitled to request evidence of the emergency?
Yes, employers may request that the employee provide evidence of the emergency where possible. Employers should also be aware that any records in relation to force majeure should be kept on the employee file for up to eight years.
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EAT Awards three Employees €80,000 each
Three employees formerly employed in the home of the Ambassador of the United Arab Emirates have each been awarded €80,000.
The Filipina women were employed by the Ambassador doing housework and childminding duties. The employees originally worked for the Ambassador in the UAE and relocated with the family to Ireland in April 2011.
The court heard that the women were forced to work 15 hour days, seven days a week. They shared a bedroom within the Ambassador’s premises, however the bedroom only contained two beds which the three women had to share.
The Ambassador paid the women €170 each per month, but there was no evidence of payslips or other paper work to show statutory charges like Universal Social Charge were being paid.
Neither the Ambassador nor his wife appeared or were represented at the hearing.
Considering the amount of employment legislation that we have in place today, this is an alarming case, were all employment rights legislation had been breached. The Tribunal Chairperson said she found the case “deeply disturbing”, and particularly so considering the employers public profile.
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Signs that your new hire won't work
From time-to-time every hiring manager makes a hiring mistake. No matter how rigorous your screening and interviewing process, what you thought you saw is not always what you eventually get.
It’s never fun to realize you made a bad or ill-informed hiring decision. The good news? It’s often easy to tell early on if a new employee won’t work.
Here are some telltale signs to help recognise whether a new employee will work out:
• Still at the “Old Job”: It’s understandable for new hires to want to bring forward new ideas – but if your new employee is constantly bringing up their old company it raises the questions as to why they left in the first place. If employees aren’t willing to adjust to the way things work at your company, it’s unlikely they’ll have the flexibility you need.
• Attendance Issues: attendance problems are always a red flag, but if within their first month of employment they are frequently late or are already calling in sick, they are not going to be a reliable employee, it’s a sure sign that they don’t care enough to make an effort.
• Too Assertive: While new employees should definitely voice their opinions, raise concerns, and stand behind their decisions, they should also take it slow and feel their way through interpersonal and organisational dynamics so they can build positive relationships. A new employee who takes too strong a stand, argues too loudly, or even borders on confrontational is likely to be a handful once the new hire honeymoon period is over. Quietly assertive is good; loudly assertive, especially in the first few weeks, means you may have hired someone who will always be a real handful.
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