Questions that can't be asked at a job interview
It’s no secret that hiring is one of the biggest challenges of managing and growing a productive team.
At interviews we want to obtain important information, but also build a friendly rapport with the candidate. But some questions are just a little too friendly. Over stepping the mark could leave you guilty of discrimination and your company potentially facing an expensive claim.
Employment and equality legislation doesn’t just start once you hire someone, it’s applicable the moment you post a job advert. Those with responsibility for hiring need to be aware of this and avoid precarious comments and questions.
As a general rule of thumb avoid questions that are related to age, marital and family status, gender, disability, religious belief, sexual orientation, race, membership of the travelling community, or any physical attributes of the candidate.
Do’s and Don’ts
OK: What days can you work? What hours can you work?
Not OK: How many children do you have? Do you have a babysitter available if we need you on a weekend? Do the working hours fit with your childcare?
OK: Do you have any responsibilities that would interfere with traveling for us?
Not OK: Do you have a baby or small child at home?
OK: Are you legally eligible to work here?
Not OK: What country are you from?
OK: This job requires someone who speaks more than one language. What languages do you speak or write fluently?
Not OK: What's your native language?
OK: Have you ever been convicted of a crime?
Not OK: Have you ever been arrested? Do you take illegal drugs?
Bright Contracts - Employment Contracts and Handbooks
Social Media Dismissal Case
As reported recently in The Sunday Independent, a decision, by the Employment Appeals Tribunal, clarifies the muddy legal waters surrounding misuse of the internet at work – and sets a clear precedent that spending working hours dawdling on personal Twitter and Facebook accounts is not grounds for dismissal. The recently published decision awarded €7,000 to an employee who was dismissed for looking at social media sites on her office computer during work hours.
The court determined her dismissal was unfair despite the fact that she had been warned about this behaviour several times by her employer on previous occasions. This is the first Irish case to directly address whether social media use at work is, in and of itself, grounds for dismissal. "While previous case law has involved secondary issues such as reputational damage to the employer and procedural errors in the carrying out of dismissals, this case is of particular interest as the dismissal itself and the tribunal's decision directly related to the employee's use of social media while at work," said Catherine O'Flynn, employment law expert at Dublin solicitors William Fry. The employee in question worked as a marketing assistant for an electrical company. The company's managing director told the tribunal that he and the office manager had verbally warned her on a number of occasions about her non-work related internet useage. In January 2012, he caught her on a social media site and fired her on the spot."He believed that the actions of the claimant amounted to a waste of the company's time and resources and her actions constituted gross misconduct," tribunal documents noted. The tribunal ruled that this was unfair and that there were no valid grounds for dismissal. It was influenced, it said, by the fact that the employee had not been supplied with either a contract of employment or an internet and social media policy during her employment. In her evidence, she stated that had she been aware of the company's internet policy, she would have abided by it. It also noted the employee's claims that she had completed all work assigned to her and that her requests for more work were ignored. She said that most of the time she spent on the internet was work related, and that any non-work related use was done openly and out of boredom. Her desk and computer were in full view to others in her office, she said, and she never believed that she was doing anything wrong. "The Employment Appeals Tribunal in this case emphasised the importance of having a social media policy in place and communicating it to all employees."It is therefore vital for employers to have a detailed and specific social media policy in place and to ensure that employees read it and understand it. "It is evident from these survey results that many employers are yet to put in place social media policies. Employers who do not have a social media policy in place are vulnerable to expensive litigation.”
Bright Contracts includes policies relating to Email, Internet and Telecommunications Use as well as Social Media within its staff handbook.
Bright Contracts - Employment Contracts and Handbooks
Changes to Holiday Pay Calculations
As we enter the summer holiday season employers need to ensure that they are paying their employees correctly during annual leave.
A recent decision by the European Court of Justice (ECJ) will impact how some annual leave pay is calculated.
Do you pay employee’s commission? Is the commission calculated based on the amount of sales made or actual work carried out? If yes, according to the ECJ, holiday pay should include commission pay.
The decision was made in the case of Locke v British Gas Trading and Others. Locke was a Sales Representative whose commission made up approximately 60% of his remuneration. After taking two weeks leave in 2011, Locke suffered financially as he was unable to generate sales for the period he was on annual leave.
The ECJ ruled that the purpose of annual leave is to allow a worker to enjoy a period of rest and relaxation with sufficient pay. By not including commission payments with holiday pay, employees are less likely to take annual leave so as to avoid financial hardship.
It has been left to the national courts to determine how to calculate the commission to which a worker is entitled, however the court did suggest that taking an average amount of commission earned over a certain period, e.g. the previous 12 months.
Employers are advised to review their commission policies to establish which, if any, payments need to be included in annual leave pay.
Bright Contracts - Employment Contracts and Handbooks
Ipass - Annual Payroll Conference
IPASS (IRISH PAYROLL ASSOCIATION) held their 15th annual payroll conference in Croke Park on the 22nd May. Both Laura Murphy and myself Audrey Mooney from Thesaurus Software Limited attended the conference. Laura and I enjoyed meeting the other exhibitors, the delegates and listening to the guest speakers. The speakers included Brian Hayes T.D. Minister of State for Public Service Reform and the OPW, representatives from Revenue, Department of Social Protection and Central Statistics Office (CSO).
Managing Director of Thesaurus Software Ltd Paul Byrne in his role as Chairman of the Payroll Software Developers Association (PSDA) gave an informative talk on IT in a Payroll Environment.
It was also an opportunity to show Bright Contracts and our new payroll product BrightPay.
- Bright Contracts is an innovative software package that has everything you need to create and manage your staff handbook and and employment contracts.
- Bright Contracts can be downloaded from www.brightcontracts.ie
- BrightPay is simple to use yet powerful and flexible, it will be offered alongside Thesaurus Payroll Manager giving customers a choice of payroll products.
BrightPay can be downloaded from www.brightpay.ie
Thank you and congratulations to Noelle Quinn and the IPASS team for a successful and enjoyable day.
Bright Contracts - Employment Contracts and Handbooks
How to Manage New Employees
The recruitment process should not simply stop when a new employee is appointed. The likely success, or failure, of the relationship often depends on how well the employee settles in.
A probation period gives you time to make sure that the selection you made was the right choice.
It's an opportunity to evaluate the new employee's performance, commitment and general suitability for the role, and to take the necessary action I they are failing to meet the requirements.
Probation periods generally last from one to six months, depending on the role, the business, and the business needs.
How to Manage the Probation Period:
- Include probation details in the contract of employment, specifically stating the right to extend the probation and/or dismissing an employee during their probation.
- Clarify any different terms and conditions of employment that apply during probation, e.g. some benefits may not be available until completion of probation, the Disciplinary and Grievance Procedures may not apply. This should generally be stated in the contract of employment.
- Provide the employee with a clear job description.
- Carry out an Induction Process. The induction process should start on the employee’s first day. Induction will give them clear guidance on their role, their role within the organisation and appropriate training where appropriate. A detailed Induction Checklist can be found here.
- Provide training. It is recommended that training be provided on in-house procedures, although they may seem straight-forward to you, they will most likely be totally foreign to your new hire.
- Hold regular update meetings with the employee. Continuously monitor their performance throughout the probation. This will allow you to detect any weakness early on and take suitable remedial action to assist the employee. Don’t leave it to the week before the probation is up to meet with the employee.
- Confirm your intentions with regard to the continuation of the probationary period before the planned expiry. The employee should never be surprised with the probation outcome, there should be regular discussions throughout the probation.
The Outcome
There will be three possible outcomes at the end of the probation period:
They’ve Passed! Congratulations, you’ve found a perfect fit!
Probation Extension! You’re still not sure whether this is the right person or not and need more time to assess them. Employee probation periods should not extend over 12 months.
Termination! After continuous monitoring, you’ve decided that it’s not going to work and that it’s best for everyone to part ways.
Whatever the outcome, a formal letter should be sent to the employee confirming the result of their probation.
For guidance on what to include in such letters, please refer to our sample template probation letters available here.
Best of luck with your new starters!
Bright Contracts - Employment Contracts and Handbooks
Employee Awarded €80,000 in Gender Discrimination Case
A former female employee of BCon Communications Limited has successfully defended her claim that she had been harassed and discriminatorily dismissed by her former employer on the grounds of family status and gender.
The Equality Tribunal heard that once Ms Mullen informed her Managing Director that she was pregnant with her third child he “froze her out”, removed tasks from her, and undermined her in front of clients.
It was also claimed that at an interview to find a maternity leave replacement the Managing Director reportedly said “I’m not sure if [Ms Mullen] will be coming back to work especially now she will have three children to look after”.
When Ms Mullen returned from maternity leave she was told that her role of Financial Controller no longer existed. She was offered a lesser role, even though the replacement was still carrying out her former duties. Ms Mullen refused to take on the lower role and the Managing Director considered Ms Mullen to have resigned when she refused to return to work in the lesser role.
The Equality Tribunal awarded Ms Mullen €80,000 for the discrimination suffered.
Family status and gender are two of nine grounds upon which discrimination is unlawful under Irish equality legislation. The other seven grounds include: civil status, sexual orientation, religion, age, disability, race and membership of the travelling community.
This case serves as a reminder of the importance of equality in the workplace and the high awards that are granted where weaknesses exist. To reduce the risk of such claims, employers need to have a clear equality policy in place which should be clearly communicated to all employees, particularly managers.
Bright Contracts - Employment Contracts and Handbooks
Irish working conditions among the best in Europe
80% of Irish employees have rated their working conditions as good, much higher than the European average of 53%.
Under the research published by the European Commission to mark International Labour Day, 1st May 2014, working conditions comprise of a number of factors including:
• Working time
• Work organisation
• Health and Safety
• Employee representation
• Relationship with employer
Denmark topped the scale at 87%, followed by Luxembourg (86%), Finland (84%), and the Netherlands (82%). At the other end of the scale, Spain came in at 20%, Croatia at 18% and Greece being rated the lowest at 16%.
Across the board, younger respondents tended to rate their conditions as better than older respondents. Amongst 15 – 24 years olds 60% said conditions were good, whilst only 46% of those aged 55+ rated conditions as good.
Ireland also scored highly in Health and Safety, with 91% saying they were satisfied with health and safety at their current job.
Interestingly, Ireland and Germany have the lowest proportion of employees in full-time employment at 63%. Croatia topped the poll here at 94%. However, Ireland does have the highest number of employees on temporary employment agency contracts.
Working conditions are one of the key areas covered by European Law. It is extremely encouraging to see Ireland scoring so highly, particularly when the majority of Europeans report that their working conditions have deteriorated in the last five years.
Bright Contracts - Employment Contracts and Handbooks
Eircodes - the new postcodes for Ireland
Every address in Ireland will receive its unique Eircode in Spring 2015.
"The Eircodes will help the public, businesses and public bodies to locate every individual address in the State. Eircodes will bring many benefits to the daily lives of people, householders and businesses. Currently, around 35% of addresses - mainly in rural areas - do not have a unique name or number in their address. With Eircodes, delivery of services and goods will be much easier and quicker to these addresses." - www.eircode.ie
When people receive their Eircode next year, they will not need to change their address. They will just add the Eircode whenever it is needed or useful, so it will be very easy to start using it straight away.
Each Eircode has seven-characters that are unique to each mailing address. The seven characters are divided into two parts – a Routing Key and a Unique Identifier.
For businesses, some of the main things to consider are:
- Stationery, customer forms, websites and other places where your address is shown. Perhaps, plan print stocks of existing stationery items accordingly in the run up to Eircode Launch Date in Spring 2015.
- If you use a software package in your business, you will need to check with its supplier as to their plans for when and how they intend to incorporate Eircodes into the package.
- Some staff training may be needed especially if your systems or processes have changed somewhat to take advantage of Eircodes.
Our software offerings will all be updated to include an extra address field for eircodes and will incorporate all the required validation logic.
Bright Contracts - Employment Contracts and Handbooks
Absence Management
Managing employee absences is an on-going challenge for managers right across the country, from SMEs to multi-nationals.
According to research by the Irish Business and Employers Confederation (IBEC) 11 million days are lost each year in Ireland due to employee absences, at a cost of €1.5 billion per year to the economy.
One of the most effective ways of managing employee absences and helping to prevent reoccurring instances is to conduct Return to Work Interviews with employees. Return to work interviews are one-to-one meetings between an employee and their manager to discuss the employee’s absence.
To assist managers conduct these meetings, which can sometimes be quite sensitive, we’ve put together a short guide and template form to the help managers structure the meeting. This new material can be found under the Support section of our website.
Bright Contracts - Employment Contracts and Handbooks
Dunnes Stores ordered to pay €8,000 to employee
The Employment Appeals Tribunal (EAT) recently heard that a Galway branch of Dunnes Stores installed CCTV cameras to spy on employees they believed to be eating unpaid for chips, chicken goujons, and other food during their shifts. The cameras were installed without the employees being notified. Following their “investigation” Dunnes dismissed up to nine employees for eating unpaid-for food.
The EAT ruled that Dunnes Stores’ investigation “fell short of acceptable practice” and criticised the retailer for spying on employees. Whilst the tribunal recognised that the individual in question, in this case, had contributed to her own dismissal, they ruled that the dismissal was unfair and awarded her €8,000.
Lesson Learnt
This case illustrates the care that must be taken when using CCTV in the workplace. Use of CCTV is heavily regulated by Data Protection legislation. If employers do intend to use CCTV cameras, they must notify employees that cameras are in place and never use hidden cameras.
Secondly, this case highlights the need to follow correct procedures when taking disciplinary action against an employee. Whilst this employee was in breach of the company’s policies, the company’s lack of adherence to appropriate practice resulted in a costly fine. Disciplinary policies and procedures should be adhered to.
For further information on employee theft see our blog “What to do if you Suspect an Employee of Stealing”.
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