Worst excuses for not paying the minimum wage!
This year is marks the 15th anniversary of National Minimum Wage in the UK. To coincide with the anniversary, HMRC have released a list of some of the most unusual excuses given by employers about why they don’t pay their employees the legal wage. Reasons include:
• “I don’t think my workers know anything about the NMW because they don’t speak English.”
• “When the NMW goes up I do increase the amount I pay a little, even if the total pay is still below the NMW. I don’t think it’s right to ignore the rises in NMW.”
• “It wasn’t a conscious decision to say ‘I’m not going to pay this’, but I’ve never really considered doing it because I’ve not had people come to me and say, ‘I’m not getting paid enough’, or ‘Is this the minimum wage?’”
• An employee ran out of the premises when HMRC officers arrived to check for NMQ infringements. The same employee then returned, minus the work pinafore, pretending to be a customer.
• One employee claimed to be a friend of the owner and only in the restaurant as they were in the area. HMRC offices returned on a different day to find the person in the kitchen preparing food.
NERA have responsibility for carrying out workplace inspections and investigating possible infringements in Irish workplaces. Whilst the above excuses are from British employers, Irish employers are not all innocent either. For the period January 2013 to June 2013 €420,941 in unpaid wages was recovered from Irish employers, for the same period in 2012 €426,818 was recovered.
Minimum wage in Ireland for experienced adults is €8.65. An experienced adult is any individual over 18 with 2 years work experience of any kind.
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Using interns? Are you fully compliant?
Internships are an excellent opportunity for inexperienced individuals to gain valuable experience to kick start their career. They also offer many benefits to employers, helping them identify future talent.
However, employers who offer internships need to be sure they have the correct procedures in place and are operating with the law. In the UK, companies who are exploiting interns are being specifically targeted by the Government. The UK has seen many examples of interns being exploited, the saddest of which was in September 2013 when a 21 year old London intern collapsed and tragically died, apparently from exhaustion after working 72 hours without a break.
Thankfully we haven’t seen such extremes in Ireland, but employers need to be vigilant.
Do interns have any employment rights?
Yes, interns do have certain employment rights. These rights include the right to:
• Annual leave & public holidays
• Appropriate breaks and rest periods
• Protection from bullying and harassment
• Fair procedures
• Data Protection
Polices on the above, as well as Health and Safety policies, should be an integral part of any interns induction.
Should Interns be paid?
In some cases, yes an intern may be entitled to be paid. Whether or not an intern is entitled to minimum wage will depend on the facts of their individual situation, their relationship with the organisation and what actual happens in practice.
Under the Minimum Wage Act 2000, if an individual is carrying out work of value to an employer, has a similar level of supervision and responsibility as the rest of the workforce, they are likely to be entitled to be paid at least the minimum wage, regardless of whether they have the title of Intern or not. There is currently little case law on this, however the Act is broad so it could easily be the case that basic tasks of interns may fall under the Act.
Government Intern schemes such as JobBridge or various FAS schemes are exempt from some employment legislation, however private schemes will not be exempt.
What proactive steps can be taken?
If an employer is satisfied that an individual will be an intern, details of the agreement should be put in writing, clearly outlining the learning objective, training/support provided and schedule for feedback.Internships should generally be kept relatively short. The longer the internship the greater the possibility that the intern will be carrying out work, and acquiring employment status.
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Employee arrested after payroll theft
UK supermarket giant, Morrisons have hit the headlines over the last week after it was discovered that payroll data belonging to over 100,000 of its 131,000 strong workforce had been stolen by a member of staff.
The information which includes bank details was published online and sent on a disc to a UK newspaper.
The supermarket has confirmed that the information has been removed from the internet and also that no customer details had been accessed by the thief. They’ve also reassured the affected employees that they will not be “financially disadvantaged” as a result of the crime.
The case highlights the risks employers face with regards to confidential information being leaked. It emphasises the need for employers to take proactive steps in protecting their data. It may not be possible for every employer to implement complex data security systems, but at a minimum, employers need to have confidentiality policies in place that prohibit employees from disclosing confidential data. Internet, email, social media and telecommunication policies will also clarify what is expected behaviour for employees across these mediums. Having robust policies in place will enable employers to take appropriate action where inappropriate behaviour occurs.
See also our blog “What to do if you suspect an employee of stealing”.
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Have we caught up with pay equality?
The gender pay gap is still very much a controversial issue right across Europe.
Recent research by the European Commission revealed that on average across Europe women’s earnings are 16.4% below those of men. According to the statistics, gender pay differences are highest in Estonia at 30%, Slovenia leads the table with only 2.5% and Ireland is placed in 10th position with 14.4%, ahead of countries such as the UK, Germany and France.
In terms of sector, the gender pay gap is generally higher in the financial and insurance sector. In Ireland pay inequality raises to 20.6% in business economy workplaces.
The gender pay gap for those under 25 years of age is lowest in almost all European countries, and gradually increases as women get older. Reflecting the fact that, women’s family responsibilities do contribute to inequality figures. This would suggest that greater flexibility around sharing of parental leave between both the mother and father would be beneficial.
However, responsibility does also lie with employers; employers have an obligation to ensure that where men and women are performing the same or similar duties, then they are entitled to be paid the same rate. Where this is found not to be the case, employers could find themselves defending an Equality Tribunal claim, as was the case for an Garda Siochana in 2012 when clerical staff successfully brought a case of unequal pay treatment in which the Garda where ordered to close a pay gap of €9,000 per year.
Last Saturday 8th March was International Women’s Day. The day celebrates the social, political and economic achievements of women while focusing world attention on areas requiring further action. Considering these result, it is fair to say that equal pay is an area where further action is required.
European Gender Pay Gap by Country
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Employee unfairly dismissed for improper Internet use - €7,000 Award
On 17th December 2013, the Employment Appeals Tribunal in Mullingar heard a claim that an employee had been unfairly dismissed by her employer for improper internet use. The employee was employed as a Marketing Assistant in the wholesale electrical company from 1st November 2010. For the first year, the employee worked a 3 day week as she was completing a graphic design course. From the 1st November 2011 the employee began working a 5 day week
.
At the hearing the Managing Director claimed that both he and the Office Manager had warned the employee on a number of occasions about her non-work related internet use. The Managing Director claimed the warnings were of a verbal nature. The Managing Director said that on 16th January 2012 he witnessed the employee on a social media site and he called her to his office before proceeding to dismiss her from her employment with the Company.
The Company did not have a formal internet use/social media policy in place while the employee was employed. It also became apparent that the employee did not receive a contract of employment nor did she receive a copy of the Company’s disciplinary procedures.
The employee stated that she completed all work that was assigned to her and that she regularly requested more work to do during her working hours but was not provided with enough work to take up all her working hours. The employee explained that, if she was aware of the company’s policy around internet use/social media then she would have abided by it.
The Tribunal found that there was no gross misconduct on the part of the employee; the Tribunal found that the employee was Unfairly Dismissed and awarded her €7,000 in compensation under the Unfair Dismissals Acts 1977 to 2007.
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How to Roll out Contracts & Handbooks to Existing Staff
Introducing a contract of employment or a handbook for the first time to current employees, can be a difficult, tricky matter for many employers.
It is an area that many employers put on the long finger, or avoid doing until they have to.
Common reasons for not implementing employee documentation include:
• Lack of time
• Fear that employees will refute the terms of the documents and refuse to sign
• Anxiety that documentation will harm the relationship between management and staff, if the employees feel a new set of rules are being entrust upon then
• A false belief that it will restrict how management deal with employees
However, this does not have to be the case. It is possible to introduce new documentation without spending huge amounts of time, alienating your work force, or causing disruption.
The answer lies in good communications.
To help employers introduce employee documentation, we’ve created a short video outlining our four step guide to rolling out contracts and handbooks.
Alternatively, read our guide to Introducing Contracts & Handbooks to Existing Staff available here http://www.brightcontracts.ie/docs/introducing-contracts-handbooks-to-existing-staff/
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National Employment Week - Improving employment for everyone
The 4th National Employment Week takes place this week, 24th to 28th February. National Employment Week was established as a forum focusing on social and economic issues surrounding employment in Ireland. As the country endeavours to reduce the number of people out of work and move towards economic recovery, National Employment Week puts employment at the centre of the agenda.
The week offers the opportunity to employers, managers and HR professionals to share opinions and experience on employment issues and set the national employment agenda.
Although supported by Government, with both the Taoiseach and Minister for Social Protection, Joan Burton attending several events throughout the week, there is very much a commercial aspect to the week. The week itself has strong, reputable sponsorship with The Irish Times, The Chartered Institute of Personnel and Development (CIPD), Sigmar Recruitment and Monster.ie all involved. In addition all events, seminars and focus groups alike, are attended by professionals representing employers of all sizes and types across Ireland.
This year the focus will be on the following topics:
• Digital Innovation and the Drive for Talent
• Significance of Company Culture
• Emerging Talent
• The importance of investing in the future
• Mental Health & Employment
The highlight of the week is the National Employment Summit which takes place on Wednesday in the Convention Centre, Dublin. This is a free event and anyone can attend to hear practical measures that can be taken back to businesses.
National Employment Week is striving to achieve a better employment market for everyone. It is heartwarming to see such positive steps being taken. If you don’t make any of the events this year, mark it in your diary for next year. Further information can be found at http://www.nationalemploymentweek.ie/.
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How to deal with employee absence due to bad weather
The last few weeks has seen the UK and Ireland battle record-breaking storms and floods. This has literally left many employers high and dry. So what do you do if your employee’s can’t attend work due to bad weather?
Employees must attend work unless they are on authorised absence, or if they are unwell. Under their contracts of employment, employees still have to attend work, even in extreme weather conditions. If the workplace remains open during the bad weather and the employee cannot make it in, the employer can treat the absence as un-authorised. In such situations, employers would be well within their rights to refuse to pay an employee who cannot make it into work.
However, employers should consider the impact of deducting pay on productivity and employee morale in the long run in these circumstances, especially if the weather makes it impossible to get to the workplace or the workplace is closed through no fault of the employees. Often in these situations the financial burden is compensated by the positive impact on morale and productivity.
In general, it is recommended that employers try to implement as flexible an approach as possible. Possible options can include:
• Having the employee take time off as annual leave. It should be noted that employers also cannot force their employees to take annual leave unless this is expressly provided for in the employment contract.
• Consider whether the employee can work from home
• Allow the employee to make up the time at a later date
Whatever option you do go with, make sure it is clearly communicated and consistently applied to all staff. It’ll make managing the situation a lot easier when the situation does arise.
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What to do if you suspect an employee of stealing
Employee theft is a very real challenge for Irish employers. According to Retail Ireland, 39% of Irish retailers have experienced theft of stock by employees.
However, employer theft doesn’t have to be the direct theft of stock, products or cash, it can also include:
a) Manipulation of company records either to embezzle money or to hide the theft of goods
b) Aiding theft by another person
c) Theft of company information for personal or financial gain.
Should employers suspect theft in the workplace, they need to exercise caution in how they proceed. Employers who handle these matters incorrectly can often end up with costly employee claims.
Real Life Story
A sports shop owner in Donegal suspected an employee of stealing. He checked his CCTV and clearly saw the employee pocket money. The owner continued to review the CCTV footage and further incidents followed. The shop owner dismissed the employee for gross misconduct.
Fast forward 2 years later to the Employment Appeals Tribunal where the court finds in favour of the employee. Why? – because proper procedures were not followed.
So what should you do?
The onus to prove theft actually took place will be on the employer, therefore it is essential that businesses have appropriate policies in place that will allow for a full and proper investigation. Such policies should include a Disciplinary Policy and a Right to Search Policy. If you don’t have a Search Policy you need to include one!
CCTV Surveillance
The use of CCTV surveillance is heavily regulated by Data Protection legislation. If employers want to rely on CCTV to provide a defense, they should:
a) Notify individuals of the presence of CCTV cameras, i.e. in the Staff Handbook and with signs
b) Never use hidden cameras to watch staff
Dos and Don’ts of Workplace Theft
Although each case will be different the below are general guidelines on how to approach concerns of theft.
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Do |
Don't |
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Conduct a full investigation |
Don’t take disciplinary action, including dismissal, without giving the individual the right to appeal |
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Carefully follow your internal procedures, including Disciplinary policies and Right to Search |
Don’t urge employees to resign |
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Notify employees if there is CCTV in operation |
Don’t threaten to call the Guards if you don’t intend to |
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Act only on firm evidence, e.g. financial records, witness statements, CCTV |
Don’t forget that employees have the right to be accompanied to disciplinary meetings |
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Give employees the opportunity to review and respond to any evidence you are relying on e.g. CCTV evidence |
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Workplace Bullying in Ireland amongst the highest in Europe
Newly published research places Ireland as the 7th worst EU country for workplace bullying. The research, conducted by the European Foundation for the Improvement of Living and Working Conditions, also found that Ireland rated highly for cases of physical violence and sexual harassment.
According to the research approximately 6% of European workers have been victims of some form of bullying, whether it is verbal, psychological, physical, or sexual harassment over the last 12 months.
Speaking in response to the finding SIPTU’s Tom O’Driscoll has commented that SIPTU, at any given time could have “over one hundred (bullying cases)”. He said, “bullying mainly comes from managers or those in positions of power but can be colleague on colleague.”
Workplace bullying can have an extremely disruptive effect not only on an individual’s performance at work but also on their home-life and their psychological wellbeing.
Employers need to be vigilant in this area, and take proactive steps to remove bullying from their workplaces. This will include:
- Having robust bullying and harassment policies and procedures in place
- Taking all complaints of bullying or harassment seriously, taking appropriate action
- Acting immediately if bullying or harassment is suspected in the workplace – not procrastinating
- Training all managers fully on managing employees
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