NERA Statistics
In the first 6 months of 2013, NERA dealt with 28,794 queries. One of the main topics the queries dealt with related to the terms and conditions of employment.
In the same period NERA made 2,755 workplace inspections, 42% of those inspected were non-compliant and in breach of their employer duties. 29 convictions resulted in fines €400,000 imposed.
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Read more at www.labourcourt.ie >
Reintroduction of Employment Regulation Orders in Hospitality, Catering, Retail-Grocery, Contract Cleaning, Security and Agriculture sectors one step closer.
The reintroduction of Employment Regulation Orders in six relevant sectors: Hospitality, Catering, Retail-Grocery, Contract Cleaning, Security and Agriculture came a step closer last week when on January 28th 2014 the Minister for Jobs, Enterprise and Innovation, Richard Bruton TD, signed Orders giving effect to recommendations contained in the Labour Court Review of the Joint Labour Committees (JLC) which the Minister had published on October 2nd 2013.
It should be stressed that the ministerial order establishes Joint Labour Committees only at this stage. Employment Regulation Orders will not come into effect unless agreed by the parties.
When this occurs, it is intended to update this feature in Bright Contracts package in order to assist employers within these sectors.
This development is part of an overall process that will reduce the number of previous JLCs by half and make further changes to improve competitiveness by enhancing wage flexibility while at the same time ensuring protection for vulnerable workers.
The Orders signed by Minister Bruton provide for the abolition of two existing Joint Labour Committees i.e. Dublin Hotels and Law Clerks
They also provided for amendments to the existing JLC Establishment Orders in respect of:
- Contract Cleaning
- Hairdressing
- Hotels (non-Dublin and Cork)
- Security
The Minister indicated that, as the Agricultural Workers JLC was established under primary legislation, effecting the recommendation of the Labour Court Review will require an amendment to primary legislation. In this regard his officials are engaged with the Department of Agriculture, Food and Marine to see how this can be implemented as early as possible.
The Minister also indicated that it is not his intention to alter the current scope of the two catering JLCs or the Retail Grocery JLC.
Minister Bruton said: “From the start of this process I have said that reform in this area is necessary in order to make the system fairer and more responsive to changing economic circumstances and support job-creation.
“The Orders I have signed will provide the framework within which employee representatives can come together voluntarily to negotiate terms and conditions for workers in their respective sectors. For vulnerable workers, the advantage of JLCs is that they see fair terms and conditions such as wage rates, sick pay etc. agreed and given effect by Employment Regulation Orders. For employers, the advantage of the JLC system, based on the principle of self-governance, means that they can agree and set minimum pay and conditions, agree on work practices which are custom-made to their industry – a flexibility which cannot be achieved by primary legislation. Where both parties to a JLC see commonality of purpose and outcome then an agreement may emerge”.
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Christmas Bonuses
Christmas is a time for giving! As such, many employers use it as opportunity to give back to their employees for their hard-work and contribution throughout the year. Done correctly, bonuses can be an excellent way of motivating and engaging staff.
However, over the last number of years companies have found it increasingly difficult to be able to afford bonuses. This year Eason bookstores has deferred paying Christmas Bonus to over 800 staff in an effort to reduce costs.
Companies, who have paid bonuses for many years and then stop, need to do so cautiously, as the bonus may have become an implied term of the contract of employment. As such, stopping bonus payments could be seen as a breach of contract. Easons itself is in deep negotiation with Siptu regarding their bonus payments.
One way to protect the company against this is to have a clear written statement on bonus payments in the contract of employment. The statement should clearly state that any bonus payments will be non-contractual, or at the very least, clarify that the Company reserves the right to amend the structure of the bonus scheme.
Employers should bear in mind that, monetary bonuses will be taxable, however employees can receive one non-monetary gift per year up to the value of €250 which will be exempt from PAYE/PRSI.
Possible options for utilising this benefit include:
- Vouchers: these generally include:
OneForAll Gift Vouchers
Restaurant Vouchers
Supermarket Vouchers
- A turkey or ham
- A case of steaks
- A team lunch
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Seasonal Workers: what you need to know
Christmas is nearly here! For many companies that means a spike in trade. To cover this period many employers take on additional temporary staff. However, employers need to be mindful that even if an individual is only employed for a few weeks employment legislation will apply.
The below tips will help you through:
- Contracts of Employment: all seasonal workers must be provided with a contract of employment. The contract should clearly state that it is for a specific purpose or specific period and that once completed the contract will end. The contract should state that the Unfair Dismissals Acts 1977-2007 will not apply where the reason for terminating the contract is the expiry of the specified purpose/period.
- Less Favourable Treatment: under the Protection of Employees (Fixed Term Work Act) 2003, seasonal workers cannot be treated less favourably than their permanent counterparts. For example, their annual leave entitlement, eligibility to sick pay or additional benefits such as health insurance should be the same as fulltime counterparts. (There are some exceptions around pensions).
- Continuity of Employment: if you recall the same temporary employees over a number of successive seasons, they may be able to claim continuous employment under an implied contract where the employee has an expectation of further work.
The key to hiring seasonal workers is to have a written contract of employment in place clearly defining the terms and conditions. If there is no contract in place their status may be unclear which can lead to disputes. Having contracts in place will reduce the risk of disputes arising and allow employers to focus on having a productive holiday season.
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Employer Successfully Defends Bullying Claim
Ryanair has successfully defended a claim at the Employment Appeals Tribunal from a former flight attendant, Brian Butler, who claimed he had been bullied by a supervisor.
Mr Butler had claimed that the bullying was to such an extent that he often became nervous, apprehensive and unwell, to the point of being physically sick. The Claimant did raise his concerns informally but because he felt they were not being dealt with fast enough, he decided to resign from his post. The tribunal heard that having submitted his notice Mr Butler went off on sick leave, citing an ear ache.
The tribunal found that although Mr Butler was aware of the Company’s grievance procedure he had not formally raised his issue via the process available to him; he then left the Company before they had an opportunity to address his issues.
Lessons Learnt
This case shows the importance of having a grievance procedure in place and of ensuring all staff are aware of it.
A grievance procedure gives employees a forum to raise issues where they will be dealt with in a consistent, thorough and fair manner.
With no grievance procedure in place an employee has a much greater chance of bringing a successful claim against a company because there was no recourse to raise their compliant internally.
In this case Ryanair’s policies and procedures protected them from what could have been an extremely expensive case.
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How to Manage your Employee Files
All employers need to retain certain information on their employees.
Maintaining accurate, up-to-date employee files ensures employers are:
• compliant with employment law
• prepared to deal with employee relations issues
• equipped to handle any audit or NERA inspection enquiries
Creating & Storing Employee Files
For most companies manual files are the easiest, most convenient way to retain employee files. However, more companies are moving towards electronic records. Personnel files, of both past and present employees, should always be stored securely and confidentially:
• Filing cupboards should be locked or files should be stored in a locked room
• Only those staff who need to use the data should have access to it
• Electronic records should be password protected
• Files should not be removed from their normal place without good reason
Employees Accessing Their own File
Under the Data Protection Act employees have a right to access their personnel file and obtain information with regard to why data is being stored and how it is being processed/used.
With this in mind, employers should:
• never record something that they wouldn’t want a tribunal to see
• hold only factual information (no criticisms or comments about an employee’s personal circumstances or beliefs)
• only hold information pertaining to the individual in question on file otherwise you may infringe on another employee’s Data Protection Rights
Employees’ right to access their own files continues after they have stopped working with a company.
Further details on records to be kept can be found in our guidance note on Record Keeping Requirements. http://www.brightcontracts.ie/docs/record-keeping-requirements/
Bright Contracts - Employment Contracts and Handbooks
€27,300: The Average Cost of Workplace Accidents to Employers
Last year €22m in total in Ireland was paid out in compensation for workplace accidents. For a small business with limited cash reserves, compensating an injured employee can be the difference between survival and insolvency.
There are practical steps that businesses can take to protect themselves and their employees, since most workplace injuries are preventable.
Slips, trips and falls are the largest cause of accidents in all sectors. Last year they accounted for 33pc of all claims.
One in five of those slips or trips resulted in employees missing a month of work, or more. 25% of all workplaces surveyed by HSA inspectors had not carried out a Slip, Trip and Fall risk assessment.
Prevention can only be achieved by employers leading the way on risk management through robust health and safety initiatives.
Steps to assist in avoiding avoidable accidents:
- Nominate one person per shift to take charge of cleaning up spills as it creates a chain of responsibility
- Erect caution signs in the event of a spill - Clean up spills immediately and prevent access to the wet surface
- Fit mats with weights in areas of high footfall
- Good Lighting and clear identification of ground level changes like unexpected steps are vital.
Proper management of Workplace Safety and Health contribute to long-term commercial success and profitability!
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Why do you need a social media policy?
Social media has shifted workplace dynamics, offering limitless commercial potential, including opportunities to increase client base, branding advertising and recruitment. Social media has made historically 9-5 businesses accessible 24/7.
However, it is not without risk! The instant access and availability of social media has blurred the lines between “personal” and “professional” lives.
What are the Risks?
Risks associated with poorly managed social media use can include:
- Decreased productivity: a recent survey by William Fry Solicitors found that, on average, employees spend 56 minutes per working day on social media sites.
- Reputational damage: negative comments, photos, videos can very quickly become viral, having detrimental effects on a business. Have you seen the photo of the Burger King employee lying on a pile of burger buns, or the infamous Taco Bell or Domino’s Pizza photos?!
- Increased risk of cyberbullying and harassment: in a recent case two workers in a mobile phone shop who took their manager’s phone, accessed his Facebook page, posting inappropriate comments. Not only was this a form of bullying, but the Company was also found liable as the comments were posted in the course of employment.
- Leakage of confidential Company information: if it’s digital, it’s public!
What should Employers do?
Employers need to consider the issues social media raises in their workplace and put measures in place to regulate its use and to combat risks. Key to this is to have a comprehensive Social Media Policy in place. The policy should give clear guidelines on what is considered as appropriate and inappropriate behaviour on social media, and be clearly communicated across the entire workforce.
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What will the budget changes to Illness Benefit mean to Employers?
There have been mixed opinions on Budget 2014. Relief that tax rates have not been increased. Anger at cuts to pensioners and maternity benefits. But how will Budget 2014 affect employers?
An unexpected announcement made in the Budget and one that has been relatively unreported in the media was the rise of waiting days for Illness Benefit from after 3 days leave to after 6 days leave. Despite the lack of media attention this is not something employers can ignore!
The effect of sick leave on employers
Sick leave already has a significant negative effect on Irish businesses. According to IBEC’s 2011 Guide to Managing Absence over 11 million working days are lost in Ireland every year due to sickness, costing businesses €1.5 billion or €818 per employee. The report also found that on average employees missed 5.98 days per year.
Impact of the illness benefit change to employers
No matter how you approach sick leave and sick pay in your company this budget change is very likely to have a negative impact on your business:
A. If, as an employer, you pay company sick pay in addition to illness benefit, you will be facing increased costs.
For Example: An employee earns €300 per week and is off sick for 1 week*[i]:
|
|
Company Sick Pay for the 1 week |
Illness Benefit recouped by Employer |
Actual Cost to Employer |
|
Previously |
€300 |
€94 |
€206 |
|
As per Budget 2014 |
€300 |
€0 |
€300 |
|
Additional Cost to Employer |
€94 |
||
Employers need to review sickness absence and sickness pay policies in their contracts of employment and staff handbooks. They need to consider:
- Do the policies specifically refer to the illness benefit received from the State? Do the terms need to be changed?
- Can the company afford the additional cost to their sick pay scheme? Is this something that needs to be amended?
How can companies minimise the impact of sickness absences and the change to illness benefit?
Companies looking to minimise the impact of this budget change, and minimise the cost of sick leave in general, need to look at reducing sick leave levels in the workplace. Prevention is better than cure. Key to reducing sick leave will be to have effective sick leave policies and procedures in place. A sick leave policy will clearly set out the procedures that should be followed by both employees and management in cases of absence through illness. Implementing certain steps, such as having to speak to a manager to report your absence, or back to work interviews are proven to significantly reduce unnecessary sick leave absences. According to the CIPD’s 2013 Absence Management Survey, introducing a new sick leave policy was the top solution implemented by companies to manage short-term absences, with 63% of respondents having updated/implemented a policy.
By reducing the level of unnecessary sickness absence employers will be better placed to support those employees who are genuinely ill and who cannot and should not attend work, whether illness benefit applies or not.
[i] The below assumptions have been made in the example above:
-
Employee normally works 5 days within the day range of Monday to Saturday. For the purpose of illness benefit the week is Monday to Saturday. An employee out of work Monday to Friday will be considered to have been out for 6 consecutive days under illness benefit.
-
Employees initial day of incapacity is Monday
-
Employer normally pays for the entire period of incapacity
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The Importance of having procedures/policies in place…..and following them.
At a recent Employment Appeals Tribunal the decision to award the Appellant €21,300 in compensation under the Unfair Dismissals Act was made given that “there were absolutely no Disciplinary procedures in place or being correctly operated in the workplace. There seems to have been a Grievance procedure set out in the Contract of Employment but this did not seem to be invoked.”
It just proves how very important it is to have these procedures and policies in place and when or if a situation arises where they are required that they are followed to the letter.
As an employer it is your obligation to have just and fair policies in place to protect both the Employee and the Employer.
To read more about this case please see: http://www.eatribunal.ie/determinationAttachments/indexedLiveDocs/a3305aeb-bf8d-4403-a93b-b7e017c4b914.pdf
Bright Contracts - Employment Contracts and Handbooks
