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.
Bright Contracts - Employment Contracts and Handbooks
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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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/
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€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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