Working Time ‘Fowl Ups’ for Chicken Business
Background
The complainant, Suman Bhurtel, brought 6 claims to the WRC about his former employer Chicken Castle Limited Chicken Club – 5 for violations of Working Time regulations and 1 for National Minimum Wage underpayment. The respondent provided a defence for all 6 claims so the WRC Adjudication Officer needed to determine the validity of each claim.
The complainant’s working time claims referred to: working Sundays but not receiving a Sunday premium; working public holidays but not receiving an extra payment; under payment of annual leave; not receiving rest periods he was entitled to; working an average of 70 hours per week; and being paid an hourly rate below the National Minimum Wage.
The respondent defended these claims using the following arguments: the complainant did not work Sundays; the complainant did not work public holidays; the complainant was paid in cash for annual leave; the complainant worked 39 hours per week; and the hourly rate was not below the National Minimum Wage.
WRC Decision
For each of the claims, the WRC Adjudication Officer concluded that the complainant provided credible and clear evidence. The lack of documentary evidence provided by the respondent was criticised and the excuses, such as the Company Secretary not being able to access the shop where records were kept, were not acceptable.
Each claim was judged to be well founded and therefore the respondent was ordered to pay compensation to the claimant.
Takeaways for Employers
This case confirms the importance of employers following the Working Time and National Minimum Wage legislation and keeping the required records.
Bright Contracts clients have access to a legally compliant Employee Handbook policies, including a template Hours of Work and Rest Periods Policy. Please contact us if you would like more information.
Managing Annual Leave Requests
With summer coming along soon, annual leave requests may be more frequent however when does an employee’s time-off become an issue? How should managers handle the discussion? Here’s what you need to know and do.
Firstly there are 3 things to consider.
- Communication: Establish well-defined policies about annual leave and make sure everyone in your organisation knows them. Clear policies lead to easier decisions when unusual requests arise.
- Respect: If annual leave policies don’t cover a particular issue, respect your employees by striving to be fair and compassionate in making a decision and presenting it to them.
- Clarity: Do your employees take it for granted that their annual leave requests will be approved? Make sure their expectations are based on actual policies, not informal beliefs based on past behaviour. Again, communication is essential.
There are also some times when you may need to speak with your employees regarding their requests. Consider talking directly with them under any of these circumstances:
- When the request contradicts company policy: You may need to make occasional exceptions to your annual leave policies, but strive to be consistent in how you enforce the rules. Document the reasons behind your decision when exceptions do arise so you can easily resolve similar situations in the future.
- When you believe the employee’s absence will have a negative impact: What if a worker wants to go on holiday during a crucial time for your organisation? Instead of simply denying the request, explain the difficulties their absence might cause. Together, you may be able to find a better time for their request.
- When an employee wants to much time off at once: How long is too long? That depends on your needs and the nature of the employee’s request. It’s one thing if they want to sail around the world, and another if they’re requesting time to care for a sick relative. As you discuss their request, remember that a lengthy absence can burden co-workers who have to pick up the work.
- When an annual leave request comes with too little notice: Sick days and emergencies can happen to anyone, but an employee who takes frequent last-minute personal days and trips can cripple productivity and impact team morale. A discussion about the effects their behaviour is having on the team can help the employee understand why they need to plan further in advance.
- When annual leave requests aren’t happening enough: Problematic annual leave requests are easy to spot, but there’s an annual leave issue that’s often over looked - many employees don’t take as much time off as they should. Overworking can take a toll on an employees health and happiness, as well as their job performance. Make a habit of looking at annual leave allowances, and talk to your team about the benefits of taking leave to help foster a culture where time off is encouraged and over-working and burnout is discouraged.
You should ask yourself some questions as well to establish annual leave rules that meet both your business needs and the needs of your employees.
- How far in advance must employees request time off?
- Do you have a formal system for requesting time off?
- Are there times when employees can’t take time off?
- How do you handle overlapping requests from different employees?
- How do you keep track of who has taken time off and how much?
You can find more information on annual leave requests here.
How To Manage Annual Leave Backlog
With the lifting of some restrictions on the 12th of April, the country hopes to see further easing of restrictions in the coming months. Unfortunately this most likely will not mean travel abroad will be possible however staycationing in our Emerald Isle may be the way forward for the rest of this year. Since covid hit many employees have been unable to take annual leave and therefore it has been accumulating, meaning there is a backlog of annual leave to be used which employers are unsure how to manage.
Annual Leave Entitlements
Regardless of whether employees are full-time, part-time, casual or temporary, they are all entitled to annual leave under the Organisation of Working Time Act 1997. Under this Act, the employer can decide the timing of an employee’s annual leave, providing the required notice and also taking into consideration the requirements of the business and the employee’s health and wellbeing.
In the coming months it is reasonable to assume that there will be an influx of annual leave requests therefore employers should revise their annual leave policies to ensure they remain valid and compliant with company policy and procedure. In some situations employers may also have annual leave carried over from the previous year to manage. In this instance, it is best practice for employers to be as flexible as possible to accommodate requests, particularly during these very tough times.
Annual Leave & Lay-off/ Short Time Working
Employees who were placed on lay-off during Covid-19 continue to accrue public holidays during the first thirteen weeks of the lay-off however they do not accrue annual leave during this period.
In relation to short time working, employees must meet the requirement of having worked a minimum of 40 hours in the five weeks prior to the public holiday in order to qualify for entitlement and to accrue annual leave pro-rata.
Annual Leave & The Temporary Wage Subsidy Scheme
If the employer is availing of The Temporary Wage Subsidy Scheme but their employees are working their normal hours then their employees continue to accrue public holidays as normal and therefore are entitled to their statutory annual leave entitlement based on the hours worked.
Annual Leave & Covid Symptoms
If an employee displays any symptoms of covid-19 they should first contact their GP then contact their employer to explain the situation and not return to the workplace for 14 days after first experiencing symptoms. Employees are entitled to sick pay if detailed in the terms & conditions of their employment however if the employer does not pay sick pay then employees should apply for the Covid-19 Enhanced Illness Benefit.
Employer Requests: Taking Annual Leave During Covid-19
An employer can request an employee to take annual leave however this should be done in consultation with the employee and in consideration of the business needs. If the company is experiencing challenges it is recommended not to force employees to take all of their annual leave entitlement as the company must take into consideration the employee’s health & wellbeing.
Refusing Annual Leave Requests: Travelling Abroad
If an employee is travelling outside of the country employers cannot refuse an annual leave request based on this. The employer can encourage compliance with government guidelines and public health advice in relation to travelling outside of the country.
However, the employer may have a basis for refusing an annual leave request in relation to restrictions when the employee returns to Ireland in terms of quarantining or 14-day movement restrictions and the impact either of these will have on the business depending on the sector and if the employee is remote working.
Bright Contracts has recently updated its software to include a COVID-19 vaccine policy applicable to any business/ industry. This policy is in addition to the COVID-19 Response Plan and Temporary Working From Home Policy currently available on Bright Contracts.
You can avail of a free trial of the software or purchase a Bright Contracts licence to adapt these policies to your business today. If you are looking to adopt or change your HR Software book a free 15-minute online demo to see how Bright Contracts can change your world of HR.
Webinar: The Vaccine & The New World of Work Register Today!
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- Vaccinations and The Workplace
- Role Changing During COVID-19: Can employers ask this of their employees?
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Paternity Leave – Uptake lower than expected
In September 2016, fathers of children born in Ireland became eligible for the first time to take up to two weeks’ paternity leave and to receive Paternity Benefit from the Department of Social Protection. Statistics collated from the first few months of the scheme show, however, that just one in four fathers eligible for the scheme chose to avail of it. This is in stark contrast to the expectation that 60% of eligible fathers would avail of the scheme when it was first announced.
Just over 5,000 paternity benefit applications were awarded during the first three months of the scheme going live, with County Longford, Kerry, Roscommon, and Clare having the fewest applicants. A larger uptake, however, was seen in County Dublin, Cork and Kilkenny.
A further 7,500 paternity benefit claims were subsequently awarded in the first four months of 2017. Under the new scheme, eligible fathers are entitled to two weeks of paternity leave. The two-week leave can be taken at any point within 28 weeks of the birth or adoption of a child, but the two weeks must be taken together.
A social welfare benefit of €235 per week is paid for the two weeks. It is at an employer’s discretion if they wish to top up this payment to the full weekly wage normally earned by the employee. Despite the low uptake so far, it is hoped that the number of applicants will increase as the scheme enters its second year in September.
Current statistics also don’t reflect fathers who may be delaying their paternity leave, for example, fathers whose child was born on February 28 this year can take it at any time up to September 1, 2017.
Guidance on how employers should treat Paternity Benefit and when it should be entered in Thesaurus Payroll Manager can be found here: https://www.thesaurus.ie/docs/2017/paternity-benefit/taxation-of-paternity-benefit/
Related article: Equality for working Dads with new Paternity Leave
Annual Leave - Common Questions Answered
June is just around the corner and although the weather might not be totally cooperating, summer is here. For employers, this means managing holiday leave requests.
At Thesaurus Software, processing annual leave is one of the most common queries we receive from customers. This is in line with the Workplace Relations Commission’s stat, that in 2014 the majority of calls received to their helpline were in relation to the Organisation of Working Time.
The above, coupled with the fact that there have been a number of recent legislative changes in the area, means that employers, quite rightly, will have queries on the matter.
Common queries include:
Who is entitled to Annual Leave?
All employees earn holiday entitlements from time worked. There is no qualifying period. Employees on maternity leave accrue annual leave in the exact same way as they would if they are working. This also applies to all forms of protective leave including parental leave, paternity leave, carers leave, and annual leave.
Are employees on sick leave entitled to annual leave?
New legislation has ruled that as of 1 August 2015, employees on certified sick leave, normally long-term sick leave, will accrue annual leave. Any leave accrued in this manner must be used within 15 months of the end of the leave year in which it was accrued. Further information on this can be found here. Employees on uncertified sick leave will not accrue annual leave.
What is included in holiday pay calculations?
There have been a number of European cases on this subject in recent months. The courts have thought us that as a general rule of thumb when calculating holiday pay, employees should in no way be disadvantaged as a result of taking annual leave. The EU Court of Justice has ruled that holiday pay should not be based on basic pay alone.
Factors to consider:
- Any regular shift allowance should be included.
- Commission: if there is a regular commission structure in place this should be included in holiday pay calculations.
- Overtime: If the employment contract stipulates that an employee must work a set amount of overtime each week then this is included in pay calculations. Regularly worked overtime, although not necessarily included in the contract of employment, should also be included. Irregular overtime should not be included.
How to calculate holiday entitlement for irregular workers?
Holiday entitlement for workers with irregular hours should be calculated using an average of the hours worked in the previous 13 weeks.
Can an employer reject a holiday request?
Yes, employers have the right to specify when holidays should be taken. Requests for annual leave can be rejected based on the needs of the business. Equally, employers can specify when holidays should be taken, for example during periods of business closure.
In order to avoid confusion and conflict, employers are well advised to have clear annual leave policies and to ensure all staff are well aware of the protocols when it comes to leave.
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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.
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