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.
Legal Update: Parent’s Leave Increasing in August 2024
Parent’s Leave entitlement is increasing to 9 weeks.
Key Changes
From 1st August 2024, the statutory entitlement for Parent’s Leave will increase to 9 weeks’ leave.
Parent’s Leave will increase from 7 weeks to 9 weeks for children born or adopted after 1st August 2024. Employees will also be entitled to claim the additional 2 weeks of Parent’s Leave if their child is under the age of 2 years old on 1st August 2024, or if their adopted child has been placed with their family less than 2 years on 1st August 2024.
Parent’s Leave is available during the first 2 years of a child’s life, or in the case of adoption, within 2 years of the placement of the child with the family.
Parent’s Benefit will also increase from 7 weeks to 9 weeks, for employees who qualify for this benefit.
The legislation governing Parent’s Leave is the Parent’s Leave and Benefit Act 2019, as amended.
Other Types of Leave Entitlements for Parents
It is important to remember that Parent’s Leave is a separate entitlement to Parental Leave.
Parental Leave entitles parents to unpaid leave from work for the purpose of looking after their children, for up to 26 weeks. This entitlement applies to: employees who are parents and guardians of children under 12 years of age; employees who adopted children between the age of 10 and 12, these employees can take Parental Leave for up to 2 years after the date of the adoption order; and employees who are parents and guardians of children with a disability or long-term illness, it is possible to take Parental Leave until these children are 16 years of age.
Other types of statutory leave available to parents are: Adoptive Leave, Force Majeure Leave, Maternity Leave, Medical Care Leave, and Paternity Leave.
Compliance
Failure to comply with the legal obligations relating to leave entitlements can lead to serious consequences including: lost trust and confidence, breakdowns in employee relations, WRC claims, financial penalties, and reputational damage.
Takeaways for Employers
It is essential to keep up to date with the statutory requirements for employee leave entitlements.
Bright Contracts clients have access to a comprehensive Employee Handbook, including template policies for Adoptive Leave, Force Majeure Leave, Maternity Leave, Medical Care Leave, Parent’s Leave, Parental Leave, and Paternity Leave. Please contact us if you would like more information.
€1,000 Lesson on Fair Dismissal Procedures
In this recent case, the complainant’s former employer was ordered to pay €1,000 compensation due to the dismissal process followed – and the amount could have been much higher...
Background
The complainant, Mr Grzegorz Grygier, started employment with Ideal Fire Limited in January 2022. He passed his 6-month probation on time and no concerns had been raised about his performance before he was invited to a meeting with Mr Ray Dooley, Company Director, in January 2023. During this meeting, Mr Grygier’s employment was terminated. The reason given was performance, due to an issue with a gas suppression system.
During the WRC hearing, Mr Dooley confirmed that no formal investigation had occurred, or a Disciplinary hearing, and he had not raised any issues with the complainant prior to the dismissal meeting.
Training records appeared to show only a limited amount of training, which may not have included gas suppression systems, and there had been no negative consequences to the company due to the incident.
The company representative confirmed the dismissal was due to the gas suppression system, but later it was suggested that the reason was instead due to an absence incident. No process had been followed regarding this absence, and it had not been referenced during the dismissal meeting.
WRC Decision
The WRC Adjudication Officer concluded that no investigation or Disciplinary process had been followed, the complainant was not given the opportunity to state his case, and he was not afforded the right to representation. Therefore, she found the dismissal to be procedurally unfair. The complainant’s case succeeded.
Following the Unfair Dismissal finding, the Adjudication Officer considered the amount of compensation to be ordered. The complainant had found employment a week after his notice period expired, and this new job included a higher rate of pay. The Adjudication Officer decided that the Respondent should pay €1,000 in compensation. If the complainant had not been so successful in quickly obtaining a better paid role, the compensation ordered could have been considerably higher!
Takeaways for Employers
This case confirms the importance of following fair Disciplinary procedures. If a reasonable process had taken place, the sequence of events could have been very different, potentially avoiding a claim happening at all.
Bright Contracts clients have access to a comprehensive Employee Handbook, including a template Disciplinary Policy. Please contact us if you would like more information.
Case Law: Big Fine for Not Providing Employment Documents!
A Dental Technician was awarded over €13,000 after her claims, of not being provided with written employment terms, Unfair Dismissal, and lack of notice pay, were upheld.
The negative consequences of not providing appropriate employment documents were highlighted in this recent Workplace Relations Commission case (ADJ-00034847).
Background
The complainant, Sarah O’Connor, worked as a Dental Technician for the respondent, Cas Dental.
O’Connor alleged that she had not received a written statement of her terms of employment, or a disciplinary procedure, or an employee handbook.
The complainant also explained that she did not receive a letter inviting her to the dismissal meeting. The dismissal meeting lasted about a minute. She was not given notice pay or the right to appeal.
Defence
Mr Colum Sower, a director of the respondent, explained that he thought he had a period of one year to issue an employment contract and this was his understanding based on advice he had received from the Small Business Association.
Mr Sower gave evidence that he issued the complainant with verbal warnings and a written warning before the dismissal, although there was no final written warning or formal improvement plan.
A notice payment was not made, but the complainant was given a payment for good will.
The respondent accepted the procedure used was not perfect but argued that the complainant had not met the required performance standards and there are serious consequences of not meeting standards in the medical profession.
WRC Decision
The WRC Adjudicator found that the claim of not being issued with written terms of employment was well founded. The respondent was ordered to pay compensation of four weeks’ remuneration to the complainant.
The claim of lack of notice pay was also upheld and the WRC Adjudicator ordered the respondent to pay one week’s remuneration to the complainant.
The WRC Adjudicator concluded that the Unfair Dismissal claim was well founded.
There were breaches of the Code of Practice on Grievance and Disciplinary Procedures, including no opportunity for representation at the dismissal meeting, and serious procedural flaws. The Adjudicator concluded that no reasonable employer would have dismissed the complainant in the circumstances and in this manner. The respondent was ordered to pay €12,000 compensation to the complainant.
Takeaways for Employers
It is essential to comply with the legal requirement to provide employees with written terms and conditions of employment within the required time limits. The excuse of receiving incorrect advice was not accepted by the WRC Adjudicator.
Bright Contracts clients can quickly and easily create legally compliant terms and conditions of employment using the step-by-step instructions in our software.
It is also important to understand legal obligations relating to notice pay.
Bright Contracts includes a legally compliant template contract clause about notice.
Finally, failure to follow reasonable procedures can result in serious consequences. In the O’Connor v Cas Dental Case, the respondent suffered reputational damage and was ordered to pay significant amounts of compensation.
Bright Contracts has a ready to go Employee Handbook which clients can tailor to their requirements. Policies and procedures are reviewed and updated in line with employment law changes and recommended practices.
The Importance of Social Media Policies in the Workplace
A recent headline in the UK news linked to social media polices, revolved around Gary Lineker where his politicised tweet criticised the UK Government's new immigration policy. The tweet saw the BBC Match of the Day presenter removed from his presenting duties pending an investigation as to whether he had broken the BBC's *'Guidelines on Impartiality'* and *'Guidance on Individual Use of Social Media'*. The BBC subsequently reinstated Mr Lineker following the investigation. The difficult position the BBC found itself in is a timely reminder that employers should have effective social media policies in place to deal with such incidents.
What can we learn from BBC’s approach?
Reputational risk & disproportionate response
The BBC could not ignore the public backlash which followed Mr Lineker's removal and its impact on the organisation's wider reputation. It was widely felt that the decision to remove him was disproportionate to the purported breach of the BBC's policies.
Social media provides a place where public backlash can gain momentum and damage an organisation's reputation. This reputational damage could come from the employee or contractor's comments or, as we have seen in this instance, from the organisation's handling of subsequent disciplinary action.
Employers must have comprehensive policies to mitigate the risk that public remarks could adversely affect their reputation. Objective and fair investigation and disciplinary procedures must be in place where an employer feels an employee or contractor has breached these policies, and should a sanction be applied, it must be proportionate to the breach committed.
Solidarity boycott
Mr Lineker's colleagues announced a boycott of their duties in solidarity with Mr Lineker. This boycott forced the BBC to rethink its decision as it heavily impacted scheduled programming.
The BBC has since announced an independent review of its guidelines.
Key takeaways
The Gary Lineker story focuses on the difficulties that can arise for organisations in the social media age and shows us that the line between professional and private life is not always clear. It is a wake-up call for individuals to be wary of what they post online and for organisations to have clear social media policies in place so appropriate action can be taken where an individual does cross that line.
In summary, a social media policy should:
- Establish clear guidelines and standards on the accepted use of social media in the workplace.
- Contain clear information about disciplinary procedures for breaches and the potential consequences for such breaches.
- Warn individuals that employers may take disciplinary action with posts on their personal social media accounts where a connection can be drawn to their workplace.
Termination of Employment
An employer must have a reason to dismiss an employee. Under the Unfair Dismissals Acts 1977 to 2015, the dismissal of an employee is deemed not to be unfair if it is for reasons of capability, conduct, capacity, redundancy, contravening the law, or some other substantial reason.
Giving Notice
At a minimum, employers must give employees the following statutory periods of notice.
Duration of employment Minimum notice
- 13 weeks to 2 years -1 week
- 2 to 5 years -2 weeks
- 5 to 10 years -4 weeks
- 10 to 15 years-6 weeks
- 15 years or more -8 weeks
If the employee’s contract of employment provides for notice in excess of the statutory period, the contractual notice must be given.
An employer may dismiss an employee without notice for gross misconduct e.g assault, stealing or serious breach of employment policies. Employment contracts or handbooks may contain further examples of gross misconduct.
Termination Procedures
The Workplace Relations Commission has introduced a Code of Practice on Grievance and Disciplinary Procedures which employers should follow when dismissing an employee. Disciplinary action may include:
- An oral warning
- A written warning
- A final written warning
- Suspension without pay
- Transfer to another task, or section of the enterprise
- Demotion
- Some other appropriate disciplinary action short of dismissal
- Dismissal
You can read more about Unfair Dismissal in our previous blog post, Unfair Dismissal Claims & How to Avoid Them
Bright Contracts Software has a “Resignation and Termination” policy in the “Terms and Conditions” section of the handbook. Furthermore, in the Company Policies and Procedures section, there is a Grievance/Dispute Procedures which you can edit to your company needs.
Effective Absence Management
One of your employees calling in sick or saying they can’t make it into work but not giving a reason as to why can be frustrating and disruptive.
The best thing to do to manage this is to have an absence policy in place. The policy should outline how sickness-related-absences will be dealt with and should specify what period of time forms:
• Short-term absence
• Long-term absence
• Unauthorized absence
Your absence policy should be shared with your employees. Doing this will ensure that employees know how each instance of absence will be handled and what procedure will be followed.
Furthermore, having an absence policy in place will ensure consistency.
How to reduce sickness absence in the workplace
Return to work interview
One of the easiest ways to reduce sickness absence is to conduct a return to work interview. This conversation will bring to light any issues an employee has, whether it’s personal work or work-related. It could mean that you alter their working hours, allow them to work from home, or take time off for medical appointments.
Record Keeping
Record keeping is another useful practice. Tracking employee absences can be very beneficial to see what patterns may appear with the absence of an employee. For example, does one of your employees always miss the Friday of a Bank Holiday? Or say they’re unwell the Monday they’re due in after a week off?
Monitoring absences will make these patterns easier to spot and gives you proof if you need to speak to the employee.
Communication
Whether it’s a short or long-term absence, it’s important that you reach out to the absent individual. You can do so by phone, email, and in some cases, a home visit. Reaching out, it will give you an insight into their illness and how long they think they will be absent. It will also help you prepare for their return.
Dismissal due to sickness absence
In extreme cases, such as long-term sickness, dismissal for absence may be considered.
If you decided to go down the dismissal route, you’ll need to show that the procedure used was fair and reasonable. Failure to follow fair procedures may leave your company open to a claim for unfair dismissal.
Bright Contracts Handbook contains an absence policy in the “Terms & Conditions” section of the handbook.
Related Articles
Mental Well-being in the workplace
The Importance of HR Policies & Procedures
New Worker’s rights passed by the Oireachtas
Over the last few weeks, The Oireachtas has approved two new workers’ rights: sick pay and tip protection. Both of these will have a significant impact on millions of workers nationwide.
Sick Pay for eligible employees
As discussed in a previous blog post: Preparing for New Sick Pay Rules. The Sick Leave Bill 2022 has been passed by both Houses of the Oireachtas. This gives eligible employees in Ireland the right to paid sick leave. Employers will pay sick pay at a rate of 70% of an employee's wage, up to a daily maximum of €110.
To receive statutory sick pay, an employee must obtain a medical certificate and have worked for their employer for a minimum of 13 weeks. Employees who require further time off after their employer’s entitlement to sick pay expires may be eligible for illness benefits from the Department of Social Protection, subject to PRSI contributions. The Bill has now been signed into law by the president.
The Payment of Wages (Amendment) (Tips and Gratuities) Bill
In addition to passing the Sick Leave Bill 2022, the Oireachtas passed new legislation to ensure those working in the hospitality industry receive their fair share of tips and gratuities. This will clarify the definitions of required charges, service charges, tips, and gratuities. In addition, it will exclude tips and gratuities from a worker’s contractual wages, and oblige employers to distribute tips received electronically, fairly, equitably, and in a transparent manner. It will also ensure that any charge referred to as a ‘service charge’ is distributed to employees in the same way as tips received.
Employers should begin reviewing their sick leave policies to ensure that they comply with the upcoming statutory sick leave scheme. Employers in relevant industries should also review their policies and procedures for managing tips, gratuities, and service charges to ensure they are in line with the changes in the law.
How to Prepare an Anti-Bullying Policy
Prevention is the best way to avoid the risk of bullying at work. The purpose of an effective policy is not simply to prevent improper conduct and behaviour but also to encourage best practices and a safe and harmless workplace where such behaviour is unlikely to occur.
Employers should adopt, monitor, and implement an effective and accessible policy on bullying in the workplace.
Preparing the Policy
The policy and complaints procedure should be adopted, where appropriate. Simple direct language should be used in the policy. Information given to employees should be in a form, manner and in an appropriate language that is likely to be understood by the employees concerned.
The policy should be written, dated, and signed by a responsible person in senior management and updated when appropriate.
Scope of the Policy
The policy should:
- Describe what is meant by bullying at work
- Include a non-exhaustive list of examples of bullying behaviour relevant to the employment
- Given the name or job title of the person who may be approached by a person wishing to complain of bullying at work
- State that the protection extends to bullying at work by management, fellow employees, subordinates, clients, customers, and other business contacts as well as work-related social events
- State that all complaints of bullying will be taken seriously and will be followed through to resolution and that employees who make a complaint will not be victimised.
Allocation of Responsibilities in Prevention of Bullying at Work
The policy should state that management, others in the position of authority, and workplace representatives have a particular responsibility to ensure that bullying at work does not occur and that complaints are addressed promptly.
The policy should state that, management will:
- Provide a good example by treating all people in the workplace with respect
- Promote awareness of the policy and complaints procedures
- Be vigilant for signs of bullying at work through observation and through seeking employee feedback and take action before a problem escalates
- Deal sensitively with employees involved in a bullying complaint
- Explain the procedures to be followed if a complaint of bullying at work is made
- Ensure that an employee making a complaint is not victimised for doing so
- Monitor and follow up on the situation after a complaint is made so that the bullying at work does not reoccur.
Bright Contracts has a preformatted Anti-Bullying Policy under the ‘Bullying and Harassment Policy and Procedure' section of the Handbook in the software, which is fully compliant with current employment laws.
Related Articles:
Bullying in the Workplace: What you need to know
Bullying in the Workplace: What constitutes as bullying?
What You Need to Know About Staff Handbooks
Bullying in the Workplace: What you need to know
We have already discussed in a previous blog post Bullying in the Workplace: What constitutes bullying? What bullying is and what constitutes bullying. In this post we are going to discuss the effects bullying have at work, the role of the employer and the employee to prevent bullying at work and actions and measures you can take to tackle bullying.
The effects of Bullying at Work
Workplace bullying and related complaints can have a range of effects on both employees and employers. For the employer, the effects can include reputation damage, absences of employees in the workplace, reduced productivity, increased costs, poor morale, and loss of respect for managers and supervisors.
For the employee or the target of bullying behaviour, the effects can include stress, low morale, reduced performance, and lower productivity. Some people decide to leave their employment, exposing themselves to financial strains.
Prevention of Bullying at Work- Role of Employer
Every person in the workplace has a role in promoting a positive workplace free from bullying behaviour.
An employer should:
- Uphold the duty to manage and conduct work activities in such a way as to prevent any improper conduct or behaviour that is likely to risk an employee’s safety, health or welfare at work. Employers must act reasonably to prevent workplace bullying patterns developing, where there is a complaint, the employer must react reasonably, assess the complaint, and record actions on each case.
- Develop a workplace anti-bullying policy, in consultation with employees, to ensure a system is in place for dealing with complaints and that disciplinary action may follow where bullying has occurred.
Prevention of Bullying at Work- Role of Employee
How an employee behaves in a way that is acceptable. Employees both individually and within teams and groups, have a role in promoting positive behaviour to others, relating in a clear, civil and respectful way to everyone in the workplace.
Under section 13 of the 2005 Act employees’ duties include to:
- Comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect their safety, health and welfare of any other person who may be affected by the employee’s acts
- Co-operate with their employer or any other person so far as is necessary to enable their employer or any other person to comply with the relevant statutory provisions.
- Not engage in other behaviour that is likely to endanger a person’s own safety, or their health and welfare at work or any other person at work during the course of the employment.
Measures to Prevent Bullying in the Workplace
- Promotion and reinforcement of a positive workplace culture
- Effective Anti-Bullying policies, to be used and promoted in the workplace
- Widespread policy awareness
- Appropriate training as required for those managing complaints and for line management
- Contact person/appropriate support available
There may be value in appointing a Contact Person who acts as the first step for anyone enquiring about a possible bullying case. Where the organization can support this, it can help to resolve matters earlier and more effectively.
The Contact Person should be supportive and listen and offer guidance in line with company policy and procedures all on a confidential basis. This person should be carefully selected and trained. The main purpose of this role is to be supportive, they will have no role in the investigation of any complaints and should not be tasked with any further involvement in the details or right and wrongs of a complaint.
Related Articles:
Bullying in the Workplace: What constitutes as bullying?
What You Need to Know About Staff Handbooks
