Pregnancy in the workplace: What employers need to know
The Maternity Protection Act 1994 to 2004 states that employees qualify for maternity leave including casual workers. Employees do not need to have completed a specific length of service to qualify. Contractors do not qualify for maternity leave.
The current entitlement under the statutory scheme is that an employee can avail of 26 weeks of ordinary maternity leave and 16 weeks of unpaid additional maternity leave. During the 26 weeks of maternity leave, 2 of these must be taken before the baby’s expected birth date and 4 weeks must be taken after the baby’s birth.
Pregnancy in the workplace
Once the pregnancy is confirmed in writing including details of anticipated due date and any relevant medical details, employers must allow employees to take reasonable time off to attend medical visits related to that pregnancy. Employees are required to give 2 weeks written notice in advance of each appointment and an employer can request to see the appointment card. There is no cap on the number of appointments that may be available or the extent to which an employee can take paid time off in relation to these appointments. Employees can take paid time off to attend one set of antenatal classes.
Fixed term employees are entitled to avail of the full statutory entitlement of maternity leave. If the contract of employment date of termination falls within the 26-week window, it is extended until the end of the 26 weeks.
Maternity benefit is not a break of service so employees accrue public holidays, annual leave etc. as well as being entitled to their full suite of rights as they would be if they were working normally.
Maternity leave can start automatically either if the employee is absent from work wholly or partly because of their pregnancy at any time from the beginning of the four weeks before the start of their expected week of childbirth or when the employee has given birth naturally at that before maternity leave kicks in.
The maternity rate benefit as it stands is €262 per week for 26 weeks. It is the duty of the employer to inform the employee when their maternity leave will come to an end. If the employer receives notice that the employee seeks to avail of the additional 16 weeks of unpaid maternity leave, they would need to furnish the employee with the new end date and this notice is to be sent to the employee in writing within 28 days of receiving the initial notification. Employers are required to sign the MB 2 certificate as this is essential for the employee to avail of maternity benefits and return it to the employee.
A health and safety risk analysis must be conducted in relation to the employee intending on taking maternity leave and their workplace. Employers are required to identify any risk and either remove the risk or create an arrangement for the employee in which they are not exposed to this risk. Employees are covered by the protections of the Maternity Protection Act. If there are no options to accommodate an employee by removing the risk or creating new arrangements in the workplace, then the employer must give the employee health and safety leave from work which can continue until the beginning of maternity leave. The first three weeks of wages as part of health and safety leave must be paid by the employer. After this, the health and safety benefit is paid and depends on PRSI payments amongst other things.
Employees on maternity leave or additional maternity leave cannot be made redundant while they're on leave and if this happens the employee can bring an unfair dismissal claim to the WRC.
After the employee has given birth
After the employee has given birth and they seek to return to the workplace, the employee is entitled to return to the same position they held before maternity leave on the same terms and conditions. If circumstances in the workplace have changed and it's no longer possible to accommodate this, an employee has the right to a suitable alternative position. The work being done must be of the same kind that the employee did before availing of maternity leave.
Employees who are working and are breastfeeding are entitled to take one paid hour off work each day for the 104 weeks following the birth of a child. It can be taken in the examples below:
• One hour break
• Two 30 mins breaks
• Three 20 mins breaks
A private space if at all possible, should be provided for employees to avail of these breaks over the course of the entitlement.
The 5 Day Statement
Within the first 5 days of starting a job, employers must give employees part of their ‘written statement of terms of employment’. This written statement must include the core terms of employment and is also referred to as the 5 Day Statement.
Within 1 month of starting the job, employers must give employees the remaining terms of employment in writing (such as entitlement to annual leave).
The 5 Day Statement
The 5 Day Statement includes:
- The full names of the employer and employee
- The address of the employer
- The place of work, or where there is no fixed or main place of work, a statement stating that there are various places or employees are free to set their own place of work or to work at various places
- The date the employment started
- The job title, grade or nature of the work (such as a brief job description)
- The expected duration of the contract (if the contract is temporary or fixed-term)
- The rate or method of calculating pay, and the ‘pay reference period’ (for example, whether you are paid weekly, fortnightly or monthly)
- What the employer reasonably expects the normal length of the working day and week to be (for example, 8 hours a day, 5 days a week)
- The duration and conditions relating to the probation period (if there is one)
- Any terms or conditions relating to hours of work, including overtime
The right to get the core terms of employment (in writing) is set out in the Employment (Miscellaneous Provisions) Act 2018 and updated by the European Union (Transparent and Predictable Working Conditions) Regulations 2022. Employers can face serious penalties if they do not comply.
Employers must sign and date the ‘written statement of terms of employment’, but there is no legal requirement for employees to sign it. Employer must keep a copy of the written statement throughout employees employment, and for at least a year after it ends.
Lay offs: What you need to know
As unpredictability in the global economy continues, company layoffs remain in the news. While layoffs may be necessary and appropriate, in many cases they cause more damage than benefit. Some leaders taken actions to reduce risks to company performance, reputation and long-term viability. What can we learn from these actions?
1. Be clear in the reason for layoffs
When it comes to lay-offs, some are strategic and forward-looking with higher valuations and others are focused solely on cost cutting. Examples of strategic reasons for lay-off include exiting less profitable sectors, products or markets due to changing customer habits. Businesses who are transparent regarding the reasons for layoffs see an increase in investor, customer and employee trust and engagement.
2. Use layoffs as a last resort
Most organisations that conduct layoffs do not see improved profitability, especially those that are highly reliant on innovation and growth. Leaders often underestimate the negative impact of layoffs on productivity, employee engagement, retention and brand reputation.
Effective leaders know that they should pursue all possible alternatives before embarking on layoffs, including temporary furloughs, redesigning jobs and work models, moving some workers to contractor status and offering more flexible benefits to create cost and operational flexibility.
3. Act fairly
Layoffs historically have had a negative impact on women and underrepresented employees. Recent news stories show the effect of layoffs among employees on maternity and health leave, as well as those in vulnerable positions with visas.
Reasons cited as acceptable for determining who is laid off include factors such as employee performance, tenure, experience and skill set. Effective leaders know that evaluating performance, skills and other factors is difficult and time-consuming, and that maintaining ongoing performance evaluation and review processes can position companies well for both ongoing and unanticipated events.
4. Know the people being laid off
Great leaders spend the time and thought required to understand not only who they are laying off but also why and the potential impact. They conduct workforce planning exercises using data science to understand employee performance, skills, networks and collaboration patterns to safeguard against losing key talent and creating unintended consequences.
5. Take responsibility and show appreciation
Leaders must ensure they take responsibility for layoffs and show appreciation for those impacted. They demonstrate their empathy and compassion through all communications. They understand their audience, allow opportunity for employees to process the information and share their feelings, and provide support and resources.
While layoffs are difficult for all involved, effective leaders handle them with care to avoid unravelling company purpose, culture and performance.
Updates to Probationary Periods
The European Union (Transparent and Predictable Working Conditions) Regulations 2022 came into force in Ireland on 16 December 2022.
These regulations introduce significant changes to the law on contracts of employment and working conditions for employees, but the new rules in relation to probationary periods in contracts of employment are of particular importance.
New Rules on Probationary Periods
In the private sector, the probationary periods of employees should not exceed 6 months. ‘In the interest of the employee’, the maximum duration for a public servant's probationary period is now 12 months. There is no further guidance on what is envisioned as being in the interest of the employee.
An employee may avail of certain categories of protected leave during the probationary period (maternity, adoptive, carer’s, paternity, parental, parent’s or sick leave). If this arises, the probationary period shall be extended by the employer for the duration of the employee’s absence.
These Regulations also amend the Protection of Employees (Fixed-Term Work) Act 2003 to require that probationary periods in fixed-term contracts be proportionate to their duration and nature. There must be no probationary period for contracts that are renewed or extended (for the same work).
If an employee was subject to a probationary period which exceeded 6 months on the date the Regulations came into force (16 December 2022), and if at least 6 months of probation has been completed by the employee, then the probationary period shall expire on the earlier of:
(i) the date the probationary period was due to expire
(ii) 01 February 2023.
We therefore recommend that employers review their current contracts of employment to check if any employees have contracts with probationary periods for longer than 6 months. This includes circumstances where any initial probationary period has been extended, as these periods should have expired on 1 February 2023 or earlier.
Probationary periods are a very useful tool for both employers and employees to trial the working relationship and ensure that the parties are a good fit and work well together. A well drafted contract will normally provide for a short notice period during the probationary period (customarily one week).
Employees will not usually have the benefit of the Unfair Dismissals Acts until they have achieved 12 months’ continuous service. Termination of an employee during the probationary period, and in accordance with the contract, can be a lower risk and efficient way to terminate an underperforming employee.
A probationary period does not, however, give an employer automatic authority to terminate employees and if allegations of misconduct, protected disclosures or discrimination, etc., occur legal advice should be sought.
The Importance of HR Policies & Procedures
HR Policies are formal rules and guidance for managers and employees setting out how to manage a range of employment issues in the workplace.
A policy is a guiding principle used to set direction in an organization. It should be used as a guide to decision making under a given set of circumstances within the framework of objectives set out by senior management
A procedure is a particular way of accomplishing something. It should be designed as a set of series of steps to be followed as a consistent and repetitive approach or cycle to accomplish an end result
Purposes of HR Policies and Procedures
HR policies and procedures give guidance on a range of employment issues for employees, managers and others with responsibility for people.
They:
- Set clear standards and expectations and creates awareness
- Transparently communicates the conditions of employment
- Ensures employees are treated equally and fairly
- Creates a safe and healthy work environment
- Creates a channel for addressing employee grievances and disputes
- Mitigate risks
How to communicate HR Policies
- Must be issued to all employees
- Must be in writing (company handbook)
- Employees must be informed of policies on commencement of employment
- Employees must sign off on policies
- Policies must be accessible and reviewed frequently
- Managers must be coached and sufficiently trained.
Rather than incorporating policies into the contract, you may consider;
- Referring to the policies and procedures and where they can be found
- Confirm that they don’t form part of the employee’s contract of employment
Essential Policies
- Some essential policies that should be included are:
- Disciplinary
- Grievance
- Dignity in the workplace (Bullying, Harassment, etc)
- Equal Opportunities
- Health and Safety Policy
- Retirement Policy
- Right to Disconnect
- Whistleblowing Policy
- Probation Policy
- Absence Policy
- Data Protection
- Confidentiality
- Hybrid Working
- Flexible Work
In order to build a good company, it is essential for employees to be able to work together peacefully. Having a proper set of policies and procedures in place can make this happen.
Bright Contracts handbook provides all the policies and procedures any SME would need. It allows you to edit the text to suit your company’s needs.
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Don't Forget About Your Valuable Retention Tool - Stay Interviews
Exit interviews are common amongst many Irish workforces. They are used to determine what prompted an employee to leave and to provide a final chance to persuade them to stay. Stay interviews give an organisation an opportunity to assess what improvements can be made now to avoid further resignations. They provide a more personal platform than what is currently in place from engagement or satisfaction surveys. It also allows for the building of trust between employees and managers, where both parties can discuss ideas.
A stay interview conducted between a manager and an employee can give an overview of what encourages the person to stay, the improvements that can be made, and what caused them to look for external opportunities. Identifying these issues early and acting on them contributes to long-term retention, increased motivation, improved productivity, and overall success for both the business and its people.
What should a stay interview look like?
Interviews don’t need to be long; they can be completed in as little as 20 minutes. Key questions to cover in the meeting could be what employees look forward to and what they dread about work each day, whether they would recommend the company to others, what would make their role more satisfying and how they would like to be recognised and valued.
What happens after a stay interview?
Organisations that decide to conduct stay interviews should remember that their workforce will expect an outcome so be prepared to implement positive changes. Failure to do so can increase frustrations amongst staff and make them feel that their voice is not heard.
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Let's Talk Redundancy
Redundancy occurs when an employee loses their job due to circumstances such as the closure of the business or a reduction in the number of staff. There are many reasons why an employee could be made redundant, such as the financial position of the company, lack of work, reorganisation with another organisation, or the company closing completely. Being made redundant can be an extremely tough situation for the employee, it is important as an employer to understand how the employee may feel at this time and make them aware of the support that is available to them.
Who is eligible for redundancy?
An employee is entitled to a redundancy payment after they have two years’ service. To be eligible for a redundancy payment:
- The employee must be over the age of 16,
- Be in employment that is insurable under the Social Welfare Acts,
- Have worked continuously for their employer for at least 104 weeks over the age of 16
- Your role has been made redundant
Part-time workers cannot be treated any different to the full-time workers but still must meet the requirement of the two years’ continuous service.
Redundancy Procedures
Employers must follow certain procedures when making an employee redundant. They must be fair and reasonable upon the selection of choosing people to be made redundant.
Some examples of fair selection include:
- Last in, first out - The newest staff is the first to go
- Voluntary redundancy
- Point system - Employees doing the same job are ranked by objective criteria such as attendance record, the standard of work done, skills and qualifications.
If employees feel they have been unfairly selected for redundancy you can bring a claim of unfair dismissal.
Notice of redundancy
The notice period (time given to employees before they are made redundant) goes up depending on how long the employee has worked for the employer.
- Between 2-5 years – 2 weeks’ notice
- Between 5-10 years – 4 weeks’ notice
- Between 10-15 years – 6 weeks’ notice
- Over 15 years – 8 weeks’ notice
Offering alternative work
Before the role can be made redundant, the employer may offer the employee another job in the business. This is known as alternative work. This alternative work should be given to the employee in writing and provide full information about the offer.
If the employee accepts the alternative role, they may take it up on a trial basis for up to four weeks. However, the employee will not be entitled to claim redundancy if:
- They accept a new contract with immediate effect, and the terms of employment are the same as their previous contract
- They accept an offer in writing for a new and different contract which will start within four weeks of their previous contract ending.
If the employee refuses a reasonable offer of alternative work from the employer, they may lose their entitlement to a redundancy payment.
If the employee loses status, have worse terms and conditions of employment or must travel an unreasonable distance to work this will not be considered as a reasonable alternative.
Get Informed About Wage Deductions
There can often be debates between the employer and the employee as to what can be legally deducted from an employee’s wages. Well the confusion is over because in this blog post we have detailed for you what are the legal deductions employers can make, including the special restrictions on employers in relation to any act or omission of the employee. Firstly, under the Payment of Wages Act 1991, the employee has a right to:
1. A negotiable mode of wage payment
2. A written statement of wages and deductions, i.e. a payslip
3. Protection from unlawful deductions from wages
The Act applies to employees engaged under a contract of employment or apprenticeship, employed through an employment agency or through a subcontractor or working for the State.
There are only 3 circumstances in which an employer may legally make deductions from an employee’s wages or receive any payments from an employee. These are:
1. If the deduction or payment is required or authorised by law, for example, income tax, PRSI, USC, local property tax (LPT), additional superannuation contribution (ASC), an attachment of earnings order (AEO) or a notice of attachment.
2. If the deduction or payment is provided for in the contract of employment, for example, employee pension contributions, deductions for uniforms etc.
3. If the deduction is agreed to in writing, in advance, by the employee, for example, medical insurance subscriptions, trade union dues.
There are however special restrictions placed on employers in relation to deductions or the receipt of payments from wages, which arise from any act or omission of the employee (e.g. till shortages, bad workmanship, breakages), or are in respect of the supply to the employee by the employer of goods or services which are necessary to the employment (e.g. the provision or cleaning of uniforms). Any deduction or payment from wages of the kinds described must satisfy the following conditions:
i. the deduction or payment must be provided for in the contract of employment
ii. the amount of the deduction, or payment, must be fair and reasonable having regard to all the circumstances including the amount of the wages of the employee .e. if it is substantial it should not be taken out of one single wage payment.
iii. Prior to the act or omission occurring, the employee must have previously been given written details of the terms of the contract of employment, governing deductions or payments, by the employer.
Written notice must be given to the employee in the case of each deduction or payment to the employer at least one week prior to the deduction being made and the employer must provide a receipt. The deduction cannot take place more than six months after the employee’s act or omission becomes known to the employer or after the provision of good and services to the employee. However, where a series of deductions are to be made, the first deduction must be made within six months. Most importantly, the deduction or payment cannot be more than the cost to the employer, in other words, the employer should not profit from the deductions.
Related Articles:
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Don't Get Caught Out: The 5 Core Terms
Throughout the pandemic some businesses were lucky enough to be able to hire new employees which is why it is important for employers to know their legal obligations in the first few days of an employees employment. The Terms of Employment (Information) Acts 1994 to 2014 clarifes at the outset what the terms of employment are, in order to avoid problems which may arise at a later date.
Under the Terms of Employment (Information) Acts 1994 to 2014:
- The employer must give an employee a written statement contains the five core terms of employment within 5 days of commencing employment.
- The employer must give an employee a full written statement of their terms of employment within 2 months of starting employment.
- The employer must notify the employee of any changes in the particulars of the statement within 1 month of the change taking effect.
Written Statement of Terms of Employment
The purpose of the written statement of terms of employment is to clarify the terms of a person's employment and to avoid uncertainty or misunderstandings, which can often lead to a dispute at a later date e.g. rates of pay for overtime hours not specified in advance.
It is important to note that a written statement of terms of employment is not necessarily the same as a contract of employment, although the two often overlap.An employer is obliged to issue a written statement of terms of employment to the employee which must be signed and dated by the employer however there is no requirement for an employee to sign a written statement of terms of employment.
The 5 core terms of employment which an employer must provide to an employee in writing within 5 days of commencement of employment are as follows:
1. Full names of the employer and the employee
2. Address of the registered office of the employer/ in the state/ the principal place of the relevant business
3. If it is a temporary contract, the expected duration of that temporary contract should be stated and if it is a fixed term contract, the date when that contract expires should be stated.
4. The rate or method of calculation of the employee's pay and the pay reference period for the purposes of the National Minimum Wage Acts 2000 and 2015.
5. The number pf hours which the employer reasonably expects the employee to work per normal working dat and per normal working week.
To avoid issuing two versions of a written statement of terms of employment (one version with the 5 core terms and the second version with the remaining terms0 it would be prudent for an employer to issue one version containing all terms within 5 days, or indeed before the employment commences so the employee is fully aware of the terms prior to commencement.
Additional Terms to Include in the Written Statement
The whole purpose of the written statement is to make absolutely clear to an employee what the terms of their employment are. An employer could add additional terms to avoid any confusion or uncertainty that might arise at a later date. Issues which may arise might include:
- Appearance/ Dress Code - Formal or Casual
- Compassionate Leave - Whether paid leave is granted for the death of a family member
- Confidentiality Clause
- Alcohol & Drugs Misuse Policy
- Study Leave
- Lay-Off & Short Time
- Data Protection Policy
- Business Travel Arrangements
- Health & Safety
This is not an exhaustive list. Where additional clauses or policies are included, the employer should also specify what disciplinary action will be taken against an employee who breaches any of these clauses.
The written statement must be given tot he employee even if the employee's employment ends before the end of the period in which the statement is required to be given. Where the employee leaves within 5 days of commencement, they should still be issued with a written statement containing the 5 core terms. Where an employee leaves within 2 months of commencement, the employer must still give the ex-employee a written statement, provided the employee has been in the continuous service fo the employer for at least one month.
The Act also specifies that an employer is required to retain the written statement for the duration of the employee's employment and for at least 1 year after the employment has ceased. The Social Welfare Consolidation Act 2005 states that an employer is required to retain a copy of the written statement for 2 years from the date on which the statement was issued for inspection by a social welfare inspector. The employer should ensure that a copy of the written statement is held for the longer of these durations.
Bright Contracts' contracts within the software not only cover the 5 core terms but also the additional terms. You can view a demo of the software and its contracts here. You can download a trial of the software here.
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The Essential Elements of a Hybrid Working Policy
Following on from our previous post 'Your Must Have Hybrid-Working Checklist' having hybrid working policies and agreements in place is essential when returning employees to the office and agreeing a split between working form home and in the office. We see the important elements of a hybrid working policy to be the following:
1. Detail the split between attending work and working remotely
Your hybrid working policy should detail the split between attending work and working remotely and state what number of days an employee will spend attending the workplace and working remotely. The number of days will depend on but is not limited to some of the following;
- the nature of the employees role
- what is happening within their role and team at any particular time
- individual circumstances
- the needs of the business, including space available at the businesses work locations
2. Working Hours
The working hours the employee must work in the office and at home must be stated, for example: For days on which the employee is attending the office, their normal hours of work are set out in their contract of employment.
Ensure you also detail that while working remotely, they must be available and working during their normal hours of work, as set out in their contract of employment while also listing the break and lunch times and being clear that they must avoid overworking, down time from work is essential.
3. Safe-Working While Working Remotely
Detail the procedure your employees must follow should they have any health & safety concerns while working at home, for example; if any work-related accidents occur in your home.
4. Remote Working Procedures
This section of the policy is where you will detail:
- Sickness Absence
- Compliance with Policies
- Technology & Equipment
- and a reference to data protection
Bright Contracts have recently updated the software to include a hybrid working policy which can be found under the 'Terms & Conditions' section of the handbook. If you'd like to preview this content prior to consider purchasing a licence you can do so here.
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