€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.
New Year, New Sick Pay Rules!
It's a new year and with that brings the enactment of the new Sick Pay Scheme. Ireland is one of few advanced economies in Europe without a mandatory sick leave entitlement and this new scheme now brings Ireland in line with other European countries that have mandatory paid sick leave for workers in place. Under the legislation, employers are now obliged to provide a minimum number of paid sick days annually from 2023.
Statutory sick pay provides for the entitlement of an employee to be paid a statutory sick leave payment by his or her employer in respect of a temporary absence from work due to illness, subject to medical certification from a registered medical practitioner. In the past, employees had no legal right to be paid while on sick leave from work, however since the 1st of January 2023 sick pay will be paid by employers at a rate of 70% of an employee’s wage, subject to a daily maximum threshold of €110.
To avail of statutory sick pay an employee must obtain a medical certificate and the entitlement is subject to the employee having worked for their employer for a minimum of 13 weeks. In all EU countries, medical certification of some form is a requirement to receive sick pay. However, there is some variation around the timing and frequency of when medical certification is needed.
Once an employees entitlement to sick pay from their employer comes to an end, if employees need to take more time off then they may qualify for illness benefit from the Department of Social Protection (DSP) subject to PRSI contributions. The scheme covers all workers and no waiting days are to apply (waiting days are the unpaid days in the event of illness).
What is the new Statutory Sick Pay scheme (SSP)?
The entitlement to paid sick leave is being phased in over 4 years:
2023 - 3 days covered
2024 - 5 days covered
2025 - 7 days covered
2026 - 10 days covered
Sick days can be taken as consecutive days or non-consecutive days. The sick pay year is the calendar year and therefore runs from 1 January to 31 December.
The first day in a year that an employee is incapable of working due to illness or injury shall be the employee’s first statutory sick leave day, and any subsequent statutory sick leave days shall be construed accordingly.
Employers can have a more generous sick pay scheme in place however they cannot give an employee less than the statutory amount. In determining whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, the following matters are to be taken into consideration:
a) the period of service of an employee that is required before sick leave is payable;
b) the number of days that an employee is absent before sick leave is payable;
c) the period for which sick leave is payable;
d) the amount of sick leave that is payable;
e) the reference period of the sick leave scheme.
Section 10 of the Sick Leave Bill provides for an exemption from the obligation for employers to pay the statutory sick leave payment where the employer is deemed unable to pay sick leave by the Labour Court. The exemption is for a period not exceeding one year and not less than 3 months, and while it remains in force the employer accordingly need not so comply.
Sick Pay Records
Records must be retained by the employer concerned for a period of 4 years and must include:
a) the period of employment of each employee who availed of statutory sick leave,
b) the dates and times of statutory sick leave in respect of each employee who availed of such
leave, and
c) the rate of statutory sick leave payment in relation to each employee who availed of
statutory sick leave.
You can watch our most recent webinar “2022 Legislation Changes” where our expert Jennifer discusses the legislation. For further information please see the Sick leave Bill 2022.
Use of CCTV Footage in Disciplinary Hearings
The crossover of data protection and employment law continues to be important when considering the use of CCTV in disciplinary processes.
Background
The case concerned a security incident arising out of disturbing graffiti being found on the property of the employer. The employer contacted the Gardaí, who recommended that the employer review CCTV footage to identify the perpetrator. During the CCTV review an employee, Mr. Doolin, was identified entering and exiting a tearoom at certain times, indicating that he was taking unauthorised breaks. A disciplinary process was initiated, and a sanction was issued.
Mr. Doolin complained to the Data Protection Commission (DPC) that his employer had unlawfully processed his personal data, as the employer’s CCTV policy indicated that the purpose of CCTV monitoring was for security and crime prevention and not disciplinary purposes.
The DPC dismissed the complaint, on the basis that the footage had only been processed once to investigate the graffiti incident, which was a security incident, and that the employer subsequently relied on Mr. Doolin’s admissions during the investigation.
The Circuit Court dismissed Mr. Doolin’s appeal of the DPC’s decision, observing that Mr. Doolin had admitted a breach of security and that disciplinary action was taken against him for security purposes.
The High Court overturned the Circuit Court decision, on the basis that there was no evidence that the disciplinary action was carried out for security purposes. The employer relied on the CCTV footage and a table was included in the investigation report that set out his times of entry and exit to the tearoom.
The decision of the Courts
It found that the processing was not for a related purpose and was incompatible with the specified purpose of security reasons. It noted that the original purpose of attempting to detect the perpetrator of offensive graffiti was irrelevant to the incidental monitoring of Mr. Doolin taking unauthorised breaks, there was no evidence that the taking of unauthorised breaks was a security issue. In this case, it was clear that Mr Doolin’s data was used for a purpose other than, and incompatible with, the specified purpose, and was therefore unlawful.
Conclusion
Employers should continue to follow best practice in the use of CCTV footage in the workplace by:
- Reviewing and updating their policy on a continuous basis
- Conducting a data protection impact assessment before deploying CCTV cameras in the workplace
- Deploying CCTV in areas of particular risk, and not where employees have a high expectation of privacy
- Clearly communicating the location of CCTV cameras
- Not as a matter of course capturing footage for one purpose and using it for another
- Clearly communicating to employees that footage captured may be used not only for security purposes but also the employee investigations and disciplinary proceedings
- Ensuring CCTV review is conducted in a manner that allows any subsequent issues to be dealt with in a manner compliant with natural justice; consider who will review the footage, and avoid overlap with those charged with conducting HR investigations.
Managing Annual Leave & Public Holidays
These topics create some confusion amongst employers, this blog post will hopefully line out any confusion that employers may have.
What is a public holiday?
A public holiday is nationally recognised day when most businesses and other institutions are closed. They usually occur on a special day or event. For example, St Patrick's Day and Christmas Day.
In 2022 we were introduced to a new once off public holiday that will take place on Friday, 18th of March. From 2023 there will be a new annual public holiday in February to celebrate St Brigid’s Day, it will happen on the first Monday in February.
When are the public holidays?
• New Year’s Day
• First Monday in February, or 1st of February if the date falls on a Friday (2023 onwards)
• Saint Patrick’s Day
• Once off public holiday (18th March 2022 only)
• Easter Monday
• First Monday in May
• First Monday in June
• First Monday in August
• Last Monday in October
• Christmas Day
• St Stephens Day
What are employees entitled to?
Most employees are entitled to a day paid leave on public holidays. There is an exception for certain part-time employees.
If you qualify for public holiday benefit, you are entitled to:
• A paid day off on the public holiday
• An additional day of annual leave
• An additional day’s pay
• A paid day off within a month of the public holiday
Part time employees are entitled to a day’s pay for the public holiday if they meet the following requirements:
• You have worked for your employer at least 40 hours in the 5 weeks before the public holiday
• The public holiday falls on the day you normally work
If you are required to work on the day the public holiday falls you are entitled to an additional day’s pay. If you do not work on the day, you should get one fifth of your weekly pay.
Annual Leave
We all know that employers are obliged to provide paid annual leave under the Organisation of Working Time Act, 1997. This act applies to all employees working under a contract of employment.
The amount of holidays an employee receives is calculated by the amount of work the employee does in the leave year.
If an employee works 1365 hours in a leave year they will be entitled to 4 normal working weeks of annual leave.
To calculate annual leave for employees who have worked less than 1365 hours in the annual leave year, they receive one-third of a week for each month that 117 hours are worked or 8% of the hours worked up to a maximum of 4 working weeks.
Accrual of Annual Leave
Employees will begin to accrue annual leave from the first date of employment.
Accrued from hours:
- Physically and notionally worked
- All time on certified sick leave
- Time worked on public holidays
- Annual leave itself
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What You Need to Know About Staff Handbooks
The most essential document governing the employment relationship is the contract of employment. If you don’t want your employment contract to be too long and untidy you should be referring to your staff handbook when talking about grievances, discipline, dignity at work, anti-bullying, and other workplace policies.
Staff handbooks should be easy to read, and a copy should be easily available to all employees. New employees must read the handbook and indicate that they have done so by giving their signature. It is important to review and amend the policies regularly to ensure any changes in the law or best practices are reflected.
Most important policies and procedures in the workplace
In Ireland, the most important policies, and procedures to have in place are those covering
- Grievances
- Discipline
- Dignity at work (anti-harassment, anti-bullying, and equal opportunity)
- Health and Safety
Other topics that should be considered are, sick leave, holiday leave & pay, hours of work, internet and email usage, dress code, expenses procedure retirement and pension benefits etc.
Bright Contracts
With Bright Contracts, we provide ready-made handbooks that fully conforms to the latest employment law guidelines. The software allows you to add additional sections to handbooks, edit, delete or reorganise the built-in- content and you can easily add your own. You can preview your handbook at any time while you build it and print or export it when it is ready. It’s great as you need no employment law knowledge, we do all the hard work.
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Introducing Contracts & Handbooks to Existing Staff
Update: Steps to Reduce the Spread of Covid-19 in the Workplace
On the 21st of January the Government announced the easing of restrictive measures. The Transitional Protocol: Good Practice Guidance for Continuing to Prevent the Spread of COVID-19 reflects the lessons that we have learned over the past two years. This guidance is a general document applicable to all sectors. All businesses and sectors who have specific guidance should review and update their own guidance in line with the advice contained in the document.
While the public health advice has changed, employers need to remember that several steps still need to be implemented by employers and employees to prevent the spread of Covid-19.
1. Keep a COVID-19 Response Plan in Place
Employers and their representatives should continue to maintain or take the following steps:
• Update their COVID-19 Response Plan according to the most recent public health advice.
• facilitate the ongoing appointment and engagement of the Lead Worker Representative
• Review and update their occupational health and safety (OSH) risk assessments and safety statement as workers return to the physical workplaces and as changes to the workplaces take place.
• Maintain measures to deal with a suspected case of COVID-19 in the workplace
• Maintain any specific measures or response for dealing with an outbreak of Covid-19
2. Maintain policies and procedures for prompt identification and isolation of workers who may have symptoms of COVID-19
How you manage and isolate potential infectious individuals remains a crucial step in protecting the worker involved, their colleagues and others at the workplace. While the need to maintain a contact log with details of workers and visitors to a workplace has been removed, employers may need to provide attendance information as appropriate in the event the local Department of Public Health has to investigate an outbreak.
Employers should continue to:
• Advise that workers do not come to work if they are displaying signs or symptoms of COVID-19 or if they have had a positive test,
• Provide instructions for workers to follow if they develop signs and symptoms of COVID-19 during work,
• Display information on signs and symptoms of COVID-19
Workers should also continue to:
• Keep themselves up to date with the signs and symptoms of COVID-19,
• Do not attend work if they are displaying signs and symptoms of COVID-19 or have symptoms
• Follow public health advise regarding self-isolation, restricting movement, testing and what to do if identified as a close contact
• Report to managers immediately if any symptoms develop during work
• Comply with any public health personnel and their employer for contract tracing purposes and follow any public health advise given in the event of a case or outbreak in their workplace.
3. Maintaining COVID-19 Infection Prevention and Control (IPC) Measures
Hand Hygiene
Employers should continue to:
• ensure that appropriate hygiene facilities and materials are in place to accommodate
workers adhering to hand hygiene measures,
• make available advice on how to perform hand hygiene effectively,
• display posters on how to wash hands in appropriate locations throughout the
workplace,
• provide hand sanitisers (alcohol or non-alcohol based) where washing facilities cannot
be accessed. In choosing an alcohol-based sanitiser, a minimum of 60% alcohol is
required.
• provide facilities for frequent hand hygiene for outdoor work, which should be located
close to where workers are working. Outdoor toilet facilities, if reasonably practicable,
should also be considered.
Workers should continue to:
• Follow hand hygiene guidance and advise
• Wash their hands with soap and water or with hand sanitiser for at least 20 seconds.
Respiratory Hygiene
Employers should continue to:
• provide tissues as well as bins/bags for their disposal,
• empty bins at regular intervals, and
• provide advice on good respiratory practice including the safe use, storage and
disposal of face masks/coverings and the safe cleaning of face coverings.
Workers should continue to:
• adopt good respiratory hygiene and cough etiquette, and
• follow good practice on the safe use, storage, disposal, and cleaning of face
masks/coverings.
Physical Distancing
Employers may choose to maintain some of the practices that were in place based on the Work Safely Protocol for the period of transition back to office work. Especially in meetings, events, or training with a continued focus on hand and respiratory etiquette and adequate ventilation are all measures that may continue.
There is a legal requirement to wear a facemask in specific settings (e.g., healthcare, public transport, taxis, public offices, retail premises etc.) Outside of these settings it is still good practice to continue to use face masks particularly in crowded areas. Employers should continue to support and facilitate the use of face masks b workers who wish to continue wearing them.
Bright Contracts will be updating it's COVID-19 response plan as soon a possible with the updated transitional protocol providing further guidance in relation to office working. Once updated this will be communicated across social media so keep your eyes peeled.
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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- Your Must Have Hybrid-Working Checklist
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Your Must Have Hybrid-Working Checklist
The coronavirus pandemic has completely changed how we live, not just in our personal lives but the way we work too. With hybrid-working becoming a dominant feature in the workplace for everyone businesses are now faced with developing a hybrid policy, creating agreements with their employees and ensuring the success of these arrangements. We believe that preparation is essential for employers when implementing hybrid working which is why we have developed a checklist for employers which can be followed when looking an the implementation of a hybrid model:
Step 1: Look at what works best for your organisation
Step 2: Communicate your intentions
Step 3: Written agreements
Step 4: Implement your hybrid policy
and 5: Refer back to your covid-19 response plan
- Step 1: Hybrid working can bring huge benefits in terms of productivity, flexibility and employee wellbeing – but it’s not the best option for everyone.Think carefully about what your organisation has learned during the pandemic and how your people feel about it. What have been the benefits of working at home and the disadvantages of not being together in the workplace? If hybrid working does appeal, think about what would be the best blend – more home working or more time in the office. Ensure you also look at your HSA health & safety checklists for office and home working. The HSA has these checklists available on the HSA website.
- Step 2: Once you’ve worked out what could work best for your business, make sure you communicate your plans to your employees. Do this well in advance of any change so employees have a chance to feed back their views.
- Step 3: You must ensure you have written agreements in place with your employees which communicates what is expected of them in order to avoid any confusion and any possible future disputes. Bright Contracts have template hybrid working letters available on the Bright Contracts website which can be downloaded here and edited to suit your businesses hybrid model arrangements.
- Step 4: Once written agreements are in place next you need to implement a hybrid working policy within your organisation which we have just made available on our Bright Contracts Software. We hope this provides organisational leaders and business owners a simple but effective framework to make hybrid working a successful reality. With government guidelines on safe working constantly changing in response to the pandemic, hybrid working policies need to be reviewed much more regularly than most other policies
See our follow up blog post 'The Essential Elements of a Hybrid Working Policy' to read what your hybrid policy should detail.
Bright Contracts has a hybrid working policy available in the software which is available under the 'Terms & Conditions' tab. If you'd like to see a sample of this content you can do so by downloading the software and availing of a free trial. we have also recently upgraded our software to include hybrid working in the employment contracts which can be viewed in the contract section fo the handbook under the heading 'Places of Work'.
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Supporting Female Employees: Implementing a Menopause Policy
2021 has been a year of big change for everyone and has given rise to many different topics of conversation, a vitally important topic is that of menopause among the female workforces. A media outlet which we believe captures the importance of the conversation around menopause perfectly is The Irish Times who published an article in May 2021 about menopause and the article made reference to how ‘The menopause is where mental health was 10 years ago’. A statement which could not be more true. The origin of this article stemmed from women’s testimonies on Joe Duffy’s Liveline programme and has continued across all media since including being taken up in the Seanad by Senator Pauline O’Reilly. These discussions have brought to the surface the realisation that menopause is considered a taboo subject, like mental health was and like mental health we are not educated enough in what menopause is, the symptoms of it and how we can help those going through menopause which is why it is so important for employers to educate their workforce and to recognise the importance of supporting women in the workplace who are transitioning through menopause which is why we believe it is vitally important for organisations to implement a menopause policy as we believe it needs to be acknowledged and recognised as an important occupational issue requiring supports to be made available.
To ensure that companies show a positive attitude towards the menopause, we want to encourage employers to create an atmosphere where women feel there are colleagues with whom they can comfortably discuss menopausal symptoms and that they can ask for support and adjustments in order to work safely and without fear of negative repercussions. For this reason, the menopause is an issue for men as well as women. So let’s touch on the basics of menopause by answering the simple question, ‘What is menopause?’ Menopause is a natural stage of life when a woman’s estrogen levels decline and she stops having periods. As menopausal symptoms are typically experienced for several years, it is best described as a ‘transition’ rather than a one-off event. The menopause typically happens between age 45 and 55. The ‘perimenopause’ is the phase leading up to the menopause, when a woman’s hormone balance starts to change. For some women this can start as early as their twenties or as late as their late forties.
There are various symptoms that can be experienced through menopause and can be both physical and/or psychological. They can include: hot flushes, insomnia, headaches, fatigue, memory lapses, anxiety, depression and heart palpitations and each of these symptoms can affect an employee’s comfort and performance at work which is why we developed our menopause policy to ensure you are assisting your female employees in their daily duties. In order to assist those experiencing these symptoms in their daily duties, it is important that your company menopause policy explores making reasonable accommodations to the individuals role or working environment with the aim of reducing the effect that the menopause is having on the individual which is explored in our new menopause policy available on Bright Contracts today! We are committed to ensuring appropriate support and assistance is provided to female employees and that exclusionary or discriminatory practices will not be tolerated. Our menopause policy is fully compliant with the Safety, Health and Welfare at Work Act 2005 as well as the Employment Equality Acts 1998 – 2015.
Check out your Bright Contracts today to view the update, or if you would like to become a Bright Contracts user you can download the software and purchase a licence today.
To access the update, log out of your Bright Contracts company file and log back in, you will then see a yellow bar across the top of the page asking you if you would like to upgrade the content.
Time Saving With Bright Contracts
Contracts. . . they are the pain point of every HR professional when recruiting new employees, processing promotions, extending contracts etc. To non HR professionals it may seem like typing up contracts is quick and easy work but this could not be further from the truth. The following are just some of the pain points I’ve had when typing up contracts, read and tick off any that may apply to you too when creating contracts of employment:
- Formatting Issues
- Grammatical Errors
- Mis-matched Fonts
- Saving Error: Corrupted file error meaning I have lost my entire document
- Time consuming reading complete contract to check for errors
- Printing Errors: Prints off centre or like a jigsaw puzzle making it frustrating to read
Well, how many points did you tick off that were applicable to you? If you found yourself even ticking off two of the above then you need Bright Contracts in your life as this software eliminates every single one of them pain points and produces a consistent, formatted, clean and compliant contract and handbook for each of your employees.
Read the below quick fire Q&A to gain an insight into what bright Contracts is, how it works and how it can help you with your contract and handbook creation:
What is Bright Contracts?
Bright Contracts is a software package that has everything you need to create and manage a professional staff handbook and contracts of employment. What was once traditionally an expensive, complicated and time-consuming process is now quick, easy and affordable with Bright Contracts.
Why should I use it?
Without employee contracts in place, an employer is risking large settlements in the case of staff disputes, and fines in the case of regulatory inspections. Having contracts also clearly defines the contractual relationship between you and your employees. Bright Contracts is the easiest way to get sorted.
What legislation is the software based on?
Bright Contracts has been written taking into account employment legislation across England, Scotland, Wales and Northern Ireland. The main piece of legislation governing the content of Bright Contracts is The Employments Rights Act 1996 and The Employment Rights (Northern Ireland) Order 1996. The legislation specifies that employees must receive written terms and conditions of employment and what these terms and conditions are. In addition Bright Contracts has taken cognizance of current best practices as well as all relevant legislation in the creation of the content of the contract and handbook. Legislation also requires that employers are provided with details of procedures relating to dismissal, disciplinary and grievances, all of which are covered in our documentation.
How do we know this system complies with requirements and what if the law changes?
The system content has been compiled and tested by HR/Employment law experts. The system will be updated with any changes in legislation, changes brought about by case law or changes in best practice. These updates will be flagged to all current users and will be free to download.
How many people can access Bright Contracts?
When a licence is purchased it comes with two activations which means it can be activated on two separate computers. Once these activations have been used they cannot be deactivated and reactivated on another device.
Do I print off the handbooks and contracts?
The simple answer is yes however if you are trying to reduce your paper foot print then you can also have the handbook and contracts of employment as a pdf document which can then be e-mailed or, if you use our Bright Pay Connect product you can upload the documents to the employee’s connect profile.
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.
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