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Newsletter Article

  • Save the Date - HR Barometer

    by Hayleigh Ahearne
    Sep 02, 2019


    SAVE THE DATE

    How will you plan for the HR challenges in 2020?

    The HR Barometer Briefing is a must-attend event for HR Practitioners who are seeking to inform and empower their HR planning in 2020.

    HR Barometer Series 3

    BENCHMARKING | ANALYSING | FORECASTING

    Dublin Event Details:

    Date:                     Monday 16th September 2019

    Time:                    8am – 11.30am. Registration and light breakfast from 7.45am

    Location:             The Westbury Hotel, Balfe St, Dublin 2

     

    Shannon Event Details:

    Date:                     Thursday 17th October 2019

    Time:                    8am – 10am. Registration and light breakfast from 7.45am

    Location:             Treacy’s Oakwood Hotel, Airport Road, Shannon, Co. Clare

     

    In-depth information on core HR, Employment Law and IR topics will be covered, such as

    • Average absenteeism rates
    • Levels of Employee turnover
    • Average number of training days and spend per Employee per year
    • Ratios of HR staff to Employees
    • The main causes of Employee disputes amongst Irish businesses
    • Gender Pay Gap Reporting
    • The top challenges to HR in 2020

    Event Registration

    LIMITED PLACES AVAILABLE

    To confirm your place, please contact:

    marketing@adarehrm.ie or call (01) 561 3594

    Adare Human Resource Management, through Empathy Research, have conducted a national survey reaching out to 250+ Irish owned businesses and multi-national Organisations who have 50+ Employees. The survey findings have captured in-depth information on core HR, Employment Law and IR topics and resulted in a detailed report that acts as a benchmark for HR Practitioners across the country. This report will be shared with attendees on the day.

  • The Probationary Period

    by Hayleigh Ahearne
    Sep 02, 2019

    There are many misconceptions out there that an Employer reserves the right to automatically dismiss an Employee during probation without any risk as the Employee would not have the requisite service of 12 months to bring a claim under Unfair Dismissals Acts 1977 to 2015.

    Employers would be correct in saying that an Employee with under 12 months service does not have access to this specific piece of legislation in general, however if such an Employee believes their dismissal was unfair that does not mean that they cannot successfully challenge their termination; their claim would instead have to be taken under the Industrial Relations Acts 1946 – 2015.

    The Probationary Period Process:

    Here at Adare Human Resource Management, we are often get asked by Organisations how can they effectively manage Employee’s during their probationary period and ultimately how they can terminate in probation, as and when required.

    The requirements regarding the dismissal of an Employee on probation generally depend on the terms of the Employee’s contract of employment and applicable policies. If the contract provides that the disciplinary procedure will not apply to Employees on probation, the Company would not be contractually obliged to follow the full disciplinary procedure prior to dismissing an Employee on probation. If, however, the contract provides that the disciplinary procedure will generally be followed in respect of all dismissals and does not make any exception for the dismissal of an Employee on probation, arguably, the Employer will be obliged to follow the disciplinary procedure prior to dismissing the Employee.

    If it is your Organisation’s policy that the full rigorous of the disciplinary procedure will not apply for Employee’s on probation, there is still however, at a minimum, a requirement to provide the Employee with fair procedures and natural justice prior to their dismissal - regardless of their length of service. This should include:

    • Formally (in writing) inviting the Employee to a meeting regarding their performance / conduct during their probationary period and providing them with all associated documentation / evidence pertaining to the issues in question;
    • Giving them the opportunity to respond fully to the issues in question, and have his / her responses fully considered before any sanction is imposed;
    • Any sanction imposed must be a proportionate response to the alleged wrongdoing or issue.
    • The Employee should be given the opportunity to appeal any decision which has been taken.

    Therefore, a scaled-back version of the disciplinary process should normally be applied.

    Probationary Period Duration:

    It should be noted that the above is only applicable in circumstances where an Employee has not been employed for more than 12 months. It is recommended that probationary periods should not extend for a period of greater than 12 months. The period of 12 months includes any applicable notice period on termination. If an Employee is dismissed while on a probation period but has at least 12 months’ service (including his/her notice period), he or she would be entitled to bring a claim for unfair dismissal and the Employer would be required to show that they followed their disciplinary process and applied fair procedures when making the decision to dismiss the Employee in similar fashion to the dismissal of an Employee who is not on probation.

    Risks when terminating in probation:

    As outlined above, Employees (regardless of service) can bring a complaint to the Workplace Relations Commission under section 13 of the Industrial Relations Acts 1946 – 2015 if they have a grievance against their Employer about their treatment. Recommendations under the Industrial Relations Acts 1946 – 2015 are not binding on Employers, however, the parties are expected to give serious consideration to any recommendation.

    In addition, Employees with less than one’s years’ continuous service are afforded protection arising out of dismissals by reason of one or more of the nine discriminatory grounds as outlined under the Employment Equality Acts 1998 – 2015 and may bring forward a claim to the Workplace Relations Commission.

    Case law:

    There was a landmark case decision given by the Labour Court in this area in late 2018 and relates to A Worker VS Park Hotel Kenmare (LCR21798).

    This case was most notable in the media not only for its recommendation but also because of its famous hotelier, Francis Brennan.

    The Worker claimed that he was unfairly dismissed from his employment after being called into a meeting with the Managing Director and told “this was not working out”. He claimed that he was headhunted by the Employer to accept a role as General Manager of the Hotel. As a result, he moved from Dublin to Kenmare to take up the role in January 2018 and was subsequently dismissed, without warning, 27th April 2018 by the Managing Director.

    The Respondent disputed that the Claimant was headhunted and claimed that they were entitled to dismiss the Claimant during his probationary period by the giving of notice to that effect, as provided for in his contract of employment.

    In this instance, the Court found:

    “Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.”

    It was further noted that:

    “This requirement of procedural fairness is rooted in the common law concept of natural justice.

    The Court is satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court is satisfied that he was denied natural justice.”

    The Labour Court recommended that the Respondent should compensate the Claimant by the payment of €90,000.00.

    If you have any questions surrounding an Employee’s probationary period then please contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594 to discuss how we can assist you.

  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    Sep 02, 2019
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

    Employee awarded €400.00 from Employer for not receiving a Contract of Employment

    Adjudication Reference: ADJ-00020808

    Background:

    The Complainant was employed with the Respondent company from August 2018 to March 2019. He was never provided with a formal Contract of Employment.

    Summary of Complainants Case:

    The Complainant’s case is so made.

    Summary of Respondent’s Case:

    The Respondent agrees that it had not yet provided the Complainant with the Statement of the Terms and Conditions of Employment as required under the Act. In defence the Respondent indicated it is a small company and the Complainant left his employment unexpectedly shortly after he was engaged.

    Decision:

    Section 41 of the Workplace Relations Act 2015 requires that a decision to be made in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.  Given the circumstances the complaint is well founded and the Complainant is awarded compensation in the amount of €400.00.

    Adare Human Resource Management Commentary:

    Section 3 of the Terms of Employment (Information) Act, 1994 outlines that “An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment…”.

    Since the introduction of the Employment (Miscellaneous Provisions) Act 2018 in March 2019, an Employer must now also provide the following core terms to an Employee in a written statement within five days from his/her start date:

    • full names of the employer and employee;
    • address of the employer;
    • where the contract is temporary, the duration of the contract or if it is for a fixed term, the date on which the contract expires;
    • the rate or method of calculation of the employee's remuneration and pay reference period; and
    • the number of hours per day and per week which the employer reasonably expects the employee to work.

     

    It should be noted that this requirement is in addition to the obligation to provide an Employee with a written statement of terms of employment within two months of his/her start date, however all legal obligations can be adhered to by issuing an Employee with a contract of employment on their first day of employment.

    ____________________________________________________________________________________________________________

    Complainant awarded redundancy entitlement even though he was offered other work alternatives

    Adjudication Reference: ADJ-00019051

    Background:

    The Complainant has brought forward three complaints;

    1. The Complainant was entitled to a statutory redundancy payment when the site he worked in closed down and he was not offered a reasonable alternative;
    2. The Complainant was not furnished with written terms and conditions of employment; and
    3. The Complainant did not receive minimum notice.

     

    Summary of Complainants Case:

    The Complainant commenced his employment in 2004. From 2006, he worked on a particular site where he remained for the duration of his employment until 31st July 2018 when the site closed. He had worked a regular 39-hour week. The Respondent took over the security contract and a transfer of undertakings occurred for the Complainant’s employment 2010. The Complainant was offered totally unsuitable alternatives.  He considered one site being a dangerous hazard, having to work nights, with no mobile phone reception and no facilities. He was also then offered other sites, these were either a long drive via dangerous roads or not full-time positions. The Complainant submits given the circumstances he is entitled to redundancy. He further claims that he should have received minimum notice and also claims that he received no written contract.

    Summary of Respondent’s Case:

    The Respondent denies that the Complainant was not furnished with written terms of employment and a copy of the contract was submitted. The Respondent further contends that the Complainant is not entitled to either redundancy or minimum notice. The circumstances were that when the site closed, the Complainant was given alternative employment and then offered other employment. Some alternatives were discussed with the Complainant but he did not take up the offers.

    Decision:

    CA-00024699-001 – Terms of Employment

    As the written terms of employment was submitted by the Respondent, Complainant’s complaint was not well founded.

    CA-00024699-002 – Redundancy

    Section 15 of the Redundancy Payments Act, 1967 sets out the grounds of disentitlement to redundancy payment for refusal to accept alternative employment:

    “15 (2) An employee shall not be entitled to a redundancy payment if

    (a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,

    (b) the provisions of the contract, as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before [the termination of his contract]

    (c) the offer constitutes an offer of suitable employment in relation to the employee,

    (d) the renewal or re-engagement would take effect not later than four weeks after the date of [the termination of his contract], and

    (e) he has unreasonably refused the offer”.

    The Complainant had worked for the current Respondent for a total of 14 years.  The site on which he worked a regular 39 hour week closed in July 2018.  He was briefly deployed on what was described by the Complainant as totally unsuitable, involving night hours, no mobile phone reception and having to sit in his car as there was no canteen facility. He was then offered other work which he found unsuitable for various reasons, including driving long distances.

    In the circumstances, it was found that the provisions of the new contract would differ wholly or in part from the previous one, and the offers did not constitute offers of suitable employment. It was concluded that the Complainant did not unreasonably refuse the offer of alternative employment. Therefore, the Complainant is entitled to a statutory redundancy payment provided he has been in insurable employment for the period, based on the following:

    Date of commencement of employment:  31/07/2004

    Date of termination of employment:           31/07/2018

    Basic gross weekly pay (based on 39 hr week): €442.65

    CA-00024699-003   -   Minimum Notice

    The circumstances in which the employment ended are outlined above.  The Complainant did not make himself available for work and therefore minimum notice is not relevant or appropriate. The Complaint is not well founded.

    Adare Human Resource Management Commentary:

    The Redundancy Payments Act, 1967 sets out the grounds of disentitlement to redundancy payment if an Employee refuses to accept reasonable alternative employment. What is considered “reasonable” generally is determined by the Employee in question. For example, the change in location for an Employee can be considered unreasonable if the distance is greater than the distance s/he once travelled from their own home upon commencement of their employment.

    ____________________________________________________________________________________________________________

    Respondent successful as the Complainant took case under wrong Act

    Adjudication Reference: ADJ-00019074

    Background:

    Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991.

    Summary of Complainants Case:

    The Complainant (Civil Servant) had sought a promotion in work but for which there were separate criteria; seniority and merit.  She was appointed on the basis of seniority but the effective date for appointment was only to July 1st, 2016.  Had she been appointed on the merit basis this would have been retrospective to 2013.

    She also complained about the conduct of the promotional competition, and various aspects of the marking.  She now complains that the failure to appoint her from the date she seeks in 2013 is a breach of the Payment of Wages Act.

    Summary of Respondent’s Case:

    The Respondent says that this is a dispute about an administrative decision and does not arise under the Payment of Wages Act, 1991 as there has been no unlawful deduction or failure to pay wages properly due to the Complainant. The Complainant’s wages had in fact increased in the period. The Complainant’s promotion was effective from 2016 and she is seeking to have it made effective from 2013.

    This is a dispute about personnel procedures and processes within the Respondent’s organisation but cannot be challenged under the Payment of Wages Act, 1991.

    Decision:

    The net point here is clear from the submissions of the parties.  The somewhat confusing narrative about the Respondent’s promotional arrangements, and the Complainant’s experience of the competition do nothing to bring the complaint within the ambit of the Payment of Wages Act, 1991. Most of the Complainant’s submission was irrelevant.

    There has been no deduction based on any recognisable interpretation of the provisions of the Act, nor has there been any failure to pay wages that are ‘properly payable’.

    The Complainant appears to argue that if her promotion had been approved under different rules, wages at a higher rate would have been properly payable, but the fact is that until the promotion was actually approved, they were not.

    There was no contractual obligation to pay wages to the Complainant which was not applied.  The Complainant appeared to misunderstand the jurisdiction of the Act as it applied to the facts of her case and the complaint is entirely misconceived.

    The complaint fails and is dismissed.

    Adare Human Resource Management Commentary:

    When any complaint is lodged to the Workplace Relations Commission, it is imperative that Employers understand the specific piece of legislation in which the claim is being brought under as many Employees can interpret this incorrectly. If this is the case, the complaint can be dismissed.

  • Casual Contracts of Employment - 6 months on since the implementation of the Miscellaneous (Provisions) Act 2018

    by Hayleigh Ahearne
    Sep 02, 2019

    The Employment (Miscellaneous Provisions) Act 2018 was implemented on the 4th March 2019 and amended sections of the Organisation of Working Time Act 1997, the Terms of Employment Information Act 1994 – 2014, and the Minimum Wage Act 2000.

    The essence of the new legislation was to address issues that arise for workers with unspecified / insecure hours of work by the provision of new statutory protections and rights and the prohibition of the use by Employers of zero-hour contracts, save in certain limited circumstances.

    What are the certain limited circumstances?

    As outlined above, the Act prohibits the use of zero-hour contracts, however Employers can still issue Casual Contracts of Employment to Employees in situations of genuine casual employment & where essential to allow Employers to provide cover in emergency situations / cover short-term relief work / cover routine absences the Employer.

    It is prudent to note that the Organisation of Working Time Act, 1997 always governed the legal position regarding zero hour contracts, however not many Employers would have been aware of this or implemented this in practice. Section 18 of the Act provided that an Employee under a zero-hours contract who worked less than 25% of their hours in any week should be compensated. The level of compensation would depend on whether the Employee got any work or none at all. If the Employee got no work, then the compensation should have been either for 25% of the possible available hours or for 15 hours, whichever is less and if the Employee got some work, they should be compensated to bring them up to 25% of the possible available hours.

    Now with situations of casual employment where Employees are employed on a genuine “as and when required” basis (i.e. those who provide cover in emergency situations / cover short-term relief work / cover routine absences the Employer etc.) there is no entitlement to such payment as the Employee is under no obligation to accept work [no mutuality of obligation] because they operate on an expectation as distinct from an obligation to work.

    If you require any assistance with casual contracts of employment, please do not hesitate to contact the team on 01-5613594 or info@adarehrm.ie

     

  • Absence Management and how it is measured

    by Hayleigh Ahearne
    Aug 01, 2019

    Absence management and sick leave absenteeism can be complex issues with at times, no simple or instant fixes. Sick leave absence can occur as a result of a number of factors which need to be considered when looking to minimise sick leave absenteeism levels and increase attendance levels at work. The reasons for absence can vary and may relate to the Employee concerned, the work carried out by the Employee and the type of working environment in which they operate in.

    Absence is defined as ‘unscheduled disruption of the work process due to days lost as a result of sickness or any other cause not excused through statutory entitlements or Company approval’.

    The following are not considered as absence:

    • Statutory leave like annual leave and public holidays, maternity leave, paternity leave, parental leave, force majeure, carer’s leave and paternity leave
    • Days lost due to strikes and lay-off
    • Excused leave such as bereavement leave, exam/study leave, and marriage leave.

    Recording Attendance/Absence

    It is essential to understand the dimensions of an absence problem. In order to understand if a problem exists and/or the extent and cost of absence, Organisations will have to put in place measures, to monitor and record absence/attendance. Monitoring absence allows Organisation’s to answer questions such as;

    • Who is absent?
    • Why?
    • When?
    • How often?
    • Is the absence certified by a doctor or uncertified?

    Recording absence data shows Employees that attendance is significant at work and failure to attend work will be noticed. If the attendance data is not recorded, there may be a perception among Employees that any or all level of absence is tolerated within the Organisation. The availability of attendance or absence records further allows an Organisation to benchmark either across divisions, Organisation locations or against rates set either internally or by corporate headquarters.

    Recording absence helps Organisation to benchmark what is or isn’t an acceptable level of absence within the Organisation. Where a standard or target attendance rate is defined for all Employees, it is comparatively easier to identify cases that divert from the standard position. Attendance/absence data can provide an imperative for supervisors or managers to deal with absence abuse, as with an objective measure and analysis tool in place, and taking action against problem absences becomes more easily done.

    The Bradford Factor

    The Bradford Factor is a formula that is used to measure Employee absenteeism, specifically focusing on Employees with frequent short term absences. Employees taking several short term sick leave absences are often considered to be more disruptive to an Organisation than a single spell of longer term sick leave absence. By their nature, short-term absences are more difficult to predict and their unexpected nature makes them difficult to plan for.

    The Bradford Factor measures the number of absence incidents and the length of time of each incidence to determine an overall ‘score’ for each Employee. An updated score is allocated to the Employee following each period of sick leave absence. The higher the score, the more disruption it is argued the Employee’s absence is causing an Organisation.

    The Bradford Factor is calculated using the following formula:

    B = S X S X D

    Where:

    • B is the Bradford Factor score
    • S is the total number of spells (instances) of sick leave absence of the Employee over a set period
    • D is the total number of days of sick leave absence of the Employee over the same set period

    The 'set period' is typically set as a rolling 52 week period

    Use of this calculation method identifies those who have taken a number of short spells of sick leave absence and allows for consistency in determining when further action is required. Once an Employee arrives at a certain defined score or trigger point, it can form the basis for further investigation and action.

    Decisions should not be made on the basis of an Employee Bradford Factor score alone. Communication and discussion of concerns with the Employee and consideration of the individual circumstances are key elements as part of the effective management of an individual sick leave absence case.

    Absence Management Policy

    An effective absence management policy is one that is well defined and incorporates a number of elements. It allows an Organisation to understand the levels and causes of absence from work and enables those who are sick to return and stay at work on a successful basis. Furthermore, it takes effective action against the typically small number of Employees whose absence is non-health related and seek to gain from any organisational sick pay scheme.

    Line Managers have a critical role to play in supporting Employees whilst out of the workplace and ensuring that appropriate steps are taken to facilitate a successful return. Ongoing training and support is vital in order to equip Line Managers with the necessary skills and knowledge to effectively deal with issues which arise in this area.

    An absence management policy ensures employee absence is consistently and objectively managed. For the Organisation itself, it reduces stress and diminishes employment related claims-for stress and unfair dismissal against the Organisation.

    Sick Pay

    There is no legal entitlement to sick pay while an Employee is absent due to illness or injury, unless detailed in Sectoral Employment Order or Registered Employment Agreement. However, contractual sick pay entitlements are common practice in Ireland, in particular in certain sectors.

    Legislation requires Organisations to provide information to Employees on any terms or conditions of work which relate to incapacity for work due to sickness or injury, including any provision for sick leave pay. The terms of eligibility and the extent of the entitlement can vary considerably and should be outlined within an Employee’s contract of employment and/or Sick Pay policy.

    Examples of the provisions which are generally covered with a Sick Leave policy include:

    • Allowing for an element of discretion in relation to payment for sick leave so as to remind Employees that there is no automatic entitlement to such payments.
    • The notification requirements an Employee is required to comply with in the event they are unable to attend for work. An Employee will typically be required to speak directly with their Line Manager before a set timeframe on the first day of absence. The consequences of failure to do so, typically non-payment, should be clearly outlined.
    • The occasions when an Employee will be required to provide a medical certificate. This can vary from a self-certificate for sick leave periods of one or two day’s absence, to a requirement to present a medical certificate for sick leave absences of three days or more. For periods of longer term sick leave absence, follow up certificates are typically required weekly or bi-weekly, with an element of discretion dependent on the individual circumstances.

    Restricting Sick Pay

    If there is a sick pay scheme in operation, the Employees are entitled to receive some payment in the event of illness. It is created to provide Employees with some protection in times when they cannot work due to illness. A sick pay scheme can sometimes be considered a contributory factor to short- term absence. It is because of the way the schemes are managed, with Employees feeling entitled to take a certain number of days casual absence per annum. The restriction of sick pay is generally part of the control mechanism built into a scheme and consists of either:

    • Restricting the number of paid days casual absence in a given period of time, or
    • Suspension from benefit where abuse of the scheme has been proven or where the absent Employee has failed to comply with the rules of the Organisation’s sick pay scheme.

    Link to Discipline

    Reasons for sick leave absenteeism can vary widely dependent on the individual circumstances. The individual circumstances of each instance of sick leave absence should be considered when determining what disciplinary action, if any, to take. Consistency and fairness are key to ensure that any management action taken can be justified.

    An Organisational sick leave policy should specify the circumstances in which disciplinary action, including the withholding of sick pay, will apply. In the event of non-adherence to the policy, the Organisation should ensure action is taken on a consistent basis, taking into account the individual circumstances and with full regard to fair procedures.

    An Organisation can create a stepped approach as part of an overall strategy to deal with problematic sick leave absences of a short term nature:

    • Through the use of absence triggers, such as the Bradford Factor, an Organisation can determine a level of absence which is considered to be unacceptable in line with the internal sick leave policy;
    • The point at which an Employee has arrived at the defined trigger point can be determined through active monitoring;
    • In the event the trigger point is arrived at, a Line Manager should raise their concerns with the Employee as part of the Return to Work Interview, and if appropriate determine an appropriate course of action to be taken;
    • Should an unacceptable level of sick leave continue to occur, it may be appropriate to take further disciplinary action, up to and including dismissal.

    Promoting Wellbeing

    As part of an overall approach to reduce the levels of sick leave absence, Organisations can take steps to enhance and promote the overall levels of health and well-being of their workforce.

    Management support and promotion of such initiatives, particularly in Organisations where high levels of sick leave absence do exist, can provide real and considerable positive outcomes. Evidence would suggest that the availability of such arrangements assist in reducing both the costs and detrimental impact of sick leave, whilst leading to an increase in overall levels of Employee engagement, greater productivity levels, and greater levels of motivation and job satisfaction.

    Better understanding and insight as to the most common causes of short-term and long-term sick leave absence within an Organisation can assist in determining the types of initiatives to focus on as part of an overall Employee health and well-being programme.

    Examples of programmes or benefits which an Organisation may consider include:

    • Onsite health clinics and screening programmes;
    • Stress management workshops;
    • Mental health and well-being seminars;
    • Line management training;
    • Workload management and prioritisation;
    • Promotion of healthy eating;
    • Subsidising gym / fitness facilities;
    • Raising awareness of availability of confidential counselling and other specialist information services under EAP;
    • Focus on Health and Safety standards and regulations, including VDU and work station ergonomics.

    Conclusion

    Effective absence management and the promotion of well-being initiatives should be on every HR department’s agenda. The recording and monitoring of attendance levels is essential in order to measure and evaluate the level and nature of sick leave absence within an Organisation. Analysis of sick leave absence data absence can occur at an Organisational level in order to gain an understanding of the overall rate of sick leave, and an individual level to allow identification of problem absence levels at an Employee level.

  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    Aug 01, 2019
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

    Complainant receives Redundancy payment of 8 years despite owner not having the funds to pay

    Adjudication Reference: ADJ-00020622

    Background:

    The Complainant was employed as a Sales Assistant.  The shop ceased trading and the owner did not have the funds to pay the Complainant her redundancy.

    Summary of Complainants Case:

    The Complainant was employed as a Sales Assistant from May 9th 2015 to April 9th 2018.

    The Complainant was informed that the Store was ceasing effective immediately on April 9th 2018 and she was being made redundant but was informed the Owner had no funds to pay redundancy pay.  The Complainant earned 300 Euros per week for a 30 Hour week.

    The Complainant did not receive any redundancy payment and is seeking a redundancy payment under the Act.

    Summary of Respondent’s Case:

    The Respondent advised at the Hearing that the Store was not operating profitably and due to the presence of large stores nearby she had to cease trading.  She confirmed the redundancy payment was due and not paid.  She also advised she did not have any funds to pay the redundancy payment.

    The Respondent submitted a written statement from her Accountant, dated May 23rd 2019, stating that she had ceased trading on April 30th 2018, that she had no assets other than her mortgaged home and was not in a position to pay the redundancy due.

    Decision:

    Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that a decision be made in relation to the complaint in accordance with the relevant redress provisions under that Act.

    Section 4.(1) of the Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.”

    Therefore subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, and subject to being confirmed by the appropriate Government Agency, it was found that the complaint is well founded and the Complainant is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis;

    Date of Commencement: May 9th 2010, Date of Termination: April 9th 2018

    Gross Weekly Wage: 300 Euros per week.

    Adare Human Resource Management Commentary:

    A genuine redundancy is taken to exist where one of the following arise:

    • The Employer ceases to carry on the business for which the Employee was employed, or ceases to carry on the business at the same place where the Employee was employed.
    • The work for which the Employee was employed has ceased or the requirement to perform that work has reduced.
    • The Employer has decided to carry on the business with fewer or no Employees. Work may be reallocated to other Employees.
    • The work which the Employee performed is to be performed in a different way and the Employee is no longer qualified to undertake the work.
    • The Employee’s work is to be undertaken by another person who is sufficiently qualified and capable to undertake other work for which the Employee is not sufficiently qualified or trained.

     

    An eligible Employee is entitled to two weeks for every year of service, plus a bonus week. When calculating a week’s pay, any other payment normally received by the Employee, such as average regular overtime and benefit in kind, should be added to the gross weekly wage. This total is then subject to a Wage Ceiling, which is currently €600. All statutory redundancy payments are tax free.

    ____________________________________________________________________________________________________________

    Ex-Employee fails in Unfair dismissal case against Employer

    Adjudication Reference: ADJ-00013209

    Background:

    The Complainant was employed by the Respondent as a Supervisor from October 2014 until 29th January 2018. The complaint was submitted to the Workplace Relations Commission (WRC) on 9th February 2018 and relates to alleged Unfair Dismissal.

    While the complaint form submitted to the WRC on 9th February 2018 states that the complaint relates to Constructive Unfair Dismissal, it is the Complainant’s case that she was dismissed from the employment and did not resign. On that basis, it is the alleged Unfair Dismissal that is the subject of this adjudication decision.

    Summary of Respondent’s Case:

    The Respondent states that the Complainant was not dismissed from her employment. The Respondent stated that it had received complaints from customers in relation to the Complainant’s attitude and that this had been conveyed to the Complainant in a telephone call from the Managing Director on 29th January 2018. The Respondent states that although the Managing Director of the Respondent was annoyed at having received a further customer complaint in relation to the Complainant, he did not dismiss her from her employment on that date or any date at all. The Respondent stated that any mention of a reduction in hours during the phone call was discussed in the context of the upcoming rosters based on the expected needs of the business and not as a means of punishing the Complainant or threatening her.

    The Managing Director’s business partner stated that the Complainant met with him and the Managing Director on 2nd February 2018 and it was explained to the Complainant that she was not dismissed and that she was rostered to work on the following day (Saturday 3rd February 2018). The Respondent stated that a record of the meeting of the 2nd February 2018 was emailed to the Complainant on the following day and this included the issues she had raised and re-iterated that she had not been dismissed and that she would continue to be rostered for shifts going forward. The Respondent stated that the Complainant subsequently confirmed during a telephone call that she would not be at work on 3rd February 2018 due to ill health.

    The Respondent stated that the Complainant replied to its email of 3rd February 2018 the following day and indicated that she would not be returning to work as she had been dismissed during the telephone conversation with the Managing Director on the 29th January 2018.

    Summary of Complainants Case:

    The Complainant stated that she was dissatisfied with how she had been treated by the Managing Director of the Respondent over a prolonged period of time. She stated that she was dissatisfied with her roster and that her hours of work had been reduced for no reason. The Complainant outlined that she had submitted a grievance and had sought an investigation in line with the grievance procedure included in her contract of employment. The Complainant stated that the Managing Director had discarded her letter of grievance in the bin and that it had not proceeded to an investigation as requested.

    The Complainant stated that during a telephone conversation on 29th January 2018, the Managing Director informed her that he had received another complaint from a customer about her attitude and that he would not be able to give her any more hours. The Managing Director was also alleged to have said that he did not want to talk to the Complainant or see her again. The Complainant stated that her Husband also works for the Respondent and the Managing Director threatened to reduce his shifts as well during the telephone call. The Complainant submits that the Managing Director informed her that she was dismissed, and he then ended the telephone conversation.

    Findings and Conclusions:

    It is clear that the Complainant and the Managing Director had a fraught relationship which was not helped by the customer complaints which he had received in relation to her. The Complainant considered the Managing Director’s behaviour towards her to be bullying and harassment. The Complainant raised a grievance in relation to this issue and stated that the grievance letter had been “thrown in the bin” by the Managing Director and, as a result, was not investigated in line with the Respondent’s grievance procedures. It was found that the Managing Director’s behaviour towards the Complainant was inappropriate and harsh and while he may well have discarded her grievance letter and acted at variance with the Respondent’s procedures, this complaint relates to an assertion by the Complainant that she was dismissed from her employment.

    In relation to the alleged dismissal, the Managing Director confirmed at the first adjudication hearing that despite his annoyance in relation to the complaints he had received, the Complainant had not been dismissed and that this could be verified by his business partner who was in direct correspondence with the Complainant after the events of the 29th January 2018. The adjudication hearing of 19th February 2019 was adjourned to allow the Managing Director’s business partner to attend and give evidence in relation to the purported dismissal. The adjudication hearing was reconvened on 1st April 2019 and the evidence given on that day was that the Complainant was not dismissed and would continue to be rostered for approximately the same number of hours as she had always worked per week with a minimum reduction in hours depending on the needs of the business.

    The Managing Director’s business partner also confirmed in evidence that a meeting took place between the parties on 2nd February 2018 in an attempt to resolve the outstanding issues and that the Complainant had already been rostered to attend work on 3rd February 2018 but was unable to do so for health reasons.

    The Adjudicator was satisfied having reviewed the email documentation submitted and having heard the evidence in relation to the meetings that took place in early February 2018, that the worker continued to be rostered for work and on that basis was not dismissed from her employment on 29th January 2018 as claimed.

    Decision:

    Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires a decision to be in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

    It was found that the Complainant was not dismissed from her employment and the complaint of alleged unfair dismissal is not well founded.

    Adare Human Resource Management Commentary:

    Managing workplace discipline can be a daunting experience for many business owners and Managers.  It is an area where employment law can leave an Employer feeling as though it is impossible to deal with poor performance, attendance or misconduct by an Employee.

    The following grounds are set out as fair grounds for a dismissal.  Ultimately, any disciplinary sanction must be based on one of the following to be fair and to ensure that the Employer can stand over any subsequent dismissal as having been for a fair reason:

    • Competence: this generally relates to the performance of the Employee in their role.
    • Conduct: this relates to the behaviour of the Employee at work, and may extend beyond the work environment in certain circumstances.
    • Capability: this refers to the Employee’s ability to fulfil the terms of their contract, such as attending work on a daily basis. 

     

    Where one of the above matters results in the dismissal of an Employee, the Employer must be capable of demonstrating that the dismissal was fair.

    ____________________________________________________________________________________________________________

    Complainant awarded €13,180.00 back payment in wages

    Adjudication Reference: ADJ-00019891

    Background:

    The Complainant started employment with the Respondent in February 2016 and works as a Site Operative.  The complaint is in regard to the alleged non-payment of the rate of pay set out in the Sectoral Employment Order (SEO) for the Construction Sector which came into force with effect from 19th October 2017.

    Summary of Complainants Case:

    The Complainant is employed in a job that is covered by the Sectoral Employment Order which came into effect on 19th October 2017.  The Complainant is paid less than the amount specified in the Order since that date.

    Summary of Respondent’s Case:

    All Employees of the Respondent who fall under the umbrella of the SEO were offered terms and conditions in line with the SEO in April 2018.

    The terms of the offer were rejected by the Complainant and other Employees.  These Employees insisted on remaining on their existing terms and conditions.

    Findings and Conclusions:

    The Respondent produces and fits precast concrete products for the construction industry.  In 2017 the Sectoral Employment Order (Construction Sector) 2017, S.I. No. 455/2017, came into effect with an implementation date of 19th October 2017.  Amongst its provisions it set down minimum rates of pay for workers employed in the sector.

    The Respondent’s workforce consists of about 35 Employees some of whom work in the office, some in the factory and the remainder on site.  The Respondent’s Finance Director stated that when he joined the Company in 2018 there had been no previous financial controller and that one of the first issues that he had to address was the implementation of the SEO.  In April 2018 a set of proposals in this regard was sent to each Employee whom the Respondent deemed to be covered by the SEO.  Whilst advising of the new hourly rates the proposal also dealt with a number of other items including subsistence rates, clocking-in procedures, weekend rates, pension scheme contributions and a clause in relation to the lower rate of pay applicable if required to work in the Respondent’s factory.  This proposal was rejected by the Employees concerned as they believed that the combined effect of the proposals would be to reduce their income.  The Director in evidence stated that the Respondent had provided calculations to show that this was not the case but that the Employees had insisted on remaining on their existing terms and conditions.  The management took a decision not to implement the new hourly rates until all issues had been resolved.

    The Respondent then began to come under pressure from prospective clients who required an undertaking from the Respondent that they were employing their workers in conformity with the SEO.  A slightly amended set of proposals, dated 11th January 2019, was then put to the Employees concerned and was eventually accepted by them.  At this time, however, the complaint had travelled to his homeland for Christmas and had not returned at the end of the holiday.  The Complainant has not worked for the Respondent since that date but was in attendance at the hearing.

    It was noted that the Director recognised the need to address the implementation of the SEO upon his appointment in 2018.  It was noted management attempted to address a number of issues as well as that of the rate of pay.  These were presented to the Employees concerned as a package but were not agreed by them.  According to the evidence of the Director it was accepted that the Respondent had an obligation to pay the rates contained in the SEO but a decision was made that this would not be done until agreement was reached on all matters.  This agreement was reached in February 2019 but as noted the Complainant was not working for the Respondent at that time.

    The requirement to pay the rate contained in the SEO dates back to 19th October 2017 regardless of whether or not there were other issues that the Respondent wished to address.  The Complainant had been in receipt of a rate of pay of €13.30 per hour.  The rate of pay applicable to the Complainant under the terms of the SEO is €17.04 (Category 1 worker).  This rate of pay should have applied from 19th October 2017 until the end of December 2018 for all work performed for the Respondent.

    Decision:

    Section 41 of the Workplace Relations Act 2015 requires a decision to be made in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

    The complaint was deemed to be well founded. The Respondent had a liability to pay to the Complainant the rate of pay specified in the SEO for a Category 1 worker (€17.04 per hour) for all work performed for the Respondent until the end of December 2018. Details of hours worked were supplied by the Respondent and based on these the Respondent is required to pay to the Complainant the sum of €13,180.00.

    Adare Human Resource Management Commentary:

    Sectoral Employment Orders (SEO) covering rates of pay, sick pay, and pensions across the construction sector, the mechanical engineering sector and the electrical sector were signed into legislation following acceptance by the Minister of State at the Department of Business, Enterprise and Innovation, of recommendations from the Labour Court.

    The SEOs place a legally binding floor on rates and obligations in the sectors throughout the country.

  • Disability in the Workplace - Key considerations for Employers

    by Hayleigh Ahearne
    Aug 01, 2019

    The Employment Equality Acts

    The Employment Equality Acts 1998-2015, set out to prevent discrimination against Employees. The purpose of the Acts is to eliminate discrimination in relation to employment (including applicants for employment) and to provide a framework of enforcement to achieve this aim. The legislation sets out nine grounds on which discrimination is prohibited, and also sets out complaints procedures for a person to make a claim in relation to any act of discrimination to which they are subjected. One of the nine grounds is discrimination in relation to disability.

    Disability Discrimination

    The Employment Equality Acts set out to protect workers with a disability from being treated unfavourably due to something arising as a consequence of their disability when compared with another worker who does not have the disability. The reason does not have to be the disability itself and can include something related to it, such as an aid or device (e.g. the use of a wheelchair).

    What is a disability?

    The definition of a disability is a legal and not a medical definition. This means that sometimes a medical condition may be regarded as a disability by a doctor but will not be a disability for the purposes of disability discrimination.

    A person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

    Disability is defined, under the Act, as:

    a) “the total or partial absence of a person’s bodily or mental functions, including the absence of a part of the person’s body,

    b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

    c) the malfunction, malformation or disfigurement of a part of a person’s body,

    d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

    e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

    f) and shall be taken to include a disability which exists at present or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”

    Direct disability discrimination in relation to a Worker

    Directly discriminating against a worker with a disability occurs when a worker is treated less favourably because of their disability when compared with another worker who is not disabled but has the same (or at least not materially different) abilities as the disabled worker.

    Indirect disability discrimination in relation to a Worker

    Indirectly discriminating against a worker with a disability occurs when on Organisation applies a formal or informal provision criteria or practice equally to all the workers in the workplace, which puts a group of workers with a disability at a particular disadvantage when compared with other workers and a worker within that disadvantaged group actually suffers the particular disadvantage. It does not matter whether or not this has been done intentionally.

    Failure to make Reasonable Accommodation

    The Employment Equality Acts set out specific responsibilities for all Employers in relation to disability. The legislation goes further to protect an Employee who has or had a disability. It is a requirement that where a person’s ability to fulfil their role is restricted by their disability, then the Employer is required to provide special facilities to enable that person to be fully competent to fulfil their role. This is referred to as “reasonable accommodation”.

    Reasonable accommodation which the Employer may be required to provide can include the adaptation of premises and equipment, changing patterns of working time, redistribution of tasks or the provision of training or integration resources. The Employer is not expected to provide any facility, treatment or thing which the person would ordinarily provide for him/ herself.

    Reasonable accommodation must only be provided where the provision of such measures would not impose greater than a disproportionate burden on the Employer.

    In making any decision as regards whether the provision of reasonable accommodation would impose a disproportionate burden to the Organisation, it is necessary to consider the following factors, and retain documentary evidence to support the ultimate decision taken:

    • the financial and other costs entailed,
    • the scale and financial resources of the Organisation, and
    • the possibility of obtaining public funding or other assistance.

    The legislation also requires the Employer to provide reasonable accommodation to enable a disabled Employee to attend and participate in training.

    In all cases of disability, discussions should be entered into with the Employee as to what measures are required and medical advice should be sought where appropriate. As this is an area where many Employers expose themselves to the risk of claims of disability discrimination, it is strongly advised that advice is sought before taking any decisions not to provide reasonable accommodation.

    Equal Pay for Like Work

    The legislation requires that persons are paid equal pay for undertaking like work. Essentially, where two persons are involved in the same work, or work of equal value, they should not be paid different rates based on any of the nine grounds, e.g. because one worker has a disability and another worker doesn’t. However, differences in pay may be justified on other objective grounds, such as skills, knowledge, experience and performance in the role.

    Victimisation

    Victimisation happens when a worker is being treated less favourably because:

    • they have asserted their right not to be discriminated against on the basis of their disability by making a complaint about disability discrimination
      • they gave evidence or information in a complaint of disability discrimination
      • they take any other action under the Employment Equality Acts relating to disability discrimination
      • they have alleged that the Organisation or another worker has contravened disability discrimination legislation

    Steps an Employer May take to Reduce Exposure under the Legislation

    In order to protect the Organisation from claims of discrimination and Organisation must be seen to take reasonable steps to prevent discrimination occurring.  Where discrimination does occur, or is alleged to occur, the Employer must take steps to ensure that there is no further reoccurrence of the discrimination.

    The Act permits an Employer to undertake positive action initiatives with a view to ensuring full equality in practice between Employees, being measures:

    • To prevent or compensate for disadvantages linked to any of the discriminatory grounds
    • To protect the health and safety at work of persons with a disability, or
    • To create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment.

    Disability Act 2005

    The Disability Act 2005, which came into effect in July 2005, is a positive action measure designed to advance and underpin participation by people with disabilities in everyday life. It establishes a statutory basis for mainstreaming. Mainstreaming places obligations on public service providers to support access to services and facilities for people with disabilities to the greatest possible extent. It places significant obligations on public bodies to make buildings and services accessible to people with disabilities, provides for sectoral plans in key service areas and requires public bodies to take positive actions to employ people with disabilities.

    Complaints to the Workplace Relations Commission (WRC)

    When a complaint is received by the Workplace Relations Commission, the complaint form and other relevant information will be forwarded to the Organisation complained of (the Respondent). There are two options available at this point. Both parties may be offered the option of engaging in mediation together in order to achieve a mutually acceptable outcome to the case.  Alternatively, if both parties do not agree to mediation, the claim will be heard by an Adjudicator from the Workplace Relations Commission (WRC), and a decision issued.

    The Complainant may be awarded up to 2 years’ salary if successful in their claim. The Organisation may also be required to take a specific course of action such as re-interviewing the Claimant or reviewing policy and procedure.

    If the Organisation is found guilty of victimisation a further 2 years pay may be awarded to the complainant.

    Burden of Proof in an Equality Investigation

    The burden of proof initially lies with the claimant, who is required to present facts from which discrimination may be inferred. Once there is an inference of discrimination, the burden of proof shifts to the respondent. The Respondent has to demonstrate either that the discrimination did not occur, or that reasonable steps were taken to prevent its occurrence.

    Conclusion

    There is a requirement for Organisations to fully understand their obligations as an Employer under all employment legislation, and not just under the Employment Equality Acts. The Employment Equality Acts clearly details for Organisations how it seeks to eliminate discrimination in relation to employment (including applicants for employment) and to provide a framework of enforcement to achieve this aim. Not having policies and procedures in place to achieve this can have a detrimental effect on the Organisation not just in relation to claims but also reduced productivity and a demoralised workforce, all effecting the profitability of the Organisation.

  • Webinar Series - The evolving Human Resource, Industrial Relations and Employment Law Landscape

    by Hayleigh Ahearne
    Aug 01, 2019

    Adare Human Resource Management are delighted to invite you to our upcoming webinar entitled "Gender Balance - Much more than Gender Pay Gap reporting". This upcoming webinar forms part of our webinar series entitled “The evolving Human Resource, Industrial Relations and Employment Law Landscape” which is a series of 5 webinars in 2019. This series provides participants with updates on employment legislation and best practice in Human Resource Management.

    Date:                     3rd September 2019

    Time:                     12:30pm

    Speaker:                Catherine Smith McKiernan, Head of HR Consulting.

    Webinar Achieve:   To view all of our previous webinars, click here.

     

  • SAVE THE DATE - HR Barometer

    by Hayleigh Ahearne
    Aug 01, 2019


    SAVE THE DATE

    How will you plan for the HR challenges in 2020?

    The HR Barometer Briefing is a must-attend event for HR Practitioners who are seeking to inform and empower their HR planning in 2020.


    HR Barometer Series 3

    BENCHMARKING | ANALYSING | FORECASTING

    Dublin Event Details:

    Date:                     Monday 16th September 2019

    Time:                    8am – 11.30am. Registration and light breakfast from 7.45am

    Location:             The Westbury Hotel, Balfe St, Dublin 2

     

    Shannon Event Details:

    Date:                     Thursday 17th October 2019

    Time:                    8am – 10am. Registration and light breakfast from 7.45am

    Location:             Treacy’s Oakwood Hotel, Airport Road, Shannon, Co. Clare

     

    In-depth information on core HR, Employment Law and IR topics will be covered, such as

    • Average absenteeism rates
    • Levels of Employee turnover
    • Average number of training days and spend per Employee per year
    • Ratios of HR staff to Employees
    • The main causes of Employee disputes amongst Irish businesses
    • Gender Pay Gap Reporting
    • The top challenges to HR in 2020

    Event Registration

    LIMITED PLACES AVAILABLE

    To confirm your place, please contact:

    marketing@adarehrm.ie or call (01) 561 3594

    RSVP: 2nd September 2019 to confirm your attendance

    Adare Human Resource Management, through Empathy Research, have conducted a national survey reaching out to 250+ Irish owned businesses and multi-national Organisations who have 50+ Employees. The survey findings have captured in-depth information on core HR, Employment Law and IR topics and resulted in a detailed report that acts as a benchmark for HR Practitioners across the country. This report will be shared with attendees on the day.

  • Retirement Age in the Workplace - Is it enforceable?

    by Hayleigh Ahearne
    Jul 01, 2019

    Retirement is a topic that is continuing to gain momentum in the employment law sphere. In the past number of years, there has been a surge in case law directly linked to retirement age of Employees, and whether Organisations can stand over compulsorily retiring Employees from work on the attainment of a certain age.

    At the present time, there is no compulsory retirement age for Employees across Ireland, however that is not to say that Organisations cannot enforce retirement age for Employees of the Organisation is it objectively justified and there is a solid business reason. Although, some commentators are predicting that mandatory retirement will be abolished by statute (like it is in UK) soon.

    Nevertheless, as for now a mandatory retirement age can still be set out in an Employee’s Statement of Terms and Conditions of Employment, a retirement age in an Organisation can also be an implied term and/or be a matter of custom and practice in an Organisation.

    The Employment Equality Acts 1998-2015 prohibit any unfavourable treatment by an Employer based on any of the nine grounds, including age. However, Section 34(4) of the Act explicitly provides that fixing a required retirement age does not constitute age discrimination – yet the Employment Equality Acts are inconsistent with the European Council Directive 2000/78 EC which requires any differences in treatment on grounds of age to be objectively justified. Therefore, going forward, Employers need to have strong, justified and objective reasoning for mandatory retirement within their Organisation whilst taking into consideration the Workplace Relations Code of Practice on Longer Working and guidelines established by the Irish Human Rights and Equality Commission Guidelines on Retirement and Fixed-Term Contracts.

    Workplace Relations Code of Practice on Longer Working:

    This Code of Practice aims to guide Employers, Employees and their representatives on the best practice in the run-up to retirement, including responding to requests to work beyond the retirement age in the employment concerned. The Code of Practice requires that compulsory retirement ages must be ‘capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary’. This could include:

    • Intergenerational fairness (allowing younger workers to progress);
    • Motivation and dynamism through the increased prospect of promotion;
    • Health and Safety (generally in more safety critical occupations);
    • Creation of a balanced age structure in the workforce;
    • Personal and professional dignity (avoiding capability issues with older Employees); or
    • Succession planning.

    Other measures suggested by the Code of Practice include;

    • Providing supports to aid the transition to retirement, e.g. pre-retirement courses, flexible or part-time working or counselling.
    • Providing accessible information on retirement procedures at work, both at induction and at regular occasions throughout an Employee’s career.

    Under the Code, good practice regarding impending retirement involves “an Employer notifying an Employee (in writing) of their intention to retire him/her on the contractual retirement date within 6-12 months of that date”. Written notifications should be followed with a face-to-face meeting which addresses a number of areas. The Code of Practice also provides guidance for Employers in terms of requests for longer working and what to consider in advance of granting or denying any such request.

    The IHREC Guidelines on Retirement and Fixed-Term Contracts:

    The Irish Human Rights and Equality Commission (IHREC) is an independent body that accounts to the Oireachtas. It was established under the Irish Human Rights and Equality Commission Act 2014.

    In 2016, the report of the Interdepartmental Working Group on Fuller Lives was published. In its report, the Working Group recommended that the Department of Justice and Equality ask the Commission to ensure that ‘appropriate guidance material [be] made available for employers on the use of fixed-term contracts beyond normal retirement age’.

    These guidelines issued by the Commission were in response to the recommendation made by the Working Group, and at the request of the Minister for Justice and Equality. The Commission has reserved its position with respect to the issuing of a code of practice in relation to the wider issues arising in the area of retirement and age discrimination.

    These guidelines should be read in conjunction with any relevant statutory code of practice as may be enforced from time to time, including the Workplace Relations Commission’s Code of Practice on Longer Working.

    The purpose of these guidelines is to provide guidance to legal professionals, HR professionals, trade unions, employers and others in relation to the interpretation and application of section 6(3)(c) of the Employment Equality Acts which provides – Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees.

    Setting a mandatory Retirement Age:

    It is recommended that Organisations consider a “two-tier approach” when it now comes to retirement within the workplace (i) is it covered in the contract (expressed or implied) and (ii) is it objectively justified?

    (i)                  Is it covered in the contract (expressed or implied):

    • It is important to include an expressed mandatory retirement clause in contracts of employment.
    • The absence of an expressed clause is not necessarily fatal, as it might be an implied term i.e. by way of the pension scheme in place;
    • A mandatory retirement age may also be a well-known within the Organisation and could have easily been found out – does a custom and practice exist?

    (ii)                Is it objectively justified? For example:

    • Intergenerational fairness (allowing younger workers to progress);

    Courts have accepted arguments from Employers that a mandatory retirement age was necessary to encourage Employees to stay with, and progress within an organisation and to motivate Employees by the prospect of being promoted into more senior roles.

    Terminating the employment contracts of employees who have reached retirement age makes it easier for other workers to find work. This justification can be supported by national employment policies such as stimulating the labour market, reducing unemployment and vocational training objectives.

    • Creation of a balanced age structure in the workforce;

    Mandatory retirement ages when used to establish a balanced level of experience in an organisation has been found by courts to be objectively justified as it provides an organisation with a wider mix of skill and experience and allows for the recruitment of people with newer and differing skill sets and experience.

    • The protection of health & safety;

    Courts have found it justifiable to have mandatory retirement ages for employees who work as drivers, pilots and in jobs which are physically demanding. However, not every working environment carries with it the same risks to health and safety. Therefore, an employer would need to be in a position to demonstrate by way of a hazard identification and risk analysis exercise that they have evaluated their particular work environment in setting a mandatory retirement age, rather than simply following a historically established retirement age. This is particularly relevant in places of work where technological innovations might have resulted in work becoming less physically demanding.  

    • Succession planning;

    Employers need to plan for the future in order to ensure that they have the right people in place with the requisite skill sets and experience to support the activity of the Organisation at a future point in time.

    Mandatory retirement ages have been held to promote this aim by facilitating the retirement of older Employees in order to opens up opportunities for younger Employees who may have differing skill sets and experience.

    Recent Case Law:

    A recent case (ADJ-00010222) saw Louth County Council ordered to compensate a former clerical officer €20,000 for the effects of age discrimination, after it unsuccessfully appealed a WRC adjudication decision from 2018.

    A WRC Adjudicator awarded the Complainant €13,000 for discriminatory treatment, when she was retired on her 65th birthday, against her wish. This was the award the Complainant had sought.

    One week later, the Council appealed to the Labour Court, maintaining the retirement of the clerical officer was in line with the particulars of office for her grade when she entered into employment with the Council, and that her retirement was necessary, reasonable and proportionate for the efficient planning of departure and recruitment of staff.

    The Complainant wished to stay in her job to her 66th birthday and emailed the HR department before her 65th birthday approached. She got no response, however, and further follow-up by her went unanswered until two days before her retirement. She had 16 years of service with the Council.

    The Council said her requests for an extension to her retirement “fell through the cracks.” Entrants to her grade since the complainant joined the Council have a different retirement arrangement (according to circular letter 4 of 2017). The Council said this did not apply to the Complainant, who retired six months before the change came into effect.

    The Respondent employer told the Court that to keep the Complainant on in employment would affect its workforce planning and financial management, but it could not explain to the Court why. Having retired the Complainant, the Council saved €10,000 (the difference between the start and the top of the clerical officer incremental scale).

    The Court said the Council did not set out any ground that objectively justified the selection of retirement age based on when employees joined the Council. The employer’s reasons were “not justified by a legitimate aim” and therefore the respondent breached section 34(4) of the Employment Equality Acts. Having considered all aspects of the case, the Court set a new compensation award of €20,000 for the Complainant.

    Another interesting case to note on this topic is Transdev v Chrzanowski (DEC-E2016-070) where a WRC adjudication decision was appealed to the Labour Court and the Respondent Employer was successful in defending the equality claim after retiring the Complainant.

    The Complainant was employed as a tram driver from 6th March 2007 until the termination of his employment on 3rd October 2014, on his 65th birthday. He claimed that by retiring him at age 65 he was subjected to discriminatory treatment by the Respondent. He submitted that there was no retirement age in his written contract of employment and furthermore, there were precedents in the Company for workers to be retained. He referred to the fact that two persons were retained in employment by the Respondent beyond age 65 years. Therefore, he submitted that the Respondent had exercised discretion in their case and in its engagement with the Respondent sought similar treatment for the Complainant. It was submitted that in both cases the workers concerned were “safety critical workers”.

    The Complainant disputes the Respondent’s contention that health and safety concerns prevented the Complainant from being retained. The Complainant had a very good attendance record, he requested a fixed term contract for a maximum of two years and he was willing to be medically assessed on an ongoing basis. The Complainant also questioned the Respondent’s assertion that it was appropriate and necessary to have a retirement age in order to promote good workforce planning and to allow access to employment by means of better distribution of work between generations of workers.

    The Respondent stated that 65 is the established retirement age for all employees in the Company. This practice has been consistently applied and is an implied term in the Complainant’s contract of employment, as reflected in the Respondent’s pension scheme, of which he is a member. It has been expressly contained in all tram drivers’ contract of employment since 2007. The Respondent also outlined for the Court details of available medical evidence which evidence indicates that the age of 65 is an appropriate age to have set as a retirement age for tram drivers.

    It was found that taking account of the medical opinions advanced coupled with the workforce planning requirements and the collectively agreed pension scheme, the Court is satisfied that a compulsory retirement age of 65 for tram drivers was reasonable and appropriate in the circumstances. Furthermore, it accepts that it constituted a legitimate aim of employment and labour market policy in order to prevent possible disputes concerning tram driver’s fitness to work beyond a certain age.

    Conclusion:

    It is best still practice to specify a retirement age in contracts of employment so as to ensure that a compulsory retirement age forms a part of the Employees terms and conditions. It is important for the Organisation to be consistent in enforcing their retirement age to correspond with the contract. If an Organisation deviates from this contractual condition, it may set precedence for the future. 
  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    Jul 01, 2019
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

     

    Complainant fails in claim of discrimination at job interview stage

    Adjudication Reference: ADJ-00018064

    Background:

    The Complainant lodged a complaint form with the WRC claiming that he had been discriminated against by the Respondent, a Telecoms Company.  He claimed by reason of his gender and age that he did not get a job.

    Summary of Complainants Case:

    The Complainant submitted that he had applied for employment as a Customer Care Agent with the Respondent, through a Recruitment Agency. Having attended an Assessment Centre and in his own opinion, having performed well, the Complainant was subsequently informed that he was not a "suitable candidate for the company."

    In regards the allegation that he had been discriminated on the age ground, the Complainant submitted that he believed, having spoken to another younger, successful candidate, that he had been discriminated against because of his age. The Complainant stated that he had no actual evidence to support this view other than the conversation he had had with the younger candidate.

    In regards the allegation that he had been discriminated on the gender ground, the Complainant submitted that call centres are by their nature more oriented for females.  He submitted that more women than men work in call centres and the Respondent knew he was a man when he was turned down for the job.

     

    Summary of Respondent’s Case:

    The Respondent denied that it had discriminated against the Complainant on the grounds of age or gender. The Respondent submitted that the Complainant, in his complaint form, has not identified or particularised any discriminatory conduct by the Respondent.

    In regards the recruitment process, the Respondent submitted that 15 candidates were called to be assessed at an Assessment Centre. The Respondent submitted that a fair and non-discriminatory merit-based marking system was used to assess the candidates.

    From this 15 who were called to attend, only 12 turned up. From these 12 candidates, nine were hired.   Of the nine hired, five were male and four were female.

    During the assessment the Complainant indicated that his skill set was better suited to a social media role, whereas the role applied for was entirely telephone based. The Complainant was invited to apply for a social media post.

    Regarding the allegation of discrimination on the age ground, the Respondent submitted that Applicants were not obliged to provide their age or date of birth as part of the assessment process and that the age profile throughout the Respondent's employees is mixed, particularly in the geographic area in question.

    Findings:

    Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

    In this case it was found that the Complainant has not established primary facts to ground a claim of discrimination.  Therefore, the complaint must fail.

     

    Decision:

    Section 79 of the Employment Equality Acts, 1998 – 2015 requires that a decision made in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

    It is found that the complaint is not well founded.

    Adare Human Resource Management Commentary:

    Although the Respondent in this instance was successful in defending the discrimination claim(s), this shows that having clear and concise recruitment documentation is critical in defending such claims which are taken to the Workplace Relations Commission. The Respondent was in a position to give clear and concise figures on the grounds of gender who attended the Assessment Centre and those who were also offered the roles too. Furthermore, the Respondent was in a position to show evidence that the application process never requested the age and/or date of birth of applicants.

     

    ____________________________________________________________________________________________________________

     

    Claimant awarded 1 day of Force Majeure Leave

    Adjudication Reference: ADJ-00013738

    Background:

    The complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998.

    The Complainant commenced work with the Respondent on 11th November 1997 as a Process Operative. The Complainant has sought and been approved for Force Majeure Leave on 4 occasions between 2004 and 2016.

    This case revolves around a claim for Force Majeure Leave in respect of the 3rd November 2017, which was not approved by the Respondent.

    Summary of Complainants Case:

    The Complainant submits that he rang in to work on the 3rd November 2017 @ approx. 17.30pm.  He explained to the Team Leader on shift, that he wouldn’t be coming to work due to his mother falling ill whilst in Cork city.  She had to be rushed to hospital; she has an existing heart problem. The Complainant states that he informed the Team Leader that that he only finished work that morning and had been woken at 11am with the news of his mother falling ill and had to go to the hospital.

    The Complainant also states that he informed the Team Leader that he would be looking to claim Force Majeure Leave for that night. On the 9th November 2017, the Complainant lodged his claim for Force Majeure Leave, however the Respondent denied the claim because it didn’t have a medical certificate or a letter from the hospital concerned.

     

    Summary of Respondent’s Case:

    The Respondents’ position is one that entails details of policy change on 14th April 2016, due to concerns about potential abuse of Force Majeure Leave. This amendment included that “all requests for Force Majeure Leave, where appropriate, must be accompanied by evidence of the illness certified by the medical practitioner, or a letter from the hospital where the immediate family member attended”, as a note “this section was included as some managers were not comfortable probing staff members in detail about individual family members’ health circumstances”.

    The Respondent states that the Complainant was not co-operative with his Team Leader when asked for further details regarding the claim for Force Majeure Leave. It was also stated that the Complainants claim for Force Majeure Leave was not in accordance with the company policy or the legislation. The Respondent also submitted that under the Act, Force Majeure Leave is a qualified entitlement which only exists provided factual circumstances exist. It is clear under the Act that the onus is on the employee to demonstrate that he/she qualifies for the Leave and that the Complainant refused to do so on this occasion.

    Findings:

    Both parties made written and verbal submissions at the hearing. Section 13 of the Act states:

    1.       An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.

    2.       The persons referred to in subsection (1) are—

    • a person of whom the employee is the parent or adoptive parent,
    • the spouse of the employee or a person with whom the employee is living as husband or wife,
    • a person to whom the employee is in loco parentis,
    • a brother or sister of the employee,
    • a parent or grandparent of the employee, and
    • persons of such other (if any) class or classes as may be prescribed.

    3.       When an employee takes force majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken and contain a statement of the facts entitling the employee to force majeure leave.

    4.       Force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months.

    5.       A day on which an employee is absent from work on force majeure leave in employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (4), to be one day of force majeure leave.

    It is found that the facts of the case are not in dispute.  It is found that the Complainant was on a night shift, he went to bed and at 11am received a call that his mother was taken to the hospital.  The Complainant went to the hospital as he is his mothers’ sole carer.  At approximately 17.30pm the Complainant telephoned the Team Leader on duty to inform him that as he was due to work that evening but that he would not be in because his mother was taken to the hospital. 

    It was found that the Complainant would be applying for Force Majeure Leave for that day.  The claim was made on the 9th November 2017, which is within the time frame as given by the Act.  It was found that the Complainant could have been more open in the Force Majeure Leave form details of the emergency that occurred. 

    It was found that this issue should have been resolved at the local level and that the Team Leader who received the phoned call should have passed the message onto this counterpart on the following shift.

     

    Decision:

    In the interest of better communication, and based on the circumstances of this case the Complainant was awarded 1 day as Force Majeure Leave in accordance with the legislation.

    Adare Human Resource Management Commentary:

    Such Employee issues really should try to be dealt with internally and at local level in order to avoid a potential claim being taken to the Workplace Relations Commission. In this instance, there was a change in the Respondent’s policy in relation to Force Majeure Leave where the change clearly noted that medical evidence is required in order to grant such Leave, which is in accordance with the Act. Such changes should be clearly explained to all Employees at the time of the change, and again if a particular matter is to arise to ensure Employee(s) are fully aware of their obligations under the policy.

     

    ____________________________________________________________________________________________________________

    Shop Worker awarded €500 for excess working hours

    Adjudication Reference: ADJ-00016119

    Background:

    The Complaint is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.  The Complainant claimed he worked in excess of 48 hours during his employment.

    Summary of Complainants Case:

    The Complainant commenced employment approximately 20th March 2014 and his employment ceased on 27th July 2018.  The Complainant claimed that he had worked in excess of the required hours under the legislation.

    He submitted that he used to fill in a log-in sheet detailing his start and end time but that the Head of Finance changed the process and it was no longer possible to detail when employees finished their shift.  He also detailed that the log in sheet would not reflect hours actually worked.

     

    Summary of Respondent’s Case:

    The Respondent disputed the claim and provided details of hours worked. The Respondent accepted that the method for recording hours changed. The Respondent detailed that the Complainant would not complete the sheet with the required hours that he worked.

    Findings:

    The Complainant found it at times difficult to articulate how many hours he actually worked but detailed that he would have, at times, worked more than the 48 hours as prescribed in the Act.  While the Respondent had records of the Complainant’ ‘roster’, the Respondent did not have complete records of the Complainant’s working time.

    Section 15 provides that an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a reference period that does not exceed 4 months.

    Section 25 (4) of the Act provides that where an employer fails to keep records the onus of proof that the provision of the Act has been complied with lies with the employer. In this instant case, it was found the burden of proof has not been discharged by the Respondent.  

     

    Decision:

    Section 41 of the Workplace Relations Act 2015 requires a decision to be made in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Due to the lack of complete evidence from the Respondent, I find that the Complainant’s complaint is found to be well founded. The Respondent is required to pay to the Complainant the sum of €500.00 compensation.

    Adare Human Resource Management Commentary:

    It is imperative that all Employers keep detailed and accurate records of Employee’s working times, break/rest periods, annual leave and public holidays in order to be compliant with the Organisation of Working Time Act, 1997. In such cases, the burden of proof will lie with the Respondent so the onus will be on the Employer to prove otherwise.

  • TUPE – What is it?

    by Hayleigh Ahearne
    Jul 01, 2019

    Transfer of Undertakings regulations apply where a business, or part of a business (including the assignment or forfeiture of a lease) transfers from one owner to another. They are designed to safeguard Employee rights in the event of such a transfer, and establish the responsibilities of both the previous and new owners of a business.

    The legislation that should be considered when looking at transfer of undertakings is the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 which implement an EU Directive aimed at safeguarding the rights of Employees in the event of a transfer of an undertaking, business or part of a business to another Employer as a result of a legal transfer or merger.

     

    Principle Aims:

    The principle aims of the regulations are:

    • Protection of conditions of employment and contracts of employment of individual Employees involved in a transfer.
    • Under limited circumstances, making provisions for the protection of employment in a transfer.
    • Ordinarily prohibiting the dismissal of an Employee by reason of a transfer of undertakings.
    • Requiring the transferor/transferee to inform the representatives of the Employees affected by the transfer of the legal, social and economic implications of the transfer and consult with them regarding any proposed measures.
    • Ensuring that the primary responsibility for an Employee’s employment rights are passed from transferor to transferee.
    • Ensuring that any collective agreement that was in place before the transfer is honoured.
    • Protecting continuity of representative rights.

    Who do the Regulations apply to?

    In general, the Regulations apply to any person;

    • Working under a contract of employment, including apprenticeship;
    • Employed through an employment agency or;
    • Holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act, 1956), an officer or servant of a harbour authority, health board or vocational education committee, and a member of the Garda Siochana or of the Defence Forces.
    • In the case of agency workers, the party who is liable to pay the wages is the Employer for the purposes of these Regulations.

    When do the Regulations Apply?

    The Regulations may apply where almost any kind of business is sold or transferred as a going concern e.g.

    • Where a hotel is purchased;
    • Where the IT function is out-sourced to a third party;
    • Where a business division is transferred from one subsidiary within a group to another;
    • Where part of a business is transferred into a new joint venture company;
    • Where a new contractor takes over the performance of a contract to provide particular services;
    • Where the lease of a business premises is assigned.

    The business or part of the business being transferred must constitute an economic entity i.e. an identifiable grouping of resources or people that performs a particular function, whether operating for gain or not. There must be a legal transfer of that business to another party, and the business must retain its identity after the transfer.

    The Regulations apply equally to transfers of state or semi-state bodies and to transfers by businesses in the private sector.

    Employer’s insolvency:

    The contractual rights of the Employees do not, however, transfer where the original Employer is subject to proceedings whereby, he may be adjudicated bankrupt, or wound up for reasons of insolvency, by order of the High Court.

    However, if the sole or main reason for the institution of bankruptcy or insolvency proceedings is the evasion of an Employer’s legal obligations under the Regulations, then the Regulations apply to a transfer affected by that Employer.

    Protection of Employment:

    All the rights and obligations of an Employer under a contract of employment (including terms inserted by collective agreements) other than pension rights, existing on the date of transfer, are transferred to the new Employer on the transfer of the business or part thereof.

    The new Employer must continue to observe the terms and conditions of the collective agreement until it expires or is replaced.

    An Employee may not be dismissed solely by reason of the transfer. However, dismissals may take place for economic, technical or organisational reasons involving changes in the work-force. If an employment is terminated because a transfer involves a substantial deterioration in the working conditions of the Employee, the Employer concerned is regarded as having been responsible for the termination by way of redundancy.

    In this regard, it should be noted that an Employee who is dismissed within the meaning of the Unfair Dismissals Acts 1973 to 2015 with –

    • Less than one year’s service may refer a case to a Workplace Relations Commission (WRC) under the Industrial Relations Act 2015.
    • More than one year’s service may refer a complaint to a Workplace Relations Commission (WRC) under the Unfair Dismissals Acts 1973 to 2015.

    Planning Consultation with Employees where TUPE applies:

    The transferor and the transferee must inform Employee representatives of their respective Employees of the following at least 30 days before the transfer takes place:

    1. The date or proposed date of transfer
    2. The reasons for the transfer
    3. The legal implications of the transfer for the relevant Employees and a summary of any relevant, economic and social implications of the transfer for them
    4. Any measures envisaged in relation to the Employee.

    Employee Representative may refer to a trade union, staff association or other body the Employer has conducted collective bargaining with in the past. Alternatively it can be a person chosen by Employees, from among their numbers, to represent them.

    If there are no Employees’ representatives in the undertaking through no fault of the Employees, the Employees concerned must be notified in writing, where reasonably practicable, not later than 30 days before the transfer. 

    These obligations apply whether the decision resulting in the transfer is taken by the Employer or another undertaking controlling the Employer. The fact that the information concerned was not provided to the Employer by the controlling undertaking will not release the Employer from those obligations.

    Conclusion:

    Employment issues may factor into a number of the provisions in any transfer agreement, because employment liabilities transfer in a TUPE situation to the new Employer. In order to discuss this matter in more details please contact a member of our team at info@adarehrm.ie

  • Did you miss our latest Webinar?

    by Hayleigh Ahearne
    Jul 01, 2019

    Adare Human Resource Management recently conducted a webinar entitled "Review of key 2019 WRC and Labour Court Claims" which forms part of the webinar series "The Evolving Human Resource, Industrial Relations and Employment Law Landscape".

    If you missed this webinar you are watch it by clicking here.

  • Contractors V Employees – What is the difference?

    by Hayleigh Ahearne
    May 30, 2019

    The terms ‘employed’ and ‘self-employed’ are not defined law. The decision as to which category an individual fall into must be arrived at by looking at what an individual actually does, the way they do it and the terms and conditions under which they are engaged, through a written agreement or verbal agreement or implied. It is not simply a matter of the Employer or the individual calling themselves ‘employed’ or ‘self-employed’.

    It is important that Organisations are cognisant of the differences between Contractors / Self – Employed person and Employees, and how these arrangements may be interpreted by a third party, namely the Workplace Relations Commission (WRC), the Labour Court and Revenue. There are a number of considerations that should be taken into account to ensure that the Contractor / Self – Employed person is not in fact an Employee, does not abide by the actions of the Organisation or that the individual unknowingly strays into that employment relationship. The difference between the contracts of a Self-Employed Contractor and an Employee are that:

    • An Employee is employed under what is referred to as a contract of service.
    • A Self-Employed Contractor works under a contract for services.

    Entitlements of an Employee:

    A Self-Employed Contractor does not enjoy many of the rights bestowed upon Employees, e.g. protection from unfair dismissal, paid annual leave etc. However, a risk often exists that a Self-Employed Contractor may be deemed an Employee due to the relationship they hold with an Organisation. Care should always be taken to ensure that the lines do not become blurred and that an individual’s status is clearly defined. The key rights of an Employee include entitlements to:

    • Minimum wage,
    • Annual Leave,
    • Benefit for Public Holidays,
    • Minimum rest periods,
    • Employment Equality,
    • Fairness in terms of dismissal including redundancy,
    • Right to Maternity, Paternity, Adoptive, Parental, Force Majeure, Carer’s and Jury Service Leave.

    Criteria for an Employee:

    If the lines are unclear in terms of employment status, the person whom the Organisation is deeming to be a Contractor may be entitled to the rights of an Employee outlined above due to the fact that the Organisation has been inadvertently treating them as an Employee. There is a Code of Practice in place in order to assist in determining Employment status. It outlines the criteria for whether an individual is an Employee or a Contractor / Self – Employed individual.

    While all of the following factors may not apply, an individual would normally be an Employee if he or she:

    • Is the person under the control of another person who directs how, when and where work is to be carried out;
    • Supplies labour only;
    • Receives a fixed hourly / weekly / monthly wage;
    • Cannot sub-contract the work;
    • Does not provide equipment or materials for the job other than small tools of the trade;
    • Is not exposed to personal financial risk in carrying out the work;
    • Does not assume responsibility for investment and management in the business;
    • Does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from the engagements;
    • Works set hours or a given number of hours per week or month;
    • Works for one person or for one business;
    • Receives expense payments to cover subsistence and / or travel expenses;
    • Wears a uniform;
    • Is entitled to extra pay or time off for overtime.

    Criteria for Self – Employed / Contractor:

    While all of the following factors may not apply to the job, an individual would usually be Self-Employed if he or she:

    • Owns his or her own business;
    • Is exposed to financial risk, by having to bear the cost of making good faulty or substandard work carried out under the contract;
    • Assumes responsibility for investment and management in the enterprise;
    • Has the opportunity to profit from sound management in the scheduling and performance of engagements and tasks;
    • Has control over what is done, how it is done, when and where it is done and whether he or she does it personally;
    • Is free to hire other people, on his or her terms, to do the work which has been agreed to be undertaken;
    • Can provide the same services to more than one person or business at the same time;
    • Provides the materials for the job;
    • Provides his or her own insurance cover e.g. public liability cover, etc.;
    • Controls the hours of work in fulfilling the job obligations;
    • Provides equipment and machinery necessary for the job, other than the small tools of the trade or equipment which in an overall context would not be an indicator of a person in business on their own account;
    • Has a fixed place of business where materials equipment etc. can be stored;
    • Costs and agrees a price for the job.

    Factors which impact decision of Workplace Relations Commission

    Some of the important factors which may influence the Workplace Relations Commission (WRC) or The Labour Court in making a decision as regards whether an individual is an Employee or not include whether the person pays their own tax or whether their Employer deducts tax, whether the individual provides their own tools and equipment, the degree of control exercised by the Employer or service user, and other issues related to this such as whether the individual wears a company uniform or not. These are all referred to as “tests” but it is important to note that each case will be considered on its own merits.

    An excellent example of these tests can be seen in a recent case (ADJ-00017340) found that a Merchandiser was not deemed to be an Employee after a number of years working for a Promotions Company.

    In this case, the Complainant alleged that “he was employed as a Merchandiser from 1st August 2002 to 9th July 2018. His rate of pay varied based on the type of work performed. He claimed that he was not compensated for annual leave, Public Holidays and he did not receive a premium for Sunday working.”

    At the Hearing, the Respondent stated that this was not an employer / employee relationship and therefore the Workplace Relations Commission does not have jurisdiction to deal with this case.

    The Complainant furthermore alleged that “this was indeed an employer/employee relationship.” He had worked there since 2002. It was an informal relationship; this was not a regular Monday to Friday job; it was dictated by the number of shows/performances available. The Complainant was paid for the work done and the Employer even stated at the Hearing that “his Accountant advised the WRC in writing that his pay included an all-inclusive rate to take account of holiday pay, bank holiday pay and Sunday premium. Statutory deductions were made from his gross pay and the Complainant received P60s since 2002.” This clearly shows that he was an Employee and treated as one. He was given a level of freedom because he was a long-standing Employee and work was often declined because of overlapping of shows. “This was an employer/employee relationship and the Adjudication Officer has jurisdiction to hear this case.”

    However, the Respondent refuted the Complainants submission and alleged “the Company only employs two people directly, all others form part of a pool of freelance causal workers who are available to work both here and abroad. The Complainant and the Respondent entered into a contract for service in or around 2002 and he was engaged as a merchandise vendor on a casual basis as and when shows and he were available. The Complainant did not carry out work on a continuous basis. He was abroad in Australia for a period of time and he acted as a courier for a period of time. This was not an employer-employee relationship, it lacked control, integration and mutuality of obligation. The Complainant was not integral to the business. The business always managed each show themselves or hired an experienced manager.”

    The Hearing was advised that the Respondent “managed in excess of 180 shows and the Complainant worked 56 of them. The Complainant suited himself and was only willing to work when it suited him. He did not make himself available for the biggest venue in the country and the most difficult one. The legal position is that in order for there to be a contract of employment there must be mutuality of obligation: an obligation on the part of the employer to provide work and an obligation on the part of the employee to perform work. They cited Labour Court FTD 0611 and the House of Lords in Carmichael and another v National Power plc [1999] 1 WLR 2042 in support. The case Clark v Oxfordshire Health Authority [1998] IRLR 125 it stated “A contract of employment within the meaning of the statutory definition cannot exist in the absence of mutual obligations subsisting over the entire duration.” The case Minister for Agriculture v Barry was also cited [2009] IR 215. In the case Terry McDonagh v Irish Rail [2015] it placed weight on the right of substitution. In this case the Complainant was a freelance independent contractor. There was no mutuality of obligation. He turned down 53 % of all work offered to him. He was not required to report to the Respondent on a daily basis for the purpose of being allocated work. He was offered work from time to time as it became available and he had the option for whatever reason to decline such work. When he declined work, he was not subjected to any form of disciplinary proceedings. E-mails were shown which confirmed this arrangement. He had the right to find a substitution or replacement without there being any repercussions. One email example he stated, “Grace replacing me tomorrow”. In the absence of mutuality of obligation there cannot be a contract of employment. He did not wear a uniform. He did not have a company email address or mobile phone he used his personal mobile, this was not an employer/employee relationship and the Adjudication Officer does not have jurisdiction to hear this case.”

    In this instance, the Adjudication Officer found that there was considerable conflict of evidence in this case and noted that in the “Kerry Foods” case the Supreme Court decided that each case must be determined in the light of its own particular facts and circumstances.

    “I note that there is an amount of case law on this subject that will require attention in order to arrive at a decision on this matter.

    The Code of Practice for Determining Employment or Self-Employment Status of Individuals issued through the Department of Social & Family Affairs helps to form an understanding of this complex matter. It states “The overriding consideration or test will always be whether the person performing the work does so ‘as a person in business on their own account ‘. Is the person a free agent with an economic independence of the person engaging the service? This economic test is paramount”.

    I note that in the case of McAuliffe v Minister for Social Welfare, Barr J. said it was not possible to devise any hard and fast rule as to what constitutes a contract of service.

    In Sunday Tribune Ltd [1984] I.R. 505 Carroll J. stated: “The Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, and it must do so regardless of how the parties describe themselves”.”

    Taking the above into consideration, in this case, the Adjudication Officer considered it necessary to review the evidence under a series of tests as set out in the varying court cases that have dealt with this type of matter in the past.

    “1) Contract of Service / For Service

    I find that no contract was issued so this test is inconclusive.

    2) Pay

    I note that the Complainant submitted a fee note which did not show actual hours worked but it was a show rate. I note that his hourly rate started at €12 per hour and increased to €15 per hour. He was paid fortnightly. He was issued with payslips and received P60s each year.

    I note that the Respondent’s Accountant wrote to the WRC to explain that “it was agreed at the outset that the fairest way to calculate the pay was to include an all-inclusive rate which compensated staff for their full entitlements … minimum wage increased by an amount to cover holiday pay, bank holiday and Sunday premium.

    This would suggest that this was an employer/employee relationship.

    3) Taxation / VAT

    I note in the Henry Denny & Sons (Ireland) Ltd t/a Kerry Foods v The Minister for Social Welfare Kerry Foods case the demonstrator in question submitted an invoice yet it was deemed that she was an employee.

    I also note that in the Phelan case a VAT invoice was submitted and it was also decided that he was an employee.

    Therefore, I find that the submitting of a show fee note does not conclusively prove that the Complainant was self-employed.

    I note that the Respondent made all the statutory deductions from his gross pay, issued payslips each fortnight and issued P60s each year.

    I find that this would suggest that this was an employer/employee relationship.

    4) Mutuality of Obligation

    In order for a contract of service to exist there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. So, there is an ongoing duty to provide work and one to accept work.

    In High Court case Minister for Agriculture and Food v Barry & Ors the mutuality test of obligation was endorsed by Edwards J. when he stated “The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such a mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service”.

    I note the Labour Court case FDT 0611 referred to above which states, “One of the essential features of a contract of employment is mutuality of obligation, i.e. the obligation on the employing party to offer work and the obligation on the employed part to accept work”.

    In this case, because of the nature of the business the Respondent was not obliged to provide work except when shows arose.

    I find that the Complainant was not obliged to accept this work. I note instances where it was shown that he declined work or offered it to other people.

    I note the evidence that he declined 53% of all work offered.

    I found that no disciplinary sanctions were applied when he declined the work.

    I found instances where he offered this work to others.

    I did not find that there was an obligation on the Complainant’s part to commit to undertake this work when offered so there was no irreducible minimum of mutuality of obligation.

    I find under this critical test that this was not an employer /employee relationship.

    5) Control

    Under this test the following matters needs to be addressed: deciding the thing to be done, way it is to be done, the means to be employed doing it and the time and place.

    I found that the shows/events were operated under a manager at all times.

    I did not find any evidence of control on how the job was done; however, the task was clearly dictated by the event and I found that it called for little discretion regarding how the job was performed.

    I find that this test is inconclusive.

    6) Integration

    I note that he did not wear a uniform, he did not have a Respondent’s email address and mobile phone. I found that he used his own when carrying out this work.

    I find that he did not have to report to the office each day and operated on a casual basis.

    I find that he was not integrated into this business.

    I find that this was not an employer / employee relationship.

    7) In business on own account

    I found that he used his own phone and email address.

    I found that he had carried out work for other organisations during this time.

    I find that he had the opportunity to replace himself with others.

    I find that he was in business on his own account and declined work when it did not suit him.

    I find that this was not an employer/employee relationship.”

    The Adjudication Officer reflected on all the findings from the above tests carried out and determined that this was not an employer / employee relationship and thus the Adjudication Officer had no jurisdiction to hear the case and therefore the Complaint was not upheld.

    Conclusion

    In most cases it will be clear whether an individual is Employed or Self-Employed. However, it may not always be so obvious, which in turn can lead to misconceptions in relation to the employment status of individuals. The criteria above should help in reaching a conclusion. It is important that the job as a whole is looked at, including working conditions and the reality of the relationship, when considering the guidelines.

  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    May 30, 2019

    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.


    The Respondent failed to follow appropriate procedures in dismissing the Complainant

    Adjudication Reference: ADJ-00013887

     

    Summary of Complainant’s Case:

    The Complainant worked two days per week in a tanning salon until she was dismissed for allegedly closing up too early. Her normal finishing time was 9.30pm and she admits to closing slightly early when the salon was not busy, as do the other Employees after 9.00pm. Accordingly, the dismissal was a disproportionate response by the Respondent. She was not afforded proper disciplinary procedures, and therefore she’s claiming payment for the time she did not worked.

     

    Summary of Respondent’s Case:

    The Respondent stated that the Complainant was dismissed following a list of misdemeanours and breach of contract on 7th and 16th March 2018, whereby she finished work early. A client informed the Respondent that she had been unable to access the premises on 7th March at 9.00pm. The Respondent’s Manager viewed the CCTV and saw that the Complainant closed the gate at 8.41 and the door at 8.50 and she then left at 9.00pm. The Respondent invited the Complainant to meet with the manager on 28th March 2018 and offered to show her the CCTV footage which the Complainant declined.

     

    Legislation:

    Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

    “dismissal”, in relation to an employee, means—

    (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

    Section 6 (6) of the Act states;

    (6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

    The burden is therefore on the Employer to demonstrate that the dismissal is fair.

    The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

    • That details of any allegations or complaints are put to the employee concerned
    • That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
    • That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
    • That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

     

    Decision:

    The Respondent failed to follow proper procedures in dismissing the Complainant.  The Complainant was not advised about the purpose of the meeting nor of her right to representation and so she was not in a position to respond properly to the allegations. The Complainant did not receive an impartial hearing as is evidenced by the fact that the Manager had a pre-prepared letter of dismissal ready to give her and had made up her mind on the issue before the meeting.

    The Adjudication Officer upheld the complaint under the Unfair Dismissals Acts1977 - 2015 and as a result of the breach the Respondent is to pay the Complainant €1,600 in compensation.

     

    Adare Human Resource Management Commentary:

    Generally, disciplinary procedures set out the stages and process the Employer should follow in relation to alleged shortcomings of an Employee. These procedures allow for full and impartial hearings which may result in informal warnings being issued, leading into written warnings and ultimately up to dismissal.

    In the absence of formal disciplinary procedures within an Organisation, the Employer should rely on the Code of Practice established by the Workplace Relations Commission.

     

    ____________________________________________________________________________________________________________

     

    The Respondent to pay the Complainant €1,900.00 in failing to pay wages

    Adjudication Reference: ADJ-00018239

    Summary of Complainant’s Case:

    Around June or July of 2018, the Complainant had started in an Optician unit. His gross wage per month is €1,250.00 but he was not paid for the last six weeks of working at this premises. The Complainant was aware that there had been an argument or a disagreement between the two Directors of this Company. However, he was not advised that his employment was in any way effected by this fact and he turned into work every day. At the end of October 2018, the Complainant submits that one of the Directors did not recognise his obligation to discharge the wage due and owing. The Complainant is making a claim that the failure to pay his wages is an unlawful deduction per the Act.

     

    Summary of Respondent’s Case:

    The Respondent had a long-standing contractual relationship with his Co-Director and a 2016 agreement to purchase the business. The Respondent expressed concern with the Company finances and a need to tighten up on the outgoings to his Co-Director. He was not happy that his Co-Director had placed a number of staffs into the premises at what he perceived to be inflated salaries. He agreed with his Co-Director that they should be removed in early October 2018. There was no agreement as to when this would happen and it took a full month for the Complainant to be re-absorbed into one of the Co-Directors businesses. The Respondent did not believe that he should be obliged to pay the last month’s salary though he did recognise the work have been carried out by the Complainant.

     

    Legislation:

    Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.

    Section 5 (1) states that an Employer shall not make a deduction from an Employee unless:

    • The deduction is required by Statute or Instrument
    • The deduction is required by the Contract of Employment
    • The employee has given his prior consent in writing

     

    Decision:

    In the course of the evidence, it is clear that the Company Directors were in the process of falling out in October of 2018, and that the Complainant was ultimately to be the collateral damage.

    The Complainant worked for the Respondent’s Company in September and October. The Complainants full salary for that period of time was withheld and that this amounted to an unlawful deduction as per the Payment of Wages Act as there was no requirement for such a deduction and nor was the Complainant’s consent obtained.

    Thus, the complaint is well founded and the Respondent is to pay to the Complainant the sum of €1,900.00 in compensation.

    Adare Human Resource Management Commentary:

    There are only a few situations, set out in section 5 of the Payment of Wages Act, 1991, where deductions may be made from the Employee’s wages and that may be if the law requires it, if provision is made for the deduction in the contract of employment and where the Employee has given written consent for the deduction.

    Deductions are permitted where they are the result of disciplinary proceedings or to reimburse the Employer for over payment of wages. Where an Employer is going to make a deduction there are notification requirements, in writing, at least one week before the deduction.

     

    ____________________________________________________________________________________________________________

     

    Complainant awarded €15,000 in unfair dismissal

    Adjudication Reference: ADJ-00016163

    Summary of Complainant’s Case:

    The Complainant was employed in a family run business as a Kitchen Manager from, 1st January 2013 to 6th February 2018, earning €770.00 per week. The Complainant is a qualified carpenter and he carried out a lot of work free of charge in the Bar renovation. On 4th February 2018, he attended work with two of his cousins to carryout work in the kitchen. When they had completed the work, he made them a pizza and they consumed two pints of alcohol and played pool. He had an understanding with the Respondent that he could bring others in to help him with the maintenance matters.

    On the night of 4th February 2018, the Employees stayed on the premises until 4.00am or 5.00am and one of them slept there. On 6th February, he was called to the office with a Security Guard present. The Respondent told him that he was dismissing him for drinking on the premises. He was handed his P45 and two weeks wages. The whole dismissal was completely in breach of all fair procedures and natural justice. On 23rd February 2018 the Respondent wrote to the Complainant and made reference to his mental health and his relationship with alcohol. As a result of losing his job and his profit share, he suffered from depression and was unfit to work.

    Summary of Respondent’s Case:

    According to the Respondent on the 4th February 2018, the Complainant engaged in gross misconduct which involved unauthorised access to the business premises outside of normal hours. This placed the Respondent at risk as it was a breach of the insurance terms and conditions and also a breach of statutory requirements in relation to the consumption of alcohol. He allowed the two accompanying adults to remove money from the staff tip jar, therefore stealing from the Employees of this business.

    On 23rd January 2018, an incident arose resulting from an HSE inspection. He was issued with clear instructions in an email dated 23rd January 2018 and failed to adhere to these instructions.

    On 31stOctober 2017, there was the unauthorised removal of stock from the business premises which amounted to theft of stock and this was seen on the CCTV. Following this, a warning was issued and the Respondent was legally justified in dismissing him and the Complainant was aware of the damage that his actions were causing.

    The dismissal meeting took place on 6thFebruary 2018, where he was given an opportunity to respond to the allegations and provide an explanation for the inappropriate misconduct.

     

    Legislation:

    Under the Unfair Dismissals Act, the responsibility rests with the Respondent to discharge the burden of proof and to demonstrate that the dismissal was not unfair.

    Substantive Matter

    The Respondent has failed to provide operational standards and the dismissal was substantively unfair although the Complainant has contributed to his dismissal.

    Procedural Matter

    The Complainant was called to a meeting on the premises on 6th February 2018 and was summarily dismissed. He was unaware of this meeting beforehand and he did not know he would be dismissed. The Respondent had prepared the P45 and two weeks wages in advance and so the decision was pre-determined. The Complainant was not made aware in advance of the allegations against him and was not afforded the right to defend himself nor given the right to representation.

    The Respondent has fundamentally breached all aspect of fair procedure and natural justice; therefore, the dismissal was procedurally unfair.

    Decision:

    The Respondent has referred to a number of acts of misconduct which rendered the working relationship to be breached. This has been fundamentally rejected by the Complainant. There was a total conflict of evidence regarding the practice of drinking on the premises after hours.

    As it was deemed that the dismissal was unfair, the Respondent was to pay the Complainant a compensation of €15,000 within six weeks of the date below.

     

    Adare Human Resource Management Commentary:

    Substantive requirements

    In the case of gross misconduct, the Employer should conduct an investigation to determine whether there are grounds for disciplinary action, up to dismissal. Substantive requirements dictate that the Employer must have prima facie proof of the misconduct. The Employer must provide a proof of the misconduct based on the test of "balance of probabilities".

     

    Procedural requirements

    An investigation or a formal disciplinary hearing should take place as soon as possible. The Employer should then notify the Employee of the allegations using a form and language that the Employee can reasonably understand. This notice should set out the charges and the Employee's rights during the hearing. The charges should be detailed enough for the Employee to determine the charge and to be able to defend himself/herself against it. The Employee is entitled to a representation in providing their side of the argument, and no decision should be pre-determined.

  • Fixed Term / Purpose Contracts of Employment

    by Hayleigh Ahearne
    May 30, 2019

    A fixed term / purpose contract is a contract which is put in place for a temporary period and has a definite duration or purpose.  The end of the contract is determined by an objective condition such as;

    • The arrival of a specific date
    • The completion of a task / project
    • The occurrence of a specific event

    What is the difference between a fixed term and a fixed purpose contract?

    A fixed term contract is for a (fixed) duration / term of work required e.g. an Employee being hired during a busy seasonable time (i.e. Christmas). A fixed purpose contract expires when the specified (fixed) purpose of the role is fulfilled e.g. completion of a project or an Employee returning from long-term sick leave.

    Legislation

    The Protection of Employees (Fixed-Term Work) Act, 2003 is in place to ensure that there is no discrimination in relation to conditions of employment as between a fixed term / purpose worker and a comparable permanent employee. It is also in place to prevent abuse by Employers of the use of successive fixed term contracts. 

    A fixed term / purpose contract must specify the objective condition which brings the contract to a natural end.  As outlined above, this may be a specified date, the completion of a specific task / project, or the occurrence of a specific event.  Once this objective condition is satisfied, the natural expiry of the contract occurs. Objective provisions may include:

    • A fixed term – the contract expires on a particular date;
    • A specified purpose – the contract expires when the specified purpose of the role is fulfilled, e.g. completion of a project;
    • The occurrence of a specific event, e.g. Employee X returning from maternity leave.

    Fixed term / purpose contracts must also include a clause precluding the provisions of the Unfair Dismissals Acts applying to a termination resulting solely from the expiry of the fixed term / purpose contract.  It is important to note that the Unfair Dismissals Acts will still apply to termination for any other reason other than the natural expiry of the contract, e.g. performance, conduct, attendance, redundancy etc.

    Renewals & Extensions

    If an Organisation wishes to renew a fixed term / purpose contract, they must have objective grounds justifying the renewal and failure to offer a contract of indefinite duration (i.e. a permanent contract) at that time.

    The Act provides that where an Employer proposes to renew or extend a fixed term / purpose contract the Employee shall be informed in writing, not later than the date of renewal, of the objective grounds justifying the renewal of the fixed term / purpose contract and the failure to offer a contract of indefinite duration at that time.

    When renewing or extending a fixed term / purpose contract it is a legal requirement that the Employer advises the Employee, in writing prior to the expiry of the current contract, of the fact that the contract is to be renewed.  The legislation requires that the Employer outline the objective reasons for renewing the fixed term / purpose contract and not offering permanent employment at the time.  A failure to provide this will not leave an Employer liable to a fine, however, where an Employee pursues a claim for permanency, the Employer’s case will be severely weakened by their absence.

    Successive Fixed Term Contracts

    Along with the requirement for justifying the renewal of a fixed term / purpose contract, the Act also regulates the length of the successive fixed term contracts in determining the Employee’s right to a contract of indefinite duration.

    Fixed term / purpose contracts may only be used for a specific period of time, otherwise the Employee may become entitled to a contract of indefinite duration.  The entitlement is dependent upon the date of commencement of employment.

    For Employees who commenced on or after 14th July 2003, the Employer is only permitted to employ that person for a period of four years on two or more successive fixed term / purpose contracts.  Following four years of fixed term / purpose employment, the Employee may seek to be made permanent, unless there are objective grounds justifying a further renewal of the contract and not offering a permanent post at that time. 

    However, the above-mentioned rules do not apply where there are objective grounds justifying the renewal of a contract of employment for a fixed term / purpose only.

    Case law indicates that in order for fixed term / purpose contracts to be considered successive, it may not be necessary for them to commence immediately following one another.  The Labour Court has indicated in previous rulings that that short breaks of less than 13 weeks may not, in certain circumstances, be considered adequate to break continuity between successive fixed term / purpose contracts. 

     

  • SAVE THE DATE - Adare Webinar Series - 11th June 2019

    by Hayleigh Ahearne
    May 30, 2019

    SAVE THE DATE

    Adare Human Resource Management are delighted to invite you to our 2019 Webinar series "The Evolving Human Resource, Industrial Relations and Employment Law Landscape". Registration details will be shared with you shortly - ensure to keep the date free!

    Topic: Review of key 2019 WRC and Labour Court Claims

    Presented by: Sarah Fagan, Senior HR and Employment Law Consultant, Adare Human Resource Management

    Date: 11th June 2019

    Time: 12:30pm

     

    Could not attend the previous webinar? You can view it on our website here.

  • Data Protection - 1 year on since the implementation of GDPR

    by Hayleigh Ahearne
    Apr 30, 2019

    This month marks the one-year anniversary (25th May) since the implementation of the General Data Protection Regulations (GDPR) across the EU. The GDPR saw the introduction of 99 Articles which provided for significant reforms to current data protection legislation in Ireland and the introduction of the Data Protection Act, 2018.

    Who does GDPR apply to?

    GDPR applies to all entities established in the EU which process personal data in the EU. As such, GDPR and the Data Protection Act, 2018 will apply to any person or Organisation which processes personal information / data related to an Employee (current or past) or an applicant for employment. However, there are exceptions to same, namely:

    • Household data
    • Deceased persons
    • Criminal offences / safeguarding public security
    • EU common foreign and security policy

    So what exactly is considered personal data? This is defined as “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an indemnification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;” (Article 4, General Data Protection Regulation, 2018)

    Data can be considered as automated and manual data:

    • Automated data is information that is processed by means of equipment operating automatically in response to instructions given for that purpose, or recorded with the intention that it should be processed by means of such equipment
    • Manual data information that is recorded as part of a relevant filing system, or with the intention that it should form part of a relevant filing system

    Examples of personal data are address, credit card number, PPS Number, CCTV recordings, an online identifier, phone number, a Doctor’s opinion but to name a few.

    It is important to note that the processing of special category data is prohibited, such data is considered to be related to:

    • Racial or ethnic origin
    • Political opinions or religious or philosophical benefits
    • Trade union membership
    • Processing of genetic data
    • Biometric data for the purposes of uniquely identifying an individual
    • Data concerning health
    • Sexual life or orientation

    However, there are exemptions as to when special category data can be processed, these are as follows:

    • Explicit consent
    • Processing necessary carrying out the rights or obligations of controller or data subject in employment, social security, protection
    • Protection vital interests of data subject or other natural person
    • Foundation, association or not not-for-profit
    • Manifestly made public
    • Legal claims
    • Substantial public interest
    • Preventive or occupational medicine
    • Public interest in the area of public health
    • Archiving in the public interest, scientific or historical research or statistical purposes.

    Other common terms used with GDPR and important to note are:

    • Data Subject means the living individual (“natural person”) who is the subject of the personal data.
    • Data Controller means a person (natural or legal) who, either alone or with others, controllers the contents and use of the personal data.
    • Joint Controllers occur where two or more controllers jointly determine the purposes and means of processing. Joint Controllers shall in a transparent manner determine their respective responsibilities for compliance with the obligations under GDPR.
    • Data Processor means a person (natural or legal) who processes personal data on behalf of a data controller but does not include an employee of the data controller who processes such data in the course of employment.
    • Supervisory Authority is the Data Protection Commission in Ireland.
    • Data Protection Officer (DPO) is an appointed individual by a Data Controller to carry out functions in line with relevant Data Protection legislation.

    When does a DPO need to be appointed?

    The GDPR [Article 37 (1)] requires the designation of a Data Protection Officer in three specific areas:

    1. Where the process is carried out by a public authority or body,
    2. Where the core activities of the controller or the processor consist of processing operations, which require regular and systematic monitoring of data subjects on a large scale, or
    3. Where the core activities of the controller or processor consist of processing on a large scale of special categories of data or personal data relating to criminal convictions and offences.

    Taking into consideration the above overview, two key aspects of the GDPR which should be noted are the (a) principles and (b) rights of a data subject.

    (a)      The Principles of GDPR [Article 5, General Data Protection Regulation, 2018]:

    1. Obtain and process Personal Data Information lawfully, fairly and transparently – lawfulness, fairness and transparency
    2. Personal data must be collected for specified, explicit and legitimate purposes and not in ways incompatible with these purposes – purpose limitation
    3. Ensure it is adequate, relevant and limited – data minimisation
    4. Keep it accurate and up-to-date – accuracy
    5. Kept it in a form for no longer than necessary – storage limitation
    6. Keep it safe and secure including protection against unauthorised access – integrity and confidentiality
    7. The controller shall be responsible for, and be able to demonstrate compliant with – accountability

    (b)      Rights of Data Subject [Articles 12 – 22, General Data Protection Regulation, 2018]:

    1. Transparent information, communication and modalities
    2. Information and access to personal data
    3. Information to be provided where personal data have not been obtained from the data subject
    4. Right to access by the data subject
    5. Right to rectification
    6. Right to erasure
    7. Right to restriction and processing
    8. Right to data portability
    9. Right to object
    10. Automated individual decision-making, including profiling

    Storage & Retention:

    A Data Controller is obliged to inform a data subject (by way of a privacy notice / data protection policy for example) with the following information:

    • The purposes for processing the data
    • The categories of personal data concerned
    • To whom the data has been or will be disclosed
    • Whether the data has been or will be transferred outside of the EU
    • The period for which the data will be stored, or the criteria to be used to determine retention
    • periods
    • The right to make a complaint to the Data Protection Commissioner
    • The right to request rectification or deletion of the data
    • Whether the individual has been subject to automated decision making

    Section 71 (7) of the Data Protection Act, 2018 outlines that a Controller “shall ensure, in relation to personal data for which it is responsible, that an appropriate time limit is established for (a) the erasure of the data, or (b) the carrying out of periodic reviews of the need for retention of the data.”

    There are statutory retention periods for some data to be held (further guidance on this is in our Helpdesk section of this month’s newsletter), for example data relating to the Organisation of Working Time Act, 1997 should be retained for 3 years and data relating to the Parental Leave Act 1998-2013 should be retained for 8 years. However, all other data should be retained in line with the data protection principles 3 – 5 as outlined above, a Controller should ensure the data is relevant, up-to-date and kept no longer than necessary.

    Breach Notification:

    Even with the heightened attention of GDPR, personal data breaches are still a regular occurrence and happening across all of the globe.

    A “‘personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;” (Article 4, General Data Protection Regulation, 2018)

    In the case of a personal data breach, the Controller shall without undue delay and where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the Supervisory Authority (i.e. the Data Protection Commission in Ireland), unless the personal data breach is unlikely to result in a risk for the rights and freedoms of individuals.

    In the event that the Data Controller does not report the breach to the Supervisory Authority within 72 hours, the notification must be accompanied by a reasoned justification for the delay.

    When the breach is likely to result in a high risk for the rights and freedoms of individuals the Controller shall communicate the personal data breach to the data subject without undue delay.

    Enforcement of the Supervisory Authority:

    The Data Protection Commission monitors the lawfulness of processing personal data, and has the powers to:

    • Facilitation and negotiation
    • Formal notices
    • Audit
    • Entry and inspection
    • Criminal prosecution

    Furthermore, penalties and liabilities can include fines of:

    • Up to €10 million or 2% of global annual turnover (whichever is greater)
    • Up to €20 million or 4% of global annual turnover (whichever is greater)
    • €1 million for public bodies

    Data subjects can also decide to pursue their own legal proceedings against data controllers (unless proven not responsible) for material and non-material damage.

    Subject Access Requests:

    Another change since the implementation of GDPR is that there is no longer a requirement for an Employee to provide their Employer with the administrative fee of €6.35 when lodging a Subject Access Request (SAR). This means that Employees can now make a SAR completely free of charge. While this might not appear to be a significant change, the payment of the fee by cheque or bank draft was an inconvenient administrative burden for Employees which may have dissuaded at least some from making a SAR. However, since 25th May 2018, a SAR can now be simply initiated by an Employee emailing their Employer and requesting a copy of all of their personal data.

    In addition, the timeframe for responding to a data request has been shortened to one month, however this can be extended by two months if there is there is complexity involved in fulfilling the request. Furthermore, if a request is “manifestly unfounded” or “excessive” the employer can refuse the request or charge a fee. Unfortunately, “manifestly unfounded” and “excessive” in this context has not been defined so it remains to be seen how this is to be assessed. It therefore remains to be seen under what circumstances, in practice, an Employer can refuse to comply with a SAR.

    Adopting strict data retention policies and deleting older data where possible can help reduce administrative burdens, as there will be less information for Employers to provide to data subjects. That being said, in most cases, it will not be possible to avoid SARs. Employers should therefore analyse their systems and work practices in order to see how they can respond to SARs in the most efficient manner possible.

    Data Protection Commission Annual Report 2018 Findings:

    The Data Protection Commission (DPC) issued its first report since the implementation of GDPR on the 1st of March 2019. This report includes a review from 25th May – 31st December 2018.

    In total, there was 2,864 complaints (1,928 were GDPR complaints, while 936 were complaints handled under the Data Protection Acts 1988 to 2003) received by the DPC in this timeframe, which is an increase from 1,249 complaints received from 1st to 24th May 2018. The below table is evident that as time goes on individuals are becoming more cognizant of their rights and that they indeed appear to pursue avenues in order to protect same.


                                                    (Data Protection Commission Annual Report, 25th May – 31st December 2018)

    Between 25th May and 31st December 2018, the DPC received 3,687 data-breach notifications under Article 33 of the GDPR, of which 145 cases (4%) were classified as non-breaches as they did not meet the definition of a personal-data breach as set out in Article 4 (12) of the GDPR. However, a total of 3,542 valid data protection breaches were recorded, representing an increase of 27% (747) on the numbers reported in 2017.

    Categories of these breaches were as follows:

    • Device lost or stolen (encrypted) – 42
    • Device lost or stolen (unencrypted) – 30
    • Disclosure (unauthorised) – 3,134
    • Hacking – 116
    • Inappropriate disposal of paper – 30
    • Malware – 32
    • Paper lost or stolen – 196
    • Phishing – 107

     

    Conclusion:

    The Data Protection Commission has been in expansion mode for the past four years and appears to be continuing to grow. Following a major recruitment campaign in 2018, 30 new staff members had joined the DPC by December 2018, with a further 20 new staff members having come on board in Q1 of 2019. The DPC currently have approx. 135 staff members in total and expects to recruit an additional 30 staff members throughout 2019 in order to meet the demands of the tasks assigned under the GDPR. Furthermore, in late 2018, the DPC commenced a significant project to develop a new five-year DPC regulatory strategy, which will include extensive external consultation during 2019, which will be central to the analysis, deliberation and conclusions of the DPC that don’t just deliver cosmetic compliance but also meet consumer expectations.

    With the implementation of GDPR and the subsequent growth of the DPC, it has become evident that there has been a considerable increase in SARs being lodged within the workplace. We expect this to be one of the main areas of dispute with Employees going forward, as they challenge the adequacy or validity of responses received to such requests. In summary, SARs will likely give rise to considerable time and cost burdens for Employers, with limited scope to refuse the requests. Thus, it is imperative that Data Controllers are fully aware of their obligations under GDPR and have a defined strategy and approach within their Organisation with regards to same.

  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    Apr 30, 2019
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

    The sum of €3,000 is awarded to the Complainant as a result of discrimination in the workplace

    Adjudication Reference: ADJ-00014091

    Summary of Complainant’s Case:

    The Complainant submits he was discriminated against by the Respondent on the grounds of disability. He was employed by the Respondent from 26th of February 2018 to 28th of February 2018. He advised a colleague on the 27th February 2018, that he was too tired to work a roster which required him to work through breakfast, lunch and dinner shifts.

    He was called to a meeting with the Restaurant Manager - Ms. L on the 28th of February 2018, where he notified her that he was too tired to work such shifts and long hours were too difficult for him due to a disability. He further explained to Ms. L that he was unable to take his medication properly and was told that those were the shifts and no exceptions could be made.

    Summary of Respondent’s Case:

    The Respondent submits that the reason Complainant resigned on the 28th of February 2018 was because he was unable for the hours as he finds the shifts too long and early mornings as well as late nights were too difficult for him. The role did not suit him; therefore, he left his employment.

    The Respondent claims that at the end of the meeting, the Complainant stated the hours were affecting his medicine routine and as she was about to exit the room, he stated he was HIV positive.

    Legislation:

    The relevant law in this case is Equality Acts, 1998 to 2015. It is submitted by the Complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts this is defined as:

    “(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

    (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

    (c) the malfunction, malformation or disfigurement of a part of a person’s body,

    (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

    (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

    and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.

    Decision:

    Section 16 (3) of the Acts, sets out the obligations and requirements on Employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an Employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an Employee with a disability.

    The Respondent, once aware that the Complainant’s reason for resigning was due to his disability was obliged to make further enquiries into the extent of the disability and to ascertain whether he might be able to do the job if he was afforded reasonable accommodation for his disability.  Accordingly, the Complainant was discriminated against by the Respondent in respect of a failure to provide him with reasonable accommodation for his disability.

    Section 79 of the Employment Equality Acts, 1998 – 2015 requires the decision to be made in accordance with the relevant redress provisions under section 82 of the Act. Therefore, the sum of €3,000 is awarded to the Complainant for the distress suffered by him as a result of the discrimination.

    Adare Human Resource Management Commentary:

    The issue for decision was, whether or not, the Respondent discriminated against the Complainant, on grounds of his disability and were reasonable accommodations made for his disability.

    Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If this succeeds, then, it is for the Respondent to prove the contrary.

    An Employer should not decide that a person with a disability is incapable of doing a particular job without considering whether there are appropriate measures which they could take to support the person to carry out the required duties.

    ____________________________________________________________________________________________________________

     

    Complainant successful in constructive dismissal case as her Employer failed to respond

    Adjudication Reference: ADJ-00017087

    Summary of Complainant’s Case:

    The Complainant submits she began employment on the 26th of October 2005 as a Laundry Assistant. On the 14th of November 2017, the Complainant attended a meeting where her and other members of staff were informed that the laundry function had been outsourced and they will be redeployed to other areas of the Hotel. On the same day, the Complainant wrote to the Respondent requesting that she be made redundant.

    On the 29th of December 2017, the Complainant had a meeting with the HR Manager at which she explained she had a bad back and was unfit for the new role. The Complainant was on medically certified sick leave due to stress until the 23rd of January 2018. On the 18th of January 2018, the Complainant’s solicitor wrote to the Respondent stating that the proposed change to the Complainant’s role constituted a fundamental change to her terms of employment. The Respondent acknowledged the letter on 29th of January, stating their legal advisors would be in contact with them but nothing was heard.

    On the 2nd of July 2018, when still nothing had been heard, the Complainant’s solicitor wrote to the Respondent enclosing a medical certificate confirming she was not medically fit for the role. The letter asked the Respondent to confirm whether they intended to offer the Complainant a suitable alternative role or a redundancy package. No reply to this letter was received. The Complainant therefore considered herself dismissed on 12th of July 2018.

    Summary of Respondent’s Case:

    The Respondent submits that the proposed change in the Complainant’s role was not a major change in physicality. The new role offered was a suitable alternative and it was not reasonable for the Complainant to refuse the offer. He claims it was the Complainant who had absented herself from the briefing meetings held to explain the new role. The Respondent also notes that the first time it was indicated that there were medical reasons she could not do the job was July.

    Legislation:

    The relevant law in this case is Section 8 of the Unfair Dismissals Acts, 1977 – 2015. Under the Act, an unfair dismissal can occur where:

    • An Employer terminates the contract of employment, with or without notice.
    • An Employee terminates their own contract of employment, with or without notice, due to the conduct of their Employer. This is known as constructive dismissal.

     

    Decision:

    Between February and July 2018, the Complainant heard nothing from the Respondent regarding the issue of redundancy or alternative role. The Complainant tried to clarify her position with her Employer several times, but despite several emails and letters, attempts to elicit a response from the Respondent were unsuccessful.

    The Complainant’s medical certificate of 30th of May 2018 makes it clear that the Complainant was not physically capable of carrying out the proposed role. The Respondent was made aware of this certificate by way of a letter dated 2nd of July 2018. The matter was ignored and whether this was deliberate is irrelevant, it is unacceptable that an Employee should be left in such a situation for so long by an Employer.

    In the circumstances, it is found the Complainant was entitled to terminate her contract of employment with the Respondent. This was an unfair dismissal and the Complainant is awarded the sum of €13,888.

    Adare Human Resource Management Commentary:

    In a constructive dismissal claim the burden of proof is with the person making the claim initially. The Complainant has to demonstrate that they were justified in their decision and it was reasonable  for them to resign. The Complainant must satisfy the contract and/or the reasonableness tests in terms of the Employers behaviour or actions.

     

    ____________________________________________________________________________________________________________

    Complainant unfairly dismissed for Gross Misconduct awarded €6,500

    Adjudication Reference: ADJ-00017541

    Summary of Complainant’s Case:

    The Complainant was employed by a Sports Club from 18th of November 2016, until he was handed a letter of dismissal on the 20th of July 2018. It was alleged that this was for Gross Misconduct in relation to an incident which had taken place on the 7th July 2018.

    The Complainant submits that the Club’s own Disciplinary/Grievance Policy was not followed. A disciplinary meeting was alleged to have been held on the 13thof July 2018. The Complainant submits he never received any notification of this meeting.

    In relation to the incident of the 7th of July, he had followed correct procedures in attempting to contact the Financial Controller, but to no avail. As a large function was scheduled for that night, he had used his own initiative and had employed a former staff member (Mr. S) to help.

    The Complainant appealed his Dismissal, but no Appeal hearing was ever heard.

    Summary of Respondent’s Case:

    The Respondent submits that the disciplinary meeting of the 13th of July had proceeded in the Complainant’s absence.

    In the early part of 2018, there were issues focused largely on the question of till / stock take shortcomings which were of great concern to the Club. An issue had arisen over the refusal to allow a female staff member serve drinks at the Bar and in relation to the non-use of a Pizza oven. The giving of casual work to Mr. S was not an accidental omission and Mr. S’s status or non-status with the Executive Committee would have been well known to the Complainant. This had influenced the Executive Committee in their decision and the Respondent submits that the Dismissal decision taken was in the light of his generally uncooperative attitude.

    Legislation:

    The relevant law in this case is the Unfair Dismissals Act,1977, SI 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures and the rules of Natural Justice as set out in numerous legal precedents.

    Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

    Decision:

    The Complainant was out of work for some 9 weeks at a (gross) loss of €6,120 and had an alleged future loss of earnings due to his taking up a new position in a different industry at a lesser rate of pay. At the date of the Hearing in January this was estimated to be in the order of some €4,117.

    Taking all these factors into account it is found that the Complainant is entitled to redress of the sum of €8,000 but reduced by 20% as his actions regarding the casual shift to Mr. S on the night of the 7th of July were not clear. Accordingly, a final sum of €6,500 Gross Pay is awarded as redress.

    Adare Human Resource Management Commentary:

    Following the correct grievance and disciplinary procedures is a requirement. The guiding principles of a good disciplinary (and/or grievance procedure) include the following:

    -          The procedure is fair

    -          The procedure is clear

    -          The penalties which may be imposed are clear and

    -          There is an internal appeals mechanism.

    In this instance, the Dismissal letter of the 20th of July 2018 was in breach of the Complainant’s rights under Natural Justice and Si 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures. Adequate warnings were not given, no proper efforts were made to ensure that the Complainant was fully informed of the meeting on the 13th of July. The non-attendance should have been better followed up prior to any Dismissal decision being taken.

  • The Essentials on Record Keeping

    by Hayleigh Ahearne
    Apr 30, 2019

    Record keeping is a requirement for Employers. A significant amount of information related to Employees is created and gathered during the employment relationship. It is important that Organisation are aware that all information held by them in relation to an Employee must be stored, processed and maintained appropriately. In many cases, retention of records is a legal requirement (for example, working time and pay records). In other cases, it is not a legal requirement, however it may assist the Organisation in defence of any legal claims lodged by Employees, e.g. in the case of an alleged unfair dismissal. 

    Storage of Data:

    It is important to be aware that all information held by an Employer related to an Employee must be stored, processed and maintained in accordance with the General Data Protection Regulations and the Data Protection Act, 2018. Furthermore, Organisations holding public information may be subject to the further requirements of the Freedom of Information Act, 2004.

    Storing data can be done manually, for example in a filing cabinet in the office and/or electronically on a secure system online.

    Retaining Data:

    Information that an Organisation retains may include details of the recruitment process followed to hire an Employee, the written statement of terms and conditions of employment, records of pay including holiday pay and public holiday benefits, medical information, information relating to disciplinary situations, grievances and documentation related to workplace investigations, as well as documentation related to Employee benefits, agreements to deductions from pay and so forth.

    The General Data Protection Regulations have established (seven) principles which Data Controllers must adhere to in relation to the processing of personal data:

    1. Obtain and process Personal Data Information lawfully, fairly and transparently – lawfulness, fairness and transparency
    2. Personal data must be collected for specified, explicit and legitimate purposes and not in ways incompatible with these purposes – purpose limitation
    3. Ensure it is adequate, relevant and limited – data minimisation
    4. Keep it accurate and up-to-date – accuracy
    5. Kept it in a form for no longer than necessary – storage limitation
    6. Keep it safe and secure including protection against unauthorised access – integrity and confidentiality
    7. The controller shall be responsible for, and be able to demonstrate compliant with – accountability

    Legislation regarding record keeping:

    The following legislation should be considered when looking at record keeping and compliance:

    -          Organisation of Working Time Act, 1997-2015 - Retained by the Employer for at least 3 years from the date of their making.

    -          Protection of Young Persons Act, 1996 – Retained by the Employer for at least 3 years since the young person or child is employed.

    -          National Minimum Wage Act, 2000 - Retained by the Employer for at least 3 years from the date of their making.

    -          Protection of Employment Act, 1977 - To be retained for at least 3 years.

    -          Minimum Notice and Terms of Employment Act, 1973 - Retained by the Employer for 1 year (as claims must be brought within 12 months of the date of the offence).

    -          Terms of Employment (Information) Act, 1994 - A copy of the written statement must be held for the duration of the Employee’s employment and for 1 year thereafter.

    -          Payment of Wages Act, 1991 – To be retained for 1 year (as complaints may be presented within 6 months from the date of an unlawful deduction of payment, this may be extended by up to a further 6 months in exceptional circumstances).

    -          Carer’s Leave Act, 2001- Retained by the Employer for 8 years.

    -          Parental Leave Act, 1998 - Parental Leave (and Force Majeure Leave) records must be kept by the Employer for 8 years.

    -          Paternity Leave Act, 2016 - A record of Paternity Leave shall be retained by the Employer for a period of 8 years after the relevant Leave is taken.

    -          Employment Permits Act, 2003 - The records to be retained for 5 years or for the duration of employment.

    -          Safety Health and Welfare at Work Act 2005 - Records containing full details of all accidents or dangerous occurrences must be kept for 10 years and notified to the Health & Safety Authority at the time of the incident.

    Although there are no statutory retention periods under the below pieces of legislation, the timeframes given here are considered “best practice” to consider:

    -          Employment Equality Act, 1998 – To be retained for 1 year (as complaints can be made within 6 months from the date of an alleged discrimination which can be extended to 12 months in exceptional circumstances). Discrimination claims may result in awards in respect of arrears of up to 6 years pay so records should be kept for at least 6 years.

    -          Equal Status Act, 2000 - Complaints may be made within 6 months from the date of the incident which may be extended, so records to be held for 1 year.

    -          Maternity Protection Act, 1994 - Complaint can be made within 6 months from date Employer was notified of dispute which can be extended to 12 months in exceptional circumstances so records should be held for a minimum of 1 year.

    -          Adoptive Leave Act, 1995 - Complaint can be made within 6 months from date Employer was notified of dispute which can be extended to 12 months in exceptional circumstances so records should be held for a minimum of 1 year.

    -          Unfair Dismissals Acts, 1977 - Claims must be made within 6 months from the date of dismissal which can be extended to 12 months in exceptional circumstances so records should be kept for a minimum of 1 year.

    -          Redundancy Payments Act, 1967 – To be retained for a minimum of 1 year.

    -          Protected Disclosures Act, 2014 – To be retained for at least 1 year.

    -          The European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 - To be retained for at least 1 year.

    Conclusion:

    It is essential that all Employers ensure that they are keeping the correct records for all of their Employees. Whilst record keeping can usually be imposed by statute, it can be useful for Organisations from the perspective of monitoring other elements of the employment relationship, for example, records may be maintained in relation to absence levels, training, accidents, incidents, disciplinary investigations and potential warnings.

    The record keeping guidelines outlined above specify the required limits under employment legislation where it is detailed within the statute but also recommended guidelines under best practice where no limit is outlined within the legislation. This does not include timeframes for taking common law or civil proceedings of breach of contract.