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Newsletter Article

  • Parent’s Leave and Benefit Act 2019 – What Employers need to know

    by Hayleigh Ahearne
    Nov 01, 2019

    The Minister for Justice and Equality and the Minister for Employment Affairs and Social Protection published the Parent’s Leave and Benefit Act 2019 in October 2019. This element of legislation on Parent Leave came into effect today 1st November 2019. This legislation will provide for:

    • Up to 2 weeks' paid parent leave for “relevant” parents. The paid parent leave must be taken in a two-week block or in two one-week blocks within the first year of the child's birth or adoption. It is not transferable between parents.
    • Paid parent leave can be taken in addition to existing Maternity Leave, Adoptive Leave, Paternity Leave and Parental Leave rights, as applicable to each "relevant" parent. A relevant parent includes a parent or spouse or civil partner or cohabitant of a parent of the child. Parent's Leave can be taken after the expiry of Maternity Leave, Adoptive Leave or Paternity Leave. Parent's Leave is both continuous and reckonable service when calculating redundancy entitlements.
    • Parent's Benefit is payable to eligible parents during the paid parental leave and it is expected to be in the region of €245 per week subject to the recipient meeting social security contribution conditions. Self-employed workers may also qualify for Parent's Benefit.
    • Employers are not required to top up Parent Benefit, though some Employers may do so in line with their existing policies regarding the top up of Maternity, Adoptive and Paternity pay.

    How will it operate?

    • A parent is eligible to take Parent's Leave in respect of a child born or adopted no earlier than 1st November 2019. The Employee must give six weeks' notice in writing of the proposed Parent's Leave;
    • The Employer may, in limited circumstances, postpone Parent's Leave 4 weeks before the proposed start date. The postponed Parent's Leave must be granted within 12 weeks of the original date;
    • The Employee has a right to return to work after Parent's Leave on the same terms and conditions as before;
    • The Employee is protected from penalisation connected to taking Parent's Leave.
    • The WRC can order the granting of the Parent's Leave and / or compensation of up to 2 weeks' remuneration where there is a breach of the legislation.

    If you require any assistance on this new piece of legislation, then please contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594 to discuss how we can assist you.

  • We are growing and we are recruiting for an exciting new role - Business Development Manager

    by Hayleigh Ahearne
    Nov 01, 2019

    We value ambition, client focus and team spirit in order to develop and maintain ongoing relationships and to support innovative Employment Law, Industrial Relations and best practice supports for clients.  At Adare Human Resource Management we look for individuals with these qualities to add value to our team and to our clients businesses. 

    Our unique internal culture offers exceptional career opportunities for dynamic and passionate Human Resources and Health and Safety Professionals looking to thrive in an engaging and highly collaborative work environment. We can offer you a career that will help you achieve your personal and professional goals. At Adare Human Resource Management, you will have the opportunity to work autonomously and on your own initiative at the cutting edge of your profession/area of specialism.

    As part of our growth strategy for the business, we are currently looking to recruit an ambitious self-driven "Business Development Manager" to join our consulting practice.

    View the Job Description for this role below:

    This role will involve working closely with the Managing Director, Senior HR Consultants and our PR and Web agencies to implement our Business Development, Brand and Marketing Strategy. 

    Please email cover letter and C.V. to Derek McKay, Managing Director, Adare Human Resource Management email: dmckay@adarehrm.ie or telephone:  087 9786427.

    Adare Human Resource Management is an Equal Opportunities Employer

    Closing Date for Applications is 5pm Wednesday 13th November 2019

  • Drugs & Alcohol in the Workplace

    by Hayleigh Ahearne
    Nov 01, 2019

    It is important that Employers are clear as to what their obligations are if an Employee attends for work under the influence of drugs and/or alcohol (an intoxicant).

    An “intoxicant” is defined in the Safety, Health and Welfare at Work Act 2005 as “alcohol and drugs and any combination of drugs or of drugs and alcohol”. This definition encompasses both legal and illegal substances, it includes prescribed drugs and over the counter medications.

    Being under the influence of an intoxicant in the workplace can lead to accidents, poor performance and/or behavioural difficulties, and may be dealt with by Employers as a disciplinary issue. Employees must also ensure that s/he are not under the influence of an intoxicant to the extent that s/he is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person. Employers have a statutory obligation to take all reasonable steps to eliminate or reduce risks of unsafe work environments, to include risks created by Employee substance abuse, having a policy and procedure in place to test Employees for intoxicants may be merited.

    Intoxicants Policy

    It is recommended that each and every Organisation should have a clear and detailed intoxicants policy (often referred to as a drugs and alcohol policy) in place. Such a policy should include details in relation to intoxicants in the workplace, how an instance where there is a positive case of intoxicant will be dealt with, and the possible consequences of testing positive for such an intoxicant, that this may be considered to be gross misconduct, and will have consequences up to and including dismissal. Like all other policies, this policy should be very clearly worded and easy to comprehend.

    Even if an Organisation has a clear and easy to comprehend policy on intoxicants in the workplace, and consequences include dismissal, Employers need to be mindful that if an Employee has a problem with drugs and/or alcohol this can be defined as a disability, and Employers have an obligation (under the Employment Equality Act, 1998) to not discriminate against Employee’s on 9 grounds, with disability being one of these 9 grounds. This is evident in A Government Department v An Employee (ADE/05/19), the Equality Officer referred to the definition of alcoholism as “.. a primary chronic disease with genetic, psychosocial and environmental factors influencing its development and manifestations…. It is characterised by continuous or periodic impaired control over drinking.”

    Testing

    Organisations should carefully consider whether there is a need to carry out such testing, as the third-party forums may not look favourably on random testing of Employees just on a whim. Testing can be viewed upon more favourably in safety critical industries, where being under the influence of such an intoxicant may have huge impact.

    There is no statutory requirement for Employees to undergo testing in relation to being under the influence of intoxicants; similarly, there is no requirement for Employers to test Employees for intoxicants.

    Employers may carry out drug and alcohol testing only where it has been provided for in either the contract of employment, the Employment Policies and Procedures such as the Employee Handbook, or with the Employee’s express consent. Even then, the testing must be proportionate and reasonable. Where the Employee is consenting to the testing, the Organisation must notify the Employee in advance of the testing occurring, the extent of the testing which is to be carried out, and potential implications should there be a positive result received.

    Points to be considered before implementing intoxicant testing within the workplace:

    • How often the tests will need to be conducted?
    • Where will the tests take place?
    • By whom will the tests be carried out by - tests should comply with the European Standard EWDTS and comply with the International Standard for Laboratories (ISO 17025).
    • What tests will be used – hair, blood, urine, breathalyser?
    • Positive tests – what are the implications of same?
    • If an Employee discloses or it is identified through screening that they have a drug or alcohol dependency how will the company support it.  If it is considered a disability under the Employment Equality Acts, consideration will need to be given to reasonable accommodation and this should be treated in the same way as staff with other health problems.
    • The role of the supervisor and manager in implementing this policy.
    • Data protection – how this information will be stored?

    An Organisation should also consider the types of testing which they may wish to carry out within the workplace. There are three main types of testing that Organisations can carry out:

    1. Pre-Employment Testing
    2. Random Testing
    3. With-cause Testing

    Subject to the contractual terms and/or policies outlined above, any Employee suspected of being under the influence of intoxicants or involved in a work-related accident may be subject to with-cause testing. This should be conducted in conjunction with an occupational medical advisor. This is to be applied in circumstances where any Employee appears to be under the influence of an intoxicant and therefore would be in breach of the policy within the Organisation.

    The judgement as to whether with-cause testing needs to be applied can be based on a number of factors including the following; apparent disorientation, unsteadiness, slurring of words, smell of alcohol, admitted or observed taking of illegal or non-prescribed drugs or volumes of alcohol which might cause the legal limit for driving to be exceeded.

    It is advisable that in all cases, prior to an Employee being requested to undergo with-cause testing procedures, that more than one person will have submitted an opinion as to the existence of circumstances or conditions sufficient to warrant testing. For example, a manager on duty at the time (or staff member) in addition to another manger on duty at this time.

    Case Law

    As noted above, testing is viewed more favourably in safety critical industries. In ADJ-00003564 - A Complainant v A Meat Processing Plant involved a worker with 3 years’ service in a meat processing plant who alleged that he was unfairly dismissed after failing a random intoxicant test.

    On 22nd February 2016, the Employee failed a random intoxicant test with three times the allowed limits of cannabinoids in his system, and was subsequently dismissed. The Employee believed the real reason for his dismissal was due to the complaints he made to the Company in relation to occupational injuries he had suffered while working for the Company. The Employer argued that the Complainant had been dismissed following a thorough procedure, and also stated that the nature of the Employee’s work means he must use knives which require training and focus. The Adjudication Officer stated that the Employer conducted a drug test which it is allowed to do under its Company policy. The consequences of an Employee failing the test were well documented, an investigation followed and the Employee had the right to representation at all times and he choose not to internally appeal the dismissal decision. 

    The Employee’s case for unfair dismissal was determined to be not well founded and as a result the dismissal was upheld.

    Another landmark case in the area of intoxicants in the workplace is UDD1710 - Irish Aviation Authority v Christopher Reddin. In this case, the Employee was employed as an Airport Traffic Controller from March 1992 until his dismissal in November 2015.

    In July 2015, the Employee was asked to take a blood test on suspicion of attending work under the influence of alcohol. The test proved positive and the Employee was suspended from duty on full pay pending a full investigation and follow on a disciplinary hearing. As a result of the positive test, he was later summarily dismissed from this employment.

    The Complainant alleged that his dismissal was unfair, unreasonable and disproportionate. He contended that his dismissal was heavily influenced by the fact he had not made a voluntary disclosure about his alcohol dependency problem and that the Employer should have had regard to the fact that since 2003 when the Employee was last treated for alcohol dependency, his alcohol problems had on the surface dissipated and therefore an alternative to dismissal such as referral to treatment would have been more benefit to him.

    The Respondent had in place an agreed policy and protocol in relation to supporting the health and wellbeing of its Employees. Accordingly, the Respondent had on a number of occasions referred the Complainant to Occupational Health in order to establish the nature of his alcohol dependency and to update itself on the state of his health. At no time during these OH appointments did the Employee refer to his alcohol dependency, in fact the Employee was asked about his previous problems with alcohol dependency on those occasions and given an opportunity to have the matter addressed in line with the Company’s policy, however he consistently stated that it was under control.

    As a result, the dismissal was deemed to be fair. The Labour Court also stated that it is “… of the view that generally speaking when dealing with an employee who has an alcohol dependency problem, employers should give such employees an opportunity to seek professional treatment before considering dismissal. However, each case must be judged on its merits. Factors such as risk to safety, the level of responsibility the employee has and contact with the public are taken into account when deciding whether or not the penalty of dismissal was within the range of reasonable responses an employer might take.”

    Conclusion

    It is clear that while in some circumstances it may be reasonable to dismiss an Employee who attends for work under the influence of alcohol and/or drugs, or who fails an intoxicants test – Employers still need to adhere to their workplace policies. In addition, each case should be assessed on its own particular set of facts to decide what sanction is appropriate in the circumstances. Factors such as risk to safety, the level of responsibility, is there a disability and/or if the Employee has contact with the public should be taken into account in deciding whether or not the penalty of dismissal is a reasonable and proportionate response in the situation.

    If you require any assistance on intoxicants in the workplace 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
    Nov 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 dispute with Employer over expiration of Fixed Term Contract

    Adjudication Reference: ADJ-00019224

    Background:

    The Complainant was recruited by the Respondent who operates an education centre in the north midlands. The Complainant claims that he was offered a permanent post while the Respondent contends, he had a fixed term employment contract of 6 months, which came to an end at the expiration of that period.

    Summary of Complainants Case:

    The Complainant lodged two complaints:

    CA-00025095-002 - The complaint for minimum notice was withdrawn at the Adjudication hearing.

    CA-00025095-001 - The Complainant applied for a position of Operations Supervisor of the Centre in November 2017. He was interviewed on the 19th of December 2017.  On the 20th December 2017 a Manager with the Respondent telephoned him and told him that the role of Centre Manager was now vacant and that he was offering him this role instead. The Manager told him that the role would be for 6 months. The Complainant explained that he would not give up his current permanent position for a 6-month post. The Manager told him that the role had to be advertised because of the statutory framework that governed the Respondent but that he wanted to offer him a permanent post. He told him that he could apply once the position was advertised but that all going well the post would be his, permanently. The Complainant accepted the post and started work.

    The Manager telephoned him in April 2018 and explained that the post would now be advertised. The Complainant took this to mean that the proper channels were being followed but that the position was still his.

    The interviews were held on 23 July 2019 and the Manager was not on the interview panel due to ill health. On the 26th of July 2019, two days before the fixed term was due to expire, the Complainant received an email from another Manager informing him that he had not got the job and that he had to leave the employment the following day.  The Complainant was deeply shocked when he got the email and by the disrespectful way that he was treated.

    The Complainant accepted that he did not discuss the permanence or otherwise of his job with anybody after the telephone conversation with his Manager on the 20th December 2017. His written contract was discussed and amended by his Manager in April.  His Manager told him about the post being advertised also in April and he was interviewed for the position in July, but at all times he believed that the Manager would do right by him and honour the verbal commitment that was given to him on December 20th 2017.

    Despite the advertising of the post and the conversations around this, the Complainant always understood that the job would be his on a permanent basis after 6 months as otherwise he would not have accepted it in December 2017.  People don’t leave permanent jobs for temporary jobs when they have a family to support.

    Summary of Respondent’s Case:

    In regards CA-00025095-001 - The Complainant was offered a fixed term 6-month contract in December 2017. The Respondent could not say exactly what was said to the Complainant during the telephone conversation between the Manager and the Complainant on the 20th of December 2017 because the Manager was unavailable to attend the Adjudication due to declining ill health, however they could confirm that he received a letter dated 2nd January from his alleged colluding Manager setting out the offer of the post.  It explicitly stated that the post was for a fixed term of 6 months after which there would be an open competition.  It was these terms that the Complainant accepted by email later that day.

    It is untrue therefore for the Complainant to say that the job advertising process was an artifice and that he was promised the job all along. That is not the manner in which staff are recruited to the Respondent and no one else in the management were party to this alleged collusion. It is also significant that the recruitment process was the decision of three managers, not just the one with whom the Complainant allegedly had the agreement.

    Furthermore, internal emails show that the Manager emailed the Complainant 3 months prior to the expiration of the fixed term and invited him to apply for the post which would soon be advertised. This is not the actions of someone who had already assured the person that the job was theirs already.

    In addition, the Complainant received his fixed term contract in April 2018 which again expressly states that the contract is a fixed term contract due to expire on 28 July 2018 and the Complainant signed this contract. In so doing the Complainant expressly signed up to these terms agreed cannot contend anything other than that he had accepted that his employment was for 6 months only.

    The Complainant admitted in evidence that when he received this contract in April 2018, he discussed the contract with his Manager. This was because a date in the contract was wrong and he asked his Manager to rectify the date. This would have been a natural time to discuss the permanence or otherwise of his position and yet the Complainant’s evidence was that following their telephone conversation of 20 December 2017 he never discussed the matter again with his Manager. This is not the actions of someone who believes that the job was assuredly his.

    The Respondent submits that the fixed term contract signed by the Complainant binds him to the terms of that contract.

    Findings and Conclusions:

    The Adjudicator did not disbelieve the Complainant when he says that on December 20th 2017, he believed that it was likely that his temporary role would be made permanent after six months. At that time the Respondent was keen to get him to take the role, given that they unexpectedly were faced with a vacancy in the role of Centre Manager.  The Adjudicator believed that during the phone call the manager encouraged the Complainant to take the job and that all going well he could apply for and get the post on a permanent basis. However, the Adjudicator did not accept that this belief was based on an unequivocal assurance by the manager that the 6-month fixed term was not fixed at all and could be ignored.

    Once he received the email on 2 January which clearly expressed the fixed term to be 6 months, the Complainant should have sought further clarity from his Manager before taking up the post. Furthermore, under the law of contract, a person is expected to understand and is assumed to agree with a document that sign their name to and the contract that the Complainant signed in April 2018 stated it clearly to be a fixed term contract of 6 months.

    Although the Adjudicator cannot exclude the possibility that what the Complainant says is true, the Adjudicator is of the view that by agreeing to the terms expressed in the letter dated 2 January 2017 and the signed contract dated 18 April 2018 are fatal to this complaint

    Decision:

    In regards CA-00025095-002 - This complaint is withdrawn.

    In regards CA-00025095-001 - On the balance of probabilities, it was found that the Complainant’s contract of employment was terminated due to the expiration of a fixed term contract that he signed on 19 April 2018 and that he was not dismissed. The complaint is not well founded.

    Adare Human Resource Management Commentary:

    Fixed Term Contracts of Employment can have a number of benefits to Employers. They can be very useful to cover a period of maternity leave, long-term sick leave, or even an interim role. When a candidate is given a Fixed Term Contract for an interim position, it should be noted that they are not necessarily automatically entitled to the role and they should undergo the recruitment and selection process just like any other candidate.

    ____________________________________________________________________________________________________________


    Complainant fails to be awarded some entitlements upon cessation of employment

    Adjudication Reference: ADJ-00020258

    Background:

    The Complainant is seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991. The Complainant was employed by the Respondent as a Sales Director from 1st May 2018 until 31st January 2019.

    The Complaint submitted to the Workplace Relations Commission is referred under section 6 of the Payment of Wages Act, 1991 and was received by the WRC on 3rd March 2019.

    Summary of Complainants Case:

    The Complainant states that he was not paid all his entitlements on the cessation of his employment.  These unpaid entitlements were listed as a Pension Contribution of €3,750 and a Holiday Entitlement of €1707.  The Complainant also mentioned three days in lieu of having to travel west to meetings.

    Summary of Respondent’s Case:

    The Respondent wrote to the Workplace Relations Commission on 19th March 2019 providing a statement of events in relation to this complaint. A copy of this statement was sent to the Complainant on 1st April 2019.  The Respondent contends that all monies owing to the Complainant were fully discharged and also states that the Respondent had been very generous with the Complainant at the cessation of employment.

    Findings and Conclusions:

    In coming to any decision in this complaint the Adjudicator must consider the Complaint under the Payment of Wages Act 1991.

    In regards the Pension payment:

    The Payment of Wages Act 1991 (section 1 Interpretation) describes wages as follows:

    “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including –

    a)      Any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

    b)      Any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

    Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

    1. Any payment in respect of expenses incurred by the employee in carrying out his employment,
    2. Any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office
    3. Any payment referable to the employee’s redundancy
    4. Any payment to the employee otherwise than in his capacity as an employee
    5. Any payment in kind or benefit in kind.

     

    From this definition a pension contribution paid by an employer cannot be considered as wages. This part of the complaint therefore is not well founded and fails.

    In regards the Holiday entitlement:

    The Complainant contends that he was due payment of €1707 when his employment ended. By email dated 29th of January and sent to the Complainant by Mr BA it was stated that the Complainant had taken the following days as annual leave:

    • Monday 9th July 2018 to Friday 13th July 2018    -   total 5 days.
    • Monday 16th July 2018 to Friday 20th July 2018   - total 5 days.
    • Monday 23rd July 2018 to Friday 27th July 2018   - total 5 days.
    • Monday 24th December 2018                                 -   total 1 day.
    • Thursday 27th December 2018                               -    total 1 day.
    • Friday 28th December 2018                                    -     total 1 day.
    • Monday 31st December 2018                                 -     total 1 day.
    • Total days taken                                                        -    19 days

     

    There appears to be some dispute over the four days taken at the Christmas period. The law in relation to annual leave is quite exact and states as follows:

    Section 20 (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject –

    a)      To the employer taking into account -

    -        the need for the employee to reconcile work and family responsibilities,

    -        the opportunities for rest and recreation available to the employee

    b)      To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

    c)       To the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.

    In this instant case there appears to have been no consultation between the employer and employee in relation to the four days around the Christmas period i.e. 24th December 2018, 27th December 2018, 28th December 2018 and Monday 31st December 2018.

    Adopting a strict application of the law the Adjudicator decided that these four days cannot be considered annual leave days.

    The Complainant was employed for a period of exactly nine months, during this period he would have accrued a holiday entitlement of 15 days pursuant to section 19 of the Act. Having discounted the four days at the Christmas period the Complainant took 15 days, this is what he had earned during his period of employment per the Organisation of Working Time Act 1997.

    Having considered this element of the complaint it was found that it is not well founded and fails.

    In relation to the three lieu days mentioned in the complaint the Adjudicator did not have enough information regarding the company policies to make a decision. It could be argued that the three days in lieu of the travelling days were taken at the Christmas period.

    Decision:

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

    The Complaint as presented under the Payment of Wages Act 1991 is not well founded and therefore fails.

    Adare Human Resource Management Commentary:

    This case is a prime example for Employers that although there could be a risk (in this instance the potential pension payments due), it is imperative that a Complainant takes their claim under the correct piece of legislation. Taking that into consideration, if an Employer does receive a complaint from the WRC, they should ensure that the claims fall under the correct piece of legislation and if not, this should be highlighted to the Adjudication Officer and asked to be thrown out as it does not fall within the remit of the hearing.

    ____________________________________________________________________________________________________________


    Complainant awarded payment for wages even though business ran out of funds

    Adjudication Reference: ADJ-00020677

    Background:

    The issues in dispute concern the closure of a Shop in a Leinster Town and related matters concerning the payment/non-payment of staff.

    Summary of Complainants Case:

    In October 2018 the owner of the Business went to India on family business. The Complainant and a colleague were left in change of the Shop and associated workshop. Communications with the owner became difficult and from January 2019 no wages or salary was paid. The Complainant eventually left the employment on the 26th March 2019. He was seeking a Constructive Dismissal type payment for wages lost from January to March.

    Summary of Respondent’s Case:

    The Respondent did not appear at the start of the hearing. However, a detailed written submission was received. In this submission the severe personal difficulties experienced by the Respondent (An Irish/Indian citizen) and his immediate family while in India were outlined. While he was distracted by these matters in India, he had trusted the Complainant to run the business in a proper fashion. However, this was not the case and the business was effectively destroyed.  The stock sold for cash and customers were invoiced under the name of the Complainant rather than the Company. The Business effectively closed up at the start of April 2019 with no funds left.  The allegations made by the Complainant are completely false and in particular the loss of any wages. The Complainant effectively sold the Company stock and pocketed the cash. This is now a matter for the Gardai.

    Findings and Conclusions:

    The differences in versions of events in this case were huge. It was clear that by the 1st April 2019 the business had run out of funds. It was also clear from the oral questioning of the Complainant by the Adjudication officer that the staff had effectively “cannibalised” some or all of the stock to ensure some form of renumeration was available. The true value of the stock sold was very unclear. The Respondent valued it at approximately €50,000.

    All things considered this was an Industrial Relations Act ,1969 claim and not a Payment of Wages Act, 1991 claim.

    A judgment call, having considered all the available evidence, was required from the Adjudicator.

    As the value of the stock sold could not be ascertained, the Company is now out of business and the Respondent evidence was largely unsupported I decided to Recommend a Payment of €1,000 as a full and final settlement to the Complainant.

    Decision:

    A Payment of €1,000 in favour of the Complainant as a full and final settlement is recommended.

    Adare Human Resource Management Commentary:

    When a business closes down it should be noted that there is still a legal obligation on Employers to ensure staff are paid appropriately for the work in which they carry out. It is not sufficient to simply advise that there are “no funds left”.

  • Hiring under 18s for the Festive Period

    by Hayleigh Ahearne
    Nov 01, 2019

    Many Organisations recruit additional staff for the run up to the festive period. These additional staff members can often include a person under the age of 18, and thus there are obligations Employers should be cognizant under the Protection of Young Persons (Employment) Act 1996.

    The Protection of Young Persons (Employment) Act 1996 is designed to protect the health of young workers and ensure that work carried out during school years does not put young people's education at risk. The Act sets minimum age limits for employment, rest intervals and maximum working hours and prohibits the employment of anyone under 18 on late-night work. The Act also requires employers to keep specified records for workers under 18.

    In the Act, a” young person” is defined as those aged 16 and 17 and a “child” is defined as being aged under 16.

    Where a young person aged 16 or 17 is employed, s/he may only be required to work a maximum of 8 hours per day, subject to a maximum of 40 hours per week.

    S/he must not be required to work before 6 am or after 10 pm. If the young person has no school the next morning s/he can work until 11pm. However following this s/he cannot until after 7am the following morning.

    Minimum rest of at least 30 minutes must be provided in respect of each period of 4.5 hours consecutive work completed in the working day.  Young persons are entitled to a minimum daily rest period of 12 hours from the beginning of one working day to the commencement of the next, and a minimum of two days of consecutive rest in each 7 day period.

    Before hiring any young person (or “child”) it is required that parental consent is provided in writing from either a parent or guardian of the child.

    If you have any further queries regarding the employment of a young person, please do not hesitate to contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594 to discuss how we can assist you.

  • Extreme and Severe Weather Events – What Employers Should Plan For

    by Hayleigh Ahearne
    Oct 01, 2019

    As many of you may have heard, Hurricane Lorenzo is currently churning through the Atlantic Ocean. According to the National Hurricane Centre, Lorenzo has strengthened to a category 5 hurricane, with maximum sustained winds of 250km/h. It is the strongest hurricane on record this far north and east in the Atlantic basin.

    The Head of Forecasting at Met Éireann has said it is impossible to predict how Hurricane Lorenzo will affect Ireland, but the storm's trajectory should become clearer over the next 48 hours.

    Nonetheless, as we have witnessed over the last few years with storm Ophelia and the “beast from the east” extreme and severe weather events can impact on an Employer’s ability to operate his/her business. It can impact on an Organisations ability to be able to provide work and also on an Employee’s ability to attend for work.

    An Organisation’s policy on absence due to bad or inclement weather should address the situation where Employees are unable to attend work, or if the Organisation does not have work available, due to weather related circumstances.

    Safety:

    Employers are encouraged firstly to look at any adverse weather situations arising to understand if there are any health and safety risks associated with requiring Employees to travel to and from or attend at work during extreme or severe weather conditions – a common sense approach should be taken by Employers.

    Payment:

    In the event that the Organisations premises is unable to open due to inclement weather / natural disaster or some other reason outside of the Organisations control, the Organisation should make every effort to notify Employees as soon as possible and Employees will not be entitled to be paid.  Where the Organisation decides that it is possible to open the premises but determines that it is impractical, then in such circumstances Employees will be entitled to be paid.

    From a strict legal standpoint, there is no obligation to pay Employees when they cannot attend for work. Payment in such circumstances is discretionary.

    Any more beneficial arrangement is a matter for agreement between the Employer and the Employee. Employers are encouraged to take a long-term view of the working relationship, recognising that demonstrating concern for the welfare of Employees and treating Employees fairly translates into a better working environment to the benefit of both the staff and the Employer. The custom and practice in the Organisation in previous similar instances may be of relevance.

    However, employment contracts may contain provisions enabling Employers to put Employees on short time working or lay-off when an event outside the Employer’s control impacts on work. For those Employers, it may be permissible to send Employees home without having to compensate for the reduced hours of work although caution should be exercised when relying on these clauses for short closures. For Employers without such a clause in the employment contract, a decision to send Employees home could amount to a breach of contractual terms. Full pay for the lost hours would therefore be due under the Payment of Wages Act 1991.

    Annual leave days to cover the unforeseen absence from work:

    Employers may have Employees take annual leave for the day or days covered by the event; in which case they would be paid. Normally there must be a months’ notice of the Employer’s intention to have Employees take annual leave; however, the Employee may agree to a shorter notice period.

    Should an Employee be on annual leave when a weather-related event occurs and is unable to return to work due to travel restrictions, Employers may use a pragmatic approach and allow the Employee to extend their annual leave or authorise unpaid leave during this time.

    What happens where a roster needs to be changed at short notice?

    Normally, Employees are entitled to notice of at least 24 hours of a roster change. However, this does not apply where the change arises from unforeseen circumstances justifying a change in the notification period.

    Working from home:

    Where an Employee has the capacity to carry out their work from home for the duration of the disruption, this could be considered and if appropriate can be agreed with his or her line manager. This will not be feasible for a number of roles where the Employee’s presence is required. This may also put pressure on the Organisation’s IT infrastructure as demand increases.

    Arriving late and / or leaving early:

    Where Employees arrive late or leave early, whilst some flexibility may be provided, Employers need to consider paid leave where the Employees will work up the time missed at a later date, preferably within one month of the occurrence. This is usually more feasible in Organisations that already operate a flexi-time system. Alternatively, the option of unpaid leave or annual leave (broken into hours) may be considered.

    Unexcused absence:

    Some Employees may fail to attend for work when suitable public transport is in operation. Unless authorisation has been received, this is not a justifiable reason for absence and should be dealt with under the Organisation’s disciplinary procedure, as with any unexcused absence.

    Schools or crèches closing:

    In the case of schools or crèches closing, an emergency leave situation may result for some staff. This does not fall under the legal definition of force majeure leave. Where the Employee is unable to make alternative arrangements, annual leave or unpaid leave could be considered on a case-by-case basis.

    Conclusion:

    Each situation will be different and common sense will need to be used where there are clear health and safety risks to certain Employees.

    For further information or advice, please contact your designated experienced HR Client Manager in Adare Human Resource Management – 01 561 3594 / 061 363 805 info@adarehrm.ie

  • Health and Safety in the Workplace - Key Considerations

    by Hayleigh Ahearne
    Oct 01, 2019

    The Safety, Health and Welfare at Work Act 2005 places responsibility for health and safety on all Stakeholders in an Organisation. The Act sets out the main provisions for safeguarding and improving the safety, health and welfare of people at work:

    • Requirements for the control of safety and health at work.
    • The management, organisation and the systems of work required to accomplish those goals.
    • The responsibilities and roles of Employers, the Self-Employed, Employees and other stakeholders.
    • The enforcement procedures needed to ensure that all goals are met.

    Employer Responsibilities:

    According to the Safety, Health and Welfare at Work Act 2005 and associated regulations there are a number of responsibilities placed on Employers to ensure occupational health and safety on all stakeholders.

    Every Employer shall ensure in so far as is reasonably practicable, the safety, health and welfare at work of Employees.

    The Employer’s duty extends in particular, to the following:

    • Managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of Employees;
    • Managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of Employees at risk;
    • With regards to the place of work concerned, ensuring, so far as is reasonably practicable:
      1. the design, provision and maintenance of the place of work in a condition that is safe and without risk to health,
      2. the design, provision and maintenance of safe means of access to and egress from the place of work, and
      3. the design, provision and maintenance of plant and machinery or any other articles that are safe and without risk to health;
    • Ensuring, so far as it is reasonably practicable, the safety and the prevention of risk to health at work of Employees relating to the use of any article or substance or the exposure to noise, vibration or ionising or other radiations or any other physical agent;
    • Providing systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;
    • Providing and maintaining facilities and arrangements for the welfare of Employees at work;
    • Providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of Employees;
    • Determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of Employees when identifying hazards and carrying out a risk assessment under section 19 of the Act or when preparing a safety statement under section 20 of the Act and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3 of the Act;
    • Having regard to the general principles of prevention in Schedule 3 of the Act, where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of Employees;
    • Preparing and revising, as appropriate, adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger;
    • Reporting accidents and dangerous occurrences, as may be prescribed, to the Authority or to a person prescribed under Section 33 of the Act, as appropriate, and;
    • Obtaining, where necessary, the services of a competent person (whether under a contract of employment or otherwise) for the purpose of ensuring, so far as is reasonably practicable, the safety, health and welfare at work of Employees.

    Employee Responsibilities:

    Employees ought to be attentive when it comes to health and safety. Accidents can occur in any workplace or Organisation. It is always best to prevent an accident happening in the first instance rather than trying to deal with the consequences after the fact.

    All Employees should continuously be on the lookout for anything in the workplace which could potentially cause an accident. Employees should be aware of their colleague’s behaviour and the possible consequences, therefore if another Employee is behaving recklessly this should be brought to the attention of the Employer. 

    All Employees must:

    • Observe relevant laws and protect their own safety and health, as well as the safety and health of anyone who may be impacted by any acts or omissions at work;
    • Ensure that they are not under the influence of any intoxicant to the point that they may be a hazard to themselves or others while at work;
    • Cooperate with their Employer in relation to safety, health and welfare at work;
    • Not engage in any inappropriate conduct that could endanger their own safety or health or that of others;
    • Participate in safety and health training offered by their Employer;
    • Make correct use of all equipment, tools, materials, etc. and of all Personal Protective Equipment provided for use while at work, and;
    • Report any defects in the place of work, equipment, etc. which may endanger safety and health in the workplace.

    Key Considerations for Employers:

    While the Act outlines clearly the obligations of an Employee in the workplace it is essential for the Employer to ensure their policies and procedures reflect these terms and any particular Health and Safety policies which may be relevant to their particular business or industry.

    It is recommended that Organisations do an annual “checklist” on the health and safety within their workplace. For example:

    • Do you have a Health and Safety Policy in place? Is the in-house structure for its implementation sufficient, for example are the responsibilities of named persons clearly defined?
    • Does your Organisation have an up-to-date Safety Statement in place? Is the Safety Statement available to all Employees?
    • Does the Organisations Risk Assessments take into account all activities, equipment, persons and premises?

    -          Are they up-to-date?

    -          Has any new equipment been purchased since the last Risk Assessment Audit?

    • Have workstation assessments been carried out for all DSE (Display Screen Equipment) users?
    • Have all Employees received Manual Handling Training?

    -          Remember that all Employees should receive manual handling training according to legislation.

    • How many formally trained First Aiders are within the Organisation?

    -          There is a legal requirement to have qualified Occupational First Aiders on site while Employees are at work.

    • Does your Organisation hold appropriately stocked First Aid Boxes?

    -          Are Employees aware of their locations?

    • Do your Employees use any hazardous substances and or chemicals?
    • Is PPE provided as required to all staff?
    • Is the Emergency Procedure clearly displayed throughout the premises? Are there sufficient emergency exits in place which are kept clear?

    -          Are fire assembly points clearly identified and marked?

    -          Are all Employees aware of the location of fire assembly points?

    • Is sufficient firefighting equipment available?
    • Is there emergency lighting in place?
    • Are regular Fire Drills carried out and recorded and are they efficient?
    • Is there a formal procedure in place for the investigation and reporting of accidents/incidents and near misses?

    If you require any assistance with your Organisations health and safety requirements 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
    Oct 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.

    Adjudication Reference: ADJ-00017815

    Employee awarded four weeks’ pay for excessive hours worked

    Background:

    The Complaint was employed as a Driver for the Respondent.  The Complainant submits that the Respondent is in breach of his entitlements under Section 15 (weekly working hours) and Section 12 (rests and intervals at work) of the Organisation of Working Time Act.

    Summary of Complainants Case:

    The Complainant submitted that he was required to work an average of 55 hours per week which is contrary to section 15 of the Act. He advised that he was also required to respond to texts after hours in preparation for the following day’s work and that he would receive texts from 5am up to 10pm.

    The Complainant submitted that he was not provided with his intervals at work rest breaks during the day on site which is contrary to section 12 of the Act. The Complainant submitted that he was required to drive on a daily basis from the depot to a client’s site where he changed driving from a heavy goods vehicle to a shunting vehicle. He stated that due to the work pattern each day he was not provided with the opportunity to enjoy rest and intervals at work breaks. He advised there was insufficient time to take these breaks as his shunting duties required him to be available throughout the day to facilitate shunting of goods around the site.

    The Complainant maintained that he worked from 6am until 5pm. He explained that during the daytime when he was taking his breaks his phone would ring and if he did not respond to these calls to continue shunting it would cause a build-up of goods and therefore, he had to be readily available throughout each day. The Complainant advised there was no second driver until 1pm each day and therefore he was a lone driver on site from 6am until 1pm. He advised he could not take a break for a meal as he would be called back to shunt the trailers.

    The Complainant further advised it would take up to 30 minutes to load a trailer and 15 minutes to shunt the loaded trailer. He advised that this had been his work routine from September 2015 and he would have regularly verbally raised concerns to his line manager that he could not take his breaks. The Complainant submitted copies of his tachographs for work in January 2018 which he advised would indicate he would have been driving from before 6am and would not have completed driving until 5pm each day.

    Summary of Respondent’s Case:

    In response to the complaint that the Complainant was required to work up to 55 hours per week, the Respondent submitted that whilst texts would have been sent to the Complainant outside of his working hours there was no obligation for him to respond to these.

    The working hours of the Complainant where he started at 6am and finished at 5pm was not disputed by the Respondent. However, the Respondent advised that the Complainant would finish work before 5pm and therefore contested that his working hours exceeded the permitted hours under the Act. 

    The Respondent did not provide a record of the weekly working hours for the Complainant.

    In response to the complaint that the Complainant did not get to take his breaks and intervals at work, the Respondent advised that there was sufficient time during the workday for the Complainant to take his breaks. The Respondent advised that the Complainant was required to note his break times on the tachograph and that he failed to properly record these breaks. It further advised that whilst the Complainant was the sole driver on site from 6am to 1pm, there would have been sufficient time for him to take his breaks, and if he had received a call to shunt a trailer when on a break it would have been acceptable for him to explain that he was on a break and that the Complainant would never have been denied the opportunity to take his breaks.  The Respondent maintained that the Complainant was never put under pressure to forgo his breaks.

    The Respondent called another driver from the site as a witness.  This driver outlined in his evidence that he was never put under pressure to forgo his breaks and he would get 15-minute breaks during his roster, and also would have had sufficient time to take a break in the canteen or the drivers hut. The witness advised he could take a break at any appropriate time and it was the discretion of the drivers to take their breaks. In his evidence the witness advised he was never required to “run and jump” if he was called to shunt a trailer, and he could finish his breaks before going back to drive.  The witness advised in his twelve years working with the Respondent he had never experienced not being permitted to take a break. The witness also advised that would never have heard the Complainant complain about not getting breaks or having to work long hours later.

    The Respondent acknowledged it did not have a record of the rest breaks taken however it maintained it was the driver’s responsibility to have this noted on his tachograph, but he failed to do this.

    Findings and Conclusions:

    CA-00022991-001 Complaint - Weekly Working Hours - Under Section 27 of the Organisation of Working Time Act, 1997, section 15 of the Act requires that “an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, calculated over a 4 months… or 6 months …, or such length of time as, in the case of an employee employed in an activity … specified in a collective agreement.”

    In the case within the Complainant’s average weekly working hours amounted to a minimum of 50 hours per week.  The Respondent did not provide a record of the Complainant ‘s weekly working hours. The Respondent was found in breach of its obligations under section 15 of the Act. 

    CA-00022991-002 Complaint - Breaks and Intervals at Work - Under Section 27 of the Organisation of Working Time Act, 1997. In accordance with Section 12 of the Organisation of Working Time Act 1997, “(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes; (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).”

    Based on the evidence provided there were sufficient opportunities for the Complainant to take his intervals at work breaks, and the evidence submitted that the Complainant was prevented from doing so was not corroborated by the Complainant other than in his verbal submission at the hearing.  The evidence presented by the Respondent’s witness, a driver colleague of the Complainant, disputed the Complainant’s version of events, as did the Respondent.

    Samples of the tachographs presented by the Complainant for a number of days in January 2018 demonstrates no breaks were recorded in the driving operation of the tachographs presented, and where these tachographs were those operated by the Complainant. The Respondents position was noted that the Complainant had failed to properly operate the tachograph to record the breaks he took.

    As set out in the Complainant’s statement of his terms of employment, the minimum rest periods are stipulated, are consistent with section 15 of the Act. Where the Complainant is advised that should he fail to receive his breaks or rest periods he should advise his manager within one week and the Respondent will seek to ensure the employee is afforded this as soon as possible. The Complainant did not corroborate his statement that he had advised his manager, or when he raised his concerns in accordance with his terms of employment where the Respondent failed to address the concerns.

    It was found that the Respondent’s evidence to be more credible, and that the Respondent did not fail to provide the Complainant with an opportunity to take his intervals at work breaks.

    Decision:

    In response to CA-00022991-001 Complaint, Weekly Working Hours - The Complainant is well founded and the Respondent is required to pay to the employee compensation of four weeks remuneration at his gross rate of pay.

    In response to CA-00022991-002 Complaint- Breaks and Intervals - The Respondent was found to be not in contravention of Section 12 of the Act.  The complaint is well founded.

    Adare Human Resource Management Commentary:

    It is imperative that Employers retain records of Employee’s working hours, breaks and rest periods, not only because it is a legal obligation under the Organisation of Working Time Act, 1997 but also because such records are evidential in potential claims which may arise.

    ____________________________________________________________________________________________________________

     

    Adjudication Reference: ADJ-00021010

    Complainant awarded sum of money for having no Contract of Employment in place but not entitled to a notice period

    Background:

    The Complainant claimed he did not receive a written contract of employment or receive his minimum notice payment of one week.

    Summary of Complainants Case:

    The Complainant was employed as a Fabricator on April 12th, 2018.  He was employed on a full-time basis and worked 40 hours a week and earned 510 Euros net per week.  His employment ceased on December 21st 2018.

    The Complainant did not receive any written terms and conditions of employment in breach of Section 3 of the Terms of Employment (Information) Act 1994 which requires an Employer to give an Employee a written statement of terms of employment within two months of commencing employment.

    The Complainants employment with the Respondent came to an end in December 2018. The Complainant stated that his employment was terminated without notice by one of the co-owners following a disagreement over the specification of a gate. The Complainant was told to pack his things and leave. The Complainant spoke to the other co-owner who attempted to resolve the situation, but the Complainant was not willing to return to his position. The Complainant was furnished with his P45 and the pay that was owed plus four days holiday pay along with a Christmas voucher for 100 Euros. However, the Complainant was not furnished with one weeks’ notice or paid his one weeks’ notice as per Section 4.2 (a) of the Minimum Notice & Terms of Employment Act, 1973.

    Summary of Respondent’s Case:

    The Respondent accepts that they did not furnish the Complainant with a written statement of terms of employment at any stage.

    The Respondent stated that the Complainant handed in his notice to leave for another job after Christmas. The Respondent was sorry to see him go and they shook hands and the Complainant left on good terms. The Respondent paid the Complainant what he was due. The Respondent stated there were two witnesses to the Complainant handing in his notice. The Respondent said he always treated staff well and was very flexible with time off for personal matters.  The Respondent stated the company was currently having financial difficulties.

    Findings and Conclusions:

    The Respondent stated he did not give the Complainant any written terms of employment but had a verbal conversation with him about them. This is in breach of Section 3.1 of the Act which states ‘’An employer shall not later than two months after the commencement of an employee’s employment with the employer, give or give cause to be given to the employee a statement in writing containing the following particulars of the employees employment

    Therefore, the claim is well founded, as the Respondent admitted he was in breach of Section 3.1 of the 1994 Terms of Employment (Information) Act.  The Complainant was awarded 2,040 Euros for the breach of this Act. (CA-00027628-001)

    With regard to the claim for one weeks’ notice pay, the Respondent stated that the Complainant left of his own accord, left on good terms, he left to go to a new job which he was starting immediately after Christmas and no notice was due. However, the Complainant stated at the Hearing that he was told to pack his things and leave and did not start work again until May 2019. The Respondent stated there were two witnesses to the Complainant handing in his notice but these witnesses were not presented at the Hearing so their evidence is only hearsay.

    The evidence of the Complainant was preferred based on the fact he did not start work again until May 2019.  The claim is well founded and the Complainant is awarded 510 Euros for breach of Section 4.2 (a) of the of the Minimum Notice & Terms of Employment Act, 1973. This states, that an employer must give an employee with over thirteen weeks continuous service ,  “The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be (a) If the employee has been in the continuous service of his employer for less than two years, a week”.CA-00027628-003.

    Adare Human Resource Management Commentary:

    Although we saw the introduction of the Employment (Miscellaneous Provisions) Act 2018 earlier this year and specifically the requirement for Employers to now provide Employees with their 5 core terms of employment within 5 days of commencement, there is still a requirement for Employers to provide Employees with a statement of terms and conditions of employment within 2 months of their commencement.

    In addition, when any Employee resigns, it is recommended that it is requested by the Employer that the resignation is confirmed in writing. Having such resignation in writing will ensure that there is no ambiguity in whether an Employee resigned, or was terminated, as seen in this case law.

    ____________________________________________________________________________________________________________


    Adjudication Reference: ADJ-00019308

    Trainee Solicitor takes discrimination claim and fails as no evidence only assumptions

    Background:

    Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.

    Summary of Complainants Case:

    The Complainant has a 2:1 Law degree from University College Cork, which she obtained in 2009. She went on to complete her LL.M. from the same University in 2010. In 2015 she completed all of her FE1 exams. The Complainant has experience working in Legal Offices.

    In or around 2018, she saw an advertisement on the Respondent’s website. The position was for a trainee solicitor. She applied for the position but was not called for an interview. The Complainant states the reason she was not called for interview was discriminatory.

    The Complainant strongly believes that if she was a male, with the qualifications that she has, she would have been given the job. The profession is a male-dominated one and males throughout the Country are preferred over females. The Complainant states that she was discriminated on grounds of gender, age and civil status by every firm in Ireland that she applied for a job in.

    The Complainant believes that she was treated less favourably than a married woman with children. She is of the belief that a married woman with children would get more respect and that the Respondent would have an obligation to give such a candidate the job, so that she could feed her children.

    The Complainant is also of the belief that because she is older, the Respondents favoured the younger applicants. Their website states that they can help with the transition from student to trainee solicitor. However, the Complainant admitted that she does not know who the Respondent hired, their gender, civil status or age. The Complainant admitted that she has come to her conclusions based on a general assumption of how the legal profession operates in this Country and from general information she gathered from the Respondent’s website and LinkedIn profiles.

    The Complainant did not request any specific information from the Respondent in relation to the application process or in relation to those candidates that were successful. The Complainant did not know that she could do that and was hopeful that the Respondent would give her the information during the hearing.

    Summary of Respondent’s Case:

    The Respondent denies it has discriminated against the Complainant.

    The Respondent submits that the Complainant has manifestly failed to discharge the burden of proof in respect of her claim of discrimination. The Complainant's claim should therefore be dismissed on this basis alone.

    Without prejudice to the forgoing submission, if the Adjudication Officer decides the burden of proof has passed to the Respondent, which is denied, the Respondent vigorously denies that any discrimination, either direct or indirect, occurred.

    The Complainant has failed to identify a comparator of a different gender, civil status and/or age who was, or would have been, treated more favourably than her in respect of her application for employment with the Respondent, or to show that she suffered any less favourable treatment than an identified comparator.

    The Complainant was not selected for interview for the Respondent's 2018 Trainee Solicitor Programme on the basis that other candidates demonstrated stronger capability in their application forms across all of the Respondent's selection criteria. While the Complainant is evidently aggrieved that she was not called to interview, she has adduced no evidence whatsoever that this decision was made other than on the basis of an objective assessment of her application form and scoring of same by reference to the Respondent's published selection criteria. Her disappointment at not being called to interview, while understandable, does not provide grounds for her to challenge the Respondent's decision under the Employment Equality Acts.

    Findings and Conclusions:

    As the Respondent is a law firm and the Complainant has brought the same claim against multiple law firms in this jurisdiction, I find that it would be inappropriate to name the parties in the decision.

    The probative burden of proof that rests on the Complainant is set out in Melbury Developments Limited v Arturs Valpeters IEDA09171:

    "...Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 (4) places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

    The Complainant herein, on her own admission, has based her entire claim on nothing more than her own assumptions. She has no evidence, documentary or otherwise to support her allegations. Assumptions, unsupported by facts, can never form the foundations for a discrimination claim.

    The Complainant has failed to establish a Prima Facia case of discrimination against the Respondent on any of the grounds set out in her claim form.

    Decision:

    The complaint fails.

    Adare Human Resource Management Commentary:

    This case is a prime example that evidence and paperwork is critical in defending claims in the WRC. The majority of cases taken at the WRC will have the burden of proof lie with the Employer in the first instance so it is recommended that all such processes are fully documented.

  • Annual Leave - What to Consider before Year End?

    by Hayleigh Ahearne
    Oct 01, 2019

    As we commence Q4 of the year, it is important for Employers consider the outstanding annual leave balance Employees might have to date, as well as the Organisations policy on the carry-over of annual leave into the following year.

    Where it becomes apparent that Employees have not taken their leave, or have a considerable amount of leave yet to be booked and/or taken, it is recommended that the Employer writes to the Employee(s) to confirm that they should avail of their leave and even offer dates when it will be possible to take time off. 

    Some Organisations may have a Policy in place which stipulates that a specific number of annual leave days can be carried into the following leave year, however if not, the Organisation of Working Time Act, 1997 does still include a provision where an Employee is unable to avail of their statutory annual leave during the leave year, the Employer is obliged to allow the Employee to carry over their leave and take it during the first six months of the following leave year. 

    As an Employer, if you have reminded Employees of their annual leave and that they should book / avail of this leave before year end, but still fail to do so, section 20(1)(b) of the Organisation of Working Time Act, 1997 permits an Employer to assign annual leave to Employee(s) with at least 1 months’ notice of same. However, Employees and/or trade union representatives should be fully consulted at first.

    If you have any questions on annual leave, or the calculation of same then please contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594 to discuss how we can assist you.

  • 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.