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1
Feb 18

Posted by
Jennie Hussey

New Code of Practice on Longer Working

Case 1

Paul Quigley, a highly regarded GP in addiction services in the North Dublin HSE was recently granted an injunction by the High Court to stop the HSE from forcing him to retire. His lawyers are claiming the forced retirement amounts to age discrimination.

Case 2

A WRC adjudicator recently ruled that Susan Devereaux, who was forced to retire from her job, should be re-instated in her role with Pdforra, as the employer had failed to ‘objectively justify’ its reasons for dismissing her when she reached the age of 60.

Case 3

A Bookkeeper who was ‘retired’ by her employer on reaching the age of 66 has been awarded €12,000 in an age discrimination case she took against her employer.

These are just a few of the cases relating to forced retirement that has come up in the courts over the last few months. They have brought attention to the fact that these now ‘retired’ workers were sometimes unable to claim the State pension as they may not have reached the eligible age to do so. At the moment private sector workers in Ireland can start to receive the State pension at the age of 66, this will rise to 67 in 2021 and again to 68 in 2028.

The Workplace Relations Commission has now published a Code of Practice, Industrial Relations Act 1990 (Code of Practice on Longer Working)(Declaration) Order 2017. The Code can now be used to help employer’s when dealing with retirement and requests to work beyond the retirement age. Although not legally binding, any employer who does not follow the guidelines will need to be able to justify the reasoning behind it.

On publishing the new Code of Practice, the WRC has set out what should be taken into consideration when it comes to retirement in the workplace:

Utilising the skills, abilities and experience of older workers

  • Draw on benefits of older workers and utilize through training and knowledge sharing with younger members of staff.
  • Train all management about age diversity and the benefits of such diversity in the workplace

Objective Justification

  • If a mandatory retirement age is set within a company, the employer must be able to ‘objectively justify’ the reason for it, examples may include health and safety, intergenerational fairness.

Set out a step by step ‘Retirement Process’

  • Set timelines and give adequate notice prior to retirement date
  • Explore transitional arrangements like flexible working, alternative roles up to date of retirement.

Requests to work longer

  • Need to be seen to be taken into consideration
  • Procedures set in place for acceptance and refusal of requests to work after set retirement age.

As a whole we are all living longer so it seems only natural that we would also be allowed to work for longer? This new Code of Practice will be very important going forward for Irish Employment legislation and employer’s alike.

For more information please click here


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Posted in Company handbook, Contract of employment, Employee Contracts, Employee Handbook

23
Jan 18

Posted by
Laura Murphy

Is it discrimination to top up maternity pay but not paternity pay?

September 2016 saw the introduction of Paternity Leave, that for the first time ever allowed fathers/partners to take two weeks paid leave on the birth of a child / placement of a child for adoption. Paternity Leave is paid at the same rate as Maternity Pay, currently €235 per week*, leaving it up to employers to decide whether or not they wish to top-up pay during the two weeks leave. The question then arose that if by topping up maternity leave, would an employer by default have to top up paternity pay?

A recent Workplace Relations Commission (WRC) case involving a transport company, provides useful guidance on the answer to this question.

In this case a male employee brought a case under the Employment Equality Act claiming discrimination on the grounds of gender due to the fact that the employer topped up maternity pay but did not top up paternity pay.

However the WRC Adjudicator held in favour of the Company, stating that maternity leave is different to paternity leave and that “the special protection afforded to women in connection with pregnancy and maternity is embedded in European and Irish law”. The Adjudicator concluded that the employer was entitled to make special provisions for women at the time of maternity leave and was protected in that regard by the Employment Equality Acts.

Conclusion

This case gives the green light to employers who wish to offer a maternity top up but not offer the same for paternity leave. Whatever it is you decide on, employers are advised to have clear paternity and maternity leave policies in place that is accessible to all employees.

*The rate of maternity/paternity pay will increase to €240 per week from end of March 2018.

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Posted in Company handbook, Contract of employment, Discrimination, Employee Contracts, Employee Handbook, Employment Tribunals, Workplace Relations Commission, WRC

16
Jan 18

Posted by
Jennie Hussey

€15k awarded in discrimination case to pregnant employee

The Labour Court found that the sacking of a manager from Wrights of Howth’s Crabby Jo’s restaurant was tainted with discrimination and have awarded compensation of €15,000.

Background

The employee was on a 6 month probationary period when she was fired just 3 months into her employment, very shortly after informing her bosses that she was pregnant.

No issues had been raised about the employee’s performance, however poor work performance was used as the reason for her dismissal on the 15th of June. The employee felt that the atmosphere had changed completely after she had announced her pregnancy on the 8th of May, she had requested a meeting to discuss her concerns she had over this. She was given no opportunity to make any representations or defend her position and was simply informed, without warning, that her employment was terminated.

In its ruling, the court found that no issues had previously been raised about the employee’s performance prior to her notifying them that she was pregnant and she had not been subject to any disciplinary warnings or action. The court originally awarded €30,000 for discrimination based on gender, however this decision was appealed and a lesser figure of €15,000 compensation was awarded due to the manner of the dismissal and the serious lacking in adherence to the restaurant’s own disciplinary procedures.

Learning points

It is important to recognise that disciplinary procedures must be followed at all times, regardless of how simple or difficult a situation may seem to be. It can end up being a very expensive mistake for an employer. Bright Contracts has comprehensive Disciplinary and Grievance procedures, customisable to companies requirements, built into the software.

Posted in Company handbook, Contract of employment, Discrimination, Dismissals, Employee Handbook, Employment Tribunals, Staff Handbook, Workplace Relations Commission, WRC

8
Jan 18

Posted by
Lauren Conway

The countdown to the GDPR is on!

With less than 5 month to go before the new General Data Protection Regulation (GDPR) comes into force employers are urged to start preparing immediately if they haven’t already done so.

What is it?

The GDPR is a European privacy regulation replacing all existing data protection regulations and will come into play on 25 May 2018. The aim of the GDPR is to protect all EU citizens from privacy and data breaches in an increasingly data-driven world.

The GDPR applies to all businesses including sole traders that process personal data (a name, photo, email address, bank details etc.) so it is safe to say that it will affect all businesses in some way. Employers are advised to be prepared otherwise they will face fines of up to €20M or 4% of annual global revenue, whichever is greater, for non-compliance. So how can you start preparing to ensure your business is fully compliant?

Preparation

A good starting point for preparing for GDPR is to create an inventory of all personal data held and answer the following questions:

• Why are you holding the data?
• What is the legal basis for holding the data?
• How is the data obtained?
• Why the data was originally gathered?
• How long is the data held for?
• How is the data saved? Is it saved securely?
• Is the data shared with anyone else and with whom?

As the GDPR requires organisations to be in a position to demonstrate compliance with its requirements, documenting the above will enable employers to:

• Identify and gaps in compliance
• Put in place processes to rectify gaps
• Produce evidence of its compliance on the new GDPR

In preparation for GDPR you must be aware of your data protection responsibilities and ensure that all employees are aware of their responsibilities when processing data. Ensure that you have an up to date data protection/privacy policies addressing the six principles of GDPR and apply it to your organisation.

For further information register now for our GDPR webinars  here
And read our GDPR blogs here

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Posted in Company handbook, Employee Handbook, GDPR, General Data Protection Regulation

2
Jan 18

Posted by
Jennie Hussey

January 2018 - Increase to Minimum Wage

The National Minimum Wage for an experienced adult worker is increasing to €9.55 per hour from January 1st 2018. This is the third year in a row that the NMW has been increased but this is by far the largest with an increase of .30c

The National Minimum Wage Act, 2000 provides for a minimum hourly rate of pay for all workers.

All workers, including full time, part time, casual and temporary will be deemed to be covered by the act with only 2 exceptions; close relatives of the employer and certain industry specific apprentices.

Workers can be broken down into 5 different categories; experienced adult workers in employment more than 2 years and over the age of 18, a worker under the age of 18, workers in their first and second year of employment who are over the age of 18 and trainees’ who are undergoing a course that satisfies certain conditions set out in the Act.

The new minimum hourly rates are:

  1. Experienced adult worker – €9.55
  2. Under age 18 – €6.69
  3. In the first year after the date of first employment over age 18 - €7.64 per hour
  4. In the second year after the date of first employment over age 18 - €8.60
  5. In a course of training or study over age 18, undertaken in normal working hours-1st one third period: €7.17 per hour; 2nd one third period: €7.64; 3rd one third period: €8.60 per hour.

Breaches of the act are deemed to be criminal offences and are punishable with hefty fines and even imprisonment.

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BrightPay - Payroll Software

Posted in Pay/Wage

13
Dec 17

Posted by
Lauren Conway

Christmas Public Holiday Entitlements

There are three public holidays coming up over the festive season – Christmas Day, St. Stephens Day and New Year’s Day. Although many offices across the country will close during this period it can be one of the busiest times of the year for industries including retail, hospitality, and hair and beauty. So what public holiday entitlement are employees entitled to over this time?

Full-time employees

Full-time employees have immediate public holiday entitlement to one of the following:
• A paid day off that day
• A paid day off within a month of that day
• An additional day of annual leave
• An additional days pay

Part-time employees

If a public holiday falls on a day that a part-time employee usually works, they are entitled to one of the public holiday benefits as listed above, if they have worked at least 40 hours in total in the 5 weeks prior to the public holiday.

Where the public holiday falls on a day on which the employee does not normally work, the employee is entitled to one fifth of his/her normal weekly wage.

Sick leave, absence and public holiday entitlement

If a full time employee is on sick leave during a public holiday, they are entitled to one of the public holiday benefits as listed above. If a part time employee is on sick leave during a public holiday, they are also entitled to one of the public holiday benefits listed above, if they have worked at least 40 hours in total in the 5 weeks prior to the public holiday.

Employees absent due to maternity leave, adoptive leave, parental leave, annual leave and jury duty accrue public holiday entitlement as if they were at work. Employees on carer’s leave continue to accrue public holiday entitlement for the first 13 weeks absence on carer’s leave.

The following type of absences occurring immediately before the public holiday will not be entitled to public holiday benefit.

• Absence in excess of 52 weeks due to occupational injury
• Absence in excess of 26 weeks due to illness or injury
• Absence in excess of 13 weeks for another reason and authorised by the employer including lay off
• Absence by reason of strike

Termination of employment

Employees who leave employment during the week ending before a public holiday and have worked the 4 weeks prior to that week are entitled to receive the benefits outlined above for that public holiday.

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Posted in Contract of employment, Pay/Wage, Wages

11
Dec 17

Posted by
Laura Murphy

Zero Hour Contracts - New Legislation

A new Bill, the Employment (Miscellaneous Provisions) Bill 2017, was published last week. According to the Employment and Social Protection Minister, Regina Doherty, the new Bill will prohibit zero hour contracts in most circumstances, as well as aiming to tackle problems caused by the increased casualisation of work and to strengthen the regulation of precarious work.

Key elements of the new Bill include:

Employers must give employees basic terms of employment within 5 days.

Within five days of a new employee starting employment, the employer must provide them with five core terms of employment. These 5 terms are:

  • The full name of the employer and employee
  • The address of the employer
  • The expected duration of the contract (where it is a temporary or fixed-term contract)
  • The rate or method of calculating pay
  • What the employer reasonably expects the normal length of the employee’s working day and week will be.

Employers who fail to provide these basic terms, who deliberately mislead or give false information will be open to prosecution. This is a new offence.

In line with current legislation, the remaining terms of employment will still need to be provided within two months of the employee’s start date.

Zero hour contracts to be Prohibited in most circumstances.

Zero hour contracts will be prohibited in all circumstances except in cases of genuine casual work or where they are essential to allow employers to provide cover in an emergency situation or to cover short-term absences.

New minimum payment to be introduced.

Employees called into work but sent home again without work will now be entitled to a payment. Additionally, if an employee has not worked at all in a week or has worked less than 25% of their contract hours, they will also be entitled to a minimum payment. The payment shall be calculated as the pay that the employee would have receive had they worked the lesser of:

  • 15 hours
  • 25% of their normal contractual hours
  • 25% of the work done for the employer that week

That minimum payment must be three times the National Minimum Wage or the rate set out in any applicable Employment Regulation Order.

Banded Hours

The Bill introduces new rights for new employees whose contract of employment does not reflect the reality of the hours they habitually work. For example, the contract states 15 hours per week where in reality the employee usually works 30 hours per week. After a work period of 18 months, an employee will be able to submit a written request to change their contractual hours. The employees request must be granted within two months, only in exceptional cases will the employer be permitted to refuse the request.

Penalisation of Employees

Employees seeking to invoke their employment rights under the Bill will have strong protections against penalisation. Where an employee successfully makes a complaint to the Workplace Relations Commission, they could be entitled to up to four weeks’ remuneration.

What’s next

The Bill was presented to the Dail on Thursday 7th December 2017, it is hoped that the Bill will be taken at Second Stage early in the New Year.

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1
Dec 17

Posted by
Denise Cowley

Why not get more for you and your employees when making Bonus payments?

As the long dark evenings set in and Halloween is over, the build up to the most wonderful time of the year will begin again! At this time of the year a significant amount of employers pay-out a Christmas/annual bonus and no matter how little or large the bonus is, a large portion ends up being paid over to the Revenue if it is put through the payroll as a taxable addition.

For example, if an employee’s salary is €35,000 per annum and they receive a bonus of €1,000 at Christmas, this employee would only receive around half of this amount after tax, employee PRSI and USC. The company would also be liable to pay 10.75% employer PRSI on the bonus, so in addition to giving the bonus of €1,000 there is also the extra €107.50 meaning the bonus is in fact costing the company €1,107.50.

The Solution

Revenue allow one small non-cash benefit per employee per annum up to the value of €500, PAYE, PRSI OR USC do not need to be applied to the benefit. A gift card or voucher seems to be the most popular way of allowing this payment to be made to the employee. The most popular gift card would seem to be One4All gift cards. Thesaurus Payroll Manager offers unique integration with One4All allowing employers to purchase gift cards quickly and easily for their employees. The integration offers a range of benefits, including:

  • The ability to pay via EFT, a facility not available to regular gift card customers
  • No additional charges, unlike when purchasing direct from the Post Office
  • Tracking of gift cards purchased so that you as an employer are alerted if you attempt to purchase more than one gift card for an employee in any one tax year 
  • Prevention from ordering a card in excess of the exemption limit, i.e. €500. 

Please note: where a benefit exceeds €500 in value, the entire amount will be subject to PAYE, PRSI and USC.

Purchasing gift cards through Thesaurus Payroll Manager is both simple and straightforward. To order, simply click on the Gift Card option, fill in your company details, select the amount for each employee's gift card and click to proceed to the gift card website. The software will bring you to the gift card website where you will arrange payment and delivery details.

It is also possible to order Me2You gift cards through Thesaurus Payroll Manager, if required tick to order from Me2You.

For further details click here.

To book a free online demo of Bright Contracts click here
To download your free trial of Bright Contracts click here

Posted in Pay/Wage, Payroll, PRSI, Wages

22
Nov 17

Posted by
Marzena Ignar

Making an Employee Redundant

Redundancy is never an easy decision for an employer to make but there may come a time when circumstances arise which leave an employer with no alternative but to declare redundancies.

A redundancy situation can often arise in the following situations:

  • an employee’s job ceases to exist
  • the employer ceases to carry on the business
  • the requirement for employees has diminished
  • an employee is not skilled for work that is to be done

In the event of a redundancy, employees are covered under Redundancy Payments Acts 1967-2014, if they meet the following requirements:

  • aged 16 or over
  • have at least 2 years continuous service (104 weeks)
  • are a full-time employee insurable under PRSI class A, or PRSI Class J for a part-time employee

How to calculate Statutory Redundancy Pay

Statutory Redundancy is payable at a rate of:

  • 2 weeks’ pay for each year of service. If the period of employment is not an exact number of years, the excess days are credited as a portion of a year
  • plus one week’s pay

The term ‘pay’ refers to the employee’s current normal gross weekly pay, including average regular overtime and benefits in kind. The above, however, is based on a maximum earnings limit of €600 per week (before PAYE, PRSI & USC).

An employer may also choose to pay a redundancy payment above the statutory minimum. In such circumstances, the statutory payment element will be tax free but some of the lump sum payment may be taxable. 

Employers should ensure that a redundancy policy is included in their company handbook and that all staff are aware of the procedures in place if redundancies were to arise. 

To book a free online demo of Bright Contracts click here
To download your free trial of Bright Contracts click here

Posted in Company handbook, Contract of employment, Employee Handbook, Staff Handbook, Wages

17
Nov 17

Posted by
Lauren Conway

€7,500 awarded for unfair interview questions

The Workplace Relations Commission has awarded €7,500 to a woman they found was discriminated against during a job interview with Minister of State for Training, Skills, Innovation, Research John Halligan. Mr. Halligan, during the course of the interview, said to the woman “I shouldn’t be asking you this, but....are you a married woman? Do you have children? How old are your children?”

Mr. Halligan said that the questions were asked in good faith as he wanted to make her aware that flexible working hours to allow his staff to take care of their families is something that he encourages. The WRC however, found that the questions were discriminatory under the Employment Equality Acts 1998-2005.

The legislation defines discrimination as treating one person in a less favourable way than another based on any of the following 9 grounds:

  • Gender
  • Civil Status
  • Family Status
  • Sexual Orientation
  • Religion
  • Age
  • Disability
  • Race
  • Membership of the Traveller community

When conducting an interview it is important for employers to build rapport with the candidate but they also need aware that asking questions or making comments in relation to the above 9 grounds will leave you at risk of a hefty discriminatory claim, even if you think you are just making small talk.

So what questions are appropriate and inappropriate to ask in a job interview?

Appropriate Interview Questions

  • Are you able to perform the specific duties of this position?
  • What days can you work? What hours can you work?
  • Are you available to work overtime on occasion?
  • Are you available to travel on occasion?
  • Are you able to start work at 8 am?
  • What are your long-term career goals?
  • Do you have any responsibilities that would interfere with traveling for us?

Inappropriate Interview Questions

  • Do you have or plan to have children?
  • If you get pregnant, will you continue to work, and will you come back after maternity leave?
  • What are your child care arrangements?
  • Are you married /engage?
  • How many children do you have? Do you have a babysitter available if we need you on a weekend? Do the working hours fit with your childcare?
  • Do you have a baby or small child at home?

Employment and equality legislation doesn’t just start once you hire someone, it’s applicable the moment you post a job advert. With this in mind employers need to be mindful of what they say even when making small talk and building rapport with candidates before and after the job interview. 

To view our full Interviewing Guidelines click here

Also see our blog ‘Be careful of discrimination in job interviews’ here

To book a free online demo of Bright Contracts click here
To download your free trial of Bright Contracts click here

Posted in Discrimination, Employment Update, Workplace Relations Commission, WRC

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