Case Law: Big Fine for Not Providing Employment Documents!
A Dental Technician was awarded over €13,000 after her claims, of not being provided with written employment terms, Unfair Dismissal, and lack of notice pay, were upheld.
The negative consequences of not providing appropriate employment documents were highlighted in this recent Workplace Relations Commission case (ADJ-00034847).
Background
The complainant, Sarah O’Connor, worked as a Dental Technician for the respondent, Cas Dental.
O’Connor alleged that she had not received a written statement of her terms of employment, or a disciplinary procedure, or an employee handbook.
The complainant also explained that she did not receive a letter inviting her to the dismissal meeting. The dismissal meeting lasted about a minute. She was not given notice pay or the right to appeal.
Defence
Mr Colum Sower, a director of the respondent, explained that he thought he had a period of one year to issue an employment contract and this was his understanding based on advice he had received from the Small Business Association.
Mr Sower gave evidence that he issued the complainant with verbal warnings and a written warning before the dismissal, although there was no final written warning or formal improvement plan.
A notice payment was not made, but the complainant was given a payment for good will.
The respondent accepted the procedure used was not perfect but argued that the complainant had not met the required performance standards and there are serious consequences of not meeting standards in the medical profession.
WRC Decision
The WRC Adjudicator found that the claim of not being issued with written terms of employment was well founded. The respondent was ordered to pay compensation of four weeks’ remuneration to the complainant.
The claim of lack of notice pay was also upheld and the WRC Adjudicator ordered the respondent to pay one week’s remuneration to the complainant.
The WRC Adjudicator concluded that the Unfair Dismissal claim was well founded.
There were breaches of the Code of Practice on Grievance and Disciplinary Procedures, including no opportunity for representation at the dismissal meeting, and serious procedural flaws. The Adjudicator concluded that no reasonable employer would have dismissed the complainant in the circumstances and in this manner. The respondent was ordered to pay €12,000 compensation to the complainant.
Takeaways for Employers
It is essential to comply with the legal requirement to provide employees with written terms and conditions of employment within the required time limits. The excuse of receiving incorrect advice was not accepted by the WRC Adjudicator.
Bright Contracts clients can quickly and easily create legally compliant terms and conditions of employment using the step-by-step instructions in our software.
It is also important to understand legal obligations relating to notice pay.
Bright Contracts includes a legally compliant template contract clause about notice.
Finally, failure to follow reasonable procedures can result in serious consequences. In the O’Connor v Cas Dental Case, the respondent suffered reputational damage and was ordered to pay significant amounts of compensation.
Bright Contracts has a ready to go Employee Handbook which clients can tailor to their requirements. Policies and procedures are reviewed and updated in line with employment law changes and recommended practices.
Budget 2023: What does it mean for employers?
Budget 2023 was viewed as a chance for the government to take decisive and effective steps to reduce the cost-of-living crisis. The measures announced were implemented against a globalized backdrop of rising prices, worsening fuel crisis and political pressure experienced both by employers and employees. What does it provide for employers?
Increased Small Benefit Exemption
For several years, tax rules have allowed employers to provide one non-cash incentive of up to €500 per year to an employee without incurring a tax charge if certain conditions are met. This is known as a small benefit exemption.
The minister has announced an extension of this scheme, which is expected to be a welcomed move. An employer may provide up to two qualifying awards per year, and the maximum tax-free amount per year has been increased to €1000. This will give employers more leeway in rewarding employees in a tax-efficient manner.
Employers frequently use the incentive as a bonus given to employees at the end of the year in the form of a Christmas voucher. The amendment is set to take effect on 28 September 2022, so the enhanced benefits will be available in the current tax year. The expansion of this scheme will provide employers with a cost-effective way to support their employees and reward their commitment.
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Termination of Employment
An employer must have a reason to dismiss an employee. Under the Unfair Dismissals Acts 1977 to 2015, the dismissal of an employee is deemed not to be unfair if it is for reasons of capability, conduct, capacity, redundancy, contravening the law, or some other substantial reason.
Giving Notice
At a minimum, employers must give employees the following statutory periods of notice.
Duration of employment Minimum notice
- 13 weeks to 2 years -1 week
- 2 to 5 years -2 weeks
- 5 to 10 years -4 weeks
- 10 to 15 years-6 weeks
- 15 years or more -8 weeks
If the employee’s contract of employment provides for notice in excess of the statutory period, the contractual notice must be given.
An employer may dismiss an employee without notice for gross misconduct e.g assault, stealing or serious breach of employment policies. Employment contracts or handbooks may contain further examples of gross misconduct.
Termination Procedures
The Workplace Relations Commission has introduced a Code of Practice on Grievance and Disciplinary Procedures which employers should follow when dismissing an employee. Disciplinary action may include:
- An oral warning
- A written warning
- A final written warning
- Suspension without pay
- Transfer to another task, or section of the enterprise
- Demotion
- Some other appropriate disciplinary action short of dismissal
- Dismissal
You can read more about Unfair Dismissal in our previous blog post, Unfair Dismissal Claims & How to Avoid Them
Bright Contracts Software has a “Resignation and Termination” policy in the “Terms and Conditions” section of the handbook. Furthermore, in the Company Policies and Procedures section, there is a Grievance/Dispute Procedures which you can edit to your company needs.
WRC Inspections: What you need to know
WRC inspectors carry out employment rights compliance inspections and associated enquires. In general, an employer will get advance notice of an inspection. In some instances, an inspector has the right to show up unannounced.
Inspectors have the following powers:
- To inspect and take copies of any documents or records
- To remove any books, documents, or records and retain them for such period as the inspector considers necessary for the purposes or their functions under the Workplace Relations Act 2015
- To require any person at the place of work or premises to produce such books, records or documents as the inspector may require for the purposes of their functions under this Act
- To examine any person who they believe to be or have been an employer or employee, and to require such person to answer questions as the inspector may ask relating to the employment.
Preparing for an inspection
Employers should always be prepared for a WRC inspection as these may happen at any stage.
Employers Checklist:
- Employers’ registration number with Revenue Commissioners
- A list of all employees: full names, addresses, and PPS numbers
- Dates of commencement and dates of termination of employment
- Written terms of employment for each of the employees
- Employee’s job classification
- A record of annual leave and Public Holidays took by each employee
- Hours of work for each employee (start and finish time)
- Payroll details: gross to net, rate per hour, overtime, deductions, commission, bonuses, service charges, etc.
- Evidence that Employees were provided with pay slips
- A register of any employees under 18 years of age
- Details of any board and lodgings provided
- Employment permits or evidence that permit is not required as appropriate for non-EEA nationals
The Inspection
Reasons:
- Response to alleged non-compliance
- WRC compliance campaigns- sector/legislation specific
- Routine inspections
Conduction of the inspection
The inspection will carry out an interview with the Employer or their representative. At this stage, all relevant records will be requested, calculated, and examined.
After examining the records, the inspector will interview a sample of employees to gather additional information. These findings will be shared with the employer.
If it appears that all is compliant, the inspector will issue a letter concluding the inspection.
Examining the records
Accurate records can protect employers from false allegations
The inspector will examine a sample of records over a period of one year prior to the examination. They will then determine if they should examine further records within the previous years from what they see in the first records.
Examples of inspection Offences
- Failure to pay the National Minimum Wage rate
- Failure to keep employment records for a period of 3 years
- Failure to give a statement of wages (e.g. payslip)
- Employing a person who is not an EEA or Swiss national without a valid employment permit or other valid permission to work.
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New Worker’s rights passed by the Oireachtas
Over the last few weeks, The Oireachtas has approved two new workers’ rights: sick pay and tip protection. Both of these will have a significant impact on millions of workers nationwide.
Sick Pay for eligible employees
As discussed in a previous blog post: Preparing for New Sick Pay Rules. The Sick Leave Bill 2022 has been passed by both Houses of the Oireachtas. This gives eligible employees in Ireland the right to paid sick leave. Employers will pay sick pay at a rate of 70% of an employee's wage, up to a daily maximum of €110.
To receive statutory sick pay, an employee must obtain a medical certificate and have worked for their employer for a minimum of 13 weeks. Employees who require further time off after their employer’s entitlement to sick pay expires may be eligible for illness benefits from the Department of Social Protection, subject to PRSI contributions. The Bill has now been signed into law by the president.
The Payment of Wages (Amendment) (Tips and Gratuities) Bill
In addition to passing the Sick Leave Bill 2022, the Oireachtas passed new legislation to ensure those working in the hospitality industry receive their fair share of tips and gratuities. This will clarify the definitions of required charges, service charges, tips, and gratuities. In addition, it will exclude tips and gratuities from a worker’s contractual wages, and oblige employers to distribute tips received electronically, fairly, equitably, and in a transparent manner. It will also ensure that any charge referred to as a ‘service charge’ is distributed to employees in the same way as tips received.
Employers should begin reviewing their sick leave policies to ensure that they comply with the upcoming statutory sick leave scheme. Employers in relevant industries should also review their policies and procedures for managing tips, gratuities, and service charges to ensure they are in line with the changes in the law.
How to Prepare an Anti-Bullying Policy
Prevention is the best way to avoid the risk of bullying at work. The purpose of an effective policy is not simply to prevent improper conduct and behaviour but also to encourage best practices and a safe and harmless workplace where such behaviour is unlikely to occur.
Employers should adopt, monitor, and implement an effective and accessible policy on bullying in the workplace.
Preparing the Policy
The policy and complaints procedure should be adopted, where appropriate. Simple direct language should be used in the policy. Information given to employees should be in a form, manner and in an appropriate language that is likely to be understood by the employees concerned.
The policy should be written, dated, and signed by a responsible person in senior management and updated when appropriate.
Scope of the Policy
The policy should:
- Describe what is meant by bullying at work
- Include a non-exhaustive list of examples of bullying behaviour relevant to the employment
- Given the name or job title of the person who may be approached by a person wishing to complain of bullying at work
- State that the protection extends to bullying at work by management, fellow employees, subordinates, clients, customers, and other business contacts as well as work-related social events
- State that all complaints of bullying will be taken seriously and will be followed through to resolution and that employees who make a complaint will not be victimised.
Allocation of Responsibilities in Prevention of Bullying at Work
The policy should state that management, others in the position of authority, and workplace representatives have a particular responsibility to ensure that bullying at work does not occur and that complaints are addressed promptly.
The policy should state that, management will:
- Provide a good example by treating all people in the workplace with respect
- Promote awareness of the policy and complaints procedures
- Be vigilant for signs of bullying at work through observation and through seeking employee feedback and take action before a problem escalates
- Deal sensitively with employees involved in a bullying complaint
- Explain the procedures to be followed if a complaint of bullying at work is made
- Ensure that an employee making a complaint is not victimised for doing so
- Monitor and follow up on the situation after a complaint is made so that the bullying at work does not reoccur.
Bright Contracts has a preformatted Anti-Bullying Policy under the ‘Bullying and Harassment Policy and Procedure' section of the Handbook in the software, which is fully compliant with current employment laws.
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Bullying in the Workplace: What you need to know
We have already discussed in a previous blog post Bullying in the Workplace: What constitutes bullying? What bullying is and what constitutes bullying. In this post we are going to discuss the effects bullying have at work, the role of the employer and the employee to prevent bullying at work and actions and measures you can take to tackle bullying.
The effects of Bullying at Work
Workplace bullying and related complaints can have a range of effects on both employees and employers. For the employer, the effects can include reputation damage, absences of employees in the workplace, reduced productivity, increased costs, poor morale, and loss of respect for managers and supervisors.
For the employee or the target of bullying behaviour, the effects can include stress, low morale, reduced performance, and lower productivity. Some people decide to leave their employment, exposing themselves to financial strains.
Prevention of Bullying at Work- Role of Employer
Every person in the workplace has a role in promoting a positive workplace free from bullying behaviour.
An employer should:
- Uphold the duty to manage and conduct work activities in such a way as to prevent any improper conduct or behaviour that is likely to risk an employee’s safety, health or welfare at work. Employers must act reasonably to prevent workplace bullying patterns developing, where there is a complaint, the employer must react reasonably, assess the complaint, and record actions on each case.
- Develop a workplace anti-bullying policy, in consultation with employees, to ensure a system is in place for dealing with complaints and that disciplinary action may follow where bullying has occurred.
Prevention of Bullying at Work- Role of Employee
How an employee behaves in a way that is acceptable. Employees both individually and within teams and groups, have a role in promoting positive behaviour to others, relating in a clear, civil and respectful way to everyone in the workplace.
Under section 13 of the 2005 Act employees’ duties include to:
- Comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect their safety, health and welfare of any other person who may be affected by the employee’s acts
- Co-operate with their employer or any other person so far as is necessary to enable their employer or any other person to comply with the relevant statutory provisions.
- Not engage in other behaviour that is likely to endanger a person’s own safety, or their health and welfare at work or any other person at work during the course of the employment.
Measures to Prevent Bullying in the Workplace
- Promotion and reinforcement of a positive workplace culture
- Effective Anti-Bullying policies, to be used and promoted in the workplace
- Widespread policy awareness
- Appropriate training as required for those managing complaints and for line management
- Contact person/appropriate support available
There may be value in appointing a Contact Person who acts as the first step for anyone enquiring about a possible bullying case. Where the organization can support this, it can help to resolve matters earlier and more effectively.
The Contact Person should be supportive and listen and offer guidance in line with company policy and procedures all on a confidential basis. This person should be carefully selected and trained. The main purpose of this role is to be supportive, they will have no role in the investigation of any complaints and should not be tasked with any further involvement in the details or right and wrongs of a complaint.
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The Importance of HR Policies & Procedures
HR Policies are formal rules and guidance for managers and employees setting out how to manage a range of employment issues in the workplace.
A policy is a guiding principle used to set direction in an organization. It should be used as a guide to decision making under a given set of circumstances within the framework of objectives set out by senior management
A procedure is a particular way of accomplishing something. It should be designed as a set of series of steps to be followed as a consistent and repetitive approach or cycle to accomplish an end result
Purposes of HR Policies and Procedures
HR policies and procedures give guidance on a range of employment issues for employees, managers and others with responsibility for people.
They:
- Set clear standards and expectations and creates awareness
- Transparently communicates the conditions of employment
- Ensures employees are treated equally and fairly
- Creates a safe and healthy work environment
- Creates a channel for addressing employee grievances and disputes
- Mitigate risks
How to communicate HR Policies
- Must be issued to all employees
- Must be in writing (company handbook)
- Employees must be informed of policies on commencement of employment
- Employees must sign off on policies
- Policies must be accessible and reviewed frequently
- Managers must be coached and sufficiently trained.
Rather than incorporating policies into the contract, you may consider;
- Referring to the policies and procedures and where they can be found
- Confirm that they don’t form part of the employee’s contract of employment
Essential Policies
- Some essential policies that should be included are:
- Disciplinary
- Grievance
- Dignity in the workplace (Bullying, Harassment, etc)
- Equal Opportunities
- Health and Safety Policy
- Retirement Policy
- Right to Disconnect
- Whistleblowing Policy
- Probation Policy
- Absence Policy
- Data Protection
- Confidentiality
- Hybrid Working
- Flexible Work
In order to build a good company, it is essential for employees to be able to work together peacefully. Having a proper set of policies and procedures in place can make this happen.
Bright Contracts handbook provides all the policies and procedures any SME would need. It allows you to edit the text to suit your company’s needs.
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Hiring Young People in Ireland
Young employees are people aged 14 to 18, who work for an employer. As young workers are generally in full-time education, they are protected by a different employment law than adult workers. This is to make sure their work does not put their health or education at risk.
Restrictions on Employing 14 & 15 Year-Olds
By law, children ages 14 and 15 cannot be employed in regular full-time jobs.
However, they can:
- Do light work during the school holidays
- Take part in an approved work experience or educational program
- Work in film, culture, advertising, or sport
Working Hours for 14 & 15 Year-Olds
Outside school term time
Can work a maximum of 35 hours a week or up to 40 hours if they are on approved work experience.
During school term time
Children aged 14 are not allowed work during school time. Children aged 15 can do 8 hours of light work a week.
Restrictions on Employing 16 & 17 Year-Olds
Young people aged 16 and 17 can work a maximum of 8 hours a day, up to 40 hours a week.
Young people are only allowed to work between 6 am and 10 pm.
Paying Young Employees
All employees have a right to get a payslip. A payslip is a written statement from the employer that explains your total pay before tax, and all details of any deductions from pay.
Minimum Wage
Since 1 January 2022, the national minimum wage is €10.50 per hour. However, not everyone is automatically entitled to get this.
Aged 20 and over- €10.50 an hour
Under18 - €7.35
Aged 18 - €8.40
Aged 19 - €9.45
Your employer can pay you more than the minimum wage if they want, but they are not required to by law.
Employers’ Responsibilities
Employers must keep records for every employee under 18, including:
- The employee’s full name
- The employee’s date of birth
- The employee’s starting and finishing times for work
- The wage rate and total wages paid to the employee
The employer must keep these records for at least 3 years.
Employers must also give employees aged under 18 a copy of the official summary of the Protection of Young Persons (Employment) Act, and other details of their terms of employment within one month of taking up a job.
Employers with employees under 18 must also display the official summary of the Act in their workplace, where it can easily be read by staff.
Breaches of the Protection of Young Persons (Employment) Act
Employers who are found guilty of an offense under the Protection of Young Persons (Employment) Act can be fined up to €1,904.61 and an extra €317.43 a day for a continuing offence.
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How to Handle Employee Resignations
When an employee resigns the employee will usually give full contractual notice of their resignation. However, an employee sometimes resigns in the heat of the moment. Regardless of the situation, you need to handle the situation properly.
What is Resignation?
Resignation is when an employee informs their employer that they’re quitting. The employment relationships can end in various ways, including:
- An employee gives you their notice of resignation by speaking with you or handing in a letter of resignation
- If your business ends the contract of employment
- When an employee reaches justifiable retirement age.
Once an employee has notified you of their intention to resign, they must complete a notice period. The length of this notice period can be found in the employee’s contract of employment.
During this period you can begin to search to find a replacement for the role.
Notice Periods in Ireland
Notice periods in Ireland vary by each employee’s employment contract. The employee’s length of service is also taken into account. However, there are two common types of notice to keep in mind:
Contractual notice: You can decide the amount of contractual notice an employee must give. For example, two months’ notice may be required for an employee who has worked with your business for two years.
Statutory notice: This is the length of notice an employee is legally required to give. This will depend on their length of service.
If an employee has worked with your business for at least 13 weeks, they must give you at least one week’s notice.
What to do when an employee resigns?
When an employee decides to resign, it is natural that you may try to convince them to stay. If instead, you accept the resignation, there are some key steps to follow:
Get the resignation in writing
Written confirmation of the resignation must include the employee’s name, the date, and a signature.
Respond to the resignation
Acknowledge your acceptance of the resignation. This can be a written or verbal response.
Prepare a handover pack
A handover pack can come in handy for when the departing employee’s replacement starts
Conduct an exit interview
An exit interview will give you the opportunity to understand the employee’s reasons for resignation. This is also a good chance to listen to feedback for further improvements.
Retrieve business property
Make sure to retrieve any business property from the departing employees. These items can include computers, devices, uniforms, etc.
Lastly, remember to end the professional relationship on a positive note. You never know but the departing employee may wish to return to the company in the future.
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