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27
Jul 23

Posted by
Charlotte McArdle

Bonuses 101: A Guide to Managing Bonuses

Many employers routinely consider the award of bonuses to their staff at this time of year and inevitably this leads to disputes with some staff members about the failure to award a bonus to them at all or at a particular level. In this blog, we set out some factors of which employers should be mindful when making bonus-related decisions.

Entitlement to a bonus

The contractual status of a bonus is a significant factor to consider. Generally, offer letters and employment contracts outline eligibility to earn a bonus without explicitly guaranteeing it. They often state that the bonus scheme's operation and the amount awarded are solely at the employer's discretion. Bonuses are typically contingent upon the employer's business performance, the employee's work performance, or a combination of both during the previous year.

Even if bonuses are described as discretionary, there might still be a contractual entitlement to them implied in the employment contract. This could happen when an employee consistently receives a bonus at a particular level over an extended period due to custom and practice. If a contractual entitlement exists and the employer fails to pay the bonus, it could lead to a breach of contract claim or a complaint about an unlawful deduction from wages. It may also contribute to a constructive dismissal claim. In some cases, bonuses might be factored into loss of earnings awards in unfair or constructive dismissal cases.

The entitlement to a bonus may be contingent upon the employee remaining employed (and not serving notice) at the time of the award and not facing any performance or disciplinary issues. However, in instances where no express condition exists, courts have rejected implying such terms.

Employers should be aware that even if they have the discretion to terminate a bonus scheme, they cannot withhold bonuses that employees have already earned and accrued under the scheme as it was at the time. This means that once employees meet the conditions for earning the bonus, they have a right to receive it.

Exercising discretion to award a bonus

Bonuses are typically evaluated based on objective individual and/or business performance criteria. Employers must clearly define the criteria and decision-makers responsible for awarding bonuses at specific levels. Bonuses may come in various forms, including stock options, subject to the scheme's terms. However, caution should be exercised to avoid conditions that could be seen as a restraint of trade or penalty clause, as these might be deemed void due to public policy considerations.

In cases where bonuses are discretionary, employers cannot exercise their discretion arbitrarily or unfairly. The decision-making process must be carried out in good faith, consistently, and in line with the implied duty of trust and confidence. While equality laws do not require identical treatment of employees, employers should be especially cautious not to discriminate based on any protected characteristics. Ensuring fairness and transparency in bonus allocation fosters a positive work environment and reinforces the employer-employee relationship. Employers should be mindful to avoid any discrimination amongst employees based on any protected ground(s):

  • Gender
  • Marital status
  • Family status
  • Age
  • Disability
  • Sexual orientation
  • Race
  • Religion
  • Member of the Traveller community

Employees on leave

Care should be taken regarding employees absent on sick leave during the performance year.

The general principle in relation to maternity leave is that where a bonus comprises payment for work done, an employer is entitled to make a pro rata reduction in the bonus award for an employee’s absence on leave. However in many cases, there is scope for dispute about whether bonuses are in respect of work done. This area can be fraught with risk, and close consideration should be paid to whether a bonus is expressed to relate to company performance only or in combination with individual employee performance.

 

12
Jul 23

Posted by
Charlotte McArdle

Remote Working Updates by the HSA

The responsibility for safety and health at work rests with the employer regardless of whether an employee works remotely or at the employer’s premises. Employers must provide a safe work environment and, in doing so, assess the risks and ensure appropriate controls are in place to safeguard employees at work.

The Health & Safety Authority (HSA) have now updated their Remote Work Guidance and Checklist. This guidance provides useful information and advice on managing remote working away from the employer’s normal work premises. If you have employees working from remotely (from home or from a work hub), this guidance is applicable to your business.

In addition, they have issued separate guidance on Managing Psychosocial Hazards in the Workplace. This Information Sheet gives practical advice on what psychosocial hazards are, and the roles and responsibilities of employers and employees in relation to managing psychosocial hazards.

Click the links below to find out more:
Remote Working Guidance and Checklist
Psychosocial Hazards Information Sheet

Posted in Health & Safety, Hybrid Working

5
Jul 23

Posted by
Charlotte McArdle

Common Parental Leave Questions

There are several different types of leave available to parents in Ireland. What employees are entitled to depends on their circumstances.

  • Maternity leave: If employees become pregnant while in employment, they may be entitled to maternity leave. While employers don’t have to pay employees during this time, they might be eligible for maternity benefit for the first 26 weeks. They are also entitled to an extra 16 weeks of unpaid maternity leave
  • Paternity leave: New parents are entitled to 2 weeks paternity leave from employment or self-employment following the birth or adoption of a child. Employers do not have to pay for this leave but employees may be eligible for paternity benefit
  • Adoptive leave: One parent of the adopting couple or a parent who is adopting alone is entitled to 24 weeks of adoptive leave, beginning on the day the child is placed with them. Employers do not have to pay an employee for adoptive leave but they may be entitled to adoptive benefit. They are also entitled to an extra 16 weeks of unpaid adoptive leave
  • Parent’s leave: Parents of children under two and parents of adopted children in the first two years of adoption are entitled to seven weeks paid parent’s leave
  • Parental leave: Each parent is entitled to 26 weeks of unpaid parental leave before a child is 12 years of age

Rights as a parent
Before employees apply for time off work, it is important to understand what their entitlements are.
Under Irish law, parents are allowed to take unpaid leave from their job to look after young children. This is called parental leave. Employees can take up to 26 weeks off work for each eligible child. Parental leave is to be used only to take care of the child concerned. If it is taken and used for another purpose, the employer is entitled to cancel the leave.

What is parental leave?
Under Irish law, parents are allowed to take unpaid leave from their job to look after young children. This is called parental leave. Employees can take up to 26 weeks off work for each eligible child. This includes parents, adoptive parents and ‘in loco parentis’ (that means they take the role that would usually be fulfilled by a parent).
Parental leave is available for each child up until their 12th birthday. This may be extended in the following circumstances:

  • If the child was adopted between the ages of 10 and 12, employees can take the leave that they were entitled to up to two years after the date of the adoption order
  • If the employee's child has a disability or long-term illness, then they may take leave up until they are 16 years of age
  • If illness or another incapacity stopped an employee from taking the leave before the child reached the age limit, an extension may be allowed

Do employees get paid while on parental leave?
Employees are not entitled to pay or pension contributions from their employer while on parental leave. They are also not entitled to social welfare payments. Taking this leave does not affect any of the other employment rights.
Employees can get credited PRSI contributions while taking leave. The employer must write to the Records Update Section of Department of Social Protection (DSP), detailing the weeks the employees have not worked, so that they can get credited PRSI contributions for this time.

Is there a limit to how much leave employees can take?
If employees have more than one child, they are only entitled to take 18 weeks total in a 12-month period. However, this can be extended if the employer agrees. If an employee has twins or triplets, they are allowed to take more than 18 weeks of parental leave in a year.
If employees work part-time, their entitlement to leave is reduced on a pro-rata basis.
As the legislation only sets out the minimum entitlement is in terms of how many weeks are available to take, employers can have a greater amount than this in the contract.

Do employees have to take all of their leave at once?
No, but employees are allowed to do that if they want to. They can also take it in two separate blocks but must take at least six weeks in each block. There must be a gap of at least 10 weeks between the two periods of leave per child.
However, if the employer agrees, the leave can be separated into periods of days or even hours.

Are partners entitled to the same amount of leave?
Both parents are entitled to their own 26 weeks of parental leave. If employees both work for the same employer and the employer agrees, one employee can transfer 14 weeks of their leave entitlement to each other.

What happens if an employee gets sick while on parental leave?
Parents who fall ill while on parental leave are allowed to suspend the leave for the duration of their illness, but only if that illness leaves them unable to care for the child.
They will have to provide their employer with written notice and relevant evidence of the illness to their employer as soon as is reasonably possible in order for the leave to be suspended.

What happens to employees' annual leave?
During parental leave, employees are regarded as still working for employment purposes and so they can still build up annual leave entitlement. If their annual holidays fall during the period of leave, then they can take them at a later time.
If a public holiday falls while they are off and it takes place on a day when they would normally be working, it is added to their period of leave.

Can employees return to their old job after time off?
Employees are entitled to return to their job unless it is not reasonably practicable for the employer to allow them to return to do so. In this instance, employees must be offered a suitable alternative on terms no less favourable compared with the previous job, including any improvement in pay or other conditions which occurred while on parental leave.
When they return to work, they are entitled to ask for a change in the work pattern or working hours for a set period. Employers must consider their request and respond within four weeks but is not obliged to grant it.
Employees who take parental leave are protected by law from unfair dismissal.

What happens if employees switch jobs?
If employees change their job and have used part of the parental leave allowance, they can use the remainder after one year of employment with the new employer, provided the child/children are still under the qualifying age.

How should employees apply for parental leave?
In general, employees must have been working for the employer for at least a year to get the full amount of parental leave. To apply, they need to:
• Give notice in writing
• Inform the employer at least six weeks before the leave is due to start
• Include the start date, the way the leave will be taken and the duration of the leave
• Sign a confirmation document between the employer/employee confirming the details of leave at least four weeks before the leave is due to start

Can an employer say no?
Employers can only deny the request if employees do not meet the criteria to be eligible for leave.
If an employee has been working for the employer for anywhere between three months and a year, they may still qualify for pro-rata parental leave if the child is very near the age threshold. This allows employees to take one week of leave for every month of employment completed.

Can an employer postpone my parental leave?
An employer may also postpone the leave for up to six months, but this must be done before the confirmation document is signed. After six months, the leave cannot be postponed without further written agreement; grounds for such a postponement include lack of cover or the fact that other employees are already on parental leave.
Normally only one postponement is allowed, but it may be postponed twice if the reason is seasonal variations in the volume of work.

Posted in Employment Law, Family Leave

3
Jul 23

Posted by
Charlotte McArdle

New Statutory Leave Updates

The Work Life Balance and Miscellaneous Provisions Act 2023 was signed into law on the 4th April 2023. From the 3rd of July, two of the changes are coming into effect. These are:

• a breastfeeding at work extension
• unpaid leave for medical care purposes

The breastfeeding at work entitlement has been extended from 6 months to 2 years after the birth of a child. Employees are entitled to take one paid hour off work each day. It can be taken in the examples below:
• One hour break
• Two 30 min breaks
• Three 20 min breaks

Employees have an entitlement to 5 days of unpaid leave per year for medical care purposes. Apart from doing so for the employee’s own medical care, an employee will be allowed take this leave for:
• their children,
• spouse, civil partner or cohabitant,
• a parent,
• a grandparent,
• a sibling,
• any person living in the household

Posted in Employment Law

16
Jun 23

Posted by
Charlotte McArdle

Following GDPR Guidelines

General Data Protection Regulation (GDPR) is a hot topic right now. GDPR is the toughest privacy and security law in the world. Even though it was drafted and passed by the European Union (EU), it imposes obligations onto organisations anywhere, so long as they target or collect data related to people in the EU. Under GDPR people have a fundamental right of access to their personal data from data controllers.

Types of data processed
In business there are 3 main types of data that is processed regularly. These are:

• Customer data
• Employee data
• CCTV

When dealing with this data the three key principles to remember are:

• Lawfulness
• Fairness
• Transparency

How to treat the data you process

• Purpose limitation
Personal data should only be collected for specific, explicit and legitimate purposes and not further processed in manner that is incompatible with those purposes.

• Data minimisation
Processing of personal data must be adequate, relevant and limited to what is necessary in the relation to the purpose for which they are processed.

• Storage limitation
Personal data should only be kept in a form which permits identification of data subjects for as long as is necessary for the purpose for which the personal data are processed.

• Integrity and confidentiality
Personal data should be processed in a manner that ensures appropriate security and confidentiality of the data, including protection against unauthorised or unlawful access to or use of personal data and the equipment used for the processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

The four main breaches of GDPR are:
• Unauthorised disclosures
• Unauthorised access
• Hacking
• Integrity

GDPR Guidelines
1. Know what data you have, where you have it and why you have it
2. Be transparent
3. Identify any risks
4. Know your processors
5. Manage any risks

Bright Contracts contains a 'Data Protection' section of the Company Handbook which can be viewed under the 'Introduction' tab. Download a trial of our software to see a sample of this content.

Posted in GDPR

15
Jun 23

Posted by
Charlotte McArdle

Whistleblowing Updates

Whistleblowing legislation has been in place in Ireland since 2014 as a result of the Protected Disclosures Act 2014 (the "PD Act"), a major development at the time, which introduced significant legal protection for employee whistleblowers and consequently new and serious obligations for employers. As a result of the EU Whistleblowing Directive, the 2014 Act has been significantly updated and enhanced through amending legislation which became effective on 1 January 2023.


What impact did the updated whistleblowing legislation have in Ireland?
While many of the elements required by the Directive were already covered under Irish law, the Irish Government introduced the Protected Disclosures (Amendment) Act 2022, which amends the existing 2014 PD Act.


The updated legislation includes a number of key enhancements to existing whistleblowing protections and measures, such as:


• Widening the scope of individuals who are afforded protection beyond employees to include volunteers, interns, job applicants, suppliers, shareholders and non-executive directors
• Expanding the ambit of "relevant wrongdoings" for the purposes of whistleblowing by encompassing breaches of EU law in various prescribed areas including public procurement, financial services, product safety, transport safety, food safety, animal welfare, public health, consumer protection, privacy and protection of personal data. – it excludes interpersonal conflicts which concerns the worker exclusively
• Considerably extending the definition of "penalisation" to include acts such as failing to convert fixed-term contracts, negative performance assessments and psychiatric or medical referrals
• Extending the existing injunction style interim relief potentially available in dismissal cases to make it potentially available in other penalisation situations
• Reversing the traditional burden of proof. Where a worker alleges penalisation, the new legislation shifts the burden to the employer to prove that the employer' actions were based on justified grounds and not because the worker made a protected disclosure
• Requiring that certain private sector employers must have whistleblowing procedures and internal channels on the following basis:
o Private entities with more than 250 employees – from 1 January 2023
o Private entities with between 50 - 249 employees – from 17 December 2023.
o All public sector organisations are already required to have a formal whistleblowing policy in place under the existing legislation
• Imposing strict timeframes on employers for acknowledging, following up and providing feedback to whistleblowers
• Establishing a Protected Disclosures Commissioner

Are employers required to process anonymous disclosures?
Employers are not obliged to accept or follow-up on anonymous reports. However, an anonymous whistleblower is still entitled to protections if their identity subsequently emerges.

What other things should employers in Ireland be thinking about?
The new legislation signals a significant change in approach to whistleblowing in Ireland.
Many employers should have reviewed existing policies or prepared new procedures. Training and awareness, especially for management, is also key.
By ensuring that effective internal whistleblowing channels and procedures are in place, organisations will have an opportunity to become aware of concerns at the earliest stages, helping to avoid or limit financial and reputational risks.

 

Posted in Employment Update

31
May 23

Posted by
Charlotte McArdle

Pregnancy in the workplace: What employers need to know

The Maternity Protection Act 1994 to 2004 states that employees qualify for maternity leave including casual workers. Employees do not need to have completed a specific length of service to qualify. Contractors do not qualify for maternity leave.

The current entitlement under the statutory scheme is that an employee can avail of 26 weeks of ordinary maternity leave and 16 weeks of unpaid additional maternity leave. During the 26 weeks of maternity leave, 2 of these must be taken before the baby’s expected birth date and 4 weeks must be taken after the baby’s birth.

Pregnancy in the workplace
Once the pregnancy is confirmed in writing including details of anticipated due date and any relevant medical details, employers must allow employees to take reasonable time off to attend medical visits related to that pregnancy. Employees are required to give 2 weeks written notice in advance of each appointment and an employer can request to see the appointment card. There is no cap on the number of appointments that may be available or the extent to which an employee can take paid time off in relation to these appointments. Employees can take paid time off to attend one set of antenatal classes.

Fixed term employees are entitled to avail of the full statutory entitlement of maternity leave. If the contract of employment date of termination falls within the 26-week window, it is extended until the end of the 26 weeks.

Maternity benefit is not a break of service so employees accrue public holidays, annual leave etc. as well as being entitled to their full suite of rights as they would be if they were working normally.

Maternity leave can start automatically either if the employee is absent from work wholly or partly because of their pregnancy at any time from the beginning of the four weeks before the start of their expected week of childbirth or when the employee has given birth naturally at that before maternity leave kicks in.

The maternity rate benefit as it stands is €262 per week for 26 weeks. It is the duty of the employer to inform the employee when their maternity leave will come to an end. If the employer receives notice that the employee seeks to avail of the additional 16 weeks of unpaid maternity leave, they would need to furnish the employee with the new end date and this notice is to be sent to the employee in writing within 28 days of receiving the initial notification. Employers are required to sign the MB 2 certificate as this is essential for the employee to avail of maternity benefits and return it to the employee.

A health and safety risk analysis must be conducted in relation to the employee intending on taking maternity leave and their workplace. Employers are required to identify any risk and either remove the risk or create an arrangement for the employee in which they are not exposed to this risk. Employees are covered by the protections of the Maternity Protection Act.                                                                                  If there are no options to accommodate an employee by removing the risk or creating new arrangements in the workplace, then the employer must give the employee health and safety leave from work which can continue until the beginning of maternity leave. The first three weeks of wages as part of health and safety leave must be paid by the employer. After this, the health and safety benefit is paid and depends on PRSI payments amongst other things.

Employees on maternity leave or additional maternity leave cannot be made redundant while they're on leave and if this happens the employee can bring an unfair dismissal claim to the WRC.

After the employee has given birth
After the employee has given birth and they seek to return to the workplace, the employee is entitled to return to the same position they held before maternity leave on the same terms and conditions. If circumstances in the workplace have changed and it's no longer possible to accommodate this, an employee has the right to a suitable alternative position. The work being done must be of the same kind that the employee did before availing of maternity leave.

Employees who are working and are breastfeeding are entitled to take one paid hour off work each day for the 104 weeks following the birth of a child. It can be taken in the examples below:


• One hour break
• Two 30 mins breaks
• Three 20 mins breaks

A private space if at all possible, should be provided for employees to avail of these breaks over the course of the entitlement.

Posted in Employment Contract, Health & Safety

25
May 23

Posted by
Charlotte McArdle

The 5 Day Statement

Within the first 5 days of starting a job, employers must give employees part of their ‘written statement of terms of employment’. This written statement must include the core terms of employment and is also referred to as the 5 Day Statement.


Within 1 month of starting the job, employers must give employees the remaining terms of employment in writing (such as entitlement to annual leave).


The 5 Day Statement

The 5 Day Statement includes:

  1. The full names of the employer and employee
  2. The address of the employer
  3. The place of work, or where there is no fixed or main place of work, a statement stating that there are various places or employees are free to set their own place of work or to work at various places
  4. The date the employment started
  5. The job title, grade or nature of the work (such as a brief job description)
  6. The expected duration of the contract (if the contract is temporary or fixed-term)
  7. The rate or method of calculating pay, and the ‘pay reference period’ (for example, whether you are paid weekly, fortnightly or monthly)
  8. What the employer reasonably expects the normal length of the working day and week to be (for example, 8 hours a day, 5 days a week)
  9. The duration and conditions relating to the probation period (if there is one)
  10. Any terms or conditions relating to hours of work, including overtime


The right to get the core terms of employment (in writing) is set out in the Employment (Miscellaneous Provisions) Act 2018 and updated by the European Union (Transparent and Predictable Working Conditions) Regulations 2022. Employers can face serious penalties if they do not comply.


Employers must sign and date the ‘written statement of terms of employment’, but there is no legal requirement for employees to sign it. Employer must keep a copy of the written statement throughout employees employment, and for at least a year after it ends.

Posted in Employment Contract, Employment Law

11
May 23

Posted by
Charlotte McArdle

Managing Annual Leave Requests

With summer coming along soon, annual leave requests may be more frequent however when does an employee’s time-off become an issue? How should managers handle the discussion? Here’s what you need to know and do.

Firstly there are 3 things to consider.

  1. Communication: Establish well-defined policies about annual leave and make sure everyone in your organisation knows them. Clear policies lead to easier decisions when unusual requests arise.
  2. Respect: If annual leave policies don’t cover a particular issue, respect your employees by striving to be fair and compassionate in making a decision and presenting it to them.
  3. Clarity: Do your employees take it for granted that their annual leave requests will be approved? Make sure their expectations are based on actual policies, not informal beliefs based on past behaviour. Again, communication is essential.

There are also some times when you may need to speak with your employees regarding their requests. Consider talking directly with them under any of these circumstances:

  • When the request contradicts company policy: You may need to make occasional exceptions to your annual leave policies, but strive to be consistent in how you enforce the rules. Document the reasons behind your decision when exceptions do arise so you can easily resolve similar situations in the future.
  • When you believe the employee’s absence will have a negative impact: What if a worker wants to go on holiday during a crucial time for your organisation? Instead of simply denying the request, explain the difficulties their absence might cause. Together, you may be able to find a better time for their request.
  • When an employee wants to much time off at once: How long is too long? That depends on your needs and the nature of the employee’s request. It’s one thing if they want to sail around the world, and another if they’re requesting time to care for a sick relative. As you discuss their request, remember that a lengthy absence can burden co-workers who have to pick up the work.
  • When an annual leave request comes with too little notice: Sick days and emergencies can happen to anyone, but an employee who takes frequent last-minute personal days and trips can cripple productivity and impact team morale. A discussion about the effects their behaviour is having on the team can help the employee understand why they need to plan further in advance.
  • When annual leave requests aren’t happening enough: Problematic annual leave requests are easy to spot, but there’s an annual leave issue that’s often over looked - many employees don’t take as much time off as they should. Overworking can take a toll on an employees health and happiness, as well as their job performance. Make a habit of looking at annual leave allowances, and talk to your team about the benefits of taking leave to help foster a culture where time off is encouraged and over-working and burnout is discouraged.


You should ask yourself some questions as well to establish annual leave rules that meet both your business needs and the needs of your employees.

  1. How far in advance must employees request time off?
  2. Do you have a formal system for requesting time off?
  3. Are there times when employees can’t take time off?
  4. How do you handle overlapping requests from different employees?
  5. How do you keep track of who has taken time off and how much?

You can find more information on annual leave requests here.

Posted in Annual Leave

5
May 23

Posted by
Charlotte McArdle

Improving Employees Wellbeing at Work

Employee wellbeing is essential to ensure employees are happy in their job. It is the way employees’ duties, expectations, stress levels and working environments affect their overall health and happiness.

Employee wellbeing involves several categories of wellness, such as:

  • Physical Health
  • Emotional Health
  • Psychological Well Being
  • Social Relationships
  • Financial Stability

To check how your employees feel with the wellbeing in the workplace, employers should send out a survey to find out information on how employees currently feel as well as what they think can be done to improve wellbeing.

Some ways in with employers can improve wellbeing is by:

  • Social club: companies can set up socials clubs where money is deducted from employees pay check and this goes towards activities that the club run on a regular basis such as a bowling night, crazy golf etc.
  • Walking meetings: if there are meetings ran, allow employees to pop in the headphones and walk and by the time the meeting is over there have got their steps in and some fresh air.
  • Have an intranet: an intranet is a great place to have free resources or information for employees that can improve their wellbeing. On the intranet you can include information on services your company provides such as EAP, healthcare etc. You can include link to risk assessments on Type 2 Diabetes, lung cancer etc as well as apps for mindfulness such as Headspace or Moodlight.
  • Giving back to employees: it is important for employees to be recognised for the wonderful work they do. Employees should consider some benefits for this work such as allowing employees to finish early one day.

Employees wellbeing initiatives are something that need to be done all year round in order to keep your employees wellbeing at a high.

For more information on wellbeing check the blog below:

Posted in Health & Safety

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