Do you know the correct procedures for an employee dismissal?
The Workplace Relations Commission has awarded €20,000 for unfair dismissal to a former manager of a fast food outlet.
The WRC found that the employee was denied “natural justice” when dismissed by her employer.
In a submission, the ex-manager admitted that she left the fryer on but stated, “It was the first time that had ever happened to me on a shift.” No damage was caused to the fryer due to being left on overnight.
The un-named owner of the fast food franchise informed the employee on the night he sacked her, that he didn’t think she knew how serious it was as the place could have burned down. But the ex-manager recalled another occasion where electrical items were left on all night, in this instance his response was that it wouldn’t be a bad thing if the place burned down.
Although the ex-manager requested a reason for her dismissal, the franchise owner stated that he didn’t have to give her one and that was the end of it.
The hearing was informed that the relationship between employer and employee was “difficult” since ownership changed in February 2015.
There were no representatives of the company business at the WRC hearing. The WRC adjudication officer stated, “Based on the uncontested evidence, I find that the complainant was unfairly dismissed by the respondent.”
Unfair dismissal legislation dictates that when dismissing an employee fair procedures must be adhered to. Upon starting employment, every employee should be given details of the Company's dismissal procedures in writing. If you do not have a dismissal procedure, putting one in place should be a top priority.
Bright Contracts - Employment Contracts and Handbooks
Top 5 reasons you need to issue contracts of employment
Contracts of employment are the cornerstone upon which the relationship between employers and their employees are built. All employees, whether full-time, part-time, or fixed-term workers should receive a contract of employment. Below are five reasons why employers should have signed contracts of employment.
- A Legal Requirement: within the first 2 months of an employee starting employment an employer must issue them with a written terms and conditions, most commonly done through the contract of employment. Under the Terms of Employment Act, there is certain specific information that should form part of the written terms and conditions.
- Cost of Non-Compliance: if an employer is found not to have issued contracts of employment or is found to have issued contracts that are not fully compliant they could face costly fines of up to 4 weeks’ pay for each employee.
- Employer Protection: In addition to compulsory statutory clauses, employers can include extra terms in the contract which will offer them further protection
e.g. A Confidentiality Clause: prevents employees from publicly disclosing confidential company information. Increased notice of termination: employers commonly set the notice employers are required to give should they wish to leave. Helping the employer ensure they have time to arrange alternative cover. Restrictive Covenant Clauses: place restrictions on ex-employers from setting up competing for business or in some cases, from working with competitors for a specific period of time.
- Reduces Confusion & Helps avoid Costly Tribunal Cases: In the absence of written terms, implied terms and conditions can exist, therefore employers can rely upon custom and practice. Where custom and practice exists problems can occur when the employer and the employee disagree with regards to what the terms are. In the case of New Cityview Press Ltd. -v- Breslin, there was a dispute regarding bonus payments. As no written policies existed outlining bonus payments, the judge stated that in order to establish a “fair, reasonable, just approach” he had to find in favour of the employees.
- Signed Contracts are Best: The employer should keep a copy of the contract, signed by both parties on file. A signed contract acts as proof that the employee has received their terms and conditions. In the case of Kerry Foods -v- Donnegan, the employer argued that contracts of employment existed. However, as there was no evidence that the employee had received the contract the judge found in favour of the employee.
Contracts of employment are very important legal documents, in order to ensure comprehensive protection, it is always advisable that employers seek external assistance. External assistance does not have to mean costly legal fees. Bright Contracts provides fully inclusive, professionally drafted documentation for just €149 + VAT.
To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here
Can Employers Set Compulsory Retirement Ages
There is no statutory retirement age in Ireland. Up until recently the default position for many employers was to retire employees once they turned 65, however this may no longer be possible.
Legislation came into force in Ireland in 2016 which stated that compulsory retirement ages may only be set where they can be objectively justified. This means that employers can compulsorily retire an employee if they are able to justify their course of action.
Failure to have appropriate justification in place could leave employers open to an age discrimination claim.
Setting Objective Justification
What is an objective justification will very much depend on the role and the Company, however as guidance, some of the reasons which have been accepted by the courts in the past include;
- Health & Safety: It may be justifiable to have mandatory retirement ages for employees who work in jobs which are physically demanding.
- Succession Planning and establishing an age balance in the workforce: Employers need to plan for the future in order to ensure that they have the right people in place to support the business into the future. Mandatory retirement ages can promote this.
- Encourage the recruitment and promotion of younger people: It has been successfully argued that mandatory retirement ages encourage employees to stay with, and progress within an organization and to motivate employees by the prospect of being promoted into more senior roles.
Employers may also wish to consider the State Pension age when looking at retirement ages. In January 2014 the State Pension age was increased from 65 to 66. This will be further increased to 67 by 2021 and 68 by 2028. If an employee is retired and is not immediately eligible for the State Pension this could lead to the company’s retirement age being challenged.
Fixed Term Contracts
Fixed term contracts are frequently used where an employee reaches retirement age but wishes to continue working. Under the new legislation, if offering a fixed term contract after retirement employers will also have to show objective justification for the termination of employment at the point of expiry of the fixed term contract.
What do employers need to do?
- Employers are well advised to review their contracts of employment.
- If a retirement age is included employers should ensure that there is objective justification for including that retirement age. Best practice suggests having more than one objective justification for a retirement age, which will help build a strong defence in any age discrimination claims.
- Employers should reserve the right to review and amend the retirement age based on business needs.
Bright Contracts - Employment Contracts and Handbooks
How would you deal with transfer requests from employees?
The Workplace Relations Commission (WRC) has ordered an employer to pay an employee €2,500 for what it called “an undue delay” in dealing with her request for a transfer.
The employee, a paramedic, applied for a transfer 3 months before returning from maternity leave. However, the woman informed the WRC hearing she was upset and shocked by her employer’s handling of her situation. The employee felt her employer denied her fair process by taking almost 7 months to deal with her grievance.
The WRC stated that the delay was unreasonable and unfair and caused the employee undue stress. However, the adjudication officer also stated that he could not recommend granting the paramedic a transfer to her own are as no vacancy currently exists. He recommended the woman accept her place on the transfer panel on the same basis as any other employee.
The officer stated: “In the circumstances where there is no available position, vacancy or work available in the area to which the complainant seeks to transfer, it is not feasible or possible for me to recommend that she be so transferred and I must reject that element of the claim.”
The lesson for employers here is to deal with all employee requests and issues in a timely manner. Even if you are unable to accommodate an employee's request, communicate with the employee and keep them informed at all stages of the process.
Bright Contracts - Employment Contracts and Handbooks
Parental Leave & Force Majeure
Following on from our previous posts on Protected Leave, we will now look at Parental Leave and Force Majeure.
Parental Leave has been available in Ireland since 1998 having been implemented to allow working parents take time off to look after their children.
Parental leave is available to all workers with 1 years’ service, exceptions can be made where the child is near the age threshold. Under the legislation each parent is entitled to 18 weeks’ parental leave on the birth of a child / placement of a child for adoption. The leave may be taken up until the child’s 8th birthday, or 16th if the child has a long term illness.
Parental leave is unpaid leave, employers are not required to pay employees on paternity leave, nor is there a social welfare payment, equivalent to maternity pay, for paternity leave. However, as with all protected leave, the employee still retains their rights to accrual of normal entitlements, i.e. holidays, public holidays, etc.
With regard to taking parental leave, the rules are quite flexible. Legislation states that the leave may be taken in one continuous period or in two separate blocks of a minimum of 6 weeks. It is also stated where an employee has more than one child they may take a maximum of 18 weeks in any 12 month period. However, employers are free to agree alternative arrangements in relation to all of the above depending on their own business needs.
Should an employer receive a request for parental leave they may postpone the request for up to 6 months, based on business needs, e.g. work cover or seasonal work loads. Normally only one postponement is permitted.
Parental leave is not transferable between parents. However, if both parents are employed by the same employer, the employer may agree for up to 14 weeks of the leave to be transferred between parents.
Force Majeure is paid leave that can only be used for urgent family reasons whereby the presence of the employee is immediately required. It may be taken in respect of immediate family members only, i.e. child, parent, sibling, grandparent.
“Force Majeure” (greater force) is paid leave of up to 3 days in any 12 month period or up to 5 days in 36 months which can be taken for family emergencies.
It is not an annual entitlement so therefore should not be treated as part of an employee’s annual leave calculation.
Bright Contracts has a Parental Leave and Force Majeure policy built into the software, however, this can be reviewed and adjusted accordingly to suit your own companies’ requirements if necessary.
Bright Contracts - Employment Contracts and Handbooks
Paternity Leave - What you need to know
As has been much publicised in the news of late, paternity leave is just around the corner.
We’ve summed up the key facts to help employers get their head around the new legislation:
- From 1 September two weeks paid paternity leave will be available in Ireland.
- The leave will be available to new fathers, partners in same sex marriages, as well as self-employed workers.
- Parents may request to take the leave at any time within 26 weeks of the child’s birth / placement for adoption.
Payment
- Paternity leave will be paid at the same rate as statutory maternity pay, currently set at €230 per week. In order to be eligible to receive this payment certain PRSI criteria must be met.
- As with maternity pay, there is no obligation on employers to make any top up payments for paternity leave. However, employers who already top-up maternity pay, will, from an equality perspective, need to consider offering a similar scheme for those on paternity leave.
Employees Requesting Paternity Leave
- Employees wishing to take paternity leave must give 4 weeks written notice.
- Employers should also request written medical confirmation on the baby’s due date, or date of birth if the application is received once the baby has been born.
- The employee should present you with a PB2 form to sign, similar to a MB10 form for maternity.
What employers need to do
- Introduce or review any existing paternity leave policy. A good policy will include details on how an employee should request paternity leave and details of payments during paternity leave. A clear policy will ensure both management and employees know the entitlements and how paternity leave should be managed.
- Employers should take this opportunity to review all family friendly policies, including maternity, adoption, and parental leave policies, to ensure they are up-to-date and consistent.
Bright Contracts will be releasing a new Paternity Leave policy at the end of the month to coincide with the legislation coming into force.
We will also be holding a FREE webinar on Paternity Leave and Family Friendly Policies on 27 September. For further information click here.
Bright Contracts - Employment Contracts and Handbooks
7 Employment Myths
We've clarified the truth on some of the most common employment law myths.
Myth 1: No employment contract exists if there is nothing in writing or signed.
Fact: Even verbal agreements are binding. An employment contract exists from the moment a job offer is accepted. Legally, an employer should within two months of an employee starting work, issue a written statement of terms and conditions of employment. Even if this document has never been issued a binding employment contract still exists. The written statement does not have to be signed so if an employer issues one but the employee does not sign it, the employer and the employee are still bound by the terms stated in it.
Myth 2: Holidays start to accrue once the probationary period is successfully completed.
Fact: Holidays start to accrue from the first day an employee is employed. The existence of a probationary period will not affect a new employee's length of service or statutory employment rights.
Myth 3: Employees can say when they take their holidays.
Fact: Employees requests for annual leave can be refused by an employer for business reasons. However, when considering leave requests employers should also bear in mind the employees family responsibilities and entitlement to rest periods. Based on business needs employers can specify certain periods where annual leave can or cannot be taken. Employers should consult with employees at least one month before any holidays are due to commence.
Employers are advised to agree with employees how and when employees should give notice of annual leave. But in the absence of any agreement it is recommended that the notice period should be at least twice the period of leave to be taken. So for example if a weeks’ leave is requested then two weeks’ notice should be given.
Myth 4: Employees on long-term sick leave should be left alone.
Fact: Although employers should not put undue pressure on employees who are on long-term sick leave, they are entitled to find out more information about the illness with the aim of establishing when and how the employee could return to work. This would include consultation with the employee and, with permission, writing to the employee's GP (and any specialist) to find out about the employee's condition, the prognosis and whether there is anything the employer can do to help facilitate their return (such as reduced hours).
Myth 5: If an employee is on maternity leave it’s illegal for an employer to contact her about any work-related issues.
Fact: Employers can and should keep in contact with employees on maternity leave. It’s good practice to agree beforehand how this contact should take place and to be sensitive to an employee’s circumstances and preferences. You could agree when is best to telephone, write letters or email employees about workplace developments.
Myth 6: An employee’s continuous service resets after moving roles within a company.
Fact: Moving roles within the same company does not ‘reset’ an employee’s continuous service. Although after the move the employee may be in probation, this does not mean that their previous service for the same employer can be discounted.
Myth 7: A worker cannot be accompanied by a trade union representative at formal meetings unless the employer recognises the union.
Fact: Workers have a statutory right to be accompanied at formal discipline and grievance hearings by a trade union official, and there are no requirements regarding whether the specific union has been recognised by the employer or not. Alternatively, a worker can be accompanied by a colleague.
Bright Contracts - Employment Contracts and Handbooks
How to Recruit for SMEs
68% of SMEs feel they have average, or less than average, recruitment skills, according to recent research completed by The Irish Small and Medium Enterprise Association (ISME). Furthermore, 62% feel they cannot compete with multinationals when recruiting skilled staff, a worrying statistic considering 70% of the private workforce are employed in SMEs.
With the above in mind and considering how important staff are to just about everything a business does, we’ve come up with 6 tips to help SMEs recruit the best talent.
Know exactly who and what you are looking for
Your first step will be to create a clear job description and person specification, listing the skills and knowledge that you require. A good job description will serve as the basis for interviewing candidates, enabling you to assess each candidate against predetermined criteria.
Advertise Smartly
Utilise a number of different advertising avenues to maximize response and diversity for your business.
- Maximise social media; post your job on LinkedIn, Facebook, Twitter, Instagram or other social media. Illustrating the popularity of social media for recruitment, in 2015 50% of recruitment searches in the UK were carried out on mobile devices.
- Share your advert with local business groups or professional bodies.
- Create a “working with us” section on your website highlighting all the positives of working with you. This will not only be a great place to tell the story of your business as well as to post vacancy information.
Get your staff involved
Involving existing employees in the recruitment process will be a great way to include staff and boost morale.
- Ask them for suggestions on where best to advertise.
- Ask if they can recommend anyone. Perhaps consider offering a “Referral Bonus” if they refer a successful candidate who then passes their probation.
- Ask more senior staff members to get involved in the interview process.
Become a place people want to work
Building your employer brand is key to becoming an employer of choice and a magnet for talent. It is very important to build a positive image to your customers, existing employees, peers and competitors. They will in turn become advocates whose recommendations steer talented individuals to you.
Key areas that can help becoming an employer of choice will include; flexibility, work-life balance, involvement, staff responsibility, promotion, recognition, and reward.
Promote being Small
Multinational corporations may have the financial backing to offer greater salaries or packages. However, research consistently shows that remuneration is not the only driver for employees.
There are many advantages of being small, SMEs need to make small a selling point.
As a small employer, you may be able to offer:
- flexibility with a lot less red tape
- leniency around working times and locations
- employees can get involved in many projects, often above and beyond their job description, enabling employees to rapidly acquire new skills
- entrepreneurial ideas are encouraged and employees can initiate projects and drive innovation working with individuals at all levels of the company
- a family-like environment, where the company truly cares about employees, their job satisfaction, as well as their personal wellbeing.
Have a consistent approach
A clear, consistent approach to recruitment will ensure your company has a fair process that focuses on finding and attracting the right candidate for your businesses.
- Have predetermined interview questions and ask them of all candidates
- Interview notes should be taken and retained for a minimum of 12 months
- Always check references
- Hire for behavior and train for skills. You can’t change someone’s attitude, but you can develop their skills.
Bright Contracts - Employment Contracts and Handbooks
Protected Leave - Maternity Leave
In this article we look at Maternity Leave in Ireland, continuing with our series of blogs on Protected Leave.
The Maternity Protection Acts 1994-2004 govern maternity leave, which comprises of 26 weeks paid benefit from the Department of Social Protection, provided the employee has made the required number of PRSI contributions. It also allows for a further optional 16 weeks extension of maternity which is unpaid.
There is no obligation on an employer to pay an employee whilst they are on maternity leave, but at their own discretion employers may pay additional Maternity Pay. It is advisable to include any details regarding payment or non-payment while on Maternity Leave in detail in a Maternity Leave/Pay section in the company handbook.
Under the legislation at least 2 weeks have to be taken before the end of the week of the baby's expected birth and at least 4 weeks after. Generally, employees take 2 weeks before the birth and the remaining weeks after. If the employee qualifies for Maternity Benefit at least 2 and no more than 16 weeks must be taken before the end of the week the baby is due.
From an EU comparison, in terms of duration, our maternity leave is relatively long with a total of 42 weeks leave, however with 26 paid at only 230e and the rest unpaid we are the only country in the EU with no period of Well-Paid Leave (well-paid is defined as at least 2/3’s of a salary).
Managing Maternity in the Workplace
Employees are obliged to inform their employer about a pregnancy as soon as possible. To ensure a healthy and safe work environment for a pregnant employee, employers should ensure to have pregnancy risk assessment included as part of their health and safety assessment.
During the employee’s pregnancy she will be entitled to paid time off to attend ante-natal appointments.
The employee will fill out a Form MB10 and the employer will be requested to sign and stamp it so the employee can apply for payment of Maternity benefit from the Dept. of Social Protection. If the employee chooses to take the additional 16 weeks unpaid Maternity Leave the employer must complete an “Application for maternity leave credits” form and send to the department.
Maternity leave is classed as Protective Leave, as such women on maternity leave will be entitled to:
- their full annual leave entitlement
- any bank holidays that fall during their maternity leave
- the right to return to work
Being listed as a protected characteristic, incorrect management of pregnancy and maternity leave could leave employers open to discrimination claims. To ensure your business is managing maternity correctly, employers are advised to have a clear maternity leave policy in place.
Bright Contracts - Employment Contracts and Handbooks
Bright Contracts IPU Partnership
Bright Contracts is delighted to have partnered with the Irish Pharmacy Union (IPU) and to have created a unique, tailored solution for IPU members.
Partnering with the IPU is very exciting and the combined result means that IPU members have exclusive access to watertight customised policies and procedures that set consistently high standards across IPU members.
Having launched the offering in February 2016, the response from IPU members has been extremely positive. It is extremely gratifying to hear members comment on the detailed, relevant content, as well as the functionality of the software.
What Bright Contracts offers IPU Members
- Company and staff policies and procedures that have been written for pharmacies.
- Sample job descriptions, include Pharmacy Technician and Supervising Pharmacist.
- Legally compliant employment contracts for all staff.
- All content approved and recommended by the IPU.
Benefits for IPU members
- Peace of mind regarding compliance with ever-changing employment law.
- No need to worry about keeping employee documentation up-to-date with employment law changes, Bright Contracts automatically updates users with employment law and best practice changes.
- Full flexibility for individual pharmacists to amend content to suit their own pharmacy.
- A low cost solution with no long term contracts, Bright Contracts offers a solution to expensive outsourcing providers.
- Free telephone and email support means users never have to worry about any software issues, the Bright Contracts team will always be on hand to help.
Availing of the Service
IPU members can access to a FREE Trial.
To access the software members first require a password, which is available from the IPU Training Department. The IPU can also provide members with a full “Getting Started Guide”.
On receipt of the password, the software can be downloaded from the Bright Contracts website under the TRY/BUY page.
Based on the success of the project so far, we very much look forward to working with the IPU into the future.
The Bright Contract’s industry customisation service is available to professional bodies or groups looking to set professionally high standards as well as offer value to their members. For further information call the Bright Contracts Team on 01 8499 699.
Bright Contracts - Employment Contracts and Handbooks
