Euro 2016 - Avoid having to issue a workplace red card
Euro 2016 starts this Friday 10 June, with France v Romania kicking off proceedings in Stade de France, Paris. Whether your employees are die-hard football fans or fare weather followers, the Euros are more than likely going to be a key water cooler conversation over the next few weeks.
Unfortunately for employers, major sporting events pose a management challenge as employees look to support their team, regardless of the day, or time of day.
On a positive note, getting the management of sporting events, such as the Euros, right can be a great way to inject fun in the workplace and increase employee morale.
Below we look at some of the challenges and how best to manage them.
The Management Challenges
Leave Requests
Whether it is multiple holiday requests or employees looking for time off to watch the game, the chances are employers will have increased leave requests during this time. First and foremost, employers will need to ensure business demands can be met, however where possible employers are advised to take a flexible approach to such requests:
- can you be flexible with holiday requests
- can shift swaps be permitted
- is it possible to allow staff to make up the time before or after the football match?
Whatever process you follow, be it first come first served or pulling names out of a hat, it must be fair and consistently applied in a non-discriminatory fashion.
Sickness Absence
Sickness absence in the workplace often increases during sporting events. Employers are advised to monitor attendance records during the period, including reviewing sickness levels or late attendance due to post match celebrations. As with any period of unauthorised absences, unexplained or questionable attendance could result in formal disciplinary proceedings. Carrying out a return-to-work interview is always a recommended approach to managing short-term absences and should form part of any sickness absence policy.
Watching in Work
You may decide to screen the games in the workplace. If going down this route, it is advisable to again set some ground rules, such as; the employee must first obtain their manager’s permission to watch the game and that they understand that their work must not be compromised by watching the game.
It is also worth considering whether or not you will permit employees to watch the Euros on the internet. If employees are not allowed to watch the Euros on the internet during work hours it should be made clear to them that if they are found doing so, it will be a disciplinary matter. Be careful however, if you intend to monitor internet usage then this should be made clear to employees. Covert monitoring should not be conducted, so be sure to check your internet policies.
So to employers who wish to see the Euros pass off smoothly without having to issue any of their own red cards, the message is, be prepared. Agree an approach before the tournament begins, clearly communicate it to staff, and apply it consistently.
Enjoy the football.
Bright Contracts - Employment Contracts and Handbooks
Paternity Leave - employers are you prepared?
Over the next number of weeks we are going to look at Working Time Protected Leave legislation in Ireland, this legislation is in place to protect employees and includes leave such as; Maternity Leave, Paternity Leave, Adoption Leave, Carer’s Leave, Parental Leave & Force Majeure Leave. Today we will start with Paternity Leave.
In last year’s budget, the Fine Gael-Labour coalition had agreed to legislate to allow for fathers/partners to take two weeks’ paid paternal leave.
The legislation will allow fathers to take the leave at any stage within 26 weeks of the birth or placement of the child in adoption situations.
The new legislation is due to come into force in September this year and when it does it will mean that for the first time in history, the role of fathers in postnatal care will be formally recognized on our little island. From September, every employer in Ireland must offer new fathers/partners two weeks’ paternity leave following the birth of a child. Statutory paternity pay is due to be set at €230 per week, which is in line with current maternity pay. As with the maternity pay, employers are under no obligation to pay the employee while they are out on Paternity Leave. Employers should however, update their company handbook to include a policy for the new Paternity Leave when it does come in.
Great though it is to finally have some leave in place for fathers, Ireland still has a long way to go before reaching the dizzy heights of paternity leave Scandinavian-style, where the model is usually one of paid parental leave to be shared between both parents, with some non-transferable months. In Sweden for example, parents can take up to sixteen months of leave, paid up to 80% of salary (with a cap of €4,000 per month). Our closest neighbours in the UK allow 2 weeks paid Paternity Leave but have also introduced “Shared Parental Leave” of up to 50 weeks after the birth/placement of a child which can be shared between both parents.
In comparison, Ireland comes close to the bottom of the European table in terms of family leave, so Paternity Leave, even at just 2 weeks is very welcome.
Those countries that embrace paternity leave and shared parental leave are recognising;
- the value of both parents in the first year of a child's life
- the role and importance of working mothers.
The introduction of paid paternity leave in Ireland might be over due, but is certainly a positive step. Employers are well advised to embrace the change and actively support new parents.
Bright Contracts - Employment Contracts and Handbooks
Annual Leave - Common Questions Answered
June is just around the corner and although the weather might not be totally cooperating, summer is here. For employers, this means managing holiday leave requests.
At Thesaurus Software, processing annual leave is one of the most common queries we receive from customers. This is in line with the Workplace Relations Commission’s stat, that in 2014 the majority of calls received to their helpline were in relation to the Organisation of Working Time.
The above, coupled with the fact that there have been a number of recent legislative changes in the area, means that employers, quite rightly, will have queries on the matter.
Common queries include:
Who is entitled to Annual Leave?
All employees earn holiday entitlements from time worked. There is no qualifying period. Employees on maternity leave accrue annual leave in the exact same way as they would if they are working. This also applies to all forms of protective leave including parental leave, paternity leave, carers leave, and annual leave.
Are employees on sick leave entitled to annual leave?
New legislation has ruled that as of 1 August 2015, employees on certified sick leave, normally long-term sick leave, will accrue annual leave. Any leave accrued in this manner must be used within 15 months of the end of the leave year in which it was accrued. Further information on this can be found here. Employees on uncertified sick leave will not accrue annual leave.
What is included in holiday pay calculations?
There have been a number of European cases on this subject in recent months. The courts have thought us that as a general rule of thumb when calculating holiday pay, employees should in no way be disadvantaged as a result of taking annual leave. The EU Court of Justice has ruled that holiday pay should not be based on basic pay alone.
Factors to consider:
- Any regular shift allowance should be included.
- Commission: if there is a regular commission structure in place this should be included in holiday pay calculations.
- Overtime: If the employment contract stipulates that an employee must work a set amount of overtime each week then this is included in pay calculations. Regularly worked overtime, although not necessarily included in the contract of employment, should also be included. Irregular overtime should not be included.
How to calculate holiday entitlement for irregular workers?
Holiday entitlement for workers with irregular hours should be calculated using an average of the hours worked in the previous 13 weeks.
Can an employer reject a holiday request?
Yes, employers have the right to specify when holidays should be taken. Requests for annual leave can be rejected based on the needs of the business. Equally, employers can specify when holidays should be taken, for example during periods of business closure.
In order to avoid confusion and conflict, employers are well advised to have clear annual leave policies and to ensure all staff are well aware of the protocols when it comes to leave.
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Addressing Persistent Employee Lateness
Every once in awhile there will be a genuine reason for an employee to be late for work; poor weather conditions, traffic problems, or even honestly sleeping in. If these occurrences are rare most employers can be understanding and accommodations can be made.
However, persistent lateness is another matter. It is rude, unacceptable, and totally disruptive to businesses and other employees.
The question is, how to manage it before the situation gets out of hand?
An Attendance & Punctuality Policy
Having a well drafted Attendance and Punctuality Policy as part of the staff handbook will be key to effectively managing persistent lateness. Such a policy should:
- Emphasise the importance of being punctual and having good time keeping
- Specify what an employee should do if they are going to be late, e.g. phone their line manager explaining the situation and giving an expected arrival time
- Clarify that employees will be expected to make up the lost working time at a time suitable to the Company
- Explain that where time cannot be made up, the Company will be entitled to deduct pay for the time not worked.
- State the persistent lateness and/or failure to comply with the Company procedure will be addressed through the disciplinary procedure.
Employers are advised to review their staff handbook to ensure it includes an up-to-date attendance policy and that it is fairly and consistently applied.
Bright Contracts - Employment Contracts and Handbooks
Irish Workplace Fatalities above EU Average
The past 2 months have seen the deaths of at least 5 people due to accidents in the workplace. Ireland is slightly above the EU average in terms of the number of fatal accidents at work in a year, according to European Union's statistics agency, Eurostat. The statistics show that the rate of workplace deaths in Ireland was just over four per 100,000 people employed in 2012. The family farm was the most dangerous workplace, with fatalities in the agricultural sector accounting for 30 deaths in 2014, compared to 16 the previous year, an increase of 87pc.
The question therefore is: what can be done to ensure safety compliance? The Safety, Health, and Welfare at Work Acts 2005 and 2010 set out health and safety responsibilities for both employers and employees.
Employers' duties
The employer has a duty to ensure the employees’ safety, health and welfare at work as far as is reasonably practicable. In order to prevent workplace injuries and ill health the employer is required, among other things, to:
- Provide and maintain a safe workplace which uses safe plant and equipment
- Prevent risks from use of any article or substance and from exposure to physical agents, noise and vibration
- Prevent any improper conduct or behavior likely to put the safety, health and welfare of employees at risk
- Provide instruction and training to employees on health and safety • Provide protective clothing and equipment to employees
- Appointing a competent person as the organisation’s Safety Officer
Employees’ duties
The duties of employees while at work include:
- To take reasonable care to protect the health and safety of themselves and of other people in the workplace
- Not to engage in improper behavior that will endanger themselves or others
- Not to be under the influence of drink or drugs in the workplace
- To undergo any reasonable medical or other assessment if requested to do so by the employer
- To report any defects in the place of work or equipment which might be a danger to health and safety
Bright Contracts - Employment Contracts and Handbooks
Social Media (Part 4) - Cases
Over the past number of weeks we have posted a series of blogs on social media and the impact of certain areas for employers and the workplace. We’ll turn now to social media related cases that are coming through the courts and consider the decisions passed down
Fairness of Dismissal depends on circumstances:
- Case One = Unfair Dismissal
An employee was dismissed for posting insulting comments on Facebook regarding colleagues. The dismissal was held to be unfair on the basis that the comments were relatively minor, were made outside working hours and did not name colleagues specifically. Although a UK case it is a good indication of the thought process likely to be followed in Ireland. Whitham -v- Club 24 t/a Ventura
- Case Two = Fair Dismissal
In this case the employee had posted derogatory comments on Facebook regarding her employer. A key factor in the Irish EAT's decision that this was a fair dismissal was the fact that the employer was specifically named in the posts. O'Mahoney -v- PJF Insurances
The Importance of Robust Social Media Policies
In this case the employee was held to have been fairly dismissed for posting derogatory comments regarding customers on Facebook. The staff handbook expressly stated that acts committed outside work that bring the employer into disrepute would constitute misconduct and that the company reserved the right to take disciplinary action. Preece -v- Wetherspoons
The Importance of Consistently Applying a Social Media Policy
The employee was dismissed for forwarding pornographic material. He maintained he was only forwarding material passed onto him by others in the company, who had not been dismissed and he only engaged in this activity to disguise his homosexuality. Through the EAT he won reinstatement. The respondent appealed the decision, firstly through the Circuit Court and then in the High Court. The High Court upheld the decision and awarded compensation of arrears of wages, for a variety of reasons, one being the fact the employer was aware that sending inappropriate emails was a rising trend but had not implemented a detailed social media policy. It concluded that the bank ought to have notified all employees of the issue with sending such emails and the likely sanctions that could follow, up to and including dismissal, particularly if a zero tolerance policy was to apply. Reilly -v- Bank of Ireland
Bright Contracts - Employment Contracts and Handbooks
WRC receives 5,200 requests for Employment Investigation and Adjudication
Since its inception on 1 October 2015, the Workplace Relations Commission (WRC) has already received 5,200 requests for employment rights investigations or adjudication.
The Director General of the WRC, Kieran Mulvey has referred to the situation currently facing the WRC as an “industrial relations emergency department”.
One need only to look at daily news feeds for confirmation that there is growing unrest in terms of pay and reward across the country. First there was the Luas debacle, then Dublin Bus drivers, followed by DART drivers. The private sector doesn’t appear to be exempt either with Tesco and manufacturing firm Medtronic only two of a whole raft of companies facing some form of pay bargaining.
This upsurge in volatility comes as employees who feel they have legitimate frustrations look to gain back what they lost during the downturn.
The WRC faces a challenging few months ahead. Cool heads will be needed for effective consultation that does not threaten our recovering and fragile economy.
Bright Contracts - Employment Contracts and Handbooks
Social Media (part 3)- Discipline/Dismissals
There are a wide variety of situations whereby employee behaviour on-line can give rise to disquiet in the workplace. Poorly managed social media use can result in disputes can include:
- Excessive use of social media platforms during working hours, whether on work or personal devices
- Comments, photographs, or videos posted online which could cause irrefutable reputational damage to a business
- Behaviour that could be considered as cyber-bulling or harassment, particularly if activity discriminates against a protected characteristic such as religion, race, gender or age.
All of the above can have a significant effect on a business, and it is most certainly in the interests of any employer to prevent such activity from occurring. The question however is, how?
Discipline / Dismissal
There is limited case law in this jurisdiction in Ireland but there are a few principles that employers should take into account before sanctioning an employee for internet, social media activity.
- How did it come to the employer’s attention?
- As a result of unlawful surveillance, which may be considered an invasion of privacy
- If the material has/could cause actual damage or bring the business into disrepute?
- If there is a policy which is clear in covering the activity and if it has been communicated to staff?
- Has the activity taken place in the public or private domain?
While the use and abuse of the internet and social media can sometimes justify employer dismissal and disciplinary action, it is vitally important to have good policies in place. Without appropriate policies setting out the boundaries of what an employee can and cannot do on social media, it can be extremely difficult to discipline an employee for posting items or content with which an employer may take issue, particularly for breaches of employment law and or equality acts.
What should the Policy Contain?
A social media policy should state what type and level of social media use and behaviour is acceptable and unacceptable. It should be made clear that disciplinary action may be taken as a result of inappropriate social media use on private sites and for activities which take place outside working hours, if they impact on the workplace. The business interest or value which is sought to be protected should be expressly identified in the policy so as to provide maximum justification in cases of sanction or dismissal.
As this is a relatively new area for employment law in Ireland it is difficult to tell how Tribunals, Adjudicators may or may not deal with discipline and dismissal cases, but what we have seen from cases that have been before the courts so far is that it is definitely in the best interest of employers to have some form of social media policy then no social media policy!
Next week we’ll cover recent social media cases that have come before the courts and we’ll examine the position that Tribunals appear to be taking.
Bright Contracts has a fully comprehensive social media policy built into the software.
Bright Contracts - Employment Contracts and Handbooks
Social Media Monitoring
Social Media and employment law is a huge area of interest at the moment, given the current and ever-changing online environment we work and live in. It is advisable that employers make themselves aware of the different aspects of social media and the role it can play regarding employment law in the workplace. Having a Social Media Policy in place is hugely beneficial for employers today.
Monitoring & Surveillance
With the advancement of technology, employers can now monitor employees every move as well as internet usage and or e-mail communications quite easily, but it is not clear under the present law whether or not this could be seen as a breach of privacy and the Data Protection Acts, so employers need to be careful.
Social media can come into play in connection with surveillance of workers and the monitoring of employee e-mails and cyber communications. If an employer has in place a policy warning employees that all communications on devices, supplied by the employer or personal, could and would be monitored then it is being made clear to employees that misuse of internet is prohibited. Also a policy needs to be in place to let employees know if monitored CCTV is in operation in the premises or if there is security access, whereby employees need to swipe their personal ID card to gain entry or exit the building, canteen, rest rooms, etc.
Employer policies and actions in relation to monitoring and surveillance of employees must be clear and should only be carried out to give effect to the stated purpose. Monitoring and surveillance in Irish Law in general is governed by the Data Protection Act 1988, as amended in 2003. If an employer wishes to set up monitoring and use the data, it should comply with the principles in this legislation.
Bright Contracts - Employment Contracts and Handbooks
Au Pair Awarded €9,000
Yesterday saw a landmark judgement as an Irish family was ordered to pay a Spanish au pair more than €9,000.
Ruling in favour of the au pair, the Workplace Relations Commission (WRC) found the family breached several employment laws, including:
- Failure to pay minimum wage
- Failure to issue a contract of employment
- Failure to provide correct annual leave
The au pair was paid €100 a week plus board for between 30 and 60 hours of work per week during her employment with the family.
Au pairing in Ireland has increased dramatically in the last five years. According to research conducted by the Migrant Rights Centre of Ireland (MRCI), more than 20,000 Irish households are employing au pairs to look after children and clean homes, with the average au pair paid just € 100 for a 40-hour working week.
Ireland has no legal framework for au pairs and nothing that stipulates that they are exempt from employment regulations. Some Irish agencies tend to categorise au pairing as a cultural exchange programme where the foreign worker lives with a host family to experience a new culture and learn English. However, the validity of this argument is very much under scrutiny in light of this ruling.
Bright Contracts - Employment Contracts and Handbooks
