Using Social Media in your Recruitment Process
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.
Over the coming weeks we are going to look at 3 areas of the employment relationship where social media can play a role: recruitment, monitoring and surveillance and discipline/dismissal.
Recruitment:
Employers generally need to perform background searches on potential new employees, however using social media sites to gain information can be a breach of Employment Equality legislation - if it is found that the employer based their decision to hire or not hire a person because of information gathered online. Asking an interviewee about their family or marital status, age, sexual orientation or if they have or intend to have children and so on is strictly prohibited under employment law so if an employer decides to do an informal check on FaceBook or LinkedIn of a potential new employee this could be construed as a violation of the Employment Equality Acts under one or more of the nine grounds of discrimination.
Also information gathered may not be entirely accurate or true and could result in the employer rejecting a candidate who would otherwise be highly suitable for the role which is being advertised and could lead to increased recruitment time and costs. If searches are not conducted within the boundaries of the law this can open the employer to risks of legal action by a claimant.
Certain protections can be put in place and the first step should be to include a Social Media Policy in the Company Handbook which establishes the rules for recruitment purposes as well as others which we will look at in the coming weeks.
Bright Contracts has a fully comprehensive policy built into the software specifically for Social Media.
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Public Holidays
March this year will include two public holidays, St Patrick's Day and Easter Monday, so how do employers correctly account for public holidays for their employee's?
Under the Organisation of Working Time Act 1997, all employees, regardless of their employment status, are entitled to some form of payment for a public holiday.
Full-time employees who qualify for public holiday benefit will be entitled to one of the following:
- A paid day off on the public holiday
- An additional day of annual leave
- An additional day's pay
- A paid day off within a month of the public holiday
Part-time employees can qualify for the full entitlement as listed above if they have worked 40 hours or more in the 5 weeks preceding the public holiday.
If a part-time employee does not normally work on the day the Public holiday falls, they can receive one-fifth of their normal weekly rate of pay as payment.
There are 9 Public Holidays in the Irish Calendar:
• New Year's Day (1st January)
• St. Patrick's Day (17th March)
• Easter Monday
• First Monday in May, June & August
• Last Monday in October
• Christmas Day (25th December)
• St. Stephen's Day (26th December)
A public holiday is sometimes called a bank holiday, but this is incorrect. Bank holidays are not provided for within the legislation as paid time off. For instance, Good Friday is not a public holiday and therefore there is no automatic or statutory entitlement to time off work on that day.
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Notice Periods - Frequent Questions Answered
Termination of employment can be a difficult stage in any employment relationship, regardless of which party is making the decision to terminate. Notice periods can often be central to misunderstandings and disagreements. To help employers navigate these murky waters, we’ve put together answers to some frequent questions we receive:
How long should a Notice Period be?
The Minimum Notice and Terms of Employment Acts 1973 to 2001, sets out minimum statutory notice periods, which are:
From the Employee to the Employer
- Less than 13 weeks service: Nil
- 13 weeks service or more: 1 week
From the Employer to the Employee
- Less than 13 weeks service: Nil
- 13 weeks to 2 years: one week
- 2 years to 5 years: two weeks
- 5 years to 10 years: four weeks
- 10 years to 15 years: six weeks
- 15+ years: 8 weeks
However, employers are free to set notice periods that are in excess of the statutory minimum, once they are agreed in the contract of employment.
Setting slightly longer notice periods can protect an employer and your business. For example, under legislation, if a long serving, key employee wishes to leave your employment they only need to give you one weeks’ notice. Could your company cope with that? Would one week be long enough to have a full and thorough handover? Would one week be long enough to find a suitable replacement for that person? Experience tells us that the answer to the above questions is more often than not, NO, one week would not be enough. Having an increased notice period gives employers the opportunity to plan for the employee’s departure. What a reasonable notice period is will depend on a number of factors including, length of service, job role, experience and custom and practice.
Does an Employee Have to Work their Notice Period?
In some situations an employer may not want the employee to work out their notice period. There are a number of options open to an employer in this scenario:
- Pay In Lieu of Notice (PILON): it is advisable to include a PILON clause in the contract of employment as it will allow employers to pay the employee their entire notice pay in a lump sum and not have the employee return to work.
- Garden Leave: where a garden leave clause has been included in the contract of employment, an employer can request that an individual stay away from work during their notice period, however they will remain on the company payroll and remain bound by their terms and conditions of employment for the duration of their notice period. Whilst on garden leave an employee may not work for a competitor.
- Serious misconduct: in cases of serious misconduct a contract may be terminated without notice due, however fair and correct disciplinary procedures must have been followed.
Does an employer have to pay an employee if they refuse to work their notice period?
If an employee fails to show up for work during their notice period the employer is not obliged to pay them.
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A New Era for EROs
Following their statutory cessation by the High Court in July 2011, Employment Regulation Orders (ERO's) for certain industries are to be re-established. Starting firstly with the reinstatement of ERO's for the security and contract cleaning industries, bringing improved rates of pay for workers, with new basic hourly rates of €10.75 and €9.75 respectively. The new ERO's, which took effect from October 1st 2015, also set enhanced rates for overtime and other improved T&C's for employees in these sectors. Sounds simple enough, an increase to the hourly rate and the overtime. But what else is there that you as an employer need to know?
Let's look at the security industry ERO.
Overtime: the ERO on the security industry sets an overtime rate for all hours worked in excess of an average 48 hours per week at a rate of time and a half. The ERO also sets out conditions of employment covering issues such Annual Leave, Sick Pay, Training and Hours of Work. And it is here that there are some anomaly's, employers may not be aware of.
A Death in Service Benefit of one year's basic pay will be payable to any employee employed with the company more than 6 months and regardless of whether they were working at the time of death.
A Personal Attack Benefit will apply after 6 months service to all employees covered by the ERO, who are attacked during the course of duty, resulting in an injury. A minimum of 10 and a maximum of 26 weeks basic pay, minus Social Welfare payment could be payable to your employee(s) if they are injured on the job.
Sick Pay Benefit payable of €120 per week for no less than 3 weeks and no more than 5 for employees with 2 or more years service, on top of the Department of Social Protection payment they may be in receipt of.
There are just under 20,000 "security operative" workers covered by the new ERO.
Employers affected are now obliged to pay wage rates and provide conditions of employment not less favourable than those prescribed. Any breaches of the ERO may be referred to the Workplace Relations Commission for appropriate action. And given the restructuring of the WRC, this is an area to keep an eye on as other industry sectors could also get the same "shake-up"
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Tesco are in the news again!
Tesco Ireland has confirmed it is seeking to cut pay and conditions for about 6% of its 14,500 employees. With this move close to 1000 of Tesco's employees will be hit with significant pay cuts.
The supermarket retailer has announced that it is seeking to transfer some "longer serving staff" from their pre - 1996 "inflexible" contracts to conditions agreed upon during negotiations with trade unions in 2006.
The company's spokesperson said that "our pre-1996 contract does not meet the needs of today's customers and was greed 20 years ago at a time when stores didn't open on Sundays or late nights. As a result we have too many colleagues rostered during our quietest days instead of our busiest; and guaranteed overtime which doesn't take account of the needs of each store or give colleagues equal opportunity to work overtime when it arises.
Mandate, the trade union representing the majority of affected workers, claimed cuts could cost workers about €6,500 a year but added the would be strongly opposed by staff. Shock and anger and now led to determination as the workers say they will resist any changes that are pushed through without negotiations. The mischievous attempts to attribute these cuts to "customer services" has gained no traction with anyone.
It aims to implement the changes by mid-April. Staff generally earn €11.97 per hour on the 2006 contracts, those at the upper end of the pay scale earn €14.31. The majority of those on pre-1996 contracts would be at this upper end given the length of their tenure with the company, says Mandate.
The retailer has said it would compensate workers for loss of earnings and would work out the extent of this compensation in discussions with staff and unions in the coming weeks.
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Accessing employee emails, what you need to know.
As an employer you have the right to monitor your employees’ work phone calls, emails and internet access on company devices. This was reaffirmed recently in a case heard by the European Court of Human Rights (Barbulescu v Romania). In reaching their decision, the Court was heavily influenced by the company’s internal policies, banning the use of company property for personal purposes and informing all employees that surveillance would take place.
What does this case mean for employers?
- Comprehensive Internet Policies: it is a must for employers to have internet usage policies in place. These policies should clearly state the rules on how employees should use the internet, as well as how monitoring is conducted. All policies should be clearly communicated to staff.
- Regular Reviews: the world of communication is fast moving; company policies should be regularly reviewed to take account of this and tailored to meet the needs of individual organisations.
- Monitoring: monitoring of email and internet usage should never be done covertly. In order to avoid a culture of mistrust in the workplace, monitoring should be done cautiously, ideally only where an employer can show that they had specific reasons for doing so e.g. as part of a disciplinary investigation.
- Personal Equipment: Whilst monitoring can be done on work devices employers are not permitted to monitor an employee’s own personal device. In some workplaces the use of personal equipment can be disruptive and often a health and safety issue. In managing this issue employers are advised to consider separate policies outlining when such equipment may be used.
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When the love is gone! What happens when the employment relationship breaks down?
February might be the month of love, but what happens when the love ends in an employment relationship. How do you end that relationship?
The employment relationship can breakdown for a number of reasons and sometimes employers feel like they are left with no alternative but to terminate the employment.
Employee dismissal can be a dangerous area and employers can leave themselves at risk of an unfair dismissals claim. In 2014 the majority of all Employment Appeals Tribunal cases were unfair dismissal claims with the total awarded by the EAT reaching almost €5,000,000.
The key to avoiding such claims, particularly for small employers, is to take a step back from the emotion and aim to take a rational approach.
Furthermore, a second vital component of any dismissal case will be the Disciplinary Procedure. A disciplinary procedure sets out the process that should be followed in an employee dismissal. Without a disciplinary procedure in place it will be near impossible for an employer to defend any unfair dismissal claims against them.
It’s too late to implement a disciplinary procedure once there is an issue. Employers should protect themselves and put one in place immediately, ensuring that everyone in the organisation is familiar with it.
Some key components of any Disciplinary Procedure will include:
- Lists of unacceptable behaviours: let employees know what is acceptable.
- Early informal intervention: never procrastinate; address issues as soon as they appear.
- A fair process: a tribunal will look to see if a process has been applied.
- Opportunity to Appeal: employees should always be given the opportunity to appeal any decision.
No matter how gross the crime, caution should always be applied when dismissing an employee. For that reason it is always advisable to seek external assistance.
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€150,000 awarded to four Tesco Workers
Tesco has been ordered to pay out over €150,000 in compensation to four of its former staff who were wrongly sacked as a result of a flawed disciplinary process by the company.
The retailer fired the long-serving staff members for failing to pay immediately for food they consumed on 2 different occasions, even though it was common practice among all employees to pay for the meals at a later stage.
Employees at the branch were not allowed to carry cash or purses in the cáfe at the time, as per company policy, and as such paying for food from the tip jar was the norm. Therefore the practice had arisen out of necessity because the employees could not carry cash on their person while on duty.
The four women were suspended with full pay after a security guard witnessed them serving themselves food without appearing to pay for it. Based on CCTV footage Tesco claimed the four staff members had breached company policy and had engaged in theft and fraud.
All four women stated they believed they had done nothing wrong but would have ceased the practice immediately if they had been informed they were in breach of company policy.
The tribunal said the conduct of Tesco's disciplinary and appeal process into the allegations was unsatisfactory and described some of its findings as "irrational". It further noted that Tesco's honesty and purchase policies are not sufficiently clear when it comes to the consumption of food by employees.
Accordingly the Tribunal found that the company's dismissal of the four employees was disproportionate and the EAT ordered the Irish division of the British Grocery company to pay a total of €153,521 - awarded in sums of €61,918, €41,000, €35,000 and €15,103 to the quartet.
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2016 What's in Store?
2016 is set to be another busy year in employment law! Key changes we all need to be aware of include:
• Minimum Wage Increase
From this month the minimum wage has increased by 50 cent from €8.65 to €9.15. The increase is a result of a recommendation made by the Low Pay Commission, set up to advise the Government of minimum wage rates. For more information on the change please see here.
• Casual Contracts Review
One of the most frequently asked questions that come into the Bright Contracts support team is with regard to Casual Contracts and Zero Hour Contracts. Casual contracts offer employers, particularly small employers, flexibility to meet changing business needs at a low cost. They are crucial to the success, and often survival, of many Irish businesses. Therefore it is with great anticipation that we await changes in the law surrounding the use of both casual contracts and zero hour contracts. Consultation is due to close in January and it expected that the Minister will move quickly thereafter.
• Paternity Leave
Budget 2016 saw the announcement of paternity leave in Ireland. From 2016 Irish fathers/partners will now be entitled to 2 weeks paid paternity leave on the birth of a baby. It is expected that the new legislation will be effective from September 2016. The rate of pay for paternity leave has yet to be announced, however it is likely that it will be in line with Maternity Benefit, currently €230 per week. Further reading on paternity leave is available here.
As always, Bright Contracts will be keeping track of all changes and will be keeping customers up-to-date.
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When Bad Weather Disrupts Employees' Commutes
Floods, snow, ice, wind – winter weather conditions can have a detrimental effect on your staffs’ ability to get to work on time, or to get to work at all in some cases. The question is how can you manage the situation?
Below are some Top Tips to help you get through the winter season.
Employees are not legally entitled to be paid if they are delayed or unable to get to work because of travel disruption. However, it is important to be aware of any custom and practice in the organisation or contractual clause, which may override this position.
Employers should also consider the impact of deducting pay on employee morale, particularly if the employee has made every effort to get to work but the weather conditions make it impossible to get to the workplace, or the workplace is closed through no fault of the employees.
The general advice to employers is to be as flexible as possible. The handling of bad weather and travel disruption can be a real opportunity for an employer to boost staff morale and show yourself as an all round fair employer. Possible considerations might include:
- Can you be flexible with regard to working hours or working patterns?
- Is it possible for employees to work from home or even at a different location?
- Would it be possible for the employee to work back the time missed at a later date?
- Rather than deducting pay for time missed you could offer that the employee take annual leave for the time. Whilst offering this as a solution is recommended, enforcing it without the agreement of the employee would not be best practice.
A company policy on absence due to inclement weather should address the situation where employees are unable to attend work, due to weather-related circumstances. Having such a policy should also mean there is much less scope for confusion and disagreement. An Inclement Weather policy is contained within the Optional Sections of the Bright Contracts Handbook.
Whatever option you do go with, make sure it is clearly communicated and consistently applied to all staff. It will make managing the situation a lot easier when it does arise.
Bright Contracts - Employment Contracts and Handbooks
