2015 Employment Round Up
2015 has been one of the busiest years in employment history. We have summarised the main changes below:
Workplace Relations Commission (WRC)
The WRC has replaced NERA, the Labour Relations Commission, the Equality Tribunal and the first instance functions of the Labour Court and the Employment Appeals, changing the entire employment landscape in Ireland. Key consequences of the WRC include:
- It is now easier for employees to bring claims against employers and for employers to respond to them
- Claims will be dealt with much more quickly
- Mediation and early dispute resolution are encouraged
- In order to promote higher levels of compliance with employment law, employers can now be penalised with “on the spot” fines from a WRC Inspector
Accrual of Sick Leave Whilst on Sick Leave
From 1 August 2015 employees will now accrue annual leave whilst on long term sick leave. See here for further information.
National Minimum Wage
A Low Pay Commission has been set up to advise the Government annually on appropriate minimum wage levels. In its first report it recommended a 50 cent increase in minimum wage from €8.65 per hour to €9.15 per hour. This increase will come into effect in January 2016.
Industrial Relations (Amendment) Act 2015
The main changes as a result of the Act are:
- Greater clarity around Labour Court investigations of trade disputes
- The reintroduction of Registered Employment Agreements (REAs)
- The introduction of Sectoral Employment Orders (SEOs)
2016 looks set to be an equally eventful year with the introduction of Paternity Leave and the review of Zero Hour Contracts. As always employment law is ever changing!
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Work Christmas Party - Don't Get Left with an Employment Law Hangover
It’s the Christmas Party season, the time when employers treat their employees to slap-up dinners and drinks, to thank them for their hard-work throughout the year. However, employers need to be aware that they are liable for the conduct of employees at a Christmas party, even if the party takes place away from the place of work. Employers can avoid being left with an employment law hangover by taking some simple precautions.
Below are some helpful tips to help employers relax and enjoy the Christmas Season
- Plan well: ensure everyone is included, even those on maternity leave. If using an external venue be sure it is accessible to all.
- Remind your employees of the rules: don’t be a party pooper, but beforehand remind staff of acceptable and unacceptable behaviour and remind them of any appropriate company policies e.g. bullying and harassment policies.
- Food and Drink: avoid offering a free bar, possible offer limited drink vouchers and if providing alcohol be sure to supply food.
- Make sure staff get home safe: employees are your responsibility, consider providing taxis, or provide list of local taxi firms, be sure nobody drinks and drives.
- Leave work at work: avoid discussing work issues, managers should avoid discussions about performance, promotion, salary or career prospects
So long as you follow the tips provided there’s no reason your Christmas party shouldn’t be an enjoyable night for you and your employees.
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A No Show is a Big No
The Workplace Relations Commission have released statistics revealing that a huge of 35% of employment tribunal cases are “no-shows”.
Employers failure to attend Employment Appeals Tribunal hearings is becoming a somewhat common occurrence and is extremely risky. This coupled with a tribunal’s annoyance that the employer didn’t show up will no doubt end up in the employee winning an award that the employer will be legally obliged to pay.
In a recent case where an employer failed to attend a hearing the employee was awarded €55,000 based on uncontested evidence.
If you are facing a tribunal case, the advice is to attend!
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Minimum Wage - Employers, are you up-to-date?
The Minimum Wage is set to increase from 1 January 2016. The rate for adults will rise from €8.65 to €9.15 per hour, an increase of 50 cent.
Minimum Wage applies to all employees, including full-time, part-time, temporary and casual employees, the only exceptions are for close relatives of employers and apprentices under the Industrial Training Act 1967.
The new rates are listed below
- Experienced Adult Worker - €9.15
- Under the age of 18 - €6.41
- In the first year after the date of first employment over the age 18* - €7.32
- In the second year after the date of first employment over age 18* - €8.24
* Employment experience prior to age 18 is not taken into account for these rates.
Sunday Pay
If not already included in the rate of pay, employees are generally entitled to a premium payment for Sunday working, or paid time off in lieu.
The Living Wage
Recently there have been discussions around the introduction of a Living Wage of €11.50 per hour. Supporting bodies believe this is the required rate of pay in order to have an acceptable standard of living. However, for many small employers such an increase would pose a significant financial burden, which could result in the loss of jobs, rather than the creation.
Compliance
The Workplace Relations Commission (WRC) holds responsibility for securing compliance with the minimum wage, formerly held by NERA. In 2014 almost 5,600 inspections were carried out on random workplaces across Ireland. These resulted in €861,416 of unpaid wages being recovered.
The Message for Employers
Employers need to be compliant with the minimum wage. Employers need to be sure they remain compliant come 1 January, when the new rates come into effect. To avoid confusion and stress come the holiday period, employers should be looking at reviewing pay rates and contracts of employment now.
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Accrual of Holidays Whilst on Sick Leave
Workers can now accrue annual leave whilst on long-term sick leave.
This is a major change in employment legislation and came into effect on 1 August 2015 with the introduction of the Workplace Relations Bill.
The new legislation brings Ireland in line with European employment law. In addition, and perhaps more importantly for employers, it aims to strike a balance between protecting the rights of vulnerable workers who are ill and trying to minimise the cost to businesses, something which is a constant challenge for employers.
Key facts you need to know
- From 1 August employees on sick leave can accrue annual leave
- The leave must be certified, therefore will generally apply to those on long-term sick leave
- The accrual of annual leave will not apply to any periods of sick leave prior to 1 August 2015
- Any leave accrued must be taken within 15 months of the end of the leave year in question
- If an employee leaves employment they should be paid in lieu of any accrued leave
This is a major change in employment legislation. Employers need to familiarise themselves with the new legislation and more importantly they need to review their absence policy to ensure that it reflects the new changes.
All appropriate Bright Contracts policies have been reviewed and updated to reflect the changes. Users need just to log in to their software to avail of the software.
Bright Contracts - Employment Contracts and Handbooks
Irish enterprises are lacking human resources functionality
A recent survey, carried out by The HR Department, has found that fewer than 6 out of 10 small & medium sized Irish enterprises invest in a human resources function, despite the fact that 93% of them believe HR plays a crucial role in business.
The research also revealed that more than a third (35%) of businesses surveyed do not have a staff handbook.
68% of companies that employ 1-10 employees have no HR whatsoever and more than a third (36%) of companies with 11-50 employees also have no HR function.
40% of companies surveyed gave the reason for not investing in a dedicated HR professional or outsourced service because they felt their business was too small to need it, followed by 16% of companies who felt the cost was too much, whereas some 11% of those surveyed felt they have a good enough relationship with their staff and therefore do not require a HR function.
The survey of 600 SME's across the country found that technology, communications, banking, manufacturing & finance are the industry's most likely to invest in HR, whilst the hospitality, retail & business service sectors would be the least likely to invest.
This misconception can lead to serious problems and costs for companies if they have a NERA inspection or a dispute with an employee. Bright Contracts has everything you need to get a professional staff handbook and employee contracts in place for each of your employees -in accordance with the requirements of the Terms of Employment (Information) Act 1994.
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Paternity Leave – It’s finally here!
Budget 2016 confirmed months of speculation that Irish fathers would finally receive paid paternity leave. Full details are yet to be announced, but on the birth of a child new fathers will be entitled to 2 weeks leave, paid at statutory pay rates. The new legislation will come into effect in September 2016.
Paternity leave to-date in Ireland has been purely at the discretion of employers, leaving many new fathers forced to take annual leave or unpaid leave on the birth of a child.
Against our European neighbours, we have been lagging miserably behind, with 20 of our neighbouring States already offering paid paternity leave. Top of the list, are (predictably) the Scandinavian countries, with Finland, for example, offering 9 weeks paid paternity leave. However, we are really shown-up by some of the other countries who too have paid paternity leave options in place, including Slovenia, Latvia and Hungary
Overall, our family leave policies are extremely “maternalist”, being based on the assumption that women are still the primary child care providers. Again, other countries are ahead of us in recognising the role of working mothers and the value of both parents in the first year of a child’s life. For example, in the UK the majority of working parents have the opportunity to share 50 weeks of shared parental leave after the birth of a child. Whilst Minister for Children James Reilly has hinted at the possibility of a full years’ parental leave to be available to be shared by both parents, it is unlikely that we will see this measure anytime soon.
For now, employers need to be ready to update the policies and procedures outlined in their employee handbooks and clearly communicate to employees what is available to them.
Bright Contracts - Employment Contracts and Handbooks
Major employment changes for Security and Contract Cleaning Industries
On 1 October 2015, two new Employment Regulations Orders(EROS) took effect in the security and contract cleaning industries affecting approximately 50,000 Irish workers.
An ERO is an agreement which sets out specific pay and working conditions for workers in specific sectors. The terms of such agreements usually go beyond basic employment legislation such as the national minimum wage.
The new EROs offers certainty to employers and employees in these sectors, following a period of confusion and uncertainty caused as a result of EROs being ruled unconstitutional in July 2011.
ERO highlights for security sector
• Minimum wage set at €10.75
• Overtime set at time and a half
ERO highlights for contract cleaning sector
• Minimum wage set at €9.75
• Overtime set at time and a half for the first four hours over 44 hours per week and double time thereafter
Bright Contracts are currently reviewing the new legislation and will be providing comprehensive, user-friendly guidance to employers in the near future.
Bright Contracts - Employment Contracts and Handbooks
Workplace Relations Act 2015
Major changes in the manner employment disputes and complaints are dealt with as well as new procedures for ensuring compliance with employment law come into force on October 1st 2015. The newly enacted Workplace Relations Act 2015 provides for a range of changes to the bodies and the procedures which deal with the:
- Resolution, mediation and adjudication of industrial disputes and
- Resolution of complaints about breaches of employment legislation
The New System
The Workplace Relations Act 2015 provides that there will be two bodies dealing with complaints and disputes in relation to industrial relations and employment law. These are the Workplace Relations Commission (WRC) and the Labour Court.
The Labour Relations Commission is being abolished and all its functions transferred to the WRC. The functions of the Equality Tribunal, including functions under the Equal Status Act, are also being transferred to the WRC.
The Employment Appeals Tribunal (EAT) is being abolished. Its functions in relation to claims for redress, disputes or complaints are being transferred to the WRC. Its functions in relation to appeals are being transferred to the Labour Court.
It should be noted that he EAT will continue to operate until it deals with the cases that are before it when this Act comes into effect. It will then be dissolved. The EAT currently has approximately 3,500 cases outstanding. The average waiting time for a hearing before the EAT is currently 63 weeks. In some areas it is significantly longer.
The Labour Court will continue in existence with a number of existing and additional functions. The current members will remain in place. In future, appointments as chair and deputy chairs will be by public competition. When vacancies arise for ordinary members, trade union and employer organisations will nominate three candidates and the Minister for Jobs, Enterprise and Innovation will choose one.
The Workplace Relations Commission
The WRC will have a representative board consisting of a chairperson and eight other members.
The main functions of the WRC are to:
- Promote the improvement of workplace relations, and maintenance of good workplace relations
- Promote and encourage compliance with the relevant laws
- Provide guidance in relation to compliance with codes of practice
- Conduct reviews of, and monitor developments as respects, workplace relations
- Conduct or commission relevant research and provide advice, information and the findings of research to Joint Labour Committees and Joint Industrial Councils
- Advise the Minister for Jobs, Enterprise and Innovation in relation to the application of, and compliance with, relevant laws
- Provide information to the public in relation to employment laws other than the Employment Equality Act
The WRC may also provide advice on any matter relating to workplace relations to employers, their representative bodies and to employees, trade unions or other representative bodies of employees.
The WRC also has specific functions in relation to the resolution of industrial disputes and the implementation of employment laws. It will be the body to which all industrial relations disputes and all disputes and complaints about employment laws will be presented.
Mediation and Adjudication
The WRC will employ Mediation and Adjudication Officers to deal with industrial disputes and complaints about non-compliance with employment laws.
Mediation officers
Complaints and disputes will initially be presented in writing to the Director General of the WRC. The Director General may refer the complaint or dispute to a mediation officer if it is considered that the complaint or dispute is capable of being resolved without being referred to an adjudication officer and if neither of the parties objects to it being dealt with in this way.
Mediation is conducted in private. If agreement is reached as a result of the mediation, that agreement is legally binding on the parties.
Adjudication
If mediation is not used or is not successful, the complaint or dispute is referred to an Adjudication Officer. The current Rights Commissioners and equality officers will be Adjudication Afficers. A further 19 adjudication officers are being appointed. References in existing legislation to a Rights Commissioner now refer to an adjudication officer.
If the dispute or complaint is referred to an Adjudication Officer, the adjudication officer then generally conducts an inquiry. The Adjudication oOficer may dismiss a complaint or dispute if it is considered to be frivolous or vexatious. Such a decision may be appealed to the Labour Court within 42 days.
The Director General may decide to deal with the complaint or dispute by written submissions only, unless either party objects to this within 42 days of being informed.
At the inquiry, the parties have an opportunity to be heard and to present any relevant evidence. Hearings by an adjudication officer will be in private. Up to now hearings by Rights Commissioners have been held in private but EAT hearings have been in public.
Complainants may be accompanied and represented at hearings before an adjudication officer by a specified or permitted representative.
The adjudication officer then makes a decision in accordance with the relevant law and gives that decision in writing to the parties.
Decisions by adjudication officers will be published on the internet without identifying the parties.
Time limits
In general, the time limit of six months, extendable in certain circumstances remains unchanged. There are specific provisions about when the time limits begin to run in cases of disputes about adoptive leave, maternity leave, parental leave and carer’s leave.
Enforcement of decision of adjudication officer
The employer has 56 days in which to carry out the decision of the adjudication officer. If the employer fails to do so an application can be made to the District Court for an order directing the employer to do so. In general, the District Court must make the order. If the decision was to reinstate or re-engage the employee, the District Court may substitute an order to pay compensation of up to 104 weeks’ pay calculated in accordance with the rules under the Unfair Dismissals Act 1977 to 2007.
In all cases involving compensation, the District Court may also order interest to be paid.
It is an offence to fail to comply with an order directing an employer to pay such compensation to an employee unless the employer can show, on the balance of probabilities that they were unable to comply with the order due to financial circumstances.
Appeal to Labour Court from decision of adjudication officer
Appeals against decisions of adjudications officers may be made to the Labour Court. Such appeals must generally be made within 42 days but this can be extended if the Labour Court is satisfied that there were exceptional circumstances causing the delay.
The Labour Court may decide to deal with the complaint or dispute by written submissions only, unless either party objects to this within 42 days of being informed.
Labour Court hearings on appeals are in public unless the Labour Court decides that they should be in private (or partly in private) because of special circumstances. Parties are entitled to be represented at Labour Court hearings in the same way as at hearings before an adjudication officer.
The Labour Court has wide powers to require witnesses to attend and to take evidence on oath.
The Labour Court may refer a question of law arising in the appeal to the High Court. The High Court’s determination is final and conclusive.
Either party may appeal the decision of the Labour Court to the High Court on a point of law. Such an appeal must be made within 42 days. The decision of the High Court is final and conclusive.
Enforcement of Labour Court Decisions
An employer has 42 days to implement the Labour Court’s decision. If the employer fails to do so, the employee, the WRC, the employee’s trade union or excepted body may apply to the District Court for an order directing the employer to do so. The District Court must grant the order. In cases where compensation is to be paid, the District Court may also order the payment of interest. It is an offence to fail to comply with an order directing an employer to pay such compensation to an employee unless the employer can show, on the balance of probabilities, that they were unable to comply with the order due to financial circumstances.
Enforcement of employment legislation
The authorised officers and inspectors who are currently employed by the National Employment Rights Authority will continue to have a similar role with the WRC. New arrangements for prosecutions and new compliance measures are introduced by the 2015 Act.
Inspectors have extensive powers to collect documentary and personal evidence in relation to alleged breaches of workplace legislation. This includes the power to enter premises, see and/or remove documents and interview people. If necessary, inspectors may be accompanied by other inspectors or members of An Garda Síochána. They may apply to the District Court for search warrants. Their powers under the various employment laws are restated and consolidated in the Workplace Relations Act 2015.
Prosecutions
The Minister for Jobs, Enterprise and Innovation has the power under a number of employment laws to bring summary prosecutions against employers who are alleged to be in breach of the law concerned. These powers are being transferred to the WRC. The Act provides that, in most cases, the employer will be liable for all legal costs.
Compliance Notices
The Act provides a new process for the serving of compliance notices. An inspector may serve a compliance notice on an employer if satisfied that a contravention of the relevant legislation has occurred. This notice specifies how that contravention is to be rectified. An employer may appeal against the compliance notice to the Labour Court within 42 days. There is a further appeal from the decision of the Labour Court to the Circuit Court. It is an offence for an employer to fail to comply with a compliance notice.
The existence of a compliance notice or any dispute about it does not prevent employees from taking action in relation to any alleged breach of employment law in respect of them. Neither does it prevent any prosecution for an offence under employment laws.
Compliance notices may be used in relation to breaches of the following legislation:
- Notice to employees of procedure for and grounds for dismissal under the Unfair Dismissals Act 1977 to 2007
- Regulation of certain deductions made and payments received by employers under the Payment of Wages Act 1991
- Leave on health and safety grounds under the Maternity Protection Acts 1994 and 2004
- Requirement to give an employee a written statement of terms of employment and requirement to give written notice of changes to those terms under the Terms of Employment (Information) Acts 1994 to 2014
- A range of possible breaches of the Organisation of Working Time Act 1997 including those in relation to rest periods, Sunday work, working hours, information on working time, zero hours contracts and holidays
- Protection of employment rights under the Carer’s Leave Act 2001
- Obligation of hirers to agency workers under the Protection of Employees (Temporary Agency Work) Act 2012
Fixed payment notices
The Act provides for using fixed payment notices for certain offences. This is a new development which may well be expanded in future. Inspectors may issue fixed payment notices for amounts up to €2,000 where they have reasonable cause to believe that a person has committed a relevant offence. The fine must be paid within 42 days. The relevant offences are:
- Breaches of the obligation on employers to consult representatives of employees and to provide information to them under the Protection of Employment Act 1977 (collective redundancies)
- Failure to provide statement of wages and deductions from wages under the Payment of Wages Act 1991, or
- Failure to provide employee with statement of average hourly rate of pay for pay reference period under the National Minimum Wage Act 2000
General Powers of the WRC
The WRC inspectors and adjudication officers have various powers to get information from employers and employees and to provide that information to other official bodies. For example, they may:
- Require employers to disclose their registration number and employees to provide their PPSN and to disclose these numbers to official bodies for the purposes of investigating or prosecuting alleged offences under employment law
- Disclose information to public contracting authorities that a person with whom that authority has entered into a contract (either a primary contractor or a party to a secondary contract) has been in breach of employment legislation and may require such an authority to disclose similar information to them
The WRC may make arrangements with other official bodies to facilitate administrative co-operation.
It may also enter arrangements with foreign statutory bodies for the exchange of information relevant to its functions and for the provision of mutual assistance.
Codes of practice
The WRC may prepare codes of conduct for the guidance of employers, employees and others affected by employment laws. It does not have this function in relation to the Employment Equality Act 1998; codes of practice in relation to that Act are the responsibility of the Irish Human Rights and Equality Commission.
Fees
The Act allows for the charging of fees for services provided by the WRC and the Labour Court. The Minister has said that it is not the intention to introduce such fees in general. However, it is intended to introduce a fee of €300 for an appeal to the Labour Court where the party who is appealing had not turned up to a hearing at the WRC.
Changes to specific laws
Virtually all employment laws are changed to some extent by this Act because the enforcement procedures are changed. There are some other specific changes that relate to the Unfair Dismissals Acts, the Employment Equality Act, the Equal Status Act, and the Organisation of Working Time Act.
Bright Contracts - Employment Contracts and Handbooks
Tribunal sees the delay in addressing an issue as amounting to an unfair process.
At a recent Employment Appeals Tribunal an employee of an NCT centre was awarded €35,000 for Unfair Dismissal after his employment was terminated for behaviour that his employer deemed to be serious misconduct.
The issue at hand was that the employee tested his own vehicle on the morning of March 10th 2012. The employee handbook, which the employee confirmed he had received, had guidelines pertaining to their own vehicle or family members vehicles - that it is forbidden to test one's own vehicle or one belonging to family members. "The inspector must inform his manager who will organise for another inspector to test the vehicle."
On the 8th of July 2013 an investigative meeting was held relating to the testing of the employee's own car, a second investigative meeting occurred on the 29th of July and furthermore a disciplinary meeting was held on the 15th of August whereby the employee was suspended from duties with pay until a final decision was made. On the 16th of August 2013, nearly a year and a half after the incident occurred, the Regional Manager wrote to the employee informing him that his employment would be terminated with effect from the 27th of September 2013. The employee appealed the decision unsuccessfully.
The employee denies he was ever informed that testing his own vehicle would result in dismissal.
The fact that the employer took action and dismissed the employee more than a year after the incident is what led the tribunal to find the termination of the employee as unfair.
So even though the employer followed their own protocol, the fact it was not done at the time of the incident or even close to it, allowed for the Tribunal to see the delay in addressing the issue as amounting to an unfair process.
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