How employers pass on tips, gratuities and service charges to their employees
The Call for Evidence will look at how restaurants treat tips left by customers and whether government intervention is necessary to strengthen the voluntary code of practice run by the industry.
The inquiry will seek information and views from the hospitality industry and other key stakeholders and will consider whether there should be a cap on the proportion of tips restaurants can withhold from staff for administrative costs and, if so, what this level should be.
Research from 2009 found that one in five restaurants did not pass tips to their staff, yet the vast majority of customers said they wanted the waiting staff to receive tips left for them. More than three quarters wanted to clearly see the restaurant’s tipping policy displayed clearly.
While there is a voluntary code of practice which is overseen by industry body the British Hospitality Association, restaurants may currently choose to ignore its 4 principles of transparency and adopt various tipping practices.
The Call for evidence has been launched by the Department of Business, Innovation & Skills (BIS) and will run until 10th November 2015.
Bright Contracts - Employment Contracts and Handbooks
Data Protection Annual Report 2014
The 2014 Annual Report for the Data Protection Commissioner (DPC) has been published and, as always, it makes for some interesting reading. By far the most interesting news for employers centres around the increased levels of prosecution of company directors over data protection.
Of the 960 complaints received, 521 of those (54.3%) related to subject access requests. In an employment context, this would relate to an employee seeking access to their full files and any material about them kept on company records.
Under the Data Protection Acts, an employee has the right to request a copy of all data on record about them, why the data is being retained by the company, who has access to the data, and the source of the data. An employer can charge the employee a fee not exceeding €6.35 for processing the information. If an employee lodges a legitimate access request then the employer has 40 days to provide the information.
Very importantly, the Report has reiterated that “enforced subject access requests” is an offence and “the Data Protection Commissioner intends to vigorously pursue and prosecute any abuse detected in this area." This most commonly arises where a candidate for a job is required by the interviewing company to submit a subject access request to their previous employers. The interviewing company then uses that information as a part of their interview decision making process. Again to note, such a practice is deemed an offence and the DPC will look to prosecute any employer on this matter.
The Report highlighted that 2014 was the first time that the DPC prosecuted company directors for their use of private investigators. The cases did not relate to investigating employee behaviour through private investigators, however, the 2014 report puts employers on notice that the DPC very much frowns upon the use of private investigators and employers should thread very carefully in this area.
An interesting case highlighted by the Report related to the HSE giving an employee’s payslips and a P60 to that employee’s ex-wife. The ex-wife then used these documents in court proceedings in relation to maintenance issues. The DPC went on to specify that the HSE had breached the Data Protection Acts by issuing the employee’s information to a third party without the employee’s prior consent. Other case studies highlighted how a Dublin County Council issued a person’s email address details to third parties without consent and also a credit union issued details of a member’s loan to that member’s daughter without consent. Both the County Council and the credit union were found to have breached the Data Protection Acts.
Employers are advised to not issue any employee data any third party unless you have secured prior employee consent.
Another case that employers should take note of is that of a financial institution reporting an ex-employee to the DPC after that ex-employee had sent a customer list to his personal email address around the time he left employment. This ex-employee was now running a business from his own home. The DPC contacted the ex-employee who affirmed that they had deleted the data in question. This case was interesting as it is a legitimate avenue that employers can pursue to protect business interests whilst also protecting the personal data of customers.
Data Protection is a growing area of employment law and it can impact on a variety of issues and areas that employers need to be aware of - the DPC has the power to audit or inspect any workplaces and indeed 39 company inspections were carried out in 2014.
The DPC's annual budget has been doubled to 3.65m, demonstrating the Government's recognition of the growing demands on the DPC's Office. Additionally, the appointment of a junior minister with responsibility for data protection further signals the importance attached by the Government to Ireland's role in the space.
The full report can be read here: https://www.dataprotection.ie/docimages/documents/Annual%20Report%202014.pdf
Bright Contracts - Employment Contracts and Handbooks
Use of CCTV in Disciplinary Procedures
All usage of CCTV, other than in a purely domestic context, must be undertaken in compliance with the requirements of the Data Protection Act. Extensive guidance on this issue is available by clicking this link. In summary, all uses of CCTV must be proportionate and for a specific purpose. As CCTV infringes the privacy of the persons captured in the images, there must be a genuine reason for installing such a system.
The images captured should be retained for a maximum of 28 days, except where the image identifies an issue and is retained specifically in the context of an investigation of that issue.
A recent decision of the Employment Appeals Tribunal brought into focus some pitfalls which employers can face in seeking to rely on CCTV footage in disciplinary proceedings, read the full story here!
The employer's failure to adhere to data protection legislation in the case at hand meant that the Employment Appeals Tribunal was always likely to find against them. Accordingly, employers who have CCTV cameras installed in their premises should be cognisant of the data protection legislation. In this regard, it should be noted that the Data Protection Commissioner has issued guidance on this matter in recent years. In particular, the Data Protection Commissioner has advised the following:
The rationale for using CCTV surveillance in disciplinary procedures must be that it is justifiably necessary to protect some legitimate aim of the employer.
1. The use of the CCTV must be transparent. In this regard, the Data Protection Commissioner has advised that employers make employees aware of the presence and location of the cameras and the purpose of the footage captured prior to using the cameras. As a result, an important point to note is that an employer cannot use information gathered from surveillance as evidence in a disciplinary matter unrelated to the purpose for which the cameras were installed.
To conclude, all employers utilising CCTV surveillance should take the following steps or else they will be unable to successfully rely on such evidence in disciplinary proceedings:
1. Issue a written policy to employees outlining the situations in which monitoring may occur and the purpose of such monitoring.
2. Ensure that the installation of CCTV cameras is transparent. In this regard, it is advisable that notices are displayed around the workplace highlighting that CCTV is in operation.
3. Ensure that the purpose for the CCTV is justifiably necessary.
4. Carry out surveillance in a fair manner.
A company’s staff handbook should clearly state all points addressed above if you have CCTV installed in your business but no policy then click here now and download our software for free.
To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here
Workplace Relations Commission to commence from 1st October 2015
The Minister for Jobs, Enterprise and Innovation, Richard Bruton, on Monday the 8th of June welcomed the signing into law of the Workplace Relations Act 2015 and announced that the Act will be commenced on 1st October 2015.
The reform of employment rights and industrial relations bodies is a major piece of public service reform and will see the existing five employment rights bodies merged into two bodies:
• The Workplace Relations Commission will deal with all cases at first instance
• The Labour Court will deal with all cases on appeal
Through the better use of technology and shared services, the cost of running these bodies will be reduced through staff reductions, eliminating duplication and centralising administration and case management services. This rationalisation will deliver a much better service to the end users, both employers and employees, and at a reduced cost to the state.
Minister Bruton said: “Reform of the State’s employment rights and industrial relations bodies has two principal goals: to deliver a better service for employers and employees and to deliver savings for the taxpayer, businesses, and workers. We have seen major progress in these areas already, and the formal establishment of the WRC will see further gains. The announcement we are making today is a further important step towards the final delivery of this important reform”.
To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here
Policies & Procedures – the importance of
A recent case in the Employment Appeals Tribunal shows the importance of having policies and procedures in place and following them.
The Tribunal awarded an employee compensation of €94,000 for Unfair Dismissal when her previous employer dismissed her without any procedure whatsoever let alone any fair procedure.
Having been employed with the company for over 18 years, an employee was called to a meeting to be told she was dismissed with immediate effect and had 10 minutes to leave the building. The employee was handed a letter at this meeting which detailed her “Severance Agreement”, on provision she sign away her rights under the Unfair Dismissals legislation and also to state she had received legal advice.
When queried if the sum being offered was by way of redundancy, she was told “the company is not going down the redundancy route on this occasion.” The “Severance” amount she was offered was less than statutory redundancy. The employee did not accept the severance sum that was offered.
Within the same month as the employee’s dismissal, her position was advertised by the company but on a 12 month contract. She was never offered this as an option.
The employer had sought to replace the existing employees’ permanent position with an impermanent position without due consideration for the employee.
More information on this case can be found at: http://www.workplacerelations.ie/en.Cases/2015/June/UD1627_2013.html
Bright Contracts - Employment Contracts and Handbooks
What is Vicarious Liability?
Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator.
How does this affect Employers?
Employers are vicariously liable, for the negligence of the employee because the employee is held to be an agent of the employer. If a negligent act is committed by an employee acting within the general scope of her or his employment, the employer will be held liable for damages.
One such area that employers need to watch out for is bullying and harassment in the workplace. If you read Section 15 of the Employment Equality Act 1998, which is entitled “Vicarious Liability etc” where if an employee bullies a colleague on any one of the nine grounds of discrimination then the employer can be found vicariously liable.
Liability of employers and principals. 15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or
(b) From doing in the course of his or her employment acts of that description.
The compensation explanation of vicarious liability holds that the logic for the doctrine is to ensure that innocent plaintiffs have a solvent individual against whom to bring a claim against and if we look at both the employee and the employer it is more likely to be the employer who is wealthier and/or carries insurance.
If you have no current Bullying and Harassment or Equality Policy in the workplace then just click here and let Bright Contracts handle it for you today!
Bright Contracts - Employment Contracts and Handbooks
Fixed Term Contracts
When can I use them? What you need to watch out for?
One of the most difficult areas of employment law for employers to fully grasp, is the whole area of fixed term contracts and how they can turn into the dreaded CID (contract of indefinite duration).
What is a fixed term contract? This is a contract that will end on a specified date, or when a specific task is completed, or when a specific event occurs. Generally, a fixed-term contract ends on an agreed date. Such a contract period may range from a matter of months up to a period of a year or more. However, a fixed-term contract can also involve a specified-purpose and so may not end on a specific date. Rather, it is agreed that the contract will finish when a particular stated task is completed, such as replacing an employee while she is on maternity leave.
Employees on fixed-term contracts have broadly similar rights to those on open-ended contracts. The majority of employees work under open-ended/permanent contracts of employment. In other words, the contract continues until such time as the employer or employee ends it. Many other employees however, work under fixed-term contracts.
The expression, fixed-term contract, is used for convenience here. It also includes specified-purpose contracts.
By law an employer must provide a fixed-term employee with a written statement as soon as possible, outlining an event which will trigger an end to the contract .That is, whether the contract will end on a specific date, following completion of a specific task or a specific event. (None in place? Get started today).
In addition, where an employer intends to renew a fixed-term contract, a written statement must be supplied to the fixed-term employee no later than the date of renewal, setting out the objective grounds justifying the renewal and the failure to offer a permanent position.
Employers are obliged to inform fixed-term employees of vacancies for permanent positions. This may be done by means of a general announcement.
The Protection of Employees (Fixed Term Work) Act, 2003 provides under section 9(3) that a contract of indefinite duration will arise by operation of law if a contract is awarded in breach of sections 9(1) or 9(2) of the act
In simple terms, if an employee is employed on 2 or more successive fixed term contracts in continuous employment for a period of 4 years, then any attempt to give that employee a further fixed term contract is unlawful and void at which stage the employee is entitled to a contract of indefinite duration.
If your employee is entitled to a CID, he/she will have practically all the same entitlements as a permanent employee.
If this is an area that interests you then, click here to read the key aspects of the legislation which employers should be aware of, when issuing fixed term contracts.
Bright Contracts - Employment Contracts and Handbooks
Employment Appraisals, what are they?
Employment Appraisals are meetings that can be held every three months for the first year of employment and six months thereafter. They help clarify expectations and required standards, assist the development of new and existing staff and help keep a record of experience, training, strengths, and weaknesses.
Managers carry out appraisals to monitor actual performance; deal with problem areas and most importantly gain valuable feedback from employees. They should be conducted in a positive and open manner to help create an effective working relationship between the employee and the employer.
They are extremely useful and necessary during an employee’s probationary period. During the probationary period, performance in doing the job and potential abilities are evaluated to determine suitability for the position and the company. This should be set out in the company’s handbook which outlines the company’s probationary policy.
In a nutshell appraisals help the company:
• Evaluate employee performance during the probationary period
• Praise and encourage individual strengths
• Identify training requirements
• Evaluate suitability for continued employment
The company should provide adequate training and additional assistance if required, should the employee fall short in their duties. It is important to document meetings with employees during their employment and keep a copy of such on their staff file. You will need this documentation should a grievance arise during or after employment and also to refer back to it, if promises or follow up were made. It is important to keep up to date, accurate records, should you find the employee unsuitable and it becomes necessary to dismiss them.
Bright Contracts - Employment Contracts and Handbooks
Discrimination due to disability
A recent Equality Officers decision resulted in an employee in a healthcare company being awarded €20,000 compensation for discrimination due to her illness.
The dispute concerned a claim by the employee that she was subjected to discriminatory treatment in her working conditions by the employer on the grounds of disability and she was moved to a different area of the company as a result of her disability. The employee referred a claim of discrimination to the Director of the Equality Tribunal under the Employment Equality Acts. Who then delegated the case to Valerie Murtagh – an Equality Office- for investigation, hearing & decision.
The employee was employed with the company since 10 April 1978 and was initially employed as an assembler and had been working with the Bio Clean team since 2002. In 2006, the employee was diagnosed with Multiple Sclerosis; the employer was at all times fully aware of the employee’s condition. At the request of the employer, the employee attended a medical assessment in December 2012 and again in January 2013. The employee confided in the Doctor “a new issue of concern in respect of her job”, however she instructed the Doctor that she did not “want to formalise it into a complaint or grievance”. The employee maintains that the Doctor took it upon himself to report her issue to management and request that they look into the problem and “try to lessen any tensions within the group”.
Soon after the employee was asked to attend a meeting entitled “Meeting with Management and Sandra to discuss return to work”. It was at this meeting the employee contends that the minutes clearly indicate the purpose was to inform her it had been decided by the employer to move the employee from the “Bio-Clean Dept.” to the “Makes Spares Area”. The employee queried if this move was as a result of her MS condition to which the line manager replied that if she did not have the condition she would not be removed from the area.
The Equality Officer found that instead of carrying out risk assessments of the job and duties based on the employee’s illness, management made a decision to move her to a completely different area. This decision was made on the basis of an alleged concern on the part of the company that the employee would suffer from fatigue caused by her MS. This contention appears to have been made in the absence of any medical evidence and was based purely on an assumption by the employee’s line manager.
The equality officer found that the respondent did discriminate against the employee on the disability ground. The officer directed the employer to re-instate the employee in the “Bio-Clean” area and also gave an award of financial compensation of €20,000 which equates to six months’ salary. This is in compensation for the effects of the discrimination and is not subject to PAYE/PRSI.
If the above company had discussed with the employee how they could help to alleviate any issues and then followed-up with review meetings they could have saved themselves a lot of money. Bright Contracts has all the relevant policies and procedures built into the software for employers to use and follow for instances just like this. www.brightcontracts.ie
For further detail on this case please see: http://www.workplacerelations.ie/en/Cases/2015/February/DEC-E2015-009.html
Bright Contracts - Employment Contracts and Handbooks
Workplace Relations Bill set to radically overhaul employment disputes
In the new streamlined system, the Workplace Relations Commission will be the one-stop shop
The Workplace Relations Bill 2014, which should be enacted this year, is considered to represent the most substantial revision of the employment law framework. As an overhaul of the engine driving dispute resolution, the legislation seeks to reduce costs, increase efficiencies and simplify a process of referral.
Once existing cases are settled in the current environment, the system should be streamlined and forever replace the current structures of different types of claims that are played out in different arenas.
The amalgamation of these existing theatres – the EAT, the ET, the Labour Relations Commission and the National Employment Rights Authority(NERA) – will all be folded into one; the new Workplace Relations Commission (WRC).
The appellate functions of the EAT will move to a reconfigured Labour Court which will act as an appeals body for the new WRC. High Court appeals can be lodged on a point of law only. This new system reduces the potential lifespan of a dispute to two full hearings – an initial case and an appeal.
Importantly, the bill also provides for a legally binding early resolution or mediation facility. While participation is not obligatory and parties may opt to proceed straight to adjudication, where it is undertaken it can lead to a pre-arbitration agreement that could prove less costly.
Key to this aspect is confidentiality. For example if an employer offers a settlement but the employee rejects it, the offer cannot be used as an indication of culpability during a later hearing.
Actual adjudication sessions will be held in private before a single officer who will hear the claims against a broad spectrum of employment law considerations.
According to the Department of Jobs, Enterprise and Innovation, adjudicators will be sourced from a “diverse group”, with industrial relations and HR practitioners, employment lawyers and appropriate civil servants all in the mix.
While the thinking behind the legislation is to expedite claims where possible, there must remain room for appeal. In that respect, unwelcome decisions by an adjudicator can be brought to the Labour Court (within 42 days) with full public hearings, and where decisions will be published. The High Court too is available, but only on points of law and so the potential for a string of appeals is severely curtailed.
A reduction in expense is also on the wish list. Costs cannot be awarded to either side in a dispute, meaning legal fees must be met by clients regardless of the outcome. Legal representation is not mandatory. The Department has indicated there will be no fee for referrals to either the adjudication or appeal stage.
Whether or not the new system delivers on the improvements it seeks will not be known until the first cases begin easing their way through the system later in the year.
Bright Contracts - Employment Contracts and Handbooks
