Public Holiday Entitlements
Public Holidays
I’ve had some queries recently about what employees are entitled to for public holidays. In particular there seems to be some confusion as to what rules apply to part-time employees and I am aware that some employers are applying the rules incorrectly.
The rules on Public Holiday entitlement are set out in the Organisation of Working Time Act 1997. Employees are entitled to nine official public holidays per year. These days are as follows:
1. New Years Day
2. St Patrick’s Day
3. Easter Monday
4. May Bank Holiday
5. June Bank Holiday
6. August Bank Holiday
7. October Bank Holiday
8. Christmas Day
9. St. Stephen's Day
Employer’s Options
In respect of a public holiday the employee is entitled to whichever of the following the employer determines:
(a) a paid day off on the day in question; or
(b) a paid day off within a month of that day; or
(c) an extra day's annual leave; or
(d) an extra day's pay.
For example, if one of the public holidays listed falls on a day that is not usually worked by employees, such as Saturday or Sunday, the employer may decide on which of options (b) to (d) to apply, depending on the circumstances.
The employee can request, not later than 21 days before the public holiday, that the employer nominate which of the above options will apply to the employee in regard to an upcoming public holiday. If the employer fails to nominate one of the options 14 days prior to the public holiday, then the employee will automatically be entitled to a paid day off on the public holiday.
Determining Entitlement
All full-time employees are automatically entitled to public holiday benefit. Part-time employees qualify for public holiday entitlement provided they have worked at least 40 hours during the five weeks ending on the day before a public holiday. Employees who work or are normally rostered to work on the public holiday are entitled to a day's pay for the public holiday. Employees who are not normally rostered to work on the public holiday are entitled to one fifth of their normal weekly rate of remuneration for the public holiday.
Take, for example a public holiday that occurs on a Monday. An employee who normally works 24 hours a week based on 8 hours each Monday, Tuesday and Wednesday is entitled to 8 hours public holiday entitlement as the public holiday occurs on Monday, one of his/her normal working days. An employee who works 24 hours per week based on working 8 hours each Wednesday, Thursday and Friday will be entitled to 4.8 hours, which is one fifth of his/her normal working week as the public holiday falls on a day that he/she would not normally work.
Absence and Public Holiday Entitlement
Employees absent due to maternity leave, adoptive leave, parental leave, annual leave and jury duty accrue public holiday entitlement as if they were at work. Employees on carer’s leave continue to accrue public holiday entitlement for the first 13 weeks absence on carer’s leave.
The following type of absences occurring immediately before the public holiday will not be entitled to public holiday benefit.
• Absence in excess of 52 weeks due to occupational injury;
• Absence in excess of 26 weeks due to illness or injury;
• Absence in excess of 13 weeks by reason not referred to above authorized by the employer including lay off;
• Absence by reason of strike.
Termination of Employment
Employees who leave the employment during the week ending on the day before a public holiday, having worked the 4 weeks proceeding that week, are entitled to receive benefits for that public holiday.
To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here
Payment in Lieu of Notice
To follow on from last week’s blog about notice periods, I thought I’d throw some light on how paying an employee in lieu of notice operates.
When an employee’s contract is put on notice of termination, be it through redundancy, dismissal or resignation, rather than the employee working for the specified period of notice, employers may prefer, for varying reason, to terminate the contract immediately. This would involve paying the employee up to the end of the specified notice period but terminating the contract with immediate effect i.e. paying in lieu of notice.
Waiving the right of notice
The Minimum Notice and Terms of Employment Acts 1973 to 2005 allows for either party to voluntarily waive their right to notice. For example an employee may want to leave before the notice period has expired and the employer agrees. In that situation the contract ends on the date the employee physically leaves the employment and the employer is not liable for any further payment beyond this date.
What the Contract of Employment states
Under the Minimum Notice and Terms of Employment Acts 1973 to 2005, in order for the employer to have the unilateral right to pay in lieu of notice a clause allowing payment in lieu of notice must be included in the contract of employment. If this clause is not included in the contract, then paying in lieu of notice has to be by agreement between the employer and the employee.
In a situation where an employee accepts an employers offer to pay in lieu of notice, the date the contract ends is the date on which the employee physically leaves the employment. However, the date that the notice would have ended, often referred to as the notional termination date, is the date that the employer must use to calculate normal pay due and to calculate the annual leave entitlement of the employee. In a redundancy situation where payment is made in lieu of notice, statutory redundancy entitlement must also be calculated up to the notional termination date.
There is a further issue to consider. If the clause allowing payment in lieu of notice is included in the contract, then the employee will be liable to pay tax on the notice period payment. If, however it is not included in the contract, but is agreed between the parties, then the payment for the notice period is not taxable.
To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here
Notice Periods
One question that comes up time and time again is how much notice an employee has to give their employer when leaving the employment. The answer is quite simple, one week or whatever it states in the contract of employment.
There is no obligation for an employee to give any more than one week’s notice of their intention to leave a position so employers who don’t have a different period of notice specified in the contract/written terms and conditions of employment could find themselves short staffed at short notice.
There is an assumption amongst many, that the Minimum Notice and Terms of Employment Acts 1973 to 2001 dictate the length of notice, but it is important to remember that this only applies to employers giving notice to their employee. The regulations in this case are as follows:
• Length of Service from 13 weeks to less than 2 years: 1 week’s notice required.
• Length of service from 2 years to less than 5 years: 2 weeks’ notice required.
• Length of service from 5 years to less than 10 years: 4 weeks’ notice required.
• Length of service from 10 years to less than 15 years: 6 weeks’ notice required.
• Length of service of more than 15 years: 8 weeks’ notice required.
The contract of employment may specify a notice period that is different to what is set out in the regulations above. In that situation, the rule is that whichever is the longer is applicable. For example the contract may specify 4 weeks’ notice but if the employee has 10 years’ service the employer is obliged to give him/her 6 weeks’ notice in accordance with the Act. If however, the employee has 2 years’ service, then the length of notice will be 4 weeks as set out in the contract.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Record-keeping Requirements
Employers need to be aware that there are regulations which place a requirement on them to retain certain information in relation to their employees for specific periods of time. The National Employment Rights Authority (NERA) has the authority to attend a company’s premises and conduct an inspection and the company will need to be able to provide them with a number of details.
• Employer’s registration number.
• A list of all employees including full names, addresses and PPS numbers.
• Dates of commencement and if relevant, dates of termination of employments.
• Written terms of employment for employees.
• Employee’s job classification.
• A record of annual leave and public holidays taken by each employee.
• Hours of work for each employee.
• Copies of payslips and payroll details for each employee.
• A register of employees under 18 years of age.
• Details of any board or lodgings provided.
• Employment permits or evidence that a permit is not required for non-EEA nationals.
A NERA inspection can be initiated
a. In response to complaints received of alleged non-compliance with relevant employment rights legislation.
b. As part of NERA’s compliance campaigns which focus on compliance in a specific sector or a specific piece of legislation.
c. Routine inspections.
Apart from the requirements of NERA, there are a number of other documents that employers are required to retain. These include details of Parental Leave, Force Majeure and Carer’s Leave.
Employers should also be mindful that there are other documents that are not covered by regulations that they would be best advised to retain. Documentation relating to recruitment, training and health and safety may prove indispensible in the event of a dispute and should be kept on file for a period of time. For example an employee may dispute that they were not trained on a particular part of his/her role or that they were not informed of a particular policy within the organisation that he/she had contravened. The employer will need to have the records in place to demonstrate that this training/informing did take place.
For a list of some of the main requirements and recommendations. See http://www.brightcontracts.ie/downloads/RecordKeepingRequirements.pdf
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Read more at www.workplacerelations.ie >
Restrictions on Bulgarian and Romanian workers removed
The Government has decided to cease restrictions on labour market access in respect of Bulgarian and Romanian nationals, to the Irish labour market. This decision was made on the 17th July 2012 and is effective from the 1st January 2012 and means that all Bulgarian and Romanian nationals can work in Ireland without a requirement for work permits.
What is a work Permit?
A Work Permit is an employment permit issued to the employee, which permits his or her employment in the State by the employer in the occupation specified on the permit. It will be issued for an initial period of two years and can then be renewed for a further three years. After five years, the work permit can be renewed indefinitely.
Guidelines and application forms for work permits can be found on the Bright Contracts website. http://www.brightcontracts.ie/docs/work-permits/
Bright Contracts – Employment contracts and handbooks.
BrightPay – Payroll Software
Dismissal during Probation
Many employers are of the mistaken belief that if an employee is still in his/her probationary period, that they are not obliged to follow their own disciplinary process in dealing with that employee and can dismiss that employee without due process if they so decide.
In a recent case the Labour Court noted that the employer confirmed that it did not follow it's own disciplinary procedures as it was of the belief that it was not obliged to do so as the Claimant had less than one year’s service. In that case the employee was awarded compensation of €5,000 as the dismissal was found to be unfair on both procedural and substantive grounds. This is well trodden ground for employers and numerous Labour Court decisions over time have established that the employer must follow fair procedures within a probationary period.
The Code of Practice on Grievance and Disciplinary Procedures outlines the principles of fair procedures for both employers and employees and can be taken into account by the Court in assessing any case. Employers are obliged to provide all employees with written details of the dismissal process in operation in an organisation within 28 days of commencement, whether through an employee handbook or separate procedures. It is therefore important for employers to ensure that these established procedures follow best practice and comply with the guidelines outlined in this code. It is imperative for the employers to follow these procedures as set out.
The purpose of a probationary period is to evaluate an employee’s performance in doing a job and potential abilities to determine their suitability for the position. The implementation of this evaluation is a process specific to the probationary period, but as with disciplinary procedures the principles of natural justice must apply. Any shortfall in performance should be discussed and documented during the course of the period. In this way the employee is made aware of the issue and is given an opportunity to improve. A formal performance review meeting should be held between the employee and the manager at the end of the period.
The bottom line is that a probationary period does not give the employer a free hand to ignore their own procedures.
Bright Contracts – Employment contracts and handbooks.
BrightPay – Payroll Software
Read more at www.brightcontracts.ie >
Reference Letters - Stick to the Facts
A recent decision by the Labour Court highlighted once again the importance of having control over the issuing of references to current or past employees.
The case involved the HSE and an employee and the Labour Court found that the employee had a permanent job offer withdrawn by the HSE on foot of an internal reference that contained inaccurate and incorrect information about her work performance and employment record. The Court recommended that the employee be continued in employment by the HSE in a temporary capacity without interruption pending her appointment to the first next suitable and appropriate permanent vacancy that becomes available.
The employee had made efforts to have the reference removed or corrected but it was retained on file and the Court also recommended that the employee be paid a sum of €10,000 in compensation for the delay in dealing with and addressing the issues raised and the distress caused to her.
Employers are advised to think carefully about how they approach the writing of reference letters for current or past employees. It is important to take a consistent approach for all employees and this can best be achieved by ensuring that all letters come from a central source rather than letting individual managers write references for their own staff. It is advisable that the letters are limited to factual information about the employee’s career with the Company such as start date, position, job description, working hours, changes to their role over the course of employment, promotions, locations changes and changes to working hours. Employers should refrain from making any subjective assessment on how the employee performed in their role.
Bright Contracts – Employment contracts and handbooks.
BrightPay – Payroll Software.
Unfair Dismissal ruling against Supermac's for dismissing an employee accused of theft
A FORMER Supermac’s employee, who was fired after being accused of stealing from the restaurant in Portlaoise where he worked, has been awarded more than €33,000 by the Employment Appeals Tribunal for unfair dismissal.
Despite the Garda dropping charges against him, Daryl Mason was dismissed for gross misconduct from his position as a store supervisor following an in-house investigation by Supermac’s into missing cash lodgements. His appeal to the company’s human resources manager failed.
In making its determination, the tribunal noted the area manager had been “too hasty” in making his decision to fire Mr Mason.
The tribunal awarded Mr Mason €32,000 under the Unfair Dismissal Acts, 1977 to 2007, and a further €1,700 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Bright Contracts – Employment Contracts and Handbooks
BrightPay – Payroll Software
Read more at www.irishtimes.com >
Costs of Employment Set to Increase
At a recent launch of a new government website, Minister for Jobs, Enterprise and Innovation Richard Bruton TD stated that:
A key part of our plan for jobs and growth is reducing costs, particularly by reducing where possible that Government regulations impose on business.
Recent speeches and mutterings coming from the Government parties suggest however, that the burden being imposed on employers is likely to increase rather than reduce. Some of these mutterings may be considered as kite-flying on behalf of the Government, but can only lead us to conclude that employers need to be prepared to face higher costs of employment.
Minister for Social Protection Joan Burton has suggested in a speech that the PRSI contributions of employers will have to increase and we are facing the prospect of employers being made responsible for the payment of sick leave to their employees. These extra costs are likely to affect the small firms in particular who are already struggling to maintain jobs in a difficult environment. This follows on from the reduction of rebate on statutory redundancy from 60% to 15%, which was made in the budget last December.
If the proposals on sick pay are introduced, employers who currently don’t pay any sick pay will find themselves with an immediate extra cost. At the moment if the business is able to get by without the absent individual and the state pays the benefit costs, the employer may ignore the absence without seeing an effect on their cash flow. The emphasis will have to be different if these changes go through and employers will have to proactively manage the issue.
As part of this absence management, and in order to reduce the exposure to higher costs, it is important that employers ensure that details on how certified absence will be managed within the company are included in the contract of employment and handbook.
Bright Contracts – Employment contracts and handbooks.
BrightPay – Payroll Software
No Employee Contract - Barman Sacked for Being Drunk Wins Unfair Dismissal Case
Gerard Clery a former Barman, of The Mall Bar, Limerick, was dismissed by his employer after receiving customer complaints that he was drunk while working has been awarded €3,000 by the Employment Appeals Tribunal because his employer did not put a Contract of Employment in place.
Despite arguments by both parties as to whether or not Mr Clery was actually drunk on the night of 4th April 2010 the Employment Appeals Tribunal ultimately found in favour of the former employee Mr Clery due to the fact that no contract was in place and disciplinary procedures were “non-existent”.
Mr Clery was awarded €2,200 for unfair dismissal and a further €800 under the Minimum Notice and Terms of Employment Act.
Bright Contracts – Employment contracts and handbooks.
BrightPay – Payroll Software
Read more at www.limerickleader.ie >
