Employment (Miscellaneous Provisions) Act 2018
The Minister for Employment Affairs and Social Protection, Regina Doherty has confirmed the new Employment Bill, which has been in the pipeline now for a number of years, will come into force on the 4th March. The Bill is being introduced to ‘improve the security of working hours for employees on insecure contracts and those working variable hours’, common in (but not exclusive to) service industries such as hospitality, tourism and retail. These industries often rely on flexibility in the employment contract and therefore the introduction of this new Bill will require them to take note.
The new Act makes certain breaches a criminal offence; where the employer does not comply with the new obligations in the Bill to provide the required information within one month, can lead to criminal prosecution. Fines on conviction could be up to €5,000 or imprisonment of up to twelve months or both. Directors, managers, secretaries or other officers of a company can be individually liable, i.e. be prosecuted individually for offences.
- In summary, the new Act will:
- Prohibit the use of Zero Hour contracts, save for exceptional circumstances
- Obligate employers to notify new employees of five core terms of employment in writing within five days of commencing employment
- Create a new entitlement to ‘Banded Hours’ contracts
- Provide for minimum payments to employees who are required to be available to work but are not actually called to work
The Act also introduces an anti-penalisation provision whereby an employer may not penalize an employee for exercising their rights under the 1994 Terms of Employment Act. An employee who is penalized can be awarded compensation of such amounts as the WRC considers just but will not exceed four weeks remuneration.
The new Act will bring significant changes for Irish employers and employees and according to Minister Regina Doherty; the Act is a “once-in-a-generation reform of our labour market.”
Please visit Brightcontracts.ie for more information on the new Employment Bill which has been in the pipeline now for a number of years and is to be enacted on 4th March 2019.
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Privacy Policies - a GDPR requirement
One of the main principles of GDPR is that Data shall be processed lawfully, fairly and in a transparent manner, these three elements overlap and all three must be satisfied in order to demonstrate compliance.
Employers, as both Data Controllers and Processors, must be able to show how they comply with the new data protection principles and be clear and open with their employees about the processing of data and their rights. The GDPR stipulates that anywhere personal data is being collected, either directly or indirectly, Privacy Notices should be in place, these policies are critical to complying with the transparency obligations in the GDPR. So the introduction of an Employee Privacy Policy will cover the required elements and ensure demonstratable compliance in this regard.
The Privacy Policy should be written in a clear and easily-understandable format and must include;
• What data is processed – name, address, PPS no., bank details, etc.
• How it was obtained – employee detail request form, CV, ROS, etc.
• The ‘legal basis’ for processing the data – contractual necessity, legal obligation, etc.
• Who has access to it and any third parties– HR dept., payroll clerk, pension company
• How it is stored and security – HR system, Thesaurus software, encryptions, etc.
• How long it is kept for –set in company policies or statutory requirements
• The rights of the employee – right to access, rectification, erasure, etc.
• If data is transferred outside the EEA
• Contact details of Data Controller
We have recently upgraded our Bright Contracts software to include a new Employee Privacy Policy feature, so now employers can facilitate the main GDPR principle of lawful, fair and transparent processing of the employee data. We have also updated the Data Protection Policy within the Handbook and the Data Protection Clause within the contracts.
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Why am I getting all these emails about privacy?
Lately you may have noticed your inbox bulging each morning with lots of emails with similar subject lines to these;
“Your privacy = our priority” “GDPR Data Protection – Your Data is Safe with us”
“Big Changes are coming” “Opt-In to continue receiving our great updates”
“GDPR update – please don’t leave us!” “We’re keeping your details safe”
New, tougher European regulations around privacy and the use of personal data have now come into force and could see companies hit with huge fines if found to be in breach of the new laws.
In order for personal data to be processed lawfully, the processor must be able to rely on the reasoning being at least one of 6 categories, the main one being Consent. So if you were previously signed up with a company to receive newsletters or emails about special offers, they can no longer continue to send you these without your explicit consent.
Previous Data Protection Legislation allowed for an option to ‘Opt-Out’ as being sufficient means to mark having your consent, however with the new GDPR this is no longer the case. Consent must be ‘freely given’ unambiguous’ and for a ‘specific purpose’. Consent must be easily read and clearly distinguishable from other text and evidence must be collected as to how consent was obtained.
Consent can no longer be assumed and the likes of pre-ticked boxes that would have needed to be unticked if you didn’t want to register are now banned. Also the facility to Unsubscribe must be clear and an easy procedure to follow.
So all the emails you have been receiving, like those listed above, are those companies that you may previously have signed up with, scrambling to cover themselves for GDPR and not wanting to lose you as a possible customer or sale.
For more information on GDPR and how it may affect your organization, please see our dedicated online support documentation here.
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How GDPR will affect your employee processing
The General Data Protection Regulation (GDPR) will come into force on 25th May 2018 changing the way we process data forever. The aim of the GDPR is to put greater protection on the way personal data is being processed for all EU citizens. Personal data can be anything from a name, an email address, PPS number, bank details etc so as you can imagine employers process a huge amount of personal data on a daily basis. So how will the GDPR affect employers in terms of processing employee data?
Consent
Data in the employment context, will include information obtained from an employee during the recruitment process (regardless of whether or not they eventually got the job), it will also include the information you hold on current employees and previous employees. All this information may be saved in hard copy personnel files, held on HR systems or it could be information contained in emails or information obtained through employee monitoring.
Under GDPR your employee’s will have increased rights around their data.
These rights will include:
- The Right to Access. It’s not a new concept that employees will be able to request access to the data you hold on them. However, there is a new recommendation that where possible employers should provide their employees with access to a secure self-service login where they can view data stored on them. This backs-up the whole concept of transparency and ease of access to data, which underpins the new Regulations.
- The Right to Rectification. Individuals are entitled to have personal data rectified if it is inaccurate or incomplete. This is an existing right and the onus is on the employer to ensure that your employee records are kept up-to-date. To help ensure you maintain up-to-date records, employers should make it easier for employees to update their data.
- The Right to be informed. Employers must be very transparent with employees about what data you hold, why and how long it is held for. Up until now it has been the common practice for many employers to include a standard clause in the employment contract regarding the processing of HR Data, under GDPR that will no longer be sufficient. Employers need to be reviewing their Employee Data Protection Policies and possibly writing new Employee Privacy Policies that go into detail on the processing of employee data.
Employee self service
Under the GDPR legislation, where possible employers should be able to provide self-service remote access to a secure system which would allow employees view and manage their personal data online 24/7. Furthermore, the cloud functionality will improve your payroll processing with simple email distribution, safe document upload, easy leave management and improved communication with your employees. By introducing a self-service option, you will be taking steps to be GDPR ready.
For information on how long to keep on employee files please see our blog: How long should you retain employee records under GDPR?
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What harm can two jam tarts make?
The Employment Appeals Tribunal decided an employee was fairly dismissed when jam tarts were found missing from a packet. The man in question, Moran, worked in the warehouse for Keeling’s Logistics Solutions, who operated as a distribution company for the supply of goods to just one customer.
An investigation was carried out when the security manager saw Moran and a colleague “acting suspiciously” beside an open cage, containing boxes of jam tarts. He claimed to see the cage being moved and that he saw the men eating something and putting their hands inside the cage. The investigation found that Moran had tampered with a packet of jam tarts and two individual tarts were missing. CCTV footage was reviewed and the men claimed that they were sharing a Mars bar and denied eating the jam tarts.
Finding
The employer had a strict policy that no stock would be consumed on the warehouse floor and installed vending machines on the shop floor to prevent staff tampering with and eating their stock. The employer carried out a disciplinary procedure and dismissed Moran, who then appealed the decision but lost. The EAT found that Moran’s evidence was not credible and on the balance of probability that he did tamper with the stock.
“The Tribunal also found that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.”
Learning Points
The importance of having firm policies and applying procedures when dismissing an employee are prominent in this case. 80% of unfair dismissal cases are lost by employers not because they didn’t have a good reason for dismissing the employee but because they have failed to follow fair procedures. As an employer, you do not want to be subject for a hefty unfair dismissal claim that could have been easily avoided.
Bright Contracts - Employment Contracts and Handbooks
Using CCTV in the Workplace – What you need to know
Whilst commonly used across many Irish workplaces, the use of CCTV raises issues regarding data privacy for both the employer and employee. This is particularly true considering the increasing capabilities of CCTV including face recognition and voice recording capabilities.
The Data Protection Commissioner recently issued new guidelines in relation to CCTV which apply to its use in the workplace.
Key features of these guidelines include:
- CCTV use must be justified
- Example: if monitoring for security reasons, CCTV should address specific concerns that arose prior to the installation of the system.
- Images captured must be reasonable
- Example: if using CCTV externally every effort should be taken not to capture passers-by or neighbouring property.
- Detailed assessments should be conducted
- Where CCTV in place in the workplace employers should be able to show that:
- A risk assessment was conducted to justify the need for CCTV,
- A privacy impact assessment was conducted,
- A policy should be in place for staff which includes details on why CCTV is in place, where it is, how it is captured, who has access to the data, and how long it is retained for,
- There is evidence of previous incidents giving rise to security and/or health and safety concerns,
- Clear signage is in place indicating where recording is in operation.
If you use CCTV in your workplace and would like further information, a full guide for Data Controllers is available on the Data Commissioner’s website.
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Parental Leave & Force Majeure
Following on from our previous posts on Protected Leave, we will now look at Parental Leave and Force Majeure.
Parental Leave has been available in Ireland since 1998 having been implemented to allow working parents take time off to look after their children.
Parental leave is available to all workers with 1 years’ service, exceptions can be made where the child is near the age threshold. Under the legislation each parent is entitled to 18 weeks’ parental leave on the birth of a child / placement of a child for adoption. The leave may be taken up until the child’s 8th birthday, or 16th if the child has a long term illness.
Parental leave is unpaid leave, employers are not required to pay employees on paternity leave, nor is there a social welfare payment, equivalent to maternity pay, for paternity leave. However, as with all protected leave, the employee still retains their rights to accrual of normal entitlements, i.e. holidays, public holidays, etc.
With regard to taking parental leave, the rules are quite flexible. Legislation states that the leave may be taken in one continuous period or in two separate blocks of a minimum of 6 weeks. It is also stated where an employee has more than one child they may take a maximum of 18 weeks in any 12 month period. However, employers are free to agree alternative arrangements in relation to all of the above depending on their own business needs.
Should an employer receive a request for parental leave they may postpone the request for up to 6 months, based on business needs, e.g. work cover or seasonal work loads. Normally only one postponement is permitted.
Parental leave is not transferable between parents. However, if both parents are employed by the same employer, the employer may agree for up to 14 weeks of the leave to be transferred between parents.
Force Majeure is paid leave that can only be used for urgent family reasons whereby the presence of the employee is immediately required. It may be taken in respect of immediate family members only, i.e. child, parent, sibling, grandparent.
“Force Majeure” (greater force) is paid leave of up to 3 days in any 12 month period or up to 5 days in 36 months which can be taken for family emergencies.
It is not an annual entitlement so therefore should not be treated as part of an employee’s annual leave calculation.
Bright Contracts has a Parental Leave and Force Majeure policy built into the software, however, this can be reviewed and adjusted accordingly to suit your own companies’ requirements if necessary.
Bright Contracts - Employment Contracts and Handbooks
7 Employment Myths
We've clarified the truth on some of the most common employment law myths.
Myth 1: No employment contract exists if there is nothing in writing or signed.
Fact: Even verbal agreements are binding. An employment contract exists from the moment a job offer is accepted. Legally, an employer should within two months of an employee starting work, issue a written statement of terms and conditions of employment. Even if this document has never been issued a binding employment contract still exists. The written statement does not have to be signed so if an employer issues one but the employee does not sign it, the employer and the employee are still bound by the terms stated in it.
Myth 2: Holidays start to accrue once the probationary period is successfully completed.
Fact: Holidays start to accrue from the first day an employee is employed. The existence of a probationary period will not affect a new employee's length of service or statutory employment rights.
Myth 3: Employees can say when they take their holidays.
Fact: Employees requests for annual leave can be refused by an employer for business reasons. However, when considering leave requests employers should also bear in mind the employees family responsibilities and entitlement to rest periods. Based on business needs employers can specify certain periods where annual leave can or cannot be taken. Employers should consult with employees at least one month before any holidays are due to commence.
Employers are advised to agree with employees how and when employees should give notice of annual leave. But in the absence of any agreement it is recommended that the notice period should be at least twice the period of leave to be taken. So for example if a weeks’ leave is requested then two weeks’ notice should be given.
Myth 4: Employees on long-term sick leave should be left alone.
Fact: Although employers should not put undue pressure on employees who are on long-term sick leave, they are entitled to find out more information about the illness with the aim of establishing when and how the employee could return to work. This would include consultation with the employee and, with permission, writing to the employee's GP (and any specialist) to find out about the employee's condition, the prognosis and whether there is anything the employer can do to help facilitate their return (such as reduced hours).
Myth 5: If an employee is on maternity leave it’s illegal for an employer to contact her about any work-related issues.
Fact: Employers can and should keep in contact with employees on maternity leave. It’s good practice to agree beforehand how this contact should take place and to be sensitive to an employee’s circumstances and preferences. You could agree when is best to telephone, write letters or email employees about workplace developments.
Myth 6: An employee’s continuous service resets after moving roles within a company.
Fact: Moving roles within the same company does not ‘reset’ an employee’s continuous service. Although after the move the employee may be in probation, this does not mean that their previous service for the same employer can be discounted.
Myth 7: A worker cannot be accompanied by a trade union representative at formal meetings unless the employer recognises the union.
Fact: Workers have a statutory right to be accompanied at formal discipline and grievance hearings by a trade union official, and there are no requirements regarding whether the specific union has been recognised by the employer or not. Alternatively, a worker can be accompanied by a colleague.
Bright Contracts - Employment Contracts and Handbooks
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
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”.
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