Don't Get Caught Out: Maximum Award For The Employee Against Mandatory Retirement
Ensuring you are fully compliant with Irish employment law is a must when looking at ending an employees employment whether it be by termination or retirement. The following case is an example as to how not taking the right steps can lead to a huge cost for the employer.
The Case: Senior Staff Nurse Vs Nursing Home
The Complainant was employed as a senior staff nurse from the 10th May 2014 until the date of her compulsory retirement on the 28th October 2019, by the Respondent, a nursing home in liquidation. She received remuneration of approximately €5,883 per month gross. The Complainant sought an award of compensation in respect of discrimination suffered, loss of almost a year’s work and loss of redundancy payments before the Respondent closed and went into liquidation.
The Complainant was initially provided with a “Relief Panel Fixed Term Contract” requiring her to work ‘as required and when the need arises, varied hours up to 39 hours of a standard 39 hour week’. This included a retirement clause stating ‘Retirement age is 65 years. Employment beyond retirement age is exceptional and only by agreement of the employer.’ There were no further renewals of this contract, and it therefore effectively became a contract of indefinite duration. The Complainant was granted a one-year extension on her compulsory retirement, setting her new retirement date as the 31st of October 2019.
In July 2019, the Complainant entered discussions with Ms. A, who was the Clinical Nurse Manager and the Complainant’s line manager in regards to continuing her employment following the 31st of October 2019. Here, Ms, A. indicated her support for this and told the Complainant to apply for an extension in writing which she did, she did not receive a response. In absence of a response, the Complainant went straight to the Director of Nursing, Mr. B where he informed her that this would not be possible and that they would only have work for her until the end of October 2019. He also informed her verbally that there was a plan to recruit non-EEA national nurses to fill positions with the Respondent. Non-EEA national work visas can only be applied for by employers when no suitable EEA nationals were available to work in the same occupational category. The Complainant asserts that the Respondent did not offer any rationale or objective justification for their decision to terminate her employment.
On 25th October 2019, the Complainant received her final communication from Mr. B confirming that her last working day would be 28th October 2019. Non-EEA nurses were recruited in November 2019 and took over the Complainant’s duties. The Respondent operated for a further eleven months and was then subject to High Court Winding-Up Proceedings on the ground of insolvency. Some staff were redeployed nearby, others received statutory redundancy and approximately €3,000 ex gratia payment which the Complainant had been denied. She had received an excellent reference from Ms. A, which the Complainant asserts proves that she was dismissed based purely on age. The complaint was referred to the WRC on 28th February 2020 where noo evidence was provided in rebuttal of the complaint that the Respondent had acted unlawfully and in breach of the Employment Equality Acts on the ground of age.
Decision: The Adjudicator found that the only basis for the Complainant’s compulsory retirement was her date of birth, and that at the time she was provided with the Fixed Term Contract in 2018 upon her reaching the age of 65, no objective justification was given either verbally or in writing. The Adjudicator was satisfied that there was sufficient work available that the Complainant was fully capable of undertaking. The Respondent was ordered to pay the Complainant €85,000, being 2 years’ remuneration, in compensation for breaches of the Employment Equality Acts.
The takeaway of this case for employers is they should note that compulsory retirement must have an express valid reasoning and justification behind it, and that it is not exempt from being construed as discrimination on the basis of age.
Related Articles:
- Retirement in the Workplace: Is it enforceable?
The Essential Elements of a Hybrid Working Policy
Following on from our previous post 'Your Must Have Hybrid-Working Checklist' having hybrid working policies and agreements in place is essential when returning employees to the office and agreeing a split between working form home and in the office. We see the important elements of a hybrid working policy to be the following:
1. Detail the split between attending work and working remotely
Your hybrid working policy should detail the split between attending work and working remotely and state what number of days an employee will spend attending the workplace and working remotely. The number of days will depend on but is not limited to some of the following;
- the nature of the employees role
- what is happening within their role and team at any particular time
- individual circumstances
- the needs of the business, including space available at the businesses work locations
2. Working Hours
The working hours the employee must work in the office and at home must be stated, for example: For days on which the employee is attending the office, their normal hours of work are set out in their contract of employment.
Ensure you also detail that while working remotely, they must be available and working during their normal hours of work, as set out in their contract of employment while also listing the break and lunch times and being clear that they must avoid overworking, down time from work is essential.
3. Safe-Working While Working Remotely
Detail the procedure your employees must follow should they have any health & safety concerns while working at home, for example; if any work-related accidents occur in your home.
4. Remote Working Procedures
This section of the policy is where you will detail:
- Sickness Absence
- Compliance with Policies
- Technology & Equipment
- and a reference to data protection
Bright Contracts have recently updated the software to include a hybrid working policy which can be found under the 'Terms & Conditions' section of the handbook. If you'd like to preview this content prior to consider purchasing a licence you can do so here.
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- Your Must Have Hybrid-Working Checklist
- The Link Between Hybrid Working & Employee Engagement
Your Must Have Hybrid-Working Checklist
The coronavirus pandemic has completely changed how we live, not just in our personal lives but the way we work too. With hybrid-working becoming a dominant feature in the workplace for everyone businesses are now faced with developing a hybrid policy, creating agreements with their employees and ensuring the success of these arrangements. We believe that preparation is essential for employers when implementing hybrid working which is why we have developed a checklist for employers which can be followed when looking an the implementation of a hybrid model:
Step 1: Look at what works best for your organisation
Step 2: Communicate your intentions
Step 3: Written agreements
Step 4: Implement your hybrid policy
and 5: Refer back to your covid-19 response plan
- Step 1: Hybrid working can bring huge benefits in terms of productivity, flexibility and employee wellbeing – but it’s not the best option for everyone.Think carefully about what your organisation has learned during the pandemic and how your people feel about it. What have been the benefits of working at home and the disadvantages of not being together in the workplace? If hybrid working does appeal, think about what would be the best blend – more home working or more time in the office. Ensure you also look at your HSA health & safety checklists for office and home working. The HSA has these checklists available on the HSA website.
- Step 2: Once you’ve worked out what could work best for your business, make sure you communicate your plans to your employees. Do this well in advance of any change so employees have a chance to feed back their views.
- Step 3: You must ensure you have written agreements in place with your employees which communicates what is expected of them in order to avoid any confusion and any possible future disputes. Bright Contracts have template hybrid working letters available on the Bright Contracts website which can be downloaded here and edited to suit your businesses hybrid model arrangements.
- Step 4: Once written agreements are in place next you need to implement a hybrid working policy within your organisation which we have just made available on our Bright Contracts Software. We hope this provides organisational leaders and business owners a simple but effective framework to make hybrid working a successful reality. With government guidelines on safe working constantly changing in response to the pandemic, hybrid working policies need to be reviewed much more regularly than most other policies
See our follow up blog post 'The Essential Elements of a Hybrid Working Policy' to read what your hybrid policy should detail.
Bright Contracts has a hybrid working policy available in the software which is available under the 'Terms & Conditions' tab. If you'd like to see a sample of this content you can do so by downloading the software and availing of a free trial. we have also recently upgraded our software to include hybrid working in the employment contracts which can be viewed in the contract section fo the handbook under the heading 'Places of Work'.
Related Articles:
- Hybrid Working: Know The Basics
- The Link Between Hybrid Working & Employee Engagement
Introducing Contracts & Handbooks to Existing Staff
Introducing a contract of employment or a handbook for the first time to current employees, can be a difficult, tricky matter. Employees may view the new documentation as an intrusion, representing a new set of rules and regulations that threaten to make their lives uncomfortable. However, this does not have to be the case, you can introduce new documentation without alienating your work force. The answer lies in good communication and clear and concise documentation.
Here’s our step-by-step guide to introducing your new Bright Contract’s employee documentation to existing employees.
1. Hold an Initial Group Meeting
The purpose of this meeting will be to:
- Notify employees of the introduction of the new contracts of employment and staff handbook.
- Explain why they are being introduced.
- Give a brief overview of what is contained in both documents:
- Contract of Employment: confirms the employee’s basic terms and conditions and is fully compliant with the Terms of Employment Act
- Staff Handbook: gives a brief overview of the type of policy that is contained in the Handbook, for example you may wish to highlight a Dress Code policy
If you are a small company, hold a company-wide meeting, inviting everyone. If your employee numbers mean this is not feasible, hold department or team meetings, ideally meeting with all affected staff on the same day to ensure a consistent message is being delivered to all staff thus preventing any misunderstanding, or false narratives starting. For any employees who are not present for the meeting ensure to debrief them as soon as possible.
At the Meeting
Ensure Top Management are Involved
It is extremely important that senior management are actively involved in introducing the new documentation to show this is a company-wide initiative, supported at the highest level.
Explain Why you are Introducing the Documentation
Give clear reasons why the business is implementing the documentation, for example:
- We want to promote a culture of consistency and fairness in our company, where everyone knows the protocols and knows what is expected of them and what they can expect from the Company.
- We want to ensure we are fully compliant with employment law legislation
Emphasis the Value to the Employee
Explain to employees that they have legal rights and that the policies set out in the handbook demonstrate that the company is complying with the law and honouring their rights.
Promote the handbook as a point of reference for employees for confirmation on how a particular issue will be dealt with e.g. probation, disciplinary procedure etc.
2. Distribute the Documentation
Contracts of Employment
The Contract of Employment is a confidential document between the employer and the employee therefore all communications regarding the contract of employment are to be kept confidential. Therefore we suggest the following:
- Issue 2 copies of the contract of employment to the employee in a sealed envelope
- Give the employee a timeframe to read, review and sign the contract
The Staff Handbook
Following the meeting the Staff Handbook should be made available to all employees. Possible ways to do this can include:
- Print and give each employee a hardcopy of the handbook
- Print a number of handbooks and place them in communal locations in the place of work, e.g. the staff room
- Email the handbook to each employee
- Save and store the handbook in a communal location on your local drive, where it is easily accessible by all
Give staff a timeframe, e.g. 2 weeks, to read the handbook and formulate any questions they might have.
Both the staff handbook and contract of employment in Bright Contracts are available to be printed and exported as a PDF for distribution.
3: Be Prepared to Take Questions
Employees are likely to have questions, be prepared and open to answer any questions or clarify any points that employees might have. Keep open honest communications, listen to the employee’s comments, they may raise some valid issues that need to be addressed. Or employees may simply need clarification on a particular term. (The information snippets on your Bright Contracts program may help you address some employee concerns.)
Once you have had the initial staff/team meeting, it is not necessary to have further team meetings. Conversations at this point tend to be personalised, it is therefore recommended that queries are discussed individual and privately with each employee.
4: Collect Signed Documentation
Employees should sign both copies of the contract of employment, returning one to you and keeping a copy for themselves. Once the signed contract is returned, it should be placed on the personal file for future reference.
If the terms and conditions of employment (e.g. pay, hours etc.) have remained unchanged it is not essential to seek signed agreement from existing employees, however it would always be preferable. If an employee refuses to sign a contract after open discussions and no changes to the basic terms have been put forward, make a record on their file that they were given the contract and were given opportunity to discuss and fully understand the contracts, include dates and evidence of the communications.
If the terms and conditions of employment are being changed then it is important for employers to seek agreement from the employee before implementing any change. In this situation the employer should receive a signed copy of the revised contract.
There is no requirement to reach agreement with the employee on the Staff Handbook, however it can be useful to ask employees to sign to confirm that they have received and reviewed the handbook.
Related Articles:
- Hybrid Working: Know The Basics
- The Link Between Hybrid Working & Employee Engagement
Retirement in the Workplace: Is it enforceable?
Retirement is a topic that is continuing to gain momentum in the employment law sphere. In the past number of years, there has been a surge in case law directly linked to retirement age of employees, and whether organisations can stand over compulsorily retiring employees from work on the attainment of a certain age. At present, there is no compulsory retirement age for employees across Ireland, however that is not to say that organisations cannot enforce retirement age for employees of the organisation if objectively justified and there is a solid business reason.
The default retirement age has historically been 65, however with the state pension age currently at 66, increasing to 67 for those born between 1955 and 1960, and 68 for those born after 1960, many employers are reviewing their company retirement ages. It should also be noted that the mandatory retirement age for most public servants is now 70.
Where a retirement age is in place and specified in the contract of employment, employers are advised to include a 'Retirement Policy' in the employee handbook. A retirement policy should set out objective justification for the retirement age, which is a legally necessary requirement to ensure a legitimate retirement age (as per The Equality (Miscellaneous Provisions) Act 2015). The objective justification must be reasonable and must aim to achieve a legitimate objective. What is an objective justification will depend on the role and the company, however as guidance, reasons which have been accepted by the courts in the past include:
- Health & Safety: It may be justifiable to have mandatory retirement ages for employees who work as drivers, pilots and in jobs which are physically demanding. In setting a mandatory retirement age, an employer would need to identify risks and hazards, rather than simply following a historically established retirement age.
- Succession Planning and establishing an age balance in the workforce: Employers need to plan for the future in order to ensure that they have the right people in place to support the business into the future. Mandatory retirement ages have been held to promote this by facilitating the retirement of older employees which opens up opportunities for younger employees who may have differing skill sets and experience.
- Encourage the recruitment and promotion of younger people: It has been successfully argued that mandatory retirement ages encourage employees to stay with, and progress within an organization and to motivate employees by the prospect of being promoted into more senior roles.
Code of Practice on Longer Working
In 2018, the WRC published a Code of Practice on Longer Working. Whilst the Code is not legally binding it does hold considerable influence and employers are minded to act in line with its contents. In summary, the Code of Practice deals with four issues:
- the utilisation of the skills and experience of older workers;
- the objective justification of retirement ages;
- practical retirement arrangements in the workplace;
- dealing with requests from employees to work beyond the normal retirement age
It is best still practice to specify a retirement age in contracts of employment so as to ensure that a compulsory retirement age forms a part of the employees terms and conditions. It is important for the organisation to be consistent in enforcing their retirement age to correspond with the contract. If an organisation deviates from this contractual condition, it may set precedence for the future.
The policy provided in Bright Contracts has been written to address the issues set out in the Code of Practice, however it must be noted that it is a draft policy. Before implementing this policy employers should review the content and ensure the content, particularly the objective justification included, genuinely apply to their company. Amendments can be made once the section has been included in the Handbook.
Your GDPR Questions Have Been Answered!
GDPR/ the General Data Protection Regulation has been around since May 2018 but the stipulations surrounding GDPR can still be confusing at times which is why we decided to cover this topic as FAQ's but firstly to explain what GDPR is, it is the toughest privacy and security law in the world. Even though it was drafted and passed by the European Union (EU), it imposes obligations onto organizations anywhere, so long as they target or collect data related to people in the EU. Under GDPR you have a fundamental right of access to your personal data from data controllers.
What is personal data?
Personal data is information that relates to you, or can identify you, either by itself or together with other available information. Personal data can include your name, address, contact details, an identification number, IP address, CCTV footage, access cards, audio-visual or audio recordings of you, and location data.
What personal data can employers lawfully process?
GDPR states that to be able to ‘Lawfully Process’ personal data you must be able to fall into at least 1 of the 6 processing classifications, the first one being Consent. Consent must be:
- Specific, informed, unambiguous, and freely given – there must be evidence that clear affirmative action has been given.
- Must be for a specified purpose
- Where consent is obtained as part of a larger document covering other things, consent text must be clearly distinguished from everything else
- Evidence needs to be retained as to how the consent was obtained. For example; forms, brochures signage, website screenshots.
- Language must be accessible and easily understood.
- Have a clear and seamless opt-Out process in place.
- If you have mailing lists that you’ve used pre GDPR you will not be able to continue using them if you haven’t got specific approval or consent from the individuals.
Do we need to ask for consent from our employees to process their data?
No, as the reliance for processing and retaining their data will be down to lawful processing because of the employer’s legal obligation to deduct taxes etc. and also down to the contractual agreement in place to pay them and pay forward the taxes owed on their behalf. And also to the nature of the relationship between the employer and the employee, the status quo is in the employer’s favour so consent would not be unambiguous or freely given.
Is the emailing of pay slips permissible under GDPR?
There is nothing in the GDPR that states it is no longer permissible to email payslips, this practice is still very much acceptable. The thing to keep in mind in relation to emailing payslips is to ensure that all appropriate security measures are in place. The payslips that are emailed from BrightPay are encrypted and deleted from our servers once sent, however it may also be prudent of a processor of the payroll to password protect the payslips also. It will be the responsibility of the Data controllers (employers) to be vigilant that correct email addresses are inputted.
Do I need to provide my employees with training about GDPR?
It is advised that employers provide training to all individuals about their data protection responsibilities as part of the induction process. Additional training should be provided at regular intervals thereafter or whenever there is a substantial change in the law or The Company’s policy and procedures.
If data protection is breached, what are the consequences?
It is important that you comply with the GDPR legislation and put adequate policies and procedures in place. Your organisation can be inspected and could face significant penalties if your practices are in breach of GDPR. The GDPR allows the EU's Data Protection Authorities to issue fines of up to €20 million or 4% of annual global turnover (whichever is higher).
Bright Contracts contains a 'Data Protection' section of the Company Handbook which can be viewed under the 'Introduction' tab. Download a trial of our software to see a sample of this content.
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- How BrightPay Connect is helping with GDPR
- Online Payslips: Their benefits and why you should use them
Time Saving With Bright Contracts
Contracts. . . they are the pain point of every HR professional when recruiting new employees, processing promotions, extending contracts etc. To non HR professionals it may seem like typing up contracts is quick and easy work but this could not be further from the truth. The following are just some of the pain points I’ve had when typing up contracts, read and tick off any that may apply to you too when creating contracts of employment:
- Formatting Issues
- Grammatical Errors
- Mis-matched Fonts
- Saving Error: Corrupted file error meaning I have lost my entire document
- Time consuming reading complete contract to check for errors
- Printing Errors: Prints off centre or like a jigsaw puzzle making it frustrating to read
Well, how many points did you tick off that were applicable to you? If you found yourself even ticking off two of the above then you need Bright Contracts in your life as this software eliminates every single one of them pain points and produces a consistent, formatted, clean and compliant contract and handbook for each of your employees.
Read the below quick fire Q&A to gain an insight into what bright Contracts is, how it works and how it can help you with your contract and handbook creation:
What is Bright Contracts?
Bright Contracts is a software package that has everything you need to create and manage a professional staff handbook and contracts of employment. What was once traditionally an expensive, complicated and time-consuming process is now quick, easy and affordable with Bright Contracts.
Why should I use it?
Without employee contracts in place, an employer is risking large settlements in the case of staff disputes, and fines in the case of regulatory inspections. Having contracts also clearly defines the contractual relationship between you and your employees. Bright Contracts is the easiest way to get sorted.
What legislation is the software based on?
Bright Contracts has been written taking into account employment legislation across England, Scotland, Wales and Northern Ireland. The main piece of legislation governing the content of Bright Contracts is The Employments Rights Act 1996 and The Employment Rights (Northern Ireland) Order 1996. The legislation specifies that employees must receive written terms and conditions of employment and what these terms and conditions are. In addition Bright Contracts has taken cognizance of current best practices as well as all relevant legislation in the creation of the content of the contract and handbook. Legislation also requires that employers are provided with details of procedures relating to dismissal, disciplinary and grievances, all of which are covered in our documentation.
How do we know this system complies with requirements and what if the law changes?
The system content has been compiled and tested by HR/Employment law experts. The system will be updated with any changes in legislation, changes brought about by case law or changes in best practice. These updates will be flagged to all current users and will be free to download.
How many people can access Bright Contracts?
When a licence is purchased it comes with two activations which means it can be activated on two separate computers. Once these activations have been used they cannot be deactivated and reactivated on another device.
Do I print off the handbooks and contracts?
The simple answer is yes however if you are trying to reduce your paper foot print then you can also have the handbook and contracts of employment as a pdf document which can then be e-mailed or, if you use our Bright Pay Connect product you can upload the documents to the employee’s connect profile.
You can avail of a free trial of the software or purchase a Bright Contracts licence to adapt these policies to your business today. If you are looking to adopt or change your HR Software book a free 15-minute online demo to see how Bright Contracts can change your world of HR.
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The Vaccine & The New World of Work Webinar
With vaccination rollout currently underway across Ireland employers are beginning to look at returning a number of their employees to the workplace over the coming months which means plans need to be in place and actions need to be carried out to ensure it is as smooth and safe a return as possible.
We recently hosted a webinar recently which detailed for our customers how best to tackle returning their employees to the workplace including implementing a vaccine policy. To view the webinar recording click below:
Bright Contracts has recently updated its software to include a COVID-19 vaccine policy applicable to any business/ industry. This policy is in addition to the COVID-19 Response Plan and Temporary Working From Home Policy currently available on Bright Contracts.
You can avail of a free trial of the software or purchase a Bright Contracts licence to adapt these policies to your business today. If you are looking to adopt or change your HR Software book a free 15-minute online demo to see how Bright Contracts can change your world of HR.
Role Changing During COVID-19: Can employers ask this of their employees?
An employer can expect its employees to carry out different roles within the business where their contract of employment permits this. The employer should consider the relevant job descriptions to see if they comprise of the proposed changes, or if the contract contains a flexibility clause that allows the employer to vary the employees' roles and/or duties. If the employment contract does not allow for this, employers must be aware of the difficulties of imposing contractual changes which could potentially result in claims for constructive unfair dismissal. Any changes to the contract of employment should therefore should be undertaken with early consultation and with a view to reaching agreement with employees.
During the COVID-19 outbreak, employees may be more prepared to accept changes to their contract of employment where there is an imperative need for the work to be carried out, or where the viability of the business may be at risk. Employees may be willing to take on different roles if they are aware that it is for a brief period. The employer should be as transparent as possible with employees about the duration of any changes to their roles. An employee may be seen as having agreed to contractual changes if they carry out the varied role without any complaint.
Employers should ensure that suitable training is provided to any employees who may be required to carry out unfamiliar tasks and a risk assessment should be carried out to cover the temporary redeployment. For example, young or pregnant workers should not be substituted into inappropriate work.
Related Articles:
- Out of Hours Communication: The Right to Disconnect
- 1 Year On – COVID-19 & Working from Home
- Covid-19 mandatory policy now available on Bright Contracts
Free Webinar: The Vaccine & The New World of Work | April 28th, 11AM Register Today
Back to Basics - New Employees
We often get calls into the helpline requesting basic information on HR/Employment Law queries like how to deal with new starters or when should an employer invoke the disciplinary procedures, so we will look at some basic HR topics in a series of blogs starting today with new employees.
New Employees
• A new employee is required by law, under the Unfair Dismissal Act, to receive a copy of the company’s ‘Dismissal Procedures’, which are usually contained in the ‘Disciplinary/Grievance Procedures’ of the Staff or Company Handbook, within 28 days of starting work with the company.
• Under the Terms of Employment (Information) Act 1994 the employer is obliged to furnish new employees within 2 months of starting, with a ‘Written Statement of ‘certain’ terms and conditions’ of their employment, also known as an ‘Employment Contract’.
• The new GDPR regulations specify that employers must provide their employees with information about what personal data they hold on them, for what purpose and how it was collected, who it may be shared with, what security measures are in place to keep it safe and what the employee’s rights are as well as other specific requirements. This is called an ‘Employee Privacy Policy’ or ‘Employee Privacy Notice’ and should be given to the employee as an addendum to their Employment Contract.
Based on these 3 pieces of legislation it would be best practice to provide your new starter with their Employment Contract, Privacy Policy and Staff/Company Handbook on their first day of work, if not before it. An employer can be fined up to 4 weeks pay for not providing the employee with their ‘Written Statement of Terms and Conditions of Employment’ within the 2 month timeframe, so it is best to get into the habit of furnishing the documents as soon as possible.
There is no requirement for a signature from the employee on any of these documents; however it would be prudent of an employer to request a signature from the employee or at least some form of acknowledgement or proof of the employee receiving the documents.
The new Employment Bill 2017, yet to be introduced, stipulates that a new employee should receive some details of their terms of employment within 5 days of starting with a company but it is yet to be seen whether this aspect of the Bill will get the go ahead.
Bright Contracts offers employers a simple and user-friendly system which enables them to easily create and customize all of these documents and keep an electronic record on file. To download a Free Trial click here or book an online Demo of the Bright Contracts software.
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